Attached files
Exhibit
10.10
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Business
Department of China Construction Bank Shishi Branch
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Maximum
Guarantee Contract
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China
Construction Bank Fujian Branch
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This
Maximum Guarantee Contract (“Contract”) is entered into by
and between:
Guarantor
(“Party A”): please
refer to Article 10 hereof
Creditor
(“Party B”): please
refer to Article 10 hereof
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Article
1
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Guaranteed
Scope and Maximum Claims
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I.
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The
Maximum Guarantee covers all the obligations under the principal
contracts, including but not limited to all the principals, interests
accruals thereon (including compound interests and penalties), liquidated
damages, damages, other payables to Party B by the debtor (including but
not limited to relevant service fees, telecommunication fees and
incidental expenses advanced by Party B, relevant banking service fees
under L/C rejected by the beneficiary), fees arising out of realization of
claims and guarantees by Party B (including but not limited to court fees,
arbitration fees, property preservation fees, travel expenses, enforcement
fees, appraisal fees, auction fees, service fees, announcement fees,
attorney's fees, etc.)
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II.
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Please
refer to Article 11 hereof.
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III.
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Loans,
advances, interest accruals, fees or Party B's other claims under the
principal contracts shall be governed by the Maximum Guarantee hereunder,
irrespective of whether their actual creation goes beyond the Period for
Determining Claims (defined below). The due dates of obligations under the
principal contracts shall not be limited by expiry date of the Period for
Determining Claims.
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Article
2
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Method
of Guarantee
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The
guarantee granted by Party A shall be a joint and several one.
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Article
3
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Period
of Guarantee (“Guarantee
Period”)
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I.
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The
Guarantee Period hereunder shall be independently and separately
determined subject to a single credit granted to the debtor by Party B,
namely, the Guarantee Period shall be two years from the date of the
signing of a principal contract on a single credit business, to the due
date of the debtor's obligations under such principal
contract.
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II.
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If
Party B and the debtor enter into an extension agreement for performance
of obligations under the principal contract, the Guarantee period shall be
two years from the due date of performance of obligations under such
extension agreement. It is not required to obtain the Guarantor's consents
for such extension, and the Guarantor shall still bear the joint and
several liabilities as before.
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III.
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If
Party B declares the obligations to become due earlier by virtue of
occurrence of circumstances as provided in laws, regulations or principal
contracts, the Guarantee Period shall be two years from the date when the
obligations become due earlier.
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Article
4
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Independence
of Guarantee Contract
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This
Contract shall be independent of principal contracts. The validity of this
Contract shall not be affected if the principal contracts are not concluded, do
not come into effect, become null and void in whole or part, or are canceled or
rescinded. Party A shall also bear joint and several liabilities for obligations
arising out of the return of properties by or the indemnification of losses by
the debtor provided that the principal contracts are not concluded, do not come
into effect, become null and void in whole or part, or are canceled or
rescinded.
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Article
5
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Modifications
to Principal Contracts
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I.
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Party
A agrees that it is not required to inform it if Party B and the debtor
sign principal contracts or make any modification to the same (including
but not limited to extension of performance of obligations or additions to
the principals). And Party A shall still bear the guarantee liability to
the extent of the Maximum Guarantee and the guaranteed scope
hereunder.
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II.
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Party
A's guarantee liability hereunder shall not be reduced or released under
any of the following circumstances:
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(I)
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Party
B or the debtor conducts restructuring, consolidation, merger and/or
division, or increases or reduces capitals, or conducts joint venture,
joint operation, or changes its
name;
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(II)
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Party
B entrusts a third party to perform its obligations under the principal
contracts.
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III.
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If
the claims under the principal contracts are transferred, the guarantees
hereunder shall be transferred as
well.
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IV.
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Party
A shall still bear joint and several liabilities to Party B pursuant to
this Contract, even if any transfer of claims or obligations under the
principal contracts fails to come into effect, becomes null and void, or
is canceled or rescinded.
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Article
6
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Guarantee
Liability
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I.
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Please
refer to Article 12 hereof.
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II.
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Party
A's guarantee liability hereunder shall not be reduced or released, and
Party A shall not have any objection if Party B directly requests Party A
to bear the guarantee liability pursuant to this Contract, irrespective of
other guarantees (including but not limited to warranty, mortgage, charge,
letter of guarantee, standby L/C) created in favor of Party B's claims
under the principal contracts, or of the time of creation of or validity
of the above guarantees, or of claims against other guarantors by Party B,
or of agreeing to bear the whole or part of obligations under the
principal contracts by a third party, or of other guarantees granted by
the debtor.
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III.
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If
the Maximum Guarantee hereunder is less than the balance of the actual
claims under the principal contracts, and if the claims under the
principal contracts are not satisfied in full after Party A performs its
guarantee liability, Party A shall undertake not to damage Party B's
benefits in any way if it claims (and/or pre-exercises) subrogation or
pay-off rights against the debtor or other guarantors. Meanwhile, Party A
agrees that the pay-off of obligations under the principal contracts is
prior to its subrogation or pay-off
rights.
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As
specifically, before Party B's claims are not satisfied in full,
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(I)
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Party
A agrees not to claim its subrogation or pay-off rights against the debtor
or other guarantors; if Party A realizes such rights for any reasons, the
proceeds generated from realization of such rights shall be applied to
satisfy unpaid claims of Party B with
priority;
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(II)
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If
collaterals are given for securing the obligations under the principal
contracts, Party A agrees not to exercise its subrogation or bring claims
against such collaterals or proceeds from the disposal of the same for any
reasons. Such collaterals and proceeds shall be applied to satisfy unpaid
claims of Party B with priority;
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(III)
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If
the debtor or other guarantors grant counter guarantees in favor of Party
A, the proceeds gained by Party A from such counter guarantees shall be
applied to satisfy unpaid claims of Party B with
priority.
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IV.
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Party
A has fully recognized the risks from exchange rates. If interest
accruals, penalties and compound interests payable by the debtor are
increased after Party B adjusts the rates, the interest bearing or
settlement methods pursuant to the principal contracts or based on changes
of national rate policies, Party A shall bear joint and several liability
for the extra part.
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V.
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If
the debtor, in addition to the obligations under principal contracts,
bears other due obligations to Party B, Party B shall be entitled to apply
the debtor's funds in RMB or other currencies under its accounts opened
with China Construction Bank to satisfy any obligations due to Party B in
the first instance, and whereby Party A's guarantee liability shall not be
reduced or released.
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Article
7
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Other
Obligations of Party A
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I.
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Party
A shall monitor the use (application) of borrowings by the debtor, and
shall allow Party B to monitor its funds, properties and operating
conditions. Meanwhile, Party A shall provide relevant information such as
financial statements, documents, data at the request of Party B, and shall
ensure the accuracy, truth, completeness and validity of the same. Without
prior written consents of Party B, Party A shall not grant any guarantee
to a third party beyond its
capacity.
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II.
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Party
A shall send a written notice to Party B in a timely manner, and make sure
the bearing, transfer or succession of its guarantee liability hereunder
at the request of Party B, or provide new guarantees acceptable to Party B
in favor of the performance of principal contracts if Party A conducts
contracting, trusts (hand-over), leases, shareholding reforms, reduction
of its registered capitals, investments, joint operation, consolidation,
merger, acquisition and restructuring, division and joint venture, or if
it petitions (is petitioned) for suspension for reorganization, or if it
applies (is applied) for dissolution or bankruptcy, or if it is cancelled,
or if its controlling shareholders/actual controllers are replaced, or if
its material assets are transferred, or if it meets shut-down or
out-of-business, or if heavy fines are imposed against it by the competent
authorities, or if its registration or business license is cancelled, or
if it is involved in material legal disputes, or if it meets severe
difficulty in its production and operation, or if its financial conditions
become worse, or if its legal representative or main responsible officer
is unable to perform their duties, or if it loses or may lose its
guarantee capability for any
reasons.
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III.
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If
Party A changes or replaces its name, legal representative (responsible
officer), residence, scope of business, registered capitals, articles of
association or other registered items, it shall send a written notice to
Party B within five business days upon any such change or replacement,
together with information and materials in relation any such change or
replacement.
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Article
8
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Miscellaneous
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I.
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Drawing
of Payables
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As for
all payables by Party A under this Contract, Party B shall be entitled to draw
corresponding money in RMB or other currencies from Party A's accounts opened
with China Construction Bank without any further prior notice to Party A. If
foreign exchange settlement or purchase-and-sale of foreign exchanges is
required, Party A shall be obligated to assist Party B to complete the same at
the exchange rate risks of Party A.
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II.
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Use
of Party A's Information
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Party A
accepts and acknowledges that (i) Party B may search Party A's credit standing
information in the credit database established upon approval of People's Bank of
China and the competent credit standing departments or via relevant entities or
departments, and (ii) Party B may provide Party A's credit standing information
to such credit database established upon approval of People's Bank of China and
the competent credit standing departments. Meanwhile, Party A agrees that Party
B may reasonably use and disclose Party A's information based on its business as
well.
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III.
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Collection
by Announcement
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In the
event of any breach by Party A, Party B shall be entitled to report any such
breach to relevant departments or entities, or to announce the collection via
news medias.
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IV.
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Validity
of Evidences of Party B's Records
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Save for
reliable and determinable contrary evidences, Party B's internal accounting
records on principals, interest accruals, expenses and repayment, and its
documents and vouchers produced or remained by Party B in the business of
drawing, repayment and payment of interest accruals by the debtor, and its
records and vouchers on collection of loans by it, shall constitute definite
evidences for the claims under the principal contracts. And Party A shall not
have any objection only based on the facts that the above records, documents and
vouchers are produced or remained by Party B unilaterally.
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V.
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Reservation
of Rights
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Party B's
rights under this Contract shall be without any prejudice to any of its other
rights as provided in laws, regulations and other contracts. Any tolerance,
grace, favor to any breach, delay, or any extension for exercise of rights
hereunder shall not be deemed to waive any rights or benefits hereunder, nor to
acknowledge or accept any breach of this Contract, nor affect, prevent or hinder
any further exercise of such rights or exercise of any other rights, nor cause
Party B to bear obligations or liabilities to Party A.
Even if
Party B fails to exercise or delays in exercising any rights under the principal
contracts or fails to exhaust any remedies under the principal contracts, Party
A's guarantee liability hereunder shall not be reduced or released. However,
Party A's guarantee liability hereunder shall be reduced or released accordingly
if Party B reduces or releases the obligations under the principal
contracts.
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VI.
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Dissolution
or Bankruptcy of Debtor
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If Party
A becomes aware of dissolution or bankruptcy proceedings against the debtor, it
shall promptly inform Party B to report is claims. Meanwhile, it shall take part
in such dissolution or bankruptcy proceedings in a timely manner for
pre-exercising its recourse rights. If Party A becomes aware of, or should have
become aware of, such dissolution or bankruptcy proceedings, but if it fails to
pre-exercise its recourse rights in a timely manner, it shall bear losses caused
to it arising therefrom.
Notwithstanding
the provision of the second paragraph of V of this Article, if Party B and the
debtor enter into an arrangement or agree on restructuring plans in the
bankruptcy proceedings against the debtor, Party B's rights hereunder shall not
be damaged by virtue of any such arrangement or restructuring plans, and whereby
Party A's guarantee liability hereunder shall not be reduced or released. Party
A shall not defense against Party B's claims based on any such arrangement or
restructuring plans. Party B shall have the right to request Party A to pay off
the claims that have been compromised by Party B in any such arrangement or
restructuring plans, but not paid by the debtor.
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VII.
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Dissolution
or Bankruptcy of Party A
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If Party
A is dissolved or becomes bankrupt, Party B shall be entitled to take part in
the dissolution or bankruptcy proceedings against Party A, and to report its
claims, even if Party B's claims under the principal contracts do not become
due.
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VIII.
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Party
A shall send a timely written notice to Party B specifying any change of
its mailing address or contact methods, and shall bear any losses arising
out of its failure to send such notice in a timely
manner.
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IX.
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If
Party A or the debtor fails to comply with laws, regulations or rules
concerning environmental protection, energy savings or emission reduction,
pollution reduction, or may meet energy consumption or pollution risks,
Party B shall be entitled to perform its guarantees hereunder in advance,
and to take other remedial measures as provided in this Contract or
laws.
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X.
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Conditions
for Effectiveness
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This
Contract comes into effect after it is signed, or affixed with common seal, by
Party A's legal representative (responsible officer) or authorized agent, and
signed, or affixed with common seal, by Party B's responsible officer or
authorized agent.
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Article
9
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Representations
and Warranties by Party A
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I.
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Party
A has clearly known and understood the scope of business, and authorized
powers, of Party B.
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II.
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Party
A has already read this Contract and all terms of principal contracts.
Meanwhile, Party B has made interpretation for certain terms of this
Contract and principal contracts at the request of Party A. And Party A
has fully known and understood the meanings of, and legal consequences
that may arise from, the terms of this Contract and principal
contracts.
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III.
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Party
A is eligible to act as a guarantor, and its guarantees hereunder conform
to laws, administrative regulations, rules, and its articles of
association or internal organization documents. Meanwhile, its guarantees
hereunder have been approved by its internal authoritative organizations
and/or authoritative authorities of the State. Party A shall be liable for
all liabilities arising out of unauthorized execution of this Contract by
it, including but not limited to full indemnifications for the losses
caused to Party B.
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IV.
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Party
A confirms that it has fully known and understood the assets, obligations,
operation, credit and reputation of the debtor, and eligibility and
authorities of the debtor to sign the principal contracts, and all
contents contained in the principal
contracts.
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Special
Terms and Conditions
This
Maximum Guarantee Contract is numbered as “2009 Jian
Quan Shi Gao Bao Zi, No. 50”.
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Article
10
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Particulars
of Contractors
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Guarantor
(Party A): Shishi Lixiang Foods Co., Ltd.
Residence:
Industrial Zone, Yongning Gold Coast, Shishi City
Zip Code:
362700
Legal
Representative (Responsible Officer): Wu Pingjing
Fax:
0595-88482568
Tel:
13805981068
Creditor
(Party B): Shishi Branch of China Construction Bank
Residence:
No. 1865, 87 Road, Shishi City
Zip Code:
362700
Responsible
Officer: Chen Yixin
Fax:
0595-88595137
Tel:
0595-88595195
Whereas,
Party B and the Debtor will sign and/or have signed RMB borrowing contracts,
foreign exchange borrowing contracts, bank acceptance agreements, L/C opening
contracts, L/G issuance agreements and/or other legal documents for consecutive
credit business under (I), (II), (III) and
(V) below in favor of Shishi Feiying Plastic Co.,
Ltd. (“Debtor”)
from September 09,
2009 to September 09, 2011
(“Period for Determining
Claims”). The above contracts, agreements and/or other legal documents
signed in the Period for Determining Claims shall be collectively referred as
“Principal
Contracts”.
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(I)
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Issue
loans in RMB/foreign exchanges;
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(II)
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Accept
commercial drafts;
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(III)
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Open
L/C;
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(IV)
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Issue
L/G;
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(V)
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Other
credit business: domestic factoring,
trade financing facility.
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Party A
is willing to grant the Maximum Guarantee for all of the Debtor's obligations
under the Principal Contracts. This Contract is entered into by Party A and
Party B in accordance with applicable laws, regulations and rules through
negotiation for common compliance.
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Article
11
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Provisions
for II of Article 1
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The
maximum amount under the Maximum Guarantee hereunder shall be RMB Thirty-three Million
(in words) only. If Party A has performed its guarantee obligations pursuant to
this Contract, such maximum amount shall be reduced accordingly based on the
amount paid.
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Article
12
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Provisions
for I of Article 6
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If the
Debtor fails to perform its obligations in full on time after the obligations
under the Principal Contracts become due or Party B declares such obligations to
become due earlier pursuant the Principal Contracts or laws, or if the Debtor
breaches other provisions of the Principal Contracts, Party A shall bear
guarantee liability to the extent of its guarantees hereunder.
If Party
A fails to clear all of the payables within the time limit as required by Party
B, it shall pay to Party B liquidated damages at 5% of the outstanding payables
in arrears on a daily basis from the overdue date to the date when Party A has
paid all the payables to Party B. In such case, Party A's guarantee liability
and the above liquidated damages shall not be limited to the Maximum Guarantee
hereunder.
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Article
13
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Dispute
Resolutions
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Any
dispute arising out of performance of this Contract may be resolved through
negotiation by the parties hereto; if not reached, any such dispute shall be
resolved subject to the method as specified in i
below:
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i.
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To
be judged and resolved by the People's Court at the location of Party
B;
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ii.
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To
be arbitrated by
arbitration commission in
in accordance with its rules in force and effect at the time of
applying for arbitration; the awards shall be final and binding upon the
parties.
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During
the lawsuit or arbitration, the terms and conditions not involved in the dispute
shall be continued to be performed.
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Article
14
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This
Contract is made in three
counterparts.
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Article
15
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Miscellaneous
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The guaranteed claims
hereunder shall cover the claims arising from all credit businesses such as
current asset loans, bank acceptance drafts, domestic factoring, domestic L/C
and trade financing facilities, issued to the Debtor by Party B during the
period as specified in this Contract. Borrowing contracts, bank acceptance
agreements, trade financing facility contracts, recourse-related domestic
factoring contracts shall be the Principal Contracts to this Contract. Party B
shall exercise the guarantees to the extent of the Maximum Guarantee hereunder.
However, the actual balance of the claims between Party B and the Debtor shall
not be limited up to such Maximum Mortgage.
Party A
(common seal): Shishi Lixiang Foods Co., Ltd.
Signed by
Legal Representative (Responsible Officer)
or
Authorized Agent: Wu Pingjing
September
09, 2009
Party B
(common seal): China Construction Bank Shishi Branch
Signed by
Responsible Officer or Authorized Agent:
September
09, 2009