Exhibit 10.9


 


No.: 2010 (Dongcheng) Zi               


 


 


FIXED ASSETS LOAN
CONTRACT


(VERSION 2009)


 


 


INDUSTRIAL AND COMMERCIAL
BANK OF CHINA


 

















 


NOTA BENE: This Contract is lawfully made by and between the
parties on an equal, voluntary basis. All contractual provisions are a genuine
expression of the intent of the parties. In order to protect the legitimate
rights and interests of the borrower, the lender hereby respectfully requests
the borrower to pay full attention to all clauses governing the rights and
obligations of the parties and in particular those highlighted in bold.


 


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Lender: Industrial and Commercial
Bank of China Beijing Dongcheng Branch


Person-in-Charge: Miao Hongxiang


Contact: N/A


Domicile: Qinglang Building, 24,
Dongsi Shitiao, Dongcheng District, Beijing


Postcode: 100007


Telephone: 84021133


Fax: N/A


Email: N/A


 


Borrower: Beijing Bona Film
Culture Communications Co., Ltd.


Legal Representative: Yu Dong


Contact: N/A


Domicile: F/18, Poly Plaza, Road No. 14,
Dongzhimen


                Nandajie,
Dongcheng District, Beijing


Postcode: 100007


Telephone: 65510888


Fax: N/A


Fax: N/A


Email: N/A


 


The Borrower and the Lender, by
equal consultations, reach agreement on and enter into this contract in respect
of the extension of a loan facility by the Lender to the Borrower.


 


CHAPTER ONE LOAN CONDITIONS


 


Article  1               Purpose of Loan


 


The purpose of the loan hereunder
shall be the shooting and distribution of the film. The Borrower may not divert
the loan to other purposes without written consent of the Lender. The Lender
shall have the right to supervise the use of the loan funds.


 


Article 2 Amount and Term of Loan


 


2.1  
The loan hereunder shall be denominated in the currency of RMB and shall
be in the amount of
                                  
(In the event of divergence, the amount expressed in capital letters shall
prevail over that expressed in Arabic figures.).


 


2.2  
The term of the loan hereunder shall be
                ,
beginning as from the date of actual drawdown (in the case of multiple
drawdowns, as from the date of first drawdown). The date of actual drawdown
shall be based on the date specified on the relevant loan receipt.


 


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Article 3 Interest Rate and Interest


 


3.1 
Determination of RMB Loan Interest Rate


 


The interest rate of the RMB loan
shall be determined as per the second method below:


 


(1)  at the fixed interest rate
of   /   % per annum, which shall remain unchanged
throughout the term of the Contract (Crossed Out; N/A);


 


(2) at a floating rate equal to
the base rate plus a fluctuation range. The base rate shall be the base loan
interest rate published by the People’s Bank of China on
                    
(day of drawdown; or effective day of the contract) for loans of a term equal
to that set out in Article 2.2; and the fluctuation range shall be
                        
(upward/downward/zero floating) and shall remain unchanged throughout the term
of the Contract. Upon drawdown by the Borrower, the interest rate shall be
based on an interest period of 
          (1/3/6/12) months and shall be adjusted upon
expiry of each such period. Interest shall accrue on the basis of the rates
applicable to each relevant interest period. 
The day for the determination of the second-period interest rate shall
fall on the first anniversary of the drawdown date, or, in the absence of such
anniversary date in the applicable month of rate adjustment, the last day of
such month of rate adjustment. This principle shall apply to subsequent
interest periods. Where the Borrower effects multiple drawdowns, the loan
interest rate shall be adjusted in accordance with the method set out in Clause
(B) below:


 


A. 
Regardless of the number of drawdowns during a particular interest
period, the then current loan interest rate as determined on the applicable
rate determination date of the relevant interest period shall apply to all
drawdowns; and such rate shall be simultaneously adjusted in respect of all
drawdowns during the next interest period.


 


B. 
The interest rate of each drawdown shall be determined and adjusted
separately.


 


(3) other terms     /     (Crossed Out; N/A).


 


3.2 
Determination of Foreign Currency Loan Interest Rate


 


The interest rate of the foreign
currency loan shall be determined as per the   /   method
below(Crossed Out; N/A):


 


(1)  at the fixed interest rate
of     /     % per annum, which shall remain unchanged throughout the
term of the Contract (Crossed Out; N/A);


 


(2) at a floating rate equal to
the base rate of   /   month   /   (LIBOR/HIBOR) plus a margin of   /   base points (i.e.0.01%). Such margin shall remain unchanged throughout the term of the Contract.
Upon drawdown by the Borrower, the base rate shall be adjusted as per the   /   method
below and interest shall accrue at the rates applicable to each relevant
period(Crossed Out; N/A):


 


A. The base rate will float in line
with its applicable period. The day for the determination of the second-period
base rate shall fall on the first anniversary of the drawdown date, or, in the
absence of such anniversary date in the applicable month of rate adjustment,
the


 


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last day of such month of rate
adjustment. This principle shall apply to subsequent interest periods(Crossed Out; N/A).


 


B. The base rate will be adjusted on
the first day of each interest period(Crossed Out; N/A).


 


(3) other terms     /     (Crossed Out; N/A).


 


3.3 
The interest of the loan hereunder shall accrue from the date of actual
drawdown and shall be paid on a monthly (monthly/quarterly/semi-annual) basis.
Upon expiry of the loan term, interest shall be paid in full together with
principal. Daily interest rate shall be equal to the rate per annum divided by
360.


 


3.4 
The default interest rate hereunder shall be equal to the original loan
interest rate plus 30%. The penalty interest rate for unauthorized loan
diversion shall be the original loan interest rate plus 50%.


 


Article 4   Drawdown


 


The Borrower shall draw down the
loan facility hereunder in accordance with its actual funding needs. The first
drawdown shall be effected by     /     (Crossed Out; N/A) and the last drawdown shall be effected by     /     (Crossed Out; N/A), otherwise, the Lender shall have the
right to cancel all or part of the loan.


 


Article 5   Repayment


 


5.1 The Borrower shall repay the
loan in accordance with the following schedule (Separate sheets may be attached
if needed) (Crossed Out; N/A).


 


	
  Scheduled Repayment Time

  	
   

  	
  Scheduled Repayment Amount (in RMB0’000)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


5.2  
In the event the loan hereunder is a loan of the following character,
the Borrower shall immediately repay such loan upon the putting into place of
relevant funds and the Borrower shall not be required to pay any indemnity in
respect of any prepayment resultant therefrom:


 


             /               /               /               /               /               /  


             /               /               /               /               /               /  


(Crossed Out; N/A)


 


5.3  
Unless effected in accordance with Article 5.2 above, any
prepayment by the Borrower shall be subjected to an indemnity equal to   /   %
of the prepaid amounts.


 


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             /               /               /               /               /               /  


             /               /               /               /               /               /  


(Crossed Out; N/A)


 


Article 6 Special Agreement on Revolving Loan (Optional Clause; this Article o applies, or  does not apply.)


 


The Borrower may treat every       /   (half
year/one year/two years/three years/four years/five years) (Loan Use Period
Unit) as a period by which to use the loan hereunder on a revolving basis. Upon
completion of necessary formalities, outstanding principal from the preceding
Loan Use Period Unit may continue to be used during the next Loan Use Period
Unit, provided that the expiry date of each drawdown shall not be later than
the expiry date of the loan term set out in Article 2. (Crossed Out; N/A)


 


Article 7 Security


 


7.1 
The loan hereunder shall be a secured (credit/secured) loan.


 


7.2 
If the loan hereunder is a secured loan, the security matters shall be
provided for in a separately executed security contract. If such security is a
ceiling amount charge, the contract for such ceiling amount charge shall be as
follows:


 


Name of Ceiling Amount Charge
Contract: Ceiling Amount Security Contract (No: 2010 Dongcheng (Bao) Zi 0002)


 


Security Provider: Zhejiang Bona
Film and Television Production Co., Ltd.


 


Article 8  Financial Agreement (Optional Clause; this Article o applies, or  does not apply.)


 


During the term of this Contract,
the Borrower shall comply with the following agreement on financial indicators:


 


             /               /               /               /               /               /  


             /               /               /               /               /               /  


(Crossed Out; N/A)


 


Article 9 Dispute Resolution


 


Disputes hereunder shall be resolved
in accordance with the method set out in Clause (2) below:


 


(1) Such disputes shall be
submitted to the      /  arbitration commission 
for arbitration in      /  (place
of arbitration) in accordance with its arbitration rules applicable


 


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at the time of such submission. The
arbitration award shall be final and binding on both parties. (Crossed Out; N/A)


 


(2)  Such disputes shall be
resolved by adjudication before the court of the domicile of the Lender.


 


Article 10  Miscellaneous


 


10.1 
This Contract shall be made in two copies. The Borrower and the Lender
and       /  (Crossed Out; N/A)shall
each hold one copy. All of the copies shall have the same legal force and
effect.


 


10.2 
The following annexes and such other schedules as mutually confirmed by
the parties shall be an integral part of this Contract and shall have the same
legal force and effect as this Contract:


 


Annex 1:  Drawdown Notice


Annex 2:  Agreement on Entrusted Payment


Annex 3: (N/A)


 


Article 11   Other agreements between the Parties


 


11.1 
The Borrower shall open with the Lender the film shooting and production
crew funds payment supervision account. 
After the percentage of self-owned funds reaches 30%, the Borrower shall
draw down the loan in accordance with the shooting progress of each film based
on the principle that self-owned funds shall be put in place in advance and in
the same proportion.


 


11.2 
The principal and interest of the relevant loan of the Lender shall be
paid in full within 3 months from the screening date of each film.


 


11.3 
After the putting into place of all of the self-raised funds for the
film, the proceeds from the pre-sale of screening rights, the sale revenues
from ads, and the funds obtained from co-investors, shall first be applied
towards the repayment of the principal and interest of the loan extended by the
Lender.


 


11.4 During the term of the loan, no
dividend shall be distributed prior to repayment of the principal and interest
of the loan extended by the Lender. Without written consent of the Lender, no
co-investor shall be added to the film underlying the project loan hereunder.


 


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CHAPTER TWO FIXED ASSETS LOAN
CONTRACT


 


TERMS AND CONDITIONS


 


Article 1  Interest Rate and Interest


 


1.1 
In respect of a foreign currency loan, LIBOR shall be the interbank
lending rate for the currency of the loan hereunder shown on the “LIBO=” screen
page (11:00 am London Time)  on the
REUTERS financial information terminal two banking business days before the
drawdown date or the base rate adjustment date; and HIBOR shall be the
interbank lending rate for HK dollars shown on the “HIBO=” screen page (11:15am
HK Time)  on the REUTERS financial
information terminal two banking business days before the drawdown date or the
base rate adjustment date.


 


1.2 
If the interest of the loan is paid on a monthly basis, the 20th day of each month
shall be the interest payment day; if the interest of the loan is paid on a
quarterly basis, the 20th day of the last month of each quarter shall be
the interest payment day; and if the interest of the loan is paid on a
semi-annual basis, June 20th and December 20th of each year shall be
the interest payment days.


 


1.3 The first interest period shall
begin from the date of actual drawdown by the Borrower and end as of the first
interest payment day; the last interest period shall begin as from the day
immediately following the end of the preceding interest period and end as of
the last repayment date; and the other interest periods shall each begin from
the day immediately following the end of the preceding interest period and end
as of the next interest payment date.


 


1.4 
If the loan hereunder is extended at a floating rate, the rate
adjustment rules shall be implemented in the manner as originally
contemplated irrespective of any loan payment default.


 


1.5 
If the People’s Bank of China adjusts loan interest rate determination
methods and if such adjusted methods apply to the loan hereunder, relevant
requirements of the People’s Bank of China shall then be observed without any
further notice to the Borrower.


 


Article 2  Loan Disbursement and Payment


 


2.1 
Drawing down of the loan by the Borrower shall satisfy the drawdown
conditions precedent set out below. Otherwise, unless where an advance loan
disbursement is agreed to by the Lender, the Lender shall not be obligated to
disburse any funds to the Borrower.


 


2.2 
Conditions Precedent to First Drawdown


 


(1)  The loan project has
obtained or completed approvals or clearances or filings from or with competent
authorities of the state (unless in accordance with relevant stipulations, 


 


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no approvals, clearances or filings
are required to be obtained or completed prior to loan disbursement);


 


(2)  The capital or other funds
required to be raised for the project have been fully put in place at the
required time, in the required percentage and in the required amount;


 


(3)  Unless the loan is a
credit loan, the Borrower has in accordance with the request of the Lender
provided relevant security and has completed relevant security procedures;


 


(4)  A drawdown notice has been
submitted to the Lender in accordance with this Contract.


 


2.3  
Prior to each drawdown, in addition to the conditions precedent to the
first drawdown, the Borrower shall also satisfy the following conditions
precedent:


 


(1)  If the capital for the
project is to be put into place in installments, the current installment of
capital has been fully put into place in the required percentage;


 


(2)  No cost overruns have
occurred or cost overruns have been overcome with self-raised proceeds;


 


(3) Construction progress has been
achieved on schedule and the actual project progress matches the invested
amounts;


 


(4)  No breaches of contract
have occurred under this Contract or other contracts entered into with the
Lender;


 


(5)  The evidencing materials
showing the purpose of use of the loan provided by the Borrower agree with the
purpose of the loan agreed hereunder.


 


2.4 
The written documents provided by the Borrower to the Lender at the time
of drawdown shall be in the form of originals; and in the absence of originals,
the Borrower may, upon consent of the Lender, provide a photocopy of such
documents affixed with the common seal of the Borrower.


 


2.5 
When requesting a drawdown, the Borrower shall give the Lender at least
5 banking business days drawdown notice. Once submitted, such drawdown notice
may not be revoked without the written consent of the Lender.


 


2.6 
Where, upon review, the Lender agrees for the Borrower to make a
drawdown, the Lender will transfer the loan so drawn down into a designated
account of the Borrower, whereupon the Lender shall be deemed to have disbursed
the loan to the Borrower in accordance with this Contract.


 


2.7 
Pursuant to relevant regulatory stipulations and the management
requirements of the Lender, loan funds in excess of a particular amount or
meeting particular conditions shall 


 


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be provided by the Lender (in the
form of an entrusted payment by the Lender) to the payee satisfying the
purposes of use agreed hereunder on the basis of the drawdown application and
payment entrustment of the Borrower.  In
connection therewith, the Borrower shall separately enter into an agreement on
entrusted payment to be attached hereto and shall open or designate a special
account dedicated to the handling of entrusted payment matters with the Lender.


 


Article 3  Repayment


 


3.1  
The Borrower shall in accordance with this Contract timely and fully
repay the principal and interest of the loan and other amounts payable
thereunder. The Borrower shall, one banking business day prior to the repayment
date and each interest payment date, adequately deposit currently payable
interest, principal and other payable amounts into the repayment account opened
by it with the Lender and the Lender shall have the right to receive and deduct
on its own such payment, or to demand the Borrower to cooperate with the
handling of such transfer and deduction formalities on such repayment date or
interest payment date. If the amounts in the repayment account are not
sufficient to fully cover all the amounts then due and payable by the Borrower,
the Lender shall have the right to determine the order of settlement.


 


3.2 
Where the Borrower applies to prepay all or part of the loan, such
application shall be in writing and shall be submitted to the Lender 10 banking
business days in advance. Prepayment shall be subject to consent of the Lender.
The Borrower shall pay in accordance with the terms of this Contract an
indemnity in respect of such prepayment.


 


3.3 
Where the Lender agrees to prepayment, the Borrower shall on such
prepayment date settle in full at the same time the principal, interest and
other payable amounts of the loan due and payable hereunder up to such
prepayment date.


 


3.4 
Where, as a result of prepayment by the Borrower
or advance recovery by the Lender of the loan in accordance with this Contract,
the actual term of the loan hereunder has been shortened, the relevant interest
rate will not be adjusted and the original loan interest rate shall continue to
apply.


 


Article 4   Revolving Loan


 


4.1  
If the loan facility hereunder is a revolving loan, then the date of
first drawdown shall be the start date of the first Loan Use Period Unit. The
start date of the second Loan Use Period Unit shall fall on the first
anniversary of such first drawdown date, or, in the absence of such anniversary
date in the first month of the applicable Loan Use Period Unit, the last day of
such first month. This principle shall apply to subsequent Loan Use Period
Units. Unless with the consent of the Lender, once determined, no Loan Use
Period Unit may be adjusted.


 


4.2 
The balance of the loan for each Loan Use Period Unit subsequent to the
first Loan Use Period Unit shall be lower than that of its preceding Loan Use
Period Unit and the Borrower shall repay the loan in accordance with the agreed
repayment schedule upon expiry of 


 


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each Loan Use Period Unit. The Loan
may not be used on a revolved basis within any single Loan Use Period Unit.


 


4.3 If a RMB revolving loan adopts a
floating rate, the base rate shall be determined on the basis of the benchmark
loan rate of the People’s Bank of China corresponding to the Loan Use Period
Unit.


 


Article 5  Security


 


5.1    Other than in the case of a credit loan,
the Borrower shall provide a legal and valid security acceptable to the Lender
in respect of its performance of its contractual obligations hereunder. The
security contract shall be entered into separately.


 


5.2 
If the subject-matter of the security provided hereunder incurs a loss,
depreciation, title dispute, seizure or attachment, or if the mortgage provider
hereunder disposes of the mortgage subject-matter, or if the guarantor of a
guarantee hereunder suffers an adverse change or other change adverse to the
creditor claims of the Lender, the Borrower shall timely notify the Lender of
the same and shall provide other security(ies) acceptable to the Lender.


 


5.3 
If the loan hereunder is secured by a pledge on accounts receivable, and
if, during the term of this Contract, any of the following circumstances
occurs, the Lender shall be entitled to declare acceleration of the loan and
demand the Borrower to immediately repay part or all of the principal and
interest of the loan, or to provide legal, valid and adequate securities
acceptable to the Lender:


 


(1)  the bad debt ratio (in
respect of the payees) of the accounts receivable of the pledgor rises for 2
months in a row;


 


(2)  the matured but not yet
recovered accounts receivable of the pledgor in respect of a particular payee
constitutes 5% or above of the balance of the accounts receivable collectible
from such payee;  or


 


(3)   the accounts receivable of the pledgor are
likely to be
unable to receive timely payment
upon maturity as a result of any trade dispute (including without limitation
quality, technology or service disputes) or debt dispute between the pledgor
and the payee(s) or another party.


 


Article 6                 Insurance


 


6.1 
The Borrower shall at the request of the Lender take out insurance with
an insurer(s) acceptable to the Lender in respect of the loan project’s
equipment, construction, goods shipment as well as risks during the period of
project construction or operation. The types and periods of such insurance
shall meet the requirements of the Lender and the insurance coverage shall
cover the loan risks.


 


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6.2 
During the term of this Contract, the Borrower may not discontinue such
insurance for any reason. If any insurance is discontinued, the Lender shall
have the right to extend such insurance or take out such insurance in the place
and stead of the Borrower, all at the cost of the Borrower.  If the Borrower and the relevant party(ies)  effect any material change or early terminate
the insurance policy, the Borrower shall give the Lender 30 days prior notice
and shall obtain the Lender’s consent thereto. Otherwise, the Borrower shall be
liable for the Lender’s losses arising out of such insurance discontinuation,
termination or policy amendment.


 


6.3 
The insurance policy shall name the Lender as the first beneficiary (in
the event of the occurrence of an insurable accident) and the insurer shall
directly pay the insurance pay-outs to the Lender. Such insurance policy shall
not contain any clause restricting the rights and interests of the Lender.


 


6.4 
The Borrower shall within 3 days from the day it knows or should know
the occurrence of the insurance accident notify the Lender of the same in
writing and shall in accordance with relevant terms of the insurance contract
file claims with the insurer(s).  Insurance indemnification or compensation shall be applied towards
advance repayment of the loan hereunder, or, upon the consent of the Lender,
towards restoring the value of the project, or, if applicable, it shall be
deposited into an account designated by the Lender as a guarantee deposit to
ensure the performance by the Borrower of its debts of hereunder.


 


Article 7   Representations and Warranties


 


The Borrower warrants and represents
to the Lender that (Such representations and warranties shall remain valid
throughout the term of this Contract.):


 


7.1 
The loan project and its incurrence of the loan are in compliance with
the requirements of laws and regulations;


 


7.2 
It has the requisite entity qualification to act as a borrower hereunder
and has the capacity and ability to enter into and perform this Contract;


 


7.3 
Execution by it of this Contract has obtained all requisite
authorizations or approvals, and execution and performance of this Contract
does not violate its articles of association and relevant requirements of laws
and regulations or conflict with any obligation assumed by it under other
contracts;


 


7.4 
Other debts payable by it have been paid on time and it has not in bad faith
defaulted on any bank loan principal and interest;


 


7.5 
It has a sound organizational structure and a sound financial management
system and has no material regulatory or disciplinary violations in the course
of its production and operation during the most recent year; and its current
senior management personnel have no record of material misconduct;


 


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7.6 
All documents and information provided to the Lender are true, accurate,
complete and valid, and are free from misstatement, material omissions or
misleading representations;


 


7.7 The financial and accounting
reports provided to the Lender have been prepared in accordance with the
accounting standards of the PRC and truthfully, fairly and fully reflect its
operation conditions and its indebtedness; and as from the date of its most
recent financial and accounting reports, its financial condition has not
suffered any material adverse change; and


 


7.8 
It has not concealed from the Lender any litigation, arbitration or
claims in which it is involved.


 


Article 8   Undertakings of the Borrower


 


The Borrower undertakes that:


 


8.1  
It will draw and use the loan in accordance with
the time limits and purpose of use set out herein and will not in any form whatsoever
divert such borrowed funds to securities markets, futures markets or any
purposes prohibited or restricted by relevant laws and regulations.


 


8.2 
It will in accordance with this Contract settle in full the principal,
interest and other payable amounts of the loan.


 


8.3 It will
accept and actively cooperate with the review and supervision by the Lender in
respect of its use of the loan funds (including purpose of use of such funds)
in the form of account analysis, voucher review, onsite investigation, etc.,
and will at the request of the Lender regularly provide summarized reports on
the use of the loan funds.


 


8.4 It will accept the credit review
by the Lender, and will in accordance with the request of the Lender provide
its balance sheet, income statement and similar accounting and financial
materials, as well as other materials which reflect its debt repayment ability;
and it will assist and cooperate with the Lender in the investigation, inquiry
into and supervision by the Lender of its production and operation and its
finances.


 


8.5 
It will not in any form whatsoever distribute any dividend prior to full
settlement of the principal, interest and other amounts payable of the loan
hereunder.


 


8.6 Any
combination, division, capital decrease, equity change, transfer of material
asset or claims, material investment to an outside party, material increase of
debt finance, and other action likely to adversely affect the rights and
interests of the Lender shall obtain prior written consent of the Lender or
shall provide for, to the satisfaction of the Lender, arrangements in respect
of the realization of the creditor claims of the Lender.


 


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8.7 
It will timely notify the Lender of any of the following:


 


(1)  change of its articles of
association, business scope, registered capital or legal representative;


 


(2) its winding-down,
dissolution, liquidation, suspense of business for rectification, revocation of
business license, cancellation or filing (whether voluntary or involuntary) for
bankruptcy;


 


(3)  any material economic
dispute, litigation or arbitration in which it is involved or is likely to be
involved, or any legal seizure, attachment or supervisory custody of its
properties;


 


(4)  any material cases or
economic disputes involving its shareholders, directors or its current senior
management personnel.


 


8.8 It will timely, fully and
accurately disclose to the Lender its related parties and related party
transactions.


 


8.9 It will timely sign, and thereby
show its receipt of, all notices mailed or otherwise delivered by the Lender.


 


8.10 It will not dispose of its
self-owned assets in any manner that may diminish its debt repayment ability;
nor will it provide any security to any third party using any assets that have
come into being as a result of the loan hereunder without the consent of the
Lender.


 


8.11 
If the loan hereunder is disbursed as a credit loan, it will fully,
truthfully and accurately provide a regular update on its provision of
securities in favor of a third party and will at the request of the Lender
execute an account supervision agreement; where the provision of a security to
an external party may affect its performance of its obligations hereunder, it
will obtain written consent of the Lender.


 


8.12 
It will support the Lender’s involvement in the review of the budget
estimation, budget and final budget accounting as well as in project tender,
project completion inspection and like matters.


 


8.13 
It will assume costs and expenses arising out of
the entry into and performance of this Contract as well as costs and expenses
paid or payable by the Lender in connection with the realization of the
creditor claims of the Lender hereunder, including without limitation
litigation or arbitration costs, asset preservation costs, attorney’s fee,
enforcement expenses, assessment expenses, auction expenses and public
announcement-related expenses.


 


8.14 The debts hereunder shall rank
above the debts of the Borrower to its shareholders and shall rank at least pari passu with same type debts of the Borrower to other
creditors.


 


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Article 9  Warranties of the Lender


 


The Lender warrants that:


 


9.1 It will disburse the loan to the Borrower in
accordance with this Contract.


 


9.2 
Unless otherwise required by laws and regulations or this Contract, it
will maintain in confidence the non-public materials and information provided
by the Borrower.


 


Article 10   Breach of Contract


 


10.1 
Any of the following shall constitute a breach of contract by the
Borrower:


 


(1)  The Borrower fails to
repay in accordance with this Contract the principal, interest and other
amounts payable of the loan hereunder, or fails to perform any of its other
obligation hereunder, or breaches its representations, warranties or
undertakings hereunder;


 


(2) The security provided
hereunder suffers any change adverse to the creditor claims of the Lender and
the Borrower fails to separately provide another security acceptable to the
Lender;


 


(3) The Borrower fails to
settle any other due and payable debts (including those which have been
declared accelerated), or fails to perform its obligations under any other
agreements, or violates its obligations thereunder, and such failure or
violation has affected or is likely to affect its performance of its
obligations hereunder;


 


(4)  The profitability, debt
repayment ability, operating ability, cash flows and other financial indicators
of the Borrower have breached the agreed standards or have deteriorated, which
has affected or is likely to affect its performance of its obligations
hereunder;


 


(5) The shareholding structure,
production and operation, outside investment and other indicators of the
Borrower suffer a material adverse change, which has affected or is likely to
affect its performance of its obligations hereunder;


 


(6) The Borrower is involved in
or is likely to be involved in any material economic dispute, litigation or
arbitration, or its assets are subject to seizure, attachment or enforcement,
or the Borrower has become the subject of any lawfully established case and
investigation or any lawfully adopted penalizing measures by any judicial organ
or administrative authority, or has been publicized by the media because of its
breach of relevant stipulations or policies of the state, which has affected or
is likely to affect its performance of its obligations hereunder;


 


(7)  Any of its main individual
investors or key management personnel suffers any unusual change or has
disappeared or has become the subject of any lawful investigation or 


 


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any personal freedom restraint
measure by any judicial organ, which has affected or is likely to affect its
performance of its obligations hereunder;


 


(8)  The Borrower willfully
evades the creditor claims of the Lender by resorting to fictitious contracts
with a related party, by tricking the Lender into extending funds or credit
facility through fabricated transactions which are not backed up by genuine transactions;
or by means of related party transactions;


 


(9)  The Borrower has become,
or is likely to become, the subject of cessation of business, dissolution,
liquidation, suspension of business for rectification, business license
revocation, cancellation or filing (voluntary or involuntary) for bankruptcy;


 


(10)  The Borrower causes
accidents attributable to it as a result of its breach of relevant laws,
regulations and regulatory requirements or industry standards on foodstuff
safety, production safety, environment protection and the like, which has
affected or is likely to affect its performance of its obligations hereunder;


 


(11) 
The capital for the project has failed to be put in place as per the
schedule or in the required percentage, or has not adequately made-up by the
Borrower within the required time limit;


 


(12) 
The Borrower fails to complete project construction in accordance with
the progress schedule or a material adverse change occurs to the construction
or operation environment and conditions of the project;


 


(13) The credit rating,
profitability, assets-debt ratio, cashflows from operating activities and other
indicators of the Borrower fail to meet the conditions of the Lender for
extension of credit loans (in case the loan hereunder is a credit loan), or the
Borrower without written consent of the Lender, creates a mortgage or pledge in
favor of a third party on its effectively-operated assets or provides any
guarantee to an outside party, which has affected or is likely to affect its performance
of its obligations hereunder; and


 


(14) Other circumstances which are
likely to adversely affect the realization of the creditor claims of the Lender
hereunder.


 


10.2  If the Borrower breaches the Contract, the
Lender shall be entitled to take one or more of the following measures:


 


(1) to demand the Borrower
to rectify such breach within a set time limit;


 


(2) to cease disbursing the
loan and other financings under this Contract and other contracts between the
Borrower and the Lender, or cancel in part or in full any loan and other
financings not yet drawn down by the Borrower;


 


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(3) to declare all
outstanding loan and other financings under this Contract and other contracts
between the Lender and the Borrower immediately due and payable and to
immediately recover all outstanding amounts;


 


(4) to demand the Borrower
to indemnify for the losses incurred by the Lender as a result of the breach of
the Borrower;


 


(5) Other measures required
by laws and regulations, the terms hereof or deemed necessary by the Lender.


 


10.3 If the Borrower fails to repay
in accordance with the provisions hereof any due and payable loan (including
any loan declared immediately due and payable), the Lender shall have the right
to charge default interest at the default interest rate set out herein as from
the date of such default. Compound interest shall be charged at the default
interest rate in respect of interest which the Borrower has failed to pay on
time.


 


10.4 
If the Borrower fails to apply the loan towards the purposes set out
herein, the Lender shall have the right to charge penalty interest on the
diverted portion of the loan at the penalty interest rate for loan diversion
set out herein as from the date of such loan diversion. Compound interest shall
be charged at the default interest rate in respect of interest which the
Borrower has failed to pay on time during the period of loan diversion.


 


10.5 
If both of the circumstances set out in Articles 10.3 and 10.4 above
occur to the Borrower, the penalty interest shall be charged on the basis of
the higher of the two penalty interest rates rather than concurrently on the
basis of the two.


 


10.6 
If the Borrower fails to repay on time the
principal, interest (inclusive of default interest, penalty interest and
compound interest), and other amounts payable of the loan, the Lender shall
have the right to demand such repayment by an announcement to the media.


 


10.7 
If the relationship of control (or being controlled) between a related
party of the Borrower and the Borrower suffers any change, or if any of the
circumstances as those set out in Article 10.1 above (other than the
circumstances in clauses (1) and (2) thereunder) occurs to the
related party of the Borrower, and if such change or circumstance has affected
or is likely to affect the performance by the Borrower of its obligations
hereunder, the Lender shall have the right to take all measures contemplated
hereunder.


 


Article 11  Deduction


 


11.1  If the Borrower fails to repay in accordance
with this Contract its debts due and payable hereunder (including those
declared immediately due and payable), the Lender shall have the right to
deduct, for the purpose of settlement of the same, relevant amounts from all of
the Borrower’s RMB and foreign exchange accounts opened by the Borrower with
the Lender of other branches of the Industrial and Commercial Bank of China
until all of the debts of the Borrower hereunder shall have been settled in
full.


 


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11.2  If the deducted amounts are denominated in a
different currency from that involved hereunder, such amounts shall be
converted using the applicable exchange rate of the Lender on the date of such
deduction. Interest and other expenses arising between the period from the date
of such deduction to the date of full settlement (i.e. the date on which the
Lender shall have in accordance with the foreign exchange administration
policies of the state converted the deducted amounts into the currency hereunder
and shall have actually settled the debts hereunder with such converted
amounts) and any difference arising out of exchange rate fluctuations during
such period shall be borne by the Borrower.


 


11.3  If the amounts so deducted by the Lender are
not sufficient to settle all of the debts of the Borrower, the Lender shall
have the right to determine the order of settlement.


 


Article 12   Assignment of Rights and Obligations


 


12.1 
The Lender shall have the right to assign part or all its rights
hereunder to a third party without consent of the Borrower. The Borrower shall
not assign any of its rights and obligations hereunder without written consent
of the Lender.


 


12.2   The Borrower hereby acknowledges that the
Lender or the Industrial and Commercial Bank of China Limited (“ICBC”) may in
line with their business management needs, authorize or entrust another ICBC
branch to perform the rights and obligations of the Lender hereunder, or may
direct another ICBC branch to assume and manage the creditor claims in respect
of the loan hereunder without further consent of the Borrower. Such other ICBC
branch which assumes the rights and obligations of the Lender hereunder shall
be entitled to exercise all of the Lender’s rights hereunder, and to bring
litigation or arbitration proceedings or to file enforcement motions in its own
name in connection with any disputes hereunder.


 


Article 13               Effectiveness, Amendment and Termination


 


13.1         This
Contract shall become effective from the execution date, and terminate on the
date on which all obligations of the Borrower hereunder have been performed.


 


13.2         Any
amendment to this Contract shall be made in writing by the parties through
consultation. The amendment provision or agreement shall constitute part of
this Contract, with the same legal validity as this Contract. Except for the
amendment, the remaining provisions of this Contract shall remain valid, and
prior to the effectiveness of the amendment, the original provision shall
remain valid.


 


13.3         No
amendment or termination of this Contract shall affect the right of the parties
hereto to claim indemnification for losses. No Termination of this Contract
shall affect the validity of the dispute resolution provision.


 


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Article 14               Governing Law and Dispute Resolution


 


The execution, validity,
interpretation, performance and dispute resolution of this Contract shall be
governed by the laws of the People’s Republic of China. Any dispute or
controversy arising out of or in connection with this Contract shall be settled
by the parties through consultation, and if no settlement can be reached
through consultation, shall be resolved by the means set forth in this
Contract.


 


Article 15               Entire Agreement


 


Chapter One (Loan Conditions) and
Chapter Two (Fixed Assets Loan Contract Terms and Conditions) hereof shall
constitute the entire loan contract, and the same term in these two chapters
shall have the same meaning. This loan owed by the Borrower shall be subject to
the two chapters set forth above.


 


Article 16               Notices


 


16.1         All
notices hereunder shall be given in writing. Unless otherwise agreed, the
domicile designated by the parties as set forth herein shall be the mailing and
contact address. In the event of any change in any party’s mailing address or
other contact information, it shall promptly notify the other party in writing.


 


16.2         In
the event of any rejection to acknowledge the receipt by any party hereto or
other failure to deliver, the notifying party may deliver through notarization
or public announcement.


 


Article 17               Miscellaneous


 


17.1         No failure or delay to exercise or
partial exercise by the Lender of any right under this Contract shall operate
as a waiver or amendment of such right or any other right, nor shall it affect any
further exercise of such right or any other right.


 


17.2         No
invalidity or unenforceability of any provision of this Contract shall affect
the validity and enforceability of other provisions, or the validity of this
Contract as a whole.


 


17.3         The Lender shall have the right to, as required by
the relevant laws and regulations and requirements of financial regulatory
authorities, provide the information relating to this Contract and other
relevant information of the Borrower to the credit information system of the
People’s Bank of China and other credit information database set up in
accordance with law for the inquiry and use by properly qualified authorities
or individuals. The Lender shall be entitled to, for purposes of executing and
performing this Contract, have access to the relevant information of the
Borrower through the credit information system of the People’s Bank of China
and other credit information database set up in accordance with law.


 


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17.4         The terms used herein, such as “related
parties”, “related party relationship”, “related party transactions”, “main
individual investors” and “key management personnel” shall have the same
meaning as ascribed thereto in the
Accounting Standard for Business Enterprises No. 36 - Related Party
Disclosure issued by the Ministry of Finance of the People’s Republic of China
(Cai Kuai [2006] No. 3) and any subsequent amendments thereto.


 


17.5         The
notes and certificates in connection with the loan hereunder prepared and kept
by the Lender pursuant to its business rules, constitute the effective evidence
proving the creditor-debtor relationship between the Borrower and Lender, and
shall be binding upon the Borrower.


 


17.6         In
this Contract, (i) all references to this Contract shall include any
amendments or supplements thereto; (ii) The section headings are for
reference purposes only, and do not constitute any interpretation of this
Contract, or any limitation of the content thereunder or scope thereof; (iii) If
any drawdown date or repayment date falls on a non banking business day, it
shall be extended to the next succeeding banking business day.


 


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The parties hereby acknowledge:
that they have had full discussions on all of the terms and conditions of this
Contract; that the Lender has requested the Borrower to pay special attention
to all provisions governing the rights and obligations of the parties and to
fully and accurately understand such provisions and has provided at the request
of the Borrower explanations and clarifications on relevant provisions; that
the Borrower has carefully read and fully understood all of the provisions of
the Contract (inclusive of Chapter One Loan Conditions and Chapter Two Fixed Assets
Loan Contract Terms and Conditions); and that the Borrower and the Lender have
fully reached the same understanding on the provisions of this Contract and
have no objections whatsoever to the content of this Contract.


 


	
  Lender: Industrial and Commercial Bank of China Beijing Dongcheng
  Branch (seal)

  
	
   

  
	
   

  
	
  Person-in-Charge/Authorized
  Representative:  (signature)

  
	
   

  
	
   

  
	
  Borrower: Beijing Bona Film Culture Communications Co., Ltd.
  (seal)

  
	
   

  
	
  Person-in-Charge/Authorized
  Representative:  (signature)

  
	
   

  
	
   

  
	
  Execution Date:

  	
   

  	
   

  



 


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