Editor: Rose Sky; Translation: New Zealand Farm Translation Group：
Wen Mu, Red Beard, Dan Rushui, Sugarpu; proofreading: Sugarpu;
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LOAN AGREEMENT
This Loan Agreement (this “Agreement”) is made on July 10, 2017 by and among Mr. Xiangsheng Li (a HK resident with HK ID No. P*******, the “Lender”) on the one hand, and Mr. Robert Hunter Biden (a USA resident with passport No. ********,”Mr. Biden”), Mr. Eric D. Schwerin (a USA resident with passport No. ********,”Mr. Schwerin”), and Skancateles, LLC (a limited liability company registered under the laws of the District of Columbia, USA, “Skaneateles”, together with Mr. Biden and Mr. Schwerin collectively referred to as the “Borrowers” and individually as a “Borrower”) on the other hand.
WHEREAS:
Bohai Harvest RST (Shanghai) Equity Investment Fund Management Co., Ltd is a company established in the People’s Republic of China (registration number 310000400727130) with a registered capital of RMB30,000,000 (“BHR”) on December 16, 2013 (“Registration Date”), of which Skaneateles subscribed to RMB3,000,000 (“Committed Capital”) in return for 10% of equity interest in BHR (the “Equity Interest”);
As of the date hereof, Skaneateles has paid RMB1,987,104 of its Committed Capital, with RMB1,012,896 committed but which remains unpaid (the “Unpaid Capital”);
Pursuant the relevant provisions of the constitutional documents of BHR, the Committed Capital is required to be paid in full within two (2) years of BHR’s Registration Date;
In order to comply with its commitments with respect to the payment of the Committed Capital, the Borrowers wish to borrow from the Lender and the Lender agrees to lend to the Borrowers a United States Dollar term loan, in accordance with and subject to the terms and conditions hereof.
NOW THEREFORE, the parties hereto agree as follows:
Principal of the Loan: the Lender agrees to provide to the Borrowers and the Borrowers agree to accept from the Lender a term loan, in United States Dollars, an amount equivalent to the Unpaid Capital, being RMB1,012,896 (the “Loan”).
Joint and Several Liability: the Borrowers shall be jointly and severally liable for the obligations under this Agreement and each Borrower jointly and severally guarantees to the Lender the performance by each other Borrower of its obligations under this Agreement.
- Purpose of the Loan: each Borrower undertakes to apply all amounts of the Loan solely and exclusively towards the payment of the Unpaid Capital.
- Disbursement of the Loan: each Borrower hereby authorizes and instructs the Lender (i) to the extent permitted by applicable law, to directly disburse the Loan to the account of BHR or (ii) to disburse the Loan to an account designated by the Borrower in writing no less than five (5) Business Days prior to the proposed drawdown of the Loan. Notwithstanding the foregoing, the Loan made under this Agreement shall be deemed to have been made to the Borrowers and the Borrowers waive all rights of protest it may have to the contrary.
- Term of the Loan: the term of the Loan shall commence from the date on which the Loan is disbursed in accordance with paragraph 4 above and shall end on the date falling 365 days thereafter (the “Initial Maturity Date”) and can be extended to such later date as the parties may otherwise agree in writing (each such later date being an “Extended Maturity Date”).
- Interest Payment: the Loan shall accrue interest at a per annum rate of 6.5%. The Borrowers shall pay accrued interest, in United States Dollars, on the Loan on the Initial Maturity Date and, as applicable, on each Extended Maturity Date.
- Repayment of Loan: subject to set-off of the Loan pursuant to paragraph 8 below, the Borrowers shall repay all outstanding amount of the Loan, in United States Dollars (or if the parties otherwise agree, in another currency), in full on the Initial Maturity Date, or, as applicable, on the Extended Maturity Date.
- Set-off: the Lender shall be entitled, and the Borrowers hereby irrevocably authorizes the Lender, to set off, from time to time, any and all dividends and distributions payable to Skaneateles from BHR (collectively the “Distributions”) against the repayment of the Loan, regardless of place or currency of the Distribution. If a Distribution is in a currency other than United States Dollars, the Lender may convert the Distribution at a market rate of exchange in its usual course of business for the purpose of the set-off.
- Security Interest: in consideration of and as security for the Lender granting the Loan and to secure the repayment and performance of the Loan, the Borrowers irrevocably grant to the Lender a security interest in the Equity Interest. Each Borrower represents and warrants that (a) the Equity Interest, except for the security interest created herein, is free and clear of any other security interest or liens; (b) neither the granting of the security interest in the Equity Interest nor the execution and performance of this Agreement requires the consent of any other person,
- Borrowers Undertakings: each Borrower undertakes to (a) execute and deliver such further documents and instruments from time to time, and to take such other further actions as may be required or appropriate from time to time to carry out the intent and purposes of perfecting the security interest created and intended to be created under paragraph 9 (including the filing of any statements under any applicable legislation with respect to the security interest created herein); (b) not sell, transfer, pledge, encumber or otherwise dispose of any of the Equity Interest; (c) not create, incur or permit to exist any security interest or liens over the Equity Interest other than as created pursuant to this Agreement.
- Event of Default and Remedies: any one of the following occurrences shall constitute an “Event of Default” under this Agreement:
a Borrower does not pay on the due date any amount payable pursuant to this Agreement;
a Borrower becomes insolvent or bankrupt or is presumed or deemed to be unable to pay its debts as they fall due;
any corporate action or legal proceeding or other procedure is taken in relation to (i) the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution of a Borrower, or (ii) the appointment of a liquidator, receiver, administrator or similar officer in respect of a Borrower or any of its assets or (iii) the enforcement of any security over any assets of a Borrower;
(d) Skaneateles ceases to be wholly-owned and controlled by Mr. Biden and/or Mr. Schwerin; or
(e) a Borrower does not comply with any covenant or undertaking contained in this Agreement.
On and at any time after the occurrence of an Event of Default, the Lender may declare (without notice or demand of any kind to the Borrowers or any other person) that all or part of the Loans, together with accrued interest, be immediately due and payable, whereupon the Loans shall become immediately due and payable. The Lender shall be entitled to pursue all remedies otherwise available under this Agreement and under applicable laws including but not limited to taking enforcement actions against the pledged Equity Interest.
- No Waiver: no single or partial exercise of any right hereunder shall preclude other or further exercises thereof or the exercise of any other right granted hereunder. Any delay or omission on the part of Lender in exercising any right hereunder shall not operate waiver of such right, or of any other right under
this Agreement. The remedies and rights provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law. - Successors: the consent of the Borrowers is not required for any assignment or transfer by the Lender and this Agreement shall inure to the benefit of Lender and its successors and assigns. No Borrower may assign any of its rights or obligations under this Agreement.
- Severability: any provision of this Agreement which is invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this Agreement invalid, illegal or unenforceable in any other jurisdiction. The parties hereof shall, through fair consultations, make reasonable efforts to replace those invalid, illegal or non-enforceable provisions with valid provisions that may bring the similar economic effects with the effects caused by those invalid, illegal or non-enforceable provisions.
- Governing Law: this Agreement shall be governed by and construed in accordance with the laws of the People’s Republic of China (which for purposes of this Agreement shall not include Taiwan or the special administrative regions of Hong Kong and Macau).
- Arbitration: if the parties hereto are unable to settle any dispute arising from or in connection with the provisions of this Agreement through mediation or consultation, any party hereto can submit the dispute for final and binding arbitration to the China International Economic and Trade Arbitration Commission (“CIETAC”) in Beijing for arbitration pursuant to then-valid arbitration rules of CIETAC. The arbitral award shall be final and binding on the parties.
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(Signature Page)
Lender
Xiangsheng Li
Signature:
Borrower
Robert Hunter Biden
Signature:
Borrower
Eric D. Schwerin
Signature:
Borrower
Skaneateles, LLC
Authorized representative:
AMENDMENT NO. 1 TO THE LOAN AGREEMENT DATED JUNE 30, 2017
This Amendment Agreement No. 1 (this “Amendment”) is made on October 31, 2018 by and among the following parties (each a “Party” and together the “Parties”):
Mr. Xiangsheng Li (a HK resident with HK ID No. P*******(0), the “Original Lender”), Mr. Robert Hunter Biden (a USA resident with passport No. ********, “Mr. Biden”), Mr. Eric D. Schwerin (a USA resident with passport No. ********, “Mr. Schwerin”), Skaneateles, LLC (a limited liability company registered under the laws of the District of Columbia, USA, “Skaneateles”, together with Mr. Biden and Mr. Schwerin collectively referred to as the “Borrowers” and individually as a “Borrower””), Ms. Xin Wang (Canada Passport No. AC******, the “New Lender”).
WHEREAS:
the Original Lender and the Borrowers entered into a loan agreement dated June 30, 2017 (the “Loan Agreement”) pursuant to which it was agreed that the Original Lender would make certain advances to Skaneateles for the purpose of funding its registered capital obligations to BHR;
the Original Lender did not have sufficient funds to make the entire Loan as stipulated in the Loan Agreement and the New Lender stepped in to make a direct loan to the Borrowers in the amount of US$158,000 (the “New Loan”) on December 4, 2017:
NOW THEREFORE, the Parties agree as follows:
The Parties agree that the Loan Agreement shall be amended as follows:
paragraph 1 of the Loan Agreement shall be deleted in its entirety and replaced with the following:
“Principal of the Loan: the New Lender agrees to provide to the Borrowers and the Borrowers agree to accept from the New Lender a term loan in the aggregate amount of USS158,000 (the “Loan”);
all references in the Loan Agreement to the “Lender” shall be deleted and replaced with
“New Lender”;
Each Party confirms and acknowledges that:
the Loan was disbursed on December 4, 2017 from which date interest will start accruing in accordance with paragraph 6 of the Loan Agreement;
the Initial Maturity Date for the Loan is December 4, 2018 and the Parties agree to extend the Initial Maturity Date to December 13, 2019.
The Original Lender and each Borrower agree and acknowledge that the Loan, in its entirety, was disbursed by and is owed to, the New Lender, and that all payments and repayments due under the Loan Agreement shall be made to and for the benefit of the New Lender.
Paragraphs 12, 13 and 14 of the Loan Agreement are incorporated herein and references to “Agreement” are deemed to be references to “Amendment”.
Governing Law: this Amendment shall be governed by and construed in accordance with the laws of the People’s Republic of China (which for purposes of this Agreement shall not include Taiwan or the special administrative regions of Hong Kong and Macau).
Arbitration: if the Parties are unable to settle any dispute arising from or in connection with the provisions of this Amendment through mediation or consultation, any party hereto can submit the dispute for final and binding arbitration to the China International Economic and Trade Arbitration Commission (“CIETAC”) in Beijing for arbitration pursuant to then-valid arbitration rules of CIETAC. The arbitral award shall be final and binding on the parties.
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(Signature Page)
Original Lender
Xiangsheng Li
Signature: ___________
New Lender
Xin Wang
Signature:___________
Borrower
Robert Hunter Biden
Signature:__________
Borrower
Eric D. Schwerin
Signature:__________
Borrower
Skaneateles, LLC
Authorized representative:____________
The “new lender” Ms. Wang Xin is reported to be the illegitimate daughter of senior CCP officials Wang Qishan and Gao.
