EXHIBIT 10.10
[ENGLISH TRANSLATION]
Contract No. (2007) Jiyinbaozi/ No. 712008
MAXIMUM AMOUNT GUARANTEE CONTRACT
China CITIC Bank
How to fill in this Contract
1. This contract shall be filled in with black blue or blue gel pen or pen.
2. This contract shall be filled in completely. The handwriting shall be clear
and tidy.
3. The type of currency shall be in Chinese instead of currency symbol.
Amounts in words shall be added with Chinese name of the currency ahead;
amounts in number shall be added with currency symbol ahead.
4. Blank in fund-drawing schedule and repaying schedule may be filled in with
lineation and added with "the following is blank" chop or filled in with
words like "the following is blank". Other blank without substantial
content may be filled in with "/".
MAXIMUM AMOUNT GUARANTEE CONTRACT
GUARANTOR: Baoding Tianwei Baobian Electric Co., Ltd. (hereinafter "Party A")
REGISTERED ADDRESS: ▇▇. ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ National High-tech Industry
Development District
MAIL CODE: 071000
TEL: ▇▇▇▇-▇▇▇▇▇▇▇
FAX: ▇▇▇▇-▇▇▇▇▇▇▇
LEGAL REPRESENTATIVE: ▇▇▇▇ ▇▇▇▇▇
BANK AND ACCOUNT: Shijiazhuang Branch of Citic
CREDITOR: CITIC Bank, Shijiazhuang Branch (hereinafter "Party B")
REGISTERED ADDRESS: ▇▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
MAIL CODE: 050000
TEL: ▇▇▇▇-▇▇▇▇▇▇▇▇
FAX: ▇▇▇▇-▇▇▇▇▇▇▇▇
LEGAL REPRESENTATIVE/ RESPONSIBLE PERSON: ▇▇▇▇ ▇▇▇▇▇▇▇
PLACE EXECUTING THIS CONTRACT: Shijiazhuang City
DATE EXECUTING THIS CONTRACT: February 6, 2007
To ensure satisfaction of several credit claims arising continuously in a
definite period between Party B and Baoding ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ New Energy Resources
Co., Ltd. (hereinafter the "Debtor"), Party A is willing to provide security in
the form of maximum amount guarantee. Therefore, in accordance with Contract Law
of People's Republic of China, Security Law of People's Republic of China and
other relevant laws and regulations, upon discussion, Party A and Party B
achieve agreement as follows:
ARTICLE 1 DEFINITION
1.1 Maximum amount guarantee refers to the agreement between Party A and Party
B providing that Party A provides guarantee to Party B for the Debtor's
performance of its debts occurring continuously in certain period within a
certain maximum amount. Such maximum amount refers to the total balance
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of debts (including contingent debts) owed by the Debtor to Party B.
ARTICLE 2 PRINCIPAL CREDIT CLAIMS UNDER GUARANTEE
2.1 The principal credit claims under guarantee refer to a series of
credit claims arising from February 6, 2007 to February 6, 2008 due to
credit extension by Party B to the Debtor, including but not limited
to various loan, notes, guarantee letter, letter of credit and other
banking businesses.
2.2 The top amount of the Principal Credit Claim under guarantee is the
equivalent of Renminbi (in words) seventy and five million. If Party A
perform its obligation of security in accordance with this Contract,
the top amount under its security may be deducted accordingly.
2.3 Within such period and in the extent of such maximum amount as agreed
above, the serial contracts, agreements and other legal documents
entered into between Party A and the Debtor that constitute the basis
of creditor-debtor relationship are the Principal Contracts of this
Contract.
ARTICLE 3 FORM OF GUARANTEE
3.1 Party A provides joint-liability guarantee. In case that the Debtor
fails to pay any or part of its debts upon expiry of the performance
period of a single debt under the Principal Contracts, Party B shall
have the right to directly require Party A to bear guarantee
liability.
3.2 When the Debtor fails to pay its debt in accordance with the Principal
Contracts, whether or not Party B enjoys any other security (including
but to limited to guarantee, mortgage, pledge, guarantee letter,
stand-by letter of credit or other security form) for its credit
claims under the Principal Contracts, Party B shall have the right to
directly require Party B to bear guarantee liability in the extent of
its guarantee.
ARTICLE 4 GUARANTEE PERIOD
4.1 The period of guarantee provided by Party A is two years, that is, two
years from the date when the debt performance time limit agreed in
specific business contracts expires. The guarantee period under each
specific business contract shall be counted separately.
4.2 If the debt becomes mature earlier according to laws and regulations
or the Principal Contracts or by agreement between the parties of the
Principal Contracts, such earlier expiry date is the date when the
performance time limit expires.
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4.3 If the business under the Principal Contracts is letter of credit,
bank acceptance or letter of guarantee, the guarantee period is two
years from the date of advance disbursement; in case of advance
disbursement by installments, the guarantee period shall be counted
separately from the date of each installment.
ARTICLE 5 SCOPE OF GUARANTEE
5.1 The scope of this guarantee includes principal, interest, penalty
interest, compound interest, liquidated damage, compensation for
damage and expenses for enforcement of credit claim (including but not
limited to litigation fee, arbitration fee, lawyer fee, travel
expense, appraisal fee, auction fee, transfer fee, conservation fee,
publication fee, enforcement fee equal to 10% of the principal credit
claim) and any other payable expenses.
ARTICLE 6 STATEMENT AND WARRANTY OF PARTY A
6.1 Party A is a legal person or other organization established in
accordance with laws of People's Republic of China, has capacity for
civil rights and capacity for civil conduct necessary for execution
and implementation of this Contract, can bear civil liability
independently, and Party A has obtained all necessary and legal
internal and external approval and authorization for execution of this
agreement.
6.2 Party A has completely understood and agrees on all provision of the
Principal Contracts and is voluntary to provide security for the
Debtor. All intent expression under this Contract is real.
6.3 The establishment of this guarantee will not be subject to any
limitation or cause any illegal event.
6.4 All documents, statements and representation provided by Party A are
legal, true, proper and complete. Other than information that has been
disclosed to Party B in writing, there is not any other material
indebtedness (including contingent indebtedness), breach of contract,
litigation, arbitration or other material matter affecting its asset
that may affect implementation of this Contract on the part of Party A
is not disclosed to Party B.
ARTICLE 7 RIGHTS AND OBLIGATIONS OF PARTY A
7.1 Party A shall furnish Party B with true and valid legal documents that
can prove its legal position.
7.2 Within duration of this Contract, in case of change in legal person
name, legal representative, project responsible person, registered
address, telephone number or fax, Party A shall notify Party B such
change in seven days after
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change.
7.3 When the debt performance time limit of the Principal Contracts
expires or the debt becomes mature earlier according to the Principal
Contracts, if the Debtor fails to repay the principal and interest of
loan in accordance with provisions of the Principal Contracts, Party B
shall have the rights to directly require Party A to repay such debt.
Party A warrants not to refuse any claim of repayment from Party B
with any reason and waive right to defense provided by Security Law.
7.4 Party A has the obligation to provide to Party B with balance sheets
and statement concerning all outward security provided and
periodically or at any time upon request by Party B provide to Party B
with statements and other documents that truly reflect its overall
financial condition.
7.5 In duration of this Contract, if there occurs, on the part of Party A,
among other things, share transfer, restructure, merger, split-up,
joint stock system restructure, co-investment, cooperation,
cooperative operation, contracting, lease, change of business scope
and registered capital, transfer of material asset that may or is
sufficient to affect its ability of security, Party A shall notify
Party B in writing thirty days in advance.
7.6 In duration of this Contract, if there occurs, on the part of Party A,
among other thins, discontinuance of business, suspension of business,
application for or being announced to be in bankruptcy, dissolution,
revocation of business license, forced dissolution, worsening of
financial condition or involvement in any litigation, arbitration,
criminal case, administrative penalty that may or is sufficient to
affect its ability of security, Party A shall notify Party B in three
days from the date of occurrence or possible occurrence of forgoing.
7.7 In duration of this Contract, the extension of any form of security by
Party A to any third party shall not damage Party B's interests.
7.8 In duration of this Contract, in case of any event under item 7.5 or
7.6 of this Article, Party A warrants to make appropriate arrangement
for all guarantee liability under this Contract and provides specific
plan to arrange guarantee liability.
7.9 In case that Party B requires Party A to bear guarantee liability
because the Debtor fails to repay all or part of debts under the
Principal Contracts in accordance agreement (including as provided by
laws and regulations or agreement in the Principal Contracts or in the
event of earlier maturity of debt under the Principal Contracts as
agreed by the parties of the Principal Contracts), upon receipt of
written notice from Party B, Party A shall immediately pay such amount
in such way as notified to Party B and repay such debt under the
Principal Contracts.
7.10 If Party A fails to perform its obligation in accordance with item 7.9
of this Article, Party A agrees that Party B may directly debit
against any account of
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Party A with Party B and/or exercise right to dispose upon Party A's
property or property right legally occupied and managed by Party B to
repay debt under the Principal Contracts. When Party B debit against
Party A's account, if the currency of the account is different from
that of the debt under the Principal Contracts, it shall be converted
based on exchange rate announced by relevant authority of the State on
the date of debit.
7.11 If there is any third party provides guarantee for performance of
obligation under the Principal Contracts, Party A shall still bear
guarantee liability agreed in Article 3 of this Contract.
ARTICLE 8 RIGHTS AND OBLIGATIONS OF PARTY B
8.1 To transfer its all credit claims under the Principal Contracts to any
third party, Party B shall notify Party A after executing the credit
claim transfer contract in writing on a timely basis.
8.2 Party B needs not to notify Party A when executing specific business
contracts with the Debtor with respect to specific credit extension
business under the Principal Contracts.
8.3 If the Debtor fails to repay all or part of its debt in accordance
with the Principal Contracts (including as provided by laws and
regulations or agreement in the Principal Contracts or in the event of
earlier maturity of debt under the Principal Contracts as agreed by
the parties of the Principal Contracts), Party B has the right to
require Party A to bear guarantee liability in accordance with this
Contract.
8.4 Party B shall keep materials, documents and information about Party A
provided by Party A confidential, other than those that shall be
inquired or disclosed as required by laws and regulations.
ARTICLE 9 BREACH OF CONTRACT
9.1 After this Contract comes into effect, Party A and Party B shall
perform its obligations agreed in this Contract. Any party that fails
perform to or un-completely performs its obligation agreed in this
Contract, shall bear corresponding liability for breach of contract
and compensate the other party for its loss caused.
9.2 Party A shall compensate Party B for any loss caused by untrue,
improper, un-complete or misleading statement and warranty in Article
6 of this Contract.
9.3 If this Contract becomes invalid due to default of Party A, Party A
shall compensate Party B for all of its loss in the extent of the
guarantee scope.
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9.4 In duration of this Contract, in case of any of the following event,
Party B shall have the right to require Party B to bear guarantee
liability or take corresponding legal actions towards Party A's
property or property rights in accordance with agreement in section
7.10 of this Contract:
9.4.1 that Party B is not repaid at expiry of performance time limit
of any debt under the Principal Contracts;
9.4.2 that Party B is not repaid at earlier maturity of debt under the
Principal Contracts as required by laws and regulations or the
Principal Contracts or agreed by both parties in the Principal
Contracts;
9.4.3 that Party B occurs material financial loss, asset loss or
occurs asset loss or other financial crisis due to outward
security and fails to provide corresponding security or fails to
provide security satisfactory to Party B;
9.4.4 that there is crisis in operation or finance on the party of
Party A's controlling shareholder and other affiliated companies,
or there are material related party transactions between Party A
and its controlling shareholder and other affiliated which affect
normal operation of Party A and Party A fails to provide
corresponding security or fails to provide security satisfactory
to Party B;
9.4.5 that the industry in which Party A operates its business occurs
negative change and Party A fails to provide corresponding
security or fails to provide security satisfactory to Party B;
9.4.6 that any of Party A's senior officers is suspected to commit
corruption, bribery, fraud or illegal operation and Party A fails
to provide corresponding security or fails to provide security
satisfactory to Party B;
9.4.7 that Party A has breach of contract to other creditors and fails
to provide corresponding security or fails to provide security
satisfactory to Party B;
9.4.8 that Party A discontinues its business, suspends its business,
applies for bankruptcy, is announced to be in bankruptcy, is
dissolved, has its business license revoked or is forced to
dissolved;
9.4.9 that Party A fails to fulfill all security liability under this
Contract in breach of section 7.8 of this Contract or the
specific plan provided to fulfill security liability is not
satisfactory to Party B; or
9.4.10 other events on the part of Party A that endanger or harm or
may endanger or harm Party B's interests.
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ARTICLE 10 ACCUMULATIVENESS OF RIGHTS
10.1 The rights of Party B under this Contract are accumulative and will
not affect or exclude any other right of Party B against Party A in
accordance with laws and other contracts. Unless expressed by Party B
in writing, Party B's failure to exercise, partial exercise of and/or
delay to exercise any of its rights shall not constitute waiver or
partial waiver of such right and shall not affect, prevent or block
Party B to contrite to exercise such right or any other rights.
ARTICLE 11 CONTINUITY OF OBLIGATIONS
11.1 All obligations and joint liability of Party A under this Contract are
of continuity, completely binding on its inheritor, take-over person
or organization, assignee and the entity existing after merger,
restructure or change of name and shall not be affected by any
dispute, compensation claim, legal proceeding, any order from superior
organization and any contract or document entered into by and between
the Debtor under the Principal Contract and any natural person or
legal person, shall not change due to bankruptcy of the Debtor,
inability to repay the debt, disqualification as an enterprise,
amendment of articles of association and occurrence of any substantial
change.
ARTICLE 12 OTHER AGREED MATTERS
If this Article is in conflict with other articles, this Article shall prevail.
ARTICLE 13 APPLICABLE LAW
13.1 This Contract shall apply laws of People's Republic of China.
ARTICLE 14 SETTLEMENT OF DISPUTES
14.1 Any dispute arising due to this Contract or relevant to this Contract
shall be settled by discussion between Party A and Party B;
In case of failure to discuss, both parties agree that such dispute
shall be settled in the second way of the following:
a. to apply for arbitration by ___________________ arbitration
commission;
b. to sue to people's court for the place of Party B's domicile.
ARTICLE 15 EFFECT OF THIS CONTRACT
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15.1 This Contract is independent from the Principal Contracts. The
invalidity of the Principal Contracts due to any reason shall not
affect the effect of this Contract and this Contract shall continue to
be valid. The joint guarantee liability of Party A under this Contract
extends to include legal liability after invalidity of the Principal
Contracts (including but to limited to returning and compensation
liability).
15.2 If certain article or part of certain article of this Contract is or
will be invalid, such article or such invalid part shall not affect
the validity of this Contract and other articles of this Contract or
other part of such article.
ARTICLE 16 EFFECTIVENESS, AMENDMENT AND TERMINATION OF CONTRACT
16.1 This Contract comes into effect upon signature or stamping (signature
or stamping with name chop) and stamping with official chop or
contract chop by legal representative or authorized representative of
Party A and legal representative or authorized representative of Party
B.
16.2 After this Contract comes into effect, unless otherwise agreed in this
Contract, any party of Party A and Party B shall not amend or
terminate this Contract without permission. The amendment or
termination of this Contract shall be made upon discussion of Party A
and Party B with written agreement.
ARTICLE 17 MISCELLANEOUS
17.1 With respect to matters that are not mentioned in this Contract, Party
A and Party B may enter into separate written agreement as annex to
this Contract. Any annex, amendment or supplement to this Contract
shall constitute a party of this Contract and have the same legal
effect as this Contract.
17.2 Any notice, request or other communication with respect to this
Contract by Party B to Party A, including but not limited to tele-fax,
telegraph or fax shall be deemed to be delivered to Party A upon
transmission; mail letter shall be deemed to be delivered to Party A
on third day of registered mail; in case of hand delivery, on the date
when the recipient signs on the receipt.
17.3 This Contract is executed with three copies, one of which is kept by
Party A, one by Party B, one by the Borrower, for reference for
implement.
17.4 Party B has taken reasonable action to remind Party A to note
provisions under this Contract exempting or limiting its liability and
has made sufficient explanation for relevant provision upon request of
Party A; Party A and Party B do not have disagreement upon
understanding of all provisions of this Contract.
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Party A (corporate seal)
Legal Representative: /s/ ▇▇▇▇ ▇▇▇▇▇
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(or authorized representative)
Party B (corporate seal)
Legal Representative: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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(or authorized representative)
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