Contractof Guarantee

 

Contract No.: [     ]

 

Guarantor (Party A): [Zhejiang Changxing Chisen XinguangyuanCo., Ltd.]

 

Number of the Business License: [33052200009387]

 

Domicile: [Changxing County Economic Development Zone, Zhejiang]   Zip Code: [313100]

 

Legal Representative: [XU Keyong]

 

Opening Financial Institution: [Bank of China]

 

Bank Account No.: [144524008093001]

 

Tel.: [05726029148]                                                                           Facsimile: [05726030427]

 

Lender (Party B): CITIC Trust Co., Ltd.

 

Domicile: 13/F, Jingcheng Plaza, Xinyuan South Road 6, Chaoyang Dist., Beijing  Zip Code: 100004

 

Legal Representative: JU Weimin

 

Opening Financial Institution: [Zhejiang Branch, Bank of China]

 

Bank Account No.: [800139424008027001]

 

Tel.: [010-84861065]                                                                           Facsimile: [010-84861856]

 

In order to ensure the performance of the Trust Loan Contract entered into by and between [Changxing Chisen Electric Co., Ltd.] (hereinafter “Borrower”) and Party B with the number [P2009M17ZJZH00012F14-0081-1] (hereinafter the “Master Contract”) and guarantee the fulfillment of the Lender’s right of Party B, Party A is willing to provide guarantee for the debts of Borrower under the Master Contract. Party A and Party B hereby agree as follows through negotiations for mutual compliance.

 

 

Lender grants a credit loan with the amount of Renminbi Sixty Million (in numbers: RMB60,000,000.00), which shall be used by Borrower for production and operations, with the term of   [ ] year, and the loan interest rate 5.31%.

 

 

The scope of guarantee herein is [all the debts under the Master Contract, including but not limited to all the principal, the interest (including the compound interest and penalty interest), liquidated damage, damages, other amount that Borrower shall pay to Party B (including but not limited to the related handling charge, communication fee, miscellaneous fees), the fees incurred to Party B arising from the fulfillment of the Lender’s right and guarantee right (including but not limited to litigation fees, arbitration fees, fees for preservation of properties, travelling expenses, enforcement fees, appraisal fees, auction fees, public notarization fees, service fees, public announcement fees and attorney’s fees).

 

 

The guarantee provided by Party A hereunder shall be a guarantee with the joint and several liabilities.

 

 

 

The Term of Guarantee hereunder shall be two years as from the effectiveness date of this Contract until the expiration date of the term for fulfilling the debt under the Master Contract. Where the term of the debt is extended, subject to the consent of Guarantor, the Term of Guarantee shall last for the two years as from the expiration date of the term for fulfilling the debt as stipulated in the extension agreement. Provided that Party B announces to advance the maturity of the debt pursuant to the Master Contract, the Term of Guarantee shall last for the two years as from the date of the earlier maturity of the debt announced by Party B. In the event that the debt under the Master Contract is fulfilled on installments, then with respect to each debt, the Term of Guarantee shall be two years as from the expiration date of the term for fulfilling the last debt.

 

 

The validity of this Contract is independent from the Master Contract. Failure of the Master Contract to be established or effective or invalidity, partial invalidity or revocation or rescission thereof shall not affect the effectiveness of this Contract. If the Master Contract is determined as not established or effective, invalid or partially invalid, or revoked or rescinded, Party A shall be jointly and severally liable for the debts arising from Borrower returning the property or compensating the losses.

 

Provided that any clause hereof or part of the contents thereof becomes or will become invalid, such invalid clause or part shall not affect the validity of this Contract, other clauses hereof or other contents of this clause.

 

 

6.1 If Party B and the Borrower agree to modify the clauses of the Master Contract (including but not limited to the change to the currency of repayment, repayment method, loan bank account number, repayment bank account number, plan of using the loan, date of commencing the interest, date of ending the interest, change to the starting date and the ending date of the debt fulfillment term without extending the term for fulfilling the debt), Party A agrees to hold a joint and several liability for the changed debt under the Master Contract, without separate consent of Party A.

 

Notwithstanding the foregoing, without the prior consent of Party A, where Party B and Borrower agree to extend the term for fulfilling the debt or increase the principal of the Lender’s right, Party A shall only be jointly and severally liable, pursuant to this Contract, for the debt under the Master Contract that has not been changed.

 

6.2 The guarantee liabilities of Party A shall not be mitigated or exempted due to any one of the following events:

 

(1)   Restructuring, consolidation, merger, division, increase or decrease of the registered capital, joint venture, joint operation, change of the name of Party B or Borrower;

 

(2)   Party B entrusts a third party to fulfill its obligations under the Master Contract.

 

6.3 Where the transfer of Lender’s rights or debts under the Master Contract is ineffective, invalid, revoked or rescinded, Party A shall still undertake a joint and several guarantee liability to Party B as specified herein.

 

6.4 Where Party A fully transfers the debts under the Master Contract to a third party, it shall inform Party A in writing promptly when the Lender’s right transfer contract is entered into.

 

 

7.1 If the debts under the Master Contract matures or Party B announces the debts to be mature in advance pursuant to the provisions of the Master Contract or the law, where Borrower fails to fully fulfill the debts on time or Borrower violates other provisions of the Master Contract, Party A shall immediately undertake the guarantee liability within the Scope of Guarantee.

 

 

7.2 No matter whether Party B has other guarantee for the debts under the Master Contract (including but not limited to such guarantee modes: guarantee, mortgage, pledge, letter of guarantee or standby letter of credit), no matter when it is established, whether it is valid, whether Party B files a claim against other guarantors, whether a third party agrees to undertake the whole or partial debts under the Master Contract, or whether other guarantee is provided by Borrower itself, the guarantee liability of Party A hereunder shall not be mitigated or exempted, Party B may directly require Party A to undertake the guarantee liability within its scope of guarantee as stipulated herein and Party A shall not raise any objection.

 

7.3 In the event that Party A only provides the guarantee for the partial debt under the Master Contract, Party A agrees that, even if the debt under the Master Contract is partially discharged due to the settlement of Borrower, Party B’s fulfillment of other guarantee right or for any other reason, Party A shall still undertake the guarantee liability for the debt that is not discharged within the scope of the guarantee pursuant to this Contract.

 

7.4 Provided that Party A only provides the guarantee for the partial debt under the Master Contract, and the debt under the Master Contract fails to be fully settled after Party A undertakes the guarantee liability, Party A undertakes that, its claims to the right of subrogation or the right to seek compensation (including the advance exercise) against other Borrower or guarantor shall not cause any harm to the interest of Party B and agrees that the settlement of the debts under the Master Contract is superior to the fulfillment of Party A’s right of subrogation or the right to seek compensation.

 

To be more specific, prior to the full settlement of Party B’s Lender’s rights:

 

(1) Party A agrees not to claim for the right of subrogation or the right to seek compensation against other Borrower or guarantor; if for any reason whatsoever, Party A fulfils the above rights, the amount it obtains shall be first used to settle the outstanding Lender’s right of Party B;

 

(2) Provided that the debts under the Master Contract has a security for things, Party A agrees not to file any claim for the security thing or the amount obtained from the disposal thereof, which shall be first used to settle the outstanding Lender’s right of Party B;

 

(3) Provided that Borrower or other guarantor provides counter-guarantee for Party A, the amount that Party A obtains based on the above counter-guarantee shall be first used to settle the outstanding Lender’s right of Party B.

 

7.5 Party A has been fully aware of the interest rate risks. Provided that Party B adjusts the interest rate level, the method of calculating or settling the interests pursuant to the provisions of the Master Contract or the change to the interest policy of the State, which results in the increase of the interest, penalty interest or compound interest that Borrower shall repay, Party A shall be jointly and severally liable for the increased part.

 

 

8.1 Party A shall supervise the use of the loan by Borrower (including the purposes), and accept the supervision of Party B on the capital, property and operation status of Party A, provide such information, documents and materials as the financial statements according to the request of Party B and ensure its accuracy, authenticity, integrity and validity thereof. Without the written consent of Party B, Party A shall not provide guarantee for a third party that is beyond its capacity;

 

8.2 In any of the following situations: contracting, escrow (takeover), lease, share-equity transformation, decrease of registered capital, investment, joint operation, consolidation, merger, acquisition and restructuring, division, joint venture, applying for or being applied for suspension of business for internal rectification, applying for dissolution, being revoked, applying for or being applied for bankruptcy, change to the controlling shareholder/actual controller or transfer of major assets, production suspension, shut-down, being imposed a significant amount of fines by the competent authority, being deregistered, being revoked the business license, being involved in major legal dispute, severe difficulties or financial deterioration occurred to production or operation , legal representative or major responsible person unable to perform the normal duties, or losing or probably losing the guarantee capacity for any reason, Party A shall immediately inform Party B in writing and carry out the undertaking, transfer or commitment of the guarantee liability hereunder or provide a new guarantee for the performance of the Master Contract to be acknowledged by Party B.

 

 

8.3 In the event that there is any change to such aspects as the name, legal representative (responsible person), domicile, scope of business, registered capital or the articles of association of the company (enterprise) of Party A, Party A shall inform Party B in writing within thirty (30) working days upon the change and attach the related materials changed.

 

8.4 Within the term of this Contract, in the event that Party A provides any other form of guarantee for a third party, it shall not damage the interest of Party B; without the written consent of Party B, Party A shall not provided a guarantee to a third party beyond its capacity.

 

 

Party A makes the following representation and warranty to Party B:

 

9.1 Party A is a legal person registered under the laws and regulations of the People’s Republic of China. Until the date on which this Contract is signed, Party A is in the status of normal operations and there is no factors, existing or reasonably expected, that may result in the continual normal operation of Party A during the Term of Guarantee.

 

9.2 Party A acknowledges that it is fully aware of the status of Borrower’s assets, debts, operation, credit and credibility, whether Borrower has the subject qualification and authority to sign the Master Contract and all the contents of the Master Contract.

 

9.3 Execution and performance of this Contract by Party A complies with the provisions of the laws, regulations, rules and the articles of association and internal constitutional documents of Party A and has already obtained the approval of the company’s internal competent body and/or the State’s competent authority. Any and all the liabilities arising from the lack of Party A in the right to sign this Contract shall be undertaken by Party A, including but not limited to full compensation for the losses that Party B suffered thereby.

 

9.4 Any documents, materials, statements and vouchers provided by Party A to Party B for fulfilling the obligations hereunder are accurate, authentic, complete and valid.

 

9.5 Apart from the circumstances disclosed to Party B in writing, Party A fails to conceal any event, already happened or bound to happen, that may result in the obvious deterioration or loss of the guarantee capacity.

 

9.6 No matter whether Party A has already or will enter into a counter-guarantee agreement or an agreement alike with the Borrower under the Master Contract or other guarantee, such agreement will not damage, by law or in fact, any right and interest of Party B under this Contract.

 

9.7 Party A agrees Party B to inquire about the credit status of Party A in the credit database established under the approval of the People’s Bank of China or credit competent authority or inquire the related entity or department and agrees Party B to provide Party A’s information to the credit database established under the approval of the People’s Bank of China or credit competent authority. Party A further agrees that Party B may reasonably use or disclose Party A’s information as required for the business needs.

 

9.8 With respect to the defaults of Party A, Party B shall be entitled to notify the related department or entity and to make public announcements for collection through the news media.

 

9.9 Party A has fully understood and agreed to all the clauses of the Master Contract and is voluntarily willing to provide the guarantee for the Borrower of the Master Contract and the meaning thereof under this Contract is true.

 

 

10.1 In the event that Party A violates any provision of this Contract or any statutory obligation, or states, expressly or by its activities, that it fails to perform any obligation hereunder, or any representation or warranty in Article 9 hereof is untrue, inaccurate, complete or misleading, Party B may inform Party A to rectify its breach in writing. In the event that Party A fails to rectify such breaches within [5] working days as from the date that Party B sends the above notice, Party A shall be entitled to exercise the following right, together or separately:

 

 

(1) to require Party A to rectify the breaches within the specified time limit;

 

(2) to require Party A to provide new guarantee;

 

(3) to require Party A to compensate the loss;

 

(4) to require Party A to pay the liquidated damages;

 

(5) other remedies allowable by the law.

 

Because Party A’s breach of this Contract results in the economic losses exceeding the liquidated damages, Party A shall pay the damages to Party B with respect to the exceeded part.

 

10.2 If this Contract is held invalid due to Party A’s fault, Party A shall compensate all the losses of Party B within the scope of guarantee.

 

10.3 Within the term of this Contract, in case of any of the following circumstances, Party B shall be entitled to request Party A to undertake the guarantee liability or take the corresponding legal measures against Party A, Party A’s property or the property right of Party A:

 

(1) Where the term for fulfilling the debt under the Master Contract expires, or the debt under the Master Contract matures in advance pursuant to the provisions of the law and regulation or the Master Contract or as agreed by the parties to the Master Contract, Party B has not obtained the settlement;

 

(2) In the event that a situation as specified in Article 8.2 occurs to Party A, Party A fails to fulfill the assumption, transfer or success of the guarantee liability under this Contract pursuant to the request of Party B or fails to provide a new guarantee for the performance of the Master Contract that is approved by Party B.

 

 

11.1 This Contract shall be governed by and construed in accordance with the law of the People’s Republic of China.

 

11.2 Any dispute arising from the performance of this Contract may be settled through negotiations, failing which, it shall be resolved in the following way: Either of the Parties may bring a lawsuit before the People’s court at Party B’s location.

 

 

12.1 Reservations of Rights

 

Party B’s rights hereunder shall not affect and exclude any other rights it shall be entitled to pursuant to the laws, regulations and other contracts. Any tolerance, grace for any default or delay, or preference or suspension in exercising any right hereunder shall not be deemed as a waiver of the rights and interests hereunder or permission or approval of any breaches, nor shall it affect, prevent or obstruct continuous exercise of such right or any other right or result in Party B’s assumption of obligations and responsibilities to Party A.

 

In the event that Party B fails to or delays in exercising any right under the Master Contract or fails to exhaust any remedy under the Master Contract, the guarantee responsibility of Party A hereunder shall not be mitigated or exempted. However, provided that Party B exempts the debts under the Master Contract, the guarantee responsibility of Party A hereunder shall be mitigated or exempted accordingly.

 

 

12.2 Continuity of Obligations

 

Any obligation and joint and several liability of Party A hereunder is continuous and is fully binding upon its successor, receiver, assignee, or the entity after its consolidation, re-structuring or change in name, without being affected by any dispute, claims and legal proceedings or any order of the superior entity or any contract and documents signed by and between the Borrower under the Master Contract and any natural person or legal person or being changed due to the bankruptcy, insolvency of the Borrower under the Master Contract, or its losing the enterprise qualification, changing the articles of association or having any change in nature.

 

12.3 Dissolution or Bankruptcy of Borrower

 

Where Party A knows that Borrower enters into dissolution or bankruptcy procedure, Party A shall inform Party B to file claims.

 

Notwithstanding the provision of the second paragraph of Article 13.1, during the bankruptcy procedure of Borrower, in the event that Party B enters into a reconciliation agreement with Borrower or agrees to the re-construction plan, Party B’s rights hereunder shall not be damaged due to the reconciliation agreement or re-construction plan and the guarantee responsibility of Party A shall not be mitigated or exempted. Party A shall not use the conditions as stipulated in the reconciliation agreement or reconstruction plan to oppose the rights and claims of Party B. With respect to the part of the Lender’s rights that Party B makes compromises to Borrower in the reconciliation agreement or the re-construction plan and hence is not settled, Party B shall still be entitled to request Party A to continuously settle.

 

12.4 Notice

 

(1) unless otherwise specified herein, any notice hereunder between the Parties may be served to the following addresses via [facsimile, mail, express mail or other means as agreed by the Parties]:

 

Lender: CITIC Trust Co., Ltd.

 

Correspondence Address: Jingcheng Plaza Xinyuan South Road 6, Chaoyang Dist., Beijing

 

Zip Code: 100004

 

Tel.: 010-84861065

 

Facsimile: 010-84861856

 

Attention: WANG Hongjian

 

Guarantor: Zhejiang Changxing Changsheng Xingguangyuan Co., Ltd.

 

Correspondence Address: Changxing County Economic Development Zone, Zhejiang

 

Zip Code: 313100

 

Tel.: 05726029148

 

Facsimile: 05726030427

 

Attention: JIN Lihua

 

(2) In case of any change to the correspondence address or contact means of either of the Parties, it shall promptly inform the other in writing. Any losses caused by failure to make such notification shall be solely undertaken by the Party that changes the correspondence address or contact means.

 

12.6 This Contract shall come into effective when it is signed/stamped by the legal representative of both Party A and Party B (person in charge) together with the company’s seal being affixed onto it.

 

12.7 With respect to those uncovered in this Contract, Party A and Party B shall separately enter into a written agreement as the appendix hereto. Any appendix, amendment or supplement hereto shall be integral part of this Contract and have the equal legal binding force to this Contract.

 

12.8 This Contract is in quadruplicate, with each party retain 2 copies, and the remaining shall be used for going through the related procedures.

 

 

12.9 Party A has already read all the clauses of this Contract. Upon Party A’s request, Party B has already explained the relevant clauses of this Contract. Party A is completely aware of and fully understands the meaning and the corresponding legal consequences of the clauses of this Contract.

 

In case of any discrepancy between the provision of this clause and those of other provisions, this clause shall prevail.

 

(The remaining of this page is intentionally left blank).

 

 

 

Party A:    Zhejiang Changxing Chisen Xinguangyuan Co., Ltd.     (Company’s seal)

 

Legal Representative (or Authorized Agent):                    

 

 

MM/DD/YY

 

Party B: CITIC Trust Co., Ltd. (Company’s seal)

 

Legal Representative (or Authorized Agent):                     

 

 

MM/DD/YY