Exhibit 10.13
Dated this 1st day of December 2006
EXPERT MASTER HOLDINGS LIMITED
(AS "LENDER")
AND
FIRST SPACE HOLDINGS LIMITED
(AS "BORROWER")
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LOAN AGREEMENT
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DIBB XXXXXX XXXXX
00/X Xxxx xx Xxxxx Xxxxx
0 Xxxxxx Xxxx
Xxxx Xxxx
Tel: (000) 0000 0000
Fax: (000) 0000 0000
Ref: MML.EC.2682.001
THIS AGREEMENT is made the 1st day of December 2006.
BETWEEN:-
(1) EXPERT MASTER HOLDINGS LIMITED (Incorporation No.587562), a company
incorporated in the British Virgin Islands and having its registered
office at P.O. Box 957, Offshore Incorporations Centre, Road Town,
Tortola, British Virgin Islands (the "LENDER"); and
(2) FIRST SPACE HOLDINGS LIMITED (Incorporation No.1032484), a company
incorporated in the British Virgin Islands and having its registered
office at P.O. Box 3321, Drake Xxxxxxxx, Road Town, Tortola, British
Virgin Islands (the "BORROWER").
WHEREAS:
(A) The Borrower is wholly-owned by Eastar Group Holdings Limited, which is
in turn owned as to 69.4% and 30.6% by the Lender and UMW China Ventures
(L) Ltd. respectively; and
(B) The Lender has agreed to provide a term loan of US$32,216,904.57 to the
Borrower for the purpose of satisfying the consideration payable by the
Borrower in acquiring 69.4% equity interest of Wuxi Seamless Oil Pipes
Co., Ltd. (the "EQUITY INTEREST") for the purpose of the proposed
listing of Eastar Group Holdings Limited on the Main Board of The Stock
Exchange of Hong Kong Limited.
NOW IT IS HEREBY AGREED AS FOLLOWS :-
1. DEFINITIONS
1.1 In this Agreement and the Schedule hereto, the following expressions
shall have the following meanings :-
"this Agreement" the present agreement as agreed and signed by
or on behalf of the parties hereto;
"Business Day" a day (excluding Saturday) on which licensed
banks are generally open for business in
Hong Kong;
"Debt Obligations" the Borrower's obligations to repay to the
Lender the Loan and Interest outstanding under
this Agreement;
"Drawdown Date" the day on which a drawing of the Loan is made
by the Borrower;
"Events of Default" the events of default described in Clause 7 of
this Agreement;
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"Hong Kong" the Hong Kong Special Administrative Region of
the People's Republic of China;
"laws of Hong Kong" all ordinance, rule, regulation, direction,
opinion, notice, decree, document, order or
judgment of any courts, government or monitory
authorities of Hong Kong (whether or not in
the same category as the aforesaid);
"Loan" a loan of Thirty-Two Million Two Hundred and
Sixteen Thousand Nine Hundred and Four US
Dollars and Fifty-Seven US Cents only
(US$32,216,904.57);
"Loan Period" the period of 12 (twelve) months described in
Clause 3.
"US$", "US Dollars" the lawful currency for the time being of
and "US Cents" the United States of America
1.2 References to Clauses and Schedule shall be construed as references to
the Clauses and Schedule contained in this Agreement.
1.3 In this Agreement, unless the context otherwise requires:-
(A) indexes and clause headings in this Agreement are inserted for
convenience only and shall not affect the construction of this
Agreement;
(B) references to this Agreement include this Agreement and any other
amendments to or replacement of documents which the parties hereto
agree in writing;
(C) the Schedule hereto forms an integral part of this Agreement and
has the same force and effect as the express terms of this
Agreement;
(D) references to any regulations or statutory provisions include :-
(i) any regulations or provisions which are consolidated,
modified, re-enacted or replaced by any other regulations
or statutory provisions from time to time;
(ii) statutory re-enactment of any repealed regulations or
statutory provisions (whether modified or not); and
(iii) any subsidiary legislation enacted thereunder;
(E) references to the singular shall be deemed to include references
to the plural and vice versa;
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(F) references to a person include any company, corporation or
unincorporated association or organization;
(G) references to a person include his executors, administrators,
successors and assigns; and
(H) when calculating any period of time stipulated in this Agreement
starting from a specified date or a date for the doing of any
particular act or the happening of any particular event, that
particular date shall not be taken into account for the purpose of
calculation.
2. THE LOAN
The Lender hereby agrees to make available to the Borrower an
interest-free loan of [Thirty-Two Million Two Hundred and Sixteen
Thousand Nine Hundred and Four US Dollars and Fifty-Seven US Cents only
(US$32,216,904.57)]subject to and upon the terms of this Agreement and
the representations, warranties and undertaking of the Borrower set out
in this Agreement.
3. LOAN PERIOD
The Loan Period shall be a period of [twelve (12)] months starting on
the Drawdown Date.
4. BORROWER'S COVENANT TO REPAY
4.1 The Borrower hereby covenants with the Lender to repay the Loan in full,
in US Dollars or any other currency as agreed between the Lender and the
Borrower, before 4:00 p.m. on the day immediately following the expiry
of the Loan Period.
4.2 Notwithstanding Clause 4.1, the Borrower may at any time during the Loan
Period upon giving fourteen (14) days prior notice in writing to the
Lender, prepay the whole or part of the Loan outstanding and unpaid
without penalty. Any money paid by the Borrower to the Lender under this
Agreement shall be applied towards settlement of the outstanding balance
of the Loan.
5. DRAWDOWN
The Borrower is entitled to draw the Loan by one single drawing within
30 days from the date of this Agreement by delivering to the Lender the
original copy of a duly completed and signed notice of drawing
specifying the date of the drawing [one (1)] Business Days before the
proposed drawing.
6. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
6.1 To procure the entering of this Agreement by the Lender, the Borrower
hereby represents warrants and undertakes to the Lender that:-
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(A) the Borrower is a company duly incorporated under the laws of its
place of incorporation;
(B) the Borrower has the legal capacity to enter into this Agreement
and to perform and observe all the terms and conditions set out
herein. Once executed, this Agreement constitutes the Borrower's
valid and binding obligations;
(C) neither the execution of this Agreement nor the performance of any
terms hereof by the Borrower shall conflict with or result in any
breach under any provisions of the laws of Hong Kong or the laws
of its place of incorporation or any liabilities or obligations of
the Borrower; and
(D) the Borrower shall apply the Loan for the sole purpose of
satisfying the consideration payable by the Borrower in acquiring
the Equity Interest.
6.2 All the representations, warranties and undertakings set out in Clause 6
should be interpreted as applicable on the day of execution of this
Agreement as well as on the Drawdown Date and shall continue to be valid
and binding throughout the Loan Period. Each representation, warranty
and undertaking shall be construed independently.
7. EVENTS OF DEFAULT
7.1 Each of the following events shall be an Event of Default :-
(A) the Borrower is in material breach of its obligations hereunder
and such breach, if capable of remedy, has not been remedied at
the expiry of fourteen (14) days following written notice to that
effect having been served on the Borrower;
(B) any representation, warranty or undertaking made by the Borrower
in this Agreement is untrue or inaccurate in any material respect;
and
(C) any legal proceeding leading to the winding-up of the Borrower or
any order is made by court for the appointment of a liquidator,
trustee, receiver or similar official over all or any part of the
assets of the Borrower.
7.2 On the occurrence of any Event of Default, the Lender may by notice in
writing to the Borrower :-
(A) terminate this Agreement and all of the Lender's obligations
hereunder; and
(B) declare that the Loan is immediately due and payable.
8. FURTHER ASSURANCE
8.1 Once executed, this Agreement shall become effective and binding on each
party hereto.
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8.2 At any time after the execution of this Agreement, each party hereto
will sign all such deeds or documents as the other party reasonably and
lawfully requires for carrying out any transactions or matters provided
for in this Agreement and/or for giving full effect to the rights of the
parties under this Agreement.
9. THIS AGREEMENT
9.1 This Agreement constitutes the entire agreement between the parties to
this Agreement in respect of the Loan and supersedes any prior
agreements undertaking (whether oral or written) between the parties.
Nevertheless, this Agreement may be amended by instrument in writing if
the parties to this Agreement agree thereto.
9.2 This Agreement shall remain in full force during the Loan Period.
9.3 If any of the provisions of this Agreement is or is declared to be
illegal, invalid or unenforceable at law, they shall be considered as if
they have never been included in this Agreement; and the validity of the
remaining provisions shall in no way be affected or impaired.
9.4 This Agreement shall not be capable of assignment without the prior
consent in writing of all the parties hereto but, subject thereto, shall
be binding on and shall enure for the benefit of each party's successors
and permitted assigns.
10. COSTS
All costs and expenses incurred by the parties hereto in connection
with the negotiation, preparation, printing and execution of this
Agreement shall be borne by the party who shall have incurred the same.
11. NOTICE
11.1 Any notice or communication under this Agreement shall be in writing and
shall be delivered personally or sent by post, facsimile transmission to
the address given above or at such other addresses as may be notified in
writing. Proof of posting or despatch of any notice or communication
shall be deemed to be proof of receipt:
(A) in the case of a letter, on the Business Day after having been
properly posted;
(B) in the case of a facsimile, on the day of its despatch as
evidenced by a transmission report generated by the sending
facsimile machine.
12. PROCESS AGENT
12.1 The Lender hereby irrevocably appoints Dibb Xxxxxx Xxxxx of 41/F Bank of
Xxxxx Xxxxx, 0 Xxxxxx Xxxx, Xxxx Xxxx as its agent to accept service of
legal process out of the courts of Hong Kong in connection with this
Agreement. The Lender further agrees to maintain a duly appointed agent
in Hong Kong to accept service of process out of courts of Hong Kong and
to keep the other party hereto informed of the name
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and address of such agent. Service on Dibb Xxxxxx Xxxxx or such agent
appointed by the Lender from time to time shall be deemed to be service
on the Lender.
12.2 The Borrower hereby irrevocably appoints Dibb Xxxxxx Xxxxx of 41/F Bank
of Xxxxx Xxxxx, 0 Xxxxxx Xxxx, Xxxx Xxxx as its agent to accept service
of legal process out of the courts of Hong Kong in connection with this
Agreement. The Borrower further agrees to maintain a duly appointed
agent in Hong Kong to accept service of process out of courts of Hong
Kong and to keep the other party hereto informed of the name and address
of such agent. Service on Dibb Xxxxxx Xxxxx or such agent appointed by
the Borrower from time to time shall be deemed to be service on the
Borrower.
13. MISCELLANEOUS
13.1 Any date or period mentioned in this Agreement may be extended by
agreement in writing between the parties hereto failing which, with
regard to any such date or period, time shall be of the essence of this
Agreement.
13.2 The parties to this Agreement shall and shall use their respective
reasonable endeavours to procure that any necessary third party will,
do, execute and perform all such further deeds, documents, assurances,
acts and things as may be necessary or desirable to carry out all or any
provisions of this Agreement into full force and effect.
13.3 Any provision of this Agreement which is capable of being performed
after execution of this Agreement but which has not been performed at or
before execution of this Agreement and all representations and
warranties and other undertakings contained in or entered into pursuant
to this Agreement shall remain in full force and effect notwithstanding
execution of this Agreement.
13.4 Unless otherwise expressly agreed in writing, the failure of a party to
this Agreement to require performance by a defaulting party of any
provision of this Agreement shall in no way affect its right to require
performance of that or any other provision of this Agreement by such
defaulting party and any waiver by a party hereto of any breach by a
defaulting party of any provision of this Agreement shall not be
construed as a waiver of the provision itself or a waiver of any other
right under this Agreement.
14. GOVERNING LAW
14.1 This Agreement shall be construed and governed in accordance with the
laws of Hong Kong.
14.2 Each party to this Agreement agrees that any legal action or proceedings
against it or any of its assets arising out of or in connection with
this Agreement may be brought in the courts of Hong Kong and irrevocably
submits to the non-exclusive jurisdiction of such courts in any legal
action or proceedings arising out of or in connection with this
Agreement. Each party's submission to the jurisdiction of the courts of
Hong Kong shall not (and shall not be construed so as to) limit any
party's right to take
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proceedings in any appropriate jurisdiction, nor shall the taking of
proceedings in any one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction, whether concurrently or not.
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IN WITNESS whereof this Agreement has been duly executed by the parties hereto
the day and year first above written.
SIGNED by Piao Longhua )
duly authorized by ) /s/
EXPERT MASTER HOLDINGS LIMITED ) ------------------------------
in presence of: )
/s/
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SIGNED by Xxxxx Xxxxx Bin Harun )
duly authorized by ) /s/ ______________________________
FIRST SPACE HOLDINGS LIMITED )
in presence of: )
/s/
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