Maximum Amount Mortgage Contract between Guancheng and Quanzhou Branch of Bank of Communication on April 9, 2009 (No.: 3550052009B900001300)
English Translation of
Chinese Language Document
Exhibit
10.36
Maximum
Amount Mortgage Contract between Guancheng and Quanzhou Branch of Bank of
Communication on April 9, 2009 (No.: 3550052009B900001300)
Note:
This contract is accessory to the General Credit Contract between Guanke and
Quanzhou Branch of Bank of Communication (No.:
3550052009C000001300).
Mortgagor:
Guancheng (Fujian) Electron Technological Industry Co Ltd
Legal
Representative (Principal): Tin Man Or
Certificate
Type: __________ Certificate Code: ____________________
Legal
(Domiciliary Register) Address:
HouLin
Industrial Zone, Luoshan Xxxxxx, XxxXxxxx Xxxx, Xxxxxx, Xxxxx
Correspondence
Address:
HouLin
Industrial Zone, Luoshan Street, JinJiang City, Fujian,
China PC:
Tel:
Mortgagee: Quanzhou
Branch affiliated to Bank of Communications Co Ltd
Principal: Xx
Xxxxxxxx
Correspondence
Address: Xx.000 Xxxxxxx Xxxxxx Xxxxxxxx Xxxx, Xxxxxx,
Xxxxx
Whereas Xxxx Xx (Fujian) Electron
Technological Industry Co Ltd (hereafter referred to as “Debtor”) and the
Mortgagee sign a master contract (No.: ______________, titled as: Comprehensive
Credit Contract ), the Mortgagor is willing to offer a maximum guarantee for
ensuring realization of the Mortgagee’s or creditor's right consecutively
incurred under the master contract.
To define right and responsibilities of
both parties hereto, the Mortgagor and the Mortgagee, through mutual
negotiation, hereby agree to make this Contract as follows:
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1.1
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The
Mortgagor guarantees that the principal creditor right pertain to all
those under the master contract, including all sorts of loans or import
bill advance, import collection financing fund, import outward remittance
financing fund, export bill purchase, export collection financing fund,
export invoice financing fund, and other financing funds, or the creditor
right (which the Mortgagee shall be entitled to, including contingent
claims) arising from, out of or associated with such bank acceptance bills
opened for the Mortgagee (including but not limited to standby credit
letters, similarly hereinafter).
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Upon any
incurrence of the principal creditor right under the master contract (including
contingent claims), the Mortgagee and the Debtor may agree, in the Credit Line
Application under the master contract, with regard to the principal currency,
amount, interest rate, deadline of performance, etc.
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1.2
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The
amount of the maximum creditor right guaranteed by the Mortgagor is
(currency type and amount in word): RMB TWENTY FOUR
MILLION .
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1.3
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Such
principal creditor right as guaranteed under this Contract shall be
determined upon the date of occurrence of the last principal creditor
right under the master contract (hereinafter referred to as “Date of
Determination”). When the Debtor cancels the credit line in accordance
with the master contract, the principal creditor right shall be determined
upon the date of the cancelation of the credit
line.
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Any
principal creditor right incurred prior to Date of Determination (inclusive) and
its interests (compound interest, overdue or misappropriating default interest)
accrued till the Mortgagor’s assumption of guarantee obligations, expenses for
realization of herein-stated creditor right by the Mortgagee and other related
expenses as stipulated under 2.2 of this Contract shall be covered by the
guarantee under this Contract.
The
occurrence of the principal creditor right means that the Mortgagee issues a
loan or a financing fund, or draws a bank acceptance bill, a credit letter or a
letter of guarantee.
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2.1
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The
guarantee under this Contract pertains to a joint liability
guarantee.
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2.2
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The
coverage of the guarantee ranges from the principal & interests,
compound interests, to fines, default penalties, damages, and expenses for
realization of the credit right, as herein stipulated. The expenses for
realization of the credit right include but are not limited to reminder
fees, litigation (or arbitration) cost, security cost, notice fee,
implementation expenditure, legal fee, travel compensation, and other
expenses.
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2.3
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The
guarantee durations are calculated respectively according to the
corresponding debt performance term (by referring to the date of the
Mortgagee’s advance payment, as indicated under a drawn bank acceptance
bill/credit letter/letter of guarantee, similarly hereunder), as
stipulated in each Credit Line Application under the master contract. The
guarantee duration under a particular Credit Line Application is a
duration starting from the expiration of such debt performance term as
stated under this proper Credit Line Application (or from the date of the
Mortgagee’s advance payment) and ending at 2 (two) years after the
expiration of such debt performance term as stated in the last-matured
Credit Line Application under the master contract (or two years after the
date of the Mortgagee’s advance
payment).
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For the
Mortgagee’s liability of repayment in installment as stated under any Credit
Line Application under the master contract, the guarantee durations are
calculated respectively with regard to every installment repayment, i.e., a
duration starting from the expiration of the debt performance term for each
installment (or from the date of the Mortgagee’s advance payment) and ending at
2 (two) years after the expiration of the debt performance term for the last
installment (or 2 (two) years after the date of the Mortgagee’s advance
payment).
In the
event when the Mortgagee announces any premature debt under the master contract,
the premature date so announced is taken as the expiration date of the
corresponding debt performance term.
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2.4
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As
stipulated in Section V under Guaranty Law of the People's Republic of
China, both parties of this Contract specially agree as follows: this
Contract is independent from the master contract in effectiveness, namely
any ineffectiveness of the master contract or related provisions thereof
will not affect the force of this Contract. However, following
ineffectiveness of the master contract, the Debtor shall undertake its
repayment or indemnity obligations and the Mortgagor shall assume joint
and several obligations as
concerned.
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3.1
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The
Mortgagor (as a natural person) has a due capacity for civil rights and
full capacity for civil conduct / (as a non-natural person) has been
established by law and remain its existence legitimately, having all
necessary abilities to perform its liabilities under this Contract and
assume civil liabilities in its own
name.
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3.2
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The
execution and performance of this Contract constitute an appropriate
expression of the Mortgagor’s genuine intention and have experienced all
necessary agreement, approval and authorization, without any legal
defects.
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3.3
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All
documents, data/info provided by the Mortgagor to the Debtor during
execution and performance of this Contract are genuine, accurate, complete
and valid.
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3.4
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Upon
execution of this Contract, the Debtor is not a stockholder of the
Mortgagor or an “actual controller” as defined in Incorporation
Law.
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4.1
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In
the event the Debtor fails to repay in time and in full the whole or part
of the loan, the principal of the financing fund or the
Mortgagee’s advance payment or related interests, the Mortgagor shall
unconditionally pay without delay to the Mortgagee each and all due
payments payable by the Debtor.
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The
Mortgagor agrees that: with regard to a master contract under a mortgage
security or pledge security offered by the Debtor or by a third party, the
Mortgagee has the right to determine on its discretion the order of right
execution and is entitled to ask the Mortgagor to pay without delay to the
Mortgagee each and all due payments payable by the Debtor, without beforehand
execution of security interests in property; with regard to the
Debtor’s any waiver of security interests in property or of sequence of rights,
or any change in the security interests in property, the Mortgagor shall
undertake its guaranty liabilities under this Contract, without exemption of any
other responsibilities of the Mortgagor thereunder.
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4.2
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The
Mortgagor shall support the Mortgagee in overseeing and inspecting the
Mortgagor’s earnings and credit ratings (as a natural person) /
operational and financial conditions (as a non-natural person) and shall
timely provide to the Mortgagee all financial statements or any other
data/info as required by the Mortgagee and ensure that documents, data and
information thus provided are genuine, complete and
accurate.
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4.3
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Upon
occurrence of any of herein itemized issues, the Mortgagor shall give at
least 30 (thirty) days beforehand notice to the Mortgagee and shall not
take any of following actions prior to complete settlement of creditor
rights under the master contract, unless with the Mortgagee’s written
consent:
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(1)
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Sale,
grant, rent, lending, transfer, mortgage, hypothecation or handling in
other manners of significant assets, all or most of
assets;
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(2)
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Any
material change occurring with the operation system or the form of
property rights, including but not limited to implementation of
contracting, leasing, joint operation, corporate system modification,
shareholding cooperative system modification, sale of the business,
combination (merge), joint venture (cooperation), division, subsidiary
establishment, property rights assignment, capital reduction,
etc.;
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4.4
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The
Mortgagor shall notify the Mortgagee in writing of the following items
within 7 (seven) days of any actual or possible
occurrence:
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(1)
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Any
modification of articles of association, any change in business name,
legal representative, domicile, correspondence address or business scope,
and any other entry into the register of the industrial and commercial
administration, or any determination materially affecting the finance or
HR;
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(2)
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Any
bankruptcy to be applied or possibly or already applied by the
Mortgagee;
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(3)
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Any
involvement in significant litigation, arbitration or administrative
proceedings, or any property preservation as to the major assets or any
other enforcement;
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(4)
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Any
guarantee offered to any third party that has material ill effects upon
the Mortgagor’s economic conditions, financial conditions or upon the
capacity to perform the Mortgagor’s liabilities under this
Contract;
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(5)
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Any
signing of any contract that may has material impact upon the Mortgagor’s
operation and finance;
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(6)
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Any
production stoppage, business suspension, dissolution, rectification after
business suspension, or business license withdrawal or
revoking.
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(7)
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Any
involvement by the Mortgagor or the Mortgagor’s legal representative
(principal) or key managers of any violation of law or regulations or
applicable exchange rules;
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(8)
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Any
serious difficulty in operation, any deterioration in financial
conditions, or any other occurrence that has ill impact upon the
Mortgagor’s operation, finance or solvency or economic
status;
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(9)
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Any
material change in the Mortgagor’s job or income or any change in the
Mortgagor’s domicile or other liaison modes (for the Mortgagor as a
natural person).
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4.5
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Before
the complete settlement by the Debtor to the Mortgagee of all debts under
the master contract, the Mortgagor shall not exercise, to the Debtor or
any other Mortgagors, any recourse arising from performance of this
Contract.
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4.6
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In
the event where the Mortgagor has become a stockholder or an actual
controller of the Mortgagor prior to the Mortgagor settlement in full of
all debts under the master contract, the Mortgagor will inform the
Mortgagee accordingly without delay and provide the Mortgagee with a
resolution of the Mortgagor’s shareholders meeting (“Stockholder Meeting”)
concerning their approval of the guaranty
offer.
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5.1
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As
authorized by the Mortgagor, when the Mortgagor or the Mortgagor has any
mature and payable debt, the Mortgagee has the right to deduct certain
fund, for settlement purposes, in an account established for the benefit
of the Mortgagor in Bank of
Communications.
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5.2
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Following
deduction, the Mortgagee shall notify the Mortgagor of the
deduction-associated account no., master contract no., Credit Line
Application no., contract no., deducted amount, and debt
balance.
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5.3
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In
the event when the deducted amount fails to pay off all the debt, the fund
shall be deducted firstly for offset of due and unpaid costs and then for
following purposes as stipulated:
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(1)
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With
respect to any principal and interests less than 90 overdue under loans
(excluding individual loans) or trade financing services (excluding export
factoring), the balance after offset shall be used firstly in compensating
due and unpaid interests or default interests, compound interests, and
then in satisfying the due and unpaid principal; with respect to any
principal and interests no less than 90 overdue under loans (excluding
individual loans) or trade financing services (excluding export
factoring), the balance after offset shall be used firstly in satisfying
the due and unpaid principal, and then in compensating due and unpaid
interests or default interests, and compound
interests;
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(2)
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Under
bank acceptance bills drawing, credit letters establishment, letters of
guaranty issuing, and export factoring services, the balance after offset
shall be used firstly in satisfying the due and unpaid principal, and then
in compensating due and unpaid interests or default interests, and
compound interests;
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(3)
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Under
individual loaning services, the debt setoff sequence shall be consistent
with provisions under the master
contract.
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5.4
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In
the event where any currency inconsistency occurs between the deducted
fund and the debt to be satisfied, the amount of the debt to be satisfied
will be converted in accordance with the exchange rate published upon
deduction by the Bank of
Communications.
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Article
VI. Dispute Resolution
Any
dispute arising from this Contract shall be submitted for the judgment by the
local court with jurisdiction at the Mortgagee’s place. Pending dispute
resolution, both parties shall continue to perform those contracted provisions
that are not associated with the open dispute.
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7.1
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In
the event when the Mortgagor has conducts of evading the Debtee’s
overseeing, failure to pay up the debt under security, and avoid or
invalidate debt liabilities in malice, the Debtee has the right to
circulate a notice of such conducts to related entities and publish it on
news media.
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7.2
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The
Mortgagor has carefully read the master contract and confirmed all
provisions therein.
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7.3
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This
Contract becomes valid as of the date of full satisfaction of the
following conditions: (1) the Mortgagor’s legal representative (principal)
or its authorized representative has signed (or sealed) and stamped in
official seal; the Mortgagor has signed as a natural person; (2) the
Debtee’s principal or its authorized representative has signed (or sealed)
and stamped in official seal of
entity.
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7.4
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This
contract is made in 3 (three) duplicated copies, with the Mortgagor and
Mortgagor each taking one copy.
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Article
VIII. Other Items as Agreed
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Mortgagor
(Official
Seal/Signature)
Mortgagee
(Entity Stamp)
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Legal
Representative (Principal) or Authorized Representative
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Principal)
or Authorized Representative
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(Signature
or Seal)
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(Signature
or Seal)
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Date:
April 8, 2009
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Date:
April 8, 2009
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Joint
Owner Statement (suitable for the Mortgagor as a natural person)
I (Name:
__________ Certificate Type: _____________ Certificate No.: _____________) am
the spouse of the Mortgagor. I have carefully read all provisions of this
Contract and hereby confirmed it accordingly and has got familiar of and agreed
with the Mortgagor in providing above guaranty to the Mortgagee for the benefit
of the Mortgagor. Based upon the fact that the debt under guaranty constitutes a
joint debt of our couple, such debt will be paid off with this couple’s joint
property.
Joint
Owner Signature:
____
M____ D____Y