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Exhibit 10.10
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CORPORATE GUARANTEE SCHEDULE
HONG KONG SHANGHAI BANK BANKING CORPORATION LIMITED ("HSBC")
CREDIT FACILITY AND FACTORING AGREEMENTS
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N0. Guarantee Date
Facility Date
GUARANTEE AMOUNT(1)
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1. August 19, 1999
April 30, 1999
USD4,200,000
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2. September 29,
1999
September 8, 1999
USD18,000,000
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3. November 11,
1999
September 8, 1999
USD4,000,000
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4. August 28,2000
July 31, 2000
USD5,500,000
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5. December 16,
2003
November 7, 2003
EUR380,000
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6. January 31, 2004
November 7, 2003
USD10,300,000
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7. June 3, 2004
April 23, 2004
EUR10,000,000
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(1) At July 3, 2004, the aggregate
indebtedness outstanding and thus subject to
these guarantees was $9.2 million,
consisting of approximately $6.2 million
under the Euro denominated facilities and
approximately $3.0 million under the
Hong Kong Dollar denominated
facilities.
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Dated the ___ day of________________________
CONCORD CAMERA CORP.
(as Guarantor)
In favor of
THE HONGKONG AND SHANGHAI
BANKING CORPORATION LIMITED
(as Lender)
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GUARANTEE
of the liabilities of
CONCORD CAMERA HK LIMITED
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THIS GUARANTEE
is made the ___ day of ____________________
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BETWEEN:
(1) CONCORD
CAMERA CORP. a corporation incorporated under the laws of the
State of New Jersey, the United States of America and having
its
registered office at 28 West State Street, Trenton, New Jersey
08608,
the United States of America and a place of business at 4000
Hollywood
Boulevard, Presidential Circle, Suite 650N, Hollywood, Florida
33021,
the United States of America ("the Guarantor"); and
(2) THE
HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED whose
registered
office is at No. 1 Queen's Road, Central, Hong Kong ("the
Lender").
WHEREAS:
(1) By a
Facility Letter dated the ____ day of _________ ____ ("the
Agreement", which expression shall include such Facility Letter as
from
time to time supplemented or amended) from the Lender to CONCORD
CAMERA
HK LIMITED whose registered office is at 26th Floor, Central Plaza,
No.
18 Harbour Road, Hong Kong and a place of business at 14th
Floor,
Concord Technology
Centre, No. 98 Texaco Road and No.57A Wang Wo Tsai
Street, Tsuen Wan, New Territories ("the Borrower", which
expression
shall where the context permits or requires, include its successors
and
assigns) the Lender has agreed to make available to the
Borrower
certain general banking facilities ("the Facilities") subject to
and
upon the terms and conditions as therein mentioned.
(2) It is
(inter alia) a term of the Agreement that the Guarantor shall
enter into this Guarantee in respect of the Borrower's obligations
owed
to the Lender and this Guarantee is accordingly supplemental to
the
Agreement.
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NOW IT IS HEREBY AGREED as follows:
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1. (a)
Save as otherwise defined or re-defined herein expressions
defined
in the Agreement shall have the same meaning when used herein.
(b) In this Guarantee, except where the context otherwise requires
:
"Guaranteed Indebtedness" means all moneys due or to become due by
the
Borrower, actually or contingently, to the Lender on any account
or
otherwise in any manner whatsoever whether under the Agreement
or
otherwise.
"Hong Kong" means the Hong Kong Special Administrative Region of
the
People's Republic of China.
2. (a)
In consideration of the Lender agreeing to make the Facilities
available to the Borrower at the request of the Guarantor, the
Guarantor hereby guarantees, unconditionally and irrevocably,
as
principal debtor and not merely as surety, until final payment has
been
made, the due and prompt payment by the Borrower of the
Guaranteed
Indebtedness in the manner and at the times fixed or calculated
for
payment of the same under the Agreement or the relevant
facility
letter(s) or other instrument(s) and the Guarantor further
guarantees,
unconditionally and irrevocably, as principal obligor and not
merely as
surety, the due and punctual performance by the Borrower of all
its
obligations and liabilities under the Agreement or the relevant
facility letter(s) or other instrument(s) so that whenever the
Borrower
fails to make payment of any Guaranteed Indebtedness in the
manner
provided and/or perform and observe any of its obligations and
liabilities under the Agreement or the relevant facility letter(s)
or
other instrument(s) the Guarantor
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shall upon demand by the Lender cause forthwith to be paid the
Guaranteed Indebtedness and/or performed and observed the
obligations
and
liabilities in respect of which such default has been made in
accordance with the provisions of the Agreement or the relevant
facility letter(s) or other instrument(s) provided always that
the
Guarantor's liability under this Guarantee shall not in any
event
exceed United States Dollars ___________________________
(USD_____________).
(b) As a separate and independent stipulation, the Guarantor shall
be
liable for every payment to be made by the Borrower in respect of
the
Guaranteed Indebtedness and every obligation and liability to
be
performed and observed by the Borrower under the Agreement or
the
relevant facility letter(s) or other instrument(s) as if the
Guarantor
were the principal debtor and obligor in respect of such amount
and
liability and obligation and not merely surety, and without any
requirement for the Lender first to have recourse against the
Borrower
or any other person, and the Guarantor's liability shall not be
discharged, impaired or reduced by any time or indulgence granted
to
the Borrower or any other person by the Lender or by the Borrower
or
the Guarantor losing its separate identity or by any dealings
or
transactions between the Lender, the Borrower and the Guarantor or
by
any amendment or supplement to the Agreement or the relevant
facility
letter(s) or other instrument(s).
(c) Any statement of account certifying the amount of the
Guaranteed
Indebtedness signed by any duly authorised officer of the Lender
shall
(save for any manifest error) be conclusive evidence as against
the
Guarantor of such amount.
3. (a)
The Guarantor makes the following representations and warranties
to
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the Lender that :
(i) the
Guarantor is a company duly incorporated with limited
liability and in good standing under the laws of the State of
New Jersey in the United States of America;
(ii)
the Guarantor has the corporate power, the authority and the
legal capacity to give this Guarantee and to perform and
observe its obligations hereunder;
(iii) the
execution, delivery and performance of this Guarantee has
been duly authorised by all necessary corporate action of the
Guarantor under all applicable laws and regulations of the
United States of America and Hong Kong;
(iv)
this Guarantee, as executed and delivered, constitutes legal,
valid and binding obligations of the Guarantor enforceable in
accordance with its terms;
(v) the
execution and delivery of, and the performance of the
provisions of, this Guarantee by the Guarantor do not, and
will not during the continuance of this Guarantee,
(a) contravene
any existing applicable law, ordinance,
regulation, decree or permit, or any order,
judgement, decree or award of any court or any
judicial, administrative or governmental authority,
department or agency presently in effect and
applicable to the Guarantor or any of its assets; or
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(b) contravene
any contractual restriction binding on the
Guarantor or any of its assets; or
(c) create or
result in or (except as may be provided
herein) oblige the Guarantor to create any lien,
charge, security interest or other encumbrance on the
whole or any part of the Guarantor's property, assets
or revenues, present or future; or
(d) cause any
limit on any of the borrowing,
guaranteeing, charging or other powers of the
Guarantor, whether imposed by its Certificate of
Incorporation or other constitutional documents, or
by agreement, instrument or otherwise, or upon any of
the powers of its Board of Directors to exercise any
of its powers, or any
other limit affecting the
Guarantor, to be exceeded;
(vi)
all necessary governmental and other consents, authorities and
approvals (if any) for the Guarantor to execute this Guarantee
have been obtained and are in full force, validity and effect,
and as of the date of this Guarantee, no further governmental
or other consents, authorities or approvals are necessary for
the performance by the Guarantor of its obligations hereunder;
(vii)
(save and except disclosed in writing by the Guarantor to the
Lender prior to the date hereof) there are no proceedings
pending before any court, tribunal, arbitrator, government
agency or administrative body against or threatened against
the Guarantor or any of its assets which if adversely
determined could or might result in any material adverse
change in the business or condition (financial or otherwise)
of the Guarantor or the ability of the
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Guarantor to pay, if due, any sums and/or to perform any
obligations required by the teens and conditions of this
Guarantee;
(viii) the
obligations of the Guarantor under this Guarantee are
direct, general and unconditional obligations of the Guarantor
and rank at least pari passu with all the Guarantor's other
present and future unsecured and unsubordinated indebtedness
and other obligations (including contingent obligations) with
the exception of indebtedness and other such obligations
mandatorily preferred by law and not by contract;
(ix)
the Guarantor is not in material default under any statutory
or other
requirements applicable to the Guarantor or in
default in the payment of any principal of or interest on any
indebtedness for borrowed money and is not in breach of or in
default under any other provision of any indenture, deed of
trust, agreement or other instrument to which it is a party
and under or subject to which any such indebtedness for
borrowed money has been issued and is outstanding and (to the
best of its knowledge and belief) no event, condition or act
which with the giving of notice or lapse of time, or both,
would constitute an event of default under any such indenture,
deed of trust, agreement or other instrument has occurred or
is continuing which has not been properly waived or remedied
thereunder; and
(x) the
information contained in all accounts, certificates,
schedules or other documents supplied to the Lender relating
to the Guarantor is true and accurate in all respects, and the
opinions and forecasts expressed therein (if any) are honestly
held and have been made on a reasonable basis, and there are
no material facts relating to the Guarantor, which could or
might affect the willingness of a
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reasonable party to rely on a guarantee from the Guarantor in
terms similar to the terms of this Guarantee, which have not
been disclosed to the Lender.
(xi) the Borrower is a wholly owned subsidiary of the
Guarantor.
(b) The
Guarantor further undertakes and/or covenants with the Lender:
(i) that each
of the representations and warranties contained in
Clause 3(a) will be true and accurate in all respects until
the Guaranteed Indebtedness is fully repaid and settled by the
Borrower and/or the Guarantor;
(ii)
that the Guarantor will promptly inform the Lender of the
occurrence of any event of which the Guarantor becomes aware
which, in the Guarantor's reasonable opinion, might adversely
affect the ability of the Borrower or the Guarantor fully to
perform their respective obligations under the Agreement
and/or any facility letter(s) or instrument(s) made with the
Lender and this Guarantee;
(iii) that
the Guarantor will endeavour to obtain or cause to be
obtained every consent and approval and do, or cause to be
done, all other acts and things which may from time to time be
necessary or desirable for the continued due performance of
all the Guarantor's obligations hereunder;
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(iv)
that for so long as the Guaranteed Indebtedness remains
outstanding, this Guarantee will continue to rank at least
pari passu with the Guarantor's existing and future unsecured
and unsubordinated obligations with the exception of
indebtedness and other such obligations mandatorily preferred
by law and not by contract; and
(v) that for
so long as the Guaranteed Indebtedness remains
outstanding, t
