EX-10.12
3
ff12017ex10xii_tdhholdings.htm
ENGLISH TRANSLATION OF ICBC REVOLVING LOAN AGREEMENT
Exhibit 10.12
No.:
0380300008-2017 N (N. E.) Z. No. 00083
Online
Revolving Loan Contract
(Enterprise
Edition) (2016 Version)
Special
note: This Contract is concluded and entered into by and between lending and borrowing parties per consultation pursuant to law
on the basis of equality and voluntariness, and all contract terms and conditions are demonstrating the genuine intention of both
parties. In order to safeguard legal rights and interests of the Borrower, the Lender hereby reminds the Borrower to pay adequate
attention to all terms and conditions regarding the rights and obligations of both parties, especially the contents in bold.
| Lender: | Industrial
and Commercial Bank of China Limited Qingdao Shinan Second Sub-branch |
| | |
| Domicile
(address): | Xx.
00, Xxxx Xxxx Xxxxxx Xxxx, Xxxxxx Xxxxxxxx, Xxxxxxx Xxxx |
| | |
| Borrower: | Qingdao
Tiandihui Foodstuffs Co., Ltd. |
| | |
| Legal
representative: | Cui
Rongfeng |
| | |
Domicile
(address):
Post
Code: 266000
Tel:
/
| Xx.
0000, Xxxxxxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, Xxxxxxx Xxxx
Fax:
/ Email: /
Contact
Person: / Mobile: /
|
Through
equal consultation, the Lender and Borrower has reached an agreement regarding the matter of issuing a loan by Lender to Borrower,
and hereby conclude and enter into this Contract.
Part
1 Basic Agreement
| Article 1: | Purpose of borrowing |
The
borrowing hereunder is used for purchasing raw materials. Without written consent of the Lender, the Borrower shall not
use the borrowing for other purpose, and the Lender is entitled to supervise the use of borrowing.
| Article 2: | Revolving line of credit and service life |
| 2.1 | The
revolving line of credit hereunder is RMB2.8 Million (in words: Two Million
Eight Hundred Thousand) (in case of discrepancy between the amount in words and in
figures, the amount in words shall prevail). |
| 2.2 | The
service life of revolving line of credit hereunder is as of the effective date hereof
till July 10, 2018. Within such period, the Borrower may use the foregoing line
of credit revolvingly, provided the amount of withdrawal each time must not be less than
RMB50 Thousand, and the borrowing balance at any time within such period must
not exceed the revolving line of credit. As agreed by the lending and borrowing parties
per consultation, the service life of revolving line of credit may be extended, and both
parties shall otherwise sign the “Online Revolving Loan Contract Elements Modification
Agreement”. |
| 2.3 | The
term of borrowing for each withdrawal by the Borrower starts from the actual withdrawal
date until the agreed repayment date, subject to the record in receipt for a loan, but
the term of borrowing for each withdrawal shall be 7 days at least and 1 year at most. |
| 2.4 | The
withdrawal within the service life of revolving line of credit hereunder is carried out
according to the following Subparagraph (1): |
| (1) | Committed
withdrawal, namely under the precondition of conforming to contract agreement, within
the revolving line of credit and its service life, the Borrower may make withdrawal and
repayment at any time. (Except for the circumstances caused by factors such as adjustment
of national policy etc.) |
| (2) | Conditional
withdrawal, namely under the precondition of conforming to contract agreement, within
the revolving line of credit and its service life, the Borrower may apply for withdrawal
at any time, but the Lender may decide whether or not to issue borrowing and release
time according to its permissive condition of credit capital allocation. |
| Article 3: | Interest rate and interest |
| 3.1 | [Method
of determining borrowing rate] |
The
borrowing rate is determined according to the following No. (3) method:
| (1) | Fixed
interest rate, annual interest rate is / %, and it remains unchanged within the
validity period of contract. |
| (2) | The
borrowing rate is determined by the benchmark interest rate plus a floating range, among
them, the benchmark interest rate is the People’s Bank of China’s benchmark lending rate
at the level corresponding to the term of such borrowing on withdrawal date, the floating
range is / % / (upward/downward/zero), and the floating range remains unchanged
within the contract period. After the Borrower’s withdrawal, the borrowing rate takes
/ (1/3/6/12) months as a period and will be adjusted at every one period to calculate
the interest by stage. The date of determining the interest rate for the second period
will be the corresponding date after the expiry of one period after withdrawal date,
if such date corresponding to withdrawal date is not available in the month of adjustment,
then the corresponding date will be the last day of such month, and the same shall apply
thereafter. |
| (3) | The
interest rate for every borrowing is determined by the benchmark interest rate plus floating
range, among them, the benchmark interest rate is the Loan Prime Rate (LPR) of year
(year/month) term published by National Interbank Funding Center on the working day
before the date of issuing every borrowing, the floating range is / % (upward/downward/zero)
or plus (plus/minus/zero) 92 base point(s) (one base point represents 0.01%).
The borrowing rate after the withdrawal of every borrowing will be determined according
to the following No. A method: |
| A. | It
takes 3 (1/3/6/12) month(s) as a period and will be adjusted at every one period
to calculate the interest by stage. The date of determining the interest rate for the
second period and each period thereafter will be corresponding date after the expiry
of one period after the withdrawal of every borrowing, the Lender will adjust the borrowing
rate according to the floating range and Loan Prime Rate published by National Interbank
Funding Center for the term mentioned above on the working day before such day. If the
date corresponding to withdrawal date is not available in the month of adjustment, then
the corresponding date will be the last day of such month. If National Interbank Funding
Center has not published the loan prime rate for corresponding term on the working day
before the date of determining interest rate, then it shall be subject to the loan prime
rate published by National Interbank Funding Center on the previous working day, and
so on. |
| B. | It
will not be adjusted during the entire term of borrowing. |
| (4) | Other:
_______________________ / __________________________________________ |
| 3.2 | Interest
will be calculated on daily basis for the borrowing hereunder starting from the actual
withdrawal date, and will be settled on monthly (monthly/quarterly/semi-annually)
basis. Upon borrowing maturity, the interest shall be paid off together with the principal.
Among them, daily interest rate=annual interest rate/360. |
| 3.3 | The
overdue punitive interest rate hereunder is determined by charging extra 50% based
on the original borrowing rate, and the punitive interest rate for misappropriation of
borrowing is determined by charging extra 100% based on the original borrowing
rate. |
| 3.4 | Apart
from interest, the Lender may charge the Borrower the commitment fee, which will be charged
from Borrower in a lump sum or by installments according to the balance between the amount
of this Contract and the amount already withdrawn by the Borrower (average daily balance
within charging period), the rate will be determined according to 3%-5% annual rate,
or may be charged according to agreement. |
| 3.5 | For
charging related inquiry (complaint), please call 95588 or contact the Lender’s banking
office. |
The
Borrower may withdraw the borrowing hereunder through the following method:
| (1) | Withdraw
the borrowing directly from the banking office designated by the Lender. |
| (2) | Self-help
withdraw the borrowing through the online banking of ICBC. |
The
Borrower shall make bullet repayment of the borrowing hereunder upon the maturity date of borrowing, and may also make early repayment
through the Lender’s banking office or online banking of ICBC as agreed herein, apart from the last repayment, the amount
of early repayment shall not be less than RMB / .
The
Borrower shall open an account at place of Lender or designate the following account as the special account for withdrawal and
repayment: [_].
If
the borrowing hereunder is a maximum guaranteed loan, the corresponding maximum guarantee contracts are as follows:
Name
of the Maximum Guarantee Contract: ① Maximum Mortgage Contract (No.: 0380300008-2014 N N. E. (D) Z. No. 00134;
0380300008-2015 N N. E. (D) Z. No. 0064)
The
Mortgagor: Cui Rongfeng
Name
of the Maximum Guarantee Contract: ② Maximum Guarantee Contract (No.: 0380300008-2016 N N. E. (B) Z. No. 0810)
The
Guarantor: Cui Rongfeng, Xxxx Xxxxxxx
| Article 8: | Dispute settlement |
The
conclusion, effectiveness, interpretation, performance and dispute settlement of this Contract will be governed by the laws of
the People’s Republic of China. During contract performance, for all disputes arising herefrom or related hereto, the interested
parties shall first settle through consultation. If consultation fails, a lawsuit may be filed to the competent court at the place
of Lender for settlement.
This
Contract is made in duplicate, the Borrower and Lender holds one copy respectively, and both of them shall have
the same legal effect.
| Article 10: | Other matters agreed by both parties |
Without
written consent of the Lender, the Borrower shall not provide assured guarantee externally, otherwise it will be deemed as breach
of contract, and the Lender is entitled to early announce the maturity of financing and recover the financing.
| Industrial
and Commercial Bank of China Limited Qingdao Shinan Second Sub-branch (Seal) | Qingdao
Tiandihui Foodstuffs Co., Ltd. (Seal) |
Part
2 Specific Terms and Conditions
| Article 1: | Interest rate and interest |
| 1.1 | If
the borrowing rate hereunder adopts floating interest rate, the rules for interest rate
adjustment after the borrowing becomes overdue will still be executed according to the
original method. |
| 1.2 | The
expiry date for interest is the 20th day of every calendar month if the interest on borrowing
is settled on monthly basis; and the 20th day of the last calender month of every quarter
if settled on quarterly basis; and on June 20 and December 20 every year if settled on
semi-annually basis. |
| 1.3 | The
first interest period starts from the Borrower’s actual withdrawal date till the first
expiry date for interest; the last interest period starts from the next day after end
of previous interest period till the final repayment date; and the rest interest periods
start from the next day after the end of previous interest period till the next expiry
date for interest. |
| 1.4 | Interest
of the loan = the borrowing principal * daily interest rate * actual days used. If to
repay average principal plus interest, the calculating formula is as follows: |
Total
principal plus interest per period = the borrowing principal * interest rate per period * (1+ interest rate per period) number
of repaying period / (1+ interest rate per period) number of repaying period - 1
| 1.5 | In
case of adjustment of measures by the People’s Bank of China for determining the loan
interest rate, then relevant regulations of the People’s Bank of China shall apply for
handling, and the Lender will not serve any further notice to the Borrower. |
| 1.6 | When
signing this Contract, if it is determined that the borrowing rate is executed by floating
a certain percentage downwards from relevant loan benchmark interest rate published by
the People’s Bank of China or the Loan Prime Rate (LPR) published by National Interbank
Funding Center, the Lender is entitled to conduct reassessment every year on the preferential
interest rate offered to the Borrower, voluntarily decide to cancel, in whole or in part,
the preferential interest rate offered to the Borrower according to national policy,
Borrower’s credit status and changes in loan guarantee etc., and inform the Borrower
timely. |
| Article 2: | Withdrawal of borrowing and payment |
| 2.1 | Borrower’s
withdrawal of borrowing must satisfy the following preconditions, otherwise the Lender
has no obligation to issue any amount to the Borrower, except for the Lender agrees upon
advance lending: |
| (1) | Upon
every withdrawal, the statement and guarantee made by the Borrower hereunder are still
authentic, accurate and complete, and no default circumstance has occurred hereunder
or under other contracts signed by and between the Lender and Borrower; |
| (2) | Apart
from fiduciary loan, the Borrower has provided corresponding guarantee as required by
the Lender, and relevant guarantee formalities have been gone through, there is no change
adverse to the Lender occurs, and the guarantee quota is adequate. |
| (3) | If
the Borrower withdraws the borrowing through online banking of ICBC, the “Industrial
and Commercial Bank of China Online Banking Enterprise Customer Service Agreement”
signed by and between the Borrower and Lender is always valid. |
| (4) | For
conditional revolving withdrawal, the Lender has sufficient allocatable credit fund.
For committed revolving withdrawal, the Lender has sufficient allocatable credit fund
at the last day of the month. The allocatable credit fund means the credit scale formulated
by the Lender and disbursable to a specific domain within a certain period according
to the relevant credit policy of the country. |
| 2.2 | If
the Borrower withdraws the borrowing through the banking office designated by the Lender,
the Borrower shall fill in and submit corresponding receipt for a loan to the Lender
at least five banking days in advance. Once the receipt for a loan has been submitted,
it cannot be revoked without written consent of the Lender. |
| 2.3 | If
the Borrower withdraws the borrowing through online banking of ICBC, the Borrower shall
sign the “Industrial and Commercial Bank of China Online Banking Enterprise Customer
Service Agreement” with the Lender, commit to comply with “Industrial and Commercial
Bank of China Online Banking Regulations” and relevant transaction rules, and operate
according to relevant transaction rules. The withdrawal instruction submitted by the
Borrower through online banking of ICBC and confirmed by the Lender is deemed as the
receipt for a loan. |
| 2.4 | After
the Borrower has satisfied the preconditions, when the Lender has transferred the borrowing
into the account designated by the Borrower, it will be deemed as the Lender has released
the borrowing as agreed in this Contract. |
| 2.5 | Pursuant
to relevant regulatory provisions and Lender’s management requirements, for the borrowing
withdrawn and used by adopting Lender’s entrusted payment, according to the Borrower’s
withdrawal request and payment entrustment, the Lender will pay the borrowing fund to
the payment object conforming to the purpose agreed in this Contract. |
| 2.6 | When
handling entrusted payment, upon withdrawal, the Lender shall provide Borrower the account
information of its payment object and supporting documents proving that the withdrawal
meets the agreed purpose. The Borrower shall guarantee that all materials provided to
the Lender are authentic, complete and effective. |
| 2.7 | When
handling entrusted payment, the Lender only carries out formal examination on relevant
materials such as information of payment object, supporting documents on borrowing usage
etc. provided by the Borrower, if the Lender fails to complete the entrusted payment
in due time due to relevant materials provided by the Borrower are not authentic, accurate
and complete, the Lender will not bear any responsibility therefor. |
| 2.8 | If
per examination the Lender finds that relevant materials such as usage supporting documents
etc. provided by the Borrower are inconsistent or have other defects, the Lender is entitled
to ask the Borrower to supplement, replace, explain or resubmit relevant materials, before
the Borrower has submitted materials satisfactory to the Lender, the Lender is entitled
to refuse to release and pay relevant amounts. |
| 2.9 | According
to the Borrower’s different purposes of borrowing, the Lender is entitled to ask the
Borrower, independent intermediary agency and other related party to issue relevant supporting
documents such as joint certification form etc., and the Borrower will issue and pay
the financing amounts according to such supporting documents. |
| 2.10 | If
per examination the Lender thinks the materials provided by the Borrower is consistent
with the purpose of borrowing agreed and the withdrawal is conforming to the agreement
hereof, the Lender will first transfer the borrowing into the account designated by the
Borrower, and then transfer the corresponding amount into the account of Borrower’s payment
object according to the needs and relevant business vouchers submitted by the Borrower. |
| 2.11 | In
case of any one of the following circumstances, the Lender is entitled to confirm the
issuing and payment conditions of borrowing again, or stop issuing and paying the borrowing: |
| (1) | The
Borrower provides false or invalid materials to the Lender to acquire the borrowing; |
| (2) | The
Borrower encounters material adverse change in production and management, derating of
credit status, or default under this Contract; |
| (3) | The
Borrower fails to withdraw and pay the borrowing amount as agreed herein, and abnormality
occurs in the use of borrowing amount; |
| (4) | The
Borrower violates the agreement hereof or relevant regulatory provisions, and evades
the entrusted payment by breaking up the whole into parts; |
| (5) | The
loan account designated by the Borrower or the account of payment object is frozen or
stopped of payment by competent authority. |
| 2.12 | If
the loan account designated by the Borrower or the account of its payment object is frozen
or stopped of payment by competent authority, resulting in the Lender is unable to complete
the entrusted payment in due time as entrusted by the Borrower, the Lender will not bear
any responsibility therefor, and also it will not affect the Borrower’s repayment obligation
already incurred hereunder. |
| 2.13 | If
the borrowing hereunder is self-paid by the Borrower, the Borrower commits to accept
and actively cooperate with the Lender’s examination and supervision on the use condition
including the purpose of financing amount by means of account analysis, voucher checking
and onsite investigation etc., and regularly propose summary report on the use condition
of borrowing as required by the Lender. |
| 2.14 | If
the Lender suffers loss due to the materials provided by the Borrower to the Lender are
unauthentic, incomplete or invalid, the Borrower shall compensate. |
| 2.15 | Where
the Lender fails to issue and pay the borrowing in due time as agreed herein, the Lender
shall bear the corresponding responsibility for breach of contract, except for otherwise
agreed herein. |
| 2.16 | If
due to war, natural disaster and other unforeseeable, unavoidable and insurmountable
force majeure events, or the Lender’s system failure, communication failure and other
accidents, and thereby causing the Lender fail to pay corresponding amounts in due time,
the Lender will not bear any responsibility therefor, but the Lender shall promptly inform
the Borrower by phone or written notice. |
| 3.1 | The
Borrower shall repay in full the borrowing principal, interest and other payables in
due time as agreed herein. On repayment date and previous banking day before every expiry
date for interest, the Borrower shall deposit the interest payable, principal and other
payables in current period in full into the repayment account opened in or designated
by the Lender, the Lender is entitled to initiatively collect by transfer on such repayment
date or expiry date for interest, or ask the Borrower to cooperate to go through relevant
transfer formalities. If the amounts in repayment account is not sufficient to pay the
Lender all due payables, the Lender is entitled to decide the satisfaction order thereof. |
| 3.2 | When
applying for early repayment of borrowing in whole or in part, the Borrower shall propose
written application to the Lender, or submit the early repayment instruction to the Lender
through online banking of Industrial and Commercial Bank of China. |
| 3.3 | If
the Lender agrees upon early repayment, on the date of early repayment, the Borrower
shall also pay off the due and payable borrowing principal, interest and other payables
as agreed herein till the date of early repayment at the same time. |
| 3.4 | If
the actual term of borrowing is shortened due to the Borrower’s early repayment or the
Lender early recovers the borrowing according to the agreement hereof, the corresponding
grade of interest rate will not be adjusted, and the original borrowing rate shall still
apply. |
| 4.1 | Apart
from fiduciary borrowing, the Borrower shall provide legal and effective guarantee approved
by the Lender for performance of its obligations hereunder. And the guarantee contract
will be signed otherwise. |
| 4.2 | If
the collateral hereunder suffers damage, depreciation, ownership dispute, is sealed up
or detained, or the mortgagor arbitrarily disposes the collateral, or adverse change
occurs in financial condition of the guarantor of assured guarantee, or other changes
adverse to the creditor’s rights of the Lender occur, the Borrower shall promptly inform
the Lender and otherwise provide other guarantee approved by the Lender. |
| 4.3 | The
Lender is entitled to reappraise the value of the collateral and the guaranty ability
of the guarantor regularly or irregularly. If the appraised value of the collateral is
decreased, or the appraised guaranty ability of the guarantor is reduced, the Borrower
shall provide additional guarantee which shall be equivalent to the value decreased or
ability reduced, or shall provide other guarantee with which the Lender is recognized. |
| 4.4 | With
the consent of the Lender, if pledge guarantee is provided by means of account receivable
for the borrowing hereunder, within the validity period of this Contract, in case of
any one of the following circumstances, the Lender is entitled to declare early maturity
of the borrowing; ask the Borrower to immediately repay, in whole or in part, the borrowing
principal and interest; or add the legal, effective and adequate guarantee approved by
the Lender: |
| (1) | The
bad debt rate of the xxxxxxx of account receivable to the payer’s account receivable
rises for 2 consecutive months; |
| (2) | The
matured but unrecovered account receivable from the payer to the xxxxxxx of account receivable
is accounting for over 5% of the payer’s balance of account receivable; |
| (3) | Trade
dispute (including but not limited to dispute in the aspects of quality, technology and
service) arises between the xxxxxxx of account receivable and payer or other third party,
causing the account receivable cannot be repaid on time upon maturity. |
| Article 5: | Representations and warranties |
The
Borrower makes the following representation and warranties to the Lender, and such representations and warranties are always valid
within the validity period hereof:
| 5.1 | Possess
the Borrower subject qualification pursuant to law, eligible and capable of signing and
performing this Contract. |
| 5.2 | The
signing of this Contract has acquired all necessary authorizations or approvals, the
signing and performance of this Contract do not violate the provisions of articles of
association, shareholders’ capital contribution agreement, association agreement, partnership
agreement and relevant laws and regulations; nor contradict with the due obligations
under other contracts. |
| 5.3 | Other
debts payable have been repaid on time, and there is no malicious default on bank loan
principal and interest. |
| 5.4 | There
is no significant lawbreaking behavior in the course of production and management within
the last year, and current senior managerial staffs have no major adverse record. |
| 5.5 | All
documents and materials provided to the Lender are authentic, accurate, complete and
effective, and there is no false record, major omission or misleading statement. |
| 5.6 | The
litigation, arbitration or claim event involved in by the Borrower is not concealed from
the Lender. |
| 5.7 | Has
learned and fully understood all kinds of transaction rules of the e-banking system of
ICBC online banking related to this Contract. |
| Article 6: | Borrower’s commitment |
| 6.1 | Withdraw
and use the borrowing according to the term and purpose agreed herein, the borrowing
amount will not be used for repaying the principal and interest of loan, nor in any way
flow into securities market, futures market or real estate market; nor be used for other
purpose prohibited or restricted by relevant laws and regulations. |
| 6.2 | Repay
the borrowing principal, interest and other payables as agreed herein. |
| 6.3 | Accept
and actively cooperate with the Lender’s examination and supervision on the use condition
including the purpose of borrowing fund by means of account analysis, voucher checking
and onsite investigation etc., and regularly propose summary report on the use condition
of borrowing fund as required by the Lender. |
| 6.4 | Accept
the Lender’s credit checks, promptly provide authentic, accurate and complete financial
materials and other materials reflecting the Borrower’s debt paying ability as required
by the Lender, including all banks of deposit, bank accounts, balance of deposits etc.,
and actively assist and cooperate with the Lender for the investigation, understanding
and supervision of its production, management and financial conditions. |
| 6.5 | When
proceeding merger, separation, capital reduction, changes in equity, joining in partnership,
withdrawal from partnership, significant assets and creditor’s rights transfer, major
foreign investment, substantial increase of debt financing and other actions might cause
adverse impact on the Lender’s rights and interests, the Borrower shall ask for the Lender’s
written consent in advance. |
| 6.6 | In
case of any one of the following circumstances, inform the Lender promptly: |
| (1) | Change
of name, official seal, articles of association, domicile, legal representative or responsible
person, contact address etc. |
| (2) | Discontinuation
of business, dissolution, liquidation, suspension of business for rectification, being
revoked of the business license, being deregistered or filing (being filed) for bankruptcy; |
| (3) | Involve
in or might involve in major economic dispute, litigation, arbitration; or assets are
sealed up, detained or under compulsory execution; or being filed a case for investigation
or taken punishment measures pursuant to law by competent authority such as judicial
authority, tax authority, industry and commerce organ etc. |
| (4) | Shareholder,
director and current senior managerial staff or partner and contributor are suspected
of being involved in important case or economic dispute. |
| 6.7 | Promptly,
comprehensively and accurately disclose related party relations and related transaction
to the Lender. |
| 6.8 | Promptly
sign to receive all kinds of notices sent or served by other means by the Lender. |
| 6.9 | Do
not dispose own assets by means of reducing the debt paying ability; the guarantee provided
to the third party does not damage the Lender’s rights and interests. |
| 6.10 | Bear
the costs incurred to the Lender in realizing the creditor’s rights hereunder, include
but not limited to attorney fee, assessment fee, auction fee etc. |
| 6.11 | The
satisfaction order of Borrower’s debt hereunder is superior to the debt of Borrower owed
to its shareholder, legal representative or responsible person, partner, major contributor
or key management personnel, and shall be at least under equal status as similar debts
owed to other creditors of the Borrower. |
| 6.12 | Has
learned and fully understood all kinds of transaction rules of the e-banking system of
ICBC online banking related to this Contract; properly safekeeps customer certificate
and password, all operations by using the Borrower’s customer number (card number), password
or customer certificate will be deemed as the action of Borrower, and electronic information
records generated therefrom will be taken as the proof and the voucher for handling the
debtor-creditor relationship hereunder. |
| 6.13 | If
the borrowing hereunder is issued by means of credit, the Borrower commits to regularly
report the situation of external guarantee to the Lender completely, authentically and
accurately. If the guarantee provided externally might affect the performance of obligations
hereunder, the written consent of the Lender is required. |
| 6.14 | Strengthen
environmental and social risks management, and accept the Lender’s supervision and examination
for that. If the Lender requests, the Borrower shall submit environmental and social
risks report to the Lender. |
| Article 7: | Lender’s commitment |
| 7.1 | Issue
the borrowing to the Borrower as agreed herein. |
| 7.2 | Keep
the private materials and information provided by the Borrower related to the aspects
of finance, operation and management confidential, except for otherwise prescribed by
laws and regulations and otherwise agreed herein. |
| Article 8: | Breach of contract |
| 8.1 | In
case of any one of the following circumstances, it constitutes the Borrower’s breach
of contract: |
| (1) | The
Borrower fails to repay the borrowing principal and interest and other payables hereunder
as agreed, or fails to perform any other obligations hereunder, or violates any representation,
warranty or commitment hereunder; |
| (2) | Change
adverse to the Lender’s creditor’s rights occurs in the guarantee hereunder, and the
Borrower fails to otherwise provide other guarantee approved by the Lender; |
| (3) | The
Borrower fails to repay any other debts after the maturity (including being declared
immediate maturity), or fails to perform or violates the obligations under other agreements,
which already or might affect the performance of its obligations hereunder: |
| (4) | The
Borrower’s financial indexes such as profitability, debt paying ability, operation capability
and cash flow etc. break through the arranged standard, or deteriorate and already or
might affect the performance of its obligations hereunder; |
| (5) | Material
adverse change occurs in the Borrower’s production, management and foreign investment,
which already or might affect the performance of its obligations hereunder; |
| (6) | The
Borrower or its shareholder, legal representative or responsible person, partner, main
individual investor or key management personnel involves in or might involve in major
economic dispute, litigation, arbitration; or assets are sealed up, detained or under
compulsory execution; or being filed a case for investigation or taken punishment measures
pursuant to law by judicial authority or administrative agency; or being exposed by media
due to violation of relevant national regulations or policies, which already or might
affect the performance of its obligations hereunder; |
| (7) | The
Borrower’s change in equity or change of holding relations, partnership, association
relations; abnormal change of partner, main individual investor or key management personnel;
or such personnel are missing or under investigation or restriction of personal liberty
by judicial authority pursuant to law, which already or might affect the performance
of its obligations hereunder; |
| (8) | The
Borrower utilizes the false contract with the related party, and fraudulently obtains
capital or credit from the Lender by utilizing transactions without actual transaction
background; or the Borrower intentionally evades from the creditor’s rights of Lender
through related transaction; |
| (9) | The
Borrower already has been or might be under discontinuation of business, dissolution,
liquidation, suspension of business for rectification, be revoked of the business license,
be deregistered or filing (being filed) for bankruptcy; |
| (10) | The
Borrower causes liability accident, significant environmental and social risks events
due to violation of laws and regulations, regulatory provisions or industry standard
related to food safety, safety production, environmental protection and other environmental
and social risks management, which already or might affect the performance of its obligations
hereunder; |
| (11) | The
Borrower’s legal representative or responsible person, partner, main individual investor
or key management personnel involves in illegal acts such as underworld activities, drug
taking, gambling, smuggling etc.; |
| (12) | The
Borrower owes taxes, money or regularly delays to pay the wages to employees; |
| (13) | Default
occurs in personal loan or credit card of the Borrower’s legal representative or responsible
person, partner, main individual investor or key management personnel; |
| (14) | Other
circumstances might cause adverse impact on the Lender’s realization of creditor’s rights
hereunder. |
| 8.2 | In
case of breach of contract by the Borrower, the Lender is entitled to take one or several
of the following measures: |
| (1) | Ask
the Borrower to correct the noncompliance within a time limit; |
| (2) | Stop
issuing the borrowing and other financing amounts to the Borrower according to this Contract
and other contracts between the Lender and Borrower, cancel in whole or in part the borrowing
and other financing amounts not withdrawn by the Borrower; |
| (3) | Declare
immediate maturity of the outstanding borrowing and other financial amounts under this
Contract and other contracts between the Lender and Borrower, and immediately recover
the outstanding amounts; |
| (4) | Ask
the Borrower to compensate other losses caused to the Lender due to its breach of contract; |
| (5) | Other
measures stipulated in laws and regulations, agreed herein or the Lender thinks necessary. |
| 8.3 | If
the Borrower fails to repay upon the maturity of borrowing (including being declared
immediate maturity), the Lender is entitled to charge the penalty interest according
to the overdue punitive interest rate agreed herein as of the overdue date. If the Borrower
fails to pay the interest on time, the compound interest will be charged according to
the overdue punitive interest rate. |
| 8.4 | If
the Borrower fails to use the borrowing according to the purpose agreed herein, the Lender
is entitled to charge penalty interest according to the punitive interest rate for misappropriation
of borrowing for the part of misappropriation starting from the date on which the borrowing
is misappropriated; if the interest is not paid on time during the period of misappropriation
of borrowing, the compound interest will be charged according to the punitive interest
rate for misappropriation of borrowing. |
| 8.5 | If
the Borrower involves in the circumstances as mentioned in preceding Paragraph 8.3 and
8.4, the punitive interest rate will be determined according to the higher one, such
punishments shall not be imposed concurrently. |
| 8.6 | If
the Borrower fails to repay the borrowing principal, interest (including penalty interest
and compound interest) or other payables on time, the Lender is entitled to make an announcement
via media for collection. |
| 8.7 | If
changes occur in the controlling or controlled relations between the Borrower’s related
party and the Lender, or the Borrower’s related party involves in other circumstances
other than those mentioned in Subparagraph (1) and (2), Paragraph 8.1, which already
or might affect the performance of the Borrower’s obligations hereunder, the Lender is
entitled to take all measures as agreed herein. |
| 9.1 | If
the Borrower fails to repay the matured (including being declared immediate maturity)
debts hereunder as agreed, the Lender is entitled to deduct corresponding amounts from
all local and foreign currency accounts opened by the Borrower in the Lender or other
branch of Industrial and Commercial Bank of China for repayment, until the Borrower has
repaid in full all the debts hereunder. |
| 9.2 | If
the currency of deduction amount is different from the currency herein, it will be converted
according to the exchange rate applied by the Lender on deduction date. Interest and
other expenses incurred during the deduction date and repayment date (the date on which
the Lender converts the deduction amount into contract currency and actually repays the
debts hereunder according to national foreign exchange management policy), and the balance
generated from the exchange rate fluctuation during such period will be borne by the
Borrower. |
| 9.3 | If
the Borrower’s deduction amount is not sufficient for repaying all debts to the Lender,
the Lender is entitled to decide the satisfaction order. |
| Article 10: | Transfer of rights and obligations |
| 10.1 | The
Lender is entitled to transfer, in whole or in part, all its rights hereunder to the
third party, and such transfer action of the Lender can be conducted without the consent
of Borrower. Without written consent of the Lender, the Borrower shall not transfer any
of its rights and obligations hereunder. |
| 10.2 | The
Lender or Industrial and Commercial Bank of China Limited (“ICBC”) may authorize
or entrust other branches of ICBC to perform the rights and obligations hereunder according
to the needs of operation and management, or put the creditor’s rights of loan hereunder
under the undertaking and management by other branches of ICBC, the Borrower hereby agrees
upon that, the Lender’s preceding actions can be conducted without further consent of
Borrower. Other branch of ICBC undertaking the Lender’s rights and obligations is entitled
to exercise all rights hereunder, and is entitled to file a lawsuit, recourse to arbitration
or apply for compulsory execution in the name of such branch regarding the dispute hereunder. |
| Article 11: | Effectiveness, modification and rescission |
| 11.1 | This
Contract becomes effective as of the date of signature, until the Borrower’s obligations
hereunder all have been performed. |
| 11.2 | Any
modification to this Contract shall be made in writing (including electronic data form)
by consensus of each party. The modified clause or agreement constitute a part of this
Contract and has the same legal effect as this Contract. Apart from the modified part,
the rest parts of this Contract are still effective, and the original clause still remains
effective before the effectiveness of modified part becomes. |
| 11.3 | The
modification and rescission of this Contract do not affect the rights of contracting
parties to ask for loss compensation. The rescission of this Contract does not affect
the effect of clauses related to dispute settlement. |
| Article 12: | Governing law and dispute settlement |
| 12.1 | The
conclusion, effectiveness, interpretation, performance and dispute settlement of this
Contract will be governed by the laws of the People’s Republic of China. |
| 12.2 | For
all disputes arising herefrom or related hereto, both parties shall first settle them
through consultation; if consultation cannot be carried out or consultation fails, disputes
will be settled according to the method agreed herein. |
| Article 13: | Confirmation of address for delivery of the litigation
documents |
| 13.1 | The
Borrower confirmed that the address on the first page of this contract shall be the address
for delivery of the litigation documents hereunder. Litigation documents including but
not limited to summons, notice of court session, judgment, ruling, mediation document,
notice of fulfillment within a time limit, etc. |
| 13.2 | The
Borrower agree that the fax and Email on the first page of this contract could be used
by the court to deliver the litigation documents, except for judgment, ruling and mediation
document. |
| 13.3 | The
above provisions are applicable at each stage of the litigation procedures including
first trial, second trial, retrial and execution. The court may mail to the above mentioned
address directly upon delivery. |
| 13.4 | The
Borrower shall confirm the authenticity and effectiveness of the information written
on this contract including address, contact person, fax and Email. If there is any alteration,
the Borrower shall give written notice to the Lender in time, or the delivery to the
original address shall be deemed effective, and the Borrower shall undertake the liabilities
that may arise on his own. |
| Article 14: | Entire contract |
Part
1 “Basic Agreement” and Part 2 “Specific Terms and Conditions” herein jointly constitute an entire “Online
Revolving Loan Contract”, and the same word in these two parts shall have the same meaning. The Borrower’s borrowing is bound
by the preceding two parties jointly.
| 14.1 | All
notices hereunder shall be sent in writing (including electronic data form). Unless otherwise
agree, both parties designate the domicile specified herein as the communication and
contact address. In case of change of communication address or other contact methods,
either party shall promptly inform the other party in writing. |
| 14.2 | If
either party hereto refuses to sign to receive or in case of other undeliverable circumstances,
the notifying party may deliver through notarization and announcement. |
| Article 16: | Special agreement on value added tax |
| 15.1 | The
interests and expenses paid by the Borrower to the Lender under this Contract are the
price including tax. |
| 15.2 | If
the Borrower asks the Lender to issue value added tax invoice, the Borrower shall first
carry out information registration in the place of Lender, registered information include
the Borrower’s full name, taxpayer identification number or social credit code, address,
phone number, bank of deposit and account number. The Borrower shall ensure to provide
relevant authentic, accurate and complete information to the Lender, and provide relevant
supporting documents as required by the Lender, and specific requirements will be published
by the Lender through branch notice or website announcement. |
| 15.3 | If
the Borrower voluntarily receives value added tax invoice, the Borrower shall provide
the Lender the power of attorney affixed with official seal to designate the receiver
and specify the receiver’s ID card number information, and the designated receiver will
receive the value added tax invoice with the original ID card; in case of change of designated
receiver, the Borrower needs to issue the power of attorney affixed with official seal
to the Lender again. If the Borrower chooses to collect value added tax invoice by mail,
the Borrower shall also provide correct and accurate and deliverable mailing information;
in case of change of mailing information, the Borrower shall promptly inform the Lender
in writing. |
| 15.4 | If
the Lender is unable to promptly issue value added tax invoice due to natural disaster,
act of government, abnormal social events and other force majeure events or the reason
of tax authority, the Lender is entitled to postpone issuing invoice and will not bear
any responsibility therefor. |
| 15.5 | After
the value added tax invoice has been received by the Borrower or the Lender has delivered
it to the third party for mailing, in case of lost, damaged or overdue invoice or other
reasons not attributable to the Lender, and thereby causes the Borrower unable to receive
corresponding page of value added tax invoice or unable to make deduction in due time,
the Lender will not be responsible for compensating relevant economic losses of the Borrower. |
| 15.6 | If
due to the occurrence of sales return, suspension of taxable service or incorrect invoicing,
both deduction page and invoice page cannot be identified etc., and value added tax special
credit note needs to be issued, if pursuant to the provisions in relevant laws, regulations
and policy documents, the Borrower needs to submit the “Information Form for Issuing
Value Added Tax Special Credit Note” to the tax authority, then the Borrower shall
submit the “Information Form for Issuing Value Added Tax Special Credit Note”
to the tax authority, after tax authority has examined and approved it and informed the
Lender, the Lender will issue the value added tax special credit note. |
| 15.7 | During
the contract performance, in case of adjustment of national tax rate, the Lender is entitled
to adjust the price agreed herein according to the changes in national tax rate. |
| Article 17: | Miscellaneous |
| 16.1 | The
Lender’s failure to exercise, or partial exercise of, or delay in exercising any rights
hereunder will not constitute the waiver or change of such rights or other rights, nor
affect its further exercise of such rights and other rights. |
| 16.2 | Any
clause of this Contract becomes invalid or unenforceable will not affect the validity
and enforceability of other clauses, nor affect the effectiveness of entire contract. |
| 16.3 | Pursuant
to the provisions of relevant laws and regulations or requirements of financial supervisory
authority, the Lender is entitled to provide the information related to this Contract
and other relevant information of the Borrower to the credit information system of People’s
Bank of China and other credit information database established pursuant to law, for
the inquiry and use by eligible organization or individual. The Lender is also entitled
to inquire about relevant information of the Borrower through the credit information
system of People’s Bank of China and credit information database established pursuant
to law for the purpose of concluding and performing this Contract. |
| 16.4 | The
words such as “related party”, “related party relations”, “related
party transaction”, “main individual investor”, “key management personnel”
etc. stated herein and the same words in the “Accounting Standards for Business
Enterprises No. 36 -- Related Party Disclosure” (C. H. [2006] No. 3) promulgated
by Ministry of Finance and the modification of such Standards thereafter shall have the
same meaning. |
| 16.5 | The
environmental and social risks stated herein mean the hazards and relevant risks might
be brought to the environment and society from the construction, production and operation
activities of the Borrower and its important related parties, including environmental
and social issues related to energy consumption, pollution, land, health, safety, resettlement
of inhabitant, ecological protection, and climate change etc. |
| 16.6 | The
receipts and vouchers prepared and kept by the Lender according to its business rules
for the borrowing hereunder constitute the effective evidence proving the debtor-creditor
relationship between lending and borrowing parties, and have binding effect on the Borrower. |
| 16.7 | The
Borrower has learned and fully understood all kinds of transaction rules of the e-banking
system of ICBC online banking related to this Contract; properly safekeeps customer certificate
and password, all operations by using the Borrower’s customer number (card number), password
or customer certificate will be deemed as the action of Borrower, and electronic information
records generated therefrom will be taken as the proof and the voucher for handling the
financing relationship hereunder. |
| (1) | The
mention of this Contract shall include the modification or supplement to this Contract; |
| (2) | Headings
of articles are used for reference only, and do not constitute any interpretation of
this Contract, nor constitute any limitation to the contents under the heading and the
scope thereof. |
Both
parties hereby confirm that: the lending and borrowing parties have carried out sufficient consultation regarding all terms and
conditions of this Contract. The Lender has reminded the Borrower to pay special attention to all terms and conditions regarding
the rights and obligations of both parties, and have comprehensive and accurate understanding of them; and the Lender has made
interpretation and explanation on relevant terms and conditions as requested by the Borrower. The Borrower has carefully read
and fully understood all contract terms and conditions (including Part 1 “Basic Agreement” and Part 2 “Specific
Terms and Conditions”), the lending and borrowing parties have completely the same understanding in all terms and conditions
of this Contract, and have no disagreement upon the contract contents.
Lender
(Seal):
Industrial
and Commercial Bank of China Limited Qingdao Shinan Second Sub-branch
(Seal)
Responsible
person/authorized agent: Xx Xxxx (Signature)
Borrower
(Seal):
Qingdao
Tiandihui Foodstuffs Co., Ltd. (Seal)
Responsible
person/authorized agent: Cui Rongfeng (Signature)
Date
of contract: July 12, 2017
20
