<PAGE> 1
EXHIBIT 10 (ii)d 1
NEWCOURT LEASING CORPORATION
THIS GUARANTEE is dated as July 17, 2000 and is GIVEN BY MAIL.COM
(1) THE GUARANTORS, details of whom are set out in the Schedule hereto,
(individually a "Guarantor" and together the "Guarantors")
TO
(2) NEWCOURT LEASING CORPORATION of 2103, China World Tower, China World
Trade Center No.1 Jianguomenwai Avenue, 100004. (the "Company")
WHEREAS:
(A) The Company, at the request of the Guarantors has made available or is
about to make available or grant and may from time to time in the future
grant or make available, credit facilities, advances or other financial
accommodation to elong Net Information Technology Co., Limited. a China
corporation having its principal place of business at Room 604 Union
Plaza, 20 Chaoyang Men Wai Avenue, Beijing 100020, China. (the
"Customer")
It is a condition of the Company making available or granting, and
agreeing to consider making available or granting in the future, such facilities
and financial accommodation to the Customer that the Guarantors in each case
guarantee the obligations of the Customer thereunder as hereinafter set out.
NOW IT IS HEREBY AGREED as follows:-
1. The Guarantors hereby jointly and severally represent and warrant to the
Company that:-
(a) the Guarantors have the necessary capacity to give this Guarantee
and to perform and observe their obligations contained herein,
This Guarantee, as executed and delivered, constitutes legal,
valid and binding obligations respectively of each of the
Guarantors enforceable in accordance with its terms;
(b) the execution and delivery of, and the performance of the
provisions of, this Guarantee by the Guarantors does not, and will
not during the continuance of this Guarantee, contravene (i) 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 Guarantors (or
any of them) or any of the Guarantors' respective assets, or (ii)
any contractual restriction binding on the Guarantors or any of
the Guarantors' respective assets;
(c) there are no proceedings pending before any court, government
agency or administrative body against or threatened against the
Guarantors or any of the Guarantors' respective assets which if
adversely determined could or might result in any material adverse
change in the business or condition (financial or otherwise) of
the Guarantors (or any of them) or the ability of the Guarantors
(or any of them) to pay, if due, any sums required by the terms
and conditions of this Guarantee;
(d) the respective obligations of the Guarantors under this Guarantee
are direct, general and unconditional obligations of the
Guarantors and rank at least pan passu with all Guarantors'
respective 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;
(e) none of the Guarantors are in material default under any statutory
or other requirements applicable respectively to them or under any
covenant, deed, licence or other instrument or any agreement or
other contractual arrangement to which the Guarantors (or any of
them) respectively are a party or by which the Guarantors (or any
of them) may be bound nor in respect of any financial or other
commitment or obligation;
(f) the information contained in all accounts, certificates, schedules
or other documents supplied to the Company relating to the
Guarantors 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 respectively to the Guarantors, which could or
might affect the willingness of a reasonable party to rely on a
guarantee from the Guarantors in terms similar to the terms of
this Guarantee, which have not been disclosed to the Company.
2. The Guarantors jointly and severally undertake with the Company that the
Guarantors will:-
(a) promptly inform the Company of the occurrence of any event of
which the Guarantors (or any of them) becomes aware which, in the
Guarantors (Or any of their) reasonable opinion, might adversely
affect, the ability of the Customer to punctually pay to the
Company on the respective due dates, all moneys which are now or
may hereafter be or become due by the Customer to the Company in
respect of the said facilities, or, the ability of the Guarantors
(Or any of them) fully to perform their obligations under this
Guarantee: and
(b) 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 Guarantors' respective
obligations hereunder.
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3.01 In consideration of the Company at the request of the Guarantors,
granting or continuing to make available credit facilities advances or other
financial accommodation, for as long as the Company may think fit to the
Customer, the Guarantors, as primary obligors and not merely as sureties, hereby
irrevocably and unconditionally jointly and severally guarantee the punctual
payment to the Company, on the respective due dates, of all moneys (whether
principal, interest or otherwise) which are now or may at any time hereafter be
or become from time to time due or owing to the Company by the Customer in
respect of the Master Lease Agreement between Customer and the Company, not to
exceed US$ 5,000,0000 (collectively all liabilities and obligations in respect
of the Master Lease Agreement, subject to such US$ 5,000,000 limitatation, being
referred to herein as the "Guaranteed Obligations") together with all the
Company's costs and expenses (including legal expenses) incurred in relation to
the Customer or in connection with the negotiation, preparation, execution and
enforcement of this Guarantee and the Guarantors further irrevocably and
unconditionally jointly and severally guarantee the due and punctual performance
and observance by the Customer of all the Guaranteed Obligations.
3.02 The Guarantors hereby jointly and severally undertake that, upon default
by the Customer in the observance or performance of any covenants or obligations
in respect of the Guaranteed Obligations or in the payment when due (whether at
the stated maturity, by acceleration or otherwise) of any of the Guaranteed
Obligations, the Guarantors shall, upon first demand, cause forthwith to be
remedied any default in respect of such covenants or obligations and shall pay
or cause to be paid immediately each and every such amount, at the place, in the
funds and currency and in the manner required of the Customer in respect of the
said facilities and without any withholding or deduction whatsoever. The
Guarantors agree that no time for limitation of liability in respect of this
Guarantee shall begin to run in favour of the Guarantors unless and until the
Company have made demand on the Guarantors (or any of them). and if more than
one demand is made, then only from the date and to the extent of each demand
respectively.
3.03 The Guarantors hereby jointly and severally agree to pay interest, from
the date of demand until payment, on the Guaranteed Obligations (both before and
after judgement) at such rate and on such terms as may from time to time be
payable by the Customer in respect of the said facilities or would have been
payable by the Customer in respect thereof, but for the liquidation, winding-up
or other incapacity of the Customer, or any arrangement or composition with the
Customer's creditors or any proceedings in or analogous to bankruptcy,
liquidation or winding-up.
4. Any statement of account of the Customer signed as correct by any of the
Company's duly authorised officers shall (save in the case of manifest error) be
conclusive evidence as against the Guarantors of the amount owing by the
Customer to the Company in respect of the said facilities.
5. This Guarantee shall be a continuing security and shall remain in full
force and effect so long as any of the Guaranteed Obligations remain owing or
any of the Guaranteed Obligations remains to be performed by the Customer,
notwithstanding the death, bankruptcy, liquidation, winding-up, incapacity or
any change in the constitution of the Customer and/or the Guarantors (or any of
them), as the case may be, or the Company's receipt of notice of any such
occurrence or any settlement of account or other matter whatsoever.
6. This Guarantee shall be in addition to and shall not in any way be
prejudiced or affected by any other guarantee, indemnity, assurance, pledge,
lien, bill, note, mortgage, charge, debenture, security now or at any time
hereafter in force in respect of any moneys owing or any obligation to be
performed by the Customer in respect of the the Guaranteed Obligations and the
Company shall not be obliged to take any action, exercise any right or power or
claim any remedy now or hereafter available to the Company against the Customer
or against any other person in respect of any other documents executed by such
person and/or (as the case may be) the Guarantors (Or any of them) as security
for the obligations of the Customer before enforcing its rights against the
Guarantors under this Guarantee.
7.01 Should any purported obligation or liability of the Customer in respect
of the Guaranteed Obligations which, if valid or enforceable or continuing,
would be the subject of this Guarantee be or become wholly or in part invalid or
unenforceable or terminated against the Customer on any ground whatsoever,
including any defect in or insufficiency or want of powers of the Customer, or
irregular or improper purported exercise thereof, or breach or want of authority
by any person purporting to act on behalf of the Customer, or any legal
limitation, disability, mental or other incapacity, or any other fact or
circumstance, whether or not known to the Company., or if, for any other reason
whatsoever, the Customer is not or ceases to be legally liable to discharge any
of the Guaranteed Obligations, the Guarantors shall nevertheless be liable to
the Company in respect of that obligation or liability or purported obligation
or liability as if the same were wholly valid and enforceable and the Guarantors
were the principal debtors or obligors in respect thereof. The Company is not to
be concerned to see or enquire into the powers of the Customer or its officers,
employees or agents purporting to act on behalf of the Customer.
7.02 The Guarantors shall not be exonerated, nor shall this Guarantee be in
any way discharged or diminished or in any way affected by any act or omission
or any other circumstances which, but for this provision. might operate to
release or otherwise exonerate the Guarantors (or any of them) from the
Guarantors' obligations hereunder or any other person from his obligations to
the Company, including, without limitation, and whether or not known to the
Guarantors (or any of them)
(a) the existence of any defences, set-off or counterclaim which the
Customer may have;
(b) any time or indulgence or concession granted to, or composition
with the Customer, the Guarantors (or any of them) or any other
party to any other document executed in favour of, or indorsed or
assigned to the Company as security for the obligations of the
Customer in respect of the said facilities;
(c) the variation, compromise realisation or release of. or refusal or
neglect to perfect or enforce any guarantees, indemnities,
assurance, pledges, liens, bills, notes. mortgages. charges,
debentures, securities or any other rights, powers or remedies
against the Customer, the Guarantors (or any of them) or any other
party to any other document executed in favour of, or endorsed or
assigned to the Company as security for the obligations of the
Customer in respect of the said facilities;
(d) the renewal, waiver, variation, termination or increase of any
credit or facilities to, or the terms or conditions in respect of
any transaction with the Customer in any manner whatsoever;
(e) the making of any agreement with the Customer as to the
application of any loans, advances or other financial
accommodation
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made or granted to or to be made to or granted to or for the
account of the Customer or the making of any other agreement with
the Customer; or
(f) the compounding with, discharge. release or variation of the
liability of the Customer or the Guarantors (or any of them) or
any other person, or the concurrence in accepting or varying any
compromise, arrangement or settlement.
7.03 The Guarantors have not taken and until, all moneys, obligations and
liabilities due owing or incurred by the Customer in respect of the said
facilities shall have been paid or discharged in full, will not take any
security or lien from the Customer or the Guarantors (or any of them) in respect
of the granting of this Guarantee or for any liability or obligation whatsoever,
and the Company's entitlement against the Customer and the Guarantors (or any of
them) shall not be diminished by the existence of any such security or lien.
7.04 The Company may, at any time or times and notwithstanding the termination
of this Guarantee, continue any credit with the Customer or grant any additional
credit to the Customer, and no obligation or liability, actual or contingent, of
the Guarantors (or any of them) shall in any manner be reduced or affected by
any subsequent transaction with the Customer.
7.05 Any money received by virtue of or in connection with this Guarantee may
be placed to the credit of a separate or suspense account for so long as the
Company may determine with a view to preserving the rights of the Company to
prove for the whole of its claims against the Customer or any other person
liable, in the event of any proceedings in or analogous to bankruptcy,
liquidation, winding-up, insolvency, composition or arrangement.
7.06 The Guarantors hereby jointly and severally irrevocably waive any right
or power, which the Guarantors may have of appropriation in respect of any sum
paid by the Guarantors by virtue of or in connection with this Guarantee.
7.07 Until all the moneys, obligations and liabilities referred to in Clause 3
have been paid, discharged and satisfied in full (which expression shall not
include payment of a dividend in bankruptcy, liquidation or winding-up of less
than 100 percent), the Guarantors jointly and severally waive all rights of
subrogation and agree not to demand or accept repayment in whole or in part of
any moneys, obligations or liabilities now or hereafter due to the Guarantors
from the Customer, 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 Customer, or to claim any set-off or counterclaim against
the Customer or to claim to prove in competition with the Company in the
bankruptcy, liquidation or winding-up of, or have the benefit of any share in
any payment or composition from, the Customer, any co-guarantor or any other
person, or in any other guarantee or security now or hereafter held by the
Company.
7.08 Any release, discharge or settlement between the Company and the
Guarantors (Or any of them) shall be conditional upon no security, disposition
or payment to the Company by the Customer the Guarantors (or any of them) or any
other person in respect of the moneys hereby guaranteed being avoided or reduced
or repaid pursuant to any provisions or enactment relating to bankruptcy,
liquidation, winding-up, insolvency or circumstances analogous thereto and in
the event that the Company becomes liable to repay any moneys paid to the
Company hereunder or in respect of the said facilities or any other documents
executed as security for the obligations of the Customer on the grounds of
fraudulent preference or otherwise, the liability of the Guarantors (or any of
them) hereunder shall be computed as if such moneys had never been paid to the
Company and the Company shall be entitled to enforce this Guarantee and any
security held for the liability of the Guarantors (or any of them) hereunder
against the Guarantors (Or any of them) as if such release, discharge or
settlement had not occurred.
7.09 The Company shall be entitled to retain any security held by it in
respect of the liabilities of the Guarantors (or any of them) hereunder or the
liability of the Customer in respect of the said facility for a period of 9
months after the payment. discharge or satisfaction of all moneys payable to the
Company and all obligations to be performed in respect of the said facilities or
in the event of the commencement of bankruptcy, insolvency, winding-up of the
Customer or the bankruptcy or insolvency of the Guarantors (or any of them)
prior to the termination of such period of 9 months for such further period as
the Company may reasonably determine and to enforce such security subsequently
as if such release, discharge or settlement had not occurred.
8.01 Upon and after a default by the Customer, the Guarantors hereby agree
that the Company may, at anytime without notice, notwithstanding any settlement
of account or other matter whatsoever, combine or consolidate all or any of the
Guarantor's then existing accounts (of any nature or description whatsoever and
whether subject to notice or not), and set-off or transfer any sum standing to
the credit of any one or more such accounts wheresoever situate in or towards
satisfaction of any liabilities to the Company of the Guarantor under this
Guarantee or on any other account, or in any other respect whatsoever, whether
such liabilities be present or future, actual or contingent, primary or
collateral, and several or joint and where such combination, set-off or transfer
requires the conversion of one currency into another, such conversion shall be
calculated at the spot rate of exchange (as conclusively determined by the
Company) prevailing on the date of the combination, set-off or transfer, in such
foreign exchange market as the Company shall in its sole discretion select or in
the event of such market then being closed, prevailing on the immediately
preceding day such market was open.
8.02 Upon and after a default by the Customer, the Company is hereby
authorised to exercise a lien over all the property of the Guarantors (or any of
them) coming into its possession or control for any reason whatsoever, and
whether or not in the ordinary course of business, with power for the Company to
sell such property, if necessary, to satisfy any liabilities whatsoever of the
Guarantors (or any of them) to the Company hereunder.
9.01 If, for the purpose of obtaining judgement in any court in any country,
it becomes necessary under the laws of such country to convert into a currency
("the Judgement Currency") other than the currency in which the Guarantor's
obligations under or pursuant to this Guarantee are expressed to be payable
("the Agreed Currency") an amount due in the Agreed Currency under or pursuant
to this Guarantee, then the conversion shall be made, to the extent permitted by
applicable law, in the Company's sole and absolute discretion at the Rate of
Exchange (meaning the spot rate at which the Company is able, in accordance with
its usual practice, to purchase the Agreed Currency on the relevant date with
the Judgement Currency. including any premium and costs of exchange payable in
connection with such purchase) prevailing either on the date of default or on
the day before the day on which judgement is given ("the Conversion Date").
9.02 If there is a change in the Rate of Exchange prevailing between the
Conversion Date and the date of payment of the amount due, the
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Guarantors will pay such additional amounts (if any) as may be necessary to
ensure that the amount paid in the Judgement Currency, when converted at the
Rate of Exchange prevailing on the date of payment, will produce the amount then
due under this Guarantee in the Agreed Currency to the intent that the
obligations of the Guarantors to make payment in the Agreed Currency of any
amounts due to the Company hereunder shall not be discharged or satisfied by any
tender or any recovery pursuant to any judgement (whether or not made in
accordance with Clause 9.01 or otherwise) which is expressed in or converted
into any currency other than the Agreed Currency except to the extent that such
tender or recovery shall result in the actual receipt by the Company at the
place at which the Customer are required to pay the full amount of the Agreed
Currency expressed to be payable in respect of the amounts due hereunder. Any
amount due from the Guarantors (or any of them) under this Clause 9.02 shall be
due as a separate debt and shall not be affected by judgement being obtained for
any Other sum due under or in respect of this Guarantee.
10.01 No waiver of any of Company's rights or powers or any consent by the
Company shall be valid unless signed by the Company in writing.
10.02 Time is of the essence of this Guarantee, but no failure or delay by the
Company in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise preclude any other or
further exercise thereof or the exercise or enforcement of any other right,
power or privilege. The remedies provided herein are not intended to be
exclusive of any other remedy and each and every remedy shall be cumulative and
in addition to every other remedy given hereunder or now or hereafter existing
at law or in equity, by statute or otherwise.
11.01 The Guarantors shall not be entitled to any of the rights powers or
remedies, legal or equitable, of a surety as regards the indebtedness,
obligations or liabilities of any other of them until the Guaranteed Obligations
are paid in full.
11.02 Each of the Guarantors agrees and consents to be bound by this Guarantee,
notwithstanding that any others who were intended to sign or to be bound by this
Guarantee may not do so or be effectively bound hereby, and notwithstanding that
this Guarantee may be invalid or unenforceable against any one or more of the
undersigned, whether or not the deficiency is known to the Company.
11.03 The Company shall be at liberty to release anyone or more of the
Guarantors from this Guarantee, to compound with or otherwise vary or agree to
vary the liability of, or to grant time or other indulgence to, or make other
arrangements with, any one or more of the Guarantors, without prejudicing or
affecting the Company's rights, powers and remedies against the other
Guarantors,
12.01 This Guarantee shall be binding upon and ensure to the benefit of the
Guarantors and the Company, and the Company's successors and assigns, and the
personal representatives of the Guarantors provided that the Guarantors may not
assign, without the Company's prior written consent any of the Guarantors'
liabilities or obligations hereunder.
12.02 Any representations, warranties, undertakings and agreements on the part
of the Guarantors hereunder shall survive the making of any assignment by the
Company hereunder or under any other security documents held by the Company in
respect of the obligations of the Customer in respect of the said facilities,
the change in the name of the Company or its amalgamation with, or absorption by
any other corporation.
12.03 If any assignment by the Company is made hereunder or in respect of the
said facilities, the Company shall give prior notice in writing thereof,
including the name and address of the assignee, to the Guarantors (but failure
by the Company to do so, for any cause or reason whatsoever, shall not impair,
prejudice or otherwise affect any of the obligations of the Guarantors hereunder
or any of the Company's rights, remedies, powers or privileges hereunder).
1 3. In this Guarantee-
(a) the expression "this Guarantee" shall be construed as including
and extending to any separate or independent stipulation or
agreement herein contained and shall include any amendment hereto
which is expressly agreed by the Company;
(b) references to the Company shall include the Company's successors
in title and/or assigns;
(c) the expression "the Guarantor" and "the Guarantors" shall mean and
include every person liable hereunder, or any one or more of them,
and his/their respective personal representatives, and the
committee, receiver or other person lawfully acting on behalf of
every such person(s);
(d) the expression "person" shall include persons. firms, companies.
and any other incorporated or unincorporated body or association;
and
(e) words importing the plural shall include the singular.
14.01 Every notice, request, demand. certificate or other communication under
this Guarantee shall be in writing, but may be given or made by letter, telex,
telegram or cable.
14.02 Every notice, request, demand certificate or other communication shall be
sent, in the case of a letter, telegram or cable, to the Guarantors, at the
Guarantors' respective addresses given above, or such other address of which the
Guarantors may have previously given notice, and, in the case of a telex
message, to any telex number which is published as belonging to the Guarantors
or at the address given above, or such other address as aforesaid. Any notice
sent by telegram, cable or telex shall be confirmed by letter posted or
delivered as soon as practicable thereafter.
14.03 Every notice or demand shall except so far as otherwise expressly
provided by this Guarantee, be deemed to have been received in the case of a
cable, telegram or telex at the time of despatch thereof (provided that the date
of despatch is a banking day in Hong Kong) and, in the case of a letter, on
expiry of 72 hours after the same is put into the post.
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15. If any one or more of the provisions of this Guarantee, or any part
thereof, shall be declared or adjudged to be illegal, invalid or unenforceable
under any applicable law, such provision shall to the extent required by such
law be severed from this Guarantee and rendered ineffective so far as is
possible, without vitiating any of the other provisions of this Guarantee, which
shall remain in full force, validity and effect, where, however, the provisions
of any such applicable law may be waived, they are hereby waived to the full
extent permitted by such law to the end that this Guarantee shall be valid,
binding and enforceable in accordance with its terms.
16. This Guarantee and the rights and obligations of the parties hereunder
shall be governed in all respects by and be construed and interpreted in all
respects in accordance with the laws of Hong Kong.
17. The Guarantors hereby jointly and severally irrevocably agree that any
legal action or proceeding with respect to this Guarantee may be brought in the
Hong Kong courts or any other competent court as the Company may elect, and the
Guarantors hereby submit to the non-exclusive jurisdiction of such courts and
hereby irrevocably appoints the Customer at its registered office for the time
being as their agent to accept service of any proceedings in respect hereof.
Service of legal process on the Customer shall be deemed to constitute service
on the Guarantors.
IN WITNESS whereof this Guarantee has been duly executed by the
Guarantors the date first above written.
DETAILS OF GUARANTORS
<TABLE>
<CAPTION>
NAMES I/D NO. ADDRESSES
----- ------- ---------
<S> <C> <C>
SIGNED, SEALED and DELIVERED
By /s/ Newcourt Leasing Corporation
in the presence of:-
SIGNED, SEALED and DELIVERED
Mail.com, Inc
By /s/ Gerald Gorman
Gerald Gorman,
Chairman and CEO
in the presence of:-
/s/ Davis Ambrosia
David Ambrosia
EVP General Counsel and Secretary
SIGNED, SEALED and DELIVERED
by
in the presence of:-
</TABLE>
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SIGNED, SEALED and DELIVERED
by
In the presence of:-
SIGNED by
for and on behalf of
Limited
in the presence of:- ----------------------------
(Authorised Signatory)
