Guarantee Agreement (This “Agreement”)
Exhibit
10.49
(This
“Agreement”)
An Xxxx
Xxxx Xxx Xxx Zi [2010322] No. 2
Lender: Tongye Credit Association of
Anyang Rural Credit Cooperation Association
Guarantor:
Anyang Hubo Cement Co.,
Ltd
Linzhou Hongqiqu Electrical
Carbon Co., Ltd
Wang
Xxxxxxx
Xxxx
Xxxxxxx
Xxxxx
Junsheng
In order
to secure the xxxxxxx performance of the Cooperative Association Loan Agreement
(No. An Xxxx Xxxx Xin Jie Zi [20100322] No. 2) signed between the Lenders and
the Borrower: (Henan
Shuncheng Group Coal Coke Co., Ltd) (hereinafter as “Primary Agreement”) and to
secure the Lenders’ realization of the creditor’s rights, the Guarantors
voluntarily agree to provide guarantees with nature of joint and several
liabilities to secure the Borrower’s debt repayment to the Lenders under the
Primary Agreement. Based on relevant PRC laws and regulations and the
consensus reached by the Parties after mutual negotiations, the Parties hereby
reach this Agreement as follows:
1.
|
The
Secured Principal Creditor’s Right
|
The
secured principal creditors’ right is the RMB loan under the Primary Agreement
disbursed by the Lenders to the Borrower, the principal of which, is RMB THIRTY MILLION ONLY (RMB
30,000,000); from March 22, 2010 to March 22,
2011; the monthly loan interest is 8.85‰.
2.
|
Scope
Covered by the Guarantee
|
The scope
of the guarantee covers all the principal debt under the Primary Agreement,
including but not limited to, the principal, the interest, penalty interest,
liquidated damages, damage awards, enforcement cost, appraisal cost, litigation
and arbitration costs and any other expenses for the realization of the
creditors’ rights.
3.
|
Modification
of the Secured Primary Agreement
|
Where the
Lenders and the Borrower reach any agreement to modify the deadline of the debt
repayment under the Primary Agreement, the Guarantors agree to continue to
undertake the joint and several guarantee liabilities.
4.
|
Guarantee
Period
|
4.1
|
The
guarantee period under this Agreement is 5 years after the deadline of the
debt repayment as agreed in the Primary Agreement
expires.
|
4.2
|
Where
the Lenders terminate the Primary Agreement according to the provisions of
the Primary Agreement or the stipulations of relevant laws, or declare to
accelerate the maturity of debt under other situations as agreed in the
Primary Agreement, the Guarantors agree to undertake the joint and several
guarantee liabilities according to the Lenders’
requirement. The guarantee period is 5 years since the date
when the Lenders notify the Borrower to repay the
debt.
|
4.3
|
Where
the Lenders and the Borrower reach any extension agreement in respect to
the deadline of the debt repayment under the Primary Agreement, the
guarantee period shall be 5 years after the deadline of the debt repayment
reappointed in the extension agreement
passes.
|
5.
|
The
Lenders’ Rights and Obligations
|
5.1
|
After
the deadline of the principal debt repayment expires, where all or part of
the creditors’ rights of the Lenders are not fulfilled, the Lenders have
the right to require the Guarantors to undertake the guarantee liabilities
according to this Agreement.
|
5.2
|
Where
the Borrower and the Guarantors fail to perform any obligations under the
Primary Agreement or under this Agreement, the Lenders have the right to
accelerate the maturity of all the debt secured by this Agreement, and the
Guarantors shall undertake the joint and several guarantee liabilities
according to this Agreement.
|
5.3
|
Where
the Guarantors fail to undertake the guarantee liabilities according to
this Agreement, the Lenders has the right to forcibly and directly
transfer or deduct the fund in any bank accounts of the
Guarantors.
|
6.
|
The
Guarantors’ Rights and Obligations
|
6.1
|
The
Guarantors shall provide relevant documents and materials to prove their
legal identities.
|
6.2
|
The
Guarantors shall provide the Lenders the true, complete and effective
financial statements and other relevant
documents.
|
6.3
|
Where
the Borrower fails to perform its obligations as agreed in the Primary
Agreement, the Guarantors voluntarily agree to undertake their joint and
several guarantee liabilities.
|
6.4
|
The
Guarantors shall notify the Lenders in writing promptly under any of the
following situations:
|
6.4.1
|
The
Guarantors’ affiliation, top management personnel, articles of association
or organization structure changes or
adjusts.
|
6.4.2
|
The
Guarantors suspend the production, close down the business, or the
registrations of the Guarantors are cancelled or the business licenses of
the Guarantors are revoked.
|
6.4.3
|
The
Guarantors’ financial status deteriorates, or the Guarantors have great
difficulties in the production and business, or have involved in
significant litigation or arbitration
proceedings.
|
6.4.4
|
The
Guarantors modify their names, residential addresses, legal
representatives, contact methods,
etc.
|
6.4.5
|
The
Guarantors changes their equity structure or business system, including
but not limited to, contractual operation, leasing, shareholding system
reform, joint operation, split-up, merger, asset transfer, or filling for
suspending business for rectification, dissolution or
bankruptcy.
|
6.5
|
During
the guarantee period, the Guarantors shall not provide security to any
third party that goes beyond their guarantee capabilities, shall not
dispose any of its assets that will jeopardize their
guarantee capabilities and shall not impair the Lenders’ rights and
interests.
|
6.6
|
Where
the Lenders accelerate the maturity of the debt according to laws or the
Agreement, the Guarantors agree to undertake the join and several
guarantee liabilities after receiving the early debt repayment
notice.
|
6.7
|
The
Guarantors have been well aware of the purpose of the loan obtained by the
Borrower.
|
7.
|
Liability
for Breach of Agreement
|
7.1
|
After
this Agreement comes into effect, the Parties hereto shall strictly
perform their obligations under this Agreement; where any Party fails to
perform the obligations, the default Party shall be liable for breach of
Agreement and compensate all the damages suffered by the counter Party
arising therefrom.
|
7.2
|
Where
this Agreement is held invalidated due the Guarantors’ fault, the
Guarantors agree to compensate the damages of the Lenders subject to the
scope of the guarantee.
|
7.3
|
Where
the Guarantors make any false representation or statement in respect to
Article 6.1, 6.2 and 6.4, the Guarantors shall compensate all the damages
suffered by the counter Party arising
therefrom.
|
8.
|
Effectiveness
|
This
Agreement shall come into effect after it being signed and stamped by all the
Parties.
9.
|
Dispute
Settlement
|
Any
dispute arising out from the performance of this Agreement shall be firstly
negotiated by the Parties; if no agreement can be reached through the said
negotiation, the said dispute will be settled by the second
method:
1.
|
Arbitration:
Submitted
to Financial Arbitral Commission to conduct arbitration according to their
arbitral rules. Arbitral decision is final and binding to both
parties.
|
2.
|
Litigation:
Governed
by people’s court of lender’s place of
domicile.
|
10.
|
Other
Issues
|
Interests shall be settled
monthly.
11.
|
Attachment
|
The
attached document hereof are an integral part to this Agreement with same legal
effects.
The
attached documents includes:
a.
|
b.
|
12.
|
Supplementary
Provisions
|
12.1
|
This
Agreement is a supplemental Agreement subordinated to the Primary
Agreement, however, it’s independent from the Primary Agreement as well;
this Agreement shall not become invalid where the Primary Agreement is
invalidated. No matter whether the Primary Agreement is deemed
completely or partially invalidated, it shall not affect the effectiveness
of this Agreement and the liabilities of the Guarantors under this
Agreement.
|
12.2
|
This
Agreement has ___ original copies and each Party shall hold one original
which shall have the same legal
effect.
|
13.
|
Special
Reminder
|
The
Guarantors have already carefully studied and correctly understood this
Agreement and the Primary Agreement, the Lenders have provided relevant
explanations as required by the Guarantors, and all the Parties hereto do not
have any objection to this Agreement and the Primary Agreement.
Lender (Initiating
Association):
Tongye
Credit Association of Anyang Rural Credit Cooperation Association
Legal
(Authorized) Representative: /s/ Wang Xxx Xxxx
Guarantor:
Anyang
Hubo Cement Co., Ltd
Legal
(Authorized) Representative: [illegible]
Guarantor:
Linzhou
Hongqiqu Electrical Carbon Co., Ltd
Legal
(Authorized) Representative: /s/ Wang Xxx Xx
Execution
Date: March 22, 2010
Execution Place: Tongye Credit Association of Anyang
Rural Credit Cooperation Association