GUARANTEE AND ASSUMPTION AGREEMENT
THIS GUARANTEE AND ASSUMPTION AGREEMENT ("Agreement") made as of August 11,
2005, by and among Xxxxx.xxx, Inc., a Florida corporation ("Qorus"), Xxxxxxx
Reverse Merger Fund, LLC, a Delaware limited liability company ("KRM Fund"), and
Shenyang Xxxxx Non-Ferrous Metals Co., Ltd. ("Shenyang"), a limited liability
company under the Company Law of The People's Republic of China (the "PRC")
(collectively the "Parties").
RECITALS
A. WHEREAS, Qorus, KRM Fund, Xxxxx Group Limited, an International Business
Company incorporated in the British Virgin Islands ("Xxxxx"), and all of
the members of Xxxxx ("Members") have entered into an Exchange Agreement
dated August 11, 2005 (the "Exchange Agreement") pursuant to which Qorus
is to acquire all of the issued and outstanding capital stock of Xxxxx
from the Members; and
B. WHEREAS, Shenyang acknowledges that as a condition of Qorus and KRM Fund
entering into the Exchange Agreement, Shenyang shall be liable with Xxxxx
and each of its Members with respect to each of the obligations of Xxxxx
and the Members under the Exchange Agreement; and
C. WHEREAS, Shenyang is to receive benefits as a result of the Exchange
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, each intending to be legally bound, hereby agree as follows:
1. Guarantee and Assumption. Shenyang hereby agrees that it shall, from the date
of this Agreement, be liable with Xxxxx and its Members for each and every
obligation and liability of Xxxxx and its Members under the Exchange Agreement
as if it was a party to the Exchange Agreement. Shenyang further agrees that
Qorus and KRM Fund shall not be obligated to take any steps whatsoever to
collect from, to file any claim of any kind against, or to enforce any liability
or obligation against, Xxxxx or any Member, prior to pursuing any claim, action
or remedy against Shenyang under this Agreement.
2. Default; Notice. In the event of any default or breach by Xxxxx or any of its
Members under the Exchange Agreement, Qorus and KRM Fund hereby agree that they
will provide any notice to Shenyang that they are required to provide to Xxxxx
or its Members and that they will not take any action against Shenyang hereunder
unless and until any applicable cure period under the Exchange Agreement has
expired.
3. Acknowledgement. Shenyang hereby acknowledges that this Agreement is a
material inducement for Qorus and KRM Fund to enter into the Exchange Agreement,
and that Qorus and KRM Fund would not have entered into the Exchange Agreement
without this Agreement.
1
4. Miscellaneous. This Agreement, and its enforcement, shall be governed by, and
construed in accordance with, the laws of the State of Florida (without regard
for conflict rules thereof) and the United States. This Agreement may be
executed in two or more counterparts, each of which will be deemed to be an
original of this agreement and all of which, when taken together, shall be
deemed to constitute one and the same agreement. Any party to this Agreement may
deliver an executed copy hereof by facsimile transmission to another party
hereto and any such delivery shall have the same force and effect as any other
delivery of a manually signed copy of this Agreement. It is understood and
agreed by the Parties that each represents and warrants to the other that the
individual signing this Agreement on behalf of the Party is their duly
authorized representative and that such individual's signature binds the Party
represented to the terms of this Agreement. The terms and provisions contained
in this Agreement and the Exchange Agreement, together with all agreements,
certificates and schedules delivered in connection therewith, constitute the
entire agreement between the Parties and shall supersede all previous
communications, representations, agreements or understandings, either oral or
written, between the parties with respect to the subject matter hereof. No
agreement or understanding varying or extending this Agreement shall be binding
upon either party hereto, unless set forth in a writing which specifically
refers to this Agreement, signed by duly authorized officers or represent
representatives of the respective parties, and the provisions hereof not
specifically amended thereby shall remain in full force and effect.
[Remainder of this page intentionally left blank.]
2
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers on the day and year first set forth
above.
SHENYANG XXXXX NON-FERROUS METALS CO.,
LTD.
By: /s/ Kuibin Liu
--------------------------------------
Kuibin Liu, Executive Director and
General Manager
XXXXXXX REVERSE MERGER FUND, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx, Manager
XXXXX.XXX, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxx, President
3
