GUARANTEE AGREEMENT BY AND AMONG HU JIA DA (AS GUARANTOR) SHENZHEN RITAR POWER CO., LTD. (AS GUARANTEE) AND DBS BANK (HONG KONG) LTD. SHENZHEN BRANCH (AS OBLIGEE) DATE: 7 MARCH 2006
Exhibit
10.22
BY
AND AMONG
XX
XXX DA
(AS
GUARANTOR)
SHENZHEN
RITAR POWER CO., LTD.
(AS
GUARANTEE)
AND
DBS
BANK (HONG KONG) LTD. SHENZHEN BRANCH
(AS
OBLIGEE)
DATE:
7 MARCH 2006
This
Agreement is entered into on 7 March 2006 by and between:
| 1. |
Guarantor:
Xx Xxx Da
|
Address:
D3-706, Fuyuan Garden, Futian District, Shenzhen
ID
Card
No.: 430403196410210018
| 2. |
Guarantee:
Shenzhen Ritar Power Co., Ltd.
|
Legal
Representative: Xx Xxx Da
Address:
Building 9, Second Industrial Zone, Fuqiao, Qiaotou Village, Fuyong Town, Bao’an
District, Shenzhen
Business
License Registration No.: 4403012089074
| 3. |
Obligee:
DBS Bank (Hong Kong) Ltd. Shenzhen
Branch
|
Legal
Representative (Person in Charge): Wu Xxx Xxxxx
Address:
00 Xxxxx, Xxxxxx Xxxxxxxx, Xx.0000, Xxxxxxx Dong Road, Luohu District,
Shenzhen
Business
License Registration No.: Qi Xxx Xxx Xxxx Xxxx Zi 490020
Whereas:
| 1. |
The
Obligee has issued the Letter of Banking Facilities: Shenzhen Ritar
Power
Co., Ltd. to the Guarantee on 6 March 2006 and the Guarantee has totally
agreed with and accepted the abovementioned Letter of Banking Facilities
(including all amendment, supplement, hereinafter collectively referred
to
as Banking Facilities) on 7 March 2006. The total credit limit under
the
Banking Facilities is RMB 7 Million Yuan (or the equivalent in USD)
and
USD 300 Thousand, which includes: (1) Finance for account payable:
XXX 0
Xxxxxxx Xxxx; (0) Xxxxxxxxx (X): USD 300 Thousand; (3) Factoring (II):RMB
5 Million Yuan (or equivalent in USD).
|
2
| 2. |
As
required by the Banking Facilities, the Guarantor’s undertakings to bear
joint and several liabilities for the indebtedness of the Guarantee
under
the Banking Facilities is one the conditions precedent of the Banking
Facilities.
|
The
Parties have entered into the following agreement through friendly
consultation:
Article
1 Indebtedness
This
guarantee shall cover all indebtedness owed by the Guarantee to the Obligee
under the Banking Facilities, including loan principal, interest, default
interest, liquidation damages, losses indemnity, expenses, cost and litigation
fees and attorney fees for enforcement of the right to the security
etc.
Article
2 Term of Guarantee
The
term
of this guarantee is from the execution date of this guarantee till 2 years
after expiry of the term of the loan under the Banking Facilities.
Article
3 Scope of Guarantee
The
Guarantor hereby undertakes that it shall, once demanded by the Obligee, pay
for
all outstanding indebtedness payable by the Guarantee to the Obligee under
the
Banking Facilities, including but not limited to loan principal, interest,
default interest, liquidation damages, losses indemnity, expenses, cost and
litigation fees and attorney fees for enforcement of the right to the security
etc.
Article
4 Type of Guarantee
4.1
Basic
Feature
This
guarantee shall be unconditional and irrevocable guarantee with joint and
several liability.
4.2
Other
Feature
(1)
This
guarantee shall be independent from the invalidity of any other contract or
agreement in relation to the indebtedness.
3
(2)
The
interest and right of the Obligee under this Agreement shall not be affected
or
restricted by any other contract and agreement. The Obligee is entitled to
directly demand the Guarantor to fulfill its obligations of guarantee on default
of the Guarantee without claiming interest or right from any other person
(including but not limited to the Guarantee, other guarantor/mortgagor etc),
taking litigation or any other measures first.
(3)
This
guarantee shall be continuously valid within the term until all indebtedness
has
been settled.
(4)
This
guarantee shall cover all existing, future, occurred or to-be-occurred
indebtedness of the Guarantee under the Banking Facilities.
(5)
This
guarantee shall be unconditional and shall not be reduced or exempted
by:
| (a) |
amendment,
deletion or supplement to any clause of the Banking
Facilities;
|
| (b) |
any
waiver, preferential treatment or grace period granted by the Obligee
to
any party;
|
| (c) |
waiver
of any rights of by the Obligee at any
time;
|
| (d) |
alteration
of the legal status or members of any party, including share transfer,
bankruptcy, liquidation, merger, acquisition, regroup, demise, restriction
of civil rights or civil disposal, change of name or business scope
etc.;
|
| (e) |
any
other guarantee, mortgage, pledge or security provided by any
party;
|
(6)
In
case
that there are more than one guarantor under this Agreement, each guarantor’s
undertakings is independent as well as joint. The Obligee is entitled to
demand
any guarantor to fulfill its obligations.
Article
5 Settlement of Indebtedness
5.1
In
case of any default on loan principal, interest or any other amount payable
by
the Guarantee upon maturity of such indebtedness, the Guarantor shall, within
7
days after receiving the notification from the Obligee, settle such indebtedness
with the Obligee in a lump sum and in accordance with the instruction on amount,
currency, settlement method, settlement date and place etc. of the notification.
5.2
The
notification of the Obligee is final and binding upon the Guarantor except
for
obvious errors.
4
Article
6 Claims
6.1
Before the settlement of all indebtedness, the Guarantor should not seek or
exercise any subrogation, or demand the Guarantee to settle any payment prior
to
the Obligee.
6.2
Before the settlement of all indebtedness, the Guarantor should not receive
any
security for any payment owed under the said subrogation. Any security received
by the Guarantor in violation of this clause shall be deemed as the security
received for and on behalf of the Obligee and the Guarantor shall present all
relevant documentations and collaterals to the Obligee.
Article
7 Right of Defense
The
Guarantor hereby agrees to waive all right of defense as allowed by
law.
Article
8 Statements and Undertakings
8.1
The
Guarantor hereby states that:
(1)
The
Guarantor is lawfully established and effectively existing. It enjoys full
civil
rights of disposal and has authorization to execute and perform this
Agreement.
(2)
The
Guarantor signs this Agreement of its own genuine will and is not under any
duress. The obligations of the Guarantor under this Agreement are lawful, valid,
binding and enforceable.
(3)
The
execution of this Agreement, performance of its rights and obligations under
this Agreement by the Guarantor is not in conflict with any law, regulation,
obligation, undertakings, agreement or contract which is binding upon the
Guarantor or its properties.
8.2
The
Guarantor hereby undertakes that:
(1)
The
Guarantor shall notify the Obligee of any event which may alter its legal
status, members or civil right of disposal.
(2)
The
Guarantor shall, as required by the Obligee from time to time, provide the
Obligee with any materials or documentations concerning its business, financial
status, operations etc.
5
(3)
The
Guarantor shall obtain and sustain all authorization, approval, registration
as
required by law and take any other necessary methods to ensure that it has
full
right to execute and perform this Agreement and to ensure that this Agreement
is
valid, lawful, binding and enforceable.
(4)
The
Guarantor shall, as required by the Obligee from time to time, execute any
agreement or document or take any methods or make any arrangement to ensure
that
the Obligee enjoys and exercises the rights under this Agreement.
(5)
The
Guarantor shall, as required by the Obligee, pay any cost and expense in
relation to the negotiation, draft, print, execution and enforcement of this
Agreement, including lawyer’s fee, litigation fee etc.
(6)
The
Guarantor shall, as required by the Obligee, pay any stamp duty, notary fee,
registration fee or any tax etc. in relation to the execution, performance
and
enforcement of this Agreement, or pay any penalty or fine due to default of
this
clause by the Guarantor.
(7)
The
Guarantor shall, as required by the Obligee, pay the amount stated under the
above clause (5) and (6), and shall pay the interest at the rate determined
by
the Obligee for any overdue amount.
Article
9 Taxation
Any
amount payable by the Guarantor under this Agreement shall not be deducted
or
reduced by any tax or by any other reasons. The Guarantor shall make up for
any
amount deducted as required by law so that the actual amount received by the
Obligee is not affected.
Article
10 Currency
10.1
The
Guarantor shall fulfill its obligations in currency similar to the currency
of
the indebtedness under the Banking Facilities or in other currency as approved
in writing by the Obligee.
6
10.2
In
case that the Obligee receives any amount from the Guarantor in currency other
than that stated in the above clause 10.1, the Obligee is entitled to exchange
the amount into the currency stated in the above clause 10.1. The Guarantor
shall pay for any insufficiency as well as any cost which may
occur.
10.3
The
obligation under this article is an independent obligation. The Obligee is
entitled to take litigation or apply for enforcement of this obligation in
court
as an independent claim.
Article
11 Credence and Evidence
11.1
Any
credence or statement issued by the Obligee to demand payment or evidence any
default by Guarantee shall be binding upon the Guarantor except for obvious
errors.
11.2
Any
credence or statement concerning the indebtedness which has been signed by
the
person in charge, staff or authorized representative of the Obligee shall be
binding upon the Guarantor except for obvious errors.
Article
12 Lien
The
Guarantor agrees that without prejudice to any other rights of Obligee as
allowed by the laws, the Obligee is entitled to exert lien on any property
of
the Guarantor which is possessed by the Guarantor or its proxy, for purpose
of
attachment or any other reason on default by the Guarantee. The Obligee is
also
entitled to use any fund in any account opened by the Guarantor with the Obligee
to settle any due debt of the Guarantee.
Article
13 Assignment
13.1
The
Guarantor shall not assign all or part of the rights and obligations under
this
Agreement to any third party without written approval by the
Obligee.
13.2
In
case that the Obligee lawfully assigns the rights and obligations under the
Banking Facilities to any assignee, the Obligee then is entitled to assign
the
rights and obligations under this Agreement to the assignee accordingly, with
no
need of approval by the Guarantor. The Guarantor shall bear the same obligations
to the said assignee after the assignment.
7
Article
14 Exemption
The
execution and performance of this Agreement is for commercial purpose only.
The
Guarantor shall enjoy no exemption, and irrevocably relinquish any exemption
which may be applicable in future.
Article
15 Notification
15.1
Any
notification under this Agreement shall be carried out in writing, such as
telex, fax or mail.
15.2
Any
notification sent to the Guarantor/Guarantee may be sent to its legal address
or
office address or the telex/fax number known to the Obligee. The notification
shall be deemed duly served at the time of sending the telex or fax or 7 days
after sending the mail with proper address and postage paid. Any notification
sent to the Obligee shall be deemed duly served only after the Obligee has
actually received it.
Article
16 Reservation of Rights
Any
delay
in performance, non-performance and part performance of its rights under this
Agreement by the Obligee shall not be deemed as waive of such rights by the
Obligee and shall not affect further exertion of such rights by the Obligee.
Any
tolerance of breach of contract by the Guarantor shall not affect the Obligee’s
right in future to demand the Guarantor to bear consequential liabilities.
The
rights of the Obligee under this Agreement shall not affect any rights of the
Obligee granted by law.
Article
17 Severability
Any
invalidity, illegality or unenforceability of any clause of this Agreement
under
any jurisdiction shall not affect the validity of other clauses of this
Agreement and shall not affect the validity, legality or enforceability of
such
clause under other jurisdiction.
8
Article
18 Applicable Law
The
applicable law for this Agreement shall be the laws of PRC.
Article
19 Jurisdiction
19.1
Any
dispute shall be submitted to the nonexclusive jurisdiction of PRC court. The
Obligee may choose the court in the location of the Obligee or in the location
of the property of the Guarantor to take litigation or apply for enforcement.
The Guarantor shall agree with the Obligee on the choice of court.
19.2
The
above clause shall not affect the right of the Obligee to take litigation or
apply for enforcement in more than one court with proper jurisdiction or in
more
than one legal territory.
Article
20 Validity
This
Agreement shall be binding upon the Guarantor, Obligee and their
successors.
Article
21 Effectiveness
This
Agreement shall take effect after execution by the Guarantor, Guarantee and
the
Obligee, or after the registration/approval as required by the law. The
Guarantor is responsible for such registration/approval in time.
Article
22 Notary
After
the
execution of this Agreement, the Guarantor/Guarantee shall assist the Obligee
to
apply for enforceable notary deed in Shenzhen Notary Office if deemed necessary
by the Obligee. The Obligee is entitled to apply for direct enforcement in
the
competent court without notification of the Guarantor in case of breach of
contract by the Guarantor.
Article
23 Miscellaneous
23.1
The
headings of the clauses of this Agreement are for reference only and shall
not
affect the interpretation of the clauses.
9
23.2
This
Agreement is the accessory agreement to the Banking Facilities and shall have
the same legal effect as the Banking Facilities.
This
Agreement has four originals. Each party shall retain one original and another
original shall be retained by the Obligee for purpose of notary.
|
Guarantor:
/s/
Jiada Hu
|
|||
|
Jiada
Hu
|
|
Guarantee:
Shenzhen Ritar Power Co., Ltd.
(Corporate
Seal)
|
|||
|
By:
/s/
Jiada Hu
|
|||
|
Name:
Jiada Hu
Legal
Representative
|
|
Obligee:
DBS Bank (Hong Kong) Limited Shenzhen
Branch (Corporate
Seal) |
|||
|
By:
/s/
Wu Xxx Xxxxx
|
|||
|
Name:
Wu Xxx Xxxxx
Legal
Representative
|
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