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Bank of China (Hong Kong) Co., Ltd. v. Hongye (Group) Co., Ltd. (Case of Dispute over Contract of Guarantee)
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中银香港公司诉宏业公司等担保合同纠纷案
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Bank of China (Hong Kong) Co., Ltd. v. Hongye (Group) Co., Ltd. (Case of Dispute over Contract of Guarantee)
(Case of Dispute over Contract of Guarantee)
中银香港公司诉宏业公司等担保合同纠纷案
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Bank of China (Hong Kong) Co., Ltd. v. Hongye (Group) Co., Ltd.
(Case of Dispute over Contract of Guarantee) | | 中银香港公司诉宏业公司等担保合同纠纷案 |
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【裁判摘要】 |
[Summary] | |
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| | 一、涉外合同的当事人选择解决合同争议所适用的法律，规避了我国的强制性或者禁止性法律规范的，其约定不发生法律效力。 |
1. If the applicablelaw chosen by parties to
a contract involving foreign elements for disputesunder the contract
evades Chinese mandatory or prohibitive laws andregulations, such
agreement has no legal effect. | |
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| | 二、对外担保合同未按规定在行政管理机关办理批准登记手续的，依法应认定无效。对于造成合同无效，主债权人及担保人均有过错，应各自承担相应的责任。 |
2. If a
cross-boarderguarantee contract has not completed ratification and
registration procedures withthe competent administrative organs
according to relevant provisions, thecontract shall be held invalid.
Where both the principal creditor and guarantorare contributory liable
for the void of the contract, they shall assume theirrespective
liabilities according to their fault. | |
中华人民共和国最高人民法院 |
Supreme People's Court | |
民事判决书 |
Final Civil Judgment | |
(2002)民四终字第6号 |
Final Judgment No. 6 [2002] of the Fourth Civil Tribunal | |
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BASIC FACTS | |
上诉人(原审被告)：汕头宏业(集团)股份有限公司。住所地：广东省汕头市天山路25号宏业大厦6楼。 |
Appellant (Defendant in the Original Trial): Shantou Hongye (Group) Co., Ltd., Address: 6th Floor of Hongye Office Building, No.25, Tianshan Road, Shantou, Guangdong Province. | |
法定代表人：桂真亮，该公司董事长。 |
Legal Representative: Gui Zhenliang, Chairman of the Board of the Company. | |
委托代理人：沈晓伟，北京市鼎铭律师事务所律师。 |
Entrusted agent: Shen Xiaowei, Attorney-at-law of Beijing Dingming Law Firm. | |
被上诉人(原审原告)：中国银行(香港)有限公司。住所地：香港特别行政区中环花园道一号中银大厦14楼。 |
Appellee (Plaintiff in the Original Trial): Bank of China (Hong Kong) Co., Ltd. Address: 14th Floor of Bank of China Tower, No.1, Zhonghuan Garden Road, Hong Kong Special Administrative Region. | |
代表人：和广北，该公司总裁。 |
Representative: He Guangbei, President of the Company. | |
委托代理人：张守志，北京市金杜律师事务所律师。 |
Entrusted agent: Zhang Shouzhi, Attorney-at-law of King & Wood Law Firm | |
委托代理人：钱尧志，北京市金杜律师事务所律师。 |
Entrusted agent: Qian Yaozhi, Attorney-at-law of King & Wood Law Firm | |
被上诉人(原审被告)：汕头经济特区新业发展有限公司。住所地：广东省汕头市衡山路锦龙大厦20楼。 |
Appellee (Defendant in the Original Trial): Xinye Development Co., Ltd. of Shantou Special Economic Zone. Address: 20th Floor of Jinlong Commercial Building, Hengshan Road, Shantou, Guangdong Province. | |
法定代表人：林肇旭，该公司董事长。 |
Legal Representative: Lin Zhaoxu, Chairman of the Board of the Company. | |
上诉人汕头宏业(集团)股份有限公司(以下简称宏业公司)因与被上诉人中国银行(香港)有限公司(以下简称中银香港公司)、汕头经济特区新业发展有限公司(以下简称新业公司)担保合同纠纷一案，不服广东省高级人民法院(2000)粤法经二初字第5号民事判决，向本院提起上诉。本院依法组成由审判员王玧担任审判长，代理审判员任雪峰、陈纪忠参加的合议庭，公开开庭审理了本案。新业公司无正当理由未到庭应诉。本案现已审理终结。 |
The appellant Shantou Hongye (Group) Co., Ltd. (hereinafter referred to as the Hongye Company) appealed to this Court against the appellee Bank of China (Hong Kong) Co., Ltd. (hereinafter referred to as “BOC Hong Kong”), Xinye Development Co., Ltd. of Shantou Special Economic Zone (hereinafter referred to as the Xinye Company) on the dispute over the contract of guarantee because it was dissatisfied with the Civil Judgment No.5 [2000] of the Second Economic Tribunal of the Higher People's Court of Guangdong Province. And this Court formed a collegiate bench according to law consisting of judge Wang Yun, who acted as the chief justice, and acting judges Ren Xuefeng and Chen Jizhong, and opened a court session to hear the case. Xinye Company did not appear in the court without justifiable reasons. This case had now terminated after trial. | |
原审法院查明：1997年11月28日新业公司致国华银行《不可撤销担保契约》：因贵行对达利丰集团有限公司(下称借款人)已作出或同意作出贷款、给予透支或其他银行授信，本公司／单位(下称担保人)现出具以贵行为受益人的无条件的及不可撤销担保契约，担保责任如下：1．保人保证借款人遵照有关贷款协议或其他协议包括任何有关内容之更改(下称协议)规定，按时还清借款本金、利息、费用及其他应付款项(下称欠款)。2．若借款人违反协议之任何条文，或在清还欠款上有所延误，担保人在收到贵行之有关书面通知七天内立即依协议规定之货币清还借款人所有欠款，并将该款电汇至贵行所指定的账户。担保人接受贵行书面证明借款人依据协议所欠贵行之数目为准确，不持异议。3．此担保契约乃担保借款人依协议清还贵行其于任何时间欠贵行之任何有关贷款、给予透支或其他银行授信款项及其最终所欠之款项，及有延续性效力，直至借款人欠贵行之一切欠款完全清还为止。惟担保人于此担保契约之责任将不超越港币31300万元正，及其利息和贵行因追收欠款引致之法律费用和其他费用。4．担保人保证在本担保契约项下的一切应付款项，将会全数清付，不会有任何抵销、扣减或预扣税款或任何性质之款项。若因法律规定或其他原因，担保人不得不在其应付款项预扣或扣减任何税项或其他款项时，担保人保证另付额外金额，以确保贵行实收金额与预扣或扣减前的应收金额相同。5．贵行可将此担保契约内收到之任何款项存于任何账户内或暂记账目内。6．不论协议或其他任何部分是否有效或能否实施，此担保契约是延续有效、不可撤销及不附带任何条件的，直至借款人完全清还所有欠款为止。7．此担保契约组成担保人对贵行的直接责任，不会因：(一)借款人或担保人或贵行人事变动、重组、合并、改组、改名、破产、清盘；(二)借款人超越借款权力；(三)借款与担保人或其他担保人之间之任何纠纷、争议或合约；(四)借款人或担保人与债权人重整债务；(五)借款人在协议下之责任不论其于任何理由而无效或不可履行或执行；(六)协议内容及／贷款、给予透支或其他银行授信内容之更改而受影响或导致其失效。贵行可将担保人作为主债务人，向其追付欠款。8．此担保契约责任不受贵行允准借款人对偿还欠款时间限制上的任何宽限及延期或其他任何之宽限、安排或妥协或贵行延缓行使在协议所拥有的权利而受影响。9．此担保契约与贵行现在或将来持有由借款人或任何人士交与贵行作为担保借款人所欠款项之抵押品或担保品无关，其效力不影响，亦不受任何其他担保契约或抵押品或担保品影响。10．贵行不需事先对借款人或任何其他担保人或任何抵押品或担保品采取任何行动，亦可追究担保人对贵行于此担保契约之责任。11．在所有的欠款全数清还或未得贵行书面同意前，担保人同意不会行使其从借款人处取得的代位权、抵销或反索偿的权力，亦不会行使担保人对借款人资产可行使的任何权力。12．关于担保人对贵行于此担保契约内责任，贵行于担保人在贵行任何户口之存款及存于贵行之任何证券、股票或其他物品抵押物可施行抵销权和留置权，不用事前通知。13．担保人确认，本担保契约的签署及履行是一项商业行为，担保人不具有基于担保人是国家或政府的成员机构或部门为理由的司法管辖、法律诉讼抵销、或对担保人财产的执行或其他法律索赔的豁免权，而担保人不会基于主权理由或其他理由，请求豁免或声称有权豁免任何法律行动或诉讼、或豁免任何法律管辖区对担保人资产的查封或关于担保人担保契约规定下的债务责任判决的执行，担保人并在此不可撤销地放弃这种豁免权。14．一切由贵行致担保人之通知书，若邮寄与下述之地址或担保人另行通知贵行之地址，将于五天后作为担保人收到，无论该通知书是否事后退回贵行。若以电传方式通知，则于发送之时，作为担保人收到。15．担保人特此保证及声明，担保人确有法律上的能力来签署本担保契约及履行其责任，并已获适当之授权及已办妥一切手续并已获得有关提供本担保契约所需之一切政府或其他部门／单位之批准及同意。16．担保人特此保证担保人在任何时候同意采取一切所需之行动或签署一切所需之文件以确保本担保契约在法律上之效力及约束力。17．若此担保契约超过一个担保人签署，担保人之责任将是共同与个别之责任，贵行可释放或不追究任何一个担保人之责任而不影响贵行于此担保契约内对其他担保人之任何权利。18．担保人之法定代表人、继承人、代理人及接管人均受本担保契约条文约束并需履行本担保契约责任。19．借款人之欠款清还后，贵行有权保留此担保契约六个月才取消或归还担保人，期间如借款人有破产／清盘行为，则贵行可继续保留此担保契约及有关之抵押直到贵行另行通知。20．香港法律为本担保契约之适用法律，同时，香港法庭对本担保契约项下一切争议拥有非专属管辖权。该函落款处签有见证人：林景乾(汕头中国银行职员)，并盖有新业公司的印章、签有时任新业公司副总经理林肇旭的姓名。 |
The court of original trial ascertained that: The Irrevocable Contract of Guarantee addressed to Guohua Bank by Xinye Company on November 28, 1997 specified that: because your bank has granted a loan or agreed to grant a loan, to grant overdraft or other bank credit facilities to Dalifeng Group Co., Ltd. (hereafter called as the Borrower), this Company/Entity (hereafter called as the Guarantor) hereby issues the unconditional and irrevocable Contract of Guarantee with your bank as beneficiary, and the guarantee liabilities are as follows: 1. The Guarantor shall ensure that the Borrower pay off the principals, interests and expenses of the loan, and other money payable (hereinafter referred to as the Money Owed) in accordance with the relevant loan agreement or other agreement, including the stipulations on the alteration of any relevant contents (hereafter called as the Agreement). 2. If the Borrower violates any term of the Agreement, or defers in repaying the Money Owed, the Guarantor shall, within seven days after receiving the relevant written notice of your bank, immediately pay off all the Money Owed of the Borrower in light of the currency as stipulated in the Agreement, and emit the money to the account designated by your bank. The Guarantor accepts the written proof of your bank for the accuracy of the amount of Money Owed to your bank according to the Agreement, and will not raise any objection. 3. This Contract of Guarantee is concluded for the purpose of ensuring that the Borrower pay off any of the relevant loans, overdrafts granted or other money under the bank credit facilities, as well as the money owed to your bank in the long run at any time according to the Agreement, and shall have the effect of continuity until all the Money Owed by the Borrower to your bank is completely paid off. The liabilities of the Guarantor under the Contract of Guarantee shall not exceed HKD 313,000,000 plus the interests and legal cost and other expenses brought about to your bank for demanding the payment of the Money Owed to your bank. 4. The Guarantor shall ensure that all the money payable under this Contract of Guarantee be paid off in full amount, and there is no setoff, deduction or withholding or money of any nature. If, due to any legal provisions or other reasons, the Guarantor has to withhold or deduct any tax item or other money in its money payable, it shall ensure the payment of additional amount of money so as to ensure that the amount actually received by your bank be the same as the amount receivable before it is withheld or deducted. 5. Your bank may deposit any money received under this Contract of Guarantee into any account or temporary account. 6. Whether this Agreement or any other part of it could take effect or be implemented, this Contract of Guarantee shall continue to be effective, irrevocable and unconditional until the Borrower pays off all the Money Owed. 7. This Contract of Guarantee constitutes the direct liability of the Guarantor to your bank, and shall not be affected or invalidated due to: (1) any change of personnel, reorganization, merger, restructure, change of name, bankruptcy or liquidation of the Borrower or Guarantor or your bank; (2) the exceeding of borrowing power by the Borrower; (3) any conflict, dispute or agreement between the Borrower and the Guarantor or other Guarantors; (4) readjustment of debts by the Borrower or the Guarantor with the Creditor; (5) the invalidation or impossibility of performance or enforcement of the Borrower's liabilities under this Agreement for any reason; or (6) alteration of the contents of the Agreement or the loan, overdraft granted or other contents of credit facilities of the bank. Your bank may regard the Guarantor as the main debtor, and demand it pay the Money Owed. 8. The liabilities under this Contract of Guarantee shall not be affected by any grace period or extension allowed by your bank to the Borrower with regard to repaying the Money Owed, or any other grace period, arrangement or compromise or the deferment of your bank in exercising the rights in the Agreement. 9. This Contract of Guarantee has nothing to do with the collateral or guaranty, which is or will be turned over to your bank at present or in the future by the Borrower or any person for guaranteeing the Money Owed by the Borrower, and its effect will not be affected, or affected by any other guaranty contract or collateral or guaranty, either. 10. Your bank may subject the Guarantor to undertake the liabilities to your bank under this Contract of Guarantee without taking any prior action on the Borrower or any other Guarantor or collateral or guaranty. 11. Before all the Money Owed is paid off in full amount or without the written consent of your bank, the Guarantor agrees not to exercise the rights of subrogation, setoff or counterclaim that it obtains from the Borrower, nor shall it exercise any right of the Guarantor to the assets of the Borrower. 12. For the liabilities of the Guarantor to your bank under this Contract of Guarantee, your bank may exercise the rights of setoff and lien on the deposit of the Guarantor in any account of your bank, and on any securities, stock or other articles of collateral deposited in your bank without prior notice to the Guarantor. 13.The Guarantor confirms that the conclusion and performance of this Contract of Guarantee is a business act, and the Guarantor is not immune from judicial jurisdiction, setoff through legal actions, or the enforcement on the Guarantor' property or other legal claims on the basis that the Guarantor is a member institution or department of any state or government, and the Guarantor shall not ask for immunity or claim that it has the right to be immune from any legal action or litigation, or immune from any seizure on the assets of the Guarantor in any legal jurisdiction or from the enforcement of the judgment on the liabilities of indebtedness of the Guarantor as stipulated in this Contract of Guarantee, and the Guarantor hereby gives up this kind of immunity irrevocably. 14. All the notices of your bank addressed to the Guarantor shall be deemed to have been received by the Guarantor five days later if your bank mails them to the following address or the address notified to your bank by the Guarantor additionally, whether the notices are returned to your bank or not afterwards. If your bank notifies the Guarantor by telex, the time when a notice is sent shall be the time of receiving by the Guarantor. 15. The Guarantor hereby guarantees and states that it does have the legal capability to sign this Contract of Guarantee and perform the liabilities thereof, and has been duly authorized and properly gone through all the formalities and obtained the approval and consent of all the governments or other departments/entities as are needed for providing this Contract of Guarantee. 16. The Guarantor hereby guarantees that it consents to take all the necessary actions at any time or signs all the necessary documents to ensure the legal effect and binding force of this Contract of Guarantee. 17. Should this Contract of Guarantee be signed by more than one Guarantor, the liabilities of the Guarantor shall be joint and several liabilities, and your bank may release or refuse to subject any one of the Guarantors to liabilities without affecting your bank's right on other guarantors under this Contract of Guarantee. 18. The legal representative, heir, agent and receiver of the Guarantor shall be bound by the terms of this Contract of Guarantee and shall fulfill the obligations thereof. 19. After the Money Owed by the Borrower is paid off, your bank shall have the right to keep this Contract of Guarantee for six months before rescinding it or returning it to the Guarantor. If the Borrower becomes insolvent or is under liquidation during this period, your bank may continue keeping this Contract of Guarantee and the relevant mortgages till another notice of your bank is made. 20. The applicable law of this Contract of Guarantee shall be the Hong Kong law, and the Hong Kong courts shall have non-exclusive jurisdiction over all the disputes under this Contract of Guarantee. The signature of the witness Lin Jingqian (employee of the Bank of China in Shantou) was herein affixed together with the seal of Xinye Company and the signature of the vice general manager of Xinye Company Lin Zhaoxu at that time. | |
1998年4月17日，宏业公司致国华银行《不可撤销担保契约》：因贵行对达利丰集团(下称借款人)已作出或同意作出贷款、给予透支或其他银行授信，本公司／单位(下称担保人)现出具以贵行为受益人的无条件的及不可撤销担保契约，担保责任如下：1．担保人保证借款人遵照有关贷款协议或其他协议包括任何有关内容之更改(下称协议)规定，按时还清借款本金、利息、费用及其他应付款项(下称欠款)。2．若借款人违反协议之任何条文，或在清还欠款上有所延误，担保人在收到贵行之有关书面通知七天内立即依协议规定之货币清还借款人所欠之所有欠款，并将该款电汇至贵行所指定的账户。担保人接受贵行书面证明借款人依据协议所欠贵行之数目为准确，不持异议。3．此担保契约乃担保借款人依协议清还贵行其于任何时间欠贵行之任何有关贷款、给予透支或其他银行授信款项及其最终所欠之款项，及有延续性效力，直至借款人欠贵行之一切欠款完全清还为止。惟担保人于此担保契约之责任将不超越港币31300万元正，及其利息和贵行因追收欠款引致之法律费用和其他费用。4．担保人保证在本担保契约项下的一切应付款项，将会全数清付，不会有任何抵销、扣减或预扣税款或任何性质之款项。若因法律规定或其他原因，担保人不得不在其应付款项预扣或扣减任何税项或其他款项时，担保人保证另付额外金额，以确保贵行实收金额与预扣或扣减前的应收金额相同。5．贵行可将此担保契约内收到之任何款项存于任何账户内或暂记账目内。6．不论协议或其他任何部分是否有效或能否实施，此担保契约是延续有效、不可撤销及不附带任何条件的，直至借款人完全清还所有欠款为止。7．此担保契约组成担保人对贵行的直接责任，不会因：(一)借款人或担保人或贵行人事变动、重组、合并、改组、改名、破产、清盘；(二)借款人超越借款权力；(三)借款与担保人或其他担保人之间之任何纠纷、争议或合约；(四)借款人或担保人与债权人重整债务；(五)借款人在协议下之责任不论其于任何理由而无效或不可履行或执行；(六)协议内容及／贷款、给予透支或其他银行授信内容之更改而受影响或导致其失效。贵行可将担保人作为主债务人，向其追付欠款。8．此担保契约责任不受贵行允准借款人对偿还欠款时间限制上的任何宽限及延期或其他任何之宽限、安排或妥协或贵行延缓行使在协议所拥有的权利而受影响。9．此担保契约与贵行现在或将来持有由借款人或任何人士交与贵行作为担保借款人所欠款项之抵押品或担保品无关，其效力不影响，亦不受任何其他担保契约或抵押品或担保品影响。10．贵行不需事先对借款人或任何其他担保人或任何抵押品或担保品采取任何行动，亦可追究担保人对贵行于此担保契约之责任。11．在所有的欠款全数清还或未得贵行书面同意前，担保人同意不会行使其从借款人处取得的代位权、抵销或反索偿的权力，亦不会行使担保人对借款人资产可行使的任何权力。12．关于担保人对贵行于此担保契约内责任，贵行于担保人在贵行任何户口之存款及存于贵行之任何证券、股票或其他物品抵押物可施行抵销权和留置权，不用事前通知。13．担保人确认，本担保契约的签署及履行是一项商业行为，担保人不具有基于担保人是国家或政府的成员机构或部门为理由的司法管辖、法律诉讼抵销、或对担保人财产的执行或其他法律索赔的豁免权，而担保人不会基于主权理由或其他理由，请求豁免或声称有权豁免任何法律行动或诉讼、或豁免任何法律管辖区对担保人资产的查封或关于担保人担保契约规定下的债务责任判决的执行，担保人并在此不可撤销地放弃这种豁免权。14．一切由贵行致担保人之通知书，若邮寄与下述之地址或担保人另行通知贵行之地址，将于五天后作为担保人收到，无论该通知书是否事后退回贵行。若以电传方式通知，则于发送之时，作为担保人收到。15．担保人持此保证及声明，担保人确有法律上的能力来签署本担保契约及履行其责任，并已获适当之授权及已办妥一切手续并已获得有关提供本担保契约所需之一切政府或其他部门／单位之批准及同意。16．担保人特此保证担保人在任何时候同意采取一切所需之行动或签署一切所需之文件以确保本担保契约在法律上之效力及约束力。17．若此担保契约超过一个担保人签署，担保人之责任将是共同与个别之责任，贵行可释放或不追究任何一个担保人之责任而不影响贵行于此担保契约内对其他担保人之任何权利。18．担保人之法定代表人、继承人、代理人及接管人均受本担保契约条文约束并需履行本担保契约责任。19．借款人之欠款清还后，贵行有权保留此担保契约六个月才取消或归还担保人，期间如借款人有破产／清盘行为，则贵行可继续保留此担保契约及有关之抵押直到贵行另行通知。20．香港法律为本担保契约之适用法律，同时，香港法庭对本担保契约项下一切争议拥有非专属管辖权。该函落款处签有见证人姓名林景乾，其上盖有宏业公司的印章及其当时法定代表人蔡承通的私章。 |
On April, 17, 1998, the Irrevocable Contract of Guarantee addressed to Guohua Bank by Hongye Company specified that: because your bank has granted a loan or agreed to grant a loan, granted overdraft or other bank credit facilities to Dalifeng Group Co., Ltd. (hereafter called as the Borrower), this Company/Entity (hereafter called as the Guarantor) hereby issues the unconditional and irrevocable Contract of Guarantee with your bank as the beneficiary, and the liabilities of guarantee are as follows: 1. The Guarantor shall ensure the Borrower to pay off the principals, interests and expenses of the loan, and other money payable (hereinafter referred to as the Money Owed) in accordance with the relevant loan agreement or other agreement including the stipulations on the alteration of any relevant contents (hereafter called as the Agreement). 2. If the Borrower violates any term of the Agreement, or defers in repaying the Money Owed, the Guarantor shall, within seven days after receiving the relevant written notice of your bank, immediately pay off all the Money Owed of the Borrower in light of the currency as stipulated in the Agreement, and emit the money to the account designated by your bank. The Guarantor accepts the written proof of your bank for the accuracy of the amount of Money Owed to your bank according to the Agreement, and will not raise any objection. 3. This Contract of Guarantee is concluded for the purpose of ensuring that the Borrower pay off any of the relevant loans, overdrafts granted or other money under the bank credit facilities, as well as the money owed to your bank in the long run at any time according to the Agreement, and shall have the effect of continuity, until all the Money Owed by the Borrower to your bank is completely paid off. The liabilities of the Guarantor under this Contract of Guarantee shall not exceed HKD 313,000,000, plus the interests and the legal cost and other expenses brought about to your bank for demanding the payment of the Money Owed to your bank. 4. The Guarantor shall ensure that all the money payable under this Contract of Guarantee shall be paid off in full amount, and there is no setoff, deduction or withholding or money of any nature. If, due to any legal provisions or other reasons, the Guarantor has to withhold or deduct any tax item or other money in its money payable, it shall ensure the payment of additional amount of money so as to ensure that the amount actually received by your bank be the same as the amount receivable before it is withheld or deducted. 5. Your bank may deposit any money received under this Contract of Guarantee into any account or temporary account. 6. Whether this Agreement or any other part of it could take effect or be implemented, this Contract of Guarantee shall continue to be effective, irrevocable and unconditional until the Borrower pays off all the Money Owed. 7. This Contract of Guarantee constitutes the direct liability of the Guarantor to your bank, and shall not be affected or invalidated due to: (1) any change of personnel, reorganization, merger, restructure, change of name, bankruptcy or liquidation of the Borrower or Guarantor or your bank; (2) the exceeding of borrowing power by the Borrower; (3) any conflict, dispute or agreement between the Borrower and the Guarantor or other Guarantors; (4) readjustment of debts by the Borrower or the Guarantor with the Creditor; (5) the invalidation or impossibility of performance or enforcement of the Borrower's liabilities under this Agreement for any reason; or (6) alteration of the contents of the Agreement or the loan, overdraft granted or other contents of credit facilities of the bank. Your bank may regard the Guarantor as the main debtor, and demand it pay the Money Owed. 8. The liabilities under this Contract of Guarantee shall not be affected by any grace period or extension allowed by your bank to the Borrower with regard to repaying the Money Owed, or any other grace period, arrangement or compromise or the deferment of your bank in exercising the rights in the Agreement. 9. This Contract of Guarantee has nothing to do with the collateral or guaranty, which is or will be turned over to your bank at present or in the future by the Borrower or any person for guaranteeing the Money Owed by the Borrower, and its effect will not be affected, or affected by any other guaranty contract or collateral or guaranty, either. 10. Your bank may subject the Guarantor to undertake the liabilities to your bank under this Contract of Guarantee without taking any prior action on the Borrower or any other Guarantor or collateral or guaranty. 11. Before all the Money Owed is paid off in full amount or without the written consent of your bank, the Guarantor agrees not to exercise the rights of subrogation, setoff or counterclaim that it obtains from the Borrower, nor shall it exercise any right of the Guarantor to the assets of the Borrower. 12. For the liabilities of the Guarantor to your bank under this Contract of Guarantee, your bank may exercise the rights of setoff and lien on the deposit of the Guarantor in any account of your bank, and on any securities, stock or other articles of collateral deposited in your bank without prior notice to the Guarantor. 13.The Guarantor confirms that, the conclusion and performance of this Contract of Guarantee is a business act, and the Guarantor is not immune from judicial jurisdiction, setoff through legal actions, or the enforcement on the Guarantor' property or other legal claims on the basis that the Guarantor is a member institution or department of any state or government, and the Guarantor shall not ask for immunity or claim that it has the right to be immune from any legal action or litigation, or immune from any seizure on the assets of the Guarantor in any legal jurisdiction or from the enforcement of the judgment on the liabilities of indebtedness of the Guarantor as stipulated in this Contract of Guarantee, and the Guarantor hereby gives up this kind of immunity irrevocably. 14. All the notices of your bank addressed to the Guarantor shall be deemed to have been received by the Guarantor five days later if your bank mails them to the following address or the address notified to your bank by the Guarantor additionally, whether the notices are returned to your bank afterwards. If your bank notifies the Guarantor by telex, the time when a notice is sent shall be the time of receiving by the Guarantor. 15. The Guarantor hereby guarantees and states that it does have the legal capability to sign this Contract of Guarantee and assumes the liabilities thereof, and has been duly authorized and properly gone through all the formalities and obtained the approval and consent of all the governments or other departments/entities as are needed for providing this Contract of Guarantee. 16. The Guarantor hereby guarantees that it consents to take all the necessary actions at any time or signs all the necessary documents to ensure the legal effect and binding force of this Contract of Guarantee. 17. Should this Contract of Guarantee be signed by more than one Guarantor, the liabilities of the Guarantor shall be joint and several liabilities, and your bank may release or refuse to subject any one of the Guarantors to liabilities without affecting your bank's right on other guarantors under this Contract of Guarantee. 18. The legal representative, heir, agent and receiver of the Guarantor shall be bound by the terms of this Contract of Guarantee and shall fulfill the obligations thereof. 19. After the Money Owed by the Borrower is paid off, your bank shall have the right to keep this Contract of Guarantee for six months before rescinding it or returning it to the Guarantor. If the Borrower becomes insolvent or is under liquidation during this period, your bank may continue keeping this Contract of Guarantee and the relevant mortgages till another notice of your bank is made. 20. The applicable law of this Contract of Guarantee shall be the Hong Kong law, and the Hong Kong courts shall have non-exclusive jurisdiction over all the disputes under this Contract of Guarantee. The signature of the witness Lin Jingqian was herein affixed together with the seal of Hongye Company and the private seal of the legal representative of Xinye Company Cai Chengtong at that time. | |
1998年9月2日，国华银行向达利丰集团发出档号P／113／98HKL《一般授信函》，内容如下： |
On September 2nd, 1998, Guohua Bank issued File No.P/113/98HKL Letter of General Credit Facility to Dalifeng Group, and the contents of which were as follows: | |
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| | 1．授信的分配 |
| 1. Distribution of the Credit Facility | |
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| | 1．1 授信经由以下方法提供：(1)透支额度不超过港币200万元。透支年息率为本行不时所订定的港元最优惠利率[最优惠利率)订定的香港银行同业拆息隔夜利率加1％，以较高者为准(不论在判决前或后)，现时此透支额度的年息率为11％，但此息率可不时浮动；(2)透支额度为不超过港币2600万元。透支年息率为本行不时所订定的港元最优惠利率[最优惠利率]或本行订定的香港银行同业拆息隔夜利率加2％，以较高者为准(不论在判决前或后)，现时此透支额度的年息率为12％，但此息率可不时浮动；(3)开出信用证和入口押汇额度，不超过港币1．6亿元(其中包括天数为120天的信托提货，存于我行不少于港币7200万元的出口信用证获得不超过港币1．35亿元的信托提货)；(4)出口信用证项下担保议付额度不超过港币1．2亿元；(5)打包放款额度不超过港币4000万元和／寄存在我行的出口信用证价值的70％，两者选较少者和不超过90天或信用证到期日，以较早者为佳；(6)主信用证背对背开出信用证和进口押汇额度，不超过港币4000万元，该项贷款额度只适用于“直接装运”的情况；(7)按揭贷款港币3095万元，条件参阅我行发出日期为1997年1月7日档案号0039／C／97HKL的信函；(8)按揭贷款港币357万元，条件参阅我行发出日期为1996年10月11日档案号2114／C／96HKL的信函。 |
| 1.1 The credit facility shall be provided by the following methods: (1) The maximum amount of overdraft shall not exceed HKD 2 million. The annual interest rate of the overdraft shall be the most favorable interest rate of Hong Kong Dollar (most favorable interest rate) set down by this bank at any time or the overnight interest rate of Hong Kong Inter-Bank Offered Rate plus 1% set down by this bank, whichever is higher (whether it is before or after the judgment), and the annual interest rate of the present amount of overdraft shall be 11%, but this interest rate may be floated at any time; (2) The amount of overdraft shall not exceed HKD 26 million. The annual interest rate of the overdraft shall be the most favorable interest rate of Hong Kong Dollar (most favorable interest rate) set down by this bank at any time or the overnight interest rate of Hong Kong Inter-Bank Offered Rate plus 2% set down by this bank, whichever is higher (whether it is before or after the judgment), and the annual interest rate of the present amount of overdraft shall be 12%, but this interest rate may be floated at any time; (3) The opening of the letter of credit and the amount of inward documentary bill shall not exceed HKD 160 million (of which the delivery under trust for 120 days shall be included, and the delivery under trust not exceeding HKD 135 million shall be obtained for the export letter of credit of not less than HKD72 million kept in this bank); (4) The negotiated amount of guarantee under the export letter of credit shall not exceed HKD120 million; (5) The package loans extended shall not exceed HKD40 million and/or 70% of the value of the export letter of credit that is kept in this bank, whichever is less and the expiry of the letter of credit shall not exceed 90 days, the earlier the better; (6) The back-to-back letter of credit of the principal letter of credit and the amount of inward documentary bill shall not exceed HKD 40 million, and the amount of this loan shall be applicable only to the “direct shipment”; (7) The mortgage loan shall be HKD 30.95 million, for the conditions, please refer to the Letter of File No. 0039/C/97HKL issued by this bank on January 7, 1997; and (8) The mortgage loan shall be HKD 3.57 million, for the terms and conditions, please refer to the Letter of File No. 2114/C/96HKL issued by this bank on October 11, 1996. | |
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| | 1．2 本行保留绝对酌情权决定接受或拒绝阁下使用上述任何授信的申请。 |
| 1.2 This bank shall keep the absolute discretion in determining to accept or refuse your application for the use of any of the aforesaid credit facilities. | |
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| | 1．3 当本行就有关的授信付款或招致责任时，上述的授信将自动地被视为由阁下提取及或由本行贷出。 |
| 1.3 In case this bank makes payment or incurs any liability on the relevant credit facilities, the aforesaid credit facilities shall be regarded automatically as being drawn by you or extended by this bank. | |
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| | 1．4 在不影响下文所述条款3的情况下，本行保留在任何时候按本行的独有及绝对酌情权重新分配各种银行授信的权利。 |
| 1.4 Under the circumstance of not affecting clause 3 as mentioned below, this bank shall keep its right to redistribute the various bank credit facilities at any time according to its exclusive and absolute discretion right. | |
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| | 2．利率及计算方法。 |
| 2. Interest Rate and Method of Calculation | |
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| | 2．1 就授信项下所贷出／提取所有款额，本行将收取利息、佣金及／其他本函指定之收费，或按任何本行不时公布之任何费率表中指定之标准收费率(无论于裁决之前或之后)收费。 |
| 2.1 For all the loans extended or money drawn under the credit facilities, this bank shall collect interests, commissions and/or other charges as designated in this Letter, or collect fees in light of any standard charging rate (whether it is before or after the ruling) as designated in any of the rate scale as announced by this bank from time to time. | |
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| | 2．2 利息将以实际天数计算，港元贷款以全年365天计算，美元贷款以全年360天计算，其他货币则根据市场习惯计算。 |
| 2.2 The interest rate shall be calculated by the actual number of days, and the Hong Kong Dollar loans shall be calculated by 365 days of a whole year, and the US dollar loans shall be calculated by 360 days as a whole year, and other currency loans shall be calculated according to market practices. | |
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| | 2．3 所有累算利息须按本行根据市场习惯所指定之日期支付，如未能按此规定支付，则该利息将转化为本金并衍生利息。 |
| 2.3 All the accumulated interests shall be paid at the date designated by this bank on the basis of market practices, if any accumulated interest fails to be paid according to the said provisions, the interest shall be changed into principal for generating interests. | |
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| | 2．4 本行有权就任何超逾约定额度或逾期未付之款项收取超额／逾期利息。除本行与阁下不时或在任何时候另有协议外，该等款项支付利息，年息率为本行不时所订定的最优惠资金成本加10％，以较高者为准(不论在判决前或后)，利息从欠缴之日起计算，直至欠款实际全数清缴为止，惟本行可于事前通知阁下的情况下更改逾期利息的计算基准。 |
| 2.4 This bank shall have the right to collect excess or overdue interests for any money that exceeds the stipulated amount or the unpaid money exceeding the prescribed time limit. Unless there is otherwise any agreement between this bank and you from time to time or at any time, for the payment of interests to such sum of money, the annual interest rate shall be the most preferential capital cost set down by this bank from time to time plus 10%, whichever is higher (whether it is before or after the judgment), the interests shall be calculated from the day of owing the payment until the Money Owed is actually paid off in full amount, only this bank may change the basis for calculating the overdue interest with prior notice to you. | |
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| | 3．授信的届满期。本行将定期对阁下之授信进行检讨。当本行向阁下发出授信终止通知函时，所有授信将立即终止。本行现时向阁下提供授信直至发出该授信终止通知函为止。尽管本函另有其他规定，本行保留独有绝对的酌情权于任何时候增加、减少及取消授信或其他任何部分，而此改变将在本行通知阁下当日即时生效。 |
| 3. Expiry of the Credit Facility. This bank shall make reports on your credit facility periodically. When this bank issues a notice on terminating the credit facility to you, all the credit facilities shall be terminated at once. This bank hereby provides the credit facility to you till the issuance of the letter of notice on terminating the credit facility. Although there are other provisions in this Letter, this bank shall keep its exclusive and absolute discretion to increase, reduce and cancel the credit facility or any part of it at any time, and such a change shall take effect instantly on the day when this bank notifies you. | |
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| | 4．还款。 |
| 4. Repayment | |
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| | 4．1 本行有要求阁下立即清还所有授信及其累算利息之凌驾性权利。 |
| 4.1 This bank shall have the overriding right to request you to pay off all the credit facilities and the accumulated interests thereof immediately. | |
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| | 4．2 阁下支付予本行之所有款项须以授信下由本行支付或招致的款项或债务之原货币作依据，并须以即时可供动用之资金偿还，并不存在抵销或反索偿及不会因为任何及所有现时或未来的税项、关税或其他收费而被扣减或予扣。 |
| 4.2 All the money you pay to this bank shall be based on the sum of money paid or incurred by this bank under the credit facility or the original currency of the indebtedness, and shall be repaid by the capital which may be used at any time, and there is no setoff or counterclaim and the money shall not be deducted or withheld due to any or all the tax items, customs duties or other charges at present or in the future. | |
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| | 4．3 如有任何款项并非以正确的货币支付，本行可享有绝对酌情权决定将该等款项以本行不可推翻地订定的即期汇率把该货币兑换成正确的货币，以偿还阁下以该货币为单位所欠之债务及责任。 |
| 4.3 If any money is not paid in the correct currency, this bank shall have the absolute discretion to change the currency of the sum of money into the correct currency according to the real-time exchange rate set down by this bank that cannot by overridden, so as to repay the indebtedness and liabilities you owed with such currency as a unit. | |
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| | 4．4 在阁下付款时或其后任何时间，为解除阁下对本行之任何部分之债务(该等部分由本行认为适当而定)，本行有独有及绝对权利划拨阁下支付予本行或令本行拥有或控制之任何款项。任何该等划拨将凌驾于任何阁下宣称之划拨。 |
| 4.4 At the time when you make payment or at any other time after such payment, in order to discharge any part of your indebtedness (this part of indebtedness shall be determined as appropriate by this bank) to this bank, this bank shall have the exclusive and absolute right to allocate any money you have paid to this bank or any money this bank owns or controlls. Any of such allocation shall be superior to any allocation you claim. | |
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| | 5．手续费：阁下须于接纳本函时支付港币5000元之手续费(该手续费于任何情况将不会退回)及此后每年在授信续期时，支付3000元或本行与阁下同意之其他金额。 |
| 5. Commissions: You shall pay HKD 5,000 as a commission (this commission shall not be refunded under any circumstance) when you receive this Letter and at the time when extending the credit facility each year afterwards, you shall pay HKD 3,000 or other amount as agreed upon between this bank and you. | |
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| | 6．抵押品及文件：当本行收到下列文件，及其他本行不时要求的文件，并确定这些文件的格式和内容均符合后便会向阁下提供授信：(1)由陈少英、方润平和林肇旭妥为签立之担保契据，该担保契据乃关于偿还不少于港币39652万元之本金及当中累算之利息及逾期利息以及在该担保契据所述的其他费用及开支；(2)一份由宏业公司和新业公司妥为签立之担保契据，该契据乃关于偿还不少于港币31300万元之本金及当中累算之利息及逾期利息以及在该担保契据所述的其他费用开支，连同有关董事会决议案。(3)一份妥为签立以本行为受益人之抵销及存款抵押契据、赔偿保证、存款抵押及抵销契据及存款转让契据，并以不少于港币4900万元的存款作为第一固定抵押，连同有关董事会决议案(如适用)；(4)下列物业之法定押记／衡平法上的按揭，物业的业权已由本行委托的律师查证：A．香港港湾道1号会议展览中心写字楼18楼3室；B．九龙黄埔花园12期第3座6楼D室。Ⅰ．物业须在一家本行接纳的保险公司购买火险，投保的金额为授信金额或其他本行认为适当的金额；Ⅱ．有关保单须过户本行，并连同保费收据交本行收执；及Ⅲ．本行有权(但非其责任)代阁下购买上述保险，所有保险费、估价费(如有的话)及开支须由阁下承担，而本行有权在无须向阁下提述的情况下从阁下的账户扣除该等费用。 |
| 6. Collaterals and Documents: When this bank receives the following documents and other documents as required by this bank from time to time, and determines that both the formats and contents of these documents conform to each other, it will provide the following credit facilities to you: (1) The deed of guarantee signed properly by Chen Shaoying, Fang Runping and Lin Zhaoxu, which is for the purpose of repaying the principal of less than HKD396.52 million and the accumulated interests thereof, the overdue interests and other expenses and outlays as stipulated in this deed of guarantee; (2) A deed of guarantee signed properly by Hongye Company and Xinye Company, which is for the purpose of repaying the principal of less than HKD 313 million and the accumulated interests thereof, the overdue interests and other expenses and outlays as stipulated in this deed of guarantee, along with the resolutions of the board of directors. (3) A mortgage deed for setoff and deposit, warranty of indemnity, deposit mortgage and setoff deed, and deed of deposit transfer which are properly signed with this bank as the beneficiary, and the deposit of no less than HKD 49 million shall be taken as the first fixed mortgage, along with the relevant resolutions of the board of directors (if applicable); (4) With regard to the legal mortgage/mortgage in equity of the following realties, the ownerships of the realties have been investigated and proved by the attorneys-at-law entrusted by this bank: ①Room 3, 18th Floor of the Office Building of the Convention and Exhibition Center, No.1 Harbor Road of Hong Kong; ②Room D, 6th Floor of Building No. 3 in the Phase 12 Project of Whampoo Garden, Kowloon. I. The realty owner shall purchase fire insurance in one of the insurance companies accepted by this bank, the amount of insurance shall be the amount of credit facility or other amount as believed appropriate by this bank; II. The relevant insurance policies shall be transferred to this bank and turned in to this bank for receipt along with the receipt of the insurance premium; and III. This bank shall have the right (but not its obligation) to purchase the aforesaid insurance as your agent, all the insurance premiums, evaluation fees (if any) and outlays shall be borne by you, and this bank shall have the right to deduct the said expenses from your account without prior notice to you. | |
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| | 7．不可推翻的账目：任何与授信有关的账目报表，倘由本行任何一位职员签署证明为正确的，均为阁下对本行的负债之终局证明，并对阁下具有约束力(有明显的错误除外)。 |
| 7. Irrevocable Accounts: if any account statement relating to the credit facility is proved to be correct with the signature of any of employees of this bank, it shall be the final proof of your liabilities to this bank, and shall have the binding force on you (unless there is otherwise obvious mistake in it). | |
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| | 8．进一步的约定：所有有关本函之签立及履行，所必需的公司决议案已由阁下股东、董事和授权职员根据香港法律、阁下注册地之法律、阁下组织章程大纲及组织细则正式通过。本函对阁下构成合法，有效且具有约束力的责任。 |
| 8. Further Agreement: All the necessary resolutions of the company relating to the conclusion and performance of this Letter have been adopted officially by your shareholders, directors and authorized employees in accordance with Hong Kong law, the law at your place of registration, and your articles of associations and bylaws. This Letter shall constitute a legal and effective liability that has binding force on you. | |
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| | 9．放弃及累加权利：本行延缓行使或不行使本函之任何权利、权力、特权或补救方法，亦不会损害或被视为放弃该等权利、权力、特权或补救方法。单一或部分行使任何该等权利、权力、特权或补救方法不会妨碍本行任何进一步行使该等权利、权力、特权或补救方法。本函所赋予之权利、权力、特权或补救方法乃累加的，并不排除法律所规定之任何权利、权力、特权或补救方法。 |
| 9. Waiver and Accumulated Rights: The deferment in exercising or not exercising any right or power, franchising right or redress under this Letter by this bank will not damage or be regarded as to waive such right, power, franchising right or redress. The exercising of any such right, power, franchising right or redress singly or partly shall not obstruct this bank from further exercising such right, power, franchising right or redress. The right, power, franchising right or redress conferred by this Letter is accumulated without excluding any right, power, franchising right or redress as prescribed by law. | |
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| | 10．扣账之授权：本行有权于任何时间及不时(在无须通知阁下的情况下)从阁下之任何账户扣除所有或任何利息、费用、收费、佣金、支出、开支及其他阁下于此授信到期应付之款项。该等款项将被视为由阁下从账户中妥为提取或透支。 |
| 10. Authorization for the Account Deduction: This bank shall have the right to deduct from any of your accounts at any time or from time to time (without prior notice to you) all or any of the interests, fees, charges, commissions, expenditures, outlays and other money payable by you at the time when this credit facility is due. Such money shall be regarded as being properly drawn or overdrawn by you from the account. | |
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| | 11．费用：所有费用将由阁下以全额赔偿基准承担。 |
| 11. Expenses: All the expenses shall be borne by you on the basis of the full amount of indemnity. | |
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| | 12．适用法律：香港特别行政区的法律。 |
| 12. The Applicable Law shall be the law of the Hong Kong Special Administrative Region (hereafter called as Hong Kong SAR). | |
由陈建深在会议主席栏签名、刘权辉在董事栏签名，并附新业公司董事陈建深、刘权辉、陈少娜、陈建宏、陈树波、邱雪婉、陈玉花签名并加盖新业公司公章的新业公司《董事会会议决议》记载：新业公司董事会于1997年11月28日在汕头市衡山路锦龙大厦20楼召开。本公司所有董事接获召开会议的通知，会议通知的发出符合本公司章程的规定；会议的召开已符合通知的要求。根据本公司章程的规定，全体董事出席了会议。会议由董事长主持，下列为该次会议记录：(一)会议听取了关于达利丰集团(借款人)已向国华银行(贷款人)取用不少于39583万港元的银行授信(该授信)一事；(二)应借款人要求，作为保证借款人会偿还该授信条件之一，本公司须签署一份“不可撤销担保契约”，向贷款人担保借款人不时欠贷款人的所有款项，唯其于“不可撤销担保契约”项下的最高责任为31300万港元及其利息和有关费用。(三)本公司的公司章程均准许本公司进行上述交易；(四)若任何董事／股东与上述交易有直接或间接的利益关系的，有关董事／股东均已就此向董事会作出声明及表白其利益关系的详细情况及性质。所有本公司董事／股东于有关交易中有直接或间接利益关系，董事会已充分了解并确认。(五)董事会为此认真研究了上述事宜及有关文件。经过认真讨论，全体出席董事一致同意通过以下决议： |
It was recorded in the Resolutions of the Board of Directors of Xinye Company, which bears the signature of Chen Jianshen in the column of the chairman of the meeting, the signature of Liu Quanhui in the column of directors, and the signatures of the directors Chen Jianshen, Liu Quanhui, Chen Shaona, Chen Jianhong, Chen Shubo, Qiu Xuewan, and Chen Yuhua and the seal of Xinye Company that: The meeting of the Board of Directors of Xinye Company was convened on November 28, 1997 on the 20th Floor of Jinlong Building, Hengshan Road, Shantou. All the directors of this Company had received the notice on the convening of the meeting, and the circulation of the notice on the meeting complied with the stipulations of the articles of association of this Company; and the convening of the meeting complied with the requirements of the notice. According to the stipulations of the articles of association of this Company, all the directors attended the meeting. The meeting was presided over by the chairman of the Board, and the minutes of the meeting were as follows: (1) The matter that Dalifeng Group (the Borrower) has obtained the bank credit facility of HKD 395.83 million from Guohua Bank (the Lender) is discussed in the meeting; (2) Upon the request of the Borrower, and as one of the conditions that ensures the Borrower to repay the credit facility, this Company shall sign an “Irrevocable Contract of Guarantee” to offer guarantee to the Lender that the Borrower would pay all the money owed from time to time to the Lender, and the maximum liability under the “Irrevocable Contract of Guarantee” shall be HKD 313 million and the interests thereof and the relevant expenses. (3) This Company is allowed to carry out the aforesaid transactions according to the articles of association of this Company; (4) Should any director or shareholder have any direct or indirect interest relationship with the aforesaid transactions, the relevant directors or shareholders should have made statements and disclosed to the Board of Directors the detailed information and nature of their interest relationship. For all the directors or shareholders of this Company who have direct or indirect interest relationship with the relevant transactions, the Board of Directors has been fully aware of them and confirmed them. (5) The Board of Directors has carefully studied the aforesaid matters concerned and the relevant documents thereof. After careful discussion, the following resolutions were adopted by all the directors present upon consensus: | |
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| | 1．本公司同意向国华银行提供叁亿壹仟叁佰万港元及其利息和有关费用的担保，保证达利丰集团履行其与国华银行之任何贷款协议；
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