Short-term Loan Agreement
Exhibit
10.16
 SHANGHAI PUDONG DEVELOPMENT
BANK |
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To
SPD Bank Fuzhou Branch
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No.:
43012010280030
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Name
of Client
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Shishi
Feiying Plastic Co., Ltd.
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Application
Date:
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February
02, 2010
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Address:
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Longshan
Development Area,
Hanjiang
Town, Shishi City
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Client
Contact:
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Tel:
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Contact
Person of Financing Bank (to
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Xxxx
Xxxxxx
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Fax:
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be filled out by the financing bank) |
We hereby
makes irrevocable application to you for working capital loans to be provided by
you pursuant to the following provisions of this Agreement:
I.
Paramount Clauses
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x
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This
Agreement is concluded as an auxiliary financing document of the Financing
Facility Agreement (hereinafter called “Financing Facility Agreement”)
numbered and
shall be incorporated into the Financing Facility Agreement as part of the
latter (select this item and indicate the number of the Financing Facility
Agreement if the client previously signs the Financing Facility Agreement
with the financing bank);
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¨
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This
Agreement is an independent credit instrument by and between the client
and the financing bank (select this item if the client has not signed the
Financing Facility Agreement with the financing
bank);
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x
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All
guarantors are aware of the purpose of the loan under this Agreement,
i.e., refinancing. Name of the previous
agreement: Signing
Date: Agreement
No.:
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(this
item must be selected if the loan is for refinancing)
II.
Description of Loan
(If the
client and the financing bank have agreed on the loan interest rate and the
penalty rate in the previous Financing Facility Agreement, it is not necessary
required to fill out the following corresponding blanks)
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Currency
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Amount
(In
words)
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Drawing
Date
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Mature
Date
(or
Duration)
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Interest
Rate
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Overdue
Interest
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Misappropriation
Penalty
Rate
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RMB
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Thirty
Million Yuan Only
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February
02, 2010
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February
02, 2011
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Prime
rate of 12 month loan (¨
Up x
Down) [10]%, i.e. the
interest rate comes to 5.841% when
this Agreement is signed
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8.7615%
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11.682%
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Foreign
Currency
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¨_month
Libor+____
x Others
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Use
of Loan
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Working
capitals for Production
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Interest
Rate
Adjustment
Method
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RMB
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If
the prime rate is adjusted by the People’s Bank of China prior to the
granting of the loan under this Agreement, the prime rate at the time of
the granting of the loan shall be applied to the prime rate of the
People’s Bank of China on the day when the loan is granted; if the prime
rate is adjusted by the People’s Bank of China during the loan period
after the loan has been granted,
x
Adjust on a monthly basis with the 21st
day of each month as the interest rate adjustment date;
x
Adjust on a quarterly basis with the 21st
day of the final month of each quarter as the interest rate adjustment
date;
¨
Interest rate not adjusted;
x
Others_______________
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Foreign
Currency
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Since
the date on which the loan is granted, the interest rate shall be adjusted
every ___ months based on the latest foreign currency interest rate of the
corresponding date.
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Mode
of Interests Settlement
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þ Settle the
interest accruals on a monthly basis with the 20th
day of each month as the interests settlement date;
x
Settle the interest accruals on a quarterly basis with the 20th
day of the final month of each quarter as the interests settlement
date;
x
To collect the interest accruals in a lump sum when the loan becomes
mature, together with the collection of the principals.
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Liquidated
damages for earlier repayment of loan
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Equivalent
to / %
of the total amount that has been repaid in
advance.
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SHANGHAI PUDONG DEVELOPMENT
BANK |
Description:
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1)
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Where
the interest accruals are settled on a monthly or quarterly basis, the
final interest accruals shall be paid together with the
principals.
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2)
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The
actual drawing date and the mature date shall be subject to the dates as
recorded on the IOUs (borrowing vouchers). If the mature date is not
recorded on the IOUs, the mature date shall be deemed to be the actual
drawing date plus the loan duration. The IOUs (borrowing vouchers) shall
be integral to this Agreement.
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3.
Description for Guarantees
(If the client and the financing bank
have agreed on the guarantees in the previous Financing Facility Agreement, it
is not necessary required to fill out the following corresponding
blanks)
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Guarantor
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Shishi Lixiang Foods
Co., Ltd
Hong Jianghan
Xx Xxxxxx
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Mode
of Guarantee
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x
Mortgage,
Security
Contract No.:
x
Pledge,
Security
Contract No.:
¨
Guarantee,
Security
Contract No.:
284301201028003001
284301201028003002
284301201028003003
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4.
General Terms and Conditions
The
client hereby confirms that it has read and agreed on the following general
terms and conditions under this Agreement:
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1.
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After
this Agreement has been signed by the financing bank, the financing bank
is entitled to cancel any loan promises that have been given based on the
signing of this Agreement, unless otherwise the loan applied for by the
client has been granted to the client according to this
Agreement.
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2.
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Mode
of, Repayment and Calculation and Payment of Interests Accruals: Unless
otherwise provided in this Agreement, the principals shall be repaid in a
lump sum at the maturity of the loan under this Agreement with 360 days as
the base number for the interest accruals which shall be calculated based
on the actual drawing amount and the occupying days from the date on which
the loan is granted by the financing bank and shall be settled in the
manner as agreed by and between the client and the financing
bank.
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3.
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Submission
of Documents: The client warrants to submit the following documents to the
financing bank and satisfy the following conditions; however, the
financing bank shall not be responsible for the authenticity of the
documents:
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(1)
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Copies
of latest articles of incorporation and business
license;
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(2)
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Decisions
of the board of directors authorizing the client to sign this Agreement
and relevant auxiliary financing documents (if the powers of the legal
representative in signing a contract are restricted by the articles of
incorporation);
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(3)
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Power
of attorney to, and the signature sample of, the authorizing
representative;
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(4)
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This
Agreement validly and legally signed by the
client;
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(5)
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The
date designated by the client shall be the business day of the financing
bank;
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(6)
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If
the loan under this Agreement is guaranteed, the guarantee documents have
been signed and the guarantee rights have been granted before the drawing
of the loan;
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(7)
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Borrowing
vouchers affixed with the valid signature and seal of the
client;
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(8)
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Other
documents and/or conditions as required by the financing
bank.
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4.
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If
the designated drawing date or date of repayment is not the business day
of the financing bank, the designated drawing date or date of repayment
shall be extended to the next business day of the financing bank. The
interest accruals for the extended repayment period shall be calculated
and paid.
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5.
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Advance
Repayment and Earlier Maturity: Unless otherwise the financing bank
notifies the client of the earlier maturity of the loan, the client shall
get the written approval of the financing bank for advance repayment and
the financing bank is entitled to request the client to pay the liquidated
damages for the advance repayment pursuant to this Agreement. Any form of
advance repayment shall be deemed as the earlier maturity of the loan. The
financing bank shall be entitled to notify the client at any time without
any reasons of the earlier maturity of the loan under this Agreement and
the client shall repay the loan immediately upon receipt of any such
notification.
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6.
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Taxes:
Unless the client is required to pay relevant taxes for the repayment of
the loan according to law, the client shall make full repayment due under
this Agreement without any deduction. If relevant taxes shall be withheld
pursuant to laws, the client shall pay extra fees to the financing bank so
that the payment received by the financing bank is equal to the amount
receivable by the financing bank without any
deduction.
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7.
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Representations
and Warranties: The following representations and warranties made by the
client shall be deemed to be made by the client repeatedly every time when
the financing bank grants finances to the client in accordance with this
Agreement.
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(1)
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The
client, a company incorporated pursuant to Chinese laws (for the purpose
of this Agreement, excluding laws of Hong Kong, Macau SAR and Taiwan, the
same below), has the power to sign this Agreement and any documents
relating to this Agreement, and has taken any necessary corporation
actions to make this Agreement and any documents relating this Agreement
become valid, effective and
enforceable;
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2
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SHANGHAI PUDONG DEVELOPMENT
BANK |
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(2)
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In
the process of signing this Agreement and performing the obligations under
this Agreement, the client does not or will neither violate any other
contract or documents, article of incorporation, any applicable laws,
regulations or administrative order and relevant documents, court decision
and ruling of authoritative agent nor contradict any other obligations or
work the client has to undertake; the client shall apply for, obtain,
abide by and keep valid all approvals, authorizations, registrations and
permits provided by the applicable law; if requested by the financing
bank, the client shall present appropriate supporting documents
immediately.
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(3)
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The
client shall make sure that all financial statements (if any) comply with
relevant provisions of Chinese laws and the completed form reflect the
client’s real financial conditions in a sound and fair manner; all
documents, files and information etc concerning the client itself and the
guarantor provided in the process of signing and execution of this
Agreement are true, valid, accurate and complete and free of any
concealment or omission;
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(4)
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The
client shall strictly abide by the laws and regulations in its business
operations when carrying out all business activities within the range as
provided in the business license or ratified by applicable laws and go
through annual inspection formalities in a timely
manner;
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(5)
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Other
conditions or events which the client warrants will not cause or probably
cause material adverse impacts to the performance capability of the
client.
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8.
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Undertakings:
The client makes the undertakings as
follows:
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(1)
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The
client shall repay the principals and interest accruals of the financing
funds as well as reasonable expenses, and warrant to strictly abide by and
perform all the obligations under this
Agreement;
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(2)
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The
client shall, within five business days since the day the client is aware
of its involvement in economic, civil, administrative or similar arbitral
proceedings which may cause material adverse impacts to the client or
within five days since the day the client is aware that its material
assets have been involved in any enforcement, seizure, attachment,
freezing, lien and supervision procedures, send written notifications to
the financing bank, specifying the impacts incurred and the remedial
measures which have been taken or planned to be
taken;
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(3)
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The
borrower undertakes not to give priorities to other loans by breaching
normal repaying procedures, and that the borrower does not and will not
sign any contracts or agreements that make the loans under this Agreement
subordinated.
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(4)
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Since
the day on which this Agreement is signed and before all obligations under
this Agreement are paid off, without the written consent of the financing
bank, the client will not:
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(a)
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conduct
liquidation, reorganization, bankruptcy, merger (being acquired),
division, restructuring, dissolution, capital reduction or similar legal
proceedings;
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(b)
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dispose
any of its materials assets by sale, lease, granting, transfer or any
other means other than as required for the daily business
operations;
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(c)
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make
any changes in shareholding
structure;
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(d)
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provide
to a third party guarantees that may cause material adverse impacts to the
client’s financial conditions or its capability of performing the
obligations under this Agreement;
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(e)
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Sign
contracts/agreements that may cause material adverse impacts to the
capability of the client in performing the obligations under this
Agreement or undertake any other obligations that may cause the same
effect as above-mentioned.
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(5)
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In
the event that the guarantees hereunder confront specific situations or
specific changes, the client shall provide other form of guarantees as
required and recognized by the financing bank. These specific situations
or specific changes include but are not limited to shut-down,
out-of-business, dissolution, winding-up of business for rectification,
withdrawal or cancellation of business license, application by the client
itself or by others for reorganization, bankruptcy, significant changes in
business operations or financial conditions, involvement in material suits
or arbitral cases, involvement of legal representative, directors,
supervisors and major management personnel in legal cases, depreciation or
probable depreciation of collaterals or preservation of collaterals
through remedy of attachment of property, breach of guarantee contracts
and request of rescinding the guarantee contracts
etc;
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(6)
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As
requested by the financing bank, the client shall obtain enforceable
notarial certifications from the Notary Public as designated by the
financing bank and the client shall bear relevant expenses and voluntarily
accept the enforcement;
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(7)
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The
client shall immediately inform the financing bank of any issues that may
have impact on the client’s capability in performing the obligations under
this Agreement and any documents pertaining to this
Agreement.
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9.
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Marketization
of Interest Rate: If the People’s Bank of China initiates RMB loan
interest rate marketization policy after the loan under this Agreement has
been granted, the borrower shall make immediate negotiations with the
lender to determine the interest rate execution
standard.
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10.
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Costs
and Expenses: When requested by the financing bank, the client shall
immediately compensate for the expenses arising from the amendment,
signing, enforcement, notarization and registration of any documents
relating to this Agreement handled by the financing bank. The client shall
pay the stamp taxes and other taxes for this Agreement and any documents
pertaining to this Agreement, unless otherwise the laws provide that the
taxes shall be paid by the financing
bank.
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3
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SHANGHAI PUDONG DEVELOPMENT
BANK |
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11.
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Penalties:
The client hereby confirms that the financing bank has the right to charge
the penalties based on the following
standards:
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(1)
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For
the outstanding principal due payable under this Agreement (the term “due”
in this Agreement shall include the situation of earlier maturity as
declared by the financing bank), the default interests calculated based on
the overdue interest rate as agreed in this Agreement for the number of
actual days since the first overdue date shall be paid until the client
has paid off all the principal and interests
thereon;
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(2)
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Where
the client has not used the loans in the way as agreed, the financing bank
has the right to charge the penalties based on the amount of loan used in
a default manner at the misappropriation interest rate for the number of
days overdue since the first overdue date until the client has paid off
all the principal and interest;
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(3)
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For
the outstanding interests (including normal interests, default interests
and misappropriation interests) due and payable under this Agreement (the
term “due” in this Agreement shall include the situation of earlier
maturity as declared by the financing bank), the compound default
interests calculated based on the overdue interest rate as agreed in this
Agreement for the number of actual days since the first overdue date shall
be paid until the client has paid off all the principal and
interests;
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12.
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Authorized
Repayment and Offsetting: The client hereby authorizes the financing bank
to repay on behalf of the client the outstanding debt due and payable to
the financing bank with the sum (notwithstanding the type of currency) in
any accounts of the client opened with the bank, no matter whether the
debt is payable under this Agreement. This authorization is irrevocable.
If the exchange rate conversion is involved, the conversion shall be made
at the exchange rate as determined by the financing bank itself and the
exchange rate risk shall be assumed by the
client.
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13.
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Certification
of Obligations: The financing bank shall retain on its accounting books a
set of accounting statements and documents relating to business activities
involved in this Agreement based on its consistent working practices. The
client accepts and acknowledges that the recordings pertaining to the
accounting statements and documents shall be deemed as the valid evidences
for its obligations hereunder.
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14.
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Transfer:
The client shall not transfer any rights or obligations under this
Agreement. The financing bank may transfer at any time the rights or
obligations under this Agreement to any third party and disclose to the
third party any information concerning this Agreement, including any
information provided to the financing bank by the client and its guarantor
for the purpose of this Agreement.
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15.
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Information
Disclosure: The client agrees that, in addition to the disclosure
permitted by Article 14 hereof, any information pertaining to this
Agreement may be disclosed by the financing bank to its head quarter,
affiliates, associates and personnel employed by these institutions.
Meanwhile, the disclosure by the financing bank in accordance with the
requirements of the laws and regulations, the supervision and regulation
department, government agent or judicial authority shall also be deemed as
the permitted disclosure.
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16.
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Breach:
The client shall be deemed to have breached this Agreement if the client
has breached any of the statements and guarantees under this Agreement or
these statements and guarantees are verified to be wrong, unreal or
incomplete or misleading or have been breached, and/or the client has
violated or has not performed any of the undertakings under this Agreement
and/or the client has breached any of the provisions under this Agreement,
and/or the client has done something that may effect the security of the
loan granted by the financing bank, and/or the guarantor has violated the
provisions of any guarantee documents etc. In any of the above cases, the
financing bank is entitled to declare the earlier maturity of the loan and
request the client to compensate for all losses including the attorney
fees to the financing bank.
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17.
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Special
Covenants of Group Client: If the client under this Agreement is a group
client, the client hereby accepts and acknowledges that: (i) The client
shall make timely reporting of the related transactions involving 10% of
net asset of the actual accredited party, including: a association
relationship of all parties to the transaction; b transaction items and
properties; c
transaction amount and corresponding proportion; d pricing strategy
(including transactions with no value at all or only with symbolic value);
(ii) where the followings happen to the actual accredited party, the
client is deemed to have violated this Agreement and the financing bank
has the right to cancel unilaterally the unused credit line and withdraw
part or all of the used credit line or request the client to bring the
margins to 100%: a
to provide false materials or conceal material financial facts; b to alter arbitrarily
the original purpose of the credit line, misappropriate the credit line or
to conduct illegal transactions with the bank credit line; c to obtain funds or
credit line from the bank through discount or charge with the notes and
the accounts receivable with no actual trade backgrounds, taking advantage
of the false contracts signed with the related parties; d refuse to accept the
supervision and inspection of the use of credit funds and relevant
business & financial activities; e significant merger,
acquisition and restructuring etc that may effect the security of the
credit granting; f
to intentionally evade repayment of bank loans through related
transactions.
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18.
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Other
agreed Clauses
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19.
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Governing
Laws and Jurisdictions: This Agreement shall be governed by the laws of
the People’s Republic of China (for the purpose of this Agreement, the
laws of Hong Kong, Macau SAR and Taiwan are excluded) and shall be
construed in accordance with the laws thereof. Any dispute in relation to
this Agreement shall be instituted to the People’s Court where the
financing bank is located.
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4
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SHANGHAI PUDONG DEVELOPMENT
BANK |
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20.
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Place
for service of process: The client confirms that for any lawsuit
prosecuted under this Agreement, the judicial documents such as court
summons and notifications issued in the prosecution process shall be
deemed to have been delivered to the destination when they have been
delivered to the address as is indicated at the beginning of this
Agreement. Any changes to the above-mentioned address shall not become
valid for the financing bank without any prior
notifications.
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21.
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Severability
of Clauses: Any invalid, illegal or unenforceable clauses under this
Agreement shall not affect the validity, legitimacy and enforceability of
other clauses under this Agreement.
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22.
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Any
grace or deferred action taken by the financing bank against any of the
client’s breaches or other behaviors during the effective term of this
Agreement shall not impair, affect or restrict all rights and interests
that the financing bank shall enjoy as a creditor pursuant to laws and
this Agreement, and shall neither be deemed to be the financing bank’s
acknowledgement of the behaviors of the client violating this Agreement,
nor be deemed to be the waiver of the right to take actions against the
client’s present or future non-performance of this
Agreement.
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23.
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Consistency
with Financing Facility Agreement: Where the Financing Facility Agreement
(if any, including valid modifications to it from time to time) is
inconsistent with this Agreement, this Agreement shall
prevail.
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24.
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Signing;
This Agreement shall be made in quadruplicate, with the client holding one
copy and the financing bank three copies respectively, and each copy shall
have the same force and effect with other copies. This Agreement shall
come into effect as of the date when it is signed, or affixed with common
seals, by the legal representatives/responsible officers or authorized
agents of the parties hereto.
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Signing
Section
The
parties confirm that (i) they have described and discussed all terms of this
Agreement in detail at the time of execution of this Agreement, (ii) they have
no doubts in all terms hereof, and (iii) they have accurately understood the
legal meanings of the terms in relation to rights, obligations, limitations of
liabilities or exemptions, of the parties hereto.
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Client
(common seal): Shishi Feiying Plastic Co., Ltd.
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Financing
Bank (common seal): SPD Bank Fuzhou Branch
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Signed
or sealed by Responsible Officer or Authorized Agent:
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Signed
or sealed by Legal Representative or
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Xxxxx
Guangze
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Authorized
Agent: Xx Xxxxxx
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Signed on
July 2, 2010
5
