Attached files
| file | filename |
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| 8-K - China Housing & Land Development, Inc. | v210050_8k.htm |
| EX-10.8 - China Housing & Land Development, Inc. | v210050_ex10-8.htm |
| EX-10.6 - China Housing & Land Development, Inc. | v210050_ex10-6.htm |
| EX-10.9 - China Housing & Land Development, Inc. | v210050_ex10-9.htm |
| EX-10.3 - China Housing & Land Development, Inc. | v210050_ex10-3.htm |
| EX-10.4 - China Housing & Land Development, Inc. | v210050_ex10-4.htm |
| EX-10.7 - China Housing & Land Development, Inc. | v210050_ex10-7.htm |
| EX-10.1 - China Housing & Land Development, Inc. | v210050_ex10-1.htm |
| EX-10.5 - China Housing & Land Development, Inc. | v210050_ex10-5.htm |
Guarantee
Agreement
GUARANTEE
dated as of January 31, 2011 by China Housing & Land Development, Inc., a
Nevada corporation (the “Guarantor”) in favor of
Tianjin Cube Xindao Equity Investment Fund Partnership (LLP); Tianjin Cube Xinde
Equity Investment Fund Partnership (LLP); Tianjin Cube Xinren Equity Investment
Fund Partnership (LLP); and Tianjin Cube Xinyi Equity Investment Fund
Partnership (LLP) (collectively, the “Lenders” and individually, a
“Lender”).
WITNESSETH
WHEREAS, Tsining Housing
Development Co., Ltd.
(the “Obligor”),
as Borrower and the wholly-owned subsidiary of the Guarantor and the Lenders are
direct and indirect parties to various Loan Agreements dated on or about January
31, 2011 (the “Loan
Agreement”) involving the Lenders separately entrusting China
Construction Bank Co., Ltd (Shanxi Branch) to provide a loan of of
approximately RMB200,000,000 (Two Hundred Million Renminbi Yuan) in aggregate
amount to the Obligor (the “Secured
Obligations”);
WHEREAS, the Guarantor and the
Lenders are parties to a Pledge Agreement dated as of January 31, 2011 (the
“Pledge
Agreement”);
WHEREAS, in consideration of
the financial and other support that the Obligor has provided, and such
financial and other support as the Obligor may in the future provide, to the
Guarantor, the Guarantor is willing to guarantee the Secured
Obligations;
NOW, THEREFORE, in
consideration of the premises and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
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1.
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The
Guarantee. The Guarantor hereby unconditionally
guarantees the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the Secured Obligations. Upon
failure by the Obligor to pay punctually any Secured Obligation, the
Guarantor shall forthwith on demand pay the amount not so paid at the
place and in the manner specified in the Loan Agreement or the other
relevant Loan Document, as the case may
be.
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2.
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Guarantee
Unconditional. The obligations of
the Guarantor hereunder shall be unconditional and absolute and, without
limiting the generality of the foregoing, shall not be released,
discharged or otherwise affected
by:
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a)
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any extension, renewal,
settlement, compromise, waiver or release in respect of any obligation of
the Obligor under any Loan Agreement, by operation of law or
otherwise;
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b)
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any release, impairment,
non-perfection or invalidity of any direct or indirect security for any
obligation of the Obligor under any Loan
Agreement;
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c)
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any change in the corporate
existence, structure or ownership of the Obligor, or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting the
Obligor or any of its assets or any resulting release or discharge of any
obligation of the Obligor contained in any Loan
Agreement;
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d)
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the existence of any claim,
setoff or other right that such Guarantor may have at any time against the
Obligor, whether in connection herewith or with any unrelated
transactions; provided that nothing herein shall
prevent the assertion of any such claim by separate suit or compulsory
counterclaim; or
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e)
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any invalidity or
unenforceability relating to or against the Obligor for any reason of any
Loan Agreement or any provision of applicable law or regulation purporting
to prohibit the payment of any Secured Obligation by the
Obligor.
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3.
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Representations
and Warranties. The Guarantor
represents and warrants
that:
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a)
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such Guarantor is duly organized,
validly existing and in good standing under the laws of the jurisdiction
of its organization;
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b)
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the execution, delivery and
performance by such Guarantor of this Guarantee are within such
Guarantor’s corporate powers and have been duly authorized by all
necessary corporate and, if required, stockholder
action;
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c)
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this Guarantee has been duly
executed and delivered by such Guarantor and constitutes a legal, valid
and binding obligation of such Guarantor, enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws affecting creditors’ rights generally and
subject to general principles of equity, regardless of whether considered
in a proceeding in equity or at
law;
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d)
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the execution, delivery and
performance of this Guarantee (i) do not require any consent or approval
of, registration or filing with, or other action by, any governmental
authority, except such as have been obtained and are in full force and
effect, (ii) will not violate any applicable law or regulation or the
charter, by-laws or other organizational documents of such Guarantor or
any order of any court or governmental authority and (iii) will not
violate or result in a default under any indenture, agreement or other
instrument binding upon such Guarantor or any of its properties or give
rise to a right thereunder to require such Guarantor to make any payment;
and
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e)
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there are no actions, suits or
proceedings by or before any arbitrator or court or other governmental
authority pending against or, to the knowledge of such Guarantor,
threatened against or affecting such Guarantor as to which there is a
reasonable possibility of adverse determinations that, in the aggregate,
could reasonably be expected to result in a material adverse effect on the
assets, operations, prospects or condition, financial or otherwise, of
such Guarantor or the ability of such Guarantor to perform its obligations
under this Guarantee.
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4.
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Discharge
Only Upon Payment in Full; Reinstatement In Certain
Circumstances. The Guarantor’s obligations
hereunder shall remain in full force and effect until all payments of
principal and any accrued interest are paid in full pursuant to the Loan
Agreement (the “Release
Conditions”). If at any time any
payment of a Secured Obligation is rescinded or must be otherwise restored
or returned upon the insolvency or receivership of the Obligor or
otherwise, the Guarantor’s obligations hereunder with respect to such
payment shall be reinstated as though such payment had been due but not
made at such time.
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5.
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Subrogation. The Guarantor that
makes full payment with respect to the obligation of the Obligor hereunder
shall be subrogated to the rights of the payee against the Obligor with
respect to such obligation; provided that the Guarantor shall not
enforce any payment by way of subrogation against any such Obligor until
the Release Conditions are
satisfied.
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6.
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Stay of
Acceleration. If acceleration of
the time for payment of any Secured Obligation is stayed upon the
insolvency, bankruptcy or reorganization of the Obligor, all such Secured
Obligations otherwise subject to acceleration under the terms of the Loan
Agreement shall nonetheless be payable by the Guarantor hereunder
forthwith on demand by the
Lenders.
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7.
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Amendments
and Waivers. Any provision of
this Guarantee may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Lenders, the Obligor and the
Guarantor to be bound
thereby.
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Notices. Any
notice, demand, request or any other communication required or desired to
be served, given or delivered hereunder shall be in writing and shall be
served, given or delivered to the address and facsimile number of each
party as specified below:
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For the
Guarantor:
China
Housing & Land Development, Inc.
Address:
6 Youyi Dong Lu, Han Yuan 4 Lou
Xi’an,
Shaanxi Province
China
710054
Attention:
Mr. Cangsang Huang
Tel: +86-29-82582632
Facsimile:
Email: chuang@chldinc.com
For the
Lenders:
Address:
c/o Cube Capital HK Limited
Attention:
Ms. Christine Dai, Mr. Tony Chen, Mr. ZK Zhuang
Tel: 8613911050265
Facsimile:
852 2525 8003
Email:
cdai@cubecap.com,
tchen@cubecap.com,
zzhuang@cubecap.com
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8.
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Continuing
Guarantee. The Guarantor’s guarantee hereunder is a
continuing guarantee, shall be binding on the Guarantor and its successors
and assigns, and shall be enforceable by the Lenders. If all or
part of the Lenders’ interest in any Secured Obligation is assigned or
otherwise transferred, the transferor’s rights hereunder, to the extent
applicable to the obligation so transferred, shall automatically be
transferred with such obligation.
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9.
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Severability. If
any provision hereof is invalid or unenforceable in any jurisdiction,
then, to the fullest extent permitted by law, (i) the other provisions
hereof shall remain in full force and effect in such jurisdiction in order
to carry out the intentions of the parties hereto as nearly as may be
possible and (ii) the invalidity or unenforceability of any provision
hereof in any jurisdiction shall not affect the validity or enforceability
of such provision in any other
jurisdiction.
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10.
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Limit of
Liability. The Guarantor shall be liable under this
Guarantee only for amounts aggregating up to the largest amount that would
not render its obligations hereunder subject to avoidance under Section
548 of the United States Bankruptcy Code or any comparable provision of
any other applicable law.
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11.
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No
Waiver. No failure or delay by any Lender in exercising
any right, power or privilege under this Guarantee shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right,
power or privilege.
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12.
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Successors and
Assigns. This Guarantee shall be binding upon the
Guarantor and their respective successors and assigns, for the benefit of
the Lenders and their successors and assigns, except that the Guarantor
may not transfer or assign any or all of its rights or obligations
hereunder without the prior written consent of the
Lenders.
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13.
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Governing Law;
Jurisdiction.
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a)
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This
Guarantee shall be construed in accordance with and governed by the law of
the State of New York.
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b)
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The
Guarantor hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of the Supreme Court of the
State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any relevant
appellate court, in any action or proceeding arising out of or relating to
this Guarantee, or for recognition or enforcement of any judgment, and
each party hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and
determined in New York State court or, to the extent permitted by law, in
such Federal court. Each party hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
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c)
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The
Guarantor irrevocably and unconditionally waives, to the fullest extent it
may legally and effectively do so, any objection that it may now or
hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Guarantee in any court referred to in
subsection (b) of this Section. Each party hereto irrevocably
waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of any such suit, action or
proceeding in any such court.
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14.
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WAIVER OF JURY
TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS GUARANTEE.
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15.
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This
Guarantee may be signed in any number of counterparts, each of which shall
be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. This Guarantee shall become
effective on the date when the Lenders shall have received counterparts
hereof signed by the Guarantor hereto (or, in the case of any party as to
which an executed counterpart shall not have been received, receipt by the
Lenders in the form satisfactory to it of facsimile or other
written confirmation from such party of execution of a counterpart hereof
by such party).
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[signature
pages to follow]
4
IN
WITNESS WHEREOF, the parties hereto have caused this Guarantee to be duly
executed by their respective authorized officers as of the day and year first
above written.
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For
and on Behalf of
China
Housing & Land Development, Inc.
By:
/s/ Pingji
Lu
Name:
Pingji
Lu
Title:
Authorized Person
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Tsining
Housing Development Co., Ltd.
By:
/s/ Pingji
Lu
Name:
Pingji
Lu
Title:
Authorized Person
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Agreed
to and Accepted by:
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For
and on Behalf of
Tianjin
Cube Xindao Equity Investment Fund Partnership (LLP)
By:
/s/
Ruifeng
Dai
Name:
Ruifeng
Dai
Title:
Authorized Person
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For
and on Behalf of
Tianjin
Cube Xinde Equity Investment Fund Partnership (LLP)
By:
/s/
Ruifeng
Dai
Name:
Ruifeng
Dai
Title:
Authorized Person
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For
and on Behalf of
Tianjin
Cube Xinren Equity Investment Fund Partnership (LLP)
By:
/s/
Ruifeng
Dai
Name:
Ruifeng
Dai
Title:
Authorized Person
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For
and on Behalf of
Tianjin
Cube Xinyi Equity Investment Fund Partnership (LLP)
By:
/s/
Ruifeng
Dai
Name:
Ruifeng
Dai
Title:
Authorized
Person
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