Anyang Commercial Bank Guarantee Agreement
Exhibit
10.87
Agreement No.: (2008) An ▇▇▇▇▇
▇▇▇▇ Si Bu Bao Zi No. 014-2
Anyang
Commercial Bank
The Guarantor (Party A): Henan
Shuncheng Group Coal Coke Co. Ltd.
Legal
Representative: Wang Xinshun
Address:
South Industry Road, Tongye Town
ID Number
(in case Party A is a natural person):____________________
The Creditor (Party B): Anyang
Commercial Bank
Address:
▇▇. ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Legal
Representative / Responsible Person: Fu Fei
In the Eighth Floor of Anyang
Commercial Bank
For the
purpose of ensuring the performance of the obligation of the Debtor under the
loan Agreement dated on November 26th, 2008
between Anyang County Rural Road Administration (the “Debtor”) and Party B of
this Agreement with the loan agreement (2008) An ▇▇▇▇▇ ▇▇▇▇ Si Bu Jie Zi No. 14
(hereinafter referred to as “Principal Agreement”), Party A is willing to
provide a guarantee to Party B. In order to specify the rights and
obligations of both parties, according to Contract Law, Guarantee Law and other
relevant laws and regulations and through equally consultation, Party A and
Party B hereby enter into this Agreement.
Article
1 Representations
and Warranties of Party A
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1.1
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Party
A represents and warrants that:
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1.1.1
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If
Party A is a legal person or other organization, Party A is duly
registered and legally existing, it has the fully civil capacity for
rights and actions to enter into and perform this Agreement; if Party A is
a natural person, Party A is a legally qualified body, it has the fully
civil capacity for rights and actions to enter into and perform this
Agreement;
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1.1.2
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Party
A has fully understand the content of the Principal Agreement, the
execution and performance of this Agreement is based on the true will of
Party A, it has duly obtained legal and effective authorization according
to its articles of association and other internal management
documents;
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1.1.2.1
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If
Party A is a corporation, the guarantee provided by it has been approved
by its board of directors, board of shareholders or general meeting of
shareholders as specified in its articles of associations; if limitations
of total guarantee amount or single guarantee amount is specified in its
articles of associations, the guarantee provided in this Agreement does
not exceed such limitations;
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1.1.2.2
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The
legal representative or authorized representative that represents Party A
to sign this agreement has obtained legal and effective authorization from
the corporation, the execution and performance of this Agreement will not
violate any binding contracts, agreements or other legal documents to
Party A.
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1.1.3
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All
the documents and materials provided by Party A to Party B are true,
complete, accurate and valid;
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1.1.4
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Party
A accepts the supervision and inspection on its operation status,
financial status by Party B and shall provide assistance and
cooperation;
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1.1.5
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If
any events occurs that may affect the financial status and performance
capacity of Party A, which includes but not limited to spin-off, merger,
cooperation, joint venture or joint cooperation with foreign party,
contractual operation, restructuring, reform, pre IPO in any manner that
changes its operation method, reducing registered capital, major asset or
equity transfer, accepting big loan, close down, stopping business,
dissolution, being suspend for internal rectification, being revoked
business license, deterioration of financial status, bankruptcy (applied
by Party A or others), or being involved into major litigation or
arbitration, Party A shall promptly inform Party B in
writing;
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1
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1.1.6
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Within
the effective period of this Agreement, if spin-off, merger, stock system
transforming or other event occurs to Party A, Party A shall ensure that
all of its guarantee liability will be well
performed.
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1.1.7
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Where
Party A shall perform the guarantee liability, it shall authorize Party B
to directly withdraw from all of its bank accounts opened with Anyang
Commercial Bank and all of the branches of the bank to repay the debt
under the Principal Agreement.
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Article
2 Category
and Amount of the Principal Credit that is Guaranteed
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2.1
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The
principal credit guaranteed under this Agreement is the loan issued by
Party B according to the Principal Agreement, with the amount of RMB (in
word) Twenty Million (in number) 20,000,000
Yuan.
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Article
3 Time
Period for the Performance of Debt by the Debtor in the Principal
Agreement
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3.1
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The
performance period of the Principal Agreement commences on November 26th,
2008 and ends on November 25th, 2010. Any changes for such
period shall be in accordance with the Principal
Agreement.
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Article
4 Mode
of Guarantee
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4.1
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The
mode of guarantee under this Agreement shall be joint liability
guarantee.
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4.2
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If
there is more than one guarantor, the guarantors are joint liability
guarantors and shall assume joint liability guarantee
together.
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Article
5 Scope
of Guarantee
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5.1
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The
guarantee under this Agreement shall cover the principal, interests,
default interests, compound interest, penalties, compensations, expenses
required to realize the creditor’s right (including but not limited to
litigation fees, arbitration fees, lawyer fees, travel expenses,
enforcement expenses, preservation expenses, valuation expenses, auction
or sales fees, transfer registration fees, notice fees) and all other
payable expenses.
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Article
6 Term
of Guarantee and Limitation of Action
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6.1
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The
term of guarantee under this Agreement is two years from the maturity date
of the performance period for the debtor in the Principal
Agreement.
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6.2
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If
Party B requests the debtor in the Principal Agreement to perform the debt
in advance according to law or the Principal Agreement, the term of
guarantee is two years after Party B notify the debtor in the Principal
Agreement in writing to perform the debt in
advance.
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2
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6.3
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If
the principal credit is repaid by several installments, the term of
guarantee shall commence on the effective date of this Agreement until two
years after the maturity date of the debt that shall be paid in the last
installment.
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6.4
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If
the principal credit is not paid off and Party B requests the guarantor to
assume the guarantee liabilities before the maturity date of the term of
guarantee in this article, the limitation for action shall be calculated
and applied from the date the creditor require the guarantor to perform
its guarantee liability.
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Article
7 Realization
of Guarantee Right
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7.1
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If
the debtor in the Principal Agreement fails to perform its repayment
obligations for loan principal, interests and relevant expenses according
to the Principal Agreement, Party B may directly claim compensation from
Party A and directly withdraw the amount that the debtor in the Principal
Agreement shall pay from any bank accounts of Party A opened with Party B
or any branches of Party B.
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7.2
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If
both guarantee in rem and guarantee in person exist on the guaranteed
creditor’s right and the debtor in the Principal Agreement fails to
perform its due debt or any events occurs that the creditor’s right shall
be realized as agreed by the parties in this Agreement, Party B has the
right to decide and choose the guarantee in rem to realize its creditor’s
right or require Party A to assume the guarantee
liability.
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7.3
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If
any of the following events occurs, Party B has the right to notify Party
A in writing to request Party A to assume the guarantee liability in
advance:
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7.3.1
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The
Principal Agreement is terminated according to the Principal Agreement or
law;
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7.3.2
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The
debt shall be repaid in advance according to other events provided the
Principal Agreement, but the creditor’s right under the Principal
Agreement is not realized or fully
realized.
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7.4
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If
the creditor in the Principal Agreement waives the guarantee in rem or the
order of guarantee in rem or changes the creditor’s right, other
guarantors (and/or Party A) undertake that they will still assume the
guarantee liability.
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Article
8 Rights
and Obligations of Party A
If any of
the following events occur to Party A, it shall notify Party B in
time:
3
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8.2.1
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The
operation mechanism changes, e.g. contractual operation, leasing, joint
cooperation, merger, acquisition, spin-off, stock system transforming,
joint venture or joint cooperation with foreign party,
etc.;
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8.2.2
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Change
of business scope and registered capital, equity
change;
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8.2.3
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Deterioration
of financial status or being involved into major economic
dispute;
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8.2.4
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Bankruptcy,
stopping business, dissolution, being suspend for internal rectification,
being revoked business license or be
revoked;
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8.2.5
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Change
of address, telephone, legal
representative;
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8.3
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If
any of the events provided in article 8.2.1 or article 8.2.2 occurs, Party
A shall inform Party B 30 days before the occurrence of such events; if
any other events of the above article occur, Party A shall inform Party B
within 5 days after the occurrence of such
events.
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8.4
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During
the term of guarantee, Party A shall not provide any guarantee to any
third party that will exceed its capacity of guarantee, or dispose its
asset in a manner that may damage its capacity of guarantee, Party A shall
not damage the rights and interests of Party B. Party A is
obliged to provide Party B with its balance sheet and a statement of its
guarantee status, and provide statements or other document which truly
reflects its financial status periodically or any time as required by
Party B.
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8.5
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During
the effective period of this Agreement, if events occur to Party A such as
spin-off, merger, stock system transforming or other events, Party A
undertakes that it will duly perform all of its guarantee liability under
this Agreement;
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8.6
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During
the effective period of this Agreement, if Party B assigns the principal
creditor’s right to a third party, Party A shall assume the joint
guarantee liability within the same scope of guarantee under this
Agreement. Party B shall inform Party A in
time.
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8.7
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Party
A is obliged to accept the collection documents sent by Party B and send
the receipts to Party B; Party A is obliged to send out the receipts for
the collection letter or other collection documents (including but not
limited to by mail, fax, telegraph, teletype, email, and etc.) within
three business days after receiving such letter or
documents.
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Article
9 Rights
and Obligations of Party B
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9.1
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Party
B has the right to request Party A to provide relevant documents to prove
the legal identity of Party A.
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9.2
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Party
B has the right to request Party A to provide financial reports or other
materials that are able to reflect the credit status of Party
A.
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4
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9.3
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If
the performance period expires and part or all of the creditor’s right of
Party B is not repaid, Party B is entitled to request Party A to assume
the guarantee liability according to this
Agreement.
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9.4
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If
any of the following events occurs, Party B is entitled to request party A
to assume the guarantee liability in advance through written notice, Party
B shall perform such guarantee liability within 10 days after it receives
such notice:
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9.4.1
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Party
B legally terminates the Principal Agreement according to the Principal
Agreement;
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9.4.2
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Party
B collects the loan in advance according to other events provided in the
Principal Agreement.
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9.5
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During
the effective period of this Agreement, if Party B legally assigns the
principal creditor’s right to a third party, it shall inform Party A in
time.
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9.6
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Party
B is entitled to register the guarantee status of Party A according to
Bank Credit Loan
Registration Consultation Administrative Method and Individual Credit
Administrative Method, and allow relevant financial organization to
inquiry the information of Party A.
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Article
10 Event
of Default and Handling
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10.1
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If
any of the representations and warranties of Party A in Article 1 is
false, which impose any damage to Party B, Party A shall compensate such
damage.
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10.2
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After
this Agreement becomes effective, Party A and Party B shall fully perform
their obligations under this Agreement, if any party fails to perform or
fully perform its obligation, it shall assume relevant default liability
and compensate the other party any and all damages imposed by
it.
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Article
11 Effectiveness,
Amendment Termination and Suspension of this Agreement
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11.1
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This
Agreement shall come into effect upon signature and stamp by Party A and
Party B and ends when all the loan principal, interest, default interests,
compound interest, penalties, compensations, expenses required to realize
the creditor’s right and all other payable expenses under the Principal
Agreement are fully paid off.
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11.2
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This
Agreement is independent to the Principal Agreement and it shall remain
effective if the Principal Agreement is not effective. Party A
shall still assume liabilities according to this Agreement if the
Principal Agreement is not
effective.
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5
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11.3
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After
this Agreement becomes effective, neither party may amend or terminate
this Agreement unless written agreement is entered into by the parties
through negotiation if it is necessary to amend or terminate this
Agreement. This Agreement shall keep in effective before the
execution of such written
agreement.
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Article
12 Notarization
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12.1
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Party
A and Party B hereby agree and confirm that if this Agreement is notarized
by notary public office, it will be an enforceable document to the
creditor’s right.
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Article
13 Dispute
Resolution
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13.1
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Any
dispute arising out of the performance of this Agreement shall be first
resolved through negotiations between Party A and Party B, if such dispute
cannot be resolved through negotiations, Article 13.1.2
shall be used to resolve such
dispute:
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13.1.1
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Arbitration
with Anyang Arbitration Commission;
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13.1.2
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Litigation
with the court where Party B
locates.
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Article
14 Other
Issues Agreed by the Parties
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14.1
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During
the performance period of this Agreement, if Party A delays the
performance of its obligation in this Agreement, or Party B tolerates any
default or delay by Party A, it will not damage, affect or limit any
rights of Party B provided in this Agreement or specified in any laws and
regulations, it will not be deemed as an allowance or permit to such
default or any waive of adoption of any action or future action to Party A
by Party B on such default.
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14.2
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____/____
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14.3
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____/____
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Article
15 Miscellaneous
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15.1
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The
annexes of this Agreement are an integral part of this Agreement, the
annexes and this Agreement shall have the same legal
effect.
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15.2
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Party
A confirms all kinds of notices, letters and other materials will be sent
by Party B to Party A to the following address and attention when Party B
exercises its rights under this
Agreement:
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6
Address:
South Industry Road, Tongye Town, Anyang County
Post
code: 455141 Attention: Wang
Xinshun Telephone: ______
Party A
confirms that if the address shall be changed, it shall inform Party B in
writing within 5 days after such change, otherwise Party B will send all kinds
of notices, letters and other materials to the above confirmed address, and it
will be deemed delivered. Any notice, requirement or other
communication from Party B to Party A, which includes but not limited to by
teletype telegraph, fax, or other methods, once such notice, requirement or
other communication is send out, it will be deemed delivered to Party
A.
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15.3
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If
for business needs, Party B needs to entrust other institutions of Anyang
Commercial Bank to perform its rights and obligations under this Agreement
or assign the loan service under this Agreement to other institutions of
Anyang Commercial Bank to manage such loan, Party A hereby approves the
above changes. Other institutions of Anyang Commercial Bank
authorized by Party B or assigned from Party B with the loan service, or
any other institution of Anyang Commercial Bank which accepted the loan
business under this Agreement, has all the rights under this agreement,
and it also has the right to submit to court or arbitration commission for
litigation or arbitration or apply for enforcement with its own
name.
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15.4
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This
Agreement shall be executed in four original copies, each Party A and
Party B and relevant authorities shall have one original copy, all the
original copies shall have the same legal
effect.
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Article
16 Notice
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16.1
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The
creditor has asked the guarantor to fully and completely understand all
the above articles under this Agreement and explains to the guarantor
relevant articles as required by the guarantor. The parties
have the same understanding to this
Agreement.
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Signed
and stamped by the parties:
The
Guarantor (Party A):
[stamp of
Henan Shuncheng Group Coal Coke Co. Ltd. here]
Legal
Representative: /s/ Wang Xinshun
(or
authorized representative)
7
[stamp of
Wang Xinshun here] [signature of Wang Xinshun here] [Fingerprint of Wang Xinshun
here]
November
26th,
2008
The
Creditor (Party B):
[stamp of
Anyang Commercial Bank here]
Legal
Representative (Responsible Person):
(or
authorized representative)
/s/ Wang
[illegible]
November
26th,
2008
8