EXHBIT 10.5
DEED OF GUARANTEE
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IMPORTANT NOTICE TO THE GUARANTOR
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This Guarantee will create legal obligations and liabilities on your part. You
are strongly advised to seek independent legal advice before you execute this
Guarantee.
Without prejudice to any provision of this Guarantee, please take note of the
following:-
(1) You may become liable (and if you consist of two or more persons, you
may become liable jointly and severally), instead of or as well as the
Principal, for all debts and liabilities (whether actual or contingent,
and whether past, present or future) incurred by and owing from the
Principal to us at any time and from time to time.
(2) Your maximum liability under this Guarantee is the amount set out in
the Second Schedule hereto plus the sums referred to in Proviso (ii) of
Section B of this Guarantee. Where no amount is specified in the Second
Schedule, the amount ultimately enforceable against you will be
unlimited.
(3) Subject to paragraph (2) above, you will be required to pay, on demand
by us, all sums of money debts and liabilities of the Principal. By way
of examples and without limitation, you may be called upon to pay under
this Guarantee if the Principal has failed to pay us any indebtedness
when due or on demand or if you and/or the Principal are unable or
admit inability to pay debts generally as they become due or in the
event of any proceedings in or analogous to bankruptcy, insolvency,
winding up or liquidation against you or the Principal.
(4) This Guarantee is a continuing guarantee. Nevertheless, you may
extinguish your liability under this Guarantee if (i) pursuant to
Clause 5 of Section C of this Guarantee, you give us 3 months' prior
written notice of determination; and (ii) your liabilities hereunder in
respect of all or any debts and obligations (actual or contingent)
incurred by the Principal to us prior to the effective date of
determination of this Guarantee have been satisfied in full.
(5) We shall be entitled to retain this Guarantee for at least 25 months
after you have extinguished your liabilities under this Guarantee.
Bank of China (Hong Kong) Limited
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TO: BANK OF CHINA (HONG KONG) LIMITED
A. DEFINITION
Unless the context otherwise requires, all capitalized terms used
herein shall have their respective meanings as defined in Clause 28 of
Section C of this Guarantee.
B. GUARANTEE
In consideration of Bank of China (Hong Kong) Limited (hereinafter
called the "Bank", including its successors and assigns) agreeing at
the request of the principal debtor (hereinafter called "the
Principal", whose particulars are set out in Part A of the First
Schedule hereto) and/or the undersigned (whose particulars are set out
in part B of the First Schedule hereto) from time to time or at any
time (i) to grant or continue to grant general banking facilities of
whatever nature and in whatever currency to the Principal either singly
or jointly with other parties on such terms, manner and form and for so
long as the Bank may in its absolute discretion think fit; and/or (ii)
to withhold proceedings against or not to make immediate demand for
repayment from the Principal for so long and on such terms and
conditions as the Bank may in its absolute discretion think fit, I, the
undersigned, HEREBY AGREE (and in case where there are MORE than one
undersigned, we, the undersigned, HEREBY JOINTLY AND SEVERALLY AGREE)
to PAY and SATISFY to the Bank ON DEMAND in writing all sums of money
debts and liabilities whether certain or contingent whether now or at
any time hereafter owing or incurred due but unpaid to the Bank from or
by the Principal (or any one or more of them) in any manner howsoever
or on any account whether as principal or surety and whether alone or
jointly with any other person, firm or corporation or from or by any
firm in which the Principal (or any one or more of them) may be a
partner and in whatever name, style or form including but not limited
to the following:
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(a) any and all sum or sums due owing and/or payable to the Bank
by the Principal (or any one or more of them) under any
banking facilities, dealings, transactions, undertakings,
contracts and/or obligations, liabilities, engagements of
whatever nature and/or under any bills, drafts, notes,
guarantees and/or indemnities;
(b) interest accrued or to be accrued;
(c) commissions, fees and other charges payable by the Principal
to the Bank;
(d) any legal or other costs, expenses, disbursements and/or
payment of whatsoever nature incurred by the Bank in relation
to the Principal or this Guarantee or any other guarantee,
indemnity or security for any money obligations or liabilities
hereby guaranteed on a full indemnity basis.
PROVIDED ALWAYS that:
(i) where no amount is specified in the Second Schedule
hereto as a Specified Amount, the amount ultimately
enforceable against me/us under this Guarantee shall
for all intents and purposes be unlimited; but
(ii) where there is a Specified Amount set out in the
Second Schedule hereto, the total liability
ultimately enforceable against me/us under this
Guarantee shall not exceed in the aggregate an amount
being the total of the Specified Amount together with
a sum equal to all interest accrued or to be accrued
on the Specified Amount calculated at the Agreed
Interest Rate(s), (as well after as before judgment)
to the date of actual payment and all those amounts
referred to in paragraphs (c) and (d) above, PROVIDED
ALWAYS that where the total debts and liabilities
owing by the Principal to the Bank exceeds the limit
ultimately enforceable against me/us under this
Guarantee, the Bank shall be entitled at its absolute
discretion to determine which part or parts of such
debts and liabilities shall be guaranteed and/or
demanded hereunder AND PROVIDED FURTHER that in such
event, should such debts and liabilities (or any part
or parts thereof) determined by the Bank to be
guaranteed and/or demanded under this Guarantee be
paid by the Principal or any third party or parties
other than me/us, my/our liabilities hereunder shall
not thereby be deemed, diminished or discharged and
the Bank shall be entitled to re-determine such other
part or parts of the debts and liabilities then owing
by the Principal to be guaranteed hereunder and
demanded accordingly.
I/We hereby expressly acknowledge and agree that references in this
Guarantee to the Bank shall include any or all of the Bank's branches
and offices whether located or operating in Hong Kong or elsewhere and
this Guarantee shall cover all debts, obligations and liabilities
(actual or contingent) of the Principal to the Bank anywhere in the
world whether to any one or more of the Bank's branches and/or offices
in Hong Kong or elsewhere. The Bank or any of its branches and offices
in Hong Kong or elsewhere shall be entitled to enforce this Guarantee
against me/us in Hong Kong or elsewhere notwithstanding that any debts,
obligations and liabilities (actual or contingent) of the Principal are
owing or incurred to the Bank acting through any of its other branches
or offices in any other jurisdiction.
C. FURTHER COVENANTS
I, the undersigned, XXXXXX FURTHER AGREE AND UNDERTAKE (and in case
where there are more than one undersigned, we, the undersigned, HEREBY
JOINTLY AND SEVERALLY AGREE AND UNDERTAKE) as follows:-
1. CURRENCY INDEMNITY:
(a) All. moneys received or held by the Bank under this
Guarantee may from time to time after demand has been
made be converted into such other currency as the
Bank considers necessary or desirable to cover my/our
obligations and liabilities in that currency at the
then prevailing spot rate of exchange of the Bank (as
conclusively determined by the Bank) for purchasing
the currency to be acquired with the existing
currency.
(b) If and to the extent I/we fail to pay the amount due
on demand the Bank may in its absolute discretion
without notice to me/us purchase at any time
thereafter so much of a currency as the Bank
considers necessary or desirable to cover my/our
obligations and liabilities in such currency hereby
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secured at the then prevailing spot rate of exchange
of the Bank (as conclusively determined by the Bank)
for purchasing such currency with Hong Kong Dollars
and I/we hereby agree to indemnify the Bank against
the full Hong Kong Dollar price (including all costs,
charges and expenses) paid by the Bank.
(c) No payment to the Bank (whether under any judgment or
court order or otherwise) shall discharge my/our
obligation or liability in respect of which it was
made unless and until the Bank shall have received
payment in full in the currency in which such
obligation or liability was incurred and to the
extent the amount of any such payment shall on actual
conversion into such currency fall short of such
obligation or liability expressed in that currency,
the Bank shall have a further separate cause of
action against me/us and shall be entitled to enforce
the security hereby created to recover the amount of
the shortfall.
2. PAYMENT NOT SUBJECT TO DEDUCTION: All payments under this
Guarantee shall be made free of any restriction and
counterclaim and without any set-off, deductions or
withholdings whatsoever. If any payment to be made under this
Guarantee is subject to any tax or other withholding, I/we
undertake to pay to the Bank such additional amount as may be
necessary to ensure that the net amount received (whether as
principal or interest) is equal to the amount which the Bank
would otherwise have received.
3. INTEREST ON SUMS DEMANDED HEREUNDER: In addition and without
prejudice to Proviso (ii) of Section B above, all sums
demanded for payment but unpaid under this Guarantee shall
bear interest from the date of the Bank's demand hereunder to
the date of actual payment (as well after as before judgment)
at the rate of 6% per annum above the cost of fund of the Bank
(as conclusively determined by the Bank, subject to
fluctuation) provided that the Bank may vary the basis of
calculation of such rate upon 30 days' prior notice to me/us
displayed or posted in the Bank's banking halls.
4. CONTINUING SECURITY: This Guarantee shall not be considered as
satisfied by any intermediate payment or satisfaction of the
whole or any part of any sum or sums of money owing by the
Principal but shall be a continuing security and shall extend
to cover all sum or sums of money which shall for the time
being or at any time constitute the balance due from the
Principal to the Bank in whatsoever manner.
5. HAPPENING OF SPECIFIED EVENTS: This Guarantee shall be binding
as continuing security on me/us and shall not be discharged or
be in anyway affected by any one or more or all of the
Specified Events. Without prejudice to the generality of the
foregoing, this Guarantee may be determined upon the
expiration of three calendar months from the date of the
Bank's actual receipt of a notice in writing to determine this
Guarantee given by:-
(a) if there is only one undersigned, the undersigned, or
the undersigned's personal or legal representative(s)
(as the case may be); or
(b) if there is more than one undersigned, all of us or,
as the case may be, the personal or legal
representative(s), of each and every one of us to
which a Specified Event has happened jointly together
with all of us (if any) not affected by any Specified
Event.
6. LIABILITIES ON DETERMINATION : Determination of this Guarantee
as provided in Clause 5 or by whatever reason shall not
release me/us and/or my/our estate(s) from this Guarantee in
respect of any liability incurred by the Bank for account of
the Principal during the currency of this Guarantee (including
those incurred during the period of the required three months'
notice of determination as stipulated in Clause 5) whether
such liability is actual or contingent, accrued or not yet
accrued and whether or not such liability matures or becomes
due or payable or accrues only after the expiration of the
required three months' notice of determination as stipulated
in Clause 5. Without prejudice to the generality of the
foregoing, I/we hereby expressly admit and declare that where
the Bank has incurred any irrevocable obligation to make any
advance to, or incur any liability for account of, the
Principal prior to the expiration of the required three
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months' notice of determination as stipulated in Clause 5, the
Bank shall have the right to continue making the advance to or
incurring the liability for account of the Principal after the
said expiration of the required three months' notice of
determination and such advance or liability shall form part of
the liability incurred by the Bank for account of the
Principal during the currency of this Guarantee and I/we shall
be fully liable therefor notwithstanding the determination of
this Guarantee.
7. NO DEMAND PRIOR TO DETERMINATION : I/We hereby expressly agree
that my/our obligations to guarantee and indemnify the Bank
against the liabilities of the Principal shall not in any way
be affected by the Bank not making a demand on me/us before
the determination of this Guarantee and that the Bank may make
a demand on me/us at any time whether before or after the
determination of this Guarantee whereupon I/we shall promptly
pay the Bank the amount demanded.
8. NEW ACCOUNTS WITH PRINCIPAL: In the event of this Guarantee
ceasing from any cause whatsoever to be binding as a
continuing security on me/us, the Bank shall be at liberty
without thereby affecting the Bank's rights hereunder to open
a fresh account or accounts and/or to continue any then
existing account or accounts with the Principal and no moneys
paid from time to time into any such fresh account or accounts
so opened by or on behalf of the Principal (or the then
existing account or accounts where no such fresh account or
accounts are opened, as the case may be) and subsequently
drawn out by the Principal shall on settlement of any claim in
respect of this Guarantee be deemed appropriated towards or
have the effect of payment of any park of the moneys due from
the Principal at the time of this Guarantee ceasing to be so
binding as a continuing security or of the interest thereon
unless the person or persons paying in such moneys shall at
the time of payment direct the Bank in writing specifically to
appropriate the same to that purpose.
9. CONCLUSIVE EVIDENCE:
(a) Any admission or acknowledgement in writing by the
Principal or by any person authorized by the
Principal of the amount of indebtedness of the
Principal to the Bank and any judgment recovered by
the Bank against the Principal in respect of such
indebtedness shall be binding and conclusive on and
against me/us in all courts of law and elsewhere.
(b) A certificate by any of the Bank's duly authorized
officers as to the moneys and liabilities for the
time being due or owing to the Bank from or by the
Principal shall be binding on me/us as conclusive
evidence in any legal proceedings against me/us in
all courts of law and elsewhere.
10. INDULGENCE, DEALING WITH PRINCIPAL: The Bank shall be entitled
without notice to and/or consent of me/us and without thereby
discharging or affecting my/our liabilities hereunder at any
time at the Bank's sole and absolute discretion to deal freely
with the Principal or any other party or parties liable in
respect of any debts and/or liabilities guaranteed hereunder
whether jointly, severally or jointly and severally with the
Principal or as surety or as provider of securities, including
but without limitation:-
(a) to determine, reduce, limit, restrict, grant,
enlarge, increase, vary, continue, renew or regrant
any banking facilities to the Principal; and/or
(b) to vary, exchange, renew, discharge, release, give
up, abstain from perfecting and/or hold over any
securities (including but not limited to any bills,
notes, mortgages, charges, liens or other securities)
indemnities, guarantees and/or any other undertaking
or arrangement of similar nature whether from the
Principal or from any third party or parties covering
or in respect of any debts and liabilities hereby
guaranteed; and/or
(c) to release, discharge, settle or compound with, grant
indulgence, give time for payment or other
accommodation, to accept compositions from and make
any other arrangements with the Principal and/or any
third party or parties including but not limited to
any person or persons liable on any bills, notes,
mortgages, charges, liens or other securities as
aforesaid or any person liable jointly, severally or
jointly and severally with or as surety of the
Principal or any other person or persons.
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11. SECURITY ADDITIONAL:
(a) Save and except expressly provided for in this
Guarantee, this Guarantee shall be in addition to and
not in substitution of any other guarantee or
security in respect of any debt and/or liability of
the Principal guaranteed hereunder whether given by
me/us or by the Principal or by any other third party
or parties.
(b) This Guarantee shall be in addition to and shall not
merge with or in any way discharge, prejudice or
affect any other guarantees, agreements,
undertakings, rights, liens, collateral or other
securities now or hereafter held by the Bank from
me/us or any one or more of us or any third party or
parties for or in respect of all or any part of the
debts and liabilities hereby guaranteed nor vice
versa should this Guarantee be discharged, prejudiced
or affected thereby. Unless specified by the payer,
the Bank shall have absolute discretion to apply or
appropriate any money received by the Bank for
payment of any debts and/or liabilities owing to the
Bank by the Principal without any notice or consent
of me/us.
12. ENFORCING OTHER MEANS OF PAYMENT: The Bank is to be at
liberty, but not bound, to resort for the Bank's own benefit
to any other means of obtaining payment or securing
performance by the Principal or any other co-sureties at any
time and in any manner or order the Bank thinks fit without
affecting this Guarantee and/or without in consequence
diminishing my/our liability hereunder. The Bank may exercise
and enforce the Bank's rights hereunder before resorting to
other means of obtaining payment or securing performance or
after such means have been resorted to in respect of any
balance due or outstanding liabilities or obligations and in
the latter case without entitling me/us to any benefit from
such other means so long as any sum, liability or obligation
remains due owing or payable or outstanding (whether actual or
contingent) from or by the Principal to the Bank.
13. INVALIDITY OF OTHER SECURITY ETC.: The liabilities of me/us
shall not be affected by any failure by the Bank to take any
security or by any invalidity of any security taken or by any
existing or future agreement by the Bank as to the application
of any banking facilities made or to be made to the Principal.
14. GUARANTEE OF WHOLE DEBT: Although my/our ultimate liability
hereunder cannot exceed the limit hereinbefore provided in
Proviso (ii) of Section B, if any, this Guarantee shall be
construed and take effect as a guarantee of the whole and
every part of all debts and liabilities now or at any time
hereafter owing to the Bank by the Principal.
15. PAYMENT INTO SUSPENSE ACCOUNT: Any money paid to the Bank
under this Guarantee may be placed and kept by the Bank in a
separate or suspense account for so long and in such name as
the Bank may in the Bank's absolute discretion think fit
without applying the same or any part thereof in or towards
discharge of any debts or liabilities due or incurred by the
Principal to the Bank so as to enable the Bank to preserve
intact the Principal's liability to the Bank and to sue or
prove in arrangement, composition, liquidation, bankruptcy,
winding up or such similar proceedings against the Principal
the entirety of the debt or liabilities owing without taking
into account any sum so paid under this Guarantee.
16. NO COMPETITION WITH THE BANK'S RIGHT: Until the Bank has been
paid and received in full (which expression shall not embrace
payment of a dividend in liquidation, bankruptcy, winding up
or similar proceedings of less than 100 percent) all debts and
liabilities owing by the Principal, I/we shall not whether
directly or indirectly:
(a) prove against the Principal's estate in any
liquidation, bankruptcy, winding up or similar
proceedings for or in relation to any sum or sums
paid under this Guarantee or otherwise howsoever in
competition with the Bank;
(b) claim, exercise and/or enforce any rights of
subrogation, contribution, indemnity, assignment,
set-off and/or counter-claim (whether statutory, in
law or in equity or howsoever) in relation to any sum
or sums paid under this Guarantee and any sum or sums
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so received by me/us and in breach hereof shall be
held by me/us on trust for the Bank and be paid over
to the Bank on demand for discharge of any debts and
liabilities due by the Principal to the Bank in
addition to and independent of my/our liabilities
hereunder and shall not be subject to the limitation,
if any, provided in Proviso (ii) of Section B above;
(c) do any act or thing which might on the insolvency,
bankruptcy, liquidation or similar proceedings of the
Principal result in the increase of proofs or reduce
the assets distributable amongst the creditors of the
Principal to the Bank's prejudice;
(d) take now or at any time hereafter for or in respect
of any of my/our liability under this Guarantee from
the Principal either directly or indirectly without
the Bank's consent in writing any security or
counter-security, promissory note, bill of exchange,
mortgage, charge whether merely personal or involving
a charge on any property whatsoever of the Principal.
I/We hereby declare that I/we have not taken any such
security or counter-security and all security or
counter-security as aforesaid which I/we have now or
at any time hereinbefore taken or may at any time
hereafter take (whether with the Bank's consent or in
breach of the above provision) and all moneys at any
time received in respect thereof shall be held in
trust for the Bank and as security to the Bank for
the fulfillment of my/our obligations hereunder and
all of them shall be deposited by me/us with the Bank
and I/we shall do all such act or take all such
action and/or sign or execute all such deeds or
documents at the Bank's request but at my/our costs
and expenses for such purposes and for perfecting the
Bank's rights and claims thereto; and/or
(e) by paying off any sum recoverable hereunder or by any
other means or on any other ground, claim to have the
benefit of any security which the Bank may now or
hereafter hold for any moneys or liabilities due or
incurred by the Principal to the Bank or to have any
share therein.
17. WARRANTIES AND REPRESENTATIONS: I/We hereby warrant,
represent and undertake to the Bank (such warranties
representations and undertakings to continue so long as this
Guarantee remains subsisting) that:
(a) This Guarantee has been validly created and
constitutes a valid and legally binding obligation on
me/us enforceable in accordance with its terms; and
(b) The creation of this Guarantee and the performance
and observance of the obligations hereunder does not
and will not contravene any existing applicable law,
statute, rule or regulation or any judgment, decree
or permit (where applicable, including but not
limited to all the rules governing the listing of
securities as prescribed by The Stock Exchange of
Hong Kong Limited from time to time) to which I/we
are subject.
18. SET-OFF AND LIEN: In addition to any general lien or similar
right to which the Bank as bankers maybe entitled bylaw, the
Bank may at any time, without prior notice to me/us:
(a) set off and appropriate and apply any credit balance
on any account (whether subject to notice or not and
whether matured or not) in any currency of which I/we
or any one or more of us am/is/are at any time
beneficially entitled (whether in my/our own name or
jointly with other persons and whether current,
savings, time, call or deposit accounts) at any of
the Bank's office or branch wherever situate against
or on account of all or any liabilities of me/us to
the Bank hereunder and for such purpose, the Bank may
convert all or any part of such credit balance or
liability to such other currencies at the applicable
rate of exchange quoted and determined by the Bank as
may be necessary to effect such application or
set-off; and
(b) if any sum is due but unpaid hereunder, to retain all
or any securities, valuables or any other property
whatever and wherever situate which may be deposited
with or otherwise held by the Bank for or in the name
of me/us or any one or more of us whether for safe
custody or otherwise and to sell the same or any part
thereof at such price as the Bank shall determine
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whether by public auction, private treaty or tender
and the Bank may engage such agent or broker therefor
and apply the proceeds thereof to set off any or all
sums owing hereunder after first deducting all costs
and expenses.
19. JOINT SIGNATORIES, LIABILITIES JOINT AND SEVERAL: Should the
undersigned be more than one party or should this Guarantee be
intended to be given by more than one party:-
(a) each and every one of the parties shall be jointly
and severally liable hereunder and "we", me/us" and
all provisions of this Guarantee shall be so
construed accordingly.
(b) should this Guarantee prove not to be binding on or
become invalid against any one or more but not all of
us for any reason whatsoever, the liability of such
other(s) of us shall remain intact valid and binding
as if such of us who is/are not bound by this
Guarantee has/have never been party or intended to be
party hereto.
(c) this Guarantee shall be binding and effective for all
intents and purposes against each and every one of us
who has actually signed with immediate effect and the
failure of any intended guarantor(s) to sign or
execute shall not affect the validity hereof against
those signed as if those who have not signed or
executed have never been intended to be party hereto.
(d) the Bank shall be entitled without any notice or
consent of me/us to release or discharge any one or
more but not all of us from his or their obligations
and/or liabilities under this Guarantee or any part
thereof or to accept or enter into any settlement or
compromise or composition or make any other
arrangements with or grant any time, indulgence,
waiver or accommodation to any one or more but not
all of us without discharging, releasing or affecting
the liabilities and obligations of the other or
others of us.
20. Notice: A notice or demand by the Bank under this Guarantee
may be served by post, cable, telex or facsimile transmission
and shall be deemed to have been duly served if by post on the
day following the day of posting (its subsequent return or
non-delivery notwithstanding) and if by cable, telex,
facsimile transmission or personal delivery on the day of such
cable, telex, facsimile transmission or delivery if addressed
to me/us or the legal or personal representative(s) of me/us
at my/our respective addresses on the Bank's record or last
known to the Bank.
21. FIRM, CORPORATION, ASSOCIATION, UNINCORPORATED BODY ETC.: If
it shall so happen that the Principal shall be either a firm
or a limited company or other corporation or a committee or
association or other unincorporated body, any of the
provisions herein contained which shall be primarily and
literally applicable to the case of a single and individual
principal only shall be construed and take effect so as to
give the Bank hereunder a guarantee for the money owing from
such firm and every member thereof or from such limited
company or corporation or committee or association or other
unincorporated body as identical or analogous as may be with
or to that which would have been given for the moneys owing
from a single individual if the Principal were a single
individual and any moneys or liabilities shall be deemed to be
owing, remaining due and unpaid by the Principal as provided
in Section B above. And further in case where the Principal is
a firm, this Guarantee shall be deemed to be a continuing
guarantee of all moneys owing, as provided in Section B above;
from the persons or person now or at any time hereafter from
time to time and for the time being carrying on business in
the name of or in succession to the firm or from any one or
more of such persons and any change in the constitution of the
firm whether by death, retirement or admission of partners or
otherwise howsoever shall not affect, invalidate or discharge
my/our liability under this Guarantee. And in the case of a
limited company or other corporation any reference to
bankruptcy shall be deemed to be a reference to liquidation,
winding up or other analogous proceedings and the moneys owing
as aforesaid and hereby guaranteed shall be deemed to include
any moneys, owing in respect of debentures or debenture stock
of such limited company or other corporation held by the Bank
or on the Bank's behalf.
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22. CONDITIONS TO DISCHARGE:
(a) Any release, discharge or settlement between the Bank
and me/us (including the return of this Guarantee)
shall be conditional upon no security, disposition or
payment to the Bank by the Principal, me/us or any
other party being avoided or reduced pursuant to any
provisions or enactments relating to insolvency,
bankruptcy, liquidation, winding-up or such similar
proceedings, and if such condition shall not be
fulfilled, the Bank shall be entitled at any time to
enforce this Guarantee subsequently as if such
release, discharge or settlement had not occurred.
(b) For the purposes of Clause 22(a) above, the Bank
shall be entitled to retain this Guarantee for a
period of twenty-five months after the full payment,
discharge or satisfaction of all debts and
liabilities owing by the Principal to the Bank and in
the event of the commencement of bankruptcy or
winding-up of any party making such payment,
discharge or satisfaction, for such further period as
the Bank may determine and to enforce this Guarantee
subsequently as if such release, discharge or
settlement had not occurred.
23. LIABILITIES PRIMARY, INVALIDITY OF PRINCIPAL'S DEBTS ETC.:
Independent of the above stipulations, I/we further agree to
be liable as an independent principal debtor to the Bank for
the payment of all sums guaranteed or ought to be guaranteed
hereby so that:-
(a) this Guarantee may be enforced against me/us (or any
one or more of us) without the Bank first enforcing
any rights or claims or instituting legal proceedings
against the Principal and/or any third party or
parties and/or to join in the Principal as a party in
the same proceedings against me/us and/or the Bank
first realizing or enforcing any of the securities or
other guarantees held by the Bank whether from me/us
or any other party or parties.
(b) in addition and without prejudice to Clause 22 above,
should any debts and/or liabilities, which if valid
or enforceable would be guaranteed by and be the
subject-matter of this Guarantee, be or become wholly
or in part invalid, unenforceable against or
irrecoverable from the Principal whether in law or
otherwise as a result or arising out of any legal
limitation, disability or incapacity on or of the
Principal and/or any other reasons or circumstances
including but not limited to want of or inadequacy of
the borrowing power of the Principal, the irregular
or improper exercise of the borrowing power, the
exercise of the borrowing power concerned or the
borrowing concerned by the Principal is ultra xxxxx
(in the case where the Principal is a limited
company), the want of authority by any agent or
person purporting to act on behalf of the Principal,
I/we shall nevertheless be still liable to the Bank
for such debts and/or liabilities as if the same were
wholly valid and enforceable and I/we was/were the
sole and principal debtor(s) in respect thereof
irrespective whether or not as between the Bank and
the Principal, the Principal will have a valid
defence thereto and the Bank shall not be concerned
to see or enquire into the powers of the Principal or
its officers, employees or agents purporting to act
on its behalf.
(c) I/we hereby waive all and any of my/our rights as
surety which may at any time be inconsistent with any
of the provisions of this Guarantee.
24. WAIVER, RIGHTS CUMULATIVE: No failure to exercise or enforce
and no delay in exercising or enforcing on the Bank's part of
any right, remedy, power or privilege hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise
or enforcement of any right, remedy, power or privilege
hereunder operate as a waiver thereof, nor shall any single or
partial exercise or enforcement of any right, remedy, power or
privilege preclude any other further exercise or enforcement
thereof, or the exercise or enforcement of any other right,
remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative to and not exclusive
of any right, remedy, power and privilege provided by law or
other documents held by the Bank.
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25. NOTICE OF SUBSEQUENT INCUMBRANCE: If the Bank receives notice
of any subsequent mortgage, charge, assignment or any other
disposition affecting the security, if any, afforded by me/us
or any third party or interest thereon, the Bank may open a
new account for me/us; if the Bank does not open a new account
for me/us then unless the Bank gives notice to the contrary to
me/us, it shall nevertheless be treated as if the Bank had
done so at the time when the Bank receives such notice and as
from that time all payments made by or on behalf of me/us to
the Bank shall be credited or treated as having been credited
to the new account and shall not operate to reduce the amount
due from me/us to the Bank at the time when the Bank receives
notice.
26. INFORMATION OF GUARANTOR(S):
(a) I/We undertake at all times to notify the Bank in
writing of any change of my/our particulars including
but without limitation my/our address, telephone
number and facsimile number.
(b) I/We acknowledge that I/we have noted the content of
a notice relating to the Personal Data (Privacy)
Ordinance issued by the Bank and addressed to the
Bank's customers (the "Notice") and agree that it is
necessary to supply the Bank with data under Part B
of the First Schedule hereto or as required by the
Bank in order that the Bank will accept this
Guarantee. I/We further authorize the Bank to use
my/our data for the purposes set out in the Notice
and note that data held by the Bank will be kept
confidential but permit the Bank to provide such
information to the persons listed in the Notice or
any other persons (including debt collecting agents)
for the purposes set out in the Notice or in
compliance with any laws, regulations or directions
binding on the Bank or its branches or sub-branches.
I/We further authorize the Bank to contact any of
my/our employers (if applicable), banks, referees or
any other sources for the purpose of obtaining or
exchanging any information and to compare the
information provided by me/us with other information
collected by the Bank for checking purposes. The Bank
is entitled to use the result of such comparison to
take any action which may be adverse to the interest
of or against me or any of us. I/We consent to my/our
data being transferred to another jurisdiction
outside Hong Kong.
(c) For the purpose of Clause 26(b) above, I/we shall be
deemed to be "Customers" as referred to in the
Notice.
27. DEBT COLLECTION: The Bank shall be entitled to employ debt
collecting agents to collect any sum due but unpaid by me/us
hereunder. I/We hereby agree, and acknowledge that I/we have
been warned, that I/we shall indemnify and keep the Bank
indemnified on a full indemnity basis against all costs and
expenses which the Bank may incur in employing debt collecting
agents.
28. DEFINITIONS:
In this Guarantee:-
(a) "Agreed Interest Rate" means the rate or rates and
the basis and method (including whether or not to be
compounded) agreed between the Bank and the Principal
at and by which interest on the debt or liability in
relation to which a sum or sums so demanded under
this Guarantee is to be calculated.
(b) "banking facilities" means all types of secured and
unsecured banking facilities, loans, advances, credit
facilities and financial, credit or other arrangement
including but not limited to all types of foreign
exchange transactions and swap arrangements,
overdraft facilities, trust receipt facilities and
all types of arrangement or facilities relating to
documentary or other credits, in particular, their
issuance, negotiation, and/or acceptance; issuance or
acceptance of guarantees, indemnities and bonds;
discounting, negotiation or purchase of bills of
exchange or promissory notes; leasing; hire-purchase
arrangement and all other types of arrangement
whereby credit is extended, accommodation is afforded
and/or liability or commitment (whether actual or
contingent) is incurred by the Bank for or on account
of the Principal.
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(c) "I/We" and "me/us" means the party or parties who
executed this Guarantee, and where there are more
than one party, "me/us" means and refers to all the
parties executing this Guarantee or any one or more
of them and includes also such party's or parties'
respective estate(s), successor(s), assign(s) and
personal and/or legal representative(s) and "my/our"
shall be so construed accordingly.
(d) "The Principal" means the party or parties whose
particulars are set out in Part A of the First
Schedule hereto and where the Principal consists of
more than one PARTY, "the Principal" means and refers
to all such parties or any one or more of them.
(e) "Specified Amount" means the amount specified in the
Second Schedule hereto.
(f) "Specified Events" means the death, bankruptcy,
liquidation, insolvency, dissolution, incorporation
or other changes whatsoever in the constitution or
composition of, or mental illness or other disability
whatsoever of, the Principal (or any one or more of
them) and/or me/us (or any one or more of us) and
"Specified Event" means any one of the foregoing
events.
(g) "the Bank" includes the Bank's successors and assigns
and any or all of the Bank's offices and/or branches
whether in Hong Kong or elsewhere and for the
avoidance of doubt, this Guarantee shall cover all
debts and liabilities owing or incurred by or from
the Principal to the Bank anywhere in the world
whether to any one or more of the Bank's offices
and/or branches in Hong Kong or elsewhere.
(h) The various matters set out as consideration in
Section B of this Guarantee are in the disjunctive
and alternative and the provision for considerations
herein shall be deemed to have been absolutely and
fully complied with and fulfilled if any one of the
matters set out therein have been done.
(i) Unless the contrary intention appears, words
importing the masculine gender shall include females
and corporations and words in the singular shall
include the plural and words in the plural shall
include the singular.
29. CLAUSES SEVERABLE: If at any time any provision hereof is or
becomes illegal, invalid or unenforceable in any respect under
the laws of any jurisdiction, neither the legality, validity
or enforceability of the other remaining provisions hereof nor
the legality, validity or enforceability such provision under
the laws of any other jurisdiction shall in any way be
affected or impaired thereby.
30. LAW AND JURISDICTION: This Guarantee shall be governed and
construed in all respects in accordance with the laws of Hong
Kong SAR. I/We hereby irrevocably submit to the non-exclusive
jurisdiction of the Hong Kong SAR Courts but the Bank shall be
entitled to enforce this Guarantee in courts of other
competent jurisdiction as the Bank may select.
31. HEADINGS: In this Guarantee, headings to sections or clauses
are inserted for convenience only and have no legal effect and
reference to sections, clauses and schedules are to sections,
clauses and schedules of this Guarantee unless otherwise
stated.
32. LANGUAGE : The Chinese version of this Guarantee is for
reference only and if there is any conflict between the
English and Chinese versions, the English version shall
prevail.
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THE FIRST SCHEDULE ABOVE REFERRED TO
PART A
Name and particulars of the Principal
-------------------------------------
Name Address Identification document and number
---- ------- ----------------------------------
COMTECH INTERNATIONAL ROOM 000, 0/X, XXXXXXXXX XXX., B.R.C.NO.31083439
(HONG KONG) LIMITED 0 XXXX XXXXXX XXXX, XXXX XXXXX,
XXX XXXXXXXXXXX.
PART B
Name and particulars of the undersigned
---------------------------------------
Name Address Identification document and number
---- ------- ----------------------------------
COMTECH GROUP, INC.
THE SECOND SCHEDULE ABOVE REFERRED TO
The Specified Amount
--------------------
IN WITNESS WHEREOF this Deed of Guarantee is executed by the party(ies) whose
name(s) appear(s) in Part B of the First schedule hereto this day of 200__
SEALED with the COMMON SEAL OF the Company(ies) named in Part B of the first
Schedule hereto and SIGNED by:
COMPANY
NAME COMTECH GROUP, INC. COMMON SEAL:
--------------------------------
DIRECTOR/
AUTHORIZED PERSON SIGNATURE /s/ signature
-------------------- -------------------------
DIRECTOR/
AUTHORIZED PERSON SIGNATURE /s/ signature
-------------------- -------------------------
Witnessed by:
NAME: SIGNATURE /s/ signature
-------------------------------- -------------------------
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