Exhibit 10.10
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CORPORATE GUARANTEE SCHEDULE
HONG KONG SHANGHAI BANK BANKING CORPORATION LIMITED ("HSBC")
CREDIT FACILITY AND FACTORING AGREEMENTS
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N0. Guarantee Date Facility Date GUARANTEE AMOUNT(1)
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1. August 19, 1999 April 30, 1999 USD4,200,000
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2. September 29, 1999 September 8, 1999 USD18,000,000
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3. November 11, 1999 September 8, 1999 USD4,000,000
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4. August 28,2000 July 31, 2000 USD5,500,000
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5. December 16, 2003 November 7, 2003 EUR380,000
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6. January 31, 2004 November 7, 2003 USD10,300,000
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7. June 3, 2004 April 23, 2004 EUR10,000,000
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(1) At July 3, 2004, the aggregate indebtedness outstanding and thus subject to
these guarantees was $9.2 million, consisting of approximately $6.2 million
under the Euro denominated facilities and approximately $3.0 million under the
Hong Kong Dollar denominated facilities.
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Dated the ___ day of________________________
CONCORD CAMERA CORP.
(as Guarantor)
In favor of
THE HONGKONG AND SHANGHAI
BANKING CORPORATION LIMITED
(as Lender)
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GUARANTEE
of the liabilities of
CONCORD CAMERA HK LIMITED
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THIS GUARANTEE is made the ___ day of ____________________
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BETWEEN:
(1) CONCORD CAMERA CORP. a corporation incorporated under the laws of the
State of New Jersey, the United States of America and having its
registered office at ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America and a place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ("the Guarantor"); and
(2) THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED whose registered
office is at ▇▇. ▇ ▇▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ("the Lender").
WHEREAS:
(1) By a Facility Letter dated the ____ day of _________ ____ ("the
Agreement", which expression shall include such Facility Letter as from
time to time supplemented or amended) from the Lender to CONCORD CAMERA
HK LIMITED whose registered office is at 26th Floor, Central Plaza, ▇▇.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ and a place of business at 14th Floor,
Concord Technology Centre, ▇▇. ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇.▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ Territories ("the Borrower", which expression
shall where the context permits or requires, include its successors and
assigns) the Lender has agreed to make available to the Borrower
certain general banking facilities ("the Facilities") subject to and
upon the terms and conditions as therein mentioned.
(2) It is (inter alia) a term of the Agreement that the Guarantor shall
enter into this Guarantee in respect of the Borrower's obligations owed
to the Lender and this Guarantee is accordingly supplemental to the
Agreement.
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NOW IT IS HEREBY AGREED as follows:
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1. (a) Save as otherwise defined or re-defined herein expressions defined
in the Agreement shall have the same meaning when used herein.
(b) In this Guarantee, except where the context otherwise requires :
"Guaranteed Indebtedness" means all moneys due or to become due by the
Borrower, actually or contingently, to the Lender on any account or
otherwise in any manner whatsoever whether under the Agreement or
otherwise.
"Hong Kong" means the Hong Kong Special Administrative Region of the
People's Republic of China.
2. (a) In consideration of the Lender agreeing to make the Facilities
available to the Borrower at the request of the Guarantor, the
Guarantor hereby guarantees, unconditionally and irrevocably, as
principal debtor and not merely as surety, until final payment has been
made, the due and prompt payment by the Borrower of the Guaranteed
Indebtedness in the manner and at the times fixed or calculated for
payment of the same under the Agreement or the relevant facility
letter(s) or other instrument(s) and the Guarantor further guarantees,
unconditionally and irrevocably, as principal obligor and not merely as
surety, the due and punctual performance by the Borrower of all its
obligations and liabilities under the Agreement or the relevant
facility letter(s) or other instrument(s) so that whenever the Borrower
fails to make payment of any Guaranteed Indebtedness in the manner
provided and/or perform and observe any of its obligations and
liabilities under the Agreement or the relevant facility letter(s) or
other instrument(s) the Guarantor
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shall upon demand by the Lender cause forthwith to be paid the
Guaranteed Indebtedness and/or performed and observed the obligations
and liabilities in respect of which such default has been made in
accordance with the provisions of the Agreement or the relevant
facility letter(s) or other instrument(s) provided always that the
Guarantor's liability under this Guarantee shall not in any event
exceed United States Dollars ___________________________
(USD_____________).
(b) As a separate and independent stipulation, the Guarantor shall be
liable for every payment to be made by the Borrower in respect of the
Guaranteed Indebtedness and every obligation and liability to be
performed and observed by the Borrower under the Agreement or the
relevant facility letter(s) or other instrument(s) as if the Guarantor
were the principal debtor and obligor in respect of such amount and
liability and obligation and not merely surety, and without any
requirement for the Lender first to have recourse against the Borrower
or any other person, and the Guarantor's liability shall not be
discharged, impaired or reduced by any time or indulgence granted to
the Borrower or any other person by the Lender or by the Borrower or
the Guarantor losing its separate identity or by any dealings or
transactions between the Lender, the Borrower and the Guarantor or by
any amendment or supplement to the Agreement or the relevant facility
letter(s) or other instrument(s).
(c) Any statement of account certifying the amount of the Guaranteed
Indebtedness signed by any duly authorised officer of the Lender shall
(save for any manifest error) be conclusive evidence as against the
Guarantor of such amount.
3. (a) The Guarantor makes the following representations and warranties to
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the Lender that :
(i) the Guarantor is a company duly incorporated with limited
liability and in good standing under the laws of the State of
New Jersey in the United States of America;
(ii) the Guarantor has the corporate power, the authority and the
legal capacity to give this Guarantee and to perform and
observe its obligations hereunder;
(iii) the execution, delivery and performance of this Guarantee has
been duly authorised by all necessary corporate action of the
Guarantor under all applicable laws and regulations of the
United States of America and Hong Kong;
(iv) this Guarantee, as executed and delivered, constitutes legal,
valid and binding obligations of the Guarantor enforceable in
accordance with its terms;
(v) the execution and delivery of, and the performance of the
provisions of, this Guarantee by the Guarantor do not, and
will not during the continuance of this Guarantee,
(a) contravene any existing applicable law, ordinance,
regulation, decree or permit, or any order,
judgement, decree or award of any court or any
judicial, administrative or governmental authority,
department or agency presently in effect and
applicable to the Guarantor or any of its assets; or
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(b) contravene any contractual restriction binding on the
Guarantor or any of its assets; or
(c) create or result in or (except as may be provided
herein) oblige the Guarantor to create any lien,
charge, security interest or other encumbrance on the
whole or any part of the Guarantor's property, assets
or revenues, present or future; or
(d) cause any limit on any of the borrowing,
guaranteeing, charging or other powers of the
Guarantor, whether imposed by its Certificate of
Incorporation or other constitutional documents, or
by agreement, instrument or otherwise, or upon any of
the powers of its Board of Directors to exercise any
of its powers, or any other limit affecting the
Guarantor, to be exceeded;
(vi) all necessary governmental and other consents, authorities and
approvals (if any) for the Guarantor to execute this Guarantee
have been obtained and are in full force, validity and effect,
and as of the date of this Guarantee, no further governmental
or other consents, authorities or approvals are necessary for
the performance by the Guarantor of its obligations hereunder;
(vii) (save and except disclosed in writing by the Guarantor to the
Lender prior to the date hereof) there are no proceedings
pending before any court, tribunal, arbitrator, government
agency or administrative body against or threatened against
the Guarantor or any of its assets which if adversely
determined could or might result in any material adverse
change in the business or condition (financial or otherwise)
of the Guarantor or the ability of the
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Guarantor to pay, if due, any sums and/or to perform any
obligations required by the teens and conditions of this
Guarantee;
(viii) the obligations of the Guarantor under this Guarantee are
direct, general and unconditional obligations of the Guarantor
and rank at least pari passu with all the Guarantor's other
present and future unsecured and unsubordinated indebtedness
and other obligations (including contingent obligations) with
the exception of indebtedness and other such obligations
mandatorily preferred by law and not by contract;
(ix) the Guarantor is not in material default under any statutory
or other requirements applicable to the Guarantor or in
default in the payment of any principal of or interest on any
indebtedness for borrowed money and is not in breach of or in
default under any other provision of any indenture, deed of
trust, agreement or other instrument to which it is a party
and under or subject to which any such indebtedness for
borrowed money has been issued and is outstanding and (to the
best of its knowledge and belief) no event, condition or act
which with the giving of notice or lapse of time, or both,
would constitute an event of default under any such indenture,
deed of trust, agreement or other instrument has occurred or
is continuing which has not been properly waived or remedied
thereunder; and
(x) the information contained in all accounts, certificates,
schedules or other documents supplied to the Lender relating
to the Guarantor is true and accurate in all respects, and the
opinions and forecasts expressed therein (if any) are honestly
held and have been made on a reasonable basis, and there are
no material facts relating to the Guarantor, which could or
might affect the willingness of a
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reasonable party to rely on a guarantee from the Guarantor in
terms similar to the terms of this Guarantee, which have not
been disclosed to the Lender.
(xi) the Borrower is a wholly owned subsidiary of the Guarantor.
(b) The Guarantor further undertakes and/or covenants with the Lender:
(i) that each of the representations and warranties contained in
Clause 3(a) will be true and accurate in all respects until
the Guaranteed Indebtedness is fully repaid and settled by the
Borrower and/or the Guarantor;
(ii) that the Guarantor will promptly inform the Lender of the
occurrence of any event of which the Guarantor becomes aware
which, in the Guarantor's reasonable opinion, might adversely
affect the ability of the Borrower or the Guarantor fully to
perform their respective obligations under the Agreement
and/or any facility letter(s) or instrument(s) made with the
Lender and this Guarantee;
(iii) that the Guarantor will endeavour to obtain or cause to be
obtained every consent and approval and do, or cause to be
done, all other acts and things which may from time to time be
necessary or desirable for the continued due performance of
all the Guarantor's obligations hereunder;
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(iv) that for so long as the Guaranteed Indebtedness remains
outstanding, this Guarantee will continue to rank at least
pari passu with the Guarantor's existing and future unsecured
and unsubordinated obligations with the exception of
indebtedness and other such obligations mandatorily preferred
by law and not by contract; and
(v) that for so long as the Guaranteed Indebtedness remains
outstanding, the Guarantor will not effect or allow any change
in its registered or beneficial ownership or shareholding
(whether immediate or ultimate) in the Borrower without the
prior written consent of the Lender.
4. The Guarantor hereby further covenants and undertakes with the Lender
that for so long as the Guaranteed Indebtedness remains outstanding,
the Guarantor will provide the Lender promptly with all financial
information relating to the Guarantor and the Borrower as the Lender
may from time to time reasonably require, but no more frequently than
quarterly.
5. (a) The obligations of the Guarantor hereunder shall be a continuing
security and shall be irrevocable and shall cover and secure the
ultimate balance of the Guaranteed Indebtedness from time to time and
any obligation and liability to be performed by the Borrower under the
Agreement or any facility letter(s) or instrument(s) made with the
Lender notwithstanding the liquidation, receivership, dissolution,
winding-up, incapacity or any change in the Memorandum of Association,
Articles of Association, By-laws or similar constitutional documents of
the Borrower or of the Guarantor or the Lender's receipt of notice of
any such occurrence or- any settlement of account or other matter
whatsoever which but for this provision might operate to release or
otherwise exonerate the Guarantor from its obligations hereunder.
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(b) The obligations of the Guarantor hereunder are in addition to and
not in substitution for any other guarantee, indemnity, pledge,
assurance, ▇▇▇▇, ▇▇▇▇, note, mortgage, charge, debenture, or other
security now or hereafter held by the Lender in respect of the
Guaranteed Indebtedness.
(c) The Lender may at any time or times and notwithstanding the
determination of this Guarantee continue any account of the Borrower or
open one or more new accounts and no liability actual or contingent of
the Guarantor shall in any manner be reduced or affected by any payment
subsequent to such determination into or out of any such account or by
any transactions subsequent to such determination on any account.
6. Should any purported obligation of the Borrower or the Guarantor, which
if valid or enforceable would be the subject of this Guarantee, be or
become wholly or in part invalid or unenforceable against the Borrower
or the Guarantor by reason of any defect in or insufficiency or want of
powers of the Borrower or the Guarantor or irregular or improper
purported exercise thereof or breach or want of authority by any person
purporting to act on behalf of the Borrower or the Guarantor or because
any rights of the Lender have become barred by reason of any legal
limitation, disability, incapacity or any other fact or circumstance
whether or not always known to the Lender or if for any other reason
whatsoever the Borrower is not or ceases to be legally liable to
discharge any money, obligation or liability, the Guarantor shall
nevertheless be liable to the Lender (notwithstanding the avoidance or
invalidity of any assurance, security or payment on any ground
whatsoever including (without limitation) avoidance under any
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enactment relating to liquidation) in respect of that purported
obligation or liability as if the same were wholly valid and
enforceable and the Guarantor was the principal debtor and obligor in
respect thereof. The Lender is not to be concerned to see or enquire
into the powers of the Borrower and the Guarantor or any of their
officers, employees or agents purporting to act on their respective
behalf. The Guarantor hereby agrees to keep the Lender fully
indemnified against all damages, losses, costs and expenses arising
from any failure of the Borrower or the Guarantor to carry out any such
purported obligation.
7. The Guarantor agrees that the Lender may from time to time without
discharging or in any way affecting the liability of the Guarantor
hereunder and without the assent or knowledge of the Guarantor grant to
the Borrower any time or indulgence or renew any bills, promissory
notes or other negotiable or non-negotiable instruments or securities,
give up, deal with, exchange, vary, realise, release or abstain from
perfecting or enforcing any guarantees, liens, bills, notes, mortgages,
securities or other rights which the Lender may now or hereafter have
from or against the Borrower whether hereunder or otherwise, and may or
procure to renew, determine, vary or increase the maximum amount of the
Facilities or any terms and conditions hereof or thereof or any credit
or facilities to or the terms or conditions in respect of any
transaction with the Borrower or compound with, discharge, release or
vary the liability of the Borrower or concur in accepting or varying
any compromise, arrangement or settlement or omit to claim or enforce
payment of any dividend or composition or to agree to any amendment of
or supplement to the Agreement or any facility letter(s) or similar
instrument(s), when and in such manner as the Lender may think
expedient and no such act or omission on the part of the Lender shall
in any way discharge or diminish the validity hereof or affect the
liability of the Guarantor hereunder. The Lender may enforce this
Guarantee
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notwithstanding that the Lender may hold any other guarantee, lien or
security or have any outstanding remedy against the Borrower or the
Guarantor.
8. The Guarantor declares that it has not received any security for giving
this Guarantee and agrees that should any such security be created
while the Guaranteed Indebtedness remains undischarged any such
security shall be forthwith pledged or sub-pledged to the Lender to
secure the obligations of the Guarantor hereunder and shall forthwith
be deposited with the Lender accordingly. The Guarantor agrees that if
default is made in observing the preceding provisions of this Clause 8,
any security taken in contravention and all moneys at any time received
in respect thereof shall be held in trust for the Lender as security
for the liability of the Guarantor to the Lender hereunder.
9. Where applicable, the Guarantor agrees that the Lender shall be
entitled at any time after the Guarantor fails to perform its
obligations hereunder when due without notice to set off or transfer
any moneys standing to the credit of the Guarantor in any account with
the Lender (whether current, deposit or of any other nature whatsoever
wheresoever located and whether subject to notice or not) in any
currency against the liability of the Guarantor hereunder and that the
Lender shall have a lien on and be entitled to retain as security for
the liabilities of the Guarantor hereunder any cheques, drafts, bills,
notes or negotiable or non-negotiable instruments and any stocks,
shares or marketable securities and goods and chattels of all kinds of
the Guarantor from time to time deposited with the Lender whether held
for safe custody or otherwise.
10. This Guarantee shall apply to the ultimate balance of the Guaranteed
Indebtedness and until all moneys, obligations and liabilities due
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hereunder have been paid, discharged and satisfied in full (which
expression shall not embrace payment of a dividend in liquidation
winding-up of less than one hundred per cent (100%)), the Guarantor
waives all rights of subrogation (whether statutory, arising at common
law or equity, or howsoever) and agrees not to demand or accept
repayment in whole or in part of any loans or advances then or
thereafter due to the Guarantor from the Borrower or to demand or
accept any security in respect thereof or to assign the same or charge
the same as security or to take any step to enforce any right against
the Borrower or to claim any set-off or counterclaim against the
Borrower or to claim or prove in competition with the Lender in the
liquidation winding-up, or have the benefit of any share in any payment
or composition from, the Borrower or any other person or in any
guarantee or security now or hereafter held by the Lender.
11. (a) Any release, discharge or settlement between the Lender and the
Guarantor shall be conditional upon no security, disposition or payment
to the Lender by the Borrower, the Guarantor or any other person in
respect of the moneys hereby guaranteed being avoided or reduced or
repaid pursuant to any provisions or enactments relating to
liquidation, receivership, dissolution, winding-up, or circumstances
analogous thereto and, in the event that the Lender becomes liable to
repay any moneys paid to the Lender hereunder or under the Agreement or
any facility letter(s) or similar instrument(s) or any other documents
executed as security for the obligations of the Borrower on the grounds
of fraudulent preference or otherwise, the liability of the Guarantor
hereunder shall be computed as if such moneys had never been paid to
the Lender and the Lender shall be entitled to enforce this Guarantee
against the Guarantor as if such release, discharge or settlement had
not occurred.
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(b) The Lender shall be entitled to retain any security held by it in
respect of the liabilities of the Guarantor hereunder for a period of
seven (7) months after the payment, discharge or satisfaction of all
moneys payable to the Lender and all obligations to be performed under
the Agreement or the relevant facility letter(s) or instrument(s) or,
in the event of the commencement of liquidating, receivership,
dissolution or winding-up of the Borrower or the Guarantor prior to the
termination of such period of seven (7) months for such further period
as the Lender may determine and to enforce such security subsequently
as if such release, discharge or settlement had not occurred.
(c) The Lender is hereby authorised to exercise at any time after the
occurrence of an event of default under the Agreement or any relevant
facility letter(s) or instrument(s) a lien over all the property of the
Guarantor coming into its possession or control for any reason
whatsoever, and whether or not in the ordinary course of business, with
power for the Lender to sell such property, if necessary, to satisfy
any liabilities whatsoever of the Guarantor to the Lender.
12. (a) No waiver of any of the rights or powers of the Lender or any
consent by the Lender shall be valid unless signed by the Lender in
writing.
(b) Time is of the essence of this Guarantee, but no failure or delay
by the Lender in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial
exercise preclude any other or further exercise thereof or the exercise
or enforcement of any other right, power or privilege. The rights and
remedies herein provided are cumulative and not exclusive of any rights
and remedies provided by law.
13. Any money received by virtue of or in connection with this Guarantee
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may be placed to the credit of a suspense account for so long as the
Lender may determine with a view to reserving the rights of the Lender
to prove for the whole of its claim against the Borrower in the event
of any proceedings in or analogous to liquidation, winding-up,
composition or arrangement or for any other purpose whatsoever.
14. All payments by the Guarantor hereunder shall be made in full without
set-off or counterclaim and without deduction or withholding whatsoever
in respect of any present or future taxes or other charges (including
but not limited to any withholding taxes) unless the Guarantor is
compelled by law to make any such deduction or withholding in which
case he will promptly pay to the Lender such additional amounts as may
be necessary to ensure that the net amount received by the Lender will
be equal to the full amount which would have been received had no such
deduction or withholding been made.
15. (a) This Guarantee shall be binding upon and enure to the benefit of
the parties hereto and their respective successors and assigns except
the Guarantor may not assign or transfer any of its rights, benefits,
duties or obligations hereunder.
(b) If the Lender shall assign the whole or any part of its rights
under the Agreement or the relevant facility letter(s) or
instrument(s), the Lender may also assign the whole or the appropriate
portion of its rights hereunder, in which event references herein to
the Lender shall thenceforth be deemed to include a reference to each
assignee to the extent of its interest. The assignees shall not exceed
five (5) in number.
(c) Any representations, warranties, undertakings and arrangements on
the part of the Guarantor hereunder shall survive the making of any
assignment by the Lender hereunder or under any other security
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documents held by the Lender in respect of the Guaranteed Indebtedness
and/or the obligations and liabilities of the Borrower under the
Agreement or any other facility letter(s) or similar instrument(s) to
which it is a party, the change in the name of the Lender or the
Lender's amalgamation with, or absorption by any other corporation.
16. (a) Every notice or communication under this Guarantee must be in writing
and may, without prejudice to any other form of delivery, be delivered
personally or sent by post or transmitted by fax or telex.
(b) (i) In the case of posting, the envelope containing the notice
or communication must be addressed to the intended recipient
at the authorised address of that party and must be properly
stamped or have the proper postage prepaid for delivery by
the, most expeditious service available (which will be airmail
for an overseas address if that service is available) and, in
the case of a fax, the transmission must be sent to the
intended recipient at the authorised number of that party.
(ii) Subject to Clause 16(c), the authorised address and fax
numbers of each party, for the purpose of this Clause 16, are
as follows :
The Hongkong and Shanghai Banking Corporation Limited
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Address : One Queen'▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Fax : (▇▇▇) ▇▇▇▇-▇▇▇▇
For the attention of: The Relationship Manager,
Division E
Commercial Banking
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Concord Camera Corp:
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇-▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇
Fax : ▇ (▇▇▇) ▇▇▇-▇▇▇▇
For the attention of : __________________
(c) No change in any of the particulars set out in Clause 16(b)(ii)
will be effective against a party until it has been notified to that
party in writing.
(d) A notice or communication will be deemed to have been duly given by
the Lender and received by the Guarantor :
(i) on personal delivery to any director or the secretary of
the Guarantor or on business day to a place for the receipt of
letters at the Guarantor's authorised address;
(ii) in the case of posting, where the Guarantor's authorised
address is in the same country as the country of posting, at
10:00 a.m. (local time at the place where the address is
located) on the second business day after the day of posting.
(iii) in the case of posting, where the Guarantor's authorised
address is not in the same country as the country of posting,
at 10:00 a.m. (local time at the place where that address is
located) on the fifth business day after the day of posting;
and
(iv) in the case of a fax, on issue to the Lender of an O.K.
result
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confirmation report or, if the day of issue is not a business
day, at 10:00 a.m. (local time where the authorised fax number
of the Guarantor is located) on the next business day.
(e) A notice of communication served on the Lender will only be deemed
to be duly given by the Guarantor and received by the Lender upon
actual receipt by the Lender.
(f) For the purpose of Clause 16(d), a "BUSINESS DAY" means a day which
is not a Saturday or a Sunday or a public holiday in the country of
posting or transmission or in the country where the authorised address
or fax number of the intended recipient is located and, where a notice
is posted, which is not a day when there is a disruption of postal
services in either country which prevents collection or delivery.
17. If any one or more of the provisions of this Guarantee, or any part
hereof, shall be declared or adjudged to be illegal, invalid or
unenforceable under any applicable law, such provision shall, to the
extent required by such law, be severed from this Guarantee and
rendered ineffective so far as is possible, without vitiating any of
the other provisions of this Guarantee, which shall remain in full
force, validity and effect. Where, however, the provisions of any such
applicable law may be waived, they are hereby waived by the parties
hereto to the full extent permitted by such law to the end that this
Guarantee shall be valid, binding and enforceable in accordance with
its terms.
18. (a) This Guarantee and the rights and obligations of the parties
hereunder shall be governed by and construed and interpreted in all
respects in accordance with the laws of Hong Kong, and the parties
hereto hereby submit to the non-exclusive jurisdiction of the Hong Kong
Courts. The
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submission of the Guarantor to the jurisdiction of the Hong Kong Courts
shall not restrict the right of the Lender to take proceedings against
the Guarantor in any other courts having, claiming or accepting
jurisdiction over the Guarantor or any of its assets, nor shall the
taking or proceedings in any one or more jurisdictions preclude the
taking of proceedings in any other jurisdiction whether concurrently or
not.
(b) The Guarantor agrees that in any legal action or proceedings
against it or its assets in connection with this Guarantee no immunity
from such legal action or proceedings shall be claimed by or on behalf
of the Guarantor or with respect to its assets, and the Guarantor
irrevocably waives any such right of immunity which it or its assets
now have or may hereafter acquire or which may be attributed to it or
its assets and consents generally in respect of any such legal action
or proceedings to the giving of any relief or the issue of any proceed
in connection with such action or proceedings including, without
limitation, the making, enforcement or execution against any property
whatsoever, of any order or judgment which may be made or given in such
action or proceedings.
(c) The Guarantor hereby irrevocably appoints the Borrower to be its
agent for the purpose of accepting service of any legal process
hereunder (at its registered office or its last known place of business
in Hong Kong), but the Lender reserves the right to serve process on
the Guarantor in any other manner permitted by law.
19. The Guarantor shall be liable for all costs, charges and expenses
(including legal fees) incurred by the Lender in connection with the
preparation, execution, variation, release and enforcement of this
Guarantee.
20
20. (a) This Guarantee may only be varied or modified by supplemental
agreement or other document executed by both the Guarantor and the
Lender.
(b) No provision hereof may be amended, waived, discharged or
terminated orally, except only by an instrument in writing signed by
the party against whom enforcement of the amendment, waiver, discharge
or termination is sought.
21. This Guarantee may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when
so executed and delivered shall be an original but all of which shall
together constitute one and the same instrument.
IN WITNESS whereof the Guarantor has duly executed this
Guarantee the day and year first above written.
The Guarantor
SEALED with the COMMON SEAL )
of CONCORD CAMERA CORP. )
and SIGNED by )
)
------------------------- )
)
in the presence of: )
)
------------------------- )
)
