Attached files
Exhibit
10.12
Contract
No.: 2009 Shishi, Zi No. 0545
Working
Capital Borrowing Contract
This
Working Capital Borrowing Contract (“Contract”) is entered into by
and between:
Borrower
(Party A): Shishi
Feiying Plastic Co., Ltd.
Residence
(Address):
Legal
Representative: Wu
Licong
And
Lender
(Party B): Industrial
and Commercial Bank of China, (Shishi City Branch)
Residence
(Address): ICBC
Building, 87 Road, Shishi City
Legal
Representative (Responsible Officer): Zhuang
Wencong
Table
of Contents
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Article
1
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Type
of Borrowing
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3
|
|
|
Article
2
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Use
of Borrowing
|
3
|
|
|
Article
3
|
Borrowed
Amount and Term
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3
|
|
|
Article
4
|
Borrowing
Rate and Interest Accruals
|
4
|
|
|
Article
5
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Sources
and Methods of Repayment
|
5
|
|
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Article
6
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Guarantee
|
6
|
|
|
Article
7
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Rights
and Obligations of Parties
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6
|
|
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Article
8
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Breaching
Liability
|
7
|
|
|
Article
9
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Effectiveness,
Modification, Rescinding and Termination
|
9
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|
|
Article
10
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Dispute
Resolutions
|
10
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|
|
Article
11
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Miscellaneous
|
10
|
|
|
Article
12
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|
Supplementary
Provisions
|
12
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2
Party A
hereby applies to Party B for satisfying its needs as set forth in Article 2.1
hereof, and Party B agrees to grant the borrowing to Party A (“Borrowing”). This Contract is
entered into by and between Party A and Party B in order to define their
respective rights and obligations hereunder, through negotiation based on equal
footing, in accordance with the Contract Law, the General Loan Rules and other
applicable laws and regulations.
Article
1 Type
of Borrowing
|
1.1
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The
Borrowing hereunder is a kind of short-term (medium-term or short-term)
working capital borrowing.
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Article
2 Use
of Borrowing
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2.1
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The
Borrowing hereunder shall be used as short-term working capitals (“Use”)
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.
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2.2
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Party
A shall not change the Use as determined in this Contract without prior
written consents of Party B.
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Article
3 Borrowed
Amount and Term
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3.1
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The
borrowed amount hereunder shall be RMB Four Million Seven
Hundred and Fifty Thousand (in words), i.e., RMB 4,750,000.00
(in number). The amount in words shall prevail in the event of any
difference between the amount in words and in
number.
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3.2
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The
term of Borrowing hereunder shall be months
from December
21, 2009 to November 20,
2010 (“Term”).
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3.3
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Party
A shall draw the Borrowing in a lump sum pursuant to Article 3.2 hereof.
In the event of special circumstances, the drawing may be advanced or
extended for / days
upon written consents of Party B. Both actual drawing date and repayment
date shall be subject to the dates as recorded on the IOUs between Party A
and Party B. Either IOUs or borrowing drawing vouchers shall be integral
to this Contract. Save for the dates, this Contract shall prevail in the
event of any difference between other records and this
Contract.
|
3
Article
4 Borrowing
Rate and Interest Accruals
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4.1
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The
Borrowing will be added interest accruals on a daily basis at the daily
rate (equaling to annual rate/360) during the Borrowing from the actual
drawing date. The interest accruals shall be paid every month
(month/quarter) on
the 20th day of each
month (the 20th
day of each month/the 20th day of the last
month of each quarter). If the expiry date of interest
accruals (“Interest
Expiry Date”) is not a business day of a bank, the interest
accruals shall be paid on the next business day. Both principals and
interest accruals thereon shall be paid together when the Borrowing
becomes due and payable.
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4.2
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The
Borrowing rate hereunder shall be determined subject to Article 4.2.1
below:
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4.2.1
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The
annual rate shall be 5.31% which
shall be fixed during the Term.
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|
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4.2.2
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The
rate hereunder shall be floated / (up/down)
for / %
based on applicable basic rate of the People's Bank of China (“PBOC”). The contractual
rate will be adjusted every term, and it will be adjusted every / (year/half a
year/quarter/month) for purpose of this Contract. The rate for the initial
term shall be determined on the effective date of this Contract (“Effective Date”), and it
shall be determined by Party B based on applicable basic rate of the PBOC
on the Effective Date and the floating rate as agreed by the parties,
i.e., / %
for annual rate. The rates for the second term and succeeding terms shall
be determined on the Corresponding Date (defined below), and they shall be
determined by Party B based on applicable basic rates of the PBOC on the
Corresponding Date and the floating rate as agreed by the parties. If
there is not such a Corresponding Date in the month in which the rate will
be adjusted, the final date of such month shall
prevail.
|
If the
Borrowing is drawn by installment, it is required to apply the rate to be
determined on the Effective Date or its Corresponding Date, irrespective of
whatever number of installments. And the rate will be adjusted on the
Corresponding Date in the next term.
“Corresponding
Date” shall mean the corresponding date upon expiry of a term from the Effective
Date. For example, if the Effective Date is May 9, and if a term will be a
month, the Corresponding Date of the second term shall be June 9; if a term will
be a quarter, the Corresponding Date of the second term shall be August 9 of
such year; and if a term will be a half year, the Corresponding Date of the
second term shall be November 9 of such year; if a term will be a year, the
Corresponding Date of the second term shall be May 9 of the next year; and so
forth.
4
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4.2.3
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Other
methods:_______________________________________________________________________
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Party B
shall send a written notice to Party A thirty days after the rate is changed;
however, such changed rate shall be applied, irrespective of service of such
notice.
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4.3
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If
the PBOC adjusts the rate or the rate-related determination measures,
applicable regulations of the PBOC shall
prevail.
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Article
5 Sources
and Methods of Repayment
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5.1
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Payment
of the Borrowing and interest accruals thereon by Party A shall be sourced
including but without limitation:
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|
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5.1.1
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Revenues generated from its
sales
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5.1.2
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Other funds
sources
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5.2
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Any
other contracts to which Party A is a party binding upon repayment sources
of Party A shall not affect Party A's obligations to make repayment
hereunder in any way. Meanwhile, Party A shall not reject performing its
obligations of making repayment by referring to Article 5.1 in any
way.
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5.3
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Party
A shall pay interest accruals as scheduled in full pursuant to this
Contract, as well as repay the Principals subject to Article 5.3.1
below:
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|
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5.3.1
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Party
A shall repay all the Principals in a lump sum on November 20,
2010;
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5.3.2
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Party
A shall repay all the Principals by installment as
follows:
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5.3.2.1
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RMB
(in words), i.e., RMB
(in number), to be repaid on
[●];
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5.3.2.2
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RMB
(in words), i.e., RMB
(in number), to be repaid on
[●];
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5.3.2.3
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RMB
(in words), i.e., RMB
(in number), to be repaid on
[●];
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|
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5.3.2.4
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RMB
(in words), i.e., RMB
(in number), to be repaid on
[●];
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|
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5.3.2.5
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RMB
(in words), i.e., RMB
(in number), to be repaid on
[●];
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(additional
pages for additional installments)
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5.4
|
Party
A shall deposit the money in the account opened with Party B enough to
cover due interest accruals or Principals before the Interest Expiry Date
or the Principals repayment date as specified in this Contract; meanwhile,
it shall authorize Party B to take such due interest accruals or
Principals from such account on the Interest Expiry Date or the Principals
repayment date.
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5
Article
6 Guarantee
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6.1
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The
Borrowing hereunder shall be guaranteed by mortgages.
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6.2
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Party
A shall be obligated to, in an active manner, assist and procure Party B
to sign a guarantee contract (2008
Shishi (Di) Zi No. 0080) for the
guarantees hereunder with the
guarantor.
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6.3
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If
the guarantees hereunder meet any change unbeneficial to Party B, and if
required by Party B, Party A shall provide other guarantees satisfactory
to Party B at the request of Party
B.
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Article
7 Rights
and Obligations of Parties
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7.1
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Party
A's Rights and Obligations:
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|
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7.1.1
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Party
A shall draw and use the Borrowing subject to the term and the Use as set
forth in this Contract;
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7.1.2
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If
Party A advances the repayment, it shall obtain prior consents of Party B;
in such case, it shall indemnify forecasted revenue losses caused to, and
other costs of Party B;
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7.1.3
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Party
A shall be responsible for the truth, accuracy and completeness of the
information provided for the loans;
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7.1.4
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Party
A shall accept if Party B investigates, has access to, and supervises the
Use hereunder;
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7.1.5
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Party
A shall in an active manner cooperate Party B to investigate, have access
to, and supervise its production, operation and financial information, and
shall be obligated to provide Party B with income statements, balance
sheets and other financial statements in relation to each
term;
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7.1.6
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Party
A shall pay the principals and interest accruals thereon pursuant to this
Contract;
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7.1.7
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Party
A shall bear relevant fees hereunder, including but limited to fees and
expenses arising out of public notary, verification, appraisals,
registration, etc.;
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7.1.8
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Party
A shall send receipts of collection letters or collection documents within
three days after Party B sends the same by post or through other
methods;
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7.1.9
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If
Party A conducts contracting and lease, shareholding reforms, joint
operation, consolidation, merger, joint venture, division, reduction of
capitals, shareholding change, transfer of material assets, or other acts
enough to impact Party B's benefits, it shall send a notice to Party B at
least thirty days in advance for Party B's approval; otherwise, Party A
shall not conduct any of the above acts before it clears all of its
obligations;
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6
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7.1.10
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Party
A shall inform Party B in writing of any change or replacement of its
residence, mailing address, scope of business or legal representative
within seven days upon any such
change;
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7.1.11
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If
Party A meets any other events, including but not limited to material
economic disputes, bankruptcy and worse financial conditions, or other
events endangering its normal business or materially affecting performance
of its obligations hereunder, it shall promptly inform Party B in writing
of the same;
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7.1.12
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If
Party A meets out-of-business, or if it is dissolved or suspended for
reorganization, or if its business license is cancelled or withdrawn, it
shall inform Party B in writing within five days upon occurrence of the
same, and then procure to promptly pay the Principals and the interests
accruals thereon.
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7.2
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Party
B's Rights and Obligations:
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7.2.1
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Party
B shall be entitled to request Party A to provide all information in
relation to the Borrowing;
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7.2.2
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Party
B shall be entitled to take due and payable Principals, interest accruals,
compound interests, penalties and other fees from Party A's account
pursuant to this Contract or laws;
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7.2.3
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If
Party A avoids the monitoring by Party B, defaults in paying the
Principals, interest accruals thereon or conducts other material breaches,
Party B shall be entitled to impose credit sanctions against Party A, to
report to relevant authorities or entities, and/or to conduct public
collection through news media;
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7.2.4
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Party
B shall provide the Borrowing to Party A as scheduled in full pursuant to
this Contract, unless otherwise delayed by Party
A;
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7.2.5
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Party
B shall keep confidential the information in relation to obligations,
finance, production and operation of Party A, unless otherwise agreed or
provided in this Contract, laws and
regulations.
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Article
8 Breaching
Liability
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8.1
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Either
of the parties shall perform its obligations hereunder after this Contract
becomes effective. Any party who fails to perform its obligations
hereunder in part or whole shall bear breaching liabilities pursuant to
applicable laws.
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8.2
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If
Party A fails to draw the Borrowing pursuant to Article 3.3 hereof, Party
B shall be entitled to charge liquidated damages on a daily basis at the
contract rate.
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7
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8.3
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If
Party B fails to provide the Borrowing pursuant to Article 3.3 hereof, it
shall pay liquidated damages on a daily basis at the contract
rate.
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8.4
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If
Party A repays the Borrowing hereunder in advance without prior written
consents of Party B, Party B shall be entitled to charge interest accruals
based on the borrowing term and rate as specified in this
Contract.
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8.5
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If
Party A fails to pay the due principals and interest accruals thereon,
Party B shall be entitled to request it to clear the same within the given
time limit. In such case, Party A shall authorize Party B to withdraw
funds under all of its accounts opened with ICBC and all of its branches
to offset its obligations hereunder. Meanwhile, the outstanding Borrowing
will be added penalties at the contract rate plus 30% (30-50%),
and the outstanding interest accruals will be added compound interests at
the contract rate plus 30%
(30-50%).
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If the
funds to be drawn are foreign exchanges, it is required to purchase and convert
such foreign exchanges at the exchange rate published by Party B on the date of
such drawing.
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8.6
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If
Party A fails to use the Borrowing subject to this Contract, Party B shall
be entitled to suspend the issuance of Borrowing, to withdraw the
Borrowing in part or whole or rescind this Contract earlier, to charge
penalties for the use of Borrowing in violation of this Contract by Party
A on a daily basis at the contract rate plus 50% (50-100%),
and to charge compound interests for outstanding interests at the contract
rate plus 50%
(50-100%).
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8.7
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Interest
accruals unpaid by Party A on time during the Term shall be added compound
interests at the rate as specified in this Contract, and added compound
interests at the rate as specified in Article 8.5 after the Borrowing is
not repaid within the given time
limit.
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8.8
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If
Party A meets any circumstances as set forth in Article 8.5 and 8.6
concurrently when using the Borrowing, Party B shall not concurrently
impose those penalties and compound interests as set forth in Article 8.5
and 8.6, but select the one whichever is
higher.
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8.9
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Party
A shall make a correction and take remedial measures satisfactory to Party
B within seven days upon receipt of notice from Party B under any of the
following circumstances; otherwise, Party B shall be entitled to withdraw
the part or whole of the Borrowing in advance, and the part which cannot
be withdrawn will be added liquidated damages at the rate imposed on the
outstanding Borrowing on a daily
basis.
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8
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8.9.1
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Party
A provides Party B with false or misunderstanding balance sheets, income
statements and other financial information in any material
respect;
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8.9.2
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Party
A fails to coordinate or rejects the supervision on the Use and its
production, operation and financial activities by Party
B;
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8.9.3
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Party
A transfers or disposes, or threatens to transfer or dispose any of its
material assets without prior consents of Party
B;
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8.9.4
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The
material part or whole of its properties are possessed by other creditors,
or appointed with trustees, receivers or similar officials, or seized or
frozen, which may cause material losses to Party
B;
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8.9.5
|
Party
A, without prior consents of Party B, conducts contracting, lease,
shareholding reforms, joint operation, consolidation, merger, joint
venture, division, reduction of capitals, shareholding change, transfer,
or other acts enough to impact Party B's benefits and
claims;
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8.9.6
|
Party
A changes or replaces its residence, mailing address, scope of business or
legal representative, or conducts external material investments that
materially impact or threaten Party B's
claims;
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8.9.7
|
Party
A is involved in material economic disputes or its financial conditions
become worse, which materially impacts or threatens Party B's claims; or
Party A meets any other circumstances that may impact or threaten Party
B's claims in relation to the Borrowing or cause material losses to Party
B;
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8.9.8
|
Any
other circumstances that may impact or threaten Party B's claims in
relation to the Borrowing or cause material losses to Party
B.
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Article
9 Effectiveness,
Modification, Rescinding and Termination
|
9.1
|
This
Contract comes into effect after it is signed and sealed by the parties;
in the event of a guarantee, it shall come into effect after the guarantee
contract becomes effective. And it shall be terminated up to the date when
all the Principals, interest accruals, compound interests, penalties,
liquidated damages and other payable fees are
paid.
|
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9.2
|
Party
B shall be entitled to rescind this Contract, and to request Party A to
pay the principals and interest accruals thereon in advance and indemnify
losses caused to it under any of the following
circumstances:
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|
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9.2.1
|
Party
A meets out-of-business, or it is dissolved or suspended for
reorganization, or its business license is cancelled or
withdrawn;
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9.2.2
|
Any
change of the guarantees hereunder is unbeneficial to Party B's claims,
and Party A fails to provide other guarantees at the request of Party
B;
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9
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9.2.3
|
Party
A fails to repay the Borrowing as scheduled or to conduct the Use as
specified in this Contract, or to pay the due interest accruals, or it has
other material breaches.
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9.3
|
If
Party A intends to extend the repayment of the loan, it shall apply to
Party B and provide a written form specifying that the guarantor is
willing to continue to secure such loan in writing thirty days prior to
expiry date of this Contract. Upon the reviewing by, and the consents of
Party B, an extension agreement may be signed, according to which the
Borrowing hereunder can be extended. This Contract shall be applied before
such extension agreement is signed.
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9.4
|
Neither
party shall modify or rescind this Contract earlier at its own discretions
after this Contract becomes effective, unless otherwise provided in this
Contract. If it is required to modify or rescind this Contract, Party A
and Party B shall enter into a written agreement on any such modification
or rescinding through negotiation. This Contract shall be applied before
such written agreement is signed.
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Article
10 Dispute
Resolutions
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10.1
|
Any
dispute between Party A and Party B arising out of performance of this
Contract shall be resolved through negotiation by the parties; if not
reached, any such dispute shall be resolved according to the method as set
forth in Article 10.1.2
below:
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10.1.1
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To
be arbitrated by ;
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10.1.2
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To
be judged and resolved by the court at the location of Party
B.
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Article
11 Miscellaneous
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11.1
|
The
Borrower shall not use the Borrowing for investments to shares, funds,
options and other shareholding benefits, or other investments inconsistent
with this Contract.
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11.2
|
If the value of
collaterals is less than the balance of Borrowing upon re-evaluation on
such collaterals, the Borrower shall repay such balance of Borrowing in
advance or add other collaterals, and the Lender shall be entitled to
dispose such collaterals according to
law.
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11.3
|
Protective terms in
relation to the reminding of related risks shall be applicable to this
Contract (please refer to Appendix I for
details).
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10
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11.4
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If any accidents are
caused due to violation of applicable laws, regulations, regulatory
provisions or industrial standards in relation to food and production
security and environmental protection by the Borrower, or if any such
violation materially impacts its obligations under this Contract, it shall
promptly inform the creditor of the same. In such case, the creditor shall
be entitled to take one or more of the following remedial measures based
on the affected credit standing and performance capability of the Borrower
due to any such violation: to cease the Borrowing that has not been
issued; to declare the Borrowing to become due earlier; to withdraw the
whole or part of the issued Borrowing in advance; to rescind this
Contract; or to take other measures as it thinks
fit.
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Article
12 Supplementary
Provisions
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12.1
|
The
Appendix hereto, being integral to this Contract, shall have the same
force and effect with the text of this
Contract.
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12.2
|
If
a certain drawing date or repayment date is not a business day of a bank
during performance of this Contract, it is required to extend to the next
business day.
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12.3
|
This
Contract is made in three
counterparts with Party A, Party B and the registrant holding one counterpart
respectively.
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|
Party
A (common seal): Shishi Feiying Plastic
Co., Ltd.
|
Party
B (common seal): Industrial and
Commercial Bank of China, (Shishi City Branch)
|
|
|
Legal
Representative: Wu Licong
|
Legal
Representative
(or
Responsible Officer): Zhuang Wencong
|
|
|
(or
Authorized Agent)
|
(or
Authorized Agent)
|
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|
December
21, 2009
|
December
21, 2009
|
11
Appendix
I:
This
Appendix, supplementary to Article 11 “Miscellaneous” of the Working
Capital Borrowing Contract (2009
(Shishi) Zi No. 0545) dated on December 21, 2009, is specified as
follows:
The
Borrower (or other loanees, the same below) shall disclose to the Lender its
relationships and related transactions with its related parties. The Lender
shall be entitled to take remedial measures as provided in this Contract and
laws provided that the Borrower fails to perform its obligations to disclose the
above information, or the Borrower and/or its related parties meet any of the
following circumstances that may adversely impact its capability to perform its
obligations hereunder.
|
I.
|
Financial
conditions of the Borrower's related parties become
worse;
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II.
|
The
Borrower or any of its related parties are investigated or imposed with
punishment by judicial bodies, administrative law enforcement authorities
and administration departments such as taxation authorities and the
administration for industry and commerce according to
law;
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III.
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The
control or the relationship under control between the Borrower and any of
its related parties is changed;
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IV.
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Any
of its related parties is or may be involved in material economic
disputes, suits and arbitration;
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V.
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Major
investors and key officers of the Borrower are replaced abnormally, or are
suspected of violation and crime, and then they are investigated or their
personal freedom is limited by judicial bodies according to
law;
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VI.
|
Related
parties of the Borrower meet other circumstances that may adversely impact
the Borrower.
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In
accordance with the “Accounting Standards for
Enterprises –
Relationship with Related Parties and Disclosure of Related
Transactions”, the “Related Parties” in this Appendix shall
mean:
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|
I.
|
Other
enterprises which are, directly or indirectly, controlled by or control,
or under the common control with, the
Borrower.
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II.
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Joint
venture enterprises of the
Borrower;
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III.
|
Joint
operating enterprises of the
Borrower;
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|
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IV.
|
Major
investors and key officers of the Borrower or their close family
members;
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V.
|
Other
enterprises that are controlled by major investors and key officers of the
Borrower or their close family
members.
|
Other
terms, when used in this Appendix, shall have the same meanings ascertained in
the “Accounting Standards for
Enterprises –
Relationship with Related Parties and Disclosure of Related
Transactions”.
12
|
Party
A (common seal): Shishi Feiying Plastic
Co., Ltd.
|
Party
B (common seal): Industrial and
Commercial Bank of China, (Shishi City Branch)
|
|
|
Legal
Representative: Wu
Licong
|
Legal
Representative
(or
Responsible Officer): Zhuang
Wencong
|
|
|
(or
Authorized Agent)
|
(or
Authorized Agent)
|
|
|
December
21, 2009
|
December
21, 2009
|
Industrial
and Commercial Bank of China, (Shishi City Branch)
Consistent
with the originals
13