EXHIBIT 10.128
GUARANTEE, dated as of September 24, 1996 (this
"Guarantee"), made by the undersigned (the "Guarantor"), in favor
of PAN-WESTERN ENERGY CORPORATION LLC, a Cayman Islands
corporation (the "Lender"), as the lender party to the
Shareholder Loan Agreement, dated September 24, 1996 (the
"Shareholder Loan Agreement") between the Lender and Tangshan Pan-
Western Heat and Power Co., Ltd. (the "Borrower"), an equity
joint venture organized under the law of the People's Republic of
China (the "PRC").
W I T N E S S E T H:
WHEREAS, Lender has agreed to make loans to the Borrower,
pursuant to the Shareholder Loan Agreement;
WHEREAS, the Guarantor will derive substantial direct and
indirect benefit from the making of such loans to the Borrower;
WHEREAS, it is a condition precedent to the obligation of
the Lender to make such loans to the Borrower that the Guarantor
shall have executed and delivered this Guarantee for the benefit
of the Lender;
NOW, THEREFORE, in consideration of the premises and for
other valuable consideration, the Guarantor hereby agrees for the
benefit of the Lender as follows:
1. Defined Terms. a. Unless otherwise defined herein,
terms defined in the Shareholder Loan Agreement and used herein
shall have the meanings given to them in the Shareholder Loan
Agreement.
b. As used herein, "Obligations" is the collective
reference to the unpaid principal of and interest on the Project
Note and all other obligations and liabilities of the Borrower to
the Lender (including, without limitation, interest accruing at
the then applicable rate provided in the Shareholder Loan
Agreement after the maturity of the Loans and interest accruing
at the then applicable rate provided in the Shareholder Loan
Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower), which may arise under, out
of, or in connection with, the Shareholder Loan Agreement, the
Project Note, the other Financing Agreements or any other
document made, delivered or given in connection therewith.
2. Guarantee a. Subject to the provisions of paragraph
2(b), the Guarantor hereby unconditionally and irrevocably
guarantees to the Lender the prompt and complete payment (in RMB
for conversion under Borrower's foreign debt registration
certificate for the Shareholder Loan Agreement, and Guarantor
hereby commits itself to make up any shortfall in RMB therefor)
and performance by the Borrower when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.
b. Anything herein or in any other Financing Agreement to
the contrary notwithstanding, the maximum liability of the
Guarantor hereunder and under the other Financing Agreements
shall in no event exceed the amount which can be guaranteed by
the Guarantor under applicable laws relating to the insolvency of
debtors.
c. The Guarantor further agrees to pay any and all expenses
(including, without limitation, all fees and disbursements of
counsel) which may be paid or incurred by the Lender in
enforcing, or obtaining advice of counsel in respect of, any
rights with respect to, or collecting, any or all of the
Obligations and/or enforcing any rights with respect to, or
collecting against, the Guarantor under this Guarantee.
d. The Guarantor agrees that the Obligations may at any
time and from time to time exceed the amount of the liability of
the Guarantor hereunder without impairing this Guarantee or
affecting the rights and remedies of the Lender hereunder.
e. No payment or payments made by the Borrower, any other
guarantor or any other person or received or collected by the
Lender from the Borrower, any other guarantor or any other person
by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in
reduction of or in payment of the Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of the
Guarantor hereunder, which shall, notwithstanding any such
payment or payments other than payments made by the Guarantor in
respect of the Obligations or payments received or collected from
the Guarantor in respect of the Obligations, remain liable for
the Obligations up to the maximum liability of the Guarantor
hereunder until the Obligations are paid in full.
f. The Guarantor agrees that whenever, at any time, or from
time to time, it shall make any payment to the Lender on account
of its liability hereunder, it will notify the Lender in writing
that such payment is made under this Guarantee for such purpose.
3. Right of Set-off. The Guarantor hereby irrevocably
authorizes the Lender at any time and from time to time without
notice to the Guarantor, any such notice being expressly waived
by the Guarantor, to set-off and appropriate and apply any and
all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or
claims, in any currency, at any time held or owing by the Lender
to or for the credit or the account of the Guarantor, or any part
thereof in such amounts as the Lender may elect, against and on
account of the obligations and liabilities of the Guarantor to
the Lender hereunder and claims of every nature and description
of the Lender against the Guarantor, in any currency, whether
arising hereunder, under the Shareholder Loan Agreement, the
Project Note, any Financing Agreements or otherwise, as the
Lender may elect. The rights of the Lender under this Section
are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Lender may have.
4. No Subrogation. Notwithstanding any payment or
payments made by the Guarantor hereunder or any set-off or
application of funds of the Guarantor by the Lender, the
Guarantor shall not be entitled to be subrogated to any of the
rights of the Lender against the Borrower or any guarantee or
right of offset held by the Lender for the payment of the
Obligations, nor shall the Guarantor seek or be entitled to seek
any contribution or reimbursement from the Borrower in respect of
payments made hereunder, until all amounts owing to the Lender by
the Borrower on account of the Obligations are paid in full.
5. Amendments, etc. with respect to the Obligations; Waiver
of Rights. The Guarantor shall remain obligated hereunder
notwithstanding that, without any reservation of rights against
the Guarantor and without notice to or further assent by the
Guarantor, any demand for payment of any of the Obligations made
by the Lender may be rescinded by such party and any of the
Obligations continued, and the Obligations, or the liability of
any other party upon or for any part thereof, or any guarantee
therefor or right of offset with respect thereto, may, from time
to time, in whole or in part, be renewed, extended, amended,
accelerated, compromised, waived, surrendered or released by the
Lender, and the Shareholder Loan Agreement, the Project Note and
the other Financing Agreements and any other documents executed
and delivered in connection therewith may be amended,
supplemented or terminated, in whole or in part, as the Lender
may deem advisable from time to time.
6. Guarantee Absolute and Unconditional. The Guarantor
waives any and all notice of the creation, renewal, extension or
accrual of any of the Obligations and notice of or proof of
reliance by the Lender upon this Guarantee or acceptance of this
Guarantee. The Obligations shall conclusively be deemed to have
been created, contracted or incurred, or renewed, extended,
amended or waived, in reliance upon this Guarantee. The
Guarantor waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon the
Borrower or any other guarantor with respect to the Obligations.
Each Guarantor understands and agrees that this Guarantee shall
be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity,
regularity or enforceability of the Shareholder Loan Agreement,
the Project Note or any other Financing Agreement, any of the
Obligations or any guarantee or right of offset with respect
thereto at any time or from time to time held by the Lenders, (b)
any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or
be asserted by the Borrower against the Lender, or (c) any other
circumstance whatsoever (with or without notice to or knowledge
of the Borrower or the Guarantor) which constitutes, or might be
construed to constitute, an equitable or legal discharge of the
Borrower for the Obligations, or of the Guarantor under this
Guarantee, in bankruptcy or in any other instance.
7. Reinstatement. This Guarantee shall continue to be
effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the Lender
upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or any guarantor, or upon or as a
result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, the Borrower
or any guarantor or any substantial part of its property, or
otherwise, all as though such payments had not been made.
8. Payments. The Guarantor hereby guarantees that payments
hereunder will be paid to the Lender without set-off or
counterclaim at the office of the Lender located at ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, U.S.A., or to such
account at such financial institution as Lender may direct by
notice to the Guarantor.
9. Notices. All notices, requests and demands to or upon
the Lender or the Guarantor shall be in writing (or by telex, fax
or similar electronic transfer confirmed in writing) and shall be
deemed to have been duly given or made (i) when delivered by hand
or (ii) if given by mail, when deposited in the mails by
certified mail, return receipt requested, or (iii) if by telex,
fax or similar electronic transfer, when sent and receipt has
been confirmed, addressed as follows:
a. if to the Lender, at its address or transmission number
for notices provided in the Shareholder Loan Agreement; and
b. if to the Guarantor, at its address or transmission
number for notices set forth under its signature below.
10. Severability. Any provision of this Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
11. Integration. This Guarantee represents the entire
agreement of the Guarantor with respect to the subject matter
hereof and there are no promises or representations by the Lender
relative to the subject matter hereof not reflected herein.
12. Amendments in Writing; No Waiver; Cumulative Remedies.
a. None of the terms or provisions of this Guarantee may be
waived, amended, supplemented or otherwise modified except by a
written instrument executed by the Guarantor and the Lender.
b. The Lender shall not by any act, delay, indulgence,
omission or otherwise be deemed to have waived any right or
remedy hereunder or to have acquiesced in any Default or Event of
Default or in any breach of any of the terms and conditions
hereof. No failure to exercise, nor any delay in exercising, on
the part of the Lender, any right, power or privilege hereunder
shall operate as a waiver thereof. A waiver by the Lender of any
right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Lender would
otherwise have on any future occasion.
c. The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.
13. Section Headings. The section headings used in this
Guarantee are for convenience of reference only.
14. Successors and Assigns. This Guarantee shall be
binding upon the successors and assigns of the Guarantor and
shall inure to the benefit of the Lender and its successors and
assigns.
15. Governing Law. This Guarantee shall be governed by,
and construed and interpreted in accordance with, the law of the
Cayman Islands.
IN WITNESS WHEREOF, the undersigned has caused this
Guarantee to be duly executed and delivered by its duly
authorized officer as of the day and year first above written.
TANGSHAN PAN-SINO HEAT CO., LTD.
By: /s/ L. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: L. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Deputy General Counsel
Address for Notices:
West Gujiaying Cun, Bencheng, Luannan County, Hebei Province,
People's Republic of China
ACKNOWLEDGED AND AGREED BY:
PAN-WESTERN ENERGY CORPORATION LLC
By: /s/ L. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: L. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Deputy General Counsel