Attached files
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| 8-K - FORM 8-K - ALTAIR NANOTECHNOLOGIES INC | altair_8k-111612.htm |
Exhibit 99.1
Contract No.: PP (2012) 005
Working Capital Loan Contract
(2012 version)
Important Notice: This Contract is entered into by the Parties in accordance with laws based on equality and free will, and the terms and conditions of this Contract fully reflect the genuine intention of the Parties hereto. In order to protect legal rights and interests of the Borrower, the Lender hereby draws the Borrower's special attention to the terms and conditions of this Contract in relation to each Party's rights and obligations, in particular those in bold.
Lender: Industrial and Commercial Bank of China Limited, Phnom Penh Branch (“ICBC Phnom Penh Branch”)
Person in Charge Niu Jianjun Contact Person: Ly Sokchou
Address: No.15, Preah Norodom Boulevard, Phnom Penh Branch
Telephone: +855 23965269 Fax: +855 23965268 Email: lysokchou@kh.icbc.com.cn _
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Borrower: ALTAIRNANO, INC
Legal Representative: Stephen B. Huang Contact Person: Stephen B. Huang
Address: 204 Edison Way, RENO, NV 89502
Telephone：+1 (775)858-3714 Fax： +1 (775) 856-1619 Email： shuang@altairnano.com
Upon equal negotiations and mutual agreement, the Lender and the Borrower enter into this Contract in relation to the provision of relevant loan by the Lender to the Borrower.
Part I General Provisions
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Article 1
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Purpose of Loan
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The loan hereunder shall be used for the following purposes. Without written consent of the Lender, the Borrower may not use the loan for any purpose other than those listed below. The Lender may supervise the use of the proceeds of the loan.
Purpose: For purchasing goods and other daily manufacturing fees .
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Article 2
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Amount and Term of Loan
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2.1 The currency and amount of the loan hereunder shall be USD 3,700,000.00 (in words: Say In United States Dollar Three Million Seven hundred thousand Only) (if there is any inconsistency between the amount in figures and the amount in words, the amount in words shall prevail.)
2.2 The term of the loan hereunder shall be Days commencing from the actual drawdown date (or if there are more than one drawdown, the first drawdown date) as stated on the receipt of loan.
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Article 3
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Interest Rate, Interest and Fees
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3.1 [Determination of Interest Rate for RMB Loans]
Interest rate for RMB loans shall be Fixed interest rate at ____% per annum, which shall remain unchanged within the term of this Contract.
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3.2 [Determination of Interest Rate for Foreign Currency Loans]
Interest rate for foreign currency loans shall be determined in accordance with Item (2) below:
(1) Fixed interest rate at ____% per annum, which shall remain unchanged within the term of this Contract.
(2) Floating interest rate. The loan interest rate shall be 3 month LIBOR (LIBOR/HIBOR) (the benchmark interest rate) plus a margin equal to 170 base point(s) (a base point is equal to 0.01%). The margin shall remain unchanged within the term of this Contract. If the Borrower makes more than one drawdown, the loan interest rate for each drawdown shall be calculated separately. After the Borrower makes drawdown, the benchmark interest rate will be adjusted in accordance with Item B below, and the loan interest for each interest period shall be calculated according to the loan interest rate as adjusted and applicable to such interest period:
A. the benchmark interest rate will be adjusted in each interest period as applicable to such benchmark interest rate. The benchmark interest rate applicable to each interest period subsequent to the initial period shall be determined on the same numerical date in the month of such adjustment as the drawdown date. If there is no same numerical date in the month of adjustment as the drawdown date, the benchmark interest rate for such period shall be determined on the last day of such month of adjustment; or
B. the benchmark interest rate for each interest period shall be adjusted on the first day of such interest period.
3.3 The loan interest hereunder shall accrue from the actual drawdown date on a daily basis, and be settled every Quarter (month/quarter/half year). Upon maturity of the loan, all outstanding interest shall be paid together with the principal. The daily interest rate shall be applicable annual interest rate/360.
3.4 Penalty interest will be imposed in addition to the loan interest rate hereunder at 30 % on any overdue amount (overdue penalty interest rate), or at 50 % on any amount that is used for any purpose other than those set out hereunder (misappropriation penalty interest rate).
3.5 In addition to the loan interest, the Borrower shall also pay to the Lender the commitment fee, which shall be the difference between the amount of the loan under Article 2 above and the amount for which the Borrower has made drawdown (the daily average balance during the period for which such commitment fee is paid (the Fee Period) multiplied by a rate of __/___‰ per annum, and shall be paid in accordance with Item _/___ below:
(1) the commitment fee shall be paid to the Lender in one lump sum upon the expiry date of the Fee Period; or
(2) the commitment fee shall be paid to the Lender in installments on 20th day of / (each month/the last month of each quarter/the last month of each half-year), from the effectiveness date of this Contract until the expiry date of the Fee Period.
The Fee Period means, in case of a revolving loan, the period within which the revolving facility may be used, or in case of a non-revolving loan, the period from the date of this Contract to the date of the last drawdown as agreed under Article 4.
If the commitment fee is to be paid in installments and the Borrower fails to promptly pay any installment of the commitment fee, then the Lender may cease to advance the loan, or cancel all or part of the amount for which the Borrower has not made drawdown.
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Article 4
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Drawdown
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The Borrower shall make drawdown according to its actual need for fund. The drawdown shall be made before 2012/11/30 . If the Borrower fails to make drawdown as required above, the Lender may cancel all or part of the loan. (This article is not applicable to revolving loan.)
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Article 5
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Repayment
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5.1 The Borrower shall repay the loans hereunder in accordance with Item _(1)_ below:
(1) the Borrower shall fully repay the loan in one lump sum upon its maturity.
(2) the Borrower shall repay the loan in installments according to the following schedule (if there is not enough space below, please state the repayment schedule on a separate page):
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Time of repayment
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Amount of repayment (in 10,000)
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5.2 If the loan hereunder falls in any of the following events, the Borrower shall immediately repay the loan upon receipt of relevant fund, without any compensation to be paid by the Borrower for prepayment caused thereby:
The Borrower has give the Lender a prepayment notice not less than 30 business days.
5.3 Except for the event under Article 5.2 above, if the Borrower prepays any amount of the loan hereunder, the Borrower shall pay a prepayment fee of 1% of the amount to be prepaid in the event of any prepayment of the loan or any part thereof.
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Article 6
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Special Provisions in Relation to Revolving Loans (optional clause: this article is □applicable/■not applicable)
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6.1 The loan hereunder is provided on a revolving basis. The amount and the term of the loan as set out in Article 2 above is the limit of the revolving credit line and the term to use such revolving credit line, respectively. The term to use the revolving credit line shall commence on the date when this Contract takes effect.
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Article 7
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Security
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7.1 If the loan hereunder is a secured loan, such loan is secured by an irrevocable and unconditional Bank Guarantee （or a Standby Letter of Credit） in favor of the Lender by ICBC Guangzhou Branch. Amounting to USD 3,700,000.00 (in words: Say In United States Dollar Three Million Seven hundred thousand Only)
7.2 If the security for the loan hereunder is a security with a maximum secured amount, the relevant security contract (with the maximum secured amount) is as follows:
Name of the security contract (with the maximum secured amount): ________________________ (No.:___________________)
Security Provider:
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Article 8
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Financial Covenants (optional clause: this article is □applicable/■not applicable)
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Within the term of this Contract, the Borrower shall comply with the following covenants in relation to financial indicators:
_________________________________________________
_________________________________________________
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Article 9
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Dispute Resolution
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All disputes under this Contract shall be solved in accordance with Item (3) below:
(1) Such dispute shall be submitted to _________________Arbitration Commission for arbitration at ________________(place of arbitration) in accordance with the arbitration rules of such commission in force upon submission of arbitration application. The arbitration award shall be final and binding upon both parties; or
(2) Such dispute shall be submitted to the jurisdiction of the competent court of place where the Lender is located.
(3) To resolve the dispute through litigation at the court where the Guarantor is located.
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Article 10
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Miscellaneous
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10.1 This Contract is made in _TWO_ copies, with each of the Borrower, the Lender and holding _ONE_ copy(ies), In the event that any part of the Chinese version of this Contract is in conflict with its English version, the Chinese version shall always prevail.
10.2 The following appendices and other appendices as confirmed by both parties shall constitute integral part of this Contract and have equal legal effect as this Contract:
Appendix 1: Form of Drawdown Notice
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Article 11
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Other Matters Agreed by the Parties
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11.1 The Borrower’s commitment: The Loan shall not be disbursed back to China directly or indirectly through lending, investing in the stock market or futures market in any form.
11.2 The withdrawal will only be approved to the Borrower only after the Lender has received an irrevocable and unconditional Bank Guarantee （or a Standby Letter of Credit） in favor of the Lender by ICBC Guangzhou Branch, and the amount and term of each drawn-down shall be within that of the Bank Guarantee.
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Part II Specific Provisions
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Article 1
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Interest Rate and Interest
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1.1 The LIBOR applicable to a foreign currency loan hereunder shall be the inter-bank offered rate applicable to the currency of such loan as shown on the "LIBO=" page of the Reuters' financial messaging terminal at 11:00 am (London time) on the day that is two bank business days prior to the drawdown date or the benchmark interest rate adjustment date; the HIBOR shall be the inter-bank offered rate applicable to Hong Kong Dollar as shown on the "HIBO=" page of the Reuters' financial messaging terminal at 11:15 am (Hong Kong time) on the day that is two bank business days prior to the drawdown date or the benchmark interest rate adjustment date.
1.2 If the loan hereunder adopts a floating interest rate, the interest rate will continue to be adjusted in accordance with the original adjustment rules after such loan is overdue.
1.3 If interest is settled on a monthly basis, the settlement date shall be 20th day of each month; if interest is settled on a quarterly basis, the settlement date shall be 20th day of the last month of each quarter; and if interest is settled on a half-year basis, the settlement date shall be 20 June and 20 December of each year.
1.4 The first interest period shall commence from the actual drawdown date to the first interest settlement date; the last interest period shall commence from the day immediately following the end of the preceding interest period to the final repayment date; and each of the other interest period shall commence from the day immediately following the end of the preceding interest period to the next interest settlement date.
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Article 2
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Advance and Payment of Loan
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2.1 The Lender has no obligation to advance any loan to the Borrower until all following conditions have been satisfied by the Borrower or waived by the Lender:
(1) except for unsecured loans, the Borrower has provided security as required by the Lender and completed relevant formalities for provision of such security;
(2) there is no default event occurring under this Contract or any other contract between the Borrower and the Lender; and
(3) the purpose of loan as stated in the supporting documents provided by the Borrower is consistent with the purpose as agreed hereunder.
(4) other materials required by the Lender have been submitted to the Lender.
2.2 All written documents provided by the Borrower to the Lender for drawdown shall be originals. If no original is available, the Borrower may, upon consent of the Lender, provide photocopies affixed with the Borrower's company seal.
2.3 When applying for drawdown, the Borrower shall submit a drawdown notice to the Lender at least 5 bank business days prior to the proposed drawdown date. Once submitted, a drawdown notice will be irrevocable unless otherwise agreed by the Lender in writing.
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2.4 After all conditions precedent to drawdown have been satisfied by the Borrower or waived by the Lender, the Lender will remit the loan into a designated account of the Borrower. Such remittance shall be deemed as advance of the loan by the Lender to the Borrower in accordance with this Contract.
2.5 In accordance with relevant regulatory requirement and management requirement of the Lender, a loan exceeding certain value or meeting certain other conditions shall be subject to the entrusted payment arrangement, where the Lender will, upon and in accordance with drawdown request and payment entrustment issued by the Borrower, pay the proceeds of the loan to relevant payees for the purpose as agreed under this Contract. For this purpose, the Borrower shall enter into an entrusted payment agreement with the Lender, which shall be attached hereto as an appendix, and shall open or designate a dedicated account with the Lender for such entrusted payment.
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Article 3
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Repayment
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3.1 The Borrower shall repay the principal of and pay the interest on the loan hereunder and other amount payable in accordance with the amount and schedule as required under this Contract. The Borrower shall, on the day that is three bank business day prior to the repayment date and each interest settlement date, deposit into a repayment account opened by the Borrower with the Lender sufficient fund to repay the principal, interest and other amount to be paid on such repayment date or interest settlement date. The Lender may transfer an amount equal to such principal, interest and other amount payable out of such account on such repayment date or interest settlement date without further instruction from the Borrower, or require the Borrower to cooperate in completing relevant formalities for such transfer. If the balance of the repayment account is not sufficient to pay all amounts to be paid by the Borrower, the Lender may decide the priority sequence of each item to be settled.
Remittent Instruction:
BENEFICIARY: INDUSTRIAL AND COMMERCIAL BANK OF CHINA PHNOM PENH BRANCH
A/C NO: 861121003549
SWIFT CODE: ICBKKHPP
ACCOUNT BANK: INDUSTIAL AND COMMERCIAL BANK OF CHINA (ASIA) LIMITED
SWIFT CODE: UBHKHKHH
INTEREST (PRINCIPAL) FOR LOAN AGREEMENT NO. PP(2012)005
3.2 If the Borrower applies for prepayment of all or part of the loan, it shall submit a written application to the Lender for its approval 30 bank business days prior to such prepayment, and pay to the Lender relevant compensation as agreed hereunder.
3.3 If the Lender approves any prepayment, the Borrower shall fully pay on the prepayment date all principal, interest and other amounts due and payable as of such prepayment date hereunder.
3.4 The Lender may require the Borrower to early repay any loan based on the Borrower's collection of receivables.
3.5 The applicable interest rate grade (based on term of loan) will not change if the actual term of loan is shortened due to any prepayment by the Borrower or early repayment as required by the Lender in accordance with this Contract.
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Article 4
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Revolving loan
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4.1 If the loan hereunder is provided on a revolving basis, the aggregate amount of outstanding loans taken by the Borrower at any time within the term to use the revolving credit line may not exceed the amount of the revolving credit line. The term of each drawdown made by the Borrower shall commence from the actual drawdown date to the agreed repayment date, each as stated on relevant receipt of loan. No drawdown may have a repayment date that is beyond the term to use the revolving credit line.
4.2 If the loan hereunder is provided on a revolving basis, and the Borrower fails to make any drawdown within three consecutive months from the date of this Contract, the Lender may cancel the revolving credit line.
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Article 5
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Security
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5.1 Except for unsecured loans, the Borrower shall provide legal and effective security acceptable to the Lender for the performance of its obligations hereunder. A security contract will be entered into separately.
5.2 The Borrower shall promptly notify the Lender of any damage, depreciation, title dispute, seizure or attachment of the collateral hereunder, or unauthorized disposal of the collateral by the mortgagor, or any adverse change to the guarantor's financial condition, or any other adverse change to the claims of the Lender, and provide other security that is acceptable to the Lender.
5.3 Where the loan hereunder is secured by a pledge over accounts receivable, the Lender may declare accelerated maturity of the loan and require the Borrower to immediately repay all or part of the principal and pay the interest of the loan, or provide additional legal, effective and sufficient security acceptable to the Lender, if any of the following events occurs within the term of this Contract:
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(1)
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the bad debt ratio in relation to accounts receivable by the pledgor from the payer of such accounts receivable increases for two consecutive months;
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(2)
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the accounts receivable that are due but not recovered by the pledgor from the payer of such accounts receivable represent at least 5% of the total outstanding accounts receivable to be paid by such payer to the pledgor; or
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(3)
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any trade dispute (including without limitation dispute over quality, technology or service) or debt dispute arises between the pledgor of the accounts receivable and relevant payer or other third party, which may prevent the accounts receivable from being settled when they become due.
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Article 6
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Account management
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6.1 The Borrower shall designate a special collection account with the Lender, which will be used to collect relevant sales revenue or fund to be used to repay the loan. If any sales revenue is settled by non-cash method, the Borrower shall ensure that the proceeds of such revenue will be promptly transferred into the special collection account when it receives the same.
6.2 The Lender may supervise on the special collection account, including without limitation monitoring and supervising income and expenditure of such account, and the Borrower shall cooperate with the Lender in such supervision. If requested by the Lender, the Borrower shall enter into an account supervision agreement with the Lender.
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Article 7
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Representations and Warranties
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The Borrower makes the following representations and warranties to the Lender, and these representations and warranties will remain valid and effective within the term of this Contract:
7.1 It is eligible to act as a borrower hereunder, and has all qualifications and capacity to enter into and perform this Contract.
7.2 It has obtained all necessary authorizations or approvals to enter into this Contract. Its execution and performance of this Contract does not violate its articles of association or any applicable laws or regulations, or conflict with any of its obligations under other contracts.
7.3 Its other debts have been repaid when they become due and it has not committed any malicious default in repaying any principal or interest of bank loan.
7.4 It has a well-established organizational structure and financial management system. It has not committed any material violation of regulations or disciplines during its production and operation in the past one year. Its current senior management has no material negative record.
7.5 All documents and information provided by the Borrower to the Lender are true, accurate, complete and effective and do not contain any false record, gross omission or misleading statement.
7.6 The financial and accounting reports provided by the Borrower to the Lender are prepared in accordance with the general accepted accounting principle of ______ and give true, fair and complete presentation of the operation and indebtedness status of the Borrower. The financial condition of the Borrower has no material adverse change since the end date of its latest financial and accounting reports.
7.7 It has not concealed from the Lender any litigation, arbitration or claim involving the Borrower.
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Article 8
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Undertakings of the Borrower
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8.1 The Borrower undertakes to draw down and use the loan in accordance with the schedule and purpose as agreed hereunder. The Borrower shall not use the proceeds of the loan hereunder for investment in fixed assets or equity, or for investment in securities or futures market, or any other purpose prohibited or restricted by applicable laws and regulations.
8.2 The Borrower undertakes to settle principal, interest and any other amount payable in relation to the loan hereunder in accordance with this Contract.
8.3 The Borrower undertakes to accept and actively cooperate with the Lender's check and supervision on use of the proceeds of the loan (including purpose of the loan) including account analysis, voucher verification and on-site investigation, and to regularly summarize and report information on the use of proceeds of the loan as requested by the Lender.
8.4 The Borrower undertakes to accept credit check by the Lender, to provide financial documents including balance sheets and income statements and other documents that reflect the Borrower's ability to repay its debts, as requested by the Lenders, and to actively assist and cooperate with the Lender in investigating, understanding and supervising its production, operation and financial conditions.
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8.5 The Borrower undertakes not to distribute any dividend or profit in any form before full settlement of principal, interest and other amount payable in relation to the loan hereunder.
8.6 The Borrower undertakes to obtain prior written consent of the Lender or make appropriate arrangements in relation to the realization of the Lender's claims to the Lender's satisfaction, before it carries out any merger, division, decrease of capital, equity change, transfer of material assets and creditor's rights, material external investment, material increase of debt financing and other action that may cause an adverse impact on the Lender's rights and interests.
8.7 The Borrower undertakes to promptly notify the Lender upon occurrence of any of the following events:
（1）any change to its articles of association, business scope, registered capital or legal representative;
（2）its winding-up, dissolution, liquidation, suspension of business, revocation or cancellation of its business licence, or application (or be applied for) for bankruptcy;
（3）it is or may be involved in any material economic dispute, litigation or arbitration, or its property is subject to seizure, attachment or supervision in accordance with applicable laws; or
（4）any of its shareholders, directors or current senior management personnel is suspected of major crime or involved in any material economic dispute.
8.8 The Borrower undertakes to disclose its related party relationship and related transaction to the Lender in a prompt, complete and accurate manner.
8.9 The Borrower undertakes to promptly confirm receipt of all notices sent by the Lender by post or any other means.
8.10 The Borrower undertakes not to dispose of its own assets in a way that will reduce its ability to repay its debts. The Borrower undertakes not to provide security to the benefit of any third party in a way that will harm the Lender's rights and interests.
8.11 If the loan hereunder is an unsecured loan, the Borrower undertakes to regularly make complete, true and accurate disclosure to the Lender in relation to all securities provided by the Borrower for others, and enter into an account supervision agreement as requested by the Lender. If any provision of security may affect its ability to perform its obligations hereunder, the Borrower shall obtain written consent of the Lender on such provision of security.
8.12 The Borrower undertakes to bear the expenses incurred by the Lender for realization of its claim hereunder, including without limitation legal fee, appraisal fee and auction fee.
8.13 The debt hereunder is senior to the debts owed by the Borrower to its shareholders, and is not subordinated to similar debts owed by the Borrower to other creditors.
8.14 The Borrower undertakes to reinforce the management of environmental and social risks, and agrees to accept the Lender's supervision and inspection in this regard. If requested by the Lender, the Borrower shall provide the Lender with relevant environmental and social risk report.
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Article 9
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Undertakings of the Lender
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9.1 The Lender undertakes to advance the loan to the Borrower in accordance with this Contract.
9.2 The Lender undertakes to keep non-public materials and information provided by the Borrower confidential, unless otherwise required by applicable laws and regulations or agreed hereunder.
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Article 10
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Default
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10.1 The Borrower will be in default upon occurrence of any of the following events:
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(1)
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The Borrower fails to repay any principal, interest or other amount payable in relation to the loan hereunder in accordance with this Contract, or fails to perform any other obligations hereunder, or breaches any of its representations, warranties or undertakings hereunder;
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(2)
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the Borrower fails to provide other security acceptable to the Lender when the security provided hereunder suffers any change that is adverse to the claim of the Lender;
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(3)
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the Borrower fails to settle any other debt when it becomes due (including due to accelerated maturity declared by the creditor), or is in default or breach of any of its obligations under other agreements, which has affected or may affect performance of its obligations hereunder;
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(4)
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the Borrower's ability to make profit, repay debts or operate its business, or its financial indictors such as cash flow do not comply with agreed standard or suffer deterioration, which has affected or may affect performance of its obligations hereunder;
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(5)
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the Borrower's equity structure, production, operation or external investment suffers any material adverse change, which has affected or may affect performance of its obligations hereunder;
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(6)
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the Borrower is or may be involved in any material economic dispute, litigation or arbitration, or its property is subject to attachment, seizure or enforcement, or the Borrower is investigated or punished by any competent judicial or administrative authority in accordance with laws, or any media report that the Borrower has violated relevant regulations or policies of the State, which has affected or may affect performance of its obligations hereunder;
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(7)
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there is any abnormal change or missing of major individual investor or key management personnel of the Borrower, or any competent judicial authority has launched investigation on or restricted right of freedom of such investor or personnel in accordance with laws, which has affected or may affect performance of the Borrower's obligations hereunder;
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(8)
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the Borrower obtains fund or credit facility from the Lender by using false contracts between the Borrower and its related party or transactions that do not actually exist, or intentionally uses related transactions to evade from or invalidate the Lender's claim;
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(9)
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the Borrower is or may be under winding-up, dissolution, liquidation, suspension of business, or its business licence has been or may be revoked or cancelled, or it has applied or been applied, or may apply or be applied, for bankruptcy;
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(10)
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there is any liability accident or major environmental and social risk event caused by the Borrower's violation of applicable laws and regulations, regulatory rules or industry standard in relation to food safety, production safety, environmental protection or other environmental and social risk management, which has affected or may affect performance of its obligations hereunder;
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(11)
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where the loan hereunder is an unsecured loan, the Borrower's credit rating, profitability, asset liability ratio, net cash flow in operation activities, etc. do not comply with the Lender's requirement on grant of unsecured loans, or the Borrower creates mortgage or pledge over its effective operation assets or provides guarantee to the benefit of others without written consent of the Lender, which has affected or may affect performance of the Borrower's obligations hereunder; or
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(12)
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other events that may cause adverse impact on realization of the Lender's claim hereunder.
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10.2 If the Borrower is in default, the Lender may take any one or more of the following steps:
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(1)
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the Lender may require the Borrower to remedy its default within a designated period;
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(2)
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the Lender may cease to advance the loans and other amounts to the Borrower under this Contract or any other contract between the Lender and the Borrower, and cancel all or part of the loan or other amount for which the Borrower has not made drawdown;
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(3)
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the Lender may declare immediate maturity of all outstanding loans and other amounts under this Contract or any other contract between the Lender and the Borrower, and require immediate repayment of such loans and amounts;
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(4)
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the Lender may require the Borrower to compensate the Lender against all losses caused by such default of the Borrower; and
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(5)
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the Lender may require the Borrower to compensate the Lender against all losses caused by such default of the Borrower; and
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10.3 If the Borrower fails to repay any loan when it becomes due (including due to accelerated maturity as declared by the Lender), the Lender may impose penalty interest on the Borrower at the overdue penalty interest rate as agreed hereunder from the day immediately following the due date. Compound interest will accrue at the overdue penalty interest rate on any interest that the Borrower fails to pay when it becomes due.
10.4 If the Borrower fails to use the loan for the purpose as agreed hereunder, the Lender may impose penalty interest on the misappropriated part of the loan at the misappropriation penalty interest rate as agreed hereunder from the date of misappropriation. When the loan is being misappropriated, compound interest will accrue at the misappropriation penalty interest rate on any interest that the Borrower fails to pay when it becomes due.
10.5 If both of the penalty interest rates under Articles 10.3 and 10.4 are applicable to the Borrower, the higher of the two interest rates will apply. The two types of penalty interest may not be applied at the same time.
10.6 The Lender may make a public announcement in media to demand repayment if the Borrower fails to repay any principal, interest (including penalty interest and compound interest) or any other amount payable as scheduled.
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10.7 If the control relationship between the Borrower and its related party has changed, or any related party of the Borrower is in any event under Articles 10.1 (excluding Articles 10.1(1) and (2)), which has affected or may affect performance of the Borrower's obligations hereunder, the Lender may take all steps as set out under this Contract.
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Article 11
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Deduction and Setoff
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11.1 If the Borrower fails to repay any debt due hereunder (including due to accelerated maturity declared by the Lender) in accordance with this Contract, the Lender may deduct relevant amount from all RMB and foreign exchange accounts opened by the Borrower with the Lender or any other branch office of Industrial and Commercial Bank of China to set off such debt, until all debts of the Borrower hereunder are fully settled.
11.2 If the currency of deducted amount is different from that of the loan hereunder, the amount will be converted in accordance with applicable exchange rate published by the Lender on the date of such deduction. The Borrower shall bear all interest and other expenses incurred between the deduction date and the actual settlement date (i.e. the date when the debts hereunder are actually settled after the Lender converts the deducted amount into the currency of the loan hereunder in accordance with applicable State policies on administration of foreign exchange), as well as the difference caused by fluctuation of exchange rate during such period.
11.3 If the amount deducted by the Lender is insufficient to repay all debts owed by the Borrower, the Lender may decide the priority sequence of each item to be settled.
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Article 12
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Transfer of Rights and Obligations
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12.1 The Lender may transfer all or part of its rights hereunder to a third party, without consent of the Borrower. The Borrower may not transfer any of its rights or obligations hereunder without written consent of the Lender.
12.2 The Borrower acknowledges that the Lender or Industrial and Commercial Bank of China Limited (ICBC) may, based on operation and management requirements, authorize or appoint another branch office of ICBC to perform the rights and obligations hereunder, or transfer the loan hereunder to another branch office of ICBC. Such transfer by the Lender does not require further consent of the Borrower. The branch office of ICBC that is the transferee of the rights and obligations of the Lender hereunder may exercise all rights hereunder, and may in its own name initiate litigation or arbitration or apply for enforcement in relation to the dispute hereunder.
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Article 13
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Effectiveness, Amendment and Termination
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13.1 This Contract shall take effect as of the date hereof, and end upon the date when all of the Borrower's obligations hereunder are fully performed.
13.2 Any amendment to this Contract shall be agreed by the Parties and made in writing. Amended clauses or amendment agreement shall constitute an integral part of this Contract and have equal legal effect as this Contract. The rest terms of this Contract which are not amended shall remain effective. The original terms of this Contract which are to be amended shall remain effective until the relevant amendments take effect.
13.3 Amendments to or termination of this Contract shall not prejudice each Party's right to claim compensation for loss. The dispute resolution clause hereof shall survive termination of this Contract.
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Article 14
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Governing Law and Dispute Resolution
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The execution, validity, interpretation, performance and dispute resolution of this Contract shall be governed by the PRC law. All disputes and controversies arising from or in connection with this Contract shall be solved by the Parties through consultations, failing which, be solved by the means agreed hereunder.
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Article 15
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Entire Agreement
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Part I (General Provisions) and Part II (Specific Provisions) of this Contract shall constitute a complete working capital loan contract, and the same term shall have the same meaning in both parts. Both parts above are applicable to the loan granted to the Borrower hereunder.
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Article 16
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Notices
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16.1 All notices hereunder shall be sent in writing. Unless otherwise agreed, the address of each Party as stated in this Contract will be its address for communication and contact. If the contact address or other contact information of a Party changes, such Party shall promptly notify the other Party of such change in writing.
16.2 If either Party hereto refuses to confirm receipt of a notice or a notice is otherwise unable to be delivered, the Party sending such notice may serve such notice by means of notarization or public announcement.
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Article 17
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Miscellaneous
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17.1 Failure to exercise, partial exercise or delay in exercise by the Lender of any of its rights hereunder will not constitute waiver of or amendment to such right or any other right, nor will it affect the Lender's further exercise of such right or any other right.
17.2 Invalidity or unenforceability of any provision hereof will not affect validity or enforceability of any other provision hereof or validity of the whole Contract.
17.3 If so required by applicable laws, regulations, or other financial regulators, the Lender may provide the information related to this Contract and other information related to the Borrower to the credit information database of the People's Bank of China and other countries or other credit database created in accordance with laws for duly qualified institutions or individuals to check or use. The Lender may also enquire information related to the Borrower by using the credit information basic database of the People's Bank of China or other credit database created in accordance with laws for purpose of execution and performance of this Contract.
17.4 The terms used in this Contract including "related party", "related party relationship", "related transaction", "major individual investor" and "key management personnel" shall have the meaning given to them in the Accounting Standard for Business Enterprises No. 36—Disclosure of Related Parties (Cai Kuai [2006] No. 3) issued by the Ministry of Finance of the People's Republic of China and its amendments.
17.5 The environmental and social risks referred to herein means any harm that may be caused by the Borrower or its material affiliates to the environment and society during their construction, production and operation activities, and related risks, including the environmental and social problems in relation to energy consumption, pollution, land, health, safety, relocation and settlement of residents, ecological protection and climate change.
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17.6 The documents and vouchers prepared and retained by the Lender in relation to the loan hereunder in accordance with its business practice shall constitute valid proof of debt relationship between the Borrower and the Lender, and shall be binding upon the Borrower.
17.7 In this Contract, (1) any reference to this Contract shall include all amendments and supplements to this Contract; (2) the headings are for reference only, and do not constitute any interpretation of this Contract, or restriction on contents or scope of provisions under such headings; and (3) if a drawdown date or repayment date is not a bank business day, it shall be postponed to the immediate following bank business day.
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The Parties hereby confirm by signing or affixing of seal that all terms of this Contract have been fully negotiated by the Borrower and the Lender. The Lender has brought the Borrower's special attention to all terms in relation to the rights and obligations of each Party, asked the Borrower to fully and accurately understand all such terms, and upon the Borrower's request, made explanation on relevant terms. The Borrower has carefully read and fully understands all contractual terms hereof (including Part I (General Provisions) and Part II (Specific Provisions). The understanding of the Borrower and the Lender of this Contract is consistent, and the Parties have no dispute over the terms of this Contact.
Lender (seal):____________________________
Person-in-charge/authorized representative: ___________________________________
Borrower (seal):____________________________
Legal representative/authorized representative: Stephen B. Huang
Date: ______________________
Appendix 1:
Drawdown Notice
Industrial and Commercial Bank of China, 【Phnom Penh Branch】(“ICBC Phnom Penh Branch”)：
In accordance with the Working Capital Loan Contract between you and us on ______________ (contract no: _PP(2012)005_) (the Loan Contract), we have fully satisfied all conditions precedent to drawdown as required under the Loan Contract, and hereby send this drawdown notice to you:
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I.
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We intend to draw down a loan equal to _USD_ (currency) _3,700,000.00_ (amount) on _________________________.
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II.
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The term of loan under this notice is _______, and the maturity date is _____________.
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III.
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Please remit the loan to the following account:
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Account name: Altairnano, Inc
Account number: 8003008490
Bank: East West Bank
IV. In accordance with the Loan Contract and the Entrusted Payment Agreement, ___________ of this loan will be advanced through entrusted payment arrangement, and ___________ of this loan will be advanced to and paid out by the Borrower at its own discretion.
Under the entrusted payment arrangement mentioned above, after the loan is remitted to our account above, we authorize you to make relevant payment to the following account for the purpose as agreed under the Loan Contract:
Account name: Altairnano, Inc
Account number: 8003008490
Bank: East West Bank
[If the loan under this notice is to be paid to more than one payees, please refer to the list of payees and accounts attached hereto.]
V. We hereby warrant to you:
1. the loan under this notice will be used for the purpose as agreed under the Loan Contract;
2. on the date of this notice and the drawdown date, all representations, warranties and understandings made by us in the Loan Contract remain true, accurate, complete and effective;
3. as of the date of this notice, there has not been any material adverse change to our production, operation or financial or credit condition;
4. as of the date of this notice, there is no default or expected event of default under or in relation to the Loan Contract. We further warrant that no event of default will occur or continue on the drawdown date; and
5. this notice is irrevocable once sent.
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Borrower (seal):___________________________________
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Legal representative/authorized representative: Stephen B. Huang
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Date: ______________________
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List of Payees and Accounts
Payee 1:
Account name: ________________________________
Account number: ________________________________
Bank: _______________________________________
Amount to be paid: ____________________________
Payee 2:
Account name: ________________________________
Account number: ________________________________
Bank: _______________________________________
Amount to be paid: ____________________________
Payee 3:
Account name: ________________________________
Account number: ________________________________
Bank: _______________________________________
Amount to be paid: ____________________________
Payee 4:
Account name: ________________________________
Account number: ________________________________
Bank: _______________________________________
Amount to be paid: ____________________________
Borrower (seal):_____________________________
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