Contract to Guarantee
Exhibit
10.2
(English
Translation)
Contract
to Guarantee
Contract
No: DLDB4BL01001001WT
Guarantee
(Party A) : Dalian Heavy Mining Equipment Manufacturing Co,
Ltd.
Guarantor
(Party B) : Dalian Union-Chuangye Bonding Company Co, Ltd.
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This
contract is hereby entered by and between parties in conformity of
<<Property Law of People’s Republic of Law>> , <<Guarantee Law
of People’s Republic of China>> and the other relevant law and regulations
:
Party
A: Dalian
Heavy Mining Equipment Manufacturing Co, Ltd.
Address: 00 Xxxxxxx Xxxxxx, Xxxxxx
Xxxx-Xxxx Technical and Industrial Garden
Corporate
Representative: Xxxx,
Xxxxx
Tel: 84799489 Fax:
00000000 Zip
Code
116085
Authorized
Agent Yang,
Linqiang
Party
B: Dalian Union-Chuangye
Bonding Co, Ltd.
Address: 00 Xxxxxxxxx Xxxxxx Xxxx,
Xxxx 000, Dalian High-Tech Technical and Industrial Garden
Corporate
Representative: Wang,
Feng
Tel:
00000000
Fax: 00000000 Zip
Code 116001
Authorized
Agent Xx,
Xxxx
Whereas:
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1.
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Party
A has entered with Shanghai
Pudong Development Bank Co, Ltd., Dalian Branch (hereafter
“Creditor”) a <<Short
Term Loan Agreement>> (hereafter “Main Contract”), loan
amount (in Chinese Capital) : RMB Twelve
Million, term of loan : from
October 12, 2010 To January 11,
2011
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2.
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Party
A requests Party B to provide guarantee in the amount of (In Chinese
Capital) RMB
Twelve
Million for Party A’s performance in the Main Contract, and Party B
agrees to provide such guarantee , and hereby entered into this contract
with Party A.
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3.
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Both
parties agree to sign this contract in order to define rights and duties
of either party and perform
accordingly.
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2
Chapter
One Definition
Article
One Unless specified otherwise in
the context, the terms in this contract shall be defined
as below:
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Guarantee
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means
Party B provides guarantee to the Creditor for Party A to perform its
duties under the Main Contract
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Contract of
Guarantee means the
Contract of Guarantee signed by and between Party B and the
Creditor
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Proposal
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means
the Loan
applied
by Party A from the Creditor (loan/Acceptance/Consolidated
Credit/Performance Bond and
etc.)
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Article
Two Unless specified in the
context, the following terms and phrases shall be referring to as
below:
(One) Whenever
“Person” is mentioned, it refers to any natural person, corporate,
partnership,
joint
venture, institution or any other legal entity or government agency or
office;
(Two) Whenever
“register” is mentioned, it refers to any signing, registering, approving,
recording, noting, evaluating, notifying and any other activities;
(Three) Whenever
any “document” (including this contract) is mentioned, it shall include any
modification, supplemental, replacement or renewal, unless any modification,
supplemental, replacement or renewal made in violation of this
contract.
Chapter
Two Premised Condition
Article
Three Only the following premised conditions are
satisfied by Party A shall Party B agrees to provide guarantee and sign the
Contract of Guarantee:
(One) fees
specified in (Four) of this article are paid;
(Two) counter-guarantee
performed in conformity with (Five) of this article and all the necessary
registry procedure finished, giving legal effect to such counter-guarantee
performance.
Article
Four Party A agrees to pay the
following fees:
(One) Evaluation
Fee : RMB (in Chinese Capital) _________yuan
(Two) Guarantee
Fee: RMB (in Chinese Capital) Three
Sixty Thousand yuan
(Three) Performance
Bond: RMB (in Chinese
Capital) One
Million and Twenty Thousand yuan, If Party A has performed
the Main Contract without any breaches by which Party B is not required to
perform its duty of guarantee for any reason, at the end of the performance to
the Main Contract, Party B shall return Party A the Performance Bond in full
amount.
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Party B
shall hereby waive its right to claim any interest acurred from the
aforementioned Performance Bond.
Article
Five Party
A agrees to provide the following counter-guarantee measures which are subject
to Party B’s auditing and accounting.
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1.
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10% Performance
Bond
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2.
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The employees of
Dalian Heavy Mining Equipment Manufacturing Co., Ltd. shall provide 17
apartments (total area 1221.17 Square Meters and approximate XXX 00
million in total value) as the collateral for counter-guarantee (please
see List for details) and shall record such
collateral.
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3.
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Xxxx, Xxxxx shall
provide his shares of Dalian Heavy Mining Equipment Manufacturing Co, Ltd.
equivalent to RMB 1,400,000 as the collateral for
counter-guarantee and shall record such
collateral.
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4.
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Xxxx, Xxx Li shall
provide her shares of Dalian Heavy Mining Equipment Manufacturing Co, Ltd.
equivalent to RMB 3,600,000 as the collateral for counter-guarantee and
shall record such
collateral.
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5.
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The couple of Xxxx,
Xxxxx, acted as the corporate representatives, agree to be held joint and
several liabilities under the duty of
counter-guarantee.
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6.
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Third Party Xia, Xxxx
Xx , a natural person, agrees to be held joint and several liability under
the duty of
counter-guarantee
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Article
Six In
any following events, Party A shall have performed Article Three prior to Party
B’s signature to the Contract of Guarantee , otherwise, Party B shall have right
of refusal to sign the Contract of Guarantee.
(One) Before
Party A performed its duties of counter-guarantee specified in Article Five,
Party B has issued Guarantee Letter of Intent to the Creditor for Party A’s
proposal;
(Two) Party
A’s proposed loan application is approved by the Creditor
Article
Seven
If Party B has signed the Contract of
Guarantee before Party A satisfies the requirements of Article Three due to the
registering procedure of the mortgage, the collateral and notary public, Party B
shall have right to add clause in the Contract of Guarantee requiring the
Creditor to distribute loan to Party A upon the receipt of Party B’s Notice of
Loan. If the Creditor disagrees to such clause, Party A agrees to
transmit the loan from the Creditor to the account of Party B for custody (the
promissory note issued by the Creditor shall be endorsed and negotiated to Party
B )while making its best effort to perform whatever specified in the Article
Three. Unless such performance is completed, Party B is obligated to transfer
the proposed amount and/or draft to Party A. During the custody,
Party A has no right to the use of loan and shall bear all the loan interest and
fees at its own expense.
Within one month of the loan
distribution or draft, if Party A still stays behind the performance specified
in the Article Three, Party B shall have right to withdraw the aforementioned
loan or deposit the custodial draft for the purpose of repayment and/or
acceptance or any other responsibilities, with the insufficient funded by Party
A.
Article
Eight If Party A
fails to obtain the loan approval from the Creditor, Party B shall return the
advanced Guarantee Fee and Performance Bond, but not Evaluation
Fee.
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After the loan approval is granted, if
Party A voluntarily withdraws the proposed loan and/or acceptance application,
or fails to perform in conformity of Article Three, resulting in Party B’s
incapability of providing counter-guarantee, Party B shall have right to retain
the advanced Evaluation Fee, Guarantee Fee and Performance Bond.
Article
Nine In
any event the following occurrence shall neither effect nor release the duties
of Party A or rights of Party B in this contract, unless the law specifies
otherwise or a pre-approval is granted by Party B:
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(One)
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Any
invalidation, recession, impossibility or impracticability of performance
or any other defects of any Main Contract, Contract of Guarantee, this
contract or any other document and its pertaining
guarantee;
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(Two)
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Any
modification, change or transfer of any Main Contract, Contract of
Guarantee, this contract or any document and its pertaining
guarantee;
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(Three)
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Any
Party A or the other party’s wind-up, dissolution, restructure,
reorganization, restriction by law , incapability of repayment, removal
from office or insufficient authorization, change of structure, change or
loss of corporate status;
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(Four)
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Any
change, merger, acquisition or separation to the business, assets, capital
structure or formation of Party A or Party
B;
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(Five)
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Any
or partial omission to Party B’ claim or demand in the proceeding of
dissolution, bankruptcy or liquidation of Party
A;
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(Six)
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Force
Majors in any circumstance or change of
circumstance;
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(Seven)
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any
other event, provision, act or omission to act by which the duties of
Party A under this contract shall be reduced or released unless this
provision.
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Chapter
Three Guarantee
Article
Ten The term of guarantee
provided by Party B is TWO
YEARS after the end of performance to the Main Contract.
Article
Eleven The
form of liability under Part B’s guarantee or Party B’s Letter of Guarantee is
JOINT AND
SEVERAL (the specified liability of guarantee shall be referred to the
Contract of Guarantee or the Letter of Guarantee by Party B).
Article
Twelve The
liability of guarantee by Party B shall be periodically reduced to completely
released according to Party A’s performance of Main Contract or Party B’s
commitment to the guarantee.
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Chapter
Four Statement
and Commitment
Article
Thirteen Statement of Party A to Party B is below :
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(One)
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Party
A possesses the legal capability to act to sign and perform this contract
with independence responsibility.
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(Two)
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Party
A enters this contract at its will. Any agreement by Party A to this
contract is genuine.
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(Three)
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The
necessary authorization or approval pertaining to this contract signed by
Party A is obtained and valid;
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(Four)
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The
fact that Party A and B sign and perform this contract does not and will
not violate any of the following:
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(1)
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any
applicable law ;
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(2)
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any
authorization;
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(3)
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any
agreement, contract or arrangement to which Party A or B is a
party;
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(4)
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Any
provision of shareholder agreement, joint venture agreement, article of
association or organizing documents of Party A or
B.
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(Five)
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To
Party A’s knowledge, none of action or claim against Party A, which shall
effect Party A’s financial status or performing capacity to this contract,
is in the proceeding in any court, arbitration body or government
authority;
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(Six)
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Party
A has duty to provide any document capable of identifying Party A and
information certifying Party A’ ability of
repayment.
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(Seven)
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Any
document, chart or statement provided by Party A and pertaining to this
contract shall be legal, true, accurate and complete. Except for the prior
written disclosure to Party B, Party A does not withhold any information
pertaining to major debt (including existing debt), fundamental breach or
any other which shall affect its
assets.
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Article
Fourteen Commitment
of Party A to Party B is:
(One) to
provide Party B with any documents or background information pertaining to this
guarantee in an immediate, accurate and full manner;
(Two) to
submit at least on monthly basis or at any time upon the request of Party B any
reports or the other documents truly reflecting its general financial
status.
(Three) to accept Party B’s monitor of its capital , assets, business
and the others without building any barrier to such monitor;
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(Four) to
direct the use of fund in conformity with terms and condition of the Main
Contract and not to other use other than this.
(Five) to
unconditionally allow persons sent by Party B to fully monitor its use of
capital and performance under the Main Contract, and to provide access to such
monitor for convenience , with the cost and expense on Party A;
(Six) to
inform Party B of any major change of Party A regarding to the
transfer of share, restructure, merge and acquisition, division, reformation,
joint venture, partnership, association, contract, lease, scope of business or
registered capital, with a 30 days written notice.
(Seven) to
inform Party B any closure, solvency, declared bankruptcy, dissolution,
suspension or invalidity of business license, deterioration of financial status,
court (arbitration) proceeding of major monetary disputes, provisional or
permanent restraint on major property of Party A, by a written notice
immediately within 3 business days of such occurrence.
Article
Fifthteen Party A hereby is committed not to
engage in the following activities, within the term of this contract, unless a
written approval is obtained from Party B with the accompanied conditions
satisfied:
(One) apply
new loan or any other significant management decision which shall have potential
effect on the benefit of Party B or resulted in the liability of Party
B;
(Two) place
lien, mortgage or any other security interest on its assets (including but not
limited to the right of land use, real estate, equipment, and inventory), or
provide guarantee, or rent, sell, repetitively mortgage, repetitively pledge,
repay or donate its whole or partial property;
(Three) act
or fail to act so that the value of its property shall be increased but fail to
increase or shall not be decreased but is decreased, whereby it is incapable of
any liability or responsibility;
(Four) act
in any other manners by which Party B is reasonably convinced shall damage the
interest of Party B.
Chapter
Five Breach
of Contract
Article
Sixteen Within the valid term of
this contract, any party’s incomplete performance of the Main Contract or this
contract shall constitute a breach of this contract, the breaching party shall
be held liable to the other under this contract.
Article
Seventeen Any Party A’s breach shall result in the following
liability:
(One) If
Party A fails to submit the monthly financial report to Party B as required by
this contract, Party B shall be entitle to a liquidated damage equivalent to 10%
of the Performance Bond for each breach;
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(Two) If
Party A fails to cooperate with Party B for audit (specified in Article Five),
Party B shall be entitle to a liquidate damage equivalent to 50% of the
Performance Bond for each breach;
(Three) If
Party A fails to perform the contract completely (including but not limited to
late repayment of the principle or interest of proposal), which is to result in
possible guarantee liability of Party B, Party B shall have right to receive a
liquidate damage equivalent to 5/10,000 of the amount of late repayment for each
day of such breach;
(Four) If
Party A violates the provision of the Main Contract or any other, which is to
result in possible guarantee liability of Party B, Party B shall have right to
withhold the entire advanced Performance Bond. In the same time, Party A shall
not only continue its performance, it shall also compensate:
(1) the
amount that Party B has paid to the Creditor based on its guarantee commitment
and any other amount that Party B is entitled to due to its payment to the
Creditor on behalf of Party A (including but not limited to liquidated damage,
damage, interest, penalty interest, commission, fees and charges);
(2) any
loss of interest to Party B caused by Party B’s advanced payment based on its
commitment of guarantee and any other economic loss;
(3) any
cost and expense incurred during the legal proceeding of Party B in
pursuance of repayment (including but not limited to any court or arbitration
fee, attorney fee, enforcement fee, evaluation fee, assessment fee, auction fee,
registration fee, transfer fee, custodial fee, procedure fee and the relevant
expense of board and accommodation )
(4) Any
other cost and expense according to the valid contract, agreement or applicable
law and regulation.
(Five) If
any following event of Party A occurs, Party B shall require Party A to provide
a counter-guarantee equivalent to the unperformed debt of the Main Contract
within 7 working days after it receives a written notice of Party B. Party B
shall also have right to act early as specified by the Article Five of this
contract, or early deposes of any other property of Party A, or use the
custodial asset to repay the debt under the Main Contract(including Performance
Bond), or submit to escrow authority. Any other resulting loss of Party B shall
be compensated by Party A as well;
(1) breach
or delay to perform any duties of the Main Contract or this Contract
;
(2) loss
of business for three consecutive month;
(3) late
repayment to other bank’s loan;
(4) proceeding
of action(arbitration)
(5) Any
other occurrence of anticipatory breach.
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(Six) In
any event that Party A breaches contract, Party B shall have right to cease
guarantee , as well to demand the creditor to cease distributing the proposed
loan or early retrieve the distributed loan. Party B shall have right to demand
the opening bank of Party A to deduct the corresponding amount from Party A’s
saving account to repay the debt. In the same time, the advanced
guarantee fee and evaluation fee is un-refundable. Any unpaid expense shall
still be payable in conformity with this contract. Party A shall also be liable
for liquidated damage equivalent to 50% of agreed amount of Article Four,
payable to Party B;
(Seven) When
Party A breaches contract, the payable amount of liquidate damage and damage is
independently computed but accumulatable. Party B shall have right to withdraw
the accumulated amount from the Performance Bond. Party B shall have right to
claim the insufficiency from Party A.
(Eight) If
Party A fails to perform its duties in conformity with the Main Contract or any
other which results in the possible guarantee liability of Party B, Party B
shall have right to disclose or announce such in the news media, and Party B
shall not be held liable for any negative effect on reputation of Party A
resulting from doing so.
Chapter
Six Miscellaneous
Article
Eighteen During the performance of this
contract, any failure to act or timely to act the rights of Party B shall not be
deemed a waiver and will not affect any other rights of Party B under this
contract.
Article
Nineteen The acceptance of Party B to Party
A’s application of guarantee does not constitute a creditor/debtor relationship
absolutely established between Party A and the Creditor. Any liability incurred
from that shall not give Party A cause of action against Party B.
Article
Twenty This contract is
independent from the Main Contract and the Contract of Guarantee. The
invalidity of the Main Contract or the Contract of Guarantee for any reason
shall not have effect on this contract. This contract is still
valid.
Article
Twenty One Party A promises
any change of address or contact provided in this contract shall be notified to
Party B in writing. Any Party B’s letter forwarded to Party A at the
address or through the contact information provided in this contract shall be
deem deliverable, with any consequence on Party A.
Article
Twenty Two Any modification
to this contract shall be negotiated by and between the parties, reduced to a
writing and signed by both parties.
Article
Twenty Three Unless specified otherwise,
either party shall not unilaterally rescind the contract after it takes
effect. The recession of this contract shall be negotiated by and
between the parties, reduced to a writing and signed by both
parties.
Article
Twenty Four Any appendix,
modification or supplement of this contract constitute a undividable part to its
integrity, and shall have the same legal effect.
Article
Twenty Five Any disputes
arising from this contract shall be resolved by friendly negotiation between
parties, if failed, either party shall have right to bring a suit in the People
of Court where Party B is located.
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Article
Twenty
Six This
contract takes effect as of the day of conditions in the following
fulfilled:
(One) If
Party A is corporate, Party A officially seals.
(Two) If
Party A is natural person, Party A signs.
(Three) Party
B officially seals.
Article
Twenty Seven This contract has ______
counterparts, with ____copy held by Party A, Party B and registration
authority. Each copy has the same legal effect.
Article
Twenty Eight Any issues agreed
otherwise are:
______________________________________________________________________________________________________________________________________________
________________________________________________________
(The
space below is for signature and seal only, not for text)
Party A
: /s/
Xxxx,
Xxxxx (Seal
or Signature)
Seal in
red Dalian
Heavy Mining Equipment Manufacturing. Co, Ltd
Seal in
square Xxxx, Xxxxx
Seal
Authorized
Agent: ________________________________________(
signature seal)
Party B
: /s/
Wang,
Feng (Seal
or Signature)
Seal in
red Dalian
Union-Chuangye Bonding Co, Ltd.
Seal in
square Wang,
Feng
Authorized
Agent: ________________________________________(
signature seal)
Date of
Signature: January
12, 2010
Place of
Signature: Dalian
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