This document has been translated from Chinese to English] Project Financing Agreement
[This
document has been translated from Chinese to English]
Entrusted
Lenders:
Tianjin Cube Xindao
Equity
Investment Fund Partnership (Limited Partnership)
Tianjin Cube Xinde Equity
Investment Fund Partnership (Limited Partnership)
Tianjin Cube Xinren Equity
Investment Fund Partnership (Limited Partnership)
Tianjin Cube Xinyi Equity
Investment Fund Partnership (Limited Partnership)
Registered
Address:
Room J314-317, 3rd floor,
Building 6, Binhai Financial Street, 52 Xincheng West Road of
TEDA.
Borrower：
Xi’an
Xinxing Real Estate Development Co., Ltd.
Registered
Address:
9 South Baqiao, Baqiao
District, Xi’an
Whereas:
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1.
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The Entrusted Lenders
agree to lend a two hundred
million yuan (RMB ¥ 200,000,000.00) Entrusted Loan (the “Loan” or “Entrusted Loan”) to the
Borrower through China Construction Bank
Co., Ltd. (Shaanxi Branch) (hereinafter
referred to as the “Lending Bank”) for the
purpose of Project Baqiao A and Baqiao B in Baqiao District Xi’an on the terms and
conditions of this agreement (the
“Agreement”).
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2.
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The Borrower agrees to
accept the foresaid Loan provided by the Entrusted Lenders through the
Lending Bank on the terms and conditions of this Agreement. As
to relevant matters regarding the Loan, the Entrusted Lenders
and the
Borrower agree as
follows:
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Terms:
Article 1: Definitions and
Interpretations
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1.
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Definitions
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Unless
the context provides otherwise, the relevant terms of this Agreement shall be
explained in accordance with the following definitions:
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a)
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“PRC” or “China” shall mean the
People’s Republic of China (but not including Hong Kong SAR, Macao SAR and
Taiwan);
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b)
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“Renminbi” and “RMB” shall mean
Renminbi, the lawful currency of
China;
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c)
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“Yuan” shall mean
Renminbi yuan;
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d)
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“Baqiao Area” shall mean
the Baqiao District, Xi’an,
Shaanxi;
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e)
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“Baqiao District Land and
Housing Management” shall mean the Bureau of Land Resources, the
Housing Authority or other authorized agency responsible for the
registration and management of land and housing property in the Baqiao
District, Xi’an, Shaanxi;
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f)
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“Land Use Right Certificate of
Project Baqiao A and B” shall mean the land use right certificate
to approximately 180 acres of coastal land in ▇▇▇▇, Baqiao District Xi’an,
Shaanxi Province. The land will be acquired by the Borrower in 2011
through bidding and auction;
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g)
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“Suo Di-Owned Land use Right
Certificate” shall mean the land certificate named Changan
collective use 2000 No. 2 land permit which relates to the land use right
and the buildings on the ground collectively owned by Xi’an Suo Di Trading
Limited Company in Changan County,
Xi’an;
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h)
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“Junjingyuan Phase II Commercial
Estate” shall mean the buildings on the commercial land of
Junjingyuan Phase II with the land certificate number Xi Xin land for
state use (2008) No. 282, the certificate of title of which is attached
hereto as a schedule;
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i)
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“Project
Baqiao A and B” shall mean the
overall real estate development projects involving the high-level, small
multi-storey high-rise and garden houses and other buildings
developed on the
180 acres of land along the ▇▇▇▇, Baqiao
District, Xi’an, Shaanxi
Province;
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j)
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“Controlling shareholder”
shall mean the Borrower’s investors, China Housing and Land Development
Co., Ltd.;
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k)
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“Entrusted Loan” shall
mean the two hundred million yuan (RMB ¥ 200,000,000.00) Entrusted
Loan provided by the Entrusted Lenders to the Borrower through China Construction Bank
Corporation Shaanxi Branch for the purpose of Project Baqiao A and
Baqiao B in Xi’an;
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l)
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“Lending Bank” shall mean
China
Construction Bank Corporation Shaanxi
Branch;
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m)
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“Entrusted Loan Agreement”
shall mean the agreement reached by Entrusted Lenders, Lending Bank and
Borrower based on this Agreement regarding the two hundred million
yuan (RMB ¥ 200,000,000.00) Entrusted Loan provided by the Entrusted
Lenders to the Borrower through China Construction Bank
Corporation Shaanxi Branch for the purpose of Project Baqiao A and
Baqiao B in Xi’an. The loan will be used
strictly for the purpose specified in Article 3, 1 of this Agreement, and
shall not be used for other
purposes;
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n)
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“Entrusted Loan Agreement and the
Related Loan Documents” shall mean the Entrusted Loan Agreement,
this Agreement, the Project terms of Xi’an Xinxing Real Estate
Development Limited, financial consultancy agreements as well as the
state-owned land use rights related to the Entrusted Loan Agreement and
all the buildings that are built, under construction, or to be built,
and all appurtenances mortgage contracts, equity pledge contracts,
guarantee contracts, regulatory agreements, commitment letters and other
documents related to the Loan, recognized by the Entrusted Lenders and
agreed by one party or both parties via written consent, including
amendments and supplements made from time to time; depending on the
context, “Entrusted Loan Agreement and the Related Loan Documents” may
refer to any of the above documents related to the Entrusted Loan
Agreement;
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o)
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“Agreement” shall mean,
unless expressly provided otherwise by both Parties, this Agreement and
any documents after amendment, expansion, update, replacement and
supplement any time by any method in accordance with relevant provisions
and with written consent of both
Parties;
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p)
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“Financial Advisor
Agreement” shall mean the agreement on the financial advisor
service provided by the Entrusted Lenders Tianjin Qiaobo
Xindao
Equity Investment Fund Partnership (Limited Partnership) , Tianjin Qiaobo Xinde
Equity Investment Fund Partnership (Limited Partnership) , Tianjin Qiaobo Xinren
Equity Investment Fund Partnership (Limited Partnership) , Tianjin Qiaobo Xinyi
Equity Investment Fund
Partnership (Limited Partnership) regarding the Loan provided by the
Entrusted Lenders to the
Borrower;
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q)
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“Consulting
Fees for Late Payment” shall
mean the
consulting fees paid by the Borrower to the Entrusted Lenders or other
companies nominated by the Entrusted
Lenders due to the Borrower’s failing to timely pay
any due amount set out in this Agreement, the Entrusted Loan Agreement or
other relevant loan
documents;
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r)
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“Real Estate Mortgage
Agreement” shall mean the agreement under which the Borrower
mortgages the land use right under the “Suo Di-owned Land Use Right”,
“Project Baqiao A and B Land Use Certificates” and the first priority
mortgage right under the “Junjingyuan Phase II Commercial Estate” to the
Entrusted Lenders and the Lending
Bank;
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s)
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“Guarantee Agreement”
shall mean the joint guarantee agreement provided by the Borrower’s actual
controller ▇▇. ▇▇ Pingji and the controlling shareholder China Housing and
Land Development Co., Ltd. to the Entrusted
Lenders;
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t)
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“Share Pledge Agreement”
shall mean the share pledge agreement under which the shares of Wei Xun
Holdings Limited held by China Housing and Land Development Co., Ltd., the
shares of the parent company Hong Kong Zhike Ltd held by Wei
Xun Limited, and the shares of Xi’an Suo Di Trading Limited Company
held by Xi’an Xinxing Real Estate Development Ltd through its subsidiary
Xi’an Xinxing Estate Management Ltd. that are pledged to the Entrusted
Lenders;
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u)
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“Receivables Pledge
Agreement” shall mean the agreement under which the Borrower
guarantees the Entrusted Lenders with all the present and future
receivables of Project Baqiao A and
B;
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v)
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“Supervision Agreement”
shall mean the Financial Supervision Agreement signed by the Entrusted
Lenders and the Borrower, under which the Borrower agrees to supervise
together with the Entrusted Lenders the income and expense of the
Borrower’s commercial real estate sales during the Entrusted Loan
period;
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w)
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“Commitment Letter” shall
mean the written document provided by ▇▇. ▇▇ Pingji, Mr. ▇▇▇▇ ▇▇▇▇▇▇▇▇ and
▇▇▇. ▇▇ Jing regarding the commitment not to resign within the Entrusted
Loan period;
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x)
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“Bank Business Day” shall
mean a business day of commercial banks in China (except Saturdays,
Sundays and public holidays);
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y)
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“Withdrawal Date” shall
mean the date on which the Borrower withdraws the Loan within the period
of Loan;
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z)
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“Withdrawal Notice” shall
mean the withdrawal notice issued by the Borrower in the format specified
by the Lending Bank;
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aa)
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“Asset Assessment
Institution” shall mean independent asset assessment institutions
recognize by the entrustees;
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bb)
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“Escrow Account” shall
mean RMB account at the Lending Bank or the bank nominated by the Lending
Bank opened and kept by or to be opened and kept by the Borrower to keep
related sales revenue of the Borrower or other accounts agreed on by the
Borrower, the Entrusted Lenders and the Lending
Bank;
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cc)
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“Sales Revenue” shall
mean all the amount (including but not limited to the sales price, down
payment, liquidated damages or compensation, etc.) that the purchaser
shall pay the Borrower on the terms of the commercial housing sale
contracts between the purchaser and the Borrower in the process of the
purchaser’s buying the Borrower’s commercial houses of Baqiao A and
B;
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dd)
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“Debt” or “liability” shall mean
the responsibilities to make payment or repayment by the Borrower (whether
present or future, actual or potential debt secured or unsecured, as
the primarily liable debtor or as guarantor of the commitment) for all the
borrowing and debt;
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ee)
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“Events with Material Adverse Effect”
shall mean, according to the Entrusted Lenders’ understanding, (1) the
events that have material adverse effect on the finances, assets or
business conditions of the Borrower or the controlling shareholder or
affiliated companies of the Borrower; or (2) the events that have material
adverse effect on the Borrower’s or its controlling shareholders’ capacity
to perform under this Agreement, the Entrusted Loan Agreement and the
relevant Loan documents;
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ff)
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“Taxes” shall mean all
kinds of taxes, fees or deductions imposed, collected, withheld or made
paid in advance by the Chinese state and local tax authorities or other
institutions at present or in the future (including any amount due to
non-payment or delayed payment or non-delivery or late submission of any
of tax returns above mentioned);
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gg)
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“Event of Default” shall
mean any of the events listed in Article
16.
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2.
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Headings and
Provisions
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The
headings of this Agreement are for ease of understanding of the agreement and do
not affect the interpretation of this Agreement. Unless
otherwise provided, the terms, paragraphs, schedules and annexes mentioned
in this Agreement means the terms, paragraphs, schedules and annexes of this
Agreement.
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3.
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Laws
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The laws
referred to in this Agreement shall include the laws formulated, amended,
expanded or revised by the Chinese National People’s Congress and its Standing
Committee; Supreme People’s Court’s issued judicial interpretations; local
regulations enacted by local people’s congress. Unless the law expressly
provides otherwise regarding the modification, expansion revision, expansion or
revision, the law does not have retroactive effect.
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4.
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Plural and
Gender
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Unless
the context has different requirements, singular words in this Agreement contain
plural meanings and vice versa; words of a gender include the other
gender.
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5.
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Receiver and
Assignee
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Any party
referred to by this Agreement shall include their respective receiver, assignee
(whether due to merger or consolidation or other reasons) and
successors.
Article
2: Amount and Term of Entrusted Loan
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1.
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Entrusted Loan
principal
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According
to the terms and conditions of this Agreement, the Entrusted Loan Agreement and
the Related Loan Documents, and the statements, guarantees, agreements,
representations, commitments and warranties made by the Borrower in this
Agreement, the Entrusted Loan Agreement and the Related Loan Documents, the
Entrusted Lender agrees to entrust the Lending Bank to provide Borrower with
RMB two hundred million Yuan (RMB ¥ 200,000,000.00) for the purpose of
Project Baqiao A
and B.
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2.
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Term
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The term
of the Entrusted Loan is twelve (12) months, see the specific starting and
ending time set out in the Entrust Loan Agreement.
Article
3：Loan
Purposes
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1.
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Entrusted Loan
Purposes
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The
Entrusted Lenders agrees that the Entrusted Loan shall only be used for Project
Baqiao A and B, including acquiring the land of Project Baqiao A and B and
paying for the project fees and other development fees, and can be used for
other projects and purposes with the consent of the Entrusted Lenders if
specific conditions are satisfied, but the amount used for Project Baqiao A and
B shall not be less than RMB one hundred fifty million yuan (RMB
150,000,000).
For the
above project, the Borrower’s contribution shall not be less than RMB two
hundred million yuan (RMB ¥ 200,000,000.00). If more fundings are
needed, the Borrower is obliged to supplement the fund.
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2.
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The Use of the
Entrusted Loan
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The
Borrower shall use this fund in accordance with the terms and conditions of the
Entrusted Loan Agreement between the Borrower and the Entrusted Lenders, in
addition, the Entrusted Lenders will entrust officers to check the actual use of
the Loan.
Article
4：
Prerequisites for the Entrusted Loan
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1.
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Prerequisites
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The
prerequisites of the Entrusted Lenders’ providing the Borrower with the
Entrusted Loan in accordance with the terms and conditions of this Agreement,
the Entrusted Loan Agreement and Related Loan Documents is that:
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a)
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The
Borrower provides the Entrusted Lenders and the Lending Bank with all the
documents listed in the schedule to this Agreement three (3) bank business
days prior to the withdrawal date, and the Entrusted Lenders and the
Lending Bank are satisfied with the form, contents and signatures of these
documents;
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b)
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The
conditions of the grant of the Entrusted Loan is fulfilled. But
the mortgage / pledge shall not affect the real estate sale of the
Borrower, in case of occurrence of adverse effects, without prejudice to
the interests of the Entrusted Lenders. The Entrusted Lenders and the
Lending Bank have the duty to support the Borrower to satisfy the
conditions of sales.
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2.
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Exemptions to the
Prerequisites
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If the
Borrower fails to provide documents in accordance with the first paragraph of
this article, the Entrusted Lenders do not have to provide the Borrower with the
Entrusted Loans or perform any duty under this Agreement, the Entrusted Loan
Agreement and Related Loan Documents, but the Borrower shall undertake all
payment obligations under Article 18 of this
Agreement.
The
Entrusted Lenders are entitled to exempt or waive all or part of the rights
prescribed in paragraph one of this article, which does not affect any right of
the Entrusted Lenders under this Agreement, the Entrusted Loan Agreement and
Related Loan Documents.
Article
5： The Grant
of the Entrusted Loan
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1.
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Condition and Time of
The Grant of the Entrusted
Loan
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After the
security measures in Article 12 (1) - (c) item, (2), (3) and (4) come into
effect, the time for the Borrower to withdraw the Entrusted Loan is five (5)
bank business days after the beginning of the Entrusted Loan term specified by
the Entrusted Loan Agreement.
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2.
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Withdrawal
Notice
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Three (3)
bank business days before the withdrawal of the Borrower, under the condition of
the Borrower’s complying with the terms and conditions of this Agreement, the
Entrusted Loan Agreement and Related Loan Documents, the Borrower must submit to
the Lending Bank an original withdrawal notice that the Lending Bank approves of
which is filled out and signed by the Borrower and states the date, amount,
purpose and payment method that the Borrower intends to withdraw.
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3.
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The withdrawal of the
Entrusted Loan
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Under the
prerequisite of the Borrower’s complying with the terms and conditions of this
Agreement, the Entrusted Loan Agreement and Related Loan Documents, the Borrower
shall withdraw the Entrusted Loan on any bank business day within the Entrusted
Loan withdrawal period at one time. After the Borrower withdraws the Entrusted
Loan, it shall circulate the loan in accordance with the Entrusted Loan
Circulation Agreement between the Borrower and the Entrusted
Lenders.
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4.
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The Withdrawal Notice
is Not Revocable
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Unless
this Agreement, the Entrusted Loan Agreement and Related Loan Documents provide
otherwise, the withdrawal notice submitted by the Borrower is not revocable, and
the Borrower shall withdraw in compliance with the withdrawal
notice.
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5.
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The Indemnity of the
Cancelation of the
Withdrawal
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For any
reason, if the Borrower cancels the withdrawal of the Entrusted Loan after
submitting the original withdrawal notice, the Borrower shall indemnify the
Entrusted Lenders for the economic loss and fees caused by reorganizing relevant
funds.
Article
6： The
Interest Rate and Interest of the Entrusted Loan
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1.
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The Interest Rate of
the Entrusted Loan
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The
Borrower agrees that the annual interest rate of the Entrusted Loan is 9.6% (the
monthly interest rate is 0.8%). The Borrower agrees to pay the interest of the
Entrusted Loan in accordance with this provision.
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2.
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Fixed
Rate
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The
interest rate of the Entrusted Loan is fixed and does not change as the People’s
Bank of China adjust the interest rates of deposits and loans of financial
institutions in China within the term of the Entrusted Loan.
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3.
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Payment of the
Interest
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The
Borrower shall pay the Entrusted Lenders the interest of the Entrusted Loan in
accordance with the loan contribution proportion under the provisions of Article
1 hereto.
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4.
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Time to Pay the
Interest
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Within
the term of the Entrusted Loan, the Borrower shall pay the interest to the
Entrusted Lenders on the monthly interest settlement date after the withdrawal
date. (If the withdrawal date is Feb 1, 2011, the Borrower shall pay the
interest to the Entrusted Lenders on the monthly interest settlement date after
the withdrawal date until the end of the term of the Entrusted
Loan.)
If the
date to pay the monthly interest is not a bank business day (Saturdays, Sundays
and public holidays), the monthly interest is not adjourned, while the payment
of the interest is postponed.
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5.
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Delay
Interest
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If the
Borrower fails to pay any amount on time under this Agreement, the Entrusted
Loan Agreement and Related Loan Documents (including but not limited to
Entrusted Loan principal, interest, handling fee, taxes or other payment), the
Borrower shall pay the delay interest for the total delayed amount from the due
date to the actual payment date, and the delay interest rate shall be 0.04%
(14.4% per year) per day of the delayed amount. Meanwhile, the Borrower shall
pay the delay payment consulting fee to the Entrusted Lender or other companies
nominated by the Entrusted Lenders, the amount of which shall be calculated in
0.032% per day of the total delayed amount.
Article
7： Repayment
of the Entrusted Loan
The
Borrower shall, from the next month of the withdrawal date (if the withdrawal
date is Feb 1, 2011, the Borrower shall from March 1, 2011), transfer not less
than 30% of the sales of cash back from Project Baqiao A and B to the bank
account designated by the Entrusted Lenders to repay the principal within five
(5) business days.
If the
Borrower’s sales on Project Baqiao B does not reach the target set by both
Parties in any month (see “5” of Article 14), the Entrusted Lender is entitled
to request that the above mentioned repayment rate be increased from 30% to
50%.
Meanwhile
the Borrower shall pay the Entrusted Lender and the Lending Bank
Article
8: Repayment in advance
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1.
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Repayment in
advance
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Within
nine (9) months from the withdrawal date, the Borrower may at any time repay all
or part of the Entrusted Loan in advance. On the repayment day, the Borrower
shall pay the accrued interest of the Entrusted Loan and any due or outstanding
amount under this Agreement, the Entrusted Loan Agreement and Related Loan
Documents, meanwhile, the Borrower shall pay the Entrusted Lenders the fee for
repayment in advance which equals to 10% of the amount repaid in
advance.
The
Borrower may repay the Entrusted Loan in advance any time nine (9) months after
the Borrower’s withdrawal, and the Borrower does not need to pay the Entrusted
Lenders any fee for repayment in advance.
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2.
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The Repayment in
Advance is not Revocable
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The
notice of any repayment in advance from Borrower to the Entrusted Lenders and
the Lending Bank is not revocable, and the Borrower shall repay in advance in
accordance with the notice.
Article
9: The Extension of the Entrusted Loan
After the
Expiration of the Entrusted Loan, according to the application of the Borrower,
the Entrusted Loan can be extended for six (6) months, and the Borrower, the
Entrusted Lenders and the Lending Bank shall sign a supplemental agreement which
covers the matters of the deferral of the Entrusted Loan.
The
Borrower shall make written application for deferral of the Entrusted Loan to
the Entrusted Lenders and the Lending Bank thirty (30) days prior to the
expiration of the Entrusted Loan, and the Entrusted Lenders shall decide based
on their own situations whether to agree to the deferral application of the
Borrower within five (5) business days of receiving the deferral application
from the Borrower.
Article
10： Taxes
Matters
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1.
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Legal Restrictions,
Taxes and withholding
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All taxes
and fees, except those expressly agreed in this Agreement and the Entrusted Loan
Agreement, shall be undertaken by the Entrusted Lenders, the Lending Bank, the
Borrower respectively in accordance with the relevant laws, regulations and
policies. The Borrower’s payment of any amount to the Entrusted Lenders (or the
Lending Bank) on the terms and conditions in the Entrusted Loan Agreement
and relevant loan documents shall not be restricted by any law.
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2.
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Extra
Payment
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As to any
amount to be paid by the Borrower to the Entrusted Lender (or the Lending Bank)
under this Agreement, the Entrusted Loan Agreement and Related Loan Documents,
if the Borrower (or any other person) shall deduct or withhold relevant taxes
from it as required by law, or if the Entrusted Lenders (or the Lending Bank)
shall deduct or withhold from the received amount as required by law, the
Borrower shall:
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a)
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notify
the Entrusted Lenders (or the Lending Bank) as soon as
possible;
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b)
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Within
thirty (30) days after the payment of any deducted or withheld amount,
submit to the Entrusted Lenders (or the Lending Bank) a certificate
proving the payment of the above mentioned deductions, withholdings or the
payment by other institutions of the above mentioned amount satisfactory
to the Entrusted Lenders (or the Lending
Bank).
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Article
11: Discovery of Illegality
If the
Entrusted Lenders at any time discover the gathering or keeping of all or part
of the Entrusted Loan, or the performance of all or part of the obligations
under this Agreement, the Entrusted Loan Agreement and Relevant Loan Document
may violate the prohibitive rules of law or prohibitive administrative orders of
state organs, the Entrusted Lenders shall immediately inform the Borrower,
meanwhile the Entrusted Loan shall expire immediately, and the Borrower shall
immediately repay all the principal and interest of the Entrusted Loan. Other
fees shall be undertaken by the Parties in accordance with this Agreement and
the existing laws, regulations, and policies of China. The extra part of the
paid financial advisor fee shall be refunded to Borrower by the Entrusted
Lenders after re-calculation according to the time of usage of the loan and the
proportion of the withdrew amount to the total amount of the loan. If
the above occurs, both Parties agree not to hold each other in breach of the
agreement.
Article
12: The Warrant of the Entrusted Loans
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2.
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The Warrant of the
Agreement, the Entrusted Loan Agreement and the Financial Advisor
Agreement
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To ensure
the security of the Entrusted Loan, the Borrower agrees to provide the Lending
Bank with the land use right of the land of Project Baqiao A and B as mortgage,
meanwhile the Borrower will assist the Entrusted Lenders to get the Share Pledge
Agreement from Borrower’s parent company shareholder and Guarantee Agreement
from the controlling shareholder of the Borrower and the affiliated companies.
The Entrusted Lenders and the Borrower will sign the Supervisory Agreement,
under which both Parties will jointly supervise the new sales revenue generated
from Project Baqiao A and B by the Borrower within the term of the Entrusted
Loan.
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a)
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Mortgage
of the Borrower
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i)
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The
Borrower agrees to mortgage on the state owned land use right as
determined by the Land Use Right Certificate of Project Baqiao A and B,
all the buildings that have been constructed, being constructed and will
be constructed, and the appurtenance thereon shall be owned by the Lending
Bank, as the mortgage of the Entrusted Loan. The Borrower
agrees that the Lending Bank, as entrusted by the Entrusted Lenders, shall
be the mortgagee with first priority of the mortgage on the state owned
land use right as determined by the Land Use Right Certificate of Project
Baqiao A and B, all the buildings that have been constructed, being
constructed and will be constructed, and the appurtenance thereon. The
Borrower further agrees that no other mortgages will be created on the
state owned land use right as determined by the Land Use Right Certificate
of Project Baqiao A and B, all the buildings that have been constructed,
being constructed and will be constructed, and the appurtenance thereon
since commencement of the Entrusted
Loan;
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ii)
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The
company owned by the Borrower, Xi’an Suo Di Trading Co.,Ltd.(“Suo Di”), agrees to
mortgage the Land Use Right Certificate owned by Suo Di to the Lending
Bank;
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iii)
|
The
Borrower uses the “Junjinyuan Phase II Commercial Estate” as the mortgage
of the Entrusted Loan.
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The
Borrower agrees that the Lending Bank, as entrusted by the Entrusted Lenders,
shall be the mortgagee of first priority of the mortgages on Land Use Right
Certificate owned by Suo Di and the “Junjinyuan Phase II Commercial Estate”. The
Borrower further agrees that no other mortgages will be crated on the Land Use
Right Certificate owned by Suo Di and the “Junjinyuan Phase II Commercial
Estate” since commencement of the Entrusted Loan.
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b)
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Share
Pledge of Shareholder of the
Borrower
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Wei Xun
Holding Co., Ltd. (“Wei
Xun”), the parent company of Hong Kong Zhi Ke Co., Ltd (“Zhi Ke”) which is the parent
company of the Borrower, agrees that all the shares of Zhi Ke owned by Wei Xun
shall be under pledge, and that all the shares of Zhi Ke owned by China Housing
and Land Development Co., Ltd. shall be under pledge, and that all the shares of
Suo Di owned by the Borrower’s wholly owned subsidiary, Xin Xing Property
Management Co., Ltd., shall be under pledge. All the aforesaid pledges shall be
the guarantees of the Entrusted Loan offered to the Borrower by the Entrusted
Lenders. The terms and contents of the aforesaid pledges shall be determined by
the Share Pledge Agreement entered into by and between the Entrusted Lenders
with the Borrower, Wei Xun, and China Housing and Land Development Co., Ltd.
respectively.
|
c)
|
Guarantee
of the Actual Controller of the
Borrower
|
The
actual controller of the Borrower, ▇▇. ▇▇ ▇▇▇▇▇▇, agrees to provide the
Principal with aguarantee of the Entrusted Loan provided by Entrusted Lenders to
the Borrower. The terms and contents of the aforesaid guarantee shall be
determined by the Guarantee Agreement entered into by and between the Entrusted
Lenders and the actual controller of the Borrower.
|
d)
|
Guarantee
of Other Affiliated Companies of the
Borrower
|
Other
affiliated company of the Borrower, China Housing and Land Development Co.,
Ltd., agrees to provide the Principal with the guarantee of the Entrusted Loan
offered by the Entrusted Lenders to the Borrower. The terms and contents of the
aforesaid guarantee shall be determined by the Guarantee Agreement entered into
by and between the Entrusted Lenders and the said affiliated
company.
|
e)
|
Pledge
of Receivables
|
The
Borrower offers warranties of the current and future receivables of Project
Baqiao A and B to the Principal. If the Borrower fails to fulfill the
obligation, the Principal may choose one or more of the above guarantees to
realize the debt.
|
3.
|
Entrusted
Lenders and the Borrower will jointly supervise the newly increased sales
revenue of the Borrower to assure that the Borrower repay the Entrusted
Loan according to the schedule. The Borrower agrees that the Entrusted
Lenders will jointly supervise the use of the newly increased sales
revenue of the real estate development project as determined by the Land
Use Right Certificate of Project Baqiao A and B of the Borrower during the
term of the Entrusted Loan. Furthermore, the Entrusted Lenders shall enjoy
the only right of supervision to all the bank accounts under which the
aforesaid sales revenues are saved by the Borrower. The said
supervision shall be determined by the Supervision Agreement entered into
by and between the Entrusted Lenders and the
Borrower.
|
Article
13：
Representations and Warranties
|
1.
|
The Borrower makes the
following representations and warranties to the Entrusted
Lenders:
|
|
a)
|
The
Borrower is an independent legal person that possesses the necessary
capacity to perform contractual obligations of the Agreement, the
Entrusted Loan Agreement and other Related Loan Documents and bear the
civil liabilities in its own name; the terms and conditions of the
Agreement, the Entrusted Loan Agreement and other Related Loan Documents
are the genuine intentions and expressions of the Borrower, and are
binding upon the Borrower.
|
|
b)
|
The
Borrower has the right to enter into the Agreement, the Entrusted Loan
Agreement and other Related Loan Documents, and has obtained all the
authorization and approval (including, without limitation, board
resolution, shareholders’ resolution, filing, approval, consent,
authorization, license, disclaimer, registration and acknowledgement,
etc.) for entering into and performing the contractual obligations of the
Agreement, the Entrusted Loan Agreement and other Related Loan
Documents
|
|
c)
|
The
Borrower represents and guarantees to comply with the laws, and the
Borrower’s entering into and performing the Agreement, the Entrusted Loan
Agreement and other Related Loan Documents does not violate the laws,
articles of association, the documents, judgment, decisions of relevant
government agencies that the Borrower shall comply with, and neither does
it contradict any other contracts, agreements signed by the Borrower and
any other obligations undertaken by the
Borrower.
|
|
d)
|
The
Borrower represents and warrants that all the financial statements issued
are in compliance with the applicable Chinese laws, accounting rules and
principles, and that all financial statements are genuine, complete, and
justly indicate the Borrower’s financial situation. The Borrower further
represents and guarantees that all the documents, information, and profile
of the Borrower in the Agreement, the Entrusted Loan Agreement and other
Related Loan Documents are genuine, valid, accurate, complete, and nothing
is concealed.
|
|
e)
|
The
Borrower represents and warrants that all the debts of the Borrower and
the affiliated companies at the time when the Agreement, the Entrusted
Loan Agreement and other Related Loan Documents are concluded have been
disclosed to the Entrusted Lenders; all the material facts and information
that the Borrower has or should have knowledge of and which have an impact
on the decision of the Entrusted Lenders regarding if or not to grant the
Entrusted Loan have been disclosed to the Entrusted
Lenders.
|
|
f)
|
Since
issuance of the latest audited financial statements of the Borrower, the
operations, businesses, assets, debts or other situations of the Borrower
has not been substantially or materially adversely changed; meanwhile,
neither the Borrower nor the affiliated company has or may have any
material legal liability or any other debts that have not been withheld in
the Borrower’s financial
statements.
|
|
g)
|
The
Borrower has the right to dispose of the collateral (state owned land use
right and the buildings that have been or are being or will be constructed
thereon and the appurtenance thereon) as provided by the Agreement, the
Entrusted Loan Agreement and other Related Loan Documents entered into by
the Borrower, and the Borrower does not create any other mortgages or
rights on the collateral for the benefits of third
parties.
|
|
h)
|
The
Borrower represents and guarantees that it strictly complies with the
applicable laws and regulations during operation, and carries on
businesses strictly within the business scope as indicated in the
Borrower’s business license or approved by the authority, and conducts the
annual inspection process in a timely
manner.
|
|
i)
|
The
Borrower acknowledges and warrants that the Borrower has fully paid all
the due taxes and expenses as prescribed by the state and local tax
authorities at the time when the Agreement, the Entrusted Loan Agreements
and other Related Loan Documents are entered into, and that delinquencies
of taxes and expenses as prescribed by state and local tax authorities
will not occur during entering into and performance of the Agreement, the
Entrusted Loan Agreement and other Related Loan
Documents.
|
|
j)
|
The
Borrower acknowledges and guarantees that delinquencies of employees’
salaries, medical insurance, disability and injury allowance, death
benefits and compensation will not occur during entering into and
performance of the Agreement, the Entrusted Loan Agreement and other
Related Loan Documents.
|
|
k)
|
The
Borrower represents and warrants that there are no material violations or
potential violations, or insolvency of the Borrower; the Borrower is not
applying for or being applied for bankruptcy or in the process of
bankruptcy, does not plan to reorganize debts with creditors; and there is
not any pending litigation, arbitration or administrative procedures
against the Borrower or the affiliated company, or the assets, businesses,
financial situation of the Borrower or the affiliated
company.
|
|
l)
|
The
Borrower represents and guarantees that there is not any situations or
facts that have or will have a material impact on the Borrower’s ability
to perform its contractual
obligations.
|
|
2.
|
The
Borrower acknowledges that the Entrusted Lenders enter into the the
Agreement, the Entrusted Loan Agreement and other Related Loan Documents
by relying on the above representations and
warranties.
|
Article
14： Promises
of the Borrower
The
Borrower hereby promises to the Entrusted Lenders: Unless obtaining the prior
consent of the Entrusted Lenders in writing, before the Borrower repays all the
Entrusted Loan and related expenses, the Borrower will comply with and complete
the followings:
|
1.
|
Company
Businesses
|
The
Borrower will complete the registrations, filings and annual inspections in
relation to the operation of the business of the company according to Chinese
applicable laws and regulations, carry on and engage in the businesses to the
extent permitted by the laws and regulations, and pay all the due taxes and
expenses in a timely manner.
|
2.
|
Shareholder
Report
|
The
Borrower agrees that each formal report, notice and representation in relation
to operation of Project Baqiao A and B that are delivered to each shareholder of
the Borrower shall be delivered to the Entrusted Lenders at the same
time.
|
3.
|
Accounting
Books
|
The
Borrower shall make and maintain accounting books for its business operations
pursuant to Chinese accounting rules and principles. During the term of the
Entrusted Loan, if prior and reasonable notice has been given, the Borrower will
provide the Entrusted Lenders with relevant documents of the Borrower’s
accounting books.
|
4.
|
Financial Information
and Sales Documents
|
Upon
request by the Entrusted Lenders, the Borrower agrees to provide the following
financial information and sales documents with the Entrusted
Lenders:
|
a)
|
Before
execution of the Agreement, the Entrusted Loan Agreement and other Related
Loan Documents, the Borrower
provides:
|
|
i)
|
Organization
situation and audited financial report of the Borrower, its parent company
and affiliated company;
|
|
ii)
|
Data
of cash flow of the Borrower from October 2007 to November 2010, and plan
of cash flow of the Borrower from December 2010 to December
2012;
|
|
iii)
|
Detailed
information of the assets of the Borrower until October 2010, and whether
there are any security guarantees, such as mortgages,
etc;
|
|
iv)
|
Documents
certifying that appropriate insurance has been purchased for Project
Baqiao A and B;
|
|
b)
|
Upon
execution of the Agreement, the Entrusted Loan Agreement and other Related
Loan Documents, the Borrower
provides:
|
|
i)
|
Monthly
financial statements of the Borrower during the term of the Entrusted Loan
(Balance Sheet, Cash Flow Sheet and Income
Statement);
|
|
ii)
|
All
information of the supervised bank accounts and monthly bank statements
for Project Baqiao A and B of the Borrower during the term of the
Entrusted Loan;
|
|
c)
|
After
execution of the Agreement, the Entrusted Loan Agreement and other Related
Loan Documents, the Borrower
provides:
|
|
i)
|
Monthly
sales report and photocopies of the monthly sales invoices of Project
Baqiao A and B;
|
|
ii)
|
Reports
of abnormal selling situations of Project Baqiao A and B: the lowest
selling price of Project Baqiao A and B and the monthly lowest selling
price shall be determined according to the table
below:
|
|
RMB
Yuan / m2
|
Monthly
Lowest Price
|
Monthly
Average Price
|
|
High
Rise by River
|
7,500
|
9,000
|
|
Sub-High
Rise
|
5,000
|
5,600
|
|
Garden
House
|
6,000
|
7,500
|
If any
price of Project Baqiao A and B is lower than the price above, the Borrower must
notify the Entrusted Lenders in writing and obtain the approval of the Entrusted
Lenders;
|
iii)
|
Report
of special situations of business operations of the Borrower: during the
term of the Entrusted Loan, if any of the following occurs: for
any single expense of more than RMB 1,000,000 which falls outside the
scope of the budget verified by both parties in advance, or any monthly
accumulated expense of more than RMB 3,000,000, the Borrower mush notify
the Entrusted Lenders in writing and obtain the approval of the Entrusted
Lenders;
|
|
iv)
|
For
any matters requiring written approval of the Entrusted Lenders under this
article, the Entrusted Lenders shall reply to the Borrower within three
(3) working days of the written approval application (including
application by way of email) by the Borrower. It shall be deemed as
approved if the Entrusted Lenders have not replied within the three-day
period.
|
|
d)
|
Other
information and documents that the Entrusted Lenders may require the
Borrower to provide according to the Agreement, the Entrusted Loan
Agreement and other related
agreements.
|
|
5.
|
Cash Flow of the
Borrower during the Term of the Entrusted Loan
|
|
a)
|
The
Borrower agrees to use all the disposable sales revenues (including
revenues of presale) of the real estate development project as indicated
in the Land Use Right certificate of Project Baqiao A and B as the source
for the Borrower to repay the Entrusted
Loan.
|
|
b)
|
The
Borrower agrees to use the cash flow index in the table below as the
financial index that the Borrower shall complete during the term of the
Entrusted Loan.
|
Monthly
cash in >90％; Monthly cash out
for each item (project money, marketing expenses, taxes) ≤100%，are explained in
the table below (Currency：RMB (Thousand
Yuan))
|
After
Entrusted Loan
|
Budget
of Cash Out
|
|
First
Month (Tentatively January, 2011）
|
322,365,600
|
|
Second
Month
|
6,378,894
|
|
Third
Month
|
7,277,518
|
|
Fourth
Month
|
7,332,500
|
|
Fifth
Month
|
25,138,093
|
|
Sixth
Month
|
12,498,627
|
|
Seventh
Month
|
32,854,966
|
|
Eighth
Month
|
23,460,174
|
|
Ninth
Month
|
62,921,542
|
|
Tenth
Month
|
55,355,340
|
|
Eleventh
Month
|
49,611,783
|
|
Twelfth
Month
|
59,529,937
|
|
Thirteenth
Month
|
46,268,126
|
|
Fourteenth
Month
|
45,145,910
|
|
Fifteenth
Month
|
80,051,088
|
|
Sixteenth
Month
|
44,038,253
|
|
Seventeenth
Month
|
46,583,339
|
|
Eighteenth
Month
|
51,946,242
|
|
After
Presale
|
Sales
Cash Flow Target
|
|
Firth
Month（Tentatively
July, 2011）
|
RMB60,000,000
|
|
Second
Month
|
RMB40,000,000
|
|
Third
Month
|
RMB12,000,000
|
|
Fourth
Month
|
RMB11,000,000
|
|
Fifth
Month
|
RMB11,000,000
|
|
Sixth
Month
|
RMB80,000,000
|
|
Seventh
Month
|
RMB80,000,000
|
|
Eighth
Month
|
RMB80,000,000
|
|
Ninth
Month
|
RMB80,000,000
|
|
Tenth
Month
|
RMB95,000,000
|
|
Eleventh
Month
|
RMB90,000,000
|
|
Twelfth
Month
|
RMB120,000,000
|
The
figures above can be adjusted upon ratified by both parties.
|
c)
|
According
to the actual situation of development of Project Baqiao A and B, the
Entrusted Lenders agree that the cash flow data of the Borrower may be
deviated from those as determined by the table above under this article.
However, the cash sales revenue, cash out for each item, all the
increasing amount of the payable accounts and cash out of the current
month of the Borrower shall not exceed the floating proportion of the
current month.
|
|
d)
|
According
to the cash flow index determined by item (2) of this article, if the
Borrower fails to achieve the stipulated index for two months
consecutively, or the net cash flow index of the Borrower for two
accumulated moths is lower materially than the stipulated index, the
Entrusted Lenders may request the Borrower to provide other information of
sources to repay the Entrusted Loan and have the right to stop
payments out of all the bank accounts of Project Baqiao A and
B.
|
|
e)
|
If
the Borrower did not use or did not fully use the above expenditure
amount, the un-used part may be used by the following
month.
|
If the
monthly cash in exceeds the above amount, the exceeding part, deducting the
amount to repay the principal and interests and related expenses of the
Entrusted Lenders, may be used to pay the construction investment of the project
that falls outside of the plan. Except for the expenditures paid by
the Borrower according to item (2) of this article, the Borrower shall not incur
other payables.
|
6.
|
The
Borrower shall maintain the mortgage rate lower than 50% at any time. The
Entrusted Lenders will carry out formal inspection during the end the
fourth and the eighth month. Mortgage rate refers to the rate between the
un-repaid principal and the value of the collateral that has not been sold
or rented; the value of the collateral shall be determined according to
the evaluation made by the independent appraisal institution as approved
by the Entrusted Lenders. If the aforesaid provision is violated, the
Borrower shall provide other collaterals that are under no mortgages and
accepted by the Entrusted Lenders in order to maintain the mortgage rate
lower than 50%. If the mortgage rate is higher than 50%, the Entrusted
Lenders and the Lending Bank have full discretion to discharge the
mortgage registration on the collateral that exceeds the mortgage
rate.
|
|
7.
|
The
Borrower promises that, unless agreed by the Entrusted Lenders, the
assets-liabilities ratio of the Borrower shall not exceed
70%.
|
Article
15： Other
Promises
The
Borrower hereby promises to the Entrusted Lenders: Unless obtaining prior
written consent of the Entrusted Lenders, before the Borrower repays back all
the Entrusted Loan and related expenditures, the Borrower will not engage in the
following:
|
1.
|
Contract
Validity
|
Without
written consent of the Entrusted Lenders, the Borrower will not engage in or
agree to engage in any actions or nonfeasance that will render the Agreement,
the Entrusted Loan Agreement and other Related Loan Documents invalid, revocable
or unenforceable. The Borrower will take any steps necessary to keep the
Agreement, the Entrusted Loan Agreement and other Related Loan Documents valid
and binding.
|
2.
|
Other
Mortgages
|
Unless
otherwise provided by the Agreement and agreed by the Entrusted Lenders in
writing, the Borrower will not create other mortgages, pledges, assignments or
liens to third parties on the assets of Suo Di, Junjinyuan Phase II Commercial
Estate and Project Baqiao A and B (including, and without limitation, the land
use right and the buildings thereon under the Land Use Right Certificate owned
by Suo Di, the Land Use Right Certificate of Junjinyuan Phase II Commercial
Estate and the Land Use Right Certificate of Project Baqiao A and
B).
|
3.
|
Other
Borrowings
|
Unless
otherwise provided by the Agreement and agreed by the Entrusted Lenders in
writing, the Borrower will not make any lending against Project Baqiao A and B.
However, the Borrower may borrow provided that nothing contradicts with the
provisions of the Agreement, the Entrusted Loan Agreement and other Related Loan
Documents.
|
4.
|
Assets
Disposal
|
Without
written consent of the Entrusted Lenders, the Borrower will not contract with or
promise to any third parties to dispose, realize, sell, transfer, or waive part
or all the assets (including the assets that the Borrower has or will have,
regardless of via one single deal, or multiple affiliated or non affiliated
deals, with or without consideration, at market price or not, at certain point
of time or during a period of time) against Project Baqiao A and B;
|
5.
|
External
Guarantee
|
Without
written consent of the Entrusted Lenders, the Borrower will not provide any
borrowing, advance expenditure, guarantee, promise or enter into any related
contracts regarding Project Baqiao A and B with any third parties, or debts or
legal liabilities of any third parties;
|
6.
|
Company Organization
and Company Controlling
|
Without
written consent of the Entrusted Lenders, the Borrower will not merge into or
with any other companies, institutions, organizations or partnership; or take
any steps for dissolution, bankruptcy, liquidation or suspension of business of
the Borrower. Without written consent of the Entrusted Lenders, the Borrower
will not consent to or approve any changes to the share structure, controlling
power or assets of the Borrower;
|
7.
|
Changes to Registered
Capital and Decision-Making
Organ
|
Without
written consent of the Entrusted Lenders, the Borrower will not reduce the
registered capital in any way, directly or indirectly; or engage in any actions
that will impact the controlling power of the Board of Directors or the
Decision-Making Authority, except for the registered capital increasing that has
been disclosed to the Entrusted Lenders before execution of the Agreement and
that will be implemented;
|
8.
|
Changes to
Business
|
Without
written consent of the Entrusted Lenders, the Borrower will not make material
changes or give up the businesses for development and management of real estate
projects, or make any changes to the organizational structure or personnel that
will impact the scale of the business of the Borrower;
|
9.
|
Allocation of
Dividends
|
Without
written consent of the Entrusted Lenders, the Borrower will not use the profits
of Project Baqiao A and B to allocate dividends or assets to its shareholders or
partners, or engage in any other actions of dividends allocation or shares
realization;
|
10.
|
Purchase of Affiliated
Companies
|
Unless it
is necessary for the Borrower to establish project company for development of
new real estate projects, without written consent of the Entrusted Lenders, the
Borrower will not directly or indirectly establish any other subsidiary
companies, directly or indirectly purchase affiliated companies, or directly or
indirectly invest in other companies or projects;
|
11.
|
Opening Bank
Accounts
|
Without
written consent of the Entrusted Lenders, the Borrower will not independently or
jointly with other institutions open bank accounts in relation to Project Baqiao
A and B;
The bank
account that has been opened by the Borrower for Project Baqiao A and B are the
following:
Bank
Account Name: (to be determined)
|
12.
|
Provisions for
Violation of the Supervision
Agreement
|
Without
written consent of the Entrusted Lenders, the Borrower will fully perform its
obligations pursuant to the Supervision Agreement. No violations of the
Supervision Agreement will occur;
|
13.
|
Without
written consent of the Entrusted Lenders, the Borrower will not engage in
any actions that the Entrusted Lenders reasonably believe that will have
material impact on the Borrower’s ability to repay the Entrusted
Loan.
|
Article
16：Breach of
the Agreement
|
1.
|
After
the Agreement becomes effective, both parties to the Agreement shall fully
perform the obligations under the Agreement, the Entrusted Loan Agreement
and other Related Loan Documents. Any party failing to perform the
contractual obligations shall be responsible for the breach and compensate
the loss suffering by the non-breaching
party.
|
|
2.
|
The
Borrower will be breach the Agreement if any of the following
occurs:
|
|
a)
|
No
Payment when due
|
Pursuant
to the Agreement, the Entrusted Loan Agreement and other Related Loan Documents,
the Borrower has not repaid the payable amount, including, and without
limitation, repayment of the principal, interests and other expenditures of the
Entrusted Loan, and the delay is more than for ten (10) working
days;
|
b)
|
Violation
of Liability, Promise and
Obligation
|
Except
for force majeure or the delay or relief that has been agreed upon by the
Borrower and the Entrusted Lenders due to changes of market environment, the
Borrower fails to complete the project targets under Article 14(5) for two
consecutive months; or the Borrower fails to perform the liabilities,
representations, guarantees, promises and obligations under the Agreement, the
Entrusted Loan Agreement and other Related Loan Documents;
|
c)
|
Violation
of Representations, Statements and
Guarantees
|
Any
representations, statements, guarantees made by the Borrower in the Agreement,
the Entrusted Loan Agreement and other Related Loan Documents are false or
misleading; or the Borrower makes any notice, authorization, approval, consent,
registration or other documents when the Borrower knows that they are false or
misleading; or the Borrower knows that the above representations, statements or
guarantees have been proved to be invalid, or revoked or not binding
anymore;
|
d)
|
Loss
of Ability to Repay
|
The
financial situation is the Borrower is materially deteriorating; or the Borrower
has no ability or admits that it has not ability to repay the Loan; or the
Borrower has stopped or suspended paying all or part of the debts due; or the
Borrower has started the negotiation or taken other steps for the purpose of
re-organizing, or re-arranging or extending the repayment term of all or part of
its debts, or for purpose of joint allocation, arrangement and settlement for
the benefit of its creditors;
|
e)
|
Substantial
Business Change and Assets Disposal
|
The
Borrower stops or may stop any substantial part of its business; the Borrower
substantially changes or may substantially change the nature or scope of it
business; or the Borrower substantially disposes or may substantially dispose
all or part of its business or assets; or the Borrower amends its Articles of
Association without notifying the Entrusted Lenders, including amendments to the
business scope, the registered capital of the Borrower or substantial amendments
to other important contents of the Articles of Association;
|
f)
|
Material
Litigation
|
The
Borrower, or its controlling shareholder, or the actual controller, or the
affiliated companies are involved in material litigation and/or arbitration; or
the substantial assets of the Borrower are detained, attached, freezed, or
enforced or under other procedures to the same effect; or the legal
representative, director, supervisor, or other senior management of the Borrower
are involved in litigation, arbitration or other procedures that entails the
Entrusted Lenders to reasonably believe that the said litigation, arbitration,
or other procedures will or may have an adversely material impact on the ability
of the Borrower to perform the Agreement, the Entrusted Loan Agreement and other
Related Loan Documents;
|
g)
|
Liquidation
or Bankruptcy
|
The
Borrower is in the process of suspension of business, liquidation,
reorganization, dismissing, bankruptcy (except the reorganization in which the
liability would be repaid with the consent of the lender), being taken over or
entrusted, revocation or cancelation of its business license; or any of such
proceedings have commenced, or such administrative orders have been made, or
such valid resolutions have been passed; or the liquidator, bankruptcy
administrator, receiver, trustee or any other similar personnel have been
designated or appointed to the business or asset, in part or in whole, of the
lender or its controlling shareholders or its actual controller or its
affiliates.
|
h)
|
Violation
of the Laws
|
As a
result of the fault or negligence of the Borrower, this Agreement, the Entrusted
Loan Agreement and relevant loan agreement, in part or in whole, lose its legal
validity, or are revoked or become null and void or unenforceable due to any
other causes(including the statutory requirements); or the performance of the
obligation under this Agreement, the Entrusted Loan Agreement and Related Loan
Documents by the Borrower, becomes impossible or illegal; or the exercise any or
all of the rights, powers and remedies of this Agreement, the Entrusted Loan
Agreement and Related Loan Documents becomes impossible or illegal;
|
i)
|
Coercive
Measures
|
The
pledge or collateral provided by the Borrower or its controlling shareholders or
actual controller or its affiliates, have been placed with coercive measures by
state judicial authorities or other competent authorities; or the Borrower or
its controlling shareholders or actual controller or its affiliates have not
provided the completed formalities or authentic materials with respect to such
pledge or collateral in compliance with the requirements of the Entrusted
Lenders; or the Borrower or its controlling shareholders or actual controller or
its affiliates conceal the status of the pledge or collateral that joint
ownership, disputes, detrain, seizure, custodian exists or such pledge or
collateral has been pledged or collaterized, which incurs damages to the
Entrusted Lenders.
|
j)
|
Depreciation
of the guaranteed property
|
Without
the written consent of the Entrusted Lenders, the Borrower or its controlling
shareholder or its actual controller or its affiliates dispose the guaranteed
property such as the pledge, collateral, etc. by the means of granting,
exchanging, sale, issuing orders or any other methods; or in the event of the
guaranteed property such as the pledge, collateral, etc. suffers depreciation,
losses, material damage, with insurance or not, the Entrusted Lenders reasonably
believes that such event has materially impaired the ability of the Borrower
pertaining to the performance of the Entrusted Loan Agreement and Related Loan
Documents.
|
3.
|
Acceleration of
Maturity
|
Any of
the breaching events under Clause 2 of this article occurs, it shall be deemed
as violating the Entrusted Loan Agreement and/or endangering the security of the
loan, and regardless of the continuance of breaching events, the Entrusted
Lenders may, in written notice, inform the Borrower to:
|
a)
|
declare
cancel all the Entrusted Loan; or
|
|
b)
|
declare
the immediate maturity of the Entrusted Loan and the guaranteed liability
without any other legal measures regarding
it.
|
Upon the
issuance of such notice, the Borrower shall repay all the Entrusted Loan and the
guaranteed liability promptly, or repay in accordance with the period and amount
required by the Entrusted Lenders or the Lending Bank.
Provided
that, with respect to the events stipulated in the articles 2(a), (b), (c), (e),
(f), (h), (i), and (j) of this article, the Entrusted Lenders shall issue a
written notice requiring the Borrower to rectify and reform with a grace period
of fifteen (15) business days; if within such grace period, the Borrower has not
provided the rectification and reformation that satisfies the Entrusted Lenders,
the Entrusted Lenders may adopt the stipulations under this
article.
|
4.
|
Overdue
redemption
|
In the
event that the Borrower does not repay the Loan in accordance with the period
and amount required by the Entrusted Lenders or the Lending Bank according to
the Clause 3 of this article, the Entrusted Lenders may elect to require the
Borrower pay the overdue interest subject to the Clause 5 of the Article 6
hereof or require the Borrower to pay the default compensation according to the
Clause 5 of this article.
|
5.
|
Default
Compensation
|
If any of
the breaching events stipulated in Clause 2 of this article occurs, the
Entrusted Lenders will be entitled to require the Borrower to pay the penalty
amounting to 10% of the total sum of the Entrusted Loan. In the event
that such penalty cannot make up the damage suffered by the Entrusted Lenders,
the Borrower shall compensate any and all of the damage (whether the direct
damage or indirect damage) suffered by the Entrusted Lenders, including but not
limited to, the economic damage regarding the related financing, the capital
cost damage, the relevant financial cost, interest and other cost expenses
(including the damages and expenses arising from the reallocating the fund or
maintaining the capital cost by the Borrower), and any expenditure, damage,
expense (including legal fees) and liability of the Entrusted Lenders incurred
by the breach of the Borrower.
Article
17: Assignment
|
1.
|
Borrower
|
Without
the written consent of the Entrusted Lenders, the Borrower may not assign or
transfer any of the rights and obligations under this Agreement, the Entrusted
Loan Agreement and Related Loan Documents.
|
2.
|
Entrusted
Lenders
|
The
Entrusted Lenders may, at any time, in part or in whole, assign its rights,
interests or obligations under this Agreement, the Entrusted Loan Agreement and
Related Loan Documents, to a third party without the consent of the Borrower,
and such assignee shall be deemed as the signing party to this Agreement, the
Entrusted Loan Agreement and Related Loan Documents and shall enjoy and assume
the same rights and obligations. The Entrusted Lenders shall inform the Borrower
in written notice of the event that it has assigned its liability, in part or in
whole, under this Agreement, the Entrusted Loan Agreement and relevant loan
agreement, to a third party. As of the date of notice, the Borrower
may be relieved from the part of or whole liability that assigned by the
Entrusted Lenders, and only fulfill the relevant contractual obligation to the
assignee. The Entrusted Lenders may, at any moment, agree that a
third party participate in or join this Agreement, the Entrusted Loan Agreement
and Related Loan Documents, share its rights or obligations under this
Agreement, the Entrusted Loan Agreement and Related Loan Documents.
|
3.
|
The
Entrusted Lenders may, without violating the laws and this Side Agreement,
disclose relevant information including the financial status, the business
and asset status, the status of this Entrusted Loan and the guaranteed
property, etc., to the individual or company that might become
the assignee or participant or intend to make relevant agreement
arrangement with the Entrusted Lenders, or any governmental departments or
supervisory authorities, regardless of whether such information has been
provided in compliance with the provisions of this Agreement, the
Entrusted Loan Agreement and Related Loan Documents. Provided
that the Entrusted Lenders shall disclose the abovementioned information
in accordance with the principles of confidentiality and
prudence.
|
Article
18: Expenses
Unless
the Entrusted Lenders terminates the agreement without reasonable causes or
negotiates maliciously, despite whether the Entrusted Lenders have furnished the
Entrusted Loan or not, the Borrower agrees to pay the following
fees:
|
1.
|
The
Borrower agrees to pay the Entrusted Lenders the appraisal fee, audit fee,
lawyer fee and other fees and expenditures arising from the execution of
this Agreement, the Entrusted Loan Agreement and Related Loan Documents.
The total amount of such fees shall not exceed RMB four hundred thousand
thousand Yuan (RMB ￥400,000.00),
and the actual paid amount by the Entrusted Lenders shall
prevail.
|
|
2.
|
All
the costs and expenditures that the Entrusted Lenders have paid to
consummate, process, protect, perform and fulfill the right, collateral or
guarantee under this Agreement, the Entrusted Loan Agreement and Related
Loan Documents (including but not limited to the notarial fee, taxation
fee, bank fee, insurance fee, lawyer fee, travelling
expenses).
|
|
3.
|
The
taxation fees including stamp duty, registration fee, etc., that need to
be paid by the Entrusted Lenders for the execution, registration, and
performance of this Agreement, the Entrusted Loan Agreement and other
Related Loan Documents or for the modification of the Entrusted Loan
Agreement and Related Loan
Documents.
|
|
4.
|
Other
than the aforementioned fees, the Borrower shall pay the expenses that
shall be paid by the Borrower in compliance with the Entrusted Loan
Agreement, arising from the execution and performance of this
Agreement.
|
The
aggregation of the above fees shall be no more than RMB two (2) million Yuan
(RMB￥2,000,000.00). The
above fees paid by the Borrower shall be subject to the actual incurred
amount.
Article
19: Deduction and Offset
|
1.
|
The
Borrower authorizes the Entrusted Lenders and the Lending Bank to deduct
or set aside any funds from the bank account of whichever currency, with
the Borrower as the beneficiary, in the head office, branches and offices
of the branches of the Lending Bank, regardless of whether it is the
current account, deposit account, general account, dedicated account,
joint account or independent account, whether it has matured or not, and
whether a notice is needed or not, to offset, in part or in whole, the
unpaid due liability that shall reside with the Borrower according to this
Agreement, the Entrusted Loan Agreement and Related Loan Documents.
The Entrusted Lenders or the Lending Bank shall issue a written notice
regarding the aforementioned deduction to the Borrower after such
deduction.
|
|
2.
|
Except
stipulated otherwise by the state competent authorities. The redemption
order of the deducted fund shall pay the due unpaid expenses of the
Borrower initially, and then satisfy the due unpaid interest, and in the
last place repay the due unpaid
principal.
|
If the
currency of deducted fund is not consistent with the currency needing to be
cleared, the Entrusted Lenders shall be entitled to settle or purchase the
exchange at the market exchange rate at that moment. The exchange rate risk
shall be assumed by the Borrower.
Article
20: Determination and Proof of Material Events
|
1.
|
Determination
of
Material Events
|
The
Entrusted Lenders have the authority to determine whether any certain matter or
event may constitute a material event or substantial event under this Agreement,
the Entrusted Loan Agreement and Related Loan Documents.
|
2.
|
Proof
|
The
Borrower agrees, that the accounting document and certification that records the
due payable principal, interest and other payable items of the Borrower, issued
by the Lending Bank in accordance to the Entrusted Loan Agreement and Related
Loan Documents, as well as its business code shall constitute proof of the
amounts due.
Article
21: Force Majeure
|
1.
|
If
any party, cannot perform, in part or in whole, the obligations under this
Agreement, the Entrusted Loan Agreement and Related Loan Documents as a
result of the force majeure and without any its own fault, such
non-performance shall not be deemed as a breach. Provided that such party
shall adopt every necessary remedial measure as allowed by the condition
of the moment, to mitigate the damage caused by the force
majeure.
|
|
2.
|
The
party in the force majeure, shall inform the other party about the status
of the event in written notice in a timely manner, and shall within ten
(10) business days of the ▇▇▇▇▇, ▇▇▇▇▇▇ a written report stating the
reasons that such party cannot perform or cannot fully perform the
obligations under this Agreement, the Entrusted Loan Agreement and Related
Loan Documents and needs to delay the
performance.
|
|
3.
|
The
force majeure means the events or acts of god that are unforeseeable,
unavoidable and insurmountable by any party, including but not limited to
the following:
|
|
a)
|
Declared
or undeclared war, state of war, blockade, embargo, governmental statutes
or general mobilization, which directly affects the Entrusted Loan
hereunder;
|
|
b)
|
Domestic
riot that directly affects the Entrusted Loan
hereunder;
|
|
c)
|
Fire,
flood, typhoon, hurricane, tsunami, landslide, earthquake, explosion,
plague or epidemic and other events arising from the natural factors that
directly affects the Entrusted Loan
hereunder.
|
Article
22: Notice and Delivery
|
1.
|
Address
|
Unless
stipulated otherwise hereunder, the parties shall issue or submit every notice,
requirement or correspondence in relation to this Agreement, the Entrusted Loan
Agreement and Related Loan Documents in writing, and deliver by hand, or sent by
post with postage prepaid, facsimile or email addressing the following address
or facsimile number or email address (or the alternative address, facsimile
number, email address provided by the receiver three (3) months in
advance).
Sent to
the Borrower:
Institution
Name: Xian Xinxing Real Estate Development Co., Ltd.
Address:
No.6, Youyi Road, Xian
Receiver:
Mr. Cangsang
▇▇▇▇▇
Facsimile
No.: 029-82582640
Email
Address: ▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Sent to
the Entrusted Lenders:
Institution
Name: Lending BankTianjin Qiaobo ▇▇▇ ▇▇▇ Equity Investment Fund Partnership
(Limited Liability Partnership)
Address:
Room 2701, Floor 27, One International Financial Centre, ▇▇.▇, ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇.
Receiver:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile
No: 852 2525 8003
Email
Address: ▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇,
▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇,
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
|
2.
|
Delivery
|
The
parties agrees that it shall be deemed as having been served on the following
date as long as it is delivered to the above address: where it is
correspondence, the date shall be the seventh business day as of the dispatch of
the registered mail addressing to the principal business address ( legal person
or its branches, other economic organizations) or domicile address (individual);
where it is delivered by hand, the date shall be the date on which the receiver
signs the receipt; where it is given by facsimile or email, the date shall be
date of transmission.
If The
Borrower sends material notice or requirement to the Entrusted Lenders by
facsimile or email, the Borrower shall serve the original copy (with official
stamp) by personal delivery or by post to the Entrusted Lenders thereafter to
confirm.
The
Borrower agrees that the summons and notice with respect to any action against
the Borrower brought up by the Entrusted Lenders, shall be deemed as having been
served once such summons and notice have been sent to the principal business
address/or domicile address set out in Clause 1 of this Article or the execution
page hereof. The Borrower agrees that the alteration of abovementioned address
may not bind on the Entrusted Lenders unless it informs the Entrusted Lenders
such alteration in writing in prior.
Article
23: Severability
|
1.
|
Severability
|
In the
event that several of the provisions of this Agreement are found to be invalid,
illegal or revoked by the competent People’s court, such provisions shall be
eliminated from this Agreement immediately. Such elimination of the provisions
shall not affect in any aspect the validity and legality of the other provisions
hereof, and shall not compromise the legal effect of the other provisions
hereof.
|
2.
|
Waiver
|
The
manner of exercising any of its rights under this Agreement, the Entrusted Loan
Agreement and Related Loan Documents by the Entrusted Lenders shall not
constitute or be deemed as a waiver of such rights. Exercising its rights during
a certain period or partially exercising its rights by the Entrusted Lenders
shall not affect or hinder its exercise of other rights afterwards. The
Entrusted Lenders may exercise their rights simultaneously or
respectively.
Article
24: Confidentiality
|
1.
|
The
parties hereto shall maintain the confidentiality of the information
obtained from the execution and performance of this Agreement, in relation
to the following:
|
|
a)
|
articles
hereof;
|
|
b)
|
negotiations
regarding this Agreement;
|
|
c)
|
subject
matter of this Agreement;
|
|
d)
|
trade
secret of each party;
|
|
e)
|
any
and all of the other matters related to this transaction, this Agreement,
the Entrusted Loan Agreement and Related Loan
Documents.
|
|
2.
|
The
parties hereto may disclose the information under Clause 1 of this article
under the following circumstances:
|
|
a)
|
requirements
of the law;
|
|
b)
|
requirements
of the competent governmental authorities or supervisory
organizations;
|
|
c)
|
disclosure
to the lawyers and professional consultants of each
party;
|
|
d)
|
entrance
of such information in the public domain that may not be attributed to the
fault of the parties.
|
|
e)
|
written
consent granted by the parties
hereto.
|
|
3.
|
This
article will survive the termination of this Agreement, and shall not have
any time limit.
|
Article
25: Applicable Laws and Dispute Resolution
|
1.
|
Applicable
Law
|
The
rights and obligations of the parties to this Agreement, the Entrusted Loan
Agreement and Related Loan Documents shall be governed by and construed in
accordance to the PRC laws.
|
2.
|
Dispute
Resolution
|
Any
dispute with respect to this Agreement, the Entrusted Loan Agreement and Related
Loan Documents shall be resolved by negotiation in good faith by the Borrower
and the Entrusted Lenders; if the negotiation fails, any party may submit such
dispute to the court to resolve it by means of litigation. The parties agree
that the competent court shall be identical to the competent court stipulated by
the Entrusted Loan Agreement. During the dispute, except the matters under
dispute, the parties shall continue to perform the provisions that do not
involve in the dispute.
Article
26: Effectiveness, Amendment and Termination
|
1.
|
This
Agreement shall be established upon affixation of the official stamp of
the Entrusted Lenders and the Borrower, as well as signature or seal of
the legal representative or principal or authorized signatory, and become
effective upon the completion of the statutory enforcement notarization,
and terminate upon the full redemption of the guaranteed Entrusted Loan
under this Agreement, the Entrusted Loan Agreement and Related Loan
Documents.
|
|
2.
|
Upon
the effectiveness of this Agreement, either party shall not arbitrarily
amend or terminate this Agreement in advance. If the Agreement needs to be
amended or terminated, such amendment or termination shall be made upon
the mutual consent of the parties hereto and the written agreement entered
by the parties.
|
|
3.
|
The
Entrusted Loan Agreement and relevant loan document shall be an integral
part of this Agreement. In case there are any conflicts between such
documents and this Agreement, this Agreement shall
prevail.
|
|
4.
|
This
Agreement has been executed by and between the following parties on the
31st day of January, 2011.
|
[Remainder
of page intentionally left blank]
This
Agreement is executed by and between the Entrusted Lenders and the Borrower on
the 31st of January, 2011. The Borrower hereby confirms that, on the execution
of this Agreement, the parties have explained and discussed any and all of the
provisions hereunder detailedly, and holds no doubts or concerns regarding any
and all of the provisions hereunder, and have an accurate and precise
understanding of the legal meanings of the liability restrictions or exemption
articles regarding the rights and obligations of the parties.
|
Entrusted
Lenders
Tianjin Qiaobo Xindao
Equity Investment Fund Partnership (Limited
Partnership)
Tianjin Qiaobo Xinde
Equity Investment Fund Partnership (Limited Partnership)
Tianjin Qiaobo Xinren
Equity Investment Fund Partnership (Limited Partnership)
Tianjin Qiaobo Xinyi Equity
Investment Fund Partnership (Limited Partnership)
（Official
Stamp）
|
Borrower
Xi’an
Xinxing Real Estate Development Co., Ltd.
（Official
Stamp）
|
|
|
Legal
Representative or
Authorized
Signatory
(signature
or seal)
By:
/s/ Ruifeng
Dai
Name:
Ruifeng Dai
Title:
Authorized Signatory
|
Legal
Representative or
Authorized
Signatory
（signature or
seal）：
By:
/s/ ▇▇▇▇▇▇
▇▇
Name:
▇▇▇▇▇▇ ▇▇
Title:
Authorized Signatory
|
|
Appendix:
Collateral Real Estate Ownership Certificate Number List
|
1
|
1150110020-7-1-40102
|
|
2
|
1150110020-7-1-40103
|
|
3
|
1150110020-7-1-40104
|
|
4
|
1150110020-7-8-20101
|
|
5
|
1150110020-7-8-20102
|
|
6
|
1150110020-7-8-20103
|
|
7
|
1150110020-7-8-20104
|
|
8
|
1150110020-7-8-20201
|
|
9
|
1150110020-7-14-20101
|
|
10
|
1150110020-7-14-20102
|
|
11
|
1150110020-7-14-20103
|
|
12
|
1150110020-7-14-20104
|
|
13
|
1150110020-7-20-20101
|
|
14
|
1150110020-7-20-20102
|
|
15
|
1150110020-7-20-20103
|
|
16
|
1150110020-7-20-20104
|
|
17
|
1150110020-7-20-20105
|
|
18
|
1150110020-7-20-20202
|
|
19
|
1150110020-7-26-10101
|
|
20
|
1150110020-7-26-10103
|
|
21
|
1150110020-7-26-10104
|
|
22
|
1150110020-7-26-10105
|
|
23
|
1150110020-7-26-10106
|
|
24
|
1150110020-7-26-10107
|
|
25
|
1150110020-7-26-10108
|
|
26
|
1150110020-7-26-10109
|
|
27
|
1150110020-7-27-10101
|
|
28
|
1150110020-7-27-10104
|
|
29
|
1150110020-7-27-10105
|
|
30
|
1150110020-7-27-10106
|
|
31
|
1150110020-7-27-10107
|
|
32
|
1150110020-7-27-10205
|
|
33
|
1150110020-7-28-10101
|
|
34
|
1150110020-7-28-10102
|
|
35
|
1150110020-7-28-10103
|
|
36
|
1150110020-7-28-10104
|
|
37
|
1150110020-7-28-10105
|
|
38
|
1150110020-7-28-10106
|
|
39
|
1150110020-7-28-10107
|
|
40
|
1150110020-7-28-10108
|