China Merchants Bank Irrevocable Guaranty Agreement China Merchants Bank Nanjing Branch
Exhibit
10.26
[2008]__ Zi.
No._________
China
Merchants Bank
China
Merchants Bank Nanjing Branch
1
To the
beneficiary, China Merchants Bank Stock Co. Ltd:
Whereas
the Bank agrees to provide Goldenway Nanjing Garments
Company Limited (hereinafter referred to as the “Debtor”) with a loan in
the amount of RMB5,000,000.00, and
executed the Loan
Agreement of
[2008]D.Z.No.111101026 (hereinafter referred to as the “Master
Agreement”) with the Debtor on Dec. 8, 2008.
Upon the
request of the Debtor, I agree to eneter into this Irrevocable Guaranty
Agreement to bear the following joint and several guarantee liabilities for all
of the Debtor’s debts under the Master Agreement:
Article 1
Manner of Guaranty
1.1 Where
the Debtor fails to repay the debts under the Master Agreement to the Bank at
the date of maturity of the debts, the Guarantor shall bear the joint and
several liabilities of repayment within the scope of guarantee stated in Article
2 herein. Where the Bank claims the debts under the Master Agreement against the
Debtor according to the Master Agreement prior to the date of maturity of the
debts, the Guarantor shall also bear the joint and several liabilities of
repayment within the scope of guarantee stated in Article 2 herein.
1.2 The
Bank and the Debtor may reach an agreement to extend or alter the term, interest
rate, amount, etc. of the debts under the Master Agreement. The Guarantor
acknowledges that where the Bank adjusts the interest rate of the debts
according to the Master Agreement within the term of the debts, the Bank need
neither obtain the consent of Party B nor notify Party B without prejudice to
the Guarantor’s guarantee liabilities under this Agreement.
Article
2 Scope of Guarantee
2.1 The
scope of guarantee under this Agreement includes but is not limited to all the
debts under the Master Agreement, corresponding interest, penalty interest,
compound interest and liquidated damages, and other relevant expenses,
i.e.:
2
2.1.1 The
principal provided by the Bank to the Debtor according to the Master Agreement,
corresponding interest, penalty interest, compound interest and liquidated
damages, and relevant expenses; or
2.1.2 The
principal of the payment for commercial draft acceptance under the Master
Agreement, corresponding interest, penalty interest, compound interest and
liquidated damages, and relevant expenses; or
2.1.3 The
principal of the payment for xxxx discounted under the Master Agreement,
corresponding interest, penalty interest, compound interest and liquidated
damages, and relevant expenses.
Article
3 Manner of Guaranty
The
Guarantor acknowledges that it shall bear joint and several guarantee liability
for all the debts within the scope of guaranty mentioned above. Where the
Debtor fails to repay the principal and interest of the loan, imprest or other
debts and relevant expenses under the Master Agreement, or the Debtor falls upon
any of the circumstances of default stated in the Master Agreement, the Bank is
entitled to directly claim against the Guarantor and need not claim against the
Debtor first. Even if the debtor or any third person is willing to provide
guarantee or mortgage for the debts under the Master Agreement, the Bank is
still entitled to claim against the Guarantor first. Even if there is any other
mortgage/pledge guarantee or any other guarantor and the Bank waives, alters or
dissolves the mortgage/pledge guarantee or alters or dissolves the guarantee
responsibility of the other guarantor, the Guarantor shall still bear the
guarantee responsibility against the Bank according to this
Agreement./
The
claim reimbursement notice sent by the Bank is final, for which the Guarantor
shall have no objection. As for the money unpaid by the Debtor to the Bank, the
Guarantor agrees to pay off within five days after receiving the written claim
reimbursement notice sent by the Bank and the Bank need not issue any
certification. Unless there is obvious or major mistake, the Guarantor
acknowledges that the money stated in the claim reimbursement notice sent by the
Bank is accurate.
The
Bank may adopt any means it deems proper, including but without limitation to
fax, post, delivery by special person and announcement on media to press for
payment of debts.
Article
4 Term of the Guaranty
The
term of liability for guarantee of the Guarantor shall be from the date of
execution of this Agreement till two years after the date of the expiration of
the debts, imprest or other debts.
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Article
5 Independence of This Agreement
This
Agreement is independent, continuously valid, irrevocable and unconditional and
its effect is not affected by the Master Agreement or any agreement or document
signed between and by the Debtor and any unit or the Debtor’s fraud,
recombination, wind-up, dissolution, liquidation or bankruptcy. The guarantee
liability of the Guarantor will not be released due to any instruction, change
of the Guarantor’s financial status, or any agreement between and by the
Guarantor and any unit or individual.
Where
the Bank, according to the Master Agreement, stops granting the remaining part
of the loan or stops transacting discount or acceptance, or recovers the loan
granted or payment for xxxx discounted in advance, the Guarantor’s guarantee
responsibility under this Agreement shall not be affected.
Article
6 The Guarantor hereby undertakes as follows:
6.1 The
Guarantor is a corporation or any other organization with guarantee
qualification established according to law or is a natural person with complete
civil capacity (I.D. card No. 320103196310252016 ) and is
willing to use the assets that the Guarantor owns or has the right to dispose of
for guarantee and promises to perform the obligations under this
Agreement;
6.2 Regarding
to signing this Agreement, the Guarantor has obtained full authorization or has
been proved by the higher department/the board of directors;
6.3
The Guarantor is willing to sign this Agreement, suffering from no fraud or
coercion;
6.4
Before this Agreement expires, the total amount of guaranty of the Guarantor
(including RMB equivalence of foreign currency) shall be not more than the total
shareholder’s equity of the Guarantor;
6.5 The
Guarantor will, upon the request of the Bank, provide financial statements to
the Bank and notify the Bank of any major decision-making and change in
production, operation and management of the Guarantor promptly;
6.6
All the financial statements and other documents provided by the Guarantor to
the Bank are genuine and lawful, for which the legal representative or any other
principal of the Guarantor shall be liable;
6.7
The Guarantor will, as required by the Bank, sign the statement of “cross
collateral”;
6.8
Any change in the industrial and commercial registration, organization
structure, stock ownership structure, modes of business or financial situation
of the Guarantor or any occurrence of debt recombination or major affiliated
transaction shall not affect the legal effect of this Agreement on the
Guarantor. Where any change mentioned above may affect the guarantee capacity of
the Guarantor, the Guarantor shall notify the bank promptly;
6.9 All
the clauses of this Agreement shall be also binding upon the successor or assign
of the Guarantor. Without obtaining written consent from the Bank, the Guarantor
shall not transfer the guarantee liability under this Agreement.
6.10
Where the Guarantor fails to pay off the guaranteed debts according to this
Agreement, the Bank is entitled to deduct from the Guarantor’s account in the
Bank or entrust any other financial institution to deduct from the Guarantor’s
account in the said financial institution till all guaranteed debts are paid
off.
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Article
7 No Waiver
During
the term of this Agreement, No act or ommision of the Bank on any default or
delay by the Debtor and the Guarantor or any delay in satisfying the Bank’s
benefit or rights under the Master Agreement or this Agreement shall neither
impair, affect or limit any of the Bank’s benefits and rights as creditor in
accordance with law and this Agreement, nor be deemed that the Bank waives the
right of taking action against the penalty at present and in the
future.
Article 8
Definitions
Unless
otherwise explicitly stated, the defintions in this Agreement shall have the
same meaning as those in the Master Agreement.
Article 9
Notice
Both
the Bank and the Guarantor shall send all notices in connection with this
Agreement to the other party in writing.
Where a
special person delivers the notice, the notice shall be deemed as service at the
time of receipt by the recipient (where the recipient refuses to receive, the
date of refusal shall be deemed as the date of service); where the notice is
delivered by post, seven days after delivery shall be deemed as the date of
service; where the notice is delivered by fax, the time of receiving the fax by
the fax system of the recipient shall be deemed as the time of
service.
The
address of the Guarantor is: Ever-Glory Commercial Center,
No 509 Chengxin Road, Jiangning Development Xxxx, Xxxxxxx, Xxxxxxx, Xxxxx
000000 Where any party alters its address, it shall notify the other
party in time, otherwise, all notices sent by the Bank to the original address
of the Guarantor shall still be valid and binding upon the Guarantor and the
Guarantor shall bear all possible losses.
Article
10 Dispute Resolution
This
Agreement shall be governed by the Law of the People’s Republic of China. The
Guarantor agrees to settle any dispute arising out of this Agreement according
to the stipulation of the Master Agreement concerning settlement of
dispute.
Where
the Bank and the Guarantor have gone through the procedures of notarization for
the Master Agreement and this Agreement which effect the compulsory enforcement,
the Bank may directly apply to the governing people’s court for compulsory
enforcement of the debts under this Agreement.
Article
11 Effectiveness of This Agreement
11.1
Where the Guarantor is a corporation or any other organization, this Agreement
shall enter into effect as of the date when the legal representative/main
principal or proxy of the Guarantor sign/seal and affix official seal/special
seal for contract to this Agreement.
11.2 Where
the Guarantor is a natural person, then this Agreement shall enter into effect
as of the date when the Guarantor signs this Agreement.
Article
12 Supplementary Provisions
This
Agreement is in
three copies, each with the same legal effect. The Bank, the
Debtor, the Guarantor and the Nanjing
Municipal Bureau of Land Resources and Housing Management shall each
hold one copy.
(no text
below)
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(This page is for signature)
If the
Guarantor is a corporation or any other organization,
The
Guarantor: (seal)
Legal
representative/main principal or authorized representative (signature or
seal):
Main
Depositing Bank and Account Number:
If the
Guarantor is a natural person,
The
Guarantor (signature): /s/ Xxxxx Xxxx
I.D. Card
No.: 320103196310252016
Address:
Ever-Glory Commercial Center,
No 509 Chengxin Road, Jiangning Development Xxxx,
Xxxxxxx, Xxxxxxx, Xxxxx
000000Xxx: 00-00-00000000
Dated: Dec. 8, 2008
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