Contract of Guarantee of Maximum Amount (for Credit Grants)
EXHIBIT
10.35
(for
Credit Grants)
No:
CIB Shenzhen Nanxin (credit) G (2008)0004B
Trustor:
Nanxin Branch, Shenzhen, Industrial Bank Co., Ltd.
Address:
1st Floor, Nanhaitai Mansion,
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxxx
Postal
Code: 518052
Telex number: ___________
Telephone:
00000000
Fax number: 00000000
Guarantor:
Shenzhen Xxx Xxxx Co., Ltd.
Address:
Xx. 000 Xxxx X, Xxxxxx
Xxxxxxx, Xxxxxx Xxxxxxxx, Xxxxxxxx
Postal
Code:
518026
Telex number: ___________
Telephone:
00000000 Fax
number: 00000000
Primary
deposit account: ________________________________________
General
deposit account: ________________________________________
Place
of signing the contract: CIB Mansion, Futian District, Shenzhen
Shenzhen
Branch, Industrial Bank Co., Ltd.
The
Guarantor is willing to offer the guarantee of maximum amount for the Trustor
(“Creditor”) against SinoHub SCM Shenzhen Ltd. (the “debtor”). In order to
clarify obligations, both sides signing this Contract must scrupulously keep
their word and strictly execute the contract in compliance with the relative law
and regulations.
Article
I Definition
Unless
otherwise agreed upon by both parties, then:
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(1)
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“Credit”
here means the Creditor comprehensively appraises the operation and risks
of the debtor, and ascertains on the comprehensive maximum amount of the
debtor, including RMB/foreign currency loan, trade financing, acceptance,
discount, opening L/C, guarantee,
etc.
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(2)
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“Primary
credit” refers to the credit amount specified according to the basic
information of the client, used for the current fund turnover of the
client. The amount of the primary credit can be used several times and in
recycle within the period of
validity.
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(3)
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“Specialized
credit” refers to the credit given for some special projects and the
amount exceeding the primary credit with the changes of the national
policy, market situation and the special requirement of the debtor. The
amount of specialized credit shall be given once, could be used several
times but not in recycling.
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(4)
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“Valid
term of credit” means that within a non-interrupted period, with the
consent of the Creditor, the debtor is entitled to deal with his business
under the credit amount at the Creditor. The time of the debtor to fulfill
his obligations (including but not limited to the term of fulfilling the
master liabilities, the term of guarantee undertaking) specified in the
terms of this contract could be after the valid term of
credit.
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(5)
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Creditor
shall implement control over balance for the debtor. This balance refers
to the sum of the balance incurred during the credit term, the debtor
takes in use of the credit given by the Creditor, including the pending
balance before due and overdue outstanding balance,
i.e.:
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1.
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pending
balance before due is all kinds of outstanding debt before expiration that
the debtor correspondingly shall pay when the Creditor processes the
transactions for the debtor according to this
Contract.
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2.
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overdue
outstanding balance, is all kinds of outstanding debt before expiration
that the debtor correspondingly shall pay but not fulfilled yet and the
amount that the Creditor has fulfilled to maintain its external credit
standing when the Creditor processes the transactions for the debtor
according to this Contract.
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(6)
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“Sub-contract”
is the contract based on the terms of the primary credit contract or
specialized credit contract, the debtor shall sign with the Creditor after
getting approval of the Creditor to concretely specify the amount and term
of each master liability, and other rights and obligations. Primary credit
contract or specialized credit contract is the Principal Contract of the
sub-contracts. The sub-contracts, is an integral part of the Principal
Contract, and has the same legal
effect.
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(7)
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“Prime
liability” is the principal debt due for repayment occurred when the
debtor process his business, including but not limited to the RMB/foreign
currency principal, trade financing principal, bankers' acceptance bill,
bills discounted, interest under the item of L/C, principal that the
Creditor is liable to guarantee for the debtor,
etc.
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Article
II Principal Contract
The
Principal Contract of this Contract is “Primary Credit Contract” and its
sub-contracts (No: CIB Shenzhen Nanxin (credit) Mortgage (2008)0004). The credit
amount is RMB30,000,000.00, and the term of the credit is from September 25,
2008 to September 25, 2009.
Article
III Guarantee Liability
The
Guarantor is responsible for suretyship of joint and several liability under the
terms of this Contract. Under any circumstances that the debtor fails to fulfill
his liabilities (including the liability occurred when debtor or
Guarantor breaches the contract and the Creditor announces the debt due
prematurely), the Guarantor shall perform his liability of paying off the debt
in compliance with this contract.
Article
IV The scope of Guarantee
The
guarantee applies to all the liabilities within the credit amount (including
several sub-contracts under the principal contract), including the prime
liability, interest (penalty interest), penalty, compensation for loss and
expenses for the Creditor to fulfill his claim under the
credit.
The
expenses for the Creditor to fulfill his claim includes but not limited to the
litigation fee, property preservation fee, application fee for execution, lawyer
fee, legal fee, announcement fee, appraisal fee, auction fee,
etc.
Article
V Term of Guarantee
The
guarantee term of all the liabilities under the credit is 2 years, since the
date of execution of each primary liability.
On the
condition that the Creditor takes back the loan prior of the agreed time, the
primary liability shall be regarded as early execution, and the guarantee term
of the liability is put ahead correspondingly.
Article
VI Demand Guarantees
The
liability of the Guarantor under this Contract is demand guarantees, i.e. the
Guarantor shall fulfill his liabilities of paying off debt upon receiving the
overdue notification specifying the liabilities under the guarantee contract and
balance of debts provided by the Creditor.
Article
VII Representations and Warrants
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1.
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The
Guarantor makes the following representations to the
Creditor:
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(1)
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All
the commitment made by the Guarantor under this contract is valid against
all kinds of business (except for the transaction that Creditor, debtor
and Guarantor agree not to provide guarantee under the financing line).
The Guarantor shall not complete the guarantee procedures for each
sub-contract unless required by
Creditor.
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(2)
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Guarantor
hereinafter irrevocably authorizes the Creditor to be entitled to deduct
from any account of the Guarantor in any operational organization of the
Creditor in order to pay off the corresponding debt and other relative
expenses,
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(3)
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The
Guarantor ensures to use all of his personal property and income to
fulfill the guarantee obligations, and shall not sell or transfer his own
personal property to any third party with any reason within the guarantee
term.
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(4)
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The
Guarantor hereby confirms having acquired the co-owner’s consent when
making the family property as the guarantee, and the co-owner shall issue
announcement to Creditor in written
form.
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(5)
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The
Guarantor does not hide any of the following situations that has already
happened or is going to happen and will disable the Creditor to accept the
Guarantor:
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1.
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any
major illegal act or disciplinary breach or claim events with the
Guarantor or its principal management
involved;
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2.
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unsettled
litigation or arbitration;
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3.
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all
kinds of debts of the Guarantor or guarantee, mortgage or pledge provided
to the third party;
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4.
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any
default events occurred under the contract the Guarantor signed with
the Creditor or any other creditors;
or
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5.
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other
situation that influences the guarantee ability of the
Guarantor.
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2.
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The
Guarantor makes the following warranties to the
Creditor:
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(1)
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Within
the term of this contract, the Guarantor shall not transfer, abandon,
exercise its liabilities passively or conduct in other ways to harm the
benefit of the Creditor or try to exempt from the
liabilities.
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(2)
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On
the condition that the Debtor faces the requirement of the Guarantor to
and the payment request from the Creditor under the terms of the principal
contract simultaneously, the Guarantor agrees that the debtor pays off its
debts against the Creditor with
priority.
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(3)
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If
the debtor and Guarantor have signed or shall sign a counter guarantee
contract under the guarantee liabilities of this Contract, then this
counter guarantee contract shall not do any harm to the rights and
interest that the Creditor has under this guarantee contract legally or
factually.
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(4)
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Before
all the obligations of this contract are fulfilled, in any cases that the
Guarantor changes the ownership or adjusts the operation (including but
not limited to signing a joint venture or cooperation contract
with foreign investment enterprises; to cancel, close, discontinue,
change production line or alter; to separate, merge, acquire or being
acquired; to reconstruct, reorganize or re-establish share-issuing
enterprise, investment enterprise; to buy shares or invest
share-issuing enterprises with tenement, machinery, equipment, etc.
fixed assets or trademark, patent, proprietary technology, land-use right,
etc. intangible assets; to be involved in the transaction of
ownership or management right in the form of lease, contract, joint
venture or consignment; or to change the structure or operation methods in
the other way), the Guarantor shall inform the Creditor in written form in
advance.
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(5)
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Before
all the obligations of this contract are fulfilled, in any cases that
the Creditor requires to supplement or change the guarantee way or
subject, the Guarantor shall guarantee to make such changes that is
accepted by the Creditor.
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(6)
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The
Guarantor commits to inform the Creditor in written form immediately on
the events of default occurring under this contract, or any contract,
guarantee contract or other contracts signed with any department of the
Creditor, organizations, other banks, non-financial organizations or
units.
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(7)
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On
the condition that the Guarantor registers the establishment, modification
or cancellation at business and commercial management department or the
relative government bodies, the Guarantor shall inform the Creditor in
written form in advance. And after the registration, the Guarantor shall
deliver the duplicate copies of registration to the
Creditor.
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(8)
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On
the condition that the debtor fails to fulfill its liabilities according
to this Contract, no matter what other ways that the Creditor has
guaranteed the claim under the Principal Contract (including but not
limited to guarantee, mortgage, pledge, guarantee letter, Standby and any
other guarantee way), the Creditor is entitled to require the Guarantor to
be responsible for all the guarantee liabilities, without exercising any
guarantee rights.
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Article
VIII Liabilities for Breach of Contracts
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1.
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On
condition that one of the following situation occurs, it will be regarded
as breaching the contract:
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(1)
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the
Guarantor fails to fulfill the representations and warrants of Article VII
of this Contract;
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(2)
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the
credit status of the Guarantor is worsened;
or
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(3)
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the
Guarantor fails to fulfill the other terms of this
Contract.
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2.
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The
Creditor is entitled to take one or several of the following
measures:
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(1)
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setting
a deadline for the rectification of the
breach;
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(2)
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announcing
the early expiration of the primary liability, and requiring the Guarantor
to be responsible for the jointly
liabilities;
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(3)
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requiring
the Guarantor to pay 10% of the loan of the principal contract as
penalty;
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(4)
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requiring
the Guarantor to provide new, efficient and valid guarantee;
or
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(5)
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requiring
the Guarantor to pay for the actual loss that the indemnity is not
sufficient to make up.
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Article
IX Independent Guarantee
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1.
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The
guarantee stated in this Contract is independent. This contract shall not
be invalid due to the invalidity of its Principal Contract under any
circumstances.
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2.
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On
the condition that the Creditor and debtor agree to amend or supplement
the principal contract, there’s no necessity of getting the approval of
Guarantor, and there’s no change on the obligations of the Guarantor under
this Contract.
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3.
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On
the condition that the debtor breaches the terms of the Contract
(including but not limited to the behavior that the debtor does not use
the loan as the agreed purpose of loan in this Contract), the guarantee
obligations of the Guarantor under this Contract shall not be influenced,
and the Guarantor shall not make it an excuse to alleviate or exempt from
the obligations.
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Article
X Execution of Obligations and Abandonment of Rights
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1.
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The
obligations of the Guarantor under this Contract are independent, and
shall not be influenced by the relationship between any party of the
contract and any third party, except as provided elsewhere in the
contract.
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2.
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Any
tolerance, extension, favorable conditions or any delay on exercising the
rights under this Contract that the Creditor offers to the Guarantor shall
not influence, harm or restrict any rights and interests of the Creditor
according to this Contract and relative law and regulations, and shall not
be considered as abandonment of rights and interests against the terms of
this Contract, neither shall it affect any obligations of the Guarantor
specified in the Contract.
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Article
XI Notification
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1.
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Any
notification or all kinds of communication of this Contract shall be
delivered to another party according to the address, telex or other
contact means on the cover of this Contract in written
form.
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2.
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Any
changes of the contact information of any party of this Contract shall be
notified to another party
immediately.
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3.
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Any
notice or contact that was delivered according to the above address
(address after change shall apply) shall be regarded as to arrive at the
following dates:
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(1)
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5
work days after being delivered with registration for ordinary
letter;
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(2)
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The
day while receiving the confirmation of another party for
telex;
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(3)
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Upon
signing and receiving the mail for express
mail.
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Article
XII Governance
The
establishment, validity, explanation, performance and resolving of disputes of
this Contract applies to the law of People’s Republic of China. During the term
of this Contract, any arguments, disputes related to this contract shall be
resolved on the basis of friendly negotiation of both parties. When the
negotiation fails, one of the following measures shall be
adopted:
√ Apply for
arbitration at Shenzhen Arbitration Committee
Bring
an accusation at the People’s Court where the Contract was
signed
Article
XIII Validity and Termination of the Agreement
This
contract shall take effect when both parties sign or chop. When the Creditor
requires notarization of this Contract, this contract shall take effect upon the
completion of the notarization procedures.
This
contract shall be terminated on the condition that all the liabilities of this
Contract is cleared off.
Article
XIV Text
The
original copies of this Contract are in triplicate. All parties, registration
organization, notarization organization, and the debtor shall keep a copy
properly.
Article
XV Appendix:
Creditor (Corporate Chop):
Nanxin Branch, Shenzhen, Industrial Bank Co., Ltd.
Legal
representative or authorized agent (signature): /s/Xxx Xxxxxxxx
September
21, 2008
Guarantor (Corporate Chop):
Shenzhen Xxx Xxxx Co., Ltd.
Legal
representative or authorized agent (signature): /s/Xxxxx
Xxxxxxxx
September
21, 2008
