MORTGAGE AGREEMENT OF MAXIMUM AMOUNT CHINA CITIC BANK Wuhan Branch
Exhibit
10.9
CHINA
CITIC BANK
Contract
No.: No. 16 Mortgage 200619
MORTGAGE
AGREEMENT OF MAXIMUM AMOUNT
CHINA
CITIC BANK Wuhan Branch
AGREEMENT
OF MORTGAGE OF MAXIMUM AMOUNT
Mortgager:
Wuhan Blower Co., Ltd (Referred to as “Party A” hereunder)
Address:
Xxxx Xxxx Xxx Science Park, Jiangxia District, Wuhan
Post
Code: 430200
Tel:
00000000
Fax:
00000000
Legal
Representative: Xx Xxx
Opening
bank and Account Number: China CITIC Bank Zhuyeshan Branch;
7381910182200011201
Mortgagee:
China CITIC Bank Wuhan Branch (Referred to as “Party B” hereunder)
Address:
CITIC Mansion, 000 Xxxxxxx Xxxxxx, Wuhan
Post
Code: 430015
Tel:
000-00000000
Fax:
000-00000000
Legal
Representative/Principal: Xx Xxxxxx
Debtor:
Wuhan Blower Co., Ltd
Address:
Xxxx Xxxx Dao Science Park, Jiangxia District, Wuhan
Post
Code: 430200
Tel:
00000000
Fax:
00000000
Legal
Representative: Xx Xxx
Opening
bank and Account Number: China CITIC Bank Zhuyeshan Branch; 7381910182200011201
Signing
Place: China CITIC Bank
Signing
Date: September 29, 2006
-2-
In
order
to ensure the enforcement of Party B's claims, Party A is willing to provide
guaranty of mortgage of maximum amount for a series of debts between Party
B and
the debtor to the principal Agreement. For this reason,
through
friendly consultations conducted based on the principles of equality and mutual
benefit, and in accordance with Contract
Law of the People's Republic of China, The
Guaranty Law of the People's Republic of China
as well
as other relevant laws and regulations, Party A and Party B have
entered into agreement on the terms and conditions specified as
below.
Article
1
Definitions
A
mortgage of maximum amount as used in this Agreement means that Party A and
Party B agree upon and set for the debtor a maximum amount for a series of
debts
occurring successively during a given period of time, and that Party A shall
use
the mortgaged property to provide Party B with the guaranty of the debtor’s
performance of debts to the extent of the aforesaid maximum amount. The maximum
amount is the total balance of debts (including or with liabilities) arising
from all contracts between Party B and the debtor.
Article
2
Principal Claims of Mortgage Guaranty
Principal
claims of mortgage guaranty used in this Agreement refer to debts occurring
successively between August
28, 2006
and
August 28, 2007,
on the
base of credit granting to the debtor by Party B, with the maximum amount of
RMB
NINETEEN
MILLION ONLY (
in
capital ). After Party A performs his guaranteed obligation, the maximum amount
of guaranty would be deducted according to the actually fulfilled
amount.
Master
contracts used in this Agreement shall be contracts, agreements or other legal
documents derived from the debtor-creditor relationship between Party B and
the
debtor within the prescribed period and maximum amount.
Article
3
Mortgaged Property
Mortgaged
property provided to Party B by Party A are the properties listed in Appendix
(No.
16, Mortgage 200619 )
titled
“List of Mortgaged Property” to this Agreement, with a present value of RMB
THIRTY
FOUR MILLION NINE HUNDRED FORTY TWO THOUSAND SIX HUNDRED YUAN ONLY
(
in
capital) and mortgage ratio of %.
Within
the period of validity of this Agreement, shall the mortgage ratio exceed the
above ratio for any reason, Party A is obliged to take remedial measures
acceptable to Party B to reach or restore the aforestated ratio.
Article
4
Scope of Guaranty of Mortgage
The
scope
of guaranty of mortgage includes the principal and the interest thereof, penalty
interest, compound interest default
fine, compensation for damage, and the cost of enforcing the right of the claim
and mortgage (including but not limited to legal cost, attorney
fees, traveling
expenses etc).
Article
5
Period of Mortgage Right
The
term
of mortgage right shall be two years from the date of maturity of the limitation
of actions of the guaranteed claims.
-3-
Article
6
Declaration and Warrant by Party A
1.
Party
A has full, valid, and legal right of disposal over the mortgaged property
under
this Agreement. Shall any common ownership or co-ownership by shares exist
in
the property, such owners should agree clearly in writing that this Agreement
is
binding on them.
2.
Party
A warrants that there is no ownership dispute, seal up, or restraint on the
mortgaged property.
3.
Party
A is in full awareness of and agreement with all the terms and conditions set
forth by the principal contract, and provide guaranty of its own will for the
debtor of the principal contract. All intentions expressed by Party A hereunder
are genuine.
4.
Setting the mortgage would neither encounter any restrictions, nor shall it
cause any illegal matters. The property is free of any other property guaranty,
or sufficient disclosure has been made to Party B when there are any other
restrictions.
5.
All
data and information offered by Party A concerning the mortgaged property are
legal, genuine, exact and complete.
Article
7
Party A’s Rights and Obligations
1.
Party
A is to provide Party B with title certificate and other valid evidencing
documents and relevant data, which would be in the custody of Party B after
confirmation by both parties.
2
.Within
the validity of the contract, Party A is supposed to timely notify Party B
in
writing on the information it knows or should know that may affect the mortgage
right adversely. Such information includes but is not limited to stock right
transfer, restructure, merger, split, shareholding reform, partnership,
collaboration, consortium, contracting, lease, change of business scope and
registered capital, major economic disputes, mortgaged property ownership
disputes, going bankrupt, wind up, close down, dissolve, business license
revoked, canceled, or the mortgaged property of maximum amount is subject to
seal-up or property preservation measures by another lawsuit.
3.
Within
the validity of this Agreement, prior to obtaining a consent in writing by
Party
B, Party A shall be forbidden to transfer, lease, re-mortgage or dispose
otherwise of the whole or part of the mortgaged property. With the
aforementioned consent, Party A is in agreement that Party B has the right
to
dispose of the property through any methods listed below, and help complete
relevant formalities:
(1)
Pay
or pay in advance the principal, interest, and relevant fees and charges under
the principal contract;
(2)
Convert it into time deposit and set the certificate of deposit as
pledge;
(3)
Repair the mortgaged property to restore its original value;
(4)
Deposit with a third party named by Party B.
When
the
mortgage right is exposed or will be exposed to any damage from a third party,
Party A is obliged to take effective measures to avoid such damage.
Party
A
should neither pose any obstacle to Party B’s disposal of the mortgaged property
in compliance with the contract, nor take any actions that may hamper or delay
the disposal of mortgaged property in accordance with the contract by Party
B.
Party A promises to offer active support as required by Party B to accelerate
the enforcement of the mortgage right.
-4-
Party
A
is entitled to cancel the contract when all debts under the principal contract
are paid off by the debtor of the principal contract.
Article
8
Party B’s Rights and Obligations
1.
Party
B is entitled to dispose of the mortgaged property according to the stipulations
of the contract if the debtor of principal contract fails to repay the principal
and interest thereof in accordance with the principal contract upon the maturity
of performing period of the debt or acceleration of maturity pursuant to
relevant stipulations of the principal contract.
2.
If the
proceeds from the disposal of the mortgaged property do not cover all the
claims, Party B has the right to claim by law the difference on the debtor
of
the principal contract or Party A; if the proceeds exceed the claim, the balance
shall be returned to Party A.
3.
Party
B has the right to inspect the status of the mortgaged property at any time.
Article
9
Maintenance of Mortgaged Property
1.
Party
A shall have the obligation to maintain the mortgaged property intact and in
good condition, pay various taxes and fees, lawfully and properly possess,
use,
manage and operate the mortgaged property in sound condition, and welcome and
cooperate with Party B to check the condition of the mortgaged property at
any
time in the validity of the mortgage right.
2.
Within
the validity of the mortgage right, if there is a decline, for which Party
B is
not held accountable, in the value of the mortgaged property, then Party A
shall
restore the value of the property as requested by Party B, or provide equivalent
guaranty acceptable to Party B. Otherwise, Party A shall assume joint liability
for a debt under this Agreement of the amount equivalent to the
loss.
Article
10 Insurance of the mortgage
1.
Within
the validity of the mortgage right and prior to the full settlement of the
claims, Party A is to arrange property insurance for the mortgaged property
according to relevant laws as well as the insurance type and amount designated
by Party B. Under no circumstance is Party B entitled to terminate or cancel
the
insurance as long as there still are any unsettled claims. Party A is to extend
the insurance if the claims guaranteed by Party A have not been settled in
full
upon the expiration of the insurance.
2.
Within
the validity of the mortgage right, Party A is to deliver the original insurance
policy into the custody of Party B.
3.
Party
A shall instruct the insurer to xxxx on the insurance policy the following
statement: Party B is the first beneficiary of the insurance, and the insured
is
to transfer directly the insurance indemnity to the account designated by Party
B upon the occurrence of an insured event. If insurance has been arranged for
the mortgaged property with a first beneficiary other than Party B, it is
required to name Party B as the first beneficiary by endorsement or
alteration.
4.
In
respect of insurance indemnity, Party A understands that Party B has the right
to dispose of it through any of the methods hereunder, and would assist to
complete the relevant formalities.
-5-
(1)
Pay
or pay in advance the principal, interest, and relevant fees and charges under
the principal contract;
(2)
Convert it into time deposit and set the certificate of deposit as
pledge;
(3)
Repair the mortgaged property to restore its original value;
(4)
Deposit with a third party named by Party B;
(5)
Dispose of it when a qualified new guaranty has been provided by Party
A.
Article
11 Registration of Mortgaged Property
1.
Party
A and Party B shall register the mortgaged property at the legal departments
responsible for the registration of mortgaged property within
working
days after the signing of the contract; property that does not have such legal
registration departments shall be registered at the notary office at the
mortgager’s location. Party A shall deliver into the custody of Party B
certificate for jus alias, original mortgage registration document, and other
certificates of the mortgaged property on the day this Agreement takes
effect.
2.
Within
the validity of the contract, in transferring or altering the ownership or
any
right of the property with Party B’s consent in writing, the relevant party
shall register such transfer or alteration within legal time limit, and deliver
relevant certificates and documents after the alteration registration to the
custody by Party B.
3.
Where
the debtor has performed its obligation under the principal contract and this
Agreement, Party B shall timely return certificate for jus alias, original
mortgage registration document, and other certificates to Party A, and handle
mortgage logout with Party A.
Article
12 Compensation by a Third Party
1.
Where
the value of the mortgage declines due to a third party’s actions within the
validity of the mortgage right, the third party shall deposit the compensation
for damage to the account designated by Party B. Party A agrees that Party
B
shall dispose of the compensation by a method set forth by Article 10.4 and
help
conduct relevant procedures.
2.
Within
the validity of the mortgage right, where the value of the mortgaged property
is
not enough to cover the principal, interest thereof, or relevant fees and
charges under the principal contract due to the action of a third party, Party
A
shall renew the guaranty acknowledged by Party B, and the remaining of the
previous mortgage shall resume the guaranty to claims.
Article
13 Liability for Breach of Agreement
1.
After
this Agreement enters into effect, Party A and Party B are to perform their
obligations under this Agreement duly. Any party failing to perform its
obligations hereunder in whole or in part shall be held accountable for the
breach of Agreement as well as corresponding compensation.
2.
Party
A shall be responsible for the compensation for the loss of Party B caused
by
any unreal, inaccurate, incomplete or purposely misleading statement of the
declaration and warrant by Party A.
3.
Party
A is to cover all the losses sustained by Party B resulting from the invalidity
of the contract caused by the fault of Party A.
-6-
4.
Shall
any of the following occur within the validity of the contract, Party B is
entitled to declare the expiration of all the principal contracts, and execute
the mortgage right promptly:
(1)
Party
B is not paid upon the maturity of the obligation performance of debt under
any
principal contract;
(2)
Acceleration of the maturity of contract pursuant to relevant stipulations
of
the principal contract;
(3)
Party
A’s winding up, closing down, bankruptcy application, bankruptcy declaration,
dissolution, revocation of business license, and canceling;
(4)
Party
A’s inability to keep the mortgaged property intact and in good
condition;
(5)
Other
incidents happen to Party A that may endanger, damage or threaten the rights
and
interests of Party B.
Article
14 Enforcement of Mortgage Right
Party
A
and Party B agree to enforce the mortgage right through any of the approaches
stated hereunder when Party B is not paid at the maturity of the
obligation.
1.
Party
B, as the mortgagee, through agreement with Party A, as the mortgager, may
be
paid out of the proceeds from the conversion of the mortgaged property, either
at the value agreed upon between the parties or estimated by qualified
assessment institution entrusted by Party B. and Party B refrains from any
objections to the assessment institution as well as its estimated value.
2.
Party
B, as the mortgagee, through agreement with Party A, as the mortgager, may
be
paid out of the proceeds from the sale of the mortgaged property. Party A can
find a buyer by itself or by entrusting Party B or other agencies, or by
inviting tenders with the auction price complying with stipulations of item
1 of
this article.
3.
Party
B, as the mortgagee, through agreement with Party A, as the mortgager, may
be
paid out of the proceeds from the auction of the mortgaged property. Party
B has
the right to entrust a qualified auction company registered in China to handle
the auction, and Party A should not object to or disagree with the entrusted
auction company. Party B can suggest an auction reservation price based on
the
total or a percentage not below
of all
unpaid debts under principal contract on the occasion or do not suggest a
reservation price; Party A agrees to accept any auction conducted and concluded
hereby. In case of auction failure, Party B is entitled to entrust the mortgaged
property with another auction company again.
Article
15 Notarization and Voluntary Acceptance of Forcible Execution:
1.
Shall
a Party require notarization, the contract is to be notarized at a notary public
prescribed by the government.
2.
Party
A agrees that Party B can apply to notary public for a certificate with forcible
execution supported by this Agreement, in case the debtor fails to pay within
the repayment period prescribed in the contract the principal and the interest
thereof, penalty interest, compound interest, default fine, the compensation
for
damage, and the cost of enforcing the right of the claim and mortgage (including
but not limited to legal cost, attorney fees, traveling expenses etc). Supported
by this Agreement, Party B can apply to the people’s court with jurisdiction for
forcible execution, whereas Party A waives all rights of defense, together
with
all rights of denying the guaranty responsibility for Party B.
-7-
Article
16 Other Agreed Items
Article
17 Applicable Law
The
contract is to be governed by laws of the People’s Republic of China, which is
binding on both Parties.
Article18
Dispute Settlement
Any
disputes arising from the execution or in connection with this Agreement shall
be settled by the Parties through amicable consultation. If the Parties fail
to
settle the disputes in the preceding manner, both Parties agree upon the
second
approach
below:
1.
Submit
it to ___________ Arbitration
Commission for arbitration; or
2.
File a
lawsuit with the people’s court at the domicile of Party B.
During
the arbitration or the legal proceedings, the contract shall be observed and
enforced by both Parties except for the matters in dispute.
Article
19 Accumulation of Rights and Obligations
1.
The
rights of Party B hereunder are accumulating, which does not affect or preclude
any rights it may have against Party A in accordance with laws or other
contracts. Except for expressed in writing by Party B, Party B’s failure or
delay to exercise any right, or partial exercise of any right under this
Agreement shall not constitute a waiver of the right in whole or in part, nor
shall it affect, prevent or hamper the continued exercise of the right or the
exercise of any other right of it by Party B.
2.
The
rights of Party A under this Agreement are accumulating, which does not affect
or preclude any obligations and responsibilities it may have for Party B in
accordance with laws or other contracts. Except for the compulsory provisions
of
the law or agreeing or approving in writing by Party B, Party B is free of
any
obligations and responsibilities that Party A may have to perform to a third
party.
-8-
Article
20 Continuity of Obligations
All
obligations of Party A under this Agreement have continuity, and are binding
on
its successor, agent, receiver, assignee, and its principal after merger
restructuring, renaming etc. Such obligations shall neither be affected by
any
disputes, claims and orders of legal proceedings and superior units, as well
as
any contracts and instruments signed between the debtor of the principal
contract and any natural person or legal person, nor shall they change with
the
debtor’s going bankrupt, inability to repay loans, losing enterprise
qualification, amendment of articles of association or the occurrence of any
material changes.
Article
21 Validity of Agreement
1.
This
Agreement is independent of the primary contract. In case the primary contract
is invalid for any reason, this Agreement shall remain valid with no harm done
to its validity. The mortgage guaranty under this Agreement applies to the
legal
liabilities upon the invalidity of the primary contract (including but not
limited to refund and compensation).
2.
Shall
the content of an article or part of an article be invalid presently or become
invalid in the future, the invalid article or part of an article shall not
have
bearing on the validity of the contract and other articles of the contract
as
well as the remaining part of such article.
Article
22 Effectiveness, Modification and Cancel of Contract
1.
The
contract shall take effect when the conditions prescribed hereunder are met.
(1)
The
contract is signed (or sealed) by the legal representatives (principals) or
authorized agents, together with seal (only signature is required under the
circumstance where Party A is a natural person);
(2)
The
mortgaged properties in the “List of Mortgaged Property” of this Agreement have
been registered complying with laws.
2.
After
the effectiveness of this Agreement, unless otherwise stipulated by the
contract, each party shall not unilaterally modify or cancel the contract
without any good reason. In case such modification or cancelation is really
needed, the Parties should reach a written agreement through friendly
consultation.
Article
23 Miscellaneous
1.
In
case of anything not covered in this Agreement, the Parties shall otherwise
agree to enter into a written agreement as an appendix to the contract. Any
appendix, modification, or supplementation of the contract shall become an
integral part hereof, and have the same legal force and effect with this
Agreement.
-9-
2.
Unless
otherwise stipulated, the relevant fees and costs of assessment, notarization,
insurance, registration, authentication, maintenance, deposit etc. are for
Party
A’s account.
3.
Any
notice and request in form of email, or other telecommunications, telex,
telegraph, or fax sent by Party B concerning this Agreement shall be deemed
to
have arrived at the receiver upon sending. A Post letter will be assumed to
have
arrived at the receiver on the third day since day of the reiterated post.
4.
Shall
a Party alter its address, name, telephone number, or fax number herein, the
Party is obliged to notify the other Party within fifteen calendar days
thereafter.
5.
This
Agreement is executed in five
originals, with one
for each
Party, one for registration department, and one for notary public when
notarization is obtained, being equally authentic.
Appendix:
List of Mortgaged Property, in _______ copies
Party A (Seal): Wuhan Blower Co., Ltd. | Party B (Seal): China CITIC Bank Wuhan Branch |
Legal Representative: /s/ Xx Xxx | Legal Representative or Principal: /s/ Xx Xxxxxx |
(or signature or seal of entrusted agent) | (or signature or seal of entrusted agent) |
-10-
Appendix
1:
List
of
Mortgaged Property (Real Estate)
Mortgager:
Wuhan Blower Co., Ltd.
Mortgagee:
China CITIC Bank Wuhan Branch
No.:
No.16 Mortgage 200619
Name
of the Mortgaged Property
|
Real
Estate of Wuhan Blower Co., Ltd.
|
Address
|
Xxxx
Xxxx Xxx Science Park, Jiangxia District, Wuhan
|
|||||||||||||
Owner
of the Property
|
Wuhan
Blower Co., Ltd.
|
|||||||||||||||
Owner
of Right to Use
|
Wuhan
Blower Co., Ltd.
|
|||||||||||||||
Building
Area
|
12,734.12
m2
|
Function
and Usage
|
||||||||||||||
Acreage
of Using site
|
m2
|
|||||||||||||||
Terms
of Land use right
|
22,230.90
m2
|
Terms
of Land use
|
From
Year 2005
to
March, 2054
|
|||||||||||||
Houses
& other Things Firmly Fixed on the Land
|
Original
Value
|
Ownership
Certificate, Issuing Unit and No.
|
Property
|
Xx
Xxxx Xxxx Xxxxx Xia Zi No. 200403909, No. 200505064, No.
200402225
|
||||||||||||
Land
|
Xia
Xxx Xxxx (2005)No.189
|
|||||||||||||||
Net
Value
|
34,942,600
yuan
|
|||||||||||||||
Assessed
Value
|
|
Assessment
Institution
|
Mortgage
Registration Office
|
|||||||||||||
Enacted
Mortgage Status
|
With
Ownership Dispute or not
|
NO
|
||||||||||||||
Is
the Mortgaged Property under Lease or not
|
Procurement
of Land-Use Right
|
By
grant
|
||||||||||||||
Title
of the Mortgage Contract
|
No:
No.16 Mortgage 200619 Maximum
Amount Mortgage Agreement
|
-11-
Signature
of the Mortgager
|
Legal
Representative Xx Xxx Wuhan Blower Co., Ltd o
Seal
o
o
Entrusted
Agent o
September
29, 2006
|
Signature
of the Mortgagee
|
(Unit’s
Seal or Contract Seal )
Responsible
Person o
o
Seal
o
September
28, 2005
|
This
list
is executed in copies.
-12-