Exhibit 10.61
Maximum amount guaranty contract
Contract No.:B2111913000006
Guarantor: China Energy Recovery (Shanghai) Co., Ltd (hereinafter referred to as “CER Shanghai”);
Address: Building#26, No. 1388 Zhangdong Road, Zhangjiang Hi-tech Park, Shanghai, China
Creditor: Jiangsu Bank
Address:
In order to warranty the performance of debts under item one of this contract, the guarantor provides the warranty to the creditor voluntarily, and the two parties entered into this contract after equal negotiation.
Article 1: Master contract
The master contract hereunder is A .
A. The creditor and the debtor Zhenjiang Kailin heat energy Co., Ltd. entered into this contract of maximum amount comprehensive facility whose number issx111913000006, and has or will enter into the separate facility business contract, as well as amendments and supplements.
B. The creditor and the debtor , from year month day to yearmonth day , entered into the contracts of loans, bank acceptance drafts, trade financing, letter of guarantee, funds business, and other agreement, as well as amendments and supplements.
Article 2: Primary credit and period
Except the period determined or agreed separately in accordance with the laws, the actual credit under the master contract consists of the primary credit of the contract in the below period: A .
A. From the effective date of “maximum amount comprehensive facility contract” in article one to the expiration date of facility period stipulated in this contract and amendments or supplements.
B. From ___ year __ month ___ day __ to __ year __ month __ day under article one of this contract.
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Article 3: Guarantee covers
The scope of guaranty of creditor hereunder covers all debts occurred under this contract by the debtor, including but not limited to principals, interest expenses, compounded interests, penalties, processing fees, default expenses, damage compensation, legal fees, escrow fees, taxation expenses, arbitration fees, travel fees, assessment fees, auction fees, property preservation fees, compulsory execution fees and other expenses for realization of the creditor’s right.
Article 4: maximum amount of the guaranty
The maximum amount which the guarantee assumed hereunder is at most no more thanRMB 30 million only. The maximum amount of guaranty hereon is loan principal balance by total amount (means line of credit deducting the part of cash deposit) of use of loans and facility actually under the master contract signed between creditor and debtor and in the period as mentioned in the contract deducting the part of repayment, excluding the proceeds of payable except the principals stipulated in article 3, such as interest expenses and penalties, etc., but the guarantee shall still assume the joint liquidated liability.
The guarantor agrees that the debtor can recycle the loans under master contract, and agrees that the debtor can adjust the credit line of all kinds of loans within the line of credit hereunder, and the guarantor shall assume the joint guarantee liability.
Article 5:
The guarantor has read the contract comprehensively and carefully and fully understands the master contract entered into between creditor and debtor, upon the request of guarantor, the creditor has made the terms interpretation accordingly as for the master contract and the contract hereunder, and the guarantor are fully aware of and understands the whole terms content of master contract and the contract hereunder, and signed this contract with true willing. The guarantor is fully aware of the legal consequence for the conclusion and performance of the master contract and the contract hereunder may give rise to, and fully confirms the obligations related to this contract.
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Article 6:
The guarantor shall assume the responsibilities for all debts owed by the debtor to the creditor under the master contract, including the debts arising from the prepayment requested by the creditor. After received the written notice sent by creditor, the guarantor shall perform the settlement responsibilities according to the time, kinds of currency, amount, and method of settlement specified by the creditor, and commit to the creditor that the creditor has the right to deduct all amount of guaranty from the guarantor’s account when the creditor deems appropriate, if the deducted proceeds is foreign currency, the currency shall be calculated according to the bid price published by the creditor at the deducted date.
Article 7:
The guarantee obligation of the guarantor (including the inheritor, assignee, and conservator of the guarantor) need continuity under this contract, shall not affected by the change of the guarantor or the debtor (including but not limited to merger, split, recombination,conduct title transaction or transactions of managerial authority by way of lease, contract, and so on). If the debtor’s subject qualification ceases to exist before clear off the loans hereunder, or the debtor declares that its subject qualification cease within six month from the date clear off all of loans leading to its foregoing repayment activity invalid, the guarantor’s warranty obligations is still effective.
Article 8:
The term of the guaranty hereunder is from the date of effective to two years after expiration of the debts hereunder (including the maturity of extension period).
Article 9:
The guaranty obligations under this contract shall not subject to be affected by any change for the terms and conditions of master contract agreed by both creditor and debtor (including but not limited to amendments, supplements, and cancellations). If the creditor and debtor agree to extension or delay the performance of the obligations hereunder, the contract hereunder shall continue to be valid.
In the event of the creditor transfers its credit right to others in the period of guaranty according to the law, the guarantor continues to assume the guaranty responsibility within the scope of the guaranty.
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Article 10:
The guarantor makes the following commitment to the creditor unconditionally and irrevocably: if the debtor fails to or delays to fulfill the obligations of master contract, or confirm the invalidity of the master contract in certain reason, or due to the guarantor fails to or delays to perform any clause hereunder leading to a loss to the creditor, all of above shall be a debt payable for the guarantor to the creditor.
Article 11:
Whatever reasons leading to the master contract invalid in law or part of terms invalid, the guarantor shall still assume the guaranty responsibility for the debtor’s repayment liability in accordance with the terms listed hereunder. The guarantor pledge to monitor the debtor to use the loans (facility), in the event of the debtor change the purpose of the loan, the guarantor shall still assume the guaranty responsibilities.
Any tolerance, grace or postpone the exercise of any right preferential by the creditor to the guarantor under this contract, shall not affect, damage, or restrict the creditor’s all rights in accordance with the contract hereunder, laws and regulations, and normative documents, shall not deem as give up the rights and benefit under this contract, and shall not affect any obligations assumed by the guarantor under this contract.
Article 12:
If there is any collateral security except this guarantee under this contract, the guarantor is willing to perform the joint guaranty responsibility prior to collateral security on all guaranty debts.
Article 13:
The guarantor is an entity established in accordance with the laws, is qualified to identify the contract hereunder and perform joint guaranty responsibility. In addition, signing this contract has obtained empowerment thereof, and the process of performing the contract has been completed.
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Article 14:
The guarantor to sign and perform this contract is its real intension, is true and effective and legal, shall not affected by any relationship of any party hereunder and others or other any events.
Article 15:
The debts hereunder has the equal position with guarantor’s other debts, shall be in the same compensation sequence.
Article 16:
If the guarantor enters into the counter guarantee contract with the debtor upon this contract, this counter guarantee contract shall not damage the creditor’s any interests, and when the guarantor’s compensation arising from the counter guarantee contract and the creditor’s claim are in the same sequence, the creditor shall be compensated prior to the guarantor.
The guarantor shall not request the debtor to set up a counter guarantee by way of property pledge as to the obligations assumed by the debtor hereunder.
Article 17:
The guarantor’s responsibility shall decrease gradually with the decrease of the debts hereunder.
Article 18:
The guarantor shall provide the true, complete, valid financial statement and other relevant materials and information as required by the creditor.
Article 19:
In the event of guarantor change residence, mailing address, telephone number, the scope of business, and the legal representative, shall notice the creditor in written within 10 days from the date of change events occurred.
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Article 21: The application of laws and resolution of dispute
The signing, effectiveness, interpretation, performance and settlement of disputes of this contract shall apply for the People's Republic of China's laws. If there are any disputes based on this agreement, the contracting parties could attempt to resolve them through consultation. If negotiation fails, shall resolve the disputes according to the following way of A :
A. Institute legal proceeding to the court where the creditor located.
B.
The guaranteed claims under the contract arising from the obligations under the "waste heat recovery upgrading project contract" that Zhenjiang Kailin shall fulfill its obligations to CGN Energy, means that CGN Energy is entitled to rights as a creditor against Zhenjiang Kailin under the terms of the "waste heat recovery upgrading project contract”.
Article 2: Guarantee covers
(1) Zhenjiang Kailin shall pay all amounts payable to CGN Energy arising from the “waste heat recovery upgrading project contract”, such as contract prices, penalty, damages, and payments for the use of state funds and so on.
(2) All the expenses that CGN Energy incurred to enforce its rights as a creditor of Zhenjiang Kailin (including but not limited to legal fees, arbitration fees, property preservation fees, travel fees, execution fees, assessment fees, legal fees, auction fees and so on).
Article 3: Ways of guaranty
CER Yangzhou voluntarily provides this guarantee. CGN Energy has the right to directly request CER Yangzhou to undertake the payment obligation under scope of the guaranty contract, even if there is more than one guarantor and there is joint liability between them. CER Yangzhou confirms that CER Yangzhou can not have any plea if Zhenjiang Kailin fails to fulfill its obligations under "waste heat recovery upgrading project contract".
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Article 4: Terms of guaranty
The guaranty shall terminate two years after Zhenjiang Kailn fulfills its obligations under the "waste heat recovery upgrading project contract". If the "waste heat recovery upgrading project contract" is found to be invalid or terminated, the guaranty period shall be two years from the date the "waste heat recovery upgrading project contract" was found to be invalid or terminated.
Article 5:
If Zhenjiang Kailin defaults or cannot fulfill its obligations under the "waste heat recovery upgrading project contract", CGN Energy should the first attempt to realize compensation from the mortgage of the equipment under the contract of HT2012ISC010 for the production line of Zhenjiang Kailin’s 800kt/a sulfuric acid waste heat recovery project and the guarantee of Jiangsu SOPO (Group) Company. The guarantee under this contract is independent and accumulated to any other guarantee which CGN Energy has or will obtain, and this guarantee will be not reduced or affected by any other guarantee which CGN Energy has or will obtain in any way. CGN Energy realized guarantee under this agreement will not in condition of undertaking any other guarantee. CER Yangzhou agreed, if CGN Energy fails to perform the rights related to this contract (including but not limited to the right of claim, right of guarantee and right of relief), in any case, which is not equal to CGN Energy abandon that rights, and will not have an impact on perform the rights completely under this agreement.
Article 6: Claims and Confirmations
Zhenjiang Kailin and CGN Energy should amend the contract price, period, penalty, damages, rights and obligations and so on in "waste heat recovery upgrading project contracts.” CER Yangzhou confirms that CER Yangzhou’s guarantee liability will not terminate, and do not require the consent of CER Yangzhou, if there is any changes in the terms of the “"waste heat recovery upgrading project contract" between Zhenjiang Kailin and CGN Energy. However, any addition to the contract price shall require the consent of CER Yangzhou, or else CER Yangzhou will not have any guarantee responsibility for the additional price.
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Article 7: Other Contract Related
The effect of the guarantee contract is independent of the "waste heat recovery upgrading project contract" and its possible affiliations. The validity of all or part of the "waste heat recovery upgrading project contract" does not affect the validity of the guaranty contract. If the "waste heat recovery upgrading project contract" signed between Zhenjiang Kailin and CGN Energy is invalid and both of them are in default, CER Yangzhou will assume the joint responsibility according to the amount of compensation that Zhenjiang Kailin should undertake. Any contracts, agreements, guarantees, tacit understanding or disputes among Zhenjiang Kailin, CGN Energy and CER Yangzhou will have no influence to the validity of this guarantee contract. The guarantee of CER Yangzhou will not be reduced or eliminated if there is any merger, split, joint-stock reform, changes in capital, joint ventures, or other similar circumstances affecting Zhenjiang Kailin and CGN Energy during the contract period
Article 8: Other Clauses
During the guarantee period, CER Yangzhou will be requested for the guaranteed responsibility if there is any breach of contract under the "waste heat recovery upgrading project contract" or if CGN Energy regards that an event happened that affects its ability on realizing its claims.
Article 9: Representations and Warranties
CER Yangzhou guarantee:
1. The provided guarantee to CGN Energy is legal, complete, true and effective;
2. CER Yangzhou’s financial station is sufficient to ensure the capability of fulfilling the guarantee; CER Yangzhou is willing to fulfill the responsibility with all its properties;
3. The provided guarantee procedure is legal and effective;
4. There is no matter undisclosed that should be, there is no case for infringement of legal rights of third parties, otherwise CER Yangzhou will assume all the legal responsibility arising from the dispute and compensate all the losses to CGN Energy;
5. In the meantime, CER Yangzhou will assume all the cost rising from the process allowing CGN Energy to achieve its own claims (including: evaluate and auction fee, litigation costs, implementation costs, counsel fees etc.)
Article 10: Effective
| 1. | This contract shall take effect from the date of signing; |
| 2. | For the actual situation, each party can amend this agreement in the confirmed supplement after negotiation; |
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| 3. | If there are any disputes based on this agreement, the contracting parties could attempt to resolve them through consultation. If negotiation fails, either party may bring proceedings in a court of law. This Contract shall be governed by and interpreted in accordance with the law of the People's Republic of China; |
| 4. | The contract is in three duplicates, one copy for each party; |
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(Signature page, no text)
Contract party:
CER Energy Recovery (Yangzhou) Co., Ltd (Stamp)
Signature
Kailin Energy Zhenjiang, Ltd. (Stamp)
Signature
China Guangdong Nuclear Energy Service Co., Ltd (Stamp)
Signature
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