PLEDGE CONTRACT FOR LOANS SECURED USING INSTITUTIONAL DEPOSIT CERTIFICATES (SINGLE LOAN) SHANGHAI PUDONG DEVELOPMENT BANK
Exhibit 10.38
No.: YZ7501200928065401
PLEDGE CONTRACT FOR LOANS SECURED
USING INSTITUTIONAL DEPOSIT CERTIFICATES
USING INSTITUTIONAL DEPOSIT CERTIFICATES
(SINGLE LOAN)
SHANGHAI PUDONG DEVELOPMENT BANK
Pledge Contract for Loans Secured Using Institutional Deposit Certificates – For Single Loan only
Pledge Contract for Loans Secured
Using Institutional Deposit Certificates
Using Institutional Deposit Certificates
| Pledgor: | MI Energy Corporation |
| Pledgee: | Shanghai Pudong Development Bank Co., Ltd., Dalian Branch |
WHEREAS:
To ensure the full performance by a debtor of its obligations under the master contract (see
Article 9 hereof for details) in a timely manner, and to safeguard the repayment of debts to its
creditor, the Pledgor voluntarily provides the collateral hereunder as security for its pledge.
The Pledgor and the Pledgee have completed the formalities in relation thereto in accordance with
the Provisions for the Administration of Loans Secured Using Institutional Time Deposit
Certificates, and the Pledgee has received a letter of confirmation for time deposit and an
institutional time deposit certificate both issued by the bank where the deposit is placed.
After examination, the Pledgee agrees to accept the security for pledge as provided by the
Pledgor. In order to define the rights and obligations of the parties hereto, this Contract is
hereby formulated for the purpose of their mutual observance.
Article 1 Collateral
The collateral hereunder is an institutional time deposit certificate (see Article 9 hereof for
specific details).
Article 2 Principal Debt and Security for Pledge
1. Principal debt secured
(1) The principal debt secured hereunder shall be stipulated in details in Article 9 of this
Contract.
(2) In this Contract, the terms “due” and “expires” shall include any circumstance where a
creditor announces that the principal debt becomes due prior to its expiry.
2. Scope of security
In addition to the principal debt set forth in this Contract, the scope of security hereunder shall
also include any interests accrued on the principal debt (the interests referred to in this
Contract shall include interests, penalty interests and compound interests), default penalties,
damages compensation, handling fees and other expenses resulting from the execution or performance
of this Contract, expenses incurred by a creditor for the realization of its security right and
debt (including without limitation, disposal costs, taxes, litigation costs, auction fees,
Pledge Contract for Loans Secured Using Institutional Deposit Certificates – For Single Loan only
legal
costs and travelling expenses), and the amount of security deposit required to be increased by a
creditor but has not been increased after the master contract becomes effective.
3. Priority of claim for payment
The Pledgee shall be entitled to the first priority of claim for payment over the collateral. The
Pledgee may directly exercise its pledge right hereunder without first exercising other security
rights (if any) over a debtor to which it is entitled. The Pledgor agree that the failure on the
part of the Pledgee to exercise or to timely exercise any of its own and debtor’s rights under
other loan documents, including without limited to rights to the repayment of debts, security, and
remedies for breach of contract, shall in no circumstances be deemed as a delay or waiver thereof,
nor shall it affect the full performance by the Pledgee of its rights hereunder.
4. Alteration of the master contract
The rights and interests of the Pledgee hereunder shall not be affected due to any extension given
by the Pledgee to a debtor, any delay in repayment, any modification, alteration or replacement of
provisions of the master contract by the Pledgee and the debtor. If any such circumstances occurs,
it shall be deemed to have obtained the prior consent from the Pledgor and no liabilities
undertaken by the Pledgor in respect of security shall be mitigated nor relieved therefrom.
If the master contract is concluded for the provision of services by a creditor to a debtor in
relation to the issuance of letters of credit, letters of undertaking or standby letters of credit,
any amendments to such letters of credit, letters of undertaking or standby letters of credit under
the master contract can be made without the consent of or the notification separately made to the
Pledgor. Such amendments shall be deemed to have been approved in advance by the Pledgor and no
liabilities undertaken by it in respect of security shall be mitigated nor relieved therefrom.
Article 3 Custody and Return of the Collateral
1. Custody of the collateral
The collateral shall be under the custody of the Pledgee during the period from the date on which
the collateral hereunder are delivered by a deposit bank to the Pledgee to the date on which any
debt of the debtor under the master contract is settled in full. This Contract shall become
effective from the date on which the collateral is in actual possession of the Pledgee.
2. Return of the collateral
If any debt secured by the collateral is fully settled, the Pledgee may return the collateral
directly to the deposit bank in exchange for the return of an account opening certificate from the
deposit bank, and it shall then return such account opening certificate to the Pledgor. The
Pledgee shall be deemed to have returned the collateral regardless of whether the Pledgor gives
back the “receipt for the account opening certificate (if any)”.
Pledge Contract for Loans Secured Using Institutional Deposit Certificates – For Single Loan only
3. Exceptions for custody and return of the collateral
(1) In the event that the redemption date of the collateral expressly stated is earlier than
the due date of the principal debt, the Pledgee and the Pledgor agree that the Pledgee shall
have the right to redeem the collateral, and any amount from such redemption shall be used
for the settlement of the principal debt or shall be deposited to the security deposit
account designated by the Pledgee as security deposit so as to guarantee the principal debt.
The parties hereto agree that they will not separately sign a pledge contract for security
deposit upon the occurrence of the latter circumstance. If no settlement has been made to
the Pledgee upon expiry of the performance period of the principal debt, the Pledgee shall
have the priority of claim in respect of such security deposit.
(2) In the event that the due date of the principal debt is earlier than the redemption date
of the collateral expressly stated, and no settlement has been made to the Pledgee, the
Pledgee shall have the right to withdraw any amount of such time deposit certificate in
advance to settle the principal debt, and any loss of interests arising from the early
withdrawal shall be solely borne by the Pledgor on a voluntary basis. To the extent that
the collateral hereunder is a deposit certificate issued by any bank other than the Pledgee,
the Pledgor agrees to adopt any other additional security measures recognized by the Pledgee
pursuant to its requirements if the circumstance described in this paragraph occurs.
Article 4 Disposal of the Collateral and Realization of Pledge Right
1. The Pledgee shall have the right to dispose of the collateral so as to realize pledge right if
one of the following circumstances occurs:
(1) if the debtor is in default under the master contract;
(2) if any circumstance where the creditor may receive the repayment of debts in advance
under the master contract occurs;
(3) if the Pledgor is in default hereunder.
2. In the event of any circumstance for disposal of the collateral as agreed in this Contract, the
Pledgee shall have the right to deal with it in the following manners: where the currency of the
principal debt is consistent with that of the collateral, the collateral shall be deducted for the
settlement of debt or for making up the security deposit for external payment. Where the currency
of the principal debt is inconsistent with that of the collateral, then the currency of the
collateral shall be converted into the currency of the principal debt according to the relevant
exchange rate solely determined by the Pledgee for the purpose of settling debt or making up the
security deposit for external payment.
3. If advances have been made by the Pledgee after the disposal of collateral, all proceeds from
the disposal shall be used for the settlement of all debts secured by the collateral. If no
advance has been incurred by the Pledgee and the Pledgor is not a debtor, all proceeds from the
disposal shall be used for the addition to the security deposit provided by
Pledge Contract for Loans Secured Using Institutional Deposit Certificates – For Single Loan only
the debtor, and shall
be credited into the special security deposit account of the debtor for external payment or as
security deposit for any possible advances to be made by the Pledgee in future.
4. Any amount remaining after the disposal by the Pledgee of the collateral shall be returned to
the Pledgor.
Article 5 Representations and Warranties
The Pledgor represents and warrants to the Pledgee that:
(1) the Pledgor is a separate legal entity. It has all necessary rights and capacity to
perform its obligations hereunder and undertake civil liabilities independently in its own
name.
(2) the Pledgor has the right to execute this Contract, and has been given all authorities
and approvals that are necessary for the execution of this Contract and the performance of
its obligations hereunder. All provisions of this Contract are expressed in a way that
reflects the actual intention of the Pledgor, and are legally binding upon it.
(3) the Pledgor warrants that it will be abided by laws and regulations. The execution and
performance of this Contract do not violate any laws that shall be observed by the Pledgor
(the laws referred to herein shall include laws, regulations, rules, local regulations and
judicial interpretations), its articles of association, as well as the relevant documents,
decisions and rulings of competent authorities, nor do they contradict with any other
obligations under any contracts, agreements or commitments executed by the Pledgor.
(4) the Pledgor warrants that all financial statements issued by it (if any) shall be in
compliance with the laws of the PRC (excluding Hong Kong, Macao Special Administrative
Region and Taiwan), which reflect its financial position in a true, complete and fair
manner. All materials (including but not limited to account opening certificates,
agreements, letters of authorization and seal specimen, etc.), documents and information
provided by the Pledgee during the execution and performance of this Contract by the Pledgor
are true, valid, accurate, complete and without any facts being withheld.
(5) the Pledgor warrants to complete all filings, registrations or other formalities that
are necessary for the validity and legal performance of this Contract, and to pay any taxes
and expenses in relation thereto.
(6) there has been no material adverse change in the operation and financial position of the
Pledgor since the latest audited financial statements.
(7) the Pledgor has disclosed to the Pledgee all facts and circumstances that are or should
have been known to it and that are of significance to the Pledgee for its decision to grant
the facility under the master contract.
Pledge Contract for Loans Secured Using Institutional Deposit Certificates – For Single Loan only
(8) the Pledgor confirms that no payment in arrears, including but not limited to the wages
of employees, medical and disabled allowances, pensions for the disabled or for family of
the deceased, and compensations, has been or will be incurred on the date of this Contract
and during the performance hereof.
(9) the Pledgor warrants that there is no circumstance or event which has or may have
material adverse effects on its ability to perform this Contract.
Article 6 Matters Agreed upon by the Parties hereto
1. Obligations of the Pledgor
(1) The Pledgor undertakes that it will not take the following actions without the prior
consent of the Pledgee:
(i) sell, present as a gift, lease, lend, transfer, mortgage, pledge or otherwise
dispose of all or substantial part of its major assets.
(ii) materially change its operational system or shareholding structure, including
without limitation, acting as contractor, leasing, joint operation, transformation
into a company or joint stock company, equity transfer, amalgamation (or merger),
equity (or cooperative) joint venture, spin-off, establishment of subsidiaries,
transfer of property ownership and reduction of capital, etc.
(iii) amend its articles of association, change the scope of its business or its
principal business.
(iv) provide guarantees for third parties, which would have material adverse effects
on its financial position or its ability to perform the obligations hereunder.
(v) apply for the reorganization, bankruptcy or dissolution of the company.
(vi) sign any contracts/agreements which would have material adverse effects on its
ability to perform the obligations hereunder or assume the relevant obligations
having such effects.
(2) The Pledgor undertakes that it will notify the Pledgee immediately of any of the
following events, if any, on the date thereof, and shall, within five (5) bank business days
from the date of such event, deliver to the Pledgee the original of the notice (to be
affixed with the common chop):
(i) the occurrence of any event which would render the representations and
warranties given by the Pledgor hereunder untrue and inaccurate.
Pledge Contract for Loans Secured Using Institutional Deposit Certificates – For Single Loan only
(ii) the Pledgor or its controlling shareholder, actual controller or its associates
being involved in litigations, arbitration, or their respective assets being
detained, seized, frozen, enforceable, or other measures with the same effect being
taken against them, or its legal representative, directors, supervisors and senior
management being involved in litigations, arbitrations or other compulsory measures.
(iii) any change in matters such as the legal representative of the Pledgor or its
authorized agents, persons-in-charge and principal financial controller,
correspondence address, name of enterprise, and place of business.
(iv) the application by other creditors for the reorganization and bankruptcy of the
Pledgor, or the revocation by the competent supervising authorities.
(3) The Pledgor undertakes that it will at all times cooperate and provide the corresponding
financial information according to the requirements of the Pledgee during the execution and
performance of this Contract.
(4) The Pledgor confirms that it shall not exercise the right to claim for debts and any
other related rights to which it is entitled in connection with the performance hereof
before the debtor settles all its debts under the master contract to the Pledgee.
(5) Upon request by the Pledgee, the Pledgor shall complete the notarization that is
enforceable with the notarial authority designated by the Pledgee. The Pledgor shall
voluntarily accept the enforceability of such notarization.
(6) When the Pledgee exercises the pledge right pursuant to this Contract, the Pledgor shall
actively cooperate with the Pledgee to complete the formalities in relation thereto so as to
guarantee the realization of pledge right by the Pledgee.
(7) The Pledgor shall bear all costs in relation to the collateral and the realization of
pledge right.
(8) If there is obviously a possibility of any reduction in the value of collateral due to
the factors such as the deterioration of business operation of the bank from which the
collateral is provided, the Pledgor shall, upon request from the Pledgee, provide any
security recognized by the Pledgee and whose value is equivalent to the amount so reduced or
adopt other remedial measures.
(9) The Pledgor shall not lose the collateral and/or apply for the issuance of a public
summon in respect thereof during the term of the pledge.
(10) If the master contract is concluded for the provision of services by a creditor to a
debtor in relation to the issuance of letters of credit, letters of undertaking or standby
letters of credit, the Pledgor undertakes that it will be jointly and severally liable for
making up the security deposit (including making up the security deposit in advance) when
the debtor fails to do so as required. The making up of the security deposit by the Pledgor
shall not relieve its liabilities hereunder in respect of security. Any loss
Pledge Contract for Loans Secured Using Institutional Deposit Certificates – For Single Loan only
incurred by
the Pledgor during the performance of its liabilities for making up the security deposit
(including loss of interests) shall be solely borne by the Pledgor.
(11) If the Pledgor is not a debtor in the master contract, the Pledgor undertakes that it
will unconditionally assume a joint and several liability together with the debtor in
respect of the portion of debts that has not been settled in one of the following
circumstances:
(i) if the principal debt secured has not been fully settled after the Pledgee
exercises the pledge right pursuant to this Contract.
(ii) if this Contract has not become effective, is invalid or revoked due to the
fault of the Pledgor.
2. Deduction requirements
(1) When the Pledgor has debts payable that are due, the Pledgee shall have the right to
deduct funds directly from any account opened by the Pledgor with Shanghai Pudong
Development Bank for the settlement of the debts payable that are due.
(2) Unless otherwise required by the competent authorities of the State, any amount from the
deduction shall first be used for the settlement of any unpaid cost of the Pledgor and the
debtor that is due, then any unpaid interest that is due and finally any unpaid principal
that is due.
(3) If the currency of any amount from the deduction is inconsistent with that of the amount
required to be settled, the Pledgee shall have the right to make settlement in/purchase
foreign exchange pursuant to the relevant exchange rate solely determined by it, and any
risk relating to exchange rate shall be solely borne by the Pledgor.
3. Proof of debt
Any debt secured by the collateral shall be evidenced by the accounting documents issued and
recorded by the Pledgee according to its business requirements, which will be regarded as
valid proof for such debt.
4. Notice and delivery
(1) Any notice to be given by a party hereto to the other party shall be sent to the address
set forth in the signature page of this Contract until the other party notifies the change
of such address in writing. So long as any notice is sent to the above address, it shall be
deemed to have been given: if sent by registered mail to the principal place of business, on
the seventh (7th) bank business days after it was put into the post; if delivered
in person, on the date when a recipient acknowledges the receipt thereof by way of
signature; if sent by fax or email, on the date of transmission. However, all notices,
demands or other communications given or delivered to the Pledgee shall be deemed to have
been served on the date when the Pledgee actually receives them. All notices and demands
given to the Pledgee by fax or email shall be confirmed with the
Pledge Contract for Loans Secured Using Institutional Deposit Certificates – For Single Loan only
originals (to be affixed
with the common chop) to be delivered by hand or by post to the Pledgee after the
transmission.
(2) The Pledgor agrees that any summon and notice in connection with any legal actions
against it shall be deemed to have been served so long as it is sent to the principal place
of business set forth in the signature page of this Contract. Any change of address shall
not become effective unless a prior written notice is served to the Pledgee.
5. Effectiveness, Modification and Discharge
(1) This Contract shall be formed after it is affixed with the common chop of each of the
Pledgor and the Pledgee and signed and sealed by their legal
representatives/persons-in-charge or authorized agents. This Contract shall become
effective from the date on which the collateral hereunder are transferred to the Pledgee for
its actual possession until the debts secured by the collateral hereunder are settled in
full.
(2) This Contract shall be independent from the master contract in terms of validity, and
shall not become invalid or revocable due to the invalidity or revocation of the master
contract. If some of the provisions of this Contract are held to be invalid or revoked, the
validity of any other provisions will not be affected.
(3) Neither parties hereto shall modify nor discharge this Contract in advance without
authorization after this Contract becomes effective. In the event of any modification or
discharge of this Contract, the parties hereto shall reach an unanimous agreement and sign a
written agreement in respect thereof.
Article 7 Events of Default and their Treatment
1. Events of default
The Pledgor shall be deemed as breach of contract if one of the following circumstances
occurs:
(i) if any representations, explanations and warranties given hereunder, or any
notices, authorization, approvals, consents, certificates and other documents made
pursuant to this Contract or in connection therewith are or have been proved to be
incorrect or misleading, or are proved to have been lapsed or revoked or no legal
effect when they are made.
(ii) if the Pledgor violates any of the matters agreed upon by the parties in
Article 6 hereof.
(iii) if the Pledgor ceases its business and production, closes its business, ceases
business for restructuring, reorganizes, liquidates, is taken over or under
trusteeship, dissolves, or its business license is revoked or cancelled, or the
Pledgor is bankrupt.
Pledge Contract for Loans Secured Using Institutional Deposit Certificates – For Single Loan only
(iv) if the Pledgor or its controlling shareholder, actual controller or its
associates are involved in litigations, arbitration, or their respective assets are
detained, seized, frozen, enforceable, or other measures with the same effect are
taken against them, or its legal representative, directors, supervisors and senior
management are involved in litigations, arbitrations or other compulsory measures,
which would have adverse effects on the ability of the Pledgor to repay debts.
(v) if compulsory measures are taken against the collateral by the judicial
authorities of the State or other competent bodies; or if the Pledgor has not fully
completed the formalities in relation to the collateral nor provided true
information according to the requirements of the Pledgee; or if the circumstances
where the collateral is jointly held, disputed, confiscated, detained, regulated or
has been pledged are withheld.
(vi) if the operation of the deposit bank deteriorates, which might affect its
ability to repay debts; or if the financial position of the Pledgor deteriorates
with serious operating difficulties, or if any event or circumstance occurs, which
would have adverse effects on the normal operation of the Pledgor, its financial
position or its ability to repay debts.
(vii) if the Pledgor proceeds with the procedures in relation to the loss of
collateral and application for the issuance of a public summon during the term of
the pledge, which causes or may cause xxxxx to the pledge right of the Pledgee
hereunder.
(viii) if the Pledgor commits any other acts that are in violation of this Contract,
or acts in a way that causes harm to the legitimate interest of the Pledgee, which
is sufficient to impede the normal performance of this Contract.
2. Treatment for breach of contract
If any of the events of default described in the above section occurs, the Pledgee shall
have the right to declare that the principal debt becomes due prior to its expiry or to
require the debtor to make up the security deposit, and shall dispose of the collateral
pursuant to Article 4 hereof. It may also require the Pledgor to pay a default penalty (the
calculation of which is set out in Article 9 hereof). In the event that the default penalty
is not sufficient to cover any loss suffered by the Pledgee, the Pledgor shall compensate
all losses suffered by the Pledgee arising therefrom.
Article 8 Miscellaneous
1. Governing law
This Contract shall be governed by the laws of the People’s Republic of China (excluding
Hong Kong, Macao Special Administrative Region and Taiwan).
Pledge Contract for Loans Secured Using Institutional Deposit Certificates – For Single Loan only
2. Dispute Resolution
All disputes in connection with this Contract may be resolved through friendly consultation.
In the event that no agreement can be reached through consultation, the people’s court at
the place where the Pledgee is located shall have a non-exclusive jurisdiction over
disputes. During the period of dispute, the parties shall continue to perform any other
provisions that are not in dispute.
3. Others
(1) If any supplement shall be made for matters not covered in this Contract, the parties
may reach an agreement in respect thereof and incorporate them into Article 9 hereof. They
may also sign a separate written agreement as an exhibit hereto. The
exhibits hereof are an integral part of this Contract, which shall have the same legal
effect as the main body of this Contract.
(2) Unless otherwise stated specifically herein, the terms and expressions used herein shall
have the same meaning as those defined in the master contract.
Article 9 Key Terms of this Contract
1. The master contract secured by this Contract [is corresponding to the “WHEREAS” section hereof].
(1) The master contract is the Short-term Loan Contract dated March 11, 2009
between a debtor and a creditor (with document number: 75012009280654). The
creditor herein refers to the named in the master contract.
(2) The debtor under the master contract is Jilin Guotai Petroleum Development Company
Limited 
of .
of .2. The collateral hereunder [is corresponding to those stated in Article 1.1 hereof].
Pledge Contract for Loans Secured Using Institutional Deposit Certificates – For Single Loan only
| Sequence No. | 1 | 2 | 3 | 4 | ||||||
| Information of Deposit Certificate | ||||||||||
Deposit Certificate No.
|
||||||||||
Type of Deposit
|
RMB Time Deposit | |||||||||
Account Name
|
MI Energy Corporation | |||||||||
Account No.
|
||||||||||
Institution with which
the Account is Opened
(Deposit Bank)
|
SPDB, Dalian Branch | |||||||||
Amount (RMB in words)
|
Forty-six Million Nine Hundred and Forty Thousand Dollars Only | |||||||||
Term
|
6 months | |||||||||
Account Opening Date
|
March 11, 2009 | |||||||||
Due Date
|
September 11, 2009 | |||||||||
Interest Rate
|
1.98% | |||||||||
3. The principal debt secured by this Contract [is corresponding to those stated in Article
2.1(1)].
þ The principal debt secured hereunder is the loan facility in an amount of not
exceeding RMB (currency) Forty-six Million Dollars only (in words) provided
by the creditor to the debtor pursuant to the master contract. The term of loan facility
(i.e. in the master contract) is from March 11, 2009 to September 11, 2009.
o The principal debt secured hereunder is the contingent liabilities in an amount of
not exceeding / (currency) / only (in words) undertaken by the creditor
(being the Pledgee of this Contract) in connection with its provision of / (name of
the intermediary business) to the debtor pursuant to the master contract. If the creditor
is forced to make advances in the above business, the principal debt will be converted into
the advances paid by the creditor accordingly. Adjustment will be made correspondingly to
the amount of the principal debt in accordance with the adjustment agreed in the master
contract.
4. Treatment for breach of contract [is corresponding to those stated in Article 7.2 hereof].
Default Penalty: representing Twenty percent (in words) or / / of
the principal debt.
Pledge Contract for Loans Secured Using Institutional Deposit Certificates – For Single Loan only
5. The exhibits hereto include: [are corresponding to those stated in Article 8.3(1) hereof].
| (1) | « / » . | ||
| (2) | « / » . | ||
| (3) | « / » . | ||
| (4) | « / » . | ||
| (5) | « » . |
6. Other matters agreed upon by the parties [are corresponding to those stated in Article 8.3(1)
hereof].
/
/
/
7. This Contract is executed in three originals. The Pledgor shall keep one copy,
the Pledgee shall keep two copies and shall keep
copies. All of them shall have the same
legal effect.
(No text below)
Pledge Contract for Loans Secured Using Institutional Deposit Certificates – For Single Loan only
(This page is the signature page and contains no text)
This Contract is made between the Pledgor and the Pledgee mentioned below on March 11,
2009. The Pledgor confirms that the parties hereto have explained and discussed in details in
respect of all the provisions hereof at the time of the execution of this Contract. The parties
raise no objection to all of the provisions of this Contract and have an accurate and correct
understanding of the restrictions on the rights, obligations and liabilities of the parties
concerned or the legal implications of exemption clauses.
Pledgor (Common chop)
|
Pledgee (Common chop) | |
[Chop of MI Energy Corporation is
affixed]
|
[Chop of Shanghai Pudong Development Bank, Dalian Branch is affixed] | |
Legal Representative or Authorized Agent (Signature or Chop) |
Person-in-charge or Authorized Agent (Signature or Chop) |
|
[Chop affixed]
|
[Chop of Xxxx Xxxxxx is affixed] |
Principal Place of Business:
|
Principal Place of Business: | |
Postal Code:
|
Postal Code: | |
Tel:
|
Tel: | |
Fax:
|
Fax: | |
E-mail:
|
E-mail: | |
Contact Person:
|
Contact Person: |
SHANGHAI
PUDONG DEVELOPMENT BANK
