Guaranty Contract of Maximum Amount
Guaranty
Contract of Maximum Amount
No.
81905200700000125
Creditor:
Shenzhen
Eastern Branch, Agricultural Bank of China
Guarantor:
BAK
International Limited, Li Xiangqian
Whereas:
Shenzhen
BAK Battery Co., Ltd. (hereinafter referred to as “Obligor”) and the Creditor
have entered into a serial of Loan Agreements (hereinafter referred to as “Loan
Agreements”) within the period and under the maximum amount as stipulated in
Clause I of this Contract. The Guarantor undertakes to provide guaranty for
the
indebtedness of the Obligor under the Loan Agreements. In accordance with
relevant PRC laws and regulations and through friendly negotiation, the Parties
agree to enter into this Contract:
I.
Indebtedness to be secured and maximum amount
1. |
The
Guarantor undertakes to provide guaranty for the indebtedness owed
by the
Obligor to the Creditor derived from the agreed operations from June
8,
2007 to May 23, 2008. The balance of the aforesaid indebtedness shall
not
exceed RMB Eight Hundred Million yuan and indebtedness in foreign
currency
shall be calculated according to the selling price on the date of
the
operation. The mature date of the aforesaid indebtedness shall not
exceed
May 23, 2009. The abovementioned operations include: Loan in RMB/Foreign
Currency; Issuance of L/C without or with reduced of deposit; exporter’s
packing loan; discount of bank/commercial draft; inward documentary
xxxx;
outward documentary xxxx; bank guarantee; acceptance of bank
draft.
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2. |
The
Obligor is entitled to apply for revolving utilization of the
abovementioned bank credit facilities within the term and under the
maximum amount as stipulated in this Contract. The beginning date,
mature
date, interest rate and amount of each indebtedness shall be determined
by
the loan certificate or relevant credit certificate under the Loan
Agreements.
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3. |
The
Parties do not need to enter into individual guaranty arrangement
for each
of the bank loan or bank facility granted by the Creditor within
the term
and under the maximum amount as stipulated in this Contract.
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4. |
The
operations may be carried out in any currency and the Guarantor’s guaranty
is for the indebtedness in the original currency.
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II.
Scope of Guaranty
The
guaranty under this Contract shall cover all of the loan principal, interest,
penalty interest, breach of contract compensation and all the expenses such
as
litigation cost and lawyer’s fee etc. which is incurred to the Creditor in
realizing its creditor’s right.
The
Guarantor shall also bear joint and several liability for the indebtedness
of
the Obligor which exceeds the agreed maximum amount due to fluctuation of
exchange rate of foreign currency.
III.
Method of Guaranty
The
guaranty under this Contract is guaranty with joint and several liability.
And
in case that there are more than one guarantor under this Contract, each
guarantor shall all bear joint and several liability for the indebtedness of
the
Obligor.
IV.
Guaranty Period
1. |
The
guaranty period under this Contract shall be two years from the expiry
date for the indebtedness of the Obligor under the Loan
Agreements.
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2. |
For
acceptance of bank draft, issuance of L/C without or with reduced
deposit
and bank guarantee, the guaranty period shall be two years
from the date
that the Creditor bears the obligations of the Obligor.
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3. |
For
discount of commercial draft, the guaranty period shall be two
years from
the expiry date of the commercial draft.
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4. |
In
case that the Obligor and Creditor reach agreement to extend
the term of
the indebtedness of the Obligor, the Guarantor shall continue
to bear the
obligation of guaranty and the guaranty period shall two years
from the
expiry of the extended term of the indebtedness.
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5. |
Upon
occurrence of certain event as stipulated by law or the Loan
Agreement,
the Creditor may demand the indebtedness of the Obligor become
mature
before the expiry of the original term. And under such circumstance
the
guaranty period shall be 2 years from the mature date of the
indebtedness
as demanded by the Creditor in accordance with law or the Loan
Agreement.
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V.
The Guarantor undertakes that:
1. |
he/she
shall provide truthful, comprehensive and effective financial reports
and
other relevant materials and information to the
Creditor;
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2.
|
he/she
shall perform the obligation of guaranty voluntarily in case of default
by
the Obligor;
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3.
|
in
case that the Guarantor fails to perform his/her obligation of guaranty
in
accordance with this Contract, the Creditor is entitled to transfer
directly the relevant amount of deposit from any account of the Guarantor
to the Creditor’s account.
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4.
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he/she
shall notify the Creditor in writing within 5 days upon the occurrence
of
the following events:
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(1)
|
The
shareholder, senior management, articles of association or corporate
governance structure of the Guarantor has been
altered;
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(2)
|
The
Guarantor ceases its business operation or its business license has
been
withdrawn or cancelled;
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(3)
|
The
Guarantor’s financial status deteriorates or its business operation
encounters serious difficulty or it is involved in major litigation
or
arbitration;
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(4)
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The
Guarantor changes its name, address, legal representative, contact
information etc.
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(5)
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Any
other events of the Guarantor that may make the Creditor unable to
execute
its creditor’s right.
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5.
|
The
Guarantor shall give 15-day prior written notification to the Creditor
and
obtain the Creditor’s consent before it takes any of the following
actions:
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(1)
|
The
Guarantor changes its capital structure or management system, which
includes (without limitation) contractual management, lease, share
structure transformation, joint venture, merger, acquisition, division,
application for cease of business operation, application for dissolution,
application for bankruptcy etc.
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(2)
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The
Guarantor provide guaranty for any other third party or establish
mortgage
or pledge on its major assets for the benefit of any other third
party
which may affect its performance of obligation of guaranty under
this
Contract.
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6.
|
In
case that the Obligor provides collateral to secure its indebtedness,
the
Guarantor undertakes that he/she shall perform the obligation of
guaranty
prior to the execution of the
collateral.
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7.
|
In
case that the Obligor and Guarantor breach their obligations under
the
Loan Agreement or this Contract, the Creditor is entitled to declare
that
the indebtedness of the Obligor all become mature and demand the
Guarantor
to perform his/her obligation of guaranty of joint and several liability
in accordance with this Contract.
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VI.
Breach of Contract
The
Obligor and Guarantor shall perform their obligations in accordance with this
Contract after it becomes effective. In case of breach of contract by any party,
the breaching party shall bear the relevant liabilities and compensate the
loss
incurred to the other party by its breach of contract.
VII.
Dispute Settlement
In
case
of any dispute deriving from the performance of this Contract, such dispute
shall be settled by consultation between the parties or be submitted to the
People’s Court located in the address of the Creditor.
During
the course of litigation, the parties shall continue to perform this Contract
except for the provisions at issue.
VIII.
Miscellaneous
1.
|
The
Guarantor shall find out on his/her own initiative the business status
of
the Obligor and occurrence and performance of the operations under
this
Contract. The Loan Agreement, loan certificate or relevant credit
certificate for the operations under this Contract will not sent
to the
Guarantor separately.
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2.
|
This
Contract is to secure the indebtedness under the Comprehensive Credit
Facility Agreement of Maximum Amount (reference no. 81001200713170001)
entered into by the Obligor and
Creditor.
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IX.
Effectiveness
This
Contract shall become effective once it is signed or stamped by both parties.
X.
This
Contract has five originals. The Guarantor shall retain one original and the
Creditor shall retain three originals. Each original shall have the same legal
effect.
XI.
Attention
The
Creditor has drawn the attention of the Guarantor to understand each clause
of
this Contract clearly and comprehensively and has explained the relevant clauses
upon the request of the Guarantor. Both parties’ construction of this Contract
is the same.
Creditor
(company chop): ______________________
Authorized
Representative (signature): ___________
Guarantor
(signature): ___________________________
Date
of
Execution: June 8, 2007
Venue
of
Execution: Shatoujiao, Shenzhen