Exhibit 10.10
GUARANTY
GUARANTY, dated as of June 13, 2006 made by Qiao Xing Mobile Communications
Co. Ltd., a company organized under the laws of the British Virgin Islands (the
"GUARANTOR") in favor of DKR Soundshore Oasis Holding Fund Ltd., a company
organized under the laws of Bermuda and the other Buyers listed on the Schedule
of Buyers attached to the Securities Purchase Agreement referred to below
(together with their successors and permitted assigns, each, a "BUYER" and
collectively, the "BUYERS").
WITNESSETH:
WHEREAS, Qiao Xing Universal Telephone, Inc., a company incorporated under
the laws of the British Virgin Islands (the "PARENT"), the Guarantor and each
party listed as a Buyer on the Schedule of Buyers attached thereto are parties
to a Securities Purchase Agreement, dated as of the date hereof (as amended,
restated or otherwise modified from time to time, the "SECURITIES PURCHASE
AGREEMENT");
WHEREAS, it is a condition precedent to the Buyers' obligation under the
Securities Purchase Agreement that the Guarantor execute and deliver to the
Buyer a guaranty guaranteeing all of the obligations of the Parent thereunder;
and
WHEREAS, the Guarantor has determined that its execution, delivery and
performance of this Guaranty directly benefits, and are within the corporate
purposes and in the best interests of, the Guarantor;
NOW, THEREFORE, in consideration of the premises and the agreements herein
and in order to induce the Buyers to perform under the Securities Purchase
Agreement, the Guarantor hereby agrees with the Buyers as follows:
SECTION 1. Definitions. Reference is hereby made to the Securities Purchase
Agreement and the Notes (as defined in the Securities Purchase Agreement) issued
pursuant thereto (as such Notes may be amended, restated, replaced or otherwise
modified from time to time in accordance with the terms thereof, collectively,
the "NOTES") for a statement of the terms thereof. All terms used in this
Guaranty, which are defined in the Securities Purchase Agreement or the Notes
and not otherwise defined herein, shall have the same meanings herein as set
forth therein.
SECTION 2. Guaranty. The Guarantor hereby unconditionally and irrevocably
guarantees the punctual payment, as and when due and payable, by stated maturity
or otherwise, of all obligations of the Parent from time to time owing by it in
respect of the Securities Purchase Agreement, the Notes and the other
Transaction Documents, including, without limitation, all interest that accrues
after the commencement of any proceeding commenced by or against such Person
under any provision of the United States Bankruptcy Code (11 U.S.C. Section 101,
et seq.), as amended, and any successor statute or under any other bankruptcy or
insolvency law, assignments for the benefit of creditors, formal or informal
moratoria, compositions, or extensions generally with creditors, or proceedings
seeking reorganization, arrangement, or other similar relief (an "INSOLVENCY
PROCEEDING") of the Parent or the Guarantor, whether or not the payment of such
interest is unenforceable or is not allowable due to the existence of such
Insolvency Proceeding), and all fees, commissions, expense reimbursements,
indemnifications and all other amounts due or to become due under any of the
Transaction Documents (such obligations, to the extent not paid by the Parent,
being the "GUARANTEED OBLIGATIONS"), and agrees to pay any and all expenses
(including reasonable counsel fees and expenses) reasonably incurred by the
Buyers in enforcing any rights under this Guaranty. Without limiting the
generality of the foregoing, the Guarantor's liability hereunder shall extend to
all amounts that constitute part of the Guaranteed Obligations and would be owed
by the Parent to the Buyers under the Securities Purchase Agreement and the
Notes but for the fact that they are unenforceable or not allowable due to the
existence of an Insolvency Proceeding involving the Guarantor or the Parent
(each, a "TRANSACTION PARTY").
SECTION 3. Guaranty Absolute; Continuing Guaranty; Assignments.
(a) The Guarantor guarantees that the Guaranteed Obligations will be paid
strictly in accordance with the terms of the Transaction Documents, regardless
of any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Buyers with respect thereto.
The obligations of the Guarantor under this Guaranty are independent of the
Guaranteed Obligations, and a separate action or actions may be brought and
prosecuted against the Guarantor to enforce such obligations, irrespective of
whether any action is brought against any Transaction Party or whether any
Transaction Party is joined in any such action or actions. The liability of the
Guarantor under this Guaranty shall be irrevocable, absolute and unconditional
irrespective of, and the Guarantor hereby irrevocably waives any defenses it may
now or hereafter have in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of any Transaction Document
or any agreement or instrument relating thereto;
(ii) 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 any Transaction Document,
including, without limitation, any increase in the Guaranteed Obligations
resulting from the extension of additional credit to any Transaction Party or
otherwise;
(iii) any taking, release or amendment or waiver of or consent to
departure from any other guaranty for all or any of the Guaranteed Obligations;
(iv) any change, restructuring or termination of the corporate,
limited liability company or partnership structure or existence of any
Transaction Party; or
(v) any other circumstance (including any statute of limitations) or
any existence of or reliance on any representation by the Buyers that might
otherwise constitute a defense available to, or a discharge of, any Transaction
Party 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
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the Buyers or any other Person upon the insolvency, bankruptcy or reorganization
of any Transaction Party or otherwise, all as though such payment had not been
made.
(b) This Guaranty is a continuing guaranty and shall (i) remain in full
force and effect until the indefeasible payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Guaranty and
shall not terminate for any reason prior to the Maturity Date and (ii) be
binding upon the Guarantor and its respective successors and assigns. This
Guaranty shall inure to the benefit of and be enforceable by the Buyers and
their successors, pledgees, transferees and assigns. Without limiting the
generality of the foregoing sentence, any Buyer may pledge, assign or otherwise
transfer all or any portion of its rights and obligations under any Transaction
Document to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to such Buyer herein or
otherwise, in each case as provided in the Securities Purchase Agreement.
SECTION 4. Waivers. The 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 the Buyers exhaust any
right or take any action against any Transaction Party or any other Person. The
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 4 is knowingly made in contemplation of such benefits. The
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.
SECTION 5. Subrogation. The Guarantor may not exercise any rights that it
may now or hereafter acquire against any Transaction Party or any other
guarantor that arise from the existence, payment, performance or enforcement of
the Guarantor's obligations under this Guaranty, including, without limitation,
any right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of the
Buyers against any Transaction Party or any other guarantor, 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 any
Transaction Party or any other guarantor, 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 indefeasibly been paid in full in cash. If any amount shall be paid to the
Guarantor in violation of the immediately preceding sentence at any time prior
to the later of the payment in full in cash of the Guaranteed Obligations and
all other amounts payable under this Guaranty, such amount shall be held in
trust for the benefit of the Buyers and shall forthwith be paid to the Buyers to
be credited and applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance with
the terms of the Transaction Documents. If (a) the Guarantor shall make payment
to the Buyers of all or any part of the Guaranteed Obligations, and (b) all of
the Guaranteed Obligations and all other amounts payable under this Guaranty
shall indefeasibly be paid in full, in cash, the Buyers will, at the Guarantor's
request and expense, execute and deliver to the Guarantor appropriate documents,
without recourse and without representation or warranty, necessary to evidence
the transfer by subrogation to the
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Guarantor of an interest in the Guaranteed Obligations resulting from such
payment by the Guarantor.
SECTION 6. Representations, Warranties and Covenants. The Guarantor hereby
represents and warrants as follows:
(a) The Guarantor (i) is a corporation, duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization as
set forth on the first page hereof, (ii) has all requisite power and authority
to conduct its business as now conducted and as presently contemplated and to
execute and deliver this Guaranty and each other Transaction Document to which
the Guarantor is a party, and to consummate the transactions contemplated hereby
and thereby and (iii) is duly qualified to do business and is in good standing
in each jurisdiction in which the character of the properties owned or leased by
it or in which the transaction of its business makes such qualification
necessary.
(b) The execution, delivery and performance by the Guarantor of this
Guaranty and each other Transaction Document to which the Guarantor is a party
(i) have been duly authorized by all necessary action, (ii) do not and will not
contravene its charter or by-laws, its limited liability company or operating
agreement or its certificate of partnership or partnership agreement, as
applicable, or any applicable law or any contractual restriction binding on or
otherwise affecting the Guarantor or its properties, (iii) do not and will not
result in or require the creation of any lien (other than pursuant to any
Transaction Document) upon or with respect to any of its properties, and (iv) do
not and will not result in any default, noncompliance, suspension, revocation,
impairment, forfeiture or nonrenewal of any permit, license, authorization or
approval applicable to it or its operations or any of its properties.
(c) No authorization or approval or other action by, and no notice to or
filing with, any governmental authority is required in connection with the due
execution, delivery and performance by the Guarantor of this Guaranty or any of
the other Transaction Documents to which the Guarantor is a party, except for
the filing of registrations, filings or recordings as may be necessary to
perfect the lien purported to be created by any Transaction Documents to which
the Guarantor is a party.
(d) Each of this Guaranty and the other Transaction Documents to which the
Guarantor is or will be a party, when delivered, will be a legal, valid and
binding obligation of the Guarantor, enforceable against the Guarantor in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, suretyship or other similar laws.
(e) There is no pending or, to the best knowledge of the Guarantor,
threatened action, suit or proceeding affecting the Guarantor or to which any of
the properties of the Guarantor is subject, before any court or other
governmental authority or any arbitrator that (i) if adversely determined, could
have a material adverse effect or (ii) relates to this Guaranty or any of the
other Transaction Documents to which the Guarantor is a party or any transaction
contemplated hereby or thereby.
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(f) The Guarantor (i) has read and understands the terms and conditions of
the Securities Purchase Agreement and the other Transaction Documents, and (ii)
now has and will continue to have independent means of obtaining information
concerning the affairs, financial condition and business of the Parent and the
other Transaction Parties, and has no need of, or right to obtain from any
Buyer, any credit or other information concerning the affairs, financial
condition or business of the Parent or the other Transaction Parties that may
come under the control of any Buyer.
(g) The Guarantor covenants and agrees that until indefeasible full and
final payment of the Guaranteed Obligations, it will comply with each of the
covenants (except to the extent applicable only to a public company) which are
set forth in Section 4 of the Securities Purchase Agreement as if the Guarantor
were a party thereto.
SECTION 7. Right of Set-off. Upon the occurrence and during the continuance
of any Event of Default, any Buyer may, and is hereby authorized to, at any time
and from time to time, without notice to the Guarantor (any such notice being
expressly waived by the Guarantor) and to the fullest extent permitted by law,
set-off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by any Buyer to or for the credit or the account of the Guarantor against any
and all obligations of the Guarantor now or hereafter existing under this
Guaranty or any other Transaction Document, irrespective of whether or not any
Buyer shall have made any demand under this Guaranty or any other Transaction
Document and although such obligations may be contingent or unmatured. Each
Buyer agrees to notify the relevant Guarantor promptly after any such set-off
and application made by such Buyer, provided that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of the Buyers under this Section 7 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which the Buyers may
have under this Guaranty or any other Transaction Document in law or otherwise.
SECTION 8. Notices, Etc. All notices and other communications provided for
hereunder shall be in writing and shall be mailed, telecopied or delivered, if
to the Guarantor, to it at its address set forth in the Securitites Purchase
Agreement, or if to any Buyer, to it at its address set forth in the Securities
Purchase Agreement; or as to either such Person at such other address as shall
be designated by such Person in a written notice to such other Person complying
as to delivery with the terms of this Section 8. All such notices and other
communications shall be effective (i) if mailed (by certified mail, postage
prepaid and return receipt requested), when received or three Business Days
after deposited in the mails, whichever occurs first; (ii) if telecopied, when
transmitted and confirmation is received, provided same is on a Business Day
and, if not, on the next Business Day; or (iii) if delivered, upon delivery,
provided same is on a Business Day and, if not, on the next Business Day.
SECTION 9. CONSENT TO JURISDICTION; SERVICE OF PROCESS AND VENUE. ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER TRANSACTION
DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX IN THE COUNTY OF
NEW YORK OR OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
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GUARANTOR HEREBY IRREVOCABLY ACCEPTS IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE GUARANTOR HEREBY
IRREVOCABLY APPOINTS XXXXXX X. XXXXXXXXX, ESQ., WITH OFFICES AT 0000 XXX
XXXXXXX, XXXXX 000, XXXXXXXXX XXXXXXX, XXXXXXXX 00000 IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING AND FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
OUT OF ANY OF THE AFOREMENTIONED COURTS AND IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,
AT ITS ADDRESS FOR NOTICES AS SET FORTH ON THE SIGNATURE PAGE HERETO AND TO
XXXXXX X. XXXXXXXXX, ESQ., SUCH SERVICE TO BECOME EFFECTIVE TEN (10) DAYS AFTER
SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE BUYERS TO SERVICE OF
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE GUARANTOR IN ANY OTHER JURISDICTION. THE GUARANTOR
HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE JURISDICTION OR LAYING
OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND
ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO
THE EXTENT THAT THE GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE GUARANTOR HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
GUARANTY AND THE OTHER TRANSACTION DOCUMENTS.
SECTION 10. WAIVER OF JURY TRIAL, ETC. THE GUARANTOR HEREBY WAIVES ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING
ANY RIGHTS UNDER THIS GUARANTY OR THE OTHER TRANSACTION DOCUMENTS, OR UNDER ANY
AMENDMENT, WAIVER, CONSENT, INSTRUMENT, DOCUMENT OR OTHER AGREEMENT DELIVERED OR
WHICH IN THE FUTURE MAY BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR
ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH THIS
GUARANTY OR THE OTHER TRANSACTION DOCUMENTS, AND AGREES THAT ANY SUCH ACTION,
PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
THE GUARANTOR CERTIFIES THAT NO OFFICER, REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY BUYER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT ANY BUYER WOULD NOT, IN
THE EVENT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM, SEEK TO ENFORCE THE
FOREGOING WAIVERS. THE GUARANTOR HEREBY ACKNOWLEDGES THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE BUYERS ENTERING INTO THIS AGREEMENT.
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SECTION 11. Taxes.
(a) All payments made by the Guarantor hereunder or under any other
Transaction Document shall be made in accordance with the terms of the
Securities Purchase Agreement and shall be made without set-off, counterclaim,
deduction or other defense. All such payments shall be made free and clear of
and without deduction for any present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding taxes imposed on the net income of the Buyers by the jurisdiction in
which such Buyer is organized or where it has its principal office (all such
nonexcluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities, collectively or individually, "TAXES"). If the Guarantor shall be
required to deduct or to withhold any Taxes from or in respect of any amount
payable hereunder or under any other Transaction Document;
(i) the amount so payable shall be increased to the extent necessary
so that after making all required deductions and withholdings (including
Taxes on amounts payable to the Buyers pursuant to this sentence) the
Buyers receive an amount equal to the sum they would have received had no
such deduction or withholding been made,
(ii) the Guarantor shall make such deduction or withholding,
(iii) the Guarantor shall pay the full amount deducted or withheld to
the relevant taxation authority in accordance with applicable law, and
(iv) as promptly as possible thereafter, the Guarantor shall send the
Buyers an official receipt (or, if an official receipt is not available,
such other documentation as shall be satisfactory to the Buyers) showing
payment. In addition, the Guarantor agrees to pay any present or future
taxes, charges or similar levies which arise from any payment made
hereunder or from the execution, delivery, performance, recordation or
filing of, or otherwise with respect to, this Agreement or any other
Transaction Document other than any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies that
arise from any payment made hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or any other
Transaction Document (collectively, "OTHER TAXES").
(b) The Guarantor hereby indemnifies and agrees to hold the Buyers harmless
from and against Taxes or Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed by any jurisdiction on amounts payable under this Section
11) paid by any Buyer and any liability (including penalties, interest and
expenses for nonpayment, late payment or otherwise) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be paid within 30 days from the
date on which any Buyer makes written demand therefor, which demand shall
identify the nature and amount of Taxes or Other Taxes.
(c) If the Guarantor fails to perform any of its obligations under this
Section 11, the Guarantor shall indemnify the Buyers for any taxes, interest or
penalties that may become payable as a result of any such failure. The
obligations of the Guarantor under this
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Section 11 shall survive the termination of this Guaranty and the payment of the
obligations and all other amounts payable hereunder.
SECTION 12. Miscellaneous.
(a) The Guarantor will make each payment hereunder in lawful money of the
United States of America and in immediately available funds to the Buyers, at
such address specified by the Buyers from time to time by notice to the
Guarantor.
(b) No amendment or waiver of any provision of this Guaranty and no consent
to any departure by the Guarantor therefrom shall in any event be effective
unless the same shall be in writing and signed by the Guarantor and the Buyers,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
(c) No failure on the part of any Buyer to exercise, and no delay in
exercising, any right hereunder or under any other Transaction Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right hereunder or under any Transaction Document preclude any other or further
exercise thereof or the exercise of any other right. The rights and remedies of
the Buyers provided herein and in the other Transaction Documents are cumulative
and are in addition to, and not exclusive of, any rights or remedies provided by
law. The rights of the Buyers under any Transaction Document against any party
thereto are not conditional or contingent on any attempt by the Buyers to
exercise any of their rights under any other Transaction Document against such
party or against any other Person.
(d) Any provision of this Guaranty that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining portions
hereof or thereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
(e) This Guaranty shall (i) be binding on the Guarantor and its successors
and assigns, and (ii) inure, together with all rights and remedies of the Buyers
hereunder, to the benefit of the Buyers and their respective successors,
transferees and assigns. Without limiting the generality of clause (ii) of the
immediately preceding sentence, any Buyer may assign or otherwise transfer its
rights and obligations under the Securities Purchase Agreement or any other
Transaction Document to any other Person, and such other Person shall thereupon
become vested with all of the benefits in respect thereof granted to the Buyers
herein or otherwise. The Guarantor agrees that each participant shall be
entitled to the benefits of Section 11 with respect to its participation in any
portion of the Notes as if it was a Buyer. None of the rights or obligations of
the Guarantor hereunder may be assigned or otherwise transferred without the
prior written consent of the Buyers.
(f) This Guaranty and the other Transaction Documents represent the entire
agreement of the Guarantor and the Buyers with respect to the subject matter
hereof, and there are no promises, undertakings, representations or warranties
by the Guarantor or any Buyer relative to the subject matter thereof not
expressly set forth or referred to herein or in the other Transaction Documents.
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(g) Section headings herein are included for convenience of reference only
and shall not constitute a part of this Agreement for any other purpose.
(h) THIS GUARANTY AND THE OTHER TRANSACTION DOCUMENTS (UNLESS EXPRESSLY
PROVIDED TO THE CONTRARY IN ANOTHER TRANSACTION DOCUMENT) SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED THEREIN WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
by an officer thereunto duly authorized, as of the date first above written.
QIAO XING MOBILE COMMUNICATIONS CO. LTD.
By:
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Name:
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Title:
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Address: [ ]
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[ ]
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