Form of Maximum Amount Guarantee Agreement
Exhibit
10.42
NO.13108109Z022-[__]
The
Parties:
Creditor (Party A): Anyang Branch,
Guangdong Development Bank
Address: Xiduan, Renmin Street,
Anyang
Legal
Representative/Responsible Person: ▇▇▇▇
▇▇▇▇▇▇▇ Title: President
Tel:
▇▇▇▇-▇▇▇▇▇▇▇ Fax:
▇▇▇▇-▇▇▇▇▇▇▇ Postal
Code: 455000
Guarantor
(Party B):
Address:
Legal
Representative/Responsible Person:
__/__ Title: ___/___
Business
License NO.: ___/___
ID NO.
(For natural person):
Tel: Fax: Postal
Code:
Opening
Bank: ___/___
Basic
Account/Settlement Account: ___/___
Account
No.: ___/___
General
Account/Savings Account: (1) / Account
No. ___/___
(2) / Account
No. ___/___
Signed
at Anyang,
Henan
Whereas
Party B voluntarily provide guarantee to Party A for the fulfillment of the debt
under the Principal Agreement as stated in Article 1 hereinafter, the parties
hereto enter into this Agreement through equal negotiation, the terms hereof
shall be interpreted in accordance with the Principal Agreement, unless
otherwise specified.
Article
1 the
Principal Agreement
The
Principal Agreement which is guaranteed by this Agreement, refers to the
definition A
:
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A.
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The
Comprehensive Credit Line Contract, dated in 6 July 2009,
numbered 13108109Z022,
reached in by and between Party A and Henan Shuncheng
Group Coal Coke Co., Ltd (hereinafter
referred to as the “Debtor”) and its
amendments or supplementary agreements (including but not limited to
Extension Agreement. If that agreement has single agreements signed, the
single agreements thereof shall also be involved in the Principal
Agreement if any.)
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B.
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A
series of agreements and their amendments or supplements (including but
not limited to extension agreements) signed by Party A and
__/____ (hereinafter referred to as the “Debtor”) from / (date) to / (date)
.
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Article
2 Maximum
Amount
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2.1
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The
Maximum Amount of loan principal guaranteed by this
Agreement:
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Currency:
RMB
SIXTY MILLION
YUAN
RMB
60,000,000.00
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2.2
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All
the amount and expenses defined in Article
4.
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The
Maximum Amount of Credit covered by this Agreement shall be the sum of the
amount specified in the above two clauses.
Article
3 Type
of Guaranty
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3.1
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The
guaranty mode hereof is guaranty with joint and several
liabilities;
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3.2
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The
guarantors shall form several joint guarantees and undertake joint and
several liabilities in case of several guarantors under this
Agreement.
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Article
4 Scope
of Guaranty
The
guaranty covers principal, interests, default interest, compound interest,
default penalty liquidated damages, all expenses incurred in the performance of
the Creditor’s Rights under the principal agreement (including but not limited
to litigation fee, arbitration fee, attorney fee, travel expenses, enforcement
fee, expenses for preservation of property, evaluation fees, charge for auction
or disposition of property, transfer fee and announcement fee) and other payable
expenses.
Article
5 Guaranty
Period and Limitation of Action
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5.1
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Guaranty
Period: two years as of the maturity date of the debt performance period
under the Principal Agreement.
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5.2
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the
guaranty period shall be two years after the date when Party A notify the
debtor of the prepayment in writing in case that Party A requires the
debtor to prepay the debt in accordance with laws or the Principal
Agreement;
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5.3
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Party
A has the right to ask Party B assume the guarantee liability of the Debt
in whole or in part, together or separately for one or more debts during
the guaranty period. The guaranty period for any one debt shall be from
the effective date of this Agreement to two years as from the expiry of
last installment loan in case of the repayment in installments for the
debt.
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5.4
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If
the principal creditor’s right has not been fully paid, Party A will ask
the guarantor(s) to undertake the guarantee liability before the expiry of
the guaranty period as stipulated in this Article for the outstanding
debts. The Limitation of Action shall be calculated and applied from the
date when the creditor asks the guarantor(s) to assume the guarantee
liability.
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Article
6 Enforcement
of Guarantee
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6.1
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Party
A can directly ask Party B to pay the loan principal and interest and
relevant expenses which the Debtor fails to repay according to the
principal agreement, and Party A is entitled to claim for the amount due,
and to deduct the payable amount of which the debtor should repay in the
accounts Party B opened with Party A or any branches of Party A without
Party B’s permission.
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6.2
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In
case the debt is guaranteed by both the personal guarantee and guarantee
in rem, then if the debtor fails to repay the debt due or the circumstance
where the guarantee shall be enforced as agreed by the parties happens,
Party A is entitled to choose guarantee in rem as the way to perform the
guarantee or require Party B to assume the guaranty
liability.
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6.3
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Party
A is entitled to ask Party B to assume the guarantee liability beforehand
by written notification in case of any circumstance as
follows:
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a.
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The
Principal Agreement shall be canceled upon conditions stipulated by the
law or terms and conditions;
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b.
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The
debt under the Principal Agreement cannot be liquidated or liquidated in
whole when other situations agreed by the parties in the Principal
Agreement for the early repayment of the debt
happen.
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6.4
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Other
guarantors (and/or Party B) undertake to assume their guarantee
liabilities even after the Creditor of the Principal Agreement waives the
guarantee rights or the priority of the guarantee in rem or changes the
guarantee in rem.
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Article
7 Declaration
& Commitment
Party B
states and undertakes as follows:
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7.1
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Party
B shall be a company or an organization that has been legally established
and lawfully exists and has
complete civil capacity to execute and perform this Agreement. Or Party B
shall be a legally qualified natural person with complete civil capacity
to execute and perform this
Agreement.
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7.2
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Party
B fully understands the terms and conditions of the Principal Agreement;
The execution and performance of this Agreement are based on the Party B’s
real intent and free will while Party B has already obtained all the legal
and valid authorization as required by its Articles of Association or
other inner management files.
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If Party
B is a company, the Guaranty hereof has already been passed by the board of
directors and shareholders meeting according to the provisions of its Articles
of Association; If the there are limitation provisions applicable to the
guaranteed total amount and separate guaranty amount in the Articles of
Association, the guaranty hereof shall not exceed the stipulated
limit.
Legal
representative or authorized representative signing the Agreement on behalf of
Party B shall sign this Agreement with legal, valid authorization from the
company; execution and performance of this Agreement shall not cause any breach
of any contracts, agreements or other legal documents that bind Party
B.
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7.3
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Party
B shall promise all documents and materials submitted to Party A are
accurate, real, complete and valid;
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7.4
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Party
B shall accept Party A’s supervision and inspection on the production and
operation condition, financial condition, and shall provide necessary
assistance and cooperation;
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7.5
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Party
B shall not conceal any already-taken huge debt before the execution date
hereof;
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7.6
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If
there are some circumstances that may affect Party B’s financial condition
and performance capability, including but not limited to division, merger,
joint operation, joint venture with foreign investment, cooperation,
contractual operation, reorganization, restructuring, going public and
other changes of forms, decrease of registered capital, transfer of
significant asset or stock equity, undertaking of huge debt, annexation,
dissolution, being shut-down, revocation of Business License,
deteriorating of financial situation, bankruptcy application (or be
applied), or involved in major litigation or arbitration, Party B shall
notify Party A in writing in a timely
manner.
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7.7
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Party
B vows to ensure the due performance of all guarantee liabilities under
this Agreement in case of division, merger, shareholding system reform and
other circumstances during the term of this
Agreement.
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Article
8 Culpa
In Contrahendo
In case
of invalidity of this Agreement due to Party B’s fault in concluding this
Agreement, Party B shall reimburse any loss or damage Party A suffers as a
result of the invalidity.
Article
9 Disclosure
of the Inner Related Parties of Party B And Related
Transaction
The
parties hereto agree to adopt clause 1 hereunder:
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9.1
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Party
B isn’t the group customer determined by Party B according to Guidelines of Commercial Bank
to the Risk Management of Granting Credit to the Group Client,(
‘Guidelines’ for
short);
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9.2
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Party
B is the group client determined by Party A according to the Guidelines.
Party B shall report to Party A the related transaction with an mount more
than 10% of its net asset in a timely manner according to Article 17 of
Guidelines, including the relation among transaction parties, transaction
items and nature of the transaction, transaction amount or its proportion,
pricing policies (including transaction without any price or only with
nominal amount).
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Article
10 Party
A’s Rights & Obligations
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10.1
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The
right to ask Party B to submit the documents which can verify Party B’s
legal status;
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10.2
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The
right to ask Party B to submit the financial report and other materials
which explains its credit
information;
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10.3
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The
right to ask Party B to assume the guarantee liability under this
Agreement upon the maturity of the debt if the debtor fails to liquidate
wholly or partly the debt due.
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10.4
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Party
A shall in a timely manner notify Party B in writing of the transfer if
Party A transfers its rights as a creditor to the third party during the
term of this Agreement.
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Article
11 Party
B’s Rights and Obligations
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11.1
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Party
B shall sign and return the receipt to the person serving the loan
collection documents sent or delivered by Party A. Party B shall send the
receipt in three working days after receiving the reminder letter or other
collection documents (including but not limited to those sent by post,
telex, cable, facsimile and Email).
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11.2
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Party
B shall undertake the guarantee liability in the scope as defined in this
Agreement notwithstanding the changes to the Principal Agreement by Party
A and the debtor which could be made without Party B’s permission unless
the change would impose more guarantee liability on Party B (except the
interest change in accordance with relevant
regulations)
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11.3
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In
case Party A transfer the principal Creditor’s right to any third person,
then Party B shall continue to undertake the guarantee liability within
the original scope.
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11.4
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Party
B shall not provide the guarantee beyond its guarantee capability or
dispose the asset in the ways that may jeopardize its guarantee
capability, nor shall Party B cause any damage to Party A’s rights during
the guarantee period. Party B is obliged to submit Balance Sheet and the
description of the guarantees provided to external parties, and regularly
or occasionally provide Party A with the financial statements and other
documents which can explain its real financial situation in Party A’s
request.
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11.5
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Party
A is entitled to directly ask Party B to liquidate the debt under the
Principal Agreement which is due or shall be repaid early according to
relevant provisions if the debtor fails to repay the loan principal and
interest in accordance with the Principal Agreement. Party B shall not
decline any reimbursement claim made by Party A with any excuse and
voluntarily waive its right of defense as stipulated in Article 20 of The
Guaranty Law of the People's Republic of
China.
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11.6
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Party
B agrees to assume the guarantee of joint and several liabilities as of
the date when Party B receives written notification sent by Party A
concerning cancellation of this Agreement or early recovery of the
creditor’s right according to the laws or provisions during the term of
this Agreement.
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Article
12 Breach
of Agreement
Party B
shall be in breach of this Agreement in one of the following
circumstances:
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1.
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Party
B fails to fulfill guarantee liability timely according to the provisions
of the Agreement;
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2.
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Party
B makes fraudulent statement in the Agreement or breaches its commitment
hereof;
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3.
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There
happens any incident stipulated in paragraph 6 of Article 7 hereof which
severely affects Party B’s finance condition and performance
capability;
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4.
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when
Party B’s business is terminated, dissolved, revoked or
bankrupted;
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5.
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Breach
of other provisions hereof by Party
B;
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6.
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Party
B fails to provide corresponding guarantee or the guarantee can hardly
meet Party A’s requirement in case that the senior management staffs of
Party B are suspected of being involved in corruption, bribe-taking,
jobbery or other illegal
management;
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7.
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Party
B fails to provide corresponding guarantee or the guarantee can hardly
meet Party A’s requirement in case that Party B is involved in severe
financial loss, loss of assets or losses or other financial crisis caused
by Party B’s external guarantee.
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8.
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Party
B fails to provide corresponding guarantee or the guarantee can hardly
meet Party A’s requirement in case that crisis occurs in management or
financial affairs of controlling shareholders or other related companies
of Party B, or Party B, controlling shareholders and other related
companies are involved in a significant related transaction which may have
effects on the operation of Party
B;
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9.
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Party
B fails to provide corresponding guarantee or the guarantee can hardly
meet Party A’s requirement in case of the adverse change in Party B’s
industry;
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10.
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Party
B’s infringement of other Agreements between Party B and Party A or other
institutions of Guangdong Development
Bank.
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In case
there occurs any breach as above mentioned, Party A is entitled to adopt
following measures respectively or jointly based on each separate
circumstance:
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1.
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Require
Party B to correct the breaches within a time limit and fulfill the
guaranty liability timely;
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2.
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Decrease,
suspend or terminate the line of credit to Party B totally or
partly;
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3.
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Suspend
or terminate, totally or partly, to accept Party B’s loan application
under other Principal Agreements; Suspend or terminate, totally or partly,
loan release of trade financing in
process;
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4.
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Declare
due immediately, totally or partly, Party B’s unpaid principal, interests
and other payables in connection with loan or trade financing loan under
other Agreements ;
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5.
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Terminate
or relieve the Agreement, terminate or relieve other Agreement between
Party B and Party A totally or
partly;
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6.
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Require
Party B compensate losses of Party A resulting from the breach of
Agreements;
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7.
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It
only needs to send notification beforehand or afterwards for Party A to
deduct the money in the account that Party B opens in Party A in order to
pay off all or part of debt. The undue money in the account shall be
regarded as due ahead of time. In case of any discrepancy between the
currency of the accounts and the pricing currency of Party A’s business,
it shall be converted by the price of selling spot exchange at the
deduction date when the pricing currency of Party A’s credit business is
foreign currency; or be converted by the price of purchasing spot exchange
at the deduction date when the pricing currency of Party A’s business is
RMB currency.
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8.
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Other
measures Party A take for
necessary.
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Article
13 Validity,
Amendment, Termination and Suspension
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13.1
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This
Agreement shall be effective from the date of signing and sealing by the
parties to the date when the loan principal, interest, default interest,
compound interest, liquidated damage, compensation, all expenses incurred
in the enforcement of creditor’s rights and other payable expenses are
paid off.
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13.2
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This
Agreement has binding force on the parties and their respective legal
successors or transferees after taking
effect;
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13.3
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This
Agreement is independent of the Principal Agreement in the validity. In
other words, the total or partial invalidity of the Principal Agreement
shall not affect the effectiveness of this Principal Agreement and the
obligation of Party B;
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13.4
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This
Agreement shall not be changed unilaterally or terminated early by either
party after this Agreement becomes
effective;
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A written
change or revision agreement may be entered into after negotiation and mutually
agreed by both parties. Any revision or amendment shall constitute an
inseparable part to this Agreement.
A written
agreement shall be reached between the parties hereto after negotiation in case
that this Agreement shall be terminated early. The terms and conditions of this
Agreement shall remain in force before the written agreement takes
effective.
Article
14 Notarization
The
parties hereby agree and confirm: this Agreement is held to be enforceable and
executed compulsorily after the notarization and Party A may apply for court
enforcement which Party B shall accept unconditionally and waive the right of
defense according to this Agreement in case that the debtor fails to repay the
principal and interest due and other payable expenses or of any infringement by
Party B as stipulated in Article 12 hereof,
Article
15 Applicable
Law and Settlement of Disputes
This Agreement
is governed and construed by laws of the People’s Republic of
China.
All
disputes and argues arising from the performance of this Agreement shall be
solved through negotiation by the parties; if negotiation fails, both parties
agree to adopt the same settlement of disputes as stated in
the Principal Agreement;
During
the settlement of dispute, other provisions in this Agreement that may not be
affected shall be performed continuously.
Article
16 Special Statement of Party
B
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16.1
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In witness hereof Party B
hereto has accurate and correct understanding of the terms and conditions
of this Agreement and have conducted detailed negotiation of all clauses,
free of any objection, to accept this Agreement without any limitation or
exemption of Party B’s
liability;
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16.2
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with
Party B’s authorization, Party A can submit the enterprise credit
information to the credit service center of People’s Bank of China (or
other finance regulatory organizations) during the term of the loan (or
credit) and can inquire the above-mentioned organizations of the credit
information of Party B and use the information at any
time.
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Article
17 Supplementary
Provisions
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17.1
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The
parties shall examine carefully the scope and prescriptive period of
authorization of the counter-party and the signatory before the execution
of this Agreement;
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17.2
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The
parties agree that the communication and contact addresses shall be the
domiciles stated in this Agreement unless otherwise provided and promise
to timely notify the other party in writing in case of the change of
communication and contact
addresses.
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17.3
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In
this Agreement:
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Responsible
person of Party A: Sun
Jianyi, Tel: ▇▇▇▇-▇▇▇▇▇▇▇
Responsible
person of Party B: Tel:
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17.4
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Any
appendixes, revisions or supplements to this Agreement shall form an
integral part of this Agreement and shall share the same binding force
with this Agreement.
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The
appendixes to this Agreement includes: Approved
List of Investigation of Guarantee and surety.
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17.5
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This
Agreement shall be in two sets,
respectively held by Party A and Party B and the registration authority,
and the originals have same legal
effect.
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Article
18 Other
Provisions (please attach separate sheet if necessary)
Party B
voluntarily waives the right of defense that the joint and several liabilities
shall only be available to the debt other than the guaranteed debt, viz. Party
B, voluntarily and directly, without the prior enforcement of creditor’s right
by Party A, assume the joint and several liabilities of all outstanding debt in
case of any breach by the debtor.
In
witness hereof the parties hereto by representative duly authorized have
executed the Agreement.
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Party
A:
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Party
B:
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Common
Seal:
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Common
Seal:
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Legal
Representative:
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Legal
Representative:
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Authorized
representative:
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Authorized
representative:
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Dated
6th
Jul 2009