EXHIBIT 10.13
[ENGLISH TRANSLATION]
No.: Xxxxx Xxx Gong Si Xxx Xxx Zi 2005 No. 2
MAXIMUM AMOUNT GUARANTEE CONTRACT
================================================================================
CHINA EVERBRIGHT BANK
TABLE OF CONTENTS
CHAPTER I GENERAL PROVISIONS.......................................... 2
CHAPTER II DEFINITIONS................................................. 2
CHAPTER III TYPE AND AMOUNT OF THE PRINCIPAL CLAIM GUARANTEED........... 2
CHAPTER IV TYPE OF GUARANTEE........................................... 3
CHAPTER V SCOPE OF GUARANTEE.......................................... 3
CHAPTER VI TIME LIMIT FOR THE GRANTEE TO PERFORM ITS DEBT.............. 3
CHAPTER VII GUARANTEE PERIOD............................................ 4
CHAPTER VIII DOCUMENTS TO BE SUBMITTED BY THE GRANTEE.................... 4
CHAPTER IX REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR............. 5
CHAPTER X GUARANTOR'S COVENANTS....................................... 6
CHAPTER XI NATURE AND EFFECTIVENESS OF GUARANTEE....................... 8
CHAPTER XII EVENTS OF DEFAULT........................................... 8
CHAPTER XIII OTHER AGREEMENTS............................................ 9
CHAPTER XIV GOVERNING LAW AND DISPUTE RESOLUTION........................ 10
CHAPTER XV EFFECTIVENESS, DISCHARGE OF AND AMENDMENT TO CONTRACT....... 10
CHAPTER XVI EXHIBITS.................................................... 11
CHAPTER XVII MISCELLANOUS................................................ 11
MAXIMUM AMOUNT GUARANTEE CONTRACT
Guarantor: Baoding Tianwei Baobian Electric Co., Ltd.
(the "Guarantor")
Address: 00 Xxxxxxx Xxxxxx, Xxxxxxx High-tech Industrial
Development Zone
Zip Code: 050110
Legal Representative: Ding Qiang
Attorney-in-fact: Jing Chongyou
Handled by: Xxx Xxxxxx
Telephone: ___________
Fax: ___________
Bank: ___________
Bank Account: ___________
Grantor: China Everbright Bank, Shijiazhuang Sub-branch
(the "Grantor")
Address: 00, Xxxxxxx Xxxxx Xxxx, Xxxxxxxxxxxx
Zip Code: 050011
Legal Representative/
Responsible Person: Jiang Fangming
Attorney-in-fact: ___________
Handled by: Zhang Weibing
Telephone: 0000-00000000
Fax: 0311-86065604
CHAPTER I
GENERAL PROVISIONS
In order to ensure the performance of the Comprehensive Credit
Agreement (No. Shijiazhuang Sub-branch, China Everbright Bank) entered into by
Baoding Tianwei Yingli New Energy Resources Co., Ltd. (the "Grantee") and the
Grantor on September 26, 2005 ("Comprehensive Credit Agreement"), the Guarantee
is willing to provide a maximum amount guarantee with joint and several
liability to the Grantor for purposes of guaranteeing the Grantee's full
satisfaction of all of its indebtedness incurred under the Comprehensive Credit
Agreement when due.
The Grantor has agreed to accept the guarantee provided by the
Guarantor after its review. Based on the principle of equality and mutual
benefits, in accordance with the relevant laws and regulations of the People's
Republic of China (the "PRC"), this contract (this "Contract") is hereby
formulated to provide for the rights and obligations of the Guarantor and
Grantor.
CHAPTER II
DEFINITIONS
Article 1 As used in this Agreement, the following terms have the
meanings specified below, unless otherwise provided in the context or otherwise
interpreted as required hereunder:
"Master Contract" shall mean each of the Comprehensive Credit
Agreement between the Guarantor and Grantor and the credit business contract or
agreement entered into by the Grantor and Grantee with respect to each specific
credit business pursuant to the Comprehensive Credit Agreement.
"Credit Business Contract or Agreement " shall mean each credit
business contract or agreement entered into by the Grantor and Grantee with
respect to any on or off balance sheet credit extended by the Grantor to the
Grantee pursuant to the Comprehensive Credit Agreement, including, but not
limited to, loan, trade finance, discount, acceptance, letter of credit,
performance bond and guarantee in RMB and foreign currency (collectively,
"Specific Credit Business").
CHAPTER III
TYPE AND AMOUNT OF THE PRINCIPAL CLAIM GUARANTEED
Article 2 The principal claim guaranteed by the Guarantor shall be all
2
creditor's rights incurred under all Credit Business Contracts or Agreements
entered into by the Grantor and Grantee pursuant to the Comprehensive Credit
Agreement, and the maximum amount of the principal of the principal claim
guaranteed shall be the comprehensive credit line as agreed under the
Comprehensive Credit Agreement, i.e. Renminbi Forty Million Yuan.
CHAPTER IV
FORM OF GUARANTEE
Article 3 The guarantee hereunder shall be a joint and several
liability guarantee.
CHAPTER V
SCOPE OF GUARANTEE
Article 4 The scope of guarantee hereunder shall cover: all principal
and interest of the principal claim, compound interest, commission, liquidated
damages, damages and fees for realization of creditors' rights (including
litigation fees, attorney's fees, notarization fees and enforcement fees) as
well as all other fees due that shall be repaid or paid by the Grantee to the
Grantor under the Master Contract (collectively, "Guaranteed Indebtedness").
Article 5 The certificate of the Grantor that sets forth any
Guaranteed Indebtedness or any amount payable hereunder shall be conclusive
evidence of the creditor-debtor relationship of the parties binding upon the
Guarantor.
CHAPTER VI
TIME LIMIT FOR THE GRANTEE TO PERFORM ITS DEBT
Article 6 The time limit for the Guarantee to perform its debt shall
be the expiration date of the performance period during which the Grantee shall
have repaid the debts or made the payments as agreed in each Credit Business
Contract or Agreement under the Comprehensive Credit Agreement, or any date on
which any Credit Business Contract or Agreement becomes due prior to maturity
upon the occurrence of any event as provided under law or any event as agreed.
3
CHAPTER VII
GUARANTEE PERIOD
Article 7 The guarantee period for each Specific Credit Business under
the credit agreement shall be calculated separately, which shall be two (2)
years from the expiration date of the Grantee's debt performance period as
agreed under the Credit Business Contract or Agreement (or the premature date in
the event that the Credit Business Contract or Agreement becomes due prior to
maturity upon the occurrence of any event as provided under law or any event as
agreed).
CHAPTER VIII
DOCUMENTS TO BE SUBMITTED BY THE GUARANTOR
Article 8 The Guarantor shall ensure that the Grantor shall have
received the following documents furnished by the Guarantor prior to the initial
use of the Specific Credit Business provided by the Grantor under the Master
Contract by the Grantee:
1. A original copy of this Contract effectively signed by the legal
representative or attorney-in-fact of the Guarantor and sealed
with the corporate seal;
2. Articles of Association of the Guarantor and the most recent
inspected Enterprise Legal Person Business License or
Institutional Legal Person Certificate showing that it has passed
the annual inspection, or any other document certifying that the
Guarantor is validly existing;
3. Financial statements or other materials certifying the
creditworthiness of the Guarantor;
4. Resolutions of the Board of Directors or any other internal
organization of the Guarantor that has the power to decide on the
matters of this guarantee approving the provision of this
guarantee by the Guarantor pursuant to this Contract;
5. Any other document as reasonably requested by the Grantor to be
provided by the Guarantor.
If any of the documents described above is provided in duplicate copy,
the duplicate copy shall be sealed by the Guarantor with corporate
seal confirming that such copy is true, complete and valid.
4
CHAPTER IX
REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
Article 9 The Guarantor hereby represents and warrants to the Grantor
as follows:
1. The Guarantor is a legal person entity/other organization
incorporated and validly existing under the laws of the PRC with
independent capacity for civil acts, and has all power,
authorization and authority to bear civil liability to the extent
of all of its assets and to carry out its business activities.
2. The Guarantor has full power, authorization and authority to
execute this Contract and consummate the transactions
contemplated hereby, and has taken or obtained all acts of a
legal person and other actions and consents necessary for the
execution and performance of this Contract. This Contract has
been duly signed and sealed with corporate seal by the legal
representative or attorney-in-fact of the Guarantor.
3. The Guarantor has carefully read and fully understood the content
of this Contract and the Master Contract and is willing to
execute and perform this Contract, and all expression of its
intention set forth herein is true.
4. All documents, materials, statements and evidence provided by the
Guarantor to the Grantor are accurate, true, complete and valid,
and the duplicate copies of the documents provided are consistent
with the originals thereof.
5. The Guarantor has obtained all governmental approvals and other
party consents necessary for the execution of this Contract, and
the execution and performance of this Contract by the Guarantor
does not violate any legal person organization document/approval
document (if any ) or any other contract or agreement to which it
is a party. The guarantee hereunder is not subject to any
restriction.
6. In order to ensure that this Contract is legal, valid and
enforceable, the Guarantor shall or will have completed all
necessary registrations, filings or notarization procedures.
7. This Contract is legal and valid and constitutes a legally
binding obligation of the Guarantor.
5
8. There are no actions, arbitrations or administrative proceedings
involving the Guarantor or any of its material operating assets
which would have a material adverse effect on the financial
position of the Guarantor or its ability to perform its
obligations hereunder.
9. No event of default has occurred or is continuing.
Article 10 The representations and warranties of the Guarantor set
forth above shall at all times be accurate and true during the effective term
hereof, and the Guarantor shall provide any further documents from time to time
as requested by the Grantor.
CHAPTER X
GUARANTOR'S COVENANTS
Article 11 Prior to full satisfaction of the Guaranteed Indebtedness,
the Guarantor shall comply with the following terms:
1. The Guarantor shall immediately notify the Grantor of any of the
following events:
(i) occurrence of any event of default;
(ii) any action, arbitration or administrative proceeding involving
the Guarantor or any of its material operating assets;
(iii) deterioration of the financial position, winding-up, close-down,
declared bankruptcy, dissolution, cancellation of business
license/institutional legal person certificate or revocation of
the Guarantor.
2. During the effective term hereof, so long as the Guaranteed
Indebtedness has not been fully satisfied, without the prior
written consent of the Grantor, the Guarantor shall not enter
into any joint operation, contractual operation, lease, merger,
split-off, joint-stock restructuring or make any arrangement with
respect to any other change in operation model and ownership
structure; provided that in the event that, pursuant to the
requirements of operation or as required by any adjustment of any
national policy or law, the Guarantor enters into any joint
operation, contractual operation, lease, merger, split-off,
joint-stock restructuring or effects any change in its operation
model and ownership structure, the Guarantor shall obtain the
prior consent of the Grantor and make the arrangements
satisfactory to the Grantee with respect to its liabilities and
obligations with respect to the
6
guarantee hereunder.
3. During the effective term hereof, so long as the Guaranteed
Indebtedness has not been fully satisfied, without the prior
written consent of the Grantor, the Guarantee shall not sell,
transfer, divide or otherwise dispose any material operating
assets.
4. During the effective term hereof and prior to full satisfaction
of the Guaranteed Indebtedness, the Guarantor shall not exercise
its right of recourse or make any claim against the Grantee with
respect to any payment made by it on behalf of the Grantee to the
Grantor or any other creditor's right that it might have against
the Grantee.
5. During the effective term hereof, in the event that the Guarantor
registers any change with the relevant administration of industry
and commerce, it shall notify the Grantor within ten (10)
business days after such change and deliver the duplicate copy of
the relevant registration documents to the Grantor.
6. In the event that the Grantee fails to repay any Guaranteed
Indebtedness that has become due and payable in a timely manner,
the Guarantee shall, within seven (7) business days from the date
on which the Guarantor has received the written payment notice
from the Grantor, unconditionally repay such debt on behalf of
the Grantee in the way as requested by the Grantor.
7. In the event that the Guarantor fails to make any payment
hereunder in a timely manner as requested by the Grantor, the
Grantor shall have the right to directly deduct such payment from
any account opened by the Guarantor with the Grantor or any other
branch of the Grantor without the prior consent of the Guarantor.
8. Upon request by the Grantor, the Guarantor shall immediately
reimburse the Grantor or indemnify it against the following costs
and losses:
(i) all costs and expenses incurred by the Grantor in connection with
the realization of its rights hereunder (including attorney's
fees, litigation fees, enforcement fees and all other
out-of-pocket expenses).
(ii) any other losses suffered by the Grantor resulting from any
breach of this Contract by the Guarantor.
7
CHAPTER XI
NATURE AND EFFECTIVENESS OF GUARANTEE
Article 12 This Contract is independent form the Master Contract. The
invalidity or revocation of the Master Contract for any reason shall have no
effect on the validity of this Contract or any obligation or liability of the
Guarantor hereunder. The joint and several liability of the Guarantor hereunder
shall be extended to the legal responsibilities of the Grantee upon
ineffectiveness of the Master Contract (including, but not limited to,
reimbursement and indemnification for losses).
No consent of the Guarantor shall be required for any change in the
content of the Master Contract between the Grantor and Grantee, except for any
renewal of the principal claim or any increase of the amount of the principal
claim, and the Guarantor shall not be released from any of its liabilities with
respect to its guarantee hereunder. In the event of any renewal of the Master
Contract without the consent of the Guarantor, the Guarantor shall be
responsible for its liabilities with respect to the guarantee during the
original guarantee period. In the event that the parties to the Master Contract
have agreed to increase the amount of the Guaranteed Indebtedness without the
consent of the Guarantor, the Guarantor shall be responsible for its liabilities
with respect to the guarantee to the extent of the amount of the original
Guaranteed Indebtedness.
Article 13 The guarantee created hereunder shall be independent from
any other guarantee obtained by the Grantor with respect to the Guaranteed
Indebtedness. The Grantor shall not be required to enforce any other guarantee
(whether for property or person) or take any other remedial measure against the
Grantee or any other third party before its exercise of the rights hereunder.
CHAPTER XII
EVENTS OF DEFAULT
Article 14 Any of the following events or circumstances shall
constitute an event of default by the Guarantor hereunder:
1. Any event of default under the Master Contract shall have
occurred;
2. Any representation or warranty made by the Guarantor hereunder
shall have been confirmed to be incorrect or untrue;
3. Any provision of the Master Contract shall no longer be fully
legal or valid for any reason, or terminated or limited for any
reason;
8
4. The Guarantor shall have suspended or stopped business operation
or is subject to bankruptcy, liquidation, close-down or any other
similar proceeding, or an petition shall be filed seeking the
bankruptcy or liquidation of the Guarantor, or the Guarantor
shall be wound up or suspended as determined by the competent
government authority;
5. Any action, arbitration or administrative proceeding shall have
been brought against the Guarantor or any of its material
operating assets;
6. The Guarantor shall have breached any of its other obligations
hereunder, or any other event shall have occurred which, in the
Grantor's opinion, would have a material adverse effect on any of
its rights hereunder.
Article 15 Upon the occurrence of any event of default set forth
above, the Grantor shall have the right to take one or more of the following
measures, as the case may be:
1. To take any remedial measure in the event of any breach that it
may be entitled to take hereunder;
2. To request the Guarantor to bear its liabilities with respect to
the guarantee hereunder as agreed herein;
3. To exercise any other security interest it may be entitled to
with respect to the Guaranteed Indebtedness.
CHAPTER XIII
OTHER AGREEMENTS
Article 16 Without the prior consent of the Grantor, the Guarantor
shall not transfer or otherwise dispose any or all of its obligations hereunder.
Article 17 Any grace period, preferential treatment or moratorium
granted by the Grantor to the Guarantor shall not affect, damage or limit any
right that the Grantor may be entitle to under this Contract, any law or
regulation; nor shall it operate as a waiver by the Grantor of any of its rights
or interests hereunder, or affect any responsibility or obligation of the
Guarantor hereunder.
9
Article 18 Any provision of this Contract or any content thereof held
to be invalid for any reason shall not affect the effectiveness of this Contract
and the remaining provisions of this Contract or any other content of such
provision.
Article 19 The Grantor shall repay in full the Guaranteed Indebtedness
hereunder, and shall not make any claim of set-off or create any condition
thereto.
Article 20 All notices and requests sent by the parties to each other
hereunder shall be in writing and sent to the respective parties at the
addresses or fax numbers first above written herein. In event of any change in
the address or fax number of any party, it shall promptly notify the other
party.
Communications between the parties shall be deemed to have been given
or received (i) upon delivery if personally delivered, (ii) on the third (3rd)
day after delivery if delivered by the registered mail and (iii) at the time of
transmission if sent by facsimile; provided, however, that any document sent by
the Guarantor to the Grantor shall be deemed to have been given upon receipt by
the Grantor.
CHAPTER XIV
GOVERNING LAW AND DISPUTE RESOLUTION
Article 21 This Contract and any matter in connection herewith shall
be governed by, and construed in accordance with, the laws of the PRC.
Article 22 Any dispute arising from or in connection with this
Contract shall be settled through friendly consultation between the parties. If
no settlement can be reached through such consultation, then any party may bring
an action before the People's Court in the jurisdiction in which the Grantor is
located.
CHAPTER XV
EFFECTIVENESS, DISCHARGE OF AND AMENDMENT TO THIS CONTRACT
Article 23 This Contract shall become effective on the date on which
this Contract has been executed by the legal representatives or
attorney-in-facts of the Guarantor and the Grantor and sealed with corporate
seals.
Article 24 This Contract may not be amended or discharged by any party
without authorization after this Contract comes into effect. Any amendment to or
discharge of this Contract shall be agreed by the Guarantor and Grantor by
entering into an instrument in writing upon consultation. Before entering into
such written instrument, all provisions of this Contract shall nevertheless
remain in full force and effect.
10
CHAPTER XVI
EXHIBITS
Article 25 The Guarantor and Grantor shall separately enter into a
written agreement with respect to any matter not addressed herein which shall be
attached hereto as an exhibit. The exhibits attached hereto shall be an integral
part of this Contract and have the same legal validity as the text of this
Contract.
Article 26 The exhibits to this Contract are as follows:
1. [INFORMATION MISSING IN THE ORIGINAL DOCUMENT]
2. [INFORMATION MISSING IN THE ORIGINAL DOCUMENT]
CHAPTER XVII
MISCELLANEOUS
Article 27 This Contract shall be executed in three (3) original
copies with each of the Guarantor and the Grantor holding one (1) copy, all of
which shall have the same legal validity.
Article 28 The Guarantor and the Grantor have executed this Agreement
in Shijiazhuang on September 26, 2005.
11
[SIGNATURE PAGE]
Guarantor (Seal):
Baoding Tianwei Baobian Electric Co., Ltd.
Legal Representative: /s/ Jing Chongyou
----------------------------
(or Attorney-in-fact)
Grantor (Seal):
China Everbright Bank, Shijiazhuang Sub-branch
Legal Representative/Responsible Person: /s/ Xxx Xxxxxxx
-----------------------------
(or Attorney-in-fact)
12
