EXHIBIT 10.9
[ENGLISH TRANSLATION]
Contract No. (2005) Yinbao No. 10
MAXIMUM AMOUNT GUARANTEE CONTRACT
China CITIC Industry Bank
MAXIMUM AMOUNT GUARANTEE CONTRACT
GUARANTOR: Baoding Tianwei Baobian Electric Co., Ltd. (HEREINAFTER "PARTY A")
REGISTERED ADDRESS: No. 318 Tianwei West Road, Baoding
MAIL CODE: 071000
TEL: 0312-3308517
FAX: 0312-3308517
LEGAL REPRESENTATIVE: Ding Qiang
BANK AND ACCOUNT: Shijiazhuang Branch of CITIC
CREDITOR: CITIC Industry Bank, Shijiazhuang Branch (HEREINAFTER "PARTY B")
REGISTERED ADDRESS: No. 209 Xinhua East Road, Shijiazhuang
MAIL CODE: 050000
TEL: 87884438
FAX: 87884436
LEGAL REPRESENTATIVE/ RESPONSIBLE PERSON: Chen Yanming
BANK AND ACCOUNT:
DEBTOR: Baoding Tianwei Yingli New Energy Resources Co., Ltd.
REGISTERED ADDRESS: No. 11 Fuxing Road, High-tech District, Baoding
MAIL CODE: 050000
TEL: 0312-3100513
FAX: 0312-3151881
LEGAL REPRESENTATIVE: Ding Qiang
BANK AND ACCOUNT: Shijiazhuang Branch of CITIC
PLACE EXECUTING THIS CONTRACT: Shijiazhuang City
DATE EXECUTING THIS CONTRACT: August 11, 2005
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To ensure satisfaction of credit claims of Party B, Party A is willing to
provide maximum amount guarantee for a series of credit claims between Party B
and the Debtor. Therefore, in accordance with Contract Law, Security Law and
other relevant laws and regulations, upon equal discussion, Party A and Party B
enter into this Contract.
ARTICLE 1 DEFINITION
1.1 Maximum amount guarantee refers to the agreement between the Creditor
and the Guarantor providing that the Guarantor provides guarantee to
the Creditor 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 of debts (including
contingent debts) owed by the Debtor to Party B.
ARTICLE 2 PRINCIPAL CREDIT CLAIM UNDER GUARANTEE
The principal credit claims under guarantee refer to a series of credit
claims arising from August 11, 2005 to August 11, 2007 due to credit extension
by Party B to the Debtor, the maximum amount of which is Renminbi (in words) one
hundred and fifty million yuan. If Party A performs its obligation of security
in accordance with this Contract, such maximum amount is deducted
correspondingly based on the amount paid.
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 B and the Debtor that constitute the basis of creditor-debtor
relationship are the Principal Contracts of this Contract.
ARTICLE 3 FORM OF GUARANTEE
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.
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
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1. The period of the 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 contract expires. The guarantee period under each
specific business contract shall be counted separately.
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.
ARTICLE 5 SCOPE OF GUARANTEE
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, lawyer
fee, travel expense) under the Principal Contracts.
ARTICLE 6 STATEMENT AND WARRANTY OF PARTY A
1. Party A is a legal person or other organization established in
accordance with laws, has the capacity for civil rights and capacity
for civil conduct necessary for execution and implementation of this
Contract and can bear civil liability independently.
2. Party A is voluntary to provide security for the Debtor of the
Principal Contracts. All of its intent expression under this Contract
is real.
3. All documents, statements and representation provided by Party A
relevant to loans under the Principal Contracts 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
1. Party A shall furnish Party B with true and valid legal documents that
can prove its legal position.
2. Within duration of this Contract, in case of change in registered
address, name, telephone number or fax, Party A shall notify Party B
such change in writing in seven calendar days after change.
3. Party B shall periodically or at any time upon request by Party B
provide to
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Party B with statements and other documents that truly reflect its
overall financial condition.
4. 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 calendar days in advance.
5. If there occurs, on the part of Party A, discontinuance of business,
suspension of business, being announced to be in bankruptcy,
dissolution, revocation of business license, forced dissolution,
worsening of financial condition or involvement in material economic
disputes, Party A shall notify Party B in seven calendar days from the
date of occurrence of forgoing.
6. 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. In duration of this Contract, in case of any event under item four or
five of this Article, Party A warrants to make appropriate arrangement
for all guarantee liability under this Contract.
8. 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 in the event of
earlier maturity of debt under the Principal Contracts as agreed in
the Principal Contracts), upon receipt of written notice from Party B,
Party A shall immediately pay to Party B such amount in such way as
notified and repay such debt under the Principal Contracts.
9. If Party A fails to perform its obligation in accordance with item
eight of this Article, Party A authorizes Party B to directly debit
against any account of 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.
10. Unless otherwise provided by this Contract, any amount paid to Party B
by Party A in bearing its guarantee liability shall offset the
following in such order as follows: a. the expense for enforcement of
credit claims; b. damage compensation; c. liquidated damage; d.
compound interest of the principal credit claim; e. delay penalty
interest of the principal credit claim; f. interest of the principal
credit claim; and g. principal of the principal credit claim.
11. In the guarantee period, Party B and the Debtor of the Principal
Contracts may negotiate on amendment of relevant provisions of the
Principal Contracts without consent of party A. But if such amendment
of the Principal Contracts by Party B and the Debtor of the Principal
Contracts apparently increases debt
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of the Debtor, Party A's consent shall be obtained, otherwise Party B
may not bear guarantee liability for the increased part on the Debtor
of the Principal Contracts, provided that, if such increase of debt of
the Debtor of the Principal Contracts is due to adjustment of interest
rate by People's Bank of China, Party B shall bear joint guarantee
liability for such indebtedness increased thereby.
ARTICLE 8 RIGHTS AND OBLIGATIONS OF PARTY B
1. To transfer all of its credit claims under the Principal Contracts to
any third party, Party B shall notify Party A in fifty bank business
days after executing the credit claim transfer contract in writing.
2. During implementation of this Contract, if the People's Bank of China
adjusts loan interest rate and the interest rate under the Principal
Contracts is adjusted correspondingly in accordance with rules of the
People's Bank of China, such adjustment shall not be deemed to be
amendment to the Principal Contracts and this Contract. Party B needs
not to notify Party A and Party A shall continue to bear guarantee
liability.
3. 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.
4. If the Debtor of the Principal Contracts fails to pay all or part of
its debt in accordance with the Principal Contracts (including in the
event of earlier maturity of debt under the Principal Contracts as
agreed in the Principal Contracts), Party B has the right to require
Party A to bear guarantee liability in accordance with this Contract.
5. Party B shall keep materials, documents and information about Party A
provided by Party A in confidentiality, other than those that shall be
inquired or disclosed as required by laws and regulations.
ARTICLE 9 BREACH OF CONTRACT
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.
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.
3. If this Contract becomes invalid due to default of Party A, Party A
shall
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compensate Party B for all of its loss in the extent of the guarantee
scope.
4. In duration of this Contract, in case of any of the following event,
Party B shall have the right to announce that all of the Principal
Contracts are mature and directly require Party B to bear guarantee
liability.
a. that Party B is not repaid at expiry of performance time limit of
any debt under the Principal Contracts;
b. that the Principal Contracts becomes mature earlier according to
provisions thereof;
c. 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;
d. other events on the part of Party A that endanger or harm or may
endanger or harm Party B's interests.
ARTICLE 10 ACCUMULATIVENESS OF RIGHTS
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.
2. The obligations and liabilities of Party A under this Contract are
accumulative and shall not affect or exclude any other obligation and
liability owed by Party A to Party B in accordance with laws and other
contracts. Unless otherwise required by law compulsorily or agreed or
recognized by Party B in writing, Party B shall not bear any liability
for obligations and liabilities owed by Party A to any third party in
accordance with laws or agreements.
ARTICLE 11 CONTINUITY OF OBLIGATIONS
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 of 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.
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ARTICLE 12 NOTARIZATION AND VOLUNTEER ACCEPT OF FORCE ENFORCEMENT
1. If any party of this Contract requests notarization, this Contract
shall be notarized by the notary authority provided by the State.
2. Party A agrees that Party B may apply to the notary authority with
this Contract for issuance of notary certificate that has enforceable
effect. In case that the Debtor fails to pay off amount under credit
extension, interest and relevant expense within repayment time limit
provided by this Contract, Party B may apply for force enforcement
with people's court having jurisdiction with such notary certificate
and Party A will waive all rights of defense and all rights to refuse
to bear guarantee liability to Party B.
ARTICLE 13 FORCE MAJEURE
If Party A is unable to perform its obligations in accordance with this
Contract due to force majeure event, Party A shall notify Party B in ten legal
business days from the date of occurrence of such force majeure event and
provide written certificate about such force majeure event issued by local
notary authority.
ARTICLE 14 OTHER AGREED MATTERS
[INFORMATION MISSING IN THE ORIGINAL DOCUMENT]
ARTICLE 15 APPLICABLE LAW
This Contract shall apply laws of People's Republic of China and is binding
no Party A and Party B.
ARTICLE 16 SETTLEMENT OF DISPUTES
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:
1. to apply for arbitration by _______________ arbitration commission;
2. to sue to people's court for the place of Party B's domicile.
During litigation or arbitration, the provisions of this Contract that are
not involved in dispute shall continue to be implemented.
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ARTICLE 17 EFFECT OF THIS CONTRACT
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).
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 18 EFFECTIVENESS, AMENDMENT AND TERMINATION OF CONTRACT
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.
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 19 MISCELLANEOUS
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.
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 letters 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.
3. This Contract is executed with _____ [INFORMATION MISSING IN THE
ORIGINAL DOCUMENT] copies, ____ [INFORMATION MISSING IN THE ORIGINAL
DOCUMENT] of which is kept by Party A and Party B separately. In case
of notarization, the notary authority may keep one copy.
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Party A: Baoding Tianwei Baobian Electric Co., Ltd.
(Corporate Seal)
Legal Representative:
/s/ Ding Qiang
- -------------------------------------
(or authorized representative)
Corporate seal
Party B: CITIC Industry Bank, Shijiazhuang Branch
(Corporate Seal)
Legal Representative or responsible person:
/s/ Chen Yanming
- -------------------------------------
(or authorized representative)
Corporate seal
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