EXHIBIT 10.16
JOINT AND SEVERAL GUARANTEE BY INDIVIDUALS
OR PARTNERS IN A FIRM
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") we, 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 DTCS' 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 joint and several liability ultimately enforceable
against us shall not exceed in aggregate the sum of 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 Hong Kong and Shanghai Banking Corporation in Hong Kong 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 constitute 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 us, our
executors, administrators and legal representatives until the expiration of one
calendar month after each of us or in case of one or more of us dying or
becoming under disability the survivor or survivors of us and the executors,
administrators or legal representatives of the person or persons so dying or
becoming under disability 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 us, our 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 us,
our executors, administrators and legal representatives in all courts of law and
elsewhere.
(6) You shall be at liberty without thereby affecting your rights against us
hereunder at any time to determine enlarge or vary any credit to the Principal
to very 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 us 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 our 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 neither we nor
any of us shall 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 sue 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 any money received recovered or
realised hereunder to and at a separate or suspense account to the credit either
of us 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 our part to sue 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) Neither we nor any of us have taken in respect of the liability hereby
undertaken by us on behalf of the Principal nor will we nor any of us take from
the Principal either directly or indirectly without your consent any promissory
note bill of exchange mortgage charge or other counter-security whether merely
personal or involving a charge on any property whatsoever of the Principal
whereby we or any person claiming through us 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 we or any of us may have
taken or may take with such consent as aforesaid the counter-security shall be a
security to you for the fulfilment of our obligations hereunder and shall be
forthwith deposited by us 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 our 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
us 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 our 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 all or any of us to you.
(14) A notice by you under this guarantee may be served by post (which shall be
registered airmail with respect to any of us whose addresses given hereunder are
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 us at the
respective addresses 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. [We hereby agree that the Courts in Hong
Kong shall have jurisdiction over all disputes arising under this guarantee and
irrevocably appoint ______________________________________ of __________________
__________________________________________________ to be our agent for the
purpose of accepting service of process hereunder on behalf of all or any of
us.]
IN WITNESS whereof we have hereunto set our respective hands and seals this
30/th/ day of March 1993
SIGNED SEALED AND DELIVERED by ) /s/ Xxxx Xxxx
) _________________________________________________
) Signature of Guarantor
in the present of:--
/s/ [ILLEGIBLE]
________________________________________
Witness Signature
Xxxx Xx Xxxx Xxxxxx
Name (in full) _________________________
10H, Ngan Sing Mansion, 3/fl., 00, Xxxxxx Xx.,
Address ________________________________ Guarantor's Address _____________________________
Xxxxxxxxxxx, X.X. Pokfulam, H.K.
________________________________________ _________________________________________________
Admin Officer
Occupation ____________________________ _________________________________________________
SIGNED SEALED AND DELIVERED by ) /s/ Xxx Xxxx
) _________________________________________________
) Signature of Guarantor
in the present of:--
/s/ [ILLEGIBLE]
________________________________________
Witness Signature
/s/ Ho Xxxx Xxxxxx
Name (in full) _________________________
10H, NGAN SING MANSION, 10H NGAN SING
Address ________________________________ Guarantor's Address _____________________________
XXXXXXXXXXX, X.X. MANSION, TAIKOOSHING, HKG.
________________________________________ _________________________________________________
ADMIN OFFICER
Occupation ____________________________ _________________________________________________
SIGNED SEALED AND DELIVERED by )
) _________________________________________________
) Signature of Guarantor
in the present of:--
________________________________________
Witness Signature
Name (in full) _________________________
Address ________________________________ Guarantor's Address _____________________________
________________________________________ _________________________________________________
Occupation ____________________________ _________________________________________________
