EXHIBIT 10.92
GUARANTY
This Guaranty is executed as of JULY 16 , 1996.
R E C I T A L S
1. China Harbin Power Equipment Group Company, a Chinese
company with its principal place of business located at 00
Xxxxxxx Xxxxxx, Xxxx Xxxx 000000, Dongli District company with is
principal place of business located at Harbin, China, is the
parent corporation of Harbin Power Engineering Company, Ltd. (the
"Contractor"). Contractor and Tangshan Panda Heat and Power Co.,
Ltd., a Chinese Joint Venture Company with offices at Xxxxx Xxxx,
Luannan County, Tangshan City, Hebei Province 063500, People's
Republic of China, and Tangshan Pan-Western Heat and Power Co.,
Ltd., a Chinese Joint Venture Company, with offices at Xxxxx
Xxxx, Luannan County, Xxxxxxx Xxxx, Xxxxx Xxxxxxxx 000000,
Xxxxxx'x Xxxxxxxx of China (together the "Companies") entered
into that certain Engineering. Procurement and Construction
Agreement, dated as of April 24, 1996 (the "EPC Contract").
2.Pursuant to the terms of the EPC Contract, Contractor is to
provide engineering, procurement and construction services
relating to the Companies' Luannan County 2X50MW Thermal Power
Plant Project, in Luannan County, Hebei Province, People's
Republic of China. As a consequence of providing the services and
guaranties required pursuant to the EPC Contract, Contractor may
become indebted to the Companies;
NOW THERFORE, for valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the undersigned (the
"Guarantor") hereby irrevocably and unconditionally guarantees to
the Companies the prompt payments of the Guaranteed Indebtedness
(hereinafter defined) in accordance with the terms of this
Guaranty, being upon the following terms:
1. The term "Guaranteed Indebtedness", as used herein, means
all liabilities and obligations of the Contractor (including,
without limitation, the obligations of the Contractor to pay
liquidated damages and other performance or delay costs that may
be incurred pursuant to the EPC Contract, together with interest
thereon and at the rates designated in the EPC Contract, and
attorney's fees incurred in connection with the collection
thereof under the EPC Contract or this Guaranty) arising in
connection with the EPC Contract (as the same may be amended from
time-to-time, with of without notice to the Guarantor).
2. This instrument shall be irrevocable, absolute and a
continuing guaranty of payment (and not merely of collection) and
the Guarantor shall remain liable on its obligations hereunder
until the payment in full of its Guaranteed Indebtedness.
3. If Guarantor becomes liable for any indebtedness owing by
the Contractor to the Companies, by endorsement or otherwise
other than under this Guaranty, such liability shall not be in
any manner impaired of affected hereby, and the Companies may
ever have against the Guarantor. The exercise by the Companies of
any rights hereunder or under any other instrument or a law or in
equity, shall not preclude the concurrent or subsequent of any
other rights.
4. In the event of any failure to pay or default by the
Contractor in payment of the Guaranteed Indebtedness, or any part
thereof, when such indebtedness becomes due, either by its terms
or as a result of exercise of any power to accelerate, the
Guarantor shall, on demand by the Companies (or either of them)
And without further notice, without notice having been given to
the Contractor previous to such demand, of the acceptance by the
Companies ( or either of them) of this Guaranty, and without any
notice having been given to the Guarantor previous to such demand
of the creating or incurring of such indebtedness, pay the amount
due thereon to the Companies and it shall not be necessary for
the Companies, in order to enforce such payment by the Guarantor,
first to institute suit or exhaust its rights against the
Contractor or others liable on such indebtedness.
5. The Guarantor hereby agrees that its obligations under the
terms of this Guaranty shall not be released, diminished or
affected for any reason including, without limitation the
occurrence of any or more of the following events: (a) the taking
or accepting of any other security or guaranty for any or all of
the Guaranteed Indebtedness; (b) any release surrender, exchange,
subordination, non-perfection or loss of any other security or
guaranty at any time existing in connection with any or all of
the Guaranteed Indebtedness;(c) any partial or complete release
of the liability of any Person (other than the Contractor) at any
time liable for the payment of any or all of the Guaranteed
Indebtedness (a "Guarantor"); (d) the insolvency, bankruptcy, or
lack of corporate power of the contractor or any Guarantor,
whether now existing or hereafter occurring;(e) any renewal,
extension and/or rearrangement of the payment of any or all of
the Guaranteed Indebtedness, either with or without notice or
consent of the Guarantor, or any adjustment indulgence,
forebearance, or compromise that may be granted or given by the
Companies to Contractor, Guarantor or any other guarantor. (f)any
neglect, delay, omission, failure or refusal of the Companies (or
either of them) to take or prosecute any action for the
collection of any the Guaranteed Indebtedness or to take or
prosecute any action in connection with any instrument or
agreement evidencing or securing all or any part of the
Guaranteed Indebtedness;(g) any failure by the Companies (or
either of them) to notify Guarantor of any renewal, extension, or
assignment of the Guaranteed Indebtedness or any part thereof, or
the release of any security or of any other action taken or
refrained from being taken by the Companies against the
Contractor, or any new agreement between the Companies and the
Contractor it being understood that the Companies shall not be
required to give the Guarantor the Guaranteed indebtedness;(h)
the unenforceability of all or any part of the Guaranteed
Indebtedness against the Contractor by reasons of the fact that
the Guaranteed Indebtedness exceeds the amount permitted by law,
the act of creating the Guaranteed Indebtedness, or any part
thereof, is ultra xxxxx (outside of the scope of authority by the
person creating the same) or that the officers creating the same
acted in excess of their authority or for any reason whatsoever:
(I) the fact that the outstanding principal balance under the EPC
contract may from time to time be zero;(J) if for any reason the
Companies shall be required to refund such payment or pay the
amount thereof to someone else; (k) any amendment of the EPC
contract or any collateral document pursuant to which the
Guaranteed indebtedness is created;(l)any extension of time for
performance of any covenant or condition is effected; or (m) the
waiver of performance under the EPC Contract or failure or
omission to enforce any right thereunder.
6. This Guaranty is for the benefit of each of the Companies
and their respective successors and assigns, and in the event of
an assignment of the Guaranteed Indebtedness, or any part
thereof, the rights hereunder, to the extent applicable to the
indebtedness so assigned, may be transferred with such
indebtedness. This Guaranty is binding not only on the
Guarantor, but on the Guarantor's successors and assigns, and if
this Guaranty is signed by more than one Person, then all
obligations of each Guarantor arising herein shall be jointly
and severally binding on all Guarantors, and their respective
successors and assigns, provided that, without the prior written
consent of the Companies no Guarantor may assign an of its
rights or obligations hereunder to any other Person.
7. The Guarantor represents and warrants that the value of the
consideration received and to be received by the Guarantor is
reasonably worth at least as much as the liability and
obligation of the Guarantor hereunder, and such liability and
obligation may reasonably be expected to benefit the Guarantor
directly or indirectly.
8. By execution hereof, the Guarantor covenants and agrees
that the terms, representations, warranties, covenants and
conditions set forth in the EPC Contract (as amended from time
to time) shall be imposed upon the Guarantor, and the Guarantor
makes and confirms such representations, warranties, covenants,
conditions and provisions of the EPC Contract (as amended from
time to time) are incorporated herein by reference, to the same
extent as if stated verbatim herein, and all terms defined in
the EPC Contract (as amended from time to time)shall have the
same meaning herein, unless specifically defined otherwise
herein.
9. The Guarantor covenants and agrees that it will not assert
any rights arising from payment or other performance hereunder
until all of the Guarantor's liability hereunder shall have been
discharged in full and all of the Guaranteed Indebtedness
existing at the same time of such discharge shall have been paid
and performed in full.
10. All notices, requests and other communications to any party
hereunder shall be in writing (including bank wire, telecopy or
similar writing) and shall be given to such party at its address
or telex number set forth on the signature page hereof ( or if
to the Companies, at their addresses or telecopy numbers set
forth in the EPC Contract) or such other address or telecopy
numbers as such party may hereafter specify for such purpose by
notice to the other party. Each such notice, request or other
communications shall be effective(I) if given by telecopy, when
such telecopy is transmitted to the telepcopy number specified
herein and the appropriate answerback received (II) if given by
mail, then upon actual acknowledge written receipt prepaid
addressed as aforesaid or (III) if given by any other means,
when delivered at the same address specified in this paragraph.
11. Upon the occurrence and during the continuance of any
"Event of Default"(as defined in the EPC Contract) the
Companies(or either of them) are hereby authorized at any time
and from time to time to the fullest extent permitted to set off
and apply any and all of other funds paid to and held or at any
time owing by the Companies to or for the credit or the account
of the Guarantor now or hereafter existing under this Guaranty
or the EPC Contract and although such obligations may be
unmatured. The Companies agree promptly to notify the Guarantor
after any such set-off and application made, provided that the
failure to give such notice shall not affect the validity of
such set-off and applications. The rights of the Companies under
this paragraph are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which
Companies may have.
12. The Guarantor will promptly upon demand pay to the
Companies the amount of any and all reasonable out-of pocket
expenses, including, without limitation, the reasonable fees and
disbursements of counsel and of any agents or experts, which the
Companies(or either of them)may incur in connection with the
(I)administration of this Guaranty,(II) the exercise by the Bank
of any of the rights confined upon it hereinder, or (III)any
default on the part of the Guarantor hereunder.
13. This Guaranty shall be governed by and construed with the
laws of People Republic of China.
EXECUTED as of the day and year first above written.
HARBIN POWER EQUIPMENT COMPANY LIMITED
By: ___________________
Name: ___________________
Title: ___________________
Address: ___________________
_____________________________
_____________________________
