Maximum Amount Guarantee Agreement
Exhibit
10.40
NO.
419005200900095094
Guarantee/
Creditor (Full Name): Anyang Branch, Agricultural
Bank of China
Guarantor
(Full Name): One: Henan Anyang Hubo Cement
Co., Ltd
Two:
Xxxxxxx
XXXX
Three:
Whereas
the Guarantor, of his own will, provides a guarantee of maximum amount for the
creditor’s rights from a series of business agreements (hereinafter referred to
as the “Principal Agreement”) by and between the Guarantee and Henan Shuncheng Group Coal
Coke Co., Ltd (the “Debtor”) in accordance with
Article 1 hereof. Each party of this agreement enacts this contract by reaching
consensus through consultation in accordance with the laws and provisions of
China.
Article
1 the
Guaranteed Principle Creditor’s right and the Maximum Amount
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1.1
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The
Guarantor, of his own will, secures the following creditor’s right between
the Guarantee and the Debtor, and the guaranteed creditor’s right is
subject to a maximum of RMB Seventy Five Millions
(￥75,000,000).
The foreign currency transaction is converted in accordance with the
selling price of the date of transaction under 1.1.1 of Article
1.
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1.1.1
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The
Guarantee deals with the creditor’s right arising from every agreed
business from 25th June, 2009
to
24th June, 2010.
This period is the determination period for the maximum guaranteed
creditor’s right. The aforesaid business includes: (subject to the item
marking “√”)
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¨Loan in
RMB/Foreign Currency
¨Discount
of Commercial Xxxx
¨Bank
Letter of Guarantee
¨Outward
Documentary Bills
¨Inward
Documentary Bills
¨Acceptance
of Commercial Bills
¨Outward
Documentary Bills
¨L/C
Opening in Case of Deposit Decrease
¨other
business:____/___
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1.1.2
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The
following outstanding creditor’s right principal and its relevant
interest, default interest, compound interest and expenses etc are formed
between the Guarantee and Debtor, and the interest, default interest,
compound interest expenses and etc thereof shall be accrued in accordance
with the relevant Principle 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
type, amount, rate and time limit of every business transaction guaranteed
hereof shall be subject to the relevant legal documents or
certificates.
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1.3
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Within
the period hereof and maximum amount of the guarantee agreed hereof, the
Creditor does not need to deal with procedures of guarantee one by one
when issuing the agreed loan or providing credits of other
banks.
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1.4
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The
currency of the business transaction occurs in the period hereof and
within the maximum amount of the guarantee is not limited, and the
Guarantor takes the responsibility of guarantee with the same currency as
the original one.
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Article
2 Scope
of the Guarantee
The scope
of the guarantee includes the principal sum of principal creditor’s right,
interest, default interest, compound interest, penalty, compensation for damage,
litigation (arbitration) fee, lawyer fee, and all the expenses realizing the
creditor’s rights and guarantee rights by the Guarantee.
As for
part exceeding the maximum balance due to the change of currency rate, the
Guarantor shall bear the responsibility of guarantee of its own
will.
Article
3 Type
of Guarantee
The
guarantee under this agreement shall be suretyship with joint and several
liabilities. When there are two or more Guarantors, the Guarantors
shall bear joint and several liabilities to the Creditor.
Article
4 Guarantee
Period
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4.1
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The
guarantee period shall be two years from the date on which deadline for
the Debtor to complete its obligations under the Principal
Agreement.
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4.2
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The
guarantee period for the acceptance of bank acceptance xxxx and L/C
issuance finance or that under the letter of guarantee shall be two years
from the date on which the Creditor effects advance money for the
Debtor.
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4.3
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The
guarantee period for discount of commercial xxxx shall be two years from
the date on which such xxxx
expires.
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4.4
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Where
the Creditor and the Debtor come to a grace period agreement on the time
limit for the Debtor’s fulfillment of the debt regulated by the principal
Agreement, the Guarantor shall continue to bear the guarantee
responsibility. The guarantee period shall be two years from
the date on which the grace period
expires.
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4.5
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In
case that the issues stated in the Principal Agreement or any laws and
regulations lead to the Principal Agreement is declared mature by the
Creditor before the expiration date hereof, the guarantee period shall be
two years from such declared maturity
date.
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Article
5 Undertakings
of the Guarantor
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5.1
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It
has duly obtained legal and valid authorization to execute and perform
this Agreement.
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5.2
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The
Guarantor shall be liable for true, complete and valid financial report,
articles of association and other relevant documents and information and
shall assist the Creditor to supervise and check the Guarantor’s operation
and financial condition.
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5.3
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In
case that the Debtor fails to perform its obligations under the Principal
Agreement, the Guarantor undertakes that it, of its own free will, will
perform the guarantee obligation.
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5.4
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When
the Guarantor fails to perform his guarantee obligation under this
agreement, the Creditor is entitled to deduct relevant sum from any
account of the Guarantor directly.
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5.5
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The
Guarantor shall notice the Creditor in writing immediately upon the
occurrence of the following events:
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5.5.1
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Any
change to company name, residential address, legal representative, contact
method or others;
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5.5.2
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Any
change to the ownership, top management or any amendment to Memorandum and
Article of Associations, or any adjustment to organizations for the
Guarantor;
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5.5.3
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Deterioration
of financial status, encountering great operation difficulties or involved
in significant litigation or arbitration
issues.
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5.5.4
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Cease
of production, cease of business, termination of business being applied
bankruptcy or rectification;
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5.5.5
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Cancellation
of business registration or revocation of business license, being closed
down or other causes to be
dissolved;
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5.5.6
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The
Guarantor involved in any matters that will negatively affect the benefits
of the Creditor.
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5.6
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The
Guarantor shall notify the Creditor 15 days in advance in a written form
and obtain written consent from the Creditor before it undertakes any of
the following actions:
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5.6.1
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The
Guarantor changes its capital structure or operation mechanism, including
but not limited to contracting, renting, remolding with the stock system,
joint operation, merger, take-over, de-merger, joint venture, asset
transfer, applying for business cease for internal rectification purpose,
applying for dissolution, applying for
bankruptcy.
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5.6.2
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If
the Guarantor provide guarantee for benefit of a third party or use its
main capital directly or indirectly to set up guarantee or pledge
guarantee for benefit of itself or a third party, and such is likely to
negatively influence the Guarantor’s capacity to perform its obligations
under this agreement.
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Article
6 Determination
of Guaranteed Credit’s right
In case
of any of the following circumstances, the maximum guaranteed creditor’s right
is determined:
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6.1
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Expiration
of Creditor’s right Determination Period. “Expiration of Creditor’s right
Determination Period” includes the expiration of creditor’s right
determination as stipulated in Article 1 and the declared expiration by
the Creditor in accordance with the state laws and regulations or
provisions hereof. In case that the Debtor breaches any provision
stipulated in the Principal Agreement or the Guarantor breaches any
obligations hereunder, then the Creditor is entitled to accelerate the
expiration of creditor’s right determination
period.
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6.2
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There
impossibly happens any new creditor’s
right.
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6.3
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The
Debtor or the Guarantor is declared bankruptcy or its business license is
revoked.
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6.4
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Other
circumstances as stipulated by
laws.
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Article
7 Performance
of Guarantee Liability
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7.1
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In
case of any of the following circumstances, the Creditor is entitled to
require the Guarantor to perform guarantee liability. If the amount paid
by the Guarantor is insufficient to repay the guaranteed creditor’s right
hereunder, then the Creditor is entitled to decide the priority to repay
principal, interest, default interest, compound interest and other
dues;
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7.1.1
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In
case that the debt under the Principal Agreement is mature but the
Creditor is not repaid. “Mature” includes that debt is mature in
accordance with expiration date stipulated in the Principal Agreement and
the debt is declared mature by the Creditor in accordance with the state
laws and regulation as well as the provisions under the Principal
Agreement.
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7.1.2
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Bankruptcy
application against the Debtor and Guarantor is accepted by the people’s
court or the bankruptcy reconciliation is ordered by the
court;
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7.1.3
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cancellation
of company registration, revocation of business license, being ordered to
close down or occurrence of dissolution
causes;
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7.1.4
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The
Debtor or the Guarantor dies or is legally declared dead or missing by the
court.
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7.1.5
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The
Guarantor breaches its obligations
hereof;
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7.1.6
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Other
circumstances may adversely affect realization of the creditor’s
right.
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7.2
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Where
there is security upon a real right concurrently set for the benefit of
the guaranteed Principal Credit in addition to the guarantee hereunder,
the Creditor is entitled to require the Guarantor to perform guarantee
liability prior to the security upon a real
right.
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7.3
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Where
the Debtor provides security upon a real right and the Creditor waives
such security upon a real right or its priority or alters the security
upon a real right, the Guarantor agrees to continue to provide surety ship
with joint and several liabilities. “Security upon a real right” refers to
security upon a real right set by the Debtor for the benefit of the
guaranteed Principal Credit.
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Article
8 Liability
for Breach of Agreement
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8.1
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After
the contract becomes effective, the Creditor shall compensate the
Guarantor for any loss caused to the Guarantor resulting from its breach
of contract.
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8.2
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If
any of circumstances happens to the Guarantor, the Guarantor shall pay
liquidated damages of 10% of the maximum balance to the Creditor in
addition to compensate all the losses caused to the
Creditor:
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8.2.1
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The
Guarantor fails to obtain all the legal and valid authorization necessary
for this contract;
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8.2.2
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The
Guarantor fails to provide financial statement, articles of association
and other documents or information which are true, complete and
valid;
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8.2.3
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The
Guarantor fails to notice the Creditor promptly in case any circumstance
under section 5 of Article 5
happens.
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8.2.4
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The
Guarantor fails to obtain consent from the Creditor prior to its
implementation of any circumstance under section 6 of Article
5.
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8.2.5
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Other
circumstances that breach provisions hereof or adversely affect the
Creditor to realize its creditor’s
right.
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Article
9 Solutions
to Conflicts
Any
conflicts arising from the performance of this contract shall be settled through
the negotiation by both parties, or resolved through the first one of the
following ways:
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9.1
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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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9.2
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Arbitration.
The conflicts shall be submitted to ___/____ (names 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
10 Other
Issues
No.1: The
Guarantor should be initiative to understand the operating condition of the
debtor and all the happenings of different types of businesses under the
agreement.
The
Principal Agreement, relevant legal documents or certificates which relates to
the the Principal Agreement will not be delivered to the guarantor.
The Guarantor shall
undertake guarantee liability prior to the mortgage upon a real
right.
Article
11 Effectiveness
of the Agreement
The
agreement will come into effectiveness upon the signature or stamp by both
sides.
Article
12
This
agreement is executed in Four originals, and
as the Creditor, the guarantor and the Debtor respectively holds ONE with the same
legal effectiveness.
Article
13 Reminder
The
Guarantee/Creditor has required the Guarantor to understand every single clause
fully and accurately; meanwhile, the creditor has explained relevant articles
upon the Guarantor’s request; thus, both parties have achieved common
understanding as of this agreement.
Creditor:
Anyang Branch, Agricultural Bank of China
(Seal)
Legal
Representative
/Authorized
Representative: the
signature
[illegible]
Guarantor: Henan Anyang Hubo
Cement Co., Ltd
(Seal)
[illegible]
Guarantor:
Wang Xinshun
Legal
Representative /s/ Wang Xinshun
/Authorized
Representative: (the
signature)
Execution
Date: 25th June,
2009
Execution
Place: Anyang Branch, Agriculture Bank of China
