EQUITY PLEDGE AGREEMENT
This
equity pledge agreement (this “Agreement”) is made on the 26th day of
November, 2008, at Shijiazhuang, the People’s Republic of China (the “PRC”) by
and among the following parties:
|
(1)
|
Hebei
Xxxxxx Xxxx Trade Co., Ltd. ( “Pledgee”)
|
Registered
Number: 130000400002919
Registered
Address: 000 Xxxx Xxxxxxxxx Xxxx, Shijiazhuang
Legal
representative: Zhang Zhongwen
|
(2)
|
Hebei
Shijie Kaiyuan Logistics Co., Ltd. (“Pledgor”)
|
Registration
Number: 130000000018957
Registered
Address: 000 Xxxx Xxxxxxxxx Xxxx, Shijiazhuang
Legal
representative: Xxxx Xxxxx
WHEREAS:
1. Pledgor,
a limited liability company registered and existing under the laws of PRC, hold
the ownership interest of 【48】 Transportation
Companies 【in
the jurisdiction of china】. (“the
Transportation Companies”) （the amount of
capital and percentage of ownership hold by Pledgor in Transportation Companies
set forth in schedule hereto）
2. Pledgee,
a wholly foreign owned enterprise organized and existing under the laws of the
PRC.
3. Pledgee
and Pledgor both agree, Pledgor shall assign and transfer the equity interests
of Transportation Companies to Pledgee unconditionally and perform all the
obligations (hereinafter “Security Obligation”) of Option Agreement (hereinafter
“Transaction Agreement”) which entered by Pledgor and Pledgee in good faith and
completely.
4. The
Pledgor agrees to pledge all of his equity interest in the Transportation
Companies to Pledgee as collateral for securing its obligations.
NOW THEREFORE, through mutual
consents, the Parties have reached the following agreements:
1
1. DEFINITIONS
Unless
otherwise provided, the definitions below shall have the following meanings
throughout this Agreement:
1.1 PLEDGES:
means all the right and beneficial interest set forth at the Clause 2 of this
Agreement.
1.2 EQUITY
INTEREST: means any and all the equity interests of Transportation Companies
held by Pledgor legally and the rights and interests in connection with the
equity interests in the meantime and in the future.
1.3 EVENT
OF DEFAULT: means any event set forth at the Clause 8 herein.
1.4 NOTICES
OF THE EVENT OF DEFAULT: means the notices delivered by the Pledgee for the
purpose of declare the event of default pursuant to this Agreement.
2. THE
PLEDGED INTERESTS
2.1 Pledgor
hereby pledge all its equity interests in Transportation Companies to secure
performance of all obligations, penalties, damages, costs of exercising the
pledged interests and any indebtedness to Pledgee pursuant to the terms of the
Transaction Agreement.
2.2 The
Pledge Interests hereunder means the rights and interests owned by Pledgee and
take the right to request first priority repayment which Pledgor pledge its
equity interest to Pledgee as collateral for securing his
obligation.
2.3
Unless the Pledgee otherwise consent in writing after the execution of this
Agreement, the pledge under this Agreement shall be valid until the obligations
have been fully discharged and have been permitted by Pledgee in
writing.
3. NATRUE
OF PLEDGE
3.1 The
pledge under this Agreement shall not be affected by any other pledge or
security interest in accordance with security obligation, and not affect the
effectiveness of any other pledge or security interest.
3.2 The
right of Pledgor and Pledgee hereunder shall not be affected or waived at any
circumstance set forth below:
3.2.1 Any
extension, waiver, relief or termination of the obligations of any Party with
the consent of Pledgee.
2
3.2.2 Any
amendment, mortification or supplementary of the Transaction
Agreement.
3.2.3
Any disposal, change or termination in connection with any other pledge or
guaranty on the secured obligation;
3.2.4
Any agreement made by Pledgee and any other parties which may affect the Pledged
Interests;
3.2.5
Any delay, performance, breach or mistake in connection with exercising of
rights by Pledgee under this Agreement.
3.2.6
Any acknowledgement of illegality, invalidity or unenforceability of any
transaction or its performance, or
3.2.7
Any other event which may affect any Pledgor’s obligation under this
Agreement.
4． EFFECTIVENESS
4.1 This
Agreement becomes effective upon the entry of such pledge into the shareholder’s
register of Administration Bureau of Industry and Commerce.
4.2 During
the term of pledge, provide the Pledgor fail to performance of its security
obligation, the Pledgee entitle the right to exercise the rights subject to this
Agreement.
5. THE
POSSESSION OF CERTIFICATE
5.1 The
Pledgor shall put the original certificate of capital injection of
Transportation Companies (the “Certificate”) under the custodian of
the Pledgee during the pledge term provided by this Agreement. The Pledgor shall
deliver the Certificate and the appropriate evidence which proves the pledge has
been properly registered into the Register of Transportation Companies within
one (1) week.
5.2
Without prior written consent of Pledgee, Pledgor shall not declare or
distribute any income (if any, including but not limitation, dividend and
profit), such income shall be deemed as collateral for securing their
obligations. Pledgor shall transfer such income generated by the said equity
interests to a bank account designated in writing by Pledgee.
3
6. REPRESENTATIONS
AND WARRANTIES
Pledgor
hereby represents and warrants to the Pledgee set forth as below, and
acknowledges that the execution and enforcement hereof by Pledgee is depended
upon the represents and warrants herein:
6.1 Transportation
Companies are enterprise established and existing under the laws of the
PRC.
6.2 Transportation
Companies have had any and all necessary approval, authorization and permission
from government, and has accomplished all the registration and
filing.
6.3 The
Pledgor has the capacity for civil right and capacity for civil conduct for
execute and perform this Agreement.
6.4 The
execution and performance of this Agreement by Pledgor shall not conflict with
the Article of Association of Transportation Companies or any other relevant
documents. The Pledgor has obtained any and all necessary approvals and
authorizations for the execution and performance of this Agreement.
6.5 The
execution and performance of this Agreement will not violate any laws or
regulations of the PRC, or violate any conditions of licenses, authorities,
notices or any other governmental documents necessary, or conflict with or
result in a breach or violation of any contracts or agreements to which Pledgor
is a party.
6.6 The
Pledgor has paid up the registered capital according to the equity in connection
with Transportation Companies under the PRC laws and obtained the capital
verification report issued by qualified certified public accounting
firm.
6.7 The
Pledgor has full right, title and interest in the Pledged Interests and free of
lien or other security interest other than the pledges created by this
Agreement.
6.8 The
Pledgor or Transportation Companies have not conducted any acts or actions which
may material adverse affect the assets, business of Transportation Companies or
the obligations of the Pledgor until the date of execution.
6.9 The
Pledgor have not pledged, assigned or otherwise transferred to any third party
any of their interest in the pledged Interests during the term.
6.10
Except for the encumbrances that have already disclosed, the Pledgor did not
pledge, mortgage or create any other priority right in all assets of
Transportation Companies.
6.11
All the documents delivered from Pledgor to Pledgee is true, completed, accurate
and contain no material misrepresentation or error.
4
6.12 No
further intervention other than the applicable law in the event that the Pledgee
exercises its rights according to the terms and conditions under this Agreement
at any time.
6.13 The
Pledgee is entitled to acquire all right, title and interest to any of the
pledged interests or beneficial interests according to the terms and conditions
in this Agreement and under the PRC laws.
6.14 On
the date of this Agreement entered, there is no civil or criminal legal
proceeding and arbitration is current or pending against Pledgor’s entry into
this Agreement or performance of their obligations hereunder.
6.15 No
outstanding taxes, expenses due or unconsummated legal proceedings, procedures
which should have consummated as of the date of execution.
6.16 All
or any provisions hereunder represent the real intention of parties, and each
party will legally bound by this Agreement.
7. CONVENANTS
7.1 During
the terms of this Agreement, Pledgor hereby covenants to Pledgee as
follows:
7.1.1 It
will not transfer the Pledged Interests or cause or allow the Pledged Interests
to be used as security for any other obligation that may affect Pledgee’s right
or beneficial without the prior written consent of Pledgee except that the
Pledgee require the Pledgor to assign or transfer the equity
interest.
7.1.2
Without the Pledgee’s written consent, during the term from the signature of
this Agreement to the termination of the pledge hereunder, the Pledgor or
Transportation Companies shall not take any action involve in any event which
will material adversely affects the asset and business of Transportation
Companies or the responsibility of the Pledgor.
7.1.3
Without the Pledgee’s written consent, during the term from the execution of
this Agreement to the termination of the pledge hereunder, the Pledgor warranty
that Transportation Companies shall not pledge, mortgage or create any other
restrictive right in all or any of their asset.
7.1.4 It
will comply with and enforce any and all applicable laws, rules and regulations
and deliver all the notices, instructions or advices within five(5) days to
Pledgee in the event that he received such notices, instructions and advices
from the authorized government entity, and conduct acts under the reasonable
instructions of Pledgee.
5
7.1.5 It
shall promptly notify Pledgee of any event that may materially affect Pledgee’s
rights to any portion of the Pledged Interests or any of Pledgor’s guarantees or
obligations hereunder and follow the instructions of Pledgee.
7.1.6
Comply with the representations and warranties aforesaid at Clause 6 and keep it
effective.
7.2 The
Pledgor agrees, the Pledgee is entitled to exercise the rights according to the
terms and conditions of this Agreement, and free from the intervention and
encumbrance from the Pledgor, its successor, assignor or any other
person.
7.3 The
Pledgor hereby covenants to Pledgee, he will enter into and cause any other
person who affects the Pledged Interests to enter into any certificate, deed
which required by Pledgee in good faith, and/or conduct and cause any other
person who affects the Pledged Interests to conduct actions which required by
Pledgee. And it will enter into all the alter documents in connection with the
equity interest certificate with the Pledgee or any other person designated by
it, and provides all the necessary documents according to the Pledged Interests
to Pledgee during the reasonable term.
7.4
Pledgor shall comply with and perform all the guarantees, covenants, agreements,
represents and conditions. If it is failed to perform or performed in full, it
shall reimburse all the relevant losses and damages to Pledgee.
8. EVENT
OF DEFAULT
8.1 Each
of the followings shall be deemed an Event of Default:
8.1.1
Pledgor, its successors and agents fails to perform any security
obligation;
8.1.2 Any
representation or warranty made by the Pledgor in Clause 6 herein contains a
material misrepresentation or error;
8.1.3 Any
Pledgor breaches any of the warranties in Clause 6 or covenants made in Clause 7
herein;
8.1.4 Any
Pledgor breaches any clauses under this Agreement;
8.1.5 Any
Pledgor transfers the Pledged Interest without the prior written consent of
Pledgee, except as provided in Clause 7.1.1 herein;
6
8.1.6
Loans, encumbrances, indemnities, promises or any other remedies arising in
connection with breach which demands that Pledgor immediately perform all the
obligations including payment of all outstanding payments due leads the Pledgee
believe that the Pledgor’s ability to perform his or her obligations under this
Agreement has been adversely affected.
8.1.7
Pledgor cannot satisfy its indebtedness or any other debt;
8.1.8 The
promulgation of any applicable laws or regulations renders this Agreement
illegal or makes the Pledgor’s performance under this Agreement
impossible.
8.1.9 Any
approval, license, permit or authorization of government agencies that makes
this Agreement enforceable, legal and effective is withdrawn, terminated,
invalidated or substantively changed.
8.1.10 A
adversely change occurring in the financial conditions of Pledgor leads Pledgee
to believe the Pledgor’s ability to perform his or her obligations under this
Agreement has been adversely affected.
8.1.11
The discontinuance, termination, forced closure or liquidation of the Pledgor or
Transportation Companies.
8.1.12
Any other event precludes Pledgee to exercise its pledge right under the
applicable laws.
8.2 Pledgor
shall immediately notify Pledgee in writing upon the incident of any Event of
Default or any event which with lapse of time and/or notice will constitute an
Event of Default.
8.3 Unless
the Event of Default specified in Clause 8.1 aforesaid has been resolved
satisfaction, Pledgee may deliver a written notice of default to Pledgor, which
demands that Pledgor immediately perform all the obligations or enforces or
disposes of the Pledged Interest in accordance with the Clause 9 under this
Agreement.
9. ENFORCEMENT
OF PLEDGES
9.1 Prior
to the Pledgor’s security obligation has been discharged, Pledgor shall not
transfer its equity interest without prior written consent of
Pledgee.
9.2 An
Enforcement Notice shall be delivered to Pledgor before Pledgee exercise its
Pledge right under this Agreement.
9.3 Subject
to Clause 8.3, from and including delivery of the Default Notice under this
Agreement, Pledgee shall become entitle to exercise the right of Pledged
Interest at its sole discretion.
7
9.4 Pledgee
is entitled to enforce the pledges of first order in priority by dispose of the
pledge interests hereunder legally.
9.5 The
Pledgor shall not hinder and shall take necessary assistance for the enforcement
of pledges by Pledgee.
10. ASSIGNMENTS
10.1
Without Prior written consent by Pledgee, the Pledgor shall not assign or
transfer all or any of its rights or obligation under this
Agreement.
10.2 This
Agreement shall have binding force on Pledgor and its successors and assigns,
and this Agreement is in full force and effect for the Pledgee and its
successors and assigns.
10.3
Pledgee may transfer or assign the security obligation to any third party
designated by it. In that event, the assignee shall have the same rights and
obligations as the Pledgee under this Agreement. The Pledgor shall execute
relevant agreements or documents in connection with the assignment upon received
the request of Pledgee.
10.4 The
Parties shall execute a new pledge equity agreement provide the verification of
the Pledgee which caused by assignment.
11. BREACH
OF AGREEMENT
11.1
Any breach of provisions under this Agreement, or Pledgor fails to perform the
obligation of security in time, or the breach of contract pursuant to the
sub-clause 8.1 shall deem as breach of agreement by Pledgor. Pledge may notify
the Pledgor in writing to ask for correction and take actions to eliminate the
consequence and indemnify Pledgee for its breach pursuant to specifications
under this Agreement.
11.2
In the event of breach by Pledgor, the Pledgee may terminate the performance of
obligations hereunder temporarily by deliver a written notice to Pledgor in
consideration that the performance is impossible or unfair until the Pledgor
take the actions to eliminate the consequence and indemnify the costs arising in
connection with the breach.
11.3
Pursuant to this clause, Pledgee is entitle the right to claim Pledgor to be
compensated for all losses, including the direct economic losses, any reasonably
foreseeable indirect economic losses and related costs arising there from,
including but not limited to legal fees, litigation costs , arbitration fees and
travel expenses.
8
12. TERMINATION
This
Agreement shall be terminated upon the performance of the obligation of security
by Pledgor is completed, then Pledgee shall cancel or terminate this Agreement
as soon and reasonable as practicable. The Pledgor shall not terminate this
Agreement in any reason by any way without the consent of the
Pledgee.
13. COMMISSION
AND OTHER FEES
13.1 Any
and all costs and actual expenses incurred in connection with this Agreement,
including, without limitation, any legal fees, disbursements, stamp duties or
any other taxes and fees are undertaken by the Pledgor. The Pledgor shall
compensate the Pledgee for costs and expenses which was undertaken by the
Pledgee pursuant to the applicable laws.
13.2 Pledgor
shall undertake any and all costs and expenses (including, without limitation,
taxes, commission charges, administration fees, legal fees, fees of attorney and
any insurance fees) in the event that Pledgor fail to pay any or all of taxes,
expenses or for any other reason that cause Pledgee have such
claim.
14. GOVERNING
LAW AND SETTLEMENT OF DISPUTES
14.1
The execution, effectiveness, performance, construction and settlement of
disputes shall be governed by the laws of the PRC.
14.2
In the event of any dispute with respect to or in connection with the
construction and performance of the provisions of this Agreement, the Parties
shall first negotiate in good faith to resolve the dispute. In the event the
Parties fail to reach an agreement on the resolution of such a dispute, any
Party may submit the relevant dispute to China International Economic and Trade
Arbitration Commission in Shijiazhuang for binding arbitration. The languages
used during arbitration shall be Chinese. The arbitration shall be final and
binding by both Parties.
14.3 The
Parties shall in good faith in all other respects continue their implementation
of this Agreement except issues in dispute between the Parties.
15. NOTICES
All the
notices or other communications given or made pursuant hereto shall be sent in
writing in Chinese and delivered to the address as specified below by personally
delivery, registered mail pre-paid post, courier or facsimile
transmission.
|
Pledgee:
|
Hebei
Xxxxxx Xxxx Trade Co., Ltd.
|
|
Address:
|
000
Xxxx Xxxxxxxxx Xxxx, Xxxxxxxxxxxx
|
|
Facsimile:
|
0000-00000000
|
|
Telephone:
|
0000-00000000
|
9
|
Attention:
|
Zhang
Zhongwen
|
|
Pledgor:
|
Hebei
Shijie Kaiyuan Logistics Co., Ltd.
|
|
Address:
|
000
Xxxx Xxxxxxxxx Xxxx, Xxxxxxxxxxxx
|
|
Facsimile:
|
0000-00000000
|
|
Telephone:
|
0000-00000000
|
|
Attention:
|
Xxxx
Xxxxx
|
16. SCHEDULES
AND ANNEXES
All
schedules are an integral part of this Agreement.
17. WAIVER
No delay
or omission by Pledgee in exercising the right, remedy, power or privilege by
this Agreement shall be deemed as a waiver of such right, remedy, power or
privilege. The single or partial exercise of any right, remedy, power or
privilege shall not preclude any exercise of any other right, remedy, power or
privilege. The right, remedy, power or privilege under this Agreement is
cumulative and are not exclusive of any right, remedy, power or privilege
provided by laws.
18. MISCELLANEOUS
18.1
No amendment, supplementary or modification of this Agreement shall occur except
in writing. The amendment agreement and supplementary agreement that have been
signed and sealed by the Parties shall have the same validity as this
Agreement.
18.2
In the event that any provision of this Agreement is determined to be invalid or
unenforceable in any respect in accordance with the applicable laws, the
validity or enforceability of the remaining provisions of this Agreement shall
not be affected.
18.3
This Agreement is signed in quadruplicate originals, with each of equally
binding force.
10
[REMAINEDROF
PAGE INTENIONALLY LEFT BLANK]
[SIGNATURE
PAGE]
PLEDGEE:
Hebei Xxxxxx Xxxx Trade Co.,
Ltd.（SEAL）
AUTHORIZED
PERSON:（SIGNATURE ）:
PLEDGOR:
Hebei Shijie Kaiyuan Logistics
Co., Ltd.（SEAL）
AUTHORIZED
PERSON:（SIGNATURE ）:
11
SCHEDULE
THE
AMOUNT OF CAPITAL AND PERCENTAGE OF OWNERSHIP HOLD BY PLEDGOR
12
SCHEDULE
THE
AMOUNT OF CAPITAL AND PERCENTAGE OF OWNERSHIP HOLD BY PLEDGOR
|
NO.
|
Transportation Company
|
Capital (RMB 0000’)
|
Equity
Percentage
|
Note
|
||||
|
1
|
Yuanshi
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
2
|
Gaoyi
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
3
|
Xingtan
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
4
|
Pingshan
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
5
|
Zanhuang
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
6
|
Jingxing
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
7
|
Quyang
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
8
|
Zhengding
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
9
|
Gaocheng
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
10
|
Xinji
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
11
|
Jinzhou
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
12
|
Shexian
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
13
|
Fuping
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
14
|
Hejian
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
15
|
Weixian
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
16
|
Shenzhou
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
17
|
Rongcheng
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
18
|
Sanhe
Shijie Kaiyuan Transportation Service Co.,
Ltd.
|
50
|
100%
|
|||||
|
19
|
Huanghua
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
20
|
Shahe
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
21
|
Jizhou
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
22
|
Bazhou
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
23
|
Pingding
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
24
|
Pingding
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
25
|
Guantao
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
26
|
Longyao
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
13
|
27
|
Hunyuan
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
28
|
Huailai
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
29
|
Gaobeidian
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
30
|
Wu’an
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
31
|
Shouyang
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
32
|
Yangquan
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
33
|
Yuxian
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
34
|
Qingxian
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
35
|
Anguo
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
36
|
Qingxu
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
37
|
Yangyuan
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
38
|
Yuxian
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
39
|
Datong
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
40
|
Nanhe
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
41
|
Jinzhong
Shijie Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
42
|
Tianjin
Beichen Xuyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
43
|
Fucheneg
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
44
|
Qixian
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
45
|
Zhangjiakou
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
46
|
QianAn
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
47
|
Tangshan
Fengrun Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
|||||
|
48
|
Zunhua
Kaiyuan Transportation Service Co., Ltd.
|
50
|
100%
|
14
