Maximum Amount Mortgage Agreement Agricultural Bank of China
Exhibit
10.39
Agricultural
Bank of China
NO.
41906200900000502
Mortgagee
(Full Name): Anyang
Branch, Agricultural Bank of China
Mortgagor
(Full Name): One: Henan Shuncheng Group Coal
Coke Co., Ltd
Two:
Three:
Whereas
the Mortgagor, of his own will, provides a mortgage of maximum amount for the
creditor’s rights arising from a series of business Agreements (hereinafter
referred to as the Principal Agreement) by and between the Mortgagee and Henan Shuncheng Group Coal
Coke Co., Ltd which are signed in accordance with Article 1 under this
Agreement. Each party of this Agreement enacts this Agreement by reaching
consent through consultation in accordance with the law and provision of
China.
Article
1 the
Guaranteed Principal Creditor’s Rights and the Maximum Amount
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1.1
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The
Mortgagor, of his own will, provide security to the following creditor’s
rights between the Mortgagee and the Mortgagor, and the maximum amount of
the guaranteed creditor’s rights is seventy five millions only RMB (￥75,000,000).
The foreign currency transaction is converted in accordance with the
selling price of the date of transaction under the Item (1)
below.
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(1)
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The
Mortgagee deals with the creditor’s rights from each agreed business from
25th June, 2009 to
24th June, 2010.
This period is the determination period of guaranteed creditor’s rights of
maximum amount. The aforesaid business includes: (subject to the item
marking “√”)
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√□Loan in RMB/Foreign
Currency □Establishment of L/C derating the security deposit
□Packing
loan □Discount on commercial xxxx □Import documentary
credit
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□Letter
of guarantee □Acceptance of commercial xxxx □Export documentary credit
□other business:___/___
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(2)
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The
following outstanding principal and its relevant interest, default
interest, compound interest, expenses and etc are formed between the
Mortgagee and debtor, and the interest, default interest, compound
interest expenses and etc thereof are calculated in accordance with the
relevant Principal Agreement till the date of actual
liquidation.
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Agreement Name
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Agreement Number
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Outstanding Principal
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Currency
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(The
additional table added for the lack of table hereof is the component of this
Agreement.)
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1.2
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The
kind, amount, rate and time limit of each business transaction guaranteed
hereof subject to the relevant legal documents or
certificates.
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1.3
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Within
the period and maximum amount of the mortgage agreed hereof, the Mortgagee
does not need to deal with procedures of guarantee case by case when
issuing the agreed loan or providing other bank
credit
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1.4
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The
currency of the business transaction occurs in the period and within the
maximum amount of the mortgage is not limited, and the Mortgagor shall
take the responsibility of guarantee by use of the same currency with the
original one.
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Article
2 Scope
of the Guarantee
The scope
of the guarantee includes the principal of creditor’s right, interest, default
interest, compound interest, penalty, compensation for damage, litigation
(arbitration) fee, lawyer fee, deposition fee, title transfer fee and all the
expenses arising from the realization of the creditor’s rights and mortgage
rights by the Mortgagee.
Regarding
part exceeding the maximum amount due to change of currency rate, the Mortgagor
shall bear the responsibility of guarantee of its own will.
Article
3 the
Mortgage Property
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3.1
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The
Mortgagor agrees to set the machinery
equipment as the mortgage property. The aforesaid mortgage property
refers to (list name and number): List of Chattel
Mortgage, NO.41906200900000502-1. This list is an integral part
hereof and has the equal legal effect of this
Agreement.
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3.2
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The
aforesaid mortgage property is priced provisionally in RMB of two hundred and
seventy-five million three hundred and eighty-one thousand and sixty-six
only (￥275,381,066),
and the final value thereof is subject to the proceeds obtained from the
actual disposition of mortgage property when realizing the mortgage
rights.
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Article
4 Warrants
of the Mortgagor
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4.1
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The
Mortgagor has got the authority as required by the mortgage hereof in
accordance with the relevant regulations and
procedures.
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4.2
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The
Mortgagor has a complete and undisputed right of ownership or right of
disposition on the mortgage
property.
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4.3
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The
mortgage property may be circulated or transferred
legally.
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4.4
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The
mortgage property is not sealed up, distained or placed under
surveillance。
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4.5
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The
Mortgagor shall honestly inform of the delinquent tax, the construction
works proceeds of mortgage property and the conditions of the mortgage
property which has already been pledged or
rented.
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4.6
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The
Mortgagor has got the consent of co-owners of the mortgage property in
respect of the mortgage matters
hereof.
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4.7
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In
the period of mortgage, the Mortgagor shall inform the Mortgagee in
written form promptly when one of the following conditions
occurs:
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(1)
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The
mortgage property is sealed up, distained, placed under surveillance or
taken other coercive measures;
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(2)
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The
Mortgagor changes its capital structure or the management system,
including but not limited to contracting, leasing, remoulding of
shareholding system, joint operation, consolidation, separation, joint
venture, assets transfer and etc.
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(3)
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The
Mortgagor is rescinded, the business license is revoked, ordered to close
or other dismissal reasons occur.
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(4)
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The
mortgager applies for bankruptcy, reformation and compromise or be applied
for bankruptcy and reformation.
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4.8
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As
of the mortgage property, there does not exist other conditions impacting
the Mortgagee to realize the mortgage
right.
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Article
5 Effectiveness
of the Mortgage Right
The
effectiveness of the mortgage right is governed by the mortgage property’s
accession things, accession rights, substitution objects, isolates, annexed
things, mixtures, processed things and other properties and rights provided by
laws and regulations.
Article
6 Possession
and Management of the Mortgage Property
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6.1
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The
mortgage property hereof is possessed and managed by the Mortgagor who has
the obligation of appropriate management and reasonable using. The
Mortgagee is entitled to supervise and check the management and using
conditions of the mortgage
property.
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6.2
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In
the period of mortgage, the Mortgagor shall not bestow, transfer, rent,
remortgage or take other dispositions in any manners to the mortgage
property without the written consent of the Mortgagee. If the mortgager
transfer, rent or dispose the mortgage property in any other manners with
the written consent of the Mortgagee, the obtained proceeds shall be used
to liquidate the guaranteed claims in advance or to be
deposited.
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6.3
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In
the period of mortgage, if the mortgage property is damaged, lost,
expropriated, requisitioned, or owned by the third person due to
annexation, mixture and processing, the Mortgagor shall take effective
measures promptly to avoid the enlargement of damage and simultaneously
inform the Mortgagee promptly in writing. The Mortgagee is entitled to
enjoy the priority of having his claim satisfied with the obtained
insurance proceeds or compensations; and the Mortgagee is entitled to
request to liquidate the debt in advance or deposit if the performance
period of the guaranteed claim does not
expire.
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6.4
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In
the period of mortgage, if the value of mortgage property reduces, the
Mortgagee has the right to request the Mortgagor to restore the original
value or provide security recognized by the Mortgagee corresponding to the
amount of the lost value.
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Article
7 Insurance
of the Mortgage Property
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7.1
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The
Mortgagor shall deal with the relevant insurance in accordance with the
demand of the Mortgagee, and appoint the Mortgagee as the primary
beneficiary of this insurance and deliver the policy originals to the
Mortgagee.
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7.2
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The
insurance premium is paid by the Mortgagor, who shall pay for the full
insurance premium on time and perform other obligations under the
insurance Agreement (including the insurance policy or other insurance
certificates, hereinafter inclusive). In the period of the mortgage, the
Mortgagor does not pay for the insurance premium or deal with the
insurance (renewal of insurance) procedures, the Mortgagee is entitled to
pay for it or deal with the procedure while the relevant expenses shall be
borne by the Mortgagor. The mortgager agrees the Mortgagee to directly
collect the aforesaid expenses from its account openedwith the
Mortgagee.
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7.3
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In
the period of the mortgage, the Mortgagor shall not modify, dismiss or
terminate the insurance Agreement unilaterally or negotiating with the
insurer without the written consent of the Mortgagee; and shall not waive
claim right of the insurance benefit or right of claim against any third
person.
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7.4
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In
the period of the mortgage, if the insurance accident happens to the
mortgage property, the Mortgagor shall inform the insurer and the
Mortgagee promptly, and deals with the matters of claim for compensation.
The Mortgagor who does not inform promptly or claim for compensation
resulting in the loss of the Mortgagee, shall take the responsibility of
compensation.
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Article
8 Registration
of the Mortgage
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8.1
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The
Mortgagor shall deal with the registration procedures of the mortgage in
relevant registration institution within five (5) days after this
Agreement takes effect; the mortgage property’s certificate of other
rights, registration documents of the mortgage or other certificates of
other rights are possessed and managed by the
Mortgagee.
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8.2
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In
the period of the mortgage, if it is needed to deal with the registration
procedure of modification with registration institution, the Mortgagor
shall deal with the relevant procedures
promptly.
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8.3
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In
the period of the mortgage, if the Mortgagee intends to transfer the right
of mortgage of maximum amount in accordance with this Agreement, the
Mortgagor shall assist the Mortgagee and the transferee to deal with the
relevant procedures of modification
registration.
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Article
9 Transfer
of the Right of Mortgage
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9.1
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Before
the claim of the guaranteed mortgage of maximum amount hereof is
confirmed, the Mortgagee, who transfers partial rights of creditor, is
entitled to transfer the relevant rights of
mortgage.
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9.2
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After
the creditor’s right guaranteed by mortgage of maximum amount hereof is
confirmed, the Mortgagee, who transfers partial creditor’ rights, may not
transfer the relevant rights of
mortgage.
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Article
10 Confirmation
of the Guaranteed Creditor’s Right
The
creditor’s right guaranteed by mortgage of maximum amount hereof is confirmed
when one of the following conditions occurs:
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10.1
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The
Expiration of determination term of the creditor’s right. Expiration
includes the determination term expiration of the creditor’s right
provided in Article 1 hereof, and the determination term expiration of the
creditor’s right declared by the Mortgagee in advance in accordance with
national laws and regulations or this Agreement. If the debtor breaks the
obligations of the Principal Agreement or the Mortgagor breaks the
obligation hereof, the Mortgagee is entitled to declare that the
determination term of the creditor’s right is expired in
advance.
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10.2
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New
creditor’s right is impossible to
happen.
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10.3
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The
mortgage property is sealed up or
distained.
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10.4
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The
debtor or the Mortgagor is declared bankruptcy or
dismissed.
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10.5
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Other
conditions regarding determination of creditor’s right provided by laws
and regulations.
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Article
11 Realization
of the Right of Mortgage
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11.1
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When
one of the following conditions occurs, the Mortgagee is entitled to
perform the right of mortgage, and consult with the Mortgagor to convert
the mortgage property into money or take priority to get paid out of the
proceeds from auction or sale of the mortgage property. If the obtained
proceed is not enough to satisfy the guaranteed creditor’s right hereof,
the Mortgagee may choose to use the proceeds to restore the capital,
interest, default interest, compounding interest or expensed and
etc.
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(1)
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In
case the performance period of any debt under any Principal Agreement
expires, but the Mortgagee has not been paid off. Expiration includes the
expiration of debt performance period as stipulated under Principal
Agreement, and the declared expiration ahead of time by the Mortgagee in
accordance with national laws and regulations or this
Agreement.
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(2)
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The
debtor or the Mortgagor is dismissed, business license is revoked, ordered
to be close down or taken upon other
measures.
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(3)
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The
debtor or the Mortgagor is accepted to apply for bankruptcy by the
people’s court or to be ordered to
reconciliation.
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(4)
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The
debtor or the Mortgagor is dead, declared of disappearance or declared of
death.
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(5)
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The
mortgage property is sealed up, distained, placed under surveillance or
taken other enforcement measures.
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(6)
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The
mortgage property is damaged, lost, expropriated or
requisitioned.
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(7)
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The
Mortgagor does not restore the value of the mortgage property or provide
for the relevant guarantee in accordance with the Mortgagee’s
demand.
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(8)
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The
Mortgagor breaks the obligations
hereof.
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(9)
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Other
conditions affects severely the realization of right of mortgage
hereof.
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11.2
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If
there exist two or more Mortgagors with a real right (including the
mortgage property provided by the debtor) simultaneously, the Mortgagee is
entitled to perform the real right for mortgage in respect of any or each
real right.
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11.3
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If
the Mortgagor is a third person beyond the debtor and the debtor provides
the guarantee of property for the guaranteed creditor’ right, and the
Mortgagee waives this real right for mortgage, mortgage priority or
modifies the real right for guarantee, the Mortgagor agrees to continue
providing guaranteed mortgage for the claim under the Principal Agreement
in accordance with this Agreement. This Real Right for Mortgage is formed
in the guarantee of property provided by the debtor for the creditor’s
right under the Principal
Agreement.
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Article
12 Liability
for Breach of Agreement
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12.1
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After
this Agreement comes into effect, the Mortgagee who does not perform the
Agreement obligation resulting in the loss of the Mortgagor shall take the
relevant liability of compensation.
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12.2
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The
Mortgagor who has one of the following circumstances shall pay for penalty
to the Mortgagee at_____ percentage (____ %) of the maximum balance of the
guaranteed creditor’s right hereof; in addition, the Mortgagor shall pay
for the full compensation simultaneously if resulting in loss of the
Mortgagee.
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(1)
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Does
not get the legal and effective authority as required by the mortgage
hereof;
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(2)
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Does
not accurately inform of the delinquent tax, the construction works
proceeds of mortgage property, and the conditions of existing the
intercommunity, disputes, demurrals, mortgage property being mortgaged or
rented or being sealed up, distained or place under
surveillance;
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(3)
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Does
not deal with the registration procedures in accordance with this
Agreement;
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(4)
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Does
any unauthorized disposition of the mortgage property without the written
consent of the Mortgagee;
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(5)
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Does
not restore the value of the mortgage property or provide for the relevant
guarantee in accordance with the Mortgagee’s
demand;
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(6)
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Other
behaviors which breach this Agreement or impact the achievement of the
right of mortgage.
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Article
13 Bearing
of the Expenses
The
expenses of registration, evaluation, insurance, identification, notarization,
deposition of the mortgage property are borne by the Mortgagor.
Article
14 Solutions
to Conflicts
Any
conflicts arising from the performance of this Agreement shall be settled
through the negotiation by both parties, or resolved through method _____ of the
following ways:
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14.1
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Litigation.
Any litigation shall be subject to the jurisdiction of the people’s court
in the Creditor’s location.
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14.2
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Arbitration.
The conflicts shall be submitted to ____/____ (name of the arbitral
institution) and resolved in accordance with its applicable
rules.
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During
the period of litigation or arbitration, the other clauses not in dispute shall
be performed continuously.
Article
15 Other
Issues
No.1: The
Mortgagor shall actively check the debtor’s operation condition and occurrence
and performance conditions of each business hereunder. The Principal Agreement,
related legal documents or notes will not be served to the
Mortgagor.
No.2:
/.
Article
16 Execution
of the Agreement
The
agreement will come into effectiveness upon the signature or stamp by both
sides.
Article
17
This
agreement is executed in four originals, and
one for each party, one for the debtor and one for registration authority, each
with the same legal effectiveness.
Article
18 Note
The
Mortgagee has required the Mortgagor to understand every single clause fully and
accurately; and the creditor has explained relevant articles upon the
Mortgagor’s request; thus, both parties have achieved common understanding as of
this agreement.
Mortgagee:
(Seal)
Legal
Representative
/Authorized
Representative: the
signature [illegible]
Mortgagor: Henan Shuncheng
Group Coal Coke Co., Ltd
(Seal)
Legal
Representative
/Authorized
Representative: the
signature /s/ Wang Xinshun
Execution
Date: 25th June,
2009
Execution
Place: Anyang Branch, Agricultural Bank of China
