Shanghai Pudong Development Bank Contract of Guarantee (Single) SHANGHAI PUDONG DEVELOPMENT BANK
Exhibit
10.3
(English
Translation)
No.:
YB7501200928439002
Shanghai
Pudong Development Bank
Contract
of Guarantee
(Single)
SHANGHAI
PUDONG DEVELOPMENT BANK
Page
1
Contract
of Guarantee
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Guarantor:
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Wang,
Xxxxx Xxxx,
Peili
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Creditor:
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Shanghai Pudong
Development Bank Co. Ltd. Dalian
Branch
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Whereas:
The
guarantor voluntarily assumes the guarantee liability for the entire loan under
the Main Contract (as specified in Article 7), in order to ensure the
comprehensive and timely performance of the obligations by the debtor under the
Main Contract and the exercise of the creditor’s rights.
The
parties have reached a consensus through friendly consultation to conclude this
contract. The parties will commit in accordance to the terms and conditions
stipulate hereunder.
Article
One The Main Debt Guaranteed
The
details of the guaranteed Creditor’s right(s) are provided in Article 7 of this
Agreement.
Article
Two Guarantee Liability
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1.
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Scope
of Guarantee
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The
Guarantee covers the creditor’s right of this contract, interests (the interests
mentioned hereinafter including interest, default interest, compound interest),
liquidated damages, compensation, charges, all expenses incurred in the signing
and performance of this contract and the expenses attributable to the exercise
of guarantee rights and the creditor’s rights (including but not limited to
litigation fee, taxes, attorney fee, travel expenses, management fee and charge
for auction or disposition of property) and the additional security deposit
required by the creditor has not added to the guarantee amount.
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2.
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Mode
of Guarantee
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Page
2
The
Guarantee mode hereof is guarantee with joint and several
liabilities.
The
guarantor confirms. In case that the debtor fails to repay the debt in
accordance with the Main Contract, the creditor is entitled to ask the guarantor
to assume the guarantee liability in the scope defined in this contract, no
matter whether the creditor has other security rights on the debt under the
contract (including but not limited to security, mortgage and pledge), with no
need to ask the other guarantor to assume the guarantee liability
first.
The
guarantor hereby undertakes to waive the defense that claims for advance
enforcement of the guarantee in rem provided by the debtor.
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3.
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Guarantee
Period
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Guarantee
period for each debt shall be calculated respectively and is from the maturity
date of each debt to two years after the maturity date in the Main
Contract. The guarantor shall assume separately the guarantee
liability of repayment installments of each debt under the contract during the
term of the contract. The guarantee period of any one debt shall be
two years as from the expiry of last installment loan in case of the repayment
in installments for the debt.
The term
“maturity” and “expiry” stated in this contract includes the situation when the
creditor announces the early maturity. The early maturity date
announced of shall be the expiry date of the debt.
The
guarantee period shall be two years as of the expiry date provided in the
extension agreement if an extension agreement is reached between the debtor and
the creditor. The guarantor’s join and several liabilities for the
debts shall remain in force in the extended period without the guarantor’s prior
content.
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4.
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Alteration
of The Main Contract
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Any
extension and any deferred repayment permission the creditor gives to the debtor
and the amendments, alterations or replacements of any terms and conditions of
the Main Contract made by the creditor and the guarantor shall not have any
effect on the rights and interests of the creditor under this contract and shall
not cause any diminishment of the guarantee liability base on the guarantor’s
deemed consent in the case.
The issue
of Letter of Credit, Letter of Guarantee or Standby Letter of Credit by the
creditor, or any amendment of the Letter of Credit, Letter of Guarantee or
Standby Letter of Credit made by the creditor and the guarantor shall not cause
any diminishment of the guarantee liability with no need to obtain the consent
of the guarantor or prior notify the guarantor based on the guarantor’s deemed
consent in the case.
Article
Three Statement and Commitments
The
guarantor states and undertakes as follows to the creditor:
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(1)
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The
guarantor shall be an independent legal subject that has complete civil
capacity to perform the obligations of the contract and assume the civil
responsibility independently.
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(2)
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The
guarantor has the authority to sign the contract, and the guarantor has
already obtained all the authorization and approval required by the
contract; the terms and conditions of this contract are reached on a basis
of the guarantor’s real intent and free will and shall have legal binding
force on the guarantor.
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(3)
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The
guarantor hereby undertakes that there is no any infringement of the laws
(the laws hereof includes laws, regulations, rules, local laws and
regulations, judicial interpretation), Articles of Association, relevant
documents of the bodies with power, judgments or decisions made and any
conflict with other contract that the guarantor has already signed or any
other obligations the guarantor has already taken during the execution and
performance of this contract.
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Page
3
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(4)
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The
guarantor shall promise all financial statements (if any) complies with
the laws and regulations of the People’s Republic of China (excluding Hong
Kong, Macau and Taiwan Region) and could gives a real, complete and
unprejudiced explanation of the financial conditions of the guarantor and
all documents and materials involved with this contract are accurate,
real, complete, valid without any
concealment.
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(5)
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The
guarantor shall vow to go through the filing, registration or other
procedures required by the validity and legal performance of the contract
and pay relevant expenses.
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(6)
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No
big adverse change of the operational and financial situation occurs since
the latest audited financial
statement.
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(7)
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The
guarantor has disclosed all the facts or information it knows or should
know which is important for the creditor to decide whether to offer the
loan under the contract.
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(8)
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The
guarantor hereby confirms any arrear of wage, medical care, disability
benefits and compensatory payment has not happened or will not happen in
the execution date and during the performance of this
contract.
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(9)
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The
guarantor undertakes there is no situation or event that has or may have
material negative effect on the performance capability of the
guarantor.
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Article
Four Contracted Matters
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1.
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The
Commitments of the Guarantor
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(1)
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The
guarantor undertakes not to take the following actions without the written
content of the creditor:
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1)
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Dispose
the whole or majority of the significant assets in ways of sale, donation,
rent, transfer, mortgage, pledge or other
measures.
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2)
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Change
materially the operative mechanism or property organization form,
including but not limited to the contractual operation, leasing,
consortium, corporation system reform, shareholding reform, share
transfer, merger (or acquisition), joint venture with foreign investment
(or cooperation), division, establishment of subsidiaries, transfer of
property and decrease of registered
capital.
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3)
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Change
the business scope or major businesses and to alter the Articles of
Association.
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4)
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Providing
the guarantee to the third parties that have huge negative effect on the
guarantor’s financial situation and its capability to perform the
obligations under the contract.
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5)
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Apply
for reorganization, bankruptcy and dismissal of the
company.
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6)
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Sign
the contracts/agreements that have huge adverse effect on the guarantor’s
ability to perform the obligations under this contract or assume relevant
obligations that have same effect.
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Page
4
(2)
The
guarantor undertakes to promptly notify the creditor of the event on the day of
the event and send the originals of relevant notice (stamped by non-natural
person or signed by natural person) to the creditor in five (5) business days
after the day of the event in case of the following
circumstances:
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1)
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The
events that deny the authenticity and accuracy of the statements and
commitments the guarantor makes in this contract
happen.
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2)
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The
guarantor or its controlling shareholder, actual controller or the related
parties being involved in litigation or arbitration, or its asset being
distained upon, sealed-up, frozen or enforced or being imposed by other
measures that have same effect, or its legal representative, director,
supervisor and senior management staffs being involved in litigation,
arbitration or other enforcement
measures.
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3)
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The
change of the legal representative or its authorized representatives, the
responsible person, the main person in charge of finance, mailing address,
business name and office location, or the guarantor’s change of home
address, habitual residence and work unit, leave the residing city for an
extended period of time, name change or has negative change on the income
level.
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4)
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Apply
reorganization, bankruptcy by other creditors, or revoked by the superior
agency.
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(3) The
guarantor undertakes to cooperate with the creditor and supply the corresponding
financial information or proof of income upon request after this contract is
signed and during the fulfillment.
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1)
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The
issue of Letter of Credit, Letter of Guarantee or Standby Letter of Credit
by the creditor for the debtor, the guarantor undertakes to
assume joint and several liabilities and complement the deposit
when the debtor fail to complement the deposit as required (including
advance complement). Complement the deposit does not relieve
the guarantor from its commitments under this contract. The
guarantor is responsible for any losses (including loss of interest)
during the complement deposit are made according to this
contract.
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2)
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The
guarantor confirmed, before the debtor repays all debt under the
obligation of the Main Contract to the creditor, the guarantor shall not
execute the right of recovery to the debtor during the fulfillment of this
contract.
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3)
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In
the event the debtor early repay all or part of the debtor’s debts, or the
debtor settle individually with the creditor, the guarantor will assume
the joint and several liabilities to the remaining debt after the early
repayment or individual settlement.
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2.
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Retain
or Transfer Agreement
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1)
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The
creditor is entitled to retain or transfer fund from any guarantor’s
account(s) opened in Shanghai Pudong Development Bank to repay due debt
when the guarantor has a debt that is
due.
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2)
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Unless
otherwise stipulated by the Nation’s authorize agency, the order of repay
from the retained or transferred fund shall be first to repay the due and
unpaid fees for the guarantor and creditor, then to repay the due and
unpaid interest, and last to repay the due and unpaid
principle.
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3)
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In
the event the currency of the retained or transferred fund and the debt
are different, the creditor will adopt the conversion rate determined by
itself to purchase the foreign exchange for repayment with the risk taken
by the guarantor.
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Page
5
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3.
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Proof
of Debt
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The valid
proof of debt guarantee by the guarantor shall be the accounting certificate
issued and documented according to the creditor’s business
regulation.
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4.
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Notice
and Service
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1)
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When
a party of this contract serves notices to the other party, the address to
serve shall be what was listed on the signing page of this contract, until
the written note of change of address was made by the other
party. As long as the notices is serve to the aforesaid
address, the acceptance date shall be determine as follow: The seventh
(7th) bank’s business day from when the register mail is sent from the
business address (corporation and its affiliates) or home address (natural
person); the date when the recipient signed for it the notice is deliver
in person, the send day of the fax or e-mail if the notice is serve by fax
or e-mail. However, the acceptance date for the creditor shall
be the actual receiving day if the notices, requests or other
communications were sent or served to the
creditor. Furthermore, it the notices or requests were served
via fax or e-mail, the original document (stamped by non-natural person or
signed by natural person) shall be delivered via mail or in person for
verification.
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2)
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The
guarantor agreed: In the event of any litigation action being brought
against the guarantor, any summons and notification relating to the
proceedings shall be sent to the address specified at the signing page of
this contract, which will taken as actual arrival of the files, without
written notification to the bank, the address mentioned above shall not be
changed.
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5.
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Effective,
Change and Cancellation
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1)
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This
contract will take effect after it was signed or stamped by both parties’
legal representative/responsible person (only signature is needed if the
guarantor is the natural person) and sealed by the guarantor and the
creditor; until all guaranteed debts under this contract were
payoff.
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2)
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The
effectiveness of this contract is independent from the effectiveness of
the Main Contract; it will not become invalid or face revocation due to
the invalidity or revocation of the Main
Contract.
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3)
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After
this contract takes effect, neither party shall change or terminate this
contract in advance. If the change or termination is necessary,
written agreement shall be reach through consultation of both
parties.
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Article
Five Default and Handling
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1.
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Default
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Any of
the following condition exists will be constituted as default of the guarantor
to the creditor:
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1)
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The
guarantor makes any incorrect or misleading statements, directions,
guarantees in this contract, or issues any incorrect or misleading
notifications, authorizations, approvals, certificates and other documents
according to or related to this contract, or has been proved to be
incorrect or misleading, or has been confirmed to have lapsed or revoked
or has no legal effect.
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2)
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The
guarantor violated any agreement under Article
Four.
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Page
6
3)
Shut
down, out of service, dissolution rectification, reconstruction, liquidation,
receivership or trusteeship, dissolve, canceled or revoked business license or
bankrupt of the guarantor.
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4)
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The
guarantor is natural person, and is dead or been declared
dead.
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5)
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The
guarantor transfers the asset by the guise of marriage or tries to
transfer the asset.
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6)
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The
guarantor has a deteriorating financial position, and serious difficulties
in business operation, or incident occurred that would have the negative
effect on its ability of normal business operation, financial status or
the ability to repay the debt.
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7)
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The
guarantor or the controlling shareholders, actual controlling person or
other relative person involved in serious lawsuits or arbitrations, or the
major capital is being sealed, detente, frozen, compulsory implemented or
other equal measure, or the legal representatives, directors, supervisors
or senior management involved in lawsuits, arbitrations or other coercive
measures that would have a negative effect on the guarantor’s ability to
repay the debt.
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8)
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Any
other violation of this contract of the guarantor that’s serious enough to
obstruct the normal performance of this contract, or prejudice the
legitimate interests of the
creditors.
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2.
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Default
Handling
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The
creditor reserve the right to announce the early maturity if any of the
aforesaid default occurred, and required the guarantor to assume the
responsibility of liability or required the debtor to make up the security
deposit, and required the guarantor to pay the liquidated damages (see Article
Seven for the calculation method of liquidated damages). If the
liquidated damages are not enough to compensate all losses of the creditor, the
guarantor shall compensate the creditor for all losses resulting.
Article
Six Other Clause
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1.
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Suitable
Law
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The law
suitable for this contract is the law of the People’s Republic of China
(excluding Hong Kong, Macau and Taiwan Region)
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2.
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Solution
of Dispute
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All
disputes relative to this contract shall be resulted through friendly
consultations; if unsuccessful, the local People’s Court at where the creditor
reside shall have the non-exclusive jurisdiction. During the dispute,
all parties shall continue to fulfill the undisputed term of this
contract.
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3.
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Miscellaneous
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1)
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Any
addition needed for the outstanding issues under this contract shall be
stated in Article Seven of this contract after the agreement of both
parties. Additional written agreement may be sign as the
appendix of this contract. The appendix of this contract (see
Article Seven for detail) is an inseparable part of this contract, and has
equal legal effect as the main body of this
contract.
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2)
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Unless
otherwise specified in this contract, this related terms and expressions
have same meaning as those in the Main
Contract.
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Page
7
Article
Seven Contract Elements Clause
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1.
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The
Main Contract guaranteed under this contract [corresponds to the Whereas
of this contract]
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(1)
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The
Main Contract is the <<Agreement for
Short-term Loan>> that was signed by the debtor and the
creditor on 1/12/2010[No.:75012009284390]. The
creditor in this contract is the Financing Bank
in the Main Contract.
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(2)
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The
debtor of the Main Contract is: Dalian Heavy Mining
Equipment Manufacturing Co. Ltd., address:
______*________.
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2.
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The
main debt guaranteed under this contract [corresponds to Article One on
this contract]
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The main debt guaranteed under this contract is, according
to the Main Contract, the creditor finance no more than RMB (Currency) Twelve Millions Yuan
even (Capital Writing). Debt period (named period in the Main
Contract) is 1/12/2010
– 1/11/2011.
The main debt guaranteed under this contract is,
according to the Main Contract, the creditor supply ________*___________ (name
of the intermediate business) for the debtor, and responsible for no more then
_*__(Currency)______*_____________Yuan even (Capital Writing) of
liabilities. In the event that the creditor is force to make advance
payment on the aforesaid operation, the main debt shall be transfer as the
corresponding advance payment of the creditor. The main debt amount
shall be adjusted according to what was agreed on the Main
Contract.|
3.
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Default
Handling [corresponds to Paragraph 3 of Article Five of this
contract]
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Liquidated
damages: equivalent to Twenty (Capital
Writing) percent of the main debt or ______*___________
___________________________________________________________
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4.
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Appendix
of this contract includes: [corresponds to item (1) of
Paragraph 3 of Article Six of this
contract]
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(1)
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<<____*________>>.
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(2)
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<<____*________>>.
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(3)
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<<____*________>>.
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(4)
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<<____*________>>.
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(5)
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<<____*________>>.
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(6)
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<<____*________>>.
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5.
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Other
matters agreed by both parties [corresponds to item (1) of Paragraph 3 of
Article Six of this contract]
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_*_____________________________________________________________________________
_*_____________________________________________________________________________
_*_____________________________________________________________________________
Page
8
6. This
contract is made in Triplication, the
guarantor holds one
copy, the creditor holds two copies,
_*____holds _*___copy, and they have equal legal effect.
Page
9
This
contract was signed by the following guarantor and creditor on 1/12/2010. The
guarantor confirm, when signing this contract, both parties had already been
explained and discussed all terms in detail, and have no objection to all terms,
and accurately understand the legal meaning of the terms such as rights,
obligations, responsibilities, limitations and waive.
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Guarantor
(Seal)
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Creditor
(Seal) seal
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Legal
Representative or Authorized Agent
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Responsible
Person or Authorized Agent
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(Signature
or Stamp)
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(Signature
or Stamp)
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/s/
Xxxxx Xxxx
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/s/
Corporate Seal Affixed
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/s/
Xxxxx Xxxx
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(Above
for Legal Persons use)
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Guarantor
(Signature)
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Signature/Finger
print
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Signature/Finger
print
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Type
of valid ID and No.: 210207195503073232
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21020219608133247
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(Above
for Natural Persons use)
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Home
address: *
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Main
business address:*
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Zip
code:*
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Zip
code:*
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Telephone:*
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Telephone:*
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Fax:*
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Fax:*
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E-mail:
*
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E-mail:
*
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Contact
person: *
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Contact
person: *
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Page
10
* The Contract
of Guarantee, filed as Exhibit 10.3 as an English translation, was based on a
standardized form contract used by the Shanghai Pudong Development Bank. The
blank spaces in the English translation were intentionally left blank because
the blank spaces on the original form were either not applicable to the
transaction or else not required to be completed by the guarantor. The original
Chinese-language Contract of Guarantee contains handwritten lines marking
through these blank spaces to indicate that they were intentionally left
blank.
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11
