EXHIBIT 10.113
REGISTERED CAPITAL CONTRIBUTION AND
AGENCY AGREEMENT
THIS REGISTERED CAPITAL CONTRIBUTION AND AGENCY AGREEMENT
(the "Agreement") is dated as of this 26th day of March, 1997
by and among Tangshan Panda Heat and Power Company, Ltd.
("Tangshan Panda"), Tangshan Pan-Western Heat and Power Company,
Ltd. ("Tangshan Pan-Western"), Tangshan Cayman Heat and Power
Company, Ltd. ("Tangshan Cayman") and Tangshan Pan-Sino Heat
Company, Ltd. ("Tangshan Pan-Sino") each a Chinese equity joint
venture company (collectively referred to herein as the "JV
Co's") and Luannan County Heat and Power Plant ("LCHPP"),
Tangshan Luanhua (Group) Co. ("TLG") and Luannan County Heat
Company ("LCHC") (collectively referred to herein as the "County
Partners") and Pan-Western Energy Corporation, LLC ("Pan-Western"
or the "Agent").
WITNESSETH:
RECITALS:
1. Pan-Western and the County Partners have formed the JV Co's
with approximate ownership interests held as indicated below:
JV Co. County Partner Pan-Western
Tangshan Panda LCHPP - 12.08% 87.92%
Tangshan Pan-Western TLG - 12.08% 87.92%
Tangshan Cayman LCHPP - 6.04% 87.92%
TLG - 6.04%
Tangshan Pan-Sino LCHC - 12.08% 87.92%
2. Pan-Western, the JV Co's and the County Partners wish to
enter into this Agreement to provide for the contribution of
certain assets owned by the County Partners to the JV Co's (as a
Registered Capital contribution) and the allocation of value of
an appropriate amount thereof to each JV Co on behalf of their
respective County Partner (in order to establish a basis for the
issuance of a certificate of Registered Capital verification of
the County Partners' Registered Capital contributions in
proportion to the ownership interest of each of LCHPP, TLG and
LCHC to the JV Co's) to provide for the apportionment of the
contribution of Registered Capital by the County Partners and the
allocation of the value of such assets on terms and conditions
consistent with the documents governing formation of the JV Co's
and the obtaining of international financing for the Project, and
applicable laws, rules, and regulations of The Peoples Republic
of China (the "PRC"), and to provide for the appointment of Pan-
Western as "Agent" to act for and on behalf of the County
Partners for the purpose of finalizing the international
financing arrangements for the Project and in the initial
capitalization of the JV Co's.
3. Each of Pan-Western, the County Partners and the JV Co's
shall derive substantial benefit from the obtaining of the
financing for the Project and from this Agreement.
NOW THEREFORE, in consideration of the mutual benefits to be
derived and the mutual undertakings and promises described below,
the Parties hereto agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following terms shall have
the following respective meanings:
"Registered Capital Contribution" shall mean a contribution
to the JV Co's of value in cash or kind as satisfactory to the JV
Co's.
"Registered Capital Contribution Date" shall mean the date
of receipt by the JV Co's of cash contributions from each of Pan-
Western and the County Partners in an amount sufficient to
constitute their proportionate contribution of Registered Capital
funds thereto, as required pursuant to the equity joint venture
contract entered between an individual County Partner and Pan-
Western to form each JV Co, respectively.
"Equity Share" shall mean with respect to each person, the
percentage ownership amount set forth in the Recital 1 above.
"Project" means two 50MW coal-fired cogeneration power
production plants to be constructed by the JV Co's in Luannan
County, Tangshan Municipality, Hebei Province, China, a steam and
hot water generation and distribution facility and other related
facilities necessary for the development, construction and
operation of the Plants.
"Project Documents" shall mean collectively, all contracts,
agreements, instruments or other documents arising from or
related to the Project.
SECTION 2. OBLIGATIONS
2.1 Registered Capital Contribution. On the Registered Capital
Contribution Date, each Party hereto shall make an Registered
Capital Contribution in an amount equal to the such Party's
Equity Share times the total equity required to be contributed to
the JV Co in accordance with the documents governing formation of
that JV Co. The obligation of each Party hereto to make the
Registered Capital Contribution required to be made by it under
the immediately preceding sentence is a several obligation of
each such Person.
2.2 County Partners' Capital Contribution. The County Partners
will be deemed to have made their Registered Capital Contribution
to the JV Co's as a result of fulfillment of their respective
obligations under each Transfer Contract of Right to Use State-
Owned Land (the "Transfer Contract") for each of the four parcels
of land (the total dimension of which is 501,258.19 square meters
or equivalent to 751.88 Chinese mu, with approval serial number
for Application of Grant of Right to Use State-Owned Land being
Ji-▇▇▇▇▇-▇▇▇ [1996]60, Ji-▇▇▇▇▇-▇▇▇ [1996]61, Ji-▇▇▇▇▇-▇▇▇
[1996]62 and Ji-▇▇▇▇▇-▇▇▇ [1996]63 respectively), as well as
under Purchase Contract for certain water-▇▇▇▇▇, buildings and
structures, vehicles and electric and machinery equipment and
land use right for the land occupied by such water-▇▇▇▇▇,
originally owned by LCHPP. For the purpose of applying such
proceeds to the County Partners' capital contributions to
Tangshan Panda, Tangshan Pan-Western, Tangshan Cayman and
Tangshan Pan-Sino, Tangshan Pan-Sino will purchase such land use
rights from the County Partners under each Transfer Contract and
Tangshan Cayman will purchase such assets from LCHPP under such
Purchase Contract. The proceeds attributable to such contribution
shall be subject to the terms of this Agreement such that:
2.2.1 Pan-Western will be the designated agent for the County
Partners, empowered to apportion the proceeds of such sale to the
account and for the benefit of the individual County Partners in
such amounts as are required to be contributed to each JV Co in
accordance with that County Partner's Equity Share therein;
2.2.2 Pan-Western shall provide an accounting of the
apportionment of funds to the County Partners to be reflected in
the books and records of the JV Co's, however, no physical
payment for the transfer and the purchase shall be made to County
Partners by Tangshan Cayman and Tangshan Pan-Sino respectively
upon transfer of land use rights or title to such assets as
stipulated under the above-mentioned Transfer Contracts and
Purchase Contract after their execution, the intent of the
Parties hereto being solely to provide such proceeds for the
required capitalization of the JV Co's;
2.2.3 It is the clear intent and understanding of the Parties
hereto that the total of all proceeds from the above mentioned
Transfer Contracts and Purchase Contract be allocated among and
paid to the JV Co's through the Agent in proportion to the Equity
Share of the County Partners therein and that the Agent is
obligated to make such application and allocation in the future.
2.3 If eventually the Agent has failed to allocate among and pay
to the JV Co's the aggregate amount of proceeds from the above
mentioned Transfer Contracts and Purchase Contract in proportion
to the Equity Share of the County Partners therein, County
Partners shall have the right to rescind such Transfer Contracts
and Purchase Contract, and consequently the relevant land use
rights and title to assets shall revert to County Partners after
such rescission.
SECTION 3. REPRESENTATIONS AND WARRANTIES
Each of the JV Co's, the County Partners and Pan-Western,
severally and on their own behalf represents and warrants that:
a) It is a legal entity duly organized, validly existing and in
good standing under the laws of the jurisdiction in which it is
registered and it has full corporate power and authority to
conduct its business, to own its properties, and to execute and
deliver, and to perform its obligations under this Agreement.
b) The execution, delivery, and performance by it of this
Agreement is duly authorized and no consent or authorization of ,
filing with, or any other act is required in connection with its
execution, delivery, performance, validity or enforceability of
this Agreement by such person.
c) This Agreement has been duly executed, and upon delivery
shall constitute the legal, valid and binding obligation of such
person, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting the
rights of creditors and subject to general equitable principles.
SECTION 4. AGENCY
Pan-Western is hereby appointed by each of the County Partners,
severally, to act for and in their behalf with respect to the
handling of any funds, and the accounting for such funds through
their contribution thereof to or on the books of the JV Co's in
the amount required based upon the actual proportionate ownership
of that County Partner to the designated JV Co. Pan-Western
accepts such appointment to so act, in accordance with the terms
of this Agreement and the Project Documents.
SECTION 5. MISCELLANEOUS
5.1 No Waiver. No failure on the part of the Agent, the JV
Co's or the County Partners to exercise and no delay in exercise
and no course of dealing with respect to, any right, remedy,
power or privilege provided herein or by law, rule, regulation or
policy shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right, remedy, power or privilege
preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege.
5.2 Severability. If any provision hereof is found to be
invalid or unenforceable in any jurisdiction, then, to the
fullest extent permitted, (i) the other provisions hereof shall
remain in full force and effect in such jurisdiction and shall be
liberally construed in order to carry out the intentions of the
Parties hereto as nearly as may be possible, and (ii) the
invalidity or unenforceability of any provision hereof in any
jurisdiction shall not affect the validity or enforceability of
such provisions in any other jurisdiction. If any provision or
provisions of this Agreement shall be held to be invalid, illegal
or unenforceable, the validity, illegality or unenforceability of
the remaining provisions hereof shall not in any way be affected
or impaired thereby.
5.3 Texts. This Agreement is written in both English and
Chinese, and the two versions shall be equally authentic.
5.4 Applicable Law. The law of the People's Republic of
China shall be the applicable law for the formation, validity and
construction of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this
Registered Capital Contribution and Agency Agreement to be duly
executed and delivered as of the date first above written.
TANGSHAN PANDA HEAT AND LUANNAN COUNTY HEAT
POWER COMPANY, LTD. POWER PLANT
By: /s/ By:
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name:
Title: Legal Representative Title:
Address for Notice: Address for Notices:
TANGSHAN PAN-WESTERN HEAT TANGSHAN LUANHUA
AND POWER COMPANY, LTD. (GROUP) CO.
By: /s/ By:
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name:
Title: Legal Representative Title:
Address for Notice: Address for Notices:
TANGSHAN CAYMAN HEAT LUANNAN COUNTY HEAT
AND POWER COMPANY, LTD. COMPANY
By: /s/ By:
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name:
Title: Legal Representative Title:
Address for Notice: Address for Notices:
TANGSHAN PAN-SINO HEAT PAN-WESTERN ENERGY
COMPANY, LTD. CORPORATION, LLC
By: /s/ By:
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name:
Title: Legal Representative Title:
Address for Notice: Address for Notices:
