Unofficial English Translation) Capital Loan Agreement
Exhibit
99.11
(Unofficial English
Translation)
Contract
serial no.: Xxxx Xxxxx New Loan (2009) No. 5
Loan
type: Floating capital loan
Borrower:
Xi’an Orient Petroleum Group Co., Ltd.
Address:
Emerald Tower, Ste. 2201, No. 1 Xingqing Road, Xi’an City
Legal
representative: Anping Yao
Lender:
China Construction Bank Xi’an New City Office
Address:
Xx. 00 Xxx Xxxxx Xxxx, Xx’an City
Legal
representative: Xxxxxxx Xxxx
This
Capital Loan Agreement (the “Agreement”) is entered by Borrower and Lender
pursuant to relevant laws and regulations through consultation of the
parties.
Article 1
Loan Amount
Borrower
intends to take a loan of XXX 00 million from Party B (the “Loan”).
Article 2
Use of Loan
Borrower
shall only use the Loan for working capital turnover. Borrower shall
not alter the loan purpose without Lender’s written consent.
Article 3
Repayment Period
The term
of the Loan is one year, starting from April 26, 2009 to April 25, 2010. The
payment of the Loan begins on the first day of the loan period.
Article 4
Interest Rates
|
(1)
|
The
Loan is subject to an annual floating interest of 10% above the base rate
on the date that the loan period
begins.
|
|
(2)
|
If
Borrower fails to use the Loan for its intended purpose, the interest rate
shall be adjusted upwards by 100%. If Borrower fails to timely pay back
the loan, the interest rate shall be adjusted upwards by 50%. If both
wrongful use and late payment are present, the penalty interest rates
shall be compounded.
|
|
(3)
|
The
beginning date of the loan period means the date on which the Loan is
distributed to Borrower’s designated account. The initial interest rate on
the date of distribution shall be the rate set by the People’s Bank of
China on that date. Thereafter, the interest rate shall be adjusted in
accordance with announcements from the People’s Bank of
China.
|
|
(4)
|
Loan
interest shall be calculated starting from the date of distribution to
Borrower’s designated account. Interest shall accrue daily, with the daily
interest rate being the annual interest rate divided by 360. If Borrower
is unable to make timely interest payments on the interest settlement
dates as specified in this Agreement, compound interest shall accrue
starting from the day after interest payments are
due.
|
|
(5)
|
Interest
shall be paid on a monthly basis on the 20th
day of each month.
|
Article 5
Payment of Loan
|
(1)
|
Prerequisites
|
Lender
shall distribute the Loan only if the following conditions are met, unless
Lender waives some or all of those conditions:
|
|
i.
|
Borrower
has completed all necessary procedures and obtained all approvals in
connection with the Loan;
|
|
|
ii.
|
Borrower
has valid collateral or guarantee available for the Loan, if such
collateral or guarantee is required by the
Agreement;
|
|
|
iii.
|
Borrower
has opened an account for receiving and repaying the Loan as required by
Lender;
|
|
|
iv.
|
Borrower
has not committed any violations of this Agreement or any violations that
may have impact on Lender’s rights;
|
|
|
v.
|
There
is no laws or regulations against the Loan;
and
|
|
|
vi.
|
The
following payment schedule is observed: repayment of the Loan shall adhere
to paying back interest before principal. However, if principal payments
are 90 days overdue, Borrower may pay back principal first, then
interest.
|
|
(2)
|
Borrower
shall pay interest due on the interest settlement date. Any outstanding
interest should be paid in full along with the final loan
payment.
|
|
(3)
|
Borrower
shall repay the Loan by the expiration of the Loan
term.
|
|
(4)
|
Borrower
shall transfer payments to Lender’s designated account by the date
payments are due. Borrower may transfer from the account in which it
received the loan (and for which Lender has the right of setoff), or from
another account.
|
|
(5)
|
Borrower
may repay the Loan before it is due by sending a 30-day-notice to Lender.
Upon the approval of Lender, Borrower may repay the Loan, in part or in
full, before it is due. Borrower shall calculate interest owed based on
the actual number of days from the beginning date of the loan period.
Lender shall not receive compensatory fees in case Borrower repays the
Loan before it is due.
|
Article 6
Borrower’s Representation
|
(1)
|
Borrower’s
Rights
|
|
|
i.
|
Borrower
has the right to demand that Lender distribute loans in accordance with
this contract.
|
|
|
ii.
|
Borrower
has the right to utilize the loan in accordance with this
contract.
|
|
|
iii.
|
Borrower
has the right to request an extension of the repayment
period.
|
|
|
iv.
|
Borrower
has the right to compel confidentiality on trade secret from Lender,
except otherwise required by law.
|
|
|
v.
|
Borrower
has the right to demand that Lender’s employees refuse bribes, and to
report Lender’s violations to the relevant governmental
authority.
|
|
(2)
|
Borrower’s
Obligations
|
|
|
i.
|
Borrower
has the obligation to timely repay principal with accrued interest, and
pay expenses set forth in this
Contract.
|
|
|
ii.
|
Borrower
has the obligation to produce business, financial, profit/loss data, and
accounting records as requested by Lender, including within the first 30
days of the first month of each annual
quarter.
|
|
|
iii.
|
Borrower
has the obligation to notify Lender in writing within 10 days after a
change in company name, legal representative, address, or registered
capital, and provide the relevant
documentation.
|
|
|
iv.
|
Borrower
has the obligation to use the Loan for its intended purpose and not any
other purpose or for any illegal activity or anything that violates this
Agreement.
|
|
|
v.
|
Borrower
has the obligation to obtain any necessary government environmental
protection permits if the Loan is used for manufacturing activity or
construction of facilities.
|
|
|
vi.
|
Borrower
has the obligation to refrain from using any Loan-derived assets to
guarantee any third-party loans while the Loan has not been fully
repaid.
|
|
|
vii.
|
Borrower
has the obligation to notify Lender if more than 10% of Borrower’s assets
are involved in a group
transaction.
|
|
|
viii.
|
Borrower
has the obligation to obtain necessary government approvals, ensure no
violations, and guarantee adherence to the project
schedule.
|
Article 7
Lender’s Representation
Lender’s
Rights and Obligations
|
|
i.
|
Lender
has the right to demand that Borrower timely pay back the loan, including
principal, interest, and loan expenses, as well as demand that Borrower
observe its other enumerated
duties.
|
|
|
ii.
|
Lender
has the obligation to distribute the Loan in accordance with this
contract, unless some other factor renders this
impossible.
|
|
|
iii.
|
Lender
has the obligation to maintain confidentiality of Borrower’s submitted
records, unless disclosure is compelled by law or
regulation.
|
|
|
iv.
|
Lender
has the obligation to refrain from giving or accepting bribes from
Borrower’s employees.
|
|
|
v.
|
Lender
has the obligation to act in good faith as not to harm Borrower’s legal
interests and operations.
|
Article 8
Breach and Remedy
|
|
1.
|
Breach
of Agreement by Lender
|
|
|
i.
|
Borrower
has the right to request payment of the Loan if Lender fails to distribute
the Loan without justified reasons.
|
|
|
ii.
|
Borrower
has the right to refund of any illegally charged interest or fees by
Lender.
|
|
|
2.
|
Breach
of Agreement by Borrower
|
|
|
i.
|
Any
of Borrower’s conduct that violates any terms or conditions under the
Agreement constitutes breach of
agreement.
|
|
|
ii.
|
Any
representation by Borrower of non-performance of the Agreement constitutes
breach of agreement.
|
|
|
iii.
|
Any
threat to Lender’s interest, including: reduction in Borrower’s registered
capital, bankruptcy filing, production stoppage, breach of the Agreement,
using Loan to guarantee a third-party loan, breach of Guarantee Contract,
breach of Mortgage Contract, failure to approve Guarantor,
etc.
|
|
|
3.
|
In
the event of a violation or threat to Lender’s interest, Lender has the
right to: stop loan distribution, demand immediate payment of overdue
principal or interest, impose a payment of 0.05% of the unpaid Loan as a
penalty, accelerate the loan to require immediate repayment of the
outstanding balance, invoke setoff against Borrower’s China Construction
Bank account, require Borrower to attach a new guarantor,
etc.
|
Article 9
Miscellaneous
|
|
1.
|
Borrower
shall be responsible for all attorney, registration, notarization,
processing, etc. fees associated with producing this Contract. Lender
shall be responsible for all expenses associated with the exercise of its
rights.
|
|
|
2.
|
Borrower
agrees that its credit data may be transmitted to the People’s Bank of
China credit database.
|
|
|
3.
|
If
Borrower commits violations, Lender has the right to report them to the
media or other entities.
|
|
|
4.
|
The
rights and duties set forth in this Contract are not affected by rights or
duties from any other instrument.
|
|
|
5.
|
If
Borrower has other overdue debts with China Construction Bank, Lender may
setoff against those debts with Borrower’s account designated for this
Loan, without prior notice.
|
|
|
6.
|
In
the event of dispute, the matter shall be settled in People’s Court at
Lender’s location.
|
Borrower:
Xi’an Orient Petroleum Group Co., Ltd. (Signature & Seal)
Lender:
China Construction Bank Xi’an New City Office (Signature &
Seal)
Date:
April 26, 2009
