Exhibit 10.1

EXECUTION VERSION

Dated                       2019

US$135,000,000 Facility Agreement

between

Xinda Holding (HK) Company Limited

as Borrower

The Companies Listed in Part 2 of Schedule 1

as Original Guarantors

Mr. Han Jie and Ms. Sun Limei

as Personal Guarantors

Industrial and Commercial Bank of China (Macau) Limited

as Mandated Lead Arranger and Bookrunner, as Common Facility Agent, as Tranche A Facility
Agent, as Common Offshore Security Agent and as Tranche A Offshore Security Agent

Industrial and Commercial Bank of China Limited, Heilongjiang Branch

as Tranche A Onshore Security Agent

Standard Chartered Bank (Hong Kong) Limited

as Tranche B Facility Agent and Tranche B Offshore Security Agent

Standard Chartered Bank (China) Limited, Harbin Branch

as Tranche B Onshore Security Agent

Standard Chartered Bank, acting through its Dubai Branch

as UAE Security Agent

and

The Financial Institutions Listed in Part 1 of Schedule 1

as Original Lenders

White & Case
9th Floor Central Tower
28 Queen’s Road Central
Hong Kong

Table of Contents

This US$135,000,000 Facility Agreement is dated_________________ 2019 and made Between:

It is agreed as follows:

Section 1

Interpretation

1.       Definitions and Interpretation

1.1       Definitions

In this Agreement:

“Account Charges” means the Account Charge (Tranche A) and the Account Charge (Tranche B) (each an “Account Charge”).

“Account Charge (Tranche A)” means the account charge dated on or around the Signing Date and entered into between the Borrower and the Tranche A Offshore Security Agent in respect of the IRA (ICBC).

“Account Charge (Tranche B)” means the account charge dated on or around the Signing Date and entered into between the Borrower and the Tranche B Offshore Security Agent in respect of the IRA (SCB).

“Accounting Principles” means:

“Additional Onshore Cash Pledge” has the meaning given to that term in Clause 22.31 (Onshore Cash Pledge).

“Administrative Parties” means each of the Facility Agents, the Security Agents and the Arranger (each an “Administrative Party”).

“Affiliate” means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of any Holding Company of that person.

“Anti-Bribery and Corruption Laws” means:

Obligor or any Group Member or any other Governmental Agency having jurisdiction over any Obligor or any Group Member.

“Anti-Money Laundering Laws” means all applicable financial recordkeeping and reporting requirements and the applicable anti-money laundering laws and regulations of jurisdictions where any Obligor or any Group Member conducts business and/or where any Obligor or any Group Member is incorporated, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, which in each case are issued, administered or enforced by any Governmental Agency in any such jurisdiction from time to time.

“Anti-Terrorism Laws” means any Executive Order, the Bank Secrecy Act (31 U.S.C. §§ 5311 et seq.), the Money Laundering Control Act of 1986 (18 U.S.C. §§ 1956 et seq.), the U.S.A. PATRIOT Act, the International Emergency Economic Powers Act (50 U.S.C. §§ 1701 et seq.), the Trading with the Enemy Act (50 U.S.C. App. §§ 1 et seq.), any other regulation issued under authority of any Executive Order or administered by OFAC, the Prevention of Terrorism Act 2005 of the United Kingdom, any sanction implemented or effective in the United Kingdom under the United Nations Act 1946 or the Emergency Laws (Re-enactments and Repeals) Act 1964 or the Anti-Terrorism, Crime and Security Act 2001 of the United Kingdom or under the Treaty establishing the European Community, and any similar law, regulations and/or sanctions enacted, issued and/or administered by the United Nations or in any other jurisdiction, including the United States, any member state of the European Union, the UAE, Hong Kong, the United Kingdom, the United Nations and the PRC.

“APLMA” means the Asia Pacific Loan Market Association Limited.

“Assignment Agreement” means, in relation to any assignment by any Lender of any or all of its rights under this Agreement, an assignment agreement substantially in a recommended form of the APLMA or any other form agreed between the applicable assignor, the applicable assignee and the Common Facility Agent.

“Auditors” means one of PricewaterhouseCoopers, Ernst & Young, KPMG or Deloitte Touche Tohmatsu or any other firm mutually agreed to by the Borrower and the Common Facility Agent (acting on the instructions of the Majority Lenders).

“Authorisation” means:

“Automatic Acceleration Event” has the meaning given to that term in Clause 23.22 (Acceleration).

“Availability Period” means the period from and including the Signing Date to and including the date falling three Months from the Signing Date.

“Available Commitment” means in relation to a Lender and save as otherwise provided in this Agreement, that Lender’s Commitment under a Tranche minus the aggregate amount of its participation in the outstanding Loan under that Tranche (for such purpose taking into account the principal amount of a Loan when it is made and disregarding any subsequent reduction in the principal amount of a Loan).

“Available Facility” means, in relation to a Tranche, the aggregate for the time being of each Lender’s Available Commitment in respect of that Tranche.

“Bidco” means Faith Dawn Limited, an exempt company incorporated in the Cayman Islands with limited liability, which becomes a Holding Company of the Listco as part of the Privatisation and which is the borrower of the Privatisation Facility.

“Break Costs” means the amount (if any) by which:

exceeds:

“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in the PRC, Hong Kong, Macau, New York City, and (in relation to the delivery of a Utilisation Request or any determination of a rate of interest) London.

“BVI Share Charge” means the charge over the entire issued shares of the BVI Guarantor dated on or around the Signing Date and entered into between the Initial Listco as chargor in favour of the Common Offshore Security Agent.

“Capital Expenditure” means any expenditure or obligation in respect of expenditure which, in accordance with the Accounting Principles, is treated as capital expenditure.

“Change of Control” means at any time:

“Charged Property” means all of the assets of any or all of the Obligors which from time to time are, or are expressed to be, the subject of the Transaction Security.

“Code” means the US Internal Revenue Code of 1986.

“Commitment” means a Tranche A Commitment or a Tranche B Commitment, as the case may be.

“Compliance Certificate” means a certificate substantially in the form set out in Schedule 5 (Form of Compliance Certificate).

“Confidential Information” means all information relating to the Listco, any other Obligor, the Group, the Finance Documents or the Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or the Facility from either:

in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes:

(i)       information that:

(ii)       any Funding Rate or Reference Bank Quotation.

“Confidentiality Undertaking” means a confidentiality undertaking substantially in a recommended form of the APLMA or in any other form agreed between the Borrower and the Common Facility Agent.

“Corporate Obligors” means all Obligors other than Mr Han or Mrs Han.

“Default” means an Event of Default or any event or circumstance which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.

“Delegate” means any delegate, agent, attorney or co-trustee appointed by a Security Agent. “Disruption Event” means either or both of:

and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

“Distribution” means, in respect of any person:

“Employee Plan” means an “employee benefit plan” as defined in section 3 of ERISA (other than a Multiemployer Plan) maintained or contributed to by a Corporate Obligor, a Subsidiary

of a Corporate Obligor or any ERISA Affiliate or to which a Corporate Obligor, a Subsidiary of a Corporate Obligor or an ERISA Affiliate has an obligation to contribute, and such plan for the five year period immediately following the latest date on which a Corporate Obligor, a Subsidiary of a Corporate Obligor or an ERISA Affiliate maintained, contributed to or had an obligation to contribute to (or is deemed under section 4069 of ERISA to have maintained or contributed to or to have had an obligation to contribute to, or otherwise to have liability with respect to) such plan.

“Environmental Claim” means any claim, proceeding or investigation by any person in respect of any Environmental Law.

“Environmental Law” means any applicable law or regulation in any jurisdiction in which any Obligor or any Group Member conducts business which relates to the pollution or protection of the environment or harm to or the protection of human health or the health of animals or plants.

“Environmental Permits” means any Authorisation and/or the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of any Obligor or any Group Member conducted on or from any of the properties owned or used by any Obligor or any Group Member.

“Equity Interest” means, in relation to any person:

“ERISA” means the US Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

“ERISA Affiliate” means any person that for purposes of Title I or Title IV of ERISA or section 412 of the U.S. Revenue Code would be deemed at any relevant time to be a single employer or otherwise aggregated with any Corporate Obligor or a Subsidiary of a Corporate Obligor under section 414(b), (c), (m) or (o) of the U.S. Revenue Code or section 4001 of ERISA.

“ERISA Event” means any one or more of the following:

PBGC under section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Employee Plan;

“Event of Default” means any event or circumstance specified in Clauses 23.1 (Non-Payment) to 23.20 (Material Adverse Change).

“Executive Order” means each of:

“Existing Facility Agreements” means:

(Hong Kong) Limited as lender and the Borrower as borrower (the utilised amount under such facility letter is US$45,000,000).

“Existing Facilities” means the term loan facilities made available to the Borrower pursuant to each Existing Facility Agreement.

“Existing SCB Security” means the Security created or expressed to be created pursuant to or under any or all of the Existing Security Documents.

“Existing Security Agent” means the “Security Agent” (as defined in the Existing Syndicated Facility Agreement).

“Existing Security Documents” means the “Security Documents” (as defined in the Existing Syndicated Facility Agreement).

“Facility” means the facility made or to be made available under this Agreement as described in Clause 2.1 (The Facility).

“Facility Agents” means the Common Facility Agent, the Tranche A Facility Agent and the Tranche B Facility Agent (each a “Facility Agent”).

“Facility Guarantor” means each Guarantor that is not the UAE Guarantor.

“Facility Office” means the office or offices notified by a Lender to the Common Facility Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days’ written notice) as the office(s) through which it will perform its obligations under this Agreement.

“FATCA” means:

“FATCA Application Date” means:

“FATCA Deduction” means a deduction or withholding from a payment under a Finance Document required by FATCA.

“FATCA Exempt Party” means a Party that is entitled to receive payments free from any FATCA Deduction.

“FATCA FFI” means a foreign financial institution as defined in section 1471(d)(4) of the Code which, if any Finance Party is not a FATCA Exempt Party, could be required to make a FATCA Deduction.

“FCPA” means the United States Foreign Corrupt Practices Act 1977, as amended, and the rules and regulations thereunder.

“Fee Letters” means any letter or letters referring to this Agreement or the Facility between one or more of the Administrative Parties (on the one hand) and the Borrower (on the other hand) setting out any of the fees referred to in Clause 12 (Fees) (each a “Fee Letter”).

“Final Maturity Date” means the date falling 364 days from and including the first Utilisation Date.

“Finance Documents” means this Agreement, the Personal Guarantee, the UAE Guarantee, the Security Documents, the Intercreditor Agreement, the Fee Letters, any Utilisation Request, any Compliance Certificate and any other document(s) designated as a “Finance Document” by the Common Facility Agent and the Borrower (each a “Finance Document”).

“Finance Lease” means any lease, hire purchase contract which would, in accordance with the Accounting Principles, be treated as a finance or capital lease.

“Finance Parties” means the Facility Agents, the Security Agents, the Arranger and the Lenders (each a “Finance Party”).

“Financial Indebtedness” means any indebtedness for or in respect of:

“Governmental Agency” means any government or any governmental agency, semi-governmental or judicial entity or authority (including, without limitation, any stock exchange or any self-regulatory organisation established under statute).

“Group” means:

“Group Structure Chart” means the group structure chart in agreed form. “Group Member” means any member of the Group.

“Heilongjiang XDCM” means 黑龙江鑫达复合材料有限公司 (Heilongjiang Xinda Composite Materials Company Limited), a company incorporated under the laws of the PRC with unified social credit code 912301990780854625 and registered office at 哈尔滨经开区南部新城东起新雨路西至新丰路北起江南中环路南至规划用地界线.

“Heilongjiang Xinda” means 黑龙江鑫达企业集团有限公司 (Heilongjiang Xinda Enterprise Group Company Limited), a company incorporated under the laws of the PRC with unified social credit code 91230199585114088G and registered office at 哈尔滨经开区哈平路集中区大连北路 9 号.

“Holding Company” means, in relation to a company, corporation or entity, any other company, corporation or entity in respect of which it is a Subsidiary.

“Hong Kong Share Charge” means the composite share charge dated on or around the Signing Date and entered into among the BVI Guarantor, the Borrower and the Common Offshore Security Agent in respect of all equity interests held by the BVI Guarantor in the Borrower and held by the Borrower in the HK Guarantor, respectively.

“IRS” means the U.S. Internal Revenue Service.

“Indebtedness for Borrowed Money” means Financial Indebtedness except any Financial Indebtedness falling within:

“Indirect Tax” means any goods and services tax, consumption tax, value added tax or any tax of a similar nature.

“Initial Onshore Cash Pledges” means the Initial Onshore Cash Pledge (Tranche A) and the Initial Onshore Cash Pledge (Tranche B) (each an “Initial Onshore Cash Pledge”).

“Initial Onshore Cash Pledge (Tranche A)” means the cash pledge contract 保证金质押合同 dated on or about the Signing Date between Heilongjiang Xinda, the Tranche A Onshore Account Bank and the Tranche A Onshore Security Agent.

“Initial Onshore Cash Pledge (Tranche B)” means the cash pledge contract (现金质押合同) dated on or about the Signing Date between Heilongjiang Xinda, the Tranche B Onshore Account Bank and the Tranche B Onshore Security Agent.

“Intellectual Property” means:

“Intercreditor Agreement” means the intercreditor agreement dated on or about the Signing Date between, inter alia, the Common Facility Agent, each Security Agent, each Lender and the Borrower, and to be acceded into by the facility agent under the Privatisation Facility.

“Interest Period” means:

“Interest Reserve Account” means the IRA (SCB) or the IRA (ICBC).

“Interpolated Screen Rate” means, in relation to LIBOR for a Loan or any Unpaid Sum and any Interest Period relating thereto, the rate per annum (rounded upwards to four decimal places) for the period that is equal in length to such Interest Period which results from interpolating on a linear basis between:

each as of the Specified Time on the Quotation Day for the currency of such Loan or any Unpaid Sum and for such Interest Period.

“IRA (ICBC)” means an account maintained with Industrial and Commercial Bank of China (Macau) Limited with account number 0119100200008594474, as the same may be redesignated, substituted or replaced from time to time.

“IRA (SCB)” means an account maintained with Standard Chartered Bank (Hong Kong) Limited with account number 447-1-916532-9, as the same may be re-designated, substituted or replaced from time to time.

“JAFZA” means the Jebel Ali Free Zone Authority.

“Joint Venture” means any joint venture entity, whether a company, unincorporated firm, undertaking, association, joint venture or partnership or any other entity.

“Legal Opinion” means any legal opinion delivered to the Common Facility Agent under Clause 4.1 (Initial Conditions Precedent).

“Legal Reservations” means:

“Lender” means a Tranche A Lender or a Tranche B Lender, as the case may be.

“LIBOR” means, in relation to a Loan or any Unpaid Sum and any Interest Period relating thereto, the rate per annum equal to:

the Reference Bank Rate,

as of, in the case of paragraphs (a) and (c) above, the Specified Time on the Quotation Day for the currency of such Loan or that Unpaid Sum and for a period equal in length to such Interest Period, provided that, in each case, if such rate is less than zero, LIBOR for such Loan or that Unpaid Sum and such Interest Period shall (without prejudice to Clause 11.2 (Market Disruption)) be deemed to be zero.

“Loan” means a Tranche A Loan or a Tranche B Loan, as the case may be.

“London Business Day” means a day (other than Saturday or Sunday or a public holiday) on which banks are open for general business in London.

“Majority Lenders” means:

“Margin” means 2.00 per cent. per annum.

“Margin Stock” means margin stock or “margin security” within the meaning of Regulations T, U and X.

“Material Adverse Effect” means a material adverse effect on:

(a)                the business, operations, assets or financial condition of the Group (taken as a whole);

“Month” means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

The above rules will only apply to the last Month of any period.

“Most Recent Relevant Period” means, as at any time, the most recently elapsed Relevant Period in respect of which the consolidated financial statements of the Listco for a period ending on the last day of such Relevant Period have been delivered to the Common Facility Agent pursuant to Clause 20.1 (Financial Statements), provided that if such time falls prior to the time when the first set of the consolidated financial statements of the Listco and the accompanying Compliance Certificate are delivered to the Common Facility Agent pursuant to Clause 20.1 (Financial Statements):

“Moveables Security Executive Regulations” means Cabinet Resolution No. 5 of 2018 on the executive regulations of the Movables Security Law.

“Moveables Security Law” means Federal Law No. 20 of 2016 regarding security over movables as security for a debt.

“Moveables Security Register” has the meaning given to “Register” in the Moveables Security Executive Regulations and includes any replacement thereof.

“Multiemployer Plan” means any multiemployer plan as defined in section 4001(a)(3) of ERISA, which is contributed to by (or to which there is an obligation to contribute of) an Obligor, a Subsidiary of an Obligor or an ERISA Affiliate, and each such plan for the five year period immediately following the latest date on which an Obligor, a Subsidiary of an Obligor or an ERISA Affiliate contributed to or had an obligation to contribute to such plan.

“Nei Bao Wai Dai Transaction” means any transaction involving any guarantee and/or security where (a) the provider of such guarantee or security is incorporated or organised in the PRC, (b) any debtor (including any person in respect of whose obligations or liabilities such guarantee or security is provided) in such transaction is incorporated or organised outside the PRC and (c) any creditor (including any person for whose benefit such guarantee or security is provided) in such transaction is incorporated or organised outside the PRC.

“Obligors” means:

(each an “Obligor”).

“Obligors’ Agent” means the Borrower, appointed to act on behalf of each Obligor party hereto in relation to the Finance Documents pursuant to Clause 2.3 (Obligors’ Agent).

“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.

“Offshore Group Member” means any Group Member incorporated or established outside the PRC.

“Onshore Cash Pledge” means an Onshore Cash Pledge (Tranche A) or an Onshore Cash Pledge (Tranche B).

“Onshore Cash Pledge (Tranche A)” means the Initial Onshore Cash Pledge (Tranche A) or any Additional Onshore Cash Pledge entered into with Tranche A Onshore Security Agent in accordance with Clause 22.31 (Onshore Cash Pledge).

“Onshore Cash Pledge (Tranche B)” means the Initial Onshore Cash Pledge (Tranche B) or any Additional Onshore Cash Pledge entered into with Tranche B Onshore Security Agent in accordance with Clause 22.31 (Onshore Cash Pledge).

“Onshore Cash Pledge Ratio (Tranche A)” means, on any date of determination the ratio of:

divided by

“Onshore Cash Pledge Ratio (Tranche B)” means, on any date of determination the ratio of:

divided by

“Onshore Group Member” means any Group Member incorporated or established in the PRC.

“Original Financial Statements” means:

(a)       in respect of the Initial Listco:

“Original Obligors” means the Borrower, the Guarantors, Mr Han, Mrs Han and Heilongjiang Xinda.

“Party” means a party to this Agreement.

“PBGC” means the U.S. Pension Benefit Guaranty Corporation.

“Perfection Requirements” means any and all registrations, filings, endorsements, notarisations, stampings and/or notifications required to be made in any jurisdiction in order to perfect any Transaction Security or in order to achieve the relevant priority for such Transaction Security as set out in the applicable Security Document evidencing such Transaction Security or the applicable Legal Opinion(s) to which such Transaction Security relates.

“Personal Guarantee” means (a) a personal guarantee dated on or about the Signing Date between Mr Han and the Common Facility Agent, and (b) a personal guarantee dated on or about the Signing Date between Mrs Han and the Common Facility Agent.

“PRC” means the People’s Republic of China (which, for the purposes of this Agreement, excludes Hong Kong, Macau and Taiwan).

“PRC Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in the PRC.

“Privatisation” means the acquisition of the Listco by the Bidco pursuant to an agreement and plan of merger delivered to the Common Facility Agent in accordance with Clause 22.36 (Conditions Subsequent).

“Privatisation Facility” means a term loan facility of up to US$100,000,000 and with a term of one year to be provided by a syndicate led by Industrial and Commercial Bank of China (Macau) Limited to the Bidco for purpose of financing the Privatisation of China XD Plastics Company Limited. For the avoidance of doubt, the terms and conditions (including the commitment amount) of the Privatisation Facility will be subject to the credit approval and final documentation acceptable to Industrial and Commercial Bank of China (Macau) Limited.

“Privatisation Steps Paper” means the steps paper for the Privatisation prepared by PricewaterhouseCoopers Consultants (Shenzhen Limited) dated 30 August 2019.

“Quasi-Security” has the meaning given to it in Clause 22.4 (Negative Pledge). “Quotation Day” means:

“Receiver” means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Property.

“Refinancing Proposal” has the meaning given to it in Clause 22.36(i) (Conditions Subsequent).

“Regulations T, U and X” means, respectively, Regulations T, U and X of the Board of Governors of the Federal Reserve System of the United States.

“Reference Bank Quotation” means any quotation supplied to the Common Facility Agent by a Reference Bank.

“Reference Bank Rate” means, in relation to a Loan or any Unpaid Sum and any period relating thereto, the arithmetic means of the rates (rounded upwards to four decimal places) as supplied to the Common Facility Agent at its request by each of the Reference Banks as the rate at which such Reference Bank could borrow funds in the Relevant Interbank Market in the currency of such Loan or such Unpaid Sum and for such period, were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in such currency and for such period.

“Reference Banks” means the principal London offices of such bank(s) as may be appointed by the Common Facility Agent after consultation with the Borrower.

“Related Fund” in relation to a fund (the “first fund”), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment

manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.

“Release Document (Share Charge (Guarantor D))” means a release agreement in form and substance satisfactory to the Common Facility Agent to be entered into in respect of the Share Charge (Guarantor D) (as defined in the Existing Syndicated Facility Agreement).

“Release Documents” means:

in each case, in form and substance satisfactory to the Common Facility Agent.

“Relevant Interbank Market” means the London interbank market.
“Relevant Jurisdictions” means:

(a)       in relation to any Corporate Obligor or any Group Member:

(b)       in relation to Mr Han and Mrs Han:

“Relevant Nominating Body” means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board.

“Relevant Periods” means each period of twelve months ending on the last day of each financial year of the Listco and the last day of the second financial quarter (of each financial year of the Listco (each a “Relevant Period”).

“Repeating Representations” means each of the representations and warranties set out in Clause 19 (Representations) other than Clauses 19.7 (Deduction of Tax), 19.8 (No Filing or Stamp Taxes) and 19.26 (Group Structure Chart).

“Replacement Benchmark” means a benchmark rate which is:

and if replacements have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the “Replacement Benchmark” will be the replacement under paragraph (ii) above;

“Restricted Party” means a person that is:

(a)                listed on any Sanctions List;

“SAFE” means the State Administration of Foreign Exchange of the PRC (including its successors), or its competent local branch or any other authority succeeding to its functions.

“Sanctioned Jurisdiction” means a country or territory that is, or whose government is, the target of country-wide or territory-wide Sanctions, including, without limitation, currently, the Crimea region, Cuba, Iran, North Korea, Sudan and Syria.

“Sanctions” means any trade, economic, financial or other sanctions, embargoes, laws, regulations or restrictive measures administered, enacted or enforced by:

“Sanctions List” means the “Specially Designated Nationals and Blocked Persons” list maintained by OFAC, the Consolidated List of Financial Sanctions Targets and the Investment Ban List maintained by HMT, or any similar list maintained by, or public announcement of Sanctions designation made by, any of the Sanctions Authorities.

“Screen Rate” means, in relation to LIBOR for a Loan or any Unpaid Sum and any period relating thereto, the London interbank offered rate administered by ICE Benchmark

Administration Limited (or any other person which takes over the administration of such rate) for the currency of such Loan or any Unpaid Sum and such period displayed (before any correction, recalculation or republication by such administrator) on the appropriate page of the Thomson Reuters screen (being currently page LIBOR01 or LIBOR02) or, if such page is replaced or such service ceases to be available, such replacement page or service displaying such rate as specified by the Common Facility Agent after consultation with the Borrower and the Lenders.

“Screen Rate Replacement Event” means, in relation to the Screen Rate:

(i)

“Secured Obligations” means all obligations owing or expressed to be owing to the Secured Parties or any of them by the Obligors or any of them under or pursuant to the Finance Documents or any of them whether present or future, actual or contingent (and whether incurred by any Obligor alone or jointly, and whether as principal or surety or in some other capacity) including without limitation any such obligation in respect of any further advance or financial accommodation from time to time made under any Finance Document and including interest and fees that accrue after the commencement by or against any Obligor or any

Affiliate thereof of any proceeding under any U.S. Debtor Relief Laws naming such person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding, provided that, for the purposes of (i) the Share Charge (UAE Guarantor), (ii) the UAE Moveables Security Agreement, (iii) the UAE Assignment Agreement, (iv) the UAE Mortgage, (v) the UAE Guarantee, and (vi) any other Finance Document governed by UAE law, “Secured Obligations” means all present and future obligations and liabilities of each Obligor (whether actual or contingent, whether owed jointly, severally, as principal or surety or in any other capacity whatsoever and whether originally incurred by that Obligor or by some other person) to the UAE Security Agent (whether for its own account, including the obligations set out in clause 14.3 (Parallel Debt) of the Intercreditor Agreement), or as agent for the Secured Parties) or any of the other Secured Parties under or pursuant to each of the Finance Documents.

“Secured Parties” means the Finance Parties, each Delegate and each Receiver.

“Security” means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.

“Security Agents” means the Tranche A Onshore Security Agent, the Tranche B Onshore Security Agent, the Tranche A Offshore Security Agent, the Tranche B Offshore Security Agent, the Common Offshore Security Agent and the UAE Security Agent (each a “Security Agent”).

“Security Assignment” means:

“Security Documents” means:

(each a “Security Document”).
“Security Property” means:

“Share Charges” means the BVI Share Charge, the Hong Kong Share Charge, the Share Pledge (Listco) and the Share Charge (UAE Guarantor) (each a “Share Charge”).

“Share Charge (UAE Guarantor)” means a share pledge to be entered into between the Borrower, the UAE Guarantor and the UAE Security Agent in respect of shares in the UAE Guarantor in form and substance satisfactory to the Common Facility Agent.

“Share Pledge (Listco)” means the stock pledge agreement or similar security agreement to be entered into between Mr Han as pledgor and the Common Offshore Security Agent in respect of 50.1% shares in the Listco in form and substance satisfactory to the Common Facility Agent.

“Signing Date” means the date of this Agreement.

“Solvency Certificate” means a certificate substantially in the form set out in Schedule 7 (Form of Solvency Certificate).

“Specified Time” means the applicable time determined in accordance with Schedule 6 (Timetables).

“Subsidiary” means, in relation to any company, corporation or entity, a company, corporation or entity:

and for this purpose, a company, corporation or entity shall be treated as being controlled by another if that other company, corporation or entity is able to direct its affairs and/or to control the majority of the composition of its board of directors or equivalent body.

“Super Majority Lenders” means a Lender or Lenders whose Commitments aggregate 83 per cent. or more of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated 83 per cent. or more of the Total Commitments immediately prior to the reduction of the Total Commitments to zero).

“Tax” means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).

“Tax Deduction” has the meaning given to such term in Clause 13.1 (Definitions).

“Total Commitments” means the aggregate of the Total Tranche A Commitments and the Total Tranche B Commitments, being US$135,000,000 at the Signing Date.

“Total Tranche A Commitments” means at any time the aggregate of the Tranche A Commitments, being US$105,000,000 at the Signing Date.

“Total Tranche B Commitments” means at any time the aggregate of the Tranche B Commitments, being US$30,000,000 at the Signing Date.

“Trading Day” means a day (other than a Saturday or Sunday) on which the NASDAQ is open for trading.

“Tranche” means Tranche A or Tranche B, as the case may be.

“Tranche A” means the part of the Facility as described under the heading “Tranche A” in Part 1 of Schedule 1 (The Original Parties).

“Tranche A Commitment” means:

to the extent not cancelled or reduced under this Agreement or transferred by it pursuant to Clause 24 (Changes to the Lenders).

“Tranche A Lender” means:

which in each case has not ceased to be a Party in accordance with the terms of this Agreement.

“Tranche A Loan” means, as the context requires, the loan made or to be made under Tranche A or the principal amount outstanding for the time being of that loan.

“Tranche A Onshore Account Bank” means Industrial and Commercial Bank of China Limited, Heilongjiang Branch (中国工商银行股份有限公司黑龙江分行).

“Tranche B” means the part of the Facility as described under the heading “Tranche B” in Part 1 of Schedule 1 (The Original Parties).

“Tranche B Commitment” means:

to the extent not cancelled or reduced under this Agreement or transferred by it pursuant to Clause 24 (Changes to the Lenders).

“Tranche B Lender” means:

which in each case has not ceased to be a Party in accordance with the terms of this Agreement.

“Tranche B Loan” means, as the context requires, the loan made or to be made under Tranche B or the principal amount outstanding for the time being of that loan.

“Tranche B Onshore Account Bank” means Standard Chartered Bank (China) Limited, Harbin Branch.

“Transaction Agents” means the Facility Agents and the Security Agents (each a “Transaction Agent”).

“Transaction Security” means the Security created or expressed to be created in favour of any or all of the Secured Parties pursuant to or under any or all of the Security Documents.

“Transfer Certificate” means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Common Facility Agent and the Borrower.

“Transfer Date” means, in relation to an assignment by a Lender of any or all of its rights under this Agreement or a transfer by a Lender of any or all of its rights and obligations under this Agreement, the later of:

“Treasury Transaction” means any derivative transaction entered into in connection with protection against or to benefit from fluctuation in any rate, index, price or other benchmark.

“UAE” means the United Arab Emirates.

“UAE Guarantee” means the corporate guarantee dated on or about the Signing Date between the UAE Guarantor and the Common Facility Agent, together with any other guarantee (other than the guarantee set out in Clause 18 (Guarantee and Indemnity)) entered into by any Guarantor which guarantees the obligations of any Obligor under any of the Finance Documents and which is designated by the Common Facility Agent and the Borrower as a “UAE Guarantee”.

“UAE Assignment Agreement” means the conditional assignment of a lease agreement of a company to be entered into pursuant to Clause 22.36 (Conditions Subsequent) between the UAE Guarantor and the UAE Security Agent.

“UAE Mortgage” means the mortgage over a building created pursuant to Law no.1 of 2002 Mortgage of Immovable Property Erected at Jebel Ali Free Zone, issued by Maktoum Bin Rashid Al Maktoum, Ruler of Dubai to be entered into pursuant to Clause 22.36 (Conditions Subsequent) between the UAE Guarantor and the UAE Security Agent.

“UAE Moveables Security Agreement” means the movables security agreement to be entered into pursuant to Clause 22.36 (Conditions Subsequent) between the UAE Guarantor and the UAE Security Agent.

“Unfunded Pension Liability” of any Employee Plan means the amount, if any, by which the value of the accumulated plan benefits under the Employee Plan, determined on a plan termination basis in accordance with actuarial assumptions at such time consistent with those prescribed by the PBGC for purposes of section 4044 of ERISA, exceeds the fair market value of all plan assets allocable to such liabilities under Title IV of ERISA (excluding any accrued but unpaid contributions).

“Unpaid Sum” means any sum due and payable but unpaid by any Obligor under any or all of the Finance Documents.

“U.S.”, “US” and “United States” means the United States of America, its territories,

possessions and other areas subject to the jurisdiction of the United States of America.

“U.S. Bankruptcy Code” means Title 11 of the United States Code, 11 U.S.C. 101 et seq., entitled “Bankruptcy” as amended from time to time and as now or hereafter in effect, or any successor thereto.

“U.S. Debtor Relief Laws” means the U.S. Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, judicial management or similar debtor relief laws of the United States from time to time in effect and affecting the rights of creditors generally.

“U.S.A. Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Title III of Public Law 107-56 (signed into law 26 October 2001 and as amended from time to time).

“U.S. Revenue Code” means the US Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

“US Tax Obligor” means:

“Utilisation” means utilisation of the Facility (or any part thereof).

“Utilisation Date” means the date of a Utilisation, being the date on which a Loan is made or to be made.

“Utilisation Request” means a notice substantially in the form set out in Schedule 3 (Form of Utilisation Request).

1.2       Construction

(a)       Unless a contrary indication appears, any reference in this Agreement to:

construed so as to include its successors in title, permitted assigns and permitted transferees;

1.3       Currency Symbols and Definitions

1.4       Third Party Rights

Clause 27.18 (Role of Reference Banks), Clause 27.19 (Third Party Reference Banks) and Clause 27.22 (Liability) and except that any Receiver or any Delegate may, subject to this Clause 1.4 and the Third Parties Ordinance, rely on any term of this Agreement which expressly confers rights on or benefits to it.

(b)       Notwithstanding any term of any Finance Document (including paragraph (a) above), the consent of any person who is not a Party is not required to rescind, amend, vary or waive any provision of this Agreement at any time.

Section 2
The Facility

2.         The Facility

2.1       The Facility

Subject to the terms of this Agreement, the Lenders agree to make available to the Borrower a US dollars term loan facility in an aggregate amount equal to the Total Commitments.

2.2       Finance Parties’ Rights and Obligations

2.3       Obligors’ Agent

and in each case that Obligor shall be bound as though such Obligor itself had supplied such information, given such notices and instructions, made such agreements, effected such amendments, supplements and variations and received such notice, demand or other communication.

3.         Purpose

3.1       Purpose

The Borrower shall apply all amounts borrowed by it under the Facility towards:

3.2       Monitoring

No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

4.        Conditions of Utilisation

4.1       Initial Conditions Precedent

4.2       Further Conditions Precedent

The Lenders will only be obliged to comply with Clause 5.4 (Lenders’ Participation) in relation to a Loan if on the date of the Utilisation Request and on the proposed Utilisation Date:

4.3       Maximum Number of Loans

(i)                 more than one Tranche A Loan would be outstanding; or

(ii)               more than one Tranche B Loan would be outstanding.

(b)       The Borrower may not request that a Loan be divided.

Section 3
Utilisation

5.         Utilisation

5.1       Delivery of a Utilisation Request

The Borrower may utilise the Facility by delivery to the Common Facility Agent of a duly completed Utilisation Request not later than the Specified Time (or such later date or time as the Common Facility Agent may agree in its absolute discretion).

5.2       Completion of a Utilisation Request

5.3       Currency and Amount

5.4       Lenders’ Participation

5.5       Cancellation of Available Facility

Upon the earlier of (i) 5 p.m. on the last day of the Availability Period, and (ii) the making of the Loan under each Tranche:

Section 4

Repayment, Prepayment and Cancellation

6.                 Repayment

6.1       Repayment of Loan

The Borrower shall repay the Loans in full on the Final Maturity Date.

6.2       No Re-Borrowing

The Borrower may not re-borrow any part of the Facility which is repaid.

7.                 Prepayment and Cancellation

7.1       Voluntary Cancellation

7.2       Voluntary Prepayment of Loans

The Borrower may, if it gives the Common Facility Agent not less than five Business Days’ (or such shorter period as the Majority Lenders may agree) prior notice in writing, prepay the whole or any part of the Loans at any time on or after the date falling three Months after the first Utilisation Date, provided that (in the case of any prepayment of the Loans in part) the amount of such prepayment reduces the amount of the Loans by an amount that is (a) not less than US$5,000,000 and (b) if in excess of US$5,000,000, an integral multiple of US$1,000,000.

7.3       Right of Repayment and Cancellation in Relation to a Single Lender

(a)       If:

the Borrower may, at any time on or after the date falling three Months after the first Utilisation Date and whilst the circumstance giving rise to such requirement or indemnification continues, give the Common Facility Agent and that Lender notice of its intention to procure the repayment of that Lender’s participation in the Loans and the cancellation of the Available Commitment of that Lender (a “Cancellation Notice”).

7.4       Restrictions

8.         Mandatory Prepayment and Cancellation

8.1       Illegality

If, at any time, it is or will become unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in a Loan or any part thereof (or it is or will become unlawful for any Affiliate of a Lender for that Lender to do so):

8.2       Change of Control and Total Disposal

Upon the occurrence of a Change of Control or a sale of all or substantially all of the assets of the Group:

8.3       Partial Disposal Proceeds

(a)       For the purpose of this Clause 8.3:

“Disposal” means any sale, lease, licence, transfer, loan or other disposal by a person of any asset, undertaking or business (whether by a voluntary or involuntary single transaction or series of transactions).

“Disposal Proceeds” means Gross Disposal Proceeds after deducting:

“Gross Disposal Proceeds” means the cash consideration receivable by a Group Member (including any amount receivable in repayment of intercompany debt) for any Disposal made by a Group Member.

8.4       Debt Incurrence and Equity Issuance

(a)       For the purpose of this Agreement:

“Debt Incurrence” means any incurrence of any Indebtedness for Borrowed Money by any Group Member.

“Debt Incurrence Proceeds” means the cash proceeds of any Debt Incurrence (other than an Excluded Debt Incurrence) received or recovered by (or paid to the order of) any Group Member and after deducting:

in each case in relation to such Debt Incurrence.
“Equity Issuance” means:

“Equity Issuance Proceeds” means the cash proceeds of any Equity Issuance (other than an Excluded Equity Issuance) received or recovered by (or paid to the order of) any Group Member and after deducting:

Member (that is making such Equity Issuance) on arm’s length terms to any person (who is not a Group Member or an Affiliate of a Group Member); and

in each case in relation to such Equity Issuance.
“Excluded Debt Incurrence” means:

“Excluded Equity Issuance” means any Equity Issuance by a Group Member to another Group Member.

Section 5

Costs of Utilisation

9.         Interest

9.1       Calculation of Interest

The rate of interest on each Loan at any time during an Interest Period relating thereto is the percentage rate per annum which is the aggregate of:

(a)                Margin; and

(b)               the applicable LIBOR for such Loan and such Interest Period.

9.2       Payment of Interest

On the last day of each Interest Period relating to a Loan the Borrower shall pay accrued interest on that Loan.

9.3       Default Interest

9.4       Notification of Rates of Interest

The Common Facility Agent shall promptly notify the Lenders and the Borrower of the determination of a rate of interest under this Agreement.

10.       Interest Periods
10.1     Interest Periods

Common Facility Agent (acting on the instructions of all the Lenders)).

10.2    Non-Business Days

If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is no such next Business Day in that calendar month).

11.       Changes to the Calculation of Interest
11.1     Absence of Quotations

Subject to Clause 11.2 (Market Disruption), if LIBOR for any sum and any Interest Period relating thereto is to be determined by reference to the Reference Banks but a Reference Bank does not supply a quotation by noon (London time) on the Quotation Day for the currency of such sum and for such Interest Period, the applicable LIBOR shall be determined on the basis of the quotations of the remaining Reference Banks.

11.2    Market Disruption

determined by reference to the Reference Banks and none of the Reference Banks supplies a rate to the Common Facility Agent to determine LIBOR for that Loan and such Interest Period or (B) LIBOR for that Loan and such Interest Period is zero or negative; or

11.3    Alternative Basis of Interest or Funding

(b)       Any alternative basis agreed pursuant to paragraph (a) above shall, with the prior

consent of all the Lenders and the Borrower, be binding on all Parties.

11.4    Break Costs

12.       Fees

12.1   Commitment Fee

12.2   Agency Fee

The Borrower shall pay to the Transaction Agents (for their own accounts) an agency fee in the amounts and at the times agreed in a Fee Letter.

Section 6

Additional Payment Obligations

13.        Tax Gross Up and Indemnities

13.1       Definitions

“Tax Credit” means a credit against, relief or remission for, or repayment of any Tax.

“Tax Deduction” means a deduction or withholding for or on account of Tax from a

payment under a Finance Document, other than a FATCA Deduction.

“Tax Payment” means an increased payment made by an Obligor to a Finance Party under Clause 13.2 (Tax Gross-Up) or a payment under Clause 13.3 (Tax Indemnity).

13.2   Tax Gross-Up

13.3   Tax Indemnity

13.4   Tax Credit

If any Obligor party hereto makes a Tax Payment in respect of a Finance Party and that Finance Party determines that:

that Finance Party shall pay an amount to that Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had such Tax Payment not been required to be made by that Obligor.

13.5   Stamp Taxes

The Borrower shall:

provided that this Clause 13.5 shall not apply in respect of any stamp duty, registration or similar Taxes payable in respect of any assignment or transfer by a Finance Party of any of its rights or obligations under a Finance Document.

13.6   Indirect Tax

13.7   FATCA Information

(i)       confirm to that requesting Party:

Tax Obligor or FATCA FFI)), that Party shall notify that other Party as soon as reasonably promptly.

supply to the relevant Facility Agent:

statement, document, authorisation or waiver to the Borrower and the Common Facility Agent.

13.8   FATCA Deduction

14.       Increased Costs
14.1     Increased Costs

provided, that notwithstanding anything herein to the contrary, the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith shall be deemed to have been introduced after the Signing Date, regardless of the date enacted, adopted or issued.

The terms “law” and “regulation” in this paragraph (a) shall include, without limitation, any law or regulation concerning capital adequacy, prudential limits, liquidity, reserve assets or Tax.

(b)       In this Agreement:

(ii)       “Basel III” means:

(iii)       “CRD IV” means:

(iv)       “Increased Costs” means:

which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to the undertaking, funding or performance by

that Finance Party of any of its obligations under any Finance Document or any participation of that Finance Party in a Loan or any Unpaid Sum.

14.2    Increased Cost Claims

14.3   Exceptions

Clause 14.1 (Increased Costs) does not apply to any Increased Cost to the extent such Increased Cost is:

15.       Mitigation by the Lenders
15.1     Mitigation

15.2    Limitation of Liability

15.3     Conduct of Business by the Finance Parties
No provision of this Agreement will:

16.       Other Indemnities
16.1     Currency Indemnity

that Obligor shall (or if such Obligor is not party hereto, the Borrower shall procure that such Obligor will) as an independent obligation, within three Business Days of demand, indemnify each Finance Party to whom that Sum is due against any cost, loss or liability arising out of or as a result of such conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt or recovery of that Sum.

16.2   Other Indemnities

The Borrower shall (or shall procure that an Obligor will), within three Business Days of demand, indemnify each of the Finance Parties against any cost, loss or liability incurred by that Finance Party as a result of:

16.3    Indemnity to the Facility Agents

The Borrower shall (or shall procure that an Obligor will) promptly (and in any event within three Business Days of demand) indemnify each Facility Agent against:

16.4    Indemnity to the Security Agents

misconduct (as determined in a final non-appealable judgment of a court of competent jurisdiction)).

16.5   Continuation

Each indemnity given by any Obligor under or in connection with this Agreement or any other Finance Document is a continuing obligation, independent of such Obligor’s other obligations under or in connection with this Agreement or such other Finance Document and survives after this Agreement or such other Finance Document is terminated. It is not necessary for a person to pay any amount or incur any expense before enforcing an indemnity under or in connection with this Agreement or any other Finance Document.

17.       Costs and Expenses
17.1     Transaction Expenses

The Borrower shall promptly (and in any event within three Business Days of demand) pay each of the Administrative Parties the amount of all costs and expenses (including without limitation legal fees) reasonably incurred by any or all of them in connection with the negotiation, preparation, printing, execution, delivery and syndication of:

(a)                this Agreement and/or any other documents referred to in this Agreement; and/or

(b)               any other Finance Documents executed after the Signing Date. 17.2 Amendment Costs

If (a) an Obligor requests an amendment, waiver or consent or (b) an amendment is required pursuant to Clause 29.9 (Change of Currency), the Borrower shall, within three Business Days of demand, reimburse each of the Transaction Agents for the amount of all costs and expenses (including legal fees) reasonably incurred by it in responding to, evaluating, negotiating or complying with that request or requirement.

17.3    Enforcement Costs

The Borrower shall, within three Business Days of demand, pay to each Secured Party the amount of all costs and expenses (including legal fees) incurred by that Secured Party in connection with the enforcement of, or the preservation of any rights under any Finance Document and/or any Transaction Security, and/or any proceedings instituted by or against any Secured Party as a consequence of it entering into a Finance Document, taking or holding any Transaction Security, or enforcing those rights.

17.4    Security Agency Expenses

The Borrower shall promptly (and in any event within three Business Days of demand) pay each of the Security Agents the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with the administration, holding or release of any Transaction Security created pursuant to any Security Document.

Section 7
Guarantee

18.       Guarantee and Indemnity

18.1    Guarantee and Indemnity

Each Facility Guarantor irrevocably and unconditionally:

Notwithstanding anything to the contrary herein, upon any Automatic Acceleration Event any presentment, demand, protest or notice of any kind required by the foregoing clauses are expressly waived.

18.2    Continuing Guarantee

This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.

18.3   Reinstatement

If any discharge, release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by a Finance Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration or otherwise, without limitation, then the liability of each Facility Guarantor under this Clause 18 will continue or be reinstated as if the discharge, release or arrangement had not occurred.

18.4    Waiver of Defences

The obligations of each Facility Guarantor under this Clause 18 will not be affected by an act, omission, matter or thing which, but for this Clause 18, would reduce, release or prejudice any of its obligations under this Clause 18 (without limitation and whether or not known to it or any Finance Party) including:

(k)               any other circumstance that might constitute a defence of any Obligor.

18.5    Immediate Recourse

Each Facility Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Facility Guarantor under this Clause 18. This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.

18.6    Appropriations

Until (i) all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full and (ii) no Finance Party is under any obligation (whether actual or contingent) to provide any advance or financial accommodation to any Obligor under any Finance Document, each Finance Party (or any trustee or agent on its behalf) may:

18.7    Deferral of Facility Guarantor’s Rights

Until (i) all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full and (ii) no Finance Party is under any obligation (whether actual or contingent) to provide any advance or financial accommodation to any Obligor under any Finance Document and unless the Common Facility Agent otherwise directs, no Facility Guarantor will exercise or otherwise enjoy the benefit of any right which it may have by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 18:

If any Facility Guarantor shall receive any benefit, payment or distribution in relation to any such right it shall hold that benefit, payment or distribution (or so much of it as may be necessary to enable all amounts which may be or become payable to any Finance Party by the Obligors under or in connection with the Finance Documents to be paid in full) on trust for the Finance Parties, and shall promptly pay or transfer the same to the Common Facility Agent or as the Common Facility Agent may direct for application in accordance with Clause 29 (Payment Mechanics).

18.8    Additional Security

This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Finance Party.

18.9    Guarantee Limitation – Fraudulent Conveyance

Each Facility Guarantor and each Finance Party (by its acceptance of the benefits of this Clause 18) hereby confirms that it is its intention that this Clause 18 does not constitute a fraudulent transfer or conveyance for purposes of the U.S. Bankruptcy Code, the U.S. Uniform Fraudulent Conveyance Act of any similar federal or state law. To effectuate the foregoing intention, each Facility Guarantor and each Finance Party (by its acceptance of the benefits of this Clause 18) hereby irrevocably agrees that the obligations of each other Obligor under the Finance Documents guaranteed by such Facility Guarantor shall be limited to such amount as will, after giving effect to such maximum amount and all other (contingent or otherwise) liabilities of such Facility Guarantor that are relevant under such laws and after giving effect to any rights to contribution pursuant to any agreement providing for an

equitable contribution among such Facility Guarantor and the other Facility Guarantors, result in the obligations guaranteed by such Facility Guarantor in respect of such maximum amount not constituting a fraudulent transfer or conveyance.

Section 8

Representations, Undertakings and Events of Default

19.    Representations

Each Corporate Obligor party hereto makes the representations and warranties set out in this Clause 19 to each Finance Party on the Signing Date.

Each of Mr Han and Mrs Han makes the representations and warranties set out in this Clause 19 (other than those set out under paragraph (a) to (c) of Clause 19.1 (Status), paragraph (b) of Clause 19.3 (Non-Conflict with other Obligations), Clause 19.11 (Financial Statements), Clause 19.15 (Authorised Signatories), Clause 19.20 (Environmental Compliance), Clause 19.28 (Accounting Reference Date) and Clause 19.29 (ERISA Compliance)) to each Finance Party on the Signing Date.

19.1     Status

and no order has been made or receiver appointed in respect of him under any mental health laws in the relevant jurisdiction of residence (nor has any step or procedure been taken in any other jurisdiction which would restrict his ability or legal capacity to enter into any Finance Document to which he is party or would require the approval of a third party or an authority).

19.2    Binding Obligations

Subject to the Legal Reservations:

19.3    Non-Conflict with other Obligations

The entry into and performance by any Obligor of, and the transactions contemplated by, the Finance Documents to which it is a party do not and will not:

19.4   Power and Authority

19.5    Validity and Admissibility in Evidence
All Authorisations required or desirable:

have been obtained or effected and are in full force and effect (subject to, in the case of the Security Documents, completion of the applicable Perfection Requirements which are not overdue).

19.6    Governing Law and Enforcement
Subject to the Legal Reservations:

19.7   Deduction of Tax

In respect of each Obligor, it is not required under the laws of its Relevant Jurisdictions to make a Tax Deduction from any payment it may make under any Finance Document except for the payment of Taxes as set out in the applicable Finance Document or the applicable Legal Opinion(s) to which such Finance Document relates.

19.8    No Filing or Stamp Taxes

In respect of each Obligor, under the law of its Relevant Jurisdictions, it is not necessary that any of the Finance Documents be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration, notarial or similar Taxes or fees be paid on or in relation to any or all of the Finance Documents or the transactions contemplated by the Finance Documents except for any filing, recording or enrolling (or the payment of Taxes or fees payable) in relation to any Transaction Security as specified in the relevant Security Document which will be made and/or paid within the time limits specified therein.

19.9   No Default

19.10 No Misleading Information

19.11  Financial Statements

19.12  No Insolvency or Insolvency Proceedings
No:

has been taken or, to the best of its knowledge, threatened in relation to any Obligor or any Group Member, and none of the circumstances described in paragraphs (a), (b) or (c) (in relation to Corporate Obligors) and paragraph (d) (in relation to Mr Han and Mrs Han) of Clause 23.7 (Insolvency) applies to any Obligor or any Group Member.

19.13  Pari Passu Ranking

19.14  No Proceedings Pending or Threatened

No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency which, if adversely determined, have or might have a Material Adverse Effect have (to the best of its knowledge and belief after making due enquiries) been started or threatened, or are pending, against any Obligor or any Group Member.

19.15  Authorised Signatures

Any person specified as an authorised signatory of any Corporate Obligor under Schedule 2 (Conditions Precedent) or paragraph (e) of Clause 20.6 (Information: Miscellaneous) is authorised to sign each Utilisation Request (in the case of the Borrower) and other notices on behalf of such Corporate Obligor.

19.16  Good Title to Assets

Each of the Obligors and the Group Members has a good, valid and marketable title to, or valid leases or licences of, or is otherwise entitled to use, the assets necessary to carry on its business as presently conducted.

19.17  Legal and Beneficial Ownership

19.18  No Immunity

In any proceedings taken in any Relevant Jurisdiction of any Obligor in relation to any Finance Document, no Obligor will be entitled to claim for itself or any of its assets immunity from suit, execution, attachment or other legal process.

19.19  Private and Commercial Acts

The execution of the Finance Documents to which any Obligor is a party constitutes, and its exercise of its rights and performance of its obligations thereunder will constitute, private and commercial acts done and performed for private and commercial purposes.

19.20  Environmental Compliance

19.21 Taxation

19.22   Sanctions, Anti-Bribery and Corruption Laws, Anti-Money Laundering Laws and Anti-Terrorism Laws

conducted any activities or business dealings, directly or indirectly, with or for the benefit of a Restricted Party.

and no action, suit, proceeding, arbitration, litigation, regulatory or criminal investigation involving any Obligor or any Group Member or, to the best of its knowledge and belief (having made due and careful enquiry), any director, officer, agent, representative or employee of, any person acting on behalf of, or any Affiliate of, any Obligor or any Group Member with respect to any Anti-Money Laundering Laws or Anti-Terrorism Laws is pending or (to the best of its knowledge and belief (having made due and careful enquiry)) threatened or contemplated.

(ii)               detect incidences of bribery and corruption.
19.23  No Breach of Laws

19.24  Security and Financial Indebtedness

19.25  Outbound Security for Offshore Lending

No outstanding debt or payment obligation or other amount (however described) is owed by or outstanding from any person located outside the PRC to Heilongjiang Xinda, Mr Han or Mrs Han (whether as a subrogated creditor or otherwise) arising from any enforcement of (or, as the case may be, any claim under or in respect of) any Nei Bao Wai Dai Transaction under which Heilongjiang Xinda, Mr Han or Mrs Han has provided any guarantee or security.

19.26  Group Structure Chart

The Group Structure Chart delivered to the Common Facility Agent pursuant to Clause 4.1 (Initial Conditions Precedent) is true, complete and accurate in all material respects and shows each Group Member, including, in each case, its current name and its jurisdiction of incorporation or establishment.

19.27  Intellectual Property

Each of the Obligors and the Group Members:

19.28  Accounting Reference Date

The end of each financial year of each of the Listco, the Borrower, the BVI Guarantor, the HK Guarantor, the UAE Guarantor and Heilongjiang Xinda is 31 December.

19.29  ERISA Compliance

contributions to any Plan subject to section 4064(a) of ERISA to which it made contributions. No Corporate Obligor, no Subsidiary of any Corporate Obligor and no ERISA Affiliate has incurred or reasonably expects to incur any liability to PBGC save for any liability for premiums due in the ordinary course or other liability which would not reasonably be expected to have a Material Adverse Effect, and no lien imposed under the US Revenue Code or ERISA on the assets of any Corporate Obligor, any Subsidiary of an Corporate Obligor or any ERISA Affiliate exists or is likely to arise on account of any Plan. No Corporate Obligor, no Subsidiary of any Corporate Obligor and no ERISA Affiliate has any liability under section 4069 or 4212(c) of ERISA.

19.30 Federal Reserve Regulations

19.31 Investment Companies

No Corporate Obligor, person controlling a Corporate Obligor or Subsidiary of a Corporate Obligor is or is required to be registered as an “investment company” under the U.S. Investment Company Act of 1940, as amended. Neither the making of any Utilisation nor the application of the proceeds or repayment thereof by any Corporate Obligor, nor the consummation of the other transactions contemplated hereby, will violate any provision of such Act or any rule, regulation or order of the US Securities and Exchange Commission thereunder.

19.32 Solvency

On and as of the date of this Agreement and after giving effect to the transactions contemplated by the Finance Documents:

For purposes of this Clause 19.32, the amount of any contingent liability at any time shall be computed as the amount that would reasonably be expected to become an actual or matured liability.

19.33 Insurance

All of the insurances required to be effected pursuant to Clause 22.16 (Insurance) have been so effected and remain in full force and effect.

19.34 No Adverse Consequences

(a)       It is not necessary under the laws of its Relevant Jurisdictions:

that any Finance Party should be licensed, qualified or otherwise entitled to carry on business in any of its Relevant Jurisdictions.

19.35 Holding Companies

Before the first Utilisation Date, none of the Borrower, the BVI Guarantor or the HK Guarantor has traded, carries on any business, owns any assets or has incurred any liabilities except for:

19.36 No Intra-Group Loans

Other than the intra-group Financial Indebtedness set forth in Schedule 8 (Intra-Group Financial Indebtedness), there is no loan, advance or any other Financial Indebtedness made available by the Borrower and/or any Guarantor to a Group Member or any of their direct or indirect shareholder or Affiliate and/or made available to the Borrower and/or any Guarantor by a Group Member or any of their direct or indirect shareholder or Affiliate as of the Signing Date.

19.37 Repetition

(a)       All of the representations and warranties set out in this Clause 19 are deemed to be

made by each Obligor party hereto in favour of each Finance Party on:

(i)                 the date of each Utilisation Request; and

(ii)               each Utilisation Date.

20.       Information Undertakings

The undertakings in this Clause 20 remain in force from the Signing Date for so long as any amount is outstanding under the Finance Documents or any Commitment (or any commitment represented thereby) is in force.

20.1   Financial Statements

Each Corporate Obligor party hereto shall supply or procure the supply to the Common Facility Agent in sufficient copies for all the Lenders:

unaudited unconsolidated financial statements of the Borrower, the BVI Guarantor, the HK Guarantor, the UAE Guarantor, Heilongjiang Xinda, Heilongjiang XDCM and Sichuan Xinda for such financial quarter,

provided that no financial statements of the Listco shall be required to be supplied to the Common Facility Agent in accordance with this Clause 20.1 before such financial statements are made available to NASDAQ.

20.2   Compliance Certificate

20.3   Requirements as to Financial Statements

Any reference in this Agreement to those financial statements shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the audited Original Financial Statements of the Listco for the financial year ended 31 December 2018 and the unaudited Original Financial Statements for the financial year ended 30 June 2019 of the Listco, the UAE Guarantor or Heilongjiang Xinda (as applicable) were prepared.

20.4   Year-End

Each Obligor party hereto shall procure that the last day of each financial year of the Listco, the Borrower, the BVI Guarantor, the HK Guarantor, the UAE Guarantor, Heilongjiang Xinda and the Group (on a consolidated basis) falls on 31 December.

20.5    ERISA-Related Information

The Borrower shall supply to the Common Facility Agent (in sufficient copies for all the Lenders, if the Common Facility Agent so requests):

ERISA Affiliates were to withdraw completely from any and all Multiemployer Plans,

20.6    Information: Miscellaneous 

Each Obligor party hereto shall supply to the Common Facility Agent (in sufficient copies for all the Lenders, if the Common Facility Agent so requests) and (where contemplated below) any of the Security Agents:

20.7    Notification of Default

20.8   “Know your customer” Checks

21.       Financial Covenants

The undertakings in this Clause 21 remain in force from the Signing Date for so long as any amount is outstanding under the Finance Documents or any Commitment (or any commitment represented thereby) is in force.

21.1     Financial Definitions
In this Agreement:

“Borrowings” means, at any time, the aggregate outstanding principal, capital or nominal amount (and any fixed or minimum premium payable on prepayment or redemption) of any indebtedness of Group Members for or in respect of Indebtedness for Borrowed Money.

“Cash” means, in relation to a Group Member at any time, cash at bank credited to an account in the name of such Group Member and to which such Group Member is alone (or together with other Group Members) beneficially entitled.

“Consolidated EBITDA” means, for any period, the consolidated operating profit of the Group for that period from ordinary activities before taxation:

in each case (without double counting and so that no amount shall be included or excluded more than once) to the extent otherwise deducted (in the case of (a), (c) or (to the extent of any loss referred to therein) (e)), included (in the case of (b), (to the extent of any profit referred to therein) (e) or (f)) or taken into account (in the case of (d), (g), (h), (i) or (j)), as the case may be, for the purposes of determining the consolidated operating profit of the Group from ordinary activities before taxation for such period.

“Consolidated Finance Charges” means, for any period, the aggregate amount of interest, commission, fees, discounts, prepayment fees, premiums or charges and other finance payments in respect of Borrowings whether accrued, paid or payable and whether or not capitalised by any Group Member (calculated on a consolidated basis) in respect of that period:

“Consolidated Tangible Net Worth” means at any time the aggregate of the amounts paid up or credited as paid up on the issued ordinary share capital of the Listco and the aggregate amount standing to the credit of the reserves of the Group:

“Consolidated Total Assets” means, at any time, the total assets of the Group (on a consolidated basis) as at such time (as determined by reference to the then most recent consolidated financial statements of the Group delivered to the Common Facility Agent under this Agreement).

“Consolidated Total Liabilities” means, at any time, the total liabilities of the Group (on a consolidated basis, but for the purposes of this definition, after completion of the Privatisation, excluding the liabilities under the Privatisation Facility) as at such time (as determined by reference to the then most recent consolidated financial statements of the Group delivered to the Common Facility Agent under this Agreement).

“Interest Cover” means, in respect of any period, the ratio of Consolidated EBITDA to Consolidated Finance Charges for that period.

“Non-Group Entity” means any investment or entity (which is not itself a Group Member (including associates and Joint Ventures)) in which any Group Member has an ownership interest.

21.2    Financial Condition

The Borrower shall ensure that:

21.3   Financial Testing

22.       General Undertakings

The undertakings in this Clause 22 remain in force from the Signing Date for so long as any amount is outstanding under any of the Finance Documents or any Commitment (or any commitment represented thereby) is in force.

22.1   Authorisations

Each Obligor party hereto shall (and each Obligor party hereto shall procure that each of the other Group Members will) promptly:

22.2    Compliance with Laws

Each Obligor party hereto shall (and each Obligor party hereto shall procure that each of the other Group Members will) comply in all respects with all laws and regulations to which it may be subject, if failure so to comply has or might have a Material Adverse Effect.

22.3   Pari Passu Ranking

22.4   Negative Pledge

In this Clause 22.4, “Quasi-Security” means any arrangement or transaction described in paragraph (b) below.

in circumstances where such arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of any asset.

(c)       Paragraphs (a) and (b) above do not apply to:

22.5   Disposals

(b)       Paragraph (a) above does not apply to any sale, lease, transfer or other disposal:

22.6  Merger

22.7   Subordination and Assignment

22.8   Change of Business

Each Corporate Obligor party hereto shall procure that no material change is made to the general nature or scope of the business of any Obligor, or that of the Group taken as a whole, from that carried on at the Signing Date.

22.9   Environmental Compliance

Each Corporate Obligor party hereto shall (and each Obligor party hereto shall procure that each other Group Member will):

where failure to do so has or might have a Material Adverse Effect.
22.10  Environmental Claims

Each Corporate Obligor party hereto shall as soon as reasonably practicable upon becoming aware of the same, inform the Common Facility Agent in writing of:

in each case where such Environmental Claim, if adversely determined, has or might have a Material Adverse Effect.

22.11  Acquisitions, Joint Venture and Capital Expenditure

22.12 Loans and Guarantees

(b)       Paragraph (a) above shall not apply to:

22.13  Share Capital

22.14   Dividends and Share Redemption

22.15   Arm’s Length Basis

No Corporate Obligor party hereto shall, and each Obligor party hereto shall procure that no other Group Member will enter into any arrangement, agreement or commitment with or in favour of any person or pay any fees, commissions or other sums on any account whatsoever to any person other than:

22.16   Insurance

Each Corporate Obligor party hereto shall (and each Obligor party hereto shall procure that each other Group Member will) maintain or procure to be maintained with reputable insurers insurances on and in relation to its business and assets:

(b)               against those risks required by applicable law or by contract.
22.17   Maintenance of Listing Status

22.18   Anti-Bribery and Corruption Laws

22.19   Sanctions, Anti-Terrorism Laws and Anti-Money Laundering Laws

would cause any Obligor, any Group Member or any Finance Party to be in violation of, any of the applicable prohibitions set forth in any Sanctions, Anti-Money Laundering Laws or Anti-Terrorism Laws.

22.20 Taxation

Each Obligor party hereto shall (and each Obligor party hereto shall ensure that each other Group Member will) pay and discharge all Taxes imposed upon it or its assets within the time period allowed without incurring penalties unless and only to the extent that:

22.21  Intellectual Property

Each Corporate Obligor party hereto shall, and each Obligor party hereto shall ensure that each other Group Member will: