Creditor’s Rights Transfer Contract Between CHINA SUNERGY (NANJING) CO., LTD. (The Transferor) And CEEG (Nanjing) International Trading Co., Ltd. (The Transferee) Date: October 14, 2008 A.D.
Exhibit
4.58
Creditor’s
Rights Transfer Contract
Between
CHINA
SUNERGY (NANJING) CO., LTD.
(The
Transferor)
And
CEEG (Nanjing) International Trading Co., Ltd.
(The
Transferee)
Date:
October 14, 2008 A.D.
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The
Creditor’s Right Transfer (hereinafter referred to as “the Contract”) is
executed on October 14, 2008 by and between:
CHINA
SUNERGY (NANJING) CO., LTD. (hereinafter referred to as “the Transferor”), a
limited company incorporated and existing under the laws of the People’s
Republic of China, with its registered address at Xx. 00 Xxxxxxxx Xxxx,
Jiangning Economy and Technology Development Zone, Nanjing; and
CEEG
(Nanjing) International Trading Co., Ltd. (hereinafter referred to as “the
Transferee”), a limited company incorporated and existing under the laws of the
People’s Republic of China, with its registered address at Xx. 000 Xxxxx Xxxx,
Xxxxxx Xxxxxxxx.
WHEREAS,
the Transferor executed Product Sales Agreement (See
Appendix I) with Phoenix Silicon International Corporation (hereinafter referred
to as “PSI”) on Sept.5, 2007; PSI is a limited company by shares incorporated
and existing under the laws of Taiwan, with its address at 0X, Xx.0 Xx-Xxxx
Xxxx, Xxxxxxx Xxxx, Xxxxxxx;
WHEREAS,
the Transferor has prepaid USD 6,510,000 to PSI as per Product Sales Agreement but
PSI is unable to perform the obligation of delivering goods pursuant to the
agreement; since PSI is unable to deliver the goods, it is negotiating with the
Transferor with respect to the repayment of the prepayment; PSI repaid USD
100,000 to the Transferor in May 2008 and is negotiating about the plan for
repaying the remaining USD 6,410,000; and
WHEREAS,
the Transferor intends to sell and transfer to the Transferee its Creditor’s Rights of USD
6,410,000 towards PSI based on Product Sale Agreement and
the Transferee intends to buy the Transferor’s Creditor’s Rights and
interests based on Product
Sale Agreement pursuant to the stipulations and terms
herein;
Therefore,
the Transferor and the Transferee hereto agree as follows:
1.
Creditor’s rights to be transferred
In
accordance with the stipulations and terms hereunder, the Transferor shall sell,
transfer, transmit and deliver its creditor’s right, interests and other
incidental rights towards PSI, the total sum of which is USD 6,410,000; and the
Transferee shall buy and accept the transfer of the abovementioned creditor’s
rights, interests and other incidental rights (hereinafter referred to as “the
Creditor’s Rights”).
2.
Price
The
Transferee shall pay USD 6,410,000 to the Transferor as the consideration to
assign the Creditor’s Rights. The Transferee shall, on the Closing Date (as
defined below), remit the consideration to the bank account designated by the
Transferor.
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3.
Representations and warranties of the Transferor
The
Transferor hereby represents and warrants with respect to the following
matters:
(1) The
Transferor is a limited company incorporated and existing under the laws of the
People’s Republic of China; the Transferor has the right of legal representation
and is entitled to execute the Contract and perform all the obligations
hereunder; and
(2) The
Transferor is the owner of the Creditor’s Rights of USD 6,410,00 in total, which
is transferred and transmitted to the Transferee with the consent of PSI
provided that the Transferor doesn’t warrant that PIS is able to discharge the
Creditor’s Rights and is not responsible for collecting the Creditor’s Rights
from PSI.
4.
Representations and warranties of the Transferee
The
Transferee hereby represents and warrants with respect to the following
matters:
(1) The
Transferee is a limited company incorporated and existing under the laws of the
People’s Republic of China; the Transferee has the right of legal representation
and is entitled to execute the Contract and perform all the obligations
hereunder; and
(2) The
Transferee has executed the Contract at its own discretion; whether such
discretion is proper is resulted from its own judgment; opinions of professional
consultants are sought when necessary.
5.
Closing
(1) The
closing hereunder (hereinafter referred to as “the Closing”) shall be effected
on the execution date hereof or within thirty days after the execution date
hereof or on the date otherwise agreed upon by the parities in writing
(hereinafter referred to as “the Closing Date”).
(2) The
Transferor shall deliver the following documents to the Transferor at
Closing:
(a) One
copy of Product Sale
Agreement;
(b)
Orders placed by the Transferor pursuant to Product Sale
Agreement;
(c) PSI’s
letter of consent with respect to consent of transfer the Creditor’s Rights;
and
(d) The
Transferor’s notice notifying the Transferee of transfer of the Creditor’s
Rights.
6. Other
rights and obligations
The
Transferor agrees to make commercially reasonable efforts to provide information
and documents related to the Creditor’s Rights so that the Transferor can obtain
and exercise the Creditor’s Rights and related interests.
7. Fees
and tax
The
Transferor and Transferee agree that they shall respectively bear legal fees and
other fees arising from preparation and execution of the Contract.
The
Transferor shall bear the stamp duty and other taxes arising from the
Contract.
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8.
Confidentiality
Unless
otherwise required by statutes, the Transferor and Transferee shall not share
with, divulge or disclose to any third party the contents hereof.
9.
Miscellaneous
Amendment
of any article hereof shall be invalid unless it is in written form, approved
and signed by the Transferor and the Transferee.
10.
Applicable law and jurisdiction
The
Contract shall be governed by laws of the People’s Republic of China. The two
parties hereof agree that any and all disputes arising from the Contract shall
be submitted to Shanghai Branch of China International Economic and Trade
Arbitration Commission for arbitration in accordance with its then current rules
and procedure. The arbitration fees shall be borne by the losing
party.
11.
Counterparts
The
Contract is in duplicate, with each party holding one counterpart
respectively.
The
Transferor:
CHINA
SUNERGY (NANJING) CO., LTD. /Seal/
Representative:
/s/
The
Transferee:
CEEG
(Nanjing) International Trading Co., Ltd. /seal/
Representative:
/s/
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