SHANGHAI PUDONG DEVELOPMENT BANK Contract of Guarantee of Maximum Amount
No.
ZB5201200900000013
SHANGHAI
PUDONG DEVELOPMENT BANK
Guarantor:
Zhejiang Changxing
Chisen XingGuangYuan Co., Ltd.
Lender:
Shanghai Pudong
Development Bank Huzhou Sub-branch
Whereas:
In order
to ensure that the Borrower would fulfill all of its lender’s rights under the
master contract (refer to Article 7 herein) in time and guarantees the
realization of lender’s rights by the Lender, the Guarantor is willing to
undertake guarantee liabilities against all debts of the Borrower under the
master contract.
In order
to clarify the respective rights and lender’s rights of both parties, through
negotiation, the Guarantor and the Borrower hereby conclude this Contract and
promise to abide by it.
Article
1 Guaranteed Principal Xxxxxx’s rights
The
principal lender’s rights guaranteed under this Contract are shown in Article 7
herein.
Article
2 Liabilities of
Guarantee
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1.
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Scope
of guarantee
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In
addition to the principal lender’s rights, the guarantee herein also applies to
the interest thereon (including interest, penalty interest and compound
interest), penalty, liquidated damages, handling charges as well as other
expenses arising on the execution or performance of this Contract, the expenses
accrued to the Lender for realizing guarantee rights and lender’s rights
(including but not limited to disposing expenses, taxes, legal costs, auction
expenses, attorney fee and travel expenses), and the guarantee money that fails
to be supplemented as required by the Lender after the master contract enters
into effect.
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2.
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Method
of guarantee
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The
guarantee herein is joint and several.
The
Guarantor acknowledges that where the Borrower fails to perform its debt under
the master contract, no matter whether the Lender owns any other guarantee
(including but not limited to guarantee, mortgage and pledge) against the
lender’s rights under the master contract, the Lender is entitled to require the
Guarantor to undertake its guarantee liability within the said scope of
guarantee, with no lender’s right to require any other guarantor to perform
their guarantee liabilities first.
The
Guarantor hereby waives the defense of first enforcing the security for things
provided by the Borrower.
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3.
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Period
of guarantee
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The
period of guarantee shall be calculated separately for each lender’s rights of
the Lender against the Borrower. The period of guarantee for each lender’s right
shall be from the date of expiration of each lender’s rights till two years
after the date of expiration of the lender’s right.
The
Guarantor shall bear guarantee liability respectively for repayment lender’s
rights in installments under each contract during period of occurrence of the
lender’s rights. The period of guarantee for each lender’s right shall be from
the date of expiration of each debt till two years after the date of expiration
of the last installment.
“Due” and
“expiration” under this Contract includes the circumstance under which the
Lender announces mature ahead of time.
Where the
principal lender’s rights announced mature ahead of time are all or partial
lender’s rights during the period of occurrence of lender’s rights, the date of
maturity announced shall be the date of maturity of the said all or partial
lender’s rights and the period of occurrence of lender’s rights is mature at the
same time.
Where the
Lender and the Borrower conclude a renewal agreement to prolong the period of
debt, the period of guarantee shall remain till two years after the period of
debt under the renewal agreement. Renewal need not be consented by the
Guarantor, however, the Guarantor shall still undertake joint and several
guarantee liabilities.
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4.
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Amendment
of master contract
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Neither
forbearance or delay in repayment granted by the Lender to the Borrower nor any
amendment, change or substitution of any terms of the master contract will in
any way affect the rights and interests of the Lender under this Contract. Any
of the said circumstances will be deemed as having been consented by the
Guarantor and the guarantee liability of the Guarantor will not be
relieved.
Where the
Lender issuance letter of credit, bank guarantee or standby letter of credit for
the benefit of the Borrower in accordance with the master contract, any
amendment to the said letter of credit, bank guarantee or standby letter of
credit made by and between the Lender and the Borrower need neither be approved
by the Guarantor nor be otherwise informed to the Guarantor. Such amendment will
be deemed as having been consented by the Guarantor and the guarantee liability
of the Guarantor will not be relieved.
Article
3 Statements and Guarantees
The
Guarantor hereby makes the following statements and guarantees to the
Lender:
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(1)
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The
Guarantor is an independent legal entity, has all necessary legal
capacities and is able to fulfill lender’s rights and undertake
liabilities under this Contract on its
own.
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(2)
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The
Guarantor is entitled to execute this Contract and completes all
authorization and approvals necessary for executing this Contract and
fulfilling its lender’s rights under this Contract. All the terms of this
Contract are the authenticity declaration of will of the Guarantor and
binding upon the Guarantor.
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(3)
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The
Guarantor promises to comply with laws. The execution and performance of
this Contract is neither inconsistent with laws (including laws,
regulations, rules, local regulations and judicial interpretation),
articles of association, documents of relevant organs, judgments and
rulings that the Guarantor must comply with nor in conflict with any
contract or agreement executed by the Guarantor or any other lender’s
right undertaken by the Guarantor.
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(4)
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The
Guarantor guarantees that all of its financial statements (if any) comply
with the laws of the People’s Republic of China (excluding Hong Kong,
Macao and Taiwan), are authenticity and complete, and fairly represent the
financial status of the Guarantor, and that all information and documents
involved in this Contract are authenticity, effective, accurate and
complete with no omission.
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(5)
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The
Guarantor promises to complete filing, registration or other procedures
necessary for the effectiveness and performance of this Contract and pay
relevant taxes and expenses.
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(6)
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Since
the issuance of the latest audited financial statement, no substantial
adverse change has happened to the operation status or financial status of
the Guarantor.
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(7)
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The
Guarantor has disclosed to the Lender facts and status that the Guarantor
knows or should know and are necessary for the Lender to determine whether
to grant financing under the master
contract.
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(8)
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On
the date of the execution of this Contract and during the performance of
this Contract, the Guarantor has not defaulted and will not default any
wage, medical or disability allowance, pension or
compensation.
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(9)
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The
Guarantor suffers from no situation or fact which causes or may cause
substantial adverse influence to the ability of the Guarantor to fulfill
contract.
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Article
4 Covenants
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1.
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Commitment
of the Guarantor
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(1)
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The
Guarantor promises that without obtaining the written consent of the
Lender, the Guarantor will not engage in any of the following
activities:
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o Sell, gift,
lease, lend, transfer, mortgage or otherwise dispose of all or substantial part
of its major assets;
o Make substantial
change in its operating system or company structure, including but not limited
to contracting, leasing, joint venture, corporate restructuring, joint stock
restructuring, equity transfer, consolidation (merger), joint investment (or
cooperation), division, establishment of subsidiary, transfer of title and
decrease in capital;
o Amend the
Articles of Association of the company or change the scope of business or
principal business;
o Provide
guarantee for any third party, which causes substantial adverse influence to its
financial status or ability of fulfilling the lender’s rights under this
Contract;
o Apply for
reconstruction, bankruptcy or dissolution; or
o Execute any
contract/agreement or undertake any lender’s right which is substantially
adverse to the ability of the Guarantor in fulfilling the lender’s rights under
this Contract.
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(2)
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The
Guarantor promises that when any of the following events occurs, the
Guarantor will, on the date of the occurrence, inform the Lender of such
event, and within five banking days as of the date of the occurrence, send
the original of the said notice (if the Guarantor is a natural person, the
notice shall be signed; otherwise, it shall be sealed) to the
Lender:
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o The occurrence
of any event causes any of the statements and warranties of the Guarantor under
this Contract to become inveracity or inaccurate;
o The Guarantor or
its controlling shareholder, actual controller or connected person is involved
in lawsuit or arbitration, or any of their assets are seized, closed down,
frozen or enforced compulsorily or suffers from any other measure with
equivalent effect, or its legal representative, director, supervisor or officer
is involved in lawsuit, arbitration or any other compulsory
measure;
o Any change
happens to the legal representative or authorized representative, principal,
chief financial officer, address, name or office of the Guarantor, or the
Guarantor changes its domicile, habitual residence, working unit or name or
leaves for another city for a long time or the Guarantor’s income reduces
substantially; or
o The Guarantor is
revoked by the competent authority or required to restructure or bankrupt by any
other lender.
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(3)
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The
Guarantor promises that during the execution and performance of this
Contract, the Guarantor will provide relevant financial information or
income certificate from time to time upon the requirement of the
Lender.
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(4)
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Where
the Lender issues letter of credit, bank guarantee or standby letter of
credit for the benefit of the Borrower in accordance with the master
contract, the Guarantor promises that when the Borrower fails to
supplement (or supplement in advance) the guarantee money in full
according to relevant requirements, the Guarantor shall bear joint and
several liability to supplement the guarantee money. The supplement of
guarantee money by the Guarantor shall not relieve the Guarantor of the
guarantee liability of the Guarantor under this Contract. Any losses
(including interest losses) occurred to the Guarantor when it supplements
the guarantee money shall be borne by the Guarantor
itself.
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(5)
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The
Guarantor confirms that before the Borrower pays off all the debts under
the master contract to the Lender, the Guarantor may not exercise recourse
or any related right against the
Borrower.
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(6)
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Where
the Borrower repays all or part of its debts in advance or the Borrower
only pays debts to the Lender, but such repayment in advance or solely is
revoked, the Guarantor shall continue to undertake joint and several
liabilities.
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2.
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Agreement
on deduction
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(1)
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Where
the Guarantor fails to pay any debts due or shall supplement the guarantee
money fully, the Lender may directly deduct from any accounts of the
Guarantor in Shanghai Pudong Development
Bank.
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(2)
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Unless
otherwise provided by relevant authorities, the money deducted shall be
used to repay debts according to the following order of preference: (a)
due expenses payable by the Guarantor and the Borrower; (b) interest due;
and (c) principal due. Where several lender’s rights are due and unpaid,
the order of preference shall be determined by the
Lender.
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(3)
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Where
the currency of money deducted is not the currency of repayment, the
Lender is entitled to settle/purchase exchange according to the exchange
rate determined by itself. The risks in connection with exchange rate
shall be undertaken by the
Guarantor.
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3.
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Certificate
of lender’s rights
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The valid
credence of the lender’s rights guaranteed by the Guarantor is the accounting
document issued and recorded by the Lender according to its own
rules.
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4.
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Notices
and service
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(1)
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Any
notice under this Contract shall be sent to the address mentioned in the
page of signature until and unless such address is changed through written
notice. Any notice sent to the said address will be deemed as received on
the following date: if by letter, the seventh banking day after delivery;
if by hand, the date of receipt; if by fax or email, the date when the fax
or email is delivered. However, all notices, requirements or communication
sent or delivered to the Lender will be deemed as received when such
notices, requirements or communication are received by the Lender. All
notices or requirements sent to the Lender by fax or email must be
confirmed by delivering the original (if the Guarantor is a natural
person, it shall sign the original, otherwise, it shall be sealed) to the
Lender by hand or postal.
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(2)
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The
Guarantor agrees that any summons or notice will be deemed as received as
long as they are delivered to the domicile stated in the page of signature
herein. No change of such domicile is valid unless the Guarantor informs
the Lender in writing in advance.
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5.
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Effectiveness,
amendment and termination
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(1)
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This
Contract enters into effect after being sealed by the Guarantor and the
Lender and signed or sealed by the legal representative/principal or
authorized representative of both parties (if the Guarantor is a natural
person, this Contract shall be only signed by the natural person) and
terminates when all the lender’s rights guaranteed under this Contract are
settled.
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(2)
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This
Contract is independent of the master contract. Its validity is not
affected even if the master contract is invalid or
revoked.
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(3)
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After
this Contract enters into effect, no party is allowed to amend or
terminate this Contract in advance without the consent of the other party.
Both parties may conclude written agreement through negotiation to amend
or terminate this Agreement.
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Article
5 Events of Breach and Disposal
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1.
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Events
of breach
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Where any
of the following circumstances occurs, the Guarantor constitutes breach of this
Contract:
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(1)
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Any
statement, acknowledgement or guarantee of the Guarantor under this
Contract or any notice, authorization, approval, consent, certificate or
any other document made under this Contract or in connection with this
Contract is inaccurate or misleading, or confirmed to be inaccurate or
misleading, or verified to be invalid or have been
revoked;
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(2)
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The
Guarantor breaches of any item under Article 4
herein;
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(3)
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The
Guarantor winds up, stops production, is under restructuring, liquidation,
receivership or trusteeship, is dissolved or bankrupt, or has its business
license revoked or cancelled;
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(4)
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The
Guarantor is dead or declared dead;
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(5)
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The
Guarantor transfers or tries to transfer assets by excuse of change of
marital relationship;
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(6)
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The
financial status of the Guarantor worsens, or its operation is in great
difficulty, or any event or circumstance adverse to its operation,
financial status or repayment ability
occurs;
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(7)
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The
Guarantor or its controlling shareholder, actual controller or connected
person is involved in major lawsuit or arbitration, or any of their major
assets are seized, closed down, frozen or enforced compulsorily or suffers
from any other measure with equivalent effect, or its legal
representative, director, supervisor or officer is involved in lawsuit,
arbitration or any other compulsory measure so that the repayment ability
of the Guarantor is affected adversely;
or
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(8)
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The
Guarantor breaches of this Contract in any other way so that the normal
performance of this Contract is affected, or engages in any other activity
damaging the legitimate interest of the
Lender.
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2.
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Disposal
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Where any
above event occurs, the Lender is entitled to declare the maturity of the period
of occurrence of principal lender’s right and/or lender’s right, require the
Guarantor to undertake guarantee liability or the Borrower to supplement the
guarantee money, and ask the Guarantor to pay the penalty (the method for
calculating penalty is shown in Article 7 herein). Where the penalty is
insufficient to make up the losses of the Lender, the Guarantor shall compensate
the total losses suffered by the Lender.
Article
6 Other Provisions
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1.
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Governing
law
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This
Contract is governed by the laws of the People’s Republic of China (excluding
Hong Kong, Macao and Taiwan).
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2.
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Settlement
of dispute
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Any
dispute in connection with this Contract shall be settled through amicable
negotiation. Where negotiation fails, the dispute is subject to the
non-exclusive jurisdiction of the people’s court in the place where the domicile
of the Lender is. During the period of dispute, both parties shall continue to
perform terms not in dispute.
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3.
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Miscellaneous
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(1)
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Where
there is any inadequacy herein, both parties may negotiate to supplement
in Article 7 herein or otherwise conclude written agreement as appendix to
this Contract. Any appendix to this Contract (refer to Article 7 of this
Contract) is an integral part of this Contract and has the same legal
effect with this Contract.
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(2)
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Unless
otherwise stated in this Contract, the terms and expressions under this
Contract have the same meaning with those under the master
contract.
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Article
7 Essential Terms
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1.
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The
master contract guaranteed by this Contract [corresponding to the Whereas
clause herein]
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(1)
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The
master contract is concluded
by the Borrower and the Lender on or a
series of contracts from April 14, 2009 to April 14, 2012. The Lender
under this Contract is Shanghai Pudong
Development Bank Huzhou Sub-branch under the master
contract.
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(2)
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The
Borrower under the master contract is Changxing Chisen
Electric Co., Ltd. whose domicile is Changxing Economic
Development Zone.
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2.
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The
principal lender’s rights guaranteed by this Contract [corresponding to
Article 1 herein]
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The
principal lender’s rights guaranteed under this Contract are one or more kinds
of credit extensions provided by the Lender to the Borrower from April 14, 2009
to April 14, 2012 (“the period of occurrence of lender’s rights), including but
not limited to various kinds of loan and contingent liabilities formed due to
the provision of bank acceptance. The maximum balance of the principal lender’s
rights during the period of occurrence of lender’s rights shall be RMB
26,000,000.00 (or equivalent foreign currency). Where the principal lender’s
right is expressed in foreign currency, it shall be converted according to the
exchange rate determined by the Lender.
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3.
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Settlement
for breach [corresponding to Paragraph 2 of Article 5
herein]
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Penalty:
Equivalent to 1% of the principal lender’s rights.
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4.
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The
appendices to this Contract include: [corresponding to Item 1 of Paragraph
3 of Article 6 herein]
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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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5.
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Other
matters agreed upon by both parties [corresponding to Item 1 of Paragraph
3 of Article 6 herein]
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_______________________________________________________________________________________
_______________________________________________________________________________________
_______________________________________________________________________________________
_______________________________________________________________________________________
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6.
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This
Contract is in duplicate. The Guarantor and the Lender each hold one copy.
Each copy has the same legal
effect.
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(No text
below)
(This
page is for signature with no text)
This
Contract is signed by the following Guarantor and Xxxxxx on April 14, 2009. The
Guarantor confirms that upon the signature of this Contract, both parties have
discussed all the terms of this Contract, have no doubt about any term of this
Contract and have accurately comprehended the legal meaning of rights and
lender’s rights of both parties and limitation or exclusion of
liability.
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The
Guarantor:
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The
Lender:
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Zhejiang
Changxing Chisen
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Special
Seal for Corporate Banking of Shanghai
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Xingguangyuan
Co., Ltd. (seal)
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Pudong
Development Bank Huzhou Sub-branch (seal)
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| /s/ Authorized Person | /s/ Authorized Person |
Legal or
authorized representative (sign or seal) Legal or authorized representative
(sign or seal)
(The
above applies to legal person)
The
Guarantor (sign)
Type and
Number of Valid Identity Certificate
_________________________
(The
above applies to natural person)
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Domicile:
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Principal
Place of Business:
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Post
Code:
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Post
Code:
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Tel:
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Tel:
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Fax:
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Fax:
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Email:
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Email:
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Contact:
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Contact:
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Format of
Letter of Commitment That the Spouse Agrees to Dispose of Common Properties
(this format applies when the Guarantor is a natural person)
Appendix:
Letter
of Commitment on Consent to Enforce Common Properties
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No.
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To
Shanghai Pudong Development Bank Branch/Sub-branch,
(I.D.
card number:
) is the legal spouse of the Guarantor
. For the purpose of the execution and performance of the Contract of
Guarantee of Maximum Amount (No.
), I hereby make the following commitment:
I’ve
fully informed of the execution of the said Contract of Guarantee
by , agree with the execution and performance of
the Contract, and agree that when the Guarantor undertakes guarantee liabilities
under the Contract, the Lender is entitled to dispose of our common
properties.
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Promisor:
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Dated:
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Appendices:
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1.
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Copy
of I.D. card
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2.
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Copy
of marriage certificate
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