EQUITY PLEDGE AGREEMENT
This
equity pledge agreement (this “Agreement”) is made on the 26th day of
November, 2008, at Shijiazhuang, the People’s Republic of China (the “PRC”) by
and among the following parties:
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(1)
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Hebei
Xxxxxx Xxxx Trade Co., Ltd. ( “Pledgee”)
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Registered
Number: 130000400002919
Registered
Address: 000 Xxxx Xxxxxxxxx Xxxx, Shijiazhuang
Legal
representative: Zhang Zhongwen
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(2)
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Hebei
Xxx Xxx Investment Co., Ltd. (“Pledgor”)
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Registration
Number: 130000000014010
Registered
Address: 000 Xxxx Xxxxxxxxx Xxxx, Shijiazhuang
Legal
representative: Song Xxxxxxxx
WHEREAS:
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1.
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Pledgor,
a limited liability company registered and existing under the laws of PRC,
hold the ownership interest of 【5】 4S Stores
【in the
jurisdiction of china】. (“the 4S
Stores”) They are Shijiazhuang Baohe Auto Sales and Service Co.,Ltd.,
Shijiazhuang Xinhua Toyota Auto Sales and Service Co., Ltd., Hebei
Shengmei Auto Trade Co.,Ltd., Handan Aohua Auto Sales and Service Co.,
Ltd., Handan Defeng Auto Sales and Service Co., Ltd.
Respectively.
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2. Pledgee,
a wholly foreign owned enterprise organized and existing under the laws of the
PRC.
3. Pledgee
and Pledgor both agree, Pledgor shall assign and transfer the equity interests
of 4S Stores to Pledgee unconditionally and perform the obligations (hereinafter
“Security Obligation” )of Option Agreement(hereinafter “Transaction Agreement ”
)which signed by Pledgor and Pledgee good and completely after the Pledgee have
authorized.
4. The
Pledgor agrees to pledge all of his equity interest in the 4S Stores to Pledgee
as collateral for securing his obligations.
NOW THEREFORE, through mutual
consents, the Parties have reached the following agreements:
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1.
DEFINITIONS
Unless
otherwise provided, the definitions below shall have the following meanings
throughout this Agreement:
1.1
PLEDGES: means all the right and beneficial interest set forth at the Clause 2
of this Agreement.
1.2
EQUITY INTEREST: means any and all the equity interests of 4S Stores held
by Pledgor legally and the rights and interests in connection with the equity
interests in the meantime and in the future.
1.3
EVENT OF DEFAULT: means any event set forth at the Clause 8
herein.
1.4
NOTICES OF THE EVENT OF DEFAULT: means the notices delivered by the
Pledgee for the purpose of declare the event of default pursuant to this
Agreement.
2.
THE PLEDGED INTERESTS
2.1
Pledgor hereby pledge all its equity interests in 4S Stores to secure
performance of all obligations, penalties, damages, costs of exercising the
pledged interests and any indebtedness to Pledgee pursuant to the terms of the
Transaction Agreement.
2.2
The Pledge Interests hereunder means the rights and interests owned by
Pledgee and take the right to request first priority repayment which Pledgor
pledge its equity interest to Pledgee as collateral for securing his
obligation.
2.3
Unless the Pledgee otherwise consent in writing after the execution of this
Agreement, the pledge under this Agreement shall be valid until the obligations
have been fully discharged and have been permitted by Pledgee in
writing.
3.
NATRUE OF PLEDGE
3.1
The pledge under this Agreement shall not be affected by any other pledge
or security interest in accordance with security obligation, and not affect the
effectiveness of any other pledge or security interest.
3.2
The right of Pledgor and Pledgee hereunder shall not be affected or waived at
any circumstance set forth below:
3.2.1
Any extension, waiver, relief or termination of the obligations of any Party
with the consent of Pledgee.
3.2.2
Any amendment, mortification or supplementary of the Transaction
Agreement.
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3.2.3 Any
disposal, change or termination in connection with any other pledge or guaranty
on the secured obligation;
3.2.4 Any
agreement made by Pledgee and any other parties which may affect the Pledged
Interests;
3.2.5 Any
delay, performance, breach or mistake in connection with exercising of rights by
Pledgee under this Agreement.
3.2.6 Any
acknowledgement of illegality, invalidity or unenforceability of any transaction
or its performance, or
3.2.7 Any
other event which may affect any Pledgor’s obligation under this
Agreement.
4．
EFFECTIVENESS
4.1 This
Agreement becomes effective upon the entry of such pledge into the shareholder’s
register of Administration Bureau of Industry and Commerce.
4.2 During
the term of pledge, provide the Pledgor fail to performance of its security
obligation, the Pledgee entitle the right to exercise the rights subject to this
Agreement.
5. THE
POSSESSION OF CERTIFICATE
5.1 The
Pledgor shall put the certificate of capital (original) on 4S Stores under the
safekeeping of the Pledgee during the pledge term provided by this Agreement.
The Pledgor shall deliver the certificate (original) and the appropriate
evidence which can prove the pledge has been entered into the Register of
Shareholders to Pledgee within one (1) week.
5.2
Without prior written consent of Pledgee, Pledgor shall not declare or
distribute any income (if any, including but not limitation, dividend and
profit), such income shall be deemed as collateral for securing their
obligations. Pledgor shall transfer such income generated by the said equity
interests to a bank account designated in writing by Pledgee.
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6. REPRESENTATIONS
AND WARRANTIES
Pledgor
hereby represents and warrants to the Pledgee set forth as below, and
acknowledges that the execution and enforcement hereof by Pledgee is depended
upon the represents and warrants herein:
6.1
4S Stores are enterprises established and existing under the laws of the
PRC.
6.2
4S Stores have had any and all necessary approval, authorization and
permission from government, and have accomplished all the registration and
filing.
6.3
The Pledgor has the capacity for civil right and capacity for civil
conduct for execute and perform this Agreement.
6.4
The execution and performance of this Agreement by Pledgor shall not
conflict with the Article of Association of the 4S Stores or any other relevant
documents. The Pledgor has obtained any and all necessary approvals and
authorizations for the execution and performance of this Agreement.
6.5
The execution and performance of this Agreement will not violate any laws or
regulations of the PRC, or violate any conditions of licenses, authorities,
notices or any other governmental documents necessary, or conflict with or
result in a breach or violation of any contracts or agreements to which Pledgor
is a party.
6.6
The Pledgor has paid up the registered capital according to the equity in
connection with 4S Stores under the PRC laws and obtained the capital
verification report issued by qualified certified public accounting
firm.
6.7
The Pledgor has full right, title and interest in the Pledged Interests
and free of lien or other security interest other than the pledges created by
this Agreement.
6.8
The Pledgor or 4S Stores have not conducted any acts or actions which may
material adverse affect the assets, business of 4S Stores or the obligations of
the Pledgor until the date of execution.
6.9 The
Pledgor have not pledged, assigned or otherwise transferred to any third party
any of their interest in the pledged Interests during the term.
6.10
The Pledgor have not pledged, mortgaged or created any other priority
right in all 4S Stores’ asset except that the encumbrances have already
disclosed.
6.11
All the documents delivered from Pledgor to Pledgee are true, completed,
and accurate and contain no material misrepresentation or error.
6.12
No further intervention other than the applicable law in the event that
the Pledgee exercises its rights according to the terms and conditions under
this Agreement at any time.
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6.13
The Pledgee is entitled to acquire all right, title and interest to any of
the pledged interests or beneficial interests according to the terms and
conditions in this Agreement and under the PRC laws.
6.14
On the date of this Agreement entered, there is no civil or criminal legal
proceeding and arbitration is current or pending against Pledgor’s entry into
this Agreement or performance of their obligations hereunder.
6.15
No outstanding taxes, expenses due or unconsummated legal proceedings,
procedures which should have consummated as of the date of
execution.
6.16
All or any provisions hereunder represent the real intention of parties,
and each party will legally bound by this Agreement.
7.
CONVENANTS
7.1
During the terms of this Agreement, Pledgor hereby covenants to Pledgee as
follows:
7.1.1 It
will not transfer the Pledged Interests or cause or allow the Pledged Interests
to be used as security for any other obligation that may affect Pledgee’s right
or beneficial without the prior written consent of Pledgee except that the
Pledgee require the Pledgor to assign or transfer the equity
interest.
7.1.2
Without the Pledgee’s written consent, during the term from the signature of
this Agreement to the termination of the pledge hereunder, the Pledgor or the 4S
Stores shall not take any action involve in any event which will material
adversely affects the asset and business of the 4S Stores or the responsibility
of the Pledgor.
7.1.3
Without the Pledgee’s written consent, during the term from the execution of
this Agreement to the termination of the pledge hereunder, the Pledgor warranty
that the 4S Stores shall not pledge, mortgage or create any other restrictive
right in all or any of their asset.
7.1.4 It
will comply with and enforce any and all applicable laws, rules and regulations
and deliver all the notices, instructions or advices within five(5) days to
Pledgee in the event that he received such notices, instructions and advices
from the authorized government entity, and conduct acts under the reasonable
instructions of Pledgee.
7.1.5 It
shall promptly notify Pledgee of any event that may materially affect Pledgee’s
rights to any portion of the Pledged Interests or any of Pledgor’s guarantees or
obligations hereunder and follow the instructions of Pledgee.
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7.1.6
Comply with the representations and warranties aforesaid at Clause 6 and keep it
effective.
7.2 The
Pledgor agrees, the Pledgee is entitled to exercise the rights according to the
terms and conditions of this Agreement, and free from the intervention and
encumbrance from the Pledgor, its successor, assignor or any other
person.
7.3 The
Pledgor hereby covenants to Pledgee, he will enter into and cause any other
person who affects the Pledged Interests to enter into any certificate, deed
which required by Pledgee in good faith, and/or conduct and cause any other
person who affects the Pledged Interests to conduct actions which required by
Pledgee. And it will enter into all the alter documents in connection with the
equity interest certificate with the Pledgee or any other person designated by
it, and provides all the necessary documents according to the Pledged Interests
to Pledgee during the reasonable term.
7.4
Pledgor shall comply with and perform all the guarantees, covenants, agreements,
represents and conditions. If it is failed to perform or performed in full, it
shall reimburse all the relevant losses and damages to Pledgee.
8.
EVENT OF DEFAULT
8.1
Each of the followings shall be deemed an Event of Default:
8.1.1
Pledgor, its successors and agents fails to perform any security
obligation;
8.1.2 Any
representation or warranty made by the Pledgor in Clause 6 herein contains a
material misrepresentation or error;
8.1.3 Any
Pledgor breaches any of the warranties in Clause 6 or covenants made in Clause 7
herein;
8.1.4 Any
Pledgor breaches any clauses under this Agreement;
8.1.5 Any
Pledgor transfers the Pledged Interest without the prior written consent of
Pledgee, except as provided in Clause 7.1.1 herein;
8.1.6
Loans, encumbrances, indemnities, promises or any other remedies arising in
connection with breach which demands that Pledgor immediately perform all the
obligations including payment of all outstanding payments due leads the Pledgee
believe that the Pledgor’s ability to perform his or her obligations under this
Agreement has been adversely affected.
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8.1.7
Pledgor cannot satisfy its indebtedness or any other debt;
8.1.8 The
promulgation of any applicable laws or regulations renders this Agreement
illegal or makes the Pledgor’s performance under this Agreement
impossible.
8.1.9 Any
approval, license, permit or authorization of government agencies that makes
this Agreement enforceable, legal and effective is withdrawn, terminated,
invalidated or substantively changed.
8.1.10 A
adversely change occurring in the financial conditions of Pledgor leads Pledgee
to believe the Pledgor’s ability to perform his or her obligations under this
Agreement has been adversely affected.
8.1.11
The discontinuance, termination, forced closure or liquidation of the Pledgor or
4S Stores.
8.1.12
Any other event precludes Pledgee to exercise its pledge right under the
applicable laws.
8.2
Pledgor shall immediately notify Pledgee in writing upon the incident of any
Event of Default or any event which with lapse of time and/or notice will
constitute an Event of Default.
8.3
Unless the Event of Default specified in Clause 8.1 aforesaid has been resolved
satisfaction, Pledgee may deliver a written notice of default to Pledgor, which
demands that Pledgor immediately perform all the obligations or enforces or
disposes of the Pledged Interest in accordance with the Clause 9 under this
Agreement.
9.
ENFORCEMENT OF PLEDGES
9.1 Prior
to the Pledgor’s security obligation has been discharged, Pledgor shall not
transfer its equity interest without prior written consent of
Pledgee.
9.2 An
Enforcement Notice shall be delivered to Pledgor before Pledgee exercise its
Pledge right under this Agreement.
9.3
Subject to Clause 8.3, from and including delivery of the Default Notice under
this Agreement, Pledgee shall become entitle to exercise the right of Pledged
Interest at its sole discretion.
9.4
Pledgee is entitled to enforce the pledges of first order in priority by dispose
of the pledge interests hereunder legally.
9.5 The
Pledgor shall not hinder and shall take necessary assistance for the enforcement
of pledges by Pledgee.
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10.
ASSIGNMENTS
10.1
Without Prior written consent by Pledgee, the Pledgor shall not assign or
transfer all or any of its rights or obligation under this
Agreement.
10.2 This
Agreement shall have binding force on Pledgor and its successors and assigns,
and this Agreement is in full force and effect for the Pledgee and its
successors and assigns.
10.3
Pledgee may transfer or assign the security obligation to any third party
designated by it. In that event, the assignee shall have the same rights and
obligations as the Pledgee under this Agreement. The Pledgor shall execute
relevant agreements or documents in connection with the assignment upon received
the request of Pledgee.
10.4 The
Parties shall execute a new pledge equity agreement provide the verification of
the Pledgee which caused by assignment.
11.
BREACH OF AGREEMENT
11.1 Any
breach of provisions under this Agreement, or Pledgor fails to perform the
obligation of security in time, or the breach of contract pursuant to the
sub-clause 8.1 shall deem as breach of agreement by Pledgor. Pledge may notify
the Pledgor in writing to ask for correction and take actions to eliminate the
consequence and indemnify Pledgee for its breach pursuant to specifications
under this Agreement.
11.2 In
the event of breach by Pledgor, the Pledgee may terminate the performance of
obligations hereunder temporarily by deliver a written notice to Pledgor in
consideration that the performance is impossible or unfair until the Pledgor
take the actions to eliminate the consequence and indemnify the costs arising in
connection with the breach.
11.3
Pursuant to this clause, Pledgee is entitle the right to claim Pledgor to be
compensated for all losses, including the direct economic losses, any reasonably
foreseeable indirect economic losses and related costs arising there from,
including but not limited to legal fees, litigation costs , arbitration fees and
travel expenses.
12.
TERMINATION
This
Agreement shall be terminated upon the performance of the obligation of security
by Pledgor is completed, then Pledgee shall cancel or terminate this Agreement
as soon and reasonable as practicable. The Pledgor shall not terminate this
Agreement in any reason by any way without the consent of the
Pledgee.
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13.
COMMISSION AND OTHER FEES
13.1 Any
and all costs and actual expenses incurred in connection with this Agreement,
including, without limitation, any legal fees, disbursements, stamp duties or
any other taxes and fees are undertaken by the Pledgor. The Pledgor shall
compensate the Pledgee for costs and expenses which was undertaken by the
Pledgee pursuant to the applicable laws.
13.2 Pledgor
shall undertake any and all costs and expenses (including, without limitation,
taxes, commission charges, administration fees, legal fees, fees of attorney and
any insurance fees) in the event that Pledgor fail to pay any or all of taxes,
expenses or for any other reason that cause Pledgee have such
claim.
14.
GOVERNING LAW AND SETTLEMENT OF DISPUTES
14.1 The
execution, effectiveness, performance, construction and settlement of disputes
shall be governed by the laws of the PRC.
14.2 In
the event of any dispute with respect to or in connection with the construction
and performance of the provisions of this Agreement, the Parties shall first
negotiate in good faith to resolve the dispute. In the event the Parties fail to
reach an agreement on the resolution of such a dispute, any Party may submit the
relevant dispute to China International Economic and Trade Arbitration
Commission in Shijiazhuang for binding arbitration. The languages used during
arbitration shall be Chinese. The arbitration shall be final and binding by both
Parties.
14.3 The
Parties shall in good faith in all other respects continue their implementation
of this Agreement except issues in dispute between the Parties.
15.
NOTICES
All the
notices or other communications given or made pursuant hereto shall be sent in
writing in Chinese and delivered to the address as specified below by personally
delivery, registered mail pre-paid post, courier or facsimile
transmission.
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Pledgee:
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Hebei
Xxxxxx Xxxx Trade Co., Ltd.
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Address:
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000
Xxxx Xxxxxxxxx Xxxx, Xxxxxxxxxxxx
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Facsimile:
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0000-00000000
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Telephone:
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0000-00000000
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Attention:
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Zhang
Zhongwen
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Pledgor:
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Hebei
Xxx Xxx Investment Co., Ltd.
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Address:
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000
Xxxx Xxxxxxxxx Xxxx,
Shijiazhuang
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9
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Facsimile:
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0000-00000000
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Telephone:
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0000-00000000
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Attention:
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Song
Xxxxxxxx
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16.
SCHEDULES AND ANNEXES
All
schedules are an integral part of this Agreement.
17.
WAIVER
No delay
or omission by Pledgee in exercising the right, remedy, power or privilege by
this Agreement shall be deemed as a waiver of such right, remedy, power or
privilege. The single or partial exercise of any right, remedy, power or
privilege shall not preclude any exercise of any other right, remedy, power or
privilege. The right, remedy, power or privilege under this Agreement is
cumulative and are not exclusive of any right, remedy, power or privilege
provided by laws.
18.
MISCELLANEOUS
18.1
No amendment, supplementary or modification of this Agreement shall occur except
in writing. The amendment agreement and supplementary agreement that have been
signed and sealed by the Parties shall have the same validity as this
Agreement.
18.2
In the event that any provision of this Agreement is determined to be invalid or
unenforceable in any respect in accordance with the applicable laws, the
validity or enforceability of the remaining provisions of this Agreement shall
not be affected.
18.3
This Agreement is signed in quadruplicate originals, with each of equally
binding force.
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[REMAINEDROF
PAGE INTENIONALLY LEFT BLANK]
[SIGNATURE
PAGE]
PLEDGEE: Hebei Xxxxxx Xxxx Trade Co.,
Ltd.（SEAL）
AUTHORIZED
PERSON:（SIGNATURE ）:
PLEDGOR: Hebei Xxx Xxx Investment
Co., Ltd.（SEAL）
AUTHORIZED
PERSON:（SIGNATURE ）:
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SCHEDULE
THE
AMOUNT OF CAPITAL AND PERCENTAGE OF OWNERSHIP HOLD BY PLEDGOR
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SCHEDULE
THE
AMOUNT OF CAPITAL AND PERCENTAGE OF OWNERSHIP HOLD BY PLEDGOR
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NO.
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4S
STORE
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Capital
(RMB 0000’)
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Equity
Percentage
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Note
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|||||||
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1
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Shijiazhuang
Beohe Auto Sales and Service Co., Ltd.
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600 | 40 | % | |||||||
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2
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Shijiazhuang
Xinhua Toyota Auto Sales and Service Co., Ltd.
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670 | 67 | % | |||||||
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3
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Hebei
Shengmei Auto Trade Co., Ltd.
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480 | 96 | % | |||||||
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4
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Handan
Aohua Auto Sales and Service Co., Ltd.
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200 | 20 | % | |||||||
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5
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Handan
Defeng Auto Sales and Service Co.,Ltd.
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450 | 90 | % | |||||||
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SEAL:
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DATE:
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