Unofficial English Translation) Loan Agreement
Exhibit
99.12
(Unofficial English
Translation)
Borrower:
Xi’an Orient Petroleum Group Co., Ltd.
Bank:
China EverBright Bank, Xi’an Office
Section
I. General Provisions
This Loan
Agreement (the “Agreement”) is entered into by and between the Borrower and the
Bank pursuant to the relevant laws and regulations of China.
Section
II. Use of Loan
Article
1
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(1)
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The
Borrower shall use the loan provided by the Bank hereunder (the “Loan”)
only for repayment of debts.
|
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(2)
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The
Borrower shall not use the Loan for any other purposes without the Bank’s
prior written consent.
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Section
III. Currency, Amount of Loan, Time of Payment
Article
2
The
amount of the Loan hereunder shall be Eight Million Renminbi.
Article
3
The
repayment period for the Loan hereunder begins on September 7, 2009. The Loan is
due on September 6, 2010.
Article
4
The Bank
shall transfer the full amount of the Loan to the Borrower’s account in the Bank
on September 7, 2009.
Section
IV. Calculation of Interests
Article
5
The
Borrower shall pay interests at a fixed annual interest rate of
6.372%.
Article
6
The
parties agree that if the People’s Bank of China adjusts the benchmark lending
rate or the interest calculation method during the Agreement term and such
adjustment is applicable to the Loan hereunder, the Bank has the right to change
the interest rate of the Loan accordingly and such change is not subject to the
Borrower’s consent.
Article
7
The
interests of the Loan shall be paid on a monthly basis. The date of payment
shall be on the 20th day of
each month.
Article
8
The
annual interest of the Loan shall be calculated based on 365 days a year
starting from the date that the Bank transfers the Loan to the Borrower’s
account.
Article
9
If the
Borrower fails to repay the principal of the Loan, the Bank has the right to
charge a late fee at a daily rate equivalent to the fixed annual interest rate
under Article 5 plus 50% (6.372%+50%) starting from the date that the Loan is
due until the date that the Borrower completes the repayment.
If the
Borrower uses the Loan for purposes other than the intended purpose, the Bank
has the right to charge a penalty at a daily rate equivalent to the fixed annual
interest rate under Article 5 plus 100% (6.372%+100%) starting from the date
that the Borrower uses the Loan for such purpose until the date that the
Borrower completes the repayment.
Article
10
If the
Borrower fails to pay the interest on time, the Bank has the right to charge a
late fee at a daily rate equivalent to the fixed annual interest rate under
Article 5 plus 50% (6.372%+50%) starting from the date that the interest is due
until the date that the Borrower completes the payment of interest.
Section
V. Prerequisites
Article
11
The Bank
shall not provide the Loan hereunder unless the Borrower fulfills the following
conditions:
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(1)
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The
Borrower has provided all corporate documents required by the Bank and the
Borrower makes no material changes to its operation as compared with the
information on the documents or Borrower provides satisfying explanation
for the material changes of its operation if
any.
|
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(2)
|
The
Borrower has completed all the documentations in connection with the Loan.
Such documentations shall have the same legal effect as the
Agreement.
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(3)
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The
Borrower has obtained all necessary license and permits to receive the
Loan and completed all registration procedures with the government. The
Borrower shall also, if requested by the Bank, arrange public notary for
the Agreement.
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(4)
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If
security or guarantee is required for the Loan hereunder, the Borrower
shall have completed the registration and insurance for the
collaterals.
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(5)
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The
Borrower has no breaching conducts as set forth in the
Agreement.
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Section
VI. Repayment
Article
12
The dates
and amounts for repaying the principal of Loan are as follows:
|
(1)
|
The
first payment of 2,000,000 RMB shall be made by December 7,
2009.
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(2)
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The
second payment of 2,000,000 RMB shall be made by March 7,
2010.
|
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(3)
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The
third payment of 2,000,000 RMB shall be made by June 7,
2010.
|
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(4)
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The
fourth payment of 2,000,000 RMB shall be made by September 6,
2010.
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Article
13
The
Borrower shall repay the Loan pursuant to the terms and conditions under the
Agreement. If the Borrower fails to comply with the repayment terms, the Bank
has the right to deduct fees, interests and overdue principal of the Loan
directly from any of the Borrower’s accounts in the Bank.
Article
14
If one
payment made by the Borrower is less than the amount proscribed under the
Agreement, such amount shall first be applied to any outstanding fees, then the
interests, and then the principal of the Loan.
Article
15
The
Borrower may request for early repayment by submitting the request to the Bank
30 days in advance and repay the Loan earlier than the proscribed due date with
the Bank’s prior written consent.
Article
16
The
Borrower may request to extend the repayment period by submitting a written
request to the Bank _____ days before the original due date. If the Bank agrees
to extend the repayment period, the parties shall enter into an agreement on
extending the repayment period.
Section
VII. Guarantee
Article
17
The
guarantors of the Loan are Huangling County Qinlong Co., Ltd., Xi’an Oceanic
Petroleum Engineering Co., Ltd. and Anping Yao. The guarantors provide joint
guarantee for the repayment of the Loan and interests.
Article
18
The Bank
and the guarantors shall enter into Guarantee Agreements and complete all
necessary registration procedures.
Article
19
If the
repayment period is extended by the parties hereunder, the Guarantee Agreements
shall remain effective during the extended period.
Section
VIII. Related Fees
Article
20
The
Borrower shall pay all fees and expenses generated in connection with the Loan
and the performance of the Agreement, including but not limited to attorney’s
and auditor’s fees, insurance payment, and charges for public notary, assessment
and registration.
Article
21
Upon
request by the Bank, the Borrower shall reimburse the Bank any fees or expenses
generated in connection with the Loan and the performance of the Agreement,
including but not limited to litigation fees, attorney’s fees, and traveling
expenses.
Section
IX. Borrower’s Representations and Warranties
Article
22
The
Borrower is a corporate entity legally established under the Chinese laws and
has full right and power to operate business and undertake any civil liabilities
arising from its conducts.
Article
23
The
Borrower has full right to sign or authorize a representative to sign the
Agreement. The Borrower has also obtained all necessary consent on entering the
Agreement. The Agreement is effectively executed by an authorized legal
representative of the Borrower.
Article
24
The
Borrower has obtained all necessary government permit or third party consent to
enter the Agreement. The execution and performance of the Agreement by the
Borrower has no conflict against any corporate charters of the Borrower or any
contract under which the Borrower is a party.
Article
25
Any
documentation, information, representation provided by the Borrower is true,
complete, accurate and effective. The financial statements submitted by the
Borrower truly reflect the financial status of the Borrower at the time of
submission.
Article
26
The
Agreement constitutes legally binding obligations to the Borrower.
Article
27
The
Borrower has opened an account in the Bank. This account will be used for all
settlements and payments under the Agreement.
Article
28
To ensure
the legality, effectiveness and enforceability of the Agreement, the Borrower
has completed or will complete all necessary registration or notary
procedures.
Article
29
The
Borrower has not been involved in any litigation, claims, arbitration or
administrative procedures that has impact to its performance under the
Agreement.
Article
30
The
Borrower’s representations and warranties shall remain accurate and true until
the Borrower repays all principal and interests under the Agreement. The
Borrower will also provide relevant documentation upon the request of the
Bank.
Article
31
The
Borrower has not breached any agreement under which the Borrower is a
party.
Article
32
The
Borrower understands the terms and conditions under the Agreement. The execution
and performance of the Agreement by Borrower is voluntary.
Article
33
The
Borrower will provide any documentations or information requested by the Bank,
unless such documentation or information is confidential and protected by law.
The Borrower will also coordinate with the Bank in terms of credit investigation
and review.
Article
34
The
Borrower will coordinate with the Bank in terms of financial investigation and
supervision. The Borrower is also obliged to provide the latest financial
statements and credit information to the Bank.
Article
35
The
Borrower will notify the Bank upon a 30-day notice of any changes of corporate
name, legal representative or corporate address of the Borrower.
Article
36
The
Borrower will notify the Bank upon a 30-day notice of any material changes, such
as property leasing, change of ownership, consolidation, merger, entering into
joint venture, separation of business, transfer of assets, or any plan of
suspension, dissolution or bankruptcy, or plans of any other material changes
that may influence the performance of the Agreement. The Borrower will not
proceed with any of the above said material changes unless the Bank consents in
writing.
Article
37
The
Borrower will not enter into loan agreement with any third party, or provide
guarantee for any third party, or place collateral on its properties that may
influence the Borrower’s ability to repay the Loan without prior written consent
of the Bank.
Article
38
The
Borrower will notify the Bank in writing of any events that may have negative
impact on the operation of the Borrower’s business or on the Borrower’s
performance of the Agreement.
Section
X. Breach of Agreement
Article
39
Any of
the following conducts shall constitute breach of the Agreement by the
Borrower:
|
(1)
|
The
Borrower fails to repay the principal or interests pursuant to the
Agreement;
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(2)
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The
Borrower uses the Loan for purposes other than the intended purpose
proscribed by the Agreement;
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(3)
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The
Borrower provides false or incomplete financial statements that omit
material facts, or the Borrower rejects the Bank’s review and inspection
on its financial activities;
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(4)
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The
Borrower or its guarantors makes false or misleading representations under
the Agreement or the associated guarantee
agreements;
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(5)
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The
Borrower or its guarantors breaches any agreement under which the Borrower
or its guarantor is a party;
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(6)
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The
Borrower or its guarantors experiences serious financial
problems;
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(7)
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The
collateral or pledge for the Loan is destroyed, depreciated or
lost;
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(8)
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The
Borrower or its guarantors fails to make satisfying arrangements of Loan
repayment in case of consolidation, separation or reorganization of
business;
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(9)
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The
Borrower or its guarantors is bankrupt, dissolved or shut down, or the
operation license of the Borrower or its guarantors is cancelled or
suspended;
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(10)
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The
Borrower fails to notify the Bank of the following
events:
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|
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i.
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Any
material changes of the Borrower’s bylaws or
business;
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|
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ii.
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Any
material changes of the Borrower’s accounting
principles;
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iii.
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Any
material changes of the financial status of the Borrower or its
subsidiaries; or
|
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iv.
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Any
litigation proceedings, arbitration, or administrative procedures that may
have a negative impact on the Borrower’s financial status or on the
Borrower’s performance of the
Agreement.
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(11)
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The
Borrower breaches any other terms or conditions under the Agreement and
fails to provide satisfying remedy;
or
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(12)
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The
Borrower is involved in any events or conditions that may have material
negative impact on the Bank’s interests under the
Agreement.
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Article
40
The Bank
has the right to notify the Borrower of the occurrence of any of the above
events and seek the following remedies:
|
(1)
|
The
Bank may stop providing the Loan to the
Borrower;
|
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(2)
|
The
Bank may announce that the provided portion of the Loan is due immediately
and request repayment for the provided principal and interests
accrued;
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(3)
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The
Bank may request additional or change of guarantors, collaterals or
pledges;
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(4)
|
The
Bank may deduct the outstanding repayments directly from any of the
Borrower’s accounts in the Bank;
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(5)
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The
Bank may execute its right on the collaterals or pledges;
and
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(6)
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The
Bank may seek other remedies that the Bank deems
proper.
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Section
XI. Miscellaneous
Article
41
The Bank
has the right to oversee the Borrower’s use of the Loan. The Borrower shall
provide information and explanation on the use of the Loan upon the Bank’s
request.
Article
42
The
parties shall keep confidential of all information on financial status,
operation and production that they obtain from the execution and performance of
the Agreement unless otherwise provided by law.
Article
43
The
Borrower shall not transfer or assign all or part of its obligations under the
Agreement without the Bank’s prior consent.
Article
44
The Bank
may transfer its obligations under the Agreement to any third party without the
Borrower’s prior consent. The Bank only needs to notify the Borrower in writing
at the time of such transfer.
Article
45
The
amount of repayment by the Borrower shall not be deducted or off set by any
means. If the Borrower is allowed by the law to deduct any payment to the Bank,
the Borrower shall make an additional payment to the Bank excluding such
deduction.
Article
46
Any
extension or exemption of performance, or other preferential treatment provided
by the Bank to the Borrower shall not be deemed as a waiver or restriction of
the Bank’s rights under the Agreement and shall not affect the Borrower’s
obligations under the Agreement.
Article
47
Any terms
or conditions under the Agreement rendered illegal or unenforceable shall not
impair the effectiveness or enforceability of other terms and conditions under
the Agreement.
Article
48
Any
amendments or supplements of the Agreement shall be made in writing and executed
by both parties.
Article
49
The
titles of chapters under the Agreement shall not be deemed as interpretation of
the Agreement.
Article
50
All
notifications under the Agreement must be made in written and sent via mail or
fax. Any party shall notify the other party in writing of any change of address
or fax number.
Article
51
A
delivery of documents is complete when personal delivery is made or three days
after mailing or when a fax is sent.
Section
XII. Dispute Resolution
Article
52
Any
dispute arising from the performance of the Agreement shall first be resolved by
the parties through consultation. If no resolution can be reached through
consultation, the parties may submit the dispute to a court at the location of
the Bank.
Section
XIII. Effectiveness, Amendment and Cancellation of the Agreement
Article
53
The
Agreement is effective upon execution of the legal representative or authorized
representative of the parties.
Article
54
After the
Agreement becomes effective, any party shall not change or terminate the
Agreement without the consent of the other party. Any amendment or termination
of the Agreement shall be made in writing through consultation of both parties.
The Agreement shall remain effective until the written amendment or termination
is executed by the parties.
Section
XIV. Supplement
Article
55
The
parties may enter into supplemental agreement for any unsettled mater
hereunder.
Section
XV. Execution
Article
56
The
Agreement shall be executed in four duplicates. The Borrower shall hold one
duplicate and the Bank shall hold two duplicates. The parties shall submit one
duplicate to the notary public. All duplicates shall have the same legal
effect.
Article
57
The
Agreement is entered into by and between the parties on September 6, 2009, in
Xi’an.
Article
58
The
parties agree to submit the Agreement to a notary public.
Borrower: Xi’an
Orient Petroleum Group Co., Ltd. (signature and seal)
Bank: China
EverBright Bank, Xi’an Office (signature and seal)