China Merchants Bank Mortgage Agreement China Merchants Bank Nanjing Branch
Exhibit
10.28
[2008]D.Zi.
No. 111101026-2
China
Merchants Bank
China
Merchants Bank Nanjing Branch
1
No.:
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Mortgagee:
China Merchants Bank__________
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(hereinafter
referred to as Party A)
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Main
principal:
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Mortgagor
(corporation or other organization):
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(hereinafter
referred to as Party B)
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Legal
representative/main principal:
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Mortgagor
(natural person): Kang
Huake
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(hereinafter
referred to as Party B)
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ID
Card No.: 32010219880125123
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Whereas:
1. Party
B applies to Party A for loan/commercial draft acceptance/xxxx discounted,
amounting to RMB ;
and Party A agrees to provide Party B with the said loan/commercial draft
acceptance/xxxx discounted; and therefore both parties conclude of
No. (hereinafter
referred to as the Master Agreement); or
2. Goldenway Nanjing Garments
Company Limited (hereinafter referred to as the “Debtor”) applies to
Party A for loan/commercial draft acceptance/xxxx discounted, amounting to
RMB1,740,000.00;
and Party A agrees to provide Party B with the said loan/commercial draft
acceptance/xxxx discounted; and therefore both parties conclude the Loan
Contract of
[2008]D.K.No.111101026 (hereinafter referred to as the Master
Agreement).
To
guarantee that the principal and interests of the debts and other relevant
expenses under the Master Agreement could be paid off on schedule, Party B
agrees to use the property that it owns or has the right to dispose of as the
collateral. After examination, Party A agrees to accept the said property as the
collateral. In accordance with relevant laws and through amicable negotiation,
both parties hereby conclude as follows:
2
Article
1 Collateral
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1.1
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Name:
Xxxxxxxx 0, Xxxxxxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxxx Xxxx, Jiangning
Development Road
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1.2
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Area:
279.63m2
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1.3
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Evaluation
price and mortgage ratio: RMB3,635,
200 58.27%
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1.4
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Mortgage
term: one year
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1.5
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Location: Xxxxxxxx
0, Xxxxxxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxxx Xxxx, Jiangning Development
Road
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1.6
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Certificate
of ownership:
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Article 2 Manner of
Mortgage
2.1 Where
Party B fails to repay the debts under the Master Agreement to Party A at the
date of maturity of the debts, Party B shall bear the guaranty liabilities with
the collateral within the scope of mortgage guarantee stated in Article 3
herein. Where Party A claims the debts under the Master Agreement against Party
B (or the Debtor) according to the Master Agreement prior to the date of
maturity of the debts, Party B shall also bear the guarantee liabilities with
the collateral.
2.2 Party
A and Party B (or the Debtor) may reach an agreement to extend or alter the
term, interest rate, amount, etc. of the debts under the Master Agreement. Party
B acknowledges that where Party A adjusts the interest rate of the debts
according to the Master Agreement within the term of the debts, Party A need
neither obtain the consent of Party B nor notify Party without prejudice to
Party B’s mortgage guarantee liabilities under this Agreement.
Article
3 Scope of Mortgage
The scope
of mortgage guarantee under this Agreement includes but is not limited to the
principal of the debts under the Master Agreement, corresponding interest,
penalty interest, compound interest and liquidated damages, and the expenses for
realizing the right to mortgage, i.e.:
3.1 The
principal provided by Party A to Party B (or the Debtor) according to the Master
Agreement, corresponding interest, penalty interest, compound interest and
liquidated damages, and relevant expenses; or
3.2 The
principal of the payment for commercial draft acceptance under the Master
Agreement, corresponding interest, penalty interest, compound interest and
liquidated damages, and relevant expenses; or
3.3 The
principal of the payment for xxxx discounted under the Master Agreement,
corresponding interest, penalty interest, compound interest and liquidated
damages, and relevant expenses; or
3.4
Expenses accrued to Party A for exercising the right to mortgage (including but
without limitation to legal cost, attorney fee, announcement fee, service fee
and travel expenses).
3
Article
4 Custody of the Collateral and Certificate of Ownership of the
Collateral and Corresponding Responsibilities
4.1
During the mortgage term, Party B or Party B’s authorized proxy shall keep the
collateral in custody, be responsible for repair and maintenance, and be subject
to inspection by Party A at any time.
The
mortgage term means the period commencing on the date of entry into force of
this Agreement and ending on the date of expiration of extinctive prescription
of the claims under the Master Agreement.
4.2 During the mortgage term, Party B
shall not engage in any act to impair the value of the collateral, otherwise,
Party A is entitled to request Party B to stop such act and restore the value of
the collateral or provide new collateral acceptable to Party A. Any expenses
arising out of restoration of the mortgage or creation of new mortgage
shall be borne by Party B.
4.3
During the mortgage term, Party B shall hand over the certificate of ownership
of the collateral and other relevant certifications to Party A for custody.
Party A shall take good care of the said certificate and certifications. If
Party A fails to take good care and causes loss of any of them, Party A shall
bear the expenses for applying for a new one.
Article
5 Registration of the Collateral
5.1
Party B shall, at the time required by Party A, assist Party A in going through
the procedures of registration of the collateral at relevant registration
authority by this Agreement and relevant data; and
5.2 Party
B shall, with the principle of honesty and good faith, initiatively assist Party
A in going through the procedures stated in the preceding Paragraph. Where the
said procedures are not completed on schedule due to any fault of Party B, Party
B shall compensate Party A against all losses therein.
Article
6 Insurance
Party B
shall, according to the type of insurance as required by Party A, maintain
full property insurance coverage for the
collateral withChina Pacific Property Insurance Co., Ltd. Jiangsu
Branch with Party A as the irst beneficiary and hand over the policy to Party A.
The period of insurance shall be longer than the term of the debts under the
Master Agreement. Where the term of the debts under the Master Agreement is
prolonged, Party B shall go through relevant procedures to prolong the period of
insurance correspondingly. Where the collateral suffers from any loss, Party A
has the priority to recover the loan/payment for commercial draft acceptance or
xxxx discounted under the Master Agreement and all relevant expenses from the
insurance compensation in advance or deposit the insurance compensation in the
account of guarantee money (The number of the account of guarantee money is the
number of the account of guarantee money actually opened by Party B in Party A
or the number of account automatically created by Party A’s system at the time
of depositing, hereinafter the same) or negotiate with Party B to submit the
insurance compensation to competent authority so that Party A could recover the
loan/payment for commercial draft acceptance or xxxx discounted under the Master
Agreement at their maturity.
Where
Party B fails to cover insurance for the collateral or fails to prolong the
insurance period, Party A is entitled to do that as agency of Party B at the
expenses of Party B.
Article
7 Limitation on Disposing of the Collateral during the
Mortgage Term
7.1
During the mortgage term, without the approval of Party A, Party B shall not
sell, exchange, gift or otherwise transfer the collateral under this Agreement.
Where Party B has to transfer the collateral with compensation, all of the
following conditions must be satisfied:
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7.1.1
Party B must obtain the written consent from Party A and inform the transferee
of the mortgage, otherwise, the transfer is invalid;
7.1.2
Where Party B transfers the collateral at the price obviously lower than its
value, which is not enough to pay off the principal of the debts under the
Master Agreement and all relevant expenses, Party A is entitled to request Party
B to supplement the difference; where Party B fails to supplement; the mortgage
cannot be transferred; and
7.1.3
The price obtained by Party B from transferring the collateral shall be directly
transferred into the designated account of Party A for the purpose of paying off
the principal of the debts under the Master Agreement and all relevant expenses
on schedule or in advance or shall be deposited in the guarantee money deposit
opened by Party B in Party A, and from the date of being deposited, shall be
deemed as being occupied by Party A and continuing to be collateral for the
debts of Party B (or the Debtor) under the Master Agreement, for which Party B
shall have no objection. Besides, Party B shall assist in going through relevant
procedures as required by Party A.
After
Party B transfers the total price obtained from transferring the collateral into
the designated account of Party A, Party A may assist Party B in going through
the procedures of cancelling the registration of the collateral and shall return
the certificate of ownership of the collateral to Party B.
7.2
Without obtaining the written consent from Party A, Party B shall not displace,
lease, remortgage or dispose of by any other improper means the collateral under
this Agreement.
Article
8 Bearing of Expenses
Party B
shall bear the expenses in connection with insurance, notarization,
registration, transportation and custody under this Agreement.
Article
9 Alteration or Dissolution of This
Agreement
After
this Agreement enters into effect, without obtaining consent from the other
party, no party shall alter or dissolute this Agreement, however, both parties
may conclude a written agreement to alter or dissolute this Agreement. This
Agreement shall remain valid until the said written agreement is
concluded.
Article 10 During the term of
validity of this Agreement, where Party B is divided or amalgamated, the
existing corporation(s) or the newly created corporation(s) shall bear or
separately bear the obligations under this Agreement; where Party B is declared
dissolution or bankruptcy, Party A is entitled to dispose of the collateral in
advance.
Article 11 Where any of the
following circumstances occurs, Party A may dispose of the collateral in
accordance with law:
11.1
Party B (or the Debtor) breaches of the Master Agreement;
11.2
Party B or any other mortgagor/xxxxxxx/guarantor breaches of the Master
Agreement; or Party B fails to fulfill any of its obligations under this
Agreement;
11.3
Party B provides guarantee for the loan/commercial draft acceptance/xxxx
discounted under the Master Agreement with movable property, however,
during the mortgage term, the market value of the collateral falls below —% of the principal
of the loan/payment for commercial draft acceptance or xxxx discounted under the
Master Agreement;
11.4
Party B is natural person and has no inheritor or devisee when he/she
dies;
11.5
Party B is natural person and his/her inheritor or devisee gives up inheritance
or devise and refuses to repay the principal and interest.
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11.6
Party B is a corporation or any other organization and closes business, or is
revoked or cancelled business license, or applies for or is applied for
bankruptcy or dissolution; or
11.7 Any
other circumstance endangering the realization of Party A’s claims under the
Master Agreement.
Article 12 Where Party B
provides guarantee for the loan/commercial draft acceptance/xxxx
discounted under the Master Agreement with movable property, and during
the mortgage term, the market value of the collateral falls below —% of the principal
of the loan/payment for commercial draft acceptance or xxxx discounted under the
Master Agreement, Party B shall, as required by Party A, provide guarantee
money, or increase/substitute with new collateral/pledge to make up the
difference.
Article 13 Liabilities for
Breach of This Agreement
13.1 In
case that Party B, in violation of Article 4 of this Agreement, fails to repair
or take good care of the collateral, leading to the depreciation of the
collateral, or in case that any act of Party B directly endangers and
depreciates the collateral, Party A is entitled to request Party B to
immediately stop the infringing act, provide other collateral(s) acceptable to
Party A, and dispose of the collateral in advance;
13.2 In
case that Party B, in violation of Article 7 of this Agreement, disposes of the
collateral without obtaining consent from Party A, such act of disposition is
invalid, and Party A is entitled to request Party B to immediately stop the
infringing act, provide other collateral(s) acceptable to Party A, and dispose
of the collateral in advance;
13.3 In
case that Party B conceals any of the facts that the collateral is co-owned, is
in dispute, has been sealed up, detained or leased, or is under any other the
right to mortgage or more preferential right than the right to mortgage
(including but without limitation to priority of payment for construction) or
that Party A enjoys no ownership of the collateral or has no right to dispose of
the collateral, Party A is entitled to request Party B to provide other
collateral(s)/pledges acceptable to Party A;
13.4
Where any of the circumstances stated in Articles 13.1, 13.2 and 13.3 occurs and
Party B fails to provide new guarantee as required by Party A, Party B shall pay
to Party A ——% of the
principal of the loan/payment for commercial draft acceptance or xxxx discounted
under the Master Agreement as liquidated damages and shall also compensate all
economic losses of Party A (if any).
Article
14 Independence of This Agreement
This
Agreement is independent and unconditional and its effect is not affected by the
Master Agreement or any agreement or document signed between and by Party B and
any unit or Party B’s fraud, recombination, wind-up, dissolution, liquidation or
bankruptcy. Even if there is any other mortgage guarantee or any pledge
guarantee or any guarantor for Party A’s claims and Party A waives the sequence
of the other mortgage guarantee or waives, alters or dissolves the other
mortgage guarantee or the pledge guarantee or alters or dissolves the guarantee
responsibility of the guarantor or Party A selects to request Party B to bear
the mortgage guarantee responsibility first, Party B shall still bear the
mortgage guarantee responsibility against Party A according to this Mortgage
Agreement.
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Where
Party A, according to the Master Agreement, stops granting the remaining part of
the loan or stops transacting discount or acceptance, or recovers the loan
granted or payment for xxxx discounted in advance, Party B’s guarantee
responsibility under this Agreement shall not be affected.
Article 15 Where Party B (or the
Debtor) fails to pay off the principal and interest of the debts and all
relevant expenses at the date of
maturity of the debts under the Master Agreement and Party A claims the
right to mortgage and the collateral is thus sealed up or detained by the
people’s court in accordance with the law, Party A is entitled to obtain all the
natural fruits and legal fruits (to the extent permitted by law) of the
collateral as of the date of sealing up or detaining.
Article
16 Realization of the Right to Mortgage
16.1
Where one or more of the circumstances stated in Article 11, Article 13.1 and
Article 13.2 of this Agreement occurs, Party A may realize the right to mortgage
by any of the following means:
16.1.1
Party A and Party B reach an agreement to convert the collateral into money
directly or auction or sell of the collateral; where both parties fail to reach
an agreement within fifteen days as of the date when the said one or more
circumstances occurs, Party A is entitled to request the people’s court to
auction or sell off the collateral;
16.1.2
Disposing of the collateral according to legal procedures as well as the method
of settlement of dispute stipulated in the Master Agreement; or
16.1.3
Where both parties have gone through the procedures of notarization for this
Agreement which effects the compulsory enforcement, Party A may directly apply
to the governing people’s court for compulsory enforcement.
16.2
Party A has the right to receive priority repayment from the money obtained from
disposing of the collateral by any of the above means. Where the money is more
than the principal and interest of the debts and all other expenses under the
Master Agreement, the balance is vested in Party B; where the money is less than
the principal and interest of the debts and all other expenses under the Master
Agreement, Party A is entitled to claim the difference against Party B
otherwise.
Article
17 Extinguishment of the Right to Mortgage
Where, at or prior to the date of
maturity of the debts under the Master Agreement, the loan/principal and
interest of payment for xxxx discounted and relevant expenses provided by Party
A to Party B (or the Debtor) under the Master Agreement are paid off, or the
payment for commercial draft acceptance provided by Party A under the Master Agreement is mature
and paid off, the right to mortgage extinguishes. Party A shall return the
certificate of ownership of the collateral and insurance policy to Party B.
Party A may, as required by Party B, assist Party B in going through the
procedures of cancelling the registration of the collateral.
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Article
18 Governing Law and Dispute Resolution
18.1 The
conclusion and interpretation of this Agreement and settlement of any dispute in
connection with this Agreement shall be governed by the law of the People’s
Republic of China.
18.2
Where any dispute arises out of the performance of this Agreement, both parties
shall try to settle through amicable negotiation or mediation; where they fail
to settle through amicable negotiation or mediation, both parties agree to
settle according to the stipulation of the Master Agreement concerning
settlement of dispute.
Article
19 Notice
Each
party shall send all notices in connection with this Agreement to the other
party in writing.
Where a
special person delivers the notice, the notice shall be deemed as service at the
time of receipt by the recipient (where the recipient refuses to receive, the
date of refusal shall be deemed as the date of service); where the notice is
delivered by post, seven days after delivery shall be deemed as the date of
service; where the notice is delivered by fax, the time of receiving the fax by
the fax system of the recipient shall be deemed as the time of
service.
Party A’s
address: Xx 0 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx, Xxxxx
Party B’s
address: Ever-Glory Commercial Center, No 509 Chengxin Road, Jiangning
Development Xxxx, Xxxxxxx, Xxxxxxx, Xxxxx 000000
Where
either party alters its address, it shall notify the other party in time,
otherwise, it shall bear all possible losses.
Article
20 Defintion
Unless
otherwise explicitly stated, the definitions in this Agreement shall have the
same meaning as those in the Master Agreement.
Article 21 Effectiveness of This
Agreement
This
Agreement shall enter into effect as of the date when legal representatives
(principals) or authorized proxies of both parties sign/seal and affix official
seal/special seal for contract to this Agreement (if Party B is natural person,
then as of the date when Party A’s signatory signs/seals and affixes official
seal/special seal for contract to this Agreement and Party B signs this
Agreement) and shall cease to be in force as of the date when the principal and
interest of the debts and all relevant expenses under the Master Agreement are
paid off.
Article
22 Miscellaneous
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21.1
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reserved
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21.2
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reserved
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21.3
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reserved
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Article
23 Supplementary Provisions
This
Agreement is in triplicate, each with the same legal effect. Party A,, Party B
and the Nanjing
Municipal Bureau of Land Resources and Housing Management
shall each hold one copy.
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(no text
below)
(This page is preserved for
signature.)
Party A:
Special Seal for Contract of China Merchants Bank Nanjing Branch
(seal)
Responsible
Person or Authorized Representative: /s/Xxx Xxxxxxx
(seal)
If the
mortgagor is a corporation or any other organization,
Party
B: (seal)
Legal
representative/principal or authorized proxy (signature or seal):
If the
mortgagor is a natural person,
Party B
(signature):/s/ Xxxx
Xxxxx
Dated:
Nov. 19, 2008
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