Commodity Financing Agreement
Exhibit
10.31
Agreement
No.: 2009 (Shui Ban) No.0021
Important
Prompt: the Agreement is legally made and entered into on an equal and free will
basis and through friendly consultation of two parties, which represents their
genuine declarations of intention. To safeguard Party B’s lawful rights and
interests, Party A hereby draws Party B’s full attention to the whole terms and
conditions stipulating the rights and obligations of two parties, especially to
the content of highlighted parts.
Party A
(Lender/Pledgee): Anyang Shuiye branch
of Industrial and Commercial Bank of China
Domicile
(Address): Fuyan Road,
Shuiye Town, Anyang County
Head of
the bank: Xxxxxxx
XXX
Party B
(Borrower/Pledgor): Henan Shuncheng Group Coal
Coke Co., Ltd
Domicile
(Address): South
Gongye Road, Tongye Town, Anyang County
Legal
Representative: Xxxxxxx
XXXX
Party B
files a loan application to Party A based on the usage stipulated in Article 1.1
of the Agreement. To ensure the performance of its obligations under the
Agreement, Party B is willing to provide the guaranty of pledge as well as other
guarantees. On the basis of equality and through consultation, the Agreement is
hereby made and entered into by two parties who shall abide by it
jointly.
Article
1 The
Purpose of the loan, amount and term
1.1 The
loan under the Agreement is intended for the usage of purchasing raw
materials. Without Party A's written consent, Party B shall not
misappropriate or divert the loan.
1.2 The
currency and amount of the loan under the Agreement is RMB 9,000,000 Yuan
(Amount in words: RMB
Nine Million Yuan only) (In case there is any discrepancy between the
amount in figures and the amount in words, the amount in words shall
prevail).
1.3 The
term of the loan under the Agreement is six months, starting
from the first withdrawal date.
1.4 The
actual withdrawal dates and repayment dates shall be subject to the loan notes,
which shall be an integral part of the Agreement and have the same legal effect
with the Agreement.
Article
2 Interest
Rates and Interests
2.1 If
the currency of the loan under the Agreement is RMB, the interest rate shall be
determined by adding the floating range to the benchmark interest rate of the
withdrawal date. Thereinto, the benchmark interest rate is the corresponding RMB
loan interest rate of People’s Bank of China with the same period and grade as
the term of the loan stipulated in Article 1.3 of the Agreement; the floating
range is floating
upward (floating upward/floating downward/zero) 10%. In case that the
benchmark interest rate is adjusted after Party B’s withdrawal, item (3) in the
following shall be adopted:
(1) The
rate shall be adjusted every __/__ (1/3/6/12) month/months, which is
referred to as “a floating period”. The date of determining the interest rate of
the first floating period shall be the actual withdrawal date, and the date of
determining the interest rate of the second floating period shall be the
corresponding date following a full floating period after the withdrawal date,
and so forth. If there is no corresponding date to the withdrawal date in the
adjusting month, then the last date of the adjusting month shall be deemed as
the corresponding date. On each date of determining the interest rate, the
interest rate of the loan shall be adjusted according to the effective benchmark
interest rate and the floating range stipulated in Article 2, with interests
being calculated on a multi-stage basis.
(2) On
each June 21st and
December 21st after
the withdrawal date, the interest rate will be adjusted according to the
effective benchmark interest rate and the floating range stipulated in Article
2.
(3) The
interest rate of the loan will not be adjusted within the whole term of the
Agreement.
(4)
Others: ______/___________.
2.2 If
the loan under the Agreement is a foreign exchange, the interest rate will be
calculated through LIBOR of ___/___months plus __/__BP (Base Point) of the
margin with a floating period. LIBOR refers to the inter-bank offered rate of
the loan currency under the Agreement as shown in the “LIBO=” page of REUTRES
financial telecommunication terminal two banking days prior to each interest
period (11:00 am, London time). The first interest period is from Party B’s
actual withdrawal date to the first interest settlement date; the last interest
period is from the date following the end of the previous interest period to the
final repayment date; and other interest periods are from the date following the
end of the previous interest period to the next interest settlement
date.
2.3 In
case that Party B fails to repay the loan on due date, the above-mentioned
method of determining the interest rate shall still apply to the overdue
amount.
2.4 After
grant of the loan, the interest shall be calculated per day and settled per
month
(Month/Quarter/Half a year). The daily interest rate = the annual interest
rate/360. When the loan becomes due, the interest shall be paid in the form of
matching the principal. For monthly settlement, the 20th day of
each month is the interest settlement date; for quarterly settlement, the
20th
day in the last month of each quarter (i.e., March, June, September and
December) is the interest settlement date; and for semi-annual settlement, June
20th
and December 20th of each
year are the interest settlement dates.
2.5 In
case that People’s Bank of China adjusts the method of determining the loan
interest rate, the relevant regulations of People’s Bank of China shall be
followed.
Article
3 The
Guaranty of Pledge
3.1 Party
B voluntarily provides the guaranty of pledge for its performance of the
obligations under the Agreement. The scope of the guaranty of pledge covers
principal, interest, interest penalties, compound interest, liquidated damages,
damage awards, the storage charges, the expense for the realization of the
pledge and any other expenses associated with the pledge.
3.2 The
effectiveness of the pledge under the Agreement shall be extended to the fruits
deriving from the pledged property, and insurance compensation, damage awards as
well as compensations generating from damage, loss, destruction or expropriation
of the pledged property.
3.3 Party
A and Party B reach the agreement on the pledged property as
follows:
(1) The
pledged property will be handed over to China Xxx Xxxx Henan Co.
(hereinafter referred to as “the Supervisor”), who shall exercise control
and supervision over the pledged property and issue relevant custody voucher.
More detailed information on the pledged property is provided in the Warehouse Receipt Specific to Pledge
of Movables (or List of
Pledged Property) in the Supervision Agreement on Commodity
Financing Pledge (No.HN-GS-09288).
(2) When
Party B provides the pledge, the value of the pledged property agreed upon by
both parties is used for calculating the pledge ratio of the Agreement, but not
used as the valuation basis for the disposal of the pledged property by Party A,
and it does not constitute any restriction on Party A’s exercise of the right of
pledge.
(3)
Within the duration of the pledge, Party A shall be entitled to alter the market
value of the pledged property according to the market price changes of the
pledged property. If the ratio of the market value of the pledged property to
the total unrepaid financing principal and interest drops down to 125%, Party B shall,
within five (5) working days after receiving Party A’s written notice,
provide additional pledged property or pay security deposit so that the pledge
ratio will be restored to the pledge ratio at the time of pledging. Otherwise,
Party A is entitled to dispose of the pledged property according to the
provisions of the Agreement and be first compensated with the proceeds from such
disposal; if the pledge ratio drops down to 120%, Party A is
entitled to directly dispose of the pledged property and be first compensated
with the proceeds from such disposal.
3.4 Party
A and Party B reach agreement on the handover and supervision of the pledged
property as follows:
(1) The
handover procedures of the pledged property under the Agreement shall be
specified in the Supervision
Agreement on Commodity Financing Pledge signed by and among Party A,
Party B and the Supervisor. Party A and Party B shall jointly issue a Pledge Notice (or Notice on Type, Price and Minimum
Requirement of the Pledged Property) to the Supervisor and the Supervisor
shall issue relevant custody voucher after confirming its consistency with the
physical goods. The expenses accrued from the warehousing and supervision of the
pledged property as well as the mode of payment shall be specified in the Supervision Agreement on Commodity
Financing Pledge.
(2)
The Warehouse Receipt Specific
to Pledge of Movables (or List of Pledged Property) of
the pledged property under the Agreement will be issued directly to Party A by
the Supervisor. The ownership certificate, invoice and other relevant materials
of the pledged property will be handed over to Party A upon joint confirmation
by Party A and Party B.
(3) If
Party B performs its debts upon expiry of debt performance term or Party B
liquidates the guaranteed creditor’s rights in advance, Party A shall timely
inform the Supervisor in writing to discharge supervision of pledge. The
Supervisor shall return the pledged property to Party B in accordance with the
Supervision Agreement on
Commodity Financing Pledge.
3.5 Party
A and Party B reach agreement on the custody and deposit of the pledged property
as follows:
(1) If
Party A may not keep the pledged property under good custody, thus with the
possibility of resulting in loss or damage to the pledged property, Party B may
request Party A to have the pledged property deposited, with expenses to be
borne by Party B.
(2) If
the pledged property provided by Party B may be damaged or devaluated
considerably, to the extent of being sufficient to jeopardize Party A’s rights,
and Party B refuses to provide a corresponding guaranty, Party A shall be
entitled to auction or sell the pledged property to realize all the guaranteed
creditor’s rights under the Agreement with the proceeds from such disposal in
advance, or to have the pledged property deposited with a third party as agreed
upon by both parties, with depositing expenses to be borne by Party
B.
3.6 Party
A and Party B reach agreement on the insurance of the pledged property as
follows:
(1)
Before the pledged property is handed over to the Supervisor and the Warehouse Receipt Specific to Pledge
of Movables (or List of
Pledged Property) is issued, Party B shall process the basic insurance
and additional __/__ insurance procedures of the property insurance for the
pledged property with relevant insurance institutions. The term of insurance
shall not be shorter than the expiry date of principal creditor’s rights and the
amount insured shall not be less than the principal and its interest under the
Agreement.
(2) Party
B shall expressly write in the insurance policy: when an insured event occurs,
Party A shall be the first beneficiary. The insurance policy shall not contain
any clause which may limit Party A’s rights and interests. The insurance policy
shall be handed over to and kept by Party A. If an insured event occurs before
Party B performs all its obligations under the Agreement, the insurer shall
directly pay the insurance compensation to the account designated by Party A. If
Party B has performed all its obligations under the Agreement, Party A shall
return such insurance policy to Party B.
(3)
Within the valid term of the Agreement, Party B shall not interrupt or withdraw
insurance for whatever reasons. In case of insurance interruption or withdrawal,
Party A shall be entitled to handle insurance procedures on behalf of Party B,
with any and all expenses arising thereof to be borne by Party B.
(4) As
for the insurance compensation, Party B agrees that Party A is entitled to adopt
any of the following ways, and Party B shall assist Party A in handling relevant
procedures:
A.
Liquidate or prematurely liquidate the principal debt, interest and relevant
expenses under the Agreement;
B.
Convert the insurance compensation into time deposit, with certificate of
deposit to be used for pledge purpose;
C. With
Party A’s consent, use the insurance compensation to repair the pledged property
so as to restore its value;
D. Have
the insurance compensation deposited with a third party designated by Party
A;
E. After
Party B provides a new guaranty meeting Party A’s requirements, Party B may
dispose of the insurance compensation at its own discretion.
F.
Others: _____________________/________________________________.
Article
4 Withdrawal
4.1 For
withdrawal, Party B must meet the following preconditions, or else Party A has
no obligation to grant any loan:
(1) Party
B has completed the withdrawal application procedures as required by Party
A;
(2) Party
B has completed the guaranty of pledge procedures as required by Party
A;
(3) Party
A has acquired the Warehouse
Receipt Specific to Pledge of Movables (or List of Pledged Property)
signed and issued by the Supervisor;
(4) Party
B has handed over to Party A the complete legal documents in connection with the
financing, including, but not limited to the ownership certificate, invoice, the
original insurance policy and other relevant materials of the pledged
property;
(5) Party
B hasn’t breached any provision stipulated in the Agreement;
(6)
Others: ___________________/__________________________________.
4.2 When
applying for withdrawal, Party B must submit a Notice on Withdrawal to Party
A with 3 working days in advance. Once submitted, the Notice on Withdrawal may not
be revoked without Party A’s written consent.
4.3 After
Party B meets all the preconditions of withdrawal, Party A pays the loan to the
following account opened or specified by Party B in Party A, which shall be
deemed as Party A’s fulfillment of its loan obligation:
Account
Name: Henan Shuncheng
Group Coal Coke Co., Ltd
Account
No.:
Bank of
Deposit: [illegible]
Article
5 Repayment
5.1 Party
B shall pay the interest in full amount and on due time as stipulated in the
Agreement, and repay the principal under the Agreement according to item (2) as
follows:
(1)
One-time repayment upon maturity;
(2)
Amortization of the loan according to the following dates and
amounts:
April, 17th, 2010: RMB 3,000,000 Yuan
(RMB Three Million Yuan Only);
May, 17th, 2010: RMB 3,000,000 Yuan
(RMB Three Million Yuan Only);
June, 17th, 2010: RMB 3,000,000 Yuan
(RMB Three Million Yuan Only).
(If
necessary, separate sheets may be added.)
5.2 Party
B shall deposit sufficient money for the payable principal, interest and other
expenses in the account opened in Party A on the banking date just before the
stipulated repayment date and interest settlement date, and Party B shall
authorize Party A to take the initiative to deduct the corresponding amount on
the repayment date and the interest settlement date.
5.3 If
the money within Party B’s repayment account is insufficient to pay off the
matured debt (including declared maturity ahead of time), Party A is entitled to
decide on the deduction sequences.
5.4 If
Party B requests to prepay all or part of the loan, Party B shall give a written
notice to Party A at least 10 banking days in advance.
5.5 When
prepaying the loan, Party B shall also pay compensation equal to __/_ % of the
prepaid amount to Party A, together with the payment of payable interest and
principal on the prepayment date.
5.6 When
prepaying the loan, Party B shall also pay off the due principal, interest and
all other expenses payable as stipulated in the Agreement up to the prepayment
date. The prepayment of loan shall not be withdrawn once again.
5.7 Party
B shall use the same currency with that under the Agreement for repayment or
prepayment.
Article
6 Realization
of the Right of Pledge
6.1 Under
any of the following circumstances, Party A shall be entitled to exercise the
right of pledge:
(1) Party
B fails to pay off the matured debt (including declared maturity ahead of
time);
(2) The
circumstances stipulated in Item (3) of Article 3.3 occur;
(3) The
circumstances described in articles 8.11 or 8.12 occur, and Party B fails to
provide a corresponding guaranty;
(4) Party
B is applied for bankruptcy or out of business, dissolved, liquidated, stopped
business for internal rectification, revoked of business license or
revoked.
(5) Other
circumstances stipulated by laws and regulations or agreed upon in the Agreement
under which Party A may realize its right of pledge.
6.2 When
Party A disposes of the pledged property according to the provisions of the
Agreement, Party B shall cooperate and not set any barrier.
Article
7 Party
B’s Representations and Warrants
Party B
makes the following representations and warrants to Party A, which shall remain
in effect throughout the valid term of the Agreement:
7.1 Party
B has legal qualifications to be the borrower and the civil legal capacity to
execute and perform the Agreement;
7.2 All
the documents and materials provided by Party B to Party A are true, accurate,
complete and effective in all aspects, without any false record, misleading
statement or gross omission;
7.3 Party
B has obtained all required authorizations or approvals, and the execution as
well as performance of the Agreement won’t violate Party B’s articles of
association, related laws and regulations, or any other contracts which have
been signed or are being performed by Party B;
7.4 Party
B does not conceal any litigation, arbitration or claim in which Party B is
involved;
7.5 Party
B makes the following representations and warrants as for the guaranty of pledge
under the Agreement:
(1) Party
B is the full, valid and lawful owner of the pledged property under the
Agreement and the pledged property is free of disputes over ownership or
management rights.
(2) The
provision of guaranty of pledge by Party B is of its own accord and all
declarations of intention under the Agreement are true.
(3) The
pledged property under the Agreement can be pledged without any restriction in
accordance with law;
(4) Party
B has already made an adequate and reasonable written statement of the defects
of the pledged property under the Agreement;
(5) No
disposal, including but not limited to mortgage, pledge, donation or transfer,
has been set for the pledged property under the Agreement before the Agreement
is signed.
(6) When
Party B fails to perform its obligations under the Agreement as agreed, whether
Party A has any other guaranties (including, but not limited to, guarantee,
mortgage, pledge, letter of guarantee, standby L/C, etc) as for the creditor’s
rights under the Agreement, Party A is entitled to directly request Party B to
undertake the guaranty liability within its guaranty scope, and Party B waives
the right of defense in connection therewith.
Article
8 Party
B’s Undertakings
Party B
hereby undertakes to Party A that:
8.1 Party
B shall withdraw and use the loan in accordance with the term and usage set
forth in the Agreement, and the loan shall not in whatever forms flow to the
stock market or the futures market, neither shall it be used for equity
investment or any other purposes prohibited or restricted by relevant laws and
regulations;
8.2 Party
B shall pay off the loan principal, interest and other payables in accordance
with the provisions stipulated in the Agreement;
8.3
According to Party A’s requirements, Party B shall provide financial accounting
materials such as the financial statement, the income statement and the
statement of cash flow etc, and actively coordinate with Party A to understand
and inspect its production, management and financial conditions;
8.4 For
any merger, separation, decrease of registered capital, transfer of substantial
assets or creditor’s rights, important external investment, substantial increase
in debt financing or any other activities of Party B which may adversely affect
Party A’s rights and interests, Party B shall obtain Party A’s prior written
consent or make proper arrangement for the realization of Party A’s debt to the
satisfaction of Party A. Otherwise, the implementation of the above actions is
not allowed.
8.5 Party
B shall inform Party A timely if any of the following circumstances
occurs:
(1) Any
changes in Party B’s articles of association, business scope, registered
capital, legal representative, address and telephone;
(2) Being
out of business, dissolution, liquidation, stopping business for internal
rectification, revocation of business license, being revoked or being applied
for bankruptcy;
(3)
Having been involved in or may be involved in material economic disputes,
litigation or arbitration, or with properties legally confiscated, seized or
controlled;
(4) Being
engaged in suspected gross cases or economic disputes by members of broad of
directors or incumbent senior managers;
(5)
Disputes over the ownership of the pledged property.
8.6 Party
B shall timely disclose the significant related party transactions to Party
A;
8.7 Party
B shall timely sign for the collection notices sent or delivered in various ways
by Party A;
8.8
Within the valid term of the Agreement, if Party B provides guaranty in whatever
forms to a third party, Party A’s rights and interests shall not be damaged in
any way;
8.9
Within the valid term of the Agreement, Party B shall not donate, transfer or
otherwise dispose of the pledged property under the Agreement;
8.10
Party B shall assume the relevant expenses under the Agreement, including, but
not limited to, lawyer’s service, identification, inspection, evaluation,
warehousing, supervision, transaction and legal expenses;
8.11 If
Party B’s behaviors are sufficient to devaluate the pledged property, Party B
shall stop such behaviors. If the pledged property has been devaluated, Party B
is obliged to restore the value of the pledged property, or to provide a
guaranty corresponding to the reduced value.
8.12
Within the duration of right of pledge, if the pledged property is devaluated,
damaged or lost due to the behavior of a third party, the compensation thus
obtained shall be deposited into the account designated by Party A. In the event
that Party B fails to provide the new guaranty acceptable to Party A, Party B
agrees that Party A may use such compensation to guarantee the performance of
the right of credit under the Agreement. Meanwhile, the portion of the pledged
property not devaluated is still used as the guaranty for the creditor’s rights.
If Party B provides a new guaranty acceptable to Party A, Party A shall refund
the compensation to Party B.
8.13 If
Party A’s right of pledge is infringed or likely to be infringed by any third
party, Party B is obliged to forthwith inform Party A and to assist Party A in
being free from such infringement.
8.14
After the Agreement becomes effective, if Party A transfers the principal
creditor’s right to any third person in accordance with law, Party B shall
undertake the guaranty responsibility within the original scope of guaranty of
pledge.
8.15
After Party B liquidates all its debts under the Agreement, Party B will not
undertake the guaranty responsibility any more. If the liquidation by Party B is
held to be invalid by the judicial body, Party B shall continue to undertake the
guaranty responsibility within the original scope of guaranty of
pledge.
8.16
Without Party A’s written consent, Party B shall not transfer all or part of its
rights or obligations under the Agreement.
Article
9 Party
A’s Undertakings
Party A
makes the following Undertakings to Party B:
9.1 Party
A will grant the loan to Party B in accordance with the provisions of the
Agreement;
9.2 Party
A shall keep confidential the materials and information on Party B’s debts,
finance, production and operations etc. provided by Party B, unless otherwise
agreed upon by the Agreement or stipulated by laws and regulations.
9.3 Party
A is obliged to keep the pledged property in good custody. The agreement on the
custody of the pledged property is specified in the “Supervision Agreement on Commodity
Financing Pledge” signed by and among Party A, Party B and the
Supervisor.
9.4
Within the valid term of the Agreement, if Party A transfers the principal
creditor’s rights legally, it shall inform Party B in time.
9.5 After
the proceeds from disposal of the pledged property under the Agreement are used
to repay all the debts within the scope of guaranty of pledge under the
Agreement, the remaining portion, if any, shall be refunded to Party
B.
Article
10 Breach
of the Agreement
10.1
Party B shall be deemed as breach of the Agreement under any of the following
circumstances:
(1) Party
B fails to repay principal, interest or any other payables under the Agreement,
fails to use the loan for the stipulated purpose, fails to perform any other
obligations under the Agreement, or violates any presentation, warranty or
promise made under the Agreement;
(2) The
guaranty under the Agreement undergoes changes to the disadvantage of Party A’s
creditor’s rights, and Party B fails to provide other pledges accepted by Party
A;
(3) Party
B fails to pay off any of other matured debts (including declared maturity ahead
of time), or non-performance or violation of the obligations under other
contracts have affected or may affect the performance of its obligations under
the Agreement;
(4) Party
B encounters serious business difficulties, which have adversely affected or may
adversely affect the performance of its obligations under the
Agreement;
(5) Party
B’s assets are legally confiscated, seized or enforced compulsorily, which has
affected or may affect the performance of its obligations under the
Agreement;
(6) Party
B is involved in or may be involved in any significant economic dispute,
litigation or arbitration, which has affected or may affect the performance of
its obligations under the Agreement;
(7) Party
B is legally put on file for investigation or adopted coercive measures upon by
judicial authorities, or administrative law enforcement organs and
administration authorities such as industrial and commerce departments and tax
bureaus etc, which has affected or may affect the performance of its obligations
under the Agreement;
(8)
Unusual changes take place in Party B’s main individual investors or main
managers, or they are legally investigated or their personal freedom is
restricted for illegal or criminal activities, which have affected or may affect
Party B’s performance of its obligations under the Agreement;
(9) Party
B is out of business, dissolved, liquidated, stopped business for rectification,
revoked of business license, revoked or applied for bankruptcy;
(10)
Party B causes liability accidents by violation of relevant laws and
regulations, regulatory rules or industrial standards in the fields of food
safety, production safety and environment protection etc, which have affected or
may affect the performance of its obligations under the Agreement;
(11)
Party B makes untrue representation or statements in Article 7 of the
Agreement;
(12) The
contract becomes invalid due to Party B’s fault;
(13) Any
other circumstances which may adversely affect Party A’s rights and interests
under the Agreement.
10.2 If
Party B breaches the Agreement, Party A shall be entitled to adopt any or all
measures as follows:
(1)
Require Party B to rectify the breach within a specified time
limit;
(2) Stop
granting the loan to Party B, and cancel all or part of the amount not withdrawn
yet;
(3)
Declare that all or part of the loan under the Agreement shall become due
immediately and require Party B to repay immediately;
(4)
Directly dispose of the pledged property under the Agreement, and use the amount
thus obtained to first liquidate the creditor’s rights as stipulated in the
Agreement;
(5)
Require Party B to compensate Party A for Party A’s direct loss caused by Party
B’s breach of contract, including, but not limited to, the expenses on the
realization of the creditor’s rights such as attorney fees and legal expenses
etc.
(6) Other
measures as stipulated in laws and regulations or agreed upon in the
Agreement.
10.3 If
Party B fails to repay the matured loan (including declared maturity ahead of
time) in accordance with the stipulated time herein, Party A is entitled to
charge a default interest for the overdue loan from the overdue date, which is
calculated by raising 50 % (30%-50%) on the
basis of the interest rate specified in this contract. For the interests not
paid in due time, the default interest rate herein shall be adopted to calculate
the compound interest.
10.4 If
Party B fails to comply with the usage of the loan stipulated herein, Party A is
entitled to charge a default interest for the amount in default from the breach
date, which is calculated by raising 100 % on the basis of
the interest rate specified in the Agreement. For the interests not paid in due
time within the misappropriation period, the default interest rate herein shall
be adopted to calculate the compound interest.
10.5 In
case that the circumstances listed in Article 10.3 and Article 10.4 happen to
Party B concurrently, instead of simultaneous application, the higher default
interest shall be applied.
10.6 If
Party B fails to repay the matured loan (including declared maturity ahead of
time) in accordance with the stipulated time herein, Party A is entitled to
deduct the corresponding amount from all the domestic currency accounts and
foreign currency accounts of Party B which are opened in Party A or other
branches or sub-branches of Industrial and Commercial Bank of China. If any
currency of deduction is different from that under the Agreement, it shall be
converted in accordance with Party A’s applicable quoted exchange rate at the
date of deduction. Party B shall assume the interest and other expenses accrued
within the period from the date of deduction to the date of liquidation (the
date when Party A converts the deducted amount to the currency of the loan and
actually liquidates Party B’s debt in accordance with the state administrative
policies on foreign exchanges), as well as any balance arising from the exchange
rate fluctuation during this period.
Article
11 Effectiveness,
Alteration, Dissolution and Termination
11.1 The
contract shall come into force on the date when it is signed and stamped by both
parties, and it may not be terminated until the date when Party B fulfills all
its obligations.
11.2 Any
alteration or amendment to the Agreement shall be made in written form through
negotiation of two parties. The alternation clauses or agreements shall be
deemed as an integral part of the Agreement, which shall have the same legal
effect.
11.3
After Party B fulfills all its obligations under the Agreement, Party A shall
inform the supervisor to release the pledge.
11.4 The
alteration or dissolution of the Agreement shall not affect the rights of
parties to claim for damages. The dissolution of the Agreement shall not affect
the validity of the dispute settlement clause.
Article
12 Dispute
Settlement
12.1 The
formation, validity, construction, performance and dispute settlement shall be
governed by law of the People’s Republic of China. Any dispute or controversy
arising out of or in connection with the Agreement shall be settled through
negotiation. In case no settlement can be reached, the dispute or controversy
shall then be settled according to Item (2) of the
following:
(1)
Arbitration, which shall be conducted in_______/_____ (the full name of the
arbitration committee) in ______/_____ (the place of arbitration) according to
the commission’s arbitration rules in effect; the arbitration award rendered
shall be final and binding upon both parties.
(2)
Litigation, which is governed by the people's court at Party A’s place of
domicile.
Article
13 Miscellaneous
13.1 No
failure on the part of Party A to exercise, partial exercise of or delay in
exercising any right under the Agreement shall constitute as a waiver or change
thereof or of any other rights or preclude its further exercise thereof or of
any other rights.
13.2 The
invalidity or unenforceability of any provision of the Agreement shall not in
any way affect the validity or enforceability of the remaining provisions or the
validity of the whole contract.
13.3 As
required by relevant laws and regulations, or the financial regulators, Party A
shall be entitled to provide information about the Agreement or Party B to
Credit Information System of People’s Bank of China and other credit information
databases legally established, for agencies and individuals with proper
qualifications to inquire and use. Party A shall also be entitled to, for the
purpose of the formation and performance of the Agreement, inquire Party B’s
related information through Credit Information System of People’s Bank of China
and other credit information databases legally established.
13.4 The
terms “Related Parties”, “Related Parties Relationship” “Related Party
Transactions”, “Main Individual Investors” and “Key Managers” referred to in the
Agreement shall be constructed to have the same meaning with those in Accounting Standards for Business
Enterprises - Disclosure of Related Party Relationships and
Transactions and
its subsequent amendments.
13.5 This
contract is executed in duplicate, and each party holds one which has the same
legal effect.
Article
14 Other
Terms
The loan under the Agreement
may not be used for equity investment in the stock market or the futures market
etc or for any other purposes.
Article
15 Appendices
15.1 The
appendices hereto are an integral part of the Agreement, which shall have the
same legal effect.
15.2 The
appendices hereto include:
_____________/______________________.
Party A:
(Seal)
Officer
(Authorized Representative): /s/ Xxxxxxx Xxx
Party B:
(Seal)
Legal
Representative (Authorized Representative): /s/ Wang
Xinshun
Date
of contract: Dec.19th,
2009
