EXHIBIT 10.17
To: Commonwealth Finance Corporation Limited
00/X., Xxxxxxx Xxxxx, 00-00 Xxxxxxx Xxxxxx, Xxxx Xxxx.
(1) In consideration of your making or continuing advances or otherwise giving
credit or affording credit facilities (including inter alia the issue of
guarantees by you and your acceptance of guarantees by the Principal as
hereinafter defined in favour of third parties) for as long as you shall think
fit to Creative Master Ltd. (hereinafter called "the Principal") I, the
undersigned, hereby agree to pay to you on demand all sums of money which are
now or shall at any time be owing to you anywhere on any account whatsoever
whether from the Principal solely or from the Principal jointly with any other
person or persons or from any firm in which the Principal may be a partner
including the amount of notes or bills discounted or paid and other loans,
credits or advances made to or for the accomodation or at the request either of
the Principal solely or jointly or of any such firm as aforesaid or for any
money for which the Principal may be liable as surety or in any other way
whatsoever together with in all the cases aforesaid all interest, discount and
other DTC's charges including legal charges occasioned by or incident to this or
any other security held by or offered to you for the same indebtedness or by or
to the enforcement of any such security.
Provided always that the liability ultimately enforceable against me shall
not exceed in aggregate HKD 2.5 MN together with interest thereon (as well after
as before judgement) with monthly rests computed from the date of demand at the
rate of 1.50% per annum above its Best Lending Rate (which expression shall mean
the rate of interest per annum from time to time quoted by The HongKong and
Shanghai Banking Corporation as its prime or best lending rate for Hong Kong
Dollars in Hong Kong).
(2) 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 as aforesaid but shall be a continuing security and shall extend to cover
any sum or sums of money which shall for the time being constituted the balance
due from the Principal to you upon any such account as hereinbefore mentioned.
(3) This guarantee shall be binding as a continuing security on me, my
executors, administrators and legal representatives until the expiration of one
calendar month after I or in case of my dying or becoming under disability my
executors, administrators or legal representatives shall have given to you
notice in writing to discontinue and determine it and shall extend thereafter to
any bills, notes or cheques current at the expiration of the notice but
afterwards dishonoured and until all such sums have been paid to you.
(4) In the event of this guarantee ceasing from any cause whatsoever to be
binding as a continuing security on me, my executors, administrators or legal
representatives you shall be at liberty without thereby affecting your rights
hereunder to open a fresh account or accounts and to continue any then existing
account with the Principal and no money paid from time to time into any such
account or accounts by or on behalf of the Principal and subsequently drawn out
by the Principal shall on settlement of any claim in respect of this guarantee
be appropriated towards or have the effect of payment of any part of the money
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 the money shall at the time in writing direct you specially to
appropriate it to that purpose.
(5) Any admission or acknowledgement in writing by the Principal or by any
person authorised by the Principal of the amount of indebtedness of the
Principal to you and any judgement recovered by you against the Principal in
respect of such indebtedness shall be binding and conclusive on and against me,
my executors, administrators and legal representatives in all courts of law and
elsewhere.
(6) You shall be at liberty without thereby affecting your rights against me
hereunder at any time to determine enlarge or vary any credit to the Principal
to vary exchange abstain from perfecting or release any other securities held or
to be held by you for or on account of the monies intended to be hereby secured
or any part thereof to renew bills and promissory notes in any manner and to
compound with give time for payment to accept compositions from and make any
other arrangements with the Principal or any obligants on bills notes or other
securities held or to be held by you for and on behalf of the Principal.
(7) This guarantee shall be in addition to and shall not be in any way
prejudiced or affected by any collateral or other security now or hereafter held
by you for all or any part of the money hereby guaranteed nor shall such
collateral or other security or any lien to which you may be otherwise entitled
or the liability of any person or persons not parties hereto for all or any part
of the monies hereby secured be in anywise prejudiced or affected by this
present guarantee. And you shall have full power at your discretion to give time
for payment to or make any other arrangement with any such person or persons
without prejudice to this present guarantee or any liability hereunder. And all
money received by you from me or the Principal or any other person or persons
liable to pay the same may be applied by you to any account or items of account
or to any transaction to which the same may be applicable.
(8) Although my ultimate liability hereunder cannot exceed the limit
hereinbefore mentioned yet this present guarantee shall be construed and take
effect as a guarantee of the whole and every part of the principal money and
interest owing and to become owing as aforesaid and accordingly I am not to be
entitled as against you to any right of proof in the bankruptcy or insolvency of
the Principal or other right of a surety discharging his liability in respect of
the principal debt unless and until the whole of the principal money and
interest shall have first been completely discharged and satisfied. And further
for the purpose of enabling you to xxx the Principal or prove against his estate
for the whole of the money owing as aforesaid or to preserve intact the
liability of any other part you may at any time place and keep for such time as
you may think prudent and money received recovered or realised hereunder to and
at a separate or suspense account to the credit either of me or of such other
person or persons or transaction if any as you shall think fit without any
intermediate obligations on your part to apply the same or any part thereof in
or towards the discharge of the money owing as aforesaid or any intermediate
right on my part to xxx the Principal or prove against his estate in competition
with or so as to diminish any dividend or other advantage that would or might
come to you or to treat the liability of the Principal as diminished.
(9) I have not taken in respect of the liability hereby undertaken by me on
behalf of the Principal and I will not take from the Principal either directly
or indirectly without your consent any promissory note xxxx of exchange mortgage
charge or other counter-security whether merely personal or involving a charge
on any property whatsoever of the Principal whereby I or any person claiming
through me by indorsement assignment or otherwise would or might on the
bankruptcy or insolvency of the Principal and to the prejudice of you increase
the proofs in such bankruptcy or insolvency or diminish the property
distributable amongst the creditors of the Principal. And as regards any such
counter-security as aforesaid which I may have taken or may take with such
consent as aforesaid the counter-security shall be a security to you for the
fulfilment of my obligations hereunder and shall be forthwith deposited by me
with you for that purpose.
(10) You shall so long as any money remains owing hereunder have a lien
therefor on all money now or hereafter standing to my credit with you.
(11) For all purposes, including any legal proceedings a copy of the account of
the Principal in your books signed by any of your officers shall be accepted by
me as conclusive evidence of the state of such account.
(12) If the Principal is a corporation or an unincorporated body or firm the
absence or informality of borrowing powers on the part of the Principal or any
irregularity in the exercise thereof shall not affect my liability and any
moneys advanced to the Principal shall be deemed to be due and owing
notwithstanding such absence, informality or irregularity and this guarantee
shall not be affected by any change in the name or constitution of the
corporation or unincorporated body or firm or in the persons constituting the
same.
(13) This guarantee shall be in addition to and not in substitution for any
other guarantee for the Principal given by me to you.
(14) A notice by you under this guarantee may be served by post (which shall be
registered airmail in the event that the address given hereunder is outside the
Colony of Hong Kong) and shall be deemed to have been duly served on the seventh
day following the day of posting if addressed to me at address given hereunder.
(15) This guarantee and all rights, obligations and liabilities arising
hereunder shall be construed and determined under and may be enforced in
accordance with the laws of Hong Kong. [I hereby agree that the Courts in Hong
Kong shall have jurisdiction over all disputes arising under this guarantee and
irrevocably appoint_____________________________________________________________
of ______________________________________________________________________ to be
my agent for the purpose of accepting service of process hereunder.]
IN WITNESS whereof I have hereunto set my hand and seal this 30th day of March
1993
SIGNED SEALED AND DELIVERED by )
) /s/ Xxxx Xxxx
) ___________________________________________
) Signature of Guarantor
in the presence of:--
ILLEGIBLE SIGNATURE
_________________________________
Witness Signature
Name(in full) Xxxx Xx Xxxx Xxxxxx
___________________
Address 10H, Ngan Sing Mansion, Guarantor's Address 3/fl., 00, Xxxxxx Xxxx,
_________________________ ________________________
Taikooshing, H.k. Pokfulam, H.K.
_________________________________ ____________________________________________
Occupation Admin. Officier
_____________________ ____________________________________________
