NOTE ASSUMPTION AGREEMENT
This note assumption agreement (“Agreement”) dated as
of November 20, 2009, memorializes the prior agreement by and among China
Electric Motor, Inc., a Delaware corporation (“China Electric”),
Excel Profit Global Group Ltd., a British Virgin Islands company (“Excel Profit”) and
▇▇▇▇ ▇▇▇▇ (the “Noteholder”) of China
Electric’s assumption of that certain promissory note dated May 6, 2009 signed
by Excel Profit in favor of the Noteholder in the principal amount of $335,000
(the “Note”). A
copy of the May 6 Note is attached hereto as Exhibits A.
Capitalized terms used herein shall have the same meanings as used in the
Note.
RECITALS
WHEREAS,
because China Electric was to receive the benefits of the loan underlying the
Note, Excel Profit assigned to China Electric, and China Electric assumed, all
of Excel Profit’s obligations under the Note effective as of the date of
issuance of the Note;
WHEREAS,
the Noteholder acknowledged and agreed to such assignment and assumption of the
Note effective as of the date of issuance of the Note;
WHEREAS,
the Noteholder agreed to extend the Maturity Date of the Note until the closing
of China Electric’s proposed public offering of its common stock;
and
WHEREAS,
the parties desire to memorialize their prior verbal agreement to the assignment
and assumption of the Note with a written agreement.
NOW,
THEREFORE, in consideration of the foregoing recitals and other good and
valuable consideration, the parties, intending to be legally bound hereby, agree
as follows:
AGREEMENT
1. Assumption
of Note Obligation. Excel Profit delegates
to, and China Electric assumes, Excel Profit’s obligations under the Note
effective as of the date of issuance of the Note. Without limiting
the generality of the foregoing, China Electric acknowledges and agrees that it
shall be the primary obligor under the Note and expressly agrees to assume Excel
Profit’s obligations under the Note effective as of the date of issuance of the
Note.
2. Consent
to Assumption. The Noteholder consents
to such assumption by China Electric of the Note.
3. Extension
of the Maturity Date. The Maturity Date of the Note is
extended to the date of the closing of China Electric’s proposed public offering
of its common stock.
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4. Governing
Law. This Agreement and all actions arising out of or in
connection with this Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without regard to the conflicts of law
provisions of the State of Delaware, or of any other state.
4. Successor
and Assigns. This Agreement shall inure to the benefit of and
bind the successors and assigns the heirs, executors, administrators, successors
and assigns of the parties hereto.
5. Severability. In
case any one or more of the provisions contained in this Agreement shall be
deemed invalid, illegal, or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not in any
way be affected or impaired thereby.
[SIGNATURE
PAGE TO FOLLOW]
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IN
WITNESS WHEREOF, the parties have executed this Agreement effective as of the
latest date it is signed by any of the parties as set forth
below.
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By:
/s/ Yue
Wang_________________
Name: ▇▇▇
▇▇▇▇
Title: Chief
Executive Officer
Date:
November 20, 2009
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Excel
Profit Global Group, Ltd.
By:
/s/ Jianrong
Li_______________
Name:
▇▇▇▇▇▇▇▇ ▇▇
Title: Director
of the Board
Date: November
20, 2009
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Noteholder
/s/ Chen
Dong__________________
▇▇▇▇
▇▇▇▇
Date: November
20, 2009
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Exhibit
A
Promissory
Note dated May 6, 2009
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THIS NOTE
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. IT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED,
OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR
UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
PROMISSORY
NOTE
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No.
N-__
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Date
of Issuance
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US
$335,000
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May
6, 2009
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FOR VALUE
RECEIVED, Excel Profit Global Group Limited, a British Virgin Islands
corporation (the “Company”), hereby promises to pay ▇▇▇▇ ▇▇▇▇ (the “Lender”),
the principal sum of Three Hundred Thirty Five Thousand United States Dollars
(US$335,000), with no interest (this “Note”). This Note is issued in
connection with that certain Share Exchange Agreement dated March 3, 2009, as
amended on May 6, 2009 (the “Exchange Agreement”), by and among the Company,
China Electric Motor, Inc. (formerly known as SRKP 21, Inc.), a Delaware
corporation (“China Electric”), Attainment Holdings Limited, a British Virgin
Islands corporation (“Attainment”), and the designees listed on Schedule I of
the Exchange Agreement (the “Designees”). The principal shall be due
and payable by the Company on or before the earlier of (a) six (6) months from
the date of issuance of this Note or (b) upon the receipt by China Electric of
at least $1 million in the Equity Financing, excluding the amounts received in
the Equity Financing as of the date of this Note (the “Maturity
Date”). Capitalized terms used but not defined herein shall have the
meanings given to them in the Exchange Agreement.
1. Payment. All payments shall be
made in lawful money of the United States of America at the principal office of
the Company, or at such other place as the holder hereof may from time to time
designate in writing to the Company. Payment shall be credited first
to Costs (as defined below), if any, and any remainder applied to
principal. The Company hereby waives demand, notice, presentment,
protest and notice of dishonor.
2. Usury. It
is the intention of the parties hereto to strictly comply with all applicable
usury laws. Accordingly, notwithstanding any provisions to the
contrary in this Note, or in any of the documents securing payment hereof or
otherwise relating hereto, in no event shall this Note or such documents be
construed to contract for, charge, or permit a receipt of interest in excess of
the maximum amount permitted by applicable law. If any such excess
interest is contracted for, charged, or received under this Note or under the
terms of any of the documents securing payment hereof or otherwise relating
hereto, or in the event the maturity of the indebtedness evidenced by this Note
is accelerated in whole or in part, or in the event that all or part of the
principal or interest of this Note shall be prepaid, so that under any of such
circumstances the amount of interest contracted for, charged, or received under
this Note or under any of the instruments securing payment hereof shall exceed
the maximum rate of interest permitted by law, then, in such event (i) neither
the Company nor its successors or assigns, or any other party liable for the
payment hereof shall be obligated to pay the amount of such interest to the
extent that it is in the excess of the maximum permitted by law; and (ii) any
such excess shall be deemed a mistake and canceled automatically, and, if
theretofore paid, shall, at the option of the holder of this Note, be refunded
to the Company or applied as a credit against the then unpaid principal amount
hereof, and (iii) the effective rate of interest shall be automatically reduced
to the maximum contract rate allowed under such laws as now or hereafter
construed by the court of appropriate jurisdiction, and, to the extent permitted
by law, determination of the rate of interest shall be made by amortizing,
prorating, allocating, and spreading in equal parts during the period of the
fully stated term of the loan evidenced hereby all interest at any time
contracted for, charged, or received from the Company in connection with the
loan evidenced by this Note.
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3. Waiver
and Amendment. Any provision of this Note may be amended,
waived or modified upon the written consent of the Company and the
Lender.
4. Notices. Any
notice, request or other communication required or permitted hereunder shall be
in writing and shall be deemed to have been duly given if personally delivered
or mailed by registered or certified mail, postage prepaid, or by recognized
overnight courier or personal delivery at the respective addresses of the
parties as set forth below. Any party hereto may by notice so given change its
address for future notice hereunder. Notice shall conclusively be deemed to have
been given when received.
If to the
Company:
Excel
Profit Global Group Limited
c/o Shenzhen Yuepengcheng Motor Co.,
Ltd.
Sunna Motor Industry Park
Jian’an Fuyong Hi-Tech Park, Baoan
District
Shenzhen, Guangdong
People’s Republic of China
Attention: ▇▇▇
▇▇▇▇
Fax:
[(__) __________]
If to the
Lender:
▇▇▇▇ ▇▇▇▇
[INSERT ADDRESS]
Fax: [(___] _________]
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5. Successors
and Assigns. This Note applies to, inures to the benefit of,
and binds the successors and assigns of the parties hereto; provided, however,
that the Company may not assign its obligations under this Note without the
written consent of the Lender. The Lender and any subsequent holder
of this Note receives this Note subject to the foregoing terms and conditions,
and agrees to comply with the foregoing terms and conditions for the benefit of
the Company and any other Lenders.
6. Officers
and Directors Not Liable. In no event shall any officer or
director of the Company be liable for any amounts due and payable pursuant to
this Note.
7. Expenses. The
Company hereby agrees, subject only to any limitation imposed by applicable law,
to pay all expenses, including reasonable attorneys’ fees and legal expenses,
incurred by the holder of this Note (“Costs”) in endeavoring to collect any
amounts payable hereunder which are not paid when due, whether by declaration or
otherwise. The Company agrees that any delay on the part of the
holder in exercising any rights hereunder will not operate as a waiver of such
rights. The holder of this Note shall not by any act, delay, omission
or otherwise be deemed to have waived any of its rights or remedies, and no
waiver of any kind shall be valid unless in writing and signed by the party or
parties waiving such rights or remedies.
8. Governing
Law. This Note and all actions arising out of or in connection
with this Note shall be governed by and construed in accordance with the laws of
the State of Delaware, without regard to the conflicts of law provisions of the
State of Delaware, or of any other state.
9. Approval. The
Company hereby represents that its board of directors, in the exercise of its
fiduciary duty, has approved the Company’s execution of this Note based upon a
reasonable belief that the principal provided hereunder is appropriate for the
Company after reasonable inquiry concerning the Company’s financing objectives
and financial situation. In addition, the Company hereby represents
that it intends to use the principal of this Note primarily for the operations
of its business, and not for any personal, family or household
purpose.
10. Waiver. THE
COMPANY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY
HAVE TO A TRIAL BY JURY OF, UNDER OR IN CONNECTION WITH THIS NOTE, OR ANY
AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
ANY PARTY RELATING HERETO OR THERETO. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR LENDER ACCEPTING THIS NOTE.
Excel
Profit Global Group Limited
By: /s/ ▇▇
▇▇▇▇▇▇▇▇
Name: ▇▇
▇▇▇▇▇▇▇▇
Title: Director
of the Board
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