f8k072911ex10iii_everglory.htm


Exhibit 10.3


 



(PRC-law-governed Version)







To:  HSBC Bank (China) Company Limited,           Nanjing      Branch







GUARANTEE BY AN INDIVIDUAL







1.  Definitions


“Bank” means HSBC Bank (China) Company Limited,    Nanjing  Branch and its successors and assignees;


“Banking Facilities” means such facilities as the Bank may make or continue to make available to the Customer;


“Customer” means the person whose name and address are specified in the Schedule;


“Default Interest” means interest at such rate as the Bank may specify, compounded monthly if not paid on the dates specified by the Bank;


“Exchange Rate” means the rate for converting one currency into another currency which the Bank determines to be prevailing in the relevant foreign exchange market at the relevant time, such determination to be conclusive and binding on the Guarantor;


“Guaranteed Moneys” means (i) all principal in any currency owing by the Customer to the Bank at any time during the Guaranteed Period, actually or contingently, in any capacity, alone or jointly with any other person, (ii) interest on such principal (both before and after any demand or judgment), to the date on which  the Bank receives payment, at the rates payable by the Customer or which would have been payable but for any circumstance which restricts payment, (iii) other amount owing by the Customer to the Bank under or in relation to the Banking Facilities and (iv) expenses of the Bank in enforcing this Guarantee on a full indemnity basis;


“Guaranteed Period” means the period commencing from the date of this Guarantee and ending on the date falling one calendar month after receipt by the Bank of the termination notice referred to in Clause 3.1;


“Guarantor” means the person whose name and address are specified in  the Schedule and any executor, personal representative or other lawful successor of such person;


“Maximum Liability” means the sum specified in the Schedule plus Default Interest on that sum or part thereof (to the extent that it is not paid by the Guarantor on demand by the Bank) and expenses of the Bank in enforcing this Guarantee on a full indemnity basis; where a liability for Guaranteed Moneys is incurred in a currency different from the currency in which the Maximum Liability is stated  and the equivalent of that liability in the currency in which the Maximum Liability is stated, calculated at the then applicable Exchange Rate upon determination of the liability, has increased since it was incurred, that increase shall be added to the Maximum Liability;


“person” includes an individual, firm, company, corporation and an unincorporated body of persons; and


“PRC” means the People’s Republic of China, for the purpose of this Guarantee, excluding the Hong Kong Special Administrative Region, the Macau Special Administrative Region and Taiwan.


2.  Guarantee


2.1  In consideration of the Banking Facilities, the Guarantor guarantees to pay the Guaranteed Moneys to the Bank on demand provided that the aggregate amount paid by the Guarantor under this Guarantee shall in no case exceed the Maximum Liability.


2.2  The Guarantor shall pay Default Interest (to the extent that it is not paid by the Customer) on the Guaranteed Moneys from the date of demand by the Bank on the Guarantor until the Bank receives payment of the whole of the Guaranteed Moneys (both before and after any demand or judgment or any circumstance which restricts payment by the Customer).


2.3  A certificate of balance signed by any duly authorised officer of  the Bank shall be conclusive evidence against the Guarantor of the amount of the Guaranteed Moneys owing at any time.


2.4  The Bank shall be entitled to retain the benefit of this Guarantee as against the Guarantor and any security it has in respect of the Guaranteed Moneys for such period as the Bank may certify to the Guarantor to be appropriate in order to protect the interests of the Bank in respect of the Guaranteed Moneys.


 




  





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3.  Continuing and Additional Security


3.1  This Guarantee is a continuing security and shall secure the whole of the Guaranteed Moneys until one calendar month after receipt by the Bank of notice in writing by the Guarantor to terminate it.   Nevertheless and despite the giving of such notice, this Guarantee shall continue to apply to the Guaranteed Moneys in respect of which the Customer is or becomes actually or contingently liable up to such termination (together with the interest and other amount payable in relation to such Guaranteed Moneys after the termination) and the Guarantor guarantees to pay such Guaranteed Moneys (together with the interest and other amount payable in relation to such Guaranteed Moneys after the termination) to the Bank on demand whether that demand is made before, at the time of or after such termination.


3.2  The termination notice referred to in Clause 3.1 above shall not be served within the Minimum Guaranteed Term set out in the Schedule hereof.


3.3  This Guarantee is in addition to any other guarantee, mortgage, pledge or other security held by the Bank and shall not be affected by and may be enforced despite the existence of or any waiver by the Bank regarding such guarantee, mortgage, pledge or other security. CDT-SEC-014  (300907) The Bank shall not be obliged to enforce any other security before enforcing the guarantee hereunder.


4.  Customer’s Account


The Bank may, at any time and despite the termination of this Guarantee, continue any existing account and open any new account in the name of the Customer and no subsequent transactions, receipts or payments involving such new accounts shall affect the liability of the Guarantor.


5.  Payments


5.1  Payments by the Guarantor shall be made to the Bank as specified by the Bank 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  Bank is the amount it would have received if there had been no withholding.


5.2  Payment by the Guarantor to the Bank shall be in the currency of  the relevant liability or, if the Bank so agrees in writing, in a different currency, in which case the conversion to that different currency shall be made at the Exchange Rate.


5.3  No payment to the Bank under this Guarantee pursuant to any judgment, court order or otherwise shall discharge the obligation of the Guarantor in respect of which it was made unless and until payment in full has been received in the currency in which it is payable under this Guarantee and, to the extent that the amount of any such payment shall, on actual conversion into such currency, at  the Exchange Rate, fall short of the amount of the obligation, expressed in that currency, the Guarantor shall be liable for the shortfall.


5.4  Any moneys paid to the Bank in respect of the Guaranteed Moneys may be applied in or towards satisfaction of the same or placed to the credit of such account as the Bank may determine with a view to preserving its rights to prove for the whole of the Guaranteed Moneys.


5.5  If any moneys paid to the Bank in respect of the Guaranteed Moneys are required to be repaid by virtue of any law relating to insolvency, bankruptcy or liquidation or for any other reason, the Bank shall be entitled to enforce this Guarantee as if such moneys had not been paid.


6.  Set-off


The Bank may, at any time and without notice, apply any credit balance to which the Guarantor is entitled on any account with the Bank in or towards satisfaction of the Guaranteed Moneys.   For this purpose,  the Bank is authorised to purchase, at the Exchange Rate, such other currencies as may be necessary to effect such application with the moneys standing to the credit of such account.


7.  Waiver of Defense


The Guarantor hereby consents and agrees to each of the following, and agrees that the Guarantor’s obligations under this Guarantee shall not be released, diminished, impaired, reduced or adversely affected by any of the following, and waives any statutory or other rights (including without limitation rights to notice) which the Guarantor might otherwise have as a result of or in connection with any of the following:


 




  





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(a)  any amendment to or variation of the terms of the Banking Facilities;


(b)  any adjustment, indulgence, forbearance or compromise that might be granted or given by the Bank to the Customer, the Guarantor or any other party liable for payment of any or all of the Guaranteed Moneys;


(c)  any release, exchange, subordination or loss  of any guarantee or security at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Moneys;


(d)  the failure of the Bank or any other party to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling of all or any part of any security;


(e)  the reorganization, merger or consolidation of the Customer into or with any other person; or any other action or omission to act which but for this provision would discharge the Guarantor from any part of its liability under this Guarantee.


8.  Guarantor as Principal Debtor


The liability of the Guarantor under this Guarantee shall not be discharged or otherwise affected by reason of the Bank entering into any agreement or arrangement with the Customer or any other person or by reason of any legal limitation, disability or incapacity or any other act, omission or circumstance which, but for this provision, would discharge the Guarantor to any extent.    Any Guaranteed Moneys which may not be recoverable from the Customer for any such reason shall be recoverable by the Bank from the Guarantor as principal debtor by way of indemnity, on demand, together with Default Interest thereon in accordance with Clause 2.2.


9.  Subordination


9.1  The Guarantor shall not, until the whole of the Guaranteed Moneys have been received by the Bank, exercise its rights of subrogation, indemnity, set-off or counterclaim against  the Customer or its rights to participate  in any security the Bank has in respect of the Guaranteed Moneys or, unless required by the Bank to do so, to prove in the bankruptcy or liquidation of the Customer. The CDT-SEC-014  (081106) Guarantor shall hold any amount recovered, as a result of the exercise of any of such rights, on trust for the Bank and shall pay the same to the Bank immediately on receipt.


9.2  The Guarantor has not taken any security from the Customer and agrees not to do so until the Bank has received the whole of the Guaranteed Moneys. Any security taken by the Guarantor in breach of this provision shall be held in trust for the Bank as security for the Guaranteed Moneys and all moneys at any time received in respect thereof shall be paid to the Bank immediately on receipt.


10.  No Waiver


No failure to exercise, nor any delay in exercising, any of the rights or remedies under this Guarantee shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy.


11.  Consent


The Guarantor agrees that the Bank may, for such purposes as the Bank may consider reasonably appropriate, disclose and/or obtain information concerning the Guarantor (including details of and relating to all or any transactions or dealings between the Guarantor and the Bank) to or from:


(a)  any agent, contractor or third party service provider (whether  situated within or outside the PRC) which provides administrative, telecommunications, computer, payment, processing or other services to the Bank in connection with the operation of its business;


(b)  credit reference agencies;


(c)  any person to whom the Bank is under an obligation to make disclosure under the requirements of any applicable laws, regulations or judicial process; and


(d)  any actual or proposed participant or sub-participant of the Banking Faculties (or any part thereof).


In the event that such information includes the personal or other data of any third party or individual, the Guarantor confirms and warrants that it has obtained the consent of such third party or individual to the provision of such data to the Bank for such purposes and for disclosure to such persons as referred to in this Clause. The Guarantor will indemnify and hold the Bank harmless from all costs, penalties, damages and other losses incurred as the result of any breach of the terms of this Clause.


 




  





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12.  Assignment


12.1  The Guarantor may not assign or transfer any of its rights or obligations of the Guarantor hereunder.    The Bank may assign any of its rights hereunder to a person in whose favour it has made an assignment of all or any of the Banking Facilities.


12.2  Without prejudice to the foregoing and any right of assignment enjoyed by the Bank under any applicable law or any other documents, the Bank may, without the Guarantor’s consent, assign any and/or all of its rights and obligations hereunder to any HSBC Group member(s) that are/is more than 50% owned or controlled by HSBC Group or to any branch or sub-branch of the Bank.


13.  Communications


Any notice, demand or other communication under this Guarantee shall be in writing addressed to the Guarantor at the last address registered with the Bank and addressed to the Bank at its office specified in the Schedule or such other address as the Bank may notify to the Guarantor for this purpose and may be delivered personally, by leaving it at such address, by post, facsimile transmission or telex and shall be deemed to have been delivered to the Guarantor at the time of personal delivery or on leaving it at such address or on the second day following the day of posting or on the day of dispatch, if sent by facsimile transmission or telex, and to the Bank on the day of actual receipt.


14.  Severability


Each of the provisions of this Guarantee is severable and distinct from the others and, if one or more of such provisions is or becomes illegal, invalid or unenforceable, the remaining provisions shall not be affected in any way.


15.  Governing Law and Jurisdiction


15.1  The Guarantee is governed by and shall be construed in accordance with the laws of the PRC.


15.2  The Guarantor submits to the jurisdiction of the court at the place of the principal office of the Bank.   Nothing in this Clause 15.2 limits the right of the Bank to bring proceedings against the Guarantor in connection with this Guarantee in any other court of any competent jurisdiction.


16.  Execution


This Guarantee has been entered into by the Guarantor on                             .


 




  





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Address of Bank’s Office (for the purpose of Clause 13 only)


HSBC Bank (China) Company Limited







Details of Customer


 




 



	
Name



Perfect Dream Ltd.


 




 

	
Address



akasa Bldg, 24 De Castro St. Wickhams Cay 1, ROrad Town, Totola BVI


 


 











 




Details of Guarantor


Name: Yihua Kang


Identification Document Type and Number:


Address: Xuanwuwei Street 16-102 Nanjing


 


Subject to the definition of Maximum Liability in this Guarantee, the specific amount of the Maximum Liabilities* is:  $ 1,100,000


 


Minimum Guaranteed Term**:  36   months from the date of this Guarantee.


 

 


Executed by the Guarantors:


Signature of Guarantor


/s/  Yihua Kang







Full Name (in Block Letters)


Yihua Kang


Address


Xuanwuwei Street 16-102 Nanjing


Identification Document Type and Number:







 

 









* The Maximum Liabilities shall at least include the principal, any expected interest, default interest, fees and other charges.


 


** The Minimum Guaranteed Term shall cover at least the last repayment date under any existing and proposed facility.


 


 


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