Guaranty Contract of Maximum Amount (Credit Facility)
No.
(2006) Xxxx Xxxxx Yin Si Bao E Zi 0184
Guarantor:
(hereinafter
referred to as “Party A”) Xx
Xxxxxxxxx
Identification
No:
620105196808081078
Legal
Representative:
Address:
Telephone
No:
Creditor:
(hereinafter
referred to as “Party B”) Shenzhen
Branch, Bank
of China
People
in Charge: Xxxx
Xxxxxxxx
Address:
International
Finance Building, 0000 Xxxxxxx Xxxx, Xxxxx, Xxxxxxxx
Telephone
No: 0000-00000000
On
the
request of the credit facility applicant, Shenzhen BAK Battery Co., Ltd
(hereinafter referred to as the “Applicant”),
Party A
undertakes
to provide guaranty for the indebtedness under the Credit Facility Agreements
of
the Applicant voluntarily
in order
that the Applicant could obtain the credit facility support from Party B. Party
A also confirms that all terms of the Credit Facility Agreement which he
guarantees, including the use of division sum within the total credit facility.
In order to clarify both party’s rights and liabilities, Party A and Party B
reach this agreement under the friendly negotiation.
I.
The Maximum Amount of Guaranteed Credit Facility
This
Agreement is signed for guaranty to the balance of every single credit facility
or foreign currency of the equal value of the confirmed total of main credit’s
rights of not exceeding RMB 450,000,000.00 yuan from November 1, 2007 to
November 1, 2008 which are stipulated in Credit Facility Agreement of No. (2007)
Xxxx Xxxxx Xxx X Xxx Zi No. 000274.
II.
Scope of Guaranty
| 1. |
All
the balance of the creditor’s rights in every single credit facility under
the aforesaid Credit Facility Agreement.
|
| 2. |
All
the balance of the loan principal, interest (including the compound
interest, penalty interest), and commission fee etc under the aforesaid
Credit Facility Agreement.
|
| 3. |
All
the balance of the remedy, the compensation, undertaking fee etc for
breach of contract which shall be payable by the
Applicant.
|
| 4. |
All
the related expenses bored by the Creditor in realizing its creditor’s
rights.
|
1
III.
Method of Guaranty
Party
A
shall bear joint and several liabilities for the indebtedness of every single
loan of the aforesaid Credit Facility Agreement within the aforesaid scope
of
guaranty.
IV.
Guaranty Period
The
guaranty period under this Contract shall be from the effective date of this
Contract to two years after the expiry date of all loans under the aforesaid
Credit Facility Agreement. In case that the term of any of Credit Facility
has
been extended, the guaranty period would be extended to two years after the
expiry date of the extension period.
V.
The Relationship between this Contract and the Guaranteed Credit Facility
Agreement and its supplementary Credit Facility Agreement.
If
any of
the Credit Facility Application provided by the Applicant to Party B under
the
aforesaid Credit Facility Agreement stipulates specially that the guaranty
for
any of the credit facility application letter shall be applied in this Contract,
Party A shall bear the joint and several liability for this loan
unconditionally.
VI.
Continuity of Guaranty
The
liabilities under this Contract is consecutive and shall not be affected by
Party A or the Applicant’s division, merge, reconstruction, alterations, share
structure transformation and the change of relationship of administrative
subordination etc.
VII.
Undertaking of Guaranty
In
case
of any breach of this Contract or the Credit Facility Agreement which guaranteed
by this Contract occurs, Party B has the rights to require Party A to undertake
his guaranty liability under this Contract and could deduct the fee directly
from any accounts opened in Party B’s business place.
If
in
need of the business, Party B needs to authorize any institutions within his
jurisdiction of Shenzhen Branch, Bank of China (including branch bank and
sub-branch bank) to perform the aforesaid Credit Facility Agreement or some
division sum guaranteed by this Contract, Party A approves this and it shall
be
deemed as Party B performs himself and Party A shall bear the same joint and
several liability for Party B.
VIII.
Effectiveness
This
Contract shall be effective independently from the Credit Facility Agreement
it
guaranteed and any other legal documents. The invalidity of the Credit Facility
Agreement and its supplementary legal documents shall not affect the validity
of
this Contract.
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Special
statement of Party A: Unless
to
increase the principle of credit facility, the modification of the Credit
Facility Agreement which guaranteed by this Contract between Party B and the
Applicant does not need the approval from Party A. The aforesaid modification
shall not affect Party A to perform his liabilities under this Contract; in
case
of Party B and the Applicant are carrying out the credit facility business
of
reducing (exempting) the guaranty bond, opening a letter of credit, inward
negotiate, guaranty of taking delivery etc, Party B has the rights to require
the Applicant to make the rights and benefits transfer or pledge commitment
regarding to the credit facility business in order to regulate the Applicant
and
protect Party B’s deserved rights and benefits. However, despite of whether or
not the aforesaid rights and benefits transfer or pledge commitment is stated,
valid or enforceable or modification to the terms of letter of credit and there
are discrepancies in the bills under the letter of credit and the Applicant
accept the discrepancies, Party B would pay for it but it shall not affect
Party
A’s performance of liabilities under this Contract. Party A would not contradict
on the guaranty responsibilities by this to Party B now or in the future and
shall undertake the same guaranty responsibilities.
IX.
Rights and Obligations
| 1 |
During
the guaranty period, Party B has the rights to supervise and check
the
property status and the financial status of Party A’s and has the rights
to require Party A to provide the documents to demonstrate his operation
status and income status. Party A shall provide it promptly, accurately
and completely;
|
| 2 |
Party
A has the responsibility to inform Party B in writing under the following
circumstances:
|
| 1) |
Any
breach of the Loan Contract, the Credit Facility Agreement and the
Credit
Facility Contract, Guaranty Contract which signed by Party A and Bank
of
China and its departments or branches, other banks, non-banking financial
institutions and any breach of the Credit Facility Contract, Guaranty
Contract or any other Credit Facility Contract which signed by other
creditors;
|
| 2) |
Any
change of the membership structure of Party A, main business scope,
alterations of directors of board and senior management staff,
modification of Contract of Equity Joint Venture and articles of
associations and adjustment of inner
construction;
|
| 3) |
Material
violation of principles, law or compensation claiming which are relating
to Party A or Party A’s principle leader;
|
| 4) |
Serious
difficulties occur in Party A’s management and the deterioration
of
financial situation ;
|
| 5) |
Party
A has already undertaken or would undertake any indebtedness, possible
indebtedness or mortgage, pledge to the third
party;
|
| 6) |
Any
litigation or arbitration deriving from the disputes of Party A’s material
creditor’s rights and indebtedness;
|
| 7) |
The
change of Party A’s contact address;
|
| 8) |
Other
situations which might affect Party A’s financial status or indebtedness
repay ability.
|
| 3 |
Party
A shall obtain Party B’s written approval on the following
occurrences:
|
| 1) |
Material
system changes which including reducing the registered capital in any
forms, division, merge, reconstruction, share structure transformation
etc
or cancellation, dismissal, suspending a
business;
|
| 2) |
Material
events which are concerning the investment and assets
transferring;
|
| 3) |
Conducting
the title transaction, management transaction by the way of lease,
contract, affiliation, trusteeship;
|
| 4) |
The
material share alteration of share adjustment or Party A’s share structure
transformation;
|
3
4. Party
A’s
possible indebtedness shall not exceed its net capital and shall not dispose
its
fixed assets with the means which might affect its repay ability within the
period of the guaranty.
5. Party
A
shall not require the Applicant to conduct a counter-guaranty with a property
mortgage or pledge regarding to Party A’s liabilities under this Guaranty
Contract; if Party A and the Applicant sign a Counter-guaranty Agreement or
any
similar agreement regarding to the guaranty liabilities under the Guaranty
Contract, the guarantee could have his rights under the Counter-guaranty
Agreement or any similar agreement only after he fully performs his guaranty
liabilities under this Guaranty Contract.
X.
Transfer of Rights and Liabilities
Party
A
shall not transfer his rights and liabilities under this Guaranty Contract
to
the third party without Party B’s written permission.
XI.
Breach of Contract
If
either
Party A does not perform his stipulated liabilities of Article IX of this
Contract or the Applicant does not perform his stipulated liabilities under
the
Credit Facility Agreement, Party B has the rights to take the following actions
solely or simultaneously:
(1). Requires
Party A to correct the breach xxxxx in a required time;
(2). Requires
Party A to provide supplementary guaranty;
(3). Requires
Party A to undertake the guaranty responsibilities of loan already occurred
or
the particular/some loans or deduct the fee directly from Party A’s
account.
XII.
Notarization
If
this
Contract needs to be notarized, the notarization fee shall be bore by Party
A;
once this Contract has been notarized, despite of what reasons cause Party
A
and/or the Applicant does not perform his liabilities, Party B has the rights
to
apply directly for the obligatory execution.
XIII.
Expenses
All
expenses which are relating to this Contract (including but not limited to
the
expenses of the evaluation, appraisal, registration, notarization etc) shall
be
paid or bore by Party A.
XIV.
Modification, Supplementation and Explanation
(1). Any
modifications or supplementation of this Contract shall be make in writing
and
shall contribute as a whole of this Contract.
(2). If
any
revisions of national laws or regulations which lead to any clause of this
Contract become illegal or invalid, the legality and validity of the rest
clauses of this Contract shall not be affected; the parties of this Contract
shall cooperatively modify the relevant illegal or invalid clauses
promptly.
XV.
The Application Laws and Dispute Settlements
The
applicable law for this Agreement shall be laws of People’s Republic of
China.
Any
arguments or disputes arising from the performance of this Agreement shall
be
settled by negotiation by the parties. In case that no settlement has been
reached, the dispute shall be settled in the following (1)
solution:
(1).
to
be submitted to the People’s Court located in the region of Party
B;
4
(2).
to
be submitted to (/) Arbitration Committee. The arbitration shall be proceeded
by
its own arbitration rules.
XVI.
Effectiveness
This
Agreement would come into effect if this Agreement has been signed and stamped
by the authorized persons of both parties.
XVII.
Copies
There
are
three original copies of this Contract. Party A retains one copy and Party
B
retains one copy. All of these copies have the same legal
force.
5
Party
A (stamp): Shenzhen
BAK Battery Co., Ltd
Authorized
Representative (signature/stamp): Xxxxxxxxx
Xx
Party
B (stamp): Shenzhen
Branch, Bank of China
Authorized
Representative (signature/stamp): Xxx
Xxxx
Date:
November
1, 2007
Venue:
Shenzhen
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