Guarantee Agreement
Exhibit
10.85
ZHZL (10)
02ZL009-BZ003
This
Guarantee Agreement (the "Agreement") is entered into by and
between:
The
Creditor (the Lessor): AVIC International Leasing Co., Ltd.
Legal
Representative: Xxxxx Xx'an
Legal
Address: 00 Xxxxx, 000 Xxxxxxxxx Xxxx, Xxxx'xx Xxxxxxxx, Xxxxxxxx
Xxxx.
Telephone:
000-00000000
Fax:
000-00000000
The
Debtor (the Lessee): Anshan Minshan Nonferrous Metal Co., Ltd.
Registered
Address: Hedamin Villiage, Matoujian Town, Long’an District, Anyang
City.
Legal
Address: Hedamin Villiage, Matoujian Town, Long’an District, Anyang
City.
Legal
Representative: He Qiuan
Telephone
and Fax: 0000-0000000
The
Guarantor: Henan Shuncheng Group Coal Coke Co. Ltd..
Legal
Representative: Wang Xinshun
Registered
Address: South Industry Road, Tongye Town, Anyang County, Henan
Province.
Legal
Address: South Industry Road, Tongye Town, Anyang County, Henan
Province.
Postcode:
455000
Telephone
and Fax: 0000-0000000
WHEREAS,
|
(1)
|
AVIC
International Leasing Co., Ltd (the “Creditor”) and Anshan Minshan
Nonferrous Metal Co., Ltd.(the “Debtor”) entered into a Financial Leasing
Agreement (the "Leasing Agreement") with the reference number of
ZHZL(10)02ZL009 on 31 March 2010, according to which the Creditor (the
Lessor) agreed to provide the Debtor (the Lessee) with the financing
leasing service in accordance with the
Lease.
|
|
(2)
|
The
Guarantor agrees to provide, and the Creditor (the Lessor) agrees to
accept the guarantee provided by the Guarantor under the terms and
conditions hereunder:
|
With
regard to the aforesaid guarantee, the parties reach the terms as
follows:
|
1.
|
Mode
of Guarantee
|
|
1.1
|
The
Guarantor guarantees that the Debtor (the Lessee) will duly perform all of
its obligations under the Lease, the mode of guarantee provided by the
Guarantor is unlimited joint liability
guarantee.
|
|
1.2
|
The
Creditor (the Lessor) is entitled to request any Guarantor to perform all
the guarantee liabilities, without any prior claim to the Debtor (the
Lessee) by any means, including but not limited to notice, claim on site,
or lodge or come into any legal
procedure.
|
|
2.
|
Scope
of Liability of the Guarantor
|
|
2.1
|
The
scope of guarantee of the Guarantor is all the debts owed by the Debtor
(the Lessee) to the Creditor (the Lessor) under the Lease, including but
not limited to the following:
|
|
|
1)
|
All
payable lease amounts (including all the proportion of payable amount
increased at times according to the
Lease);
|
|
|
2)
|
Guarantee
money, 0-period rent, management fee and purchase price for the end
period;
|
|
|
3)
|
Delay
of performance penalty;
|
|
|
4)
|
Compensation
for damages;
|
|
|
5)
|
Expenses
of the Creditor (the Lessor) for ensuring or enforcing its rights and
interests;
|
|
|
6)
|
The
payment or other obligation of any nature that shall be assumed by the
Debtor (the Lessee) to the Creditor (the Lessor) if the Lease is
terminated in advance, became invalid or cannot be executed for any
reason.
|
|
2.2
|
With
regard to the guarantee provided under this Agreement, the Guarantor has
fully read and understood the Lease Agreement and all the
obligations and liabilities of the Debtor (the Lessee) under the Lease
Agreement.
|
2.3 The
Guarantor, Henan Shuncheng Group Coal Coke Co. Ltd., shall be liable for
guarantee liability no more than TWENTY-FIVE MILLION ONE HUNDRED AND SIXTEEN
THOUSAND ONE HUANDRED AND TWENTY POINT ONE THREE YUAN (RMB
25,116,120.13)
|
3.
|
Performance
of Guarantee Liability
|
If the
Debtor (the Lessee) fails to perform any debt according to the Lease, the
Guarantor shall perform the debt with unlimited joint liability. If
such debt is not monetary debt and it cannot be performed by the Guarantor, the
Guarantor shall compensate all the damages of the Lessor arising from such
failure of performance. If the Debtor (the Lessee) fails to pay the
rents or other payable amounts to the Creditor (the Lessor) according to the
schedule, amount and currency provided in the Lease Agreement, the Creditor (the
Lessor) is entitled to directly request any Guarantor to pay off such amount to
the Creditor (the Lessor) immediately. The Creditor (the Lessor) only needs to
send out a performance notice to the Guarantor for the performance of the
guarantee liabilities of the Guarantor under this Agreement. Within
(5) days after the receipt of such performance notice, the Guarantor shall
fulfill the guarantee liabilities to the Creditor (the Lessor) based on such
performance notice. If the Guarantor delays to fulfill the guarantee
liabilities, the Guarantor shall pay the delay of performance penalty to the
Creditor (the Lessor). The delay of performance penalty shall be
calculated on the basis of the delayed amount and the delayed days between the
agreed payment day and the actual payment day, with 0.1% of the delayed amount
for each delayed day.
|
4.
|
Representations
and Warranties of the Guarantor
|
The
Guarantor hereby represents and warrants that:
|
1)
|
The
Guarantor, Henan Shuncheng Group Coal Coke Co. Ltd., is duly registered as
a enterprise legal person and exists in good standing in the People’s
Republic of China (business license of legal person is ).
|
|
2)
|
The
Guarantor have the right to enter into and perform this Guarantee
Agreement, this Agreement shall constitute the legal, valid and
enforceable obligations of the
Guarantor;
|
|
3)
|
The
execution and performance of this Guarantee Agreement will not violate the
articles of association of the Guarantor, laws, regulations and other
binding agreements or documents to the
Guarantor.
|
|
4)
|
If
any defect of the qualification of the Guarantor or the approval
procedures for the guarantee causes any damage to the Creditors (the
Lessor), such damage shall be fully compensated by the
Guarantor.
|
|
5)
|
The
Guarantor will not claim any right of recourse to the Debtor (the Lessee)
for the performance of guarantee obligation before the Debtor (the Lessee)
pays off all the debt.
|
|
5.
|
Term
of Guarantee
|
The term
of guarantee under this Agreement shall commence on the effective date of the
Leasing Agreement until two years after the expiration date of the performance
period of the debts under the Lease Agreement. Where the debts under the Lease
Agreement become mature due to any events as stipulated by laws, regulations or
this Lease Agreement, the term of guarantee under this Agreement shall be two
years commencing from the first date following such maturity date.
|
6.
|
Effectiveness
of Guarantee
|
|
6.1
|
This
guarantee is an unconditional guarantee, the effectiveness of the
guarantee will not be affected by any of the following
issues:
|
|
|
1)
|
The
change of name, address, articles of associations, legal representative,
business scope, nature of enterprise and other related changes of the
parties in this Agreement;
|
|
|
2)
|
Any
merger, spin-off, shut down, revocation, dissolution, or bankruptcy of the
Debtor (the Lessee) and the
Guarantor;
|
|
|
3)
|
Any
changes to the Lease Agreement conducted by the Creditor (Lessor) and the
Debtor (the Lessee).
|
|
|
4)
|
The
Creditor (Lessor) obtains other guarantee from the Debtor (the Lessee) or
other parties.
|
|
6.2
|
If
the Lease Agreement became invalid or be terminated due to the fault of
the Debtor (the Lessee), the Guarantor shall assume compensation
liabilities for all the losses of the Creditor (the
Lessor).
|
|
7.
|
Assignment
|
|
7.1
|
Without
written consent of the Creditor (the Lessor), the Guarantor shall not
assign this Agreement or any of their rights or obligations under this
Agreement to any party.
|
|
7.2
|
The
Creditor (the Lessor) may assign the Lease or its creditor's right under
the Lease to any third party without any consent of the
Guarantor. The Guarantor shall assume the joint guarantee
liability to the assignee according to the terms under this
Agreement.
|
|
8.
|
Correspondence
|
|
8.1
|
Any
notices or other communications shall be sent to the addresses of relevant
parties as of the addresses first hereinabove set
forth.
|
|
8.2
|
The
Guarantor agree to promptly notice the Creditor (the Lessor) any of the
following cases:
|
|
|
1)
|
Change
of business scope of the Guarantor;
|
|
|
2)
|
Close
down of the Guarantor;
|
|
|
3)
|
The
property of the Guarantor are preserved or enforced, and such status is
not relieved within 7 days;
|
|
|
4)
|
The
Guarantor transfer all of their assets or all of its material
assets;
|
|
|
5)
|
The
equity interest or the controller of the Guarantor changes
materially;
|
|
|
6)
|
The
Guarantor is under any litigation, arbitration or administrative
procedures instituted by other party, of which if the final decision is
adverse, the capacity of the Guarantor to perform this Agreement will be
materially affected.
|
|
9.
|
Governing
Law
|
This
Agreement shall be governed by and construed according to the laws of
PRC. Any dispute related to this Agreement shall be first settled by
friendly negotiation between the parties. If a settlement cannot be
reached, it shall be submitted to the court of jurisdiction in the legal address
of the Creditor (the Lessor).
|
10.
|
Miscellaneous
|
|
10.1
|
This
Agreement is valid to the parties and the successors and assignees of the
parties.
|
|
10.2
|
This
Agreement shall be effective in satisfying the following
conditions:
|
|
|
(i)
|
Each
legal representative or authorized agent sign and stamp, and
complete relevant notarization
procedures.
|
|
|
(ii)
|
After
the creditor receives the consent of shareholders’ Board/Directors’ Board
which agrees with the Guarantee resolution of this
Agreement. This Agreement is executed in eight original copies,
of which Chinese version prevails. Creditor (lessor) and
guarantor hold two sets respectively, the rest to be kept in the debtor’s
(lessee) place. Each of them are equally
valid.
|
|
10.3
|
This
Agreement constitute the full and entire agreement between the parties
with regard to the subject matters hereof and thereof and supersede all
previous oral and written agreements, Agreements, understandings and
communications of the Parties in respect of the subject matter of this
Agreement.
|
|
10.4
|
This
Agreement may be amended only by written documents entered into by the
parties.
|
|
10.5
|
The
Guarantor agree to provide their audited annual final reports to the
Creditor (the Lessor) within 10 days after the issuance of each audited
annual final reports in each fiscal year according to the requirement of
the Creditor (the Lessor).
|
|
10.6
|
If
the Guarantor fails to perform any of the obligations under this Agreement
or the Lease, the Creditor (the Lessor) may submit such information to any
credit information institution or credit rating institution without any
consent of the Guarantor or any notice to the Guarantor by any
means.
|
|
10.7
|
This
Agreement shall be conducted with enforceable
notarization. After enforceable notarization is conducted to
this Agreement by the parties, if the Creditor / Guarantor fail to perform
or fail to fully perform the obligations under this Agreement, the
Creditor is entitled to apply the enforcement certificate with the notary
public office and apply for enforcement with court of jurisdiction
according to the notarial deed and the enforcement certificate; the
Guarantor agree to accept such enforcement. The expenses for
the notarization will be assumed by the Debtor and paid to the Creditor on
the date this Agreement is entered
into.
|
(Signature
Page)
IN
WITNESS WHEREOF the parties have signed this Agreement as of the date first
hereinabove set forth.
The
Creditor (the Lessor): AVIC International Leasing Co., Ltd.
(Stamp)
(Signature): /s/
Xxxx Xxxxxxxx
Title:
Date:
The
Debtor (the Lessee): Anshan Minshan Nonferrous Metal Co., Ltd.
(Stamp)
(Signature):
[illegible]
Title:
Date: [],
2010
The
Guarantor: Henan Shuncheng Group Coal Coke Co. Ltd..
(Stamp)
(Signature): /s/
Wang Feng
Title:
Date: [],
2010
