Equity Pledge Agreement between AVIC I International Leasing Co., Ltd. (the Pledgee) and Henan Shuncheng Group Coal Coke Co., Ltd. (the Pledgor)
Exhibit
10.58
Agreement
No.: YHZL (09) 02ZL024-ZY001
between
AVIC I
International Leasing Co., Ltd.
(the
Pledgee)
and
Henan
Shuncheng Group Coal Coke Co., Ltd.
(the
Pledgor)
This
Equity Pledge Agreement (the "Agreement") is entered into on November 3rd, 2009
in Shanghai by and between:
The
Pledgee (the Lessor): AVIC I International Leasing Co., Ltd.
Legal
Representative: Xxxxx Xx'an
Legal
Address: 23 Floor CATIC Tower, 000 Xxxxxxxxx Xxxx, Xxxx'xx Xxxxxxxx, Xxxxxxxx
Xxxx.
Telephone:
000-00000000
Fax:
000-00000000
Postcode:
200041
The
Pledgor (the Lessee): Henan Shuncheng Group Coal Coke Co., Ltd.
Legal
Representative: Wang Xinshun
Registered
Address: Tongye Town North, Anyang County, Anyang City, Henan
Province.
Legal
Address: Tongye Town North, Anyang County, Anyang City, Henan
Province.
Telephone
and Fax: 0000-0000000
0372-3206721
WHEREAS:
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(1)
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The
Pledgor holds 9.27% of the equity in Anyang Commercial Bank Co. Ltd..
and
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(2)
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No
prohibition rule for equity transfer is specified in the articles of
association of Anyang Commercial Bank Co.
Ltd..
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AVIC I
International Leasing Co., Ltd. (the Pledgee / Lessor), a company registered and
organized under the laws of PRC, with its current business address at 00xx Xxxxx,
000 Xxxxxxxxx Xxxx, Xxxx'xx Xxxxxxxx, Xxxxxxxx City.; and
Henan
Shuncheng Group Coal Coke Co., Ltd. (Lessee), a company registered and organized
under the laws of PRC, with its current business address at Tongye Town North,
Anyang County, Anyang City, Henan Province.
AVIC I
International Leasing Co., Ltd. (the Pledgee / Lessor) and Henan Shuncheng Group
Coal Coke Co., Ltd. (the Lessee) entered into a Financial Leasing Agreement (the
"Leasing Agreement", together with the leasing list under the Leasing Agreement
are collectively referred as the "Lease") with the reference number of YHZL (09)
02ZL024 on November 3rd, 0000,
xxx Xxxxxxx (xxx Xxxxxx) agreed to provide Henan Shuncheng Group Coal Coke Co.,
Ltd. (the Lessee) with the financing leasing service in accordance with the
Lease.
In order
to ensure the performance of the Lease between the Pledgee (the Lessor) and
Henan Shuncheng Group Coal Coke Co., Ltd. (the Lessee), the Pledgor pledges all
of its equity in Anyang Commercial Bank Co. Ltd. for all the debts owed by Henan
Shuncheng Group Coal Coke Co., Ltd. (the Lessee) to the Pledgee (the
Lessor).
In order
to perform the provisions in the Financial Leasing Agreement (with the reference
number of YHZL (09) 02ZL024) between the Pledgee and Henan Shuncheng Group Coal
Coke Co., Ltd. (the Lessee), through negotiation, the Pledgee (the Lessor) and
the Pledgor enter into this Agreement under the following terms.
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1.
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Definition
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Unless
otherwise stipulated in this Agreement, the following terms shall have the
meaning as follows:
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1.1
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Right
of Pledge: means all the contents listed in Article 2 of this
Agreement.
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1.2
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Pledged
Equity: means the 9.27% of the equity in Anyang Commercial Bank Co. Ltd.
that the Pledgor legally holds, which is 9.27% of all the equity in Anyang
Commercial Bank Co. Ltd..
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1.3
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Period
of Pledge: means the period provided in Article 4.1 of this
Agreement.
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1.4
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Financing
Leasing Agreement: means the Financial Leasing Agreement entered into by
and between Henan Shuncheng Group Coal Coke Co., Ltd. (the Lessee) and the
Pledgee (the Lessor) on _____, 2009 (with the reference number of YHZL
(09) 02ZL024).
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1.5
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Event
of Default: means any cases listed in Article 8 of this
Agreement.
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1.6
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Notice
of Default: means the notice that declaring the Event of Default sent by
the Pledgee (the Lessor) in accordance with this
Agreement.
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2.
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Pledge
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2.1
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The
Pledgor pledges the 9.27% of the equity in Anyang Commercial Bank Co. Ltd.
that it legally holds to the Pledgee (the Lessor), as a pledge guarantee
for all the debts owed by Henan Shuncheng Group Coal Coke Co., Ltd. (the
Lessee) to the Pledgee (the
Lessor).
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2.2
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The
Right of Pledge means the Pledgee have the priority to get paid out of
proceeds from sale, auction, and disposal of such
Equity.
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3.
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Scope
of Pledge Guarantee
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The scope
of pledge guarantee of the Pledgee is all creditor's right of the Pledgee (as
the Lessor) under the Lease, including but not limited to the
following:
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1)
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All
payable lease amounts (including but not limited to all the rent, lease
management fee for each period, good price in name, insurance fee and all
the proportion of payable amount increased at times according to the
Lease) with the total amount of RMB Seventy-three
Million One Hundred and Thirty-four Thousand Five Hundred and Ten Yuan and
Fifty-seven Cent (￥73,134,510.57).
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2)
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Delay
of performance penalty;
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3)
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Compensation
for damages;
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4)
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Expenses
of the Pledgee (the Lessor) for ensuring or enforcing its rights and
interests;
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5)
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The
payment or other obligation of any nature that shall be assumed by Henan
Shuncheng Group Coal Coke Co., Ltd. (the Lessee) to the Pledgee (the
Lessor) if the Lease is terminated in advance (except the repayment in
advance as provided in the Lease), became invalid or cannot be executed
for any reason.
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4.
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Period
of Pledge
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4.1
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The
Period of Pledge 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.
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4.2
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During
the Period of Pledge, if Henan Shuncheng Group Coal Coke Co., Ltd. (the
Lessee) fails to perform according to the provisions in the Financing
Leasing Agreement, the Pledgee is entitled to dispose the Right of Pledge
according to this Agreement and relevant PRC laws and
regulations.
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5.
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Keeping
of Certificate for Right of Pledge
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5.1
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During
the Period of Pledge provided in this Agreement, the Pledgor shall sign or
cause Anyang Commercial Bank Co. Ltd. to sign the capital contribution
certificate and list of shareholders, and delivers such duly signed
documents to the Pledgee. The Pledgee will keep such documents
during the Period of Pledge provided in this
Agreement.
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6.
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Representations
and Warranties of the Pledgor
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6.1
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The
Pledgor is the legal owner of the Pledged Equity. No
prohibition rule for equity transfer is specified in the articles of
association of Anyang Commercial Bank Co. Ltd., and such articles of
association will not be amended by the board of shareholders of Anyang
Commercial Bank Co. Ltd. to prohibit equity
transfer.
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6.2
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The
Pledgor is obligated to assist in conducting necessary registration issues
for the equity pledge.
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6.3
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Whenever
the Pledgee executes its right as the pledgee according to this Pledge
Agreement, it will not be interposed by any other
party.
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6.4
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The
Pledgee is entitled to dispose and transfer the Right of Pledge according
to this Agreement.
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6.5
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Except
the Pledgee, the Pledgor has not set any other pledge or encumbrance for
any third party in the Pledge.
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7.
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Covenants
of the Pledgor
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7.1
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During
the valid period of this Agreement, the Pledgor covenants to the Pledgee
that it will:
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7.1.1
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The
Pledgor will not transfer the equity or set or allow any pledge or any
other guarantee that may affect the right and interest of the Pledgee
without prior written consent of the
Pledgee;
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7.1.2
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The
Pledgor will comply with all the laws and regulations related to pledge of
rights. If the Pledgor receives any notice, instruction or
advice regarding the Right of Pledge from relevant competent authority, it
shall bring forth such notice, instruction or advice to the Pledgee within
5 working days and comply such notice, instruction or advice or make
comments or representations to such notice, instruction or advice
according to the reasonable request or with consent of the
Pledgee.
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7.1.3
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The
Pledgor will promptly inform the Pledgee any event or notice it received
that may affect the equity interest or any right on such equity interest
or the performance of obligation by the Pledgor under this Agreement or
change any warranties or obligations of the Pledgor under this
Agreement.
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7.2
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The
Pledgor agrees that the exercise of the right of Pledgee on the pledge
under this Agreement shall not be interrupted or disturbed through legal
proceedings by the Pledgor, the successor or the trustee of the Pledgor,
or any other party.
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7.3
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The
Pledgor covenants to the Pledgee that with regards to the pledge for all
the debts owed by Henan Shuncheng Group Coal Coke Co., Ltd.
(the Lessee) to the Pledgee (the Lessor) under the Lease, the Pledgor will
honestly sign and cause all other interested parties to sign all the
entitlement certificate, deed required by the Pledgee, and / or perform
and cause all other interested parties to perform the actions required by
the Pledgee, and provide convenience for the
exercise of the right and authorization of the Pledgee under this
Agreement, sign all relevant documents for the change of certificate of
equity interest with the Pledgee or the person (natural person / legal
person) designated by the Pledgee, and provide the Pledgee with all
relevant notice, order, or decision as deemed necessary by the Pledgee
within reasonable period.
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7.4
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The
Pledgor covenants to the Pledgee that the Pledgor will comply all of its
covenants, undertakings, agreements, representations and conditions for
the interest of the Pledgee. If the Pledgor fails to perform or
fully perform its covenants, undertakings, agreements, representations or
conditions, it shall compensate all the losses of the Pledgee caused by
such failure.
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7.5
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If
the Right of Pledge is not settled or became invalid for any of the
following reasons, the Pledgor shall provide a joint liability guarantee
for the debt owed by the Pledgor to the Lessor under the
Lease:
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(1)
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The
Pledgor does not set up the Right of Pledge according to this
Agreement;
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(2)
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Any
of the representation, warranty, or covenant of the Pledgor is
unreal;
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(3)
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Other
reasons caused by the Pledgor.
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7.6
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The
Pledgor irrevocably agrees that it waives all of its preferential right to
purchase the equity from the other shareholders of Anyang Commercial Bank
Co. Ltd. if such equity is pledged to the Pledgee and the Pledgee
exercises its right of pledge.
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8.
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Event
of Default
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8.1
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Any
of the following events shall be deemed as an Event of
Default:
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8.1.1
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Henan
Shuncheng Group Coal Coke Co., Ltd. (the Lessee) fails to pay the Pledgee
(the Lessor) all payable lease amount and other payable amounts under the
Lease on time and in full;
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8.1.2
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Any
of the representations or warranties of the Pledgor in Article 6 of this
Agreement is materially misleading or inaccurate, and / or the Pledgor
violates its representations and warranties in Article 6 of this
Agreement;
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8.1.3
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The
Pledgor violates its covenants in Article 7 of this
Agreement;
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8.1.4
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The
Pledgor violates any article in this
Agreement;
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8.1.5
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The
Pledgor gives up the Pledged Equity or transfer the Pledged Equity without
written consent of the Pledgee;
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8.1.6
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Any
of the loans, guarantees, compensations, undertakings or other repayment
liabilities are (1) requested to be repaid or performed in advance caused
by breach of Agreement; or (2) became due but cannot be repaid or
performed on time, which the Pledgee deems the capacity of the Pledgor to
perform its obligation under this Agreement has been
affected;
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8.1.7
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The
Pledgor fails to repay its general debts or other
debts;
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8.1.8
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If
any of the necessary consent, permission, approval, or authorization of
the government that are required to make this Agreement enforceable,
legal, or valid, is revoked, suspended, materially amended or became
invalid;
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8.1.9
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If
any of the consent, permission, approval, or authorization of the
government that are required to make this Agreement enforceable, legal, or
valid, is revoked, suspended, materially amended or became
invalid;
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8.1.10
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Any
adverse changes to the property of the Pledgor, which the Pledgee deems
the capacity of the Pledgor to perform its obligation under this Agreement
has been affected;
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8.1.11
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The
successor or representative of Henan Shuncheng Group Coal & Coke Co.,
Ltd. (the Lessee) refuses to perform or only performs part of the payment
liabilities to the Pledgee (the Lessor) under the Financial Leasing
Agreement (with the reference number of YHZL (09)
02ZL024);
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8.1.12
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Other
cases that make the Pledgee unable to perform its Right of Pledge
according to laws and regulations.
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8.2
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If
the Pledgor acknowledges or discovers the occurrence any events in Section
8.1 of this Article or any other events which may leads the above events,
it shall promptly notice the Pledgee in written
form.
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8.3
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The
Pledgee may send out a Notice of Default to the Pledgor in writing at any
time after the occurrence of the Event of Default, requesting the Pledgor
to repay all the outstanding payable leasing amounts and other payable
amounts under the Financial Leasing Agreement or dispose the Right of
Pledge according to Article 9 of this Agreement. The pledgor
shall assume the guarantee liability to the Pledgee within 5 business days
after receiving such Notice of Default. If the Pledgor delays
its performance of guarantee liability, 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.
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9.
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Exercise
of Right of Pledge
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9.1
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The
Pledgor shall not transfer the Pledged Equity unless all the payable
leasing amounts and other payable amounts under the Financial Leasing
Agreement are fully paid off and the written consent of the Pledgee is
obtained;
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9.2
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The
Pledgee shall send out a notice to the Pledgor when the Pledgee exercise
the Right of Pledge;
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9.3
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The
Pledgee is entitled to convert all or part of the Pledged Equity into
money, or have the priority to get paid out of proceeds from sale or
auction of such Pledged Equity, until all the payable leasing amounts and
other payable amounts under the Financial Leasing Agreement are fully paid
off.
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9.4
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The
Pledgor shall not settle any barrier if the Pledgee disposes its Right of
Pledge according to this Agreement, and shall provide necessary assistance
to help the Pledgee exercising its Right of
Pledge.
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10.
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Assignment
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10.1
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Without
prior consent of the Pledgee, the Pledgor shall not assign any of its
rights or obligations under this Agreement to any
party.
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10.2
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This
Agreement is binding to the Pledgor and its
successor.
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10.3
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The
Pledgee may assign any or all of its right or obligations under the Lease
to any third party (natural person / legal person) at any time, in this
situation, the assignee shall enjoy and assume all of the rights and
obligations of the Pledgee under this Agreement, as if it is a Party of
this Agreement. If the Pledgee assigns the rights and
obligations under the Financial Leasing Agreement, the Pledgor shall sign
related agreement and / or documents as may be required by the
Pledgee.
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11.
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Termination
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This
Agreement will be terminated if all payable leasing amounts and other payable
amounts under the Financial Leasing Agreement are fully paid off and Henan
Shuncheng Group Coal Coke Co., Ltd. (the Lessee) does not assume any obligation
under the Financial Leasing Agreement.
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12.
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Handling
Fee and Other Expenses
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12.1
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All
the relevant fees and actual expenses related to this Agreement, including
but not limited to legal fees, raw materials fees, stamp tax and any other
tax and expenses shall be assumed by the Pledgor. If the
Pledgee shall pay relevant fees and tax according to law, the Pledgor
shall compensate the Pledgee for all the fees and tax the Pledgee has
already paid.
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12.2
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If
the Pledgor fails to pay any payable tax or fees according to this
Agreement or for other reasons, the Pledgee claims such tax or fees by any
means or manner, the Pledgor shall assume all expenses (including but not
limited to any tax, handling fee, litigation fee, attorney fee, and
insurance fee for disposing the Right of Pledge) caused by such
failure.
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13.
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Force
Majeure
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13.1
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Force
Majeure of this Agreement includes but not limited to earthquake, flood,
war or act or government and any other unforeseen events and the result of
such events cannot be reasonably
prevented.
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13.2
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If
any party of this Agreement fails to perform or fully perform this
Agreement due to force majeure, such party shall inform the other party in
writing within 5 days after the occurrence of force majeure and provide
the details of such event and the certificate documents issued by relevant
competent authorities, departments or notary public office regarding the
impossibility of performance of part or all of this Agreement within 15
days after occurrence of force
majeure.
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13.3
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If
any party fails to perform or fully perform this Agreement due to force
majeure, such party shall not assume any liability of default, however,
such party shall adopt all necessary and proper measures to reduce the
loss that may be imposed to the other
party.
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13.4
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If
any force majeure occurs, based on the influence of the force majeure to
the performance of this Agreement, the parties shall negotiate to amend or
terminate this Agreement.
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14.
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Governing
Law
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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 Pledgee (the Lessor) (Jingan District, Shanghai City).
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15.
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Correspondence
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All the
notices under this Agreement shall be sent to the following addresses by
messenger, fax or registered mail unless the addresses are changed through
written notice. If the notice is sent by registered mail, the
acceptance date on the receipt of the registered mail shall be the delivery
date; if by messenger or fax, the sending date shall be the delivery
date. If the notice is sent by fax, the original notice shall be sent
to the following address through registered mail or messenger promptly
after faxing.
The
Pledgee (the Lessor): AVIC I International Leasing Co., Ltd.
Attention:
Xxxx Xxxxxxxx
Legal
Address: 23 Floor CATIC Tower, 000 Xxxxxxxxx Xxxx, Xxxx'xx Xxxxxxxx, Xxxxxxxx
Xxxx.
Telephone:
000-00000000/00000000000
Fax:
000-00000000
Postcode:
200041
The
Pledgor (the Lessee): Henan Shuncheng Group Coal Coke Co.,
Ltd.
Registered
Address: Tongye Town North, Anyang County, Anyang City, Henan
Province.
Legal
Address: Tongye Town North, Anyang County, Anyang City, Henan
Province.
Legal
Representative: Wang Xinshun
Telephone
and Fax: 0000-0000000
0372-3206721
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16.
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Annexes
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The
annexes of this Agreement are an integral part of this
Agreement.
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17.
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Severability
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If any
provision of this Agreement becomes invalid or unenforceable under the due to
any inconsistency with applicable laws, such provisions will only be invalid or
unenforceable under the jurisdiction of such laws, and it will not affect the
legal effect of other provisions of this agreement.
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18.
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Effectiveness
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18.1
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This
Agreement and any amendments, supplements or changes to this Agreement
shall be made in writing and signed and stamped by each party and it will
come into effect after relevant registration procedures are completed with
Anyang Administrative Bureau for Industry and
Commerce.
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18.2
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This
Agreement shall come into effect when all the following conditions are
fully satisfied:
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(1)
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This
Agreement is signed by the legal representatives or authorized
representatives of the parties and stamped by the parties, and relevant
notarial acts is completed;
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(2)
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The
Pledgee receives the original board resolution by the board of directors /
shareholder of the Pledgor which approves the guarantee under this
Agreement.
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This
Agreement shall be executed in ten original copies in Chinese, Each original
copy is equally valid.
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18.3
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This
Agreement shall be conducted with enforceable
notarization. After enforceable notarization is conducted to
this Agreement by the parties, if Henan Shuncheng Group Coal Coke Co.,
Ltd. (the Lessee) / the Pledgor fails to perform or fully perform its
obligations under Agreement, the Pledgee (the Lessor) 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 Pledgor agrees to accept such
enforcement. The expenses for the notarization will be assumed
by the Pledgor and paid to the Pledgee (the Lessor) on the date this
Agreement is entered into.
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(This
page is intentionally left blank)
IN
WITNESS WHEREOF the parties have signed this Agreement as of the date first
hereinabove set forth.
The
parties has read all the provisions of this Agreement without any objection and
accurately understood all the legal relationship, relevant rights and
obligations and the legal meaning of the liability provisions.
The
Pledgee: AVIC I International Leasing Co., Ltd. (Stamp)
[Stamp of
AVIC I International Leasing Co., Ltd. sealed here]
(Signature)]: /s/
Xxxx Xxxxxxxx
The
Pledgor: Henan Shuncheng Group Coal Coke Co., Ltd. (Stamp)
[Stamp of
Henan Shuncheng Group Coal Coke Co., Ltd. sealed here]
(Signature): /s/
Wang Xinshun
Annex
I
Capital
Contribution Certificate of Anyang Commercial Bank Co. Ltd.
Henan
Shuncheng Group Coal Coke Co., Ltd. has contributed XXX 00 million Yuan, holds
9.27% of the equity in Anyang Commercial Bank Co. Ltd., of which all the 9.27%
of the equity in Anyang Commercial Bank Co. Ltd. has been pledged to AVIC I
International Leasing Co., Ltd..
Anyang
Commercial Bank Co. Ltd. (Stamp)
Signature
of Legal Representative: ___________
November
3rd,
2009
Annex
II
Stock
Ledger of Anyang Commercial Bank Co. Ltd.
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Name
of Shareholder
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ID
Number
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Contribution
Amount
(ten
thousand
Yuan)
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Proportion
of
Share
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Status
of
Pledge
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|||||||
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Henan
Shuncheng
Group
Coal Coke Co., Ltd.
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1500 | 9.27 | % |
Has
been pledged to AVIC I International Leasing Co., Ltd.
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|||||||
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……
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|||||||||||
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……
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|||||||||||
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Total
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100 | % | |||||||||
(Sample,
the stock ledger issued by Anyang Commercial Bank Co. Ltd. shall
prevail)
Anyang
Commercial Bank Co. Ltd. (Stamp)
Signature
of Legal Representative: ___________
November
3rd,
2009
