SPD BANK Agreement for Short-term Loan SHANGHAI PUDONG DEVELOPMENT BANK
Exhibit
10.1
(English
Translation)
Index
No.: 75012009284390
SPD
BANK
Agreement
for Short-term Loan
SHANGHAI
PUDONG DEVELOPMENT BANK
1
Agreement
for Short-term Loan
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To:
Shanghai Pudong Development Bank
Dalian
Branch/Sub-branch
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No.:75012009284390
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Client
Name:
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Dalian
Heavy Mining Equipment Manufacturing Co. Ltd.
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Date
of Application:
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Address:
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Contact
with Client:
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Telephone:
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Contact
with Financing Bank:
(This
section fill out by Finance Bank)
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Fax:
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Our
company hereby irrevocably applies for the short-term liquidity loan from your
bank under the following articles of the agreement:
I. Paramount
Clause
¨ This
Agreement is signed as the subsidiary financing documents for the
<<Agreement for Financing Facilities>> with number________(Hereafter
referred as Agreement for Financing Facilities), after this agreement come into
effect, all of its clause shall be incorporated into the Agreement for Financing
Facilities, and as an integral part (In the event the client has signed a
Agreement for Financing Facilities with the Financing Bank, this option shall be
chosen, and write down the Agreement for Financing Facilities
number;
þ This
agreement is a separate credit document signed between the client and the
Financing Bank (In the event the client has not signed a Agreement for Financing
Facilities with the Financing Bank, this option shall be chosen);
¨ The loan
stated in the agreement is used for paying off the existing debt, which the
guarantor has known well. Original Agreement
Name:
Signing
Date:
Index Number:
(In the
event the loan is used for paying off the existing debt, this option must be
chosen)
II.
Description of the Loan
(If the
interest rate and penalty rate of interest about the loan have been agreed in
the Agreement for Financing Facilities, relevant blanks in the agreement are
permitted to be left unfilled)
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Currency
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Amount
(in
Capital)
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Date
of
Drawing
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Due
Date (or
Period)
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Interest
Rate
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Penalty
Rate for
Overdue
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Penalty
Rate for
Embezzlement
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RMB
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Twelve
Millions Yuan Even
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1/12/2010
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1/11/2011
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12
Months Benchmark interest rate (þ
plus ¨ subtract)
10
%
The interest rate at the time this contract was
signed is 5.841%
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8.7615%
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11.682%
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Foreign
Currency
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¨ __
Month Libor + __
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¨ Other___
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Loan
Purpose
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Cash
Flow
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Method
of Interest Rate Adjustments
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RMB
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In
the even that the People’s Bank of China adjust the Benchmark interest
rate before the release of the agreed loan, then the Benchmark interest
rate of the People’s Bank of China on the loan release date shall be used
as the Benchmark interest rate; In the even that the People’s Bank of
China adjust the Benchmark interest rate after the loan was release and
during the loan period, then
¨
Adjust monthly; adjust on the 21st
day of each month;
þ Adjust
quarterly; adjust on the 21st
day of the last month of the quarter;
¨ No
adjustment;
¨ Other
_______
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Foreign
Currency
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From
the loan release date, adjust monthly
on the corresponding date with the latest foreign currency interest
rate.
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Method
of Interest Calculation
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¨ Monthly
statement, calculated on the 20th
day of each month;
þ Quarterly
statement, calculated on the 20th
day of the last month of the quarter;
¨ Interest
paid on the loan maturity day, interest shall be paid along with the
principle.
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Liquidated
Damages for Early Repayment
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Shall
be equivalent to ___% of the total early
repayment
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2
Note:
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1)
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For
monthly or quarterly statement, the last portion of the interest shall be
paid along with the principle.
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2)
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The
actual drawing date and the maturity date shall be refer to the date noted
on the IOU (Loan Certificate), If the IOU did not specify the
maturity date, the maturity date shall be the actual drawing date plus the
loan period. IOU (Loan Certificate) is the inseparable portion
of this agreement.
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III.
Description of the Guarantee
(If the
guarantee agreement has been reached in the Agreement for Financing Facilities,
relevant blanks in the agreement are permitted to be left unfilled)
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Guarantor
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Dalian Union-Chuangye Bonding Co.
Ltd.
Xxxx,
Xxxxx
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Type
of Guarantee
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¨ Mortgage,
Guarantee Contract number: __________;
¨ Pledge,
Guarantee Contract number:_____________;
þ Assurance,
Guarantee Contract number: YB7501200928439001/02
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IV.
General Clauses
The
client hereby confirms that the following clauses for loan have been read and
agreed:
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1.
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After
the financing bank has signed the agreement, except that the loan has been
granted to the client in accordance with the agreement, it has the right
to cancel the granting of loan agreed in the agreement at any
time.
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2.
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Repayment
and interest calculation method: except otherwise stated therein, the
principle shall be repay at the maturity date in lump
sum. The interest in the agreement shall be calculated
daily from the granting date, and repay in according to the agreement
reach by the client and the financing
bank.
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3.
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Document
submitted: the client must submit the following documents to the financing
bank or meet relevant requirements before withdrawal; however, the
financing bank has no obligations to examine the authenticity of the
documents.
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(1)
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The
latest articles of incorporation, copies of business
license;
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(2)
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The
decisions of the Board of Directors for the client to sign the agreement
and its attached financing documents (in the event the articles of
incorporation of the client gives restrictions on the signing right of the
legal representative);
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(3)
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The
authorization of the representative from the client and signature of the
representative;
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(4)
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The
agreement with legal signature of the
client;
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(5)
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The
withdrawal date agreed by the client should be the business day of the
financing bank;
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(6)
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If
the loan in the agreement is guaranteed, the guarantee document should be
signed and come into effect before
withdrawal;
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(7)
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Loan
certificate with client’s valid name
stamp.
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(8)
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The
documents and/or conditions requests by the financing bank at
anytime;
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4.
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If
the dates of withdrawal and repayment are not a business days of the
financing bank, the dates should be postponed to the next business days
and the interest should be counted within the postponed
days.
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5.
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Advance
repayment and early maturity: Unless the bank has informed the client
about the early maturity, the client must apply for the writing permission
from the bank before making advance repayment, and the financing bank
reserve the right to request the agreed liquidated damages for early
repayment from the client. Any advance repayment shall be
treated as early maturity. The financing bank reserve the right
to request early maturity of the agreed loan to the client without
explanations, the client shall repay the loan
immediately.
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6.
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Tax:
except otherwise stated in the law, the client has to deduct the relevant
taxes out of the repayment according to the law, otherwise, all the amount
agreed in the agreement must be paid off without any
deduction. If the client has to deduct the relevant taxes
according to the law, the client shall pay additional amount to the bank
so that the bank can get full amount specified in this agreement without
any deduction.
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7.
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Statements
and warranties: the client should make the following statements and
warranties, and the statements and warranties are treated as the necessity
whenever the bank grants loans to the client according to the
agreement:
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(1)
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The
client must be an entity registered legally in China (excluding Hong Kong,
Macao and Taiwan, similarly hereinafter). It should have the
right to sign this agreement and all the relevant documents, take any
necessary corporate actions to assure the validity, effect and compulsory
fulfillment of this agreements and relevant
documents;
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(2)
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The
signing and fulfillment of this agreement shall not violate the other
signed contracts and documents, articles of incorporation, applicable laws
and administrative provisions, certain documents and verdicts from
relevant authorities, other obligations and arrangements of the
client. The client shall apply and granted all approval,
authorization, registration and license according to law and maintain
their validity, at the request of the bank, the client shall issue
relevant certificates immediately.
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3
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(3)
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The
client must clarify all financial statements (if any) comply with China’s
law and regulations, which shall be true, integral and judicial to reflect
its financial status; during the signing and fulfillment of the agreement,
the client must make sure that the materials, documents and information
about guarantee and itself submitted to the bank, must be true, effective,
correct and integral without any concealment and
omission;
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(4)
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The
client shall carry out its business in line with the regulations and law;
it must conduct business based on the regulations stated in its business
license and legal scope of business; besides, it should handle annual
check formalities in time;
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(5)
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The
client shall assure that there will be no such conditions and affairs that
can or may cause serious negative influence on its contractual
capability.
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8.
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Commitments:
The client must make following
commitments:
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(1)
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The
client shall repay the loan’s principle, interest and associate fees on
time, and shall fully comply with the obligation in the
agreement;
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(2)
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In
the event the client has known that it is involved in the economic, civil,
criminal and administrative lawsuit procedures with serious negative
influence or its major capital is concerned with any official measures
such as compulsory implementation, being sealed, detention, being frozen
and lien, it should inform the bank in writing form about the influence
and remedial measures taken or to be taken in detail within 5 business
days;
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(3)
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The
borrower promises not to violate the normal order of repay and repay other
loan first, and will not sign any contract or agreement that may resulting
the loan under this agreement in a subordinate
position.
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(4)
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from
the date of signing to the end of repayment in the agreement, without the
written permission from the financing bank, the client will
not:
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a.
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Undergo
the procedures such as liquidation, bankruptcy, reformation, merger
(acquisition),
incorporation, dissolution, capital reduction or similar legal
procedures;
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b.
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Sell,
hire, donate, transfer or deal with its major capital in any form except
the daily business necessary;
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c.
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Reconstruct
its stockownership;
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d.
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Provide
guarantee to a third party that can cause serious negative influence on
its ability to fulfill this
agreement;
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e.
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Sign
contracts/ agreements or take responsibilities that can cause serious
negative influence on its ability to fulfill the
agreement.
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(5)
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When
the guarantee in the agreement meets special conditions or has to be
changed, the client should provide other guarantees up to the requirement
of the financing bank. The special conditions and changes include but not
limited to out of service, dissolution, removal of business license,
applying or being applied for reconstruction and bankruptcy, serious
changes in operation and finance of the guarantor, being involved in
serious lawsuits or arbitrations where its legal representatives,
directors, supervisors or executives are involved in, the values of things
guaranteed are or may be reduced, measures are taken for attachment,
noncompliance against the agreement found or the contracts requested for
cancellation.
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(6)
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Under
the requirements of the financing bank, the client should handle the
notarization with effect of compulsory implementation in the pubic notary
office appointed by the bank, bear the cost and accept the compulsory
implementation willingly;
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(7)
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The
client should inform the financing bank of the events that will influence
its capability to fulfill the obligations under the agreement and the
relevant documents.
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9.
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Market-oriented
interest rates: After the granting of the agreed loan, it the People’s
Bank of China implement the market-oriented interest rates policy of
Renminbi loan, the borrower and the lender shall engaged in consultation
immediately to determine the interest rate
standard.
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10.
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Expenses
and costs: as for the expenses on the modification, signature, compulsory
implementation, notarization and registration of any document, the client
should make compensation to the financing bank at the request of the
financing bank. Except those stated for the financing bank to pay, the
client should pay the stamp tax and other taxes of the agreement and the
relevant documents.
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11.
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Interest
penalty: The client hereby confirms, the financing bank reserve the right
to charge according to the following
criteria:
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(1)
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With
regard to the unpaid and due (the term “maturity” in this agreement also
includes the early maturity announced by the financing bank) principle;
the client should pay the interest penalty to the bank. The interest
penalty shall be calculated daily on the sum unpaid from the due date to
when all principle and interest were
repay.
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(2)
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In
the event the client does not use the loan for what was agreed, the
financing bank reserves the right to charge embezzlement punitive interest
on the loan. The embezzlement punitive interest shall be
calculated daily from the day when the contract was breach to when all
principle and interest were repay.
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(3)
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With
regard to the unpaid and due (the term “maturity” in this agreement also
includes the early maturity announced by the financing bank) interest
(including regular interest, pass due punitive interest, embezzlement
punitive interest); the client should pay additional interest penalty to
the bank with the pass due punitive interest rate. The interest penalty
shall be calculated daily on the sum unpaid from the due date to when all
principle and interest were repay.
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12.
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Authorized
repayment and offset: the client hereby authorizes the financing bank on
behalf of the client to use the fund (regardless of the kind of currency)
in its account in the financing bank for the repayment of the debts when
the client repays no due loan whether or not the debts belong to those
under the agreement; the authorization is irrevocable; regarding to the
currency conversion, the bank will adopt the conversion rate determined by
itself with the risk taken by the
client.
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13.
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Acknowledgement
of debt: according to the constant standard business rules, the financing
bank will keep a set of accounting statements and vouchers in the book of
account that is related to the business under the agreement. Except
obvious errors, the client should treat the accounting statement and
document as valid proofs for its
debts.
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4
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14.
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Transfer:
the client has no right to transfer the rights or obligations in the
agreement to others. The financing bank has the right to transfer the
rights and obligations in the agreement to a third party, disclose any
relevant information to a third-party which includes any information
offered by the client and guarantors for the
agreement.
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15.
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Information
disclosure: the client agrees: in addition to the disclosure permitted in
article 14, the financing bank can disclose all the relevant information
of the agreement to headquarters, branches, related organizations and the
staffs in the organizations; meanwhile, the disclosures, which are in line
with the requirements of laws and regulations of supervision departments,
government agencies and judicial organs, are also
permitted.
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16.
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Default:
the client violates the statements and commitments in the agreement, or
the statements and commitments in it are not true, incorrect, incomplete
and inaccurate or have been violated; it violates or refuses to fulfill
the commitments and the regulations in the agreement; the conditions
undergoing in the company of the client threaten the security of the loan;
the guarantors violate the rules agreed in the guarantee documents. If any
condition mentioned above happens, the financing bank has the right to
claim the acceleration of the maturity for the loan and the client shall
compensate for all the losses of the bank including attorney
fee.
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17.
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Special
agreement for group client: in the event the client of the agreement is a
group, the client hereby agrees: (1) the client should report timely the
related transaction conditions about over 10% net assets of the concrete
fiduciary, including: a. Relationship of trading parties; b. Project and
nature of transaction; c. Transaction sum or corresponding proportion; d.
Policy of pricing (including transaction with no sum or only token
payment); (2) If the fiduciary has one of the following conditions, the
client will be taken as violating the contract, and the financing bank has
the right to cancel the credit extension from the client, take back
partial or full credit extension or demand the client to add 100%
guarantee fund: a. Provide fake materials or hide key operation and
financial activities; b. with the permission of the financing bank, the
purpose under credit extensions is changed, peculate or engage in illegal
or violating transaction under the credit; c. utilize fake contracts with
associated parties, take bills receivable, account receivable or other
obligatory right (which have no trading actually) for discounting or
pledge to cheat for fund or credit from the bank; d. Refuse the
supervision and check on the use and financial activities of the credit
funds by the financing bank; e. Serious merger, reconstruction or
recombination occur, which the bank thinks will threaten the safety of the
credit funds; f. evade the claimable assets on purpose through associated
transaction.
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18.
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Other
clauses agreed: When the borrower request for withdrawal, the original loan
notice that met the requirement of the bank from Dalian Union-Chuangye
Bonding Co. Ltd. Shall be submitted, otherwise, the bank reserve
the right to refuse the withdrawal request and does not assume any
responsibility.
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(Stamp)
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(Stamp)
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19.
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Applicable
laws and jurisdiction: the agreement will be governed by laws and
regulations of the Peoples’ Republic of China (excluding Hong Kong, Macao
and Taiwan region). Any disputes arising out of the agreement will be
handled by the People’s Court at the location of the bank, which owns
exclusive jurisdiction.
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20.
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Address
for lawsuit: the client confirms that as for any proceedings under the
agreement, any summons and notification relating to the proceedings shall
be sent to the address specified at the beginning of the agreement, which
will taken as actual arrival of the files, without written notification to
the bank, the address mentioned above shall not be
changed.
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21.
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Separation
of articles: any failure, illegality or unable to exercise forcefully of
articles in the agreement shall not influence the validity, effect and
implementation of other articles in the
agreement.
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22.
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During
the validity of the agreement, the financing bank may give extension or
delay to take actions against violating behaviors of the client, which
shall not damage or restrict the financing bank’s rights and benefits as
debtor under the agreement, and not be taken as connivance to the
noncompliance of the client, and even not as the bank has given up the
rights to take actions against the
noncompliance.
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23.
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Consistency
of financing sum: If the Agreement for Financing Amount (if applicable,
including any alteration valid) conflict with the agreement, the agreement
shall prevail.
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24.
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Signing:
The agreement is made in quadruplication, the client holds one copy, and
the financing bank holds three copies, which will come into effect on the
date when it is affixed with seals of signatures of legal
representatives/principals of two
parties.
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The
column for signature
The
two parties confirm that all articles of the agreement have been explained and
discussed in details, both have no doubt about the agreement, and get correct
and accurate understanding on the definitions of rights, obligations and
responsibilities in the agreement.
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Client
(Seal) (Stamp)
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Financing
Bank (Seal) (Stamp)
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Legal
representative or authorized agent (signature or stamp)
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Person
in charge or authorized agent (signature or stamp)
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/s/
Xxxxx Xxxx
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(stamp
in red)
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Agreement
signing date:
1/12/2010
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5
