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FORM 8-K
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XERIUM TECHNOLOGIES, INC.
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(Exact name of registrant as specified in its charter)
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Delaware
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001-32498
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42-1558674
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(State or other jurisdiction of incorporation or organization)
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(Commission File Number)
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(I.R.S. Employer Identification No.)
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14101 Capital Boulevard, Youngsville, Raleigh, North Carolina 27596
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(Address of Principal Executive Offices)(Zip Code)
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Registrant's telephone number, including area code: (919) 526-1400
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(Former name or former address, if changed since last report.)
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
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£
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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£
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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£
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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£
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 2.03
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Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
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Item 9.01
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Financial Statements and Exhibits
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Exhibit No.
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Description
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10.1
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Translated version of Fixed Asset Loan Agreement by and between Xerium China, Co., Ltd and Industrial and Commercial Bank of China Limited, Shanghai-Jingan Branch dated July 17, 2015.
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10.2
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Translated version of Guarantee Agreement between Stowe Woodward (Changzhou) Roll Technologies Co. Ltd. and Industrial and Commercial Bank of China Limited, Shanghai-Jingan Branch dated July 17, 2015.
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10.3
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Translated version of Guarantee Agreement between Xerium Asia Pacific (Shanghai) Limited and Industrial and Commercial Bank of China Limited, Shanghai-Jingan Branch dated July 17, 2015.
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XERIUM TECHNOLOGIES, INC.
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Date:
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July 22, 2015
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By:
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/s/ Clifford E. Pietrafitta
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Name:
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Clifford E. Pietrafitta
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Title:
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EVP and Chief Financial Officer
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Exhibit No.
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Description
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10.1
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Translated version of Fixed Asset Loan Agreement by and between Xerium China, Co., Ltd and Industrial and Commercial Bank of China Limited, Shanghai-Jingan Branch dated July 17, 2015.
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10.2
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Translated version of Guarantee Agreement between Stowe Woodward (Changzhou) Roll Technologies Co. Ltd. and Industrial and Commercial Bank of China Limited, Shanghai-Jingan Branch dated July 17, 2015.
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10.3
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Translated version of Guarantee Agreement between Xerium Asia Pacific (Shanghai) Limited and Industrial and Commercial Bank of China Limited, Shanghai-Jingan Branch dated July 17, 2015.
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Person in Charge:
Xiaochun Wu
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Contact Person:
Yi Chen
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Address:
No.699 Kangding Road
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Post Code:
200040
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Telephone:
021-32184610
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Fax:
021-32180349
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Email:
N/A
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Legal Representative:
Wang Wern Lirn
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Contact Person:
Kelvin Zhang
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Address:
No.681 West Yingbin Road, Bacheng Town
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Post Code:
215311
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Telephone:
512-3687-5602
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Fax:
512-3669-0966
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Email:
N/A
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Article 1
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Purpose of Loan
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Article 2
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Amount and Term of Loan
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2.1
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The currency and amount of the loan hereunder shall be
58.5 million yuan
(in words:
RMB58,500,000
) (if there is any inconsistency between the amount in figures and the amount in words, the amount in words shall prevail.)
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2.2
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The term of the loan hereunder shall be
5 years (from ____July 2015 to June 19, 2020)
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
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Determination of Interest Rate for RMB Loans
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(1)
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Fixed interest rate at
N/A
% per annum, which shall remain unchanged within the term of this Contract.
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(2)
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Floating interest rate. The loan interest rate shall be the benchmark interest rate plus the floating margin, where the benchmark interest rate shall be the benchmark lending interest rate as published by the People’s Bank of China on
drawdown date
(drawdown date/effective date of this Contract) corresponding to the term of loan as stated in Article 2.2, and the floating margin shall be floating up
10%
(
floating up/floating down/zero
). After the drawdown, the loan interest rate will be adjusted every
12
(
1/3/6/12
) month(s) (
Interest Period
) 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. The loan 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 loan interest rate for such Interest Period shall be determined on the last day of such month of adjustment. If the Borrower makes more than one drawdown, the loan interest rate shall be determined in accordance with Item
A
below:
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A.
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regardless of the number of drawdown made in an Interest Period, the loan interest rate for each of such drawdown shall be the loan interest rate applicable to such Interest Period as determined on the interest rate determination date of such Interest Period and will be adjusted simultaneously in each of the following Interest Periods; or
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B.
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the loan interest rate for each drawdown shall be determined and adjusted separately.
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(3)
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Others
:
N/A
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3.2
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Determination of Interest Rate for Foreign Currency Loans
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(1)
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Fixed interest rate at
N/A
% per annum, which shall remain unchanged within the term of this Contract.
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(2)
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Floating interest rate. The loan interest rate shall be
N/A
month
N/A
(LIBOR/HIBOR) (the benchmark interest rate) plus a margin equal to
N/A
base point(s) (a base point is equal to 0.01%). The margin shall remain unchanged within the term of this Contract. After the Borrower makes drawdown, the benchmark interest rate will be adjusted in accordance with Item
/
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:
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A.
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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
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B.
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the benchmark interest rate for each interest period shall be adjusted on the first day of such interest period.
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(3)
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Others:
N/A
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3.3
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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.
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3.4
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Penalty interest will be imposed in addition to the loan interest rate hereunder at
40
% on any overdue amount (overdue penalty interest rate), or at
70
% on any amount that is used for any purpose other than those set out hereunder (misappropriation penalty interest rate).
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3.5
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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
N/A
% per annum, and shall be paid in accordance with Item
N/A
below:
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(1)
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the commitment fee shall be paid to the Lender in one lump sum upon the expiry date of the Fee Period; or
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(2)
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the commitment fee shall be paid to the Lender in installments on 20th day of
N/A
(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.
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Article 4
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Drawdown
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Article 5
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Repayment
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5.1
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The Borrower shall repay the loan 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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5.2
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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:
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5.3
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Except for the event under Article 5.2 above, if the Borrower prepays any amount of the loan hereunder, the Borrower shall pay to the Lender a compensation, which shall be calculated as follows: the prepaid amount X the remaining term of the loan (number of months) X
N/A
‰ (for the purpose of this paragraph, if the remaining term of the loan is less than one month, it shall be deemed as one month)
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Article 6
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Special Provisions in Relation to Revolving Loans
(optional clause: this article is not applicable)
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Article 7
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Security
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7.1
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The loan hereunder is a(n)
secured
(secured/unsecured) loan.
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7.2
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If the loan hereunder is a secured loan, a separate security contract will be further executed in relation to such security. 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:
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Article 8
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Financial Covenants
(optional clause: this article is □applicable/
■
not applicable)
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Article 9
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Dispute Resolution
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(1)
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Such dispute shall be submitted to
N/A
Arbitration Commission for arbitration at
N/A
(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
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(2)
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Such dispute shall be submitted to the jurisdiction of the competent court of place where the Lender is located.
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Article 10
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Miscellaneous
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10.1
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This Contract is made in
5
copies, with each of the Borrower, the Lender and
Security Provider
holding
2, 1, 1
copy(ies), each of which shall have equal legal effect.
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10.2
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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:
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Article 11
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Other Matters Agreed by the Parties
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Article 1
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Interest Rate and Interest
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1.3
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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.
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1.4
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If interest is settled on a monthly basis, the settlement date shall be 20
th
day of each month; if interest is settled on a quarterly basis, the settlement date shall be 20
th
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.
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1.5
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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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1.6
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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.
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1.7
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If the People’s Bank of China adjusts the method to determine the loan interest rates, which is applicable to the loan hereunder, relevant provisions of the People’s Bank of China in relation to such adjustment shall apply to this Contract without requiring any further notice from the Lender to the Borrower.
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1.8
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If the loan interest rate applicable hereunder upon the execution of this Contract is the applicable benchmark lending interest rate as published by the People’s Bank of China floating down by a certain percentage, the Lender may review such preferential interest rate to the Borrower on an annual basis, and decide at its own discretion to cancel all or part of such preferential rate to the Borrower in accordance with the changes of the government policies, the Borrower’s creditworthiness and the security provided for the loan, and shall promptly notify the Borrower of such decision.
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Article 2
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Advance and Payment of Loan
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2.6
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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:
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2.7
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Conditions precedent to the first drawdown:
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(1)
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the project for which the loan will be used (the
Project
) has been approved or verified by or registered with competent authorities, unless the Project is exempted under relevant regulations from obtaining relevant approval or verification or completing relevant registration prior to the advance of the loan;
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(2)
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the capital of or other funds to be raised for the Project have been fully contributed and paid in accordance with the agreed schedule and percentage;
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(3)
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except for unsecured loans, the Borrower has provided security as required by the Lender and completed relevant formalities for provision of such security;
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(4)
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the drawdown notice has been submitted to the Lender in accordance with this Contract; and
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(5)
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other materials relating to this loan project required by the Lender have been submitted to the Lender.
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2.8
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For each subsequent drawdown, the Borrower shall also satisfy the following conditions, in addition to the conditions precedent to the first drawdown:
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(1)
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if the capital of the Project is contributed in installments, the current installment has been fully contributed in accordance with the agreed percentage;
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(2)
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the Project is not over budget or the over-budget item has been funded by the Borrower;
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(3)
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the progress of the Project is in compliance with the construction schedule, and the actual progress of the Project is consistent with the amount which has been invested into the Project;
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(4)
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there is no default event occurring under this Contract or any other contract between the Borrower and the Lender; and
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(5)
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the purpose of loan as stated in the supporting documents provided by the Borrower is consistent with the purpose as agreed hereunder.
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2.9
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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.
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2.10
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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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2.11
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If the Lender agrees to advance the loan to the Borrower after reviewing the Borrower’s application, 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.
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2.12
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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
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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 one 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 amount to be paid by the Borrower, the Lender may decide the priority sequence of each item to be settled.
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3.2
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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 at least 10 bank business days prior to such prepayment. The Borrower shall specify in he written application the prepayment date. If the Lender needs to postpone the prepayment for it to complete its internal procedures, the Lender must notify the Borrower in time, provided that the postponed prepayment date shall never be later than the fifth Bank Business Day following the prepayment date specified by the Borrower in the application.
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3.3
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The Borrower shall fully pay on the prepayment date all principal and interest due and payable as of such prepayment date hereunder.
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3.4
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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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4.4
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If the loan hereunder is provided on a revolving basis, the first Revolving Period shall commence from the first drawdown date, and each subsequent Revolving Period shall commence from the same numerical date in the month immediately following the expiry of the preceding Revolving Period as the first drawdown date, or if there is no such same numerical date in the first month of a Revolving Period as the first drawdown date, the last day of such month. The Revolving Period, once determined, may not be adjusted without consent of the Lender.
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4.5
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The amount of outstanding loans in any subsequent Revolving Period after the first Revolving Period shall be less than the amount of outstanding loans in the preceding Revolving Period. Upon expiry of each Revolving Period, the Borrower shall repay the loans in accordance with the agreed repayment schedule. The loan may not be used on a revolving basis within a Revolving Period.
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4.6
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If a RMB denominated revolving loan adopts a floating interest rate, the benchmark interest rate shall be determined in accordance with the benchmark lending interest rate as published by the People’s Bank of China corresponding to the Revolving Period.
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Article 5
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Security
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5.1
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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.
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5.2
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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.
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5.3
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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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Insurance
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6.3
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The Borrower shall effect insurance with an insurance company acceptable to the Lender to cover the risks in relation to the equipment, engineering and construction, cargo transportation and the construction and operation period of the Project as required by the Lender. The type and term of the insurance shall comply with the Lender’s requirement and the insurance amount shall be sufficient to cover the loan risks.
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6.4
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The Borrower shall maintain such insurance effective and in force throughout the term of this Contract, failing which, the Lender may renew or effect relevant insurance at the Borrower’s cost. If the Borrower and relevant party intends to make any substantial amendment to or early terminate any insurance policy, the Borrower shall notify and obtain approval from the Lender at least 30 days prior to such amendment or termination, failing which, the Borrower shall indemnify the Lender against all losses incurred by the Lender due to such suspension or termination of the insurance or such amendment to the insurance policy.
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6.5
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It shall be provided under the insurance policy that the Lender shall be the first beneficiary and the insurer shall directly pay the insurance proceeds to the Lender. The insurance policy may not contain any clause which restricts any right or interest of the Lender.
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6.6
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The Borrower shall notify the Lender in writing of any insured event within 3 days from the date on which the Borrower knows or should know the occurrence of such insured event, and promptly submit a claim to the insurer in accordance with the insurance contract.
The insurance proceeds shall be first used to early repay the loans hereunder, or upon approval of the Lender, be used to recover the value of the Project, or be deposited into an account designated by the Lender as a security deposit to secure the performance of the Borrower’s obligations hereunder.
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Article 7
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Representations and Warranties
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7.1
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The Project and its related borrowing is in compliance with applicable laws and regulations.
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7.2
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It is eligible to act as a borrower hereunder, and has all qualifications and capacity to enter into and perform this Contract.
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7.3
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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.
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7.4
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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.
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7.5
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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.
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7.6
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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.
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7.7
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The financial and accounting reports provided by the Borrower to the Lender are prepared in accordance with the general accepted accounting principle of the PRC 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.
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7.8
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It has not concealed from the Lender any litigation, arbitration or claim involving the Borrower.
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Article 8
|
Undertakings of the Borrower
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8.1
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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 securities or futures market, or any other purpose prohibited or restricted by applicable laws and regulations.
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8.2
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The Borrower undertakes to settle principal, interest and any other amount payable in relation to the loan hereunder in accordance with this Contract.
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8.3
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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.
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8.4
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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 assist and cooperate with the Lender in investigating, understanding and supervising its production, operation and financial conditions.
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8.5
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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.
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8.6
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The Borrower undertakes to promptly notify the Lender upon occurrence of any of the following events:
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(1)
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any change to its articles of association, business scope, registered capital or legal representative;
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(2)
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its winding-up, dissolution, liquidation, suspension of business, revocation or cancellation of its business licence, or application (or being applied for) for bankruptcy;
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(3)
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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
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(4)
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any of its shareholders, directors or current senior management personnel is suspected of major crime or involved in any material economic dispute.
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8.7
|
The Borrower undertakes to disclose its related party relationship and related transaction to the Lender in a prompt, complete and accurate manner.
|
|
8.8
|
The Borrower undertakes to promptly confirm receipt of all notices sent by the Lender by post or any other means.
|
|
8.9
|
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 create any security to the benefit of any third party over any assets formed by the loans hereunder, without approval of the Lender.
|
|
8.10
|
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.
|
|
8.11
|
The Borrower undertakes to cooperate with the Lender in its involvement with the review of the budget estimate, budget and final account, construction bidding process and completion inspection and acceptance of the Project.
|
|
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.
|
|
Article 9
|
Undertakings of the Lender
|
|
9.3
|
The Lender undertakes to advance the loan to the Borrower in accordance with this Contract.
|
|
9.4
|
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.
|
|
Article 10
|
Default
|
|
10.2
|
The Borrower will be in default if any of the following events occurs:
|
|
(1)
|
The Borrower fails to repay any principal, interest or other amount payable in relation to the loan hereunder in accordance with this Contract;
|
|
(2)
|
the Borrower is or may be under winding-up, dissolution, liquidation, suspension of business, or its business license has been or may be revoked or cancelled, or it has applied or been applied, or may apply or be applied, for bankruptcy;
|
|
10.3
|
The Borrower will be in default if any of the following events occurs and fails to be cured before the fixed date allowed by the Lender:
|
|
(1)
|
the Borrower fails to perform any obligation under this Contract other than the obligations under the Clause 10.1(1) above or violates any representation, guarantee or undertaking under this Contract,
|
|
(2)
|
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;
|
|
(3)
|
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;
|
|
(4)
|
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;
|
|
(5)
|
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;
|
|
(6)
|
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;
|
|
(7)
|
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;
|
|
(8)
|
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;
|
|
(9)
|
the capital of the Project fails to be contributed in accordance with the agreed schedule or percentage, or the deficiency in such contribution fails to be made up within the period as prescribed by the Lender;
|
|
(10)
|
the construction of the Project fails to progress or be completed in accordance with the agreed schedule, or the construction or operation environment or condition of the Project suffers any material adverse change;
|
|
(11)
|
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
|
|
(12)
|
other events that may cause adverse impact on realization of the Lender’s claim hereunder.
|
|
10.4
|
If the Borrower is in default, the Lender may take any one or more of the following steps:
|
|
(5)
|
the Lender may require the Borrower to remedy its default within a designated period;
|
|
(6)
|
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;
|
|
(7)
|
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;
|
|
(8)
|
the Lender may require the Borrower to compensate the Lender against direct losses caused by such default of the Borrower; and
|
|
(9)
|
other steps that are set out under applicable laws and regulations, agreed under this Contract or deemed necessary by the Lender.
|
|
10.5
|
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 to the date when the due amount is actually paid off. Compound interest will accrue at the overdue penalty interest rate on any interest that the Borrower fails to pay when it becomes due.
|
|
10.6
|
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.
|
|
10.7
|
If both of the penalty interest rates under Articles 10.4 and 10.5 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.
|
|
10.8
|
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.
|
|
10.9
|
If the control relationship between the Borrower and its related party in China (including Hong Kong, Macau and Taiwan) has changed, or any related party of the Borrower in China (including Hong Kong, Macau and Taiwan) is in any event under Article 10.2, and the Lender has evidence showing that such change or event has affected or may affect performance of the Borrower’s obligations hereunder, in the event that such change or event is not cured within the cure period allowed by the Lender (at least three business days), the Lender may take all steps as set out under this Contract.
|
|
Article 11
|
Deduction and Setoff
|
|
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.
|
|
Article 12
|
Transfer of Rights and Obligations
|
|
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.
|
|
Article 13
|
Effectiveness, Amendment and Termination
|
|
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.
|
|
Article 14
|
Governing Law and Dispute Resolution
|
|
Article 15
|
Entire Agreement
|
|
Article 16
|
Notices
|
|
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.
|
|
Article 17
|
Miscellaneous
|
|
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 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.
|
|
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.
|
|
I.
|
We intend to draw down a loan equal to ________ (currency) ________________ (amount) on _____________________.
|
|
II.
|
The term of loan under this notice is _______________, and the maturity date is _______________.
|
|
III.
|
Please remit the loan to the following account:
|
|
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.
|
|
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.
|
|
Creditor
(Party A): |
Industrial and Commercial Bank of China Limited, Shanghai-Jingan Branch
|
|
Person in Charge:
|
Xiaochun Wu
|
|
Business Address:
|
No.699 Kangding Road
|
|
Telephone and Fax:
|
021-32184610
|
|
|
|
|
Guarantor:
|
Stowe Woodward (Changzhou) Roll Technologies Co.,Ltd.
(
Party B
)
|
|
Legal Representative:
|
WANG WERN LIRN
|
|
Business Address or Domicile:
|
No.49 Tianshan Road, Xinbei District, Changzhou, Jiangsu, China
|
|
Telephone and Fax:
|
__________________
|
|
|
|
|
1.1
|
The indebtedness secured by the guarantee granted by Party B hereunder is the indebtedness owed by
Xerium China Co., Ltd
(the
Debtor
) to Party A under a principal contract named
Fixed Assets Loan Contract
(No.:_______________) dated _______________ between Party A and the Debtor.
|
|
1.2
|
The secured indebtedness shall bear the amount and term as provided under the above‑mentioned principal contract.
|
|
4.1
|
If the Principal Contract is a loan contract, the guarantee term is two years commencing from the day immediately following the maturity or (where Party A accelerates the loan in accordance with the Principal Contract) the accelerated maturity of the loan tenor under the Principal Contract.
|
|
4.2
|
If the Principal Contract is a bank acceptance contract, the guarantee term is two years commencing from the day immediately following Party A’s honoring of the relevant draft under the Principal Contract.
|
|
4.3
|
If the Principal Contract is a security provision agreement, the guarantee term is two years commencing from the day immediately following Party A’s performance of its security obligations under the Principal Contract.
|
|
4.4
|
If the Principal Contract is an agreement to issue a letter of credit, the guarantee term is two years commencing from the day immediately following Party A’s making of a payment under the relevant letter of credit.
|
|
4.5
|
If the Principal Contract is a financing document other than those described above, the guarantee term is two years commencing from the day immediately following the maturity or the accelerated maturity of the secured indebtedness under the Principal Contract.
|
|
5.1
|
Party B is eligible to grant the guarantee and has obtained all necessary authorizations or approvals required in connection with granting the guarantee in favor of Party A in accordance with the procedures and authority set forth in its articles of association. The guarantee does not violate any laws, regulations or other relevant rules.
|
|
5.2
|
If Party B is a listed company or a controlled subsidiary of a listed company, it has promptly performed its disclosure obligations regarding the guarantee in accordance with the relevant laws, regulations and rules, such as the PRC Securities Law and the Listing Rules of the Stock Exchange.
|
|
5.3
|
Party B is capable of performing its guarantee obligations, which will not be reduced or released by a change in any regulation or Party B’s financial condition or by an agreement between Party B and a third party.
|
|
5.4
|
Party B understands the purpose of the secured indebtedness under the Principal Contracts. Party B has acted at its sole discretion in granting the guarantee to the Debtor and this Guarantee reflects its genuine intention. Where the secured indebtedness relates to an
|
|
5.5
|
All materials and information provided by Party B to Party A are true, accurate and complete in all respects and contain no false record, gross omission or misleading statement.
|
|
5.6
|
Where the secured indebtedness under this Guarantee relates to an international trade financing provided by Party A to the Debtor, Party B accepts the application of the relevant international practices in connection with that business.
|
|
5.7
|
Where Party B is an individual, Party B further represents and warrants that:
|
|
6.1
|
If any of the following events occurs, Party B shall unconditionally perform the guarantee obligations within 5 working days after receipt of Party A’s notice:
|
|
6.2
|
If the secured indebtedness is also secured by other proprietary security (whether provided by the Debtor or a third party), Party A may first require Party B to perform the guarantee obligations. Party B undertakes not to challenge that requirement by Party A. Party B’s guarantee obligations will remain in full force and will not become void or be reduced or released if Party A waives, amends or loses any other security interest covering the secured indebtedness under the Principal Contracts.
|
|
6.3
|
Party B shall promptly on demand provide its financial materials, tax vouchers and other related materials reflecting its financial condition to Party A.
|
|
6.4
|
Notwithstanding any of the following events (which do not require Party B’s consent), Party B shall continue to be liable for its guarantee obligations:
|
|
A
|
the Principal Contracts are amended as agreed by Party A and the Debtor, without increasing the indebtedness owed by the Debtor or extending the performance period of that indebtedness;
|
|
B
|
(in the case of international or domestic trade financing) Party A and the Debtor agree to amend the letter of credit related to the Principal Contracts, without increasing the Debtor’s payment obligation under that letter of credit or extending the payment term;
|
|
C
|
the amount of the secured indebtedness changes due to the floating interest rate adopted under the principal contract or adjustment of interest rate policies by the People’s Bank of China;
|
|
D
|
Party A transfers the secured indebtedness to a third party.
|
|
6.5
|
Party B’s provision of any type of security to a third party will not prejudice Party A’s rights and interests.
|
|
6.6
|
Without Party A’s prior written consent or unless alternative arrangements concerning Party B’s guarantee obligations have been made to the satisfaction of Party A, Party B may not carry out any merger, demerger, capital reduction, equity change, transfer of material assets and debt, material external investment, material increase of debt financing or other activity that may have an adverse impact on Party A’s rights and interests in connection with the secured indebtedness.
|
|
6.7
|
Party B shall promptly notify Party A if any of the following occurs:
|
|
6.8
|
Party B shall promptly acknowledge receipt of any written notice issued by Party A.
|
|
6.9
|
Where the secured indebtedness relates to a domestic letter of credit, a buyer credit financing under a domestic letter of credit, an import letter of credit, an import bill advance or an import refinancing, Party B shall perform its guarantee obligations without claiming an exemption or other defense based on (1) any payment stop order or injunction issued by a judicial or administrative authority on the payment obligation under that letter of credit or (2) any attachment, seizure or freezing of property relating to the letter of credit or other similar measures taken by that authority. This obligation applies only if any of the following events occurs:
|
|
A
|
a person appointed or authorized by Party A has made the payment in good faith in accordance with Party A’s instruction;
|
|
B
|
Party A or a person appointed or authorized by Party A has issued in good faith a maturity payment confirmation for the purchase price of the relevant goods under a domestic letter of credit or has accepted in good faith documents under an import letter of credit;
|
|
C
|
the confirming bank of the letter of credit has performed its payment obligation in good faith; or
|
|
D
|
the letter of credit has been negotiated by the negotiating bank in good faith.
|
|
6.10
|
Under a shipping guarantee, bill of lading endorsement or authorized delivery taking business, Party B may not claim an exemption or other defense based on the Debtor’s refusal to pay under a letter of credit.
|
|
8.1
|
After this Guarantee takes effect, a Party’s failure to perform any obligation under this Guarantee or its violation of any representation, warranty or undertaking made under this
|
|
8.2
|
If Party B fails to perform its guarantee obligations under this Guarantee, Party A may set off the secured indebtedness under the Principal Contracts against any deposit in any account opened by Party B with Industrial and Commercial Bank of China or any of its branches
.
If the currency of the deposit is different from that of the secured indebtedness under the Principal Contracts, the deposit shall be converted into the currency of the secured indebtedness at the applicable exchange rate published by Party A on the set-off date. Part B shall bear the interest accrued and other expenses incurred, as well as any exchange loss due to exchange rate fluctuations between the set-off date and the settlement date. ‘Settlement date’ means the date on which Party A actually settles the secured indebtedness under the Principal Contracts after converting the deposit into the currency of the secured indebtedness in accordance with the relevant policies of the State Administration of Foreign Exchange.
|
|
8.3
|
Unless otherwise provided under this Guarantee, if a Party defaults, the other Party is entitled to all other remedies available under any laws, regulations or rules of the People’s Republic of China.
|
|
9.1
|
This Guarantee takes effect on the date stated in the signing provision.
|
|
9.2
|
Any amendment to this Guarantee shall be agreed by the Parties and made in writing. An amended clause or amendment agreement constitutes an integral part of this Guarantee and has the same legal effect as this Guarantee. The terms of this Guarantee that are not amended remain effective. The terms of this Guarantee that are to be amended remain effective until the relevant amendments takes effect.
|
|
9.3
|
If any term of this Guarantee is invalid or unenforceable, that will not affect the validity and enforceability of any other term of this Guarantee or the validity of the entire Guarantee.
|
|
9.4
|
Amendment to and termination of this Guarantee shall not prejudice a Party’s right to claim compensation for loss. The dispute resolution clause will survive termination of this Guarantee.
|
|
A
|
The dispute shall be submitted to the
N/A
Arbitration Commission for arbitration at
N/A
(place of arbitration) in accordance with the arbitration rules of that commission in force when the arbitration application is submitted. The arbitration award will be final and binding on both parties.
|
|
B
|
The dispute shall be submitted to the jurisdiction of the competent court of the place where Party A is located.
|
|
11.1
|
Party B may not transfer all or any part of its rights or obligations under this Guarantee without Party A’s consent.
|
|
11.2
|
Party A’s failure to exercise, partial exercise or delay in exercise of any of its rights under this Guarantee will not constitute a waiver of or amendment to that right or any other right, nor will it affect Party A’s further exercise of that right or any other right.
|
|
11.3
|
If so required by applicable laws, regulations, other regulatory documents or financial industry regulators, Party A may provide information relating to this Guarantee and other related information to the credit information basic database of the People’s Bank of China or any other credit database created in accordance with law for qualified institutions or individuals to check or use. Party A may also seek information relating to Party B, for the purpose of execution and performance of this Contract, by using the credit information basic database of the People’s Bank of China or other credit database created in accordance with law.
|
|
11.4
|
This Guarantee is made in
4
originals, with each of Party A and Party B holding
2
original(s), each of which has equal legal effect.
|
|
12.1
|
Supplementary terms of contract delivery
|
|
Party A:
|
Industrial and Commercial Bank of China Limited, _____________
|
|
Creditor:
(Party A) |
Industrial and Commercial Bank of China Limited, Shanghai-Jingan Branch
|
|
Person in Charge:
|
Xiaochun Wu
|
|
Business Address:
|
No.699 Kangding Road
|
|
Telephone and Fax:
|
021-32184610
|
|
|
|
|
Guarantor:
|
Xerium Asia Pacific(Shanghai) Limited
(Party B)
|
|
Legal Representative:
|
WANG WERN LIRN
|
|
Business Address or Domicile:
|
Room 1506-1508 Shanghai Greenland Riverside International Center No.596 Middle Longhua Rd.
|
|
Telephone and Fax:
|
021-54660236
|
|
|
|
|
1.1
|
The indebtedness secured by the guarantee granted by Party B hereunder is the indebtedness owed by
Xerium China Co., Ltd
(the
Debtor
) to Party A under a principal contract named
Fixed Assets Loan Contract
(No.:____________) dated _____________between Party A and the Debtor.
|
|
1.2
|
The secured indebtedness shall bear the amount and term as provided under the above-mentioned principal contract.
|
|
4.1
|
If the Principal Contract is a loan contract, the guarantee term is two years commencing from the day immediately following the maturity or (where Party A accelerates the loan in accordance with the Principal Contract) the accelerated maturity of the loan tenor under the Principal Contract.
|
|
4.2
|
If the Principal Contract is a bank acceptance contract, the guarantee term is two years commencing from the day immediately following Party A’s honoring of the relevant draft under the Principal Contract.
|
|
4.3
|
If the Principal Contract is a security provision agreement, the guarantee term is two years commencing from the day immediately following Party A’s performance of its security obligations under the Principal Contract.
|
|
4.4
|
If the Principal Contract is an agreement to issue a letter of credit, the guarantee term is two years commencing from the day immediately following Party A’s making of a payment under the relevant letter of credit.
|
|
4.5
|
If the Principal Contract is a financing document other than those described above, the guarantee term is two years commencing from the day immediately following the maturity or the accelerated maturity of the secured indebtedness under the Principal Contract.
|
|
5.1
|
Party B is eligible to grant the guarantee and has obtained all necessary authorizations or approvals required in connection with granting the guarantee in favor of Party A in accordance with the procedures and authority set forth in its articles of association. The guarantee does not violate any laws, regulations or other relevant rules.
|
|
5.2
|
If Party B is a listed company or a controlled subsidiary of a listed company, it has promptly performed its disclosure obligations regarding the guarantee in accordance with the relevant laws, regulations and rules, such as the PRC Securities Law and the Listing Rules of the Stock Exchange.
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5.3
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Party B is capable of performing its guarantee obligations, which will not be reduced or released by a change in any regulation or Party B’s financial condition or by an agreement between Party B and a third party.
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5.4
|
Party B understands the purpose of the secured indebtedness under the Principal Contracts. Party B has acted at its sole discretion in granting the guarantee to the Debtor and this Guarantee reflects its genuine intention. Where the secured indebtedness relates to an international or domestic trade financing, Party B warrants that the relevant underlying trade is genuine.
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5.5
|
All materials and information provided by Party B to Party A are true, accurate and complete in all respects and contain no false record, gross omission or misleading statement.
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5.6
|
Where the secured indebtedness under this Guarantee relates to an international trade financing provided by Party A to the Debtor, Party B accepts the application of the relevant international practices in connection with that business.
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5.7
|
Where Party B is an individual, Party B further represents and warrants that:
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A
|
he or she has full civil capacity;
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B
|
he or she has lawful income and is able to repay the secured indebtedness;
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C
|
he or she has not maliciously delayed in repaying bank loans and has not maliciously overdrawn on any credit card;
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D
|
he or she has no misconduct, such as gambling or use of narcotics and has no criminal record; and
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E
|
he or she has obtained his or her spouse’s consent to grant the guarantee.
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6.1
|
If any of the following events occurs, Party B shall unconditionally perform the guarantee obligations within 5 working days after receipt of Party A’s notice:
|
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A
|
the Debtor fails to pay the secured indebtedness when it matures and becomes due (including accelerated maturity);
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B
|
either Party B or the Debtor files or is presented with a petition for its bankruptcy, winding-up, dissolution, liquidation, suspension of business, or has its business license revoked or cancelled.
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6.2
|
If the secured indebtedness is also secured by other proprietary security (whether provided by the Debtor or a third party), Party A may first require Party B to perform the guarantee obligations. Party B undertakes not to challenge that requirement by
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6.3
|
Party B shall promptly on demand provide its financial materials, tax vouchers and
other
related materials reflecting its financial condition to Party A.
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6.4
|
Notwithstanding any of the following events (which do not require Party B’s consent), Party B shall continue to be liable for its guarantee obligations:
|
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A
|
the Principal Contracts are amended as agreed by Party A and the Debtor, without increasing the indebtedness owed by the Debtor or extending the performance period of that indebtedness;
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B
|
(in the case of international or domestic trade financing) Party A and the Debtor agree to amend the letter of credit related to the Principal Contracts, without increasing the Debtor’s payment obligation under that letter of credit or extending the payment term;
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C
|
the amount of the secured indebtedness changes due to the floating interest rate adopted under the principal contract or adjustment of interest rate policies by the People’s Bank of China;
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D
|
Party A transfers the secured indebtedness to a third party.
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6.5
|
Party B’s provision of any type of security to a third party will not prejudice Party A’s rights and interests.
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6.6
|
Without Party A’s prior written consent or unless alternative arrangements concerning Party B’s guarantee obligations have been made to the satisfaction of Party A, Party B may not carry out any merger, demerger, capital reduction, equity change, transfer of material assets and debt, material external investment, material increase of debt financing or other activity that may have an adverse impact on Party A’s rights and interests in connection with the secured indebtedness.
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6.7
|
Party B shall promptly notify Party A if any of the following occurs:
|
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A
|
there is a change to Party B’s articles of association, business scope, registered capital, legal representative or shareholding structure;
|
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B
|
Party B files for winding-up, dissolution, liquidation or suspension of business, or has its business license revoked or cancelled, or is presented with a petition for its bankruptcy;
|
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C
|
Party B is or is likely to be involved in a material economic dispute, litigation or arbitration, or any of its assets are attached, seized or otherwise subject to administration or supervision in accordance with law; or
|
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D
|
(where Party B is an individual) there is a change to the number of the individual’s identity card, domicile, employment or contact details.
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6.8
|
Party B shall promptly acknowledge receipt of any written notice issued by Party A.
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6.9
|
Where the secured indebtedness relates to a domestic letter of credit, a buyer credit financing under a domestic letter of credit, an import letter of credit, an import bill advance or an import refinancing, Party B shall perform its guarantee obligations without claiming an exemption or other defense based on (1) any payment stop order or injunction issued by a judicial or administrative authority on the payment obligation under that letter of credit or (2) any attachment, seizure or freezing of property relating to the letter of credit or other similar measures taken by that authority. This obligation applies only if any of the following events occurs:
|
|
A
|
a person appointed or authorized by Party A has made the payment in good faith in accordance with Party A’s instruction;
|
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B
|
Party A or a person appointed or authorized by Party A has issued in good faith a maturity payment confirmation for the purchase price of the relevant goods under a domestic letter of credit or has accepted in good faith documents under an import letter of credit;
|
|
C
|
the confirming bank of the letter of credit has performed its payment obligation in good faith; or
|
|
D
|
the letter of credit has been negotiated by the negotiating bank in good faith.
|
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6.10
|
Under a shipping guarantee, bill of lading endorsement or authorized delivery taking business, Party B may not claim an exemption or other defense based on the Debtor’s refusal to pay under a letter of credit.
|
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8.1
|
After this Guarantee takes effect, a Party’s failure to perform any obligation under this Guarantee or its violation of any representation, warranty or undertaking made under this Guarantee will constitute an event of default
.
The defaulting Party shall indemnify the other Party against all losses incurred by that other Party.
|
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8.2
|
If Party B fails to perform its guarantee obligations under this Guarantee, Party A may set off the secured indebtedness under the Principal Contracts against any deposit in any account opened by Party B with Industrial and Commercial Bank of China or any of its branches. If the currency of the deposit is different from that of the secured indebtedness under the Principal Contracts, the deposit shall be converted into the currency of the secured indebtedness at the applicable exchange rate published by Party A on the set-off date. Part B shall bear the interest accrued and other expenses incurred, as well as any exchange loss due to exchange rate fluctuations between the set-off date and the settlement date. ‘Settlement date’ means the date on which Party A actually settles the secured indebtedness under the Principal Contracts after converting the deposit into the currency of the secured indebtedness in accordance with the relevant policies of the State Administration of Foreign Exchange.
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8.3
|
Unless otherwise provided under this Guarantee, if a Party defaults, the other Party is entitled to all other remedies available under any laws, regulations or rules of the People’s Republic of China.
|
|
9.1
|
This Guarantee takes effect on the date stated in the signing provision.
|
|
9.2
|
Any amendment to this Guarantee shall be agreed by the Parties and made in writing. An amended clause or amendment agreement constitutes an integral part of this Guarantee and has the same legal effect as this Guarantee. The terms of this Guarantee that are not amended remain effective. The terms of this Guarantee that are to be amended remain effective until the relevant amendments takes effect.
|
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9.3
|
If any term of this Guarantee is invalid or unenforceable, that will not affect the validity and enforceability of any other term of this Guarantee or the validity of the entire Guarantee.
|
|
9.4
|
Amendment to and termination of this Guarantee shall not prejudice a Party’s right to claim compensation for loss. The dispute resolution clause will survive termination of this Guarantee.
|
|
A
|
The dispute shall be submitted to the
N/A
Arbitration Commission for arbitration at
N/A
(place of arbitration) in accordance with the arbitration rules of that commission in force when the arbitration application is submitted. The arbitration award will be final and binding on both parties.
|
|
B
|
The dispute shall be submitted to the jurisdiction of the competent court of the place where Party A is located.
|
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11.1
|
Party B may not transfer all or any part of its rights or obligations under this Guarantee without Party A’s consent.
|
|
11.2
|
Party A’s failure to exercise, partial exercise or delay in exercise of any of its rights under this Guarantee will not constitute a waiver of or amendment to that right or any other right, nor will it affect Party A’s further exercise of that right or any other right.
|
|
11.3
|
If so required by applicable laws, regulations, other regulatory documents or financial industry regulators, Party A may provide information relating to this Guarantee and other related information to the credit information basic database of the People’s Bank of China or any other credit database created in accordance with law for qualified institutions or individuals to check or use. Party A may also seek information relating to Party B, for the purpose of execution and performance of this Contract, by using the credit information basic database of the People’s Bank of China or other credit database created in accordance with law.
|
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11.4
|
This Guarantee is made in
4
originals, with each of Party A and Party B holding
2
original(s), each of which has equal legal effect.
|
|
12.1
|
Supplementary terms of contract delivery
|
|
Party A:
|
Industrial
and Commercial Bank of China Limited (company seal)
|
|
|
|
|
Authorized Signatory:
|
/s/ Xiaochun Wu
(signature or seal)
|
|
|
|
|
Party B:
|
Xerium Asia Pacific(Shanghai) Limited (company seal)
|
|
Legal or Authorized Representative:
|
/s/ Wang Wern Lirn (signature or seal) |
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