EXHIBIT 10.88
AGENCY CONTRACT FOR ENTRUSTED LOAN
Xxxxxxxx Xxxxxx Xx. 0000 Xxx-xxx-xx X000
Name of the Principal: Tangshan Panda Heat and Power Co. Ltd.
and Tangshan Pan-Western Heat and Power
Co. Ltd.
Residence: Luannan County, Hebei Province
Legal Representative: Xxxxxx Xxxxxx
Name of financial institution with which it keeps account with:
Account Number:
Telephone: 0000-0000000
Zip Code:
Facsimile: 0315-4122610
Name of Agent: China Information Trust and Investment
Corporation
Residence: 00 Xxxxxxx Xxxx, Xxxxxxx
Legal Representative:
Telephone: 00000000
Zip Code: 100846
Facsimile: 63218546
Date of Contract: June 18, 1996
Place of the Contract: Beijing
Principal (hereinafter "Party A"): Tangshan Panda Heat and Power
Co. Ltd. and Tangshan Pan-
Western Heat and Power Co.
Ltd.
Agent (hereinafter "Party B"): China Information Trust and
Investment Corporation
WHEREAS: for the purpose of more effective
application of its funding, Party A hereby
entrusts Party B to make an "Entrusted
Loan" to North China Power Group Company
(hereinafter the "Borrower"), and Party B
hereby agrees to accept such entrustment,
as agent, from Party A. Pursuant to
relevant laws and regulations of the
State, Party A and Party B have entered
into this "Entrustment Contract" (herein
so called) after reaching agreement on the
terms hereof through consultation.
Article One: Party A, Party B and Borrower have
heretofore entered into an amendment to
the former "Loan Agreement" (which as
amended shall be referred to as "Loan
Contract for Entrusted Loan" and is
attached hereto as Attachment One) and
which by its terms designates Party B as
Agent for the Principal with respect to
the Loan Contract for Entrusted Loan, as
required by applicable law.
Article Two: Party A shall make available currency in
accordance with the terms of the
particular "Notice of Entrusted Loan" (in
the form attached hereto as Exhibit A)
issued pursuant to the requirements of the
Loan Contract for Entrusted Loan.
Article Three: For the purpose of this Entrustment
Contract, Party shall open a "Special Fund
Account for Entrusted Loan" with Party B's
banking department and make deposits to
such account in accordance with the terms
of the Loan Contract for Entrusted Loan.
The total amount of funds subject to this
Entrustment Contract shall not exceed the
aggregate amount of funds deposited by
Party A or held on deposit in the Special
Fund Account for Entrusted Loan.
Article Four: The recipient, project, amount, type,
purpose, term, interest rate, drawing and
repayment schedule shall be as specified
in the Loan Contract for Entrusted Loan
and as indicated in the Notice of
Entrusted Loan.
Article Five: Party A shall deliver a Notice of
Entrusted Loan to Party B on the date of
disbursement required in accordance with
the Loan Contract for Entrusted Loan.
Upon receipt of the Notice of Entrusted
Loan provided by Party A, Party B shall
disburse the Entrusted Loan pursuant to
the Notice of Entrusted Loan, after such
Notice of Entrusted Loan is verified as
consistent with the relevant terms and
conditions of the Loan Contract for
Entrusted Loan.
Article Six: In the event that Borrower fails to abide
by or make repayments of principal and
interest in accordance with the terms of
the Loan Contract for Entrusted Loan then
Party A shall have no right to draw from
the Special Fund Account for Entrusted
Loan any amounts attributable to such
outstanding principal or interest not so
paid by Borrower. Party B shall have no
responsibility or liability for the
payment of any such amount attributable to
Borrower's unpaid principal and interest
under the Loan Contract for Entrusted
Loan.
Article Seven: In the event that Borrower shall be in
default under the Loan Contract for
Entrusted loan, Party B shall impose the
penalty therefor provided under the Loan
Contract for Entrusted Loan and in
accordance with relevant banking rules.
Article Eight: In the Event of any default by Borrower
under the Loan Contract for Entrusted
Loan, Party B shall diligently pursue all
claims or other rights to enforcement
against the Borrower, including damages or
collection under the Loan Contract for
Entrusted Loan. Party B shall keep
Party A fully informed regarding the
progress of their pursuit of all such
claims or rights. In the event that
Party A is not satisfied therewith,
Party A shall be allowed to take over the
pursuit thereof in the name and place of
Party B and with the full assistance and
cooperation of Party B.
Article Nine: Interest and Fee. Party B shall pay
interest on the outstanding balance of the
funds held in the Special Fund Account for
Entrusted Loan, at the current deposit
rate of interest published by the People's
Bank of China. Party B will pay such
funds over to Party A semi-annually
immediately following the semi-annual
payment made by Borrower under the Loan
Contract for Entrusted Loan.
Party B shall charge to Party A
[***] FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT
on the balance of the amount of funds
from time to time outstanding to the
account of Borrower. Such fee shall be
deducted from the funds held in the Special
Fund Account for Entrustment Loan, on a
semi-annual basis calculated immediately
following the date of the semi-annual
payment made under the Loan Contract for
Entrusted Loan. In the event that funds
held in the Special Fund Account for
Entrusted Loan are insufficient to satisfy
the amount due to be paid by Party A to
Party B, Party B will submit an invoice
accounting for payment due which shall be
paid by Party A within fifteen days.
Article Ten: Party B shall credit to the account of
Party A, and transfer to Party A's
designated bank account (in immediately
available funds) within two full business
days following receipt of such funds from
the Borrower all payments made by the
Borrower pursuant to the Loan Contract for
Entrusted Loan. Party B will withhold
from such payment 5.5% of the amount of
such funds attributable to the interest
portion of the payment received from the
Borrower; immediately pay such amount
withheld over to the proper tax authority
and provide to Party A a receipt
evidencing such Tax Payment.
Party B shall pay over to the Borrower, in
immediately available funds for the
account of the Borrower, Entrusted Funds
within two full business days from the
receipt of such funds from Party A
Article Eleven: Premature payment of any principal or
interest by the Borrower shall be paid
over to Party A without penalty or other
offset or deduction and in the same manner
as described in Article Ten above.
Article Twelve: No amendment or modification to this
Entrustment Contract shall be effective
unless the same is reduced to writing and
executed by each of Party A and Party B.
No amendment, modification or
accommodation shall be made to the Loan
Contract for Entrusted Loan or with
respect to any payment required thereunder
without the prior written consent of
Party A.
Article Thirteen: Party B may refuse to make available to
the Borrower any funds otherwise due to be
paid to borrower under the Loan Contract
for Entrusted Loan if Party A fails to
deposit the required funds in the Special
Fund Account for Entrusted Loan. In the
event that Borrower fails for any reason
to make a required payment of principal or
interest to Party B, then Party B shall
not be required to make any payment of
such amounts otherwise due to be paid to
Party A under the Loan Contract for
Entrusted Loan, and the provisions of
Article 8 above shall apply.
Article Fourteen: Any written notice or instruction from
Party A under this Contract, including the
Notice of Entrusted Loan will be executed
by both of Tangshan Panda Heat and Power
Co. Ltd. and Tangshan Pan-Western Heat and
Power Co. Ltd.
Article Fifteen: Resolution of Disputes: Disputes arising
out of or in connection with the
performance of this Entrusted loan
Agreement shall be resolved through mutual
consultation between the Parties and
failing resolution thereof, by mediation.
In the case of the failure of any such
consultation or mediation, the dispute may
be resolved by legal action in a court of
appropriate jurisdiction or through
arbitration.
Article Sixteen: For matters not otherwise stipulated in
this Entrustment Contract the relevant
laws, regulations, or financial rules
applicable to transactions of this kind
shall apply.
Article Seventeen: This Entrustment Contract shall take
effect on the date last executed by each
of the Parties hereto, and shall remain in
full force and effect until the Loan
Contract for Entrusted Loan shall have
been finally satisfied or unless otherwise
terminated in accordance with applicable
law.
Article Eighteen: Each Notice of Entrusted Loan hereunder,
when validly executed by Party A and
delivered to Party B shall be and become a
part of this Entrustment Contract.
Article Nineteen: This Entrustment Contract shall be
executed in six original counterparts,
three of which shall be written in English
and three of which will be written in
Chinese.
PARTY A PARTY B
TANGSHAN PANDA HEAT AND CHINA INFORMATION TRUST AND
POWER. CO., LTD. INVESTMENT CORP.
(Company Seal) (Company Seal)\
Authorized Agent Authorized Agent
_______________________________ _______________________________
Date: June 18, 1996 Date: June 18, 1996
TANGSHAN PAN-WESTERN HEAT
AND POWER CO., LTD.
(Company Seal)
Authorized Agent
_______________________________
Date: June 18, 1996
EXHIBIT A
NOTICE OF ENTRUSTED LOAN
PRINCIPAL: TANGSHAN PANDA HEAT AND POWER CO., LTD. AND TANGSHAN
PAN-WESTERN HEAT AND POWER CO., LTD.
BORROWER: NORTH CHINA POWER GROUP COMPANY
Address: _______________________________________
Bank Name & Account No: ___________________________
___________________________
Type of Currency for Loan: Project: 2X50 LUNNAN POWER PLANT
PROJECT
LOAN AMOUNT:_______________________(in words)________(in numbers)
TERM:
INTEREST RATE:
DRAW SCHEDULE: DATE: AMOUNT
_____________________ ______________________
_____________________ ______________________
REPAYMENT SCHEDULE: _____________________ ______________________
_____________________ ______________________
_________________________________________________________________
THE ABOVE LOAN HAS PASSED OUR EXAMINATION. PLEASE CONDUCT YOUR
INVESTIGATION AND VERIFICATION FOR MAKING THE LOAN.
PRINCIPAL: (COMPANY SEAL)
LEGAL REPRESENTATIVE: (SIGNATURE)
(OR ITS AUTHORIZED PERSON)
DATE:
_________________________________________________________________
COMMENTS BY MANAGER OF THE ENTRUSTED AGENT:
SIGNATURE:
DATE:
SIGNATURE OF THE LEGAL REPRESENTATIVE OF THE ENTRUSTED AGENT:
(OR ITS AUTHORIZED PERSON)
DATE:
(COMPANY SEAL OF THE ENTRUSTED AGENT)
AMENDMENT TO AGENCY CONTRACT FOR ENTRUSTED LOAN
This Amendment to Agency Contract for Entrusted Loan is made and
entered into by and between Tangshan Panda Heat and Power Co.,
Ltd. ("Panda"), Tangshan Pan-Western Heat and Power Co., Ltd.
("Pan-Western"), Tangshan Pan-Sino Heat Co., Ltd.("Pan-Sino") and
China Information Trust and Investment Corporation (the "Party
B") on July 17, 1996.
WHEREAS, Panda and Pan-Western are collectively the Party A under
certain Agency Contract for Entrusted Loan between Party A and
Party B dated June 18, 1996, and both Panda and Pan-Western
intend to transfer all of their contractual rights and
obligations to Pan-Sino whereby Pan-Sino will assume the capacity
of Party A under such Contract;
WHEREAS, Party B consents to such transfer among Panda, Pan-
Western and Pan-Sino;
NOW THEREFOR, for good and valuable consideration and the mutual
benefit of the Parties hereunder, the Parties hereto have agreed
to the following Amendment to the Agency Contract for Entrusted
Loan:
1. For the purpose of the Agency Contract for Entrusted Loan,
Panda and Pan-Western shall be substituted by Pan-Sino as Party A
thereunder.
2. This Amendment shall constitute a valid transfer among Panda,
Pan-Western and Pan-Sino pursuant to Article Twelve of the Agency
Contract for Entrusted Loan.
IN WITNESSETH WHEREOF, the Parties, intending to be legally
bound, have caused this Amendment to Agency Contract for
Entrusted Loan to be executed by their duly authorized
representatives as of the day and year first above written.
Party A: Party B:
Tangshan Panda Heat and Power China Information Trust and Investment Co.,
Ltd. Corporation
By: /s/ Xxxxx Xxxxxxxx By:
Title: Title:
(Company Seal) (Company Seal)
Tangshan Pan-Western Heat and Power Co., Ltd.
By: /s/ Xxxxx Xxxxxxxx
Title:
(Company Seal)
Tangshan Pan-Sino Heat Co., Ltd.
By: /s/ Xxxxx Xxxxxxxx
Title:
(Company Seal)
