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Exhibit 10.5
STATE STREET
CONTINUING GUARANTEE
To: State Street Bank and Trust Company
Hong Kong Branch
In consideration of State Street Bank and Trust Company, Hong Kong
Branch (hereinafter called "the Lender" which expression shall where the context
so admits include the Lender's respective successors and assigns) at my/our
request making or continuing to make advances or otherwise giving credit or
affording credit and general finance and borrowing facilities for as long as the
Lender may think fit to Celebrity Exports International Limited (hereinafter
called "the Customer"), either alone or jointly with any other persons, or
agreeing not to require immediate payment of any sums owing to the Lender by the
Customer. I/We, the undersigned Celebrity, Inc. (hereinafter called "the
Guarantor" which expression shall where not inapplicable include the Guarantor
and his/their respective executors, administrators and successors) HEREBY
JOINTLY AND SEVERALLY GUARANTEE payment of AND AGREE TO PAY and SATISFY to the
Lender on demand all sums of money and liabilities whether certain or contingent
whether now or at any time hereafter owing or incurred to the Lender from or by
the Customer on any account of the Customer with the Lender or in any manner
whatever whether as principal or surety and whether alone or jointly with any
other person, firm or corporation or from any firm in which the Customer may be
a partner and in whatever name, style or form, including, but without prejudice
to the generality of the foregoing: -- the amount of notes or bills discounted
or paid and other loans, credits or advances made to or for the accommodation or
at the request either of the Company solely or jointly with any other person,
firm or company or of any such firm as aforesaid or for any money for which the
Customer may be liable as surety or in any other way whatsoever together with
interest on all such moneys, debts and liabilities at such rate or rates as may
from time to time be charged by the Lender and all handling charges, legal and
other costs, charges and expenses. PROVIDED that "the liability of the Guarantor
hereunder shall be unlimited/the total amount recoverable from the Guarantor
hereunder is limited to the principal sum of US Dollars Five Million Only (USD
5,000,000.00) with interest thereon at such rate or rates as the Lender may from
time to time charge from date of demand from or date of discontinuance by the
Guarantor of this Guarantee until payment AND the Guarantor hereby further
agrees and undertakes with the Lender as follows: --
1. 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 Customer to the Lender upon any
such account as hereinbefore mentioned.
2. This guarantee shall be binding as a continuing security on the
Guarantor until the expiration of three calendar months after he or in
the case of his dying or becoming under disability his executors,
administrators or legal representatives shall have given to the Lender
notice in writing to discontinue and determine it, but such
determination shall not release the Guarantor from this guarantee in
respect of liability, actual or contingent, undertaken by the Lender
during the currency of this guarantee, but not maturing till after the
determination of this guarantee.
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3. In the event of this guarantee ceasing from any cause whatsoever to be
binding as a continuing security on the Guarantor, the Lender shall be
at liberty without thereby affecting its rights hereunder to open a
fresh account or accounts and to continue any then existing account
with the Customer and no money paid from time to time into any such
account or accounts by or on behalf of the Customer and subsequently
drawn out by the Customer 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 Customer 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 the Lender specially to appropriate it to
that purpose.
4. The Lender shall be at liberty without thereby affecting its rights
against the Guarantor hereunder at any time to determine, enlarge, or
vary any credit to the Customer; to vary, exchange, abstain from
perfecting or releasing any other securities held or to be held by the
Lender 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 or give time for payment; to accept compositions from
and make any other arrangements with the Customer or any obligants on
bills, notes or other securities held or to be held by the Lender for
and on behalf of the Customer.
5. 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 the Lender for all or any part of the money hereby
guaranteed nor shall such collateral or other security or any lien to
which the Lender 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 the Lender shall have full power at its discretion to
give time for payment or to make any arrangement with any such other
person(s) without prejudice to this present guarantee or any liability
hereunder. And all money received by the Lender from the Guarantor or
the Customer or any person or persons liable to pay the same may be
applied by the Lender to any account or item of account or to any
transaction to which the same may be applicable.
6. The liability of the Guarantor hereunder shall not be affected by any
failure by the Lender to take any security or by any invalidity of any
security taken or by any existing or future agreement by the Lender as
to the application of any advances made or to be made to the Customer.
7. Any admission or acknowledgment in writing by the Customer or by any
person authorized by the Customer of the amount of indebtedness of the
Customer to the Lender and any judgment recovered by the Lender against
the Customer in respect of such indebtedness shall be binding and
conclusive on and against the Guarantor. A certificate by an officer of
the Lender as to the money and liabilities for the time being due or
incurred to the Lender from or by the Customer shall be conclusive
evidence against the Guarantor.
8. Although the Guarantor's ultimate liability hereunder cannot exceed the
limit hereinbefore mentioned (if any) 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 the Guarantor is not to be entitled as
against the Lender to any right of proof in the bankruptcy or
insolvency of the Customer 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.
9. The Guarantor hereby declares that he has not taken in respect of the
liability hereby undertaken by him on behalf of the Customer and hereby
agrees that he will not take from the Customer either directly or
indirectly without the consent of the Lender any promissory note, bill
of exchange,
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mortgage, charge or other counter-security whether merely personal or
involving a charge on any property whatsoever of the Customer whereby
the Guarantor or any person claiming through him by indorsement,
assignment or otherwise would or might on the bankruptcy or insolvency
of the Customer and to the prejudice of the Lender increase the proofs
in such bankruptcy or insolvency or diminish the property distributable
amongst the creditors of the Customer. And as regards any such
counter-security as aforesaid which the Guarantor may have taken or may
take with such consent as aforesaid, the counter-security shall be a
security to the Lender for the fulfillment of the Guarantor's
obligations hereunder and shall be forthwith deposited by the Guarantor
with the Lender for that purpose.
10. If the name of the Customer hereinbefore inserted is that either of a
firm or of a limited company or other corporation or of any committee
or association or other unincorporated body any of the provisions
hereinbefore contained which are primarily and literally applicable to
the case of a single and individual customer only shall be construed
and take effect so as to give the Lender hereunder a guarantee for the
money owing from that firm and every member thereof or from that
limited company or corporation or committee or association or other
unincorporated body as identical or analogous as may be with or to that
which would have been given for the money owing from a single
individual if the Customer had been a single individual and any money
shall be deemed to be so owing notwithstanding any defect, informality
or insufficiency in the borrowing powers of the Customer or in the
exercise thereof which might be a defense as between the Customer and
the Lender. In the case of a firm, this guarantee shall be deemed to be
a continuing guarantee of all money owing on any such account as
hereinbefore mentioned from the person(s) carrying on business in the
name of or in succession to the firm or from any one or more of such
persons although by death, retirement or admission of partners or other
causes the constitution of the firm may have been in part or wholly
varied. In the case of a limited company or other corporation any
reference to bankruptcy shall be deemed to be a reference to
liquidation or other analogous proceeding and the money owing as
aforesaid and hereby guaranteed shall be deemed to include any money
owing in respect of debentures or debenture stock of the limited
company or other corporation held by or on behalf of the Lender.
11. The Guarantor agrees to be liable as a principal debtor for the payment
of any moneys secured hereunder so that this Guarantee may be enforced
against the Guarantor without the Lender's first instituting legal
proceedings against the Customer in the first instance or to join in
the Customer as a party in the same proceedings against the Guarantor.
12. The security hereby created shall not be discharged or affected by the
death, bankruptcy, insolvency or liquidation of the Customer but shall
continue to be operative until determined as to future transactions by
notice in writing given to the Lender by the Guarantor pursuant to
Clause 2 hereof.
13. So long as any money remains owing hereunder, the Lender shall have a
lien on any moneys standing to the credit of any accounts of the
Guarantor with the Lender and on any securities now or at any time
hereafter deposited with or otherwise placed in the hands of the Lender
belonging to or under the control of the Guarantor. The Lender may
also, without notice to the Guarantor, combine or consolidate all or
any of the accounts of the Guarantor with any liabilities to the Lender
and set-off or transfer any sum or sums in whatever currency standing
to the credit of any one or more of such accounts in or towards
satisfaction of any of the Guarantor's liabilities to the Lender on any
other account or in any other respect whatsoever irrespective of
whether such liabilities be incurred by the Guarantor singly or by the
Guarantor jointly with others in partnership or otherwise or incurred
by the Guarantor as principal or as surety of the Customer or of some
other person, body, corporate or firm and irrespective of whether such
liabilities be actual or contingent, primary or collateral and several
or joint.
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14. If the Guarantor shall consist of more than one person, their
liabilities to the Lender hereunder shall be deemed to be joint and
several and the Lender may release or discharge any of them from his or
their obligations hereunder or compound with or enter into any
arrangement with any of them without thereby in any way affecting its
rights hereunder against any other or others of them.
15. Any notice or demand required to be given by the Lender shall be in
writing and shall be deemed to have been properly given if addressed to
the Guarantor at his last known address as recorded in the books of the
Lender. Any notice or demand delivered personally shall be deemed to
have been given at the time of delivery. Any notice or demand sent by
letter, postage prepaid, shall be deemed to have been given 48 hours
after posting. Any notice or demand sent by cable or telex shall be
deemed to have been given at the time of dispatch.
16. In this guarantee where the singular is used, it shall be taken to
include the plural where applicable and where words importing the
masculine gender are used, they shall where applicable include the
feminine gender and the neuter gender.
17. This guarantee and all rights, obligations and liabilities arising
hereunder shall be construed and governed in all respects by and in
accordance with the laws of Hong Kong.
Dated September 29, 1998
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Name of Guarantor: Celebrity, Inc. Signature of Guarantor:
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H.K.I.D. Card/Passport No.: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Title: Chairman of the Board, President and Chief
-------------------------------------- Executive Officer
Texas 75711, U.S.A.
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Occupation: Corporation
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Name of Guarantor:
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H.K.I.D. Card/Passport No.: Signature of Guarantor:
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Address:
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Occupation: WITNESS to the signature(s) of Guarantor(s):
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Name of Witness:
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Delete as appropriate.
N.B. If executed by a limited company, a resolution duly approving the present
guarantee must be attached.