On-Lending Agreement on Using German Export Credit
Information contained herein, marked with [***], is being filed pursuant to a request for confidential treatment.
Serial Number: _________
by AAA between BBB (the Lender) and AAA (the Borrower) _________,_________,_________(M,D,Y) |
| Contents Article 1. Definitions Article 2. Amount and Use of the Loan Article 3. Preconditions for Using the Loan Article 4. Withdrawal and Term of Withdrawal Article 5. Interest on the Loan and Expenses Article 6. Repayment and Early Prepayment Article 7. Interest in Arrears Article 8. Force Majeure Article 9. Insurance Article 10. Taxation Article 11. Guarantee Article 12. Agreed Matters Article 13. Events of Default Article 14. Obligation of the Borrower independent of the Commercial Contract Article 15. The Lender's Exercise of Rights Article 16. The Lender's Commitments Article 17. Assignment and Change of Rights and Obligations Article 18. Amendment and Supplement Article 19. Settlement of Disputes Article 20. Appendices Article 21. Miscellaneous Article 22. Effectiveness Article 23. Termination Article 24. Mode of Notification Appendices: |
1. Accord on the Repayment of Special Fund of Foreign Loan by AAA (Special Fund Accord)
2. The Plan for the Finalization of Capital of AAA
3. Guarantee for Repayment
4. Schedule for Repayment of Principal with Interest.
| On-Lending Agreement on Using German Export Credit by AAA The Borrower: AAA Address: _________ The Lender: BBB Address: _________ |
In order to construct Phase I Project of the CCC, the Borrower has entrusted DDD Bank to raise fund overseas. Authorized by the Head Office of DDD Bank, the Lender and the Borrower have, through friendly discussions and in accordance with the Foreign Financing Agreement executed between the Head Office of DDD Bank and the Foreign Lending Bank, reached the following Agreement concerning the use of the above- mentioned loan:
Article 1: Definitions.
Except as provided otherwise, in this On-Lending Agreement:
Project shall refer to Phase I Project of CCC.
Foreign Lending Bank shall refer to the EEE Bank.
Foreign Financing Agreement shall refer to the Financing Agreement executed on _________,_________,_________(M,D,Y) between DDD Bank and EEE Bank concerning using the German Export Credit with respect to the Commercial Contract No._________ US as well as amendments made thereafter.
Import Agent shall refer to FFF Company.
Exporter shall refer to GGG Company and HHH Inc.
Guarantor shall refer to III Corporation, JJJ Company, KKK Company, LLL Corporation, MMM Corporation.
Commercial Contract shall refer to the No. _________ US contract executed on _________,_________,_________(M,D,Y) between FFF Company and GGG and HHH Inc.
The Day for Issuing and Accepting the Certificate shall refer to the date for issuing and accepting the Certificate set forth in the Commercial Contract.
Insurance Institution for Export Credit shall refer to the Holmes Export Credit Security Bureau.
Insurance Premium for Export Credit shall refer to the Export Credit Insurance Premium collected by Holmes Export Credit Security Bureau.
Day shall refer to the actual number of days including festivals and holidays.
Business day shall refer to a day when both DDD Bank and the NNN Bank are open for business.
Interest Payment Day shall refer to the Interest Payment Day set forth in the Foreign Financing Agreement.
Repayment Day shall refer to the Repayment Day set forth in the Foreign Financing Agreement.
Withdrawal Term shall refer to the period from the effective date of this Agreement to the deadline of withdrawal set forth in the Foreign Financing Agreement.
Payment of Instruments shall refer to the Instruments which shall be submitted when making payment for the Commercial Contract.
LIBOR shall refer to the Libor set forth in the Foreign Financing Agreement.
The headings of Articles hereof are inserted for convenience of reference only and are not intended to affect the interpretation of this Agreement.
Article 2: Amount and Use of the Loan:
2.1. The total amount of on-lending under this On-lending Agreement shall not exceed [***], among which: [***] is for the payment of part of the payable under the Commercial Contract; [***] is for the payment of construction interest; [***] is for the payment of [***] of the export credit insurance premium (the actual incurred fees shall govern.)
2.2. In the event that the actual on-lending amount is less than the on-lending amount under this On-lending Agreement, the rights and obligations of the Borrower and Lender to the actual on-lending amount shall not be affected.
Article 3: Preconditions for Using the Loan.
The loan under this On-lending Agreement can only be used when all the following conditions are met:
3.1. Precondition for the initial withdrawal.
3.1.1. The Borrower shall submit the following documents at least _________ days prior to the date of initial withdrawal to the Lender and the Lender shall confirm the receipt of the following documents:
1) Duplicate of the Borrower's effective business license issued by administration authorities for industry & commerce.
2) The JV Contract of the Borrower, the Articles of Association of the enterprise, approval documents of MOFTEC or other documents having the same effect.
3) The project establishment document approved by the State Planning Commission.
4) The Borrower's letter of authorization authorizing the DDD Bank to raise fund overseas.
5) The State Planning Commission's approval to the project feasibility study report and other relevant documents.
6) The Borrower's receipt of foreign exchange on-lending loan, registration certificate issued by the local Administration of Exchange Control and notice for establishment of account for repayment of principal with interest of the foreign exchange on-lending loan.
7) Duplicate of the Commercial Contract.
8) Duplicate of the Power Purchase Contract.
9) Duplicate of the Engineering Procurement and Construction Services Contract.
10) Unconditional and irrevocable letter of guarantee for repayment provided by the Borrower's guarantor. [***] Filed separately with the Commission pursuant to a request for confidential treatment.
11) The report for project commencement concerning CCC and its associated power transmission and substation project approved by competent State authorities.
12) Effective evidence that the Borrower has obtained the valid certificate for insurance issued by insurance corporation of China in accordance with Article 9 of this Agreement.
13) The procurement list of the Borrower and other documents deemed necessary by the Lender.
3.1.2. The Foreign Financing Agreement has been signed by the parties and has become effective.
3.1.3. The Foreign Lending Bank has notified the Lender that the export credit insurance has become effective.
3.1.4. The Borrower has opened a foreign exchange on-lending special account and a foreign exchange on-lending loan account for the repayment of principal with interest in DDD Bank or its designated branches.
3.1.5. The Borrower has committed no event of default or any action that might lead to events of default.
3.2. Preconditions for each withdrawal (including the initial withdrawal)
3.2.1. The Foreign Financing Agreement remains valid.
3.2.2. The capital of the project as well as auxiliary RMB fund shall be finalized according to the plan. (Schedule for finalization of capital is described in Appendix 2)
3.2.3. The Borrower has paid all the expenses due pursuant to Article 5.2. of this Agreement.
3.2.4. Effective evidence that the Borrower has obtained the valid certificate for insurance issued by insurance corporation of China in accordance with Article 9 of this Agreement.
3.2.5. The procurement of goods which does not follow the procurement list approved by the Lender and the Foreign Lending Bank has not occurred.
3.2.6. The Borrower has not committed any event of default or any action leading to event of default.
3.2.7. No amendment in relation to amount, time and altering the purpose of the equipment of the Commercial Contract without the consent of the Lender has occurred or no other material amendment has been made without the affirmation of the Lender.
3.2.8. The Borrower has reiterated that the guarantee made in this Agreement is true, accurate and valid.
3.3. The fact that the Lender has not submitted any written or oral requirement to the Borrower to fulfill the Articles and clauses set forth in the preconditions, or that the Lender has granted the loan to the Borrower without the Borrower's satisfaction of the conditions set forth in the above mentioned Articles and clauses, or that the Lender has given a grace period to the Borrower's fulfillment of the preconditions shall not be taken for granted that the Lender has waived the right of recourse to the Borrower's nonperformance or be interpreted as the Lender's amendment to the On-lending Agreement.
Article 4: Withdrawal and Term of Withdrawal
4.1. The Borrower hereby authorizes the Lender to require the Foreign Lending Bank to pay the amount of the Commercial Contract to the export traders through the payment agent bank in accordance with the stipulations set forth in Foreign Financing Agreement. This authorization is irrevocable and shall not be amended without the consent of the Lender.
4.2. Within 5 days after the Lender has signed and accepted relevant instruments under the Commercial Contract, the instruments shall be submitted to the Import Agent for examination. The Import Agent shall, within 15 days after the receipt of the instruments, notify the Lender in written form of its comments. The Lender shall take the responsibility to instruct the Foreign Lending Bank whether to make such payment.
4.3. The deadline of the withdrawal under this On-lending Agreement shall be subject to the date set forth in the Foreign Financing Agreement.
4.4. If the Borrower applies for an extension of the withdrawal term, it shall submit a written application to the Lender at least 45 days in advance. The Lender shall then communicate with the Foreign Lending Bank, and if the Foreign Lending Bank consents to it, the formalities for extending the withdrawal for the Borrower may be processed. If not, the Borrower must make withdrawal on schedule, otherwise the unused part shall be automatically canceled.
Article 5. Interest on the Loan and Expenses.
5.1. Interest.
5.1.1. The annual interest rate of the loan under this Agreement shall be [***].
5.1.2. The Borrower shall pay interest to the Lender once in accordance with the balance of the loan on each Interest Payment Day, the interest shall be calculated by the actual number of days on the basis of 360 days a year (subject to the Foreign Financing Agreement). Detailed interest payment plan as well as the method of payment shall be carried out in accordance with the Schedule for Repayment of Principal with interest (Appendix 3), and Special Fund Accord (Appendix 1).
5.1.3. The capitalization of the insurance premium of the export credit and interest incurred in the construction period shall be carried out in accordance with the stipulations set forth in the Foreign Financing Agreement.
5.1.4. In the event that the last day of the interest period falls on a non-business day, the interest period shall be deferred to the next business day; in the event that the next business day falls on the next calendar month, it shall be advanced to the last business day of the current calendar month.
5.2. Expenses:
5.2.1. Commitment fees of the Foreign Lending Bank.
The annual rate is: [***] starting from _________,_________,_________(M,D,Y) to the deadline of withdrawal stipulated by the Foreign Lending Bank, the commitment fees shall be calculated and collected quarterly in US Dollars in accordance with the actual number of days and the unpaid balance of the loan on the basis of 360 days a year and _________ days a month. It shall be paid by the Borrower to the Foreign Lending Bank through the Lender in accordance with the Foreign Financing Agreement.
5.2.2. On-lending fees of the Lender.
The annual rate is [***] in the grace period and [***] in the repayment period. It shall be paid by the Borrower to the Lender in accordance with the balance of the loan. The method of payment shall be identical as that described in the above mentioned Article 5.1.2.
[***] Filed separately with the Commission pursuant to a request for confidential treatment.
5.2.3. Other expenses incurred under the Foreign Financing Agreement and this Agreement, including but not being limited to attorney's fees, notarization expenses, travel expenses, expenses for presentation of lawsuit agency letter expenses and stamp tax incurred in the preparation of this Agreement and other relevant documents, negotiations, signing and implementation shall be paid by the Borrower in accordance with the request for payment invoice of the other party.
5.3. The interest and expenses as stipulated in the above Article, the fees collected by foreign organizations and the on-lending fees shall be paid in US Dollars cash, while the remainder shall be paid in RMB. The detailed method of payment shall be subject to the Notice of Payment submitted by the Lender and it shall be paid within 7 days after such notice has been received.
Article 6. Repayment and Prepayment.
6.1. Repayment of the loan.
6.1.1. This on-lending loan shall be repaid in US dollars.
6.1.2. The detailed repayment plan of the Borrower shall be subject to the Schedule for Repayment of the Principal with Interest (Appendix 3).
6.1.3. The detailed method of repayment shall be carried out in accordance with the Special Fund Accord (Appendix 1) signed between the Borrower and the Lender.
6.1.4. In this Agreement, all the Borrower's payment to the Lender shall be made in the following sequence: payment of interest in arrears, expenses, interest and principal. If the maturity date of any payable in this Agreement is not a business day, it shall be deferred to the following business day, the time deferred shall be included in the calculation of interest for this period.
6.2. Prepayment
6.2.1. In accordance with this On-lending Agreement, the Borrower can prepay the loan after seeking written consent from the Lender in advance, but the Borrower shall notify the Lender the amount of prepayment at least 45 days in advance. If it is a partial prepayment, the amount of prepayment shall be specified.
6.2.2. The prepayment shall begin with the last installment of repayment set forth in the Schedule of Repayment of Principal with Interest (Appendix 3) in reverse order.
6.2.3. The prepayment shall be made together with the corresponding interest and charges thereof.
6.2.4. If the prepayment requires the approval of relevant departments in accordance with the stipulations, the Borrower shall provide the duplicate of the relevant approval document to the Lender.
6.2.5. The request of the Borrower for prepayment is irrevocable and the amount of the prepayment shall not be reapplied for use.
6.2.6. The compensation fees for the Foreign Lending Bank arising from prepayment shall be borne by the Borrower.
Article 7. Interest in Arrears
7.1. If the Borrower fails to repay any maturity payment including principal, interest and expenses in accordance with the stipulations in this Agreement, the Lender shall calculate and collect interests in arrears with respect to the part of payment in arrears starting from the date of payment (inclusive) to the date of actual date of payment (inclusive). The interest rate shall be the highest of the following:
| [***] |
7.2. If the overdue exceeds half a year, compound interest shall be accrued.
7.3. The collection of the interest in arrears shall not affect the implementation of Article 13 of this Agreement.
Article 8. Force Majeure.
In the event that one of the following happens:
1) The export credit insurance has not been obtained or the insurance of the export credit ceases to be effective.
2) Due to economic crisis or the abrupt change in the financial market, the corresponding loan funds can not be raised or the cost of the Foreign Lending Bank has increased.
[***] Filed separately with the Commission pursuant to a request for confidential treatment.
3) Due to international or domestic political legal and taxation reasons, the Foreign Lending Bank can not fulfill the obligations of lending set forth in the Foreign Financing Agreement.
4) Due to adjustment and change in state policies, the Lender`s continuance of granting loans to the Borrower or of refraining from recovering the loans will be illegal or a breach of state policy.
5) Due to the occurrence of other events of force majeure, the Lender is entitled to the following:
(1) In accordance with the requirement of the Borrower, and under the conditions set forth in the stipulations of the Foreign Financing Agreement, the Lender will negotiate with the Foreign Lending Bank and handle it in accordance with the result of the negotiations.
(2) Declaring the termination of the on-lending loan.
(3) Require the Borrower to repay promptly the principal with the relevant interest and fees.
Article 9: Insurance
9.1. Upon the effectiveness of the Commercial Contract, the Borrower shall directly make or cause the contractor for transportation, installation or construction to cover insurance for domestic transportation of imported goods, installation project, construction project and property all risks in a Chinese insurance institution acknowledged by the Lender with respect to equipment under such contract in the delivery, construction and repayment periods. The Lender shall be considered as the first beneficiary, all the insurance coverage shall be linked with each other and allow of no suspension in the duration of insurance.
9.2. The Borrower shall transfer all the interests under the insurance policy to the Lender pursuant to the stipulation of Article 9.1., the insurance benefits shall first be used to repay the principal with interest and expenses of the loan . With the written consent of the Lender, such insurance benefits can be continuously used in the project construction under this Agreement.
9.3. The Borrower shall be responsible for renewing the insurance on time before the expiration of the insurance policy and the Borrower shall not suspend the insurance for whatever reason within the validity of this Agreement.
9.4. If the Borrower fails to fulfill the above mentioned requirements, the Borrower shall undertake that in case of any loss to the assets, the Borrower shall not refrain from undertaking any of its obligations to the Lender for whatever reason.
9.5. The Borrower shall bear the insurance premium incurred by insurance coverage.
Article 10. Taxation.
The tax payable by the Lender under the Foreign Financing Agreement shall be borne by the Borrower. The Lender shall on behalf of the Borrower, submit application to relevant tax authority for exemption of tax in connection with the withholding tax on foreign interest income under the Foreign Financing Agreement. The tax payable under this On-lending Agreement shall be carried out in accordance with Chinese tax law and relevant stipulations.
Article 11. Guarantee
The Borrower hereby guarantees:
11.1. Upon the effectiveness of this On-lending Agreement, the Borrower shall timely, unconditionally and consecutively fulfill the responsibility and obligation of repayment of principal with interest as well as other obligations set forth in this Agreement without any impact whatever because of gain or loss or repayment ability.
11.2. The Borrower is a legal person which is established in accordance with Chinese law, existing, and engaging in legal business activities, and is entitled to execute and perform this On-lending Agreement. The Borrower has completed all necessary legal and administrative formalities for the execution and performance of this On-lending Agreement.
11.3. The documents that the Borrower has provided and will provide are true, accurate, valid and up-to-date in accordance with the requirements.
11.4. The Borrower's execution and performance of this On-lending Agreement do not violate any of the current Chinese laws, rules and regulations, nor do they violate any contract or agreement to which the Borrower is a party.
11.5. Any contract or agreement which the Borrower executes with a third party at present and in the future shall not affect and damage all the interests of the Lender under this On-lending Agreement.
11.6. The Borrower is not involved in or will not be involved in any significant arbitration or legal process, nor is it subject to any compulsory administrative measures taken by any government department. (These arbitration or legal process or administrative measures will have significantly adverse impact on its finance, operation and management).
11.7. All the assets incurred by the loan under this Agreement shall not be used as any other form of mortgage or any form of guaranty during the term of performance of this Agreement without the written consent of the Lender.
11.8. At each withdrawal and repayment, the Borrower reiterates that the above statement and guarantee remain true, valid and accurate.
Article 12: Agreed Matters
12.1. The distribution principle of repaying loan first and sharing profit second shall be carried out in accordance with the plan for repayment of principal with interest.
12.2. Any material amendment to the procurement list between the Borrower and the Exporter shall obtain written consent from the Lender in advance.
12.3. Any amendment to the Commercial Contract concerning the amount, time, change of purpose of the equipment or other material amendment confirmed by the Lender, or any transfer of right and obligation under the Commercial Contract shall obtain written consent from the Foreign Lending Bank and the Lender in advance.
12.4. Without the written consent of the Lender, the Borrower shall not sell, rent or transfer any equipment under the Commercial Contract or use these equipment aboard.
12.5. In enlarging its scope of business stipulated in the business license before the execution of this Agreement, or in enlarging the scope of operation and management approved by relevant government authority, or in selling, renting and assigning assets under this Agreement or in changing its business, the Borrower shall solicit written consent from the Lender before submitting it to the administrative department for industry and commerce or relevant government authority for approval.
12.6. If the Borrower engages in any form of mortgage, pledge, or guaranty for its assets and interests or engages in other actions that may have significantly adverse impact on its assets and interests, it shall notify the Lender in time and obtain written consent from the Lender in advance.
12.7. The Borrower shall, at the request of the Lender, provide the Lender all relevant information concerning its operation and finance in time, accept the supervision from the Lender and provide convenient conditions to the Lender for examining the use and repayment of the loan as well as the production and operation status of the Borrower.
12.8. The Borrower shall promptly notify the Lender of any adverse change in the repayment of loan and operation and financial conditions of the Borrower, and put forth its proposal or measure for settlement or handling.
12.9. If it is necessary for the Borrower to take any significant actions such as restructuring, reorganization, merger, acquisition, equity transfer, equity mortgage or contracting, it shall notify the Lender in advance and seek written consent from the Lender in advance.
12.10. The Borrower shall within _________ days at the end of each quarter provide the Lender the balance sheet, the profit and loss statement and other financial statement for the preceding quarter , and shall provide the Lender within 3 months at the end of each fiscal year the balance sheet, the profit and loss statement and other financial statement as well as other relevant information of the preceding fiscal year which have been audited by an accounting firm.
12.11. The Borrower shall provide the project schedule report and operation status report to the Lender in time at request.
12.12. The Borrower shall run its business steadily and maintain good financial status.
12.13. The Borrower shall promptly inform the following to the Lender, if:
1) Any arbitration or legal action involving the Borrower and this project;
2) Mandatory measures have been taken by any relevant governmental authority against any property of the Borrower;
3) Any event that seriously hinders and endangers the normal performance of the Foreign Financing Agreement and the Commercial Contract;
4) Other information with respect to the project which is required by the Lender.
12.14. Any action taken by the Import Agent shall be considered as having been consented and authorized by the Lender in accordance with the Commercial Contract or this Agreement and relevant amendments and appendices and shall constitute the responsibilities and obligations of the Borrower. If the Import Agent or Exporter fails to perform the Commercial Contract or this Agreement and its corresponding amendments as well as the stipulations set forth in the appendices, the Lender shall not undertake the corresponding consequences.
12.15. The Borrower shall strictly carry out the stipulations set forth in the Special Fund Accord (Appendix 1).
12.16. The Borrower must assign all the RMB settlement of accounts and import-export settlement of accounts to the Lender or its designated branch for handling.
12.17. The Lender holds that the financial status of the Guarantor has deteriorated to such an extent as to suspend operation or to go bankrupt or to be incapable of performing its obligations under the Guaranty Agreement; the Guarantor may be confronted with possible events of liquidation or being merged or dissolved and rescinded which may produce adverse impact on the interests of the Lender; the Guarantor is involved or will be involved in significant arbitration or legal proceedings and debt dispute which will affect the implementation of this On-lending Agreement. Once the Lender has confirmed the occurrence of the above situation, the Lender is entitled:
12.17.1. To ask the Borrower to find a new guarantor acceptable to the Lender within the time-limit (no longer than 45 days) set by the Lender with respect to the guaranty obligations undertaken by the above Guarantor.
12.17.2. If the Borrower fails to provide the guarantee acceptable to the Lender within the above time-limit, the Borrower is considered to have committed events of default as stipulated in Article 13, the Lender may take any appropriate action which it is entitled to take in accordance with the stipulations set forth in the Articles on Events of Default.
12.18. Any matter not determined in this Agreement but included in the stipulations set forth in the Foreign Financing Agreement shall be included in the supplementary agreement to this Agreement, the Articles in the supplementary agreement shall be determined by the Lender in accordance with the Foreign Financing Agreement, and both the Lender and the Borrower shall execute and perform.
Article 13. Events of Default
13.1. Any of the following actions or events are considered as the Borrower's events of default:
1) The Borrower fails to repay the principal and pay interest and other expenses in accordance with the stipulations set forth in this Agreement.
2) The Borrower fails to fulfill any obligations under this Agreement and other relevant documents.
3) The Borrower's guarantee in this On-lending Agreement and the notification or other document made or submitted accordingly is proved to be seriously inconsistent with facts or inaccurate or incapable of being performed.
4) The Lender holds that the financial status of the Borrower has deteriorated so gravely that it may cease operation or go bankrupt or be incapable of fulfilling this Agreement.
5) Any agreement, contract or other document related to this Agreement is suspended or declared invalid.
6) The Borrower may be confronted with events of liquidation or being merged or dissolved and rescinded which will produce adverse impact on the interests of the Lender.
7) The Borrower fails to repay in time any other debt which it owes to the DDD Bank and the Lender holds that the Borrower's default under any other debt agreement will affect the Borrower's repayment of any debt under this Agreement.
8) The Borrower has been involved or shall be involved in any significant arbitration or legal proceedings and debt disputes (the Lender holds that these arbitration or legal proceedings or debt disputes may produce adverse impact on the Borrower's performance of this Agreement.)
9) The Commercial Contract is totally or partially suspended or canceled, or any event which seriously affects the proper performance of the contract has occurred.
10) The Borrower opens an account or handles settlements in a bank which is not designated by the Lender.
11) The tariff approved by the domestic relevant authority is not enough to ensure the repayment of principal with interest.
12) The capital which shall be finalized in accordance with the Plan for the Finalization of Capital has not been finalized on schedule and the associated RMB fund has not been finalized on schedule.
13.2. In the event that any of the above-mentioned events of default occur, the Lender is entitled to take one or several of the following measures:
1) To notify the Borrower to correct it within a definite time;
2) To suspend withdrawal promptly;
3) To announce the maturity of all the loan and require immediate repayment of all the loan and its corresponding interest and fees;
4) The Lender may ask the Borrower to compensate for any loss and the additional expenses accordingly because of the Borrower's default.
Article 14. Obligation of the Borrower Independent of the Commercial Contract
Any disputes or other event occurred between the seller and the purchaser under the Commercial Contract shall not affect any obligation which shall be undertaken by the Borrower under this On-lending Agreement. The Borrower shall not for this reason delay in or refrain from performing the obligation of repaying principal with interest and other fees on schedule.
Article 15. The Lender's Exercise of Rights
The fact that the Lender has not exercised or has not exercised in time any obligations under this On-lending Agreement in the course of the implementation of the Agreement shall not be regarded as a waive of its rights and shall not affect any obligation which the Borrower shall undertake under law and this On-lending Agreement.
Article 16. The Lender's Commitments
16.1. The Lender will provide the Borrower reasonable reserve loan in the construction period and circulating fund loan in the operation period.
16.2. The Lender shall conform to the international practice and general practice followed by foreign banks to raise funds overseas and strive for better condition for loans in accordance with the financing plan accepted by the both parties through negotiations.
16.3. The Lender shall conform to the change and trend of the international financing market, try its best to provide financing services such as restructuring of debt, and try hard to save interest and expenses and to reduce the cost of fund for the Borrower.
16.4. If the Borrower applies for an extension of the loan, the Lender will try its best to negotiate with the Foreign Lending Bank. If the Foreign Lending Bank agrees to the extension, the Lender will handle the extension formalities for the Borrower in time.
16.5. If the fund transfer is delayed in withdrawal and repayment on account of the Lender's responsibility, the Lender shall undertake the corresponding responsibility.
16.6. The Lender shall keep confidential of all the documents, data and business information which are provided by the Borrower and marked with the word Confidential.
Article 17. Assignment of Rights and Obligations
17.1. The rights and obligations of the Borrower under this On-lending Agreement can be assigned only if written consent from the Lender is obtained in advance.
17.2. The Lender may in the light of its business or needs, assign its rights and obligations under this Agreement totally or partially to a third party which it thinks appropriate but it must seek written consent from the Borrower in advance pursuant to the Foreign Financing Agreement.
Article 18. Amendment and Supplement
In case of adjustment in policy or other uncovered matters, this On-lending Agreement may be amended and supplemented through joint consultations between both parties pursuant to the Foreign Financing Agreement and on the precondition on ensuring that the principal, the interest and relevant expenses of the loan under this On-lending Agreement are paid on schedule. Both the amendment and the supplement shall constitute an inseparable part of this On-lending Agreement and have the same effectiveness as this On-lending Agreement.
Article 19. Settlement of Disputes
Should there be any dispute between the Lender and the Borrower in the course of the implementation of this On-lending Agreement, it shall first be settled through friendly consultation. If no agreement can be reached, any party may institute legal proceedings at a people's court with jurisdiction in accordance with the law.
Article 20. Effectiveness of Appendices
The appendices of this On-lending Agreement constitute an inseparable part of the On-lending Agreement and have the same effectiveness as this On-lending Agreement. Appendix 3 may be adjusted and/or supplemented by the Lender in accordance with the stipulations of the Foreign Financing Agreement or the corresponding notification of the Foreign Lending Bank.
Article 21. Miscellaneous
If the reform in the state foreign currency control system and changes in other policies are related to the use and repayment of the foreign exchange under this Agreement, the Lender shall notify the Borrower on time and amend relevant Articles of this Agreement in accordance with the stipulations of the state.
Article 22. Effectiveness
22.1. This On-lending Agreement becomes effective on the day when all of the following conditions are satisfied and in accordance with the notification of the Lender.
1) The execution of this Loan Agreement.
2) The execution of the Foreign Financing Agreement.
22.2. This On-lending Agreement is prepared in two original copies, each party shall keep one while duplicates will be delivered to the relevant parties.
Article 23. Termination
This On-lending Agreement ceases to be effective automatically on the day when all the principal, interest and other corresponding expenses under this Agreement have been paid by the Borrower.
Article 24. Mode of Notification
The correspondence documents in the course of the performance of this Agreement shall be delivered accurately by the Lender and the Borrower to the following addresses.(If there is any change, the other Party shall be notified in time):
| The Lender: Address: _________ Name: _________ Tel: _________ Fax: _________ Zip Code: _________ The Borrower: Address: _________ Name: _________ Tel: _________ Fax: _________ Zip Code: _________ |
If notified by fax, the original must be mailed by registered courier service immediately after the fax is sent. If it is mailed by registered courier service, the date of mail shall govern.
| Borrower: Lender: _________ _________ (Seal): (Seal): Signature of Authorized Signature of Authorized Representative: _________ Representative: _________ Place of Execution: _________ &n, bsp; Place of Execution: _________ Date of Execution: _________ Date of Execution: _________ |
| Appendix I. Accord on the Repayment of Special Fund of Foreign Loan by AAA |
In order to construct Phase I Project of the CCC, the BBB (the Lender) and AAA (the Borrower) have executed this On-lending Agreement at a total amount not exceeding [***]. To ensure the use, the repayment of the principal with interest and the payment of relevant expenses of the Foreign Exchange Loan under the above-mentioned On-lending Agreement, the Lender and the Borrower have reached the following agreement through friendly consultations:
Article One. Establishment of the Relevant Account of Special Fund and Its Purpose
The Borrower applies for establishment of the following accounts within 10 days upon the effectiveness of this On-lending Agreement:
1. The Borrower applies to the Administration of Exchange Control for opening the Special Account for the Foreign Exchange On-lending Loan and the Account for Repayment of Principal with Interest of Foreign Exchange On-lending Loan in the Lender's International Business Department .
2. The Borrower shall open a RMB fund special account in an institution designated by the Lender which shall be used to deposit RMB funds with respect to foreign exchange settlement and relevant expenses incurred under the On-lending Agreement.
Article Two. Sources of the Fund of the Special Account
In order to ensure the timely performance of the foreign payment, the Borrower shall reserve the following funds in accordance with the following sequence as the sources for repayment. (If there is any change in the accounting system of the State, both parties may make corresponding adjustment pursuant to a new accounting system):
[***] Filed separately with the Commission pursuant to a request for confidential treatment.
1. The depreciation fund of fixed assets which will be withdrawn by Phase I Project of the CCC Company Ltd. in accordance with relevant stipulations.
2. The profit which may be used for repayment by Phase I Project of the CCC in accordance with the relevant stipulations.
3. Foreign exchange income of Phase I Project of the CCC.
4. Overall benefits of the Borrower and other income and ownership interests which can be used for repayment.
5. The exempted or refunded taxes which may be used for repayment after it has been submitted to relevant authorities for approval.
6. Other legal fund sources.
Article Three. Use of the Account
1. The Borrower shall, in accordance with the Schedule for Repayment of Principal with Interest or the notification of the Lender and from the day the first unit is put into operation to within _________ days of the Payment Day, deposit the required funds pro rata (the specific proportion shall be determined through consultations between both parties on a monthly basis in the Special Account for the Foreign Exchange On-lending and Account for the Repayment of Principal with Interest of Foreign Exchange On-lending which are opened at the Lender's Bank by the Borrower.
2. The depreciation funds of fixed assets which are withdrawn in accordance with the stipulations for imported equipment of Phase I Project of CCC must be deposited in the Borrower's RMB Special Account which is opened at the Lender's designated institution.
3. The RMB settlement must be handled in the designated institution of the Lender after Phase I Project of CCC is put into operation.
4. After Phase I Project of CCC is put into operation, the settlement of the foreign exchange shall be handled in the International Business Department of the Lender, the foreign exchange earnings for ensuring the repayment shall promptly be deposited in the Account for the Repayment of Principal with Interest of Foreign Exchange On-lending.
5. The Borrower shall repay the principal with interest of the matured foreign exchange loan with the kind of currency stipulated in the loan agreement. If the Borrower makes repayment with the kind of currency agreed to by the Lender, the Lender shall act as an intermediary in foreign exchange trading in accordance with the current exchange rate, the risk of the foreign exchange rate shall be undertaken by the Borrower.
6. The Lender shall, on the basis of the balance of the funds in the Special Account of the Borrower, pay interest in accordance with the stipulations.
Article Four. Management of the Special Funds
1. The Borrower shall, in accordance with the stipulations of this Accord, deposit the foreign exchange and RMB funds used for foreign payments in the above mentioned account in time. In the event that the Borrower has not deposited the above mentioned funds in the designated account within 7 business days of the bank before making foreign payment, the Lender is entitled to handle the formalities for direct transfer.
2. Without prior written consent from the Lender, the Borrower shall not within the term of repayment handle the settlement of RMB set forth in Article 3.3. and the settlement of import-export set forth in Article 3.4 in any bank which is not the Lender's Bank.
3. The Borrower shall deposit in time a full amount in the Account for the Repayment of Principal with Interest of Foreign Exchange On-lending and be ready for payment in foreign exchange. The payable funds that are not paid because of the Borrower's insufficient funds shall without exception be considered as overdue. The Lender will collect the interest in arrears with respect to the funds in arrears and in accordance with the stipulations set forth in this On-lending Agreement.
4. While making foreign payment, with respect to the balance due of the arrears of the aggregate payment resulting from exchange rate changes because of engaging in foreign exchange trading, the Lender may temporarily make the advance first and then deduct the advance in the next foreign payment together with the accrued interest in accordance with the stipulated corresponding loan interest rate. With respect to the balance of the fund in the Special Account of Payment of Foreign Exchange, interests will be paid by the Lender in accordance with the stipulations of the DDD Bank.
5. The bank charges incurred in settlement and sales of foreign exchange and in foreign exchange trading and international settlement as well as other relevant expenses under this On-lending Agreement shall all be borne by the Borrower.
6. Should there be any adjustment in the state policy, this Accord shall be amended through consultation between the Borrower and the Lender under the precondition that the principal and interest of the loan under the above-mentioned On-lending Agreement as well as other relevant expenses are paid on schedule.
7. This Accord shall constitute Appendix I to the above-mentioned On-lending Agreement.
| AAA (Official Seal):_________ Authorized Representative:_________ BBB (Official Seal):_________ Authorized Representative:_________ Date of Signature:_________ |
| Appendix II. |
The Plan for the Finalization of Capital of AAA
| Appendix III. |
Schedule for Repayment of Principal with Interest
(Executed in accordance with the Schedule for Repayment of Principal with Interest provided by the foreign banks)