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Exhibit 10.3
Dated the 31ST day of AUGUST,1998.
CELEBRITY, INC.
(as Guarantor)
to
THE CHINA STATE BANK LIMITED
(as Lender)
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DEED OF GUARANTEE
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WAT & CO.,
SOLICITORS,
16TH FLOOR, XXXX HOUSE,
19 & 00 XXXXXXXXX XXXX XXXXXXX
XXXX XXXX.
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THIS GUARANTEE is given this 31st day of August one thousand
nine hundred and ninety eight
BY
(1) CELEBRITY, INC. a corporation incorporated under the laws of the State
of Texas, United States of America and having a place of business in Hong Kong
at Xxxxx 0000-00, Xxxxxxxxx Commercial Centre, Xx.0 Xxxx Xxx Xxxx, Xxxxxxx Xxx,
Xxxxxxx, Xxxx Xxxx ("the Guarantor")
TO
(2) THE CHINA STATE BANK LIMITED a banking corporation incorporated in the
People's Republic of China with limited liability and having a branch in Hong
Kong at China State Bank Building, Nos.39 & 00 Xxx Xxxxx Xxxx Xxxxxxx, Xxxx Xxxx
("xxx
Lender")
WHEREBY IT IS AGREED as follows :-
1. DEFINITIONS AND INTERPRETATIONS
1.01 In this Guarantee the following expressions, except where the context
otherwise requires, shall have the following meanings :
"Guarantee" means this Guarantee as originally executed or as it may be amended
and/or supplemented from time to time;
"Guarantor" means Celebrity, Inc. a corporation incorporated under the laws of
the State of Texas, United States of America and having a place of business in
Hong Kong at 00xx Xxxxx, Xxxxxx Xxxxxx, Xx.00 Xxxx Xxxx, Xxxxxxx, Xxxx Xxxx and
its successors;
"Principal" means Celebrity Exports International Limited
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[Chinese characters] (Business Registration Certificate No.08848672-000-02 and
Company No.133493) a company incorporated under the laws of Hong Kong and having
its registered office situate at units 2105-19, Xxxxxxxxx Commercial Centre,
Xx.0 Xxxx Xxx Xxxx, Xxxxxxx Xxx, Xxxxxxx, Xxxx Xxxx and its successors;
"Hong Kong" means Hong Kong Special Administrative Region of the People's
Republic of China;
"Hong Kong dollars" and the sign "HK$" mean the lawful currency for the time
being of Hong Kong;
"Lender" means The China State Bank Limited a banking corporation incorporated
in the People's Republic of China with limited liability and having a branch in
Hong Kong at China State Bank Building, Nos. 39 & 00 Xxx Xxxxx Xxxx Xxxxxxx,
Xxxx Xxxx and its successors and assigns.
1.02 words (including words defined in this Guarantee) denoting the singular
will include the plural and vice versa and references to persons shall include
companies and vice versa.
1.03 References to Clauses are references to clauses of this Guarantee.
1.04 References to any document or agreement (including this Guarantee) shall be
deemed to include references to such document or agreement as amended, novated,
supplemented or replaced from time to time.
1.05 References to provisions of statutes rules or regulations shall be deemed
to include references to such provisions as amended modified or re-enacted from
time to time.
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1.06 References to the "Guarantor" and "Lender" shall include their executors,
administrators, successors and permitted assigns. 1.07 Headings used in this
Guarantee are solely for convenience and shall not affect the interpretation of
this Guarantee.
2. GUARANTEE
2.01 In consideration of the Lender from time to time making or continuing loans
or advances to or coming under liabilities or discounting bills for or otherwise
giving credit or granting banking facilities or accommodation or granting time
to or on account of the Principal, the Guarantor hereby unconditionally
guarantees to and agrees with the Lender that the Guarantor will pay to the
Lender on demand all money which is now or shall at any time or times after this
date be due or owing or payable to the Lender from or by the Principal under or
in respect of any dealing, transaction or engagement whatsoever, either solely
or jointly with any other person, firm or company and whether as principal or
surety, and whether upon current account or other banking account or accounts or
otherwise or in respect of bills, drafts, notes or other negotiable instruments
made, drawn, accepted, advised, indorsed or paid by the Lender or on the
Lender's account for the Principal, either solely or jointly as stated above, or
which the Lender may from time to time become liable to pay in respect of any
bills, drafts, notes, letters of credit or any other dealing, transaction or
engagement on account of or for the benefit or accommodation of the Principal,
either solely or jointly as stated above, together with all interest, costs,
commissions and other
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banking charges and expenses which the Lender may in the course of the Lender's
business as bankers charge against the Principal and all legal and other costs,
charges and expenses which the Lender may incur in enforcing or obtaining
payment of any such money from the Principal, or attempting so to do provided
that the total amount recoverable from the Guarantor under this guarantee shall
not exceed Hong Kong Dollars Fifty Million (HK$50,000,000.00) together with a
further sum for all interest, costs, commissions and other costs, charges and
expenses as stated above as shall have accrued or shall accrue due to the Lender
at any time before or at any time after the date of such demand as stated above.
2.02 For all purposes including any legal proceedings a copy of any statement of
account purporting to show the amount due to the Lender from the Principal
signed as correct by any duly authorised officer of the Lender (save for any
manifest error) shall be conclusive evidence as against the Guarantor of the
amount so due.
2.03 This Guarantee shall be a continuing security and shall cover and secure
the ultimate balance from time to time owing to the Lender by the Principal
notwithstanding the bankruptcy, liquidation, incapacity or any change in the
constitution of the Principal or the Guarantor or any settlement of account or
other matter whatsoever. This Guarantee and the Lender's rights under it shall
be in addition to and shall not be in any way prejudiced or affected by any
other guarantee, xxxx, xxxx, note, mortgage, charge or other security now or
hereafter held by the Lender for Principal. The Lender may at any time or times
and notwithstanding
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the determination of this Guarantee continue any accounts of the Principal 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.
2.04 Should any purported obligation of the Principal, which if valid or
enforceable would be the subject of this Guarantee, be or become wholly or in
part invalid or unenforceable against the Principal by reason of any defect in
or insufficiency or want of powers of the Principal or irregular or improper
purported exercise thereof or breach or want of authority by any person
purporting to act on behalf of the Principal or because the Lender's rights 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 Principal 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 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 enactment relating to liquidation) in respect of that purported
obligation or liability as if the same were wholly valid and enforceable and the
Guarantor were the principal debtor in respect thereof. The Lender is not to be
concerned to see or enquire into the power of the Principal or
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its officers, employees or agents purporting to act on its behalf. The Guarantor
hereby agrees to keep the Lender fully indemnified against all damages, losses,
costs and expenses arising from any failure of the Principal to carry out any
such purported obligation.
2.05 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 Principal or to
any other person 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, charges, securities or other
rights which the Lender may now or hereafter have from or against the Principal
or any other person whether hereunder or otherwise, renew, determine, vary or
increase any credit or facilities to or the terms or conditions in respect of
any transaction with the Principal or compound with, discharge, release or vary
the liability of the Principal or any other person 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 an the part of the Lender shall in
any way discharge or diminish the validity of this Guarantee or affect the
liability of the Guarantor hereunder. The Lender may enforce this Guarantee
notwithstanding that the Lender
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may hold any other guarantee, lien or security or have any outstanding remedy
against the Principal or any other person. 2.06 The Guarantor declares that it
has not received any security or giving this Guarantee and agrees that should
any such security be created while any money, obligation or liability, payment
whereof is hereby guaranteed, 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, 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.
2.07 The Guarantor 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 the Guarantor in any account
with the Lender (whether current, deposit or of any other nature whatsoever and
whether subject to notice or not) in any currency against the liability of the
Guarantor under this Guarantee and 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
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from time to time deposited with the Lender whether held for safe custody or
otherwise.
2.08 This Guarantee shall apply to the ultimate balance owing by the Principal
to the Lender and until all moneys, obligations and liabilities due hereunder
have been paid, discharged and satisfied in full (which expression shall not
embrace payment of a dividend in liquidation or bankruptcy of less than one
hundred per centum (100%)), the Guarantor waives all rights of subrogation 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 Principal 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 Principal
or to claim any set-off or counter-claim against the Principal or to claim or
prove in competition with the Lender or to have the benefit of any share in any
payment or composition from the Principal or any other person or in any other
guarantee or security now or hereafter held by the Lender.
2.09 Any money received by virtue of or in connection with this Guarantee may be
placed to the credit of an interest bearing suspense account with a view to
preserving the rights of the Lender to prove for the whole of the Lender's
claims against the Principal in the event of any proceedings in or analogous to
liquidation, composition or arrangement.
2.10 Any release, discharge or settlement between the Guarantor and the Lender
shall be conditional upon no security disposition or
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payment to the Lender by the Principal, the Guarantor or any other person being
avoided or reduced pursuant to any provisions or enactments relating to
bankruptcy, liquidation or insolvency and the Lender shall be entitled to retain
any security held for the liabilities of the Guarantor hereunder for a period of
seven (7) months after the payment, discharge or satisfaction of all moneys,
obligations and liabilities that are or may become due, owing or incurred to the
Lender from the Principal or in the event of a bankruptcy petition or the
commencement of winding-up for such further period as the Lender may determine
and to enforce this Guarantee against the Guarantor subsequently as if such
release, discharge or settlement had not occurred.
2.11 All payments under this Guarantee shall be grossed up so that after
deduction or withholding for or on account of any present or future taxes,
levies, imposts, duties or other charges of whatsoever nature imposed by any
Government or any political subdivision or taxing authority they shall not be
less than the payment provided for under this Guarantee.
2.12 The Lender is to be at liberty but not bound to resort for its
own benefit to any other means of payment at any time and in any order the
Lender thinks fit without in consequence diminishing the liability of the
Guarantor and the Lender may enforce this Guarantee either for the payment of
the ultimate balance after resorting to other means of payment or for the
balance due at any time notwithstanding that other means of payment have not
been resorted to and in the latter case without entitling the Guarantor
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to any benefit from such other means of payment so long as any money remains due
or owing or payable (whether actually or contingently) from or by the Principal
to the Lender.
2.13 This Guarantee shall take effect as a guarantee of the whole and every part
of the obligations liabilities and all moneys due or owing or payable and to
become due or owing or payable as stated above and accordingly the Guarantor
shall not be entitled as against the Lender to any right of proof in the
bankruptcy, liquidation or insolvency of the Principal or any other surety or
other right of a surety (including any right of contribution from any other
surety) discharging, in whole or in part, its or their liability in respect of
the principal debt or to share in any security held or money received by the
Lender on account of the obligations of the Principal or any other surety or to
have or exercise any rights as surety (including any such right of contributions
as stated above) in competition with the Lender unless and until the whole of
such obligations, liabilities and moneys shall have first been completely
discharged and satisfied. Furthermore, until such obligations, liabilities and
moneys shall have been discharged and satisfied in full the Guarantor shall not,
if any money shall have become payable or shall have been paid by the Guarantor
under this Guarantee, take any step to enforce repayment or to exercise any
other rights, claims or remedies of any kind which may accrue howsoever to the
Guarantor in respect either of the amount so payable or so paid (including any
such right of contribution as stated above) or of any other money for
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the time being due to the Guarantor from the Principal or any other surety
provided that in the event of the bankruptcy, liquidation or insolvency of the
Principal or any other surety the Guarantor shall, if so directed by the Lender
but not otherwise, prove for the whole or any part of the money due to the
Guarantor from the Principal or any other surety as stated above on terms that
the benefit of such proof and of all money to be received by the Guarantor in
respect thereof shall be held in trust for the Lender and applied in discharging
the obligations of the Guarantor to the Lender under this Guarantee. For the
purpose of enabling the Lender to xxx the Principal or any other surety or prove
in the bankruptcy, liquidation or insolvency of the Principal or any other
surety for the whole of such moneys as stated above, or to preserve intact the
liability of any other party, the Lender may at any time place and keep, for
such time as the Lender may think prudent, any money received, or realised under
this Guarantee or under any other guarantee or security to the credit, either-of
the Guarantor, or such other person or transaction (if any) as the Lender shall
think fit, without any intermediate obligation on the part of the Lender to
apply the same or any part of it in or towards the discharge of the moneys as
stated above, or any intermediate right on the part of the Guarantor to xxx the
Principal or any other surety or to prove in the bankruptcy, liquidation or
insolvency of the Principal or any other surety in competition with or so as to
diminish any dividend or other advantage that would or might come to the Lender,
or to treat the liability of the Principal or any other surety as
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diminished. As used in this Clause the expression "any other surety" includes
any other person constituting the Guarantor and any party or person referred to
in Clause 2.05 above.
2.14 This Guarantee shall continue to bind the Guarantor notwithstanding any
amalgamation or merger that may be effected by the Lender with any other company
or companies and notwithstanding any reconstruction by the Lender involving the
formation of and transfer of the whole or any part of its undertaking any assets
to a new company and notwithstanding the sale or transfer of the whole or any
part of its undertaking and assets to another company, whether the company or
companies with which it amalgamates or merges or the company to which it
transfers the whole or any part of its undertaking and assets either on a
reconstruction or sale or transfer as stated above shall or shall not differ
from it in its objects, character or constitution, it being the intent of the
Guarantor that this Guarantee shall remain valid and effectual in all respects
in favour of, against and with reference to, and that the benefit of this
Guarantee and all rights conferred upon the Lender by this Guarantee may be
assigned to and enforced by, any such company or companies and proceeded on in
the same manner to all intents and purposes as if such company or companies had
been named in this Guarantee instead of and/or in addition to the Lender.
2.15 The Guarantor agrees that if any judgment or order is given or made for the
payment of any amount due under this Guarantee and is expressed in a currency
other than that in which such amount is
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payable by the Guarantor under this Guarantee the Guarantor shall indemnify the
Lender against any loss incurred by the Lender as a result of any variation
having occurred in rates of exchange between the date as at which such amount is
converted into such other currency for the purposes of such judgment or order
and the date of actual payment pursuant to it. This indemnity shall constitute a
separate and independent obligation of the Guarantor and shall apply
irrespective of any indulgence granted to the Guarantor from time to time and
shall continue in full force and effect notwithstanding any such judgment or
order as stated above.
2.16 No delay or omission on the part of the Lender in exercising any right,
power, privilege or remedy in respect of this Guarantee shall impair such right,
power, privilege or remedy or be construed as a waiver of it nor shall any
single or partial exercise of any such right, power, privilege or remedy
preclude any further exercise of it or the exercise of any other right, power,
privilege or remedy. The rights, powers, privileges and remedies provided in
this Guarantee are cumulative arid not exclusive of any rights, powers,
privileges or remedies provided by law.
2.17 The Guarantor agrees to be bound by this Guarantee notwithstanding that any
other guarantee or guarantees or securities which is or are intended to be given
to the Lender to further guarantee the obligations of the Principal and/or the
Guarantor to the Lender may not ultimately be so given. The Lender shall be at
liberty to release compound with or otherwise vary or agrees to vary the
liability of or to grant time or indulgence to
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or make other arrangements with the Principal or any other person without
prejudice to or affecting the rights and remedies of the Lender against the
Guarantor.
3. ASSIGNMENT
3.01 The Lender may assign or transfer all or any part of its rights or benefits
under this Guarantee. the Guarantor shall enter into all documents specified by
the Lender to be necessary to give effect to any such assignment or transfer.
3.02 The Lender may disclose on a confidential basis to, any actual or potential
assignee or transferee of any rights or benefits under this Guarantee such
information about the Guarantor and its business and financial condition as the
Lender shall reasonably consider appropriate.
4. DETERMINATION
4.01 The Guarantor may at any time give the Lender notice in writing to
determine this Guarantee at a date ("the Cessation Date") not less than 3
calendar months after the receipt by the Lender of such notice and this
Guarantee shall cease with respect to transactions after the Cessation Date
provided that the Guarantor shall remain liable under this Guarantee:
(a) In respect of all obligations of the Principal to the Lender
outstanding at the Cessation Date, with interest on such
obligations until actual payment at the rate charged by the
Lender against the Principal, and
(b) In respect of all money, interest, costs, commissions and
other banking charges and expenses which will or may
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become due to the Lender from the Principal under or in
respect of any dealing, transaction or engagement effected or
entered into either prior to the Cessation Date or on or after
the Cessation Date pursuant to any commitment, express or
implied, assumed or undertaken by the Lender to the Principal
prior to the Cessation Date, and
(c) For all legal and other costs, charges and expenses which the
Lender may incur as stated above.
5. NOTICES
5.01 Any notice, certificate, demand or other communication required to be given
by the Guarantor to the Lender or by the Lender to the Guarantor shall be in
writing and shall be deemed to have been so given if addressed to the respective
addressee at its registered office or its address (as the case may be) herein
mentioned or such other address in Hong Kong as may from time to time be
notified by the Guarantor to the Lender or vice versa.
5.02 Any notice, certificate, demand and other communication delivered
personally shall be deemed to have been given at the time of such delivery. Any
notice, certificate, demand or other communication despatched by letter postage
prepaid shall be deemed to have been given 48 hours after posting. Any notice,
certificate, demand or other communication sent by telex or fax shall be deemed
to have been given at the time of despatch and any notice, certificate, demand
or other communication sent by cable shall be deemed to have been given 24 hours
after despatch,
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provided however that any notice, certificate, demand or other communication to
be given by the Guarantor to the Lender as aforesaid shall only be effective
upon receipt thereof by the Lender.
5.03 Any legal process including any writ or originating summons or otherwise
and any other summons or notice to be served on the Guarantor by the Lender or
by the Guarantor on the Lender in any legal proceeding or action in any court or
tribunal shall be deemed to be sufficiently and duly served 48 hours after
having been left or sent by registered prepaid post to the addressee's
registered office or address herein mentioned or such other address as may from
time to time be notified by the Guarantor to the Lender or vice versa and in
proving such service it shall be sufficient to prove that the legal process or
summons or notice was properly addressed and posted or properly left (as the
case may be) irrespective of whether the same is returned through the post
undelivered to the addressee.
6. MISCELLANEOUS
6.01 No provisions hereof may be amended, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party against whom
enforcement of the amendment, waiver, discharge or termination is sought.
6.02 If at any time any provision hereof is or becomes illegal, invalid or
unenforceable in any respect, the remaining provisions hereof shall in no way be
affected or impaired thereby.
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6.03 This Guarantee shall be binding upon the Guarantor and its successors.
7. GOVERNING LAW AND JURISDICTION
7.01 This Guarantee shall be governed by and construed in all respects in
accordance with the laws of Hong Kong. The Guarantor hereby submits to the
non-exclusive jurisdiction of the Courts of Hong Kong.
7.02 The submission of the Guarantor to the jurisdiction of the Courts of Hong
Kong 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 its assets, nor shall the taking of proceedings in any one or
more jurisdictions preclude the taking of proceedings in any other jurisdiction
whether concurrently or not.
7.03 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 has/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
process 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.
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IN WITNESS WHEREOF, this Deed of Guarantee has been duly executed and
delivered as a Deed by the proper officers thereunto duly authorised on the day
and year first above written.
CELEBRITY,INC.
/s/ XXXXXX X. XXXXXXXXX, XX.
---------------------------------------
(Xxxxxx X. Xxxxxxxxx, Xx.)
President
/s/ XXXX XXXXXXX
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(Xxxx Xxxxxxx)
Secretary
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Witnesses :-
/s/ XXXXXXX XXXXXXX
------------------------------------
/s/ XXXXX XXXXXXXX
------------------------------------
County of Xxxxx
State of Texas
Subscribed and Sworn to
before me this 31st day of August, 1998
/s/ Xxxxx X. Xxxxx
--------------------------------------
(Notary Public)
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