EXHIBIT 10.11
[ENGLISH TRANSLATION]
GUARANTEE CONTRACT
CHINA CONSTRUCTION BANK
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Heibei Branch
Contract No.: 2005-011
Guarantor (Party A): Baoding Tianwei Baobian Electric Co., Ltd.
Address: 2222 Tianwei West Road, Baoding, 071000
Legal Representative
(Responsible Person): Ding Qiang
Fax: 0312-3230382
Telephone: 0312-3308517
Creditor (Party B): China Construction Bank Corporation, Baoding Tianwei
West Road Sub-branch
Address: 555 Tianwei West Road, Baoding, 071000
Responsible Person: Zhang Qinglin
Fax: 0312-3223328
Telephone: 0312-3211771
Guarantor ("Party A"): Baoding Tianwei Baobian Electric Co., Ltd.
Creditor ("Party B"): China Construction Bank Corporation, Baoding Tianwei West
Road Sub-branch
In order to ensure the performance of the RMB Loan Agreement (No.:
2005-011) entered into by Baoding Tianwei Yingli New Energy Resources Co., Ltd.
(the "Debtor") and Party B (the "Master Contract") and the realization of Party
B's creditor's rights, Party A is willing to provide a joint and several
liability guarantee with respect to the indebtedness incurred between the Debtor
and Party B in connection with the Master Contract. Party A and Party B hereby
enter into this contract (this "Contract") through consultation in accordance
with the relevant laws, regulations and rules for the compliance and
implementation by the parties.
ARTICLE 1 FORM OF GUARANTEE
PARTY A SHALL PROVIDE A JOINT AND SEVERAL LIABILITY GUARANTEE
PARTY A HEREBY ACKNOWLEDGES THAT, IN EVENT OF ANY FAILURE BY THE
DEBTOR TO PERFORM ITS INDEBTEDNESS PURSUANT TO THE MASTER CONTRACT, PARTY B
SHALL HAVE THE RIGHT TO DIRECTLY REQUEST PARTY A TO BEAR ITS LIABILITIES WITHIN
ITS SCOPE OF GUARANTEE, WHETHER OR NOT PARTY B HAS ANY OTHER GUARANTEE FOR THE
CREDIT CLAIM UNDER THE MASTER CONTRACT, INCLUDING, BUT NOT LIMITED TO,
GUARANTEE, MORTGAGE, PLEDGE, PERFORMANCE BOND, STANDBY LETTER OF CREDIT AND ANY
OTHER FORM OF GUARANTEE.
Article 2 Scope of Guarantee
The principal of the credit claim, Renminbi (currency) Twenty Million
Yuan, and interest (including compound interest and default interest),
liquidated damages, damages and expenses incurred in connection with the
realization of the credit claim by Party B (including, but not limited to,
litigation fees, arbitration fees, property preservation fees, travel expenses,
enforcement fees, evaluation fees and auction fees).
Article 3 Guarantee Period
The guarantee period shall be from the date on which this Contract
becomes effective until two (2) years after the expiration date of the debt
performance period under the Master Contract. In the event of any renewal with
the consent of Party A, the guarantee period shall be two (2) years after the
expiration date of the debt performance period as separately agreed in the
renewal agreement.
ARTICLE 4 AMENDMENT TO THE GUARANTEED MASTER CONTRACT
PARTY A HEREBY ACKNOWLEDGES THAT ANY AMENDMENT TO THE PROVISIONS OF
THE MASTER CONTRACT AS AGREED BY PARTY B AND THE DEBTOR SHALL BE DEEMED TO HAVE
BEEN
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APPROVED BY PARTY A, AND PARTY A'S LIABILITIES UNDER THE GUARANTEE SHALL NOT BE
REDUCED OR RELEASED, EXCEPT FOR:
(I) ANY EXTENSION OF THE DEBT PERFORMANCE PERIOD;
(II) ANY INCREASE OF THE PRINCIPAL OF THE CREDIT CLAIM.
ARTICLE 5 INDEPENDENCY OF THE VALIDITY OF CONTRACT
THIS CONTRACT SHALL BE INDEPENDENT FROM THE MASTER CONTRACT. THE
INVALIDITY OF THE MASTER CONTRACT SHALL NOT AFFECT THE VALIDITY OF THIS
CONTRACT. IF THE MASTER CONTRACT IS HELD INVALID, PARTY A SHALL BE JOINTLY AND
SEVERALLY LIABLE FOR ANY INDEBTEDNESS INCURRED IN CONNECTION WITH THE RETURN OF
PROPERTY OR INDEMNIFICATION FOR DAMAGES BY THE DEBTOR.
Article 6 Guarantee Capacity
During the guarantee period, if Party A is incapacitated or is likely
to become incapacitated with respect to the guarantee, or the legal person or
other organization, as guarantor, enters into any contractual operation, lease,
consolidation, merger, joint venture, split-off, joint operation, joint-stock
restructuring or revocation, Party A shall give prior notice to Party B. The
surviving entity following any such change or the authority that has decided on
the revocation of Party A shall be liable for all obligations under this
Contract. In the event that Party B believes that the surviving entity does not
have the relevant guarantee capacity, the authority that has decided on the
revocation of Party A shall provide a new guarantee acceptable to Party B, and
enter into a guarantee contract therefor.
During the guarantee period, without the prior consent of Party B,
Party A shall not provide any guarantee beyond its capacity to any third party.
Article 7 Financial Supervision of the Guarantor
During the guarantee period, Party B shall have the right to supervise
the funds and financial position of Party A, and Party A shall provide its
financial statements and other relevant materials strictly according to the
facts.
ARTICLE 8 EARLY ASSUMPTION OF GUARANTEE LIABILITIES
DURING THE GUARANTEE PERIOD, IF PARTY B DECLARES THAT ANY DEBT BECOMES
DUE PREMATURELY PURSUANT TO THE MASTER CONTRACT, PARTY B SHALL HAVE THE RIGHT TO
REQUEST PARTY A TO BEAR ITS LIABILITIES UNDER THE GUARANTEE WITHIN THIRTY (30)
BANK BUSINESS DAYS FROM THE PREMATURE DATE, AND PARTY A HAS AGREED TO BEAR SUCH
LIABILITIES AS REQUESTED BY PARTY B.
Article 9 Transfer and Collection of Amounts Payable
Party B shall have the right to transfer and collect all amounts
payable by Party A
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within the scope of guarantee from the accounts opened by Party A with China
Construction Bank.
Article 10 Other Agreements between the Parties
1. In the event that the Debtor enters into any merger, split-off,
joint-stock restructuring, increase or decrease of registered
capital, joint venture, joint operation or change in name during
the guarantee period, Party A's liabilities under the guarantee
shall not be reduced or released.
2. The guarantor shall have the obligation to supervise the use of
the proceeds of loans by the borrower.
3. In the event that Party B makes any loan in foreign currency to
the Debtor, Party A agrees to bear the liabilities under the
guarantee in the currency as agreed in the Foreign Currency Loan
Agreement. The performance of obligation in any other currency
shall be approved by Party B, and the amount concerned shall be
converted based on the bank selling rate of Party B's quoted
foreign exchange rate on the payment date.
4. The guarantor has fully understood the risks relating to interest
rate. If a floating interest is used under the Master Contract,
the guarantor is willing to bear the liability increased as a
result of the floating interest rate.
5. ___________/______________;
6. ___________/______________.
Article 11 Contract Dispute Resolution
Any dispute arising from the performance of this Contract shall be
settled through consultation. If no settlement can be reached through such
consultation, such dispute shall be solved using the first approach set forth
below:
(i) to bring an action before the People's Court in the jurisdiction
in which Party B is located.
(ii) to submit the dispute to ________/________ arbitration commission
for arbitration (in ______/______)in accordance with the then effective
arbitration rules of such commission at the time of applying for arbitration.
The arbitration award shall be final and binding on the parties.
During the litigation or arbitration period, the parties shall perform
the provisions of this Contract irrelevant to the dispute.
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Article 12 Effectiveness of Contract
This Contract shall become effective after it is signed by both the
legal representative (responsible person) or authorized agent of Party A or
sealed with corporate seal (if Party A is a natural person, then only his/her
signature is required) and the responsible person or authorized agent of Party B
and sealed with corporate seal.
Article 13 This Contract shall be executed in four (4) copies.
Article 14 Representations and Warranties
1. Party A is fully aware of the business scope and authorization
authority of Party B.
2. Party A has read all terms of this Contract, especially the terms
hereof in bold type. At the request of Party A, Party B has given
a relevant explanation of the Articles hereof. Party A has become
fully aware of and understood the meaning of the terms of this
Contract and the legal consequences thereof.
3. Party A has the power to execute this Contract.
Party A (Corporate Seal): Baoding Tianwei Baobian Electric Co.,
Ltd.
Legal Representative (Responsible /s/ Jing Chongyou
Person) or Authorized Agent ----------------------------------------
(Signature): December 21, 2005
Party B (Corporate Seal): China Construction Bank, Baoding Tianwei
West Road Sub-branch
Responsible Person or Authorized /s/ Zhang Qinglin
Agent (Signature): ----------------------------------------
December 21, 2005
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