Attached files
Exhibit
10.11
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Maximum
Mortgage Contract
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China
Construction Bank Fujian Branch
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This
Maximum Mortgage Contract (“Contract”) is entered into by
and between:
Mortgagor
(“Party A”): please
refer to Article 14 hereof
Mortgagee
(“Party B”): please
refer to Article 14 hereof
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Article
1
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Collaterals
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I.
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Party
A will create mortgages on the properties listed in the Collaterals List
as attached hereto.
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II.
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After
new ownership or other title certificates (certifications) are issued for
the Collaterals, any discrepancy between the Collaterals List or other
title (mortgage) certificates or mortgage certification documents accepted
by Party B, and such new title certificates (certifications) or relevant
records on the register of registration authority, shall not procure Party
A to reject bearing the guarantee
liability.
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III.
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Unless
otherwise as agreed by the parties or provided in laws, any new additions
on the Collaterals due to any accessories, mixing, processing and
improvement shall be applied to guarantee Party B's claims as well, and
Party A shall complete necessary mortgage registration at the request of
Party B.
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IV.
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If
Party B's claims are adversely impacted because the values of the
Collaterals have been or may be reduced, Party A shall provide new
guarantees at the request of Party
B.
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Article
2
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Guaranteed
Scope and Maximum Claims
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I.
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The
Maximum Mortgage covers all the obligations under the principal contracts,
including but not limited to all the principals, interests accruals
(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), the 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 15 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 Mortgage hereunder,
irrespective of whether their actual creation goes beyond the Period for
Determining Claims (defined below). The due date of obligations under the
principal contracts shall not be limited by expiry date of the Period for
Determining Claims.
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Article
3
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Registration
of Collaterals
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The
parties hereto shall complete the mortgage registration with appropriate
registration department within five business days after this Contract is signed.
Party A shall submit to Party B the originals of other title certificates of
Collaterals, mortgage registration documents, and other title certificates
before the mortgage registration is completed.
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Article
4
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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
under the Maximum Mortgage and the guaranteed scope hereunder as
before.
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II.
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Replacement
of Parties
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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 to a third party,
the guarantees hereunder shall be transferred as well. In such case, Party
A shall assist Party B and such a third party to complete the changes in
mortgage registration as required by
laws.
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IV.
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Party
A shall still bear joint and several liability to Party B pursuant to this
Contract if any transfer of claims or obligations under principal
contracts fails to come into effect, becomes null and void, or is canceled
or rescinded.
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Article
5
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Possession
and Custody of Collaterals
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I.
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Party
A shall possess, keep, repair and maintain the Collaterals in a proper
manner, reasonably use the same and keep the same in good conditions;
meanwhile, it shall pay for all applicable taxes in relation to the
Collaterals. Party B shall be entitled to inspect the Collaterals, and to
request Party A to submit the originals of title certificates of
Collaterals to Party B for keeping.
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II.
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If
Party A entrusts a third party to possess, keep and use the Collaterals,
or agrees on doing so by a third party, it shall inform such third party
of the mortgages on such Collaterals in favor of Party B, and request such
third party to keep the Collaterals in good conditions, to allow Party B
to inspect the Collaterals, and not to prevent Party B from realizing the
mortgages. Meanwhile, Party A shall not be released from its obligations
as specified in the preceding paragraph, and shall be liable for acts of
such third party simultaneously.
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III.
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Party
A shall be liable for injury or damage to properties caused by the
Collaterals, if any. And Party B shall be entitled to make recourse
against Party A if it suffers claims or makes an advance for damages due
to any such injury or damage.
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Article
6
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Insurance
for Collaterals
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I.
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Unless
otherwise agreed by the parties, Party A shall insure the Collaterals
according to applicable laws and types of insurance, insurance period and
insured amount as designated by Party B. The insurer shall have legal
qualifications and good reputations as
required.
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II.
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The
policies shall conform to Party B's requirements without any attached
restrictive conditions that may damage Party B's benefits. In particular,
the policies shall be noted as follows: Party B shall be the preferred
beneficiary (the first beneficiary) of the insurance proceeds; any
modification to the policies can only be made upon prior written consents
of Party B; the insurer shall directly pay insurance proceeds to the
account designated by Party B upon occurrence of insured accidents.
Appropriate remarks or modifications shall be made on the policies if the
Collaterals have been insured but the above contents are not marked on the
policies.
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III.
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Party
A shall ensure consecutive and effective insurances on the Collaterals. It
is not allowed to cease, cancel or invalidate the insurances for any
reasons, or procure the insurer to be reduced or released from
indemnification, or modify the policies without prior consents of Party B.
If the claims guaranteed by Party A are not paid in full after the
insurance period is expired, Party A shall renew the insurance and the
insurance period shall be extended
accordingly.
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IV.
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Party
A shall submit originals of policies of the Collaterals to Party B within
five business days from the date of conclusion of this Contract (or the
date of renewal of insurance if the Collaterals are renewed for
insurance), and leave documents in relation to insurance claims and
necessary to transfer of insurance benefits at Party
B.
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V.
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Party
B shall be entitled to dispose insurance proceeds from the Collaterals as
follows, and Party A shall assist to complete all applicable
formalities:
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(I)
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To
apply such proceeds to repair the Collaterals for recovering values of the
same upon prior consents of Party
B;
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(II)
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To
apply such proceeds to pay principals, interest accruals thereon and
relevant fees under the principal contracts, or to do so in
advance;
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(III)
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To
create pledge guarantee for obligations under the principal
contracts;
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(IV)
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To
be disposed by Party A at its own discretions provided that Party A
provides new guarantees conforming to Party B's
requirements.
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Article
7
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Limitations
on Disposal of Collaterals by Party
A
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I.
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Without
prior written consents of Party B, Party A shall not dispose the
Collaterals in any way, including but not limited to any waiver, lease
(including renewed lease upon expiry of original lease contract), gift,
transfer, contribution, repeated guarantees, assignment, changes for
public benefits, additions to other objects, or restructuring and/or
division.
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II.
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Upon
prior written consents of Party B, Party A shall deposit the proceeds from
disposal of the Collaterals or other money into the account as designated
by Party B. Party B shall be entitled to dispose such proceeds or money
through any of the methods as specified in (II) to (IV) of Paragraph V of
Article 6, for which Party A shall assist to complete applicable
formalities.
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Article
8
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Encumbrance
by A Third Party
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I.
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If
the Collaterals are levied, requisitioned, removed, forfeited, withdrawn
without any compensation, by the State, or if they are sealed, frozen,
seized, monitored, created a lien, sold by auction, possessed in force,
damaged or otherwise disposed by a third party, Party A shall promptly
inform Party B, as well as take precautious, elimination or recovery
remedial measures for preventing losses from being expanded. If required
by Party B, Party A shall provide new guarantees conforming to Party B's
requirements.
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II.
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Upon
occurrence of the circumstances as provided in the preceding paragraph,
the remaining values of the Collaterals shall be applied to guarantee
Party B's claims. Party A shall deposit damages or compensations obtained
due to the above reasons into the account as designated by Party B. Party
B shall be entitled to dispose such damages or compensations through any
of the methods as specified in (I) to (IV) of Paragraph V of Article 6,
for which Party A shall assist to complete applicable
formalities.
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Article
9
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Realization
of Mortgage
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I.
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Party
B shall be entitled to dispose the Collaterals if the debtor fails to
perform its due obligations under the principal contracts or such
obligations as declared to become due earlier, or if it breaches other
provisions of the principal
contracts.
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II.
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The
values of the Collaterals as recorded on the Collaterals List or as
otherwise agreed by the parties (“Interim Values”) shall not mean final
values of the Collaterals, and their final values shall be the net price
from disposal of the Collaterals by Party B after all applicable taxes are
deducted.
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If the
Collaterals are applied to offset Party B's claims, the above Interim Values
shall not be deemed as the grounds for offsetting Party B's claims by the
Collaterals, and values of the Collaterals shall be determined through
negotiation by the parties or fair evaluation to be conducted according to law
for the time being.
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III.
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Proceeds
from disposal of the Collaterals by Party B shall be applied to pay off
obligations under the principal contracts, and the remaining shall be
refunded to Party A after the expenses or fees (including but not limited
to custody fees, appraisal fees, auction fees, transfer fees, taxes,
considerations for grant of state-owned land use right) arising out of
sale or auction of the Collaterals are
paid.
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IV.
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If
Party A and the debtor is the same person, Party B may apply for
enforcement against Party A's properties beyond the Collaterals, which is
not conditional upon waiver of the mortgages hereunder or prior disposal
of the Collaterals.
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V.
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Party
B shall not create any encumbrance (including action or non-action)
against realization of mortgages by Party B in any
way.
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VI.
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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 principal
contracts by a third party, or of other guarantees granted by the
debtor.
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VII.
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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 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 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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VIII.
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If
principal contracts are not concluded, do not come into effect, become
null and void in whole or part, or are canceled or rescinded, and if Party
A and the debtor are not the same person, Party A shall, to the extent of
guarantee scope as specified hereunder, bear joint and several liability
together with the debtor for the obligations arising out of the return of
properties by or the indemnification of losses by the
debtor.
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IX.
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Party
A has fully recognized 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 principal contracts or based on changes of national rate
policies, Party A shall bear joint and several liability for the extra
part as well.
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X.
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If
the debtor, in addition to the obligations under the 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
10
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Breaching
Liability
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I.
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Breaching
Liability of Party A
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(I)
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If
Party A breaches any provision hereof, or if any of its representations or
warranties is false, wrong or misunderstanding, Party B shall be entitled
to take one or more of the following
measures:
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i.
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Request
Party A to correct its breaches within the given time
limit;
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ii.
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Request
Party A to provide new guarantees;
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iii.
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Request
Party A to indemnify losses;
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iv.
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Dispose
the Collaterals;
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v.
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Take
other remedial measures as permitted by
laws.
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II.
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Party
B shall be entitled to dispose proceeds from the disposal of the
Collaterals through any of the methods as specified in (II) to (IV) of
Paragraph V of Article 6, for which Party A shall assist to complete
applicable formalities.
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III.
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Party
B shall be entitled to request Party A to bear the joint and several
liabilities within the mortgages as specified in this Contract with the
debtor if the mortgages are not created or values of the Collaterals are
reduced or Party B fails to realize the mortgages in full or in a timely
manner for Party A's reasons, and if Party A and the debtor are not the
same person.
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IV.
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Breaching
Liability of Party B
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If title
certificates of the Collaterals delivered by Party A are lost due to default of
Party B, or if Party B fails to return such certificates in a timely manner
after the obligations under the principal contracts are paid, or if Party B
fails to assist to cancel mortgage registration according to law as requested by
Party A, Party A shall be entitled to take one or more of the following
measures:
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(I)
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Request
Party B to bear fees for re-obtaining title certificates of the
Collaterals;
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(II)
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Request
Party B to return title certificates of the Collaterals within the given
time limit, or assist Party A to cancel the mortgage
registration.
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Article
11
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Miscellaneous
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I.
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Bearing
of Fees
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Unless
otherwise as agreed by the parties, all fees (including but not limited to such
fees arising out of possession, management, disposal, registration, public
notary, insurance, transport, storage, custody, appraisal, repairs, maintenance,
auction and transfer) in relation to this Contract and the Collaterals hereunder
shall be borne by Party A.
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II.
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Drawing
of Payables
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As for
all the 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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III.
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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 as well based on its
business.
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IV.
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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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V.
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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, 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
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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VI.
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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 principal
contracts or fails to exhaust any remedies under 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 principal
contracts.
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VII.
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Party
B shall be well notified promptly if Party A is divided or dissolved, or
goes into bankruptcy proceedings, or its registration is withdrawn or
cancelled, or its business license is cancelled, or the Collaterals are
destroyed, lost, damaged or apart from Party A's control due to natural
factors or a third party's acts, or ownership of the Collaterals is under
dispute or the title certificates (certifications) are
cancelled.
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VIII.
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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 VI 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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IX.
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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
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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X.
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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 losses arising out
of its failure to send such notice in a timely
manner.
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XI.
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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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XII.
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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
12
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Collaterals
List
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Please
refer to Article 19 hereof.
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Article
13
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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 losses caused
to Party B.
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IV.
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Party
A confirms that it has fully known and understood 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 principal
contracts.
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V.
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Party
A owns and has the right to dispose the Collaterals according to law. The
Collaterals are not the public facilities, which are not allowed to be
circulated or transferred; and no dispute on the ownership of the
Collaterals exists.
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VI.
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The
Collaterals are not co-owned, or the mortgages hereunder have been agreed
on by other co-owners in writing if the Collaterals are
co-owned.
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VII.
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The
Collaterals are free of any defect or encumbrance that has not been
notified to Party B in writing, including but without limitation as
follows: the Collaterals are limited for circulation, sealed, seized,
monitored, leased or created a lien; or the acquisition prices, repair and
maintenance fees, construction prices, national taxes, considerations for
the grant of land use right, damages, of and arising out of the
Collaterals are owed in arrears; or any guarantees are created on the
Collaterals in favor of a third
party.
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VIII.
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All
data and information provided to Party B by Party A in relation to the
Collaterals is true, lawful, accurate and
complete.
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IX.
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The
grant of the mortgages by Party A shall not damage legal benefits of any
third party, nor go against legal and agreed obligations of Party
A.
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Special
Terms and Conditions
This
Maximum Mortgage Contract is numbered as “2009 Jian
Quan Shi Gao Di Zi, No. 28”.
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Article
14
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Particulars
of Contractors
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Mortgagor
(Party A): Shishi Feiying Plastic Co., Ltd.
Residence:
Longshan Development Area, Hanjiang Town, Shishi City
Zip Code:
362700
Legal
Representative (Responsible Officer): Wu Licong
Fax:
88682828
Tel:
88681828
Creditor
(Party B): China Construction Bank Shishi Branch
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 December 02,
2009 to December 02, 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 Mortgage 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
15
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Provisions
for II of Article 2
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The
maximum amount under the Maximum Mortgage hereunder shall be RMB Thirty-five 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
16
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Other
Provisions
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i.
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Not
Applicable
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Article
17
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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; if not reached, any such dispute shall be resolved
subject to the method as specified in i below. During the
lawsuit or arbitration, the terms not involved in the dispute shall be continued
to be performed.
|
|
(I)
|
To
be judged and resolved by the People's Court at the location of Party
B;
|
|
|
(II)
|
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.
|
|
Article
18
|
This
Contract is made in three
counterparts.
|
|
Article
19
|
Provisions
for Article 12
|
The
Collaterals List under this Contract is as follows:
Collaterals
List
|
Name of
Collaterals
|
Numbers of Title
Certificates and Other
relevant Certificates
|
Location
|
Areas or
Quantity
|
Values of
Collaterals
(RMB 10
Thousand)
|
Mortgaged
Amount
for Other
Claims
(RMB 10
Thousand)
|
Remarks
|
||||||
|
Properties
|
|
Property
Title Certificates numbered as Shi Jian Fang Quan Zheng Han Zi No. 00103,
00104, 00105 and 00106; Land Certificate Number of State-owned Land Use
Right Certificate: Shi Han Guo Yong (2005) No. 0046
|
|
Building
A, B, C and D on Land Parcel A of Jiulongshan Development Zone, Hongjue
Village, Hanjiang Town, Shishi City
|
|
Land
areas: 32,203.27 m2; building areas:
21,283.76 m2
|
|
4021.70
|
|
0
|
|
Blank
|
|
Party
A (common seal): Shishi Feiying Plastic Co., Ltd.
|
Party
B (common seal): China Construction Bank Shishi Branch
|
|
|
Signed
by Legal Representative: Wu Licong
|
Signed
by Responsible Officer:
|
|
|
December
02, 2009
|
|
December
02, 2009
|