EXHIBIT 10.1
Dated August17, 2009
between
Guangzhou Termbray Electronics
Technology Co., Ltd
as Borrower
and
China Construction Bank Guangzhou
Economic and Technological
Development District
Branch
as Lender
CREDIT FACILITY CONTRACT
This Credit
Facility Contract (the “ Contract ”) is
entered into
BY AND
BETWEEN
Guangzhou
Termbray Electronics Technology Co., Ltd, located at 888 Jiu Fu West Road, Jiu Long Town,
Luo Gang District, Guangzhou P.R.C. 510555 with Mr. Daniel J. Weber
as its legal representative (or principal officer) and its fax
number 020-8781-1571 and its telephone number 020-8749-0139
(“ Party A ”);
CHINA
CONSTRUCTION BANK Guangzhou Economic and Technological Development
District BRANCH , located at 302 Zhi Cheng Ave. Guangzhou
Economic and Technological Development District, Guangzhou P.R.C.
510730 with Mr. Qili Li as its principal officer and its fax number
being 020-822-1427 and its telephone number being 020-8222-427
(“ Party B ”).
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Party A wishes
to apply to Party B for credit facilities, and Party B agrees to
grant to Party A such credit facilities.
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NOW THEREFORE
upon consultation in accordance with applicable laws and
regulations, both parties hereto agree as follows:
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Party B shall
provide to Party A a credit facility in an amount up to RMB
200,000,000 (the “ Credit Facility
”).
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The Credit
Facility referred hereto is the maximum available principal amount
of the RMB loans that may be granted by Party B to Party A at any
specific time within the Availability Period. Party A
may utilize the Credit Facility within the Availability Period on a
revolving basis. Regardless of the number of drawdowns
and the amount of each loan, Party A may make consecutive
applications for loans as long as the total amount of the unpaid
principal hereunder does not exceed the Credit Facility; provided,
however, that the aggregate of the loan amount Party A is applying
for and the loan amount that remains unpaid by Party A hereunder
may not exceed the Credit Facility.
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The Credit
Facility loan referred hereto means any loan drawn by Party A
utilizing the Credit Facility pursuant hereto.
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AVAILABILITY
PERIOD OF CREDIT FACILITY
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The
availability period of the Credit Facility shall commence on date
of signing of this Contract and end on June 30, 2010 (the “
Availability Period ”). The expiration date of each
loan drawn during the Availability Period shall not be subject to
the expiration of the Availability Period.
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When the
Availability Period expires, any Credit Facility which has not been
utilized shall be cancelled automatically.
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The term of
each individual loan means the period commencing on the drawdown
date of such loan and ending on the agreed repayment
date.
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UTILIZATION
OF CREDIT FACILITY
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During the
Availability Period, Party A may make application for a loan as
needed within the limit of the Credit Facility. The parties shall
undergo relevant procedures. The Drawdown Notification
for each loan shall govern the amount, interest rate, term and
purpose of such loan.
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If a security
provider has performed its security obligations in accordance with
a security contract, the Credit Facility shall be reduced by an
amount equal to the principal amount with respect to which the
security provider has performed such security
obligations.
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The amount of
loan that Party A applies for each time shall be not less than RMB
5000,000 and the tenor shall be not less than 10 days or more than
12 months.
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INTEREST
RATE ON THE LOAN, DEFAULT INTEREST RATE, INTEREST CALCULATION AND
SETTLEMENT
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Interest Rate
on the Loan ( the “ Loan Rate ”)
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The interest
rate on each loan hereunder shall be an annual rate and shall be 10
% below (the “ Floating Percentage ”) of the
Base Rate. The Loan Rate shall, during the period between the date
when interest commences to accrue (the “ Interest
Commencement Date ”) and the date when all the principal
amount and interest accrued thereon have been fully repaid, be
adjusted once every month in accordance with the Base Rate on the
interest rate adjustment date and the Floating Percentage. The
interest rate adjustment date shall be a date corresponding to the
Interest Commencement Date in the month when such interest rate is
adjusted. If there is no such a date corresponding to the Interest
Commencement Date in such month, interest rate adjustment date
shall be the last day of such month.
The default
interest rate on each loan hereunder shall be calculated as
follows:
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If Party A does
not use the loan amount hereunder for purposes as agreed (“
Misappropriation ”), the penalty interest rate on such
loan amount shall be 50% above the Loan Rate. If the Loan Rate is
adjusted according to Article 4.1 hereof, the default interest rate
shall be adjusted in accordance with the adjusted Loan Rate and the
upward floating percentage set out in this Article
4.2(1).
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The default
interest rate on overdue loan amount shall be 30% above
the Loan Rate. If the Loan Rate is adjusted according to
Article 4.1 hereof, such default interest rate shall be adjusted in
accordance with the adjusted Loan Rate and the upward floating
percentage set out in this Article 4.2(2).
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If
Misappropriation and overdue payment occur concurrently, the
default interest shall be calculated and compounded in accordance
with the higher of the two default interest rates provided for in
Articles 4.2(1) and 4.2(2) herein.
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At the time of
drawdown of each individual loan, the parties may agree on the Loan
Rate and default interest rate in the Drawdown Notification, or may
otherwise opt to use the Loan Rate and the default interest rate
provided herein. If the parties fail to reach agreement regarding
the interest rate, Party B has the right to refrain from releasing
such loan.
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In the event
the Loan Rate or the default interest rate stipulated in the
drawdown notice is different from those provided herein, the rate
stipulated in the Drawdown Notification shall prevail.
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The Interest
Commencement Date provided in Article 4 refers to the date on which
the principal of each individual loan have been deposited into the
bank account designated by Party A.
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The Base Rate
provided in Article 4 means the lending interest rate quoted by the
People’s Bank of China (the “ PBOC ”) for
loans with the same tenor and within the same category. If the PBOC
no longer publishes such lending interest rate, the Base Rate shall
mean, unless agreed otherwise between the parties, the lending
interest rate with the same tenor and within the same category
generally accepted by the banking industry or an interest rate
commonly used for a loan with the same tenor and within the same
category.
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The loan
interest shall commence to accrue as of the date when the proceeds
of such loan have been deposited into the bank account designated
by Party A. Interest on the loan shall be computed daily with the
daily interest rate equal to 1/360 of the annual interest rate. If
Party A fails to pay interest on the interest settlement date as
provided herein, the interest shall be compounded as of the date
immediately following the applicable interest settlement
date.
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For a loan
subject to a fixed interest rate, the interest accrued thereon
shall be calculated in accordance with the agreed fixed interest
rate. For a loan subject to a floating interest rate, the interest
accrued thereon shall be calculated in accordance with the interest
rate determined for each interest rate floating period. If the
interest rate has been adjusted more than once during a single
interest settlement period, the interest during each interest rate
floating period shall be calculated first and the total interest
accrued during such interest settlement period shall be the
aggregate amount of all the interest accrued during each interest
rate floating periods within such interest settlement
period.
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The interest
accrued on the loans hereunder shall be settled in accordance
with (2) of the following:
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on a monthly
basis and the interest settlement date shall be the 20
th day of each month;
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on a quarterly
basis and the interest settlement date shall be the 20
th day of the last month of the relevant
quarter;
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other method:
___________________[Intentionally Left Blank]
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FACILITY
ADMINISTRATION FEE
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5.1 Party A shall pay
Party B a facility administration fee in an amount of Zero within
______ [Intentionally Left Blank] working days after the
execution of the Contract.
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If Party A
plans to draw any amount under the Contract, it shall submit a
application for drawdown to Party B in advance. In particular, the
application for drawdown of an individual loan in an amount
exceeding RMB10,000,000 shall be submitted five working days
in advance. Party B shall decide whether to advance such
loan to Party A within three working days after receiving
Party A’s application for drawdown.
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Conditions
Precedent to Advance
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Unless Party B
waives all or part of the following conditions, Party B shall not
be obligated to advance any loan unless the following conditions
continuously remain satisfied:
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Party A has
completed all the approval, registration, delivery, insurance and
other statutory procedures in relation to the loans
hereunder;
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the security
has become and remains effective, if a security is established for
the Contract;
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Party A has
opened the bank accounts for drawdown and debt service purposes as
Party B requests;
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Party B has
received and approved Party A’s drawdown application after
review thereof;
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Party A has
paid to Party B the facility administration fee if
required hereunder;
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Party A has not
triggered any event of default hereunder or any event that may
adversely impact Party B’s rights as a creditor;
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the advance to
be made by Party B is not prohibited or restricted by any laws,
regulations, rules or competent authorities; and
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other
conditions ___________________[Intentionally Left Blank]
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General
Principles for Repayment
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Party B has the
right to apply Party A’s repayment first
towards payment of any expenses which shall be borne by
Party A as provided hereunder but has been advanced by Party B and
the expenses incurred by Party B for realizing its creditor’s
rights. Party B shall apply the balance of such repayment in the
order of interest first and then principal adhering to the
principle that the interest shall be fully repaid concurrently with
the repayment in full of all the principal amounts.
If for any loan
the principal has become overdue for more than ninety days, or the
interest has become overdue for more than ninety days, or as
otherwise provided by the laws, regulations or rules, Party B may
first apply Party A’s repayment towards those expenses set
out in the first paragraph of this article. Then Party B may apply
the balance of such repayment towards payment in the order of
principal first and then interest.
Party A shall
pay due interest to Party B on the interest settlement date. The
first interest payment date shall be the first interest settlement
date after the advance of a loan. All the interest and principal
amounts outstanding shall be paid in full on the last repayment
date.
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Schedule for
Repayment of the Principal
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Party A shall
repay the principal amounts in accordance with the repayment
schedule set forth in the relevant drawdown notice.
Party A shall
deposit sufficient amount into its bank account at Party B before
the repayment date provided hereunder and transfer such amount to
repay the loan (Party B may also debit such amount from such
account to repay the loan), or transfer such amount from another
bank account of Party A to repay the loan.
Party A may
prepay the principal in full or in part upon approval by Party B of
a written application submitted to Party B ___ [Intentionally
Left Blank] working days in advance.
The interest
accrued on the principal to be prepaid shall be calculated on the
basis of the actual number of days lapsed and the Loan Rate
provided in Article 4 hereof.
Where Party B
approves the prepayment by Party A, Party B has the right to charge
Party A a compensation fee in an amount to be determined in
accordance with the (1) of the following methods:
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compensation
fee=amount of the principal prepaid × number
of months remaining until the scheduled repayment
date(the “Remaining Period”)× 0%; provided,
however, that the part of the Remaining Period that falls short of
a month shall be calculated as a full month; or
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_____________________________[Intentionally Left
Blank] .
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If Party A is
obligated to repay the loan in installments and prepay part of the
principal, the prepaid amount shall be applied in the reverse order
of the repayment schedule. After partial prepayment, the
outstanding loan shall still be subject to the Loan Rate provided
herein.
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PARTY
A’S RIGHTS AND OBLIGATIONS
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Party A has the
rights to:
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apply to Party
B for drawing the loan in accordance with this Contract;
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utilize the
loans for the purposes provided for hereunder;
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require Party B
to keep confidential the relevant financial information and
manufacturing and operating trade secrets furnished by Party A
except provided otherwise by law, regulations and rules, or
required otherwise by the competent authorities, or agreed
otherwise between the both parties;
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reject Party B
or its employees asking for bribes; it has the right to lodge
complaint with the competent authority about such misconduct and
any other act of Party B that may violate the laws and regulations
relating to the lending interest rate and service
charges.
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Party A shall
draw the loans and repay the principal and interes
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