EXHIBIT 10.3
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ASSET CONSULTING AGREEMENT
Huizhou One Limited
as Owner
and
Chinawe Asset Management (PRC) Limited
as Consultant
April 20, 2005
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TABLE OF CONTENTS
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ARTICLE I Definitions 3
SECTION 1.01 DEFINED TERMS. 3
ARTICLE II CONSULTING, ADMINISTRATION AND MANAGEMENT OF ASSETS 3
SECTION 2.01 NATURE OF ASSETS; CONSULTANT TO ACT AS CONSULTANT. 3
SECTION 2.02 CONSULTANT'S GENERAL OBLIGATIONS. 4
SECTION 2.03 ACTIONS PURSUANT TO OWNER'S DIRECTIONS. 6
SECTION 2.04 OWNER'S BANK ACCOUNTS. 6
SECTION 2.05 MAINTENANCE OF INSURANCE POLICIES. 6
SECTION 2.07 CONSULTING FEE; PAYMENT OF EXPENSES. 7
SECTION 2.08 SALE OF ASSETS. 8
SECTION 2.09 MODIFICATIONS, WAIVERS, AMENDMENTS AND CONSENTS. 8
SECTION 2.10 CONSULTANT NOT REQUIRED TO MAKE ADVANCES. 9
SECTION 2.11 RELIANCE ON QUALIFIED ADVISORS. 9
SECTION 2.12 MATTERS REQUIRING APPROVAL OF OWNER. 9
SECTION 2.13 ACTIONS OF AGENT. 10
SECTION 2.14 OWNER'S RIGHT TO APPOINT SUB-CONSULTANTS. 10
ARTICLE III STATEMENTS AND REPORTS 10
SECTION 3.01 REPORTING BY CONSULTANT. 10
SECTION 3.02 ANNUAL CERTIFICATE.
SECTION 3.03 ANNUAL ACCOUNTANTS' REPORTS. 11
SECTION 3.04 INSPECTION AND AUDIT RIGHTS. 11
ARTICLE IV CONSULTANT 11
SECTION 4.01 REPRESENTATIONS AND WARRANTIES CONCERNING CONSULTANT. 11
SECTION 4.02 MERGER OR CONSOLIDATION OF CONSULTANT. 13
SECTION 4.03 REMOVAL OF CONSULTANT. 13
SECTION 4.04 CONSULTANT NOT TO RESIGN. 13
SECTION 4.05 LIABILITY OF CONSULTANT. 13
SECTION 4.06 CONSULTANT QUALIFICATION. 14
SECTION 4.07 CONSULTANT INSURANCE. 14
SECTION 4.08 FOREIGN CORRUPT PRACTICES ACT; INTEGRITY POLICY 14
SECTION 4.09 CONFLICTS. 14
SECTION 4.10 PERSONNEL. 14
ARTICLE V OWNER 15
SECTION 5.01 REPRESENTATIONS AND WARRANTIES CONCERNING OWNER. 15
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TABLE OF CONTENTS
(continued)
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SECTION 5.02 DELIVERY OF RECORDS. 16
SECTION 5.03 COOPERATION. 16
SECTION 5.04 DESIGNATE REPRESENTATIVES. 16
ARTICLE VI DEFAULT AND TERMINATION 17
SECTION 6.01 EVENTS OF DEFAULT AND TERMINATION. 17
SECTION 6.02 TERMINATION FOR CONVENIENCE. 19
SECTION 6.03 EFFECT OF TERMINATION. 19
ARTICLE VII MISCELLANEOUS PROVISIONS 19
SECTION 7.01 TERMINATION OF AGREEMENT. 19
SECTION 7.03 APPLICABLE LAW. 19
SECTION 7.04 DISPUTE RESOLUTION. 20
SECTION 7.05 NOTICES. 20
SECTION 7.06 SEVERABILITY OF PROVISIONS. 21
SECTION 7.07 PRIOR UNDERSTANDINGS. 21
SECTION 7.08 ARTICLE AND SECTION HEADINGS. 21
SECTION 7.09 CONTROLLING VERSION. 21
SECTION 7.10 DRAFTING PRESUMPTION. 21
SECTION 7.11 CONFIDENTIALITY. 22
SECTION 7.12 SUCCESSORS AND ASSIGNS. 23
SECTION 7.13 INJUNCTIVE RELIEF. 23
EXHIBITS AND SCHEDULES
Exhibit A Definitions
Exhibit B Integrity Policy
Exhibit C Approved Matrix for Expenditure in Excess of RMB 20,000
Exhibit D Template for Monthly and Quarterly Report
Exhibit E Citigroup Policies
Schedule 1 Loan List
ASSET CONSULTING AGREEMENT
This ASSET CONSULTING AGREEMENT is made and entered into as of April 20,
2005 by and between Huizhou One Limited, a company validly incorporated and
existing under the laws of Mauritius, and Chinawe Asset Management (PRC)
Limited.
RECITALS
A. Owner has acquired the Assets from China Great Wall Asset Management
Corporation, Guangzhou branch ("Great Wall").
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B. Owner desires to engage Consultant upon Owner's entrustment to provide
consulting and advisory services with respect to the resolution of the Assets.
C. Consultant hereby agrees to provide consulting and advisory services
with respect to the resolution of the Assets pursuant to the terms of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises,
covenants and agreements contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are expressly
acknowledged, the parties agree as follows:
ARTICLE I
Definitions
Section 1.01 Defined Terms. Capitalized terms used herein without
definition have the meanings assigned to them on Exhibit A attached to this
Agreement. The use of any term defined on Exhibit A in their uncapitalized form
indicates that the words have their normal and general meaning.
ARTICLE II
Consulting, Administration and Management of Assets
Section 2.01 Nature of Assets; Consultant to Act as Consultant.
(a) (i) Owner hereby appoints Consultant to provide the Consulting
Services pursuant to PRC Law and the business scope of the Consultant as
approved by PRC government, and Consultant hereby accepts such appointment and
hereby agrees to provide the Consulting Services pursuant to the terms of this
Agreement.
(ii)Consultant will provide the Consulting Services in accordance
with (a) applicable PRC Law, (b) the terms of this Agreement, (c) the directions
given pursuant to this Agreement from time to time by Owner, and (d) its
responsible and reasonable judgment, within its agency authority and in the
interest of Owner, as to other appropriate actions, subject to the approval of
Owner. Consultant will perform all of its obligations under this Agreement with
a view towards maximizing the returns to Owner, subject to the directions of
Owner.
(iii) Consultant will (a) provide the Consulting Services in
conformity with the requirements of this Agreement and customary prudent
industry standards employed by providers of advisory and consulting services in
respect of similar assets that act in a prudent manner in providing advisory and
consulting services in respect of loans similar to the Assets and in accordance
with the Integrity Policy and Citigroup Policies, (b) provide advisory,
consulting and coordination services for the management and operation of the
Properties in conformity with the requirements of this Agreement and using
customary prudent industry standards employed by consultants of similar
properties that act in a prudent manner in providing advisory and consulting
services for the management and operation of properties that are similar to the
Properties in the relevant markets, and (c) in any event, exercise the same
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standard of care and exercise the same judgment as if the action or failure to
act were entirely for its own account and Consultant were a prudent and
experienced consultant.
(b) Consultant will be responsible for performing its obligations
corresponding to its authorizations as set forth in this Agreement and will, in
accordance with the written directions of Owner, advise Owner in relation to the
maintenance of the security interest on the Properties and related collateral of
the respective Loans.
(c) Notwithstanding any provision set forth above, Consultant will
have no authority to undertake any of the actions described in this Agreement
unless the action has been approved in writing by Owner.
Section 2.02 Consultant's General Obligations. Consultant's general
obligations pursuant to this Agreement will be performing the following services
(the "Consulting Services") as and in the manner requested from time to time by
Owner from and after the date of this Agreement:
(a) Advising and recommending to Owner on the method and manner of
asset servicing which Consultant deems most appropriate in connection with the
administration, management, restructuring, enforcement, settlement, resolution
or disposition of the Assets;
(b) Advising Owner in relation to the management and holding of
collections in respect of the Assets;
(c) Gathering, reviewing, assessing and analyzing the Loan Files and
all relevant information in relation to the Assets;
(d) Upon written request from Owner or as Consultant otherwise deems
necessary, supervising and monitoring asset managers in contacting and
interviewing promptly all Obligors to determine the financial condition of each
Obligor, the economic viability of the related Asset and the Obligor's
intentions with respect to making payments in respect of the Asset;
(e) Upon written request from Owner or as Consultant otherwise deems
necessary, performing site inspections on the Properties to determine the
condition and value of the Properties;
(f) Preparing and developing Business Plans in respect of each Asset
for Owner's approval, and reviewing and revising each Business Plan on a
quarterly basis together with Owner and Umbrella Asset Services Hong Kong
Limited;
(g) Supervising and monitoring asset managers in their implementation
of the Business Plans, including proposing alternative resolution strategies to
asset managers with the approval of Owner in appropriate circumstances;
(h) Advising Owner and recommending specific actions to Owner in
relation to Proceedings Management and the marketing and closing of sales of the
Assets at the directions of Owner, in each case in accordance with the Business
Plans;
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(i) Preparing and delivering to Owner on each applicable Reporting
Date a monthly report detailing the performance of each Asset during the
immediately preceding month, each such report to be in the form attached here to
as Exhibit D;
(j) Notifying Owner on a timely basis to execute all acts and
documents and to perform all activities or transactions Owner deems necessary to
preserve all rights arising in favor of Owner under the Loan Documents and any
other relevant security or guarantee, cooperating with Owner with respect to
effecting the transfer of title to the Assets or as required to protect the
interest of Owner;
(k) Reminding Owner to perform all acts, make all filings, give all
notices, make and maintain all registrations and other modifications required by
applicable PRC Law;
(l) Notifying Owner as soon as reasonably practicable, and in any
event within five (5) Business Days of receipt by Consultant, of all material
communications with or received from Obligors;
(m) Maintaining a complete set of books and records of Owner
pertaining to the Assets to be monitored by Consultant as necessary, and
ensuring that such books and records are kept in safe custody in the manner
expected of a prudent consultant and not, without the prior written consent of
Owner, parting with custody or control of them, except, and with prompt notice
to Owner, pursuant to any applicable PRC Law, court order or any directions of a
statutory or governmental agency or other governing body with whose directions
it ordinarily complies or as may be necessary in a proceeding to enforce
Consultant's rights hereunder;
(n) Providing to Owner all information requested by Owner in order to
maintain a complete set of books and records;
(o) Preparation of regulatory reports required to be filed by Owner,
upon request by Owner, relating to the ownership and administration of the
Assets;
(p) Maintaining an effective system of audits and controls adequate to
ensure that Consultant's agents, representatives, employees (including any
seconded employees), and other staff perform their respective obligations, meet
the requirements of Consultant set forth in this Agreement or pursuant to PRC
Law and comply with applicable laws and the Integrity Policy and the Citigroup
Policies;
(q) Advising Owner in the selection, engagement and management of
property managers and leasing agents for the Properties with the written consent
of Owner; and
(r) Recommending the engagement and management of Qualified Advisors
retained upon written approval by Owner in connection with the consulting,
administration, management, restructuring, enforcement, settlement, resolution
or disposition of Assets.
Section 2.03 Actions Pursuant to Owner's Directions.
Consultant will provide the Consulting Services in relation to the
Assets in accordance with the Integrity Policy, Citigroup Policies and the
directions of Owner.
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Section 2.04 Owner's Bank Accounts.
(a) Consultant shall, for all Liquidation Proceeds with respect to
Assets as entrusted to it, direct the Obligor and other Asset buyers to make
payments into such accounts ("Owner's Bank Accounts") of Owner as Owner may
notify Consultant in writing.
(b) Consultant may, for the purpose of its own business operation,
open bank accounts in accordance with the relevant regulations of bank account
administration in PRC, and shall be able to determine the payment into and
expenditure from such bank accounts.
(c) Consultant will monitor the deposits made to the Owner's Bank
Accounts and shall provide Owner with the detailed monthly bank statement with
respect to all handlings by it in relation to payments into the Owner's Bank
Accounts.
Section 2.05 Maintenance of Insurance Policies. At the directions of Owner:
(a) Consultant will advise Owner in relation to the maintenance in the
name of Owner such fire and hazard insurance as is usual and customary in the
PRC. Consultant will also advise Owner in relation to the maintenance in the
name of Owner with a Qualified Insurer such insurances for each Property
provided such insurance is available in the PRC.
(b) Consultant agrees to advise Owner in preparing and presenting
claims in the maximum amount that may be properly claimed under each related
insurance policy in a timely fashion in accordance with the terms of such policy
and in taking such steps as are necessary to receive payment or to permit
recovery thereunder. All policies required pursuant to this Section 2.05 will
name Owner as loss payee.
(c) Notwithstanding any of the foregoing provisions of this Section
2.05 to the contrary, the type, amount and terms of the insurance required by
this Section 2.05 will be at least comparable to the type, amount and terms of
insurance typically obtained by prudent Persons in PRC for property similar in
type, quality and size to the Assets. In the event there is no comparable
insurance typically obtained by prudent Persons for particular Loans or
Properties, Consultant will advise Owner accordingly and recommend to Owner
insurance of the type, amount and terms Consultant considers appropriate.
Section 2.06 Title and Management of Property. In the event that the Land
Use Rights to any Property or any other asset is transferred to Owner in payment
or settlement in whole or part of any Loan, the Land Use Rights certificate, any
assignment of Land Use Right or any other document effecting or evidencing
ownership will be taken in the name of Owner, or otherwise as Owner directs.
Section 2.07 Consulting Fee; Payment of Expenses. Owner and Consultant
agree that:
(a) Owner shall pay to Consultant a base consulting fee (the "Base
Consulting Fee") on the date of this Agreement. The Base Consulting Fee shall be
an amount equal to the US dollar equivalent of RMB [redacted pursuant to
confidentiality request].
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(b) In respect of the Assets of a particular Borrower advised upon by
Consultant, Owner shall pay to Consultant a consulting fee (the "Consulting
Fee"), payable monthly in arrear on the last Business Day of the relevant month.
The Consulting Fee shall be calculated as follows:
(i) in respect of any period occurring between the date of this
Agreement and the date falling 18 months after the date of this Agreement, an
amount equal to the US dollar equivalent of RMB[redacted pursuant to
confidentiality request];
(ii) in respect of any period occurring after 18 months from the
date of this Agreement, an amount mutually agreed between Owner and Consultant
prior to the date falling 16 months from the date of this Agreement (or such
later date as is agreed between the parties).
(c) Owner shall pay to Consultant a collection fee (the "Collection
Fee"), which fee shall equal [redacted pursuant to confidentiality request] of
all actual collections and recoveries relating to the Assets (net of all costs
and expenses incurred in the resolution of the Assets) during the relevant
month. The Collection Fee shall be payable in arrear on the 15th Business Day of
the calendar month immediately succeeding the month to which the Collection Fee
relates.
(d) If Owner has received from the resolution of the Assets a
cumulative amount equal to the aggregate of the Purchase Price of the Assets and
the costs and expenses incurred by Owner in the acquisition of the Assets plus
an internal rate of return of [redacted pursuant to confidentiality request],
Owner shall pay to Consultant an incentive fee (the "Incentive Fee") in respect
of the Assets of each Borrower advised upon by Consultant. The Incentive Fee
shall be calculated as follows:
(i) [redacted pursuant to confidentiality request] of the
aggregate amount of such excess profits necessary for Owner to earn not less
than a [redacted pursuant to confidentiality request] internal rate of return
and not more than a [redacted pursuant to confidentiality request] internal rate
of return; PLUS
(ii) [redacted pursuant to confidentiality request] of the
aggregate amount of such excess profits necessary for Owner to earn more than a
[redacted pursuant to confidentiality request] internal rate of return and not
more than a [redacted pursuant to confidentiality request] internal rate of
return; PLUS
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(iii) [redacted pursuant to confidentiality request] of the
aggregate amount of such excess profits necessary for Owner to earn more than a
[redacted pursuant to confidentiality request] internal rate of return and not
more than a [redacted pursuant to confidentiality request] internal rate of
return; PLUS
(iv) [redacted pursuant to confidentiality request] of the
aggregate amount of such excess profits (if any) necessary for Owner to earn
more than a [redacted pursuant to confidentiality request] internal rate of
return.
(e) For the avoidance of doubt, Owner and Consultant hereby agree and
acknowledge that each of the Consulting Fee, the Collection Fee and the
Incentive Fee is payable by Owner to Consultant only in respect of Assets that
are actually advised on by Consultant and is not payable in respect of Assets
which are advised on behalf of Owner by a sub-consultant appointed by Owner in
its sole discretion as contemplated in Section 2.14 or which are not advised on
by Consultant for any other reason. Owner and Consultant hereby further agree
and acknowledge that nothing in this Section 2.07 shall limit or restrict the
right of Owner to give directions to Consultant pursuant to this Agreement in
connection with the consulting of the Assets (including without limitation to
accept or reject, in the sole discretion of Owner, a resolution proposal in
respect of any Asset).
(f) Without prejudice to the foregoing, Consultant shall be entitled
to process payment or receive reimbursement from Owner for Property Protection
Expenses and other items expressly set forth herein or in any memorandum of
understanding between Owner, on the one side, and Consultant, on the other side.
Section 2.08 Sale of Assets.
(a) To the extent approved by Owner in writing, Consultant, acting in
the name of, and on behalf of Owner, may introduce Owner to potential
purchasers, brokers or agents who will purchase or facilitate the sale and
purchase of any Loan or Property.
(b) Any sale of a Loan or Property will be without recourse, except
that any contract of sale and assignment and conveyance documents may contain
customary warranties of title and condition and such other representations and
warranties as are acceptable to Owner and as are usual and customary in PRC, so
long as (i) the only recourse for breach thereof is to Owner and not the
shareholders of Owner and (ii) any such representations and warranties must
terminate and no longer be in effect upon the scheduled date of dissolution of
Owner.
(c) Liquidation Proceeds will be deposited in the Owner's Bank
Accounts.
Section 2.09 Modifications, Waivers, Amendments and Consents.
(a) Only Owner may agree to any modification, waiver or amendment of
any term of a Loan. All modifications, waivers or amendments of a Loan must be
in writing and executed by Owner.
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(b) Owner may permit the Obligor to provide new collateral, substitute
collateral for all or a portion of the related Asset (or other collateral
pledged as security therefor), pledge additional collateral for the Asset or
release part or all of the Asset (or other collateral pledged as security
therefor). If the security interest in such collateral would be perfected by
possession or if the collateral is perishable or otherwise requires special care
or protection, then, prior to agreeing to such provision, substitution or
addition of collateral, Consultant will make arrangements with servicer if
appropriate, for such possession, care or protection; provided, however, that
Owner will not be required to be responsible for any provision, substitution or
addition of collateral or to undertake any additional duties or obligations or
incur any additional expense.
Section 2.10 Consultant Not Required to Make Advances. Except as otherwise
might be provided in this Agreement, Consultant will not be required to make any
advances with respect to the payment of any expenses related to the Assets.
Section 2.11 Reliance on Qualified Advisors. Consultant may rely upon the
advice of a Qualified Advisor approved by Owner in connection with issues such
as its exercise of any of Consultant's duties or obligations hereunder, how to
obtain the approval of any governmental authority, etc. In connection therewith,
Consultant may rely upon any certificate, statement, instrument, opinion,
report, notice, request, consent, order, appraisal, valuation, bond or other
document executed by an unaffiliated third party reasonably believed by
Consultant to be genuine and to have been signed or presented by the proper
governmental authority. To the extent Consultant relies in accordance with this
Section, it will be deemed not to be in breach of its obligations under this
Agreement to the extent of such reliance; provided, however, that Consultant
will not be relieved of any liability arising therefrom as a result of its own
willful misconduct or negligence with respect thereto.
Section 2.12 Matters Requiring Approval of Owner.
(a) Consultant will not take any of the following actions directly or
indirectly with respect to the Assets or any Property:
(i) enter into any related commitments or agreements obligating
Consultant, Owner, Servicer or any Affiliate of Owner or Consultant to expend
funds or otherwise incur any liabilities or other obligations in respect of or
in connection with the related Assets;
(ii)enter into any other commitments or agreements, or otherwise
incur any expenditures, other than those expressly approved by Owner, unless the
commitment, agreement, or expenditure is a Property Protection Expense; or
(iii) enter into any contracts, other than those necessary or
appropriate in connection with the consulting, administration, management,
restructuring, enforcement, settlement, resolution or disposition of Assets or
Property in accordance with the directions of Owner.
(b) For all purposes of this Agreement, whenever reference is made to
approval or consent of Owner, such approval or consent shall mean that given by
the Owner in accordance with Owner's Articles of Association.
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(c) Owner acknowledges and agrees that actions with respect to
distressed assets may require prompt action to avoid adverse consequences. With
respect to any matter which requires approval or consent of Owner under this
Agreement and identified by Consultant in good faith as requiring prompt
response, Owner will promptly review and make decisions with respect to any such
matter. If Consultant has used good faith efforts to provide Owner with a
reasonable amount of time to make such decision, Consultant shall incur no
liability for any adverse consequences attributable to a failure by Owner to
promptly review and make any such decision so identified by Consultant as
requiring prompt response.
Section 2.13 Actions of Agent. Consultant will not act on behalf of Owner
or represent or hold itself out to other Persons as having the authority to act
on behalf of Owner.
Section 2.14 Owner's Right to Appoint Sub-consultants. Owner shall have the
right, in its sole discretion, to appoint one or more sub-consultants to
perform, in accordance with the written instructions of Owner, any or all of the
duties to be performed by Consultant under this Agreement, provided that any
fees, costs and expenses of any such sub-consultant shall be at the expense of
Owner and that each such sub-consultant agrees to act in accordance with the
terms of this Agreement.
ARTICLE III
Statements and Reports
Section 3.01 Reporting by Consultant.
(a) Consultant will render to Owner and such other person designated
by Owner on each applicable Reporting Date a monthly report and a quarterly
report, in each case, reflecting activity during the preceding calendar month or
year, as applicable (or since the date of this Agreement in the case of the
first such report); such report shall be in the form attached hereto as Exhibit
D.
(b) Consultant will render to Owner and such other person designated
by Owner a daily cash collection report.
(c) Notwithstanding and in addition to the foregoing, Consultant will
advise Owner in writing as to (i) material developments with respect to the
Assets, including any material change in the market value of any Asset, and (ii)
changes in PRC or regional markets or economy that may materially affect the
Assets.
(d) Consultant will also render to Owner, upon request therefor, such
other information with respect to the Assets and its management and resolution
practices as may be reasonably requested by Owner.
(e) Consultant will maintain records, of each Final Recovery
Determination until the earlier of (i) its termination as Consultant pursuant to
this Agreement and the transfer of such records to a successor Consultant and
(ii) five (5) years following the date of such Final Recovery Determination.
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Section 3.02 Annual Certificate. On or before ninety (90) days after the
end of each Fiscal Year, commencing with Fiscal Year 2005, Consultant will
deliver to Owner a Consultant's Certificate to the effect that a review of the
activities of Consultant through the end of the last Consulting Period covered
by a certificate pursuant to this Section 3.02 has been made under the
supervision of the officer providing Consultant's Certificate and that, to the
best of such officer's knowledge, based on that review, no Event of Default has
occurred and is continuing with respect to Consultant.
Section 3.03 Annual Accountants' Reports. After the end of the first Fiscal
Year of Consultant, Consultant shall designate, in accordance with applicable
PRC Law, an accountant approved by Owner to conduct an audit on the consulting
practices of Consultant and the financial records and material documents of
Owner, including all material records relating to the Assets, such audit to
cover, without limitation, those areas covered by a SAS 70 audit.
Section 3.04 Inspection and Audit Rights.
Consultant will permit during Consultant's normal business hours and
as often as reasonably requested any representative of Owner or other person
designated by Owner to examine all the books of account, records, reports,
agreements and other papers of Consultant relating to the Assets or the
consulting thereof, to make copies and extracts therefrom, to cause such books
to be audited by Independent accountants selected by Owner or other person
designated by Owner and to discuss its affairs, finances and accounts relating
to the Loans or the Property with its officers, employees and Independent
accountants (and by this provision Consultant hereby authorizes such Independent
accountants to discuss with such representatives such affairs, finances and
accounts). To schedule an inspection or audit, Owner or the person designated by
Owner will give Consultant prior written notice of the time it desires to
schedule such inspection or audit, which will be within three (3) days after
receipt of that notice. Any expense incident to the exercise by Owner or the
person designated by Owner of any right under this Section 3.04 will be borne by
Owner or such person, as the case might be, provided that if an audit is made
during, and in connection with, the continuance of an Event of Default, the
expense incident to such audit will in all cases be borne by Consultant. If
requested by Owner, Consultant will also meet with Owner not less frequently
than once a month to discuss the operations and strategy of the consulting
practices of Consultant.
ARTICLE IV
Consultant
Section 4.01 Representations and Warranties Concerning Consultant.
Consultant represents and warrants to Owner as follows:
(a) Consultant is an entity duly organized, validly existing and in
good standing in its jurisdiction of incorporation. Consultant is qualified to
do business and will remain so qualified, and is and will remain in good
standing, in PRC.
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(b) Consultant has and will have all licenses or other governmental
approvals necessary to perform its obligations pursuant to this Agreement,
including, but not limited to, its obligations to provide the Consulting
Services, and Consultant has obtained Qualification.
(c) Consultant has the requisite power, authority and capacity to
execute, deliver and perform this Agreement and all of the transactions
contemplated by this Agreement. Consultant has taken all actions necessary to
authorize it to perform its obligations pursuant to this Agreement and to
consummate the transactions contemplated to be performed by it pursuant to this
Agreement. This Agreement and all other instruments and agreements executed and
delivered by Consultant in connection with the transactions contemplated
pursuant to this Agreement have been or will be duly executed and delivered by
Consultant and constitute or will constitute legal, valid and binding
obligations of Consultant, enforceable in accordance with the terms hereof and
thereof, subject, however to any applicable bankruptcy, insolvency,
reorganization and other laws affecting creditors' rights generally, to general
principles of equity and to any applicable forbearance relief.
(d) The execution, delivery and performance of this Agreement by
Consultant does not and the consummation of the transactions contemplated by
this Agreement will not (i) to the best of Consultant's knowledge violate any
material provision of law, rule or regulation applicable to Consultant, (ii)
conflict with any of the terms of Consultant's articles of association, or (iii)
conflict with, result in a breach of or give rise to any right of termination,
cancellation or acceleration under any other agreement or instrument to which
Consultant is a party or by which it or any of its assets are bound, which
conflict or breach reasonably could be expected to have a material adverse
effect on the transactions contemplated by this Agreement or (iv) constitute a
default or an event that, with the giving of notice or the passing of time, or
both, would constitute a default under any such agreement or instrument, which
default could reasonably be expected to have a material adverse effect on the
transactions contemplated by this Agreement.
(e) The execution, delivery and performance by Consultant of this
Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent or approval of, the giving of notice to,
the registration with or the taking of any other action in respect of any
governmental or quasi-governmental authority or agency other than those already
effected as of the date of this Agreement.
(f) There are no actions, suits or proceedings pending or, to the
knowledge of Consultant, threatened or likely to be asserted against or
affecting Consultant before or by any court, administrative agency, arbitrator
or governmental or quasi-governmental body (i) with respect to any of the
transactions contemplated by this Agreement or (ii) with respect to any other
matter that, in the judgment of Consultant, will be determined adversely to
Consultant or if determined adversely to Consultant, will materially and
adversely affect it or its business, assets, operations or condition, financial
or otherwise, or materially and adversely affect Consultant's ability to perform
its obligations pursuant to this Agreement. Consultant is not in default with
respect to any order of any court, administrative agency, arbitrator or
governmental body so as to affect materially and adversely the transactions
contemplated by the above-mentioned documents.
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Section 4.02 Merger or Consolidation of Consultant.
(a) Consultant will keep in full effect its existence and rights as a
limited liability company pursuant to PRC Law and will obtain and preserve its
qualification to do business.
(b) Consultant will not be merged or consolidated with any other
Person without the written consent of Owner. Any Person into which Consultant
may be merged or consolidated, or any entity resulting from any merger or
consolidation to which Consultant is a party, or any Person succeeding to the
assets of Consultant (i) will be the successor of Consultant under this
Agreement, without the execution or filing of any paper or any further act on
the part of any of the parties to this Agreement, anything in this Agreement to
the contrary notwithstanding, and (ii) must obtain Qualification.
Section 4.03 Removal of Consultant. Consultant may not be removed prior to
the termination of this Agreement except as provided in Article VI.
Section 4.04 Consultant Not to Resign.
(a) Consultant will not resign from the obligations and duties imposed
upon it by this Agreement unless as a result of a change in law Consultant's
duties under this Agreement are no longer permissible under applicable PRC Law
or Consultant receives a notice from a relevant governmental or regulatory
authority to the effect that Consultant's duties under this Agreement are not
permissible under applicable PRC Law, or in the event of a termination of this
Agreement pursuant to Article VI or Section 7.01. Subject to applicable PRC Law
or the applicable governmental authority in PRC, no such resignation is to
become effective unless and until a Qualified Consultant satisfactory to Owner
is willing to provide the Consulting Services and enters into a consulting
agreement with Owner in form and substance substantially similar to this
Agreement.
(b) Consultant may not assign or transfer this Agreement or any of its
rights, powers, duties or obligations under this Agreement without the prior
written consent of Owner.
(c) Subject to Consultant's resignation under Section 4.04(a), the
duties and obligations of Consultant under this Agreement will continue until
this Agreement has been terminated as provided in Article VI or Section 7.01 and
will survive the exercise by Owner of any right or remedy under this Agreement
or the enforcement by Owner of any provision of this Agreement.
Section 4.05 Liability of Consultant.
(a) Consultant and any director, officer, employee (including any
seconded employee), agent or contractor of Consultant may rely in good faith on
any document of any kind that, prima facie, is properly executed and submitted
by any appropriate Person respecting any matters arising under this Agreement.
(b) Consultant will indemnify Owner from, and hold it harmless against
any loss, liability, claim, cost, damage, or expense (including reasonable
attorneys' fees) incurred solely as a result of an act or omission of Consultant
or any director, officer, shareholder, partner, employee of Consultant relating
to the performance of Consultant's duties under this Agreement (i) for which
-13-
Consultant is responsible under the General Principles of Civil Law of PRC and
other relevant PRC Laws or (ii) that constitute a breach of any provision of
this Agreement.
(c) The provisions of this Section 4.05 will survive the termination
of this Agreement.
Section 4.06 Consultant Qualification. Consultant will use its best efforts
to maintain and preserve in full force and effect and will take no action to
jeopardize the continuing validity of its Qualification. Owner agrees to
cooperate reasonably with Consultant's efforts to maintain and preserve its
Qualification, all at the cost and expense of Consultant. Consultant
acknowledges that its maintaining and preserving its Qualification is of
critical importance to Owner and that Owner is entering into this Agreement in
reliance on Consultant's agreement to maintain its Qualification. Any failure to
maintain and preserve its Qualification will constitute Consultant's breach of
this Agreement. Without limiting the foregoing, Consultant shall, prior to 27
June 2005, provide Owner with a copy of its business license which has a
validity period until 27 March 2015 and which specifies an approved business
scope which is the same as that specified in the business license No. 0495538
granted to Consultant on 28 March 2005.
Section 4.07 Consultant Insurance. Consultant will maintain, at its own
cost and expense, insurance with respect to its activities and operations under
this Agreement. Such insurance shall be in such amounts and shall contain such
terms as are usual and customary in PRC or as otherwise directed by Owner to the
extent such insurance is available on commercially reasonable terms. All
policies required pursuant to this Section 4.07 will name Owner as an additional
insured and a co-payee.
Section 4.08 Foreign Corrupt Practices Act; Integrity Policy and other
Citigroup Policies. Consultant acknowledges that it is familiar with the
principal prohibitions and requirements of the United States Foreign Corrupt
Practices Act (the "FCPA") and that the performance of its obligations under
this Agreement will neither violate the FCPA nor cause Owner to violate the
FCPA. Consultant agrees to comply with the Integrity Policy and other Citigroup
Policies attached hereto as Exhibits B and E respectively in relation to the
performance of its duties under this Agreement.
Section 4.09 Conflicts. Consultant will at no time during the term of this
Agreement acquire or hold for its own account any legal, financial or other
economic interest in any Obligor. Consultant will require each member of staff
to disclose whether he or she has any legal, financial or other economic
interest in any borrower under a Loan and Consultant will have procedures in
place to address any conflicts of interest that may arise with respect to such
disclosure.
Section 4.10 Personnel. Consultant will at all times have sufficient
personnel to perform Consultant's obligations under this Agreement and will
ensure that there are adequate controls and segregation of personnel in
accordance with the Citigroup Policies.
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ARTICLE V
Owner
Section 5.01 Representations and Warranties Concerning Owner. Owner
represents and warrants to Consultant as follows:
(a) Owner is a company duly organized, validly existing and in good
standing pursuant to Mauritius Law. Owner is qualified to do business and will
remain so qualified, and is and will remain in good standing, in its
jurisdiction of incorporation.
(b) Owner has and will have all licenses or other governmental
approvals necessary to perform its obligations pursuant to this Agreement,
particularly including, but not limited to, the acquisition and ownership of the
Assets.
(c) Owner has the requisite power, authority and capacity to own the
Assets and to execute, deliver and perform this Agreement and all of the
transactions contemplated by this Agreement. Owner has taken all corporate
actions necessary to authorize it to perform its obligations pursuant to this
Agreement and to consummate the transactions contemplated to be performed by it
pursuant to this Agreement. This Agreement and all other instruments and
agreements executed and delivered by Owner in connection with the transactions
contemplated pursuant to this Agreement have been or will be duly executed and
delivered by Owner and constitute or will constitute legal, valid and binding
obligations of Owner, enforceable in accordance with the terms hereof and
thereof, subject, however to any applicable bankruptcy, insolvency,
reorganization and other laws affecting creditors' rights generally.
(d) The execution, delivery and performance of this Agreement by Owner
does not and the consummation of the transactions contemplated by this Agreement
will not (i) to the best of Owner's knowledge violate any material provision of
law, rule or regulation applicable to Owner, (ii) conflict with any of the terms
of Owner's articles of association, or (iii) conflict with, result in a breach
of or give rise to any right of termination, cancellation or acceleration under
any other agreement or instrument to which Owner is a party or by which its
assets are bound, which conflict or breach would reasonably be expected to have
a material adverse effect on the transactions contemplated by this Agreement or
(iv) constitute a default or an event that, with the giving of notice or the
passing of time, or both, would constitute a default under any such agreement or
instrument, which default would reasonably be expected to have a material
adverse effect on the transactions contemplated by this Agreement.
(e) The execution, delivery and performance by Owner of this Agreement
and the consummation of the transactions contemplated by this Agreement do not
require the consent or approval of, the giving of notice to, the registration
with or the taking of any other action in respect of any governmental or
quasi-governmental authority or agency other than those already effected as of
the date of this Agreement.
(f) There are no actions, suits or proceedings pending or, to the
knowledge of Owner, threatened or likely to be asserted against or affecting
Owner before or by any court, administrative
-15-
agency, arbitrator or governmental or quasi-governmental body (i) with respect
to any of the transactions contemplated by this Agreement or (ii) with respect
to any other matter that, in the judgment of Owner, if determined adversely to
Owner, will materially and adversely affect it or its business, assets,
operations or condition, financial or otherwise, or materially and adversely
affect Owner's ability to perform its obligations pursuant to this Agreement.
Owner is not in default with respect to any order of any court, administrative
agency, arbitrator or governmental body so as to affect materially and adversely
the transactions contemplated by the above-mentioned documents.
Section 5.02 Delivery of Records. As soon as practicable after the date of
this Agreement, Owner will deliver or cause to be delivered and entrusted on
behalf of Owner to Consultant copies of all Loan Files and any other documents
in Owner's possession relating to the Assets. To the extent Owner omitted to
deliver any such Loan Files and documents to Consultant on such date, Owner
shall promptly deliver them to Consultant upon discovery of such omission.
Section 5.03 Cooperation. Without prejudice to any other provisions herein,
Owner will in good faith cooperate and provide Consultant with such assistance
as may reasonably be necessary to enable Consultant to perform or facilitate
Consultant in performing its duties and obligations under this Agreement.
Section 5.04 Designate Representatives. On the date of this Agreement, and
as necessary from time to time thereafter, Owner shall designate in writing at
least two (2) representatives ("Representatives") (and continue to have
designated at least two (2) representatives at all times during the term of this
Agreement) who shall have the authority to act on behalf of Owner in connection
with the exercise by Owner of any of its rights under this Agreement, including
the giving or granting of any approval, consent, direction, waiver or request
(each exercise of any such right being referred to as an "Exercise of Owner's
Rights"), as set out in this Section 5.04. The initial Representatives shall be
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇. Consultant may rely on a
communication from any one of the Representative or his/her specified alternate,
if any, as being a communication from that Representative. It shall be the
obligation of each Representative to communicate in respect of each Exercise of
Owner's Rights with Owner and/or the other Representatives and to provide
Consultant written notice of any such Exercise of Owner's Rights in accordance
with this Section 5.04. Any written notice of an Exercise of Owner's Rights
contemplated to be given or granted by Owner to Consultant pursuant to this
Agreement may be given or granted by Owner by way of e-mail sent to Consultant
by all the Representatives, PROVIDED THAT where an Exercise of Owner's Rights
relates to any single expenditure, cost or expense to be incurred by Consultant
in excess of RMB 20,000 (or its equivalent in another currency), written notice
of such Exercise of Owner's Rights must also be obtained from such personnel
identified in, and in accordance with, Exhibit C, which notice shall be
coordinated with the assistance of the Representatives.
Owner shall be entitled, with prior written notice to Consultant, to remove
or substitute any of the personnel identified in Exhibit C.
-16-
ARTICLE VI
Default and Termination
Section 6.01 Events of Default and Termination.
(a) Any of the following acts or occurrences will constitute an Event
of Default by Consultant pursuant to this Agreement:
(i) Failure on the part of Consultant to observe or perform in
any material respect the following covenants:
(A) Failure on the part of Consultant to keep in full effect
its existence as an entity under the laws of its incorporation or organization
and to obtain and preserve its Qualification.
(B) Consultant merges or consolidates with any other Person
without the written consent of Owner.
(C) Consultant resigns from the obligations and duties
imposed upon it by this Agreement other than as a result of (i) a change in law
rendering Consultant's duties under this Agreement no longer permissible under
applicable PRC Law or, (ii) receipt by Consultant of a notice from a relevant
governmental or regulatory authority to the effect that Consultant's duties
under this Agreement are not permissible under applicable PRC Law, or (iii) a
termination of this Agreement pursuant to Article VI or Section 7.01.
(D) Consultant assigns or transfers this Agreement or any of
its rights, powers, duties or obligations under this Agreement without the prior
written consent of Owner.
(E) Consultant fails to use its best efforts to maintain and
preserve in full force and effect its Qualification or Consultant takes any
action to jeopardize the continuing validity of its Qualification.
(ii)Failure on the part of Consultant to observe or perform in
any material respect any other covenant or agreement on the part of Consultant
set forth in this Agreement;
(iii) Consultant files a petition under applicable insolvency
laws or a decree or order of a court or agency or supervisory authority having
jurisdiction in respect of Consultant for the appointment of a receiver or
liquidator in any insolvency, readjustment of debt, or similar proceeding, or
for the winding-up or liquidation of its affairs, has been entered against
Consultant and such filing, decree or order has remained in force undischarged
or unstayed for a period of sixty (60) days;
(iv) Consultant consents to the appointment of a receiver or
liquidator in any insolvency, readjustment of debt, or similar proceeding of or
relating to Consultant or of or relating to all or substantially all of its
property;
-17-
(v) Violation by Consultant of any material provision of PRC Law
or any judgment of any court or governmental authority applicable to Consultant
or any Citigroup Policies;
(vi)Any actual or potential fraud and/or criminal activities on
the part of Consultant;
(vii) Failure of Consultant to take reasonable steps to remedy or
otherwise cure any material monetary damages caused by any violation of PRC Law
by any of Consultant's agents or non-managerial employees that results in a
material adverse effect on Owner or the Assets;
(viii) Consultant violates any material provision of the company
policy of Consultant or any other material agreement to which Consultant is a
party that would, in each case, materially impair Consultant's ability to
perform its obligations under this Agreement; or
(ix)Any representation, warranty or statement of Consultant made
in this Agreement or any certificate, report or other writing delivered pursuant
to this Agreement proves to be incorrect in any material respect as of the time
made.
(b) Any of the following acts or occurrences will constitute an Event
of Default of Owner:
(i) Failure on the part of Owner to observe or perform in any
material respect any covenant or agreement on the part of Owner set forth in
this Agreement that continues unremedied for a period of thirty (30) days after
the date on which written notice of such failure, requiring the failure to be
remedied, has been given to Owner by Consultant; provided, however, that if such
breach is capable of being remedied but is of the nature that it cannot be
reasonably expected to be remedied within such thirty-day (30-day) period and
Owner is using its good faith efforts to cure such breach, the 30-day period
will be extended for up to an additional ninety (90) days so long as Owner
continues to use good faith efforts to cure the breach;
(ii)Owner files a petition under applicable insolvency laws or a
decree or order of a court or agency or supervisory authority having
jurisdiction in respect of Owner for the appointment of a receiver or liquidator
in any insolvency, readjustment of debt, or similar proceeding, or for the
winding-up or liquidation of its affairs, has been entered against Owner and
such filing, decree or order has remained in force undischarged or unstayed for
a period of sixty (60) days;
(iii) Owner consents to the appointment of a receiver or
liquidator in any insolvency, readjustment of debt, or similar proceeding of or
relating to Owner or of or relating to all or substantially all of its property;
or
(vi)Violation by Owner of any material provision of PRC Law or
any judgment of any court or governmental authority applicable to Owner that
would have a material adverse effect on the Assets and the violation remains
uncured for a period of thirty (30) days after Owner is notified in writing of
the violation by Consultant or any applicable governmental authority.
-18-
(c) If any Event of Default has occurred and is continuing, (i) if the
non-defaulting party is Consultant, it may immediately terminate this Agreement
by notice given to Owner or (ii) if the non-defaulting party is Owner, it may
immediately terminate Consultant's appointment as Consultant under this
Agreement. On and after the receipt of any such notice, all rights, powers,
duties and responsibilities of Consultant under this Agreement will vest in and
be assumed by a Qualified Consultant appointed by Owner. In the event Consultant
is the defaulting party, Owner is hereby authorized and empowered to execute and
deliver, on behalf of Consultant, as attorney-in-fact or otherwise, all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect such vesting and assumption.
Consultant agrees to cooperate with Owner to effect such termination and to
provide a successor Consultant with such documents and monies in its possession
and held in its capacity as Consultant under this Agreement.
Section 6.02 Termination for Convenience. Owner may terminate this
Agreement at any time upon five (5) Business Days' prior written notice to
Consultant.
Section 6.03 Effect of Termination. Termination of this Agreement for any
reason shall not affect any right, obligation or liability that has accrued
under this Agreement on or prior to the date of termination. Upon termination of
this Agreement (a) Owner shall pay all fees and expenses payable to Consultant
that have accrued up to and including the date of termination within thirty (30)
days after Consultant has given notice to Owner of the amount thereof; and (b)
Consultant shall reimburse Owner for any fees and expenses prepaid to Consultant
and applicable to periods arising after the date of termination within thirty
(30) days after Owner has given notice to Consultant of the amount thereof.
ARTICLE VII
Miscellaneous Provisions
Section 7.01 Termination of Agreement. The respective duties and
obligations of Consultant and Owner created by this Agreement are to terminate,
if they have not terminated previously, upon the Final Recovery Determination of
the last remaining Loan or Property. Upon the termination of this Agreement
pursuant to this Section 7.01, Consultant will pay all moneys in any escrow
account to the Persons entitled thereto and will pay over to Owner or any other
Person entitled thereto all other moneys held by Consultant.
Section 7.02 Amendment. This Agreement may not be amended except by a
written instrument executed by Owner and Consultant.
Section 7.03 Applicable Law. The formation, validity, interpretation,
execution and any performance of this Agreement, and the settlement of any
disputes between the parties hereunder, shall be governed by PRC Law.
-19-
Section 7.04 Dispute Resolution.
(a) Any and all disputes, controversies or claims arising out of or
relating to the interpretation or implementation of this Agreement, or the
breach hereof or relationships created hereby shall be settled through friendly
consultations. If the dispute is not resolved through friendly consultations
within thirty (30) days from the date a party gives the other party written
notice of a dispute, then it shall be resolved exclusively by arbitration under
the auspices of and in accordance with the Arbitration Rules of the China
International Economic and Trade Arbitration Commission ("CIETAC") then in
effect, and shall be submitted to CIETAC in Beijing, China.
(b) Any arbitration shall be heard before three (3) arbitrators, one
(1) of whom shall be appointed by the Owner, one (1) shall be appointed by the
Consultant, and the remaining arbitrator (the chairman) shall be appointed by
the two arbitrators appointed respectively by the parties. The arbitration shall
be final and binding on the parties, shall not be subject to any appeal, and the
parties agree to be bound thereby and to act accordingly. The losing party, as
determined by the arbitrators, shall pay all out-of-pocket expenses incurred by
the prevailing party (including legal fees), as determined by the arbitrators in
connection with any such dispute. Throughout any dispute resolution and
arbitration proceedings, the parties shall continue to perform this Agreement,
to the extent practical, with the exception of those parts of the Agreement that
are under arbitration.
Section 7.05 Notices. Every notice or other communication required or
contemplated by this Agreement by any party will be delivered either by (a)
personal delivery, (b) reputable overnight delivery service, or (c) facsimile or
e-mail, confirmed under the foregoing clauses (a) or (b) above, and addressed in
each case as set forth below:
If to Owner: Huizhou One Limited
c/o Citigroup Global Markets Asia Limited
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇: Legal Department
Facsimile: (▇▇▇) ▇▇▇▇ ▇▇▇▇
-20-
If to Consultant: Chinawe Asset Management (PRC) Limited
c/o Chinawe Asset Management Ltd.
▇▇▇▇ ▇, ▇▇/▇., ▇▇▇▇▇ ▇
▇▇▇ Keung Industrial Building
66-68 Tong Mi Road
Kowloon
Hong Kong
Attention: ▇▇▇▇▇▇ ▇▇▇/▇▇▇ ▇▇▇
Facsimile: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Any of the persons mentioned above may change its address for notices hereunder
by giving notice of such change to the other persons. Notice by reputable
overnight delivery service will be effective on the date it is officially
recorded as delivered to the intended recipient by such service. All notices and
other communication sent by personal delivery, facsimile or e-mail will be
deemed to have been delivered to and received by the addressee and will be
effective on the date of personal delivery or on the date sent, respectively.
Notice not given in writing will be effective only if acknowledged in writing by
a duly authorized representative of the Person to whom it was given.
Section 7.06 Severability of Provisions. If one or more of the provisions
of this Agreement is for any reason whatsoever held invalid or unenforceable,
such provisions will be deemed severable from the remaining covenants,
agreements and provisions of this Agreement and such invalidity or
unenforceability will in no way affect the validity or enforceability of such
remaining provisions, or the rights of any parties to this Agreement. To the
extent permitted by law, the parties to this Agreement hereby waive any
provision of law that renders any provision of this Agreement invalid or
unenforceable in any respect.
Section 7.07 Prior Understandings. This Agreement supersedes any and all
prior discussions and agreements between Consultant and Owner with respect to
the matters contained in this Agreement, and this Agreement contains the sole
and entire understanding between the parties to this Agreement with respect to
the transactions contemplated in this Agreement.
Section 7.08 Article and Section Headings. The Article and Section headings
in this Agreement are for convenience of reference only and will not limit or
otherwise affect the meaning of any provision of this Agreement.
Section 7.09 Controlling Version. This Agreement is executed in both
English and Chinese. Both language versions of this Agreement shall be equally
authentic.
Section 7.10 Drafting Presumption. This Agreement will be construed fairly
as to each party regardless of which party drafted it. Owner and Consultant
acknowledge and agree that each of them played a significant and essential role
in the preparation, drafting and review of this Agreement.
-21-
Section 7.11 Confidentiality.
(a) Each party agrees that, without the consent of the other party, it
will not disclose to any Person or entity the contents of this Agreement, except
that either party may make any such disclosure:
(i) If required to do so by any law, rule or regulation or
pursuant to a decree of any court or administrative agency;
(ii)To any governmental authority, self-regulatory entity or
stock exchange having or asserting jurisdiction;
(iii) If its attorneys advise it that it has a legal obligation
to do so or that failure to do so might result in it incurring a liability to
any other person or entity;
(iv)To its professional advisors and auditors, provided that each
such person agrees to keep such disclosed information confidential on the same
terms as are provided in this Section 7.11, or
(v) If necessary in connection with an application to a
regulatory authority in relation to or in connection with the transactions
contemplated hereby.
(b) Consultant may disclose the contents of this Agreement to any
entity proposing to enter into contractual relations with Consultant in respect
of the Assets.
(c) Owner may disclose the contents of this Agreement to any proposed
transferee, assignee, participant or other entity proposing to enter into
contractual relations with Owner in respect of Owner's rights under this
Agreement.
(d) Any information or other documents provided as to US tax treatment
or structure of this transaction (including tax opinions or any other tax
analyses) may be disclosed by Owner (including its employees, representatives
and agents) to any and all persons, without restrictions of any kind.
(e) Consultant will, and will cause its officers, employees,
representatives, consultants and advisors to, hold in confidence all information
concerning the operation and performance of the Assets and the Obligors except
as appropriate for the Consultant to perform its obligations under this
Agreement. Notwithstanding the foregoing, the confidentiality obligations of
this Section 7.11(e) will not apply to information that (i) Consultant is
compelled to disclose by judicial or administrative process, or by other
mandatory requirements of law; (ii) can be shown to have been generally
available to the public other than as a result of a breach of this Section
7.11(e); or (iii) can be shown to have been provided to Consultant by a third
party who obtained such information other than from Consultant or other than as
a result of a breach of this Section 7.11(e). Consultant will not use
information provided by the Obligors under the Loan Documents or in connection
with resolving the Loans other than for the purposes of performing Consultant's
obligations under this Agreement.
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(f) Notwithstanding the foregoing provisions of this Section 7.11,
Owner and Consultant may disclose certain information regarding the transactions
contemplated by this Agreement through mutually agreed press releases and other
public notices.
Section 7.12 Successors and Assigns. All covenants and agreements contained
in this Agreement will be binding upon, and inure to the benefit of, the parties
hereto and their respective permitted successors and assigns; provided, however,
that Consultant may not assign its rights or powers hereunder or delegate any of
its duties or obligations hereunder without the prior written consent of Owner,
which may be granted or withheld in Owner's sole discretion.
Section 7.13 Injunctive Relief. Notwithstanding any other provision of this
Agreement, each party acknowledges that a breach of confidentiality as provided
in Section 7.11 or other obligations under this Agreement may result in
irreparable harm and damages to the affected party in an amount difficult to
ascertain and that cannot be adequately compensated by a monetary award.
Accordingly, in addition to any other relief to which the affected party and its
Affiliates may be entitled at law or in equity, such party shall be entitled to
temporary and/or permanent injunctive relief from any breach or threatened
breach by the relevant party without proof of actual damages that have been or
may be caused to such parties by such breach or threatened breach.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, OWNER AND CONSULTANT HAVE CAUSED THIS AGREEMENT TO BE DULY
EXECUTED BY THEIR RESPECTIVE OFFICERS THEREUNTO DULY AUTHORIZED AS OF THE DAY
AND YEAR FIRST ABOVE WRITTEN.
HUIZHOU ONE LIMITED
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------
Title: Managing Director
------------------
CHINAWE ASSET MANAGEMENT
(PRC) LIMITED
By: /s/ ▇▇▇▇ ▇▇▇
--------------------
Name: ▇▇▇▇ ▇▇▇
------------------
Title: Managing Director
-----------------
-24-
EXHIBIT A
DEFINITIONS
"Affiliate" means, with respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of shares, equity
in registered capital or other voting securities, by contract or otherwise, and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agreement" means this Asset Consulting Agreement, as the same may be
amended, restated, supplemented or otherwise modified from time to time.
"Allocated Land Use Right" means a right of use of specified real property
based on an allocated land use right provided by the relevant governmental
authority, in accordance with the real property laws of PRC.
"Allocated Purchase Price" has the meaning given to it in the Asset Sale
and Purchase Agreement.
"Asset" or "Assets" means the Loans, together with any related assets
transferred to Owner by Great Wall and the Property, Liquidation Proceeds, and
other proceeds of the Loans and will include any other property of Owner from
time to time agreed by Owner and Consultant to be included as assets for
purposes of this Agreement.
"Assets Sale and Purchase Agreement" means the Loan Purchase and Sale
Agreement dated 27 April 2004 between Citigroup Financial Products Inc. and
Great Wall in relation to the Assets.
"Borrower" or "Borrowers" means a borrower under a Loan including those
Persons identified as such in Schedule 1.
"Business Day" means any day except a Saturday, Sunday or other day on
which banking institutions in PRC are authorized by law or regulation to close.
"Business Plans" means any plans prepared and developed with respect to,
but not limited to, the consulting, administration, management, restructuring,
enforcement, settlement, resolution or disposition of the Assets.
"CIETAC" is defined in Section 7.04(a).
"Citigroup Policies" means the policies and procedures of Owner in force
and effect from time to time, as set out in Exhibit E or otherwise notified by
or on behalf of Owner to Consultant in writing.
"Collection Fee" has the meaning given to it in Section 2.07.
-25-
"Consultant" means Chinawe Asset Management (PRC) Limited
"Consultant's Certificate" means a certificate signed by a Consulting
Officer.
"Consulting Fee" is defined in Section 2.07.
"Consulting Officer" means any officer, senior employee or representative
of Consultant involved in, or responsible for, the administration and consulting
of the Assets, whose name and specimen signature appear on a list of consulting
officers furnished to Owner by Consultant, as such list may from time to time be
amended.
"Consulting Period" means (i) initially the period commencing on the date
of this Agreement and ending at the end of the Fiscal Year in which the date of
this Agreement occurs and (ii) thereafter, each Fiscal Year, provided that the
last Consulting Period will end on the date of termination of this Agreement.
"Consulting Services" has the meaning given to it in Section 2.02.
"Event of Default" means in respect of Consultant any of the Events of
Default set out in Section 6.01(a), and in respect of Owner, any of the Events
of Default set out in Section 6.01(b).
"Excess profits" means, with respect to each Borrower for which the Net
Resolution Proceeds for all the Assets of such Borrower exceeds the Resolution
Proceeds Target for such Borrower, the amount by which the Net Resolution
Proceeds for the Assets of such Borrower exceeds the Resolution Proceeds Target
for such Borrower.
"Final Recovery Determination" means, with respect to any Asset, the actual
recovery of the full amount of all Insurance Proceeds, Liquidation Proceeds and
other payments or recoveries (including proceeds of the final sale of any
Property and any payments from a Surety) that is expected to be finally
recoverable.
"Fiscal Year" means the fiscal year of Consultant ending on December 31 of
each calendar year, subject to modification with Owner's consent.
"Foreclosure Proceedings" means the court proceedings (including, without
limitation, any proceedings, process and/or acts in connection with the
enforcement of any judgment or settlement agreement) by which a creditor seeks
payment of the outstanding amount of a mortgage loan, together with the related
interest and expenses, pursuant to PRC Law. Foreclosure Proceedings include, but
are not limited to, auctions of property subject to a Mortgage in full or
partial satisfaction of a non-performing loan.
"Granted Land Use Right" means a right of use, for a fee, of specified real
property based on a granted land use right provided by the relevant government
authority in accordance with the real property laws of PRC.
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"Independent" means, when used with respect to any specified Person, any
such Person who (a) does not have any direct financial interest, or any material
indirect financial interest, in any of the Owner, Consultant, or any Affiliate
thereof, and (b) is not connected with the Owner, Consultant or any Affiliate
thereof as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions; provided, however, that a
Person will not fail to be Independent of the Owner, Consultant or any Affiliate
thereof merely because such Person is the beneficial owner of five percent or
less of any class of securities or equity interests issued by the Owner,
Consultant or any Affiliate thereof, as the case might be.
"Insolvency Proceedings" means any bankruptcy, liquidation, insolvency,
dissolution or reorganization procedure under PRC Law.
"Insurance Proceeds" means proceeds of any fire and hazard insurance
policy, title insurance policy or other insurance policy relating to a Loan or a
Property to the extent such proceeds are not to be applied to the restoration of
the Property or released to the Obligor in accordance with the express
requirements of a Loan Document or other documents included in a Loan File or in
accordance with prudent and customary consulting practices.
"Integrity Policy" means the integrity policy of Owner in force and effect
from time to time, as set out in Exhibit B or otherwise notified by or on behalf
of Owner to Consultant in writing.
"Land Use Right" means any Allocated Land Use Right or Granted Land Use
Right, as the case may be.
"Liquidation Proceeds" means the amount received by Consultant on behalf of
Owner (a) in connection with the enforcement of a Loan through an auction, sale
or otherwise, or (b) in connection with a sale, repayment in full or in part,
liquidation or other disposition or satisfaction of a Loan or a Property.
"Loan" means, individually, any of the loans set forth in Schedule 1 and
the other related assets and collateral in respect of that Loan transferred to
Owner from Great Wall, and "Loans" means, collectively, all of the loans set
forth in Schedule 1 and the other related assets and collateral transferred to
Owner from Great Wall.
"Loan Documents" means the agreements, instruments and documents
evidencing, securing or relating in any way to a Loan, including (but not
limited to) any Note, Loan Evidence, or Mortgage evidencing or securing a Loan
and any bankruptcy, reorganization, composition, rationalization or other
restructuring plan in effect with respect to a Loan or the Obligor under any
Loan.
"Loan Evidence" means any agreement or document evidencing the indebtedness
of an Obligor under a Loan (including without limitation any guarantee,
indemnity or other contractual right), other than a Note, together with any
rider, addendum or amendment thereto. The Loan Evidence might include, without
limitation, original documents or copies thereof.
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"Loan File" or "Loan Files" means the underwriting, consulting and
collateral documents relating to a Loan. The documents in the Loan Files may be
original documents or copies thereof.
"Mortgage" means any mortgage and/or other instrument or security securing
the repayment of any Loan, including any amendments or modifications thereto.
"Note" means the original promissory note or other similar instrument
evidencing the indebtedness of an Obligor under a Loan, together with any rider,
addendum or amendment thereto.
"Obligor" or "Obligors" means, with respect to any Loan, the unreleased
obligors (including the issuer, guarantors or endorsers of a Note or Loan
Evidence) as of the date specified.
"Owner" means Huizhou One Limited, a company validly incorporated and
existing under the laws of Mauritius, whose registered office is at ▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇▇▇, ▇▇. Denis Street, Port Louis, Mauritius.
"Owner's Bank Accounts" is defined in Section 2.04.
"Person" or "Persons" means an individual, a corporation, a limited
liability company, a company, a partnership, a joint venture, an association, a
trust or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"PRC" means the People's Republic of China.
"PRC Law" means all published and publicly available applicable laws and
regulations of PRC.
"Proceeding" means any judicial or administrative proceeding.
"Proceedings Management" means the prosecution of the Foreclosure
Proceedings and Insolvency Proceedings as directed by Owner, management of the
Assets and negotiation with Obligors at the directions of Owner, and any other
appropriate action with respect to the resolution, restructuring, settlement or
other disposition of the Assets and/or the Properties in accordance with the
instructions of Owner and PRC Law.
"Property" or "Properties" means any property, whether real or personal,
whether encumbered by a Mortgage or not, including but not limited to Settled
Asset Property or other asset transferred to Owner in payment or settlement in
whole or in part of any Loan.
"Property Protection Expenses" means, with respect to a Loan or a Property,
the following costs and expenses, but only to the extent that (a) they are paid
to Persons who are generally in the business of providing such goods and
services and who are, unless Owner unanimously agrees otherwise, not Affiliates
of Consultant, and (b) they do not result from any activity of Owner or from any
expense to be reimbursed to Owner:
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(i) premiums or other fees related to any modification or conversion
of land use rights, stamp duties, deed taxes, and transfer taxes; and
(ii) any Asset improvement expenses that do not violate PRC Laws and
are approved in writing by Owner.
"Purchase Price" means RMB 280,000,000.
"Qualification" means the obtaining of those licenses and approvals for a
Person to qualify as a consultant of financial assets on behalf of the owner of
those assets pursuant to applicable provisions of PRC Law.
"Qualified Advisor" will mean any counsel or other third party advisor or
consultant who is Independent and experienced in real property transactions and
investments in the locale with respect to which the advice is being sought.
"Qualified Insurer" means an insurance company or security or bonding
company Independent of Consultant qualified to write the related insurance
policy in the relevant locale whose claims paying ability at the time of
determination is rated at least an investment grade by a recognized statistical
organization or otherwise approved by Owner.
"Qualified Consultant" means any entity acceptable to Owner that, at the
time of determination, is (a) organized and doing business pursuant to PRC Law,
(b) authorized to perform the duties of a Consultant of financial assets on the
terms set forth in this Agreement on behalf of Owner and (c) not restricted or
prohibited from contracting with Owner or any governmental agency or authority
of PRC.
"Reporting Date" means: (i) in respect of monthly reports, the fifteenth
(15th) calendar day in each calendar month following the calendar month in
respect of which the relevant report is to be made; and (ii) in respect of
quarterly reports, the fifteenth (15th) calendar of May, August, November and
February of each calendar year following the relevant calendar quarter; and
(iii) in respect of annual reports, the ninetieth (90th) calendar day in each
calendar year following the relevant annual period.
"Settled Assets" means those Loans designated as "Settled Assets" on
Schedule 1.
"Settled Asset Property" means, with respect to any Settled Asset, the land
(including, without limitation, the Land Use Right applicable to such land),
improvements, personal property and other items that are covered under such
Settled Asset. The term "Settled Asset Property" shall apply to a particular
Settled Asset Property or to the aggregate Settled Asset Property, as the
context may require. For the purposes of this definition, the term "Settled
Asset Property" includes the land affected by the particular Settled Asset, even
though the Settled Asset covers only the Land Use Right appurtenant to such
land.
"Surety" means any payment guarantee on a Loan made by any financial
institution or any other institution that issues guarantees as a part of its
business.
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EXHIBIT B
INTEGRITY POLICY
THE LAW
The Foreign Corrupt Practices Act ("FCPA") prohibits United States
companies and their agents, officers, and employees from offering, promising or
paying any thing of value, directly or indirectly, to a government official, for
the purpose of influencing the government official to assist Huizhou One Limited
(the "Company") in obtaining or retaining business for itself or anyone else.
This could also include paying anything of value for the purpose of:
o Influencing any decision of the government official, including a
decision to fail to perform his lawful duty, or
o Inducing the government official to use his influence with the
government or any of its instrumentalities to influence any decision
of the government or its instrumentality.
The term "government official" may include (i) officials and employees and
(ii) other individuals acting in an official capacity on behalf of:
o Non-US governments and governmental agencies and instrumentalities,
o Companies that are partially or wholly-owned by non-US governments or
governmental agencies (notwithstanding the fact that the company may
be publicly listed),
o Other organizations that may be controlled by the government,
o Public international, or supranational, organizations such as the
Asian Development Bank, The Hong Kong Economic and Trade Offices,
International Bank for Reconstruction and Development, International
Monetary Fund and the World Trade Organization, or
o Non-US political parties, including candidates as well as the party
itself.
The FCPA does not prohibit all payments to government officials, such as
payments to officials that are lawful under the written laws or regulations of
the official's country. However, the FCPA is interpreted very broadly and is not
limited in scope to traditional "bribes". It might also be triggered by the
following:
o Giving a government official gifts,
o Payment of travel and expense reimbursements to a government official,
o Overpayment for a government official's shares in an enterprise,
o Payment of an inflated director's fee to a board member of a joint
venture, where the board member is an officer of a state enterprise
that is a co-venturer, or
o Giving a government official who is an equity investor in an
enterprise a special class of stock with unusually high dividends or
favorable liquidation rights.
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A breach of the FCPA may expose the person or entity concerned to criminal
sanctions including fines and (in the case of individuals) imprisonment. Each
director and officer of the Company and all employees of the Company must be
particularly cautious whenever "warning flags" are present, which are discussed
below.
THE COMPANY'S POLICY
Each director and officer of China Great Wall Asset Management Corporation,
Guangzhou Branch ("Consultant") and all employees of Consultant shall refrain
from any acts that are prohibited by the FCPA. Compliance with the provisions
and requirements of the FCPA will be evaluated and monitored by the members of
the Company and legal counsel of the members of the Company. All of Consultant's
employees who are involved in asset resolutions or who have access to the funds
of the Company for these activities are required to certify annually their
compliance with the FCPA and this Policy. Required Approvals
Prior approval from the members of the Company is required for any gifts
to, payment of any travel, lodging or meal expenses for, or entertainment of
government officials. In addition, the hiring of any agent or consultant to
develop business or in any way deal with government officials, any secondments
of government officials, any joint venture partners or any other business
partnerships require the Company's members' pre-approval. Books and Records
All gifts, entertainment, travel and other expenses paid to or on behalf of
government officials or agents and business partners must be accurately
reflected on the Company's books and records.
SUPERVISORY RESPONSIBILITIES
Supervisors who approve expenditures or sign-off on expense reports are
responsible for ensuring that this policy has been adhered to. If a supervisor
has a reason to know or is aware of suspicious circumstances concerning
adherence to this policy, they should contact the members of the Company
immediately.
INVESTMENT TRANSACTIONS, AGENTS AND BUSINESS PARTNERS
The Company will, from time to time, use agents, consultants, contractors
and business partners (collectively "Representatives"). It is the Company's
policy that:
o Representatives are selected solely on the basis of merit. A
Representative may not be retained to do things that are prohibited by
this Integrity Policy or the FCPA.
o Each Representative must be carefully selected and evaluated before it
is retained by the Company. It is the responsibility of the General
Manager of Consultant, in consultation with the members of the
Company, to conduct a background investigation on all potential
Representatives.
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o No oral agreements or arrangements are to be made with any
Representative. All arrangements with a Representative must be in
writing and in accordance with the terms of the Consulting Agreement.
o Compensation should be in the amounts that are customary and
reasonable in relationship to the services provided. Compensation,
expenses and other payments must be properly reflected in the
Company's records, books of account, and financial statements.
o No payments may be made in cash, to third persons, or to bank accounts
that are not in the Representative's name. Payments may be made only
in the country where the Representative resides or where the services
are rendered.
As a general rule, whenever a government official is directly or indirectly
involved with the Company in a proposed investment transaction, whether as a
joint venturer, shareholder, director, employee, consultant or otherwise, the
Company must avoid making promises or transfers of money or stock or anything
else of value, directly or through another person, such as an agent, until the
proposed transfer has been fully analyzed for compliance with the FCPA.
Particular caution is necessary whenever "warning flags" are present. By way of
example, heightened scrutiny would be required if:
o The host country of the transaction has a reputation for corruption,
o The Company discovers that its prospective agent or business partner
has a reputation for dishonesty or corruption,
o A prospective agent or business partner refuses to make
representations about its knowledge of, and/or compliance with, the
FCPA,
o A prospective agent or business partner has a known relationship with
a government official who is directly or indirectly in a position to
award, or influence the award or retention of, business to the
Company,
o The Company's agent requests payment of unusually high commissions or
our prospective business partner requests an unusually large payment
in return for an equity stake in a business,
o The Company's agent or prospective business partner requests payments
in cash or to third country bank accounts, or
o The Company's agent or prospective business partner engages in other
suspicious conduct, such as keeping false records or requesting that
false records be kept, or provides suspicious assurances.
Any employee of the Company who has any indication that an employee or a
Representative has violated or may violate this Policy or any relevant law, or
any indication that a Representative has or is in the process of being retained
in a manner that violates this policy shall immediately report this information
to the members of the Company. Failure to report such
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information shall be cause for disciplinary action against the employee, up to
and including termination.
These basic guidelines are not exhaustive and are not intended to override
any other code of conduct or other policies of the Company. ANY QUESTIONS
CONCERNING THESE POLICIES OR REQUESTS FOR APPROVALS SHOULD BE ADDRESSED TO THE
CHAIRMAN OF BOARD OF THE MEMBER OF THE COMPANY.
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