Mortgage Agreement
Exhibit
10.67
Number:
2009 Nian 6310517131 Di Zi No. 003
Mortgagor:
Henan Shuncheng Group Coal Coke Co., Ltd.
Number of
Business License: 410522110001012
Legal
Representative/Principal: Wang Xinshun
Domicile:
the county of Anyang, the town of Tongye
Postcode:
456141
Financial
Institution of opening an account and the account number: Bank of China,
sub-branch of Huo
Telephone:
0000-0000000
Fax:
0000-0000000
Mortgagee:
Bank of China Anyang Branch
Legal
Representative/Principal: Shilei
Domicile:
Wengfeng Avenue, the city of Anyang
Postcode:
455000
Telephone:
0000-0000000
Fax:
0000-0000000
To
guarantee the fulfillment of debt under the “Principal Agreement” as stipulated
in Article 1 hereunder, the Mortgagor are willing to provide mortgage for
benefit of the Mortgagee, the Agreement is enacted by equal negotiation by and
between two parties hereto. Unless as otherwise provided herein, terms hereof
shall be interpreted in accordance with the Principal Agreement.
|
Article
1
|
Principal
Agreement
|
The
Principal Agreement of the Agreement is:
RMB Loan Agreement (short
term) (Agreement Number: 2009 Nian 6310517131 Zi NO. 003) and its
amendment or supplement signed between the Creditor and Henan Shuncheng Group
Coal Coke Co., Ltd.
|
Article
2
|
Principal
Credit
|
Creditor’s
Rights under the Principal Agreement constitute the Principal Credit hereof,
including principal, interests (including legal interest, Agreement interest,
compound interest, default interest), liquidated damages, compensation, fees to
realize the Creditor’s Rights (including but not limited to legal fees, lawyer's
fees, notarization fees, enforcement fees), losses caused to the Creditor due to
the Debtor’s breach of Agreement and other dues.
|
Article
3
|
Collateral
|
The
conditions about the collateral refer to the annex of Collateral
List.
During
the period of mortgage, in case the collateral is damaged, lost or imposed, the
mortgagee may has the priority of compensation from the obtained insurance
benefit, compensation payment or compensatory payment. If the performance period
of principal credit is not expired, these obtained insurance benefit,
compensation payment or compensatory payment may be drawn for
custody.
|
Article
4
|
Mortgage
Registration
|
If
mortgage registration is needed legally, the mortgagor and mortgagee shall deal
with the mortgage registration procedures with the relevant departments within
fifteen (15) days after signing this Agreement.
On
condition that the registered matters have been changed and the amendment of
registration shall be needed, the mortgagor and mortgagee shall take the
procedures of amendment of registration in relevant departments with five (5)
days after the matters changed.
|
Article
5
|
Possession
and Custody of Collateral
|
The
collateral herein is possessed by and under custody of the mortgagor, but the
documents of title shall be taken by the mortgagee. The mortgagor agrees to
accept at any time and coordinate effectively with the mortgagee and its
appointed institution and individuals to check the collateral.
The
mortgagor shall hold, maintain and keep the collateral appropriately, and take
effective measures to ensure the safety and completeness of the collateral. If
the collateral needs to be repaired, the mortgagor shall take measures promptly
and pay for it.
The
mortgagor shall not entirely or partially transfer, rent, lend, contribute in
the form of material object, reform, rebuild or any other manners to dispose the
collateral without the written consent of the mortgagee. The obtained payment
after disposing the collateral shall discharge the claims in advance or be drawn
to the third party appointed by the mortgagee.
|
Article
6
|
Disposition
as of Decrease of the Collateral’s
Value
|
Before
the principal credit herein is paid off completely, in case the behavior of the
mortgagor is sufficient to decrease the property value of the collateral, the
mortgagee is entitled to request the mortgagor to stop its behavior. If the
property value has been reduced, the mortgagee is entitled to request the
mortgagor to make up for the value, or provide for other guarantee which is
equal to the reduced value and approved by the mortgagee. If the mortgagor does
not make up for the value or provide for the collateral, the mortgagee has the
right to request the debtor to discharge the debt in advance. On the condition
that the debtor does not discharge the debt in accordance with the request, the
mortgagee is entitled to perform the hypothec.
If the
collateral gets lost or its value is reduced due to nature disaster, accidents,
infringement acts or other reasons, the mortgagor shall take measures promptly
to prevent the enlargement of loss and inform the mortgagee immediately in
written form.
|
Article
7
|
Fruits
|
If the
debtor does not perform the due debt or other conditions herein which enforce
the hypothec occurred, and such results in the sequestration of the collateral
by the people’s court, the mortgagee has the right to receive this guaranteed
property’s natural fruits or legal fruits from the date of sequestration,
however excluded is the condition that the mortgagee does not inform the obligor
who shall pay off the legal fruits.
The
fruits aforesaid shall be first used to pay the expenses arising from receiving
the fruits.
|
Article
8
|
Insurance
Over the Collateral
|
The
mortgagor shall arrange the insurance for the collateral with an insurance
company which determined through the negotiation with the mortgagee in
accordance with the insurance type and term determined by the parties. The
insured amount shall not less than the assessed value of the collateral and the
content of insurance list shall be in accordance with the request of the
mortgagee and shall not add the limited conditions in the prejudice of the
benefit of the mortgagee.
Before
the principal credit herein is paid off completely, the mortgagor shall not
intermit, terminate, modify or amend the insurance list in any reason, and shall
take every reasonable and necessary measure to make sure that the insurance
herein is valid. If the mortgagor does not arrange the insurance or break the
said Agreement, the mortgagee has the right to decide to arrange the insurance
or continue to arrange the insurance for the collateral, while the insurance fee
shall be born by the mortgagor and is calculated into the principal credit with
the possible resulting damage to the mortgagee jointly.
With
thirty (30) days after signing this Agreement, the mortgagor shall provide the
mortgagee for the original of insurance list of this collateral and transfer to
the mortgagee the right of claim to insurance benefit due to the occurrence of
insurance affairs. Before the principal credit herein is paid off completely,
the original of the insurance list is kept by the mortgagee.
|
Article
9
|
the
Occurrence of the Guaranteed
Liability
|
If the
debtor/party to be guaranteed does not discharge the debt to the mortgagee in
any normal or advanced payment date, the mortgagee is entitled to enforce the
hypothec in accordance with the law or this Agreement.
The
aforesaid normal payment date refers to the date of repaying the capital, paying
for the interest or any other payment to the mortgagee in accordance with the
Agreement by the debtor/guarantee. The aforesaid advanced payment date refers to
the date proposed by the debtor/guarantee and agreed by the mortgagee and the
date of drawing the capital and interest/or any other payments in advance
requested by the mortgagee to the debtor/guarantee in accordance with the
Agreement.
|
Article
10
|
the
Enforcement Term of Hypothec
|
After the
occurrence of the guaranteed liability, the mortgagee shall enforce the hypothec
during the statute of limitation of the principal credit.
If the
principal credit is paid off by installments, the mortgagee shall enforce the
hypothec before expired date of the statute of limitation computed from the date
of last installment of claim.
|
Article
11
|
Realization
of Hypothec
|
After the
occurrence of the guaranteed liability, the mortgagee is entitled to consult
with the mortgagor to discount the collateral or discharge the principal credit
in priority by using the payment from auctioning or disposing of the collateral.
If negotiation fails, the mortgagee is entitled to legally request the people’s
court to auction or dispose the collateral.
The
payment obtained by disposing the collateral will be paid off the principal
credit after being paid for the expense of disposition and the expense herein
paid to the mortgagee by the mortgagor.
If there
exists any other guarantee related to the principal credit out of this
Agreement, it shall not affect any right and its performance of the mortgagee
herein and the mortgagee shall not defend against the mortgagee based on this
ground.
|
Article
12
|
Relation
between the Agreement and Principal
Agreement
|
In case
two parties to the Principal Agreement terminate or make the Principal Agreement
due ahead of the schedule, the Mortgagor shall take the collateral liability for
interest of the Principal Credit in effect according to the Principal
Agreement.
Two
parties to the Principal Agreement agree to change the Principal Agreement,
except for circumstances of change of currency, interest rate, amount, term, and
others leading to amount of Principal Credit increased, or to extend the
fulfillment period thereof, the Mortgagor shall take collateral responsibility
for the changed Principal Agreement.
In
circumstances that the Mortgagor’s consent are necessary, and if there is no
written consent from the Mortgagor or the Mortgagor refuses to issue a written
consent, the Mortgagor shall not take collateral liability for the increased
amount of Principal Credit and the collateral period shall be the original
period if extending the fulfillment period of the Principal
Agreement.
|
Article
13
|
Representation
and Warrant
|
The
Mortgagor represents and warrants as follows:
|
1.
|
The
Mortgagor is legally established and exists in good standing; the
Mortgagor has the utter capability to execute and perform this
Agreement.
|
|
2.
|
The mortgagor ensures that there
is no other co-owner, or it has co-owners but the mortgagor has got all
the co-owners’ written consents. The mortgagor promises that the written
consents are delivered to the mortgagee before signing this
Agreement.
|
|
3.
|
The
Mortgagor fully understands the content of the Principal Agreement; the
execution and performance of this Agreement is based on the Mortgagor’s
real intent and free will while the Mortgagor has already obtained all the
legal and valid authorization as required by its Articles of Association
or other inner management files.
|
If the
Mortgagor is a company, the Collateral 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 collateral amount in the Articles of
Association, the collateral hereof shall not exceed the stipulated
limit.
Legal
representative or authorized representative signing the Agreement on behalf of
the Mortgagor shall sign this Agreement with legal, valid
authorization from the company; execution and performance of this Agreement
shall not cause the Mortgagor breach any Agreements, agreements or other legal
documents constraining the Mortgagor.
|
4.
|
The
Mortgagor shall provide all the accurate, real, complete and valid
documents and materials to the
Debtor;
|
|
5.
|
The
mortgagor does not conceal any guaranteed interest existed on the
collateral till the date of signing this Agreement from the
mortgagee.
|
|
6.
|
If
a new guaranteed interest is set on the collateral, the collateral is
sealed up or involved in significant litigation or arbitration cases, the
mortgagor shall inform the mortgagee
promptly.
|
|
7.
|
If the collateral is the
construction in progress, the mortgagor promises that there is no priority
of compensation of a third person; if there is, the mortgagor promises to
have the third person give a written statement of giving up the priority
of compensation and gives to the mortgagee for
custody.
|
|
Article
14
|
Wrongs
in Conclusion of Agreement
|
After
this Agreement is concluded, due to the mortgagor refuses or delays to deal with
the mortgage registration or other reasons of the mortgagor, the Agreement
cannot take effect and the hypothec cannot be set validly, which constitute the
wrongs in conclusion of Agreement. The mortgage shall take the liability of
damages for the resulting loss of the mortgagee.
|
Article
15
|
Disclosure
of the Inner Related Parties of the Group and Related
Transaction
|
Two
parties agree to adopt the second paragraph hereunder:
|
1.
|
The
Mortgagor doesn’t belong to the group customer determined by the Creditor
according to Guidelines
to the Risk Management of Giving Credit of the Commercial Bank Group
Customers,( ‘Guidelines’ for
short)
|
|
2.
|
The
Mortgagor belongs to the group customer determined by the Creditor
according to Guidelines, the
Mortgagor shall report to the Creditor 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).
|
|
Article
16
|
Breach
and its Disposition
|
The
Mortgagor shall constitute a breach by one of the following
circumstances:
|
1.
|
The
mortgagor breaks the provisions herein, and transfers, leases, lends,
contributes in the form of material object, reforms, rebuilds or any other
manners to dispose the collateral without
authority;
|
|
2.
|
The
mortgagor prevents the mortgagee in any manners from disposing the
collateral in accordance with the law and provisions
herein;
|
|
3.
|
The
conditions of reduction of the collateral’s value said in Article 6 herein
occurs and the mortgagor is not in accordance with the mortgagee’s request
to provide for the relevant
guarantee;
|
|
4.
|
The
statement of the mortgagor is fraudulent or breaks its promises
herein;
|
|
5.
|
The
mortgagor breaks the other provisions herein with regard to the rights and
obligations of the parties;
|
|
6.
|
The
mortgagor stops the business or the affairs of dismiss, revocation
and bankruptcy occur.
|
|
7.
|
There
happens breach of any Agreement among the Mortgagor and the Creditor or
other institutions such as Bank Of China
Limited.
|
In case
there occurs any breach as above mentioned, then the Creditor is entitled to
adopt following measures respectively or jointly as of each separate
circumstance:
|
1.
|
Require
the Mortgagor to correct the breaches within a time limit and fulfill the
collateral liability timely;
|
|
2.
|
Decrease,
suspend or terminate the line of credit to the Mortgagor totally or
partly;
|
|
3.
|
Suspend
or terminate, totally or partly, to accept the Mortgagor’s loan
application under other Agreements; Suspend or terminate, totally or
partly, loan release of trade financing in
process;
|
|
4.
|
Declare
due immediately, totally or partly, the Mortgagor’s unpaid principal,
interests and other payables in connection with loan or trade financing
loan under other Agreements ;
|
|
5.
|
Terminate
or relieve the Agreement, terminate or relieve other Agreements between
the Mortgagor and the Creditor totally or
partly;
|
|
6.
|
Require
the Mortgagor compensate losses caused to the Creditor resulting from the
breach of Agreement;
|
|
7.
|
Enforce the
hypothec;
|
|
8.
|
Other
measures the Creditor taking for
necessary.
|
|
Article
17
|
Rights
Reserved
|
If one
party doesn’t exercise the rights according to the provisions hereof totally or
partly or require the other party to fulfill and undertake duty and
obligation totally or partly, it shall not constitute abandonment to such right
or exemption to the other Party’s duty and obligation.
In case
one party grant the other party any tolerance, grace period or delay to exercise
rights hereof, it shall not affect such party to exercise any rights according
to this Agreement, laws and regulations, and it shall not be considered as
abandonment to such right as well.
|
Article
18
|
Changes,
Amendment and Termination
|
The
Agreement is agreed by both two parties, and can be revised or amended in
written; any revision or amendment shall be an inseparable part to
this Agreement.
Except
for otherwise provided by laws and regulations or conventions by parties, the
Agreement shall not be terminated before completion of fulfillment of all
the rights and duties hereunder.
Except
for otherwise provided by laws and regulations or conventions by parties, any
invalid provision of the Agreement shall not affect the legal effect of
other provisions.
|
Article
19
|
Governing
Laws and Settlement of Disputes
|
The
Agreement is governed by laws of the People’s Republic of China.
Both
parties may first resolve all the disputes and argues through negotiation; if
negotiation fails, both parties agree to adopt the same dispute resolution
manner as stated in the Principal Agreement.
During
the dispute resolution process, if the dispute doesn’t affect the fulfillment of
other provisions of the Agreement, other provisions shall continue to be
performed.
|
Article
20
|
Expenses
|
Except
for otherwise provided by law or parties, the expenses arising
from execution and performance of the Agreement and resolution of any
dispute (including attorney fees), shall be afforded by the
Mortgagor.
|
Article
21
|
Attachment
|
The
attachment confirmed by both parties constitutes inseparable part to the
Agreement with the same legal effect.
1.
Collateral list;
2. Other
materials considered necessary by both parties.
|
Article
22
|
Others
|
|
1.
|
Without
the Mortgagee’s written consent, the Mortgagor shall not transfer any
right, duty of the Agreement to a third
party.
|
|
2.
|
If
the Mortgagee, due to business demand, needs fulfill the rights and
duties hereof through assigning other institutions of Bank of China
Limited, the Mortgagor shall agrees with such arrangement; such
institutions of Bank of China Limited will have authority to implement all
the rights hereof and have authority to file a lawsuit to the court or an
arbitration to the arbitration body as of disputes arising from or related
to the Agreement.
|
|
3.
|
Without
affecting other terms and conditions hereof, the Agreement is binding
to both parties and their own legal successor and
assignee.
|
|
4.
|
Except
for otherwise provided, the domicile both parties designated hereof is the
correspondence and communication address, and both party commits to inform
the other party in written when and if its correspondence and
communication address is changed.
|
|
5.
|
All titles and abbreviations
within this Agreement are used only for convenience of referral, and shall
not be used for the purpose of interpreting the content of the articles or
any rights or liabilities of the
parties.
|
|
Article
23
|
Agreement Coming Into
Effect and the Institution of Right of
Mortgage
|
This Collateral Agreement shall
come into effect as soon as the legal representative, manager or authorized
representative of both parties signing their names and making the company’s
seal; however, if a mortgage registration is required by law, then the
Agreement shall enter into force at the date after such registration is
completed
The
original version of this Agreement shall be in quadruplicate. The parties, the
debtor and the registrar of the mortgage shall hold one copy each; each copy
shall have the same legal effect.
Mortgagor:
Henan Shuncheng Group Coal Coke Co., LTD
Authorized
Signatory: [illegible]
Date:
June 30, 2009
Mortgagee:
Bank of China, Anyang Branch
Authorized
Signatory: [illegible]
Date:
June 30, 2009
Attachment:
Collateral List
No. 2009
Nian 6310517131 Di Zi No. 003
|
Name Of
The
Collateral
|
Quantity
|
Assessed Value
|
Ownership/The Use Rights
Attribution
(Right certificate number)
|
Location
|
Registration
Authority
|
|||||
|
Estate:
Office
building
|
The
first to the fifth floors, and the eighth floors, 8479 square meters in
total
|
¥
39524000.00
|
Henan
Shuncheng Group Coal Coke Co. ltd., Real estate ownership license: An Xxxx
Xxx Xxxx Xxxx Xxxxx Xxx Xxxx Xx Zi No.
1151000952
0000000000
1151000954
1151000953
1151000955
1151000956
from Real estate license of Wenfeng District, Anyang
Number
of land use rights
certification:
An Wen Xxx
Xxxx
(27)
No.42853(2)-1201
No.42853(2)-1202
No.42853(2)-1203
No.42853(2)-1204
No.42853(2)-1205
No.42853(2)-1208
|
offices
in Ziwei Avenue, Wenfeng District
Xingshe
Office Building, east of Wenfeng Avenue
|
Housing
Administration of Anyang
city
|
Mortgagor:
Henan Shuncheng Group Coal Coke Co., LTD
Authorized
Signatory: [illegible]
2009-6-30
Mortgagee:
Bank of China, Sub-branch of Anyang
Authorized
Signatory: [illegible]
2009-6-30
