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EXHIBIT 1
Dated the 31st day of December 1998
CHINA PACIFIC, INC.
In favour of
TEAM PLUS ADVERTISING COMPANY LIMITED
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DEED OF GUARANTEE
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THIS GUARANTEE is made BY DEED on the thirty-first day of December
One thousand nine hundred and ninety-eight
BY:-
CHINA PACIFIC, INC. whose registered office is situate at Room 1102,
11/F, Wing ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
("the Guarantor");
IN FAVOUR OF:-
TEAM PLUS ADVERTISING LIMITED whose registered office is situate at ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ Sha Wan Road, Hong
Kong ("the Company").
WHEREAS:-
(1) By a Memorandum ("the Memorandum") dated December 31, 1998 between the
Company and Layfayette Services Limited ("the Principal"), the Company
agreed to accept payment of the shortfall of the disposal of a property
situated at ▇▇▇▇ ▇▇▇▇, ▇▇/▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ of a consideration of HK$13,500,000
(as defined in the Memorandum) by the Principal to the Company by way of
the Promissory Note (as defined in the Memorandum) ("the Promissory
Note") in the form of a specimen at the Schedule thereto for the amount
of HK$5,962,807.00 payable 3 years from the date of the Promissory Note
with interest at the rate of 5% per annum on the conditions of, inter
alia, the Guarantor's executing a guarantee in favour of the Company
upon the terms and provisions as hereinafter provided.
NOW THIS DEED WITNESSETH as follows:-
1. DEFINITIONS AND INTERPRETATION
1.01 Any reference in this Guarantee to "the Company" shall be construed
where the context admits as to include its successors in title and/or
assigns; and where appropriate as to include the subsequent holder for
value of the Promissory Note. This Guarantee shall be enforceable
notwithstanding any change in the constitution of the Company or its
absorption in or amalgamation with any other person or the acquisition
of all or part of its undertakings by any other person.
1.02 Any reference in this Guarantee to "the Guarantor" or to "the Principal"
shall be construed so as to include their respective executors
administrators successors in title and assigns.
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1.03 The expression "this Guarantee" shall be construed as including and
extending to any separate or independent stipulation or agreement herein
contained. Save where the contrary is indicated, any reference in this
Guarantee to this Guarantee and any provisions of this Guarantee or to
any other document or agreement are to be construed as references to
this Guarantee, those provisions or that document or agreement as is in
force for the time being and as amended, varied, supplemented,
substituted or novated from time to time.
1.04 Any reference in this Guarantee to a "Clause" shall, subject to any
contrary indication be construed as a reference to a clause of this
Guarantee.
1.05 Words importing the plural shall include the singular and vice versa,
and words importing the masculine, feminine or neuter shall include the
others of them and reference to a "person" shall be construed as a
reference to any person, firm, company, corporation, government, or any
associations or partnership (whether or not having separate legal
personality).
1.06 Clause and paragraph headings are for ease of reference only and not to
affect the construction hereof.
2. GUARANTEE
2.01 In consideration of the Company's agreeing at the request of the
Guarantor to accept the payment of the Service Fee by the Principal by
way of the Promissory Note made by the Principal, the Guarantor hereby
irrevocably and unconditionally guarantees the validity of the
Promissory Note and the prompt and complete performance of the
Promissory Note by the Principal according to the terms thereof and
should the Principal make any default or failure in this respect to make
to the Company on demand all the payments specified in the Promissory
Note in accordance with the terms thereof but as though the Guarantor
were itself the maker thereof.
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2.02 As a separate and distinct undertaking and for the consideration
aforesaid, the Guarantor hereby further undertakes and covenants with
the Company to indemnify the Company from and against all loss, damage,
legal and other costs, charges, expenses and liabilities which may be
suffered or incurred by the Company as a result of holding the
Promissory Note and/or in relation to this Guarantee on a full indemnity
basis.
2.03 Payments by the Guarantor shall be made to the Company without any
set-off, counterclaim, withholding or condition of any kind except that,
if the Guarantor is compelled by law to make such withholding, the sum
payable by the Guarantor shall be increased so that the amount actually
received by the Company is the amount it would have received if there
had been no withholding.
2.04 A certificate of default on the part of the Principal signed by any duly
authorised person of the Company shall be conclusive evidence against
the Guarantor.
2.05 A certificate of balance signed by any duly authorised person of the
Company shall (except in the case of manifest error) be conclusive
evidence against the Guarantor of the amount of the owing at any time
2.06 The Company shall be entitled to retain this Guarantee for such period
as the Company may consider to be appropriate in order to protect the
interests of the Company under this Guarantee.
2.07 This Guarantee shall apply to the ultimate balance owing by the
Principal to the Company and, until all moneys, obligations and
liabilities mentioned in Clause 2.01 and Clause 2.02 hereof 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 Company or 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 Company.
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3. CONTINUING AND ADDITIONAL SECURITY
3.01 The Guarantor acknowledges and agrees that this Guarantee is and at all
times a continuing security and shall cover and secure the ultimate
balance from time to time owing to the Company by the Principal on each
separate account or in any manner whatsoever 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 is in addition to, shall not be
affected by and may be enforced despite the existence of, and without
demand, notice, legal process or any other action under, any other
guarantee, ▇▇▇▇, ▇▇▇▇, note, mortgage, or other security now or
hereafter held by or available to the Company.
3.02 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 Company's rights have become barred by reason of any legal
limitation, disability, incapacity or any other fact or circumstance
whether or not already known to the Company 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 Company (notwithstanding the avoidance or invalidity of any
assurance, security or payment or 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 was the
principal debtor in respect thereof. The Company is not to be concerned
to see or enquire into the powers of the Principal or its officers,
employees or agents purporting to act on its behalf. The Guarantor
hereby agrees to keep the Company fully indemnified against all damages,
loss, costs and expenses arising from any failure of the Principal to
carry out any such purported obligation.
3.03 The Guarantor agrees that the Company 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
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Principal or to any other person any time or indulgence or renew any
bills, promissory notes or other negotiable or nonnegotiable instruments
or securities, give up, deal with, exchange, vary, realize, release or
abstain from perfecting or enforcing any guarantees, liens, bills,
notes, mortgages, securities or other rights which the Company may now
or hereafter have from or against the Principal or any other person
whether hereunder or otherwise or renew, determine, vary or increase any
credit or facilities to or the terms or conditions in respect of any
transaction with the Principal as to the application of any advance made
or to be made to 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 Company may think expedient and no such act or
omission on the part of the Company shall in any way discharge or
diminish the validity of this Guarantee or affect the liability of the
Guarantor hereunder. The Company may enforce this Guarantee
notwithstanding that they may hold any other guarantee, lien or security
or have any outstanding remedy against the Principal or any other
person.
3.04 The Guarantor hereby expressly waives presentment and demand for payment
notice of non-payment and protest and any other notice or notices that
might otherwise be required in connection with the Promissory Note.
4. PRIMARY OBLIGATION
4.01 The obligations and liabilities expressed to be undertaken by the
Guarantor under this Guarantee are those of primary obligor and not
merely as a surety.
4.02 The Company shall not be obliged before taking steps to enforce any of
its rights and remedies under this Guarantee:
(a) to take action or obtain judgment in any court against any of the
Principal and any other person;
(b) to make or file any CLAIM in a bankruptcy, liquidation,
administration or insolvency of any of the Principal and any
other person; or
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(c) to make demand, enforce or seek to enforce any claim, right or
remedy against any of the Principal and any other person.
5. NO SECURITY
5.01 The Guarantor warrants to the Company that it has not taken or received,
and agrees not to take, exercise or receive the benefit of any security
or other right or benefit (whether by set-off, counterclaim,
subrogation, indemnity, proof in liquidation or otherwise and whether
from contribution or otherwise, all together "Rights") from or against
any of the Principal and any other person in respect of any liability of
or payment by the Guarantor under this Guarantee or otherwise in
connection with this Guarantee.
5.02 The Guarantor covenants with the Company that if default is made in
observing the provisions of clause 5.01, and any Rights is taken,
exercised or received by the Guarantor, the Guarantor declares that such
rights and all monies at any time received or held in respect of such
Rights shall be held by the Guarantor in trust for the Company for
application in or towards the discharge of the liabilities of the
Guarantor to the Company under this Guarantee.
5.03 The Guarantor agrees that all other Rights and all monies from time to
time held in trust by the Guarantor for the Company under or pursuant to
Clause 5.02 shall be transferred, assigned or, as the case may be, paid
to the Company forthwith.
6. SUSPENSE ACCOUNT
6.01 The Company may place to the credit of a suspense account any monies
received under or in connection with this Guarantee in order to preserve
the rights of the Company to prove for the full amount of all of its
claims against any of the Principal and any other person.
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6.02 The Company may, at any time, apply any of the monies referred to in
Clause 6.01 in or towards satisfaction of any of the monies, obligations
and liabilities the subject of this Guarantee as the Company, in its
absolute discretion, may from time to time conclusively determine.
7. NEW ACCOUNTS
7.01 If this Guarantee ceases to be continuing for any reason whatsoever,
then the Company may open a new account or accounts in the name of the
Principal.
7.02 If the Company does not open a new account or accounts pursuant to
Clause 7.01, it shall nevertheless be treated as if it had done so at
the time that this Guarantee ceases to be continuing (whether by
determination, calling in, demand or otherwise) in relation to the
Principal.
7.03 As from that time, all payments made to the Company by or on behalf of
the Principal shall be credited or be treated as having been credited to
the new account or accounts and shall not operate to reduce the amount
for which this Guarantor under this Guarantee in any manner be reduced
or affected by any subsequent transactions, receipts or payments into or
out of any such accounts.
8. SET-OFF
8.01 The Company may, without notice to the Guarantor, apply any credit
balance to which the Guarantor is entitled on any account with the
Company in or towards satisfaction of any sum then due and payable from
the Guarantor under this Guarantee.
9. LIEN
9.01 The Company shall be authorised to exercise a lien over all property of
the Guarantor coming into the possession or control of the Company, for
custody or any other reason in the ordinary course of business, with
power for the Company to sell such property to satisfy any sum then due
and payable from the Guarantor under this Guarantee.
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10. DISCHARGE TO BE CONDITIONAL
10.01 Any release, discharge or settlement between the Guarantor and the
Company in relation to this Guarantee shall be conditional upon no
right, security, disposition or payment to the Company by any of the
Guarantor, the Principal and any other person being void, set aside or
ordered to be refunded pursuant to any enactment or law relating to
breach of duty by any person, bankruptcy, liquidation, administration,
the protection of creditors or insolvency or for any other person.
10.02 If any such right, security, disposition or payment is void or at any
time so set aside or ordered to be refunded, the Company shall be
entitled subsequently to enforce this Guarantee against the Guarantor as
if such release, discharge or settlement had not occurred and any such
security, disposition or payment had not been made.
11. COSTS AND EXPENSES, INDEMNITY
11.01 The Guarantor covenants with the Company, on demand, to pay all costs
and expenses incurred in connection with the preparation of this
Guarantee and by the Company in the exercise or purported exercise of
any powers, rights or remedies conferred by this Guarantee, or which the
Company shall incur in or about the preservation or attempted
preservation of this security.
11.02 The Guarantor covenants to indemnify the Company against all losses,
actions, claims, expenses, demands and liabilities whether in contract,
tort or otherwise now or hereafter incurred by it or him or by any
manager, agent, officer or employee for whose liability act or omission
it or he may be answerable for anything done or omitted in the exercise
or purported exercise or non-exercise of the powers contained in this
Guarantee or occasioned by any breach by the Guarantor of any of its
covenants or other obligations to the Company. The Guarantor shall so
indemnify the Company on written demand.
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12. WARRANTIES
12.01 The Guarantor hereby warrants represents and undertakes to the Company
(such warranties representations and undertakings to continue so long as
this Guarantee remains subsisting) that :
(a) it is duly incorporated and has full power to carry on its business as
now being conducted and to own its property and other assets and to
enter into and perform and will perform its obligations under this
Guarantee and all necessary corporate shareholder and other action to
enable it to execute deliver and perform the same has been taken and it
has obtained and will maintain in full force and effect all necessary
consents licenses and authorities and no limitation on its powers to
borrow or give guarantees will be exceeded as a result of this
Guarantee;
(b) this Guarantee has been validly created and constitutes a valid and
legally binding obligation on the Guarantor enforceable in accordance
with its terms;
(c) the creation of this Guarantee and the performance and observance of the
obligations hereunder does not and will not (i) contravene any existing
applicable law statute rule or regulation or any judgment decree or
permit to which it is subject, (ii) conflict with or result in any
breach of any of the terms of or constitute a default under any
agreement or other instrument to which it is a party or is subject or by
which it or any of its property is bound, (iii) contravene or conflict
with any provision of its Memorandum and Articles of Association or (iv)
result in the creation or imposition of or oblige it to create any
charge or other encumbrance on any of its assets right or revenues.
13. NO WAIVER AND REMEDIES CUMULATIVE
13.01 No failure to exercise, nor delay in exercising, on the part of the
Company, any power, right or remedy under this Guarantee shall operate
as a waiver thereof, nor shall any single or partial exercise or waiver
by the Company of any power, right or remedy preclude its further
exercise or the exercise of any other power, right or remedy. The rights
and remedies provided in this Guarantee are cumulative and are not
exclusive of any rights or remedies provided by law.
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14. NOTICES
14.01 Any demand or notice under this Guarantee shall be in writing signed by
authorized person of the Company and (without prejudice to any other
effective means of serving it) may be served on the Guarantor personally
or by post to the Guarantor at the above address or the last known
address of the Guarantor. Any such demand or notice delivered personally
shall be deemed to have been received immediately upon delivery. Any
such demand or notice sent by post shall be deemed to have been received
on the second day following the day on which it was posted.
15. SEVERABILITY
15.01 Any provision of this Guarantee prohibited by or declared or adjudged
unlawful or unenforceable under any applicable law actually applied by
any court of competent jurisdiction shall, to the extent required by
such law, be severed from this Guarantee and rendered ineffective so far
as is possible without modifying the remaining provisions of this
Guarantee. Where, however, the provisions of any such applicable law may
be waived they are waived by the Guarantor to the fullest extent
permitted by such law.
16. EVENT OF DEFAULT
Each of the following events and occurrences shall constitute an Event
of Default under this Guarantee:
16.01 The Principal fails to make payment when due and payable of any amount
which it is obligated to pay under this Guarantee, the Memorandum or any
of the Notes or the Guarantor fails to make payment when due and payable
of any amount which it is obligated to pay under the Guarantee.
16.02 Any representation or warranty made by the Principal contained herein or
by the Guarantor contained in the Guarantee, or in any notice or other
certificate, document, opinion or other statement delivered pursuant
hereto or thereto, is shown to have been incorrect or misleading as of
its date in any material respect.
16.03 The Principal fails to perform or violates any other provision of this
Guarantee ( other than the provisions of this Section 16) or the
Guarantor fails to perform or violates any provision of the Guarantee (
other than a failure to perform or violation referred to elsewhere in
this Section 16) and such default or violation is not
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remediable or, if remediable, continues unremedied for a period of
thirty days after notice from the Agent acting on the instructions from
the Company to the Principal or the Guarantor, as applicable, with
respect thereto.
16.04 Any governmental registration, consent, license, authorization or
approval granted or required in connection with this Guarantee, the
Memorandum, the Notes or the Guarantee or any other document, the
execution and delivery of which is contemplated herein, expires or is
terminated, revoked, modified or restricted in any way unacceptable to
the Agent or the Company including without limitation failure to obtain
or renew the necessary foreign exchange approval or validation of the
Guarantee by the Guarantor's designated class A foreign exchange bank
thirty (30) Banking Days prior to the expiry date of the then current
approval or validation.
16.05 The Principal or the Guarantor fails to pay any money due under any
other agreement ( whether or not written ) or document evidencing,
securing, guaranteeing or otherwise relating to Indebtedness of the
Principal or the Guarantor or there occurs any other default on the part
of the Principal or the Guarantor or other event that, with the giving
of notice or the passing of time, or both, would constitute a default or
an event of default under any such agreement or document and the effect
of which is to accelerate or to permit the acceleration of the maturity
of such Indebtedness.
16.06 Any arbitration award, judgement or decree for money damages or for a
fine or penalty, which in the reasonable opinion of the Company would
have a material adverse effect on the Principal's or the Guarantor's
financial condition or operations or impair their ability to pay under
this Guarantee, the Memorandum , the Notes or the Guarantee, as
applicable, is entered against the Principal or the Guarantor and is not
paid and discharged or stayed within thirty days.
16.07 Any change occurs in the ownership or control of the principal or the
Guarantor which in the opinion of the Company constitutes a material
adverse change affecting the financial condition or operations of the
Principal or the Guarantor.
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16.08 The Principal or the Guarantor becomes insolvent or unable to pay its
debts when due or commits or permits any act of bankruptcy, which term
shall include (I) the filing of a petition in any bankruptcy,
reorganization, winding-up or liquidation proceeding or other proceeding
analogous in purpose or effect,(ii) the failure by the Principal or the
Guarantor to have any such petition filed by another party discharged
within thirty days,(iii) the application for or consent to the
appointment of a receiver or trustee for the bankruptcy, reorganization,
winding-up or liquidation of the Principal or the Guarantor, (iv) the
making by the Principal or the Guarantor of an assignment for the
benefit of its creditors,(v) the admission in writing by the Principal
or the Guarantor of its inability to pay its debts, or ( vi) the entry
of any court order or judgement confirming the bankruptcy or insolvency
of the Principal or the Guarantor or approving any reorganization,
winding-up or liquidation of the Principal or the Guarantor or of a
substantial portion of their respective assets.
16.09 It becomes unlawful for the Principal to perform any obligation
hereunder or under the Memorandum or the Notes or for the Guarantor to
perform any obligation under the Guarantee.
16.10 The Guarantor attempts to repudiate, rescind, limit, or annul the
Guarantee, or any legislation or regulation is proposed, enacted or
promulgated the effect of which would be to repudiate , rescind, limit
or annul the Guarantee.
16.11 Any competent governmental authority takes (I) any action to condemn,
seize, requisition or otherwise appropriate any substantial portion of
the assets of the Principal or the Guarantor ( either with or without
payment of compensation), (ii) any action to dissolve, liquidate or
terminate the existence of the Principal or the Guarantor or to devest
the Principal or the Guarantor of any material portion of its assets; or
(iii) any action which , in the portion of the Company, adversely
affects the Principal's or the Guarantor's ability to pay its
indebtedness hereunder, under the Memorandum, the Notes or the
Guarantee.
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16.12 The Principal or the Guarantor shall suspend or discontinue its business
operations or a major portion thereof, whether voluntarily or
involuntarily, for a period of thirty days.
16.13 Any circumstances occur which in the opinion of the Company give
reasonable grounds for belief that the Principal or the Guarantor may
not ( or may not be able to ) perform its obligations hereunder, under
the Memorandum, the Notes or the Guarantee.
17. CONSEQUENCE OF DEFAULT
In an Event of Default shall occur and be continuing, the Agent, upon
notice from the Company so directing the Agent, shall:
17.01 by written notice to the Principal declare the Loan together with
accrued interest and any other sums payable hereunder to be immediately
due and payable, and the Loan, together with accrued interest and any
other sum payable hereunder, shall thereupon become due and payable
without presentation, demand, protest or notice of any kind, other than
the notice specifically required by this Section 17, all of which are
expressly waived by the Principal; and/or
17.02 by written notice to the Principal declare any undrawn portion of the
Commitments cancelled, such cancellation to be effective upon the
giving of such notice; provided, however, that upon the occurrence of
any Event of Default described in Section 16.08 hereof, all sums owing
by the Principal hereunder automatically and immediately shall become
due and payable, without any declaration, presentment, demand, protest,
notice of any kind or any other action by the Agent or any Company
hereunder , all of which are expressly waived by the Principal. The
Principal shall also pay to Company such additional amounts as may be
necessary to compensate such Company for any costs or losses resulting
from such Event of Default. No waiver of any Event of Default shall
constitute a waiver of any other or any succeeding Event of Default
except to the extent provided in such waiver.
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18. GOVERNING LAW AND JURISDICTION
18.01 This Guarantee is governed by and shall be construed in accordance with
the laws of Hong Kong and the parties hereto irrevocably submit to the
non-exclusive jurisdiction of the Hong Kong Courts.
IN WITNESS whereof this Guarantee has been duly executed as a deed by
the Guarantor the date first above written.
SEALED with the COMMON SEAL of )
CHINA PACIFIC , INC. )
)
and signed by )
▇▇▇▇▇▇ ▇▇▇▇ )
its director(s) in the presence of :- )
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PROMISSORY NOTE
Date: December 31, 1998
PRINCIPAL SUM: HONG KONG DOLLARS FIVE MILLION NINE HUNDRED SIXTY TWO
THOUSAND AND EIGHT HUNDRED AND SEVEN ONLY ( HK$5,962,807.00)
('the Principal Sum')
IN FAVOUR OF: TEAM PLUS ADVERTISING COMPANY LIMITED (`the Company')
For value received , we China Pacific , Inc. whose correspondence office
is situate at Room 1102, 11/F, Wing ▇▇▇▇ ▇▇▇▇▇ , ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ,
▇▇▇▇ ▇▇▇▇ hereby unconditionally and irrevocably covenant and promise to pay at
our correspondence address in Hong Kong three years from the date of this
Promissory Note to the Company or order the Principal Sum together with interest
calculated at the rate of 5% per annum on the Principal Sum. This promissory
Note shall be governed by and construed in accordance with the laws of Hong
Kong.
EXECUTED as a Deed by China Pacific , Inc. on the first above appearing
.
SEALED with the Common Seal )
)
Of China Pacific, Inc. )
)
And signed by )
▇▇▇▇▇▇ ▇▇▇▇ )
)
its director(s) )
in the presence of :- )
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Dated the 31st day of December 1998
CHINA PACIFIC, INC.
In favour of
TEAM PLUS ADVERTISING COMPANY LIMITED
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DEED OF GUARANTEE
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THIS GUARANTEE is made BY DEED on the thirty-first day of December
One thousand nine hundred and ninety-eight
BY :-
CHINA PACIFIC, INC. whose registered office is situate at Room 1102,
11/F, Wing ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
("the Guarantor");
IN FAVOUR OF :-
TEAM PLUS ADVERTISING LIMITED whose registered office is situate at ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ Sha Wan Road, Hong
Kong("the Company").
WHEREAS :-
(1) By a Memorandum ("the Memorandum") dated December 31, 1998 between the
Company and China Pacific Capital Limited ("the Principal"), the Company
agreed to accept payment of the shortfall of the disposal of a property
situated at ▇▇▇▇ ▇▇▇▇, ▇▇/▇, ▇▇▇▇▇▇▇ ▇▇▇▇ , ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ , ▇
▇▇▇▇▇▇▇ ▇▇▇▇ , ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ of a consideration of HK$14,000,000
(as defined in the Memorandum) by the Principal to the Company by way of
the Promissory Note (as defined in the Memorandum) ("the Promissory
Note") in the form of a specimen at the Schedule thereto for the amount
of HK$6,304,350.00 payable 3 years from the date of the Promissory Note
with interest at the rate of 5% per annum on the conditions of, inter
alia, the Guarantor's executing a guarantee in favour of the Company
upon the terms and provisions as hereinafter provided.
NOW THIS DEED WITNESSETH as follows :-
2. DEFINITIONS AND INTERPRETATION
1.01 Any reference in this Guarantee to "the Company" shall be construed
where the context admits as to include its successors in title and/or
assigns; and where appropriate as to include the subsequent holder for
value of the Promissory Note. This Guarantee shall be enforceable
notwithstanding any change in the constitution of the Company or its
absorption in or amalgamation with any other person or the acquisition
of all or part of its undertakings by any other person.
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1.02 Any reference in this Guarantee to "the Guarantor" or to "the Principal"
shall be construed so as to include their respective executors
administrators successors in title and assigns.
1.03 The expression "this Guarantee" shall be construed as including and
extending to any separate or independent stipulation or agreement herein
contained. Save where the contrary is indicated, any reference in this
Guarantee to this Guarantee and any provisions of this Guarantee or to
any other document or agreement are to be construed as references to
this Guarantee, those provisions or that document or agreement as is in
force for the time being and as amended, varied, supplemented,
substituted or novated from time to time.
1.04 Any reference in this Guarantee to a "Clause" shall, subject to any
contrary indication be construed as a reference to a clause of this
Guarantee.
1.05 Words importing the plural shall include the singular and vice versa,
and words importing the masculine, feminine or neuter shall include the
others of them and reference to a "person" shall be construed as a
reference to any person, firm, company, corporation, government, or any
associations or partnership (whether or not having separate legal
personality).
1.07 Clause and paragraph headings are for ease of reference only and not to
affect the construction hereof.
2. GUARANTEE
2.01 In consideration of the Company's agreeing at the request of the
Guarantor to accept the payment of the Service Fee by the Principal by
way of the Promissory Note made by the Principal, the Guarantor hereby
irrevocably and unconditionally guarantees the validity of the
Promissory Note and the prompt and complete performance of the
Promissory Note by the Principal according to the terms thereof and
should
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the Principal make any default or failure in this respect to make
to the Company on demand all the payments specified in the Promissory
Note in accordance with the terms thereof but as though the Guarantor
were itself the maker thereof.
2.02 As a separate and distinct undertaking and for the consideration
aforesaid, the Guarantor hereby further undertakes and covenants with
the Company to indemnify the Company from and against all loss, damage,
legal and other costs, charges, expenses and liabilities which may be
suffered or incurred by the Company as a result of holding the
Promissory Note and/or in relation to this Guarantee on a full indemnity
basis.
2.03 Payments by the Guarantor shall be made to the Company without any
set-off, counterclaim, withholding or condition of any kind except that,
if the Guarantor is compelled by law to make such withholding, the sum
payable by the Guarantor shall be increased so that the amount actually
received by the Company is the amount it would have received if there
had been no withholding.
2.04 A certificate of default on the part of the Principal signed by any duly
authorized person of the Company shall be conclusive evidence against
the Guarantor.
2.05 A certificate of balance signed by any duly authorized person of the
Company shall (except in the case of manifest error) be conclusive
evidence against the Guarantor of the amount of the owing at any time.
2.06 The Company shall be entitled to retain this Guarantee for such period
as the Company may consider to be appropriate in order to protect the
interests of the Company under this Guarantee.
2.07 This Guarantee shall apply to the ultimate balance owing by the
Principal to the Company and, until all moneys, obligations and
liabilities mentioned in Clause 2.01 and Clause 2.02 hereof 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
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Principal or to claim any set-off or counter-claim against the Principal
or to claim or prove in competition with the Company or 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 Company.
3. CONTINUING AND ADDITIONAL SECURITY
3.02 The Guarantor acknowledges and agrees that this Guarantee is and at all
times a continuing security and shall cover and secure the ultimate
balance from time to time owing to the Company by the Principal on each
separate account or in any manner whatsoever 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 is in addition to, shall not be
affected by and may be enforced despite the existence of, and without
demand, notice, legal process or any other action under, any other
guarantee, ▇▇▇▇, ▇▇▇▇, note, mortgage, or other security now or
hereafter held by or available to the Company.
3.02 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 Company's rights have become barred by reason of any legal
limitation, disability, incapacity or any other fact or circumstance
whether or not already known to the Company 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 Company (notwithstanding the avoidance or invalidity of any
assurance, security or payment or 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 was the
principal debtor in respect thereof. The Company is not to be concerned
to see or enquire into the powers of the Principal or its officers,
employees or agents purporting to act on its behalf. The ▇▇▇▇▇▇▇▇▇
▇▇
▇▇
hereby agrees to keep the Company fully indemnified against all damages,
loss, costs and expenses arising from any failure of the Principal to
carry out any such purported obligation.
3.03 The Guarantor agrees that the Company 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 nonnegotiable instruments
or securities, give up, deal with, exchange, vary, realise, release or
abstain from perfecting or enforcing any guarantees, liens, bills,
notes, mortgages, securities or other rights which the Company may now
or hereafter have from or against the Principal or any other person
whether hereunder or otherwise or renew, determine, vary or increase any
credit or facilities to or the terms or conditions in respect of any
transaction with the Principal as to the application of any advance made
or to be made to 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 Company may think expedient and no such act or
omission on the part of the Company shall in any way discharge or
diminish the validity of this Guarantee or affect the liability of the
Guarantor hereunder. The Company may enforce this Guarantee
notwithstanding that they may hold any other guarantee, lien or security
or have any outstanding remedy against the Principal or any other
person.
3.04 The Guarantor hereby expressly waives presentment and demand for payment
notice of non-payment and protest and any other notice or notices that
might otherwise be required in connection with the Promissory Note.
4. PRIMARY OBLIGATION
4.01 The obligations and liabilities expressed to be undertaken by the
Guarantor under this Guarantee are those of primary obligor and not
merely as a surety.
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4.02 The Company shall not be obliged before taking steps to enforce any of
its rights and remedies under this Guarantee:
(a) to take action or obtain judgment in any court against any of the
Principal and any other person;
(b) to make or file any claim in a bankruptcy, liquidation,
administration or insolvency of any of the Principal and any
other person; or
(c) to make demand, enforce or seek to enforce any claim, right or
remedy against any of the Principal and any other person.
5. NO SECURITY
5.01 The Guarantor warrants to the Company that it has not taken or received,
and agrees not to take, exercise or receive the benefit of any security
or other right or benefit (whether by set-off, counterclaim,
subrogation, indemnity, proof in liquidation or otherwise and whether
from contribution or otherwise, all together "Rights") from or against
any of the Principal and any other person in respect of any liability of
or payment by the Guarantor under this Guarantee or otherwise in
connection with this Guarantee.
5.02 The Guarantor covenants with the Company that if default is made in
observing the provisions of clause 5.01, and any Rights is taken,
exercised or received by the Guarantor, the Guarantor declares that such
rights and all monies at any time received or held in respect of such
Rights shall be held by the Guarantor in trust for the Company for
application in or towards the discharge of the liabilities of the
Guarantor to the Company under this Guarantee.
5.03 The Guarantor agrees that all other Rights and all monies from time to
time held in trust by the Guarantor for the Company under or pursuant to
Clause 5.02 shall be transferred, assigned or, as the case may be, paid
to the Company forthwith.
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6. SUSPENSE ACCOUNT
6.01 The Company may place to the credit of a suspense account any monies
received under or in connection with this Guarantee in order to preserve
the rights of the Company to prove for the full amount of all of its
claims against any of the Principal and any other person.
6.02 The Company may, at any time, apply any of the monies referred to in
Clause 6.01 in or towards satisfaction of any of the monies, obligations
and liabilities the subject of this Guarantee as the Company, in its
absolute discretion, may from time to time conclusively determine.
7. NEW ACCOUNTS
7.01 If this Guarantee ceases to be continuing for any reason whatsoever,
then the Company may open a new account or accounts in the name of the
Principal.
7.02 If the Company does not open a new account or accounts pursuant to
Clause 7.01, it shall nevertheless be treated as if it had done so at
the time that this Guarantee ceases to be continuing (whether by
determination, calling in, demand or otherwise) in relation to the
Principal.
7.03 As from that time, all payments made to the Company by or on behalf of
the Principal shall be credited or be treated as having been credited to
the new account or accounts and shall not operate to reduce the amount
for which this Guarantor under this Guarantee in any manner be reduced
or affected by any subsequent transactions, receipts or payments into or
out of any such accounts.
8. SET-OFF
8.01 The Company may, without notice to the Guarantor, apply any credit
balance to which the Guarantor is entitled on any account with the
Company in or towards satisfaction of any sum then due and payable from
the Guarantor under this Guarantee.
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9. LIEN
9.01 The Company shall be authorised to exercise a lien over all property of
the Guarantor coming into the possession or control of the Company, for
custody or any other reason in the ordinary course of business, with
power for the Company to sell such property to satisfy any sum then due
and payable from the Guarantor under this Guarantee.
10. DISCHARGE TO BE CONDITIONAL
10.01 Any release, discharge or settlement between the Guarantor and the
Company in relation to this Guarantee shall be conditional upon no
right, security, disposition or payment to the Company by any of the
Guarantor, the Principal and any other person being void, set aside or
ordered to be refunded pursuant to any enactment or law relating to
breach of duty by any person, bankruptcy, liquidation, administration,
the protection of creditors or insolvency or for any other person.
10.02 If any such right, security, disposition or payment is void or at any
time so set aside or ordered to be refunded, the Company shall be
entitled subsequently to enforce this Guarantee against the Guarantor as
if such release, discharge or settlement had not occurred and any such
security, disposition or payment had not been made.
11. COSTS AND EXPENSES, INDEMNITY
11.03 The Guarantor covenants with the Company, on demand, to pay all costs
and expenses incurred in connection with the preparation of this
Guarantee and by the Company in the exercise or purported exercise of
any powers, rights or remedies conferred by this Guarantee, or which the
Company shall incur in or about the preservation or attempted
preservation of this security.
11.04 The Guarantor covenants to indemnify the Company against all losses,
actions, claims, expenses, demands and liabilities whether in contract,
tort or otherwise now or hereafter incurred by it or him or by any
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manager, agent, officer or employee for whose liability act or omission
it or he may be answerable for anything done or omitted in the exercise
or purported exercise or non-exercise of the powers contained in this
Guarantee or occasioned by any breach by the Guarantor of any of its
covenants or other obligations to the Company. The Guarantor shall so
indemnify the Company on written demand.
12. WARRANTIES
12.01 The Guarantor hereby warrants represents and undertakes to the Company
(such warranties representations and undertakings to continue so long as
this Guarantee remains subsisting) that :
(a) it is duly incorporated and has full power to carry on its business as
now being conducted and to own its property and other assets and to
enter into and perform and will perform its obligations under this
Guarantee and all necessary corporate shareholder and other action to
enable it to execute deliver and perform the same has been taken and it
has obtained and will maintain in full force and effect all necessary
consents licences and authorities and no limitation on its powers to
borrow or give guarantees will be exceeded as a result of this
Guarantee;
(b) this Guarantee has been validly created and constitutes a valid and
legally binding obligation on the Guarantor enforceable in accordance
with its terms;
(c) the creation of this Guarantee and the performance and observance of
the obligations hereunder does not and will not (i) contravene any
existing applicable law statute rule or regulation or any judgment
decree or permit to which it is subject, (ii) conflict with or result in
any breach of any of the terms of or constitute a default under any
agreement or other instrument to which it is a party or is subject or by
which it or any of its property is bound, (iii) contravene or conflict
with any provision of its Memorandum and Articles of Association or (iv)
result in the creation or imposition of or oblige it to create any
charge or other encumbrance on any of its assets right or revenues.
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13. NO WAIVER AND REMEDIES CUMULATIVE
13.01 No failure to exercise, nor delay in exercising, on the part of the
Company, any power, right or remedy under this Guarantee shall operate
as a waiver thereof, nor shall any single or partial exercise or waiver
by the Company of any power, right or remedy preclude its further
exercise or the exercise of any other power, right or remedy. The rights
and remedies provided in this Guarantee are cumulative and are not
exclusive of any rights or remedies provided by law.
14. NOTICES
14.01 Any demand or notice under this Guarantee shall be in writing signed by
authorized person of the Company and (without prejudice to any other
effective means of serving it) may be served on the Guarantor personally
or by post to the Guarantor at the above address or the last known
address of the Guarantor. Any such demand or notice delivered personally
shall be deemed to have been received immediately upon delivery. Any
such demand or notice sent by post shall be deemed to have been received
on the second day following the day on which it was posted.
15. SEVERABILITY
15.02 Any provision of this Guarantee prohibited by or declared or adjudged
unlawful or unenforceable under any applicable law actually applied by
any court of competent jurisdiction shall, to the extent required by
such law, be severed from this Guarantee and rendered ineffective so far
as is possible without modifying the remaining provisions of this
Guarantee. Where, however, the provisions of any such applicable law may
be waived they are waived by the Guarantor to the fullest extent
permitted by such law.
16. Event of Default
Each of the following events and occurrences shall constitute an Event
of Default under this Guarantee:
16.14 The Principal fails to make payment when due and payable of any amount
which it is obligated to pay under this Guarantee, the Memorandum or any
of the Notes or the Guarantor fails to make payment when due and payable
of any amount which it is obligated to pay under the Guarantee.
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16.15 Any representation or warranty made by the Principal contained herein or
by the Guarantor contained in the Guarantee, or in any notice or other
certificate, document, opinion or other statement delivered pursuant
hereto or thereto, is shown to have been incorrect or misleading as of
its date in any material respect.
16.16 The Principal fails to perform or violates any other provision of this
Guarantee ( other than the provisions of this Section 16) or the
Guarantor fails to perform or violates any provision of the Guarantee (
other than a failure to perform or violation referred to elsewhere in
this Section 16) and such default or violation is not remediable or, if
remediable, continues unremedied for a period of thirty days after
notice from the Agent acting on the instructions from the Company to the
Principal or the Guarantor, as applicable, with respect thereto.
16.17 Any governmental registration, consent, license, authorization or
approval granted or required in connection with this Guarantee, the
Memorandum, the Notes or the Guarantee or any other document, the
execution and delivery of which is contemplated herein, expires or is
terminated, revoked, modified or restricted in any way unacceptable to
the Agent or the Company including without limitation failure to obtain
or renew the necessary foreign exchange approval or validation of the
Guarantee by the Guarantor's designated class A foreign exchange bank
thirty (30) Banking Days prior to the expiry date of the then current
approval or validation.
16.18 The Principal or the Guarantor fails to pay any money due under any
other agreement ( whether or not written ) or document evidencing,
securing, guaranteeing or otherwise relating to Indebtedness of the
Principal or the Guarantor or there occurs any other default on the part
of the Principal or the Guarantor or other event that, with the giving
of notice or the passing of time, or both, would constitute a default or
an event of default under any such agreement or document and the effect
of which is to accelerate or to permit the acceleration of the maturity
of such Indebtedness.
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16.19 Any arbitration award, judgement or decree for money damages or for a
fine or penalty, which in the reasonable opinion of the Company would
have a material adverse effect on the Principal's or the Guarantor's
financial condition or operations or impair their ability to pay under
this Guarantee, the Memorandum, the Notes or the Guarantee, as
applicable, is entered against the Principal or the Guarantor and is not
paid and discharged or stayed within thirty days.
16.20 Any change occurs in the ownership or control of the principal or the
Guarantor which in the opinion of the Company constitutes a material
adverse change affecting the financial condition or operations of the
Principal or the Guarantor.
16.21 The Principal or the Guarantor becomes insolvent or unable to pay its
debts when due or commits or permits any act of bankruptcy, which term
shall include (I) the filing of a petition in any bankruptcy,
reorganization, winding-up or liquidation proceeding or other proceeding
analogous in purpose or effect,(ii) the failure by the Principal or the
Guarantor to have any such petition filed by another party discharged
within thirty days,(iii) the application for or consent to the
appointment of a receiver or trustee for the bankruptcy, reorganization,
winding-up or liquidation of the Principal or the Guarantor, (iv) the
making by the Principal or the Guarantor of an assignment for the
benefit of its creditors,(v) the admission in writing by the Principal
or the Guarantor of its inability to pay its debts, or ( vi) the entry
of any court order or judgement confirming the bankruptcy or insolvency
of the Principal or the Guarantor or approving any reorganization,
winding-up or liquidation of the Principal or the Guarantor or of a
substantial portion of their respective assets.
16.22 It becomes unlawful for the Principal to perform any obligation
hereunder or under the Memorandum or the Notes or for the Guarantor to
perform any obligation under the Guarantee.
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16.23 The Guarantor attempts to repudiate, rescind, limit, or annul the
Guarantee, or any legislation or regulation is proposed, enacted or
promulgated the effect of which would be to repudiate, rescind, limit
or annul the Guarantee.
16.24 Any competent governmental authority takes (I) any action to condemn,
seize, requisition or otherwise appropriate any substantial portion of
the assets of the Principal or the Guarantor (either with or without
payment of compensation), (ii) any action to dissolve, liquidate or
terminate the existence of the Principal or the Guarantor or to devest
the Principal or the Guarantor of any material portion of its assets; or
(iii) any action which, in the portion of the Company, adversely
affects the Principal's or the Guarantor's ability to pay its
indebtedness hereunder, under the Memorandum, the Notes or the
Guarantee.
16.25 The Principal or the Guarantor shall suspend or discontinue its business
operations or a major portion thereof, whether voluntarily or
involuntarily, for a period of thirty days.
16.26 Any circumstances occur which in the opinion of the Company give
reasonable grounds for belief that the Principal or the Guarantor may
not (or may not be able to) perform its obligations hereunder, under
the Memorandum , the Notes or the Guarantee.
17. CONSEQUENCE OF DEFAULT
In an Event of Default shall occur and be continuing, the Agent, upon
notice from the Company so directing the Agent, shall:
17.03 by written notice to the Principal declare the Loan together with
accrued interest and any other sums payable hereunder to be immediately
due and payable, and the Loan, together with accrued interest and any
other sum payable hereunder, shall thereupon become due and payable
without presentation, demand, protest or notice of any kind, other than
the notice specifically required by this Section 17, all of which are
expressly waived by the Principal; and/or
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17.04 by written notice to the Principal declare any undrawn portion of the
Commitments cancelled, such cancellation to be effective upon the
giving of such notice; provided, however, that upon the occurrence of
any Event of Default described in Section 16.08 hereof, all sums owing
by the Principal hereunder automatically and immediately shall become
due and payable, without any declaration, presentment, demand, protest,
notice of any kind or any other action by the Agent or any Company
hereunder, all of which are expressly waived by the Principal.
The Principal shall also pay to Company such additional amounts as may
be necessary to compensate such Company for any costs or losses
resulting from such Event of Default. No waiver of any Event of Default
shall constitute a waiver of any other or any succeeding Event of
Default except to the extent provided in such waiver.
18. GOVERNING LAW AND JURISDICTION
18.01 This Guarantee is governed by and shall be construed in accordance with
the laws of Hong Kong and the parties hereto irrevocably submit to the
non-exclusive jurisdiction of the Hong Kong Courts.
IN WITNESS whereof this Guarantee has been duly executed as a
deed by the Guarantor the date first above written.
SEALED with the COMMON SEAL of )
CHINA PACIFIC, INC. )
and signed by )
▇▇▇▇▇▇ ▇▇▇▇ )
its director(s) in the presence of :- )
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PROMISSORY NOTE
Date : December 31, 1998
PRINCIPAL SUM: HONG KONG DOLLARS SIX MILLION THREE HUNDRED AND FOUR
THOUSAND AND THREE HUNDRED AND FIFTY ONLY ( HK$6,304,350.00)
(`the Principal Sum')
IN FAVOUR OF: TEAM PLUS ADVERTISING COMPANY LIMITED (`the Company')
For value received, we China Pacific, Inc. whose correspondence office
is situate at Room 1102, 11/F, Wing ▇▇▇▇ ▇▇▇▇▇ , ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ,
▇▇▇▇ ▇▇▇▇ hereby unconditionally and irrevocably covenant and promise to pay at
our correspondence address in Hong Kong three years from the date of this
Promissory Note to the Company or order the Principal Sum together with interest
calculated at the rate of 5% per annum on the Principal Sum. This promissory
Note shall be governed by and construed in accordance with the laws of Hong
Kong.
EXECUTED as a Deed by China Pacific, Inc. on the first above appearing.
SEALED with the Common Seal )
)
Of China Pacific, Inc. )
)
And signed by )
▇▇▇▇▇▇ ▇▇▇▇ )
)
its director(s) )
in the presence of :- )
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