FORM OF GUARANTY
FORM
OF GUARANTY
1. Identification.
This
Guaranty (the “Guaranty”), dated as of December 13, 2006, is entered into by
China
Quantum Communications Ltd., a Cayman Islands corporation, China Biopharma
Ltd.,
a Cayman Islands corporation, and Guang Xxxx Xxxx Xxx (China) Co. Ltd., a
corporation incorporated in the Peoples Republic of China
(each a
“Guarantor”), for the benefit of the parties identified on Schedule A hereto
(each a “Lender” and collectively, the “Lenders”).
2. Recitals.
2.1 Guarantor
is a direct or indirect subsidiary of China Biopharma, Inc., a Delaware
corporation (“Parent”). The Lenders have made, are making and will be making
loans to Parent (the “Loans”). Guarantor will obtain substantial benefit from
the proceeds of the Loans.
2.2 The
Loans
are and will be evidenced by certain promissory Notes (collectively, “Note” or
“Notes”) issued by Parent on, about or after the date of this Guaranty pursuant
to subscription agreements dated at or about the date hereof (“Subscription
Agreements”). The Notes are further identified on Schedule A hereto and were and
will be executed by Parent as “Borrower” or “Debtor” for the benefit of each
Lender as the “Holder” or “Lender” thereof.
2.3 In
consideration of the Loans made and to be made by Lenders to Parent and for
other good and valuable consideration, and as security for the performance
by
Parent of its obligations under the Notes and as security for the repayment
of
the Loans and all other sums due from Debtor to Lenders arising under the Notes,
Subscription Agreements and any other agreement between or among them relating
to the foregoing (collectively, the “Obligations”), Guarantor, for good and
valuable consideration, receipt of which is acknowledged, has agreed to enter
into this Guaranty. Obligations include all future advances by Lenders to Parent
made by Lenders pursuant to the Subscription Agreement.
2.4 The
Lenders have appointed Xxxxxxx X. Xxxxxxx as Collateral Agent pursuant to that
certain Collateral Agent Agreement dated at or about the date of this Agreement
(“Collateral Agent Agreement”), among the Lenders and Collateral
Agent.
3. Guaranty.
3.1 Guaranty.
Guarantor hereby unconditionally and irrevocably guarantees, jointly and
severally with any other Guarantor, the punctual payment, performance and
observance when due, whether at stated maturity, by acceleration or otherwise,
of all of the Obligations now or hereafter existing, whether for principal,
interest (including, without limitation, all interest that accrues after the
commencement of any insolvency, bankruptcy or reorganization of Parent, whether
or not constituting an allowed claim in such proceeding), fees, commissions,
expense reimbursements, liquidated damages, indemnifications or otherwise (such
obligations, to the extent not paid by Parent being the “Guaranteed
Obligations”), and agrees to pay any and all reasonable costs, fees and expenses
(including reasonable counsel fees and expenses) incurred by Collateral Agent
and the Lenders in enforcing any rights under the guaranty set forth herein.
Without limiting the generality of the foregoing, Guarantor’s liability shall
extend to all amounts that constitute part of the Guaranteed Obligations and
would be owed by Parent to Collateral Agent and the Lenders, but for the fact
that they are unenforceable or not allowable due, in either case, to the
existence of an insolvency, bankruptcy or reorganization involving
Parent.
3.2 Guaranty
Absolute.
Guarantor guarantees that the Guaranteed Obligations will be paid strictly
in
accordance with the terms of the Notes, regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any of such
terms
or the rights of Collateral Agent or the Lenders with respect thereto. The
obligations of Guarantor under this Guaranty are independent of the Guaranteed
Obligations, and a separate action or actions may be brought and prosecuted
against Guarantor to enforce such obligations, irrespective of whether any
action is brought against Parent or any other Guarantor or whether Parent or
any
other Guarantor is joined in any such action or actions. The liability of
Guarantor under this Guaranty constitutes a primary obligation, and not a
contract of surety, and to the extent permitted by law, shall be irrevocable,
absolute and unconditional irrespective of, and, to the extent permitted by
law,
Guarantor hereby irrevocably waives any defenses it may now or hereafter have
in
any way relating to, any or all of the following:
(a)
any
lack
of validity or enforceability of the Notes or any agreement or instrument
relating thereto;
(b)
any
change in the time, manner or place of payment of, or in any other term of,
all
or any of the Guaranteed Obligations, or any other amendment or waiver of or
any
consent to departure from the Notes, including, without limitation, any increase
in the Guaranteed Obligations resulting from the extension of additional credit
to Parent or otherwise;
(c)
any
taking, exchange, release, subordination or non-perfection of any Collateral,
or
any taking, release or amendment or waiver of or consent to departure from
any
other guaranty, for all or any of the Guaranteed Obligations;
(d)
any
change, restructuring or termination of the corporate, limited liability company
or partnership structure or existence of Parent; or
(e)
any
other
circumstance (including, without limitation, any statute of limitations) or
any
existence of or reliance on any representation by Collateral Agent or the
Lenders that might otherwise constitute a defense available to, or a discharge
of, Parent or any other guarantor or surety.
This
Guaranty shall continue to be effective or be reinstated, as the case may be,
if
at any time any payment of any of the Guaranteed Obligations is rescinded or
must otherwise be returned by Collateral Agent, the Lenders or any other entity
upon the insolvency, bankruptcy or reorganization of the Parent or otherwise
(and whether as a result of any demand, settlement, litigation or otherwise),
all as though such payment had not been made.
3.3 Waiver.
Guarantor hereby waives promptness, diligence, notice of acceptance and any
other notice with respect to any of the Guaranteed Obligations and this Guaranty
and any requirement that Collateral Agent or the Lenders or exhaust any right
or
take any action against Parent or any other person or entity or any Collateral.
Guarantor acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated herein and that the waiver set forth
in
this Section 3.3
is
knowingly made in contemplation of such benefits. Guarantor hereby waives any
right to revoke this Guaranty, and acknowledges that this Guaranty is continuing
in nature and applies to all Guaranteed Obligations, whether existing now or
in
the future.
3.4
Continuing
Guaranty; Assignments.
This
Guaranty is a continuing guaranty and shall (a) remain in full force and effect
until the later of the indefeasible cash payment in full of the Guaranteed
Obligations and all other amounts payable under this Guaranty, the Subscription
Agreements and Notes, (b) be binding upon Guarantor, its successors and assigns
and (c) inure to the benefit of and be enforceable against Guarantor by the
Lenders and their successors, pledgees, transferees and assigns. Without
limiting the generality of the foregoing clause (c), any Lender may pledge,
assign or otherwise transfer all or any portion of its rights and obligations
under this Guaranty (including, without limitation, all or any portion of its
Notes owing to it) to any other Person, and such other Person shall thereupon
become vested with all the benefits in respect thereof granted such Collateral
Agent or Lender herein or otherwise.
3.5
Subrogation.
No
Guarantor will exercise any rights that it may now have or hereafter acquire
against the Collateral Agent or any Lender or other Guarantor (if any) that
arise from the existence, payment, performance or enforcement of such
Guarantor’s obligations under this Guaranty, including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution or
indemnification, whether or not such claim, remedy or right arises in equity
or
under contract, statute or common law, including, without limitation, the right
to take or receive from the Collateral Agent or any Lender or other Guarantor
(if any), directly or indirectly, in cash or other property or by set-off or
in
any other manner, payment or security solely on account of such claim, remedy
or
right, unless and until all of the Guaranteed Obligations and all other amounts
payable under this Guaranty shall have been indefeasibly paid in full in cash.
3.6
Maximum
Obligations.
Notwithstanding any provision herein contained to the contrary, Guarantor’s
liability with respect to the Obligations shall be limited to an amount not
to
exceed, as of any date of determination, the amount that could be claimed by
Lenders from Guarantor without rendering such claim voidable or avoidable under
Section 548 of the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute
or
common law.
4. Miscellaneous.
4.1 Expenses.
Guarantor shall pay to the Lenders, on demand, the amount of any and all
reasonable expenses, including, without limitation, attorneys’ fees, legal
expenses and brokers’ fees, which the Lenders may incur in connection with
exercise or enforcement of any the rights, remedies or powers of the Lenders
hereunder or with respect to any or all of the Obligations.
4.2 Waivers,
Amendment and Remedies.
No
course of dealing by the Lenders and no failure by the Lenders to exercise,
or
delay by the Lender in exercising, any right, remedy or power hereunder shall
operate as a waiver thereof, and no single or partial exercise thereof shall
preclude any other or further exercise thereof or the exercise of any other
right, remedy or power of the Lenders. No amendment, modification or waiver
of
any provision of this Guaranty and no consent to any departure by Guarantor
therefrom, shall, in any event, be effective unless contained in a writing
signed by the Majority in Interest (as such term is defined in the Collateral
Agent Agreement) or the Lender or Lenders against whom such amendment,
modification or waiver is sought, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. The rights, remedies and powers of the Lenders, not only hereunder,
but
also under any instruments and agreements evidencing or securing the Obligations
and under applicable law are cumulative, and may be exercised by the Lenders
from time to time in such order as the Lenders may elect.
4.3 Notices.
All
notices or other communications given or made hereunder shall be in writing
and
shall be personally delivered or deemed delivered the first business day after
being faxed (provided that a copy is delivered by first class mail) to the
party
to receive the same at its address set forth below or to such other address
as
either party shall hereafter give to the other by notice duly made under this
Section:
To
Parent
and
Guarantor,
to: China
Biopharma, Inc.
00
Xxxxxxx Xxxx
Xxxxxxxxx,
Xxx Xxxxxx 00000
Attn:
Xxxxx Xxxx, CEO
Fax:
(000) 000-0000
With
a
copy by telecopier only to:
Loeb
& Loeb LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax
(000)
000-0000
To
Lenders: To
the
addresses and telecopier numbers set
Forth
on
Schedule A
To
the
Collateral
Agent: Xxxxxxx
X. Xxxxxxx
000
Xxxxx
Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
If
to
Parent, Guarantor, Lender or
Collateral
Agent, with a copy by telecopier only to:
Grushko
& Xxxxxxx, P.C.
000
Xxxxx
Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
Any
party
may change its address by written notice in accordance with this
paragraph.
4.4 Term;
Binding Effect.
This
Guaranty shall (a) remain in full force and effect until payment and
satisfaction in full of all of the Obligations; (b) be binding upon Guarantor
and its successors and permitted assigns; and (c) inure to the benefit of the
Lenders and their respective successors and assigns. All
the
rights and benefits granted by Guarantor to the Collateral Agent and Lenders
hereunder and other agreements and documents delivered in connection therewith
are deemed granted to both the Collateral Agent and Lenders. Upon the payment
in
full of the Obligations, (i) this Guaranty shall terminate and (ii) the Lenders
will, upon Guarantor’s request and at Guarantor’s expense, execute and deliver
to Guarantor such documents as Guarantor shall reasonably request to evidence
such termination, all without any representation, warranty or recourse
whatsoever.
4.5 Captions.
The
captions of Paragraphs, Articles and Sections in this Guaranty have been
included for convenience of reference only, and shall not define or limit the
provisions hereof and have no legal or other significance
whatsoever.
4.6 Governing
Law; Venue; Severability.
This
Guaranty shall be governed by and construed in accordance with the laws of
the
State of New York without regard to principles of conflicts or choice of law.
Any legal action or proceeding against Guarantor with respect to this Guaranty
may be brought in the courts of the State of New York or of the United States
for the Southern District of New York, and, by execution and delivery of this
Guaranty, Guarantor hereby irrevocably accepts for itself and in respect of
its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Guarantor hereby irrevocably waives any objection which they may now
or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Guaranty brought in the
aforesaid courts and hereby further irrevocably waives and agrees not to plead
or claim in any such court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum. If any provision of this
Guaranty, or the application thereof to any person or circumstance, is held
invalid, such invalidity shall not affect any other provisions which can be
given effect without the invalid provision or application, and to this end
the
provisions hereof shall be severable and the remaining, valid provisions shall
remain of full force and effect.
4.7 Satisfaction
of Obligations.
For all
purposes of this Guaranty, the payment in full of the Obligations shall be
conclusively deemed to have occurred when either the Obligations have been
indefeasibly paid in cash or all outstanding Notes have been converted to common
stock pursuant to the terms of the Notes and the Subscription
Agreements.
4.8 Counterparts/Execution.
This
Agreement may be executed in any number of counterparts and by the different
signatories hereto on separate counterparts, each of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute but
one
and the same instrument. This Agreement may be executed by facsimile signature
and delivered by facsimile transmission.
IN
WITNESS WHEREOF, the
undersigned have executed and delivered this Guaranty, as of the date first
written above.
|
“GUARANTOR”
|
“GUARANTOR”
|
|
CHINA
QUANTUM COMMUNICATIONS LTD.
|
CHINA
BIOPHARMA LTD.
|
|
a
Cayman Islands corporation
|
a
Cayman Islands corporation
|
|
By:
_____________________________________
|
By:
__________________________________
|
|
Its:
_____________________________________
|
Its:
___________________________________
|
|
“GUARANTOR”
|
|
|
GUANG
XXXX XXXX LUO (CHINA) CO. LTD.
|
|
|
a
China corporation
|
|
|
By:
_____________________________________
|
|
|
Its:
_____________________________________
|
|
|
APPROVED
BY “LENDERS”:
|
|
|
Name
of Lender (Print):
|
|
|
Name
of Lender (Print):
|
|
|
________________________________________
|
______________________________________
|
|
By:_____________________________________
|
By:____________________________________
|
|
Print
Name of Signator:_____________________
|
Print
Name of
Signator:____________________
|
This
Guaranty Agreement may be signed by facsimile signature
and
delivered
by confirmed facsimile transmission.
SCHEDULE
A TO GUARANTY
|
LENDERS
|
NOTE
PRINCIPAL
|
|||
|
XXXXXXX
XXXXXX
c/o
Plazacorp Investments Limited
00
Xxxxxxx Xxx.-Xxxxx 000
Xxxxxxx,
Xxxxxxx X0X 0X0
Fax:
(000) 000-0000
|
$
|
150,000.00
|
||
|
BRIO
CAPITAL L.P.
000
X. 00xx
Xx.
Xxxxx
x-00x
Xxx
Xxxx, XX 00000
Fax:
(000) 000-0000
|
$
|
150,000.00
|
||
|
CHESTNUT
RIDGE PARTNERS, L.P.
00
Xxxx Xxxxxxxxx
Xxxxxxxxx
Xxxx, XX 00000
Fax:
(000) 000-0000
|
$
|
250,000.00
|
||
|
XXXXXX
XXXXXXXXXXX
0000
X. Xxxxxx
Xxxxxxxxxxx,
XX 00000
Fax:
(000) 000-0000
|
$
|
250,000.00
|
||
|
MONARCH
CAPITAL FUND LTD.
Harbour
House, 2nd
Fl.
Waterfront
Drive,
Road
Town, Tortola, BVI
Fax:
(000) 000-0000
|
$
|
250,000.00
|
||
|
PROFESSIONAL
OFFSHORE OPPORTUNITY FUND, LTD.
0000
Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
Fax:
(000) 000-0000
|
$
|
300,000.00
|
||
|
NITE
CAPITAL LP
000
Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
XX 00000
Fax:
(000) 000-0000
|
$
|
250,000.00
|
||
|
VISION
OPPORTUNITY MASTER FUND, LTD.
00
X. 00xx
Xxxxxx, 0xx
Xx.
Xxx
Xxxx, XX 00000
Fax:
(000) 000-0000
|
$
|
700,000.00
|
||
|
FIRST
MIRAGE, INC.
000
Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Fax:
(000) 000-0000
|
$
|
125,000.00
|
||
|
GENERATION
CAPITAL ASSOCIATES
0000
Xxxxxxxxx Xxxxx
Xxxxxxx,
XX 00000
Fax:
(000) 000-0000
|
$
|
125,000.00
|
||
|
DOUBLE
U MASTER FUND L.P.
P.
O. Xxx 000
Xxxxxxx
Xxxxx
Xxxxxxxx,
Xxxxxxx, BVI
Fax:
(000) 000-0000
|
$
|
100,000.00
|
||
|
CENTURION
MICROCAP, LP
0000
Xxxxxx X
Xxxxxxxx,
XX 00000
Fax:
(000) 000-0000
|
$
|
250,000.00
|
||
|
XXXXXXXX
& LINDSAY SEC. CORP.
000
Xxxxxxxxxxxxx Xxx.
XX0000
Xxxxxx,
Xxxxxxxxxxx
Fax:
(000) 000-0000
|
$
|
100,000.00
|
||
|
TOTALS
|
$
|
3,000,000.00
|
||
