EXHIBIT 10.10
DATED 10th September 1991.
TAI NAM INDUSTRIAL COMPANY LIMITED
and
CHARTERKING LIMITED
and
CONCENTRIC TOYS LIMITED
and
TOYMAX (H.K.) LIMITED
To
THE HONGKONG AND SHANGHAI
BANKING CORPORATION LIMITED
----------------------------------
DEED OF CROSS GUARANTEES
----------------------------------
XXXXXXX XXXXXX & MASTER,
SOLICITORS &C.,
HONG KONG.
THIS DEED OF CROSS GUARANTEES is made the 10th day of September One thousand
nine hundred and ninety one
BETWEEN :
(1) TAI NAM INDUSTRIAL COMPANY LIMITED ([FOREIGN TRANSLATION OMITTED]) whose
registered office is situate at Room 4-8, 10th Floor, Wah Fat Industrial
Building, 10-14 Kung Yip Street, Xxxx Xxxxx, New Territories, Hong Kong,
CHARTERKING LIMITED ([FOREIGN TRANSLATION OMITTED]) whose registered office is
situate at Units 4-8, 10th Floor, Wah Fat Industrial Building, 10-14 Kung Yip
Street, Xxxx Xxxxx, New Territories, Hong Kong, CONCENTRIC TOYS LIMITED whose
registered office is situate at 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx Xxxx, Xxxxxxx
and TOYMAX (H.K.) LIMITED whose registered office is situate at Units A and B,
3rd Floor, GDW Building, 382-392 Castle Peak Road, Tsuen Wan, New Territories,
Hong Kong (each individually hereinafter referred to as a "Company" and
collectively hereinafter referred to as "the Companies", and the expression "the
Companies" wherever used in this Deed shall mean all or any one or more of the
Companies) and
(2) THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED whose registered
office is situate at Xx. 0 Xxxxx'x Xxxx Xxxxxxx, Xxxx Xxxx (hereinafter referred
to as "the Lender").
WHEREAS :-
(1) All or any of the Companies may from time to time henceforth give or may
have already given security to the Lender to secure the payment by Tai Nam
Industrial Company Limited, Charterking Limited, Concentric Toys Limited and
Toymax (H.K.) Limited of all sums of money due by Tai Nam Industrial Company
Limited, Charterking Limited, Concentric Toys Limited and Toymax (H.K.) Limited
to the Lender for the time being and from time to time in respect of general
banking facilities and/or in respect of other liabilities or for other purposes
and for all other sums of money whatsoever which may be now or henceforth owing
by Tai Nam Industrial Company Limited, Charterking
Limited, Concentric Toys Limited and Toymax (H.K.) Limited to the Lender
together with interest thereon.
(2) It has been agreed by and between the Companies and each of them and the
Lender that each Company shall guarantee to the Lender the performance by each
of them and/or the other Companies of their several obligations to the Lender
for the time being and from time to time and the security given as aforesaid
shall at all times stand respectively charged with and be security for the
payment by each Company of all moneys whatsoever due to the Lender and the
interest thereon.
NOW IT IS HEREBY AGREED as follows :-
1. (a) Each Company hereby guarantees, unconditionally and irrevocably, the due
and prompt payment by the other Companies and each of them of all sums of money
due by them or any of them to the Lender for the time being and from time to
time in respect of general banking facilities and/or in respect of other
liabilities or for other purposes and for all other sums of money whatsoever
which may be now or henceforth owing to the Lender together with interest
thereon and also the due and prompt performance and observance by such other
Companies and each of them of all covenants, agreements and undertakings of the
Companies contained in this Guarantee (all of which are herein collectively
called "the Guaranteed Obligations") and so that whenever one Company fails to
pay or perform or observe any of the Guaranteed Obligations in the manner
provided in this Guarantee the other Companies and each of them shall upon
demand by the Lender (whether or not the Lender shall have made any demand on or
taken any proceedings against such Company in default or against any other
guarantor and without any other formalities all of which are hereby expressly
waived by each Company) cause forthwith to be paid, performed or observed such
Guaranteed Obligations in respect of which such default has been made in
accordance with the provisions of this Guarantee or any other document(s)
between any of the Companies and the Lender.
(b) Each Company hereby agrees and declares that all and any securities
which may be henceforth or which may already have been given by it to the Lender
to secure the payment, performance and observance of the obligations of such
Company shall also be security for the guarantees given by the preceding
paragraph hereof.
(c) As a separate and independent stipulation, each Company shall, as
between the Lender and such Company, be primarily liable for the performance and
observance by the other Companies in respect of the Guaranteed Obligations as if
such Company were the primary obligor and not merely a surety, and without any
requirement for the Lender first to have recourse against the other Companies or
any of them or any other person and such Company's liability shall not be
discharged, impaired or reduced by any time or indulgence granted to the other
Companies or any of them by the Lender or by the other Companies or any of them
losing their or its separate identity or by any dealings or transactions between
the Lender and the other Companies or any of them or by any amendment or
supplement to any security or other document or agreement made between the
Companies or any of them and the Lender.
(d) Any statement requiring the payment or performance or observance of
any of the Guaranteed Obligations signed by any duly authorised officer of the
Lender shall (save for any manifest error) be conclusive evidence as against
each of the Companies of such requirement.
2. The obligations of each Company hereunder shall be a continuing security to
cover and secure the Guaranteed Obligations from time to time [ILLEGIBLE] in the
constitution of the other Companies or any of them or any settlement of account
or other matter whatsoever which but for this provision might operate to release
or otherwise exonerate such Company
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from its obligations hereunder. The obligations of each Company hereunder are in
addition to and not in substitution for any other guarantee, xxxx, xxxx, note,
mortgage or other security now or hereafter given in respect of the Guaranteed
Obligations.
3. Should any purported obligation of one Company, which if valid or enforceable
would be the subject of this Guarantee, be or become wholly or in part invalid
or unenforceable against such Company by reason of any defect in or
insufficiency or want of powers of the Company or irregular or improper
purported exercise thereof or breach or want of authority by any person
purporting to act on behalf of such Company 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 one Company is not or ceases to be legally
liable to discharge any money, obligation or liability undertaken or purported
to be undertaken on its behalf the other Companies 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 enactment relating to liquidation) in respect of that
purported obligation or liability as if the same where wholly valid and
enforceable and such other Companies were primary obligors in respect thereof.
The Lender is not to be concerned to see or enquire into the powers of the
Companies or their officers, employees or agents purporting to act on their
behalf. Each Company hereby agrees (subject as aforesaid) to keep the Lender
fully indemnified against all damages, losses, costs and expenses arising from
any failure of the other Companies or any of them to carry out any such
purported obligation.
4. Each Company agrees that the Lender may from time to time without discharging
or in any way affecting the liability of the other Companies hereunder and
without the assent or knowledge of the other
Companies grant to the Companies or any of them 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 Companies or any of them whether hereunder or otherwise, may renew,
determine, vary or increase any credit or facilities to or the terms or
conditions in respect of any transaction with the Companies or any of them or
compound with, discharge, release or vary the liability of the Companies or any
of them or concur in accepting or varying any compromise, arrangement or
settlement or omit to claim or enforce payment of any dividend or composition
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 any of the Companies hereunder. The
Lender may enforce this Guarantee notwithstanding that the Lender may hold any
other guarantee, lien or security or have any outstanding remedy against the
Companies or any of them.
5. Each Company declares that it has received no security for giving this
Guarantee and agrees that should any such security be created while any
Guaranteed Obligations are outstanding any such security shall, unless otherwise
agreed by the Lender, be held as security for the obligations of such Company
hereunder and shall forthwith be deposited with the Lender accordingly. Each
Company agrees that if default is made in observing the preceding provisions of
this Clause 5, 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 such Company to the Lender hereunder.
6. Each Company agrees that the Lender shall be entitled at any time after the
security hereby constituted has become enforceable
without notice to set off or transfer any moneys standing to the credit of such
Company in any account with the Lender (whether current, deposit or any of the
other nature whatsoever and whether subject to notice or not) in any currency
against the liability of such Company hereunder and that the Lender shall have a
lien on and be entitled to retain as security for the liabilities of such
Company 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 such Company from time to time deposited with
the Lender whether held for safe custody or otherwise.
7. This Guarantee shall apply to the full extent of the Guaranteed Obligations
and until all obligations and liabilities due hereunder have been discharged and
satisfied in full (which expression shall not embrace payment of a dividend in
liquidation of less than 100 per cent), each Company waives all rights of
subrogation and each agrees not to demand or accept repayment in whole or in
part of any loans or advances then or thereafter due to such Company from any of
the other Companies 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 other Companies or any of them or to claim any set-off or
counter-claim against the other Company or to claim or prove in competition with
the Lender or have the benefit of any share in any payment or composition from
the other Companies or any of them or in any guarantee or other security now or
hereafter held by the Lender.
8. Any money received by virtue of or in connection with this Guarantee may be
placed to the credit of any interest bearing suspense account with a view to
preserving the rights of the Lender to prove for the whole of its claim against
the Companies or any of them in the event of any proceedings in or analogous to
liquidation, composition or arrangement.
9. Any release, discharge or settlement between any of the Companies and the
Lender shall be conditional upon no security disposition or payment to the
Lender by the Companies or any of them being avoided or reduced pursuant to any
provisions or enactments relating to liquidation or insolvency and the Lender
shall be entitled to retain this Guarantee and any security held for the
liability of the Companies hereunder for a period of seven (7) months after the
payment, discharge or satisfaction of all moneys, obligation and liabilities
that are or may become due, owing or incurred to the Lender from the Companies
or any of them in the event of the commencement of a winding-up for such further
period as the Lender may determine and to enforce the provisions hereof against
the Companies or any of them subsequently as if such release, discharge or
settlement had not occurred.
10. All payments hereunder shall be made in full without set off or counterclaim
and without any deduction or withholding whatsoever and if any Company is
required by law to make any such deduction or withholding it will promptly pay
such additional amounts as will ensure receipt of the full amount which would
otherwise be receivable hereunder.
11. A demand shall without prejudice to any other effective mode of making the
same be deemed to have been sufficiently made hereunder on a Company if left or
sent by prepaid letter to such Company at its registered office address
hereinbefore mentioned or its last known place of business and such confirmation
shall be assumed to have reached such Company within 48 hours of posting and in
proving such service it shall be sufficient to prove that the demand was
properly addressed and posted.
12. If any one or more of the provisions of this Guarantee or any part or parts
thereof shall be declared or adjudged to be illegal, invalid or unenforceable
under any applicable law, such illegality,
invalidity or unenforceability shall not vitiate any other provisions hereof and
this Guarantee shall be construed as if such illegal, invalid or unenforceable
provisions were not contained herein.
13. All notices, requests, certificates or other communications to or upon the
Companies or any of them and the Lender shall be deemed to have been duly given
or made if given or made (as regards the Lender) to its Branch Office address in
Hong Kong hereinbefore mentioned (or such other address as may from time to time
be notified to each Company) and (as regards the Companies) to their respective
registered office addresses in Hong Kong hereinbefore mentioned or such other
address as may from time to time be notified by the Companies or any of them to
the Lender.
14. This Guarantee shall be binding upon the enure for the benefit of each party
and its successors and assigns but the Companies or any of them may not assign
or transfer any of their respective rights or obligations hereunder without the
express prior written consent of the Lender.
15. 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.
16. The Companies shall pay all costs, charges and expenses (including legal
fees) incurred by the Lender in connection with the negotiation, preparation,
execution and enforcement of this Guarantee.
IN WITNESS whereof the Companies and the Lender have executed this
Guarantee the day and year first above written.
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SEALED with the Common Seal of )
Tai Nam Industrial Company Limited )
and SIGNED by Xx. Xxx Ki Xxxx ) /s/ Chu Ki Xxxx
and Xxxx Xxxxx Xxxx Xxxx, two of ) [SEAL]
the directors of Tai Nam Industrial ) /s/ Xxxxx Xxxx Xxxx
Company Limited in the presence )
of :- )
/s/ Ho Kit Xxx
XX KIT YUE
[ILLEGIBLE]
SEALED with the Common Seal of )
Charterking Limited and SIGNED ) /s/ Chu Ki Xxxx
by Xx. Xxx Ki Xxxx and Xxxx Xxxxx ) [SEAL]
Xxxx Xxxx, two of the directors of ) /s/ Xxxxx Xxxx Xxxx
Charterking Limited in the presence )
of :- )
/s/ Ho Kit Yue
[ILLEGIBLE]
SEALED with the Common Seal of )
Concentric Toys Limited and SIGNED ) /s/ Chu Ki Xxxx
by Xx. Xxx Ki Xxxx and Xxxx Xxxxx ) [SEAL]
Xxxx Xxxx, two of the directors of ) /s/ Xxxxx Xxxx Xxxx
Concentric Toys Limited in the )
presence of :- )
/s/ Ho Kit Xxx
XX KIT YUE
[ILLEGIBLE]
SEALED with the Common Seal of )
Toymax (H.K.) Limited and SIGNED ) /s/ Chu Ki Xxxx
by Xx. Xxx Ki Xxxx and Xxxx Xxxxx ) [SEAL]
Xxxx Xxxx, two of the directors of ) /s/ Xxxxx Xxxx Xxxx
Toymax (H.K.) Limited in the )
presence of :- )
/s/ Ho Kit Yue
[ILLEGIBLE]
[ILLEGIBLE]
/s/ Xxxxx X.X. Xxxxx
XXXXX X.X. XXXXX
SOLICITOR,
HONG KONG.
SIGNED SEALED AND DELIVERED by ) As Attorney and Agent for and on
) behalf of the Lender
Ho Xxx Xx )
)
the duly appointed Attorney in ) /s/ [ILLEGIBLE] [SEAL]
) -----------------------------
Hong Kong of the Lender whose )
)
signature is verified by :- )
/s/ Xxxxx X. X. Xxxxx
XXXXX X. X. XXXXX
SOLICITOR,
HONG KONG.
