Entrust Purchase Agreement between AVIC I International Leasing Co., Ltd. (as the Trustor) and Henan Shuncheng Group Coal Coke Co., Ltd. (as the Trustee) Date: November 3rd, 2009 In Shanghai, PRC
Exhibit
10.59
Agreement
No.: YHZL (09) 02ZL024-WM001
between
AVIC I
International Leasing Co., Ltd.
(as the
Trustor)
and
Henan
Shuncheng Group Coal Coke Co., Ltd.
(as the
Trustee)
Date:
November 3rd,
2009
In
Shanghai, PRC
This
Entrust Purchase Agreement (the "Agreement") is entered into on November 3rd, 2009
in Shanghai by and between:
AVIC I
International Leasing Co., Ltd. (the "Trustor")
Legal
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇'▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
City.
Legal
Representative: ▇▇▇▇▇ ▇▇'an
Telephone
and Fax: ▇▇▇-▇▇▇▇▇▇▇▇
▇▇▇-▇▇▇▇▇▇▇▇
and
Henan
Shuncheng Group Coal Coke Co., Ltd. (the "Trustee")
Registered
Address: Tongye Town North, Anyang County, Anyang City, Henan
Province.
Legal
Address: Tongye Town North, Anyang County, Anyang City, Henan
Province.
Legal
Representative: Wang Xinshun
Telephone
and Fax: ▇▇▇▇-▇▇▇▇▇▇▇
▇▇▇▇-▇▇▇▇▇▇▇
WHEREAS,
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1)
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The
Trustee (as the Lessor) and the Trustor (as the Lessee) entered into a
Financing Leasing Agreement with the reference number of YHZL (09) 02ZL024
on November 3rd,
2009, according to the leasing list attached to such Financing Leasing
Agreement, the Trustee (as the Lessor) hired the product under the leasing
list from the Trustor (as the
Lessee);
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|
2)
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For the purpose of fully
exercising the right of choice to the product by the Trustee as the
Lessee, the Trustor entrusts the Trustee to purchase such products from
the supplier on behalf of the Trustor under the terms and conditions in
this Agreement, and the Trustee accepts such
entrustment.
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Through
friendly negotiations, the parties agree as follows:
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1.
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Definition
and Interpretation
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1.1
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Definition
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Unless
otherwise stipulated in this Agreement, the following terms shall have the
meaning as follows:
"Product"
means all the equipments and the attached spare parts, software, services listed
in Annex I.
"Price of
Product" means RMB
Sixty Million One Hundred and Four Thousand Four Hundred and Thirty Yuan and
Twenty-two cent (￥60,104,430.22);
"Supplier"
means the supplier listed in Annex I;
"Acceptance
Certificate" means the inspection and acceptance certificate with the content
and form as the Annex II of the Financial Leasing Agreement with the reference
number of YHZL (09) 02ZL024;
"Lease"
means the product lease constituted by the Financial Leasing Agreement with the
reference number of YHZL (09) 02ZL024 and its leasing list;
"Purchasing
Agreement" means the order, purchasing Agreement or other purchasing documents
entered into by and between the Trustee and the Supplier regarding the product
purchase under this Agreement;
"Ownership"
means the ownership and other rights and interests of the Product transferred
from the Supplier according to the Purchasing Agreement;
"Delivery
Date" means the Delivery Date provided in the Purchasing Agreement;
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1.2
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Interpretation
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(a)
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The
headings to the articles hereof are for convenience only and shall not
affect the interpretation of this
Agreement.
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(b)
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Unless
otherwise specified in the context, the articles and annexes hereof shall
be the articles and annexes of this
Agreement.
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2.
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Purpose
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In
accordance with the Lease, for the lease provided by the Trustor as the Lessor
to the Trustee as the Lessee, the Trustor shall purchase the designated products
from the designated supplier as designated by the Trustee as the
Lessee.
For the
purpose of fully exercising the right of choice and confirm to the product and
supplier by the Trustee as the Lessee, the Trustor entrusts the Trustee to
purchase the Product from the Supplier on behalf of the Trustor. The
Trustee agrees to accept the entrustment from the Trustor and enter into
relevant Agreements with the Product Supplier (the Agreements entered into by
the Trustee related to the Product under this Agreement before the execution of
this Agreement shall be included in the entrustment of this
Agreement).
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3.
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Product
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The
Product under this Agreement shall be the Product under the Lease.
The
Product will be chosen by the Trustee without any influence by the Trustor or
relying upon any skills of the Trustor.
Furthermore,
the Supplier for the Product will also be chosen by the Trustee, the Trustor has
not made any recommendation or warrant to the Supplier.
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4.
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Entrustment
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The
Trustor entrusts the Trustee to purchase Product from the Supplier on behalf of
the Trustor, and the Trustee accepts such entrustment.
The
Trustee in entitled to:
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1)
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Negotiate
and confirm the purchasing condition for the Product with the
Supplier;
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2)
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Enter
into Purchasing Agreement with the Supplier (or other Agreement with the
same nature, such as Purchasing and Sales Agreement, Project General
Agreement, etc, hereinafter referred as the "Purchasing
Agreement").
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Notwithstanding
with the above, the Trustee must obtain prior written consent from the Trustor
before it enters into the Purchasing Agreement. After the Trustee
enters into the Purchasing Agreement, it shall promptly provide the Trustor one
original copy of each the Purchasing Agreement and the technical
specifications. Without written consent of the Trustor, the Trustee
shall not amend the Purchasing Agreement or enter into any supplementary
agreement, otherwise the Trustor is entitled to terminate this Agreement and
request Trustee to assume relevant compensation liabilities.
Signing
Purchase Agreement by the Trustee shall constitute sufficient evidence that the
Trustee, as the Lessee, acknowledges and accepts all the terms and conditions
under the Purchase Agreement.
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5.
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Price
and Payment of the Product
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The
Trustee has confirmed with the Supplier that the Price of Product is RMB Sixty Million One
Hundred and Four Thousand Four Hundred and Thirty Yuan and Twenty-two cent
(￥60,104,430.22),
including all the amount that the Trustor needs to pay to obtain the ownership
according to the Purchasing Agreement. If any other expenses are
required to perform the obligations in this Agreement of the Supplier, such
expenses shall be ▇▇▇▇▇ by the Trustee, no liability shall be assumed by the
Trustor. However, even if the Trustee bears such expenses, the
Trustor shall still have the ownership of the Product; the Trustee shall not
claim any ownership or other rights or interests on this Product.
The Price
of Product shall be paid in two installments:
First
payment installment: Within 5 business days after all the following conditions
are satisfied, the Trustor shall make the first installment of the Price of
Product with the amount of RMB Eighteen Million
Thirty-four Thousand Four Hundred and Thirty Yuan and Twenty-two cent
(￥18,034,430.22) by
means of wire transfer into the following account:
Name of
Account: Henan Shuncheng Group Coal Coke Co., Ltd.
Opening
Bank: Anyang Zhongzhou Branch of China Construction Bank
Account
Number:
The
payment of Price of Product by the Trustor shall subject to the satisfaction of
the following preconditions:
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(1)
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The
Trustor receives the copy of the Business License of the Trustee (the
Trustee shall seal its stamp on such copy to prove it is the same with the
original);
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(2)
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The
Trustor receives the payment notice signed by the Trustee regarding the
equipments;
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(3)
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The
Trustor receives the acceptance certificate for leasing equipment signed
by the Trustee;
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(4)
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The
Trustor receives the copy of Purchasing Agreement regarding the leasing
(the Trustee shall seal its stamp on such copy to prove it is the same
with the original);
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(5)
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The
Trustor receives the first installment leasing management fee and the
first installment insurance fee and the Agreement notarial fee from the
Trustee based on the Lease;
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(6)
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Relevant
equity pledge registration procedures have been completed according to the
Equity Pledge Agreement with the reference number of YHZL (09)
02ZL024-ZY001.
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Second
payment installment: Within 5 business days after all the following conditions
are satisfied, the Trustor shall make the second installment of the Price of
Product with the amount of RMB Forty-two Million
Seventy Thousand Yuan (￥42,070,000.00) to the
Trustee.
The
payment of Price of Product by the Trustor shall subject to the satisfaction of
the following preconditions:
The
Trustor receives the 0 period rent and guarantee money paid by the Trustee based
on the Lease.
The
Trustee shall issue legal receipt promptly after receiving the Price of Products
paid by the Trustor with the description of "entrustment purchasing
amount". The Trustee shall pay the Supplier according to the
Purchasing Agreement and provide the Trustor with the copy of payment
certificate and seal the stamp of the Trustee on such copy.
The
obligation of the Trustor for the Product purchasing is paying the Price of
Product according to this Article, other obligations of the buyer (whether
expressed or implied) related to the Product purchasing shall be assumed by the
Trustee.
If the
Trustor fails to pay the Price of Product according to this Article due to its
own fault, the Trustor shall compensate all the direct loss of the Trustee due
to such failure.
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6.
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Representations
and Warranties
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The
Trustee hereby represents and warrants that:
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(a)
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It
is duly organized and valid existing, it has the right to enter into and
perform this Agreement;
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(b)
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The
execution and performance of this Agreement will not violate the articles
of association of the Supplier or other documents under which the Supplier
is a party or binding to the
Supplier;
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(c)
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All
approval, notice, registration, or other related actions of any government
departments or its authorities for the execution and performance of this
Agreement has been obtained, given, completed or taken if such consent or
action is legally required;
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The
Trustee further represents and warrants that:
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(a)
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The
Supplier has the full ownership of the Product; it has right to sell such
Product;
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(b)
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The
Trustor will have the full ownership of the Product, provided it pays the
Price of Product according to this
Agreement;
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(c)
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The
Supplier will not claim any compensate to the Trustor, provided the
Trustor pays the Price of Product according to this
Agreement.
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The
Trustor entered into this Agreement base on the above representation and
warranties.
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7.
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Delivery
and Acceptance
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The
Supplier will deliver the Product directly to the Trustee according to the
Purchasing Agreement, the Trustee shall inspect and accept the Product and issue
an Acceptance Certificate promptly after the inspection and acceptance is
completed.
The
Acceptance Certificate will be the final proof for the acceptance of the Product
by the Trustee as the Lessee.
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8.
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Ownership
and Risk
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The
ownership of the Product will be transferred to the Trustor on the date of
Purchasing Agreement.
All the
risk of loss or damage of the Product shall be taken by the Supplier before the
delivery, and such risk shall be taken by the Trustee after the
delivery.
If
required by the Trustor, the Trustee shall assist and cause the supplier, to the
best of its ability, according to format of Annex 2, to issue the transfer
certificate for ownership of Product to the Trustor to prove that all the
ownership and right and interests are transferred to the
Trustor.
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9.
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Compensation
of the Trustee
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If the
Trustee suffers any loss as the trustee caused by any of the following
cases:
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1)
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The
Supplier delays or fails to delivery the
Product;
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2)
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Defect
of quality of the Product;
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3)
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Defect
of right of the Product;
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4)
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The
Supplier violate its representations, warranties, or confirmation in the
Purchasing Agreement;
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5)
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The
Supplier delays or fails to perform other obligations under the Purchasing
Agreement.
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The
Trustor will not assume any liability. The Trustee shall claim for
compensation directly to the Supplier, and the Trustee confirms that the
Supplier has agreed that the Trustee will claim compensation directly to the
Supplier.
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10.
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Quit
of the Trustor
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The
Trustor is entitled to quit this Agreement without any obligation of payment of
the Price of Product and assume no liabilities to the Trustee and the Supplier
if any of the following cases occurs:
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(a)
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The
delivery and acceptance of the Product has not been completed or the
Trustor has not received the Acceptance Certificate issued by the Trustee
within (30) days after the Delivery
Date;
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(b)
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The
Lease is terminated by the Trustor as the Lessor due to default of the
Lessee;
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(c)
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The
Trustor amends the Purchasing Agreement or enters into supplementary
agreement with the Supplier without written consent of the
Trustor;
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If the
Trustor quits this Agreement according to this Article, the Trustee shall
negotiate on its own with the Supplier to solve all relevant issues to the
Product. In such case, the Trustee shall keep the Trustor out of any
compensation from the Supplier.
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11.
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Correspondence
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Any
notices, request or other communications shall be sent in written form to the
addresses or fax number of the receipt party first hereinabove set
forth.
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12.
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Irrevocable
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The
Trustee must not terminate this Agreement without written consent of the
Trustor.
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13.
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Expenses
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The
Trustor does not need to pay any remuneration to the Trustee or assume any
expenses or costs of the Trustee for the performance of any entrustment under
this Agreement.
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14.
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Assignment
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Any party
must not assign any of its rights and / or obligations under this
Agreement.
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15.
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Amendment
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This
Agreement may be amended by written documents entered into by the
parties.
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16.
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Severability
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If any
provision of this Agreement becomes invalid, illegal or unenforceable, the
effectiveness, legality and enforceability of the remained provisions shall not
be affected or damaged.
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17.
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Entire
Agreement
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This
Agreement constitutes the full and entire agreement between the parties with
regard to the subject matters hereof and thereof and supersedes all previous
oral and written suggestion or agreements of the Parties in respect of the
subject matter of this Agreement. The annexes this Agreement
is an integral part of this Agreement and is equally valid to this
Agreement.
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18.
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Effectiveness
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This
Agreement shall come into effect when all the following conditions are fully
satisfied:
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(a)
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This
Agreement is signed by the legal representatives or authorized
representatives of the parties and stamped by the
parties;
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(b)
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The
notarial acts is completed;
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(c)
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The
Financial Leasing Agreement (with the reference number of YHZL (09)
02ZL024) comes into effect;
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(d)
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The
Trustor receives the original board resolution by the board of shareholder
of the Trustee which approves the guarantee under this
Agreement;
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(e)
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All
relevant equity pledge registration procedures has been completed
according to the Equity Pledge Agreement with the reference number of YHZL
(09) 02ZL024-ZY001.
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19.
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Law
and Jurisdiction
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(a)
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This
Agreement and the rights and obligations of each party shall be governed
by and construed according to the laws of
PRC.
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(b)
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If
any dispute related to this Agreement cannot be settled by negotiation, it
shall be submitted to the court of jurisdiction in the legal address of
the Trustor.
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20.
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Same
Copy
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The
parties shall sign six same copies for this Agreement and each transaction, all
of which together constitute one of the same instrument.
IN
WITNESS WHEREOF the parties have signed this Agreement as of the date first
hereinabove set forth.
The
Trustor: AVIC I International Leasing Co., Ltd.
Signature
(Stamp and signature)
[Stamp of
AVIC I International Leasing Co., Ltd. sealed here]
Name: /s/
▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
The
Trustee: Henan Shuncheng Group Coal Coke Co., Ltd.
Signature
(Stamp and signature)
[Stamp of
Henan Shuncheng Group Coal Coke Co., Ltd. sealed here]
Name: /s/
Wang Xinshun
Title:
Annex I
Product Description
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No.
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Equipment
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Quantity
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Type
|
Agreement
Price
|
Manufacturer
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|||||||
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1
|
Direct-fired
Generator Set
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1 | 32,606,000.00 |
U.S.
Solar Company
|
||||||||
| 9,220,000.00 | ||||||||||||
| 378,430.22 | ||||||||||||
|
2
|
Waste
Heat Boiler
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1 | 2,700,000.00 |
Nanjing
▇▇▇ ▇▇▇ Power Equipment Co., Ltd. (Phase II)
|
||||||||
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3
|
Waste
Heat Boiler
|
1 | 2,980,000.00 |
Nanjing
▇▇▇ ▇▇▇ Power Equipment Co., Ltd.
|
||||||||
|
4
|
Gas
Compressor
|
2 | 5,960,000.00 |
Shenyang
Tou Ping Machinery Stock Limited Company
|
||||||||
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5
|
Nitrogen
Generator
|
2 | 1,000,000.00 |
Sichuan
▇▇▇▇ ▇▇ Science Technology Stock Limited Company
|
||||||||
|
6
|
Nitrogen
Compressor
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2 | 500,000.00 |
Sichuan
Kong Fen ▇▇▇▇ ▇▇▇▇ Compressor ▇▇▇▇▇ Company
|
||||||||
|
7
|
Air
Compressor
|
2 | 470,000.00 |
Henan
Province Guo Xin Electromechanical Complete Equipment Co.,
Ltd.
|
||||||||
|
8
|
Demineralized
Water Preparation System
|
1 | 1,150,000.00 |
Jiangsu
▇▇▇ ▇▇▇ Environmental Protection Equipment Co., Ltd.
|
||||||||
|
9
|
High/Low
Voltage Switch Cabinet
|
38 | 1,460,000.00 |
Henan
Suo Ling Electric Co., Ltd.
|
||||||||
|
10
|
Desulfurizing
Tower and Ammonia Still
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7 | 1,680,000.00 |
Anyang
Municipality ▇▇▇▇ ▇▇▇ Petrochemical Equipment Co., Ltd.
|
||||||||
|
11
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Total
|
60,104,430.22 | ||||||||||
The
Trustor: AVIC I International Leasing Co., Ltd.
Signature
(Stamp and signature)
[Stamp of
AVIC I International Leasing Co., Ltd. sealed here]
Name: /s/
▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
The
Trustee: Henan Shuncheng Group Coal Coke Co., Ltd.
Signature
(Stamp and signature)
[Stamp of
Henan Shuncheng Group Coal Coke Co., Ltd. sealed here]
Name: /s/
Wang Xinshun
Title: