Loan Contract Agricultural Bank of China
Loan
Contract
Agricultural
Bank of China
1
Loan
Contract
No.
(JJH)NYJZ(2005) 00000000000000000
Borrower
(full name): Xxxxxxx Xxxxxxxxxxx Metal Sheet Co., Ltd.
Xxxxxx
(full name): Agricultural Bank of China Tianjin Daqiuzhuang
Sub-Branch
The
Contract is entered into through negotiation in accordance with pertinent laws
and regulations.
Article
1
Loan
|
1-1
|
Kind:
short-term working capital loan
|
|
1-2
|
Purpose:
refinancing
|
|
1-3
|
Currency
and sum (say): twenty-two million five hundred thousand yuan only
|
|
1-4
|
Loan
term:
|
|
1)
|
the
term of this Loan shall be as follows:
|
|
Lending
|
Maturity
|
||
|
Date
|
Sum
|
Date
|
Sum
|
|
May
10, 2005
|
RMB
22,500,000
|
May
10, 2006
|
RMB
22,500,000
|
(In
case
of insufficiency, additional table will be available and shall be part of the
Contract)
|
2)
|
In
case of inconsistency of the sum and date as to lending and maturity
date
as described herein and those in lending vouchers, the latter shall
prevail. The lending vouchers shall be part of the Contract and have
equal
legal force with the Contract.
|
|
3)
|
In
case of foreign exchange loan hereunder, the Borrower shall return
the
principal and interests in the original currency.
|
|
1-5
|
Interest
rate
|
The
interest rate of the Loan in RMB shall be fixed according to the following
first
method:
|
1)
|
floating
rate:
|
The
interest rate shall be of annual rate: 7.533%, 35% floating upward (floating
upward/downward) on the benchmark rate. The benchmark rate of a loan less than
five years (included) shall be subject to the benchmark rate of RMB loan
publicized by the People’s Bank of China in corresponding period; the benchmark
rate of a loan more than five years shall be additional ___% based on benchmark
rate of RMB loan publicized by the People’s Bank of China in corresponding
period.
2
The
interest rate shall be adjusted in a period of
three
months.
In case of the benchmark rate of RMB loan adjusted by the People’s Bank of
China, the Lender shall, as of the corresponding lending date of the first
month
in the following period after adjustment, fix new lending rate according to
the
corresponding adjusted benchmark and the said calculation method, and the Lender
will not be notified otherwise. If the adjustment date is the same with the
lending date or the corresponding date of the first month in such period, new
lending rate shall be fixed as of the adjustment date. In case of absence of
corresponding date, the last day of the month shall apply.
|
2)
|
Fixed
rate:
|
The
interest rate shall be of annual rate:____%, ___% floating upward (floating
upward/downward) on the benchmark rate, up to the maturity date. The benchmark
rate of a loan less than five years (included) shall be subject to the benchmark
rate of RMB loan publicized by the People’s Bank of China in corresponding
period; the benchmark rate of a loan more than five years shall be additional
___% based on benchmark rate of RMB loan publicized by the People’s Bank of
China in corresponding period.
In
case
of foreign exchange loan, the interest rate shall be fixed according to the
following __ method:
|
a.
|
the
rate comprised of ____ month(s) of _____ (LIBOR/HIBOR) and ____%
of
interest margin, floating _____ month(s). LIBOR/HIBOR is the London/Hong
Kong inter-bank offered rate in corresponding period publicized by
Reuters
two working dates prior to the interest day.
|
|
b.
|
Annual
rate: __%, up to the maturity date;
|
|
c.
|
Others:
________________________________________________________.
|
|
1-6
|
Interest
Settlement
|
The
interest of the Loan hereunder shall be settled on the quarterly
(monthly/quarterly) basis on the 20th
day of
the last month in each quarter
(quarter/month). The Borrower shall pay off the interests on the interest
settlement day. If the last maturity day of the principal hereof is not the
interest settlement day, the outstanding interests shall be settled together
with the principal (daily rate = monthly rate/30).
Article
2
The
Lender shall have the right not to grant the Loan hereunder until all of the
following conditions are completed:
|
1.
|
2-1
The Borrower shall open a basic
deposit account
at the Lender;
|
2-2
The
Borrower shall, at the requirements of the Lender, provide relevant documents
and materials and complete corresponding procedures;
2-3
In
case of foreign exchange loan hereunder, the Borrower shall go through all
approvals, registrations and other legal procedures relating to the Loan
according to pertinent provisions;
2-4
In
case of mortgage, pledge or guarantee concerning the Loan hereunder, relevant
registration and/or insurance and other legal procedures have been completed
according to the requirements of the Lender, and such guarantee and insurance
shall be valid continually. In case of guarantee concerning the Loan hereunder,
the guarantee contract has been concluded and is in force.
3
Article
3
Rights
and Obligations of the Lender
3-1
The
Lender shall have the right to know about such situations of the Borrower as
production, operation, finance, storage and use of the Loan, and to require
the
Borrower to submit financial statements and other documents, materials and
information on schedule.
3-2
The
Lender can stop granting the Loan or take back the Loan in advance if the Lender
conducts behaviors or has circumstances which are sufficient to affect the
safety of the Loan, including, but not limited to, those as describe in
Paragraph 7, 8 and 10 of Article 4 hereof.
3-3
The
Lender can make direct direction from any account of the Borrower, if the Lender
takes back according to the Contract or takes back in advance the principal,
interests, penalty interests, compound interests and other sum payable by the
Borrower.
3-4
If
the sum repaid by the Borrower is insufficient to discharge the sum payable
hereunder, the Lender may choose to use such sum to repay the principal,
interests, penalty interests, compound interests or other charges.
3-5
The
Lender may disclose in public the breaches of the Borrower, if the Borrower
fails to perform the repayment obligation.
3-6
The
Lender shall grant the Loan to the Borrower in full amount on schedule according
to the Contract.
Article
4
Rights
and Obligations of the Borrower
4-1
The
Borrower shall have the right to obtain and use the Loan according to the
Contract.
4-2
The
Borrower shall go through procedures for settlement and deposit relating to
the
Loan hereunder through the accounts as mentioned in Article 2 hereof.
4-3
In
case of foreign exchange loan hereunder, the Borrower shall go through all
approvals, registrations and other legal procedures relating to the Loan
according to pertinent provisions.
4-4
The
Borrower shall repay the principal and interests on schedule. In case of
extension required, the Borrower shall submit a written application to the
Lender 15 days in advance of the maturity date; an extension agreement may
be
made with approval of the Lender.
4-5
The
Borrower shall use the Loan subject to the purpose stipulated herein, and may
not seize or misappropriate the Loan.
4-6
The
Borrower shall provide true, complete and valid financial statements or other
relevant materials and information to the Lender on a monthly basis. The
Borrower shall cooperate actively with the Lender in inspecting its production,
operation, finance and use of the Loan hereunder.
4-7
The
Borrower shall send a prior notice to the Lender in writing if the Borrower
conducts contract, lease, joint stock reconstruction, joint management, merger,
acquirement, division, joint venture, asset transfer, application for business
stoppage and rectification and other behavior which is sufficient to change
the
relationship of creditor's rights and debt hereunder or affect realization
of
the Lender’s creditor’s right. With the consent of the Lender, the Borrower
shall ascertain the repayment liability or repay the debt hereunder in advance;
otherwise, the Borrower may not conduct any behaviors hereinbefore.
4-8
The
Borrower shall notify the Lender in writing immediately and carry through the
preservation measures to creditor’s rights which are accepted by the Lender, if,
except for those as mentioned in previous clause, the Borrower has any other
circumstances which will have material adverse affections on its repayment
obligation hereunder, such as production stoppage, business closure,
registration cancellation, revocation of business license, or violation of
laws
or serious litigation or arbitration involved by the legal representative or
main persons in charge, or severe difficulties in production and operation,
deterioration of finance, etc.
4
4-9
The
Borrower shall send a written notice to the Lender in advance and obtain the
consent of the Lender if the Borrower provides guarantee in favor of other’s
debt or mortgages or pawns its main properties to a third party, which may
affect its capability of repayment of the Loan hereunder.
4-10
The
Borrower, as well as its investors, may not withdraw funds or hide properties
to
escape repayment debts to the Lender.
4-11
The
Borrower shall in time notify the Lender in writing of changed name, legal
representative, domicile, business scope and others of the Borrower, if
any.
4-12
The
Borrower shall provide in time other guarantees accepted by the Lender if the
guarantor as to the Loan hereunder stops production, closes business, cancels
registration, is revoked business license, is insolvent and is in deficit,
or
loses partly or wholly the guarantee capability relating to the Loan hereunder,
or the value guaranty, pawn or pledge as to the Loan hereunder reduces.
4-13
The
Borrower shall be responsible for costs and expenses relating to the Contract
and the guarantee hereunder, such as attorney fee, insurance premium, freight,
evaluation fee, registration cost, storage fee, appraisal fee and notarization
fee.
Article
5
Early
Repayment
In
case
of early repayment, the Borrower shall obtain the consent of the Lender. If
the
Lender agrees the Borrower to repay the Loan in advance, the interests of the
sum repaid early shall be calculated according to the following second
method:
|
1)
|
to
calculate the interests according to the loan term and the interest
rate
stipulated in the Contract;
|
|
2)
|
to
calculate the interests at the ___% floating upward the interest
rate
stipulated in the Contract according to the actual term of loan.
|
Article
6
Liability for Breach of Agreement
6-1
In
case of losses to the Borrower due to failure of the Lender to grant the Loan
to
the Borrower in full amount according to the Contract, the Lender shall pay
the
penalty to the Borrower according to the overdue amount and delayed days.
Calculation of the penalty shall be the same as that of interests of overdue
lending in corresponding period.
6-2
Where
the Borrower fails to return the principal and interests on schedule stipulated
in the Contract, the Lender shall calculate and charge penalty interests of
such
overdue repayment sum, at thirty
per cent
floating upward the interest rate stipulated in the Contract as of the overdue
repayment day, until corresponding principal and interests have been paid off.
If, during overdue repayment, in case of lending in RMB, the People’s Bank of
China revises upward the benchmark of corresponding RMB loan, the penalty
interest rate shall be revised correspondingly as of such revision day.
5
6-3
Where
the Borrower fails to use the Loan according to the Contract, the Lender shall
calculate and charge penalty interests of such sum in breach, at fifty
per cent
floating upward the interest rate stipulated in the Contract as of the breach
day, until corresponding principal and interests have been paid off. If, during
overdue repayment, in case of lending in RMB, the People’s Bank of China revises
upward the benchmark of corresponding RMB loan, the penalty interest rate shall
be revised correspondingly as of such revision day.
6-4
The
Lender shall calculate and charge compound interests according to the
stipulations of the People’s Bank of China against the outstanding interests
payable.
6-5
Where
the Borrower is in breach of the obligations hereunder, the Lender shall have
the right to require the Borrower to correct such breach within a given period,
to stop granting the Loan or take back the Loan granted in advance; furthermore,
the Lender shall also have the right to declare the lending under other loan
contracts by and between the Lender and the Borrower is mature immediately
or to
take other asset property measures.
6-6
Where
any of the guarantors of the Loan hereunder is in breach of the obligations
stipulated in the guarantee contract, the Lender shall have the right to take
measures against the Borrower, including stopping granting the Loan, taking
back
the Loan granted in advance or other asset property measures.
6-7
Where
the Lender has to realize its creditor’s rights by means of litigation or
arbitration due to breach of the Borrower, the Borrower shall be responsible
for
the attorney fee, traveling fee and other costs for realization incurred by
the
Lender thus.
Article
7
Guarantee of the Loan
The
guarantee of the Loan hereunder shall be mortgage.
The
guarantee contract shall be concluded otherwise. In case of maximum deposit
mortgage, the number of the guarantee contract is _______________.
Article
8
Settlement of Disputes
Any
dispute arising from performance of the Contract may be settled through
negotiation, or by means of following ____:
|
1)
|
litigation.
The dispute shall be governed by the People’s Court at the place where the
Lender is located;
|
|
2)
|
arbitration.
The dispute shall be submitted to ____________________ (full name
of the
arbitration institution) for arbitration according to its rules.
|
The
Contract shall be performed continually during the period of litigation or
arbitration, except for those in dispute.
Article
9
Miscellaneous
6
Article
10
Effectiveness
The
Contract shall be in force after signed or sealed by the Parties hereto.
Article
11
Copies
The
Contract shall be in three copies with equal force, one of which shall be kept
by either party hereto and one submitted to the Administration for Industry
and
Commerce.
Article
12
Notice
The
Lender has reminded the Borrower to understand comprehensively and exactly
the
terms and conditions of the Contract and explained for corresponding terms
and
conditions hereof at the requirements of the Borrower. The Parties to the
Contract have consistent understanding of the meanings of the Contract.
The
Borrower (signature and seal): Tianjin
Daqiuzhuang Metal Sheet Co., Ltd.
Legal
representative or agent: Xx
Xxxxxxxx
The
Lender (signature and seal): Agricultural
Bank of China Tianjin Daqiuzhuang Sub-Branch
Principal
or agent: Xxxx
Xxxxxx
Date
of
conclusion: May 10, 2005
Place
of
conclusion: Agricultural Bank of China Tianjin Daqiuzhuang
Sub-Branch
7
Mortgage
Contract
Agricultural
Bank of China
8
Mortgage
Contract
No.
(JJH)
NYDZ (0000) 00000000000000000
Mortgagee
(full name): Agricultural Bank of China Xxxxxxx Xxxxxxxxxxx Sub-Branch
Mortgager
(full name): 1) Xxxxxxx Xxxxxxxxxxx Metal Sheet Co., Ltd.
|
2)
_____________________________________
|
|
3)
______________________________________
|
The
Mortgager is willing to provide mortgage to the debt between Xxxxxxx Xxxxxxxxxxx
Metal Sheet Co., Ltd. (hereinafter referred to as the Debtor) and the Mortgagee
under the Loan Contract (hereinafter referred to as the Master Contract), No.
JJHNYJZ
(0000) 00000000000000000,
to
ensure that the Master Contract by and between the Debtor and the Mortgagee
can
be fulfilled in deed. The Contract is entered into through negotiation in
accordance with pertinent laws and regulations of the State.
Article
1
Kind of
Primary Creditor’s Rights Guaranteed and Sum of the Principal
The
primary creditor’s right guaranteed is of short-term
working capital loan,
covering twenty-two
million five hundred thousand yuan
of the
principal.
Article
2
Scope of
Mortgage
The
scope
of mortgage includes the principal, interests, penalty interests, compound
interests, penalty and damages of the debt under the Master Contract, and
litigation cost, attorney fee, guaranty disposal fee, transfer fee and other
costs incurred by the Mortgagee for realization of its creditor’s right.
Article
3
Guaranty
3-1
The
Mortgager agrees to provide the following properties:
machine and equipments
(see the
Guaranty List, No. 12902200500008263) as the guaranty hereunder. The said
Guaranty List shall be part of the Contract.
3-2
The
said guaranties shall be evaluated temporarily as (say) thirty-three
million three hundred and eighty-three thousand one hundred yuan
only.
The
final value hereof shall be subject to the net income from actual disposal
of
the guaranties for realization of the mortgage right.
9
Article
4
Mortgager’s Undertakings
4-1
The
Mortgager owns the title or disposal right of the guaranties sufficiently and
beyond dispute.
4-2
The
guaranties may be circulated or transferred according to laws.
4-3
The
guaranties have not been sealed up, detained or remortgaged.
4-4
The
Mortgager does not hide those circumstances including default of taxes, project
price and other sums under the guaranties, lease of the guaranties and others.
4-5
The
Mortgager has obtained the consent of the co-owners of the guaranties concerning
mortgage hereunder.
4-6
There
are not other facts which may affect the Mortgagee to realize its mortgage
right.
Article
5
Effectiveness of Mortgage Right
The
effectiveness of the mortgage right can cover appurtenant objects, secondary
right, right of subrogation, combination substances, compositions, processed
matters and accrued interests of the guaranties.
Article
6
Holding and Management of Guaranties
6-1
The
guaranties hereunder shall be held by the Mortgager, who shall have the
obligation to manage properly the guaranties. The Mortgagee shall have the
right
to supervise and inspect management of the guaranties.
6-2
Within the term of the Contract, the Mortgager may not present, transfer, sell,
lease, remortgage the guaranties or dispose in other ways without written
consent of the Mortgagee. Earnings from transfer, lease and sale of the
guaranties with written consent of the Mortgagee shall be applied to repayment
of the debt under the Master Contract guaranteed in advance, or to be drawn
by
the third party agreed by the Mortgager and the Mortgagee.
6-3
If,
within the term of the Contract, the guaranties are ruined, damaged or
expropriated, the Mortgager shall take effective measures in time to prevent
expansion of the losses and notify promptly the Mortgagee in writing. Insurance
premiums, damages and compensations gained by the Mortgager thus shall be first
used to repay the debt under the Master Contract.
6-4
If,
within the term of the Contract, the value of the guaranties is reduced, the
Mortgagee shall have the right to require the Mortgager to restore the value
of
the guaranties or provide other guarantees accepted by the Mortgagee. Where
the
Mortgager refuses to restore the value or provide other guarantees, the
Mortgagee shall have the right to declare that the debt under the Master
Contract is mature in advance. In such case, the Mortgagee may require the
Mortgager to repay the debt, or exercise the right of mortgage in advance.
Article
7
Insurance of Guaranties
7-1
The
Mortgager shall at the requirements of the Mortgagee pay relevant insurances
concerning the guaranties. The mortgagee shall be the first beneficiary of
such
insurances.
7-2
The
mortgager shall deliver the original of the insurance policies as to the
guaranties to the Mortgagee.
7-3
Within the term of the Contract, the Mortgager may not suspend or withdraw
the
insurances with any reason. In case of suspension, the Mortgagee shall have
the
right to go through insurance procedures on behalf at all cost of the Mortgager.
The Mortgagee shall have the right to deduct the said costs directly from any
account of the Mortgager.
10
7-4
In
case of accidents covered by insurance, the insurance compensations shall be
first used to repay the debt under the Master Contract and relevant expenses.
Article
8
Registration of Mortgage
The
Mortgager shall within 5 days as of the date of the Contract go through the
procedures for registration of mortgage with relevant registration authority
and
submit the Mortgagee the originals of the certificate of supplementary rights
and the mortgage registration certification of the guaranties and other
supplementary rights certificates.
Article
9
Realization of the Right of Mortgage
9-1
If
the Mortgagee has not be repaid after expiration of performance period of the
debt under the Master Contract, the Mortgagee shall have the right to convert
the guaranties into money or repay the debt with earnings from auction or sale
of the guaranties. The said “expiration of period” includes the circumstance
that the Mortgagee declares that the debt under the Master Contract is mature
in
advance in according to the state laws and regulations or the stipulations
of
the Master Contract.
9-2
In
case of more than two mortgagers hereunder, the Mortgagee shall have the right
to dispose the guaranties of any or all mortgagers when exercising the right
of
mortgage.
Article
10 Liability for Breach of Agreement
10-1
After effectiveness of the Contract, both the Mortgagee and the Mortgager shall
perform their obligations hereunder. Either party that fails to do so shall
be
liable for corresponding liabilities for breach of agreement and compensating
the other for losses therefrom.
10-2
The
Mortgager shall compensate the Mortgagee for all losses caused by any of the
following circumstances:
1)
the
Mortgager conceals facts that the guaranties have co-owners or are in dispute,
sealed up, controlled, detained, remortgaged, leased or in default in taxes
or
project price, etc.;
2)
the
Mortgager disposes the guaranties without written consent of the Mortgagee;
or
3)
the
Mortgager conducts other behaviors which violate the stipulations herein or
affect the Mortgagee to realize the right of mortgage.
Article
11 Expense Sharing
The
Mortgager shall be responsible for all costs and expenses incurred from
registration, evaluation, insurance, appraisal, notarization or drawing of
the
guaranties hereunder.
11
Article
12 Settlement of Disputes
Any
dispute arising from performance of the Contract may be settled through
negotiation, or by the following first
means:
|
1)
|
litigation.
The dispute shall be governed by the People’s Court at the place where the
Mortgagee is located;
|
|
2)
|
arbitration.
The dispute shall be submitted to ____________________ (full name
of the
arbitration institution) for arbitration according to its rules.
|
The
Contract shall be performed continually during the period of litigation or
arbitration, except for those in dispute.
Article
13 Miscellaneous
13-1
The
Mortgager has received and read the Master Contract guaranteed.
Article
14 Effectiveness
The
Contract shall be in force after signed or sealed by the Parties hereto. In
case
of mortgage registration required by laws, the Contract shall become effective
as of the date of registration.
Article
15 The Contract shall be in three copies with equal force, one of which shall
be
kept by either party hereto and one submitted to the Administration for Industry
and Commerce.
Article
16 Notice
The
Mortgagee has reminded the Mortgager to understand comprehensively and exactly
the terms and conditions of the Contract and explained for corresponding terms
and conditions hereof at the requirements of the Mortgager. The Parties to
the
Contract have consistent understanding of the meanings of the Contract.
The
Mortgagee (signature and seal): Agricultural
Bank of China Tianjin Daqiuzhuang Sub-Branch
Principal
or agent: Xxxx
Xxxxxx
The
Mortgager (signature and seal):
Tianjin
Daqiuzhuang Metal Sheet Co., Ltd.
Legal
representative or agent: Xx
Xxxxxxxx
The
Mortgager (signature and seal):
Legal
representative or agent:
12
The
Mortgager (signature and seal):
Legal
representative or agent:
Date
of
conclusion: May 10, 2005
Place
of
conclusion: Agricultural Bank of China Tianjin Daqiuzhuang
Sub-Branch
13
Loan
Contract
Agricultural
Bank of China
14
Loan
Contract
No.
(JJH)NYJZ(2005) 12902200500004
Borrower
(full name): Xxxxxxx Xxxxxxxxxxx Metal Sheet Co., Ltd.
Xxxxxx
(full name): Agricultural Bank of China Tianjin Daqiuzhuang
Sub-Branch
The
Contract is entered into through negotiation in accordance with pertinent laws
and regulations.
Article
1
Loan
1-1
Kind:
short-term working capital loan
1-2
Purpose: refinancing
1-3
Currency and sum (say): nine million yuan only
1-4
Loan
term:
1)
the
term of this Loan shall be as follows:
|
Lending
|
Maturity
|
||
|
Date
|
Sum
|
Date
|
Sum
|
|
March
14, 2005
|
RMB
9,000,000
|
March
14, 2006
|
RMB
9,000,000
|
(in
case
of insufficiency, additional table will be available and shall be part of the
Contract)
2)
In
case of inconsistency of the sum and date as to lending and maturity date as
described herein and those in lending vouchers, the latter shall prevail. The
lending vouchers shall be part of the Contract and have equal legal force with
the Contract.
3)
In
case of foreign exchange loan hereunder, the Borrower shall return the principal
and interests in the original currency.
|
1-5
|
Interest
rate
|
The
interest rate of the Loan in RMB shall be fixed according to the following
first
method:
|
1)
|
floating
rate:
|
The
interest rate shall be of annual rate: 7.533%,
__%
floating upward (floating upward/downward) on the benchmark rate. The benchmark
rate of a loan less than five years (included) shall be subject to the benchmark
rate of RMB loan publicized by the People’s Bank of China in corresponding
period; the benchmark rate of a loan more than five years shall be additional
___% based on benchmark rate of RMB loan publicized by the People’s Bank of
China in corresponding period.
15
The
interest rate shall be adjusted in a period of
three
months.
In case of the benchmark rate of RMB loan adjusted by the People’s Bank of
China, the Lender shall, as of the corresponding lending date of the first
month
in the following period after adjustment, fix new lending rate according to
the
corresponding adjusted benchmark and the said calculation method, and the Lender
will not be notified otherwise. If the adjustment date is the same with the
lending date or the corresponding date of the first month in such period, new
lending rate shall be fixed as of the adjustment date. In case of absence of
corresponding date, the last day of the month shall apply.
|
2)
|
Fixed
rate:
|
The
interest rate shall be of annual rate:____%, ___% floating upward (floating
upward/downward) on the benchmark rate, up to the maturity date. The benchmark
rate of a loan less than five years (included) shall be subject to the benchmark
rate of RMB loan publicized by the People’s Bank of China in corresponding
period; the benchmark rate of a loan more than five years shall be additional
___% based on benchmark rate of RMB loan publicized by the People’s Bank of
China in corresponding period.
In
case
of foreign exchange loan, the interest rate shall be fixed according to the
following __ method:
|
a)
|
the
rate comprised of ____ month(s) of _____ (LIBOR/HIBOR) and ____%
of
interest margin, floating _____ month(s). LIBOR/HIBOR is the London/Hong
Kong inter-bank offered rate in corresponding period publicized by
Reuters
two working dates prior to the interest day.
|
|
b)
|
Annual
rate: __%, up to the maturity date;
|
|
c)
|
Others:
________________________________________________________.
|
|
1-6
|
Interest
Settlement
|
The
interest of the Loan hereunder shall be settled on the quarterly
(monthly/quarterly) basis on the 20th
day of
the last month in each quarter
(quarter/month). The Borrower shall pay off the interests on the interest
settlement day. If the last maturity day of the principal hereof is not the
interest settlement day, the outstanding interests shall be settled together
with the principal (daily rate = monthly rate/30).
Article
2
The Lender shall have the right not to grant the Loan hereunder until all of
the
following conditions are completed:
2-1
The
Borrower shall open a
basic
deposit account
at the
Lender;
2-2
The
Borrower shall, at the requirements of the Lender, provide relevant documents
and materials and complete corresponding procedures;
2-3
In
case of foreign exchange loan hereunder, the Borrower shall go through all
approvals, registrations and other legal procedures relating to the Loan
according to pertinent provisions;
2-4
In
case of mortgage, pledge or guarantee concerning the Loan hereunder, relevant
registration and/or insurance and other legal procedures have been completed
according to the requirements of the Lender, and such guarantee and insurance
shall be valid continually. In case of guarantee concerning the Loan hereunder,
the guarantee contract has been concluded and is in force.
16
Article
3
Rights and Obligations of the Lender
3-1
The
Lender shall have the right to know about such situations of the Borrower as
production, operation, finance, storage and use of the Loan, and to require
the
Borrower to submit financial statements and other documents, materials and
information on schedule.
3-2
The
Lender can stop granting the Loan or take back the Loan in advance if the Lender
conducts behaviors or has circumstances which are sufficient to affect the
safety of the Loan, including, but not limited to, those as describe in
Paragraph 7, 8 and 10 of Article 4 hereof.
3-3
The
Lender can make direct direction from any account of the Borrower, if the Lender
takes back according to the Contract or takes back in advance the principal,
interests, penalty interests, compound interests and other sum payable by the
Borrower.
3-4
If
the sum repaid by the Borrower is insufficient to discharge the sum payable
hereunder, the Lender may choose to use such sum to repay the principal,
interests, penalty interests, compound interests or other charges.
3-5
The
Lender may disclose in public the breaches of the Borrower, if the Borrower
fails to perform the repayment obligation.
3-6
The
Lender shall grant the Loan to the Borrower in full amount on schedule according
to the Contract.
Article
4
Rights and Obligations of the Borrower
4-1
The
Borrower shall have the right to obtain and use the Loan according to the
Contract.
4-2
The
Borrower shall go through procedures for settlement and deposit relating to
the
Loan hereunder through the accounts as mentioned in Article 2 hereof.
4-3
In
case of foreign exchange loan hereunder, the Borrower shall go through all
approvals, registrations and other legal procedures relating to the Loan
according to pertinent provisions.
4-4
The
Borrower shall repay the principal and interests on schedule. In case of
extension required, the Borrower shall submit a written application to the
Lender 15 days in advance of the maturity date; an extension agreement may
be
made with approval of the Lender.
4-5
The
Borrower shall use the Loan subject to the purpose stipulated herein, and may
not seize or misappropriate the Loan.
4-6
The
Borrower shall provide true, complete and valid financial statements or other
relevant materials and information to the Lender on a monthly basis. The
Borrower shall cooperate actively with the Lender in inspecting its production,
operation, finance and use of the Loan hereunder.
4-7
The
Borrower shall send a prior notice to the Lender in writing if the Borrower
conducts contract, lease, joint stock reconstruction, joint management, merger,
acquirement, division, joint venture, asset transfer, application for business
stoppage and rectification and other behavior which is sufficient to change
the
relationship of creditor's rights and debt hereunder or affect realization
of
the Lender’s creditor’s right. With the consent of the Lender, the Borrower
shall ascertain the repayment liability or repay the debt hereunder in advance;
otherwise, the Borrower may not conduct any behaviors hereinbefore.
4-8
The
Borrower shall notify the Lender in writing immediately and carry through the
preservation measures to creditor’s rights which are accepted by the Lender, if,
except for those as mentioned in previous clause, the Borrower has any other
circumstances which will have material adverse affections on its repayment
obligation hereunder, such as production stoppage, business closure,
registration cancellation, revocation of business license, or violation of
laws
or serious litigation or arbitration involved by the legal representative or
main persons in charge, or severe difficulties in production and operation,
deterioration of finance, etc.
17
4-9
The
Borrower shall send a written notice to the Lender in advance and obtain the
consent of the Lender if the Borrower provides guarantee in favor of other’s
debt or mortgages or pawns its main properties to a third party, which may
affect its capability of repayment of the Loan hereunder.
4-10
The
Borrower, as well as its investors, may not withdraw funds or hide properties
to
escape repayment debts to the Lender.
4-11
The
Borrower shall in time notify the Lender in writing of changed name, legal
representative, domicile, business scope and others of the Borrower, if
any.
4-12
The
Borrower shall provide in time other guarantees accepted by the Lender if the
guarantor as to the Loan hereunder stops production, closes business, cancels
registration, is revoked business license, is insolvent and is in deficit,
or
loses partly or wholly the guarantee capability relating to the Loan hereunder,
or the value guaranty, pawn or pledge as to the Loan hereunder reduces.
4-13
The
Borrower shall be responsible for costs and expenses relating to the Contract
and the guarantee hereunder, such as attorney fee, insurance premium, freight,
evaluation fee, registration cost, storage fee, appraisal fee and notarization
fee.
Article
5
Early Repayment
In
case
of early repayment, the Borrower shall obtain the consent of the Lender. If
the
Lender agrees the Borrower to repay the Loan in advance, the interests of the
sum repaid early shall be calculated according to the following second
method:
|
1)
|
to
calculate the interests according to the loan term and the interest
rate
stipulated in the Contract;
|
|
2)
|
to
calculate the interests at the ___% floating upward the interest
rate
stipulated in the Contract according to the actual term of loan.
|
Article
6
Liability for Breach of Agreement
6-1
In
case of losses to the Borrower due to failure of the Lender to grant the Loan
to
the Borrower in full amount according to the Contract, the Lender shall pay
the
penalty to the Borrower according to the overdue amount and delayed days.
Calculation of the penalty shall be the same as that of interests of overdue
lending in corresponding period.
6-2
Where
the Borrower fails to return the principal and interests on schedule stipulated
in the Contract, the Lender shall calculate and charge penalty interests of
such
overdue repayment sum, at thirty
per cent
floating upward the interest rate stipulated in the Contract as of the overdue
repayment day, until corresponding principal and interests have been paid off.
If, during overdue repayment, in case of lending in RMB, the People’s Bank of
China revises upward the benchmark of corresponding RMB loan, the penalty
interest rate shall be revised correspondingly as of such revision day.
18
6-3
Where
the Borrower fails to use the Loan according to the Contract, the Lender shall
calculate and charge penalty interests of such sum in breach, at fifty
per cent
floating upward the interest rate stipulated in the Contract as of the breach
day, until corresponding principal and interests have been paid off. If, during
overdue repayment, in case of lending in RMB, the People’s Bank of China revises
upward the benchmark of corresponding RMB loan, the penalty interest rate shall
be revised correspondingly as of such revision day.
6-4
The
Lender shall calculate and charge compound interests according to the
stipulations of the People’s Bank of China against the outstanding interests
payable.
6-5
Where
the Borrower is in breach of the obligations hereunder, the Lender shall have
the right to require the Borrower to correct such breach within a given period,
to stop granting the Loan or take back the Loan granted in advance; furthermore,
the Lender shall also have the right to declare the lending under other loan
contracts by and between the Lender and the Borrower is mature immediately
or to
take other asset property measures.
6-6
Where
any of the guarantors of the Loan hereunder is in breach of the obligations
stipulated in the guarantee contract, the Lender shall have the right to take
measures against the Borrower, including stopping granting the Loan, taking
back
the Loan granted in advance or other asset property measures.
6-7
Where
the Lender has to realize its creditor’s rights by means of litigation or
arbitration due to breach of the Borrower, the Borrower shall be responsible
for
the attorney fee, traveling fee and other costs for realization incurred by
the
Lender thus.
Article
7
Guarantee of the Loan
The
guarantee of the Loan hereunder shall be mortgage.
The
guarantee contract shall be concluded otherwise. In case of maximum deposit
mortgage, the number of the guarantee contract is _______________.
Article
8
Settlement of Disputes
Any
dispute arising from performance of the Contract may be settled through
negotiation, or by means of following ____:
|
1)
|
litigation.
The dispute shall be governed by the People’s Court at the place where the
Lender is located;
|
|
2)
|
arbitration.
The dispute shall be submitted to ____________________ (full name
of the
arbitration institution) for arbitration according to its rules.
|
The
Contract shall be performed continually during the period of litigation or
arbitration, except for those in dispute.
Article
9
Miscellaneous
19
Article
10 Effectiveness
The
Contract shall be in force after signed or sealed by the Parties hereto.
Article
11 Copies
The
Contract shall be in three copies with equal force, one of which shall be kept
by either party hereto and one submitted to the Administration for Industry
and
Commerce.
Article
12 Notice
The
Lender has reminded the Borrower to understand comprehensively and exactly
the
terms and conditions of the Contract and explained for corresponding terms
and
conditions hereof at the requirements of the Borrower. The Parties to the
Contract have consistent understanding of the meanings of the Contract.
The
Borrower (signature and seal): Tianjin
Daqiuzhuang Metal Sheet Co., Ltd.
Legal
representative or agent:
The
Lender (signature and seal): Agricultural
Bank of China Tianjin Daqiuzhuang Sub-Branch
Principal
or agent:
Date
of
conclusion: the __ day of ____
Place
of
conclusion: Agricultural Bank of China Tianjin Daqiuzhuang
Sub-Branch
20
Mortgage
Contract
Agricultural
Bank of China
21
Mortgage
Contract
No.
(JJH)
NYDZ (0000) 00000000000000000
Mortgagee
(full name): Agricultural Bank of China Xxxxxxx Xxxxxxxxxxx Sub-Branch
Mortgager
(full name): 1) Xxxxxxx Xxxxxxxxxxx Metal Sheet Co., Ltd.
|
2)
_____________________________________
|
|
3)
______________________________________
|
The
Mortgager is willing to provide mortgage to the debt between Xxxxxxx
Xxxxxxxxxxx Metal Sheet Co., Ltd. (hereinafter
referred to as the Debtor) and the Mortgagee under the Loan
Contract
(hereinafter referred to as the Master Contract), No. JJHNYJZ
(0000) 00000000000000000,
to
ensure that the Master Contract by and between the Debtor and the Mortgagee
can
be fulfilled in deed. The Contract is entered into through negotiation in
accordance with pertinent laws and regulations of the State.
Article
1
Kind of Primary Creditor’s Rights Guaranteed and Sum of the
Principal
The
primary creditor’s right guaranteed is of short-term
working capital loan,
covering nine
million yuan
of the
principal.
Article
2
Scope of Mortgage
The
scope
of mortgage includes the principal, interests, penalty interests, compound
interests, penalty and damages of the debt under the Master Contract, and
litigation cost, attorney fee, guaranty disposal fee, transfer fee and other
costs incurred by the Mortgagee for realization of its creditor’s right.
Article
3
Guaranty
3-1
The
Mortgager agrees to provide the following properties:
machine and equipments
(see the
Guaranty List, No. XXXXXXX (0000)00000000000000000) as the guaranty hereunder.
The said Guaranty List shall be part of the Contract.
3-2
The
said guaranties shall be evaluated temporarily as (say) twelve
million nine hundred and twenty-one thousand two hundred yuan
only.
The
final value hereof shall be subject to the net income from actual disposal
of
the guaranties for realization of the mortgage right.
22
Article
4
Mortgager’s Undertakings
4-1
The
Mortgager owns the title or disposal right of the guaranties sufficiently and
beyond dispute.
4-2
The
guaranties may be circulated or transferred according to laws.
4-3
The
guaranties have not been sealed up, detained or remortgaged.
4-4
The
Mortgager does not hide those circumstances including default of taxes, project
price and other sums under the guaranties, lease of the guaranties and others.
4-5
The
Mortgager has obtained the consent of the co-owners of the guaranties concerning
mortgage hereunder.
4-6
There
are not other facts which may affect the Mortgagee to realize its mortgage
right.
Article
5
Effectiveness of Mortgage Right
The
effectiveness of the mortgage right can cover appurtenant objects, secondary
right, right of subrogation, combination substances, compositions, processed
matters and accrued interests of the guaranties.
Article
6
Holding and Management of Guaranties
6-1
The
guaranties hereunder shall be held by the Mortgager, who shall have the
obligation to manage properly the guaranties. The Mortgagee shall have the
right
to supervise and inspect management of the guaranties.
6-2
Within the term of the Contract, the Mortgager may not present, transfer, sell,
lease, remortgage the guaranties or dispose in other ways without written
consent of the Mortgagee. Earnings from transfer, lease and sale of the
guaranties with written consent of the Mortgagee shall be applied to repayment
of the debt under the Master Contract guaranteed in advance, or to be drawn
by
the third party agreed by the Mortgager and the Mortgagee.
6-3
If,
within the term of the Contract, the guaranties are ruined, damaged or
expropriated, the Mortgager shall take effective measures in time to prevent
expansion of the losses and notify promptly the Mortgagee in writing. Insurance
premiums, damages and compensations gained by the Mortgager thus shall be first
used to repay the debt under the Master Contract.
6-4
If,
within the term of the Contract, the value of the guaranties is reduced, the
Mortgagee shall have the right to require the Mortgager to restore the value
of
the guaranties or provide other guarantees accepted by the Mortgagee. Where
the
Mortgager refuses to restore the value or provide other guarantees, the
Mortgagee shall have the right to declare that the debt under the Master
Contract is mature in advance. In such case, the Mortgagee may require the
Mortgager to repay the debt, or exercise the right of mortgage in advance.
Article
7
Insurance of Guaranties
7-1
The
Mortgager shall at the requirements of the Mortgagee pay relevant insurances
concerning the guaranties. The mortgagee shall be the first beneficiary of
such
insurances.
7-2
The
mortgager shall deliver the original of the insurance policies as to the
guaranties to the Mortgagee.
23
7-3
Within the term of the Contract, the Mortgager may not suspend or withdraw
the
insurances with any reason. In case of suspension, the Mortgagee shall have
the
right to go through insurance procedures on behalf at all cost of the Mortgager.
The Mortgagee shall have the right to deduct the said costs directly from any
account of the Mortgager.
7-4
In
case of accidents covered by insurance, the insurance compensations shall be
first used to repay the debt under the Master Contract and relevant expenses.
Article
8
Registration of Mortgage
The
Mortgager shall within 5 days as of the date of the Contract go through the
procedures for registration of mortgage with relevant registration authority
and
submit the Mortgagee the originals of the certificate of supplementary rights
and the mortgage registration certification of the guaranties and other
supplementary rights certificates.
Article
9
Realization of the Right of Mortgage
9-1
If
the Mortgagee has not be repaid after expiration of performance period of the
debt under the Master Contract, the Mortgagee shall have the right to convert
the guaranties into money or repay the debt with earnings from auction or sale
of the guaranties. The said “expiration of period” includes the circumstance
that the Mortgagee declares that the debt under the Master Contract is mature
in
advance in according to the state laws and regulations or the stipulations
of
the Master Contract.
9-2
In
case of more than two mortgagers hereunder, the Mortgagee shall have the right
to dispose the guaranties of any or all mortgagers when exercising the right
of
mortgage.
Article
10 Liability for Breach of Agreement
10-1
After effectiveness of the Contract, both the Mortgagee and the Mortgager shall
perform their obligations hereunder. Either party that fails to do so shall
be
liable for corresponding liabilities for breach of agreement and compensating
the other for losses therefrom.
10-2
The
Mortgager shall compensate the Mortgagee for all losses caused by any of the
following circumstances:
1)
the
Mortgager conceals facts that the guaranties have co-owners or are in dispute,
sealed up, controlled, detained, remortgaged, leased or in default in taxes
or
project price, etc.;
2)
the
Mortgager disposes the guaranties without written consent of the Mortgagee;
or
3)
the
Mortgager conducts other behaviors which violate the stipulations herein or
affect the Mortgagee to realize the right of mortgage.
Article
11 Expense Sharing
The
Mortgager shall be responsible for all costs and expenses incurred from
registration, evaluation, insurance, appraisal, notarization or drawing of
the
guaranties hereunder.
24
Article
12 Settlement of Disputes
Any
dispute arising from performance of the Contract may be settled through
negotiation, or by the following first
means:
|
3)
|
litigation.
The dispute shall be governed by the People’s Court at the place where the
Mortgagee is located;
|
|
4)
|
arbitration.
The dispute shall be submitted to ____________________ (full name
of the
arbitration institution) for arbitration according to its rules.
|
The
Contract shall be performed continually during the period of litigation or
arbitration, except for those in dispute.
Article
13 Miscellaneous
13-1
The
Mortgager has received and read the Master Contract guaranteed.
Article
14 Effectiveness
The
Contract shall be in force after signed or sealed by the Parties hereto. In
case
of mortgage registration required by laws, the Contract shall become effective
as of the date of registration.
Article
15 The Contract shall be in three copies with equal force, one of which shall
be
kept by either party hereto and one submitted to the Administration for Industry
and Commerce.
Article
16 Notice
The
Mortgagee has reminded the Mortgager to understand comprehensively and exactly
the terms and conditions of the Contract and explained for corresponding terms
and conditions hereof at the requirements of the Mortgager. The Parties to
the
Contract have consistent understanding of the meanings of the Contract.
The
Mortgagee (signature and seal): Agricultural
Bank of China Tianjin Daqiuzhuang Sub-Branch
Principal
or agent:
The
Mortgager (signature and seal):
Tianjin
Daqiuzhuang Metal Sheet Co., Ltd.
Legal
representative or agent: Xx
Xxxxxxxx
The
Mortgager (signature and seal):
Legal
representative or agent:
25
The
Mortgager (signature and seal):
Legal
representative or agent:
Date
of
conclusion: March 14, 2005
Place
of
conclusion: Agricultural Bank of China Tianjin Daqiuzhuang
Sub-Branch
26
Loan
Contract
Agricultural
Bank of China
27
Loan
Contract
No.
(JJH)NYJZ(___) 12101200500006651
Borrower
(full name): Xxxxxxx Xxxxxxxxxxx Metal Sheet Co., Ltd.
Xxxxxx
(full name): Agricultural Bank of China Tianjin Jinghai Sub-Branch
The
Contract is entered into through negotiation in accordance with pertinent laws
and regulations.
Article
1
Loan
1-1
Kind:
short-term working capital loan
1-2
Purpose: refinancing
1-3
Currency and sum (say): twenty million yuan only
1-4
Loan
term:
1)
the
term of this Loan shall be as follows:
|
Lending
|
Maturity
|
||
|
Date
|
Sum
|
Date
|
Sum
|
|
November
3, 2005
|
RMB
10,000,000
|
October
28, 2006
|
RMB
10,000,000
|
|
November
3, 2005
|
RMB
10,000,000
|
November
3, 2006
|
RMB
10,000,000
|
(In
case
of insufficiency, additional table will be available and shall be part of the
Contract)
2)
In
case of inconsistency of the sum and date as to lending and maturity date as
described herein and those in lending vouchers, the latter shall prevail. The
lending vouchers shall be part of the Contract and have equal legal force with
the Contract.
3)
In
case of foreign exchange loan hereunder, the Borrower shall return the principal
and interests in the original currency.
|
1-7
|
Interest
rate
|
The
interest rate of the Loan in RMB shall be fixed according to the following
first
method:
|
1)
|
floating
rate:
|
The
interest rate shall be of annual rate: 6.975%,
25%
floating upward (floating upward/downward) on the benchmark rate. The benchmark
rate of a loan less than five years (included) shall be subject to the benchmark
rate of RMB loan publicized by the People’s Bank of China in corresponding
period; the benchmark rate of a loan more than five years shall be additional
___% based on benchmark rate of RMB loan publicized by the People’s Bank of
China in corresponding period.
28
The
interest rate shall be adjusted in a period of
three
months.
In case of the benchmark rate of RMB loan adjusted by the People’s Bank of
China, the Lender shall, as of the corresponding lending date of the first
month
in the following period after adjustment, fix new lending rate according to
the
corresponding adjusted benchmark and the said calculation method, and the Lender
will not be notified otherwise. If the adjustment date is the same with the
lending date or the corresponding date of the first month in such period, new
lending rate shall be fixed as of the adjustment date. In case of absence of
corresponding date, the last day of the month shall apply.
|
2)
|
Fixed
rate:
|
The
interest rate shall be of annual rate:____%, ___% floating upward (floating
upward/downward) on the benchmark rate, up to the maturity date. The benchmark
rate of a loan less than five years (included) shall be subject to the benchmark
rate of RMB loan publicized by the People’s Bank of China in corresponding
period; the benchmark rate of a loan more than five years shall be additional
___% based on benchmark rate of RMB loan publicized by the People’s Bank of
China in corresponding period.
In
case
of foreign exchange loan, the interest rate shall be fixed according to the
following __ method:
|
a.
|
the
rate comprised of ____ month(s) of _____ (LIBOR/HIBOR) and ____%
of
interest margin, floating _____ month(s). LIBOR/HIBOR is the London/Hong
Kong inter-bank offered rate in corresponding period publicized by
Reuters
two working dates prior to the interest day.
|
|
b.
|
Annual
rate: __%, up to the maturity date;
|
|
c.
|
Others:
________________________________________________________.
|
|
1-8
|
Interest
Settlement
|
The
interest of the Loan hereunder shall be settled on the quarterly
(monthly/quarterly) basis on the 20th
day of
the last month in each quarter
(quarter/month). The Borrower shall pay off the interests on the interest
settlement day. If the last maturity day of the principal hereof is not the
interest settlement day, the outstanding interests shall be settled together
with the principal (daily rate = monthly rate/30).
Article
2
The Lender shall have the right not to grant the Loan hereunder until all of
the
following conditions are completed:
2-1
The
Borrower shall open a
basic
account
at the
Lender;
2-2
The
Borrower shall, at the requirements of the Lender, provide relevant documents
and materials and complete corresponding procedures;
2-3
In
case of foreign exchange loan hereunder, the Borrower shall go through all
approvals, registrations and other legal procedures relating to the Loan
according to pertinent provisions;
2-4
In
case of mortgage, pledge or guarantee concerning the Loan hereunder, relevant
registration and/or insurance and other legal procedures have been completed
according to the requirements of the Lender, and such guarantee and insurance
shall be valid continually. In case of guarantee concerning the Loan hereunder,
the guarantee contract has been concluded and is in force.
29
Article
3
Rights and Obligations of the Lender
3-1
The
Lender shall have the right to know about such situations of the Borrower as
production, operation, finance, storage and use of the Loan, and to require
the
Borrower to submit financial statements and other documents, materials and
information on schedule.
3-2
The
Lender can stop granting the Loan or take back the Loan in advance if the Lender
conducts behaviors or has circumstances which are sufficient to affect the
safety of the Loan, including, but not limited to, those as describe in
Paragraph 7, 8 and 10 of Article 4 hereof.
3-3
The
Lender can make direct direction from any account of the Borrower, if the Lender
takes back according to the Contract or takes back in advance the principal,
interests, penalty interests, compound interests and other sum payable by the
Borrower.
3-4
If
the sum repaid by the Borrower is insufficient to discharge the sum payable
hereunder, the Lender may choose to use such sum to repay the principal,
interests, penalty interests, compound interests or other charges.
3-5
The
Lender may disclose in public the breaches of the Borrower, if the Borrower
fails to perform the repayment obligation.
3-6
The
Lender shall grant the Loan to the Borrower in full amount on schedule according
to the Contract.
Article
4
Rights and Obligations of the Borrower
4-1
The
Borrower shall have the right to obtain and use the Loan according to the
Contract.
4-2
The
Borrower shall go through procedures for settlement and deposit relating to
the
Loan hereunder through the accounts as mentioned in Article 2 hereof.
4-3
In
case of foreign exchange loan hereunder, the Borrower shall go through all
approvals, registrations and other legal procedures relating to the Loan
according to pertinent provisions.
4-4
The
Borrower shall repay the principal and interests on schedule. In case of
extension required, the Borrower shall submit a written application to the
Lender 15 days in advance of the maturity date; an extension agreement may
be
made with approval of the Lender.
4-5
The
Borrower shall use the Loan subject to the purpose stipulated herein, and may
not seize or misappropriate the Loan.
4-6
The
Borrower shall provide true, complete and valid financial statements or other
relevant materials and information to the Lender on a monthly basis. The
Borrower shall cooperate actively with the Lender in inspecting its production,
operation, finance and use of the Loan hereunder.
4-7
The
Borrower shall send a prior notice to the Lender in writing if the Borrower
conducts contract, lease, joint stock reconstruction, joint management, merger,
acquirement, division, joint venture, asset transfer, application for business
stoppage and rectification and other behavior which is sufficient to change
the
relationship of creditor's rights and debt hereunder or affect realization
of
the Lender’s creditor’s right. With the consent of the Lender, the Borrower
shall ascertain the repayment liability or repay the debt hereunder in advance;
otherwise, the Borrower may not conduct any behaviors hereinbefore.
4-8
The
Borrower shall notify the Lender in writing immediately and carry through the
preservation measures to creditor’s rights which are accepted by the Lender, if,
except for those as mentioned in previous clause, the Borrower has any other
circumstances which will have material adverse affections on its repayment
obligation hereunder, such as production stoppage, business closure,
registration cancellation, revocation of business license, or violation of
laws
or serious litigation or arbitration involved by the legal representative or
main persons in charge, or severe difficulties in production and operation,
deterioration of finance, etc.
30
4-9
The
Borrower shall send a written notice to the Lender in advance and obtain the
consent of the Lender if the Borrower provides guarantee in favor of other’s
debt or mortgages or pawns its main properties to a third party, which may
affect its capability of repayment of the Loan hereunder.
4-10
The
Borrower, as well as its investors, may not withdraw funds or hide properties
to
escape repayment debts to the Lender.
4-11
The
Borrower shall in time notify the Lender in writing of changed name, legal
representative, domicile, business scope and others of the Borrower, if
any.
4-12
The
Borrower shall provide in time other guarantees accepted by the Lender if the
guarantor as to the Loan hereunder stops production, closes business, cancels
registration, is revoked business license, is insolvent and is in deficit,
or
loses partly or wholly the guarantee capability relating to the Loan hereunder,
or the value guaranty, pawn or pledge as to the Loan hereunder reduces.
4-13
The
Borrower shall be responsible for costs and expenses relating to the Contract
and the guarantee hereunder, such as attorney fee, insurance premium, freight,
evaluation fee, registration cost, storage fee, appraisal fee and notarization
fee.
Article
5
Early Repayment
In
case
of early repayment, the Borrower shall obtain the consent of the Lender. If
the
Lender agrees the Borrower to repay the Loan in advance, the interests of the
sum repaid early shall be calculated according to the following second
method:
|
1)
|
to
calculate the interests according to the loan term and the interest
rate
stipulated in the Contract;
|
|
2)
|
to
calculate the interests at the ___% floating upward the interest
rate
stipulated in the Contract according to the actual term of loan.
|
Article
6
Liability for Breach of Agreement
6-1
In
case of losses to the Borrower due to failure of the Lender to grant the Loan
to
the Borrower in full amount according to the Contract, the Lender shall pay
the
penalty to the Borrower according to the overdue amount and delayed days.
Calculation of the penalty shall be the same as that of interests of overdue
lending in corresponding period.
6-2
Where
the Borrower fails to return the principal and interests on schedule stipulated
in the Contract, the Lender shall calculate and charge penalty interests of
such
overdue repayment sum, at thirty
per cent
floating upward the interest rate stipulated in the Contract as of the overdue
repayment day, until corresponding principal and interests have been paid off.
If, during overdue repayment, in case of lending in RMB, the People’s Bank of
China revises upward the benchmark of corresponding RMB loan, the penalty
interest rate shall be revised correspondingly as of such revision day.
6-3
Where
the Borrower fails to use the Loan according to the Contract, the Lender shall
calculate and charge penalty interests of such sum in breach, at fifty
per cent
floating upward the interest rate stipulated in the Contract as of the breach
day, until corresponding principal and interests have been paid off. If, during
overdue repayment, in case of lending in RMB, the People’s Bank of China revises
upward the benchmark of corresponding RMB loan, the penalty interest rate shall
be revised correspondingly as of such revision day.
6-4
The
Lender shall calculate and charge compound interests according to the
stipulations of the People’s Bank of China against the outstanding interests
payable.
6-5
Where
the Borrower is in breach of the obligations hereunder, the Lender shall have
the right to require the Borrower to correct such breach within a given period,
to stop granting the Loan or take back the Loan granted in advance; furthermore,
the Lender shall also have the right to declare the lending under other loan
contracts by and between the Lender and the Borrower is mature immediately
or to
take other asset property measures.
6-6
Where
any of the guarantors of the Loan hereunder is in breach of the obligations
stipulated in the guarantee contract, the Lender shall have the right to take
measures against the Borrower, including stopping granting the Loan, taking
back
the Loan granted in advance or other asset property measures.
6-7
Where
the Lender has to realize its creditor’s rights by means of litigation or
arbitration due to breach of the Borrower, the Borrower shall be responsible
for
the attorney fee, traveling fee and other costs for realization incurred by
the
Lender thus.
Article
7
Guarantee of the Loan
The
guarantee of the Loan hereunder shall be mortgage.
The
guarantee contract shall be concluded otherwise. In case of maximum deposit
mortgage, the number of the guarantee contract is _______________.
Article
8
Settlement of Disputes
Any
dispute arising from performance of the Contract may be settled through
negotiation, or by means of following ____:
|
1)
|
litigation.
The dispute shall be governed by the People’s Court at the place where the
Lender is located;
|
|
2)
|
arbitration.
The dispute shall be submitted to ____________________ (full name
of the
arbitration institution) for arbitration according to its rules.
|
The
Contract shall be performed continually during the period of litigation or
arbitration, except for those in dispute.
Article
9
Miscellaneous
31
Article
10 Effectiveness
The
Contract shall be in force after signed or sealed by the Parties hereto.
Article
11 Copies
The
Contract shall be in three copies with equal force, one of which shall be kept
by either party hereto and one submitted to the Administration for Industry
and
Commerce.
Article
12 Notice
The
Lender has reminded the Borrower to understand comprehensively and exactly
the
terms and conditions of the Contract and explained for corresponding terms
and
conditions hereof at the requirements of the Borrower. The Parties to the
Contract have consistent understanding of the meanings of the Contract.
The
Borrower (signature and seal): Tianjin
Daqiuzhuang Metal Sheet Co., Ltd.
Legal
representative or agent: Xx
Xxxxxxxx
The
Lender (signature and seal): Agricultural
Bank of China Tianjin Jinghai Sub-Branch
Principal
or agent: Xxx
Xxxxxxx
Date
of
conclusion: November 3, 2005
Place
of
conclusion: Agricultural Bank of China Tianjin Jinghai Sub-Branch
32
Mortgage
Contract
Agricultural
Bank of China
33
Mortgage
Contract
No.
(JJH)
NYDZ (0000) 00000000000000000
Mortgagee
(full name): Agricultural Bank of China Tianjin Jinghai Sub-Branch
Mortgager
(full name): 1) Xxxxxxx Xxxxxxxxxxx Metal Sheet Co., Ltd.
|
2)
_____________________________________
|
|
3)
______________________________________
|
The
Mortgager is willing to provide mortgage to the debt between Xxxxxxx
Xxxxxxxxxxx Metal Sheet Co., Ltd. (hereinafter
referred to as the Debtor) and the Mortgagee under the Loan
Contract
(hereinafter referred to as the Master Contract), No. JJHNYJZ
(0000) 00000000000000000,
to
ensure that the Master Contract by and between the Debtor and the Mortgagee
can
be fulfilled in deed. The Contract is entered into through negotiation in
accordance with pertinent laws and regulations of the State.
Article
1
Kind of Primary Creditor’s Rights Guaranteed and Sum of the
Principal
The
primary creditor’s right guaranteed is of short-term
working capital loan,
covering twenty
million yuan
of the
principal.
Article
2
Scope of Mortgage
The
scope
of mortgage includes the principal, interests, penalty interests, compound
interests, penalty and damages of the debt under the Master Contract, and
litigation cost, attorney fee, guaranty disposal fee, transfer fee and other
costs incurred by the Mortgagee for realization of its creditor’s right.
Article
3
Guaranty
3-1
The
Mortgager agrees to provide the following properties:
machine and equipments
(see the
Guaranty List, No. 12902200500016328) as the guaranty hereunder. The said
Guaranty List shall be part of the Contract.
3-2
The
said guaranties shall be evaluated temporarily as (say) twenty-nine
million three hundred and seventy thousand eight hundred and fifty yuan
only.
The
final value hereof shall be subject to the net income from actual disposal
of
the guaranties for realization of the mortgage right.
34
Article
4
Mortgager’s Undertakings
4-1
The
Mortgager owns the title or disposal right of the guaranties sufficiently and
beyond dispute.
4-2
The
guaranties may be circulated or transferred according to laws.
4-3
The
guaranties have not been sealed up, detained or remortgaged.
4-4
The
Mortgager does not hide those circumstances including default of taxes, project
price and other sums under the guaranties, lease of the guaranties and others.
4-5
The
Mortgager has obtained the consent of the co-owners of the guaranties concerning
mortgage hereunder.
4-6
There
are not other facts which may affect the Mortgagee to realize its mortgage
right.
Article
5
Effectiveness of Mortgage Right
The
effectiveness of the mortgage right can cover appurtenant objects, secondary
right, right of subrogation, combination substances, compositions, processed
matters and accrued interests of the guaranties.
Article
6
Holding and Management of Guaranties
6-1
The
guaranties hereunder shall be held by the Mortgager, who shall have the
obligation to manage properly the guaranties. The Mortgagee shall have the
right
to supervise and inspect management of the guaranties.
6-2
Within the term of the Contract, the Mortgager may not present, transfer, sell,
lease, remortgage the guaranties or dispose in other ways without written
consent of the Mortgagee. Earnings from transfer, lease and sale of the
guaranties with written consent of the Mortgagee shall be applied to repayment
of the debt under the Master Contract guaranteed in advance, or to be drawn
by
the third party agreed by the Mortgager and the Mortgagee.
6-3
If,
within the term of the Contract, the guaranties are ruined, damaged or
expropriated, the Mortgager shall take effective measures in time to prevent
expansion of the losses and notify promptly the Mortgagee in writing. Insurance
premiums, damages and compensations gained by the Mortgager thus shall be first
used to repay the debt under the Master Contract.
6-4
If,
within the term of the Contract, the value of the guaranties is reduced, the
Mortgagee shall have the right to require the Mortgager to restore the value
of
the guaranties or provide other guarantees accepted by the Mortgagee. Where
the
Mortgager refuses to restore the value or provide other guarantees, the
Mortgagee shall have the right to declare that the debt under the Master
Contract is mature in advance. In such case, the Mortgagee may require the
Mortgager to repay the debt, or exercise the right of mortgage in advance.
Article
7
Insurance of Guaranties
7-1
The
Mortgager shall at the requirements of the Mortgagee pay relevant insurances
concerning the guaranties. The mortgagee shall be the first beneficiary of
such
insurances.
7-2
The
mortgager shall deliver the original of the insurance policies as to the
guaranties to the Mortgagee.
7-3
Within the term of the Contract, the Mortgager may not suspend or withdraw
the
insurances with any reason. In case of suspension, the Mortgagee shall have
the
right to go through insurance procedures on behalf at all cost of the Mortgager.
The Mortgagee shall have the right to deduct the said costs directly from any
account of the Mortgager.
35
7-4
In
case of accidents covered by insurance, the insurance compensations shall be
first used to repay the debt under the Master Contract and relevant expenses.
Article
8
Registration of Mortgage
The
Mortgager shall within 5 days as of the date of the Contract go through the
procedures for registration of mortgage with relevant registration authority
and
submit the Mortgagee the originals of the certificate of supplementary rights
and the mortgage registration certification of the guaranties and other
supplementary rights certificates.
Article
9
Realization of the Right of Mortgage
9-1
If
the Mortgagee has not be repaid after expiration of performance period of the
debt under the Master Contract, the Mortgagee shall have the right to convert
the guaranties into money or repay the debt with earnings from auction or sale
of the guaranties. The said “expiration of period” includes the circumstance
that the Mortgagee declares that the debt under the Master Contract is mature
in
advance in according to the state laws and regulations or the stipulations
of
the Master Contract.
9-2
In
case of more than two mortgagers hereunder, the Mortgagee shall have the right
to dispose the guaranties of any or all mortgagers when exercising the right
of
mortgage.
Article
10 Liability for Breach of Agreement
10-1
After effectiveness of the Contract, both the Mortgagee and the Mortgager shall
perform their obligations hereunder. Either party that fails to do so shall
be
liable for corresponding liabilities for breach of agreement and compensating
the other for losses therefrom.
10-2
The
Mortgager shall compensate the Mortgagee for all losses caused by any of the
following circumstances:
1)
the
Mortgager conceals facts that the guaranties have co-owners or are in dispute,
sealed up, controlled, detained, remortgaged, leased or in default in taxes
or
project price, etc.;
2)
the
Mortgager disposes the guaranties without written consent of the Mortgagee;
or
3)
the
Mortgager conducts other behaviors which violate the stipulations herein or
affect the Mortgagee to realize the right of mortgage.
Article
11 Expense Sharing
The
Mortgager shall be responsible for all costs and expenses incurred from
registration, evaluation, insurance, appraisal, notarization or drawing of
the
guaranties hereunder.
Article
12 Settlement of Disputes
Any
dispute arising from performance of the Contract may be settled through
negotiation, or by the following first
means:
36
|
5)
|
litigation.
The dispute shall be governed by the People’s Court at the place where the
Mortgagee is located;
|
|
6)
|
arbitration.
The dispute shall be submitted to ____________________ (full name
of the
arbitration institution) for arbitration according to its rules.
|
The
Contract shall be performed continually during the period of litigation or
arbitration, except for those in dispute.
Article
13 Miscellaneous
13-1
The
Mortgager has received and read the Master Contract guaranteed.
Article
14 Effectiveness
The
Contract shall be in force after signed or sealed by the Parties hereto. In
case
of mortgage registration required by laws, the Contract shall become effective
as of the date of registration.
Article
15 The Contract shall be in three copies with equal force, one of which shall
be
kept by either party hereto and one submitted to the Administration for Industry
and Commerce.
Article
16 Notice
The
Mortgagee has reminded the Mortgager to understand comprehensively and exactly
the terms and conditions of the Contract and explained for corresponding terms
and conditions hereof at the requirements of the Mortgager. The Parties to
the
Contract have consistent understanding of the meanings of the Contract.
The
Mortgagee (signature and seal): Agricultural
Bank of China Tianjin Jinghai Sub-Branch
Principal
or agent: Xxx
Xxxxxxx
The
Mortgager (signature and seal):
Tianjin
Daqiuzhuang Metal Sheet Co., Ltd.
Legal
representative or agent: Xx
Xxxxxxxx
The
Mortgager (signature and seal):
Legal
representative or agent:
The
Mortgager (signature and seal):
Legal
representative or agent:
37
Date
of
conclusion: November 3, 2005
Place
of
conclusion: Agricultural Bank of China Tianjin Jinghai Sub-Branch
38
Guarantee
Contract
Agricultural
Bank of China
39
Guarantee
Contract
No.
(JJH)NYBZ( ) 12901200500001286
Creditor
(full name): Agricultural Bank of China Tianjin Jinghai Sub-Branch
Guarantor
(full name): 1) Xxxxxxx
Xxxxxxxx Profiled Bar Co., Ltd.
|
2) ________________________________
|
|
3)_________________________________
|
The
Guarantor is willing to guarantee the debt between Tianjin
Daqiuzhuang Metal Sheet Co., Ltd. (hereinafter
referred to as the Debtor) and the Creditor under the Loan
Contract
(hereinafter referred to as the Master Contract), No. JJHNYJZ
(0000) 00000000000000000,
to
ensure that the Master Contract by and between the Debtor and the Creditor
can
be fulfilled in deed. The Contract is entered into through negotiation in
accordance with pertinent laws and regulations of the State.
Article
1
Kind of Primary Creditor’s Rights Guaranteed and Sum of the
Principal
The
primary creditor’s right guaranteed is of short-term
working capital loan,
covering twenty
million yuan
of the
principal.
Article
2
Scope of Guarantee
The
scope
of guarantee includes the principal, interests, penalty interests, compound
interests, penalty and damages of the debt under the Master Contract, and
litigation cost, attorney fee, guaranty disposal fee, transfer fee and other
costs incurred by the Creditor for realization of its creditor’s right.
Article
3
Mode of Guarantee
The
guarantee mode hereunder shall be of joint and several liability. In case of
several guarantors hereunder, each guarantor shall assume the joint and several
liability to the Creditor.
Article
4
Term of Guarantee
4-1
The
guarantee term of the Guarantor shall be two years as of the date when the
period of debt performance of the Debtor expires according to the stipulations
of the Master Contract.
4-2
The
guarantee term under the Banker’s Acceptance Bill, issue of bond exemption and
guarantee letter shall be two years as of the date when the Creditor pays the
sum in advance.
4-3
The
guarantee term under commercial draft discount shall be two years as of the
maturity date of the discount note.
4-4
Where
the Creditor and the Debtor negotiate an extension agreement concerning the
term
of debt performance under the Master Contract, the Guarantor shall continue
to
assume the guarantee liability. The guarantee term shall be two years as of
the
date when the period of debt performance agreed in the extension agreement
expires.
40
4-5
Where
the Creditor declares that the debt under the Master Contract is mature in
advance due to occurrence circumstances stipulated in laws, regulations or
the
Master Contract, the guarantee term shall be two years as of the prior maturity
date of the debt under the Master Contract, which is determined by the Creditor.
Article
5
Guarantor’s Undertakings
5-1
The
Guarantor shall provide true, complete and effective financial statements and
other relevant materials and information.
5-2
The
Guarantor will be willing to fulfill its liability of guarantee if the Debtor
fails to discharge the debt according to the Master Contract.
5-3
The
Creditor shall have the right to deduct corresponding sum from any account
of
the Guarantor if the Guarantor fails to fulfill its guarantee liability
according to the Contract.
5-4
In
case of any of the following circumstances, the Guarantor shall within 5 days
thereafter notify the Creditor in writing:
1)
the
Guarantor changes administrative relationship or senior management, amends
its
articles of association and adjusts its organization structure;
2)
the
Guarantor stops production, closes business, cancels registration or is revoked
business license;
3)
the
Guarantor’s finance deteriorates, or production and operation are in severe
difficulty or the Guarantor is involved in significant litigation or
arbitration;
4)
the
Guarantor changes name, domicile, legal representative, contact method and
so
on; or
5)
the
Guarantor has other circumstances which will not help the Creditor realize
its
creditor’s right.
5-5
The
Guarantor shall notify the Creditor in writing 15 days in advance and obtain
written consent of the Creditor if the Guarantor intends to conduct the
following behaviors:
1)
the
Guarantor changes capital structure or operation system, including, but not
limited to, contract, lease, joint stock reconstruction, joint management,
merger, acquirement, division, joint venture, asset transfer and application
for
business stoppage and rectification, dissolution or bankruptcy;
2)
the
Guarantor provides guarantee to the debt of a third person or mortgage, pawn
or
guarantee its main assets for debt of it or a third person, which may affect
it
performance of the guarantee liability hereunder.
5-6
Where
the Debtor guarantees with substantial objects, the Guarantor will perform
the
guarantee liability as to all debts guaranteed, prior to guarantee of
substantial objects.
Article
6
Liability for Breach of Agreement
After
effectiveness of the Contract, both the Creditor and the Guarantor shall perform
their obligations hereunder. Either party that fails to do so shall be liable
for corresponding liabilities for breach of agreement and compensating the
other
for losses therefrom.
41
Article
7
Settlement of Disputes
Any
dispute arising from performance of the Contract may be settled through
negotiation, or by the following first
means:
|
7)
|
litigation.
The dispute shall be governed by the People’s Court at the place where the
Creditor is located;
|
|
8)
|
arbitration.
The dispute shall be submitted to ____________________ (full name
of the
arbitration institution) for arbitration according to its rules.
|
The
Contract shall be performed continually during the period of litigation or
arbitration, except for those in dispute.
Article
8
Miscellaneous
8-1
The
Guarantor has received and read the Master Contract guaranteed.
Article
9
Effectiveness
The
Contract shall be in force after signed or sealed by the Parties hereto.
Article
10 The Contract shall be in two copies with equal force, one of which shall
be
kept by either party hereto.
Article
11 Notice
The
Creditor has reminded the Guarantor to understand comprehensively and exactly
the terms and conditions of the Contract and explained for corresponding terms
and conditions hereof at the requirements of the Guarantor. The Parties to
the
Contract have consistent understanding of the meanings of the Contract.
The
Creditor (signature and seal): Agricultural
Bank of China Tianjin Jinghai Sub-Branch
Principal
or agent: Xxx
Xxxxxxx
The
Guarantor (signature and seal):
Tianjin
Baorunda Profiled Bar Co., Ltd.
Legal
representative or agent: Xx
Xxxxxxxx
The
Guarantor (signature and seal):
Legal
representative or agent:
42
The
Guarantor (signature and seal):
Legal
representative or agent:
Date
of
conclusion: November 3, 2005
Place
of
conclusion: Agricultural Bank of China Tianjin Jinghai Sub-Branch
43
Loan
Contract
Agricultural
Bank of China
44
Loan
Contract
No.
(JJH)NYJZ(___) 12101200500006418
Borrower
(full name): Xxxxxxx Xxxxxxxxxxx Metal Sheet Co., Ltd.
Xxxxxx
(full name): Agricultural Bank of China Tianjin Jinghai Sub-Branch
The
Contract is entered into through negotiation in accordance with pertinent laws
and regulations.
Article
1
Loan
1-1
Kind:
short-term working capital loan
1-2
Purpose: refinancing
1-3
Currency and sum (say): fourteen million seven hundred thousand yuan only
1-4
Loan
term:
1)
the
term of this Loan shall be as follows:
|
Lending
|
Maturity
|
||
|
Date
|
Sum
|
Date
|
Sum
|
|
October
18, 2005
|
RMB
14,700,000
|
October
18, 2006
|
RMB
14,700,000
|
(in
case
of insufficiency, additional table will be available and shall be part of the
Contract)
2)
In
case of inconsistency of the sum and date as to lending and maturity as
described herein and those in lending vouchers, the latter shall prevail. The
lending vouchers shall be part of the Contract and have equal legal force with
the Contract.
3)
In
case of foreign exchange loan hereunder, the Borrower shall return the principal
and interests in the original currency.
|
1-5
|
Interest
rate
|
The
interest rate of the Loan in RMB shall be fixed according to the following
first
method:
|
1)
|
floating
rate:
|
The
interest rate shall be of annual rate: 6.975%,
25%
floating upward (floating upward/downward) on the benchmark rate. The benchmark
rate of a loan less than five years (included) shall be subject to the benchmark
rate of RMB loan publicized by the People’s Bank of China in corresponding
period; the benchmark rate of a loan more than five years shall be additional
___% based on benchmark rate of RMB loan publicized by the People’s Bank of
China in corresponding period.
45
The
interest rate shall be adjusted in a period of
three
months.
In case of the benchmark rate of RMB loan adjusted by the People’s Bank of
China, the Lender shall, as of the corresponding lending date of the first
month
in the following period after adjustment, fix new lending rate according to
the
corresponding adjusted benchmark and the said calculation method, and the Lender
will not be notified otherwise. If the adjustment date is the same with the
lending date or the corresponding date of the first month in such period, new
lending rate shall be fixed as of the adjustment date. In case of absence of
corresponding date, the last day of the month shall apply.
|
2)
|
Fixed
rate:
|
The
interest rate shall be of annual rate:____%, ___% floating upward (floating
upward/downward) on the benchmark rate, up to the maturity date. The benchmark
rate of a loan less than five years (included) shall be subject to the benchmark
rate of RMB loan publicized by the People’s Bank of China in corresponding
period; the benchmark rate of a loan more than five years shall be additional
___% based on benchmark rate of RMB loan publicized by the People’s Bank of
China in corresponding period.
In
case
of foreign exchange loan, the interest rate shall be fixed according to the
following __ method:
|
a.
|
the
rate comprised of ____ month(s) of _____ (LIBOR/HIBOR) and ____%
of
interest margin, floating _____ month(s). LIBOR/HIBOR is the London/Hong
Kong inter-bank offered rate in corresponding period publicized by
Reuters
two working dates prior to the interest day.
|
|
b.
|
Annual
rate: __%, up to the maturity date;
|
|
c.
|
Others:
________________________________________________________.
|
|
1-6
|
Interest
Settlement
|
The
interest of the Loan hereunder shall be settled on the quarterly
(monthly/quarterly) basis on the 20th
day of
the last month in each quarter
(quarter/month). The Borrower shall pay off the interests on the interest
settlement day. If the last maturity day of the principal hereof is not the
interest settlement day, the outstanding interests shall be settled together
with the principal (daily rate = monthly rate/30).
Article
2
The Lender shall have the right not to grant the Loan hereunder until all of
the
following conditions are completed:
2-1
The
Borrower shall open a
basic
account
at the
Lender;
2-2
The
Borrower shall, at the requirements of the Lender, provide relevant documents
and materials and complete corresponding procedures;
2-3
In
case of foreign exchange loan hereunder, the Borrower shall go through all
approvals, registrations and other legal procedures relating to the Loan
according to pertinent provisions;
2-4
In
case of mortgage, pledge or guarantee concerning the Loan hereunder, relevant
registration and/or insurance and other legal procedures have been completed
according to the requirements of the Lender, and such guarantee and insurance
shall be valid continually. In case of assurance guarantee concerning the Loan
hereunder, the assurance contract has been concluded and is in force.
46
Article
3
Rights and Obligations of the Lender
3-1
The
Lender shall have the right to know about such situations of the Borrower as
production, operation, finance, storage and use of the Loan, and to require
the
Borrower to submit financial statements and other documents, materials and
information on schedule.
3-2
The
Lender can stop granting the Loan or take back the Loan in advance if the Lender
conducts behaviors or has circumstances which are sufficient to affect the
safety of the Loan, including, but not limited to, those as describe in
Paragraph 7, 8 and 10 of Article 4 hereof.
3-3
The
Lender can make direct direction from any account of the Borrower, if the Lender
takes back according to the Contract or takes back in advance the principal,
interests, penalty interests, compound interests and other sum payable by the
Borrower.
3-4
If
the sum repaid by the Borrower is insufficient to discharge the sum payable
hereunder, the Lender may choose to use such sum to repay the principal,
interests, penalty interests, compound interests or other charges.
3-5
The
Lender may disclose in public the breaches of the Borrower, if the Borrower
fails to perform the repayment obligation.
3-6
The
Lender shall grant the Loan to the Borrower in full amount on schedule according
to the Contract.
Article
4
Rights and Obligations of the Borrower
4-1
The
Borrower shall have the right to obtain and use the Loan according to the
Contract.
4-2
The
Borrower shall go through procedures for settlement and deposit relating to
the
Loan hereunder through the accounts as mentioned in Article 2 hereof.
4-3
In
case of foreign exchange loan hereunder, the Borrower shall go through all
approvals, registrations and other legal procedures relating to the Loan
according to pertinent provisions.
4-4
The
Borrower shall repay the principal and interests on schedule. In case of
extension required, the Borrower shall submit a written application to the
Lender 15 days in advance of the maturity date; an extension agreement may
be
made with approval of the Lender.
4-5
The
Borrower shall use the Loan subject to the purpose stipulated herein, and may
not seize or misappropriate the Loan.
4-6
The
Borrower shall provide true, complete and valid financial statements or other
relevant materials and information to the Lender on a monthly basis. The
Borrower shall cooperate actively with the Lender in inspecting its production,
operation, finance and use of the Loan hereunder.
4-7
The
Borrower shall send a prior notice to the Lender in writing if the Borrower
conducts contract, lease, joint stock reconstruction, joint management, merger,
acquirement, division, joint venture, asset transfer, application for business
stoppage and rectification and other behavior which is sufficient to change
the
relationship of creditor's rights and debt hereunder or affect realization
of
the Lender’s creditor’s right. With the consent of the Lender, the Borrower
shall ascertain the repayment liability or repay the debt hereunder in advance;
otherwise, the Borrower may not conduct any behaviors hereinbefore.
4-8
The
Borrower shall notify the Lender in writing immediately and carry through the
preservation measures to creditor’s rights which are accepted by the Lender, if,
except for those as mentioned in previous clause, the Borrower has any other
circumstances which will have material adverse affections on its repayment
obligation hereunder, such as production stoppage, business closure,
registration cancellation, revocation of business license, or violation of
laws
or serious litigation or arbitration involved by the legal representative or
main persons in charge, or severe difficulties in production and operation,
deterioration of finance, etc.
47
4-9
The
Borrower shall send a written notice to the Lender in advance and obtain the
consent of the Lender if the Borrower provides guarantee in favor of other’s
debt or mortgages or pawns its main properties to a third party, which may
affect its capability of repayment of the Loan hereunder.
4-10
The
Borrower, as well as its investors, may not withdraw funds or hide properties
to
escape repayment debts to the Lender.
4-11
The
Borrower shall in time notify the Lender in writing of changed name, legal
representative, domicile, business scope and others of the Borrower, if
any.
4-12
The
Borrower shall provide in time other guarantees accepted by the Lender if the
guarantor as to the Loan hereunder stops production, closes business, cancels
registration, is revoked business license, is insolvent and is in deficit,
or
loses partly or wholly the guarantee capability relating to the Loan hereunder,
or the value guaranty, pawn or pledge as to the Loan hereunder reduces.
4-13
The
Borrower shall be responsible for costs and expenses relating to the Contract
and the guarantee hereunder, such as attorney fee, insurance premium, freight,
evaluation fee, registration cost, storage fee, appraisal fee and notarization
fee.
Article
5
Early Repayment
In
case
of early repayment, the Borrower shall obtain the consent of the Lender. If
the
Lender agrees the Borrower to repay the Loan in advance, the interests of the
sum repaid early shall be calculated according to the following second
method:
|
1)
|
to
calculate the interests according to the loan term and the interest
rate
stipulated in the Contract;
|
|
2)
|
to
calculate the interests at the ___% floating upward the interest
rate
stipulated in the Contract according to the actual term of loan.
|
Article
6
Liability for Breach of Agreement
6-1
In
case of losses to the Borrower due to failure of the Lender to grant the Loan
to
the Borrower in full amount according to the Contract, the Lender shall pay
the
penalty to the Borrower according to the overdue amount and delayed days.
Calculation of the penalty shall be the same as that of interests of overdue
lending in corresponding period.
6-2
Where
the Borrower fails to return the principal and interests on schedule stipulated
in the Contract, the Lender shall calculate and charge penalty interests of
such
overdue repayment sum, at thirty
per cent
floating upward the interest rate stipulated in the Contract as of the overdue
repayment day, until corresponding principal and interests have been paid off.
If, during overdue repayment, in case of lending in RMB, the People’s Bank of
China revises upward the benchmark of corresponding RMB loan, the penalty
interest rate shall be revised correspondingly as of such revision day.
48
6-3
Where
the Borrower fails to use the Loan according to the Contract, the Lender shall
calculate and charge penalty interests of such sum in breach, at fifty
per cent
floating upward the interest rate stipulated in the Contract as of the breach
day, until corresponding principal and interests have been paid off. If, during
overdue repayment, in case of lending in RMB, the People’s Bank of China revises
upward the benchmark of corresponding RMB loan, the penalty interest rate shall
be revised correspondingly as of such revision day.
6-4
The
Lender shall calculate and charge compound interests according to the
stipulations of the People’s Bank of China against the outstanding interests
payable.
6-5
Where
the Borrower is in breach of the obligations hereunder, the Lender shall have
the right to require the Borrower to correct such breach within a given period,
to stop granting the Loan or take back the Loan granted in advance; furthermore,
the Lender shall also have the right to declare the lending under other loan
contracts by and between the Lender and the Borrower is mature immediately
or to
take other asset property measures.
6-6
Where
any of the guarantors of the Loan hereunder is in breach of the obligations
stipulated in the guarantee contract, the Lender shall have the right to take
measures against the Borrower, including stopping granting the Loan, taking
back
the Loan granted in advance or other asset property measures.
6-7
Where
the Lender has to realize its creditor’s rights by means of litigation or
arbitration due to breach of the Borrower, the Borrower shall be responsible
for
the attorney fee, traveling fee and other costs for realization incurred by
the
Lender thus.
Article
7
Guarantee of the Loan
The
guarantee of the Loan hereunder shall be mortgage.
The
guarantee contract shall be concluded otherwise. In case of maximum deposit
mortgage, the number of the guarantee contract is No. JJHNYGD
12106200500000372.
Article
8
Settlement of Disputes
Any
dispute arising from performance of the Contract may be settled through
negotiation, or by the following first means:
1)
litigation. The dispute shall be governed by the People’s Court at the place
where the Lender is located;
2)
arbitration. The dispute shall be submitted to ____________________ (full name
of the arbitration institution) for arbitration according to its rules.
The
Contract shall be performed continually during the period of litigation or
arbitration, except for those in dispute.
Article
9
Miscellaneous
49
Article
10 Effectiveness
The
Contract shall be in force after signed or sealed by the Parties hereto.
Article
11 Copies
The
Contract shall be in three copies with equal force, one of which shall be kept
by either party hereto and one submitted to the Land Administrative Bureau.
Article
12 Notice
The
Lender has reminded the Borrower to understand comprehensively and exactly
the
terms and conditions of the Contract and explained for corresponding terms
and
conditions hereof at the requirements of the Borrower. The Parties to the
Contract have consistent understanding of the meanings of the Contract.
The
Borrower (signature and seal): Tianjin
Daqiuzhuang Metal Sheet Co., Ltd.
Legal
representative or agent: Xx
Xxxxxxxx
The
Lender (signature and seal): Agricultural
Bank of China Tianjin Jinghai Sub-Branch
Principal
or agent: Xxx
Xxxxxxx
Date
of
conclusion: November 3, 2005
Place
of
conclusion: Agricultural Bank of China Tianjin Jinghai Sub-Branch
50
Maximum
Deposit Mortgage Contract
Agricultural
Bank of China
51
Maximum
Deposit Mortgage Contract
No.
(JJH)NYGDZ( ) 12906200500000372
Mortgagee
(full name): Agricultural Bank of China Tianjin Jinghai Sub-Branch
Debtor
(full name): Xxxxxxx Xxxxxxxxxxx Metal Sheet Co., Ltd.
Mortgager
(full name): 1) Xxxxxxx Xxxxxxxxxxx Metal Sheet Co., Ltd.
|
2)
_____________________________________
|
Whereas
the Mortgager and the Mortgagee have concluded a series of contract for
creditor’s right and debt (hereinafter referred to as the “Master Contract”)
according to the term and maximum amount stipulated in Article 1 hereof, the
Mortgager is willing to provide mortgage to the debt between the Debtor and
the
Mortgagee according to the said Master Contract. The Contract is entered into
through negotiation in accordance with pertinent laws and regulations of the
State.
Article
1
Primary Creditor’s Right Guaranteed and Maximum Sum
|
1-1
|
The
Mortgager is willing to guarantee maximum balance of the debt incurred
by
the Debtor for dealing with all agreed businesses at the Mortgagee
from
October
18, 2005
to
October
18, 2007,
converting into twenty
million seven hundred thousand yuan only.
Foreign exchange dealings, if any, shall be converted at the offer
price
on the date of dealing. Dealings in the said period will be mature
before
October
18, 2008.
The said dealings include as follows (subject to items marked “√”)
|
o
RMB/foreign exchange loan o L/C issuance finance o export packing finance √
banker’s/commercial acceptance bill discount □ import bill advance □ banker’s
letter of guarantee □ acceptance of xxxxxx’x xxxx □export bill purchase
Others:
_________________________________________________________
|
1-2
|
Within
the period and to the extent of maximum balance stipulated herein,
the
Debtor may apply for using the said bank credits circularly. The
commencement date, maturity date, interest rate and sum of dealings
shall
be subject to the loan voucher of the Master Contract or relevant
creditor’s right documents.
|
|
1-3
|
Within
the period and to the extent of maximum balance stipulated herein,
the
Mortgagee needs not to go through guarantee procedures case by case
when
granting the loan stipulated herein and providing other bank credits.
|
|
1-4
|
There
is no limitation on currency of dealings incurred during the period
and
maximum balance stipulated herein. The Mortgager shall be responsible
for
guarantee of the debt in original currency.
|
52
Article
2
Scope of Mortgage
The
scope
of mortgage includes the principal, interests, penalty interests, compound
interests, penalty and damages of the debt under the Master Contract, and
litigation cost, attorney fee, guaranty disposal fee, transfer fee and other
costs incurred by the Mortgagee for realization of its creditor’s right.
The
Mortgager is willing to guarantee the sum which actually exceeds the remaining
of maximum sum due to fluctuation of exchange change.
Article
3
Guaranty
3-1
The
Mortgager agrees to provide the following properties:
the
land-use right and attachment buildings overground
(see the
Guaranty List, No. 12906200500000372) as the guaranty hereunder. The said
Guaranty List shall be part of the Contract.
3-2
The
said guaranties shall be evaluated temporarily as (say) thirty-two
million eight hundred and eighteen thousand eight hundred yuan
only.
The
final value hereof shall be subject to the net income from actual disposal
of
the guaranties for realization of the mortgage right.
Article
4
Mortgager’s Undertakings
4-1
The
Mortgager owns the title or disposal right of the guaranties sufficiently and
beyond dispute.
4-2
The
guaranties may be circulated or transferred according to laws.
4-3
The
guaranties have not been sealed up, detained or remortgaged.
4-4
The
Mortgager does not hide those circumstances including default of taxes, project
price and other sums under the guaranties, lease of the guaranties and others.
4-5
The
Mortgager has obtained the consent of the co-owners of the guaranties concerning
mortgage hereunder.
4-6
There
are not other facts which may affect the Mortgagee to realize its mortgage
right.
Article
5
Effectiveness of Mortgage Right
The
effectiveness of the mortgage right can cover appurtenant objects, secondary
right, right of subrogation, combination substances, compositions, processed
matters and accrued interests of the guaranties.
Article
6
Holding and Management of Guaranties
6-1
The
guaranties hereunder shall be held by the Mortgager, who shall have the
obligation to manage properly the guaranties. The Mortgagee shall have the
right
to supervise and inspect management of the guaranties.
6-2
Within the term of the Contract, the Mortgager may not present, transfer, sell,
lease, remortgage the guaranties or dispose in other ways without written
consent of the Mortgagee. Earnings from transfer, lease and sale of the
guaranties with written consent of the Mortgagee shall be applied to repayment
of the debt under the Master Contract guaranteed in advance, or to be drawn
by
the third party agreed by the Mortgager and the Mortgagee.
53
6-3
If,
within the term of the Contract, the guaranties are ruined, damaged or
expropriated, the Mortgager shall take effective measures in time to prevent
expansion of the losses and notify promptly the Mortgagee in writing. Insurance
premiums, damages and compensations gained by the Mortgager thus shall be first
used to repay the debt under the Master Contract.
6-4
If,
within the term of the Contract, the value of the guaranties is reduced, the
Mortgagee shall have the right to require the Mortgager to restore the value
of
the guaranties or provide other guarantees accepted by the Mortgagee. Where
the
Mortgager refuses to restore the value or provide other guarantees, the
Mortgagee shall have the right to declare that the debt under the Master
Contract is mature in advance. In such case, the Mortgagee may require the
Mortgager to repay the debt, or exercise the right of mortgage in advance.
Article
7
Insurance of Guaranties
7-1
The
Mortgager shall at the requirements of the Mortgagee pay relevant insurances
concerning the guaranties. The mortgagee shall be the first beneficiary of
such
insurances.
7-2
The
mortgager shall deliver the original of the insurance policies as to the
guaranties to the Mortgagee.
7-3
Within the term of the Contract, the Mortgager may not suspend or withdraw
the
insurances with any reason. In case of suspension, the Mortgagee shall have
the
right to go through insurance procedures on behalf at all cost of the Mortgager.
The Mortgagee shall have the right to deduct the said costs directly from any
account of the Mortgager.
7-4
In
case of accidents covered by insurance, the insurance compensations shall be
first used to repay the debt under the Master Contract and relevant expenses.
Article
8
Registration of Mortgage
The
Mortgager shall within 5 days as of the date of the Contract go through the
procedures for registration of mortgage with relevant registration authority
and
submit the Mortgagee the originals of the certificate of supplementary rights
and the mortgage registration certification of the guaranties and other
supplementary rights certificates.
Article
9
Realization of the Right of Mortgage
9-1
The
Mortgagee shall have the right to declare that the debt guaranteed herein is
mature in advance and to exercise the right to mortgage according to laws.
If
the
Mortgagee has not be repaid after expiration of performance period of the debt
under any Master Contract, the Mortgagee shall have the right to convert the
guaranties into money or repay the debt with earnings from auction or sale
of
the guaranties. The said “expiration of period” includes the circumstance that
the Mortgagee declares that the debt under the Master Contract is mature in
advance in according to the state laws and regulations or the stipulations
of
the Master Contract.
9-2
In
case of more than two mortgagers hereunder, the Mortgagee shall have the right
to dispose the guaranties of any or all mortgagers when exercising the right
of
mortgage.
54
Article
10 Liability for Breach of Agreement
10-1
After effectiveness of the Contract, both the Mortgagee and the Mortgager shall
perform their obligations hereunder. Either party that fails to do so shall
be
liable for corresponding liabilities for breach of agreement and compensating
the other for losses therefrom.
10-2
The
Mortgager shall compensate the Mortgagee for all losses caused by any of the
following circumstances:
1)
the
Mortgager conceals facts that the guaranties have co-owners or are in dispute,
sealed up, controlled, detained, remortgaged, leased or in default in taxes
or
project price, etc.;
2)
the
Mortgager disposes the guaranties without written consent of the Mortgagee;
or
3)
the
Mortgager conducts other behaviors which violate the stipulations herein or
affect the Mortgagee to realize the right of mortgage.
Article
11 Expense Sharing
The
Mortgager shall be responsible for all costs and expenses incurred from
registration, evaluation, insurance, appraisal, notarization or drawing of
the
guaranties hereunder.
Article
12 Settlement of Disputes
Any
dispute arising from performance of the Contract may be settled through
negotiation, or by the following first
means:
|
9)
|
litigation.
The dispute shall be governed by the People’s Court at the place where the
Mortgagee is located;
|
|
10)
|
arbitration.
The dispute shall be submitted to ____________________ (full name
of the
arbitration institution) for arbitration according to its rules.
|
The
Contract shall be performed continually during the period of litigation or
arbitration, except for those in dispute.
Article
13 Miscellaneous
13-1
The
Mortgager shall know about operation of the Debtor and occurrence and
performance of all dealings hereunder. The Master Contract, loan voucher or
relevant creditor’s right documents relating to all dealings hereunder will not
be sent to the Mortgager otherwise.
55
Article
14 Effectiveness
The
Contract shall be in force after signed or sealed by the Parties hereto. In
case
of mortgage registration required by laws, the Contract shall become effective
as of the date of registration.
Article
15 The Contract shall be in three
copies
with equal force, one of which shall be kept by either party hereto and one
submitted to Jinghai
Land Bureau.
Article
16 Notice
The
Mortgagee has reminded the Mortgager to understand comprehensively and exactly
the terms and conditions of the Contract and explained for corresponding terms
and conditions hereof at the requirements of the Mortgager. The Parties to
the
Contract have consistent understanding of the meanings of the Contract.
The
Mortgagee (signature and seal): Agricultural
Bank of China Tianjin Jinghai Sub-Branch
Principal
or agent: Xxx
Xxxxxxx
The
Debtor (signature and seal): Tianjin
Daqiuzhuang Metal Sheet Co., Ltd.
Legal
representative or agent: Xx
Xxxxxxxx
The
Mortgager (signature and seal):
Tianjin
Daqiuzhuang Metal Sheet Co., Ltd.
Legal
representative or agent:
The
Mortgager (signature and seal):
Legal
representative or agent:
Date
of
conclusion: October 18, 2005
Place
of
conclusion: Agricultural Bank of China Tianjin Jinghai Sub-Branch
56
Loan
Contract
Agricultural
Bank of China
57
Loan
Contract
No.
(JJH)NYJZ(___) 12101200500006410
Borrower
(full name): Xxxxxxx Xxxxxxxxxxx Metal Sheet Co., Ltd.
Xxxxxx
(full name): Agricultural Bank of China Tianjin Jinghai Sub-Branch
The
Contract is entered into through negotiation in accordance with pertinent laws
and regulations.
Article
1
Loan
1-1
Kind:
short-term working capital loan
1-2
Purpose: refinancing
1-3
Currency and sum (say): fifteen million yuan only
1-4
Loan
term:
1)
the
term of this Loan shall be as follows:
|
Lending
|
Maturity
|
||
|
Date
|
Sum
|
Date
|
Sum
|
|
October
17, 2005
|
RMB
15,000,000
|
October
17, 2005
|
RMB
15,000,000
|
(in
case
of insufficiency, additional table will be available and shall be part of the
Contract)
2)
In
case of inconsistency of the sum and date as to lending and maturity date as
described herein and those in lending vouchers, the latter shall prevail. The
lending vouchers shall be part of the Contract and have equal legal force with
the Contract.
3)
In
case of foreign exchange loan hereunder, the Borrower shall return the principal
and interests in the original currency.
|
1-5
|
Interest
rate
|
The
interest rate of the Loan in RMB shall be fixed according to the following
first
method:
|
1)
|
floating
rate:
|
The
interest rate shall be of annual rate: 6.975%,
25%
floating upward (floating upward/downward) on the benchmark rate. The benchmark
rate of a loan less than five years (included) shall be subject to the benchmark
rate of RMB loan publicized by the People’s Bank of China in corresponding
period; the benchmark rate of a loan more than five years shall be additional
___% based on benchmark rate of RMB loan publicized by the People’s Bank of
China in corresponding period.
58
The
interest rate shall be adjusted in a period of
three
months.
In case of the benchmark rate of RMB loan adjusted by the People’s Bank of
China, the Lender shall, as of the corresponding lending date of the first
month
in the following period after adjustment, fix new lending rate according to
the
corresponding adjusted benchmark and the said calculation method, and the Lender
will not be notified otherwise. If the adjustment date is the same with the
lending date or the corresponding date of the first month in such period, new
lending rate shall be fixed as of the adjustment date. In case of absence of
corresponding date, the last day of the month shall apply.
|
2)
|
Fixed
rate:
|
The
interest rate shall be of annual rate:____%, ___% floating upward (floating
upward/downward) on the benchmark rate, up to the maturity date. The benchmark
rate of a loan less than five years (included) shall be subject to the benchmark
rate of RMB loan publicized by the People’s Bank of China in corresponding
period; the benchmark rate of a loan more than five years shall be additional
___% based on benchmark rate of RMB loan publicized by the People’s Bank of
China in corresponding period.
In
case
of foreign exchange loan, the interest rate shall be fixed according to the
following __ method:
|
a)
|
the
rate comprised of ____ month(s) of _____ (LIBOR/HIBOR) and ____%
of
interest margin, floating _____ month(s). LIBOR/HIBOR is the London/Hong
Kong inter-bank offered rate in corresponding period publicized by
Reuters
two working dates prior to the interest day.
|
|
b)
|
Annual
rate: __%, up to the maturity date;
|
|
c)
|
Others:
________________________________________________________.
|
|
1-6
|
Interest
Settlement
|
The
interest of the Loan hereunder shall be settled on the quarterly
(monthly/quarterly) basis on the 20th
day of
the last month in each quarter
(quarter/month). The Borrower shall pay off the interests on the interest
settlement day. If the last maturity day of the principal hereof is not the
interest settlement day, the outstanding interests shall be settled together
with the principal (daily rate = monthly rate/30).
Article
2
The Lender shall have the right not to grant the Loan hereunder until all of
the
following conditions are completed:
2-1
The
Borrower shall open a
basic
account
at the
Lender;
2-2
The
Borrower shall, at the requirements of the Lender, provide relevant documents
and materials and complete corresponding procedures;
2-3
In
case of foreign exchange loan hereunder, the Borrower shall go through all
approvals, registrations and other legal procedures relating to the Loan
according to pertinent provisions;
2-4
In
case of mortgage, pledge or guarantee concerning the Loan hereunder, relevant
registration and/or insurance and other legal procedures have been completed
according to the requirements of the Lender, and such guarantee and insurance
shall be valid continually. In case of assurance guarantee concerning the Loan
hereunder, the assurance contract has been concluded and is in force.
59
Article
3
Rights and Obligations of the Lender
3-1
The
Lender shall have the right to know about such situations of the Borrower as
production, operation, finance, storage and use of the Loan, and to require
the
Borrower to submit financial statements and other documents, materials and
information on schedule.
3-2
The
Lender can stop granting the Loan or take back the Loan in advance if the Lender
conducts behaviors or has circumstances which are sufficient to affect the
safety of the Loan, including, but not limited to, those as describe in
Paragraph 7, 8 and 10 of Article 4 hereof.
3-3
The
Lender can make direct direction from any account of the Borrower, if the Lender
takes back according to the Contract or takes back in advance the principal,
interests, penalty interests, compound interests and other sum payable by the
Borrower.
3-4
If
the sum repaid by the Borrower is insufficient to discharge the sum payable
hereunder, the Lender may choose to use such sum to repay the principal,
interests, penalty interests, compound interests or other charges.
3-5
The
Lender may disclose in public the breaches of the Borrower, if the Borrower
fails to perform the repayment obligation.
3-6
The
Lender shall grant the Loan to the Borrower in full amount on schedule according
to the Contract.
Article
4
Rights and Obligations of the Borrower
4-1
The
Borrower shall have the right to obtain and use the Loan according to the
Contract.
4-2
The
Borrower shall go through procedures for settlement and deposit relating to
the
Loan hereunder through the accounts as mentioned in Article 2 hereof.
4-3
In
case of foreign exchange loan hereunder, the Borrower shall go through all
approvals, registrations and other legal procedures relating to the Loan
according to pertinent provisions.
4-4
The
Borrower shall repay the principal and interests on schedule. In case of
extension required, the Borrower shall submit a written application to the
Lender 15 days in advance of the maturity date; an extension agreement may
be
made with approval of the Lender.
4-5
The
Borrower shall use the Loan subject to the purpose stipulated herein, and may
not seize or misappropriate the Loan.
4-6
The
Borrower shall provide true, complete and valid financial statements or other
relevant materials and information to the Lender on a monthly basis. The
Borrower shall cooperate actively with the Lender in inspecting its production,
operation, finance and use of the Loan hereunder.
4-7
The
Borrower shall send a prior notice to the Lender in writing if the Borrower
conducts contract, lease, joint stock reconstruction, joint management, merger,
acquirement, division, joint venture, asset transfer, application for business
stoppage and rectification and other behavior which is sufficient to change
the
relationship of creditor's rights and debt hereunder or affect realization
of
the Lender’s creditor’s right. With the consent of the Lender, the Borrower
shall ascertain the repayment liability or repay the debt hereunder in advance;
otherwise, the Borrower may not conduct any behaviors hereinbefore.
4-8
The
Borrower shall notify the Lender in writing immediately and carry through the
preservation measures to creditor’s rights which are accepted by the Lender, if,
except for those as mentioned in previous clause, the Borrower has any other
circumstances which will have material adverse affections on its repayment
obligation hereunder, such as production stoppage, business closure,
registration cancellation, revocation of business license, or violation of
laws
or serious litigation or arbitration involved by the legal representative or
main persons in charge, or severe difficulties in production and operation,
deterioration of finance, etc.
60
4-9
The
Borrower shall send a written notice to the Lender in advance and obtain the
consent of the Lender if the Borrower provides guarantee in favor of other’s
debt or mortgages or pawns its main properties to a third party, which may
affect its capability of repayment of the Loan hereunder.
4-10
The
Borrower, as well as its investors, may not withdraw funds or hide properties
to
escape repayment debts to the Lender.
4-11
The
Borrower shall in time notify the Lender in writing of changed name, legal
representative, domicile, business scope and others of the Borrower, if
any.
4-12
The
Borrower shall provide in time other guarantees accepted by the Lender if the
guarantor as to the Loan hereunder stops production, closes business, cancels
registration, is revoked business license, is insolvent and is in deficit,
or
loses partly or wholly the guarantee capability relating to the Loan hereunder,
or the value guaranty, pawn or pledge as to the Loan hereunder reduces.
4-13
The
Borrower shall be responsible for costs and expenses relating to the Contract
and the guarantee hereunder, such as attorney fee, insurance premium, freight,
evaluation fee, registration cost, storage fee, appraisal fee and notarization
fee.
Article
5
Early Repayment
In
case
of early repayment, the Borrower shall obtain the consent of the Lender. If
the
Lender agrees the Borrower to repay the Loan in advance, the interests of the
sum repaid early shall be calculated according to the following second
method:
|
3)
|
to
calculate the interests according to the loan term and the interest
rate
stipulated in the Contract;
|
|
4)
|
to
calculate the interests at the ___% floating upward the interest
rate
stipulated in the Contract according to the actual term of loan.
|
Article
6
Liability for Breach of Agreement
6-1
In
case of losses to the Borrower due to failure of the Lender to grant the Loan
to
the Borrower in full amount according to the Contract, the Lender shall pay
the
penalty to the Borrower according to the overdue amount and delayed days.
Calculation of the penalty shall be the same as that of interests of overdue
lending in corresponding period.
6-2
Where
the Borrower fails to return the principal and interests on schedule stipulated
in the Contract, the Lender shall calculate and charge penalty interests of
such
overdue repayment sum, at thirty
per cent
floating upward the interest rate stipulated in the Contract as of the overdue
repayment day, until corresponding principal and interests have been paid off.
If, during overdue repayment, in case of lending in RMB, the People’s Bank of
China revises upward the benchmark of corresponding RMB loan, the penalty
interest rate shall be revised correspondingly as of such revision day.
61
6-3
Where
the Borrower fails to use the Loan according to the Contract, the Lender shall
calculate and charge penalty interests of such sum in breach, at fifty
per cent
floating upward the interest rate stipulated in the Contract as of the breach
day, until corresponding principal and interests have been paid off. If, during
overdue repayment, in case of lending in RMB, the People’s Bank of China revises
upward the benchmark of corresponding RMB loan, the penalty interest rate shall
be revised correspondingly as of such revision day.
6-4
The
Lender shall calculate and charge compound interests according to the
stipulations of the People’s Bank of China against the outstanding interests
payable.
6-5
Where
the Borrower is in breach of the obligations hereunder, the Lender shall have
the right to require the Borrower to correct such breach within a given period,
to stop granting the Loan or take back the Loan granted in advance; furthermore,
the Lender shall also have the right to declare the lending under other loan
contracts by and between the Lender and the Borrower is mature immediately
or to
take other asset property measures.
6-6
Where
any of the guarantors of the Loan hereunder is in breach of the obligations
stipulated in the guarantee contract, the Lender shall have the right to take
measures against the Borrower, including stopping granting the Loan, taking
back
the Loan granted in advance or other asset property measures.
6-7
Where
the Lender has to realize its creditor’s rights by means of litigation or
arbitration due to breach of the Borrower, the Borrower shall be responsible
for
the attorney fee, traveling fee and other costs for realization incurred by
the
Lender thus.
Article
7
Guarantee of the Loan
The
guarantee of the Loan hereunder shall be assurance.
The
guarantee contract shall be concluded otherwise. In case of maximum deposit
mortgage, the number of the guarantee contract is No. _____________________.
Article
8
Settlement of Disputes
Any
dispute arising from performance of the Contract may be settled through
negotiation, or by the following first means:
1)
litigation. The dispute shall be governed by the People’s Court at the place
where the Lender is located;
2)
arbitration. The dispute shall be submitted to ____________________ (full name
of the arbitration institution) for arbitration according to its rules.
The
Contract shall be performed continually during the period of litigation or
arbitration, except for those in dispute.
Article
9
Miscellaneous
62
Article
10 Effectiveness
The
Contract shall be in force after signed or sealed by the Parties hereto.
Article
11 Copies
The
Contract shall be in two copies with equal force, one of which shall be kept
by
either party hereto.
Article
12 Notice
The
Lender has reminded the Borrower to understand comprehensively and exactly
the
terms and conditions of the Contract and explained for corresponding terms
and
conditions hereof at the requirements of the Borrower. The Parties to the
Contract have consistent understanding of the meanings of the Contract.
The
Borrower (signature and seal): Tianjin
Daqiuzhuang Metal Sheet Co., Ltd.
Legal
representative or agent: Xx
Xxxxxxxx
The
Lender (signature and seal): Agricultural
Bank of China Tianjin Jinghai Sub-Branch
Principal
or agent: Xxx
Xxxxxxx
Date
of
conclusion: October 17, 2005
Place
of
conclusion: Agricultural Bank of China Tianjin Daqiuzhuang
Sub-Branch
63
Guarantee
Contract
Agricultural
Bank of China
64
Guarantee
Contract
No.
(JJH)NYBZ( ) 00000000000000000
Creditor
(full name): Agricultural Bank of China Tianjin Jinghai Sub-Branch
Guarantor
(full name): 1) Tianjin
Dazhan Industrial Co., Ltd.
2) ________________________________
3)_________________________________
The
Guarantor is willing to guarantee the debt between Tianjin
Daqiuzhuang Metal Sheet Co., Ltd. (hereinafter
referred to as the Debtor) and the Creditor under the Loan
Contract
(hereinafter referred to as the Master Contract), No. JJHNYJZ
(0000) 00000000000000000,
to
ensure that the Master Contract by and between the Debtor and the Creditor
can
be fulfilled in deed. The Contract is entered into through negotiation in
accordance with pertinent laws and regulations of the State.
Article
1
Kind of Primary Creditor’s Rights Guaranteed and Sum of the
Principal
The
primary creditor’s right guaranteed is of short-term
working capital loan,
covering fifteen
million yuan
of the
principal.
Article
2
Scope of Guarantee
The
scope
of guarantee includes the principal, interests, penalty interests, compound
interests, penalty and damages of the debt under the Master Contract, and
litigation cost, attorney fee, guaranty disposal fee, transfer fee and other
costs incurred by the Creditor for realization of its creditor’s right.
Article
3
Mode of Guarantee
The
guarantee mode hereunder shall be of joint and several liability. In case of
several guarantors hereunder, each guarantor shall assume the joint and several
liability to the Creditor.
Article
4
Term of Guarantee
4-1
The
guarantee term of the Guarantor shall be two years as of the date when the
period of debt performance of the Debtor expires according to the stipulations
of the Master Contract.
4-2
The
guarantee term under the Banker’s Acceptance Bill, L/C Issuance Finance and
guarantee letter shall be two years as of the date when the Creditor pays the
sum in advance.
4-3
The
guarantee term under commercial draft discount shall be two years as of the
maturity date of the discount note.
4-4
Where
the Creditor and the Debtor negotiate an extension agreement concerning the
term
of debt performance under the Master Contract, the Guarantor shall continue
to
assume the guarantee liability. The guarantee term shall be two years as of
the
date when the period of debt performance agreed in the extension agreement
expires.
65
4-5
Where
the Creditor declares that the debt under the Master Contract is mature in
advance due to occurrence circumstances stipulated in laws, regulations or
the
Master Contract, the guarantee term shall be two years as of the prior maturity
date of the debt under the Master Contract, which is determined by the Creditor.
Article
5
Guarantor’s Undertakings
5-1
The
Guarantor shall provide true, complete and effective financial statements and
other relevant materials and information.
5-2
The
Guarantor will be willing to fulfill its liability of guarantee if the Debtor
fails to discharge the debt according to the Master Contract.
5-3
The
Creditor shall have the right to deduct corresponding sum from any account
of
the Guarantor if the Guarantor fails to fulfill its guarantee liability
according to the Contract.
5-4
In
case of any of the following circumstances, the Guarantor shall within 5 days
thereafter notify the Creditor in writing:
1)
the
Guarantor changes administrative relationship or senior management, amends
its
articles of association and adjusts its organization structure;
2)
the
Guarantor stops production, closes business, cancels registration or is revoked
business license;
3)
the
Guarantor’s finance deteriorates, or production and operation are in severe
difficulty or the Guarantor is involved in significant litigation or
arbitration;
4)
the
Guarantor changes name, domicile, legal representative, contact method and
so
on; or
5)
the
Guarantor has other circumstances which will not help the Creditor realize
its
creditor’s right.
5-5
The
Guarantor shall notify the Creditor in writing 15 days in advance and obtain
written consent of the Creditor if the Guarantor intends to conduct the
following behaviors:
1)
the
Guarantor changes capital structure or operation system, including, but not
limited to, contract, lease, joint stock reconstruction, joint management,
merger, acquirement, division, joint venture, asset transfer and application
for
business stoppage and rectification, dissolution or bankruptcy;
2)
the
Guarantor provides guarantee to the debt of a third person or mortgage, pawn
or
guarantee its main assets for debt of it or a third person, which may affect
it
performance of the guarantee liability hereunder.
5-6
Where
the Debtor guarantees with substantial objects, the Guarantor will perform
the
guarantee liability as to all debts guaranteed, prior to guarantee of
substantial objects.
Article
6
Liability for Breach of Agreement
After
effectiveness of the Contract, both the Creditor and the Guarantor shall perform
their obligations hereunder. Either party that fails to do so shall be liable
for corresponding liabilities for breach of agreement and compensating the
other
for losses therefrom.
66
Article
7
Settlement of Disputes
Any
dispute arising from performance of the Contract may be settled through
negotiation, or by the following first
means:
|
11)
|
litigation.
The dispute shall be governed by the People’s Court at the place where the
Creditor is located;
|
|
12)
|
arbitration.
The dispute shall be submitted to ____________________ (full name
of the
arbitration institution) for arbitration according to its rules.
|
The
Contract shall be performed continually during the period of litigation or
arbitration, except for those in dispute.
Article
8
Miscellaneous
8-1
The
Guarantor has received and read the Master Contract guaranteed.
Article
9
Effectiveness
The
Contract shall be in force after signed or sealed by the Parties hereto.
Article
10 The Contract shall be in three copies with equal force, one of which shall
be
kept by either party hereto, one by Xxxxxxx Xxxxxxxxxxx Metal Sheet Co., Ltd.
Article
11 Notice
The
Creditor has reminded the Guarantor to understand comprehensively and exactly
the terms and conditions of the Contract and explained for corresponding terms
and conditions hereof at the requirements of the Guarantor. The Parties to
the
Contract have consistent understanding of the meanings of the Contract.
The
Creditor (signature and seal): Agricultural
Bank of China Tianjin Jinghai Sub-Branch
Principal
or agent: Xxx
Xxxxxxx
The
Guarantor (signature and seal):
Tianjin
Dazhan Industrial Co., Ltd.
Legal
representative or agent: Xx
Xxxx
The
Guarantor (signature and seal):
Legal
representative or agent:
67
The
Guarantor (signature and seal):
Legal
representative or agent:
Date
of
conclusion: October 17, 2005
Place
of
conclusion: Agricultural Bank of China Tianjin Daqiuzhuang
Sub-Branch
68
Shanghai
Pudong Development Bank
Short-term
Loan Contract
Short-term
Loan Contract
69
No.
7707200528001301
Borrower:
Tianjin Daqiuzhuang Metal Sheet Co., Ltd.
Legal
address:
Correspondence
address:
Lender:
Shanghai Pudong Development Bank Tianjin Branch
Add.:
Whereas
the Borrower applies to the Lender for short-term loan, the Contract is hereby
made through negotiation in the principle of equality in accordance with
pertinent laws, decrees and regulations of the People’s Republic of China.
Article
1
Loan
|
1-1
|
The
currency of the Loan hereunder is RMB,
to the maximum extent of ten
million yuan
only.
|
|
1-2
|
The
term of the Loan hereunder shall be from March
4, 2005
to
March
3, 2006.
|
|
1-3
|
The
Loan hereunder may not be used for any purposes other than short-term
turnover. The effective evidence of the principal and interests of
the
Loan applied by the Borrower shall be subject to the accounting vouchers
issued by the Lender according to the rules of practice.
|
Article
2
Interest Rate and Interest Mode
2-1
The
interest rate of the Loan hereunder shall be:
1)
20%
floating upward the benchmark lending rate publicized by the People’s Bank of
China in corresponding period at the same level, namely, 0.558% per month,
in
case of RMB loan;
2)
__% of
annual rate [floating on basis of ____ month(s)], in case of foreign exchange
loan.
If
the
benchmark lending rate of the Loan hereunder is adjusted by the People’s Bank of
China within the term of the Contract, the interest hereof shall be calculated
at available interest rate, which shall be fixed according to the adjusted
benchmark rate and the floating rate stipulated herein from the next quarter
of
the date when the People’s Bank of China publicizes the adjusted benchmark
rate.
2-2
Unless otherwise stipulated herein or by the Parties, the loan interest
hereunder shall be calculated according to actual sum drawn and days occupied
from the date of drawing on the basis of 360 days a year.
2-3
The
interest payment date of the Loan hereunder shall be the 20th
day of
the third month in each quarter of a calendar year. In case of foreign exchange
loan, the interest settlement day includes the final repayment date of the
Loan
hereunder. The Borrower shall pay the interests due to the Lender on the
interest payment date, and hereby empower the Lender to deduct the interests
due
payable directly from the deposit account of the Borrower at the Lender.
70
Article
3
Drawing and Repayment
3-1
The
Lender shall have no obligation to offer the Loan hereunder, until the following
preconditions are satisfied:
1)
at the
time of drawing, the Borrower has completed the Loan Voucher and delivered
relevant documents and materials at the requirements of the Lender;
2)
the
Borrower has handled relevant government permit, allowance and registration
as
well as other legal procedures relating to the Loan hereunder, e.g., the
procedure for registration of foreign exchange loan; the Borrower shall also
complete the procedure for notarization of the Contract, if required by the
Lender;
3)
the
Borrower has completed such legal procedures as notarization and/or registration
at the requirements of the Lender, if the Loan hereunder is of guaranteed loan,
and the Borrower shall ensure the guarantee to be valid constantly;
4)
there
is not any breaches of agreement as mentioned in Article 7 hereof.
3-2
1)
The
Borrower shall
a.
draw
the Loan by installment according to the following drawing plan, but the
Borrower shall handle the drawing procedure with the Lender three bank’s
business days in advance of each drawing day:
|
the
day of drawing by installment<?xml:namespace prefix = o
/>
|
sum
|
|
on
the __ day of ____
|
(say)
_____________ in _____ (currency)
|
|
on
the __ day of ____
|
(say)
_____________ in _____ (currency)
|
|
on
the __ day of ____
|
(say)
_____________ in _____ (currency)
|
|
on
the __ day of ____
|
(say)
_____________ in _____ (currency)
|
|
on
the __ day of ____
|
(say)
_____________ in _____ (currency)
|
b.
go
through the procedures for drawing on a lump-sum basis with the Lender three
bank’s business days in advance as of the date when the preconditions stipulated
herein have been satisfied.
2)
The
Lender shall grant the Loan in time after the Borrower satisfies the
preconditions stipulated herein and completes the procedures for drawing
according to the aforesaid clause.
3-3
The
Lender shall have the right to cancel the sum which is not drawn by the Borrower
according to the aforesaid clause. The Borrower has no right to make another
drawing, except with consent of the Lender.
3-4
The
Borrower shall repay on time the Loan hereunder in full amount to the Lender
on
the maturity date and hereby empower the Lender to make deduction directly
from
the deposit accounts of the Borrower at the Lender.
3-5
The
Borrower shall obtain the prior consent of the Lender if it intends to repay
the
Loan in advance. The Borrower shall make repayment of the principal and
interests according to the time limit as described herein if the consent of
the
Lender is absent.
71
Article
4
Statements and Guarantees
The
Borrower hereby makes following statements and guarantees to the Lender. The
statements and guarantees shall be in force after signed and be effective and
valid within the term of the Contract.
4-1
The
Borrower is the enterprise (institution) as legal person registered in
accordance with Chinese laws. The Borrower owns sufficient rights to all of
its
assets, has full capability for civil conducts and assumes civil liability
independently.
4-2
The
Borrower has authorized the representative to execute the Contract. All terms
and conditions of the Contract reflect true meaning of the Borrower and have
legal binding upon the Borrower.
4-3
Execution and performance of the Contract by the Borrower will not violate
the
laws, regulations, decrees, judgments, rulings and orders which the Borrower
shall abide by, or conflict with the articles of association of the Borrower,
or
any contract or agreement which the Borrower executes or any other obligations
which the Borrower shall assume.
4-4
The
Borrower shall at the requirements of the Lender provide true information
concerning relevant operation and financial situation of the Borrower. The
Borrower ensures that all financial statements issued by it comply with
pertinent Chinese laws and regulations and reflect truly and justly the
financial situation of the Borrower, and all documents and materials involved
in
the Contract are true, effective, complete, exact and free of camouflage.
4-5
The
Borrower does not conceal any litigations, arbitrations, administrative
proceedings, property preservation measures or enforcement procedures which
have
occurred or will occur and will or may affect its execution or performance
of
the Contract or may cause material adverse impact upon its operation or finance,
or other events which may cause material adverse impacts.
Article
5
Stipulations
Within
the term of the Loan hereunder the Parties make the following stipulations:
5-1
The
Lender may inspect and supervise at any time utilization of the Loan in any
way.
The Borrower shall at the requirements of the Lender provide periodically
relevant financial statements and other materials. The Borrower ensures to
operate by laws and utilize the Loan according to Article 1.3 hereof, to
cooperate actively with the Lender in supervising and inspecting the utilization
of the Loan and operation of the Borrower and to provide in time monthly and
yearly financial reports and other relevant materials required by the Lender.
5-2
The
Borrower ensures that, except with preservation measures of collateralized
loan
approved by the Lender in writing, it will not make contract, operating lease,
joint management, joint stock reconstruction, merger, joint venture
(cooperation), division, establishment of branches, transfer of property rights,
capital reduction, operation stoppage, dissolution, application for bankruptcy
and other conducts which will affect the rights and interests of the Lender.
5-3
The
Borrower ensures that, except with written consent of the Lender, it will not
alter its articles of association and business scope materially, or sell, lease,
transfer or dispose in other ways all or large part of its assets, or at will
provide a third party with guarantee which will be sufficient to cause material
adverse impacts upon its financial situation or capability of performance of
its
obligations hereunder.
72
5-4
The
Borrower ensures not to repay other loans first in violation of normal repayment
order, and not to execute presently or in future any contract or agreement
to
which the Loan hereunder will be subject.
5-5
The
Borrower shall repay and pay the principal and interests of the Loan hereunder
in the same currency. In case the guarantor makes repayment in other currencies,
the Borrower shall ensure that it will, at the Lender’s instructions, convert
the sum from the guarantor into the currency of the Loan hereunder via
transaction, swap, conversion or sale of foreign exchange to repay the
outstanding principal and interests hereunder; all costs and expenses incurred
therefrom shall be borne by the Borrower.
5-6
The
Borrower ensures to provide in time another guarantee which will be accepted
by
the Lender in case of occurrence or contingent occurrence of events which are
sufficient to cause material adverse impact upon the guarantor’s financial
situation or its capability of performance of guarantee obligation.
5-7
The
Borrower ensures to notify in time the Lender as follows:
1)
to
notify the Lender in writing within three days in case the Borrower is aware
of
the breaches as mentioned in Article 7 hereof or the events which constitute
breach;
2)
to
notify the Lender in writing within three days as of the date of material
adverse events as mentioned in Article 4.5 hereof;
3)
to
notify the Lender in writing ten days in case of alteration of legal
representative, authorized representative, correspondence address, name of
the
enterprise or material changes in finance and human resources.
5-8
The
Lender shall have the right to make disposal according to Article 8.1 hereof
in
case the Borrower has certain events as mentioned in Article 4.5 hereof, which
will be sufficient to affect the Borrower to repay the debt hereunder.
Article
6
Guarantee of Creditor’s Rights
6-1
The
guarantor will provide guarantee in favor of the Borrower to the Lender
concerning the principal and interests of the Loan hereunder, liquidated damages
and costs incurred by the Lender for realizing the creditor’s right (the
guarantee contract will be made otherwise):
1)
Tianjin Sheng Da Steel Mill Co.,Ltd.
(the
guarantor) provides guarantee, the Guarantee Contract No.: 770720058001301;
2)
__________________
(the
mortgager) provides a mortgage with________________ (guaranty), the Mortgage
Contract No.: ________________;
3)
__________________
(the
pawner) provides a pawn with________________ (pledge), the Pawn Contract No.:
________________.
73
Article
7
Breach
7-1
Any
of the following events shall constitute breach of the Contract by the Borrower:
1)
The
Borrower fails to repay or/and pay on schedule all or part of principal and
interests due payable under the Contract and other relevant expenses;
2)
The
Borrower fails to perform or acts against the statements and guarantees as
stipulated in Article 4 hereof, or such statements and guarantees are untrue,
inexact or incomplete;
3)
The
Borrower has been in breach of the stipulations in Article 5 hereof;
4)
The
Borrower violates any other loan contracts and agreements it makes, which cause
its debts under such contracts and agreements is declared due in advance; or
the
Borrower fails to repay the debts which are due payable under other loan
contracts and agreements it makes;
5)
The
investors of the Borrower withdraw capitals, transfer assets or shareholdings
at
will;
6)
The
Borrower fails to in time provide or add, at the requirements of the Lender,
another guarantee which will be accepted by the Lender when the guarantor (or
guaranty or pawn) has lost or will lost corresponding guarantee capability
with
the Loan hereunder or the guarantor acts against the guarantee documents it
makes; or
7)
The
Borrower violates other terms and conditions of the Contract (except for this
clause).
7-2
It
will constitute a breach if the Lender fails to grant the Loan to the Borrower
according to Article 3.2.2 hereof, except for breaches by the Borrower as
mentioned in Article 7.1 hereof.
Article
8
Breach Disposal
8-1
In
case of one or several breaches as mentioned in Article 7 hereof, the Lender
may
take one or several measures according to the fact:
1)
to
declare the principal of the Loan hereunder is due in advance, to settle all
outstanding interests and to exercise recourse in any way against the Borrower
or the guarantor;
2)
to
collect penalty interests at additional 50% of the lending interest rate on
the
overdue day and charge compound interests, in case of overdue payment of RMB
loan; to collect penalty interests at additional 100% of the lending interest
rate on the appropriation day and charge compound interests, in case of
appropriation of RMB loan; to collect penalty interests at 20% floating upward
the original interest rate and charge compound interests, in case of overdue
payment and appropriation of foreign exchange loan;
3)
to
make deduction from all or part of deposit accounts of the Borrower at the
Lender and other branches in the system of the head office of the Lender;
4)
to
cancel the credit line unused by the Borrower;
5)
to
require the Borrower to provide other guarantees accepted by the Lender;
6)
to
take other necessary measures according to laws.
In
such
case, the Borrower agrees to waive the right of defence without conditions
and
shall compensate the Lender for all losses due to such breach.
8-2
In
case of breach, the Borrower shall be accountable for relevant costs and
expenses (including attorney fee, litigation cost and auction fee, etc.)
incurred by the Lender for realizing the creditor’s right.
8-3
Where
the Lender has one of breaches as mentioned in Article 7.2 hereof, the Lender
shall be accountable for material losses of the Borrower arising from obtaining
substitutable loan in financial market, namely, the balance between the
interests of substitutable loan from the financial market and those of the
Loan
from the Lender; besides, the Lender needs not to assume any other liability.
74
Article
9
Miscellaneous
9-1
In
case of conflicts of the Contract in force with pertinent laws, regulations
and
decrees promulgated by the State, the Parties shall negotiate a supplementary
contract under the precondition to ensure the safety and benefit of the Loan
of
the Lender. The Lender reserves the right to accelerate maturity of the Loan
and
exercise immediately recourse.
9-2
The
Contract shall be applied to the laws of the People’s Republic of China. Any
disputes relating to the Contract shall be subject to the jurisdiction of the
People’s Court at the place where the main office of the Lender is located.
9-3
The
Contract shall become effective after the Parties stamp official seals and
the
legal representatives or authorized representatives sign or seal respectively
and be terminated when the principal, interests and expenses of the Loan
hereunder have been repaid.
9-4
The
loan application, loan voucher, corresponding guarantee contract and relevant
documents and materials provided by the Borrower shall be inseparable part
of
the Contract and have equal legal force with the Contract.
9-5
The
original of the Contract shall be in two copies, one of which shall be kept
by
either party hereto; the duplicates hereof shall be kept for reference.
Signature:
When
executing the Contract, the Parties hereto have no objection to any of the
terms
and conditions of the Contract and have understood exactly and correctly the
legal meanings of relevant rights, obligations and liabilities of the Parties
hereunder.
The
Borrower (seal): Tianjin
Daqiuzhuang Metal Sheet Co., Ltd.
Legal
representative or authorized representative (signature or seal): Xx
Xxxxxxxx
Opening
bank and accounts: Agricultural Bank of China Tianjin Daqiuzhuang Sub-branch,
0069874023680
The
Lender (seal): Shanghai
Pudong Development Bank Tianjin Branch
Legal
representative or authorized representative (signature or seal): Xx
Xxxxxxxx
Date
of
conclusion: March 4, 2005
75
Shanghai
Pudong Development Bank
Guarantee
Contract for Short-term Loan
76
Shanghai
Pudong Development Bank
Guarantee
Contract for Short-term Loan
No.
770720052800130
Guarantor:
Tianjin Sheng Da Steel Mill Co.,Ltd.
Legal
address:
Correspondence
address:
Lender:
Shanghai Pudong Development Bank Tianjin Branch
Add.:
Whereas
the Loan Contract (No. 7707200528001301) (hereinafter referred to as the “Loan
Contract”) is concluded on March 4, 2005 by and between Tianjin Daqiuzhuang
Metal Sheet Co., Ltd. (hereinafter referred to as the “Borrower”) and the
Lender, this Contract is hereby entered into through negotiation by the
Guarantor and the Lender on the basis of equality in accordance with pertinent
laws and regulations of the People’s Republic of China for the purpose of
ensuring realization of the creditor’s right of the Lender. This Contract shall
be as one of the preconditions for the Borrower drawing the Loan under the
Loan
Contract.
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1.
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The
primary creditor’s right guaranteed hereunder is the principle of the Loan
covering ten
million yuan only,
which is granted by the Lender to the Borrower according to the Loan
Contract. The Guarantor hereby acknowledges that effective evidences
proving the debt owed by the Borrower shall be subject to the accounting
vouchers issued by the Lender according to the rules of practice;
the Loan
shall be mature on March 3, 2006. “Maturity (expiration)” as mentioned in
the Contract includes the circumstance that the Lender declares the
Loan
is due in advance.
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|
2.
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The
scope of guarantee hereunder includes the principal, interests, penalty
interests, compound interests, penalty and damages of the Loan under
the
Loan Contract, which are due payable but have not been paid by the
Borrower, and litigation cost, attorney fee and other costs incurred
for
realization of its creditor’s
right.
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3.
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The
guarantee as mentioned in this Contract shall be of joint and several
liability. The Guarantor shall, together with the Borrower, assume
joint
and several liability for the debts within the guarantee scope. As
for all
debts which are due payable but are not repaid by the Borrower, the
Guarantor shall make repayment to the Lender as the first debtor
without
any condition; meanwhile, the Guarantor hereby empowers the Lender
to make
deduction directly from the deposit accounts of the Guarantor at
the
branches of Shanghai Pudong Development Bank, or from relevant accounts
of
the Guarantor at other financial institutions.
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4.
|
The
guarantee hereunder shall be independent, irrevocable and constant.
The
Guarantee Contract will not be impacted by effectiveness and validity
of
the master contract, nor be null and revocable due to invalidity
or
rescission of the Loan Contract. The liability for guarantee of the
Guarantor will not be varied from consent of the Lender concerning
extension or reconstruction of the Loan, or from alteration of the
Loan
Contract under agreements between the Lender and the Borrower, or
from
change of operation or management system of the Borrower and the
Guarantor. If the Lender and the Borrower negotiate to alter the
Loan
Contract or extend or reconstruct the Loan or the Borrower changes
its own
operation or management system without written consent of the Guarantor,
the Guarantor shall also be accountable for guarantee.
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77
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5.
|
The
guarantee term of the Guarantor hereunder shall be two years as of
the
date when the performance period of primary debt for the Debtor expires.
The performance period of primary debt shall be deemed mature if
the Loan
is declared due in advance. In such case, the Lender can require
the
Guarantor to assume the guarantee liability at any time within the
guarantee term, and the Guarantor shall do so. As for the Loan extended
and reconstructed with consent of the Lender, the guarantee term
of the
Guarantor shall be two years as of the date when the new performance
period of primary debt for the Debtor expires.
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The
Guarantor shall assume guarantee liability within the guarantee term hereunder.
Where the Borrower fails to repay debts according to the Loan Contract, the
Lender may require the Guarantor to assume the guarantee liability within the
guarantee term; where the Lender does not require the Guarantor to do so within
the guarantee term, the Guarantor shall be exempt from guarantee liability.
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6.
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If,
during the guarantee term, the Lender transfers the primary creditor’s
right to a third party according to laws, the Guarantor shall continue
to
assume the guarantee liability to the extent of the original scope
of
guarantee. Within the guarantee term the Borrower may not transfer
the
debt, except with written consent of the Lender and the Guarantor.
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|
7.
|
The
Guarantor hereby makes following statements and guarantees to the
Lender.
The statements and guarantees shall be in force after signed and
be
effective and valid within the term of the Contract.
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|
1)
|
The
Guarantor is of the enterprise or other economic organization registered
in accordance with Chinese laws. The Guarantor owns sufficient rights
to
all of its assets, has full capability for civil conduct and assumes
civil
liability independently.
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2)
|
The
Guarantor has authorized the representative to execute the Contract.
All
terms and conditions of the Contract reflect true meaning of the
Borrower
and have legal binding upon the
Guarantor.
|
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3)
|
Execution
and performance of the Contract by the Guarantor will not violate
the
laws, regulations, decrees, judgments, rulings and orders which the
Borrower shall abide by, or conflict with the articles of association
of
the Guarantor, or any contract or agreement which the Guarantor executes
or any other obligations which the Guarantor shall assume.
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4)
|
The
Guarantor ensures that all financial statements issued by it comply
with
pertinent Chinese laws and regulations and reflect truly and justly
the
financial situation of the Guarantor, and all documents and materials
involved in the Contract are true, effective, complete, exact and
free of
camouflage.
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5)
|
The
Guarantor does not conceal any litigations, arbitrations, administrative
proceedings, property preservation measures or enforcement procedures
which have occurred or will occur and will or may affect its execution
or
performance of the Contract or may cause material adverse impact
upon its
operation or finance, or other events which may cause material adverse
impacts.
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78
|
8.
|
Within
the guarantee term the Guarantor further makes undertakings to the
Lender
as follows:
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|
1)
|
to
make operation by law, cooperate actively with the Lender in supervising
and inspecting its operation and, at the requirements of the Lender,
in
time provide financial statements and other relevant materials of
the
Lender;
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2)
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not
to, without written consent of the Lender, alter materially its articles
of association and business scope, or sell, lease, transfer or dispose
in
other ways all or large part of its assets, or at will change its
management or operation system and conduct other acts which may affect
the
rights and interests of the Lender, so that it is sufficient to cause
material adverse impacts upon its financial situation or capability
of
performance of its obligations hereunder.
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3)
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to
ensure the level of its obligations hereunder will not be less than
its
other obligations free of real right guarantee, and, presently and
in
future, not to conclude any contract or agreement to which its guarantee
obligations hereunder shall be subject.
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4)
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to
notify the Lender in writing within three days in case the Guarantor
is
aware of the facts which have made, or may make, material adverse
impacts
upon its finance or capability in performing its obligations hereunder.
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5)
|
to
notify the Lender in writing ten days in case of alteration of legal
representative, authorized representative, correspondence address,
name of
the enterprise or material changes in finance and human resources.
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6)
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to
make payment all sums due in time and perform its obligations hereunder.
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9.
|
In
case of conflicts of the Contract in force with pertinent laws,
regulations and decrees promulgated by the State, the Parties shall
negotiate a supplementary contract under the precondition to ensure
the
safety and benefit of the Loan of the Lender.
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10.
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The
Contract shall become effective after the Parties stamp official
seals and
the legal representatives or authorized representatives sign or seal
respectively and be terminated when the principal, interests and
expenses
of the Loan owed by the Borrower hereunder have been repaid; nevertheless,
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|
1)
|
the
Contract shall be in force on the date which the master contract
is
concluded, if the Contract is made prior to the master contract;
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2)
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unless
otherwise stipulated by the Parties hereto, the Contract shall be
terminated with an extension period of six months as of the date
of early
repayment, if the Borrower repays all of the Loan in advance. If
the
Borrower does not repay the Loan in full amount in advance, the Guarantor
shall still assume guarantee liability for outstanding debt.
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11.
|
The
Contract shall be applied to the laws of the People’s Republic of China.
Any disputes relating to the Contract shall be subject to the jurisdiction
of the People’s Court at the place where the main office of the Lender is
located.
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12.
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The
original of the Contract shall be in two copies, one of which shall
be
kept by either party hereto; the duplicates hereof shall be kept
for
reference.
|
When
executing the Contract, the Parties hereto have no objection to any of the
terms
and conditions of the Contract and have understood exactly and correctly the
legal meanings of relevant rights, obligations and liabilities of the Parties
hereunder.
79
The
Guarantor (seal): Tianjin
Sheng Da Steel Mill Co.,Ltd.
Legal
representative or authorized representative (signature or seal): Xx
Xxxxxxxx
Opening
bank and accounts: Agricultural Bank of China Tianjin Daqiuzhuang Sub-branch,
0069874078254
The
Lender (seal): Shanghai
Pudong Development Bank Tianjin Branch
Legal
representative or authorized representative (signature or seal): Xx
Xxxxxxxx
Date
of
conclusion: March 4, 2005
80
Shanghai
Pudong Development Bank
Short-term
Loan Contract
81
Short-term
Loan Contract
No.
77072005280095
Borrower:
Tianjin Daqiuzhuang Metal Sheet Co., Ltd.
Legal
address:
Correspondence
address:
Lender:
Shanghai Pudong Development Bank Tianjin Branch
Add.:
Whereas
the Borrower applies to the Lender for short-term loan, the Contract is hereby
made through negotiation in the principle of equality in accordance with
pertinent laws, decrees and regulations of the People’s Republic of China.
Article
1
Loan
|
1-4
|
The
currency of the Loan hereunder is RMB,
to the maximum extent of Twenty
million yuan
only.
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1-5
|
The
term of the Loan hereunder shall be from November
14, 2005
to
November
13, 2006.
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1-6
|
The
Loan hereunder may not be used for any purposes other than short-term
turnover. The effective evidence of the principal and interests of
the
Loan applied by the Borrower shall be subject to the accounting vouchers
issued by the Lender according to the rules of practice.
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Article
2
Interest Rate and Interest Mode
2-1
The
interest rate of the Loan hereunder shall be:
1)
15%
floating upward the benchmark lending rate publicized by the People’s Bank of
China in corresponding period and at the same level, namely, 0.53475% per month,
in case of RMB loan;
2)
__% of
annual rate [floating on basis of ____ month(s)], in case of foreign exchange
loan.
If
the
benchmark lending rate of the Loan hereunder is adjusted by the People’s Bank of
China within the term of the Contract, the interest hereof shall be calculated
at available interest rate, which shall be fixed according to the adjusted
benchmark rate and the floating rate stipulated herein from the next quarter
of
the date when the People’s Bank of China publicizes the adjusted benchmark
rate.
2-2
Unless otherwise stipulated herein or by the Parties, the loan interest
hereunder shall be calculated according to actual sum drawn and days occupied
from the date of drawing on the basis of 360 days a year.
2-3
The
interest payment date of the Loan hereunder shall be the 20th
day of
the third month in each quarter of a calendar year. In case of foreign exchange
loan, the interest settlement day includes the final repayment date of the
Loan
hereunder. The Borrower shall pay the interests due to the Lender on the
interest payment date, and hereby empower the Lender to deduct the interests
due
payable directly from the deposit account of the Borrower at the Lender.
82
Article
3
Drawing and Repayment
3-1
The
Lender shall have no obligation to offer the Loan hereunder, until the following
preconditions are satisfied:
1)
at the
time of drawing, the Borrower has completed the Loan Voucher and delivered
relevant documents and materials at the requirements of the Lender;
2)
the
Borrower has handled relevant government permit, allowance and registration
as
well as other legal procedures relating to the Loan hereunder, e.g., the
procedure for registration of foreign exchange loan; the Borrower shall also
complete the procedure for notarization of the Contract, if required by the
Lender;
3)
the
Borrower has completed such legal procedures as notarization and/or registration
at the requirements of the Lender, if the Loan hereunder is of guaranteed loan,
and the Borrower shall ensure the guarantee to be valid constantly;
4)
there
is not any breaches of agreement as mentioned in Article 7 hereof.
3-2
1)
The
Borrower shall
a.
draw
the Loan by installment according to the following drawing plan, but the
Borrower shall handle the drawing procedure with the Lender three bank’s
business days in advance of each drawing day:
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the
day of drawing by installment
|
sum
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|
on
the __ day of ____
|
(say)
_____________ in _____ (currency)
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|
on
the __ day of ____
|
(say)
_____________ in _____ (currency)
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|
on
the __ day of ____
|
(say)
_____________ in _____ (currency)
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on
the __ day of ____
|
(say)
_____________ in _____ (currency)
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on
the __ day of ____
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(say)
_____________ in _____ (currency)
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b.
go
through the procedures for drawing on a lump-sum basis with the Lender three
bank’s business days in advance as of the date when the preconditions stipulated
herein have been satisfied.
2)
The
Lender shall grant the Loan in time after the Borrower satisfies the
preconditions stipulated herein and completes the procedures for drawing
according to the aforesaid clause.
3-3
The
Lender shall have the right to cancel the sum which is not drawn by the Borrower
according to the aforesaid clause. The Borrower has no right to make another
drawing, except with consent of the Lender.
3-4
The
Borrower shall repay on time the Loan hereunder in full amount to the Lender
on
the maturity date and hereby empower the Lender to make deduction directly
from
the deposit accounts of the Borrower at the Lender.
3-5
The
Borrower shall obtain the prior consent of the Lender if it intends to repay
the
Loan in advance. The Borrower shall make repayment of the principal and
interests according to the time limit as described herein if the consent of
the
Lender is absent.
83
Article
4
Statements and Guarantees
The
Borrower hereby makes following statements and guarantees to the Lender. The
statements and guarantees shall be in force after signed and be effective and
valid within the term of the Contract.
4-1
The
Borrower is the enterprise (institution) as legal person registered in
accordance with Chinese laws. The Borrower owns sufficient rights to all of
its
assets, has full capability for civil conduct and assumes civil liability
independently.
4-2
The
Borrower has authorized the representative to execute the Contract. All terms
and conditions of the Contract reflect true meaning of the Borrower and have
legal binding upon the Borrower.
4-3
Execution and performance of the Contract by the Borrower will not violate
the
laws, regulations, decrees, judgments, rulings and orders which the Borrower
shall abide by, or conflict with the articles of association of the Borrower,
or
any contract or agreement which the Borrower executes or any other obligations
which the Borrower shall assume.
4-4
The
Borrower shall at the requirements of the Lender provide true information
concerning relevant operation and financial situation of the Borrower. The
Borrower ensures that all financial statements issued by it comply with
pertinent Chinese laws and regulations and reflect truly and justly the
financial situation of the Borrower, and all documents and materials involved
in
the Contract are true, effective, complete, exact and free of camouflage.
4-5
The
Borrower does not conceal any litigations, arbitrations, administrative
proceedings, property preservation measures or enforcement procedures which
have
occurred or will occur and will or may affect its execution or performance
of
the Contract or may cause material adverse impact upon its operation or finance,
or other events which may cause material adverse impacts.
Article
5
Stipulations
Within
the term of the Loan hereunder the Parties make the following stipulations:
5-1
The
Lender may inspect and supervise at any time utilization of the Loan in any
way.
The Borrower shall at the requirements of the Lender provide periodically
relevant financial statements and other materials. The Borrower ensures to
operate by laws and utilize the Loan according to Article 1.3 hereof, to
cooperate actively with the Lender in supervising and inspecting the utilization
of the Loan and the operation of the Borrower and to provide in time monthly
and
yearly financial reports and other relevant materials required by the Lender.
5-2
The
Borrower ensures that, except with preservation measures of collateralized
loan
approved by the Lender in writing, it will not make contract, operating lease,
joint management, joint stock reconstruction, merger, joint venture
(cooperation), division, establishment of branches, transfer of property rights,
capital reduction, operation stoppage, dissolution, application for bankruptcy
and other conducts which will affect the rights and interests of the Lender.
5-3
The
Borrower ensures that, except with written consent of the Lender, it will not
alter its articles of association and business scope materially, or sell, lease,
transfer or dispose in other ways all or large part of its assets, or at will
provide a third party with guarantee which will be sufficient to cause material
adverse impacts upon its financial situation or capability of performance of
its
obligations hereunder.
84
5-4
The
Borrower ensures not to repay other loans first in violation of normal repayment
order, and not to execute presently or in future any contract or agreement
to
which the Loan hereunder will be subject.
5-5
The
Borrower shall repay and pay the principal and interests of the Loan hereunder
in the same currency. In case the guarantor makes repayment in other currencies,
the Borrower shall ensure that it will, at the Lender’s instructions, convert
the sum from the guarantor into the currency of the Loan hereunder via
transaction, swap, conversion or sale of foreign exchange to repay the
outstanding principal and interests hereunder; all costs and expenses incurred
therefrom shall be borne by the Borrower.
5-6
The
Borrower ensures to provide in time another guarantee which will be accepted
by
the Lender in case of occurrence or contingent occurrence of events which are
sufficient to cause material adverse impact upon the guarantor’s financial
situation or its capability of performance of guarantee obligation.
5-7
The
Borrower ensures to notify in time the Lender as follows:
1)
to
notify the Lender in writing within three days in case the Borrower is aware
of
the breaches as mentioned in Article 7 hereof or the events which constitute
breach;
2)
to
notify the Lender in writing within three days as of the date of material
adverse events as mentioned in Article 4.5 hereof;
3)
to
notify the Lender in writing ten days in case of alteration of legal
representative, authorized representative, correspondence address, name of
the
enterprise or material changes in finance and human resources.
5-8
The
Lender shall have the right to make disposal according to Article 8.1 hereof
in
case the Borrower has certain events as mentioned in Article 4.5 hereof, which
will be sufficient to affect the Borrower to repay the debt hereunder.
Article
6
Guarantee of Creditor’s Rights
6-1
The
guarantor will provide guarantee in favor of the Borrower to the Lender
concerning the principal and interests of the Loan hereunder, liquidated damages
and costs incurred by the Lender for realizing the creditor’s right (the
guarantee contract will be made otherwise):
1)
Tianjin
Sheng Da Steel Mill Co.,Ltd.
(the
guarantor) provides guarantee, the Guarantee Contract No.: 77072005280095;
2)
__________________
(the
mortgager) provides a mortgage with________________ (guaranty), the Mortgage
Contract No.: ________________;
3)
__________________
(the
pawner) provides a pawn with________________ (pledge), the Pawn Contract No.:
________________.
85
Article
7
Breach
7-1
Any
of the following events shall constitute breach of the Contract by the Borrower:
1)
The
Borrower fails to repay or/and pay on schedule all or part of principal and
interests due payable under the Contract and other relevant expenses;
2)
The
Borrower fails to perform or acts against the statements and guarantees as
stipulated in Article 4 hereof, or such statements and guarantees are untrue,
inexact or incomplete;
3)
The
Borrower has been in breach of the stipulations in Article 5 hereof;
4)
The
Borrower violates any other loan contracts and agreements it makes, which cause
its debts under such contracts and agreements is declared due in advance; or
the
Borrower fails to repay the debts which are due payable under other loan
contracts and agreements it makes;
5)
The
investors of the Borrower withdraw capitals, transfer assets or shareholdings
at
will;
6)
The
Borrower fails to in time provide or add, at the requirements of the Lender,
another guarantee which will be accepted by the Lender when the guarantor (or
guaranty or pawn) has lost or will lost corresponding guarantee capability
with
the Loan hereunder or the guarantor acts against the guarantee documents it
makes; or
7)
The
Borrower violates other terms and conditions of the Contract (except for this
clause).
7-2
It
will constitute a breach if the Lender fails to grant the Loan to the Borrower
according to Article 3.2.2 hereof, except for breaches by the Borrower as
mentioned in Article 7.1 hereof.
Article
8
Breach Disposal
8-1
In
case of one or several breaches as mentioned in Article 7 hereof, the Lender
may
take one or several measures according to the fact:
1)
to
declare the principal of the Loan hereunder is due in advance, to settle all
outstanding interests and to exercise recourse in any way against the Borrower
or the guarantor;
2)
to
collect penalty interests at additional 50% of the lending interest rate on
the
overdue day and charge compound interests, in case of overdue payment of RMB
loan; to collect penalty interests at additional 100% of the lending interest
rate on the appropriation day and charge compound interests, in case of
appropriation of RMB loan; to collect penalty interests at 20% floating upward
the original interest rate and charge compound interests, in case of overdue
payment and appropriation of foreign exchange loan;
3)
to
make deduction from all or part of deposit accounts of the Borrower at the
Lender and other branches in the system of the head office of the Lender;
4)
to
cancel the credit line unused by the Borrower;
5)
to
require the Borrower to provide other guarantees accepted by the Lender;
6)
to
take other necessary measures according to laws.
In
such
case, the Borrower agrees to waive the right of defence without conditions
and
shall compensate the Lender for all losses due to such breach.
8-2
In
case of breach, the Borrower shall be accountable for relevant costs and
expenses (including attorney fee, litigation cost and auction fee, etc.)
incurred by the Lender for realizing the creditor’s right.
8-3
Where
the Lender has one of breaches as mentioned in Article 7.2 hereof, the Lender
shall be accountable for material losses of the Borrower arising from obtaining
substitutable loan in financial market, namely, the balance between the
interests of substitutable loan from the financial market and those of the
Loan
from the Lender; besides, the Lender needs not to assume any other liability.
86
Article
9
Miscellaneous
9-1
In
case of conflicts of the Contract in force with pertinent laws, regulations
and
decrees promulgated by the State, the Parties shall negotiate a supplementary
contract under the precondition to ensure the safety and benefit of the Loan
of
the Lender. The Lender reserves the right to accelerate maturity of the Loan
and
exercise immediately recourse.
9-2
The
Contract shall be applied to the laws of the People’s Republic of China. Any
disputes relating to the Contract shall be subject to the jurisdiction of the
People’s Court at the place where the main office of the Lender is located.
9-3
The
Contract shall become effective after the Parties stamp official seals and
the
legal representatives or authorized representatives sign or seal respectively
and be terminated when the principal, interests and expenses of the Loan
hereunder have been repaid.
9-4
The
loan application, loan voucher, corresponding guarantee contract and relevant
documents and materials provided by the Borrower shall be inseparable part
of
the Contract and have equal legal force with the Contract.
9-5
The
original of the Contract shall be in two copies, one of which shall be kept
by
either party hereto; the duplicates hereof shall be kept for reference.
Signature:
When
executing the Contract, the Parties hereto have no objection to any of the
terms
and conditions of the Contract and have understood exactly and correctly the
legal meanings of relevant rights, obligations and liabilities of the Parties
hereunder.
The
Borrower (seal): Tianjin
Daqiuzhuang Metal Sheet Co., Ltd.
Legal
representative or authorized representative (signature or seal): Xx
Xxxxxxxx
Opening
bank and accounts: Agricultural Bank of China Tianjin Daqiuzhuang Sub-branch,
071201040006858
The
Lender (seal): Shanghai
Pudong Development Bank Tianjin Branch
Legal
representative or authorized representative (signature or seal): Xx
Xxxxxxxx
Date
of
conclusion: November 14, 2005
87
Shanghai
Pudong Development Bank
Guarantee
Contract for Short-term Loan
88
15
Shanghai
Pudong Development Bank
Guarantee
Contract for Short-term Loan
No.
77072005280095
Guarantor:
Tianjin Sheng Da Steel Mill Co.,Ltd.
Legal
address:
Correspondence
address:
Lender:
Shanghai Pudong Development Bank Tianjin Branch
Add.:
Whereas
the Loan Contract (No. 77072005280095) (hereinafter referred to as the “Loan
Contract”) is concluded on November 11, 2005 by and between Tianjin
Daqiuzhuang Metal Sheet Co., Ltd.
(hereinafter referred to as the “Borrower”) and the Lender, this Contract is
hereby entered into through negotiation by the Guarantor and the Lender on
the
basis of equality in accordance with pertinent laws and regulations of the
People’s Republic of China for the purpose of ensuring realization of the
creditor’s right of the Lender. This Contract shall be as one of the
preconditions for the Borrower drawing the Loan under the Loan Contract.
|
1.
|
The
primary creditor’s right guaranteed hereunder is the principle of the Loan
covering twenty
million yuan only,
which is granted by the Lender to the Borrower according to the Loan
Contract. The Guarantor hereby acknowledges that effective evidences
proving the debt owed by the Borrower shall be subject to the accounting
vouchers issued by the Lender according to the rules of practice;
the Loan
shall be mature on November 13, 2006. “Maturity (expiration)” as mentioned
in the Contract includes the circumstance that the Lender declares
the
Loan is due in advance.
|
|
2.
|
The
scope of guarantee hereunder includes the principal, interests, penalty
interests, compound interests, penalty and damages of the Loan under
the
Loan Contract, which are due payable but have not been paid by the
Borrower, and litigation cost, attorney fee and other costs incurred
for
realization of its creditor’s
right.
|
|
3.
|
The
guarantee as mentioned in this Contract shall be of joint and several
liability. The Guarantor shall, together with the Borrower, assume
joint
and several liability for the debts within the guarantee scope. As
for all
debts which are due payable but are not repaid by the Borrower, the
Guarantor shall make repayment to the Lender as the first debtor
without
any condition; meanwhile, the Guarantor hereby empowers the Lender
to make
deduction directly from the deposit accounts of the Guarantor at
the
branches of Shanghai Pudong Development Bank, or from relevant accounts
of
the Guarantor at other financial institutions.
|
|
4.
|
The
guarantee hereunder shall be independent, irrevocable and constant.
The
Guarantee Contract will not be impacted by effectiveness and validity
of
the master contract, nor be null and revocable due to invalidity
or
rescission of the Loan Contract. The liability for guarantee of the
Guarantor will not be varied from consent of the Lender concerning
extension or reconstruction of the Loan, or from alteration of the
Loan
Contract under agreements between the Lender and the Borrower, or
from
change of operation or management system of the Borrower and the
Guarantor. If the Lender and the Borrower negotiate to alter the
Loan
Contract or extend or reconstruct the Loan or the Borrower changes
its own
operation or management system without written consent of the Guarantor,
the Guarantor shall also be accountable for guarantee.
|
89
|
5.
|
The
guarantee term of the Guarantor hereunder shall be two years as of
the
date when the performance period of primary debt for the Debtor expires.
The performance period of primary debt shall be deemed mature if
the Loan
is declared due in advance. In such case, the Lender can require
the
Guarantor to assume the guarantee liability at any time within the
guarantee term, and the Guarantor shall do so. As for the Loan extended
and reconstructed with consent of the Lender, the guarantee term
of the
Guarantor shall be two years as of the date when the new performance
period of primary debt for the Debtor expires.
|
The
Guarantor shall assume guarantee liability within the guarantee term hereunder.
Where the Borrower fails to repay debts according to the Loan Contract, the
Lender may require the Guarantor to assume the guarantee liability within the
guarantee term; where the Lender does not require the Guarantor to do so within
the guarantee term, the Guarantor shall be exempt from guarantee liability.
|
6.
|
If,
during the guarantee term, the Lender transfers the primary creditor’s
right to a third party according to laws, the Guarantor shall continue
to
assume the guarantee liability to the extent of the original scope
of
guarantee. Within the guarantee term the Borrower may not transfer
the
debt, except with written consent of the Lender and the Guarantor.
|
|
7.
|
The
Guarantor hereby makes following statements and guarantees to the
Lender.
The statements and guarantees shall be in force after signed and
be
effective and valid within the term of the Contract.
|
|
1)
|
The
Guarantor is of the enterprise or other economic organization registered
in accordance with Chinese laws. The Guarantor owns sufficient rights
to
all of its assets, has full capability for civil conduct and assumes
civil
liability independently.
|
|
2)
|
The
Guarantor has authorized the representative to execute the Contract.
All
terms and conditions of the Contract reflect true meaning of the
Borrower
and have legal binding upon the
Guarantor.
|
|
3)
|
Execution
and performance of the Contract by the Guarantor will not violate
the
laws, regulations, decrees, judgments, rulings and orders which the
Borrower shall abide by, or conflict with the articles of association
of
the Guarantor, or any contract or agreement which the Guarantor executes
or any other obligations which the Guarantor shall assume.
|
|
4)
|
The
Guarantor ensures that all financial statements issued by it comply
with
pertinent Chinese laws and regulations and reflect truly and justly
the
financial situation of the Guarantor, and all documents and materials
involved in the Contract are true, effective, complete, exact and
free of
camouflage.
|
|
5)
|
The
Guarantor does not conceal any litigations, arbitrations, administrative
proceedings, property preservation measures or enforcement procedures
which have occurred or will occur and will or may affect its execution
or
performance of the Contract or may cause material adverse impact
upon its
operation or finance, or other events which may cause material adverse
impacts.
|
90
|
8.
|
Within
the guarantee term the Guarantor further makes undertakings to the
Lender
as follows:
|
|
6)
|
to
make operation by law, cooperate actively with the Lender in supervising
and inspecting its operation and, at the requirements of the Lender,
in
time provide financial statements and other relevant materials of
the
Lender;
|
|
7)
|
not
to, without written consent of the Lender, alter materially its articles
of association and business scope, or sell, lease, transfer or dispose
in
other ways all or large part of its assets, or at will change its
management or operation system and conduct other acts which may affect
the
rights and interests of the Lender, so that it is sufficient to cause
material adverse impacts upon its financial situation or capability
of
performance of its obligations hereunder.
|
|
8)
|
to
ensure the level of its obligations hereunder will not be less than
its
other obligations free of real right guarantee, and, presently and
in
future, not to conclude any contract or agreement to which its guarantee
obligations hereunder shall be subject.
|
|
9)
|
to
notify the Lender in writing within three days in case the Guarantor
is
aware of the facts which have made, or may make, material adverse
impacts
upon its finance or capability in performing its obligations hereunder.
|
|
10)
|
to
notify the Lender in writing ten days in case of alteration of legal
representative, authorized representative, correspondence address,
name of
the enterprise or material changes in finance and human resources.
|
|
11)
|
to
make payment all sums due in time and perform its obligations hereunder.
|
|
9.
|
In
case of conflicts of the Contract in force with pertinent laws,
regulations and decrees promulgated by the State, the Parties shall
negotiate a supplementary contract under the precondition to ensure
the
safety and benefit of the Loan of the Lender.
|
|
10.
|
The
Contract shall become effective after the Parties stamp official
seals and
the legal representatives or authorized representatives sign or seal
respectively and be terminated when the principal, interests and
expenses
of the Loan owed by the Borrower hereunder have been repaid; nevertheless,
|
|
12)
|
the
Contract shall be in force on the date which the master contract
is
concluded, if the Contract is made prior to the master contract;
|
|
13)
|
unless
otherwise stipulated by the Parties hereto, the Contract shall be
terminated with an extension period of six months as of the date
of early
repayment, if the Borrower repays all of the Loan in advance. If
the
Borrower does not repay the Loan in full amount in advance, the Guarantor
shall still assume guarantee liability for outstanding debt.
|
|
11.
|
The
Contract shall be applied to the laws of the People’s Republic of China.
Any disputes relating to the Contract shall be subject to the jurisdiction
of the People’s Court at the place where the main office of the Lender is
located.
|
|
12.
|
The
original of the Contract shall be in two copies, one of which shall
be
kept by either party hereto; the duplicates hereof shall be kept
for
reference.
|
When
executing the Contract, the Parties hereto have no objection to any of the
terms
and conditions of the Contract and have understood exactly and correctly the
legal meanings of relevant rights, obligations and liabilities of the Parties
hereunder.
91
The
Guarantor (seal): Tianjin
Sheng Da Steel Mill Co.,Ltd.
Legal
representative or authorized representative (signature or seal): Xx
Xxxxxxxx
Opening
bank and accounts: Agricultural Bank of China Tianjin Daqiuzhuang Sub-branch,
0069874078254
The
Lender (seal): Shanghai
Pudong Development Bank Tianjin Branch
Legal
representative or authorized representative (signature or seal): Xx
Xxxxxxxx
Date
of
conclusion: November 14, 2005
92
16
Shanghai
Pudong Development Bank
Short-term
Loan Contract
93
Short-term
Loan Contract
No.
7707200528005401
Borrower:
Tianjin Daqiuzhuang Metal Sheet Co., Ltd.
Legal
address:
Correspondence
address:
Lender:
Shanghai Pudong Development Bank Tianjin Branch
Add.:
Whereas
the Borrower applies to the Lender for short-term loan, the Contract is hereby
made through negotiation in the principle of equality in accordance with
pertinent laws, decrees and regulations of the People’s Republic of China.
Article
1
Loan
|
1-7
|
The
currency of the Loan hereunder is RMB,
to the maximum extent of Twenty
million yuan
only.
|
|
1-8
|
The
term of the Loan hereunder shall be from July
18, 2005
to
July
17, 2006.
|
|
1-9
|
The
Loan hereunder may not be used for any purposes other than short-term
turnover. The effective evidence of the principal and interests of
the
Loan applied by the Borrower shall be subject to the accounting vouchers
issued by the Lender according to the rules of practice.
|
Article
2
Interest Rate and Interest Mode
2-1
The
interest rate of the Loan hereunder shall be:
1)
15%
floating upward the benchmark lending rate publicized by the People’s Bank of
China in corresponding period and at the same level, namely, 0.53475% per month,
in case of RMB loan;
2)
__% of
annual rate [floating on basis of ____ month(s)], in case of foreign exchange
loan.
If
the
benchmark lending rate of the Loan hereunder is adjusted by the People’s Bank of
China within the term of the Contract, the interest hereof shall be calculated
at available interest rate, which shall be fixed according to the adjusted
benchmark rate and the floating rate stipulated herein from the next quarter
of
the date when the People’s Bank of China publicizes the adjusted benchmark
rate.
2-2
Unless otherwise stipulated herein or by the Parties, the loan interest
hereunder shall be calculated according to actual sum drawn and days occupied
from the date of drawing on the basis of 360 days a year.
2-3
The
interest payment date of the Loan hereunder shall be the 20th
day of
the third month in each quarter of a calendar year. In case of foreign exchange
loan, the interest settlement day includes the final repayment date of the
Loan
hereunder. The Borrower shall pay the interests due to the Lender on the
interest payment date, and hereby empower the Lender to deduct the interests
due
payable directly from the deposit account of the Borrower at the Lender.
94
Article
3
Drawing and Repayment
3-1
The
Lender shall have no obligation to offer the Loan hereunder, until the following
preconditions are satisfied:
1)
at the
time of drawing, the Borrower has completed the Loan Voucher and delivered
relevant documents and materials at the requirements of the Lender;
2)
the
Borrower has handled relevant government permit, allowance and registration
as
well as other legal procedures relating to the Loan hereunder, e.g., the
procedure for registration of foreign exchange loan; the Borrower shall also
complete the procedure for notarization of the Contract, if required by the
Lender;
3)
the
Borrower has completed such legal procedures as notarization and/or registration
at the requirements of the Lender, if the Loan hereunder is of guaranteed loan,
and the Borrower shall ensure the guarantee to be valid constantly;
4)
there
is not any breaches of agreement as mentioned in Article 7 hereof.
3-2
1)
The
Borrower shall
a.
draw
the Loan by installment according to the following drawing plan, but the
Borrower shall handle the drawing procedure with the Lender three bank’s
business days in advance of each drawing day:
|
the
day
of drawing by installment<?xml:namespace prefix = o ns =
"urn:schemas-microsoft-com:office:office" />
|
sum
|
|
on
the
__ day of ____
|
(say)
_____________ in _____ (currency)
|
|
on
the
__ day of ____
|
(say)
_____________ in _____ (currency)
|
|
on
the
__ day of ____
|
(say)
_____________ in _____ (currency)
|
|
on
the
__ day of ____
|
(say)
_____________ in _____ (currency)
|
|
on
the
__ day of ____
|
(say)
_____________ in _____ (currency)
|
b.
go
through the procedures for drawing on a lump-sum basis with the Lender three
bank’s business days in advance as of the date when the preconditions stipulated
herein have been satisfied.
2)
The
Lender shall grant the Loan in time after the Borrower satisfies the
preconditions stipulated herein and completes the procedures for drawing
according to the aforesaid clause.
3-3
The
Lender shall have the right to cancel the sum which is not drawn by the Borrower
according to the aforesaid clause. The Borrower has no right to make another
drawing, except with consent of the Lender.
3-4
The
Borrower shall repay on time the Loan hereunder in full amount to the Lender
on
the maturity date and hereby empower the Lender to make deduction directly
from
the deposit accounts of the Borrower at the Lender.
3-5
The
Borrower shall obtain the prior consent of the Lender if it intends to repay
the
Loan in advance. The Borrower shall make repayment of the principal and
interests according to the time limit as described herein if the consent of
the
Lender is absent.
95
Article
4
Statements and Guarantees
The
Borrower hereby makes following statements and guarantees to the Lender. The
statements and guarantees shall be in force after signed and be effective and
valid within the term of the Contract.
4-1
The
Borrower is the enterprise (institution) as legal person registered in
accordance with Chinese laws. The Borrower owns sufficient rights to all of
its
assets, has full capability for civil conduct and assumes civil liability
independently.
4-2
The
Borrower has authorized the representative to execute the Contract. All terms
and conditions of the Contract reflect true meaning of the Borrower and have
legal binding upon the Borrower.
4-3
Execution and performance of the Contract by the Borrower will not violate
the
laws, regulations, decrees, judgments, rulings and orders which the Borrower
shall abide by, or conflict with the articles of association of the Borrower,
or
any contract or agreement which the Borrower executes or any other obligations
which the Borrower shall assume.
4-4
The
Borrower shall at the requirements of the Lender provide true information
concerning relevant operation and financial situation of the Borrower. The
Borrower ensures that all financial statements issued by it comply with
pertinent Chinese laws and regulations and reflect truly and justly the
financial situation of the Borrower, and all documents and materials involved
in
the Contract are true, effective, complete, exact and free of camouflage.
4-5
The
Borrower does not conceal any litigations, arbitrations, administrative
proceedings, property preservation measures or enforcement procedures which
have
occurred or will occur and will or may affect its execution or performance
of
the Contract or may cause material adverse impact upon its operation or finance,
or other events which may cause material adverse impacts.
Article
5
Stipulations
Within
the term of the Loan hereunder the Parties make the following stipulations:
5-1
The
Lender may inspect and supervise at any time utilization of the Loan in any
way.
The Borrower shall at the requirements of the Lender provide periodically
relevant financial statements and other materials. The Borrower ensures to
operate by laws and utilize the Loan according to Article 1.3 hereof, to
cooperate actively with the Lender in supervising and inspecting the utilization
of the Loan and the operation of the Borrower and to provide in time monthly
and
yearly financial reports and other relevant materials required by the Lender.
5-2
The
Borrower ensures that, except with preservation measures of collateralized
loan
approved by the Lender in writing, it will not make contract, operating lease,
joint management, joint stock reconstruction, merger, joint venture
(cooperation), division, establishment of branches, transfer of property rights,
capital reduction, operation stoppage, dissolution, application for bankruptcy
and other conducts which will affect the rights and interests of the Lender.
5-3
The
Borrower ensures that, except with written consent of the Lender, it will not
alter its articles of association and business scope materially, or sell, lease,
transfer or dispose in other ways all or large part of its assets, or at will
provide a third party with guarantee which will be sufficient to cause material
adverse impacts upon its financial situation or capability of performance of
its
obligations hereunder.
96
5-4
The
Borrower ensures not to repay other loans first in violation of normal repayment
order, and not to execute presently or in future any contract or agreement
to
which the Loan hereunder will be subject.
5-5
The
Borrower shall repay and pay the principal and interests of the Loan hereunder
in the same currency. In case the guarantor makes repayment in other currencies,
the Borrower shall ensure that it will, at the Lender’s instructions, convert
the sum from the guarantor into the currency of the Loan hereunder via
transaction, swap, conversion or sale of foreign exchange to repay the
outstanding principal and interests hereunder; all costs and expenses incurred
therefrom shall be borne by the Borrower.
5-6
The
Borrower ensures to provide in time another guarantee which will be accepted
by
the Lender in case of occurrence or contingent occurrence of events which are
sufficient to cause material adverse impact upon the guarantor’s financial
situation or its capability of performance of guarantee obligation.
5-7
The
Borrower ensures to notify in time the Lender as follows:
1)
to
notify the Lender in writing within three days in case the Borrower is aware
of
the breaches as mentioned in Article 7 hereof or the events which constitute
breach;
2)
to
notify the Lender in writing within three days as of the date of material
adverse events as mentioned in Article 4.5 hereof;
3)
to
notify the Lender in writing ten days in case of alteration of legal
representative, authorized representative, correspondence address, name of
the
enterprise or material changes in finance and human resources.
5-8
The
Lender shall have the right to make disposal according to Article 8.1 hereof
in
case the Borrower has certain events as mentioned in Article 4.5 hereof, which
will be sufficient to affect the Borrower to repay the debt hereunder.
Article
6
Guarantee of Creditor’s Rights
6-1
The
guarantor will provide guarantee in favor of the Borrower to the Lender
concerning the principal and interests of the Loan hereunder, liquidated damages
and costs incurred by the Lender for realizing the creditor’s right (the
guarantee contract will be made otherwise):
1)
Tianjin
Sheng Da Steel Mill Co.,Ltd.
(the
guarantor) provides guarantee, the Guarantee Contract No.: 7707200528005401;
2)
__________________
(the
mortgager) provides a mortgage with________________ (guaranty), the Mortgage
Contract No.: ________________;
3)
__________________
(the
pawner) provides a pawn with________________ (pledge), the Pawn Contract No.:
________________.
97
Article
7
Breach
7-1
Any
of the following events shall constitute breach of the Contract by the Borrower:
1)
The
Borrower fails to repay or/and pay on schedule all or part of principal and
interests due payable under the Contract and other relevant expenses;
2)
The
Borrower fails to perform or acts against the statements and guarantees as
stipulated in Article 4 hereof, or such statements and guarantees are untrue,
inexact or incomplete;
3)
The
Borrower has been in breach of the stipulations in Article 5 hereof;
4)
The
Borrower violates any other loan contracts and agreements it makes, which cause
its debts under such contracts and agreements is declared due in advance; or
the
Borrower fails to repay the debts which are due payable under other loan
contracts and agreements it makes;
5)
The
investors of the Borrower withdraw capitals, transfer assets or shareholdings
at
will;
6)
The
Borrower fails to in time provide or add, at the requirements of the Lender,
another guarantee which will be accepted by the Lender when the guarantor (or
guaranty or pawn) has lost or will lost corresponding guarantee capability
with
the Loan hereunder or the guarantor acts against the guarantee documents it
makes; or
7)
The
Borrower violates other terms and conditions of the Contract (except for this
clause).
7-2
It
will constitute a breach if the Lender fails to grant the Loan to the Borrower
according to Article 3.2.2 hereof, except for breaches by the Borrower as
mentioned in Article 7.1 hereof.
Article
8
Breach Disposal
8-1
In
case of one or several breaches as mentioned in Article 7 hereof, the Lender
may
take one or several measures according to the fact:
1)
to
declare the principal of the Loan hereunder is due in advance, to settle all
outstanding interests and to exercise recourse in any way against the Borrower
or the guarantor;
2)
to
collect penalty interests at additional 50% of the lending interest rate on
the
overdue day and charge compound interests, in case of overdue payment of RMB
loan; to collect penalty interests at additional 100% of the lending interest
rate on the appropriation day and charge compound interests, in case of
appropriation of RMB loan; to collect penalty interests at 20% floating upward
the original interest rate and charge compound interests, in case of overdue
payment and appropriation of foreign exchange loan;
3)
to
make deduction from all or part of deposit accounts of the Borrower at the
Lender and other branches in the system of the head office of the Lender;
4)
to
cancel the credit line unused by the Borrower;
5)
to
require the Borrower to provide other guarantees accepted by the Lender;
6)
to
take other necessary measures according to laws.
In
such
case, the Borrower agrees to waive the right of defence without conditions
and
shall compensate the Lender for all losses due to such breach.
8-2
In
case of breach, the Borrower shall be accountable for relevant costs and
expenses (including attorney fee, litigation cost and auction fee, etc.)
incurred by the Lender for realizing the creditor’s right.
8-3
Where
the Lender has one of breaches as mentioned in Article 7.2 hereof, the Lender
shall be accountable for material losses of the Borrower arising from obtaining
substitutable loan in financial market, namely, the balance between the
interests of substitutable loan from the financial market and those of the
Loan
from the Lender; besides, the Lender needs not to assume any other liability.
98
Article
9
Miscellaneous
9-1
In
case of conflicts of the Contract in force with pertinent laws, regulations
and
decrees promulgated by the State, the Parties shall negotiate a supplementary
contract under the precondition to ensure the safety and benefit of the Loan
of
the Lender. The Lender reserves the right to accelerate maturity of the Loan
and
exercise immediately recourse.
9-2
The
Contract shall be applied to the laws of the People’s Republic of China. Any
disputes relating to the Contract shall be subject to the jurisdiction of the
People’s Court at the place where the main office of the Lender is located.
9-3
The
Contract shall become effective after the Parties stamp official seals and
the
legal representatives or authorized representatives sign or seal respectively
and be terminated when the principal, interests and expenses of the Loan
hereunder have been repaid.
9-4
The
loan application, loan voucher, corresponding guarantee contract and relevant
documents and materials provided by the Borrower shall be inseparable part
of
the Contract and have equal legal force with the Contract.
9-5
The
original of the Contract shall be in two copies, one of which shall be kept
by
either party hereto; the duplicates hereof shall be kept for reference.
Signature:
When
executing the Contract, the Parties hereto have no objection to any of the
terms
and conditions of the Contract and have understood exactly and correctly the
legal meanings of relevant rights, obligations and liabilities of the Parties
hereunder.
The
Borrower (seal): Tianjin
Daqiuzhuang Metal Sheet Co., Ltd.
Legal
representative or authorized representative (signature or seal): Xx
Xxxxxxxx
Opening
bank and accounts: the Bank of China Jinghai Sub-branch,
07546008093001
The
Lender (seal): Shanghai
Pudong Development Bank Tianjin Branch
Legal
representative or authorized representative (signature or seal): Xx
Xxxxxxxx
Date
of
conclusion: July 18, 2005
99
Shanghai
Pudong Development Bank
Guarantee
Contract for Short-term Loan
100
Shanghai
Pudong Development Bank
Guarantee
Contract for Short-term Loan
No.
7707200528005401
Guarantor:
Tianjin Sheng Da Steel Mill Co.,Ltd.
Legal
address:
Correspondence
address:
Lender:
Shanghai Pudong Development Bank Tianjin Branch
Add.:
Whereas
the Loan Contract (No. 7707200528005401) (hereinafter referred to as the “Loan
Contract”) is concluded on July 18, 2005 by and between Tianjin
Daqiuzhuang Metal Sheet Co., Ltd.
(hereinafter referred to as the “Borrower”) and the Lender, this Contract is
hereby entered into through negotiation by the Guarantor and the Lender on
the
basis of equality in accordance with pertinent laws and regulations of the
People’s Republic of China for the purpose of ensuring realization of the
creditor’s right of the Lender. This Contract shall be as one of the
preconditions for the Borrower drawing the Loan under the Loan Contract.
|
13.
|
The
primary creditor’s right guaranteed hereunder is the principle of the Loan
covering twenty
million yuan only,
which is granted by the Lender to the Borrower according to the Loan
Contract. The Guarantor hereby acknowledges that effective evidences
proving the debt owed by the Borrower shall be subject to the accounting
vouchers issued by the Lender according to the rules of practice;
the Loan
shall be mature on July 17, 2006. “Maturity (expiration)” as mentioned in
the Contract includes the circumstance that the Lender declares the
Loan
is due in advance.
|
|
14.
|
The
scope of guarantee hereunder includes the principal, interests, penalty
interests, compound interests, penalty and damages of the Loan under
the
Loan Contract, which are due payable but have not been paid by the
Borrower, and litigation cost, attorney fee and other costs incurred
for
realization of its creditor’s
right.
|
|
15.
|
The
guarantee as mentioned in this Contract shall be of joint and several
liability. The Guarantor shall, together with the Borrower, assume
joint
and several liability for the debts within the guarantee scope. As
for all
debts which are due payable but are not repaid by the Borrower, the
Guarantor shall make repayment to the Lender as the first debtor
without
any condition; meanwhile, the Guarantor hereby empowers the Lender
to make
deduction directly from the deposit accounts of the Guarantor at
the
branches of Shanghai Pudong Development Bank, or from relevant accounts
of
the Guarantor at other financial institutions.
|
|
16.
|
The
guarantee hereunder shall be independent, irrevocable and constant.
The
Guarantee Contract will not be impacted by effectiveness and validity
of
the master contract, nor be null and revocable due to invalidity
or
rescission of the Loan Contract. The liability for guarantee of the
Guarantor will not be varied from consent of the Lender concerning
extension or reconstruction of the Loan, or from alteration of the
Loan
Contract under agreements between the Lender and the Borrower, or
from
change of operation or management system of the Borrower and the
Guarantor. If the Lender and the Borrower negotiate to alter the
Loan
Contract or extend or reconstruct the Loan or the Borrower changes
its own
operation or management system without written consent of the Guarantor,
the Guarantor shall also be accountable for guarantee.
|
101
|
17.
|
The
guarantee term of the Guarantor hereunder shall be two years as of
the
date when the performance period of primary debt for the Debtor expires.
The performance period of primary debt shall be deemed mature if
the Loan
is declared due in advance. In such case, the Lender can require
the
Guarantor to assume the guarantee liability at any time within the
guarantee term, and the Guarantor shall do so. As for the Loan extended
and reconstructed with consent of the Lender, the guarantee term
of the
Guarantor shall be two years as of the date when the new performance
period of primary debt for the Debtor expires.
|
The
Guarantor shall assume guarantee liability within the guarantee term hereunder.
Where the Borrower fails to repay debts according to the Loan Contract, the
Lender may require the Guarantor to assume the guarantee liability within the
guarantee term; where the Lender does not require the Guarantor to do so within
the guarantee term, the Guarantor shall be exempt from guarantee liability.
|
18.
|
If,
during the guarantee term, the Lender transfers the primary creditor’s
right to a third party according to laws, the Guarantor shall continue
to
assume the guarantee liability to the extent of the original scope
of
guarantee. Within the guarantee term the Borrower may not transfer
the
debt, except with written consent of the Lender and the Guarantor.
|
|
19.
|
The
Guarantor hereby makes following statements and guarantees to the
Lender.
The statements and guarantees shall be in force after signed and
be
effective and valid within the term of the Contract.
|
|
14)
|
The
Guarantor is of the enterprise or other economic organization registered
in accordance with Chinese laws. The Guarantor owns sufficient rights
to
all of its assets, has full capability for civil conduct and assumes
civil
liability independently.
|
|
15)
|
The
Guarantor has authorized the representative to execute the Contract.
All
terms and conditions of the Contract reflect true meaning of the
Borrower
and have legal binding upon the
Guarantor.
|
|
16)
|
Execution
and performance of the Contract by the Guarantor will not violate
the
laws, regulations, decrees, judgments, rulings and orders which the
Borrower shall abide by, or conflict with the articles of association
of
the Guarantor, or any contract or agreement which the Guarantor executes
or any other obligations which the Guarantor shall assume.
|
|
17)
|
The
Guarantor ensures that all financial statements issued by it comply
with
pertinent Chinese laws and regulations and reflect truly and justly
the
financial situation of the Guarantor, and all documents and materials
involved in the Contract are true, effective, complete, exact and
free of
camouflage.
|
|
18)
|
The
Guarantor does not conceal any litigations, arbitrations, administrative
proceedings, property preservation measures or enforcement procedures
which have occurred or will occur and will or may affect its execution
or
performance of the Contract or may cause material adverse impact
upon its
operation or finance, or other events which may cause material adverse
impacts.
|
102
|
20.
|
Within
the guarantee term the Guarantor further makes undertakings to the
Lender
as follows:
|
|
19)
|
to
make operation by law, cooperate actively with the Lender in supervising
and inspecting its operation and, at the requirements of the Lender,
in
time provide financial statements and other relevant materials of
the
Lender;
|
|
20)
|
not
to, without written consent of the Lender, alter materially its articles
of association and business scope, or sell, lease, transfer or dispose
in
other ways all or large part of its assets, or at will change its
management or operation system and conduct other acts which may affect
the
rights and interests of the Lender, so that it is sufficient to cause
material adverse impacts upon its financial situation or capability
of
performance of its obligations hereunder.
|
|
21)
|
to
ensure the level of its obligations hereunder will not be less than
its
other obligations free of real right guarantee, and, presently and
in
future, not to conclude any contract or agreement to which its guarantee
obligations hereunder shall be subject.
|
|
22)
|
to
notify the Lender in writing within three days in case the Guarantor
is
aware of the facts which have made, or may make, material adverse
impacts
upon its finance or capability in performing its obligations hereunder.
|
|
23)
|
to
notify the Lender in writing ten days in case of alteration of legal
representative, authorized representative, correspondence address,
name of
the enterprise or material changes in finance and human resources.
|
|
24)
|
to
make payment all sums due in time and perform its obligations hereunder.
|
|
21.
|
In
case of conflicts of the Contract in force with pertinent laws,
regulations and decrees promulgated by the State, the Parties shall
negotiate a supplementary contract under the precondition to ensure
the
safety and benefit of the Loan of the Lender.
|
|
22.
|
The
Contract shall become effective after the Parties stamp official
seals and
the legal representatives or authorized representatives sign or seal
respectively and be terminated when the principal, interests and
expenses
of the Loan owed by the Borrower hereunder have been repaid; nevertheless,
|
|
25)
|
the
Contract shall be in force on the date which the master contract
is
concluded, if the Contract is made prior to the master contract;
|
|
26)
|
unless
otherwise stipulated by the Parties hereto, the Contract shall be
terminated with an extension period of six months as of the date
of early
repayment, if the Borrower repays all of the Loan in advance. If
the
Borrower does not repay the Loan in full amount in advance, the Guarantor
shall still assume guarantee liability for outstanding debt.
|
|
23.
|
The
Contract shall be applied to the laws of the People’s Republic of China.
Any disputes relating to the Contract shall be subject to the jurisdiction
of the People’s Court at the place where the main office of the Lender is
located.
|
|
24.
|
The
original of the Contract shall be in two copies, one of which shall
be
kept by either party hereto; the duplicates hereof shall be kept
for
reference.
|
When
executing the Contract, the Parties hereto have no objection to any of the
terms
and conditions of the Contract and have understood exactly and correctly the
legal meanings of relevant rights, obligations and liabilities of the Parties
hereunder.
103
The
Guarantor (seal): Tianjin
Sheng Da Steel Mill Co.,Ltd.
Legal
representative or authorized representative (signature or seal): Xx
Xxxxxxxx
Opening
bank and accounts: Agricultural Bank of China Tianjin Daqiuzhuang Sub-branch,
0069874078254
The
Lender (seal): Shanghai
Pudong Development Bank Tianjin Branch
Legal
representative or authorized representative (signature or seal): Xx
Xxxxxxxx
Date
of
conclusion: July 18, 2005
104
Contract
for (Short-term) Loan in RMB
No.
JZYJXZ(2005)003-1
The
Borrower: Tianjin Daqiuzhuang Metal Sheet Co., Ltd.
Business
License of Enterprise Legal Person: No. QHJZZ016433
Legal
representative: Xx Xxxxxxxx
Domicile:
Daqiuzhuang, Jinghai, Tianjin
Opening
bank and accounts: Bank of China Tianjin Jinghai Sub-Branch, 00000000000000
Contact
method: 00000000, 13332025839
The
Lender: Bank of China Tianjin Jinghai Sub-Branch
Principal:
Xxxx Xxxxxxx
Domicile:
Xx. 00 Xxxxxxx Xxxx, Xxxxxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxxxx
Contact
method: 00000000
Whereas
the Lender agrees to grant short-term RMB loan to the Borrower, the Contract
is
hereby entered into through equal negotiation.
Article
1
Sum
The
total
sum of the Loan hereunder is (say) nine million yuan only, (yuan) 9,000,000.00.
Article
2
Term
The
term
of the Loan hereunder is 12
months
from the agreed drawing day to the agreed last repayment day. “Drawing day” as
mentioned herein means the commencement date of drawdown period if the time
limit for drawing agreed is a special period.
Article
3
Purpose
The
Loan
hereunder shall be used for following purposes:
|
1)
|
purchase
of raw materials;
|
|
2)
|
___________;
|
|
3)
|
___________.
|
The
Borrower may not change the purpose without written consent of the Lender.
Article
4
Interest Rate and Interests
The
loan
interest rate will be 10%
floating upward 5.58% of the benchmark rate,
which
shall be fixed within the term of the Contract.
The
interests of the Loan shall be calculated from the actual drawing day according
to actual amount drawn and occupation days on the basis of 360 days a year.
The
Borrower shall pay the interests according to the following first
method:
105
|
1)
|
The
Borrower shall pay the interests once every quarter, namely, March
20,
June 20, September 20 and December 20 shall be the interest payment
day.
|
If
the
last repayment day as to the principal of the Loan is not the interest payment
day, the Borrower shall pay off all interests payable on the last repayment
day.
|
2)
|
The
Borrower shall pay the interests once every month, namely, each
20th
day shall be the interest payment day.
|
If
the
last repayment day as to the principal of the Loan is not the interest payment
day, the Borrower shall pay off all interests payable on the last repayment
day.
|
3)
|
The
Borrower shall pay the interests once every month, namely, the
corresponding day of disbursement date shall be the interest payment
day.
|
Article
5
Conditions for Drawing
The
Lender shall have the right to refuse the drawing application of the Borrower
if
the following conditions cannot be satisfied:
|
1)
|
the
written drawing application and relevant documents proving loan purpose
shall be submitted five days in advance;
|
|
2)
|
the
Loan Contract and relevant annexes are in force;
|
|
3)
|
the
Guarantee Contract as described in Article 9 hereof is in force;
|
|
4)
|
the
Borrower has opened accounts of drawing, interest payment, expense
payment
and loan repayment according to the requirements of the Lender;
|
|
5)
|
the
Borrower has submitted the Lender the resolutions and the power of
attorney which prove that the board of directors or other authority
approve execution and performance of the Contract;
|
|
6)
|
the
Borrower has submitted the Lender the list of persons who has the
power to
execute the Contract and documents and bills relating to the Contract,
as
well as their specimen signatures;
|
|
7)
|
none
of breaches described in Article 11 hereof occurs; or
|
|
8)
|
other
drawing conditions stipulated by laws and between the Parties have
been
satisfied.
|
Article
6
Drawing Period
The
Borrower shall draw the Loan according to the following first method:
|
1)
|
The
Borrower shall draw the Loan on November 14, 2005 on once occasion;
|
|
2)
|
The
Borrower shall draw the sum stipulated herein within ____ day(s)
as of the
__ day of ________.
|
The
Lender shall have the right to refuse to disburse any amount which is not drawn
beyond the said time limit. If the Lender agrees to make disbursement, it shall
have the right to charge commitment fee against such delayed amount according
to
the interest countable of such amount; otherwise, the Lender shall have the
right to charge commitment fee according to the interest countable.
106
Article
7
Procedures for Drawing
Before
drawing, the Borrower shall at the requirements of the Lender submit the drawing
application and go through other drawing procedures.
Article
8
Repayment
The
Borrower must repay the Loan hereunder strictly subject to the following
repayment plan:
|
Times
|
Dates
|
Sum
|
Times
|
Dates
|
Sum
|
|
1
|
November
3, 2006
|
9,000,000
|
|||
If
the
Borrower intends to adjust any part of the said repayment plan, it must submit
a
written application 5 days prior to corresponding maturity date. Unless
otherwise stipulated, any alteration to the repayment plan shall be confirmed
by
the Parties in writing.
In
case
of several loan contracts which are due between the Parties, the Lender shall
have the right to decide on the order of the contract to be performed by the
Borrower.
The
Borrower may make early repayment, provided that it shall notify the Lender
20
days in advance. The Lender shall have the right to charge compensation fee
against the interests receivable of such amount repaid early. The amount of
early repayment shall be used first to repay the Loan which is due finally,
namely, repayment shall be made in a reverse order. The Borrower may not require
for further drawing of the amount to be repaid early with approval of the
Lender.
Article
9
Guarantee
The
Loan
hereunder shall be guaranteed according to the following second method:
|
1)
|
_____
provides repayment guarantee with several and joint liability and
the
Guarantee Contract shall be made, No. ___________________;
|
|
2)
|
Tianjin
Daqiuzhuang Metal Sheet Co., Ltd. provides mortgage and the Maximum
Deposit Mortgage Contract, No. JZYJXZ(2005) 003, has been concluded;
|
|
3)
|
_____
provides pawn guarantee and the Pawn Contract shall be made, No.
___________________.
|
The
Lender shall have the right to require the Borrower to provide another guarantor
or new guaranties or pledges to guarantee the Loan hereunder if the guarantor’s
capability of repayment decreases obviously due to deterioration of finance
or
other reasons, or the guarantor’s capability of guaranty weakens or loses due to
depreciation, loss or damage of guaranties or pledges.
107
Article
10 Statements and Guarantees
The
Borrower states as follows:
|
1)
|
the
Borrower has been registered and exists in accordance with laws;
|
|
2)
|
the
Borrower has obtained necessary authorization for executing the Contract;
|
|
3)
|
all
documents, materials, statements and vouchers provided to the Lender
by
the Borrower are exact, true, complete and effective;
|
|
4)
|
the
Borrower does not conceal any of the following circumstances which
have
occurred, are occurent or may affect judgment of its capability of
performance of the Contract:
|
|
a.
|
the
Borrower or its main leaders are involved in significant breach of
violation of laws or are claimed;
|
|
b.
|
breaches
of the Borrower under other Contracts;
|
|
c.
|
debts
and contingent debts borne by the Borrower or mortgage and pawn to
a third
party;
|
|
d.
|
litigations
and arbitrations in dispute; and
|
|
e.
|
other
circumstances which may impact finance and repayment capability of
the
Borrower.
|
The
Borrower undertakes as follows:
|
1)
|
the
Borrower will at the requirements of the Lender submit up-to-date
financial statements on a monthly basis and the audited financial
statements of previous year in the first quarter every year; the
Borrower
will provide from time to time at the requirements of the Lender
documents
and materials, including, but not limited to, reports and statements
on
operation and finance of the Borrower;
|
|
2)
|
if
the Borrower has concluded or will conclude a counterguarantee agreement
or similar agreements with the guarantor hereunder concerning its
guarantee obligation, the agreement will not impact any right of
the
Lender hereunder;
|
|
3)
|
the
Borrower will accept the credit inspection and supervision conducted
by
the Lender and will assist and cooperate sufficiently;
|
|
4)
|
the
Borrower will notify the Lender in advance if it reduces registered
capital, changes property materially or adjusts operation mode (including,
but not limited to, joint venture or cooperation with foreigners;
division, merger, acquisition or being annexed; reconstruction,
establishment or rebuilding of a joint stock company; change of such
operation modes as lease, contract, joint management and custody).
Where
the said conducts will impact the Borrower’s capability of repayment
adversely, the consent of the Lender shall be obtained.
|
|
5)
|
the
Borrower may not dispose its own assets in a way which may decrease
its
capability of repayment. The Borrower shall notify the Lender in
time when
providing guarantee to a third party or mortgage or impawn its own
assets,
and the Borrower shall guarantee that all debts guaranteed may not
be more
than one times more than its net assets.
|
|
6)
|
the
debts from the Lender shall be repaid earlier than its loans offered
by
shareholders of the Borrower, and may not be later than the same
kind of
debt from other creditors;
|
The
Borrower shall obtain the written consent of the Lender before it applies to
other banks for loans or increases other debts.
(this
stipulate shall be as alternative clause mainly applicable to loans applied
by
institutes)
As
for
the real estate development project in which the Borrower uses the Loan, the
quantity of individual housing consumption loans conducted at the Lender shall
be more than total amount of individual housing consumption loans as to such
real estate development project.
(this
stipulate shall be as alternative clause mainly applicable to loans for real
estate development projects )
The
engineering project contractor does not pay any funds in advance for
construction of the real estate project developed by the Borrower. If the
contractor has made advance payment, the Borrower shall submit the Lender the
written documents proving that the contractor surrenders the priority right
on
advance payment of the project.
(this
stipulate shall be as alternative clause mainly applicable to loans for real
estate loans)
108
|
7)
|
the
Borrower undertakes to notify the Lender in time in case of any of
the
following circumstances:
|
|
a.
|
breaches
of the Contract or any other contracts;
|
|
b.
|
alteration
of subordinate relations, or change of senior management, or amendment
of
articles of association and material adjustment of interior organization
organs of the Borrower;
|
|
c.
|
difficulties
in operation and depravation of finance of the Borrower;
|
|
d.
|
other
circumstances which will impact the Borrower’s capability of repayment.
|
|
8)
|
the
Borrower must deposit sufficient funds for payment at least 10 days
in
advance of maturity date of each part of principal and interests.
|
|
9)
|
relevant
settlement business as to the Loan shall be completed at the Lender
or
other branches or offices of the Bank of China, and the settlement
amount
shall satisfy the requirements of the Lender.
|
|
10)
|
the
Borrower may not distribute any dividends or bonus to its shareholders
in
any way if the net profit after-tax in corresponding fiscal year
is zero
or negative, or the profit after tax is insufficient to make up
accumulative losses of previous fiscal year, or profit before tax
is not
used to repay the principal, interests and expenses payable within
the
fiscal year or the profit before tax is insufficient to repay the
principal, interests and expenses payable in following period.
|
Article
11 Breach of Agreement and Disposal
Where
the
Borrower neither makes repayment on schedule nor reaches an agreement with
the
Lender concerning extension, the Lender shall have the right to charge penalty
interest against the overdue amount as of the overdue day according to the
penalty interest rate on overdue loan, until the Borrower repays all of
principals and interests. Where the Borrower fails to use the Loan according
to
the stipulated purpose, the Lender shall have the right to charge penalty
interest against amount misappropriated as of the misappropriation day according
to the penalty interest rate on misappropriation, until the Borrower repays
all
of principals and interests.
The
penalty interest rate on overdue loan shall be 30% floating upwards the loan
interest rate stipulated herein; the penalty interest rate on misappropriation
shall be 50% floating upwards the loan interest rate stipulated herein.
Where
the
Borrower fails to pay interests in full amount on schedule, the Lender shall
have the right to charge compound interest against the amount, of which the
interests are due but not paid, on a quarterly (monthly/quarterly) basis at
the
same penalty interest rate same of the principal of the Loan. Where a loan
is
repaid beyond the time limit and misappropriated, compound interest shall be
charged according to the penalty interest rate on misappropriation. In case
of
normal use of the principal of the Loan, the compound interest shall be charged
according to the penalty interest rate on overdue loan.
109
In
case
of adjustment of the loan interest rate stipulated herein, penalty interests
and
compound interests shall be calculated in periods as of the date of adjustment.
In
case
of any of the following circumstances, the Lender shall have the right to refuse
drawing by the Borrower or cancel the part of the Loan which has not been drawn,
and to declare both principal and interests of the Loan hereunder are due
immediately:
|
1)
|
the
Borrower fails to repay the principal or interests beyond the time
limit;
|
|
2)
|
the
Borrower repays the Loan beyond the time limit or misappropriates
the
Loan;
|
|
3)
|
the
statements made by Borrower in Article 10 are untrue or violate its
other
undertakings;
|
|
4)
|
the
Borrower is in breach of other contracts;
|
|
5)
|
the
guarantor, the mortgager or the pawnor is in breach of the guarantee
contract, which affect the Borrower to perform its obligations hereunder;
|
|
6)
|
the
Borrower stops business or is dissolved, revoked or bankrupt;
|
|
7)
|
the
finance of the Borrower or the guarantor is deteriorated severely;
or
|
|
8)
|
the
Borrower fails to provide new guaranties at the requirements of the
Lender
after the guaranties or pledges are depreciated, ruined, damaged,
sealed
up or frozen.
|
Article
12 Deduction
The
Borrower agrees that the Lender can deduct any amount payable by the Borrower
under the Contract directly from the Borrower’s accounts at branches or offices
of the Bank of China.
Article
13 Taxes
All
taxes
and expenses relating to conclusion and performance of the Contract and dispute
settlement, including, but not limited to, stamp tax, interest withholding
tax,
litigation cost, enforcement fee, attorney fee and notarization fee, shall
be
paid or reimbursed by the Borrower.
Article
14 Setoff, Transfer and Right Reservation
The
Borrower shall pay all amounts payable under the Contract in full amount and
may
not claim for setoff, unless otherwise the Lender consents.
The
Borrower may not transfer its obligations hereunder to a third person without
written consent of the Lender.
Toleration,
extension, preferential treatments given to the Borrower by the Lender or
deferment of exercise of its rights hereunder shall not impact, damage or
restrict the Lender to enjoy all rights and interests according to the Contract,
laws and regulations, may not be deemed as the Lender’s waiver of its rights and
interests hereunder or release of the Borrower from any of its obligations
hereunder.
110
Article
15 Modification and Rescission
The
Contract may be modified, supplemented or rescinded with written consent of
the
Parties. Modification and supplementation of the Contract shall be inseparable
part of the Contract.
Invalidity
of any of the terms and conditions of the Contract shall not impact efficiency
of other terms and conditions hereof.
Article
16 Governing Law, Dispute Settlement and Jurisdiction
The
Contract shall be applied to the laws of the People’s Republic of China.
Any
and
all disputes and dissensions arising from performance of or relating to the
Contract shall be settled through negotiation. Where negotiation fails, the
Parties agree that the following first method shall apply:
|
1)
|
to
bring a lawsuit directly with the People’s Court having jurisdiction;
|
|
2)
|
to
submit to _____ Arbitration Committee for arbitration.
|
Article
17 Annexes
The
following annexes and other annexes confirmed by the Parties shall be
inseparable part of the Contract and have equal force with the Contract:
|
1)
|
Due
bill;
|
|
2)
|
Application
for Drawing;
|
|
3)
|
______;
|
|
4)
|
_______.
|
Article
18 Effectiveness
The
Contract shall become effective with signature and seal by the legal
representatives or authorized signatories of the Parties.
The
Contract shall be in two copies with equal force, one of which shall be kept
by
either party hereto.
Article
19 Special Notice
The
Borrower has negotiated sufficiently with the Lender concerning all terms and
conditions of the Contract.
The
Lender has reminded the Borrower to pay special attention to the terms and
conditions of the Contract concerning to the Parties’ rights and obligations and
to understand comprehensively and exactly. The Lender has explained for
corresponding terms and conditions hereof at the requirements of the Borrower.
The
Parties to the Contract have consistent understanding of the meanings of the
Contract.
111
The
Borrower: Tianjin Daqiuzhuang Metal Sheet Co., Ltd. (official seal)
Tianjin
Daqiuzhuang Metal Sheet Co., Ltd.
Legal
representative (or authorized signatory):
The
Lender: Bank of China Tianjin Jinhai Sub-branch (official seal)
Bank
of
China Tianjin Jinhai Sub-branch
Principal
(or authorized signatory):
Date:
November 4, 2005
112
Maximum
Deposit Mortgage Contract
No.
JZYJXZ(2005)003
The
Mortgager: Tianjin Daqiuzhuang Metal Sheet Co., Ltd.
Business
License of Enterprise Legal Person: No. QHJZZ016433
Legal
representative: Xx Xxxxxxxx
Opening
bank and accounts: Bank of China Tianjin Jinghai Sub-Branch, 07546008093001
Main
office: Daqiuzhuang, Jinghai, Tianjin, 301606
Tel:
00000000000; Fax: 00000000
The
Mortgagee: Bank of China Tianjin Jinghai Sub-Branch
Principal:
Xxxx Xxxxxxx
Main
office: Xx. 00 Xxxxxxx Xxxx, Xxxxxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxxxx, 301600
Tel:
00000000 Fax: 00000000
The
Mortgager is willing to mortgage the creditor’s right of the Mortgagee with its
legal disposal right and the properties which are listed in the Guaranty List
attached to the Contract in order to ensure that the obligations of the Debtor
under several master contracts, which have been or will be concluded by and
between the Debtor, Tianjin
Daqiuzhuang Metal Sheet Co., Ltd.,
and the
Mortgagee hereunder, can be fulfilled faithfully. The Contract is hereby entered
into through equal negotiation. Unless otherwise stipulated, the words and
expresses herein shall be subject to the definitions in the master contract.
Article
1
Master Contract
The
master contract for the purpose of the Contract is the Agreement for Credit
Line, No. JZYJXZ
(2005) 003,
concluded on November
4, 2005
by and
between the Mortgagee and the Debtor, as well as single agreements made from
time to time in accordance with the Agreement. The single agreements mean the
Contract for (Short-term) Loan in RMB and the Contract for Loan in Foreign
Exchange which the Debtor concludes with the Mortgagee to use actually the
credit line approved by the Mortgagee, applicable annexes on settlement and
financing which are chosen from the said Agreement for Credit Line, the
Application for Settlement and Financing made by and between the Mortgagee
and
the Debtor at the time of conduction of settlement and financing, any other
written agreements made by the parties as to single credit disbursement, and
due
bills, application letters, correspondences and vouchers on drawing which are
submitted or issued by the Debtor to the Mortgagee and confirmed by the
Mortgagee.
113
The
Guarantor confirms that the credit line granted by the Mortgagee to the Debtor
according to the master contract may be used by the Debtor circularly,
regulatively or on once occasion under the conditions stipulated in the master
contract, for short-term loan in RMB, short-term loan in foreign exchange,
settlement and financing. Settlement and financing business means issuance
of
L/C, import bill advance, shipping guarantee, packing loan, export bill
purchase, acceptance bill discount under usance L/C and issuance of guarantee
letter/stand-by L/C.
Article
2
Scope of Guarantee
The
primary creditor’s right secured under the Contract is all of credit/financing
stipulated in the Agreement for Credit Line, No. JZYJXZ
(2005) 003,
concluded on November
3, 2005
by and
between the Mortgagee and the Debtor, including the balance of the
credit/financing incurred under the Agreement and single agreements as of the
effective day of the Agreement to November 3, 2006. The maximum price of
creditor’s right secured is RMB16
million
at equal
value.
Guarantee
scope under the Contract covers the principal and interests (including legal
interest, agreed interest, compound interest and penalty interest) of creditor’s
right arising from the master contract, penalty, compensations, expenses
incurred for realization of creditor’s right (including, but not limited to,
litigation cost, attorney fee, notarization fee and enforcement fee, etc.),
losses to the Mortgagee due to breach of the Debtor and other amount payable.
Article
3
Guaranty Liability
If,
under
the master contract, the Debtor fails to make repayment to the Mortgagee
according to stipulations on any of normal repayment days or early repayment
days, the Mortgagee shall have the right to convert the guaranties into cash
to
exercise priority of compensation in accordance with the Contract.
The
Mortgagee points out specially that normal repayment day as mentioned herein
is
the interest payment day stipulated in the master contract, principal repayment
day and interest payment day described in the repayment plan, due bill and
application, or the date when the Debtor shall pay any funds to the Mortgagee
according to such stipulations. The early repayment day as mentioned herein
is
the early repayment date applied by the Debtor and agreed by the Mortgagee,
and
the date when the Mortgagee according to the stipulations demands to take back
the principal and interests of financing and/or other funds in advance from
the
Debtor.
Article
4
Settlement Period
The
settlement period of the creditor’s right secured hereunder shall be November 3,
2006 described in Paragraph 1 of Article 2 hereof or another day which can
be
fixed according to the sum of primary creditor’s right subject to applicable
laws (earlier day may apply).
The
Mortgager shall discharge the guarantee liability it assumes under the Contract
with the guaranties as of such day.
114
Article
5
Guaranty
The
evaluated value of the guaranties is RMB38.437 million. Details may refer to
the
Guaranty List and Evaluation Report.
In
case
of properties in the guaranties, of which circulation is prohibited by laws,
the
Mortgager shall have the obligation to indicate in the Guaranty List.
If,
before the creditor’s right secured is fulfilled completely, the book value of
the said guaranties is reduced for any reason, so that they are insufficient
to
guarantee all of the creditor’s right secured, the Mortgagee shall have the
right to require the Mortgager to restore the value of the guaranties or provide
other guarantees accepted by the Mortgagee at equal value with those
reduced.
If
the
mortgage is made with objects of which circulation is prohibited, the Mortgager
shall assist with the Mortgagee in going through procedures for examination,
approval and registration in accordance with pertinent laws, to ensure the
right
of mortgage is valid.
In
case
of loss, or obvious reduction of value, of the guaranties due to natural
disaster, accidents, infringement and other reasons, the Mortgager shall
promptly take measures to avoid further losses and immediately notify the
Mortgagee in writing.
Article
6
Holding and Management of Guaranties
The
guaranties hereunder shall be held by the Mortgager, but all originals of
documents of title as to the guaranties shall be submitted to the Mortgagee.
The
Mortgagee agrees to at any time accept and cooperate in inspection of the
guaranties by the Mortgagee and the institutes or individuals it appointed.
The
Mortgager shall safeguard, maintain and protect the guaranties properly and
take
effective measures to ensure safety and completion of the guaranties. In case
of
necessary reparation, the Mortgager shall conduct in time and be responsible
for
corresponding costs and expenses.
The
Mortgager may not transfer, lease, lend, contribute with material objects,
reconstruct, rebuild or dispose in any other ways the guaranties, partly or
wholly, without written consent of the Mortgagee. Otherwise, the Mortgagee
shall
have the right to declare the said conducts by the Mortgager null and take
relives stipulated in Article 12 hereof.
Earnings
from transfer of the guaranties with consent of the Mortgagee shall be applied
to repayment of the debt in advance, or to be drawn by the third party
designated by the Mortgagee.
Article
7
Insurance of Guaranties
The
Mortgager shall insure the guaranties at the insurer confirmed through
negotiation between the Mortgager and the Mortgagee according to the agreed
type
and period, covering at least the book value of the guaranties. The contents
of
the policy shall comply with the requirements of the Mortgagee and may not
embody any limited conditions which may impact the rights and interests of
the
Mortgagee.
The
Mortgager may not suspend, terminate, modify or alter the policy with any reason
until the principal, interests and expenses of the credit/financing secured
under the master contract have been repaid completely, and the Mortgager shall
take all reasonable and necessary measures to ensure the insurance stipulated
herein valid continually. In case the Mortgager fails to pay insurance or acts
against the said stipulations, the Mortgagee shall have the right to insure
or
reinsure the guaranties. In such case, the insurance premium shall be borne
by
the Mortgager and counted into the balance of the creditor’s right together with
the contingent losses to the Mortgagee therefrom.
The
Mortgager shall, within 10 days as of the date of the Contract, deliver the
original of the policy concerning the guaranties to the Mortgagee and transfer
the rights and interests hereof to the Mortgagee. The original of the policy
shall be kept by the Mortgagee until the principal and interests of the
credit/financing under the master contract have been repaid completely.
If
there
are machine and equipments in the guaranties which have not been installed
completely, the Mortgager shall, after completion of such installation, go
through insurance procedures according to this clause, deliver the original
of
the policy to, and transfer the rights and interests hereof to, the Mortgagee.
115
Article
8
Registration of Mortgage
The
Mortgager shall, within 10 days as of the date of the Contract, go through
the
procedures for registration of mortgage with relevant authority in accordance
with pertinent provisions of the Guarantee Law.
After
completing the procedures for registration, the Mortgager shall submit the
copy
of relevant documents on registration to the Mortgagee.
If
there
are machine and equipments in the guaranties which have not been installed
completely, the Mortgager shall, within 10 days after completion of installation
of such machine or equipments, go through the procedures for registration of
mortgage with relevant authority.
Article
9
Realization of the Right of Mortgage
If
the
Debtor fails to repay the debts due (including those the Mortgagee declares
due
in advance according to the master contract) according to the master contract,
the Mortgager shall have the right to require selling or converting the
guaranties to repay the creditor’s right secured. The price of sale or
conversion shall be fixed through negotiation; where negotiation fails, the
Mortgagee shall have the right to apply to the People’s Court for auction or
compulsory sale.
Earnings
from disposal of the guaranties may not be set off the debts under the master
contract until the expenses arising from disposal of the guaranties and the
money which the Mortgager shall pay or repay to the Mortgagee according to
the
Contract have been paid.
When
the
Mortgagee requires to realize the right of mortgage, the Mortgager may not
refuse with any reason, including, but not limited to, the Mortgagee’s failure
to notify the Mortgager of the fact of breaches by the Debtor, disputes between
the Mortgagee and the Debtor relating to performance of the master contract,
toleration, extension or exemption granted to the Debtor by the Mortgagee under
the master contract or the Mortgagee’s waiver of any of its rights under the
master contract, the Mortgagee’s failure to exercise other real right of
security relating to the master contract, the Mortgagee’s failure to disposal
first of relevant documents and goods under the master contract, the Mortgagee’s
failure to exercise other rights or relief under the master contract, and
modification of the master contract by the Mortgagee and the Debtor.
116
Article
10 Relation Between the Mortgage Contract and the Master Contract
The
guarantee under the Mortgage Contract shall be independent. In any case the
Mortgage Contract shall not be invalid or revocable due to invalidity or
revocability of the master contract secured. The right of mortgage shall be
valid and effective, although the master contract is rescinded by the parties
concerned or is due in advance. The Mortgager shall assume guarantee liability
to the existing debts and the losses to the Mortgagee due to reason attributable
to the Debtor.
The
parties to the master contract may negotiate to alter the contents therein
and
to modify the L/C or the guarantee letter/stand-by L/C, which are issued
according to the master contract, without written consent of the Mortgager.
However, the Mortgager shall assume guarantee liability for the altered master
contract and the debts of the Debtor to the Mortgager arising from modified
L/C
or the guarantee letter/stand-by L/C.
The
written consents of the Mortgager need not be obtained when Mortgagee agrees,
according to the master contract, the Debtor to regular or use circularly the
credit line, or entrusts all or part of its rights and obligations under the
master contract to other branches of the Bank of China or assigns its creditor’s
right under the master contract to a third party. However, the guarantee
liability of the Mortgager may not be reduced or exempted thus. The Mortgager
shall assist with the Mortgagee and such a third party in completing the
procedures for mortgage modification or registration required by law.
Article
11 Statements and Guarantees
The
Mortgager states and guarantees as follows:
|
1)
|
the
Mortgager has complete capability of civil conducts and enjoys legal
title
or disposal right to the guaranties;
|
|
2)
|
the
Mortgager guarantees that there is no co-owner of the guaranties,
or the
Mortgager has obtained the written permission of all co-owners, if
any.
The Mortgager undertakes that such written permission will be submitted
to
the Mortgagee before executing the Contract;
|
|
3)
|
the
Mortgager is completely aware of the contents herein. The Mortgager
is
willing to execute and perform the Contract, which are its true meaning.
The legal representative or authorized signatory who signs the Contract
on
behalf of the Mortgager are empowered legally and validly by the
Company.
Execution and performance of the Contract will not violate any other
contracts, agreements or legal documents which are binding upon the
Mortgager. The Mortgager has obtained, or will obtain, all of necessary
approval, permission, records or registration for establishment of
the
mortgage;
|
|
4)
|
all
documents and materials provided to the Mortgagee by the Mortgager
are
true, exact, complete and valid;
|
|
5)
|
the
Mortgager does not conceal any right of mortgage, right of pledge,
lien or
other rights and interests secured which have been established on
the
guaranties by the end of the date of the Contract;
|
|
6)
|
if
the Mortgager dissolves, is revoked or (is applied) applies for
bankruptcy, or facts which may affect the Mortgager’s finance occur, or
new significant debts are made on the guaranties or the guaranties
are
sealed up, the Mortgager shall, as soon as possible, notify the Mortgagee
without any delay;
|
117
|
7)
|
if
the guaranties are projects in construction, the Mortgager guarantees
that
the guaranties are free of priority of compensation of any third
party. In
case of such priority of compensation, the Mortgager ensures to make
such
a third party issue a written statement proving waiver of the priority
of
compensation, and the written statement will be submitted to the
Mortgagee.
|
Article
12 Defect in Conclusion and Breach of Agreement
If,
after
conclusion of the Contract, the right of mortgage cannot be in force because
the
Mortgager refuses to go through or delay in mortgage registration or other
reasons attributable to the Mortgager, it shall constitute defect in conclusion.
If the Mortgager is the Debtor, the Mortgager shall be responsible for
compensation to the Mortgagee to the extent of mortgage; if the Mortgager is
a
third person, the Mortgager shall assume irrevocable joint and several liability
the debts to the Mortgagee under the master contract.
Any
of
the following circumstances shall constitute breach of the Contract by the
Mortgager:
|
1)
|
transferring,
leasing, lending, contributing in material objects, reconstructing,
rebuilding or disposing in any other way the guaranties, partly or
wholly,
in violation of Article 5 hereof;
|
|
2)
|
disturbing
in any way (act or omission) the Mortgagee to dispose the guaranties
according to relevant stipulations herein;
|
|
3)
|
refusing
or delaying cooperation with the Mortgagee in renewing mortgage
registration, so that the mortgage is null and invalid before the
primary
debt has been repaid completely;
|
|
4)
|
loss
or damage of the guaranties kept by the Mortgager, and the insurer
refuses
compensation due to non-fulfillment of insurance or the guaranties
or
other reasons;
|
|
5)
|
making
untrue statements herein or acting against the guarantees it makes
herein;
or
|
|
6)
|
acting
against other stipulations herein concerning the rights and obligations
of
the parties concerned.
|
In
case
of breach by the Mortgager, the Mortgagee shall have the right to take one
or
several measures as follows:
|
1)
|
reducing
or canceling the credit line granted to the Mortgager by the Mortgagee;
|
|
2)
|
declaring
the loan contract, credit loan and other contracts by and between
the
Mortgager and the Mortgagee due in advance;
|
|
3)
|
requiring
the Mortgager to compensate the Mortgagee for all direct or indirect
losses (including, but not limited to, losses of the principal, interests
and expenses of the credit/financing under master contract) due to
breach
of the Mortgager; or
|
|
4)
|
setting
off the funds in the Mortgager’s accounts at the Mortgagee or other
offices of the Bank of China or any creditor’s right or mortgage-backed
creditor’s right of the Mortgagee or other offices of the Bank of China.
|
118
Article
13 Expenses
The
Mortgager shall be responsible for all costs and expenses relating to the
Contract or the guaranties hereunder, including, but not limited to, costs
of
registration, notarization, insurance, transportation, storage, safekeeping,
evaluation, reparation, maintenance and disposal under the Contract.
Article
14 Setoff and Right Reservation
Under
the
Contract the Mortgager may not claim for setoff of any funds to be paid to
the
Mortgagee, except with consent of the Mortgagee.
Toleration,
extension, preferential treatments given to the Mortgager by the Mortgagee
or
deferment of exercise of its rights hereunder shall not impact, damage or
restrict the Mortgagee to enjoy all rights and interests according to the
Contract, laws and regulations, may not be deemed as the Mortgagee’s waiver of
its rights and interests hereunder or release of the Mortgager from any of
its
obligations hereunder.
Article
15 Modification, Rescission and Interpretation
The
Contract may be modified, supplemented or rescinded with written consent of
the
Parties. Modification and supplementation of the Contract shall be inseparable
part of the Contract.
Any
matters unstipulated herein shall be interpreted or handled subject to relevant
terms and conditions of the master contract secured by the Contract.
Invalidity
of any of the terms and conditions of the Contract shall not impact efficiency
of other terms and conditions hereof.
Article
16 Governing Law, Dispute Settlement and Jurisdiction
The
Contract shall be applied to the laws of the People’s Republic of China.
Any
and
all disputes and dissensions arising from performance of or relating to the
Contract shall be settled through negotiation. Where negotiation fails, the
Parties agree that the following first method shall apply:
|
3)
|
to
bring a lawsuit directly with the People’s Court having jurisdiction,
which is stipulated in the master contract;
|
|
4)
|
to
apply for arbitration in accordance with the stipulations in the
master
contract.
|
Article
17 Annexes
The
following first, second, third, fourth and fifth documents are of annex to
the
Contract:
|
1)
|
the
Guaranty List;
|
|
2)
|
the
Certification of Title of Guaranty;
|
|
3)
|
the
original of policy of guaranty;
|
|
4)
|
the
certification of guaranty registration;
|
|
5)
|
the
Evaluation Report on Guranty;
|
|
6)
|
other
materials deemed necessary:
|
119
The
annexes to the Contract shall be inseparable part of the Contract.
Article
18 Effectiveness
The
Parties choose the following first circumstance:
|
1)
|
The
Contract shall become effective after the following conditions are
satisfied:
|
|
a.
|
the
legal representatives or authorized signatories of the Parties hereto
sign
and stamp official seals;
|
|
b.
|
the
Mortgager completes the procedures for mortgage registration.
|
|
2)
|
The
Contract shall become effective with signature and seal by the legal
representatives or authorized signatories of the Parties, the later
will
apply.
|
The
Contract shall be in three
copies
with equal force, one of which shall be kept by the Mortgager, the Mortgagee
and
the Debtor.
Article
19 Special Notice
The
Mortgager has negotiated sufficiently with the Mortgagee concerning all terms
and conditions of the Contract.
The
Mortgagee has reminded the Mortgager to understand comprehensively and exactly
the terms and conditions of the Contract and explained for corresponding terms
and conditions hereof at the requirements of the Mortgager.
The
Mortgager (signature and seal):
Tianjin
Daqiuzhuang Metal Sheet Co., Ltd.
Legal
representative or authorized signatory:
Date:
November 4, 2005
Domicile:
Daqiuzhuang, Jinghai, Tianjin
The
Mortgagee (signature and seal): Bank
of
China Tianjin Jinghai Sub-Branch
Authorized
signatory:
Date:
November 4, 2005
Domicile:
Xx. 00 Xxxxxxx Xxxx, Xxxxxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxxxx
120
Guaranty
List
Total
value of guaranties: RMB38.437 million
|
No.
|
Name
|
Specification
|
Quantity
|
Location
|
Registration
Authority
|
Insurance
|
Title
|
Title
Certificate No.
|
Book
Value
|
Evaluation
|
Appraiser
|
Note
|
|
1
|
Collective-owned
land use right of Tianjin Daqiuzhuang Metal Sheet Co., Ltd. (First
Workshop) and title of overgound buildings
|
27,459.8
square meters of land area and 10,616.42 square meters of the area
of
buildings
|
Xx.
0, Xxxxxxxxx X. Xxxx, Xxxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx
|
Jinghai
Bureau of Planning and State Land and Resource
|
insured
of fixed assets at Tianjin Jinghai Branch of Chinese People's Property
Insurance Co., Ltd. covering RMB38,333,300
|
Tianjin
Daqiuzhuang Metal Sheet Co., Ltd
|
Property
Right Certificate: No. JHZ233005096, House Ownership Certificate:
No.
JDJY(2001G)134, Collective-owned Land Use Certificate
|
RMB
317,162,000
|
RMB13.5
million
|
Tianjin
Keyi Co., Ltd. Land Price Appraisal Institute Jinghai
Branch
|
||
|
2
|
Collective-owned
land use right of Tianjin Daqiuzhuang Metal Sheet Co., Ltd. and title
of
overgound buildings
|
4,611.3
square meters of land area and 2,879.74 square meters of the area
of
buildings
|
North
Side of Yingfeng Road, Daqiuzhuang Town, Jinghai, Tianjin
|
Jinghai
Bureau of Planning and State Land and Resource
|
insured
of fixed assets at Tianjin Jinghai Branch of Chinese People's Property
Insurance Co., Ltd. covering RMB38,333,300
|
Tianjin
Daqiuzhuang Metal Sheet Co., Ltd.
|
Property
Right Certificate: No. JHZ233003810, House Ownership Certificate:
No.
JDJY(2001G)049, Collective-owned Land Use Certificate
|
RMB
6,617,100
|
RMB2.5
million
|
Tianjin
Keyi Co., Ltd. Land Price Appraisal Institute Jinghai
Branch
|
121
The
Mortgager (signature and seal):
Tianjin
Daqiuzhuang Metal Sheet Co., Ltd.
Legal
representative or authorized signatory:
Date:
November 4, 2005
Domicile:
Daqiuzhuang, Jinghai, Tianjin
The
Mortgagee (signature and seal): Bank
of
China Tianjin Jinghai Sub-Branch
Authorized
signatory:
Date:
November 4, 2005
Domicile:
Xx. 00 Xxxxxxx Xxxx, Xxxxxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxxxx
122
Credit
Line Agreement
No.
JZYJXZ(2005)003
Party
A:
Tianjin Daqiuzhuang Metal Sheet Co., Ltd.
Business
License of Enterprise Legal Person: No. QHJZZ016433
Legal
representative: Xx Xxxxxxxx
Main
office: Daqiuzhuang, Jinghai, Tianjin, 301606
Opening
bank and accounts: Bank of China Tianjin Jinghai Sub-Branch, 00000000000000
Tel:
00000000000; Fax: 00000000
Party
B:
Bank of China Tianjin Jinghai Sub-Branch
Principal:
Xxxx Xxxxxxx
Main
office: Xx. 00 Xxxxxxx Xxxx, Xxxxxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxxxx, 301600
Tel:
00000000 Fax: 00000000
The
following agreements are hereby made through negotiation in the principle of
voluntarieness, equality, mutual benefit and good faith for the purpose of
developing friendly and mutual benefit cooperation.
Article
1
Scope of Business
Party
B
grants the credit line to Party A according to the Agreement. Provided that
the
stipulations in the Agreement and relevant single agreements are satisfied,
Party A may apply Party B to use circularly, regulatively or on once occasion
the credit line for short-term loan in RMB, short-term loan in foreign exchange,
issuance of banker’s acceptance bill and settlement and financing business
(hereinafter referred collectively as “Single Credit Business”). For the purpose
of this Agreement, settlement and financing business means issuance of L/C,
import bill advance, shipping guarantee, packing loan, export bill purchase,
acceptance bill discount under usance L/C and issuance of guarantee
letter/stand-by L/C.
Article
2
Type and Amount of Credit Line
Party
B
agrees to provide the following credit line to Party A, totally RMB16 million
yuan; the credit line used for foreign exchange business shall be converted
into
RMB at the following rate of exchange:
|
1)
|
______
publicized by Party B on the effective date of the Agreement;
|
|
2)
|
______
publicized by the State Administration for Foreign Exchange on the
effective date of the Agreement.
|
123
The
credit line to be granted by Party B to Party A includes:
|
1)
|
short-term
credit line in RMB, 9 million yuan;
|
|
2)
|
short-term
credit line in foreign exchange, ________;
|
|
3)
|
credit
line of issuance of banker’s acceptance bill, 7 million yuan;
|
|
4)
|
credit
line of settlement and financing (without sub-line, for issuance
of L/C,
import bill advance, shipping guarantee, packing loan, export bill
purchase, acceptance bill discount under usance L/C and issuance
of
guarantee letter/stand-by L/C), _____;
|
|
5)
|
credit
line of L/C issuance, _______;
|
|
6)
|
credit
line of import bill advance, _______;
|
|
7)
|
credit
line of shipping guarantee,
_______;
|
|
8)
|
credit
line of packing loan, _______;
|
|
9)
|
credit
line of export bill purchase (under L/C),
_______;
|
|
10)
|
credit
line of export bill purchase (under collection),
_______;
|
|
11)
|
credit
line of acceptance bill discount under usance L/C, _______;
|
|
12)
|
credit
line of issuance of guarantee letter/stand-by L/C, _______________.
|
The
existing balance of credit line of Party A at Party B by the end of the date
of
the Agreement shall be deemed as the credit hereunder and be part of the credit
line for Party A ratified by Party B.
Article
3
Use of Credit Line
Within
the term of the credit line as stipulated in Article 5 hereof, Party A may
use
corresponding credit according to the following first method to the extent
of
the line of single credit described in previous clause:
|
1)
|
circularly;
|
|
2)
|
on
once occasion.
|
Where
Party A needs to regulate the line of single credit as stipulated in Article
1,
it shall submit a written application to Party B. Party B shall decide whether
to regulation and decide on the specific methods.
If
Party
B is an office of the Bank of China Tianjin Branch, settlement and financing
business as mentioned in Article 4 hereof, which is conducted by Party A at
the
Bank of China Tianjin Branch with consent of Party B and contact with the Bank
of China Tianjin Branch, shall take up corresponding line of credit hereunder
and be subject to the management by Party B and the Bank of China Tianjin Branch
according to the Agreement and its annexes.
124
If
the
settlement and financing business applied by Party A is of one of the following
circumstances, it will not take up the line of credit:
|
1)
|
export
bill purchase with corresponding documents;
|
|
2)
|
banker’s
acceptance bill discount under the usance L/C accepted by Party B;
|
|
3)
|
provision
of pledge with sufficient deposit;
|
|
4)
|
provision
of pledge with national debts, deposit receipt issued by the Bank
of China
or the banker’s acceptance bill accepted by Party B;
|
|
5)
|
provision
of guarantee with the guarantee letter and stand-by L/C accepted
by Party
B.
|
The
settlement and financing business conducted will not take up the credit line
or
affect the effectiveness of the terms and conditions hereof on the Parties.
Article
4
Necessary Agreements for Single Credit
When
applying to Party B for single credit hereunder, Party A shall enter into the
following agreements (hereinafter referred collectively to as single agreements)
with Party B, including:
|
1)
|
Contract
for (Short-term) Loan in RMB for short-term loan in RMB;
|
|
2)
|
Contract
for Loan in Foreign Exchange for short-term loan in foreign exchange;
|
|
3)
|
Xxxxxx’s
Acceptance Contract for issuance of banker’s acceptance bill;
|
|
4)
|
for
settlement and financing businesses, Party A and choose or enter
into the
following relevant annexes or application letters together with Party
B or
the Bank of China Tianjin Branch:
|
|
a.
|
following
annexes which are negotiated, modified or applicable with consent
by the
Parties shall constitute single agreements and be inseparable part
of the
Agreement:
|
The
following annexes with a “check” marked in “box” shall be applicable and with a
“x” shall be inapplicable. The Parties need not sign and seal otherwise on
corresponding applicable annexes. Neither party may thus present any objection
to the effectiveness of such annexes which constitute legal documents binding
upon the Parties.
o
Annex
1: for issuance of L/C;
o
Annex
2: for import bill advance;
o
Annex
3: for packing loan;
o
Annex
4: for export bill purchase;
o
Annex
5: for acceptance bill discount under usance L/C;
o
Annex
6: for issuance guarantee letter/stand-by L/C.
|
b.
|
The
following application letters shall be submitted by Party A to Party
B or
the Bank of China Tianjin Branch for business of settlement and financing.
The application letters shall constitute single agreements and be
inseparable part of the Agreement upon completed by the Parties through
negotiation and stamped by Party B with official seal or business
seal:
|
125
|
a.
|
application
letter for issuance of L/C;
|
|
b.
|
application
letter for modification of L/C;
|
|
c.
|
application
letter for import bill advance;
|
|
d.
|
application
letter for shipping guarantee;
|
|
e.
|
application
letter for packing loan;
|
|
f.
|
application
letter for drawing of packing loan;
|
|
g.
|
application
letter for export financing (for export bill purchase or acceptance
bill
discount under usance L/C);
|
|
h.
|
application
letter for issuance of guarantee letter/stand-by
L/C;
|
|
i.
|
application
letter for modification of guarantee letter/stand-by L/C.
|
|
5)
|
any
other written agreements concluded by and between the Parties on
single
credit, and due bills, application letters, documents and vouchers
for
drawing submitted or issued by Party A to Party B or the Bank of
China
Tianjin Branch, of which the effectiveness is confirmed by Party
A to
Party B or the Bank of China Tianjin Branch.
|
Single
agreements shall be part of the Agreement. The Parties shall decide on the
rights and obligations of either party according to single agreements and this
Agreement, especially the balance of creditor’s right of Party B to Party A. In
case of conflicts between single agreements and this Agreement, the former
shall
prevail.
Article
5
Term of Credit Line
The
term
of the credit line hereunder shall be from the effective day of this Agreement
as stipulated in Article 18 hereof to November 3, 2006.
The
term
of the credit line may not be extended automatically.
Prior
to
expiration, the term of the credit line may be extended against written
documents if Party A applies to Party B for extension, which is approved by
the
latter, and Party A provides corresponding guarantees. Written agreement for
extension shall stipulate the term of new credit line.
After
expiration of the term of the credit line, single credit conducted by the
Parties according to the Agreement shall be performed continually subject to
this Agreement and relevant single agreements, and the creditor’s right and
debts therefrom will not be affected thus.
Article
6
Preconditions for Single Credit
The
following conditions shall be satisfied when Party A applies for single credits
hereunder:
|
1)
|
Party
A shall submit the application letter to Party B for corresponding
single
credit prior to expiration of the term of credit line as stipulated
in
Article 5 hereof;
|
|
2)
|
Party
A shall reserve documents, bills, seals, list and specimen signature
of
corresponding personnel relating to execution of this Agreement and
single
agreements and complete relevant vouchers;
|
|
3)
|
Party
A shall open necessary accounts for completing single credits according
to
the requirements of Party B;
|
126
|
4)
|
Party
A shall complete all of necessary legal and administrative examination
and
approval procedures for conducting single credit and submit, at the
requirements of Party B, the duplication of such examination and
approval
documents or corresponding copies with the original; if relevant
procedures must be handled by Party B in accordance with the state
laws
and regulations, Party A agrees to make all of necessary cooperation;
|
|
5)
|
Preconditions
for other credits or drawing as stipulated in single agreements shall
be
satisfied;
|
|
6)
|
The
deposits have been paid or the Guarantee Agreement concluded at the
requirement of Party B is in force;
|
|
7)
|
Party
A agrees to make statements and guarantees as stipulated in Article
10
hereof; and
|
|
8)
|
Other
conditions to be satisfied by Party A according to Party B’s requirement.
|
Article
7
Party B’s Obligations
Party
B
shall assume the obligations as follows:
|
1)
|
to,
according to the stipulations in single agreements, handle the application
of Party A for single credit in time;
|
|
2)
|
to
provide civilized service when handling the application of Party
A for
single credit;
|
|
3)
|
to
pay attention to and dispose properly inspection, inquiry and criticism
of
Party A.
|
Article
8
Party A’s Obligations
Party
A
shall assume the obligations as follows:
|
1)
|
to,
according to the stipulations in single agreements, pay Party B the
expenses which shall be paid by Party A in the course of use of the
credit
line; the calculation method shall be subject to Party B’s regulations;
|
|
2)
|
to,
according to the stipulations in single agreements, pay Party B the
excess
reserves on schedule;
|
|
3)
|
to,
according to the stipulations in single agreements, repay the debts
to
Party B in time, including, but not limited to, principal, interests,
penalty interests, relevant expenses and losses arising from foreign
exchange margin due to Party A’s breach;
|
|
4)
|
to
use the funds granted for the purpose stipulated in this Agreement
and
single agreements.
|
Article
9
Guarantee
As
for
the debt of Party A to Party B under the Agreement and single agreements, the
Parties agree to apply to the guarantee according to the following second
method:
|
1)
|
_________
provides the maximum deposit guarantee and concludes the Maximum
Deposit
Guarantee Contract, No. __________________;
|
|
2)
|
Tianjin
Daqiuzhuang Metal Sheet Co., Ltd.
provides the maximum deposit guarantee and concludes the Maximum
Deposit
Guarantee Contract, No. JZYJXZ(2005) 003.
|
Party
B
shall have the right to require Party A to provide another guarantor or new
guaranties to guarantee the Loan of Party A to Party B hereunder if Party B
deems that Party A or the guarantor occurs certain circumstance which may affect
their capability of performance of the Agreement, or the guarantee documents
become null and invalid or the guarantor’s capability of repayment decreases
obviously due to deterioration of finance or other reasons, or the guarantor
is
in breach of the contract between the guarantor and Party B, including other
guarantee contracts, or the guarantor’s capability of guaranty weakens or loses
due to depreciation, loss or damage of guaranties or pledges.
127
Article
10 Statements and Guarantees
Party
A
states as follows:
|
8)
|
Party
A has a status of enterprise legal person established and existing
in
accordance with the laws, has completed and will go through the procedures
for industrial and commercial registration on schedule and has necessary
rights and powers to fulfill its obligations under the Agreement
and
single agreements in its own name;
|
|
9)
|
Execution
and performance of the Agreement and single agreements are true meaning
of
Party A, for which Party A has obtained the legal and valid authorization
from the Company in accordance with the articles of association or
other
internal management documents; execution and performance hereof will
not
violate any agreements, contracts and other legal documents which
are
binding upon Party A;
|
|
10)
|
All
documents, financial statements, vouchers and other materials provided
to
Party B by Party A under this Agreement and single agreements are
true,
exact, complete and valid;
|
|
11)
|
The
background of businesses applied by Party A to Party B are true and
valid;
Party A will not use for money laundering and other illegal purposes;
provision of any documents to Party B at Party B’s requirements may not be
interpreted that Party B has obligation and liability to examine
the truth
and validity of transactions conducted by Party A.
|
|
12)
|
Party
A does not conceal any facts which may impact Party A’s and the
guarantor’s finance and capability of performance.
|
Party
A
undertakes as follows:
|
1)
|
Party
A will submit its financial statements (including, but not limited
to,
yearly reports, quarterly reports and monthly statements) and other
relevant materials to Party B periodically;
|
|
2)
|
Party
A will accept and assist with Party B in inspection and supervision
conducted by Party B concerning use of the credit line and relevant
production, operation and finance;
|
|
3)
|
Where
Party A has concluded, or will conclude, the counterguarantee agreement
or
similar agreements with the guarantor hereunder concerning its guarantee
obligations, and such agreements will not impact any of Party B’s rights
hereunder;
|
|
4)
|
Party
A shall as soon as possible notify Party B without any delay in case
of
circumstances which may affect Party A’s or the guarantor’s finance and
capability of performance, including, but not limited to, reduction
of
registered capital, transfer of material assets or shareholdings,
assumption of great debts or establishment of new material debts
on the
guaranties, sealing-up of the guaranties, dissolution, revocation
and
application for bankruptcy;
|
|
5)
|
Party
A shall obtain written consent of Party B in advance of division,
merger,
joint management, joint venture or cooperation with foreigners,
contracting, reconstruction, system reform, plans for listing or
change in
operation modes in any way;
|
|
6)
|
As
for matters unstipulated herein, Party A agrees to handle subject
to
international traditions and Party B’s relevant rules.
|
128
Article
11 Adjustment and Cancellation of Credit Line
In
case
of any of the following circumstances within the term of the credit line, Party
B shall have the right to adjust or cancel the credit line granted to Party
A at
any time:
|
1)
|
breaches
as stipulated in Article 12 hereof;
|
|
2)
|
significant
adverse news at Party B’s discretion in the market or the industry
involved;
|
|
3)
|
certain
limited policies promulgated by the State, foreign governments or
international organizations which will or may at Party B’s discretion
cause significant adverse impact upon the industry involved in the
Agreement .
|
Article
12 Breach of Agreement
Any
of
the following circumstances shall constitute breach of the Contract by Party
A:
|
7)
|
failing
to perform the obligation of payment or repayment to Party B according
to
this Agreement and single agreements;
|
|
8)
|
failing
to pay excess reserves to Party B according to this Agreement and
single
agreements;
|
|
9)
|
failing
to use the funds obtained for the purposes stipulated in this Agreement
and single agreements;
|
|
10)
|
making
untrue undertakings herein or acting against its undertakings herein;
|
|
11)
|
acting
against other stipulations in this Agreement and single agreements
concerning the rights and obligations of the parties concerned; or
|
|
12)
|
breach
of other contracts by and between the Parties.
|
In
case
of breach as stipulated in Paragraph 1 of this clause, Party B shall have the
right to take the following measures, respectively or jointly:
|
5)
|
declaring
immediately the principal and interests of outstanding loan/financing
under single agreements and other amount due payable are due, without
prior notice to Party A;
|
|
6)
|
deducting
the principal, interests and penalty interests which Party A shall
repay,
as well as losses of foreign exchange margin, directly from Party
A’s
accounts at Party B and other offices of the Bank of China, without
prior
notice to Party A; immature amount in the accounts shall be deemed
early
due. Where the currency in the accounts is different from that used
by
Party B for calculation, the conversion shall be made at the exchange
rate
confirmed by Party B in deduction date;
|
|
7)
|
disposing
the properties secured, from which the earnings shall be applied
first to
priority of compensation or recourse against the guarantor;
|
|
8)
|
any
other measures Party B deems necessary and possible.
|
129
Article
13 Miscellaneous
Party
A
may not transfer any of its rights and obligations hereunder to a third party
without written consent of Party B.
Party
A
shall consent if Party B has to entrust other offices of the Bank of China
(including branches and subbranches) to perform its rights and obligations
hereunder due to demands for business. Other offices of the Bank of China
empowered by Party B shall have the right to exercise all of its rights
hereunder and to bring a lawsuit with a People’s Court or submit the disputes
arising from the Agreement to an arbitration institution for arbitration. Party
A waives the right to present any objections to the subject to litigations
or
arbitration relating to other offices of the Bank of China.
Without
prejudice to other stipulations herein, the Agreement shall be legal binding
upon the Parties and their respective legal successors and assigns.
Article
14 Right Reservation
Failure
of Party B to exercise part of its rights hereunder or require Party A to
perform part of obligations shall not constitute Party B’s waiver of or
exemption from such rights or obligations, nor constitute Party B’s waiver of
other rights herein or exemption of Party A from other obligations.
Toleration
and extension given to Party A or deferment of exercise of its rights hereunder
shall not impact Party B to enjoy all rights according to the Agreement, laws
and regulations, and may not be deemed as Party B’s waiver of such rights.
Article
15 Modification, Rescission and Interpretation
Unless
otherwise stipulated herein, the Agreement may be modified, supplemented or
rescinded with written consent of the Parties. Modification and supplementation
of the Agreement shall be inseparable part of the Contract.
Invalidity
of any of the terms and conditions of the Agreement shall not impact efficiency
of other terms and conditions hereof.
Headlines
and names of businesses as mentioned in this Agreement and single agreements
are
used for convenience of direction, may not be used for interpreting the
relationship of rights and obligations between the Parties hereto.
Article
16 Dispute Settlement
The
Contract shall be applied to the laws of the People’s Republic of China.
Any
and
all disputes and dissensions arising from performance of or relating to the
Contract shall be settled through negotiation. Where negotiation fails, the
Parties agree that the following second method shall apply:
|
5)
|
to
bring a lawsuit with the People’s Court at the place where Party B or
other office of the Bank of China which exercises rights and obligations
subject to the Agreement is located;
|
|
6)
|
to
bring a lawsuit directly with the People’s Court having jurisdiction;
|
|
7)
|
to
apply to _________ for arbitration at ___________.
|
130
Article
17 Notarization (alternative clause; choice: 1, Applicable; 2, Inapplicable)
The
Parties shall within ___ working day(s) as of the date of the Agreement complete
notarization of compulsory enforcement at ___________. The notarization fee
shall be borne by ________.
Article
18 Effectiveness
The
Agreement shall become effective with signature and seal by the legal
representatives or authorized signatories of the Parties, the latter shall
apply.
The
Contract shall be in three
copies
with equal force, one of which shall be kept by either party hereto and the
guarantor.
Article
19 Special Notice
The
Parties hereto have negotiated sufficiently all of the terms and conditions
of
the Agreement, as well as single agreements.
Party
B
has reminded Party A to pay special attention to the terms and conditions
concerning the Parties’ rights and obligations and understand them
comprehensively and exactly; Party B has explained for corresponding terms
and
conditions hereof at the requirements of the Mortgager.
Party
A:
Tianjin
Daqiuzhuang Metal Sheet Co., Ltd.
Legal
representative or authorized signatory:
Date:
November 4, 2005
Domicile:
Daqiuzhuang, Jinghai, Tianjin
Party
B:
Bank
of
China Tianjin Jinghai Sub-Branch
Authorized
signatory:
Date:
November 4, 2005
Domicile:
Xx. 00 Xxxxxxx Xxxx, Xxxxxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxxxx
131
RENMINBI
LOAN CONTRACT
CHINA
CONSTRUCTION BANK TIANJIN BRANCH
132
Contract
No.: JHTJRL 2005002
Type
of
Loan: Working Capital
Borrower(Party
A): Tianjin Daqiuzhuang Metal Sheet Co., Ltd
Domicile:
Jinmei Street Daqiuzhuang Town, Jinghai County, Zip code: 301600
Legal
Representative (Person in charge): Xx Xxxxxxxx
Fax:
00000000 Tel: 00000000
Lender(Party
B): China Construction Bank Corporation Tianjin Branch
Domicile:
No.1 (added), 00 Xxxxxxx Xxxx, Xxxx Xxxxxxxx, Xxxxxxx
Zip
code:
300203
Person
in
charge: Xxx Xxxxxxx
Fax:
00000000 Tel: 00000000
133
Parties
to This Contract:
(1)
Borrower(hereinafter referred to as “Party A”): Tianjin Daqiuzhuang Metal Sheet
Co., Ltd
And
(2)
Lender (hereinafter referred to as “Party B”): China Construction Bank
Corporation Tianjin Branch
WHEREAS,
Party A
has applied for a certain loan from Party B;
WHEREAS,
Party B
agrees to extend such loan to Party A upon the terms and conditions contained
herein.
NOW,
THEREFORE, the
Parties agree to enter into this RENMINBI
LOAN CONTRACT
(hereinafter referred to as “this Contract”) through mutual friendly negotiation
on the aforesaid issue in accordance with related laws and regulations, subject
to the terms and conditions to be set forth hereinafter.
ARTICLE
1 LOAN AMOUNT
The
loan
to be provided by Party B to Party A hereunder is in sum of RMB (amount in
words) Five
Million Four Hundred Thousand Yuan only.
ARTICLE
2 LOAN PUROSE
The
loan
to be extended by Party B hereunder shall be applied to repay the outstanding
and payable debts as existing under the contract numbered JHTJRL 2004010.
ARTICLE
3 LOAN TERM
The
mutually-agreed-upon term of the loan hereunder is one (1) year, commencing
as
from August 22nd
2005 and
ending on August 21st
2006.
In
case
the starting date of the term of the loan hereunder doesn’t coincide with the
date shown in the voucher for deposit of loan, then the date indicated in the
voucher for deposit of the first loan shall be regarded as the starting date
of
the loan term hereunder. Any voucher for deposit of loan is integral part of
this Contract both of which are equally authentic.
134
ARTICLE
4 INTEREST RATE, INTEREST CALCULATION AND SETTLEMENT
4.1
The
interest rate of the loan hereunder is agreed to be 7.4600% per annum.
4.2
The
interest on the loan hereunder shall arise as from the date the loan is
deposited in the account of Party A. It is agreed that the interest on the
loan
hereunder shall be accrued on daily basis and settled on monthly (quarterly)
basis, the date for interest settlement is agreed to be fixed at the
20th
day of
each month (last month of appropriate quarter), in addition, the daily interest
rate = monthly interest rate/30.
4.3
In
the case of adjustment to the interest rate by the People’s Bank of China upon
concluding of the Contract and prior to the grant of the first part of the
loan
hereunder, __(i)__ shall apply:
|
(i)
|
Continue
to apply the stipulated interest rate herein.
|
|
(ii)
|
Apply
a new interest rate adjusted in the light of new interest rate
policy.
|
4.4
Any
adjustment to the agreed upon interest rate and the means for calculation and
collection of accrued interest shall be subject to related regulations of the
People’s Bank of China. In the event of any revision made by the People’s Bank
of China (hereinafter referred to as “PBC”) to such regulations which revision
is applicable to the loan hereunder, Party B is entitled to act in accordance
with the newly regulations last revised by the PBC without having to send a
notice to Party A.
ARTICLE
5 GRANT AND USE OF LOAN
5.1
Conditions Precedent to Grant of Loan
5.1.1
Only to the extent the following preconditions are met or satisfied, except
as
waived by Party B wholly or partially, Party B is obliged to make the loan
available to Party A:
|
(i)
|
Party
A has completed any and all legally required formalities or procedures
in
respect of the loan hereunder, such as approval, registration, delivery,
etc., pursuant to related laws and regulations;
|
|
(ii)
|
The
Security Contract or other forms of guarantee as acceptable to Party
B,
has/have entered into full force where such Security Contract or
other
guarantees is/are created for this Contract;
|
|
(iii)
|
None
of defaults set forth herein has occurred to Party A;
|
|
(iv)
|
Other
preconditions as both Parties hereto may agree;
|
___________________________________________________________________________________________________________________________
135
5.1.2
Party B shall, within _____ working days following the date the required
preconditions are satisfied on the part of Party A, make the loan available
to
Party A.
5.2
Plan for Use of Loan
5.2.1
22nd
August
2005, in the amount of Five Million Four Hundred Thousand;
5.2.2
DD
MM YY, in the amount of _______________;
5.2.3
DD
MM YY, in the amount of _______________;
5.2.4
DD
MM YY, in the amount of _______________;
5.2.5
DD
MM YY, in the amount of _______________;
5.2.6
DD
MM YY, in the amount of _______________;
ARTICLE
6 REPAYMENT
6.1
Principle of Repayment
The
repayment of any part of the loan hereunder shall be made in the principle
of
first payment of accrued interest and late payment of due principal.
6.2
Payment of Interest
Party
A
shall pay Party B any and all accrued interest on appropriate loan at the
Interest Settlement Date as stipulated herein. The date for the initial payment
of accrued interest is the first interest settlement day following the
availability of the loan, and any and all accrued interests shall be paid up
together with the repayment of the last part of the outstanding principal.
6.3
Plan for Repayment of Loan
Party
A
shall repay the principal of the loan hereunder as scheduled below:
6.3.1
21st
August
2006 in the amount of Five Point Four Million;
6.3.2
DD
MM YY in the amount of ______________________;
6.3.3
DD
MM YY in the amount of ______________________;
6.3.4
DD
MM YY in the amount of ______________________;
6.3.5
DD
MM YY in the amount of ______________________;
6.3.6
DD
MM YY in the amount of ______________________;
136
6.4
Form of Repayment
Party
A
shall, ahead of the repayment date prescribed herein, deposit in an account
opened with Party B the sufficient amount of fund which is to be applied, in
the
manner of automatic transfer, to repay any part of loan then currently becoming
due, or transfer from any other account an appropriate amount for repayment
of
any due principal at the repayment date set out herein; In case Party A fails
to
do so, Party B is entitled to withhold any such overdue amount from any account
opened by Party A with any branch of China Construction Bank.
6.5
Earlier Repayment
6.5.1
Party A may elect to prepay any accrued interest on the loan hereunder ahead
of
schedule upon a notice to Party B.
6.5.2
Party A may repay the principal, in whole or part, ahead of schedule only upon
a
written application of ten (10) banking business days to Party B to which
application Party B consents.
In
the
case of earlier repayment of the principal hereof, the interest thereon shall
be
computed on the basis of the number of days during which the principal is used
as loan and at the interest rate of the loan specified in ARTICLE 4 hereof.
Party
A
hereby agrees to pay Party B a compensation for any earlier repayment which
compensation shall be calculated as follows: Compensation = Amount of principal
to be repaid ahead of schedule (times) 0.05% (times) Number of days prior to
the
scheduled repayment date.
In
case
Party A elects to repay partial principal of the loan hereunder, such repayment
shall be made in the order exactly contrary to the order prescribed in the
Plan
for Repayment, thereafter, interest shall be charged on any outstanding part
of
loan hereunder at the interest rate as stipulated herein.
ARTICLE
7 LOAN SECURITY
In
the
case of secured loan, the security shall be provided in the form of 7.1
(optional):
7.1
Suretyship
7.2
Mortgage
7.3
Pledge
7.4
Standby L/C
7.5
Credit insurance
7.6
Others; to
be
specified.
137
ARTICLE
8 RIGHTS AND OBLIGATIONS OF PARTY A
8.1
Rights of Party A
8.1.1
Party A is entitled to request Party B to extend the loan subject to the terms
and conditions set out herein;
8.1.2
Party A is entitled to use the loan for purposes described herein;
8.1.3
Party A is entitled to apply to Party B for an extension of loan to the extent
related requirements of Party B are fulfilled;
8.1.4
Party A is entitled to have Party B imposed under the obligation to maintain
confidential any and all financial materials together with any trade secrets
relating to production & operation to be furnished by Party A, except as
otherwise provided for by related laws and regulations.
8.2
Obligations of Party A
8.2.1
Party A is obliged to present, as required by Party B, related financial and
accounting documents as well as appropriate materials in respect of production
& operation, including without limitation supply Party B with the balance
sheet ending the last quarter as well as the profit and loss sheet (the income
and expenditure sheet in the case of nonprofit institution) ending the last
quarter within the first
ten (10)
banking
business days of each quarter, and the supply Party B with the cash flow for
then current year at the end of such year, in addition, Party A shall be liable
for the truthfulness, completeness as well as the validity of such materials
supplied as hereinabove;
8.2.2
Party A shall use the loan for purposes stipulated herein, neither unauthorized
diversion for other use nor appropriation thereof for whatsoever reasons is
tolerated;
8.2.3
Party A shall, on its own initiative, be voluntarily subject to any inspection
and/or supervision conducted by Party B over the production & operation,
financial activities, as well as the use of loan on the part of Party A, and
shall provide assistance as required;
8.2.4
Party A shall repay the principal hereof and pay any accrued interest thereon
as
scheduled herein;
8.2.5
Neither Party A nor any of its investors may siphon out the capital or transfer
any assets with an intent to shrug off the debts owed to Party B;
138
8.2.6
Party A shall refrain from provide a security with any asset formed with the
loan hereunder for any third party, in the absence of consent of Party B, before
the principal hereof and any interest accrued thereon are satisfied in full;
8.2.7
During the whole life of this Contract, any intended provision of security
by
Party A for any party’s debts that may impair Party A’s ability to repay the
loan hereunder shall be subject to a written notice to and consent from Party
B;
8.2.8
In
the event that the surety hereunder, during the term of this Agreement, stops
production, ceases to carry out business, is de-registered, has its business
license suspended, goes bankrupt, revoked or suffers a loss in operation, etc.
that might deprive Party B of the whole or partial capacity to act as a surety
appropriate to the loan hereunder, or in the case of decrease in the value
of,
damage to or loss of the mortgaged objects or pledged articles, Party A shall
upon the request of Party A provide any other securities as required by Party
B;
8.2.9
During the term of this Agreement, Party A is obliged to notify in a timely
manner Party B of any change in/of the name, legal representative (person in
charge), domicile, business scope, registered capital, etc. that may occur
to
Party A;
8.2.10
In
the event a contracting, lease, stock reconstruction, pool, consolidation,
merger & acquisition, division, joint venture, application for business stop
for internal rectification, application for dissolution or application for
being
declared to be bankrupt, etc. occurs to Party A that suffice to impair the
satisfaction of the creditor’s rights of Party B, Party A shall deliver to Party
B a written notice of
thirty (30)
days for
approval, and shall take step to satisfy the debts hereunder and effect the
guarantees provided therefore;
8.2.11
In
the event that Party A, during the term of this Agreement stops production,
ceases to carry out business, is de-registered, has its business license
suspended, the legal representative or key responsible person of which commits
unlawful act and is involved in significant actions, experiences serious
difficulties in operating and manufacturing, undergoes deteriorating in
financial standing, etc. as well as other circumstances that might be materially
adverse to the repayment obligation fulfillment hereunder, Party A shall give
a
written notice to Party B promptly and shall at the request of Party A satisfy
the debts hereunder and effect the guarantee provided for the said
debt;
8.2.12
Party A shall bear any and all costs or expenses incurred in respect of this
Contract and the lawyer, insurance, evaluation, registration, custody,
authentication, notary, etc. relating to the security provided hereunder.
139
ARTICLE
9 RIGHTS AND OBLIGATIONS OF PARTY B
9.1
Rights of Party B
9.1.1
Party B is entitled to have access to or to be informed of the information
relating to the production & operation, as well as financial activities on
the part of Party A, and to require Party A to provide related documentation,
such as statistics of related plans and accounting statements;
9.1.2
Party B is entitled to transfer and withhold any amount in whatsoever currency
from any account opened by Party A with any branch of China Construction Bank,
for any money payable to Party B by Party A hereunder;
9.2
Obligations of Party B
9.2.1
Party B shall make the loan available to Party A in full as scheduled herein,
except for the delay by virtue of Party A;
9.2.2
Party B shall keep and maintain confidential any and all financial materials
as
well as the trade secrets in respect of the production & operation of Party
A that may be supplied thereby, except to the extent required by related laws
and regulations.
ARTICLE
10 LIABILITIES FOR BREACH
10.1
Breaching Event
10.1.1
Breach on the Part of Party A
10.1.1.1
Failure to provide true, complete and valid accounting materials, information
relating to production & operation and others as required by Party B;
10.1.1.2
Failure to use the loan for purposes stipulated herein;
10.1.1.3
Failure to repay the principal of and the accrued interest on the loan as
scheduled;
10.1.1.4
Refuse to be subject to or interfere with the inspection and/or supervision
by
Party B over the use of loan by Party A;
10.1.1.5
Transfer of assets, siphoning out fund with an intent to shrug debts;
10.1.1.6
Failure to satisfy any due debt as a result of detonation of the operation
and
financial standing, or involved or will be involved in any significant suit
or
arbitral proceedings or any other legal dispute that suffice to make Party
B
believe that the rights and interests of Party B hereunder might be or have
been
effected or impaired thereby;
140
10.1.1.7
Any other debt owed by Party A has effected or might effect the fulfillment
of
the obligations by Party A to Party A hereunder;
10.1.1.8
Failure to satisfy other debts owed to China Construction Bank when due;
10.1.1.9
Any act occurred on the part of Party A during the term of this Contract, such
as contracting, lease, consolidation, M&A, joint venture, division, pool,
stock reconstruction, etc. that results in change in the operation means or
reconstruction of operation method and that reasonably makes Party B to believe
its rights and interest hereunder might be or have been effected or impaired
thereby;
10.1.1.10
Other circumstances which suffice to impair the satisfaction of creditor’s
rights of Party B in the sole opinion of the same;
10.1.1.11
In breach of other obligations provided herein.
10.1.2
Failure by Party A to provide a new security as acceptable to Party B upon
any
of the following cases on the part of the surety, shall be deemed a breach
on
the part of Party A:
10.1.2.1
Occurrence on the part of the surety hereunder, of contracting, lease,
consolidation, M&A, joint venture, division, pool, stock reconstruction,
bankruptcy, revocation, etc. that suffice to impair the joint and several
liability to be assumed by the surety hereunder;
10.1.2.2
The surety hereunder provide such a security for any third party which security
is beyond its assumption capacity;
10.1.2.3
The surety loses or might lose the capacity to stand as surety;
10.1.2.4
Other breaches on the part of the surety as set out herein.
10.1.3
Failure by Party A to provide a new security as acceptable to Party B upon
any
of the following cases on the part of the Mortgagor, shall be deemed a breach
on
the part of Party A:
10.1.3.1
Failure by the Mortgagor to take out or procure the property insurance for
the
mortgaged objects, or failure of the Mortgagor to deal with issues relating
to
the insurance indemnity as agreed in the Mortgage Agreement, upon any insurance
accident;
10.1.3.2
Failure of the Mortgagor to deal with issues relating the damages in accordance
with the Mortgage Agreement upon the damage to, loss of or decrease in the
value
of, the mortgaged objects by virtue of the act on the part of any third party;
141
10.1.3.3
In the absence of consent from the Party B in writing, gifts, assignment, lease
out, overlay mortgage, relocation, or otherwise disposition of the mortgaged
objects on the part of Mortgagor;
10.1.3.4
The Mortgagor disposes of the mortgaged objects with the permission of Party
B,
but fails to apply the proceeds from such disposition as stipulated in the
Mortgage Agreement;
10.1.3.5
The Mortgagor fails to reinstate the value of the mortgaged objects in a timely
manner or to provide other guarantees acceptable to Party B, upon the damage
to,
loss of or decrease in the value of the mortgaged objects that suffice to
prejudice the satisfaction of the debts hereunder;
10.1.3.6
Other breaches on the part of the Mortgagor as set forth in the Mortgage
Agreement.
10.1.4
Failure by Party A to provide a new security as acceptable to Party B upon
any
of the following cases on the part of the Pledgor, shall be deemed a breach
on
the part of Party A:
10.1.4.1
Failure by the Pledgor to take out or procure the property insurance for the
mortgaged objects, or failure of the Pledgor to deal with issues relating to
the
insurance indemnity as agreed in the Pledge Agreement, upon any insurance
accident;
10.1.4.2
Failure of the Pledgor to deal with issues relating the damages in accordance
with the Pledge Agreement upon the damage to, loss of or decrease in the value
of, the pledged objects by virtue of the act on the part of any third
party;
10.1.4.3
The Pledgor disposes of the pledged objects with the permission of Party B,
but
fails to apply the proceeds from such disposition as stipulated in the Pledge
Agreement;
10.1.4.4
The Pledgor fails to reinstate the value of the pledged objects in a timely
manner or to provide other guarantees acceptable to Party B, upon the damage
to,
loss of or decrease in the value of the pledged objects that suffice to
prejudice the satisfaction of the debts hereunder;
10.1.4.5
Other breaches on the part of the Pledgor as set forth in the Pledge
Agreement.
10.1.5
Failure of Party A to provide new securities shall be deemed a breach of Party
A
upon any of the following cases: the Security Contract or other guarantees
fails
to enter into force, is null and void, cancelled, or occurrence of other
circumstances that result in loss of being a guarantee wholly or partly on
the
part of such guarantee hereunder or refusal of such guarantee to perform its
obligations hereunder.
142
10.2
Remedies for Breach
Party
B
is entitled to elect one or several of the rights set out below upon any cases
set out in 10.1.1 through 10.1.5:
10.2.1
Cease to extend the loan, declare all loan due promptly, request Party A to
repay and/or pay without delay any and all principal of, accrued interests
thereon as well as costs hereunder, whether due or not at then time.
10.2.2
Charge Party A a fine for breach at the rate of 0.5%
of
the
principal of the loan hereunder;
10.2.3
In
case Party A fails to use the loan hereunder as agreed, a penalty interest
shall
be charged on any part of loan appropriated, in accordance with related
regulations of PBC.
10.2.4
A
compound interest shall be charged on any interest not paid when due by Party
A
at the interest rate and in the interest settlement method, prescribed in
ARTICLE 4 hereof, prior to the scheduled maturity date.
10.2.5
In
the case of any overdue repayment, appropriate interest and compound interest
shall be charged on any principal and interest, including the principal and
interest declared due by Party B ahead of schedule, at the applicable interest
rate of overdue loan and in the interest settlement manner specified herein.
Overdue repayment as mentioned hereinabove refers to such repayment of loan
by
Party A not as scheduled or beyond the timescale for repayment as set forth
herein.
10.2.6
Transfer and withhold any amount in any currency, out of the account opened
by
Party A with any branch of China Construction Bank.
10.2.7
Request Party A to provide a new security for the debts hereunder subject to
requirements of Party B.
10.2.8
Enforce the security.
10.2.9
Terminate this Contract.
ARTICLE
11 MISCELLANEOUS
11.1
The
penalty interest shall be charged at the monthly rate of 9.3255% for any overdue
part of the loan.
11.2
The
plan for repayment of loan hereunder shall be made in the principle set out
in
the Accounting Rules for Financial Enterprise (hereinafter referred to as
“ARFE”). In the case of any discrepancy between the ARFE and this Contract, the
ARFE shall apply.
143
ARTICLE
12 DISPUTE RESOLUTION
Any
dispute arising out of or in connection with this Contract shall be settled
by
mutual friendly negotiation, in case no successful settlement reached therefrom,
such dispute shall be determined by means of
12.1:
12.1
Institute an action with the people’s court at the place where Party B
resides.
12.2
Submit to ___________ Arbitration Committee at the place of __________ for
arbitration in accordance with rules and procedures then currently in force.
The
arbitral award reached thereby shall be final and binding upon both Parties.
During
the action or arbitration, any provisions contained herein shall be continued
to
be performed except for matters in dispute.
ARTICLE
13 EFFECTIVENESS
This
Contract shall enter into force upon being signed and sealed by the legal
representatives (persons in charge) or duly authorized signatories of both
Parties hereto.
ARTICLE
14
This
Contract is made in
triplicate.
ARTICLE
15 ACKNOWLEDGEMENT
15.1
Party A hereby acknowledges to have clear knowledge of the business scope and
authority limit of Party B.
15.2
Party A have read carefully all the articles contained herein. Party B has,
upon
request of Party A, made appropriate explanation and notes to this Contract.
Party A has been clearly aware of and fully understood the implication of all
articles set out herein.
15.3
Party A has the full and sufficient authority and power to sign this Contract.
Party
A:
(Common Seal)
Legal
representative (person in charge) or duly authorized representative:
(Signature)
Date:
22nd
August
2005
144
Party
B:
(Common Seal)
Person
in
charge or duly authorized representative: (Signature)
Date:
22nd
August
2005
145
Guarantee
Contract
Tianjin
Branch, China Construction Bank
146
Contract
No: JHTJRLBZ
2005002
Guarantor
(Party A): Tianjin
Sheng Da Steel Mill Co., Ltd.
Domicile:
Jinmei
Street, Daqiuzhuang Town, Jinghai County
Postal
Code: 301606
Legal
Representative: Xx
Xxxxxxxx
Fax:
Tel:
00000000
Creditor
(Party B): Tianjin
Branch, China Construction Bank
Domicile:
X0.00,
Xxxxxxx Xxxx, Xxxx Xxxxxxxx, Xxxxxxx Xxxx
Postal
Code:
300203
Legal
Representative: Xxx
Xxxxxxx
Fax:
00000000
Tel:
00000000
147
148
Guarantor
(hereinafter referred to as Party A): Tianjin Sheng Da Steel Mill Co.,
Ltd.
Creditor
(hereinafter referred to as Party B): Tianjin Branch, China Construction
Bank
In
order
to guarantee the fulfillment of
RMB
Currency Loan Contract
(hereinafter referred to as Principle Contract) with contract No.:
JHTJRL 2005002
signed
by Xxxxxxx
Xxxxxxxxxxx Metal Sheet Co., Ltd. (hereinafter
referred to as Debtor) and Party B, Party A agrees to guarantee the debt in
the
principle contract with joint guarantee responsibilities so as to protect the
creditor’s right of Party B. Both parties signed this contract after friendly
negotiation in accordance with the related laws and regulations of China.
Article
1 Modes of Guarantee
Party
A bears joint guarantee responsibilities.
Party
A confirms that Party B has the right to require Party A to bear the guarantee
responsibilities in the range of guarantee when debtor does not fulfill its
debts no matter what guarantee is provided by Party B under the principle
contract (including but not limited to guarantee, mortgage, hypothecation,
letter of guarantee, stand-by L/C etc).
Article
2
Range of Guarantee
The
range
of guarantee of Party A was limited to total principle RMB
5,400,000,
interest (including compound interest and penalty interest), breaches of
contract damages, compensation expenses and any expense paid to fulfill the
creditor’s right (including but not limited to legal cost, arbitration cost,
attachment cost, business trivial expenses, execution cost, evaluation cost,
and
auctioneer's fee etc).
Article
3
Duration Guarantee
The
duration guarantee is from the effect date of this contract to two years after
the fulfillment date of principle contract. If Party A agrees to extend the
creditor right, the duration guarantee shall be expired at the date of two
years
after the new fulfillment date of debts.
Article
4 The Alternation of Guaranteed Principle Contract
Party
A confirms that it shall be confirmed as agreement of Party A when Party B
and
debtor agrees to alter the articles of principal contract, and the guarantee
responsibilities of Party A shall not be exempted except:
|
(1)
|
Extension
of fulfillment term of
debts;
|
|
(2)
|
Adding
the principles of
creditors.
|
Article
5 The Independence of Contract Validity
This
contract is independent from the principle contract; the invalidity thereof
shall not affect the validity of this contract. If the principle contract is
confirmed as invalidity, Party A shall bear the joint guarantee responsibilities
for the debt of restitution of property or compensation.
149
Article
6
Guarantee Capacity
During
the duration guarantee, if Party A loses or may lose its guarantee capacity,
or
the legal person and other organizations as guarantor are contracted, leased,
combined, jointed, divided, pooled, remolded
with the stock system, or cancelled, Party A shall notice Party B in written
in
advance. All liabilities under this contract shall be borne by alternated
institution or the institution that cancelled Party A. If Party B do not agree
with the relevant guarantee capacity of altered institution, Party A or the
institution that cancelled Party A shall supply new guarantee for the
requirement of Party B and sign the relevant guarantee contract.
During
the duration guarantee, Party A shall not bear other guarantee to third party
that would exceed its guarantee capacity without the agreement of Party B in
written.
Article
7
Supervision in Financial Status to Guarantor
During
the duration guarantee, Party B has the right to supervise the assets and
financial status; Party A shall submit related information such as financial
statements according to the facts.
Article
8 Taking the Guarantee Responsibilities in Advance
During
the duration guarantee, if Party B announces the maturity of debts in advance,
Party B has the right to require Party B to take guarantee responsibilities
within 7 bank working days before the maturity date in advance; and Party A
shall agree it.
Article
9
Payment of Accounts Payable
Party
B
has right to transfer money directly from Party A’s account in China
Construction Bank to pay the total accounts payable in the range of guarantee.
Article
10 Other Articles Agreed by Both Parties
|
1)
|
During
the duration guarantee, the debtor is combined, divided,
pooled, remolded
with the stock system, increased or decreased its registered capital,
jointed, pooled or altered its name etc, the guarantee responsibilities
of
Party A shall not be decreased or exempted.
|
|
2)
|
Guarantor
has the right to supervise the usages of the loans.
|
|
3)
|
When
Party B supply foreign currency loan to debtor, Party A agrees to
take the
guarantee responsibilities in accordance with Foreign Currency Loan
Contract; if Party A uses the other currency to fulfill the liabilities,
it shall be agreed by Party B and calculated in bank selling rate
in the
date of payment.
|
|
4)
|
Blank
|
|
5)
|
Blank
|
|
6)
|
Blank
|
150
Article
11 Settlements of Disputes
Any
dispute arisen from this contract shall be settled through friendly negotiation,
or both parties shall settle it by using the
first
method
of:
|
1)
|
filing
the case to the People’s count in the domicile of Party
B;
|
|
2)
|
submitting
to(
Blank ) Arbitration
Committee (in (
Blank ) )
for arbitration in accordance with its arbitration rules. The award
is
final and has the legal force to both parties.
|
During
the litigation or arbitration, the articles without dispute are still valid.
Article
12 Effect of the Contract
This
contract shall be affected after signed by legal representative or authorized
representative of both parties or stamped (if Party A is natural person, it
shall sign in person).
Article
13 This contract has three originals.
Article
14 Announcement Articles
|
1)
|
Party
A is well informed the business scope and authorization limit of
Party B.
|
|
2)
|
Party
A has already read all articles of this contract and specially noticed
the
articles in boldface. With the requirement of Party A, Party B has
already
interpreted the relevant articles. Party A has gotten known and fully
understood the articles in this contract and relevant legal results.
|
|
3)
|
Party
A has right to sign this contract.
|
Party
A
(stamp):
Legal
representative (principle) or Authorized representative (signature): Xx
Xxxxxxxx
August
22, 2005
Party
B
(stamp):
Principle
or Authorized representative (signature): Xx Xxxxxxx
August
22, 2005
151
RENMINBI
LOAN CONTRACT
CHINA
CONSTRUCTION BANK TIANJIN BRANCH
152
Contract
No.: Gongyeliu 2005004
Type
of
Loan: Working Capital for Industrial Enterprise
Borrower(Party
A): Tianjin Daqiuzhuang Metal Sheet Co., Ltd
Domicile:
Daqiuzhuang Town, Jinghai County, Zip code: 301600
Legal
Representative(Person in charge): Xx Xxxxxxxx
Fax: Tel:
00000000
Lender(Party
B): China Construction Bank Corporation Tianjin Branch Jinghai
Sub-branch
Domicile:
Jinghai Town
Zip
code:
301600
Person
in
charge: Xxx Xxxxx
Fax:00000000
Tel: 00000000
153
Parties
to This Contract:
(1)
Borrower(hereinafter referred to as “Party A”): Tianjin Daqiuzhuang Metal Sheet
Co., Ltd
And
(2)
Lender (hereinafter referred to as “Party B”): China Construction Bank
Corporation Tianjin Branch, Jinghai Sub-branch
WHEREAS,
Party A
has applied for a certain loan from Party B;
WHEREAS,
Party B
agrees to extend such loan to Party A upon the terms and conditions contained
herein.
NOW,
THEREFORE, the
Parties agree to enter into this RENMINBI
LOAN CONTRACT
(hereinafter referred to as “this Contract”) through mutual friendly negotiation
on the aforesaid issue in accordance with related laws and regulations, subject
to the terms and conditions to be set forth hereinafter.
ARTICLE
1 LOAN AMOUNT
The
loan
to be provided by Party B to Party A hereunder is in sum of RMB (amount in
words) Eight
Million and One Hundred Thousand Yuan only.
ARTICLE
2 LOAN PURPOSE
The
loan
to be extended by Party B hereunder shall be applied to repay the outstanding
and payable debts as existing under the contract numbered 2004-005 between
the
Borrower and our bank.
ARTICLE
3 LOAN TERM
The
mutually-agreed-upon term of the loan hereunder is twelve (12) months,
commencing as from August 22nd
2005 and
ending on August 15th
2006.
In
case
the starting date of the term of the loan hereunder doesn’t coincide with the
date shown in the voucher for deposit of loan, then the date indicated in the
voucher for deposit of the first loan shall be regarded as the starting date
of
the loan term hereunder. Any voucher for deposit of loan is integral part of
this Contract both of which are equally authentic.
154
ARTICLE
4 INTEREST RATE, INTEREST CALCULATION AND SETTLEMENT
4.1
The
interest rate of the loan hereunder is agreed to be 6.217%
per
month.
4.2
The
interest on the loan hereunder shall arise as from the date the loan is
deposited in the account of Party A. It is agreed that the interest on the
loan
hereunder shall be accrued on daily basis and settled on monthly (quarterly)
basis, the date for interest settlement is agreed to be fixed at the
20th
day of
each month (last month of appropriate quarter), in addition, the daily interest
rate = monthly interest rate/30.
4.3
In
the case of adjustment to the interest rate by the People’s Bank of China upon
concluding of the Contract and prior to the grant of the first part of the
loan
hereunder, __(i)__ shall apply:
|
(iii)
|
Continue
to apply the stipulated interest rate herein.
|
|
(iv)
|
Apply
a new interest rate adjusted in the light of new interest rate
policy.
|
4.4
Any
adjustment to the agreed upon interest rate and the means for calculation and
collection of accrued interest shall be subject to related regulations of the
People’s Bank of China. In the event of any revision made by the People’s Bank
of China (hereinafter referred to as “PBC”) to such regulations which revision
is applicable to the loan hereunder, Party B is entitled to act in accordance
with the newly regulations last revised by the PBC without having to send a
notice to Party A.
ARTICLE
5 GRANT AND USE OF LOAN
5.1
Conditions Precedent to Grant of Loan
5.1.1
Only to the extent the following preconditions are met or satisfied, except
as
waived by Party B wholly or partially, Party B is obliged to make the loan
available to Party A:
|
(v)
|
Party
A has completed any and all legally required formalities or procedures
in
respect of the loan hereunder, such as approval, registration, delivery,
etc., pursuant to related laws and regulations;
|
|
(vi)
|
The
Security Contract or other forms of guarantee as acceptable to Party
B,
has/have entered into full force where such Security Contract or
other
guarantees is/are created for this Contract;
|
|
(vii)
|
None
of defaults set forth herein has occurred to Party A;
|
155
|
(viii)
|
Other
preconditions as both Parties hereto may agree;
|
5.1.2
Party B shall, within three
(3) working
days following the date the required preconditions are satisfied on the part
of
Party A, make the loan available to Party A.
5.2
Plan for Use of Loan
5.2.1
22nd
August
2005, in the amount of Eight Million and One Hundred Thousand Yuan;
5.2.2
DD
MM YY, in the amount of _______________;
5.2.3
DD
MM YY, in the amount of _______________;
5.2.4
DD
MM YY, in the amount of _______________;
5.2.5
DD
MM YY, in the amount of _______________;
5.2.6
DD
MM YY, in the amount of _______________;
ARTICLE
6 REPAYMENT
6.1
Principle of Repayment
The
repayment of any part of the loan hereunder shall be made in the principle
of
first payment of accrued interest and late payment of due principal.
6.2
Payment of Interest
Party
A
shall pay Party B any and all accrued interest on appropriate loan at the
Interest Settlement Date as stipulated herein. The date for the initial payment
of accrued interest is the first interest settlement day following the
availability of the loan, and any and all accrued interests shall be paid up
together with the repayment of the last part of the outstanding principal.
6.3
Plan for Repayment of Loan
Party
A
shall repay the principal of the loan hereunder as scheduled below:
6.3.1
15th
August
2006 in the amount of Eight Million and One Hundred Thousand Yuan;
6.3.2
DD
MM YY in the amount of ______________________;
6.3.3
DD
MM YY in the amount of ______________________;
6.3.4
DD
MM YY in the amount of ______________________;
156
6.3.5
DD
MM YY in the amount of ______________________;
6.3.6
DD
MM YY in the amount of ______________________;
6.4
Form of Repayment
Party
A
shall, ahead of the repayment date prescribed herein, deposit in an account
opened with Party B the sufficient amount of fund which is to be applied, in
the
manner of automatic transfer, to repay any part of loan then currently becoming
due, or transfer from any other account an appropriate amount for repayment
of
any due principal at the repayment date set out herein; In case Party A fails
to
do so, Party B is entitled to withhold any such overdue amount from any account
opened by Party A with any branch of China Construction Bank.
6.5
Earlier Repayment
6.5.1
Party A may elect to prepay any accrued interest on the loan hereunder ahead
of
schedule upon a notice to Party B.
6.5.2
Party A may repay the principal, in whole or part, ahead of schedule only upon
a
written application of thirty
(30)
banking
business days to Party B to which application Party B consents.
In
the
case of earlier repayment of the principal hereof, the interest thereon shall
be
computed on the basis of the number of days during which the principal is used
as loan and at the interest rate of the loan specified in ARTICLE 4 hereof.
Party
A
hereby agrees to pay Party B a compensation for any earlier repayment which
compensation shall be calculated as follows: Compensation = Amount of principal
to be repaid ahead of schedule (times) _______ (times) Number of days prior
to
the scheduled repayment date.
In
case
Party A elects to repay partial principal of the loan hereunder, such repayment
shall be made in the order exactly contrary to the order prescribed in the
Plan
for Repayment, thereafter, interest shall be charged on any outstanding part
of
loan hereunder at the interest rate as stipulated herein.
ARTICLE
7 LOAN SECURITY
In
the
case of secured loan, the security shall be provided in the form of 7.2
(optional):
7.1
Suretyship
7.2
Mortgage
7.3
Pledge
157
7.4
Standby L/C
7.5
Credit insurance
7.6
Others; to
be
specified.
ARTICLE
8 RIGHTS AND OBLIGATIONS OF PARTY A
8.1
Rights of Party A
8.1.1
Party A is entitled to request Party B to extend the loan subject to the terms
and conditions set out herein;
8.1.2
Party A is entitled to use the loan for purposes described herein;
8.1.3
Party A is entitled to apply to Party B for an extension of loan to the extent
related requirements of Party B are fulfilled;
8.1.4
Party A is entitled to have Party B imposed under the obligation to maintain
confidential any and all financial materials together with any trade secrets
relating to production & operation to be furnished by Party A, except as
otherwise provided for by related laws and regulations.
8.2
Obligations of Party A
8.2.1
Party A is obliged to present, as required by Party B, related financial and
accounting documents as well as appropriate materials in respect of production
& operation, including without limitation supply Party B with the balance
sheet ending the last quarter as well as the profit and loss sheet (the income
and expenditure sheet in the case of nonprofit institution) ending the last
quarter within the first
ten (10) banking
business days of each quarter, and the supply Party B with the cash flow for
then current year at the end of such year, in addition, Party A shall be liable
for the truthfulness, completeness as well as the validity of such materials
supplied as hereinabove;
8.2.2
Party A shall use the loan for purposes stipulated herein, neither unauthorized
diversion for other use nor appropriation thereof for whatsoever reasons is
tolerated;
8.2.3
Party A shall, on its own initiative, be voluntarily subject to any inspection
and/or supervision conducted by Party B over the production & operation,
financial activities, as well as the use of loan on the part of Party A, and
shall provide assistance as required;
8.2.4
Party A shall repay the principal hereof and pay any accrued interest thereon
as
scheduled herein;
158
8.2.5
Neither Party A nor any of its investors may siphon out the capital or transfer
any assets with an intent to shrug off the debts owed to Party B;
8.2.6
Party A shall refrain from provide a security with any asset formed with the
loan hereunder for any third party, in the absence of consent of Party B, before
the principal hereof and any interest accrued thereon are satisfied in full;
8.2.7
During the whole life of this Contract, any intended provision of security
by
Party A for any party’s debts that may impair Party A’s ability to repay the
loan hereunder shall be subject to a written notice to and consent from Party
B;
8.2.8
In
the event that the surety hereunder, during the term of this Agreement, stops
production, ceases to carry out business, is de-registered, has its business
license suspended, goes bankrupt, revoked or suffers a loss in operation, etc.
that might deprive Party B of the whole or partial capacity to act as a surety
appropriate to the loan hereunder, or in the case of decrease in the value
of,
damage to or loss of the mortgaged objects or pledged articles, Party A shall
upon the request of Party A provide any other securities as required by Party
B;
8.2.9
During the term of this Agreement, Party A is obliged to notify in a timely
manner Party B of any change in/of the name, legal representative(person in
charge), domicile, business scope, registered capital, etc. that may occur
to
Party A;
8.2.10
In
the event a contracting, lease, stock reconstruction, pool, consolidation,
merger & acquisition, division, joint venture, application for business stop
for internal rectification, application for dissolution or application for
being
declared to be bankrupt, etc. occurs to Party A that suffice to impair the
satisfaction of the creditor’s rights of Party B, Party A shall deliver to Party
B a written notice of
thirty (30)
days for
approval, and shall take step to satisfy the debts hereunder and effect the
guarantees provided therefore;
8.2.11
In
the event that Party A, during the term of this Agreement stops production,
ceases to carry out business, is de-registered, has its business license
suspended, the legal representative or key responsible person of which commits
unlawful act and is involved in significant actions, experiences serious
difficulties in operating and manufacturing, undergoes deteriorating in
financial standing, etc. as well as other circumstances that might be materially
adverse to the repayment obligation fulfillment hereunder, Party A shall give
a
written notice to Party B promptly and shall at the request of Party A satisfy
the debts hereunder and effect the guarantee provided for the said
debt;
159
8.2.12
Party A shall bear any and all costs or expenses incurred in respect of this
Contract and the lawyer, insurance, evaluation, registration, custody,
authentication, notary, etc. relating to the security provided hereunder.
ARTICLE
9 RIGHTS AND OBLIGATIONS OF PARTY B
9.1
Rights of Party B
9.1.1
Party B is entitled to have access to or to be informed of the information
relating to the production & operation, as well as financial activities on
the part of Party A, and to require Party A to provide related documentation,
such as statistics of related plans and accounting statements;
9.1.2
Party B is entitled to transfer and withhold any amount in whatsoever currency
from any account opened by Party A with any branch of China Construction Bank,
for any money payable to Party B by Party A hereunder;
9.2
Obligations of Party B
9.2.1
Party B shall make the loan available to Party A in full as scheduled herein,
except for the delay by virtue of Party A;
9.2.2
Party B shall keep and maintain confidential any and all financial materials
as
well as the trade secrets in respect of the production & operation of Party
A that may be supplied thereby, except to the extent required by related laws
and regulations.
ARTICLE
10 LIABILITIES FOR BREACH
10.1
Breaching Event
10.1.1
Breach on the Part of Party A
10.1.1.1
Failure to provide true, complete and valid accounting materials, information
relating to production & operation and others as required by Party B;
10.1.1.2
Failure to use the loan for purposes stipulated herein;
10.1.1.3
Failure to repay the principal of and the accrued interest on the loan as
scheduled;
10.1.1.4
Refuse to be subject to or interfere with the inspection and/or supervision
by
Party B over the use of loan by Party A;
10.1.1.5
Transfer of assets, siphoning out fund with an intent to shrug debts;
160
10.1.1.6
Failure to satisfy any due debt as a result of detonation of the operation
and
financial standing, or involved or will be involved in any significant suit
or
arbitral proceedings or any other legal dispute that suffice to make Party
B
believe that the rights and interests of Party B hereunder might be or have
been
effected or impaired thereby;
10.1.1.7
Any other debt owed by Party A has effected or might effect the fulfillment
of
the obligations by Party A to Party A hereunder;
10.1.1.8
Failure to satisfy other debts owed to China Construction Bank when due;
10.1.1.9
Any act occurred on the part of Party A during the term of this Contract, such
as contracting, lease, consolidation, M&A, joint venture, division, pool,
stock reconstruction, etc. that results in change in the operation means or
reconstruction of operation method and that reasonably makes Party B to believe
its rights and interest hereunder might be or have been effected or impaired
thereby;
10.1.1.10
Other circumstances which suffice to impair the satisfaction of creditor’s
rights of Party B in the sole opinion of the same;
10.1.1.11
In breach of other obligations provided herein.
10.1.2
Failure by Party A to provide a new security as acceptable to Party B upon
any
of the following cases on the part of the surety, shall be deemed a breach
on
the part of Party A:
10.1.2.1
Occurrence on the part of the surety hereunder, of contracting, lease,
consolidation, M&A, joint venture, division, pool, stock reconstruction,
bankruptcy, revocation, etc. that suffice to impair the joint and several
liability to be assumed by the surety hereunder;
10.1.2.2
The surety hereunder provide such a security for any third party which security
is beyond its assumption capacity;
10.1.2.3
The surety loses or might lose the capacity to stand as surety;
10.1.2.4
Other breaches on the part of the surety as set out herein.
10.1.3
Failure by Party A to provide a new security as acceptable to Party B upon
any
of the following cases on the part of the Mortgagor, shall be deemed a breach
on
the part of Party A:
10.1.3.1
Failure by the Mortgagor to take out or procure the property insurance for
the
mortgaged objects, or failure of the Mortgagor to deal with issues relating
to
the insurance indemnity as agreed in the Mortgage Agreement, upon any insurance
accident;
161
10.1.3.2
Failure of the Mortgagor to deal with issues relating the damages in accordance
with the Mortgage Agreement upon the damage to, loss of or decrease in the
value
of, the mortgaged objects by virtue of the act on the part of any third party;
10.1.3.3
In the absence of consent from the Party B in writing, gifts, assignment, lease
out, overlay mortgage, relocation, or otherwise disposition of the mortgaged
objects on the part of Mortgagor;
10.1.3.4
The Mortgagor disposes of the mortgaged objects with the permission of Party
B,
but fails to apply the proceeds from such disposition as stipulated in the
Mortgage Agreement;
10.1.3.5
The Mortgagor fails to reinstate the value of the mortgaged objects in a timely
manner or to provide other guarantees acceptable to Party B, upon the damage
to,
loss of or decrease in the value of the mortgaged objects that suffice to
prejudice the satisfaction of the debts hereunder;
10.1.3.6
Other breaches on the part of the Mortgagor as set forth in the Mortgage
Agreement.
10.1.4
Failure by Party A to provide a new security as acceptable to Party B upon
any
of the following cases on the part of the Pledgor, shall be deemed a breach
on
the part of Party A:
10.1.4.1
Failure by the Pledgor to take out or procure the property insurance for the
mortgaged objects, or failure of the Pledgor to deal with issues relating to
the
insurance indemnity as agreed in the Pledge Agreement, upon any insurance
accident;
10.1.4.2
Failure of the Pledgor to deal with issues relating the damages in accordance
with the Pledge Agreement upon the damage to, loss of or decrease in the value
of, the pledged objects by virtue of the act on the part of any third
party;
10.1.4.3
The Pledgor disposes of the pledged objects with the permission of Party B,
but
fails to apply the proceeds from such disposition as stipulated in the Pledge
Agreement;
10.1.4.4
The Pledgor fails to reinstate the value of the pledged objects in a timely
manner or to provide other guarantees acceptable to Party B, upon the damage
to,
loss of or decrease in the value of the pledged objects that suffice to
prejudice the satisfaction of the debts hereunder;
10.1.4.5
Other breaches on the part of the Pledgor as set forth in the Pledge
Agreement.
10.1.5
Failure of Party A to provide new securities shall be deemed a breach of Party
A
upon any of the following cases: the Security Contract or other guarantees
fails
to enter into force, is null and void, cancelled, or occurrence of other
circumstances that result in loss of being a guarantee wholly or partly on
the
part of such guarantee hereunder or refusal of such guarantee to perform its
obligations hereunder.
162
10.2
Remedies for Breach
Party
B
is entitled to elect one or several of the rights set out below upon any cases
set out in 10.1.1 through 10.1.5:
10.2.1
Cease to extend the loan, declare all loan due promptly, request Party A to
repay and/or pay without delay any and all principal of, accrued interests
thereon as well as costs hereunder, whether due or not at then time.
10.2.2
Charge Party A a fine for breach at the rate of
6.3%
of the
principal of the loan hereunder;
10.2.3
In
case Party A fails to use the loan hereunder as agreed, a penalty interest
shall
be charged on any part of loan appropriated, in accordance with related
regulations of PBC.
10.2.4
A
compound interest shall be charged on any interest not paid when due by Party
A
at the interest rate and in the interest settlement method, prescribed in
ARTICLE 4 hereof, prior to the scheduled maturity date.
10.2.5
In
the case of any overdue repayment, appropriate interest and compound interest
shall be charged on any principal and interest, including the principal and
interest declared due by Party B ahead of schedule, at the applicable interest
rate of overdue loan and in the interest settlement manner specified herein.
Overdue repayment as mentioned hereinabove refers to such repayment of loan
by
Party A not as scheduled or beyond the timescale for repayment as set forth
herein.
10.2.6
Transfer and withhold any amount in any currency, out of the account opened
by
Party A with any branch of China Construction Bank.
10.2.7
Request Party A to provide a new security for the debts hereunder subject to
requirements of Party B.
10.2.8
Enforce the security.
10.2.9
Terminate this Contract.
163
ARTICLE
11 MISCELLANEOUS
11.1
The
penalty interest as described in ARTICLE 10.2.5 shall be 1.5 time that set
out
in ARTICLE 4.1, alternatively 9.3255% per month for any overdue part of the
loan.
11.2
It
is agreed that the penalty interest as described in ARTICLE 10.3 shall be
charged at double rate as set forth in ARTICLE 4.1, alternatively, 12.434%
per
month for any overdue part of loan.
11.3
The plan for repayment of loan hereunder shall be made in the principle set
out
in the Accounting Rules for Financial Enterprise (hereinafter referred to as
“ARFE”). In the case of any discrepancy between the ARFE and this Contract, the
ARFE shall apply.
ARTICLE
12 DISPUTE RESOLUTION
Any
dispute arising out of or in connection with this Contract shall be settled
by
mutual friendly negotiation, in case no successful settlement reached therefrom,
either party may institute such dispute with the people’s court at the place
where Party B resides for determination or submit to ___________ Arbitration
Committee at the place of __________ for arbitration in accordance with rules
and procedures then currently in force. The arbitral award reached thereby
shall
be final and binding upon both Parties.
During
the action or arbitration, any provisions contained herein shall be continued
to
be performed except for matters in dispute.
ARTICLE
13 EFFECTIVENESS
This
Contract shall enter into force upon being signed and sealed by the legal
representatives (persons in charge) or duly authorized signatories of both
Parties hereto.
ARTICLE
14
This
Contract is made in
four
copies.
ARTICLE
15 ACKNOWLEDGEMENT
15.1
Party A hereby acknowledges to have clear knowledge of the business scope and
authority limit of Party B.
15.2
Party A have read carefully all the articles contained herein. Party B has,
upon
request of Party A, made appropriate explanation and notes to this Contract.
Party A has been clearly aware of and fully understood the implication of all
articles set out herein.
164
15.3
Party A has the full and sufficient authority and power to sign this Contract.
Party
A:
(Common Seal)
Legal
representative (person in charge) or duly authorized representative:
(Signature)
Date:
19th
August
2005
Party
B:
(Common Seal)
Person
in
charge or duly authorized representative: (Signature)
Date:
22nd
August
2005
165
MORTGAGE
CONTRACT
CHINA
CONSTRUCTION BANK
TIANJIN
BRANCH
166
Contract
No.: Diya 2005-004
The
Mortgagor: Tianjin Daqiuzhuang Metal Sheet Co., Ltd. (hereinafter “Party
A”)
Domicile:
Daqiuzhuang Town, Jinghai County, Tianjin
Zip
code:
301600
Legal
Representative (person in charge): Xx Xxxxxxxx
Fax:
Tel:
00000000
The
Mortgagee: China Construction Bank Tianjin Branch Jinghai
Sub-branch
Domicile:
Jinghai Town, Tianjin
Zip
code:
301600
Person
in
charge: Xxx Xxxxxx
Fax:
00000000
Tel:
00000000
167
The
Mortgagor: Tianjin Daqiuzhuang Metal Sheet Co., Ltd. (hereinafter “Party
A”)
The
Mortgagee: China Construction Bank Tianjin Branch Jinghai
Sub-branch
THIS
MORTGAGE CONTRACT is made and entered into by and between Party A and Party
B,
through mutual friendly negotiation on provision of security, in the form of
mortgage, by Party A voluntarily for guaranteeing and successful realization
of
the creditor’s rights created by the Renminbi Loan Contract (no. gongye2005-004)
between Party A (also known as “the Debtor”) and Party B (hereinafter “the
Principal Contract”) , in accordance with relevant laws and regulations, subject
to the terms and conditions to be set out herein.
ARTICLE
1 MORTGAGED OBJECTS
Party
A
agrees to provide mortgage with the properties set out in ARTICLE 16- List
of
Mortgaged Objects.
Party
A
undertakes that it has the legal ownership or title or disposal rights of such
mortgaged objects.
Party
A
undertakes that no adverse cases such as title dispute, attachment or seizure,
exist in respect of the mortgaged objects.
ARTICLE
2 GUARANTY SCOPE
The
guaranty scope of the mortgage hereunder shall include the principal of the
loan
in the sum of RMB
Eight million One hundred thousand Yuan only,
the
accrued interest on the loan, including any compound interest and penalty
interest, if any, fine for breach, compensation or indemnity, any expenses
paid
first by Party B on behalf of Party A, as well as any and all costs and
expenditure that may be incurred in respect of the realization by Party B of
its
creditor’s rights and right to mortgage, including without limitation litigation
cost, arbitration costs, fees for attachment, travel expense, enforcement fees,
evaluation charges, as well as auction fees, etc.
In
case the Debtor fails to perform any of its obligations under the Principal
Contract, Party B shall be entitled to demand Party A to assume the guaranty
liabilities within the abovementioned guaranty scope, whether or not Party
B is
entitled to any other securities or guarantees for its creditor’s rights under
the Principal Contract, including but not limited to suretyship, mortgage,
pledge, letter of guarantee, standby l/c, etc.
168
ARTICLE
3 DURATION OF MORTGAGE
The
mortgage duration shall remain in effect until and unless two (2) years
following the expiry of the limitation of action for the guaranteed creditor’s
rights, comes to the end.
ARTICLE
4 MODIFICATION OF THE GUARANTEED PRINCIPAL CONTRACT
Party
A
hereby acknowledges that a prior consent shall be deemed to have been given
by
Party A for any modification of the Principal Contract between Party B and
the
Debtor, in no event shall Party A’s guaranty liability be relieved or
discharged, except for the following cases:
4.1
Extend the term for performance of the debts;
4.2
Increase the principal amount of the creditor’s rights.
ARTICLE
5 INDEPENDENCE OF VALIDITY
This
Contract shall be independent from the Principal Contract the invalidity of
which shall have impact on this Contract for whatever reasons. In case the
Principal Contact is determined to be invalid, Party A shall be under the
guaranty liability with the mortgaged objects, for any debt created as a result
of return or property or compensation for loss on the part of the Debtor.
ARTICLE
6 CUSTODY OF MORTGAGED OBJECTS
During
the mortgage term, Party A is obliged to take appropriate custody of the
mortgaged objects, to keep the same from intact, and shall be subject to
inspection by party B from time to time. Party B shall be keep informed of
any
damage to, loss of or any other circumstances resulting in a noticeable decrease
in value of, the mortgaged objects, in such a case, Party A shall provide Party
B with any other appropriate guarantees the value of which is equal to the
decrease in value of the mortgaged objects within
five
banking
business days.
ARTICLE
7 INSURANCE FOR MORTGAGED OBJECTS
During
the mortgage term, Party A shall take out appropriate property insurance for
the
mortgaged objects, in accordance with related laws and regulations, as well
as
requirements laid down by Party B in respect of the coverage and insured amount
therefore. The insurance term shall be three
(3)
months
longer than the performance duration of the Principal Contract, Party A shall
refrain from suspending or revoking the insurance on whatsoever grounds during
the specified insurance term.
Party
A
shall require the to indicate on the policy the following particulars: Party
B
is the indemnitee of precedence of the insurance(i.e. the first beneficiary),
in
the case of any insurance accident, the Insurer shall pay the indemnity to
the
account to be named by Party B. In case the mortgaged objected has been insured
duly, but Party B is not endorsed as the indemnitee of precedence, Party B
shall
be endorsed or registered as the indemnitee of precedence.
169
In
respect of the insurance indemnity, Party A agrees Party B is entitled to take
any of the following steps and agrees to provide reasonable assistance in
undergoing related formalities:
7.1
Applied to repay or pay of the principal of and accrued interest on the loan
hereunder, as well as any other expenses in relation thereto;
7.2
Changed into term deposit and the deposit certificate is provided as the pledge;
7.3
Applies to repair the mortgaged objects for purpose of reinstating the value
thereof upon consent of Party B;
7.4
Lodged with a third party as appointed by Party B;
7.5
Make
free disposal of the insurance indemnity upon provision by Party A of any new
guaranty as required by Party B.
ARTICLE
8 THIRD PARTY DAMAGES
During
the mortgage term, any damages as a result of decrease in value of the mortgaged
objects by reason of the act of any third party shall be paid to the account
named by Party B. In respect of the said damages, Party A agrees Party B is
entitled to take any of the following steps and agrees to provide reasonable
assistance in undergoing related formalities:
8.1
Applied to repay or pay the principal of and accrued interest on the loan
hereunder, as well as any other expenses in relation thereto;
8.2
Changed into term deposit and the deposit certificate is provided as the
pledge;
8.3
Applies to repair the mortgaged objects for purpose of reinstating the value
thereof upon consent of Party B;
8.4
Lodged with a third party as appointed by Party B;
8.5
Make
free disposal of the damages upon provision by Party A of any new guaranty
as
required by Party B.
During
the mortgaged term, Party A shall provide another guaranty acceptable to Party
B
in case that the value of the mortgaged objects is less than the principal
of
and accrued interests on the loan, as well as any other expenses incurred in
respect hereunder. The remaining value of the mortgaged objects shall be deemed
part of the guarantee for the debts.
170
ARTICLE
9 DISPOSAL OF MORTGAGED OBJECTS
9.1
During the mortgage term, Party A shall refrain from gifting, assigning, renting
out, re-mortgaging, relocating or otherwise disposing of the mortgaged objects
in the absence of prior written consent of Party B.
9.2
Any
disposal by Party A of the mortgaged objects during the mortgage term shall
be
subject to prior written consent from Party B, and Party A hereby agrees that
Party B is entitled to dispose of the proceeds from such disposal in the manner
of _______:
9.2.1
Applied to repay or pay the principal of and accrued interest on the loan
hereunder, as well as any other expenses in relation thereto;
9.2.2
Changed into term deposit and the deposit certificate is provided as the
pledge;
9.2.3
Lodged with a third party as appointed by Party B;
9.2.4
Make absolute disposal of the damages upon provision by Party A of any new
guaranty as required by Party B.
ARTICLE
10 REALIZATION OF MORTGAGE
Upon
any
of the following cases, Party A agrees that Party B is entitled to auction
or
sell the mortgaged objects at an agreed-upon price, in accordance with related
laws:
10.1
Party B fails to be paid upon the expiry of the performance term for the
repayment of the principal of the loan or the accrued interest on the loan,
wholly or partly, hereunder;
10.2
Other events allowing Party B to realize its creditor’s rights ahead of schedule
as stipulated herein.
ARTICLE
11 BREACH OF CONTACT
During
the mortgage term, in the case of any breach of ARTICLE 1, ARTICLE 6, ARTICLE
7,
ARTICLE 8, ARTICLE 9 hereof on the part of Party A, Party B is entitled to
require Party A to make appropriate correction within a specified timeframe,
provide appropriate guaranty and/or make appropriate compensation for any loss
therefrom, without prejudice to its right to dispose of the mortgaged objects
in
advance.
Party
A
hereby agrees that Party B is entitled to apply the proceeds from such disposal
in the manner of ______________:
11.1
Applied to repay or pay the principal of and accrued interest on the loan
hereunder, as well as any other expenses in relation thereto;
171
11.2
Changed into term deposit and the deposit certificate is provided as the
pledge;
11.3
Lodged with a third party as appointed by Party B;
11.4
Make
absolute disposal of the damages upon provision by Party A of any new guaranty
as required by Party B.
ARTICLE
12 REGISTRATION AND DEREGISTRATION OF MORTGAGED OBJECTS
In
case
appropriate registration is necessitated by the mortgaged objects, both parties
hereto shall work together to make required registration with appropriate
registry office upon signing of this Contract. Party A shall, at the effective
date hereof, supply Party B with the certificate of other rights in the
mortgaged objects, the original of the mortgage registration document, as well
as any other right certificates all of which shall be in possession of Party
B.
Party
B
shall work with Party A in a timely manner to deregister the mortgaged objects
with the appropriate registry office upon the satisfaction of the whole debts
under the Principal Contract and this Contract.
ARTICLE
13 ASSUMPTION OF COSTS
Any
and
all costs and expenses in respect of the evaluation, public notarization,
insurance, registration, authentication, custody, as well as drawing, etc.
shall
be borne by Party A.
ARTICLE
14 OTHER PROVISIONS BOTH PARTIES AGREE UPON
13.1_______[Intentionally
left blank]___________________________;
13.2_______[Intentionally
left blank]___________________________;
13.3
_______[Intentionally
left blank]___________________________;
13.4_______[Intentionally
left blank]___________________________;
ARTICLE
14 DISPUTE RESOLUTION
Any
dispute arising out of or in connection with the performance of this Contract
shall be settled by friendly negotiation between both Parties, in case of no
successful settlement therefrom, either party may elect to:____
(optional)
14.1
Lodge an action with the people’s court at the place where Party b resides; or
14.2
Submit to ___[BLANK]____
Arbitration Committee for determination at the place of _________ in accordance
with rules and procedures then currently in force. The arbitral award is final
and binding upon both parties.
172
During
the arbitration or action period, any provisions other than those in dispute
or
at issue shall continued to be performed by appropriate party or parties.
ARTICLE
15 LIST OF MORTGAGED OBJECTS
The
List
of Mortgaged Objects is as follows:
List
of
Mortgaged Objects
|
Name
of Mortgaged Object
|
Title
Certificate or Number
|
Location
|
Value
Shown in the Invoice of the Mortgaged Object(ten thousand
Yuan)
|
Evaluated
Value of Mortgage Object (ten thousand Yuan)
|
Amount
mortgaged for other creditor’s rights
|
Remarks
|
|
Machines
& Equipments
|
Daqiuzhuang
Town
|
1850.9
|
1778.75
|
None
|
See
Schedule attached
|
|
ARTICLE
17 PREREQUISITES FOR EFFECTIVENESS OF THIS CONTRAT
17.1
This
Contract shall enter into force upon the signature and/or common seal (signature
is in need only in the case of Party A being individual) by legal representative
(person in charge) or duly authorized signatory and the person in charge or
duly
authorized signatory of Party B;
17.2
Registration has been duly completed for the mortgaged objects set out in the
List of Mortgaged Objects hereinabove.
ARTICLE
18
This
Contract is made in four
copies.
ARTICLE
19 ACKNOWLEDGEMENT
19.1
Party A hereby acknowledges to have clear knowledge of the business scope and
authority limit of Party B.
173
19.2
Party A have read carefully all the articles contained herein and gave special
attention to the articles written in extra black letters. Party B has, upon
request of Party A, made appropriate explanation and notes to this Contract.
Party A has been clearly aware of and fully understood the implication of all
articles set out herein.
19.3
Party A has the full and sufficient authority and power to sign this Contract.
Party
A:
(Common Seal)
Legal
representative (person in charge) or duly authorized representative:
(Signature)
Date:
19th
August
2005
Party
B:
(Common Seal)
Person
in
charge or duly authorized representative: (Signature)
Date:
22nd
August
2005
174
List
of
Mortgaged Objects
The
Mortgagor: Registration
No.:
|
Name
|
Brand
|
Specification
|
Code
|
Quantity
|
Value
|
|
Main
motor
|
1000kw
|
4
|
1,359,000
|
||
|
Rolling
machine
|
1200
|
1
unit
|
10,960,000
|
||
|
Roll
straightener
|
17
|
2
|
1,109,745
|
||
|
Surface
grinding machine
|
M7140B
|
1
|
140,700
|
||
|
Generator
|
80kw
|
1
|
179,200
|
||
|
Rolled
sheet flattering machine
|
579,600
|
||||
|
Unprocessed
rolled sheet straightener
|
9
|
2
|
513,045
|
||
|
Low
voltage cubicle switchboard
|
1
set
|
448,000
|
|||
|
High
voltage cubicle switchboard
|
1
set
|
615,000
|
|||
|
Total
|
17,787,290
|
||||
|
Total
value of mortgaged objects/currency ( )
|
Say
RMB seventeen million seven hundred and seven thousand two hundred
and
ninety Yuan only
|
||||
175
LOAN
CONTRACT
CHINA
MERCHANTS BANK
FEB
2004
176
Contract
No.: [2005]Daizhidi5014
Parties
to this Loan Contract:
The
Lender: China Merchants Bank Tianjin Branch (hereinafter referred to as “Party
A”)
Person
in
charge: Xxxx Xxxxxx
Position:
President
Address: 00
Xxxxx
Xxxxx Xxxx Xxxx Xxxxxxxx, Xxxxxxx
Tel:
And
The
Borrower: Tianjin Daqiuzhuang Metal Sheet Co., Ltd. (hereinafter referred to
as
“Party B”)
Legal
Representative: Xx Xxxxxxxx
Position:
Chairman of the Board
Address:
Daqiuzhuang, Jinghai County, Tianjin
Tel:
WHEREAS,
Party B
has applied to Party A for a
certain amount of loan
for
purpose of Working
Capital.
WHEREAS,
Party A
agrees to extend such a loan after due process of examination.
NOW,
THEREFORE, both
Parties agree to enter into this Loan Contract based on the negotiation in
regard thereto in accordance with relevant laws and regulations, subject to
the
terms and conditions to be set out hereinafter.
177
ARTICLE
1
TYPE OF LOAN
This
Loan
to be provided hereunder is
Working Capital Loan.
ARTICLE
2 CURRENCY AND AMOUNT OF LOAN
The
loan
shall be provided in the currency of RMB
and in
the amount of Forty
Million Yuan Only.
ARTICLE
3 LOAN PURPOSE
The
loan
hereunder shall be used for purpose of working capital only, no diversion for
other purposes may be done without first obtaining written consent from Party
A.
ARTICLE
4 LOAN TERM
The
term
of the loan is twelve (12) months, commencing from 20 June 2005 and ending
on 19
June 2006. In case the date of the actual loan availability fails to coincide
with the abovementioned starting date of the term, the dates shown in the loan
receipt shall apply.
ARTICLE
5 INTEREST RATE AND INTEREST
5.1
Interest rate: The interest rate is agreed to be:_____(optional)
|
o
|
Fixed
interest rate:
_______________________
|
|
o
|
Floating
interest rate: 5.86%, to be adjusted on daily basis.
|
A
penalty
interest at the double
rate of
the aforesaid interest rate shall be charged on any part of loan the purpose
of
which is changed, appropriated or diverted for other purposes by Party B without
permission from Party A, without excluding the accrued interest in the ordinary
course. A penalty interest which 1.5 times that as aforementioned and elected,
shall be charged on any part of loan not paid by Party B when due.
Appropriate
interest shall be charged at the abovementioned penalty interest rate on any
part of loan which is overdue or diverted for other purposes not prescribed
herein as from the date of such due date or diversion of such part of loan,
until the principal of the loan together with accrued interest is discharged
in
full.
178
In
the
case of any adjustment by the People’s Bank of China (hereinafter referred to as
“PBC”) to the interest rate herein, the interest on the loan shall be calculated
at the interest rate so adjusted.
5.2
Interest Calculation: the interest on the loan shall accrue as from the date
of
the actual availability to Party B and on the basis of number of days during
which the loan is outstanding, as well as the actual amount of the loan extended
hereunder, and the interest shall be computed on the 20th
day of
the last month of each applicable quarter.
5.3
Interest Settlement: Party B shall pay any and all accrued interest on the
loan
at each applicable interest computation date which accrued interest may be
directly withheld or deducted by Party A from any deposit account of Party
B. In
case Party B fails to pay the accrued interest, Party A shall have the right
to
charge Party B a compound interest at the abovementioned penalty interest rate
on any overdue interest accrued hereunder.
ARTICLE
6 SECURITY
6.1
Tianjin
Sheng Da Steel Mill Co.,Ltd.
and
Baotou
Shengda Industrial Co., Ltd.
as named
by Party B shall stand for surety for the principal, accrued interest thereon,
as well as the any and all other costs in respect thereof hereunder both of
the
companies shall provide Party A with irrevocable guaranty letters, and/or
6.2
The
mortgage (pledge) shall be provided for the loan hereunder by _______ company
or
________ individual with the _________ owned or subject to legal disposal by
the
same, for which a mortgage or pledge contract is to be concluded by both
parties.
ARTICLE
7 RIGHTS AND OBLIGATIONS OF PARTY B
7.1
Party
B shall have the rights to be set out hereinafter:
7.1.1
To
withdraw and use the whole of loan as agreed herein;
7.1.2
To
deny any additional preconditions not stipulated herein;
7.1.3
To
assign or transfer its debt to any third party upon consent of Party A;
7.2
Party
B shall be under the following obligations:
179
7.2.1
To
provide any documents and/or materials as required by Party A, as well as the
information relating to all of its depository banks, accounts number and balance
existing therein, and to provide assistance in any investigation, examination
as
well as inspection to be carried out by Party A in respect of the loan
hereunder;
7.2.2
To
be subject to reasonable supervision by Party A over Party B’s use of the credit
loan, as well as supervision by the same over Party B’s production &
operation and the financial activities;
7.2.3
To
use the loan subject to the terms and conditions set out herein;
7.2.4
To
repay and pay in full the principal of and accrued interest on the loan as
scheduled herein;
7.2.5
To
be subject to Party A’s prior written consent in the case of assignment or
transfer of its debts hereunder, in whole or part, to any third party;
7.2.6
Upon any of the following cases, Party B is required to notify Party A promptly
and to take reasonable security measures necessary for repayment or
reimbursement in full of the principal of and accrued interest on the loan
hereunder, as well as any and all other costs that may occur
hereunder:
7.2.6.1
Substantial financial loss, assets loss or other financial crisis;
7.2.6.2
Provision of loan or stand surety, or provision of mortgage (pledge) with its
own properties (rights), for purpose of any third party’s interest or protecting
any third party from any loss;
7.2.6.3
Consolidation (M&A), division, reconstruction, joint venture (cooperative),
transfer of property rights, stock reconstruction, etc;
7.2.6.4
Cease to carry out business, have its business license suspended or
deregistered, apply by itself or others to be bankrupt, or dissolution, etc;
7.2.6.5
Its controlling shareholder or other affiliates experience substantial operation
or financial crisis that may impair the ordinary operation thereof;
7.2.6.6
Conduct related transactions with its controlling shareholders or other
affiliates that may be materially adverse to its ordinary operation;
7.2.6.7
Occurrence of any suit, arbitration, or criminal or administrative penalty
that
may be materially adverse to its operation or financial standing;
180
7.2.6.8
Occurrence of any breaking events that may affect its repayment
capacity.
ARTICLE
8 RIGHTS AND OBLIGATIONS OF PARTY A
8.1
Party
A shall have the following rights:
8.1.1
To
require Party B to repay the principal of and accrued interest on the loan
as
scheduled herein;
8.1.2
To
request Party B to provide materials relating to the loan hereunder;
8.1.3
To
find out information in respect of Party B’s production & operation as well
as financial activities;
8.1.4
To
supervise the use by Party B of the loan hereunder;
8.1.5
To
directly transfer and withhold the amount for repayment of the due principal
of
and accrued interest on the loan, out of any of Party B’s bank accounts;
8.1.6
To
require Party B to repay the loan ahead of schedule or to suspend any part
of
loan that remains unused by Party B, in accordance with this Contract, in case
Party B fails to perform any of its obligations hereunder;
8.1.7
To
require Party B to repay promptly the principal of and accrued interest of
the
loan, as well as any other costs that may occur hereunder, or to transfer all
of
Party B’s debts hereunder to any assignee permitted by Party A, or to
provide/increase any appropriate security or guaranty acceptable to Party A.
8.2
Party
A shall be under the following obligations:
8.2.1
To
extend the loan in accordance herewith;
8.2.2
To
keep or maintain confidential any and all information in relation to Party
B’s
debts, finance, production, as well as operation, etc. except as otherwise
provided for by related laws;
ARTICLE
9 PARTY HEREBY REPRESENTS AND WARRANTS TO PARTY A THAT:
9.1
Party
B is an enterprise duly incorporated under the laws of the People’s Republic of
China (hereinafter “PRC”) and existing legally, has the legal person status, as
well as the full civil act capacity to sign and perform this Contract;
9.2
Party
B has been fully authorized by the Board of Directors or any other authorities
to sign and perform this Contract;
181
9.3
The
documentation, materials as well as the vouchers to be provided by Party B
in
relation to Party B, surety, mortgagor(pledgor), as well as the mortgaged or
pledged objects are true, accurate, complete and valid, free from any
significant mistakes inconsistent with facts or any substantial omission;
9.4
At
the time of signing this Contract, no suit, arbitration, criminal or
administrative penalty that may be materially adverse to Party B or its
principal property occur(s), nor may the same threaten(s) to occur during
performance of this Contract, otherwise, Party B is required to notify Party
A
promptly;
9.5
To be
in strict compliance with any applicable national laws and regulations in its
operation, to strictly abide by the business scope prescribed by its Business
License for Incorporated Enterprise in conducting business, as well as to go
through enterprise (legal person) annual inspection & registration
formalities in time;
9.6
To
maintain or increase the current operation or management level to ensure the
value preservation and appreciation of the existing assets, not to waive any
due
creditor rights, not to dispose of the existing principal property free or
otherwise;
9.7
No
significant event that suffice to prejudice the performance by Party B of any
obligations hereunder exists at the time of signing this Contract.
ARTICLE
10 PREPAYMENT
10.1
Party B may request to repay the loan ahead of schedule, provided however a
prior consent from Party A has been obtained;
10.2
In
the case of any repayment ahead of schedule, the interest shall be computed
and
settled at the rate specified herein.
ARTICLE
11 LOAN EXTENSION
In
case
Party B is unable to repay the loan hereunder as scheduled and requests for
an
extension therefore, Party B shall submit an application for that purpose one
month prior to the scheduled expiry date hereof; An Agreement on Loan Contract
Extension shall be concluded by both Parties in case Party A consents to such
intended extension after due process of examination, otherwise, this Contract
shall remain in full force and effect. Party B is obliged to repay any part
of
loan used by Party B together with accrued interest, as provided herein.
182
ARTICLE
12 COSTS & EXPENSES
Any
and
all costs and expenses in respect hereof shall be borne by Party B in full,
including those incurred in respect of the inquiry of creditworthiness,
inspection, public notarization, etc. in connection herewith, attorney’s fee,
suit costs as well as travel expense, etc. incurred by Party A in realizing
its
creditor’s rights in case Party B fails to repay the principal of and accrued
interest on the loan hereunder and to reimburse the fees payable by Party B
as
scheduled, Party B hereby authorizes Party a to directly withhold any such
amount out of Party B’s bank account, any deficiency existing after such
withholding shall be reimbursed by Party B in full to Party A upon receipt
of a
notice requesting to do so from Party A without further need to provide any
proof.
ARTICLE
13 BREACHING EVENTS AND SETTLEMENT
13.1
Any
of the following shall be deemed a breach on the part of Party B:
13.1.1
The information provided by Party B to Party A is falsified or conceals
significant facts, failure by Party B to assist Party A in investigation,
examination as well as inspection, in breach of ARTICLE 7.2.1 hereof, Party
B
fails to make appropriate correction within a timeframe specified by Party
A,
the circumstances are rather serious;
13.1.2
Party B refuses to be subject to or shrugs off the supervision by Party A over
the use of credit loan by Party B, related production & operation, as well
as financial activities, in contravention of ARTICLE 7.2.2, the circumstances
are serious;
13.1.3
Party B fails to use the loan for purposes described herein, in contravention
of
ARTICLE 7.2.3.
13.1.4
Party B fails to repay the principal of and accrued interest on the loan in
full
and as scheduled herein, as in contravention of ARTICLE 7.2.4 hereof;
13.1.5
Party B unilaterally assigns its debts hereunder to any third party that may
prejudice Party A’s interests, as in contravention of ARTICLE 7.2.5 hereof;
183
13.1.6
Party B fails to notify Party A of any event set out in ARTICLE 7.2.6 in a
timely manner, or Party B refuses to increase the security or guaranty for
repayment of debts hereunder as required by Party A being aware of any such
events described in ARTICLE 7.2.26 hereinabove, or any other events occurring
on
the part of Party B that may impair the safe recovery of the loan in the sole
opinion of Party A;
13.1.7
Party A’s interest is impaired as a result of Party B’s act in contravention of
ARTICLE
9.1,
9.2, and/or 9.4, or as a result of failure of Party B to make prompt correction
as required by Party A;
13.1.8
Any other events occurring on the part of Party B that may prejudice the
legitimate rights and interests of Party A in the sole opinion of the same;
13.2
Upon
any of the following cases on the part of the surety hereunder that may affect
the guaranty capacity of the surety as in the sole opinion of Party A, failure
of the surety and/or Party B to exclude any adverse impact as a result thereof
or increase or change the security or guaranty shall be deemed as a breach
of
Party B:
13.2.1
Occurrence of any of the cases similar to those set out in ARTICLE 7.2.6 hereof;
13.2.2
Conceals the capacity to stand surety or fails to be authorized by related
authority at the time of issuance of the irrevocable guaranty letter;
13.2.3
Fails to go through annual inspection and registration formalities in a timely
manner;
13.2.4
Neglect in management and recourse of any due creditor’s rights, or disposes of
its principal property without compensation or otherwise.
13.3
Upon
any of the following cases on the part of the Mortgagor (Pledgor) hereunder
that
may result in the failure of such mortgage (pledge) or value deficiency of
the
mortgaged or pledged objects, as in the sole opinion of Party A, failure of
the
Mortgagor (Pledgor) to exclude any adverse impact as a result thereof or failure
of Party B to increase or change the security or guaranty, as required by Party
A shall be deemed as a breach of Party B:
13.3.1
Has no title in or disposal rights of the mortgaged or pledged objects, or
the
title therein remain unclear;
184
13.3.2
Conceals the fact that the mortgaged or pledged objects are co-owned, have
been
leased out, have been sealed up, or have been in custody, etc.;
13.2.3
The Mortgagor, without the written consent from Party A, assigns, rents,
remortgages, or otherwise disposes of the mortgaged objects;
13.2.4
A
considerable appreciation in value of the mortgaged objects as a result of
failure of the Mortgagor to take appropriate custody of, maintenance and repair
on the mortgaged objects; or reduction in value of mortgaged objects as a result
of act of the Mortgagor threatening the mortgaged objects; or the Mortgagor
fails to procure insurance for the mortgaged objects as required by the Party
A
within the agreed upon mortgage term;
13.4
Upon
any breaching events set out in 13.1, 13.2, as well as 13.3 hereinabove, Party
A
is entitled to elect to take any or several in combination of the following
steps to which Party B shall refrain from making any objection:
13.4.1
Cease to provide any part of loan unused by Party B;
13.4.2
Reclaim the principal of the loan together with accrued interest, to the extent
made available to Party B, as well as related expenses, ahead of schedule;
13.4.3
Directly withhold any amount out of the settlement account or other accounts
of
Party B, to repay the debts hereunder;
13.4.4
Exercise the recourse rights pursuant to this Contract.
ARTICLE
14 MODIFICATION AND TERMINATION OF CONTRACT
This
Contract may be modified or terminated upon agreement between both Parties
in
writing. Prior to concluding of such written agreement, this Contract shall
remain in full force and effect. Neither party hereto may modify, revise or
terminate this Contract without consent and agreement of the other party.
ARTICLE
15 MISCELLANEOUS
15.1
During the whole life of this Contract, no tolerance, grace period, or
suspension to enforce any of the rights and interests or powers of Party A
hereunder, as may be granted by Party A to Party B in respect of any breach
or
delay on the part of Party B may impair, affect, or limit any rights and
interests, or powers of Party A as the creditor in accordance with this Contract
and related laws and regulations, nor shall be construed as the permission
or
recognition by Party A of any breach on the part of Party B, or as the waiver
by
Party A of any right to take appropriate actions against any present or future
breach of Party B.
185
15.2
Party B shall perform any and all repayment obligations in disregard of the
fact
that this Contract, in whole or part, is determined null and void at law for
whatsoever reasons, in such a case, Party A is entitled to terminate this
Contract and promptly reclaim against Party B the principal of and accrued
interest on the loan hereunder, as well as other related amounts.
15.3
Any
notice and request to be made by either party hereunder shall be in writing.
The
telegraph and/or telex shall be deemed effectively given upon sending by Party
A, and the communication shall be deemed effectively given upon being delivered
to appropriate post office by Party A.
15.4
The
loan receipt as well as any written supplemental agreement between both Parties
on any issue not defined herein or on revision of this Contract shall be
attached as appendices to this Contract and constitute integral parts hereof.
ARTICLE
16 GOVERNING LAW AND DISPUTE RESOLUTION
16.1
The
formation, interpretation, as well as dispute resolution in respect of this
Contract shall be governed by the laws of the People’s Republic of China, the
rights and interests of both parties hereto shall be under protection of the
same.
16.2
Any
dispute arising out of or in connection with the performance of this Contract
shall be settled by friendly negotiation between both Parties, in case of no
successful settlement therefrom, either party may elect to:____ (optional,
either 16.2.1 or 16.2.2)
16.2.1
Lodge an action with the people’s court at the place where Party A resides; or
16.2.2
Submit to _____________ Arbitration Committee for determination in accordance
with rules and procedures then currently in force.
16.3
Once
appropriate public notarization is completed which gives rise to the
enforceability of this Contract, Party A may directly apply to any People’s
Court having appropriate jurisdiction thereover to enforce this Contract for
purpose of recovering any due and payable debts hereunder.
186
ARTICLE
17 EFFECTIVENESS
17.1
This
Contract shall enter into and remain in force conditional upon the signature,
common seal by duly authorized representatives of both parties, as well as
upon
completion of the formalities for security or guaranty as set forth in ARTICLE
6
hereof, until any and all principal of and the accrued interest on the loan,
as
well as any other costs in respect thereof are paid up.
17.2
This
Contract is made in four copies being equally authentic. Party A holds two
(2)
copies thereof, each of Party B and _____ holds one (1) copies thereof.
[Below
is intentionally left blank]
|
Party
A(Common Seal):
|
Party
B(Common Seal):
|
|
Duly
Authorized Signatory:
|
Duly
Authorized Signatory:
|
|
Date:
20th
June 2005
|
Date:
20th
June 2005
|
187
Credit
Extension Contract
øIssued
in
July, 2003÷
Accrediting
party: Tianjin branch Merchant Bank, (hereinafter referred to as Party
A)
Domicile:
Xx.00 Xxxxxxxx Xxxx, Xxxx Xxxxxxxx, Xxxxxxx
Legal
representative/Principle: Xxxx Xxxxxx Deputy: President
Fiduciary:
Tianjin Daqiuzhuang Metal Sheet Co., Ltd.
Domicile:
Daqiuzhuang Town, Jinghai Country, Tianjin City
Legal
representative: Xx Xxxxxxxx Deputy: Chairman of Directors
With
the
application of Party B, Party A agrees to credit Party B credit extension for
RMB
40,000,000 Yuan
(including the equivalent foreign currency). Both parties signed this agreement
through sufficient negotiation pertaining to the related laws.
Article
1
Maximum Credit Extension
The
credit extension refers to the maximum credit extension of off-balance sheet
business (hereinafter referred to as Loan) including loan, trading financing
(including packing credit and import and export documentary credit etc) and
discount (hereinafter referred to as Loan), and the maximum credit extension
of
on-balance sheet business including Commercial Bill Acceptance, opening L/C
and
letter of guarantee.
The
credit extensions aforesaid are not including the relevant credit extension
of
guarantee fund or hypothecation of deposit receipt supplied by Party B or any
third party, which is the same in the whole contract.
The
businesses and their scopes credited by Party A shall be confirmed in accordance
with Article 3 of this agreement.
Article
2
Credit Extension Period
The
credit extension period is 1 year, from June 20, 2005 to June 19, 2006. Party
B
shall apply for credit extension in this period, or Party A will not accept.
Article
3
Usage of Credit Extension Limit
3.1
The
type and scope of credit extension limit
The
credit extension limit aforesaid shall be (please elect one type between general
credit extension and single credit extension):
3.1.1
General credit extension, which was allocated as follows:
3.1.1.1
Working Capital loan: RMB 40,000,000
Yuan;
3.1.1.2
Trading financing: the equivalent foreign currency with RMB Yuan
(or ,
).
3.1.1.3
Bank acceptance: RMB Yuan
3.1.1.4
Commercial accepted bill: RMB Xxxx
188
3.1.1.5
The Commercial bill acceptance: RMB Xxxx;
3.1.1.6
Letter of Credit: the equivalent foreign currency with RMB Yuan
(or ,
).
3.1.1.7
Letter of guarantee: RMB Yuan.
With
the
assent of Party B, the specific credit extension aforesaid could be relieved
with each other
3.1.2
Single Credit Extension Limit.
3.2
During the credit extension period, Party B can use the credit extension limit
in circle, but it shall apply for each credit, and Party A will approve for
each
credit. Both parties shall sign another specific contracts (hereinafter referred
to as each specific contracts) to confirm it.
3.3
In
the credit extension limit, each loan or other credit extension shall be
confirmed the specific usage period in accordance with the operation requirement
of Party B and the business administration of Party A, and each expiration
date
could be later than the expiration date of the credit extension period.
Article
4
Interests and charges
The
interests for loan and financing and the charges for acceptance, opening L/C
and
letter of guarantee shall be paid in accordance with the each specific contract.
Article
5
Guarantee
5.1
Tianjin
Sheng Da Steel Mill Co.,Ltd. and Baotou Shengda Industry Co.,
Ltd.
will
take the joint guarantee responsibilities for any debt of Party B to Party
A
under this agreement. These two companies shall produce Irrevocable Guarantee
Letter for Maximum Credit Extension to Party A, and/or
5.2
Company
will enter into mortgage (hypothecation) contract by its owned or
disposed assets
to
guarantee any debt of Party B to Party A under this agreement.
Article
6
The rights and obligations of Party B
6.1
Party
B has the rights as follows:
6.1.1
it
has right to require Party A to release the loan in the credit extension limit
in accordance with this agreement;
6.1.2
it
has right to use the credit extension in accordance with this
agreement;
6.1.3
it
has right to require Party A to keep secrecy to production, operation, financial
status and accounts, unless otherwise regulated by the law;
6.1.4
it
has right to transfer its debts to third party with the agreement of Party
A.
6.2
Party
B takes the liabilities as follows:
6.2.1
it
shall submit the documents, opening bank, account Number and balance of deposit
and loan according to the facts with the requirement of Party A, and cooperate
with the investigation, review and inspection of Party A;
6.2.2
it
shall accept the supervision of Party A in usage of credit loan, production,
operation and financial activities;
6.2.3
it shall use the loan and /or other credit extension pertaining to each specific
contract;
189
6.2.4
it
shall pay the loan and/or principles and interests in advance in sufficient
within the confirmed time;
6.2.5
it
shall be agreed with Party A in written if it would transfer its debts to third
party totally or partly;
6.2.6
it
shall notice Party A immediately and cooperate with Party A to fulfill the
safeguard measures for the loan under this agreement, other credit principle
and
interests and any related charge, if:
6.2.6.1
there is material financial loss or any other financial crisis;
6.2.6.2
it supply loan or guarantee to any third party, or enter into mortgage
(hypothecation) by using its own property (right);
6.2.6.3
There is alternation such as combination, division, recombination, joint venture
(joint cooperation), transfer of shares, reformation of shares etc;
6.2.6.4
There is stopping operation, revoking or withdrawing the business license,
and
applying or being applied for dismiss;
6.2.6.5
There is material crisis in operation or financial status for its holding
shareholders or other related companies, which has already affected the normal
operation of the company;
6.2.6.6
There is material related transaction with its holding shareholders and its
related companies, which has already affected its normal operation;
6.2.6.7
There is any litigation, arbitration or criminal or administrative penalty,
which would have bad effect to the operation or financial status;
6.2.6.8
There is any other material matters which would affect its liabilities to pay
off debt.
Article
7
Rights and obligations of Party A
7.1.
Party A has the rights as follows:
7.1.1
it
has the right to require Party B to return the loan and the principle and
interest paid in advance under this agreement within the due time;
7.1.2
it
has right to require Party B to submit any related information related to the
credit extension limit;
7.1.3
it
has right to know the production and financial activities of Party
B;
7.1.4
it
has right to supervise the usage of loan or any other credit extension under
this agreement and each specific contract;
7.1.5
it
has right to transfer the loan and/or principles and interests paid in advance
from the account of Party B;
7.1.6
it
has right to terminate the loan unused or other credit extension in the credit
extension limit and require Party B to pay off the loan leased in advance if
Party B does not fulfill any obligation under this agreement and/or each
specific contract; ]
7.1.7
it
has right to terminate the loan unused or other credit extension in the credit
extension limit and require Party B to pay off the loan and/or principles and
interests and any related charges, or transfer the debts to assignee accepted
by
Party A, or render/add new guarantee accepted by Party A if any circumstance
happened in Article 6.2.6.
190
7.2
Party
A has the obligations as follows:
7.2.1
it
shall release loan or render other credit extension in the credit extension
limitation in accordance with this agreement and each specific contract;
7.2.2
it
shall keep the secrecy to the assets, finance, production and operation of
Party
B unless otherwise regulated by law.
Article
8
Party B guarantees as follows:
8.1
Party
B is the business corporation established and operated pertaining to the Chinese
Laws, which has civil capacity to sign and fulfill this agreement;
8.2
it
has been authorized by Board of Directors or any other qualified institution
to
sign and fulfill this agreement;
8.3
The
information submitted by Party B about Party B, mortgager (xxxxxxx), information
and documents, vouchers of mortgage and hypothecation are true, complete and
valid, which has no or omitted material errors.
8.4
There
is no any litigation, arbitration or criminal or administrative penalty, which
would result material result to Party B or its main assets when signing this
agreement, and there shall be no any litigation, arbitration or criminal or
administrative penalty in the period of executing this agreement. Or Party
B
shall notice Party A immediately;
8.5
It
abides by the laws and regulations of China in the operation, and expands each
business in the business scope in the business license, and transacts procure
for yearly register.
8.6
It
keeps or improves its operation level to ensure the increase of the current
asset, and do not give up any maturity debt rights, or dispose the current
property for free or in improper way.
8.7
There
is no any material item, which would affect the fulfillment of this
agreement.
Article
9
Other charges
Party
B
shall bear all charges and expenses arisen from credit information, inspection,
and notarization and the retaining fee, litigation fee and expenses for business
trip which paid by Party A for protecting its creditor’s right because Party B
do not pay back all debts. Party B authorizes Party A to transfer the money
directly from the account of Party B in the bank of Party A. If there is not
enough, Party B guarantees to pay back in sufficient after receiving the notice
from Party A and would not require any proving documents.
Article
10 Breaches of Contract and Settlement
10.1
It
will be confirmed as breaches of contract if Party B:
10.1.1
it
breaches the Article 6.2.1 and submits or omits the material facts and does
not
cooperate with the investigation, inspection and examination of Party A. And
with the revising requirement of Party A, it still refuses to revise its faults
and damages the interests of Party A;
10.1.2
it
breaches the Article 6.2.2, and does not accept the supervision of Party A
in
usage of loan, production and financial activities, which damages the interests
of Party A;
191
10.1.3
it
breaches the Article 6.2.3, and does not use the loan and/or other credit
extension in the confirmed mode specified in this agreement and each specific
contract;
10.1.4
it
breaches the Article 6.2.4, and does not turn back the loan and/or principles
and interest paid in advance in sufficient;
10.1.5
it
breaches the Article 6.2.5, and transfers the debts under this agreement to
third party, which damages interest of Party A;
10.1.6
it
breaches the Article 6.2.6, and does not notice Party A, or does not cooperate
with Party A when Party A was informed the circumstances and required Party
B to
add new guarantee, or Party A considered the safety drawing back of loan and/or
principles and interests of Party A;
10.1.7
it
breaches Article 8.1, 8.2, 8.4, and damages the interests of Party A; or it
breaches Articles 8.3, 8.5, 8.6 or 8.7, and does not amend immediately, and
damages the interests of Party A;
10.1.8
there is any other circumstances, which would damage the legal interests of
Party A;
10.2
When
the guarantor has the circumstance as follows, Party A requires guarantor to
eliminate the disadvantages, or requires Party B to add or alter the guarantee
conditions, and the guarantor and Party B do not cooperate, which could be
confirmed as breaches of contract:
10.2.1
there is one of circumstances in Article 6.2.6;
10.2.2
it
hides its guarantee capacities or it is not authorized when it producing the
letter of guarantee;
10.2.3
it
does not transact the yearly register review in time;
10.2.4
it
does not manage and recourse its due creditor’s right, or it disposes its main
assets for free or in other improper way;
10.3
When
the mortgager (xxxxxxx) has the circumstance as follows, which may cause the
invalidity of mortgage (hypothecation), the Party A requires mortgager (xxxxxxx)
to eliminate the disadvantages, or requires Party B to add or alter the
guarantee conditions, and the mortgager (xxxxxxx) and Party B do not
cooperate:
10.3.1
it
has no priority right or disposal right, or properties whose ownership and
use
rights are unclear or controversial;
10.3.2
the guaranty (hypothecated assets) has been leased, closed, detained or warded,
and/or Party B hides this fact to Party A;
10.3.3
Without agreement of Party A in written, the mortgager transfers, leases,
mortgaged for a second time or disposes the guaranty improperly; or it disposes
the guaranty with the written agreement of Party A, but the incomes do not
be
used to return the its debts to Party A;
10.3.4
The mortgager does not keep, maintain and repair the guaranty, which is distinct
devalued; the activities of mortgager threat the guaranty directly, which leads
to the decrease of guaranty; or mortgager does not buy insurance to the guaranty
with the requirement of Party A during the mortgage term.
10.4
If
there is any circumstance happened in Article 10.1, 10.2 and 10.3, Party A
has
right to take measures as follows and Party B shall not have any dissension:
192
10.4.1
it
stops releasing any loan not used in the credit extension, and stops supplying
the credit of acceptance, opening L/C or letter of guarantee in the credit
extension;
10.4.2
it
draws back the principles and interests of loan released in credit extension
and
related charges;
10.4.3
For the accepted drafts, or opened L/C or letter of guarantee, Party A can
require Party B to increase the deposit amount no matter the principles and
interests are paid in advance by Party A, or Party A transfers the savings
in
the account of Party B or balance account to deposit account to pay off the
deposit paid in advance by Party A, or transfer the relevant fund to third
party
for drawing in order to pay for Party A in advance.
10.4.4.
it directly deducts the savings in balance account and/or other account of
Party
B to pay off all debts of Party B under this contract and each specific
contract;
10.4.5
it
has right to recourses in accordance with the Article 13 of this
contract.
Article
11 The alternation and termination of this contract
This
contract can be alternated and terminated with the written agreement of both
parties after friendly negotiation. Before reaching the written agreement,
this
contract is still valid. Any party shall not alter, amend or terminate this
contract independently.
Article
12 Others
12.1
During the valid period of this contract, any tolerance, extension or postponing
the performance of interests or rights of Party A, shall not damage, affect
or
limit any interests and rights of Party A as a creditor pertaining to laws
and
regulations and this contract, shall not be confirmed as abandon of its right
to
take measures against breaches of contract in current or in the future.
12.2
If
this contract is invalid or part of articles invalid no
matter
what reasons, Party B still shall take any responsibilities to pay off any
debt
to Party A under this contract. And Party A has right to terminate this contract
and recourse immediately all debts of Party B under this contract.
12.3
Any
notice and requirement between both parties under this contract shall be in
written. It will be confirmed as service at the time of sending for fax and
telegram, and at the time of sending to post office for mails.
12.4
Both
parties could reach supplementary agreements under this contract through
friendly negotiation. The supplementary agreements and each specific contract
shall be the annexes, which are one part of this contract.
Article
13 Laws Applicable and Disputes Settlement
13.1
Any
dispute arisen from this contract shall be settled pertaining to the laws of
PRC, and the rights and interests shall be protected by laws of PRC.
13.2
Any
disputes arisen from the performance of this contract shall be settled through
negotiation of both parties. If the negotiation is failed, any party can choose
(one of):
13.2.1
to
file a litigation to People’s Court in the domicile of Party A; or
13.2.2
to
submit to Commission
for arbitration.
193
13.2.3
After notarization of this contract and each specific contract with force of
compelling performance, Party A could apply for force execution to people’s
court with jurisdiction so as to recourse the due debts under this contract
and
each specific contract.
Article
14 Effect of This Contract
This
contract shall come into force after signature of both parties and stamp of
common seal, and fulfillment of guarantee procedures in Article 5 of this
contract. And the contract shall be automatic terminated after the payoff of
all
debts and other related charges and expenses under this contract.
Article
15 This contract has four
originals with the same force.
Each
party and has
one.
|
Party
A (common
seal)
|
Party
B (common seal)
|
|
Authorized
representative
(signature):
|
Authorized
representative (signature):
|
|
June
20, 2005
|
June
20, 2005
|
194
For
Letter of Guarantee
NO.:
2005
xinzi No.: 15014
To:
Tianjin branch Merchant Bank
We,
the
enterprise authorized by with
legal person qualification and business license, would like to provide guarantee
to Renminbi
(currency) 40,000,000
Yuan
under
2005
xinzi No.: 55014
loan
contract/ credit extension contract signed on June
20, 2005
by
Xxxxxxx
Xxxxxxxxxxx Metal Sheet Co., Ltd.
(Borrower) and your bank. Whereas, we confirmed that the Irrevocable Letter
of
Guarantee issued on June
20, 2005 to
your
bank is truthful, and we would take all responsibilities to the articles under
the letter of guarantee.
Guarantor
(common seal):
Present
guarantee.
Authorized
representative: Xxxxx Xxxxxx
June
10,
2005
195
MAXIMUM
AMOUNT IRREVOCABLE GUARANTY LETTER
(Prepared
in July 2003)
No:
[2005]Xinzhidi 55014
To:
China
Merchants Bank Tianjin Branch
WHEREAS,
The
Credit Agreement (no.[2005]Xinzhidi 55018) was entered into by and between
Your
Bank and Tianjin Daqiuzhuang Metal Sheet Co., Ltd (hereinafter “Credit
Applicant”) on 20th
June
2005.
Pursuant
to the Credit Agreement, your bank shall offer the Credit Applicant a line
of
credit in the sum of RMB Forty Million Yuan (or equivalent in foreign currency)
(hereinafter “the Line of Credit”) during the Credit Term as from 20th
June
2005 and ending on 19th
June
2006 (hereinafter “the Credit Term”).
NOW
THEREFORE, we, the undersigned and surety for the Credit Applicant, hereby
agree
to issue this Guaranty Letter with joint and several liabilities for all the
debts owed by the Credit Applicant to your bank, subject to the terms and
conditions set forth hereinafter.
ARTICLE
1 MAXIMUM AMOUNT GUARANTY LETTER
|
1.1
|
The
Line of Credit as used herein refers to the maximum amount of the
on-balance-sheet business credit such as the loan that may be used
by the
borrower in a continuous and cycle manner, trade financing, discount,
etc.
(hereinafter collectively referred to as “the Loan”), and of the
off-balance-sheet business credit balance, such as the acceptance
of
commercial bill, issuance of L/C, issuance of L/G, etc. that may
be
offered by your bank to the Credit Applicant.
|
The
aforesaid line of credit excludes such amount of credit appropriate to the
security deposit or guaranty of deposit certificate as may be offered or
provided by the Credit Applicant or any third party, the same hereinafter.
196
|
1.2
|
During
the Credit Term, your bank may, in accordance with the Credit Agreement
and/or any appropriate individual contract under the same, extend
loan or
provide other credit services to the Credit Applicant by installments.
The
Credit Applicant may use the Line of Credit in a cycle manner. The
particular amount, term as well as the purpose of each loan or credit
may
be stipulated by individual loan contract, loan receipt or any other
credit contract. The maturity date of any of the particular business
may
be later than the expiry date of the Credit Agreement and we, the
undersigned and the surety for the Credit Applicant, have no objection
thereto.
|
|
1.3
|
In
the case of appropriate balance remains in the loan or any other
credit as
may be offered by your bank to the Credit Applicant upon expiry date
of
the Credit Term, we shall be jointly and severally liable to you
to the
extent of the actual line of credit already available to the Credit
Applicant.
|
|
1.4
|
With
respect to the credit services as may be offered by your bank to
the
Credit Applicant during the Credit Term, including commercial bill
acceptance, issuance of L/C and L/G, etc., we agree to be held jointly
and
severally liable for any and all debts created or established in
respect
of the abovementioned credit services which debts include without
limitation any principal of and accrued interest on any amount paid
by
your bank for the Credit Applicant as well as any other related expenses,
in disregard to whether any amount paid by your bank for and on behalf
of
the Credit Applicant exists upon the maturity of the Credit Term.
|
|
1.5
|
In
case your bank decides to make recourse against the Credit Applicant
prior
to the scheduled expiry date of the Credit Term, we agree to be held
jointly and severally liable to you to the extent of the actual line
of
credit occurred at that time.
|
ARTICLE
2 SURETY SCOPE
2.1
The
scope of the suretyship offered by us hereunder includes the principal of the
loan and any other credit (with the maximum amount is RMB _____________ Yuan)
offered by your bank to the Credit Applicant in accordance with the Credit
Agreement during the specified Credit Term, together with appropriate accrued
interest, penalty interest, fine for breach, as well as any and all other costs
and expenses in respect of effort to realize the creditor’s rights, including
but not limited to:
2.1.1
The
principal of and accrued interest, penalty interest, fine for breach, as well
as
any other expenses in respect of the loan to be extended by your bank in
accordance with the particular loan contract under the Credit Agreement or
loan
receipt;
197
2.1.2
The
principal of any money to be paid by your bank for the Credit Applicant in
honoring, in accordance with the Credit Agreement, the commercial bill, L/C,
as
well as any L/G drawn by the Credit Applicant, together with any and all accrued
interest, penalty interest, fine for breach, as well as any other expenses
2.1.3
Any
and all costs and expenses incurred by your bank in making effort to recover
any
debt against the Credit Applicant.
2.2
We
shall be held for no guaranty liability for any amount of the principal of
the
loan or any other credit as may be offered by your bank, in excess of the
prescribed line of credit, and shall be only jointly and severally liable for
such principal of the loan or any other credit services, as well as any accrued
interest thereon, penalty interest, fine for breach, etc. in respect thereof,
as
may be within the line of credit.
ARTICLE
3 FORM OF SURETY
We,
the
undersigned and the surety for the Credit Applicant, hereby acknowledge to
be
jointly and severally liable, whether economically or legally, for any debts
owed by the Credit Applicants, provided such debts shall be within the surety
scope as set out in ARTICLE 2 hereinabove. Your bank is entitled to directly
make recourse against us without having to first make recourse or institute
actions against the Credit Applicant in case the Credit Applicant fails to
repay
or pay in a timely manner and in accordance with the Credit Agreement and/or
any
other particular contract, if any, the principal of the loan and/or any amount
paid by your bank for the Credit Applicant, or any related expenses, or in
the
case of any breaching event as may be set out in the Credit Agreement and/or
any
other particular contract, if any. In disregard to any mortgage or pledge
established additionally to ensure the timely satisfaction or repayment of
any
debt owed by the Credit Applicant to your bank under the Credit Agreement,
your
bank is also entitled to directly make recourse against us for all the amounts
of debts, without having to first enforcement of such mortgaged or pledged
objects.
We
agree
to be absolutely subject to any Claim Notice to be issued by you which is final.
We further agree to repay and satisfy any and all debts owed by the Credit
Applicant under the Credit Agreement in full within five days upon receipt
of
such Claim Notice for which your bank is not obliged to provide any proof or
documents.
198
ARTICLE
4 SURETYSHIP DURATION
The
suretyship duration hereunder shall be as from the expiry date of each loan
as
may be extended under the Credit Agreement or as from the same date of the
second year following the date on which the payment of each amount is made
by
your bank for the Credit Applicant.
ARTICLE
5 INDEPENDENCE OF GUARANTY LETTER
5.1
This
Guaranty Letter is independent, continuously effective, irrevocable and
unconditional, in no event shall be affected by the Credit Agreement and/or
any
particular contract, nor shall be affected by any agreement or document
concluded between the Credit Applicant and any unit. This Guaranty Letter shall
remain unchanged in the event of any fraudulent action, reorganization, cease
to
carry out business, dissolution, liquidation, bankruptcy, etc. on the part
of
the Credit Applicant for whatsoever reasons. The liability to be taken by us
as
the surety hereunder may not be released or exempted by reason of any order
received, change in our financial standing, or any agreement entered into with
any unit or individual.
5.2
The
liability to be taken by us as the surety hereunder may not be affected by
virtue of cease to provide any unused part of loan and/or any other credits
or
recovery of the extended loan in advance, by your bank in accordance with the
Credit Agreement and/or any particular contract.
ARTICLE
6 We,
the
undersigned and surety for the Credit Applicant, hereby acknowledge and
undertakes to be bound by and subject to any extension agreement or other
supplemental agreements in respect of the term and interest rate, etc. of each
particular contract to be concluded between your bank and the Credit Applicant
in the course of performance of this Credit Agreement and any particular
contract thereunder, without requiring future notice from your bank.
ARTICLE
7 WE, THE UNDERSIGNED AND SURETY FOR THE CREDIT APPLICANT HEREBY REPRESENTS
AND
WARRANTS WITH YOUR BANK:
7.1
That
we, a legal person enterprise which is duly registered with appropriate
authority for industry and commerce (registration no.: ______ ) upon approval
by
_________, and which is eligible for standing surety for others, or a
not-for-profit institution with legal person status which is eligible for
standing surety for others, agree to provide guarantee with the assets legally
owned by us or to which we are entitled to disposal right, and undertake to
perform any of the obligations prescribed herein;
199
7.2
That
we are fully authorized or approved by superior authority/the Board of Directors
as necessitated by issuance of this Guaranty Letter;
7.3
That
issuance of this Guaranty Letter is the true representation of us under no
misrepresentation or duress;
7.4
That
we, the undersigned and surety for the Credit Applicant, agree to be held for
the total guaranty liability (including equivalent in foreign currency) not
more
than the whole sum of our proprietary rights and interests;
7.5
That
any and all financial statements as well as any other documents to be submitted
by us to your bank are true, legally permitted for which the our legal
representative or any other person in charge shall be held liable;
7.6
That
we shall issue a guaranty confirmation upon request of your bank;
7.7
That
we shall notify your bank of any change in the registration particulars with
authority for industry and commerce, organization structure, operation mode
or
financial standing in respect of our company, which change may result in a
change in our capacity to perform this guaranty letter, without delay;
7.8
That
any assign or successor of us shall be bound by all the provisions contained
herein. No assignment of any of our obligations hereunder may be made by us
in
the absence of the written consent from your bank;
ARTICLE
8 In
case
we fail to repay and satisfy any of the debts as required herein, your bank
is
entitled to withhold or deduct any such amount therefore out of any deposit
account of us, until and unless any and all debts owed by the Credit Applicant
under the Credit Agreement, and we have no objection to the aforesaid continuing
obligation.
ARTICLE
9 During
the whole life of this Guaranty Letter, no tolerance, grace period, or
suspension to enforce any of the rights and interests or powers of your bank
under the Credit Agreement or this Guaranty Letter, as may be granted by your
bank in respect of any breach or delay on the part of us and/or the Credit
Applicant may impair, affect, or limit any rights and interests, or powers
of
your bank as the creditor in accordance with this Guaranty Letter and related
laws and regulations, nor shall be construed as the waiver by your bank of
any
right to take appropriate actions against any present or future breach of the
Credit Applicant and/or us.
200
ARTICLE
10 This
Guaranty Letter is governed by the laws of the People’s Republic of China, we
hereby confirm that any dispute arising out of or in connection with the
performance hereof shall be settled by such means applicable to dispute, as
set
out in the Credit Agreement.
ARTICLE
11 This Guaranty Letter shall enter into force upon signature by duly authorized
signatory from us and common seal of us.
ARTICLE
12 This Guaranty Letter is made in _______ copies, each of your bank, the Credit
Applicant, the surety as well as _______ etc. shall hold one copy thereof.
|
The
Surety(Common Seal):
|
Duly
Authorized Signatory(Signature):
|
|
Xxxxx
Xxxxxx
|
|
|
Legal
Address:
|
|
|
Deposit
Bank:
|
Settlement
Account of the Surety:
|
|
Tel:
|
Fax:
|
201
For
Letter of Guarantee
NO.:
2005
xinzi No.: 55014
To:
Tianjin branch Merchant Bank
We,
the
enterprise authorized by with
legal person qualification and business license, would like to provide guarantee
to Renminbi
(currency) 40,000,000
Yuan
under
2005
xinzi No.: 55014
loan
contract/ credit extension contract signed on June
20, 2005
by
Xxxxxxx
Xxxxxxxxxxx Metal Sheet Co., Ltd.
(Borrower) and your bank. Whereas, we confirmed that the Irrevocable Letter
of
Guarantee issued on June
20, 2005 to
your
bank is truthful, and we would take all responsibilities to the articles under
the letter of guarantee.
Guarantor
(common seal): Tianjin Sheng Da Steel Mill Co.,Ltd.
Present
Guarantee.
Authorized
representative: Xx Xxxxxxxx
June
20,
2005
202
MAXIMUM
AMOUNT IRREVOCABLE GUARANTY LETTER
(Prepared
in July 2003)
No:
[2005]Xinzhidi 55014
To:
China
Merchants Bank Tianjin Branch
WHEREAS,
The
Credit Agreement (no.[2005]Xinzhidi 55014) was entered into by and between
Your
Bank and Tianjin Daqiuzhuang Metal Sheet Co., Ltd (hereinafter “Credit
Applicant”) on 20th
June
2005.
Pursuant
to the Credit Agreement, your bank shall offer the Credit Applicant a line
of
credit in the sum of RMB Forty Million Yuan (or equivalent in foreign currency)
(hereinafter “the Line of Credit”) during the Credit Term as from 20th
June
2005 and ending on 19th
June
2006 (hereinafter “the Credit Term”).
NOW
THEREFORE, we, the undersigned and surety for the Credit Applicant, hereby
agree
to issue this Guaranty Letter with joint and several liabilities for all the
debts owed by the Credit Applicant to your bank, subject to the terms and
conditions set forth hereinafter.
ARTICLE
1 MAXIMUM AMOUNT GUARANTY LETTER
|
1.6
|
The
Line of Credit as used herein refers to the maximum amount of the
on-balance-sheet business credit such as the loan that may be used
by the
borrower in a continuous and cycle manner, trade financing, discount,
etc.
(hereinafter collectively referred to as “the Loan”), and of the
off-balance-sheet business credit balance, such as the acceptance
of
commercial bill, issuance of L/C, issuance of L/G, etc. that may
be
offered by your bank to the Credit Applicant.
|
The
aforesaid line of credit excludes such amount of credit appropriate to the
security deposit or guaranty of deposit certificate as may be offered or
provided by the Credit Applicant or any third party, the same hereinafter.
203
|
1.7
|
During
the Credit Term, your bank may, in accordance with the Credit Agreement
and/or any appropriate individual contract under the same, extend
loan or
provide other credit services to the Credit Applicant by installments.
The
Credit Applicant may use the Line of Credit in a cycle manner. The
particular amount, term as well as the purpose of each loan or credit
may
be stipulated by individual loan contract, loan receipt or any other
credit contract. The maturity date of any of the particular business
may
be later than the expiry date of the Credit Agreement and we, the
undersigned and the surety for the Credit Applicant, have no objection
thereto.
|
|
1.8
|
In
the case of appropriate balance remains in the loan or any other
credit as
may be offered by your bank to the Credit Applicant upon expiry date
of
the Credit Term, we shall be jointly and severally liable to you
to the
extent of the actual line of credit already available to the Credit
Applicant.
|
|
1.9
|
With
respect to the credit services as may be offered by your bank to
the
Credit Applicant during the Credit Term, including commercial bill
acceptance, issuance of L/C and L/G, etc., we agree to be held jointly
and
severally liable for any and all debts created or established in
respect
of the abovementioned credit services which debts include without
limitation any principal of and accrued interest on any amount paid
by
your bank for the Credit Applicant as well as any other related expenses,
in disregard to whether any amount paid by your bank for and on behalf
of
the Credit Applicant exists upon the maturity of the Credit Term.
|
|
1.10
|
In
case your bank decides to make recourse against the Credit Applicant
prior
to the scheduled expiry date of the Credit Term, we agree to be held
jointly and severally liable to you to the extent of the actual line
of
credit occurred at that time.
|
ARTICLE
2 SURETY SCOPE
2.1
The
scope of the suretyship offered by us hereunder includes the principal of the
loan and any other credit (with the maximum amount is RMB _____________ Yuan)
offered by your bank to the Credit Applicant in accordance with the Credit
Agreement during the specified Credit Term, together with appropriate accrued
interest, penalty interest, fine for breach, as well as any and all other costs
and expenses in respect of effort to realize the creditor’s rights, including
but not limited to:
2.1.1
The
principal of and accrued interest, penalty interest, fine for breach, as well
as
any other expenses in respect of the loan to be extended by your bank in
accordance with the particular loan contract under the Credit Agreement or
loan
receipt;
204
2.1.2
The
principal of any money to be paid by your bank for the Credit Applicant in
honoring, in accordance with the Credit Agreement, the commercial bill, L/C,
as
well as any L/G drawn by the Credit Applicant, together with any and all accrued
interest, penalty interest, fine for breach, as well as any other expenses
2.1.3
Any
and all costs and expenses incurred by your bank in making effort to recover
any
debt against the Credit Applicant.
2.2
We
shall be held for no guaranty liability for any amount of the principal of
the
loan or any other credit as may be offered by your bank, in excess of the
prescribed line of credit, and shall be only jointly and severally liable for
such principal of the loan or any other credit services, as well as any accrued
interest thereon, penalty interest, fine for breach, etc. in respect thereof,
as
may be within the line of credit.
ARTICLE
3 FORM OF SURETY
We,
the
undersigned and the surety for the Credit Applicant, hereby acknowledge to
be
jointly and severally liable, whether economically or legally, for any debts
owed by the Credit Applicants, provided such debts shall be within the surety
scope as set out in ARTICLE 2 hereinabove. Your bank is entitled to directly
make recourse against us without having to first make recourse or institute
actions against the Credit Applicant in case the Credit Applicant fails to
repay
or pay in a timely manner and in accordance with the Credit Agreement and/or
any
other particular contract, if any, the principal of the loan and/or any amount
paid by your bank for the Credit Applicant, or any related expenses, or in
the
case of any breaching event as may be set out in the Credit Agreement and/or
any
other particular contract, if any. In disregard to any mortgage or pledge
established additionally to ensure the timely satisfaction or repayment of
any
debt owed by the Credit Applicant to your bank under the Credit Agreement,
your
bank is also entitled to directly make recourse against us for all the amounts
of debts, without having to first enforcement of such mortgaged or pledged
objects.
We
agree
to be absolutely subject to any Claim Notice to be issued by you which is final.
We further agree to repay and satisfy any and all debts owed by the Credit
Applicant under the Credit Agreement in full within five days upon receipt
of
such Claim Notice for which your bank is not obliged to provide any proof or
documents.
205
ARTICLE
4 SURETYSHIP DURATION
The
suretyship duration hereunder shall be as from the expiry date of each loan
as
may be extended under the Credit Agreement or as from the same date of the
second year following the date on which the payment of each amount is made
by
your bank for the Credit Applicant.
ARTICLE
5 INDEPENDENCE OF GUARANTY LETTER
5.1
This
Guaranty Letter is independent, continuously effective, irrevocable and
unconditional, in no event shall be affected by the Credit Agreement and/or
any
particular contract, nor shall be affected by any agreement or document
concluded between the Credit Applicant and any unit. This Guaranty Letter shall
remain unchanged in the event of any fraudulent action, reorganization, cease
to
carry out business, dissolution, liquidation, bankruptcy, etc. on the part
of
the Credit Applicant for whatsoever reasons. The liability to be taken by us
as
the surety hereunder may not be released or exempted by reason of any order
received, change in our financial standing, or any agreement entered into with
any unit or individual.
5.2
The
liability to be taken by us as the surety hereunder may not be affected by
virtue of cease to provide any unused part of loan and/or any other credits
or
recovery of the extended loan in advance, by your bank in accordance with the
Credit Agreement and/or any particular contract.
ARTICLE
6 We,
the
undersigned and surety for the Credit Applicant, hereby acknowledge and
undertakes to be bound by and subject to any extension agreement or other
supplemental agreements in respect of the term and interest rate, etc. of each
particular contract to be concluded between your bank and the Credit Applicant
in the course of performance of this Credit Agreement and any particular
contract thereunder, without requiring future notice from your bank.
ARTICLE
7 WE, THE UNDERSIGNED AND SURETY FOR THE CREDIT APPLICANT HEREBY REPRESENTS
AND
WARRANTS WITH YOUR BANK:
7.1
That
we, a legal person enterprise which is duly registered with appropriate
authority for industry and commerce (registration no.: ______ ) upon approval
by
_________, and which is eligible for standing surety for others, or a
not-for-profit institution with legal person status which is eligible for
standing surety for others, agree to provide guarantee with the assets legally
owned by us or to which we are entitled to disposal right, and undertake to
perform any of the obligations prescribed herein;
206
7.2
That
we are fully authorized or approved by superior authority/the Board of Directors
as necessitated by issuance of this Guaranty Letter;
7.3
That
issuance of this Guaranty Letter is the true representation of us under no
misrepresentation or duress;
7.4
That
we, the undersigned and surety for the Credit Applicant, agree to be held for
the total guaranty liability (including equivalent in foreign currency) not
more
than the whole sum of our proprietary rights and interests;
7.5
That
any and all financial statements as well as any other documents to be submitted
by us to your bank are true, legally permitted for which the our legal
representative or any other person in charge shall be held liable;
7.6
That
we shall issue a guaranty confirmation upon request of your bank;
7.7
That
we shall notify your bank of any change in the registration particulars with
authority for industry and commerce, organization structure, operation mode
or
financial standing in respect of our company, which change may result in a
change in our capacity to perform this guaranty letter, without delay;
7.8
That
any assign or successor of us shall be bound by all the provisions contained
herein. No assignment of any of our obligations hereunder may be made by us
in
the absence of the written consent from your bank;
ARTICLE
8 In
case
we fail to repay and satisfy any of the debts as required herein, your bank
is
entitled to withhold or deduct any such amount therefore out of any deposit
account of us, until and unless any and all debts owed by the Credit Applicant
under the Credit Agreement, and we have no objection to the aforesaid continuing
obligation.
ARTICLE
9 During
the whole life of this Guaranty Letter, no tolerance, grace period, or
suspension to enforce any of the rights and interests or powers of your bank
under the Credit Agreement or this Guaranty Letter, as may be granted by your
bank in respect of any breach or delay on the part of us and/or the Credit
Applicant may impair, affect, or limit any rights and interests, or powers
of
your bank as the creditor in accordance with this Guaranty Letter and related
laws and regulations, nor shall be construed as the waiver by your bank of
any
right to take appropriate actions against any present or future breach of the
Credit Applicant and/or us.
207
ARTICLE
10 This
Guaranty Letter is governed by the laws of the People’s Republic of China, we
hereby confirm that any dispute arising out of or in connection with the
performance hereof shall be settled by such means applicable to dispute, as
set
out in the Credit Agreement.
ARTICLE
11 This Guaranty Letter shall enter into force upon signature by duly authorized
signatory from us and common seal of us.
ARTICLE
12 This Guaranty Letter is made in _______ copies, each of your bank, the Credit
Applicant, the surety as well as _______ etc. shall hold one (1) copy thereof.
|
The
Surety(Common Seal):
|
Duly
Authorized Signatory(Signature):
|
|
Tianjin
Sheng Da Steel Mill Co.,Ltd. Xx Xxxxxxxx
|
|
|
Legal
Address:
|
|
|
Deposit
Bank:
|
Settlement
Account of the Surety:
|
|
Tel:
|
Fax:
|
208
LOAN
CONTRACT
CHINA
MERCHANTS BANK
FEB
2004
209
Contract
No.: [2005]Daizhidi55023
Parties
to this Loan Contract:
The
Lender: China Merchants Bank Tianjin Branch (hereinafter referred to as “Party
A”)
Person
in
charge: Xxxx Xxxxxx
Position:
President
Address: 00
Xxxxx
Xxxxx Xxxx Xxxx Xxxxxxxx, Xxxxxxx
Tel:
And
The
Borrower: Tianjin Daqiuzhuang Metal Sheet Co., Ltd. (hereinafter referred to
as
“Party B”)
Legal
Representative: Xx Xxxxxxxx
Position:
Chairman of the Board
Address:
Daqiuzhuang, Jinghai County, Tianjin
Tel:
WHEREAS,
Party B
has applied to Party A for a
certain amount of loan
for
purpose of Working
Capital.
WHEREAS,
Party A
agrees to extend such a loan after due process of examination.
NOW,
THEREFORE, both
Parties agree to enter into this Loan Contract based on the negotiation in
regard thereto in accordance with relevant laws and regulations, subject to
the
terms and conditions to be set out hereinafter.
210
ARTICLE
1
TYPE OF LOAN
This
Loan
to be provided hereunder is
Short Term Working Capital Loan.
ARTICLE
2 CURRENCY AND AMOUNT OF LOAN
The
loan
shall be provided in the currency of RMB
and in
the amount of Ten
Million Yuan Only.
ARTICLE
3 LOAN PURPOSE
The
loan
hereunder shall be used for purpose of working capital only, no diversion for
other purposes may be done without first obtaining written consent from Party
A.
ARTICLE
4 LOAN TERM
The
term
of the loan is twelve (12) months, commencing from 31st
Aug.
2005 and ending on 30th
Aug.
2006. In case the date of the actual loan availability fails to coincide with
the abovementioned starting date of the term, the dates shown in the loan
receipt shall apply.
ARTICLE
5 INTEREST RATE AND INTEREST
5.1
Interest rate: The interest rate is agreed to be:_____(optional)
|
o
|
Fixed
interest rate:
_______________________
|
|
o
|
Floating
interest rate:5.859%, to be adjusted on daily basis.
|
A
penalty
interest at the double
rate of
the aforesaid interest rate shall be charged on any part of loan the purpose
of
which is changed, appropriated or diverted for other purposes by Party B without
permission from Party A, without excluding the accrued interest in the ordinary
course. A penalty interest which 1.5 times that as aforementioned and elected,
shall be charged on any part of loan not paid by Party B when due.
Appropriate
interest shall be charged at the abovementioned penalty interest rate on any
part of loan which is overdue or diverted for other purposes not prescribed
herein as from the date of such due date or diversion of such part of loan,
until the principal of the loan together with accrued interest is discharged
in
full.
211
In
the
case of any adjustment by the People’s Bank of China (hereinafter referred to as
“PBC”) to the interest rate herein, the interest on the loan shall be calculated
at the interest rate so adjusted.
5.2
Interest Calculation: the interest on the loan shall accrue as from the date
of
the actual availability to Party B and on the basis of number of days during
which the loan is outstanding, as well as the actual amount of the loan extended
hereunder, and the interest shall be computed on the 20th
day of
the last month of each applicable quarter.
5.3
Interest Settlement: Party B shall pay any and all accrued interest on the
loan
at each applicable interest computation date which accrued interest may be
directly withheld or deducted by Party A from any deposit account of Party
B. In
case Party B fails to pay the accrued interest, Party A shall have the right
to
charge Party B a compound interest at the abovementioned penalty interest rate
on any overdue interest accrued hereunder.
ARTICLE
6 SECURITY
6.1
Tianjin
Sheng Da Steel Mill Co.,Ltd.
and
Baotou
Shengda Industrial Co., Ltd.
as named
by Party B shall stand for surety for the principal, accrued interest thereon,
as well as the any and all other costs in respect thereof hereunder both of
the
companies shall provide Party A with irrevocable guaranty letters, and/or
6.2
The
mortgage (pledge) shall be provided for the loan hereunder by _______ company
or
________ individual with the _________ owned or subject to legal disposal by
the
same, for which a mortgage or pledge contract is to be concluded by both
parties.
ARTICLE
7 RIGHTS AND OBLIGATIONS OF PARTY B
7.1
Party
B shall have the rights to be set out hereinafter:
7.1.1
To
withdraw and use the whole of loan as agreed herein;
7.1.2
To
deny any additional preconditions not stipulated herein;
7.1.3
To
assign or transfer its debt to any third party upon consent of Party A;
7.2
Party
B shall be under the following obligations:
212
7.2.1
To
provide any documents and/or materials as required by Party A, as well as the
information relating to all of its depository banks, accounts number and balance
existing therein, and to provide assistance in any investigation, examination
as
well as inspection to be carried out by Party A in respect of the loan
hereunder;
7.2.2
To
be subject to reasonable supervision by Party A over Party B’s use of the credit
loan, as well as supervision by the same over Party B’s production &
operation and the financial activities;
7.2.3
To
use the loan subject to the terms and conditions set out herein;
7.2.4
To
repay and pay in full the principal of and accrued interest on the loan as
scheduled herein;
7.2.5
To
be subject to Party A’s prior written consent in the case of assignment or
transfer of its debts hereunder, in whole or part, to any third party;
7.2.6
Upon any of the following cases, Party B is required to notify Party A promptly
and to take reasonable security measures necessary for repayment or
reimbursement in full of the principal of and accrued interest on the loan
hereunder, as well as any and all other costs that may occur
hereunder:
7.2.6.1
Substantial financial loss, assets loss or other financial crisis;
7.2.6.2
Provision of loan or stand surety, or provision of mortgage (pledge) with its
own properties (rights), for purpose of any third party’s interest or protecting
any third party from any loss;
7.2.6.3
Consolidation (M&A), division, reconstruction, joint venture (cooperative),
transfer of property rights, stock reconstruction, etc;
7.2.6.4
Cease to carry out business, have its business license suspended or
deregistered, apply by itself or others to be bankrupt, or dissolution, etc;
7.2.6.5
Its controlling shareholder or other affiliates experience substantial operation
or financial crisis that may impair the ordinary operation thereof;
7.2.6.6
Conduct related transactions with its controlling shareholders or other
affiliates that may be materially adverse to its ordinary operation;
7.2.6.7
Occurrence of any suit, arbitration, or criminal or administrative penalty
that
may be materially adverse to its operation or financial standing;
213
7.2.6.8
Occurrence of any breaking events that may affect its repayment
capacity.
ARTICLE
8 RIGHTS AND OBLIGATIONS OF PARTY A
8.1
Party
A shall have the following rights:
8.1.1
To
require Party B to repay the principal of and accrued interest on the loan
as
scheduled herein;
8.1.2
To
request Party B to provide materials relating to the loan hereunder;
8.1.3
To
find out information in respect of Party B’s production & operation as well
as financial activities;
8.1.4
To
supervise the use by Party B of the loan hereunder;
8.1.5
To
directly transfer and withhold the amount for repayment of the due principal
of
and accrued interest on the loan, out of any of Party B’s bank accounts;
8.1.6
To
require Party B to repay the loan ahead of schedule or to suspend any part
of
loan that remains unused by Party B, in accordance with this Contract, in case
Party B fails to perform any of its obligations hereunder;
8.1.7
To
require Party B to repay promptly the principal of and accrued interest of
the
loan, as well as any other costs that may occur hereunder, or to transfer all
of
Party B’s debts hereunder to any assignee permitted by Party A, or to
provide/increase any appropriate security or guaranty acceptable to Party A.
8.2
Party
A shall be under the following obligations:
8.2.1
To
extend the loan in accordance herewith;
8.2.2
To
keep or maintain confidential any and all information in relation to Party
B’s
debts, finance, production, as well as operation, etc. except as otherwise
provided for by related laws;
ARTICLE
9 PARTY HEREBY REPRESENTS AND WARRANTS TO PARTY A THAT:
9.1
Party
B is an enterprise duly incorporated under the laws of the People’s Republic of
China (hereinafter “PRC”) and existing legally, has the legal person status, as
well as the full civil act capacity to sign and perform this Contract;
9.2
Party
B has been fully authorized by the Board of Directors or any other authorities
to sign and perform this Contract;
214
9.3
The
documentation, materials as well as the vouchers to be provided by Party B
in
relation to Party B, surety, mortgagor (pledgor), as well as the mortgaged
or
pledged objects are true, accurate, complete and valid, free from any
significant mistakes inconsistent with facts or any substantial omission;
9.4
At
the time of signing this Contract, no suit, arbitration, criminal or
administrative penalty that may be materially adverse to Party B or its
principal property occur(s), nor may the same threaten(s) to occur during
performance of this Contract, otherwise, Party B is required to notify Party
A
promptly;
9.5
To be
in strict compliance with any applicable national laws and regulations in its
operation, to strictly abide by the business scope prescribed by its Business
License for Incorporated Enterprise in conducting business, as well as to go
through enterprise (legal person) annual inspection & registration
formalities in time;
9.6
To
maintain or increase the current operation or management level to ensure the
value preservation and appreciation of the existing assets, not to waive any
due
creditor rights, not to dispose of the existing principal property free or
otherwise;
9.7
No
significant event that suffice to prejudice the performance by Party B of any
obligations hereunder exists at the time of signing this Contract.
ARTICLE
10 PREPAYMENT
10.1
Party B may request to repay the loan ahead of schedule, provided however a
prior consent from Party A has been obtained;
10.2
In
the case of any repayment ahead of schedule, the interest shall be computed
and
settled at the rate specified herein.
ARTICLE
11 LOAN EXTENSION
In
case
Party B is unable to repay the loan hereunder as scheduled and requests for
an
extension therefore, Party B shall submit an application for that purpose one
month prior to the scheduled expiry date hereof; An Agreement on Loan Contract
Extension shall be concluded by both Parties in case Party A consents to such
intended extension after due process of examination, otherwise, this Contract
shall remain in full force and effect. Party B is obliged to repay any part
of
loan used by Party B together with accrued interest, as provided herein.
215
ARTICLE
12 COSTS & EXPENSES
Any
and
all costs and expenses in respect hereof shall be borne by Party B in full,
including those incurred in respect of the inquiry of creditworthiness,
inspection, public notarization, etc. in connection herewith, attorney’s fee,
suit costs as well as travel expense, etc. incurred by Party A in realizing
its
creditor’s rights in case Party B fails to repay the principal of and accrued
interest on the loan hereunder and to reimburse the fees payable by Party B
as
scheduled, Party B hereby authorizes Party a to directly withhold any such
amount out of Party B’s bank account, any deficiency existing after such
withholding shall be reimbursed by Party B in full to Party A upon receipt
of a
notice requesting to do so from Party A without further need to provide any
proof.
ARTICLE
13 BREACHING EVENTS AND SETTLEMENT
13.1
Any
of the following shall be deemed a breach on the part of Party B:
13.1.1
The information provided by Party B to Party A is falsified or conceals
significant facts, failure by Party B to assist Party A in investigation,
examination as well as inspection, in breach of ARTICLE 7.2.1 hereof, Party
B
fails to make appropriate correction within a timeframe specified by Party
A,
the circumstances are rather serious;
13.1.2
Party B refuses to be subject to or shrugs off the supervision by Party A over
the use of credit loan by Party B, related production & operation, as well
as financial activities, in contravention of ARTICLE 7.2.2, the circumstances
are serious;
13.1.3
Party B fails to use the loan for purposes described herein, in contravention
of
ARTICLE 7.2.3.
13.1.4
Party B fails to repay the principal of and accrued interest on the loan in
full
and as scheduled herein, as in contravention of ARTICLE 7.2.4 hereof;
13.1.5
Party B unilaterally assigns its debts hereunder to any third party that may
prejudice Party A’s interests, as in contravention of ARTICLE 7.2.5 hereof;
216
13.1.6
Party B fails to notify Party A of any event set out in ARTICLE 7.2.6 in a
timely manner, or Party B refuses to increase the security or guaranty for
repayment of debts hereunder as required by Party A being aware of any such
events described in ARTICLE 7.2.26 hereinabove, or any other events occurring
on
the part of Party B that may impair the safe recovery of the loan in the sole
opinion of Party A;
13.1.7
Party A’s interest is impaired as a result of Party B’s act in contravention of
ARTICLE
9.1,
9.2, and/or 9.4, or as a result of failure of Party B to make prompt correction
as required by Party A;
13.1.8
Any other events occurring on the part of Party B that may prejudice the
legitimate rights and interests of Party A in the sole opinion of the same;
13.2
Upon
any of the following cases on the part of the surety hereunder that may affect
the guaranty capacity of the surety as in the sole opinion of Party A, failure
of the surety and/or Party B to exclude any adverse impact as a result thereof
or increase or change the security or guaranty shall be deemed as a breach
of
Party B:
13.2.1
Occurrence of any of the cases similar to those set out in ARTICLE 7.2.6 hereof;
13.2.2
Conceals the capacity to stand surety or fails to be authorized by related
authority at the time of issuance of the irrevocable guaranty letter;
13.2.3
Fails to go through annual inspection and registration formalities in a timely
manner;
13.2.4
Neglect in management and recourse of any due creditor’s rights, or disposes of
its principal property without compensation or otherwise.
13.3
Upon
any of the following cases on the part of the Mortgagor (Pledgor) hereunder
that
may result in the failure of such mortgage (pledge) or value deficiency of
the
mortgaged or pledged objects, as in the sole opinion of Party A, failure of
the
Mortgagor (Pledgor) to exclude any adverse impact as a result thereof or failure
of Party B to increase or change the security or guaranty, as required by Party
A shall be deemed as a breach of Party B:
13.3.1
Has no title in or disposal rights of the mortgaged or pledged objects, or
the
title therein remain unclear;
217
13.3.2
Conceals the fact that the mortgaged or pledged objects are co-owned, have
been
leased out, have been sealed up, or have been in custody, etc.;
13.2.3
The Mortgagor, without the written consent from Party A, assigns, rents,
remortgages, or otherwise disposes of the mortgaged objects;
13.2.4
A
considerable appreciation in value of the mortgaged objects as a result of
failure of the Mortgagor to take appropriate custody of, maintenance and repair
on the mortgaged objects; or reduction in value of mortgaged objects as a result
of act of the Mortgagor threatening the mortgaged objects; or the Mortgagor
fails to procure insurance for the mortgaged objects as required by the Party
A
within the agreed upon mortgage term;
13.4
Upon
any breaching events set out in 13.1, 13.2, as well as 13.3 hereinabove, Party
A
is entitled to elect to take any or several in combination of the following
steps to which Party B shall refrain from making any objection:
13.4.1
Cease to provide any part of loan unused by Party B;
13.4.2
Reclaim the principal of the loan together with accrued interest, to the extent
made available to Party B, as well as related expenses, ahead of schedule;
13.4.3
Directly withhold any amount out of the settlement account or other accounts
of
Party B, to repay the debts hereunder;
13.4.4
Exercise the recourse rights pursuant to this Contract.
ARTICLE
14 MODIFICATION AND TERMINATION OF CONTRACT
This
Contract may be modified or terminated upon agreement between both Parties
in
writing. Prior to concluding of such written agreement, this Contract shall
remain in full force and effect. Neither party hereto may modify, revise or
terminate this Contract without consent and agreement of the other party.
ARTICLE
15 MISCELLANEOUS
15.1
During the whole life of this Contract, no tolerance, grace period, or
suspension to enforce any of the rights and interests or powers of Party A
hereunder, as may be granted by Party A to Party B in respect of any breach
or
delay on the part of Party B may impair, affect, or limit any rights and
interests, or powers of Party A as the creditor in accordance with this Contract
and related laws and regulations, nor shall be construed as the permission
or
recognition by Party A of any breach on the part of Party B, or as the waiver
by
Party A of any right to take appropriate actions against any present or future
breach of Party B.
218
15.2
Party B shall perform any and all repayment obligations in disregard of the
fact
that this Contract, in whole or part, is determined null and void at law for
whatsoever reasons, in such a case, Party A is entitled to terminate this
Contract and promptly reclaim against Party B the principal of and accrued
interest on the loan hereunder, as well as other related amounts.
15.3
Any
notice and request to be made by either party hereunder shall be in writing.
The
telegraph and/or telex shall be deemed effectively given upon sending by Party
A, and the communication shall be deemed effectively given upon being delivered
to appropriate post office by Party A.
15.4
The
loan receipt as well as any written supplemental agreement between both Parties
on any issue not defined herein or on revision of this Contract shall be
attached as appendices to this Contract and constitute integral parts hereof.
ARTICLE
16 GOVERNING LAW AND DISPUTE RESOLUTION
16.1
The
formation, interpretation, as well as dispute resolution in respect of this
Contract shall be governed by the laws of the People’s Republic of China, the
rights and interests of both parties hereto shall be under protection of the
same.
16.2
Any
dispute arising out of or in connection with the performance of this Contract
shall be settled by friendly negotiation between both Parties, in case of no
successful settlement therefrom, either party may elect to: 16.1
(optional, either 16.2.1 or 16.2.2)
16.2.1
Lodge an action with the people’s court at the place where Party A resides; or
16.2.2
Submit to _____________ Arbitration Committee for determination in accordance
with rules and procedures then currently in force.
16.3
Once
appropriate public notarization is completed which gives rise to the
enforceability of this Contract, Party A may directly apply to any People’s
Court having appropriate jurisdiction thereover to enforce this Contract for
purpose of recovering any due and payable debts hereunder.
219
ARTICLE
17 EFFECTIVENESS
17.1
This
Contract shall enter into and remain in force conditional upon the signature,
common seal by duly authorized representatives of both parties, as well as
upon
completion of the formalities for security or guaranty as set forth in ARTICLE
6
hereof, until any and all principal of and the accrued interest on the loan,
as
well as any other costs in respect thereof are paid up.
17.2
This
Contract is made in four copies being equally authentic. Party A holds two
(2)
copies thereof, each of Party B and _____ holds one (1) copies thereof.
[Below
is intentionally left blank]
|
Party
A(Common Seal):
|
Party
B(Common Seal):
|
|
Duly
Authorized Signatory:
|
Duly
Authorized Signatory:
|
|
Date:
|
Date:
31st
Aug. 2005
|
220
IRREVOCABLE
GUARANTY LETTER
(Prepared
in Dec. 2001)
In
Favor
of China Merchants Bank Tianjin Branch
WHEREAS,
your
bank
has entered into a Loan Contract with the no. [2005] daizhidi 55023 with Tianjin
Daqiuzhuang Metal Sheet Co., Ltd. (hereinafter “the Borrower”) on 31st
Aug.
2005 whereby a loan in the sum of RMB
Ten Million Yuan only
is to be
extended for a term of
twelve months.
NOW
THEREFORE,
we, the
undersigned and surety for the Borrower, hereby agree to issue this Guaranty
Letter with joint and several liabilities for all the debts owed by the Borrower
to your bank, subject to the terms and conditions set forth
hereinafter.
ARTICLE
1
The
scope of the suretyship offered by us hereunder covers any all debts created
under the Loan Contract, including the principal of the loan in the amount
of
RMB
Ten Million Yuan
offered
by your bank to the Borrower in accordance with the Loan Contract, together
with
appropriate accrued interest, penalty interest, fine for breach, as well as
any
and all other costs and expenses in respect thereof.
ARTICLE
2
We, the
undersigned and the surety for the Borrower, hereby acknowledge to be jointly
and severally liable, whether economically or legally, for any debts owed by
the
Borrowers, provided such debts shall be within the surety scope as set out
in
ARTICLE 2 hereinabove. Your bank is entitled to directly make recourse against
us without having to first make recourse or institute actions against the
Borrower in case the Borrower fails to repay or pay in a timely manner and
in
accordance with the Loan Contract and/or any other particular contract, if
any,
the principal of the loan and/or any amount paid by your bank for the Borrower,
or any related expenses, or in the case of any breaching event as may be set
out
in the Loan Contract and/or any other particular contract, if any. In disregard
to any mortgage or pledge established additionally to ensure the timely
satisfaction or repayment of any debt owed by the Borrower to your bank under
the Loan Contract, your bank is also entitled to directly make recourse against
us for all the amounts of debts, without having to first enforcement of such
mortgaged or pledged objects.
221
We
agree
to be absolutely subject to any Claim Notice to be issued by you which is final.
We further agree to repay and satisfy any and all debts owed by the Borrower
under the Loan Contract in full within five days upon receipt of such Claim
Notice for which your bank is not obliged to provide any proof or
documents.
ARTICLE
3
This
Guaranty Letter is independent, continuously effective, irrevocable and
unconditional, in no event shall be affected by the Loan Contract and/or any
particular contract, nor shall be affected by any agreement or document
concluded between the Borrower and any unit. This Guaranty Letter shall remain
unchanged in the event of any fraudulent act, reorganization, cease to carry
out
business, dissolution, liquidation, bankruptcy, etc. on the part of the Borrower
for whatsoever reasons. The liability to be taken by us as the surety hereunder
may not be released or exempted by reason of any order received, change in
our
financial standing, or any agreement entered into with any unit or individual.
The
liability to be taken by us as the surety hereunder may not be affected by
virtue of cease to provide any unused part of loan and/or recovery of the
extended loan in advance, by your bank in accordance with ARTICLE 13 of the
Loan
Contract.
ARTICLE
4
We, the
undersigned and surety for the Borrower, hereby acknowledge and undertakes
to be
bound by and subject to any extension agreement or other supplemental agreements
in respect of the term and interest rate, etc. of the Loan Contract between
your
bank and the Borrower in the course of performance of the same, without
requiring future notice from your bank.
ARTICLE
5
The
suretyship duration hereunder shall be as from the expiry date of each loan
as
may be extended under the Loan Contract or as from the same date of the second
year following the expiry date of the Loan Contract.
ARTICLE
6 WE, THE UNDERSIGNED AND SURETY FOR THE BORROWER, XXXXXX REPRESENTS AND
WARRANTS WITH YOUR BANK:
222
6.1
That
we, a legal person enterprise which is duly registered with appropriate
authority for industry and commerce (registration no.: ______ ) upon approval
by
_________, and which is eligible for standing surety for others, or a
not-for-profit institution with legal person status which is eligible for
standing surety for others, agree to provide guarantee with the assets legally
owned by us or to which we are entitled to disposal right, and undertake to
perform any of the obligations prescribed herein;
6.2
That
issuance of this Guaranty Letter is the true representation of us under no
misrepresentation or duress;
6.3
That
we are fully authorized or approved by superior authority/the Board of Directors
as necessitated by issuance of this Guaranty Letter;
6.4
That
any and all financial statements as well as any other documents to be submitted
by us to your bank are true, legally permitted for which the our legal
representative or any other person in charge shall be held liable;
6.5
That
we shall issue a guaranty confirmation upon request of your bank;
6.6
That
we, the undersigned and surety for the Borrower, agree to be held for the total
guaranty liability (including equivalent in foreign currency) not more than
the
whole sum of our proprietary rights and interests;
6.7
That
we shall notify your bank of any change in the registration particulars with
authority for industry and commerce, organization structure, operation mode
or
financial standing in respect of our company, which change may result in a
change in our capacity to perform this guaranty letter, without delay;
6.8
That
your bank is hereby authorized to withhold or deduct any such amount therefore
out of any deposit account of us, until and unless any and all debts, as well
as
any other expenses, as long as owed by the Borrower under the Loan Contract,
and
we shall be absolutely subject to the aforesaid continuing obligation;
6.9
That
any assign or successor of us shall be bound by all the provisions contained
herein. No assignment of any of our obligations hereunder may be made by us
in
the absence of the written consent from your bank;
ARTICLE
7 This
Guaranty Letter is governed by the laws of the People’s Republic of China, we
hereby confirm that any dispute arising out of or in connection with the
performance hereof shall be settled by such means applicable to dispute
resolution, as set out in the Loan Contract.
223
Once
appropriate public notarization is completed which gives rise to the
enforceability of the Loan Contract and this Guaranty Letter, we hereby agree
that any creditor receiving no repayment is entitled to directly apply to any
People’s Court having appropriate jurisdiction thereover to enforce the Loan
Contract and/or this Guaranty Letter, for purpose of recovering any due and
payable debts hereunder.
ARTICLE
8 This
Guaranty Letter is made in three (3) copies, each of the Lender, the Borrower
as
well as the surety shall hold one copy thereof.
This
Guaranty Letter shall enter into force upon signature and common seal by the
surety hereunder.
|
The
Surety (Common Seal):
|
Duly
Authorized Signatory (Signature):
|
|
Xx
Xxxxxxxx
|
|
|
Address:
Daqiuzhuang Town, Jinghai County, Tianjin
|
Tel:
|
|
Major
Deposit Bank & A/c No.:
|
Date:
21st
Aug. 2005
|
224
IRREVOCABLE
GUARANTY LETTER
(Prepared
in Dec. 2001)
In
Favor
of China Merchants Bank Tianjin Branch
WHEREAS,
your
bank
has entered into a Loan Contract with the no. [2005] daizhidi 55023 with Tianjin
Daqiuzhuang Metal Sheet Co., Ltd. (hereinafter “the Borrower”) on 31st
Aug.
2005 whereby a loan in the sum of RMB
Ten Million Yuan only
is to be
extended for a term of
twelve months.
NOW
THEREFORE,
we, the
undersigned and surety for the Borrower, hereby agree to issue this Guaranty
Letter with joint and several liabilities for all the debts owed by the Borrower
to your bank, subject to the terms and conditions set forth
hereinafter.
ARTICLE
1
The
scope of the suretyship offered by us hereunder covers any all debts created
under the Loan Contract, including the principal of the loan in the amount
of
RMB Ten
Million Yuan
offered
by your bank to the Borrower in accordance with the Loan Contract, together
with
appropriate accrued interest, penalty interest, fine for breach, as well as
any
and all other costs and expenses in respect thereof.
ARTICLE
2
We, the
undersigned and the surety for the Borrower, hereby acknowledge to be jointly
and severally liable, whether economically or legally, for any debts owed by
the
Borrowers, provided such debts shall be within the surety scope as set out
in
ARTICLE 2 hereinabove. Your bank is entitled to directly make recourse against
us without having to first make recourse or institute actions against the
Borrower in case the Borrower fails to repay or pay in a timely manner and
in
accordance with the Loan Contract and/or any other particular contract, if
any,
the principal of the loan and/or any amount paid by your bank for the Borrower,
or any related expenses, or in the case of any breaching event as may be set
out
in the Loan Contract and/or any other particular contract, if any. In disregard
to any mortgage or pledge established additionally to ensure the timely
satisfaction or repayment of any debt owed by the Borrower to your bank under
the Loan Contract, your bank is also entitled to directly make recourse against
us for all the amounts of debts, without having to first enforcement of such
mortgaged or pledged objects.
225
We
agree
to be absolutely subject to any Claim Notice to be issued by you which is final.
We further agree to repay and satisfy any and all debts owed by the Borrower
under the Loan Contract in full within five days upon receipt of such Claim
Notice for which your bank is not obliged to provide any proof or
documents.
ARTICLE
3
This
Guaranty Letter is independent, continuously effective, irrevocable and
unconditional, in no event shall be affected by the Loan Contract and/or any
particular contract, nor shall be affected by any agreement or document
concluded between the Borrower and any unit. This Guaranty Letter shall remain
unchanged in the event of any fraudulent act, reorganization, cease to carry
out
business, dissolution, liquidation, bankruptcy, etc. on the part of the Borrower
for whatsoever reasons. The liability to be taken by us as the surety hereunder
may not be released or exempted by reason of any order received, change in
our
financial standing, or any agreement entered into with any unit or individual.
The
liability to be taken by us as the surety hereunder may not be affected by
virtue of cease to provide any unused part of loan and/or recovery of the
extended loan in advance, by your bank in accordance with ARTICLE 13 of the
Loan
Contract.
ARTICLE
4
We, the
undersigned and surety for the Borrower, hereby acknowledge and undertakes
to be
bound by and subject to any extension agreement or other supplemental agreements
in respect of the term and interest rate, etc. of the Loan Contract between
your
bank and the Borrower in the course of performance of the same, without
requiring future notice from your bank.
ARTICLE
5
The
suretyship duration hereunder shall be as from the expiry date of each loan
as
may be extended under the Loan Contract or as from the same date of the second
year following the expiry date of the Loan Contract.
ARTICLE
6 WE, THE UNDERSIGNED AND SURETY FOR THE BORROWER, XXXXXX REPRESENTS AND
WARRANTS WITH YOUR BANK:
226
6.1
That
we, a legal person enterprise which is duly registered with appropriate
authority for industry and commerce (registration no.: ______ ) upon approval
by
_________, and which is eligible for standing surety for others, or a
not-for-profit institution with legal person status which is eligible for
standing surety for others, agree to provide guarantee with the assets legally
owned by us or to which we are entitled to disposal right, and undertake to
perform any of the obligations prescribed herein;
6.2
That
issuance of this Guaranty Letter is the true representation of us under no
misrepresentation or duress;
6.3
That
we are fully authorized or approved by superior authority/the Board of Directors
as necessitated by issuance of this Guaranty Letter;
6.4
That
any and all financial statements as well as any other documents to be submitted
by us to your bank are true, legally permitted for which the our legal
representative or any other person in charge shall be held liable;
6.5
That
we shall issue a guaranty confirmation upon request of your bank;
6.6
That
we, the undersigned and surety for the Borrower, agree to be held for the total
guaranty liability (including equivalent in foreign currency) not more than
the
whole sum of our proprietary rights and interests;
6.7
That
we shall notify your bank of any change in the registration particulars with
authority for industry and commerce, organization structure, operation mode
or
financial standing in respect of our company, which change may result in a
change in our capacity to perform this guaranty letter, without delay;
6.8
That
your bank is hereby authorized to withhold or deduct any such amount therefore
out of any deposit account of us, until and unless any and all debts, as well
as
any other expenses, as long as owed by the Borrower under the Loan Contract,
and
we shall be absolutely subject to the aforesaid continuing obligation;
6.9
That
any assign or successor of us shall be bound by all the provisions contained
herein. No assignment of any of our obligations hereunder may be made by us
in
the absence of the written consent from your bank;
ARTICLE
7 This
Guaranty Letter is governed by the laws of the People’s Republic of China, we
hereby confirm that any dispute arising out of or in connection with the
performance hereof shall be settled by such means applicable to dispute
resolution, as set out in the Loan Contract.
227
Once
appropriate public notarization is completed which gives rise to the
enforceability of the Loan Contract and this Guaranty Letter, we hereby agree
that any creditor receiving no repayment is entitled to directly apply to any
People’s Court having appropriate jurisdiction thereover to enforce the Loan
Contract and/or this Guaranty Letter, for purpose of recovering any due and
payable debts hereunder.
ARTICLE
8 This
Guaranty Letter is made in three (3) copies, each of the Lender, the Borrower
as
well as the surety shall hold one copy thereof.
This
Guaranty Letter shall enter into force upon signature and common seal by the
surety hereunder.
|
The
Surety (Common Seal):
|
Duly
Authorized Signatory (Signature):
|
|
Xxxxx
Xxxxxx
|
|
|
Address:
Daqiuzhuang Town, Jinghai County, Tianjin
|
Tel:
|
|
Major
Deposit Bank & A/c No.:
|
Date:
31st
Aug. 2005
|
228
For
Letter of Guarantee
NO.:
2005
daizi No.: 55023
To:
Tianjin branch Merchant Bank
We,
the
enterprise authorized by
with
legal person qualification and business license, would like to provide guarantee
to Renminbi
(currency) 10,000,000
Yuan
under
2005
daizi No.: 55023
loan
contract/ credit extension contract signed on Aug.
31, 2005
by
Tianjin
Daqiuzhuang Metal Sheet Co., Ltd.
(Borrower) and your bank. Whereas, we confirmed that the Irrevocable Letter
of
Guarantee issued on Aug.
31, 2005 to
your
bank is truthful, and we would take all responsibilities to the articles under
the letter of guarantee.
Guarantor
(common seal): Tianjin Sheng Da Steel Mill Co.,Ltd.
Present
guarantee.
Authorized
representative: Xx Xxxxxxxx
Aug
31,
2005
229
For
Letter of Guarantee
NO.:
2005
daizi No.: 55023
To:
Tianjin branch Merchant Bank
We,
the
enterprise authorized
by
with
legal person qualification and business license, would like to provide guarantee
to Renminbi
(currency) 10,000,000
Yuan
under
2005
daizi No.: 55023
loan
contract / credit extension contract signed on Aug.
31, 2005 by
Tianjin
Daqiuzhuang Metal Sheet Co., Ltd.
(Borrower) and your bank. Whereas, we confirmed that the Irrevocable Letter
of
Guarantee issued on Aug.
31, 2005 to
your
bank is truthful, and we would take all responsibilities to the articles under
the letter of guarantee.
Guarantor
(common seal):
Present
guarantee.
Authorized
representative:
Aug
31,
2005
230
LOAN
CONTRACT
CHINA
MERCHANTS BANK
FEB
2004
231
Contract
No.: [2005]Daizhidi55033
Parties
to this Loan Contract:
The
Lender: China Merchants Bank Tianjin Branch (hereinafter referred to as “Party
A”)
Person
in
charge: Xxxx Xxxxxx
Position:
President
Address: 00
Xxxxx
Xxxxx Xxxx Xxxx Xxxxxxxx, Xxxxxxx
Tel:
And
The
Borrower: Tianjin Daqiuzhuang Metal Sheet Co., Ltd. (hereinafter referred to
as
“Party B”)
Legal
Representative: Xx Xxxxxxxx
Position:
Chairman of the Board
Address:
Daqiuzhuang, Jinghai County, Tianjin
Tel:
WHEREAS,
Party B
has applied to Party A for a
certain amount of loan
for
purpose of Working
Capital.
WHEREAS,
Party A
agrees to extend such a loan after due process of examination.
NOW,
THEREFORE, both
Parties agree to enter into this Loan Contract based on the negotiation in
regard thereto in accordance with relevant laws and regulations, subject to
the
terms and conditions to be set out hereinafter.
232
ARTICLE
1
TYPE OF LOAN
This
Loan
to be provided hereunder is
Working Capital Loan.
ARTICLE
2 CURRENCY AND AMOUNT OF LOAN
The
loan
shall be provided in the currency of RMB
and in
the amount of Fifteen
Million Yuan Only.
ARTICLE
3 LOAN PURPOSE
The
loan
hereunder shall be used for purpose of working capital only, no diversion for
other purposes may be done without first obtaining written consent from Party
A.
ARTICLE
4 LOAN TERM
The
term
of the loan is twelve (12) months, commencing from 29th
Sept.
2005 and ending on 28th
Sept.
2006. In case the date of the actual loan availability fails to coincide with
the abovementioned starting date of the term, the dates shown in the loan
receipt shall apply.
ARTICLE
5 INTEREST RATE AND INTEREST
5.1
Interest rate: The interest rate is agreed to be:_____(optional)
|
o
|
Fixed
interest rate:
_______________________
|
|
o
|
Floating
interest rate:5.859%, to be adjusted on daily basis.
|
A
penalty
interest at the double
rate of
the aforesaid interest rate shall be charged on any part of loan the purpose
of
which is changed, appropriated or diverted for other purposes by Party B without
permission from Party A, without excluding the accrued interest in the ordinary
course. A penalty interest which 1.5 times that as aforementioned and elected,
shall be charged on any part of loan not paid by Party B when due.
Appropriate
interest shall be charged at the abovementioned penalty interest rate on any
part of loan which is overdue or diverted for other purposes not prescribed
herein as from the date of such due date or diversion of such part of loan,
until the principal of the loan together with accrued interest is discharged
in
full.
233
In
the
case of any adjustment by the People’s Bank of China (hereinafter referred to as
“PBC”) to the interest rate herein, the interest on the loan shall be calculated
at the interest rate so adjusted.
5.2
Interest Calculation: the interest on the loan shall accrue as from the date
of
the actual availability to Party B and on the basis of number of days during
which the loan is outstanding, as well as the actual amount of the loan extended
hereunder, and the interest shall be computed on the 20th
day of
the last month of each applicable quarter.
5.3
Interest Settlement: Party B shall pay any and all accrued interest on the
loan
at each applicable interest computation date which accrued interest may be
directly withheld or deducted by Party A from any deposit account of Party
B. In
case Party B fails to pay the accrued interest, Party A shall have the right
to
charge Party B a compound interest at the abovementioned penalty interest rate
on any overdue interest accrued hereunder.
ARTICLE
6 SECURITY
6.1
Tianjin
Sheng Da Steel Mill Co.,Ltd.
and
Baotou
Shengda Industrial Co., Ltd.
as named
by Party B shall stand for surety for the principal, accrued interest thereon,
as well as the any and all other costs in respect thereof hereunder both of
the
companies shall provide Party A with irrevocable guaranty letters, and/or
6.2
The
mortgage (pledge) shall be provided for the loan hereunder by _______ company
or
________ individual with the _________ owned or subject to legal disposal by
the
same, for which a mortgage or pledge contract is to be concluded by both
parties.
ARTICLE
7 RIGHTS AND OBLIGATIONS OF PARTY B
7.1
Party
B shall have the rights to be set out hereinafter:
7.1.1
To
withdraw and use the whole of loan as agreed herein;
7.1.2
To
deny any additional preconditions not stipulated herein;
7.1.3
To
assign or transfer its debt to any third party upon consent of Party A;
7.2
Party
B shall be under the following obligations:
234
7.2.1
To
provide any documents and/or materials as required by Party A, as well as the
information relating to all of its depository banks, accounts number and balance
existing therein, and to provide assistance in any investigation, examination
as
well as inspection to be carried out by Party A in respect of the loan
hereunder;
7.2.2
To
be subject to reasonable supervision by Party A over Party B’s use of the credit
loan, as well as supervision by the same over Party B’s production &
operation and the financial activities;
7.2.3
To
use the loan subject to the terms and conditions set out herein;
7.2.4
To
repay and pay in full the principal of and accrued interest on the loan as
scheduled herein;
7.2.5
To
be subject to Party A’s prior written consent in the case of assignment or
transfer of its debts hereunder, in whole or part, to any third party;
7.2.6
Upon any of the following cases, Party B is required to notify Party A promptly
and to take reasonable security measures necessary for repayment or
reimbursement in full of the principal of and accrued interest on the loan
hereunder, as well as any and all other costs that may occur
hereunder:
7.2.6.1
Substantial financial loss, assets loss or other financial crisis;
7.2.6.2
Provision of loan or stand surety, or provision of mortgage (pledge) with its
own properties (rights), for purpose of any third party’s interest or protecting
any third party from any loss;
7.2.6.3
Consolidation (M&A), division, reconstruction, joint venture (cooperative),
transfer of property rights, stock reconstruction, etc;
7.2.6.4
Cease to carry out business, have its business license suspended or
deregistered, apply by itself or others to be bankrupt, or dissolution, etc;
7.2.6.5
Its controlling shareholder or other affiliates experience substantial operation
or financial crisis that may impair the ordinary operation thereof;
7.2.6.6
Conduct related transactions with its controlling shareholders or other
affiliates that may be materially adverse to its ordinary operation;
7.2.6.7
Occurrence of any suit, arbitration, or criminal or administrative penalty
that
may be materially adverse to its operation or financial standing;
235
7.2.6.8
Occurrence of any breaking events that may affect its repayment
capacity.
ARTICLE
8 RIGHTS AND OBLIGATIONS OF PARTY A
8.1
Party
A shall have the following rights:
8.1.1
To
require Party B to repay the principal of and accrued interest on the loan
as
scheduled herein;
8.1.2
To
request Party B to provide materials relating to the loan hereunder;
8.1.3
To
find out information in respect of Party B’s production & operation as well
as financial activities;
8.1.4
To
supervise the use by Party B of the loan hereunder;
8.1.5
To
directly transfer and withhold the amount for repayment of the due principal
of
and accrued interest on the loan, out of any of Party B’s bank accounts;
8.1.6
To
require Party B to repay the loan ahead of schedule or to suspend any part
of
loan that remains unused by Party B, in accordance with this Contract, in case
Party B fails to perform any of its obligations hereunder;
8.1.7
To
require Party B to repay promptly the principal of and accrued interest of
the
loan, as well as any other costs that may occur hereunder, or to transfer all
of
Party B’s debts hereunder to any assignee permitted by Party A, or to
provide/increase any appropriate security or guaranty acceptable to Party A.
8.2
Party
A shall be under the following obligations:
8.2.1
To
extend the loan in accordance herewith;
8.2.2
To
keep or maintain confidential any and all information in relation to Party
B’s
debts, finance, production, as well as operation, etc. except as otherwise
provided for by related laws;
ARTICLE
9 PARTY HEREBY REPRESENTS AND WARRANTS TO PARTY A THAT:
9.1
Party
B is an enterprise duly incorporated under the laws of the People’s Republic of
China (hereinafter “PRC”) and existing legally, has the legal person status, as
well as the full civil act capacity to sign and perform this Contract;
9.2
Party
B has been fully authorized by the Board of Directors or any other authorities
to sign and perform this Contract;
236
9.3
The
documentation, materials as well as the vouchers to be provided by Party B
in
relation to Party B, surety, mortgagor (pledgor), as well as the mortgaged
or
pledged objects are true, accurate, complete and valid, free from any
significant mistakes inconsistent with facts or any substantial omission;
9.4
At
the time of signing this Contract, no suit, arbitration, criminal or
administrative penalty that may be materially adverse to Party B or its
principal property occur(s), nor may the same threaten(s) to occur during
performance of this Contract, otherwise, Party B is required to notify Party
A
promptly;
9.5
To be
in strict compliance with any applicable national laws and regulations in its
operation, to strictly abide by the business scope prescribed by its Business
License for Incorporated Enterprise in conducting business, as well as to go
through enterprise (legal person) annual inspection & registration
formalities in time;
9.6
To
maintain or increase the current operation or management level to ensure the
value preservation and appreciation of the existing assets, not to waive any
due
creditor rights, not to dispose of the existing principal property free or
otherwise;
9.7
No
significant event that suffice to prejudice the performance by Party B of any
obligations hereunder exists at the time of signing this Contract.
ARTICLE
10 PREPAYMENT
10.1
Party B may request to repay the loan ahead of schedule, provided however a
prior consent from Party A has been obtained;
10.2
In
the case of any repayment ahead of schedule, the interest shall be computed
and
settled at the rate specified herein.
ARTICLE
11 LOAN EXTENSION
In
case
Party B is unable to repay the loan hereunder as scheduled and requests for
an
extension therefore, Party B shall submit an application for that purpose one
month prior to the scheduled expiry date hereof; An Agreement on Loan Contract
Extension shall be concluded by both Parties in case Party A consents to such
intended extension after due process of examination, otherwise, this Contract
shall remain in full force and effect. Party B is obliged to repay any part
of
loan used by Party B together with accrued interest, as provided herein.
237
ARTICLE
12 COSTS & EXPENSES
Any
and
all costs and expenses in respect hereof shall be borne by Party B in full,
including those incurred in respect of the inquiry of creditworthiness,
inspection, public notarization, etc. in connection herewith, attorney’s fee,
suit costs as well as travel expense, etc. incurred by Party A in realizing
its
creditor’s rights in case Party B fails to repay the principal of and accrued
interest on the loan hereunder and to reimburse the fees payable by Party B
as
scheduled, Party B hereby authorizes Party a to directly withhold any such
amount out of Party B’s bank account, any deficiency existing after such
withholding shall be reimbursed by Party B in full to Party A upon receipt
of a
notice requesting to do so from Party A without further need to provide any
proof.
ARTICLE
13 BREACHING EVENTS AND SETTLEMENT
13.1
Any
of the following shall be deemed a breach on the part of Party B:
13.1.1
The information provided by Party B to Party A is falsified or conceals
significant facts, failure by Party B to assist Party A in investigation,
examination as well as inspection, in breach of ARTICLE 7.2.1 hereof, Party
B
fails to make appropriate correction within a timeframe specified by Party
A,
the circumstances are rather serious;
13.1.2
Party B refuses to be subject to or shrugs off the supervision by Party A over
the use of credit loan by Party B, related production & operation, as well
as financial activities, in contravention of ARTICLE 7.2.2, the circumstances
are serious;
13.1.3
Party B fails to use the loan for purposes described herein, in contravention
of
ARTICLE 7.2.3.
13.1.4
Party B fails to repay the principal of and accrued interest on the loan in
full
and as scheduled herein, as in contravention of ARTICLE 7.2.4 hereof;
13.1.5
Party B unilaterally assigns its debts hereunder to any third party that may
prejudice Party A’s interests, as in contravention of ARTICLE 7.2.5 hereof;
238
13.1.6
Party B fails to notify Party A of any event set out in ARTICLE 7.2.6 in a
timely manner, or Party B refuses to increase the security or guaranty for
repayment of debts hereunder as required by Party A being aware of any such
events described in ARTICLE 7.2.26 hereinabove, or any other events occurring
on
the part of Party B that may impair the safe recovery of the loan in the sole
opinion of Party A;
13.1.7
Party A’s interest is impaired as a result of Party B’s act in contravention of
ARTICLE
9.1,
9.2, and/or 9.4, or as a result of failure of Party B to make prompt correction
as required by Party A;
13.1.8
Any other events occurring on the part of Party B that may prejudice the
legitimate rights and interests of Party A in the sole opinion of the same;
13.2
Upon
any of the following cases on the part of the surety hereunder that may affect
the guaranty capacity of the surety as in the sole opinion of Party A, failure
of the surety and/or Party B to exclude any adverse impact as a result thereof
or increase or change the security or guaranty shall be deemed as a breach
of
Party B:
13.2.1
Occurrence of any of the cases similar to those set out in ARTICLE 7.2.6 hereof;
13.2.2
Conceals the capacity to stand surety or fails to be authorized by related
authority at the time of issuance of the irrevocable guaranty letter;
13.2.3
Fails to go through annual inspection and registration formalities in a timely
manner;
13.2.4
Neglect in management and recourse of any due creditor’s rights, or disposes of
its principal property without compensation or otherwise.
13.3
Upon
any of the following cases on the part of the Mortgagor (Pledgor) hereunder
that
may result in the failure of such mortgage (pledge) or value deficiency of
the
mortgaged or pledged objects, as in the sole opinion of Party A, failure of
the
Mortgagor (Pledgor) to exclude any adverse impact as a result thereof or failure
of Party B to increase or change the security or guaranty, as required by Party
A shall be deemed as a breach of Party B:
13.3.1
Has no title in or disposal rights of the mortgaged or pledged objects, or
the
title therein remain unclear;
239
13.3.2
Conceals the fact that the mortgaged or pledged objects are co-owned, have
been
leased out, have been sealed up, or have been in custody, etc.;
13.2.3
The Mortgagor, without the written consent from Party A, assigns, rents,
remortgages, or otherwise disposes of the mortgaged objects;
13.2.4
A
considerable appreciation in value of the mortgaged objects as a result of
failure of the Mortgagor to take appropriate custody of, maintenance and repair
on the mortgaged objects; or reduction in value of mortgaged objects as a result
of act of the Mortgagor threatening the mortgaged objects; or the Mortgagor
fails to procure insurance for the mortgaged objects as required by the Party
A
within the agreed upon mortgage term;
13.4
Upon
any breaching events set out in 13.1, 13.2, as well as 13.3 hereinabove, Party
A
is entitled to elect to take any or several in combination of the following
steps to which Party B shall refrain from making any objection:
13.4.1
Cease to provide any part of loan unused by Party B;
13.4.2
Reclaim the principal of the loan together with accrued interest, to the extent
made available to Party B, as well as related expenses, ahead of schedule;
13.4.3
Directly withhold any amount out of the settlement account or other accounts
of
Party B, to repay the debts hereunder;
13.4.4
Exercise the recourse rights pursuant to this Contract.
ARTICLE
14 MODIFICATION AND TERMINATION OF CONTRACT
This
Contract may be modified or terminated upon agreement between both Parties
in
writing. Prior to concluding of such written agreement, this Contract shall
remain in full force and effect. Neither party hereto may modify, revise or
terminate this Contract without consent and agreement of the other party.
ARTICLE
15 MISCELLANEOUS
15.1
During the whole life of this Contract, no tolerance, grace period, or
suspension to enforce any of the rights and interests or powers of Party A
hereunder, as may be granted by Party A to Party B in respect of any breach
or
delay on the part of Party B may impair, affect, or limit any rights and
interests, or powers of Party A as the creditor in accordance with this Contract
and related laws and regulations, nor shall be construed as the permission
or
recognition by Party A of any breach on the part of Party B, or as the waiver
by
Party A of any right to take appropriate actions against any present or future
breach of Party B.
240
15.2
Party B shall perform any and all repayment obligations in disregard of the
fact
that this Contract, in whole or part, is determined null and void at law for
whatsoever reasons, in such a case, Party A is entitled to terminate this
Contract and promptly reclaim against Party B the principal of and accrued
interest on the loan hereunder, as well as other related amounts.
15.3
Any
notice and request to be made by either party hereunder shall be in writing.
The
telegraph and/or telex shall be deemed effectively given upon sending by Party
A, and the communication shall be deemed effectively given upon being delivered
to appropriate post office by Party A.
15.4
The
loan receipt as well as any written supplemental agreement between both Parties
on any issue not defined herein or on revision of this Contract shall be
attached as appendices to this Contract and constitute integral parts hereof.
ARTICLE
16 GOVERNING LAW AND DISPUTE RESOLUTION
16.1
The
formation, interpretation, as well as dispute resolution in respect of this
Contract shall be governed by the laws of the People’s Republic of China, the
rights and interests of both parties hereto shall be under protection of the
same.
16.2
Any
dispute arising out of or in connection with the performance of this Contract
shall be settled by friendly negotiation between both Parties, in case of no
successful settlement therefrom, either party may elect to: 16.1
(optional, either 16.2.1 or 16.2.2)
16.2.1
Lodge an action with the people’s court at the place where Party A resides; or
16.2.2
Submit to _____________ Arbitration Committee for determination in accordance
with rules and procedures then currently in force.
16.3
Once
appropriate public notarization is completed which gives rise to the
enforceability of this Contract, Party A may directly apply to any People’s
Court having appropriate jurisdiction thereover to enforce this Contract for
purpose of recovering any due and payable debts hereunder.
241
ARTICLE
17 EFFECTIVENESS
17.1
This
Contract shall enter into and remain in force conditional upon the signature,
common seal by duly authorized representatives of both parties, as well as
upon
completion of the formalities for security or guaranty as set forth in ARTICLE
6
hereof, until any and all principal of and the accrued interest on the loan,
as
well as any other costs in respect thereof are paid up.
17.2
This
Contract is made in four copies being equally authentic. Party A holds two
(2)
copies thereof, each of Party B and _____ holds one (1) copies thereof.
[Below
is intentionally left blank]
|
Party
A(Common Seal):
|
Party
B(Common Seal):
|
|
Duly
Authorized Signatory:
|
Duly
Authorized Signatory:
|
|
Date:
29th
Sept.2005
|
Date:
29th
Sept.2005
|
242
IRREVOCABLE
GUARANTY LETTER
(Prepared
in Dec. 2001)
In
Favor
of China Merchants Bank Tianjin Branch
WHEREAS,
your
bank
has entered into a Loan Contract with the no. [2005] daizhidi 55033 with Tianjin
Daqiuzhuang Metal Sheet Co., Ltd. (hereinafter “the Borrower”) on 29th
Sept.
2005 whereby a loan in the sum of RMB
Fifteen Million Yuan Only
is
extended for a term of
twelve months.
NOW
THEREFORE,
we, the
undersigned and surety for the Borrower, hereby agree to issue this Guaranty
Letter with joint and several liabilities for all the debts owed by the Borrower
to your bank, subject to the terms and conditions set forth
hereinafter.
ARTICLE
1
The
scope of the suretyship offered by us hereunder covers any all debts created
under the Loan Contract, including the principal of the loan in the amount
of
RMB
Fifteen Million Yuan
offered
by your bank to the Borrower in accordance with the Loan Contract, together
with
appropriate accrued interest, penalty interest, fine for breach, as well as
any
and all other costs and expenses in respect thereof.
ARTICLE
2
We, the
undersigned and the surety for the Borrower, hereby acknowledge to be jointly
and severally liable, whether economically or legally, for any debts owed by
the
Borrowers, provided such debts shall be within the surety scope as set out
in
ARTICLE 2 hereinabove. Your bank is entitled to directly make recourse against
us without having to first make recourse or institute actions against the
Borrower in case the Borrower fails to repay or pay in a timely manner and
in
accordance with the Loan Contract and/or any other particular contract, if
any,
the principal of the loan and/or any amount paid by your bank for the Borrower,
or any related expenses, or in the case of any breaching event as may be set
out
in the Loan Contract and/or any other particular contract, if any. In disregard
to any mortgage or pledge established additionally to ensure the timely
satisfaction or repayment of any debt owed by the Borrower to your bank under
the Loan Contract, your bank is also entitled to directly make recourse against
us for all the amounts of debts, without having to first enforcement of such
mortgaged or pledged objects.
243
We
agree
to be absolutely subject to any Claim Notice to be issued by you which is final.
We further agree to repay and satisfy any and all debts owed by the Borrower
under the Loan Contract in full within five days upon receipt of such Claim
Notice for which your bank is not obliged to provide any proof or
documents.
ARTICLE
3
This
Guaranty Letter is independent, continuously effective, irrevocable and
unconditional, in no event shall be affected by the Loan Contract and/or any
particular contract, nor shall be affected by any agreement or document
concluded between the Borrower and any unit. This Guaranty Letter shall remain
unchanged in the event of any fraudulent act, reorganization, cease to carry
out
business, dissolution, liquidation, bankruptcy, etc. on the part of the Borrower
for whatsoever reasons. The liability to be taken by us as the surety hereunder
may not be released or exempted by reason of any order received, change in
our
financial standing, or any agreement entered into with any unit or individual.
The
liability to be taken by us as the surety hereunder may not be affected by
virtue of cease to provide any unused part of loan and/or recovery of the
extended loan in advance, by your bank in accordance with ARTICLE 13 of the
Loan
Contract.
ARTICLE
4
We, the
undersigned and surety for the Borrower, hereby acknowledge and undertakes
to be
bound by and subject to any extension agreement or other supplemental agreements
in respect of the term and interest rate, etc. of the Loan Contract between
your
bank and the Borrower in the course of performance of the same, without
requiring future notice from your bank.
ARTICLE
5
The
suretyship duration hereunder shall be as from the expiry date of each loan
as
may be extended under the Loan Contract or as from the same date of the second
year following the expiry date of the Loan Contract.
ARTICLE
6 WE, THE UNDERSIGNED AND SURETY FOR THE BORROWER, XXXXXX REPRESENTS AND
WARRANTS WITH YOUR BANK:
244
6.1
That
we, a legal person enterprise which is duly registered with appropriate
authority for industry and commerce (registration no.: ______ ) upon approval
by
_________, and which is eligible for standing surety for others, or a
not-for-profit institution with legal person status which is eligible for
standing surety for others, agree to provide guarantee with the assets legally
owned by us or to which we are entitled to disposal right, and undertake to
perform any of the obligations prescribed herein;
6.2
That
issuance of this Guaranty Letter is the true representation of us under no
misrepresentation or duress;
6.3
That
we are fully authorized or approved by superior authority/the Board of Directors
as necessitated by issuance of this Guaranty Letter;
6.4
That
any and all financial statements as well as any other documents to be submitted
by us to your bank are true, legally permitted for which the our legal
representative or any other person in charge shall be held liable;
6.5
That
we shall issue a guaranty confirmation upon request of your bank;
6.6
That
we, the undersigned and surety for the Borrower, agree to be held for the total
guaranty liability (including equivalent in foreign currency) not more than
the
whole sum of our proprietary rights and interests;
6.7
That
we shall notify your bank of any change in the registration particulars with
authority for industry and commerce, organization structure, operation mode
or
financial standing in respect of our company, which change may result in a
change in our capacity to perform this guaranty letter, without delay;
6.8
That
your bank is hereby authorized to withhold or deduct any such amount therefore
out of any deposit account of us, until and unless any and all debts, as well
as
any other expenses, as long as owed by the Borrower under the Loan Contract,
and
we shall be absolutely subject to the aforesaid continuing obligation;
6.9
That
any assign or successor of us shall be bound by all the provisions contained
herein. No assignment of any of our obligations hereunder may be made by us
in
the absence of the written consent from your bank;
ARTICLE
7 This
Guaranty Letter is governed by the laws of the People’s Republic of China, we
hereby confirm that any dispute arising out of or in connection with the
performance hereof shall be settled by such means applicable to dispute
resolution, as set out in the Loan Contract.
245
Once
appropriate public notarization is completed which gives rise to the
enforceability of the Loan Contract and this Guaranty Letter, we hereby agree
that any creditor receiving no repayment is entitled to directly apply to any
People’s Court having appropriate jurisdiction thereover to enforce the Loan
Contract and/or this Guaranty Letter, for purpose of recovering any due and
payable debts hereunder.
ARTICLE
8 This
Guaranty Letter is made in three (3) copies, each of the Lender, the Borrower
as
well as the surety shall hold one copy thereof.
This
Guaranty Letter shall enter into force upon signature and common seal by the
surety hereunder.
|
The
Surety (Common Seal):
|
Duly
Authorized Signatory (Signature):
|
|
Xxxxx
Xxxxxx
|
|
|
Address:
Daqiuzhuang Town, Jinghai County, Tianjin
|
Tel:
|
|
Major
Deposit Bank & A/c No.:
|
Date:
29th
Sept. 2005
|
246
For
Letter of Guarantee
NO.:
2005
daizi No.: 55026
To:
Tianjin branch Merchant Bank
We,
the
enterprise authorized by
with
legal person qualification and business license, would like to provide guarantee
to Renminbi
(currency) 15,000,000
Yuan
under
2005
daizi No.: 55033
loan
contract/ credit extension contract signed on Sept.29,
2005
by
Xxxxxxx
Xxxxxxxxxxx Metal Sheet Co., Ltd.
(Borrower) and your bank. Whereas, we confirmed that the Irrevocable Letter
of
Guarantee issued on Sept.29,
2005 to
your
bank is truthful, and we would take all responsibilities to the articles under
the letter of guarantee.
Guarantor
(common seal):
Present
guarantee.
Authorized
representative:
Sept.29,
2005
247
IRREVOCABLE
GUARANTY LETTER
(Prepared
in Dec. 2001)
In
Favor
of China Merchants Bank Tianjin Branch
WHEREAS,
your
bank
has entered into a Loan Contract with the no. [2005] daizhidi 55033 with Tianjin
Daqiuzhuang Metal Sheet Co., Ltd. (hereinafter “the Borrower”) on 29th
Sept.
2005 whereby a loan in the sum of RMB
Fifteen Million Yuan only
is
extended for a term of
twelve months.
NOW
THEREFORE,
we, the
undersigned and surety for the Borrower, hereby agree to issue this Guaranty
Letter with joint and several liabilities for all the debts owed by the Borrower
to your bank, subject to the terms and conditions set forth
hereinafter.
ARTICLE
1
The
scope of the suretyship offered by us hereunder covers any all debts created
under the Loan Contract, including the principal of the loan in the amount
of
RMB
Fifteen Million Yuan
offered
by your bank to the Borrower in accordance with the Loan Contract, together
with
appropriate accrued interest, penalty interest, fine for breach, as well as
any
and all other costs and expenses in respect thereof.
ARTICLE
2
We, the
undersigned and the surety for the Borrower, hereby acknowledge to be jointly
and severally liable, whether economically or legally, for any debts owed by
the
Borrowers, provided such debts shall be within the surety scope as set out
in
ARTICLE 2 hereinabove. Your bank is entitled to directly make recourse against
us without having to first make recourse or institute actions against the
Borrower in case the Borrower fails to repay or pay in a timely manner and
in
accordance with the Loan Contract and/or any other particular contract, if
any,
the principal of the loan and/or any amount paid by your bank for the Borrower,
or any related expenses, or in the case of any breaching event as may be set
out
in the Loan Contract and/or any other particular contract, if any. In disregard
to any mortgage or pledge established additionally to ensure the timely
satisfaction or repayment of any debt owed by the Borrower to your bank under
the Loan Contract, your bank is also entitled to directly make recourse against
us for all the amounts of debts, without having to first enforcement of such
mortgaged or pledged objects.
248
We
agree
to be absolutely subject to any Claim Notice to be issued by you which is final.
We further agree to repay and satisfy any and all debts owed by the Borrower
under the Loan Contract in full within five days upon receipt of such Claim
Notice for which your bank is not obliged to provide any proof or
documents.
ARTICLE
3
This
Guaranty Letter is independent, continuously effective, irrevocable and
unconditional, in no event shall be affected by the Loan Contract and/or any
particular contract, nor shall be affected by any agreement or document
concluded between the Borrower and any unit. This Guaranty Letter shall remain
unchanged in the event of any fraudulent act, reorganization, cease to carry
out
business, dissolution, liquidation, bankruptcy, etc. on the part of the Borrower
for whatsoever reasons. The liability to be taken by us as the surety hereunder
may not be released or exempted by reason of any order received, change in
our
financial standing, or any agreement entered into with any unit or individual.
The
liability to be taken by us as the surety hereunder may not be affected by
virtue of cease to provide any unused part of loan and/or recovery of the
extended loan in advance, by your bank in accordance with ARTICLE 13 of the Loan
Contract.
ARTICLE
4
We, the
undersigned and surety for the Borrower, hereby acknowledge and undertakes
to be
bound by and subject to any extension agreement or other supplemental agreements
in respect of the term and interest rate, etc. of the Loan Contract between
your
bank and the Borrower in the course of performance of the same, without
requiring future notice from your bank.
ARTICLE
5
The
suretyship duration hereunder shall be as from the expiry date of each loan
as
may be extended under the Loan Contract or as from the same date of the second
year following the expiry date of the Loan Contract.
ARTICLE
6 WE, THE UNDERSIGNED AND SURETY FOR THE BORROWER, XXXXXX REPRESENTS AND
WARRANTS WITH YOUR BANK:
249
6.1
That
we, a legal person enterprise which is duly registered with appropriate
authority for industry and commerce (registration no.: ______ ) upon approval
by
_________, and which is eligible for standing surety for others, or a
not-for-profit institution with legal person status which is eligible for
standing surety for others, agree to provide guarantee with the assets legally
owned by us or to which we are entitled to disposal right, and undertake to
perform any of the obligations prescribed herein;
6.2
That
issuance of this Guaranty Letter is the true representation of us under no
misrepresentation or duress;
6.3
That
we are fully authorized or approved by superior authority/the Board of Directors
as necessitated by issuance of this Guaranty Letter;
6.4
That
any and all financial statements as well as any other documents to be submitted
by us to your bank are true, legally permitted for which the our legal
representative or any other person in charge shall be held liable;
6.5
That
we shall issue a guaranty confirmation upon request of your bank;
6.6
That
we, the undersigned and surety for the Borrower, agree to be held for the total
guaranty liability (including equivalent in foreign currency) not more than
the
whole sum of our proprietary rights and interests;
6.7
That
we shall notify your bank of any change in the registration particulars with
authority for industry and commerce, organization structure, operation mode
or
financial standing in respect of our company, which change may result in a
change in our capacity to perform this guaranty letter, without delay;
6.8
That
your bank is hereby authorized to withhold or deduct any such amount therefore
out of any deposit account of us, until and unless any and all debts, as well
as
any other expenses, as long as owed by the Borrower under the Loan Contract,
and
we shall be absolutely subject to the aforesaid continuing obligation;
6.9
That
any assign or successor of us shall be bound by all the provisions contained
herein. No assignment of any of our obligations hereunder may be made by us
in
the absence of the written consent from your bank;
250
ARTICLE
7 This
Guaranty Letter is governed by the laws of the People’s Republic of China, we
hereby confirm that any dispute arising out of or in connection with the
performance hereof shall be settled by such means applicable to dispute
resolution, as set out in the Loan Contract.
Once
appropriate public notarization is completed which gives rise to the
enforceability of the Loan Contract and this Guaranty Letter, we hereby agree
that any creditor receiving no repayment is entitled to directly apply to any
People’s Court having appropriate jurisdiction thereover to enforce the Loan
Contract and/or this Guaranty Letter, for purpose of recovering any due and
payable debts hereunder.
ARTICLE
8 This
Guaranty Letter is made in three (3) copies, each of the Lender, the Borrower
as
well as the surety shall hold one copy thereof.
This
Guaranty Letter shall enter into force upon signature and common seal by the
surety hereunder.
|
The
Surety (Common Seal):
|
Duly
Authorized Signatory (Signature):
|
|
Tianjin
Sheng Da Steel Mill Co.,Ltd.
|
Xx
Xxxxxxxx
|
|
Address:
Daqiuzhuang Town, Jinghai County, Tianjin
|
Tel:
|
|
Major
Deposit Bank & A/c No.:
|
Date:
29th
Sept. 2005
|
251
For
Letter of Guarantee
NO.:
2005
daizi No.: 55033
To:
Tianjin branch Merchant Bank
We,
the
enterprise authorized by
with
legal person qualification and business license, would like to provide guarantee
to Renminbi
(currency) 15,000,000
Yuan
under
2005
daizi No.: 55033
loan
contract/ credit extension contract signed on Sept.
29,
2005
by
Xxxxxxx
Xxxxxxxxxxx Metal Sheet Co., Ltd.
(Borrower) and your bank. Whereas, we confirmed that the Irrevocable Letter
of
Guarantee issued on Sept.
29,
2005 to
your
bank is truthful, and we would take all responsibilities to the articles under
the letter of guarantee.
Guarantor
(common seal): Tianjin Sheng Da Steel Mill Co.,Ltd.
Present
guarantee.
Authorized
representative: Xx Xxxxxxxx
Sept.
29,
2005
252
ACCEPTANCE
CONTRACT FOR BANK ACCEPTANCE BILL
AGRICULTURAL
BANK OF CHINA
253
ACCEPTANCE
CONTRACT FOR BANK ACCEPTANCE BILL
No.:
[Jinjinghai] nongyinchengzhi ( )no.
Applicant
(Full name): Xxxxxxx Xxxxxxxxxxx Metal Sheet Co., Ltd.
Acceptor
(Full name): Agricultural Bank of China Tianjin Branch Jinghai
Sub-branch
THIS
ACCEPTANCE CONTRACT FOR BANK ACCEPTANCE BILL
(hereinafter “this Contract”) is entered into by and between the Applicant and
the Acceptor, through mutual friendly negotiation in accordance with relevant
regulations and rules of the People’s Bank of China, subject to the terms and
conditions set forth hereinafter.
ARRTICLE
1
The
Acceptor xxxxxx agrees to accept and honor the acceptance bills with the
following particulars (See the Acceptance List of Bank Acceptance Bill in the
case of more than one acceptance transactions):
|
Full
name of the
Drawer: Xxxxxxx Xxxxxxxxxxx Metal Sheet Co., Ltd.
|
Full
name of the payee: Xxxxxxx Xxxxxxxx Trade Co., Ltd.
|
|
A/c
no.: 071201040006858
|
A/c
no.:2213001000264625
|
|
Paying
bank: Agricultural
Bank of China Daqiuzhuang Sub-branch
|
Deposit
bank: China Construction Bank Jinghai Sub-branch
|
|
Swift
code: 39724
|
Swift
code:___________________________________
|
|
Bill
no.: 00351843
|
Bill
amount(amount in words): Four Million Yuan only
|
|
Issuance
date:2nd
Dec. 2005
|
Maturity
date: 2nd
June 2006
|
ARTICLE
2 The
Applicant shall, before the scheduled maturity date of any bill and upon no
conditions, deposit the sufficient amount to the Acceptor for payment of such
payable bill amount (hereinafter “Xxxx Xxxxxx”). Upon the maturity date of any
bank bill, the Acceptor is entitled to withhold or deduct the Bill Amount out
of
any bank account of the Applicant.
ARTICLE
3 Appropriate
processing fee at the rate of 0.5%
of the
face value of any bill shall be for the account of the Applicant in a lump
sum
at the time the Acceptor agrees to accept such bill.
254
ARTICLE
4 The
Applicant shall, at the acceptance date, deposit a security deposit in the
sum
of RMB
50% of
the
acceptance amount in an account named by the Acceptor, which security deposit
may not be appropriated before clear settlement of Xxxx Xxxxxx. The Acceptor
is
entitled to apply the security deposit to pay any deficiency in paying the
Bill
Amount in case the Applicant fails to supply sufficient money for such bill.
ARTICLE
5 THE APPLICANT HEREBY UNDERTAKES THAT:
5.1
the
bank acceptance bill is made based on the true and legal commodity transaction
between the Drawer and the payee.
5.2
no
dispute between the Drawer and the xxxx xxxxxx may constitute the defense in
failure to discharge the debts hereunder, and the Xxxx Xxxxxx will be deposited
to the Acceptor prior to the scheduled maturity date thereof.
5.3
it
shall, upon request of the Acceptor, provide true balance sheet, profit and
loss
statement, cash flow sheet, all accounts numbers, account balances,
etc.
5.4
it
shall repay and pay to the Acceptor the amount together with accrued interest
thereon as a result of payment of the Bill Amount by the Acceptor for the
Drawer.
5.5
it
shall notify the Acceptor of any change of legal representative, increase or
decrease in the registered capital, change of business premises, change in
operation and management mode or shareholding structure, during the whole life
of this Agreement.
5.6
it
shall be held liable for any other obligations as may be prescribed by related
laws and regulations.
ARTICLE
6 RIGHTS AND OBLIGATIONS OF ACCEPTOR
6.1
The
Acceptor is obliged to unconditionally pay the Bill Amount to appropriate xxxx
xxxxxx prior to the maturity date of the bill, upon presentation whether
sufficient amount for such Xxxx Xxxxxx is made available by the Applicant,
except as dishonor is allowed by related laws and regulations.
6.2
The
Acceptor is entitled to charge a interest at the rate of 0.5%
of the
money paid by the Acceptor for the Applicant, and to withhold or deduct directly
such amount together with accrued interest out of any deposit account opened
by
the Applicant with the Acceptor.
255
6.3
The
Acceptor shall have the right to require the Applicant to deposit the Bill
Amount in advance or to take other appropriate actions, in the event of any
swindling and other material changes that may impair the interest of the
Acceptor, or in the event of breach by the Applicant of any of the warranties
set out in ARTICLE 5 hereof.
ARTICLE
7
The bank
acceptance xxxx xxxxxxxxx is secured or guaranteed by
a mortgage
for
which a mortgage contract is to be entered into.
ARTICLE
8
This Contract shall enter into force upon signature or seal by both parties
hereto.
ARTICLE
9
Any
dispute arising out of or in connection with the performance of this Contract
shall be settled by friendly negotiation between both parties; and shall be
subject to the jurisdiction of the court at the place where the Acceptor resides
in the case of resorting to action for purpose of settlement of any such
dispute.
ARTICLE
10 MISCELLANEOUS
ARTICLE
11
This
Contract is made in duplicate, being equally authentic, and each party,
including the guarantor, if appropriate, holds one copy thereof.
ARTICLE
12 REMINDER
The
Acceptor has reminded the Applicant to have a compete and accurate understanding
of the provisions contained herein, and upon request of the Applicant, make
appropriate explanation of related provisions. The parties hereto acknowledge
that their respective understanding regarding the implication of provisions
hereof coincides with each.
256
|
The
Applicant (Seal):
|
The
Acceptor (Seal):
|
|
Legal
representative or
|
Legal
representative or
|
|
Xxxx
authorized representative
|
Xxxx
authorized representative
|
|
Dated:
DD MM YY
|
|
|
Place:
Building of the
Acceptor
|
|
|
Jingwen
Road Jinghai County
|
257
ACCEPTANCE
CONTRACT FOR BANK ACCEPTANCE BILL
AGRICULTURAL
BANK OF CHINA
258
ACCEPTANCE
CONTRACT FOR BANK ACCEPTANCE BILL
No.:
[Jinjinghai] nongyinchengzhi ( )no.
Applicant
(Full name): Xxxxxxx Xxxxxxxxxxx Metal Sheet Co., Ltd.
Acceptor
(Full name): Agricultural Bank of China Tianjin Branch Jinghai
Sub-branch
THIS
ACCEPTANCE CONTRACT FOR BANK ACCEPTANCE BILL
(hereinafter “this Contract”) is entered into by and between the Applicant and
the Acceptor, through mutual friendly negotiation in accordance with relevant
regulations and rules of the People’s Bank of China, subject to the terms and
conditions set forth hereinafter.
ARRTICLE
1
The
Acceptor xxxxxx agrees to accept and honor the acceptance bills with the
following particulars (See the Acceptance List of Bank Acceptance Bill in the
case of more than one acceptance transactions):
|
Full
name of the
Drawer: Xxxxxxx Xxxxxxxxxxx Metal Sheet Co., Ltd.
|
Full name of the payee: Xxxxxxx Xxxxxxxx Trade Co., Ltd. |
|
A/c
no.: 071201040006858
|
A/c
no.:2213001000264625
|
|
Paying
bank: Agricultural
Bank of China Daqiuzhuang Sub-branch
|
Deposit
bank: China Construction Bank Jinghai Sub-branch
|
|
Swift
code: 39724
|
Swift
code:___________________________________
|
|
Bill
no.: 0031589
|
Bill
amount(amount in words): Three Million Yuan only
|
|
Issuance
date 25th
Oct. 2005
|
Maturity
date:25th
April 2006
|
Amount
of
security deposit(amount in words): One
Million and Five Hundred Thousand Yuan only
ARTICLE
2 The
Applicant shall, before the scheduled maturity date of any bill and upon no
conditions, deposit the sufficient amount to the Acceptor for payment of such
payable bill amount (hereinafter “Xxxx Xxxxxx”). Upon the maturity date of any
bank bill, the Acceptor is entitled to withhold or deduct the Bill Amount out
of
any bank account of the Applicant.
ARTICLE
3 Appropriate
processing fee at the rate of 0.5%
of the
face value of any bill shall be for the account of the Applicant in a lump
sum
at the time the Acceptor agrees to accept such bill.
259
ARTICLE
4 The
Applicant shall, at the acceptance date, deposit a security deposit in the
sum
of RMB
50% of
the
acceptance amount in an account named by the Acceptor, which security deposit
may not be appropriated before clear settlement of Xxxx Xxxxxx. The Acceptor
is
entitled to apply the security deposit to pay any deficiency in paying the
Bill
Amount in case the Applicant fails to supply sufficient money for such bill.
ARTICLE
5 THE APPLICANT HEREBY UNDERTAKES THAT:
5.1
the
bank acceptance bill is made based on the true and legal commodity transaction
between the Drawer and the payee.
5.2
no
dispute between the Drawer and the xxxx xxxxxx may constitute the defense in
failure to discharge the debts hereunder, and the Xxxx Xxxxxx will be deposited
to the Acceptor prior to the scheduled maturity date thereof.
5.3
it
shall, upon request of the Acceptor, provide true balance sheet, profit and
loss
statement, cash flow sheet, all accounts numbers, account balances,
etc.
5.4
it
shall repay and pay to the Acceptor the amount together with accrued interest
thereon as a result of payment of the Bill Amount by the Acceptor for the
Drawer.
5.5
it
shall notify the Acceptor of any change of legal representative, increase or
decrease in the registered capital, change of business premises, change in
operation and management mode or shareholding structure, during the whole life
of this Agreement.
5.6
it
shall be held liable for any other obligations as may be prescribed by related
laws and regulations.
ARTICLE
6 RIGHTS AND OBLIGATIONS OF ACCEPTOR
6.1
The
Acceptor is obliged to unconditionally pay the Bill Amount to appropriate xxxx
xxxxxx prior to the maturity date of the bill, upon presentation whether
sufficient amount for such Xxxx Xxxxxx is made available by the Applicant,
except as dishonor is allowed by related laws and regulations.
6.2
The
Acceptor is entitled to charge a interest at the rate of 0.5%
of the
money paid by the Acceptor for the Applicant, and to withhold or deduct directly
such amount together with accrued interest out of any deposit account opened
by
the Applicant with the Acceptor.
260
6.3
The
Acceptor shall have the right to require the Applicant to deposit the Bill
Amount in advance or to take other appropriate actions, in the event of any
swindling and other material changes that may impair the interest of the
Acceptor, or in the event of breach by the Applicant of any of the warranties
set out in ARTICLE 5 hereof.
ARTICLE
7
The bank
acceptance xxxx xxxxxxxxx is secured or guaranteed by
a mortgage
for
which a mortgage contract is to be entered into.
ARTICLE
8
This Contract shall enter into force upon signature or seal by both parties
hereto.
ARTICLE
9
Any
dispute arising out of or in connection with the performance of this Contract
shall be settled by friendly negotiation between both parties; and shall be
subject to the jurisdiction of the court at the place where the Acceptor resides
in the case of resorting to action for purpose of settlement of any such
dispute.
ARTICLE
10 MISCELLANEOUS
ARTICLE
11
This
Contract is made in duplicate, being equally authentic, and each party,
including the guarantor, if appropriate, holds one copy thereof.
ARTICLE
12 REMINDER
The
Acceptor has reminded the Applicant to have a compete and accurate understanding
of the provisions contained herein, and upon request of the Applicant, make
appropriate explanation of related provisions. The parties hereto acknowledge
that their respective understanding regarding the implication of provisions
hereof coincides with each.
261
|
The
Applicant (Seal):
|
The
Acceptor (Seal):
|
|
Legal
representative or
|
Legal
representative or
|
|
Xxxx
authorized representative
|
Xxxx
authorized representative
|
|
Dated:
DD MM YY
|
|
|
Place:
Agricultural Bank of China Tianjin Branch Jinghai
Sub-branch
|
262
ACCEPTANCE
CONTRACT FOR BANK ACCEPTANCE BILL
AGRICULTURAL
BANK OF CHINA
263
ACCEPTANCE
CONTRACT FOR BANK ACCEPTANCE BILL
No.:
[Jinjinghai] nongyinchengzhi (2005)no. 122012005000025
Applicant
(Full name): Xxxxxxx Xxxxxxxxxxx Metal Sheet Co., Ltd.
Acceptor
(Full name): Agricultural Bank of China Tianjin Branch Daqiuzhuang
Sub-branch
THIS
ACCEPTANCE CONTRACT FOR BANK ACCEPTANCE BILL
(hereinafter “this Contract”) is entered into by and between the Applicant and
the Acceptor, through mutual friendly negotiation in accordance with relevant
regulations and rules of the People’s Bank of China, subject to the terms and
conditions set forth hereinafter.
ARRTICLE
1
The
Acceptor xxxxxx agrees to accept and honor the acceptance bills with the
following particulars (See the Acceptance List of Bank Acceptance Bill in the
case of more than one acceptance transactions):
|
Full
name of the Drawer: Xxxxxxx Xxxxxxxxxxx Metal Sheet Co., Ltd.
|
Full
name of the payee: Xxxxxxx Xxxxxxxx Trade Co., Ltd.
|
|
A/c
no.: 071201040006858
|
A/c
no.:2213001000264625
|
|
Paying
bank: Agricultural Bank of China Daqiuzhuang Sub-branch
|
Deposit
bank: China Construction Bank Jinghai Sub-branch
|
|
Swift
code: 39724
|
Swift
code:___________________________________
|
|
Bill
no.:
|
Bill
amount(amount in words): Five
Million Yuan only
|
|
Issuance
date:
11th
July 2005
|
Maturity
date: 7th
Janu. 2006
|
Amount
of
security deposit(amount in words): Two
Million and Five Hundred Thousand Yuan only
ARTICLE
2 The
Applicant shall, before the scheduled maturity date of any bill and upon no
conditions, deposit the sufficient amount to the Acceptor for payment of such
payable bill amount (hereinafter “Xxxx Xxxxxx”). Upon the maturity date of any
bank bill, the Acceptor is entitled to withhold or deduct the Bill Amount out
of
any bank account of the Applicant.
ARTICLE
3 Appropriate
processing fee at the rate of 0.5%
of the
face value of any bill shall be for the account of the Applicant in a lump
sum
at the time the Acceptor agrees to accept such bill.
ARTICLE
4 The
Applicant shall, at the acceptance date, deposit a security deposit in the
sum
of RMB
50% of
the
acceptance amount in an account named by the Acceptor, which security deposit
may not be appropriated before clear settlement of Xxxx Xxxxxx. The Acceptor
is
entitled to apply the security deposit to pay any deficiency in paying the
Bill
Amount in case the Applicant fails to supply sufficient money for such bill.
264
ARTICLE
5 THE APPLICANT HEREBY UNDERTAKES THAT:
5.1
the
bank acceptance bill is made based on the true and legal commodity transaction
between the Drawer and the payee.
5.2
no
dispute between the Drawer and the xxxx xxxxxx may constitute the defense in
failure to discharge the debts hereunder, and the Xxxx Xxxxxx will be deposited
to the Acceptor prior to the scheduled maturity date thereof.
5.3
it
shall, upon request of the Acceptor, provide true balance sheet, profit and
loss
statement, cash flow sheet, all accounts numbers, account balances,
etc.
5.4
it
shall repay and pay to the Acceptor the amount together with accrued interest
thereon as a result of payment of the Bill Amount by the Acceptor for the
Drawer.
5.5
it
shall notify the Acceptor of any change of legal representative, increase or
decrease in the registered capital, change of business premises, change in
operation and management mode or shareholding structure, during the whole life
of this Agreement.
5.6
it
shall be held liable for any other obligations as may be prescribed by related
laws and regulations.
ARTICLE
6 RIGHTS AND OBLIGATIONS OF ACCEPTOR
6.1
The
Acceptor is obliged to unconditionally pay the Bill Amount to appropriate xxxx
xxxxxx prior to the maturity date of the bill, upon presentation whether
sufficient amount for such Xxxx Xxxxxx is made available by the Applicant,
except as dishonor is allowed by related laws and regulations.
6.2
The
Acceptor is entitled to charge a interest at the rate of 0.5%
of the
money paid by the Acceptor for the Applicant, and to withhold or deduct directly
such amount together with accrued interest out of any deposit account opened
by
the Applicant with the Acceptor.
6.3
The
Acceptor shall have the right to require the Applicant to deposit the Bill
Amount in advance or to take other appropriate actions, in the event of any
swindling and other material changes that may impair the interest of the
Acceptor, or in the event of breach by the Applicant of any of the warranties
set out in ARTICLE 5 hereof.
265
ARTICLE
7
The bank
acceptance xxxx xxxxxxxxx is secured or guaranteed by
a mortgage
for
which a mortgage contract is to be entered into.
ARTICLE
8
This Contract shall enter into force upon signature or seal by both parties
hereto.
ARTICLE
9
Any
dispute arising out of or in connection with the performance of this Contract
shall be settled by friendly negotiation between both parties; and shall be
subject to the jurisdiction of the court at the place where the Acceptor resides
in the case of resorting to action for purpose of settlement of any such
dispute.
ARTICLE
10 MISCELLANEOUS
ARTICLE
11
This
Contract is made in triplicate, being equally authentic, and each party,
including the guarantor, if appropriate, holds one copy thereof.
ARTICLE
12 REMINDER
The
Acceptor has reminded the Applicant to have a compete and accurate understanding
of the provisions contained herein, and upon request of the Applicant, make
appropriate explanation of related provisions. The parties hereto acknowledge
that their respective understanding regarding the implication of provisions
hereof coincides with each.
266
|
The
Applicant (Seal):
|
The
Acceptor (Seal):
|
|
Legal
representative or
|
Legal
representative or
|
|
Xxxx
authorized representative
|
Xxxx
authorized representative
|
|
Dated:
DD MM YY
|
|
|
Place:
Agricultural Bank of China Tianjin Branch Daqiuzhuang
Sub-branch
|
267
Guarantee
Contract
Agricultural
Bank of China
268
Guarantee
Contract
No.
(JJH)NYBZ(2005) 12901200500005008
Creditor
(full name): Agricultural Bank of China Tianjin Jinghai Sub-Branch
Guarantor
(full name): 1) Tianjin
Sheng Da Steel Mill Co.,Ltd.
2)
________________________________
3)_________________________________
The
Guarantor is willing to guarantee the debt between Tianjin
Daqiuzhuang Metal Sheet Co., Ltd. (hereinafter
referred to as the Debtor) and the Creditor under the Acceptance
Contract for Banker’s Acceptance Bill
(hereinafter referred to as the Master Contract), No. JJHNYJZ
(0000) 00000000000000000,
to
ensure that the Master Contract by and between the Debtor and the Creditor
can
be fulfilled in deed. The Contract is entered into through negotiation in
accordance with pertinent laws and regulations of the State.
Article
1
Kind of Primary Creditor’s Rights Guaranteed and Sum of the
Principal
The
primary creditor’s right guaranteed is of banker’s
acceptance bill,
covering five
million yuan
of the
principal.
Article
2
Scope of Guarantee
The
scope
of guarantee includes the principal, interests, penalty interests, compound
interests, penalty and damages of the debt under the Master Contract, and
litigation cost, attorney fee, guaranty disposal fee, transfer fee and other
costs incurred by the Creditor for realization of its creditor’s right.
Article
3
Mode of Guarantee
The
guarantee mode hereunder shall be of joint and several liability. In case of
several guarantors hereunder, each guarantor shall assume the joint and several
liability to the Creditor.
Article
4
Term of Guarantee
4-1
The
guarantee term of the Guarantor shall be two years as of the date when the
period of debt performance of the Debtor expires according to the stipulations
of the Master Contract.
4-2
The
guarantee term under the Banker’s Acceptance Bill, L/C Issuance Finance and
guarantee letter shall be two years as of the date when the Creditor pays the
sum in advance.
4-3
The
guarantee term under commercial draft discount shall be two years as of the
maturity date of the discount note.
4-4
Where
the Creditor and the Debtor negotiate an extension agreement concerning the
term
of debt performance under the Master Contract, the Guarantor shall continue
to
assume the guarantee liability. The guarantee term shall be two years as of
the
date when the period of debt performance agreed in the extension agreement
expires.
269
4-5
Where
the Creditor declares that the debt under the Master Contract is mature in
advance due to occurrence circumstances stipulated in laws, regulations or
the
Master Contract, the guarantee term shall be two years as of the prior maturity
date of the debt under the Master Contract, which is determined by the Creditor.
Article
5
Guarantor’s Undertakings
5-1
The
Guarantor shall provide true, complete and effective financial statements and
other relevant materials and information.
5-2
The
Guarantor will be willing to fulfill its liability of guarantee if the Debtor
fails to discharge the debt according to the Master Contract.
5-3
The
Creditor shall have the right to deduct corresponding sum from any account
of
the Guarantor if the Guarantor fails to fulfill its guarantee liability
according to the Contract.
5-4
In
case of any of the following circumstances, the Guarantor shall within 5 days
thereafter notify the Creditor in writing:
1)
the
Guarantor changes administrative relationship or senior management, amends
its
articles of association and adjusts its organization structure;
2)
the
Guarantor stops production, closes business, cancels registration or is revoked
business license;
3)
the
Guarantor’s finance deteriorates, or production and operation are in severe
difficulty or the Guarantor is involved in significant litigation or
arbitration;
4)
the
Guarantor changes name, domicile, legal representative, contact method and
so
on; or
5)
the
Guarantor has other circumstances which will not help the Creditor realize
its
creditor’s right.
5-5
The
Guarantor shall notify the Creditor in writing 15 days in advance and obtain
written consent of the Creditor if the Guarantor intends to conduct the
following behaviors:
1)
the
Guarantor changes capital structure or operation system, including, but not
limited to, contract, lease, joint stock reconstruction, joint management,
merger, acquirement, division, joint venture, asset transfer and application
for
business stoppage and rectification, dissolution or bankruptcy;
2)
the
Guarantor provides guarantee to the debt of a third person or mortgage, pawn
or
guarantee its main assets for debt of it or a third person, which may affect
it
performance of the guarantee liability hereunder.
5-6
Where
the Debtor guarantees with substantial objects, the Guarantor will perform
the
guarantee liability as to all debts guaranteed, prior to guarantee of
substantial objects.
Article
6
Liability for Breach of Agreement
After
effectiveness of the Contract, both the Creditor and the Guarantor shall perform
their obligations hereunder. Either party that fails to do so shall be liable
for corresponding liabilities for breach of agreement and compensating the
other
for losses therefrom.
270
Article
7
Settlement of Disputes
Any
dispute arising from performance of the Contract may be settled through
negotiation, or by the following first
means:
|
13)
|
litigation.
The dispute shall be governed by the People’s Court at the place where the
Creditor is located;
|
|
14)
|
arbitration.
The dispute shall be submitted to ____________________ (full name
of the
arbitration institution) for arbitration according to its rules.
|
The
Contract shall be performed continually during the period of litigation or
arbitration, except for those in dispute.
Article
8
Miscellaneous
8-1
The
Guarantor has received and read the Master Contract guaranteed.
Article
9
Effectiveness
The
Contract shall be in force after signed or sealed by the Parties hereto.
Article
10 The Contract shall be in three copies with equal force, one of which shall
be
kept by either party hereto, one by Xxxxxxx
Xxxxxxxxxxx Metal Sheet Co., Ltd.
Article
11 Notice
The
Creditor has reminded the Guarantor to understand comprehensively and exactly
the terms and conditions of the Contract and explained for corresponding terms
and conditions hereof at the requirements of the Guarantor. The Parties to
the
Contract have consistent understanding of the meanings of the Contract.
The
Creditor (signature and seal): Agricultural
Bank of China Tianjin Jinghai Sub-Branch
Principal
or agent: Xxx
Xxxxxxx
The
Guarantor (signature and seal):
Tianjin
Sheng Da Steel Mill Co.,Ltd.
Legal
representative or agent: Xx
Xxxxxxxx
271
The
Guarantor (signature and seal):
Legal
representative or agent:
The
Guarantor (signature and seal):
Legal
representative or agent:
Date
of
conclusion: July 11, 2005
Place
of
conclusion: Agricultural Bank of China Tianjin Daqiuzhuang
Sub-Branch
272
COMMERCIAL
BILL ACCEPTANCE AGREEMENT
No.:
Jinzhongyinjingxinzhi [2005] 003-3
|
Full
name of the
Applicant:
Tianjin Daqiuzhuang Metal Sheet Co., Ltd..
|
Full
name of the payee: Xxxxxxx
Xxxxxxxx Trade Co., Ltd.
|
|
Deposit
bank:
Bank of China Tianjin Branch Jinghai Sub-branch
|
Deposit
bank: China
Construction Bank of China Jinghai Branch
|
|
A/c
no.:
07546008093001
|
A/c
no.:2213001000264625
|
|
Bill
no.: 00351843
|
Bill
amount(amount in words): Four
Million Yuan only
|
|
Issuance
date:
17th
Nov, 2005
|
Maturity
date:15th
May
2006
|
|
Legal
representative:
Xx
Xxxxxxxx
|
Tel:
00000000
|
|
Address:
Daqiuzhuang Town Jinghai Country Tianjin
|
|
|
Paying
bank: Bank
of China Tianjin Branch Jinghai Sub-branch
|
Tel:00000000
|
|
Legal
representative(or authorized agent):
Xxxx Xxxxxx
|
|
|
Address:
Xx.
00 Xxxxxxx Xxxx Xxxxxxx Xxxx Xxxxxxx Xxxxxx, Xxxxxxx
|
|
|
Deposit
bank: China
Construction Bank Jinghai Sub-branch
|
THIS
COMMERCIAL BILL ACCEPTANCE AGREEMENT
(hereinafter “this Contract”) is made and entered into by and between the
Applicant and the Accepting
Bank,
through mutual friendly negotiation on issues in respect of acceptance of
acceptance bills (hereinafter “Bills”) upon application of the acceptance
applicant, subject to the terms and conditions set out hereinafter.
ARTICLE
1
The Applicant has, based on the transaction contract, no.
20051021,
issue
one
bill
in
the sum of (amount in words) RMB
Four Million Yuan only or (amount in figure) RMB 4,000,000.00
Yuan.
ARTICLE
2
The acceptance applicant (hereinafter “the Applicant”) agrees to comply with the
relevant provisions set out in the Law of the People’s Republic of China on
Negotiable Instruments, the Procedures for Payment and Settlement, as well
as
the terms set forth below:
273
2.1
The
Applicant deposits a security deposit in the sum of 50% of the face value of
the
Bill at the Accepting Bank, which security deposit account shall be managed
in a
special manner;
2.2
The
Applicant has deposited the bill amount to the Accepting Bank prior to the
maturity date thereof;
2.3
The
Applicant shall pay a processing fee at the rate of 0.5% of the face value
of
the Bill in the lump sum at the acceptance;
2.4
Any
dispute that may arise out of or in connection with this Contract shall be
settled by related parties in question, in no event shall such dispute affect
the rights and obligations of either party hereto, the Applicant shall deposit
the bill amount in full and a timely manner, to the Accepting Bank as required
by 2.2 hereinabove;
2.5
In
case the Applicant fails to supply sufficient amount for the bill amount at
the
maturity date of such bill, the Accepting Bank shall deal with the deficiency
between the bill amount and the money actually provided by the Applicant as
the
overdue loan on which a penalty interest may be charged;
2.6
The
Applicant shall, as required by the Accepting Bank, open appropriate settlement
account in national or foreign currency with the Accepting Bank for purpose
of
conducting business transaction. In case the Applicant fails to supply
sufficient amount for any bill amount at the maturity date, the Accepting Bank
may, in its sole discretion and opinion, withhold or deduct out of any account
of the Applicant, any amount for appropriate deficiency of amount together
with
accrued interest and commission;
2.7
The
Applicant shall be held liable for any and all losses incurred by the Accepting
Bank as a result of failure by the Applicant to perform any of its obligations
under this Contract or the Commitment. Any and all costs and expenses incurred
in respect of performance of this Contract shall be charged to the account
of
the Applicant by related parties.
ARTICLE
3
ACCEPTANCE GUARANTY
The
acceptance amount under this Agreement, including accrued interest thereon,
commission as well as any other open parts, is secured
and guaranteed by the land and properties legally owned by the
Applicant,
In case
the Applicant fails to deposit sufficient money to the Accepting Bank prior
to
the maturity date or falls in breach of other covenants, the Applicant shall
assume appropriate security or guaranty obligations as agreed herein, and the
Accepting Bank is entitled to withhold or deduct any amount out of the surety’s
account or other funds of the Applicant for making payment of such bill, or
to
dispose of the property in case such property is provided as a guaranty
therefore.
274
ARTICLE
4 REPRESENTATIONS AND WARRANTIES OF APPLICANT
4.1
The
Applicant hereby represents that:
4.1.2
it
is a legal person enterprise duly established under the laws of the People’s
Republic of China, with necessary powers and rights to carry out related
business operation, and has legally permitted right to dispose of the assets
under the management of the same;
4.1.2
it
has been fully and legally authorized to execute, deliver and perform this
Agreement;
4.1.3
it
undertakes that all the materials to be provided to the Accepting Bank are
accurate, truthful, complete and valid.
4.2
The
Applicant hereby warrants and undertakes that:
4.2.1
it
is in compliance with the relevant provisions set out in the Law
of the People’s Republic of China on Negotiable Instruments,
the
Procedures
for Payment and Settlement,
as well
as the terms set forth herein;
4.2.2
the
bill is issued based on the legal transaction and it shall be responsible for
the legality of such transaction;
4.2.3
it
shall refrain from making decrease in the registered capital by any means or
in
any form;
4.2.4
any
change in system, including division, consolidation, reorganization, stock
reconstruction, etc. or deregistration, dissolution, cease to carry out business
or bankruptcy, that may occur to the Applicant shall be subject to prior notice
to the Accepting Bank, otherwise, none of the aforesaid acts may be effective
or
valid;
4.2.5
the
change of affiliation, adjustment to departments, material personnel change,
as
well as modification of any joint venture contract and/or Articles of
Association shall be notified to the Accepting Bank promptly;
4.2.6
the
Accepting Bank shall be notified of any dispute between or among the parties
hereto which dispute may affect the legitimate rights and interests of the
Accepting Bank, and it shall pay the acceptance amount as scheduled;
4.2.7
no
tolerance, grace period, or suspension to enforce any of the rights and
interests or powers of the Accepting Bank hereunder, as may be granted by the
Accepting Bank to the Applicant in respect of any breach or delay on the part
of
the latter may impair, affect, or limit any rights and interests, or powers
of
the Accepting Bank in accordance with this Agreement and related laws and
regulations, nor shall be construed as the waiver by the Accepting Bank of
any
right and interest hereunder;
275
4.2.8
this Agreement shall automatically cease to be in force upon clear settlement
of
acceptance bills.
The
representations and warranties made by the Applicant hereinabove shall be deemed
a restatement by the same in any possible modification of, supplement to or
revision of this Agreement.
ARTICLE
5
APPENDIX TO AGREEMENT
The
following documents shall form the integral parts of this Agreement and are
of
the same legal force as this Agreement:
5.1
Commercial Bill Acceptance Application Form;
5.2
Pledge Contract;
5.3
Security or Guaranty Contact;
5.4
Various instruments and/or documents, etc. in respect of pledge and/or mortgage;
ARTICLE
6
The Agreement is governed by the laws of the People’s Republic of China. Any
dispute arising out of or in connection with the performance of this Agreement
shall be settled by friendly negotiation between both Parties, in case of no
successful settlement therefrom, either party may elect to lodge an action
with
the people’s court in accordance with law.
ARTICLE
7
This Agreement shall enter into force upon signature and common seal by legal
representatives or duly authorized agents of both parties.
|
Acceptance
Applicant (Common Seal):
|
Accepting
Bank (Common Seal):
|
|
Legal
representative or
|
Legal
representative or
|
|
Xxxx
authorized representative
|
Xxxx
authorized representative
|
Dated:
17th
Nov.
2005
276
ATTACHMENT
5
PARTICULARS
OF BANK ACCEPTANCE BILL
Xxxx
Xxxx: Xxxx Number:
|
Full
name of the Drawer
|
Xxxxxxx
Xxxxxxxxxxx Metal Sheet Co., Ltd.
|
Full
name of the payee
|
Tianjin
Hengying Trade Co., Ltd.
|
|
A/c
no. of the Drawer
|
07546008093001
|
A/c
no. of the Payee
|
2213001000264625
|
|
Full
name of the paying bank
|
Bank
of China Tianjin Branch Jinghai Sub-branch
|
Deposit
Bank
|
China
Construction Bank of China Jinghai Xxxxxx
|
|
Xxxx
amount
|
RMB
Four Million Yuan Only
|
||
|
Date
of issue
|
17th
Nov. 2005
|
Maturity
date
|
15th
May 2006
|
277
COMMERCIAL
BILL ACCEPTANCE AGREEMENT
No.:
Jinzhongyinjingxinzhi [2005] 003-4
|
Full
name of the
Applicant:
Tianjin Daqiuzhuang Metal Sheet Co., Ltd..
|
Full
name of the payee: Xxxxxxx
Xxxxxxxx Trade Co., Ltd.
|
|
Deposit
bank:
Bank of China Tianjin Branch Jinghai Sub-branch
|
Deposit
bank: China
Construction Bank of China Jinghai Branch
|
|
A/c
no.:
07546008093001
|
A/c
no.:2213001000264625
|
|
Bill
no.: 00351843
|
Bill
amount(amount in words): Three
Million and Six Hundred Thousand Yuan only
|
|
Issuance
date:
17th
Nov, 2005
|
Maturity
date:12th
May
2006
|
|
Legal
representative:
Xx
Xxxxxxxx
|
Tel:
00000000
|
|
Address:
Daqiuzhuang Town Jinghai Country Tianjin
|
|
|
Paying
bank: Bank
of China Tianjin Branch Jinghai Sub-branch
|
Tel:00000000
|
|
Legal
representative(or authorized agent):
Xxxx Xxxxxx
|
|
|
Address:
Xx.
00 Xxxxxxx Xxxx Xxxxxxx Xxxx Xxxxxxx Xxxxxx, Xxxxxxx
|
|
|
Deposit
bank: China
Construction Bank Jinghai Sub-branch
|
THIS
COMMERCIAL BILL ACCEPTANCE AGREEMENT
(hereinafter “this Contract”) is made and entered into by and between the
Applicant and the Accepting
Bank,
through mutual friendly negotiation on issues in respect of acceptance of
acceptance bills (hereinafter “Bills”) upon application of the acceptance
applicant, subject to the terms and conditions set out hereinafter.
ARTICLE
1
The Applicant has, based on the transaction contract, no.
20051021,
issue
one
bill
in
the sum of (amount in words) RMB
Three
Million and Six Hundred Thousand Yuan only or (amount in figure) RMB
3,600,000.00 Yuan.
ARTICLE
2
The acceptance applicant (hereinafter “the Applicant”) agrees to comply with the
relevant provisions set out in the Law of the People’s Republic of China on
Negotiable Instruments, the Procedures for Payment and Settlement, as well
as
the terms set forth below:
278
2.1
The
Applicant deposits a security deposit in the sum of 50% of the face value of
the
Bill at the Accepting Bank, which security deposit account shall be managed
in a
special manner;
2.2
The
Applicant has deposited the bill amount to the Accepting Bank prior to the
maturity date thereof;
2.3
The
Applicant shall pay a processing fee at the rate of 0.5% of the face value
of
the Bill in the lump sum at the acceptance;
2.4
Any
dispute that may arise out of or in connection with this Contract shall be
settled by related parties in question, in no event shall such dispute affect
the rights and obligations of either party hereto, the Applicant shall deposit
the bill amount in full and a timely manner, to the Accepting Bank as required
by 2.2 hereinabove;
2.5
In
case the Applicant fails to supply sufficient amount for the bill amount at
the
maturity date of such bill, the Accepting Bank shall deal with the deficiency
between the bill amount and the money actually provided by the Applicant as
the
overdue loan on which a penalty interest may be charged;
2.6
The
Applicant shall, as required by the Accepting Bank, open appropriate settlement
account in national or foreign currency with the Accepting Bank for purpose
of
conducting business transaction. In case the Applicant fails to supply
sufficient amount for any bill amount at the maturity date, the Accepting Bank
may, in its sole discretion and opinion, withhold or deduct out of any account
of the Applicant, any amount for appropriate deficiency of amount together
with
accrued interest and commission;
2.7
The
Applicant shall be held liable for any and all losses incurred by the Accepting
Bank as a result of failure by the Applicant to perform any of its obligations
under this Contract or the Commitment. Any and all costs and expenses incurred
in respect of performance of this Contract shall be charged to the account
of
the Applicant by related parties.
ARTICLE
3
ACCEPTANCE GUARANTY
The
acceptance amount under this Agreement, including accrued interest thereon,
commission as well as any other open parts, is secured
and guaranteed by the land and properties legally owned by the
Applicant,
In case
the Applicant fails to deposit sufficient money to the Accepting Bank prior
to
the maturity date or falls in breach of other covenants, the Applicant shall
assume appropriate security or guaranty obligations as agreed herein, and the
Accepting Bank is entitled to withhold or deduct any amount out of the surety’s
account or other funds of the Applicant for making payment of such bill, or
to
dispose of the property in case such property is provided as a guaranty
therefore.
279
ARTICLE
4 REPRESENTATIONS AND WARRANTIES OF APPLICANT
4.1
The
Applicant hereby represents that:
4.1.2
it
is a legal person enterprise duly established under the laws of the People’s
Republic of China, with necessary powers and rights to carry out related
business operation, and has legally permitted right to dispose of the assets
under the management of the same;
4.1.2
it
has been fully and legally authorized to execute, deliver and perform this
Agreement;
4.1.3
it
undertakes that all the materials to be provided to the Accepting Bank are
accurate, truthful, complete and valid.
4.2
The
Applicant hereby warrants and undertakes that:
4.2.1
it
is in compliance with the relevant provisions set out in the Law
of the People’s Republic of China on Negotiable Instruments,
the
Procedures
for Payment and Settlement,
as well
as the terms set forth herein;
4.2.2
the
bill is issued based on the legal transaction and it shall be responsible for
the legality of such transaction;
4.2.3
it
shall refrain from making decrease in the registered capital by any means or
in
any form;
4.2.4
any
change in system, including division, consolidation, reorganization, stock
reconstruction, etc. or deregistration, dissolution, cease to carry out business
or bankruptcy, that may occur to the Applicant shall be subject to prior notice
to the Accepting Bank, otherwise, none of the aforesaid acts may be effective
or
valid;
4.2.5
the
change of affiliation, adjustment to departments, material personnel change,
as
well as modification of any joint venture contract and/or Articles of
Association shall be notified to the Accepting Bank promptly;
4.2.6
the
Accepting Bank shall be notified of any dispute between or among the parties
hereto which dispute may affect the legitimate rights and interests of the
Accepting Bank, and it shall pay the acceptance amount as scheduled;
280
4.2.7
no
tolerance, grace period, or suspension to enforce any of the rights and
interests or powers of the Accepting Bank hereunder, as may be granted by the
Accepting Bank to the Applicant in respect of any breach or delay on the part
of
the latter may impair, affect, or limit any rights and interests, or powers
of
the Accepting Bank in accordance with this Agreement and related laws and
regulations, nor shall be construed as the waiver by the Accepting Bank of
any
right and interest hereunder;
4.2.8
this Agreement shall automatically cease to be in force upon clear settlement
of
acceptance bills.
The
representations and warranties made by the Applicant hereinabove shall be deemed
a restatement by the same in any possible modification of, supplement to or
revision of this Agreement.
ARTICLE
5
APPENDIX TO AGREEMENT
The
following documents shall form the integral parts of this Agreement and are
of
the same legal force as this Agreement:
5.1
Commercial Bill Acceptance Application Form;
5.2
Pledge Contract;
5.3
Security or Guaranty Contact;
5.4
Various instruments and/or documents, etc. in respect of pledge and/or mortgage;
ARTICLE
6
The Agreement is governed by the laws of the People’s Republic of China. Any
dispute arising out of or in connection with the performance of this Agreement
shall be settled by friendly negotiation between both Parties, in case of no
successful settlement therefrom, either party may elect to lodge an action
with
the people’s court in accordance with law.
ARTICLE
7
This Agreement shall enter into force upon signature and common seal by legal
representatives or duly authorized agents of both parties.
|
Acceptance
Applicant (Common Seal):
|
Accepting
Bank (Common Seal):
|
|
Legal
representative or
|
Legal
representative or
|
|
Xxxx
authorized representative
|
Xxxx
authorized representative
|
| Dated: 17th Nov. 2005 |
281
ATTACHMENT
5
PARTICULARS
OF BANK ACCEPTANCE BILL
Xxxx
Xxxx: Xxxx Number:
|
Full
name of the Drawer
|
Xxxxxxx
Xxxxxxxxxxx Metal Sheet Co., Ltd.
|
Full
name of the payee
|
Tianjin
Hengying Trade Co., Ltd.
|
|
A/c
no. of the Drawer
|
07546008093001
|
A/c
no. of the Payee
|
2213001000264625
|
|
Full
name of the paying bank
|
Bank
of China Tianjin Branch Jinghai Sub-branch
|
Deposit
Bank
|
China
Construction Bank of China Jinghai Xxxxxx
|
|
Xxxx
amount
|
RMB
Three
Million and Six Hundred Thousand Yuan only
|
||
|
Date
of issue
|
17th
Nov. 2005
|
Maturity
date
|
12th
May 2006
|
282
COMMERCIAL
BILL ACCEPTANCE AGREEMENT
No.:
Jinzhongyinjingxinzhi [2005] 003-2
|
Full
name of the
Applicant:
Tianjin Daqiuzhuang Metal Sheet Co., Ltd..
|
Full
name of the payee: Xxxxxxx
Xxxxxxxx Trade Co., Ltd.
|
|
Deposit
bank:
Bank of China Tianjin Branch Jinghai Sub-branch
|
Deposit
bank: China
Construction Bank of China Jinghai Branch
|
|
A/c
no.:
07546008093001
|
A/c
no.:2213001000264625
|
|
Bill
no.: 00351843
|
Bill
amount(amount in words): Four
Million Yuan only
|
|
Issuance
date:
17th
Nov, 2005
|
Maturity
date:17th
May
2006
|
|
Legal
representative:
Xx
Xxxxxxxx
|
Tel:
00000000
|
|
Address:
Daqiuzhuang Town Jinghai Country Tianjin
|
|
|
Paying
bank: Bank
of China Tianjin Branch Jinghai Sub-branch
|
Tel:00000000
|
|
Legal
representative(or authorized agent):
Xxxx Xxxxxx
|
|
|
Address:
Xx.
00 Xxxxxxx Xxxx Xxxxxxx Xxxx Xxxxxxx Xxxxxx, Xxxxxxx
|
|
|
Deposit
bank: China
Construction Bank Jinghai Sub-branch
|
THIS
COMMERCIAL BILL ACCEPTANCE AGREEMENT
(hereinafter “this Contract”) is made and entered into by and between the
Applicant and the Accepting
Bank,
through mutual friendly negotiation on issues in respect of acceptance of
acceptance bills (hereinafter “Bills”) upon application of the acceptance
applicant, subject to the terms and conditions set out hereinafter.
ARTICLE
1
The Applicant has, based on the transaction contract, no.
20051021,
issue
one
bill
in
the sum of (amount in words) RMB
Four Million Yuan only or (amount in figure) RMB 4000000.00 Yuan.
ARTICLE
2
The acceptance applicant (hereinafter “the Applicant”) agrees to comply with the
relevant provisions set out in the Law of the People’s Republic of China on
Negotiable Instruments, the Procedures for Payment and Settlement, as well
as
the terms set forth below:
283
2.1
The
Applicant deposits a security deposit in the sum of 50% of the face value of
the
Bill at the Accepting Bank, which security deposit account shall be managed
in a
special manner;
2.2
The
Applicant has deposited the bill amount to the Accepting Bank prior to the
maturity date thereof;
2.3
The
Applicant shall pay a processing fee at the rate of 0.5% of the face value
of
the Bill in the lump sum at the acceptance;
2.4
Any
dispute that may arise out of or in connection with this Contract shall be
settled by related parties in question, in no event shall such dispute affect
the rights and obligations of either party hereto, the Applicant shall deposit
the bill amount in full and a timely manner, to the Accepting Bank as required
by 2.2 hereinabove;
2.5
In
case the Applicant fails to supply sufficient amount for the bill amount at
the
maturity date of such bill, the Accepting Bank shall deal with the deficiency
between the bill amount and the money actually provided by the Applicant as
the
overdue loan on which a penalty interest may be charged;
2.6
The
Applicant shall, as required by the Accepting Bank, open appropriate settlement
account in national or foreign currency with the Accepting Bank for purpose
of
conducting business transaction. In case the Applicant fails to supply
sufficient amount for any bill amount at the maturity date, the Accepting Bank
may, in its sole discretion and opinion, withhold or deduct out of any account
of the Applicant, any amount for appropriate deficiency of amount together
with
accrued interest and commission;
2.7
The
Applicant shall be held liable for any and all losses incurred by the Accepting
Bank as a result of failure by the Applicant to perform any of its obligations
under this Contract or the Commitment. Any and all costs and expenses incurred
in respect of performance of this Contract shall be charged to the account
of
the Applicant by related parties.
ARTICLE
3
ACCEPTANCE GUARANTY
The
acceptance amount under this Agreement, including accrued interest thereon,
commission as well as any other open parts, is secured
and guaranteed by the land and properties legally owned by the
Applicant,
In case
the Applicant fails to deposit sufficient money to the Accepting Bank prior
to
the maturity date or falls in breach of other covenants, the Applicant shall
assume appropriate security or guaranty obligations as agreed herein, and the
Accepting Bank is entitled to withhold or deduct any amount out of the surety’s
account or other funds of the Applicant for making payment of such bill, or
to
dispose of the property in case such property is provided as a guaranty
therefore.
284
ARTICLE
4 REPRESENTATIONS AND WARRANTIES OF APPLICANT
4.1
The
Applicant hereby represents that:
4.1.2
it
is a legal person enterprise duly established under the laws of the People’s
Republic of China, with necessary powers and rights to carry out related
business operation, and has legally permitted right to dispose of the assets
under the management of the same;
4.1.2
it
has been fully and legally authorized to execute, deliver and perform this
Agreement;
4.1.3
it
undertakes that all the materials to be provided to the Accepting Bank are
accurate, truthful, complete and valid.
4.2
The
Applicant hereby warrants and undertakes that:
4.2.1
it
is in compliance with the relevant provisions set out in the Law
of the People’s Republic of China on Negotiable Instruments,
the
Procedures
for Payment and Settlement,
as well
as the terms set forth herein;
4.2.2
the
bill is issued based on the legal transaction and it shall be responsible for
the legality of such transaction;
4.2.3
it
shall refrain from making decrease in the registered capital by any means or
in
any form;
4.2.4
any
change in system, including division, consolidation, reorganization, stock
reconstruction, etc. or deregistration, dissolution, cease to carry out business
or bankruptcy, that may occur to the Applicant shall be subject to prior notice
to the Accepting Bank, otherwise, none of the aforesaid acts may be effective
or
valid;
4.2.5
the
change of affiliation, adjustment to departments, material personnel change,
as
well as modification of any joint venture contract and/or Articles of
Association shall be notified to the Accepting Bank promptly;
4.2.6
the
Accepting Bank shall be notified of any dispute between or among the parties
hereto which dispute may affect the legitimate rights and interests of the
Accepting Bank, and it shall pay the acceptance amount as scheduled;
4.2.7
no
tolerance, grace period, or suspension to enforce any of the rights and
interests or powers of the Accepting Bank hereunder, as may be granted by the
Accepting Bank to the Applicant in respect of any breach or delay on the part
of
the latter may impair, affect, or limit any rights and interests, or powers
of
the Accepting Bank in accordance with this Agreement and related laws and
regulations, nor shall be construed as the waiver by the Accepting Bank of
any
right and interest hereunder;
285
4.2.8
this Agreement shall automatically cease to be in force upon clear settlement
of
acceptance bills.
The
representations and warranties made by the Applicant hereinabove shall be deemed
a restatement by the same in any possible modification of, supplement to or
revision of this Agreement.
ARTICLE
5
APPENDIX TO AGREEMENT
The
following documents shall form the integral parts of this Agreement and are
of
the same legal force as this Agreement:
5.1
Commercial Bill Acceptance Application Form;
5.2
Pledge Contract;
5.3
Security or Guaranty Contact;
5.4
Various instruments and/or documents, etc. in respect of pledge and/or mortgage;
ARTICLE
6
The Agreement is governed by the laws of the People’s Republic of China. Any
dispute arising out of or in connection with the performance of this Agreement
shall be settled by friendly negotiation between both Parties, in case of no
successful settlement therefrom, either party may elect to lodge an action
with
the people’s court in accordance with law.
ARTICLE
7
This Agreement shall enter into force upon signature and common seal by legal
representatives or duly authorized agents of both parties.
|
Acceptance
Applicant (Common Seal):
|
Accepting
Bank (Common Seal):
|
|
Legal
representative or
|
Legal
representative or
|
|
Xxxx
authorized representative
|
Xxxx
authorized representative
|
| Dated: 17th Nov. 2005 |
286
ATTACHMENT
5
PARTICULARS
OF BANK ACCEPTANCE BILL
Xxxx
Xxxx: Xxxx Number:
|
Full
name of the Drawer
|
Xxxxxxx
Xxxxxxxxxxx Metal Sheet Co., Ltd.
|
Full
name of the payee
|
Tianjin
Hengying Trade Co., Ltd.
|
|
A/c
no. of the Drawer
|
07546008093001
|
A/c
no. of the Payee
|
2213001000264625
|
|
Full
name of the paying bank
|
Bank
of China Tianjin Branch Jinghai Sub-branch
|
Deposit
Bank
|
China
Construction Bank of China Jinghai Xxxxxx
|
|
Xxxx
amount
|
RMB
Four Million Yuan Only
|
||
|
Date
of issue
|
17th
Nov. 2005
|
Maturity
date
|
15th
May 2006
|
287
SHANGHAI
PUDONG DEVELOPMENT BANK
ACCEPTANCE
AGREEMENT FOR BANK ACCEPTANCE BILL
288
SHANGHAI
PUDONG DEVELOPMENT BANK
ACCEPTANCE
AGREEMENT FOR BANK ACCEPTANCE BILL
No.:
CD77072005880100
The
Drawer: Tianjin Daqiuzhuang Metal Sheet Co., Ltd.
Legal
Address:
Postal
Address:
The
Accepting Bank: Shanghai Pudong Development Bank Tianjin Branch
Address:
WHREAS,
the
Drawer desires to present and honor and the Accepting Bank agrees to honor
the
bank acceptance bill (hereinafter “Bill”);
NOW,
THEREFORE,
both
Parties agree to enter into this agreement, through mutual friendly negotiation
on the basis of fairness and good faith and in accordance with related laws
of
regulations of the People’s Republic of China (hereinafter “China”), subject to
the terms and conditions to be set out hereinafter.
ARTICLE
1 BILL PARTICULARS
|
1.1
|
In
principle, the Bill shall include the particulars specified
hereinafter:
|
|
Full
name of the
Drawer: Xxxxxxx Xxxxxxxxxxx Metal Sheet Co., Ltd.
|
Full
name of the payee: Xxxxxxx Xxxxxxxx Trade Co., Ltd.
|
|
Deposit
bank: Shanghai Pudong Development Bank Tianjin Branch
|
Deposit
bank: China Construction Bank Jinghai Subrranch
|
|
A/c
no.: 126986411000616
|
A/c
no.:2213001000264625
|
|
Bill
no.: 00333314, 00333315, 00333313
|
Bil
amount(amount in words): Twenty Million Yuan only
|
|
Issuance
date: 10th
Nov. 2005
|
Maturity
date: 10th
May
2006
|
|
1.2
|
The
Drawer issues the Bills herein whereby the payment obligations under
__________ (underlying contract) to the payee are to be performed.
|
289
ARTICLE
2 ACCEPTANCE AND PAYMENT OBLIGATIONS
2.1
The
Accepting Bank shall, upon agreeing to accept the Bills hereunder, become the
principal debtor for such Bills, and is obliged to pay the designated payee
or
the Bill holders the amount shown on the Bills at the maturity date thereof,
provided however the Accepting Bank may not be held liable for aforesaid
underlying contract.
2.2
The
obligations of the Drawer hereunder shall be as set out below:
2.2.1
The
Drawer shall deposit sufficient amount of money for any Bill to be drawn to
the
Accepting Bank prior to the scheduled maturity date thereof, without regard
to
any dispute in any form that may arise out of the underlying transaction between
the Drawer and the payee, and the Drawer shall authorize the Accepting Bank
to
directly withhold and deduct any such amount out of the deposit account opened
with the Accepting Bank at any appropriate time.
2.2.2
The
Drawer shall pay in full and a timely manner, to the Accepting Bank any and
all
costs and expenses incurred hereunder, and shall submit relevant materials
and
documents as required by the Accepting Bank.
2.2.3
In
case no money exists in or deficiency occurs to the account of the Drawer when
the Bill matures, the Drawer shall without delay pay the Accepting Bank any
amounts paid by the Accepting Bank for the Drawer, together with any accrued
interest on overdue amount as well as related costs, and hereby acknowledges
that the accounting vouchers issued by the Accepting Bank shall be regarded
as
the sole and conclusive evidence for such debts for which the Drawer is be
held
liable to the Accepting Bank.
2.3
The
Drawer shall mark any Bill which is intended not to be transferred, with the
legend “Non-transferable”, and shall notify the payee so, in such a case, the
Accepting Bank shall be held liable for payment to the named payee only.
ARTICLE
3 REPRESENTATIONS AND WARRANTIES
The
Drawer hereby represents and warrants with the Accepting Bank which
representations and warranties shall be of continuous force during the whole
life of this agreement, as follows:
3.1
The
Drawer is a legal person enterprise which is duly incorporated under the law
of
the People’s Republic of China, that is has full rights or powers in its all
assets, and has full civil act capacity, as well as that it can assume any
liability on its own.
290
3.2
Appropriate authorized representative has been appointed by the Drawer to
execute this Agreement which constitute the true representation of the surety
agreeing to be legally bound by such Bills and this Agreement.
3.3
The
underlying transaction contract between the Drawer and payee is true and has
a
proper and good consideration, the Drawer has a reliable fund source to pay
any
Bill and no instrument-related fraudulent actions exist.
3.4
The
Drawer hereby undertakes to provide reasonable assistance in any supervision
and/or inspection by the Accepting Bank over the operation of the Drawer, and
undertakes that any and all financial statements to be provided by the Drawer
are in compliance with related laws and regulations of China which statements
fairly and truthfully reflect the financial standing of the Drawer; Any and
all
documents and materials relating to this Agreement are true, valid, complete,
accurate as well as free from any conscious concealment.
3.5
The
Drawer hereby undertakes not to be engaged in any contracting, business
operation under lease, pool, stock reconstruction, consolidation (M&A),
joint venture (cooperation), division, establishment of subsidiary, transfer
of
property right, reduction of registered capital, cease to carry out business,
dissolution, application for being declared bankrupt or any other act that
may
impair the rights and interest of the Accepting Bank, without providing security
measures for the performance of debts which security measures are subject to
a
consent in writing from the Accepting Bank.
3.6
The
Drawer hereby undertakes to notify the Accepting Bank within three (3) days
in
writing of any breach described in ARTICLE 5 hereof or any other facts that
may
constitute a breach, upon being aware of the same.
ARTICLE
4 EXPENSES AND GUARANTEE
4.1
The
Drawer shall at the acceptance date pay the Accepting Bank a commission in
the
sum of (amount in words) RMB
Ten Thousand Yuan only
as
prescribed by relevant regulations of the People’s Bank of China.
4.2
The
Drawer shall open a security deposit account with the Accepting Bank, and shall
deposit an amount equivalent to 50%
of the
face value of the Bill to be drawn before the scheduled acceptance date, and
shall authorize the Accepting Bank to deduct any such amount out of such account
directly at appropriate time, except as waived by the Accepting Bank.
291
4.3
Appropriate guarantee shall be provided by the following guarantor(s) for the
acceptance amount together with any accrued interest on overdue payment and
related expenses(after deduction of security deposit) that may be incurred
hereunder (the guaranty contract is to be concluded):
4.3.1
Tianjin
Sheng Da Steel Mill Co.,Ltd.
(hereinafter “the surety”) stands surety in accordance with a suretyship
contract with the no.:
CD77072005800274.
4.3.2
________________________________ (hereinafter “the mortgagor”) provides a
mortgage in accordance with a mortgage contract with the no.:
.
4.3.3
_________________________________ (hereinafter “the pledgor”) act as the pledgor
in accordance with a pledge contract with the no.:
.
ARTICLE
5 BREACH AND SETTLEMENT
5.1
Any
of the followings shall constitute a breach on the part of the Drawer of this
Agreement.
5.1.1
Failure to perform its obligations under ARTICLE 2 hereof, in a timely and
complete manner.
5.1.2
The
representations and warranties made by the Drawer under ARTICLE 3 hereof are
not
true, inaccurate, incomplete or the Drawer is in breach or default.
5.1.3
The
Drawer is or will be in the status of cease to produce, being liquidated,
dissolved, deregistered, bankrupt, or involved in other significant suits,
arbitration, administrative proceedings, or the whole or substantial part of
its
assets are or will be attached, sealed up, confiscated or seized.
5.1.4
The
guarantor has no or will have no guaranty capacity appropriate to the acceptance
amount, or falls in breach of the guaranty documents signed by the same.
5.1.5
Occurrence of any material adverse change that may affect the performance by
the
Drawer of any obligation hereunder.
5.1.6
Breach by the Drawer of any other provision contained herein.
5.2
The
Accepting Bank is entitled to charge appropriate interest in accordance with
related regulations of the People’s Bank of China, on any payment by the
Accepting Bank for the Drawer if the sufficient amount for the Bill is not
made
available by the Drawer at the maturity date of such Bill.
292
5.3
In
the case of any or a combination of the abovementioned breaches, in addition
to
the remedies provided in ARTICLE 5.2 hereinabove, the Accepting Bank may also
elect to any or a combination of remedies described below:
5.3.1
Require the Drawer to pay a security deposit in sufficient amount;
5.3.2
Withhold or deduct directly such amount out of any deposit accounts opened
by
the Drawer with any business office of Shanghai Pudong Development Bank.
5.3.3
Require the Drawer to provide guarantees, mortgage, pledge or others as may
be
acceptable to the Accepting Bank.
5.3.4
Make recourse or recovery against the Drawer by taking other necessary actions
as prescribed by related laws.
Upon
any
of the abovementioned cases, the Drawer hereby agrees to unconditionally waive
its defense right, and to indemnify and hold harmless the Accepting Bank from
and against any and all loss incurred as a result of the breach.
ARTICLE
6 MISCELLANEOUS
6.1
This
Contract shall be governed by and construed in accordance with the laws of
the
People’s Republic of China. Any dispute arising out of or in connection with
this contract shall be subject to the jurisdiction of the people’s court at the
place where the principal business office of the Accepting Bank is
domiciled.
6.2
This
Agreement shall enter into force upon common seal by both Parties hereto or
signature or seal by the legal representative or duly authorized representative
of each party, until any and all debts owed by the Drawer u have been satisfied
or paid up.
6.3
The
Acceptance Application, Bank Acceptance Bill, appropriate guaranty contract,
as
well as related written documents shall form the integral parts of this
Agreement and have the same legal force as the same.
6.4
This
Agreement is made in duplicate in original, each party holds one, and several
copies thereof shall be made available for reference.
AT
THE
TIME OF SIGNING THIS CONTRACT, NEITHER PARTY HAS ANY DOUBT OR CONCERN OVER
ANY
PROVISION CONTAINED HEREIN AND EACH OF THEM HAS A CLEAR UNDERSTANDING OF THE
LEGAL IMPLICATION OF THE ARTICLES PERTAINING TO THE RIGHTS, OBLIGATIONS AS
WELL
AS THE LIABILITIES OF EACH PARTY.
293
|
The
Drawer (Common Seal):
|
The
Accepting Bank (Common Seal):
|
|
Legal
representative or duly authorized
|
Legal
representative or duly authorized
|
|
representative
(signature or seal)
|
representative
(signature or seal)
|
Dated
10th
Nov.
2005
294
SHANGHAI
PUDONG DEVELOPMENT BANK
MAXIMUM
AMOUNT SURETYSHIP CONTRACT FOR BANK ACCEPTANCE BILL
295
MAXIMUM
AMOUNT SURETYSHIP CONTRACT FOR BANK ACCEPTANCE BILL
No.:
CD77072005800274
The
Surety: Tianjin Sheng Da Steel Mill Co. , Ltd.
Legal
Address:
Postal
Address:
Accepting
Bank: Shanghai Pudong Development Bank Tianjin Branch
Address:
WHEREAS,
The
Maximum Amount Acceptance Contract (No.:
CD77072005800274)
(hereinafter “the Maximum Amount Acceptance Contract”) was entered into by and
between Tianjin Daqiuzhuang Metal Sheet Co., Ltd.(hereinafter “the Drawer”) and
the Accepting Bank on 23rd
May
2005;
WHEREAS,
the
Accepting Bank has or will accept and honor a series of drafts to be drawn
and
presented by the Drawer;
NOW,
THEREFORE,
This
suretyship contract is entered into by and between the Drawer and the Accepting
Bank, through mutual friendly negotiation on the basis of fairness and good
faith, with a view to guaranteeing the successful realization of the creditor’s
rights of the Accepting Bank, subject to the terms and conditions to be set
forth hereinafter.
ARTICLE
1
The
principal creditor’s right for which this suretyship is established hereunder
refers to any balance of the amounts shown in the series of drafts to be drawn
by the Drawer and honored by the Accepting Bank within the credit term as from
23rd
May 2005
and ending on 18th
Nov.
2005 pursuant to the Maximum Amount Acceptance Contract, and the maximum total
sum of the aforesaid balance may not exceed the amount of RMB Twenty Million
Yuan (amount in words). In the event of any payment by the Accepting Bank for
the Drawer for honoring any due and payable acceptance bill for which the Drawer
fails to pay, the appropriate individual principal creditor’s right shall refer
to such payment made by the Accepting Bank for the Drawer which payment shall
be
regarded as the overdue loan. The “Maturity” and “Expiry” as referred to herein
shall include the accelerated maturity as may be declared by the Accepting
Bank.
296
The
amount, maturity date as well as the acceptance date of any acceptance bill
shall be as described in Attachment 1 hereto.
ARTICLE
2 The
scope
of the surety hereunder shall include the principal creditor’s rights payable
but not paid by the Drawer when due, together with any accrued interest on
the
same, fine for breach, compensation, attorney fees, action costs incurred by
the
Accepting Bank in realizing its creditor’s rights, as well as any other related
costs; Any accounting voucher issued by the Accepting Bank in compliance with
related banking business procedures shall work as the sole and conclusive
evidence for the indebtedness owed by the Drawer.
ARTICLE
3
The
suretyship referred to herein shall mean the suretyship with joint and several
liability whereby the surety agrees to be held liable jointly and severally
for
any indebtedness owed by the Drawer to the extent of the scope of such
suretyship created hereunder. The surety undertakes to unconditionally discharge
the guaranteed debts as the first debtor, upon receipt of a written notice
from
the Accepting Bank:
|
(i)
|
In
case the Accepting Bank has paid to appropriate payee, the surety
shall
directly repay any and all debts owed by the Drawer to the Accepting
Bank
as a result thereof;
|
|
(ii)
|
(ii)
In case the Accepting Bank has not paid to appropriate payee but
is
entitled to take actions against any breach as provided in the Maximum
Amount Acceptance Contract, the surety shall directly pay the Accepting
Bank an amount equivalent to the principal debts which amount shall
be
deemed a security deposit for payment by the Accepting Bank. The
surety
hereby authorizes the Accepting Bank to withhold and deduct any such
amount out of any deposit account opened by the Drawer with any business
office of Shanghai Pudong Development Bank.
|
ARTICLE
4 This
suretyship hereunder is independent, irrevocable and continuously effective.
In
no event shall the Suretyship Contract be affected by the Principal Contract,
nor shall be declared void and/or rescinded as a result of the fact that the
principal contract is declared void and/or rescinded. The suretyship liability
to be taken by the surety hereunder shall remain unchanged is disregard to
any
modification of the Maximum Amount Acceptance Contract as both parties may
make
by agreement, and in disregard to any change by the Drawer and/or the surety
in
their respective operation or management structure. The surety agrees to be
held
liable as surety in the case of any modification of the Maximum Amount
Acceptance Contract between the Lender and the Drawer, or in the case of any
change in the operation or management structure of the Drawer, in the absence
of
the written permission of the Surety hereunder.
297
The
surety shall be held liable as surety for any debts created as a result of
acceptance by the Accepting Bank of any bank drafts drawn by the Drawer within
the credit term, unless otherwise agreed in writing by both parties with regard
to the acceptance surety for particular draft.
ARTICLE
5
The
suretyship shall remain in force for a period of two (2) years as from the
expiry date of each draft during which surety duration failure of the Accepting
Bank to require the Surety to perform the surety obligation shall render the
surety released or exempted from such suretyship.
ARTICLE
6
The
surety hereby represents and warrants with the Accepting Bank that it is a
legal
person enterprise or entity which is duly incorporated under the law of the
People’s Republic of China, that is has full rights or powers in its all assets,
and has full civil act capacity, as well as that it can assume any liability
on
its own; Appropriate authorized representative has been appointed by the surety
to execute this contract which constitute the true representation of the surety
agreeing to be bound thereby.
ARTICLE
7 This
Contract shall enter into and remain in force upon common seal by both Parties
hereto or signature or seal by the legal representative or duly authorized
representative of each party, until any and all debts owed by the Drawer under
the Maximum Amount Acceptance Contract have been satisfied or paid up. In case
the signing date hereof is earlier than the signing date of the Maximum Amount
Acceptance Contract, this Contract shall enter into as from the signing date
of
the Maximum Amount Acceptance Contract.
ARTICLE
8 This
Contract shall be governed by and construed in accordance with the laws of
the
People’s Republic of China. Any dispute arising out of or in connection with
this contract shall be subject to the jurisdiction of the people’s court at the
place where the principal business office of the Accepting Bank is domiciled.
ARTICLE
9
This
Contract is made in duplicate in original, each party holds one, and several
copies thereof shall be made available for reference.
AT
THE
TIME OF SIGNING THIS CONTRACT, NEITHER PARTY HAS ANY DOUBT OR CONCERN OVER
ANY
PROVISION CONTAINED HEREIN AND EACH OF THEM HAS A CLEAR UNDERSTANDING OF THE
LEGAL IMPLICATION OF THE ARTICLES PERTAINING TO THE RIGHTS, OBLIGATIONS AS
WELL
AS THE LIABILITIES OF EACH PARTY.
298
|
The
Surety (Common Seal):
|
The
Accepting Bank (Common Seal):
|
|
Legal
representative or duly authorized
|
Legal
representative or duly authorized
|
|
representative
(signature or seal)
|
representative
(signature or seal)
|
|
Deposit
Bank and A/c No.:
|
Dated
23rd
May 2005
|
299
ATTACHMENT
TO MAXIMUM AMOUNT SURETYSHIP CONTRACT FOR BANK ACCEPTANCE BILL
(No.: )
|
Bill
1
|
Bill
2
|
Bill
3
|
Bill
4
|
Bill
5
|
|
|
Bill
No.:
|
_______
|
_______
|
_________
|
_________
|
__________
|
|
Xxxx
Xxxxxx:
|
_______
|
_______
|
_________
|
__________
|
__________
|
|
Maturity
Date:
|
______
|
_______
|
_________
|
__________
|
___________
|
|
Acceptance
Date:
|
_____
|
_______
|
-_________
|
___________
|
__________
|
|
Remarks:
|
________
|
_________
|
__________
|
__________
|
__________
|
|
Bill
6
|
Bill
7
|
Bill
8
|
Bill
9
|
Bill
10
|
|
|
Bill
No.:
|
_______
|
_______
|
_________
|
_________
|
__________
|
|
Xxxx
Xxxxxx:
|
_______
|
_______
|
_________
|
__________
|
__________
|
|
Maturity
Date:
|
______
|
_______
|
_________
|
__________
|
___________
|
|
Acceptance
Date:
|
_____
|
_______
|
-_________
|
___________
|
__________
|
|
Remarks:
|
________
|
_________
|
__________
|
__________
|
__________
|
|
Bill
11
|
Bill
12
|
Bill
13
|
Bill
14
|
Bill
15
|
|
|
Bill
No.:
|
_______
|
_______
|
_________
|
_________
|
__________
|
|
Xxxx
Xxxxxx:
|
_______
|
_______
|
_________
|
__________
|
__________
|
|
Maturity
Date:
|
______
|
_______
|
_________
|
__________
|
___________
|
|
Acceptance
Date:
|
_____
|
_______
|
-_________
|
___________
|
__________
|
|
Remarks:
|
________
|
_________
|
__________
|
__________
|
__________
|
This
Attachment is to be completed by the Accepting Bank and to be notified to the
surety on regular basis.
300
