SHANGHAI PUDONG DEVELOPMENT BANK Maximum Guarantee Agreement
Exhibit
10.54
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SHANGHAI PUDONG DEVELOPMENT
BANK
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NO.
2B7601100928126001
SHANGHAI
PUDONG DEVELOPMENT BANK
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1
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SHANGHAI PUDONG DEVELOPMENT
BANK
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Agreement
of Guarantee of Maximum Amount
Guarantor:
Anyang Xintianhe
Cement Co., Ltd
Creditor:
Zhengzhou Branch,
Shanghai Pudong Development Bank
Whereas:
The
Guarantor voluntarily assumes the guarantee liability for the loan under
AGREEMENT (as specified in Article 7), in order to ensure the comprehensive and
timely performance of the obligations by the debtor under AGREEMENT and the
exercise of the Creditor’s rights.
The
parties have reached a consensus through friendly consultation to conclude the
Agreement. The Parties will commit in accordance to the terms and conditions
stipulate hereunder.
Article
1 Guaranteed
Creditor’s right(s)
The
details of the guaranteed creditor’s right(s) are provided in Article 7 of this
Agreement.
Article
2 Guarantee
Liability
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2.1
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Scope
of Guaranty
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The
Guaranty covers Creditor’s right of the agreement, interests (the interests
mentioned hereinafter including interest, default interest, compound interest),
liquidated damages, compensation, charges, all expenses incurred in the signing
and performance of this Agreement and the expenses attributable to the exercise
of guarantee rights and the Creditor’s rights (including but not limited to
litigation fee, taxes, attorney fee, travel expenses, enforcement fee and charge
for auction or disposition of property) and the additional security deposit
required by the Creditor.
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2.2
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Mode
of Guaranty
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The
Guaranty mode hereof is Guaranty with joint and several
liabilities;
The
Guarantor confirms in case that the debtor fails to repay the debt in accordance
with the AGREEMENT, the Creditor is entitled to ask the Guarantor to assume the
guarantee liability in the scope defined in the Agreement, no matter whether the
Creditor has other security rights on the debt under the AGREEMENT (including
but not limited to security, mortgage and pledge), with no need to ask the other
Guarantors to assume the guarantee liability first.
The
Guarantor hereby undertakes to waive the defense that claims for advance
enforcement of the guarantee in rem provided by the debtor.
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2
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SHANGHAI PUDONG DEVELOPMENT
BANK
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2.3
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Guaranty
Period
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Guaranty
Period for each debt shall be calculated respectively and is from the maturity
date of each debt to two years after the maturity date in the
AGREEMENT.
Party B
shall assume separately the guarantee liability of repayment installments of
each debt under the AGREEMENT during the term of the AGREEMENT. The Guaranty
period for any one debt shall be two years as from the expiry of last
installment loan in case of the repayment in installments for the
debt.
The term
“maturity” and “expiry” stated in this Agreement includes the situation when the
Creditor announces the early maturity.
The
maturity date of all debts or part of the debts shall be the early maturity date
in case of the announcement of early maturity.
The
Guaranty Period shall be two years as of the expiry date provided in the
extension agreement if an extension agreement is reached between the Debtor and
the Creditor. The Guarantor’s joint and several liabilities for the debts shall
remain in force in the extended period without the Guarantor’s prior
content.
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2.4
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Alteration
of AGREEMENT
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Any
extension and any deferred repayment permission the Creditor gives to the Debtor
and the amendments, alterations or replacements of any terms and conditions of
the AGREEMENT made by the Creditor and the Guarantor shall not have any effect
on the rights and interests of the Creditor under this Agreement and shall not
cause any diminishment of the guarantee liability based on the Guarantor’s
deemed content in the case.
The issue
of L/C, Letter of Guarantee or Standby L/C by the Creditor, or any amendment of
the L/C, Letter of Guarantee or Standby L/C made by the Creditor and the
Guarantor shall not cause any diminishment of the guarantee liability with no
need to obtain the content of the Guarantor or prior notify the Guarantor based
on the Guarantor’s deemed content in the case.
Article
3 Statements
& Commitments
The
Guarantor states and undertakes as follows to the Creditor:
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3.1
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the
Guarantor shall be a independent legal subject that has complete civil
capacity to perform the obligations of the Agreement under the name of
itself and assume the civil responsibility
independently;
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3
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SHANGHAI PUDONG DEVELOPMENT
BANK
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3.2
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The
Guarantor has the authority to sign the Agreement, and the Guarantor has
already obtained all the authorization and approval required by the
Agreement; The terms and conditions of this Agreement are reached on a
basis of the Guarantor’s real intent and free will and shall have legal
binding force on the Guarantor.
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3.3
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the
Guarantor hereby undertakes that there is no any infringement of the laws
(the laws hereof includes laws, regulations, rules, local laws and
regulations, judicial interpretation), Articles of Association, relevant
documents of the bodies with power, judgments or decisions and any
conflict with other Agreements or agreements the Guarantor has already
signed or any other obligations the Guarantor has already taken during the
execution and performance of this
Agreement.
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3.4
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the
Guarantor shall promise all financial statements (if any) complies with
the laws and regulations of PRC (excluding Hong Kong, Macau SAR and Taiwan
Region) and could gives a real, complete and unprejudiced explanation of
the financial conditions of the Guarantor and all documents and materials
submitted to Party A are accurate, real, complete, valid without any
concealment.
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3.5
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the
Guarantor shall vow to go through the filling, registration or other
procedures required by the validity and legal performance of the Agreement
and pay relevant expenses;
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3.6
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there
occurs no big adverse change of the operational and financial situation
since the latest audited financial
statement;
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3.7
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the
Guarantor has disclose all the facts or information it knows or should
know which is important for the Creditor to decide whether to offer the
loan under the AGREEMENT;
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3.8
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the
Guarantor hereby confirms any arrear of wage, medical care, disability
benefits and compensatory payment has not happened or will not happen in
the execution date and during the performance of this
Agreement;
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3.9
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the
Guarantor undertakes there is no situation or event that has or may have
material negative effect on the performance capability of the
Guarantor.
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Article
4 Other
Provisions
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4.1
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the
Commitments of the Guarantor
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4.1.1
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The
Guarantor shall not take the following actions without the written content
of the Creditor:
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4.1.1.1
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dispose
the whole or majority of the significant assets in ways of sale, donation,
rent, transfer, mortgage, pledge or other
measures;
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4
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4.1.1.2
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change materially the operative
mechanism or property organization form, including but not limited to
the Agreement operation, leasing, consortium, corporation system
reform, shareholding reform, share transfer, merger (or acquisition),
joint venture with foreign investment (or cooperation), division,
establishment of subsidiaries, transfer of property and decrease of
registered capital;
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4.1.1.3
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change
the business scope or major businesses and to alter the Articles of
Association;
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4.1.1.4
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providing
the guarantee to the third parties, which has huge negative effect on the
Guarantor’s financial situation and its capability to perform the
obligations under the Agreement;
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4.1.1.5
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apply
for reorganization, bankruptcy and dismissal of the
company;
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4.1.1.6
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Sign
the contracts/agreements that have huge adverse effect on the Guarantor’s
ability to perform the obligations under the Agreement or assume relevant
obligations that have same effect.
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4.1.2
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the
Guarantor undertakes to promptly notify the Creditor of the event on the
day of the event and send the originals of relevant notice (stamped by
Non-natural person or signed by natural person) to the Creditor in 5
business days after the day of the event in case of the following
circumstances:
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4.1.2.1
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the
events that denies the authenticity and accuracy of the statements and
commitments the Guarantor makes in this Agreement
happen;
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4.1.2.2
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the
Guarantor or its controlling shareholder, actual controller or the related
parties being involved in litigation or arbitration, or its asset being
distrained upon, sealed-up, frozen or enforced or being imposed by other
measures that have same effect, or its legal representative, director,
supervisor and senior management staffs being involved in actions,
arbitrations or other enforcement
measures.
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4.1.2.3
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the
change of the legal representative or its authorized representatives,
responsible person, major financial responsible person, communication
address, company name and work place of the Guarantor, or the change of
the Guarantor’s domicile, habitual residence, work unit and name, or
long-term departure of the residence place, or any adverse change in the
Guarantor’s income level;
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5
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4.1.2.4
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the
reorganization and bankruptcy applied by other debtors or the revocation
made by the governing authority.
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4.1.3
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the
Guarantor undertakes to submit relevant financial materials or income
certification as required by the Creditor at any
time;
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4.1.4
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the
Guarantor undertakes to assume the joint and several liabilities to
complement the security deposit in case that the debtor fails to make up
the deficiency of the security deposit (including early making-up) as
required by the Creditor in issuing L/C, Letter of Guarantee or Standby
L/C. The making-up of the deficiency of the security deposit shall not
constitute the exemption of the guarantee liability the Guarantor shall
undertake in accordance with the Agreement. Any losses (including interest
losses) arising out of the performance of the obligation to complement the
security deposit under the Agreement shall be borne by the Guarantor
itself.
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4.1.5
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the
Guarantor hereby vows to suspend the exercise of recourse right or
relevant rights arising from the performance of the Agreement before the
debtor pays off all debts under the
AGREEMENT;
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4.1.6
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The Guarantor
shall continue to assume the joint and several liabilities for the early
repayment or the sustained debts in case of the revocation of the
individual repayment if the debtor repays the debt in whole or in part
early or liquidates individually.
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4.2
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Deduction
Provisions
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4.2.1
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The
authorized Creditor should directly deduct the same amount of money from
any account the Guarantor opens in Shanghai Pudong Development
Bank to clear off the overdue debt or deficient security deposit in
case of the overdue debt or that the security deposit shall be made up by
the Guarantor.
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4.2.2
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Unless
the authorities have particular regulations, the deducted money
should clear off all debts in the following orders: first the money should
be used to pay off the overdue expenses charged for the Guarantor and
debtor; then the money should be used to pay off the interests of the
overdue bills; the remaining money should be used to pay off the
principals of the overdue bills; if there are several overdue claims, it
is the Creditor’s right to decide the priority of the
pay-off.
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6
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SHANGHAI PUDONG DEVELOPMENT
BANK
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4.2.3
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In
case of any discrepancy between the currency of the accounts deducted and
the currency of repayment, the Creditor will be responsible for
conversion with an exchange rate determined by it and the Guarantor shall
bear the exchange rate risk.
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4.3
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Certification
of debt
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It has
been acknowledged by the parties that the accounting documents issued and
recorded in compliance with its business rules in its Book of Accounts will be
the effective evidence of the debt of the Creditor.
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4.4
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Notification
& Service
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4.4.1
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The
notice from one party to the other party shall be sent to the
address specified at the signature page of this Agreement, or other
address changed by the other party against written notice. If the notice
is delivered to the address mentioned hereinabove, the service shall be
deemed completed in the following date: the seventh bank business day as
from the date when the notice is sent by registered mail to the major
business place (for the corporation and its branches and subsidiaries or
other organization) or the domicile (for natural person) in case of mail
service; the date signed by the recipient upon receipt in case of special
service; the transmission date in case of facsimile or Email. However, the
service of all notice, requirement or other communication sent to the
Creditor shall be deemed completed upon the actual receipt of the
Creditor. The notices sent to the Creditor in the form of facsimile or
Email shall be confirmed by the originals (sealed by Non- natural person
or signed by natural person) that could be delivered face-to-face and sent
by mail to the Creditor afterwards.
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4.4.2
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the
Guarantor hereby agrees that the service of any court summons and notices
during any litigation hereof shall be deemed completed upon their arrival
at the domicile stated at the end of the Agreement. Any adjustment to the
address hereinabove shall not be valid for the Creditor without
prior written notification.
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4.5
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Validity,
Amendment and Termination
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4.5.1
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This Agreement
shall be effective from the date of sealing by the Guarantor and the
Creditor and the signing or sealing by their legal representative/
responsible person or authorized representative (signature only for
natural person Guarantor) to the date when the guaranteed debts under the
Agreement are paid off.
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7
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SHANGHAI PUDONG DEVELOPMENT
BANK
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4.5.2
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The Agreement
is independent of principal AGREEMENT in the validity. In other
words, the total or partial invalidity of AGREEMENT shall not affect the
effectiveness of this Agreement and the obligation of the
Guarantor;
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4.5.3
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the
Agreement shall not be changed unilaterally or terminated early by either
party after the Agreement becomes effective; A written agreement
shall be reached between the parties hereto after negotiation in case that
the Agreement shall be amended and terminated
early.
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Article
5 Breach
of Agreement & Settlement of Breaches
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5.1
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Breach
of Agreement
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The
Guarantor shall be in breach of Agreement in one of the following
circumstances:
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5.1.1
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Any
statement, explanation, guarantee made by the Guarantor during the term of
the Agreement or other relevant notice, authorization, approval, content,
certificate or other documents made by the Guarantor in compliance
with or related to the Guarantor are incorrect or misleading, or have been
proven incorrect or misleading, or have been proven invalid, revoked or
legally unbinding;
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5.1.2
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Any
infringement of one of the provisions of Article 4 of this
Agreement;
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5.1.3
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when
the Guarantor’s business is suspended, terminated, shut-down,
restructured, reorganized, taken-over or mandated, dissolved, revoked or
cancelled or bankrupted;
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5.1.4
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Death
or declaration of death of the Guarantor in case the Guarantor is natural
person;
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5.1.5
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the
change and transfer of the asset or attempted transfer of the asset by
virtue of marital relations by the
Guarantor;
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5.1.6
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Deteriorating
financial situation, serious difficulties in production and business
operations or some circumstances that may affect the Guarantor’s
operational situation and financial condition or performance
capability.
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5.1.7
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the
Guarantor or its controlling shareholder, actual controller or the related
parties being involved in litigation or arbitration, or its asset being
distrained upon, sealed-up, frozen or enforced or being imposed by other
measures that have same effect, or its legal representative, director,
supervisor and senior management staffs being involved in actions,
arbitrations or other enforcement
measures.
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8
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SHANGHAI PUDONG DEVELOPMENT
BANK
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5.1.8
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Any
infringement of this Agreement that could hinder the smooth performance of
this Agreement or other behavior of the Guarantor that may lead to the
damage of legitimate interest of the
Creditor.
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5.2
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Settlement
of Breaches
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The
Creditor is entitled to announce the early maturity of the debt or the debts
under the AGREEMENT or ask the Guarantor to assume the guarantee liability or
make up the deficiency of security deposit and pay the liquidated damage (the
calculation of the liquidated damage is specified in Article 7) in case of any
one of the above-mentioned breaches of Agreement. The Guarantor shall reimburse
all losses suffered by the Creditor if the liquidated damage fails to make
up.
Article
6 Other
Provisions
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6.1
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Applicable
Law
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The
Agreement is governed and construed by laws of the People’s Republic of China
(excluding Hong Kong, Macau SAR and Taiwan Region).
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6.2
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Settlement
of Disputes
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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 jurisdiction of the People’s Court of the domicile of the
Creditor;
During
the settlement of dispute, other provisions in the Agreement that may not be
affected shall be performed continuously.
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6.3
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Miscellaneous
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(1)
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Any
matters not provided herein shall be added in Article 7 or supplemented
subject to an agreement entered into between the parties. The appendixes
to the Agreement (please see Article 7 of this Agreement) shall form
integral parts of the Agreement and shall have the same binding force as
the Agreement itself.
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(2)
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Words
and expressions in this Agreement shall have the same meanings
respectively assigned to them in the AGREEMENT hereafter referred to,
unless otherwise provided.
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9
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SHANGHAI PUDONG DEVELOPMENT
BANK
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MAXIMUM
GUARANTEE AGREEMENT
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Article
7 Special
Clauses
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7.1
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The AGREEMENT
guaranteed by this Agreement (in correspondence with WHEREAS
clauses)
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(1)
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The
AGREEMENT covers a series of Agreements signed between 26th June, 2009 and
25th June, 2011.
The Creditor of this Agreement is Zhengzhou Branch,
Shanghai Pudong Development Bank stated in the
AGREEMENT;
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(2)
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The
debtor under the AGREEMENT is Henan
Shuncheng Group Coal Coke Co., Ltd. Domicile:
Nangongye Rd.,
Tongye Town, Anyang.
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7.2
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The
Primary Creditor’s right (in correspondence with Article 1 of this
Agreement)
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The
Primary Creditor’s right guaranteed by this Agreement: a kind of or kinds
of credit including but not limited to all varieties of loan and all possible
debts arising from intermediary business provided to the debtor continuously
between 26th June, 2009 and
25th June, 2011
(hereinabove referred to as “period of debts”. The total amount of the
above-mentioned debts during the period of debts shall not exceed RMB SIXTY-SEVEN MILLION CHINESE YUAN
ONLY (or other currencies with equivalent value). The amount of the
debts shall be converted according to the exchange rate determined by the
Creditor itself in case that the currency of the debt is foreign
currency.
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7.3
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Settlement
of Breaches (in correspondence with Clause 2, Article
5)
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Liquidated
damage: accounting for five percentage of
the total amount of the debts.
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7.4
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The
appendixes of this Agreement includes: (in correspondence with Para.1,
Clause 3, Article 6)
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(1)
(2)
(3)
(4)
(5)
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7.5
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Other
provisions (in correspondence with Para.1, Clause 3, Article
6)
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7.6
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The
Agreement shall be in originals,
respectively held by the Guarantor, the Debtor, and ,
and the originals have same legal
effect.
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10
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SHANGHAI PUDONG DEVELOPMENT
BANK
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MAXIMUM
GUARANTEE AGREEMENT
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(No text
in the signature page)
In
witness hereof the parties hereto have accurate and correct understanding of
legal definition of rights, obligations and limitation or exemption of liability
and have conducted detailed description and negotiation of all clauses, free of
any doubt, to execute this Agreement on 26th June,
2009.
Guarantor
(Common Seal)
Legal
Representative/Authorized Representative: /s/ Ji Hai Fu
(Signature/Seal)
Creditor
(Common Seal)
Legal
Representative/Authorized Representative: /s/ ▇▇ ▇▇▇▇
(Signature/Seal)
(Applicable
to the corporation mentioned hereinabove)
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