Contract No:
W57912302009001
AMKOR ASSEMBLY & TEST
(SHANGHAI) CO, LTD.
(as Borrower)
CHINA CONSTRUCTION BANK CO.,
LTD
SHANGHAI WAIGAOQIAO FREE TRADE ZONE SUB-BRANCH
(as Lender)
US$50,000,000
Working Capital Facility Agreement
THIS
US$50,000,000 WORKING CAPITAL FACILITY AGREEMENT (“this
Agreement”) is dated 20 th Jan, 2009 in Shanghai
BETWEEN:
(1) AMKOR
ASSEMBLY & TEST (SHANGHAI) CO., LTD . (the “
Borrower ”);
(2) China Construction Bank Co.,
Ltd
SHANGHAI
WAIGAOQIAO FREE TRADE ZONE SUB-BRANCH (the
“Lender”)
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(A)
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Due
to the needs of its production and operation, the Borrower has
applied to the Lender for a working capital loan facility in a
maximum aggregate principal amount of US$50,000,000, from 20
th Jan, 2009 to 19 th Jan, 2011;
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(B)
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After examination, the Lender has
agreed to grant to the Borrower the said US$ working capital loan
facility upon the terms and conditions set out herein.
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After friendly
mutual consultations, now the Lender and Borrower HEREBY AGREE as
follows.
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1.
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DEFINITIONS AND
INTERPRETATION
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1.1
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Terms Defined
Except as otherwise
provided herein, capitalized terms used in this Agreement shall
have the meanings ascribed to them as follows.
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“Reference
Banks” means 1. HSBC Bank, London
Branch;
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2.
CITI Bank, London Branch
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“Loan”
means, save as otherwise
provided herein, an advance made or to be made by the Lender under
this Agreement;
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“Facility”
means the working
capital loan facility in a maximum aggregate principal amount of
US$50,000,000 to be made available to the Borrower by the Lender
upon the terms and conditions of this Agreement;
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“Loan Bill”
means the bill regularly
used by Lender in its lending business which is filled by Borrower
and confirmed by Lender for the loan borrowing.
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“Security”
means any mortgage,
pledge, guarantee, lien or any other arrangement or
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agreement with the effect of
security, or any other statutory preferential rights as provided in
laws or regulations ;
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“Real Property Mortgage
Agreement” means the Real Property Mortgage
Agreement entered into between the Lender and Borrower on the date
of this Agreement;
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“Interest Payment
Date” means the last day of each Interest
Period;
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“Repayment
Date” As to each Loan, means the date
falling twelve (12) months after the Drawdown Date of the
Loan;
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"
Spot Rate of Exchange ” means, on any date on which a
rate of exchange is required, the selling rate of US Dollars for
the conversion of RMB or other currencies into US Dollars as
announced by the China Construction Bank, Shanghai Branch at or
about 11.00 a.m. (Beijing time) on such date;
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“LIBOR”
means the London
Interbank offered rate, that is:
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(i)
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the
rate per annum of the offered quotation for deposits in Dollars for
a period of six(6) months which appears on the Telerate Page 3750
at or about 11:00 a.m.(London time) two business days before
the first day of each relevant Interest Period;
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(ii)
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if
no such offered quotation appears on the Telerate Page 3750 at or
about such time, the rate per annum of the offered quotation for
deposits in Dollars for a period of six(6) months which appears on
the relevant page of the Reuters Screen at or about
11:00 a.m.(London time) two business days before the first day
of each relevant Interest Period; or
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(iii)
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if
no such offered quotation appears on the Telerate Page 3750 or on
the relevant page of the Reuters Screen at or about such time, the
rate determined by the Lender to be equal to the arithmetic mean
(rounded, if necessary, to the nearest of one sixteenth per cent)
of the rates per annum quoted to the leading banks by the Reference
Banks in the London Interbank Market at or about
11:00 a.m.(London time) two business days before the first day
of each relevant Interest Period for the offer of deposits in
Dollars for a period of six(6) months.
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“Interest
Period” means, in relation to any Loan, each
period determined pursuant to
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Article 4.2 of this
Agreement;
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“Potential Event of
Default” means any event that could become
(with the passage of time, the giving of notice, the making of any
determination hereunder or any combination thereof) an Event of
Default in the reasonable determination of the Lender ;
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“Finance
Documents” means this Agreement, the Real
Property Mortgage Agreement and any other document (if any)
executed by the Lender and Borrower in relation to the US$ working
capital facility provided under this Agreement;
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“Availability
Period” means period commencing from the
date of this Agreement and ending on the earlier of the following
dates:
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(i)
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The
first loan, the date which falls six (6) months after the date
of the execution of this Agreement;
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(ii)
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The
other loan, the date which falls twelve (12) months after the
date of the execution of this Agreement;
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(iii)
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the
date when all Facility has been utilized by means of drawdown or
has been canceled.
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“Drawdown
Date” means, in relation to any Loan, the
proposed date for the borrowing of such Loan as specified in the
Drawdown Notice, or where such Loan has been made, the date on
which it was made;
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“Drawdown
Notice” means a notice formally made by the
Lender substantially in the form set out in Schedule 1 (Form
of Drawdown Notice);
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“Event of
Default” means any of the circumstances
described in Article 13 (Events of Default);
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“Material Adverse
Change” means any event or change occurred
in the business, operations, properties or financial condition of
the Borrower, which would, in the reasonable determination of the
Lender, have a Material Adverse Effect. An event or circumstance
shall be construed as having a “Material Adverse
Effect” if it would result in the Borrower being unable
to fully perform its obligations or discharge all or some of its
liabilities under the Finance Documents or would affect the
legality, validity, binding effect or enforceability of any of the
Finance Documents.
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1.2
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Interpretation
Unless otherwise
provided in this Agreement, any reference in this Agreement
to:
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A
“business day” shall be construed as a reference
to a day (other than a Saturday or Sunday, or statutory holiday) on
which banks generally are open for business in Shanghai
and:
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(i)
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in
relation to a day on which a payment is to be made in Dollars, on
which commercial banks are also open for business in New
York;
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(ii)
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in
relation to a day on which LIBOR is to be determined, on which
commercial banks are also open for business in London.
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A
“month” is a reference to a period starting on
one day in a calendar month and ending on the numerically
corresponding day in the next succeeding calendar month save that,
where any such period would otherwise end on a day which is not a
business day, it shall end on the next succeeding business day,
unless that day falls in the calendar month succeeding that in
which it would otherwise have ended, in which case it shall end on
the immediately preceding business day, provided that, if a period
starts on the last business day in a calendar month or if there is
no numerically corresponding day in the month in which that period
ends, that period shall end on the last business day in that later
month (and references to “months” shall be construed
accordingly).
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“US$”
and
“Dollar(s)” denote lawful currency of United
States of America;
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“China”
or
“PRC” means the People’s Republic of
China, but for the purpose of this Agreement only, excluding the
Hong Kong, Macao and Taiwan area, all of which are respectively
integral part of the People’s Republic of China;
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a
“certified” document or a
“certified” copy means a document or a copy of
the document affixed with the official chop of the provider thereof
and certified by the provider to be true and complete;
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the
“execution date” of this Agreement means the
date on which this Agreement has been signed by the legal
representatives or the authorized representatives of both the
Lender and the Borrower and has been affixed with the official
chops of both the Lender and the Borrower.
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the
“ continuance ” or “ existence
” of an Event of Default means the circumstance under which
an Event of Default has occurred, but it has not been remedied to
the satisfaction of the Lender, nor has the Lender waived
it.
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1.3
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Headings The headings of clause, article and
schedule of this Agreement are for
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ease of reference only and shall be
ignored in construing this Agreement.
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2.
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The Loan
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2.1
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Facility Upon the terms and subject to the
conditions of this Agreement, the Lenders agree to provide a
US$50,000,000 working capital loan facility to the
Borrower.
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2.2
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Currency of Loan
All the Loans provided
to the Borrower by the Lender under this Agreement shall be in
US$.
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2.3
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Cancellation The Borrower may not cancel the
Facility in whole or in part during the Availability Period without
the prior written consent of the Lender. Any undrawn portion of the
Facility will be automatically cancelled at the expiry of the
Availability Period and will not thereafter available to the
borrower for drawing unless the Lender has agreed
otherwise.
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2.4
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Purpose and Application
The Borrower shall apply
all the proceeds of the Loans under the Finance Documents in or
towards the financing of its general working capital requirements.
The Lender shall have the right, but not be obliged, to monitor the
application of any Loan by the Borrower, and failure to use the
Facility in accordance with the purposes set out in Article 2.4 by
the Borrower shall not prejudice the rights of the Lender under
this Agreement.
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2.5
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Term As to each Loan, the term of a Loan
is for a period commencing on the Drawdown Date of the Loan and
ending on the date falling twelve (12) months after the
Drawdown Date of the Loan. The last Repayment Date of this
Agreement shall be no later than the date falling twenty-four
(24) months after the execution day of this
Agreement.
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2.6
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Security In relation to all the indebtedness
of the Borrower owing to the Lender under this Agreement, the
Borrower shall provide mortgage in favor of the Lender pursuant to
the Real Proper Mortgage Agreement.
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3.
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Conditions of
Drawdown
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3.1
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Conditions Precedent for Initial
Drawdown Subject to Article 3.3 of this
Agreement, the first drawdown hereunder shall be conditional on the
Borrower having satisfied all the conditions precedent referred to
in this Article 3.2 (Conditions Precedent for Each
Drawdown) and the following conditions, unless the
said
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conditions are waived by the Lender
with prior written consent:
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(1)
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The
Lender has confirmed in writing its receipt and acceptance of the
certified copy of the following documents relating to the
Borrower:
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(i)
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the
latest and currently effective Business License;
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(ii)
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the
approval documents issued by the relevant foreign investment
authority on the establishment of the Borrower;
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(iii)
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the
latest and currently effective Foreign Investment Enterprise
Certificate of Approval issued by the relevant foreign investment
authority;
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(iv)
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the
latest and currently effective Articles of Association of the
Borrower;
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(v)
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the
Capital Verification Report issued by a China registered certified
public accountant, certifying all fulfilled registered capital of
the borrower.
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(vi)
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the
Foreign Exchange Registration Certificate of the Borrower issued by
State Administration of Foreign Exchange or its local
branch;
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(vii)
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the
resolution of its board of directors approving the execution and
performance of each Finance Document and any other document and
authorizing a person, on its behalf, to execute each Finance
Document and any other document;
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(viii)
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the
list of directors and the specimen(s) of the signature(s) of each
director;
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(ix)
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the
identity certificate of the legal representative;
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(x)
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the
latest and currently effective Bank Credit Registration
Consultation System Loan Card of the Borrower obtained from the
People’s Bank of China Shanghai Branch.
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(2)
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The
Real Property Mortgage has been duly executed and the real property
mortgage registration certificate has been obtained pursuant to the
Real Mortgage Agreement with the Lender as the only first priority
mortgagee;
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(3)
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The
Borrower has opened a special US$ account with the
Lender;
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(4)
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The
Borrower has duly paid all stamp duty and other fees, if any and to
the extent payable by the Borrower, in respect of the Finance
Documents; and
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(5)
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All
governmental approval and/or registration procedure (if any)
necessary to the execution and performance of the Finance Documents
has been obtained and completed.
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3.2
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Conditions Precedent for Each
Drawdown Subject to Article 3.3
(Drawdown Requirements) of this Agreement and without prejudice to
any additional conditions
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to
borrowing as more specifically provided for herein, each drawdown
hereunder shall be conditional on the Borrower having satisfied the
following conditions, unless the said conditions are waived
permanently or not required temporarily by the Lender with prior
written consent:
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(1)
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The
Borrower has maintained the special US$ account opened with the
Lender;
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(2)
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The
representations and warranties made by the Borrower in the Finance
Documents remain true and correct on and as of the date for each
Drawdown and the proposed Drawdown Date as specified in the
Drawdown Notice;
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(3)
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no
Event of Default or Potential Event of Default has occurred and is
continuing, or would result from the proposed drawdown;
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(4)
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no
Material Adverse Change has occurred from the date of execution of
this Agreement till the relevant Drawdown Date, nor any change of
law which would have a Material Adverse Effect on the transaction
as contemplated in the Finance Documents has occurred;
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(5)
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the
Lender has received the Drawdown Notice timely delivered by the
Borrower in accordance with the procedures set out in this
Agreement.
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3.3
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Drawdown Requirements
In addition to the
conditions set out in Article 3.1 and Article 3.2 of this
Agreement, each drawdown by the Borrower under this Agreement shall
be further subject to the Borrower satisfying the following
conditions:
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(i)
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The
Lender receives, not later than 10:00 a.m. (Beijing Time) on
the second business day before the proposed Drawdown Date, a
Drawdown Notice duly completed and signed by the
Borrower;
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(ii)
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the
Drawdown Notice shall be irrevocable once delivered by the Borrower
and the Borrower shall be obliged to borrow the amount as specified
therein on the date as stated therein upon the terms and conditions
provided in this Agreement;
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(iii)
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The
principal amount of the Loan to be drawn as requested in a Drawdown
Notice shall be a minimum of US$1,000,000 and in an integral
multiple of US$500,000, and no more than the undrawn
Facility;
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(iv)
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The
Drawdown Date to be specified in the Drawdown Notice is a business
day within the Drawdown Period;
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(v)
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The
Borrower shall further comply with other relevant requirements in
customary banking practices of the Lender.
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3.4
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Loan Transfer
The Lender will, no
later than 10:00 (Beijing Time) on the Drawdown Date, transfer the
amount as the Borrower requested in the Drawdown Notice it
delivered in accordance with Article 3.3 to the US$ account
the Borrower opened with the Lender.
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4.
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Interest Rate and
Interest
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4.1
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Interest Rate
The interest rate
applicable to any Loan during any Interest Period shall be a rate
per annum certified by the Lender to be the aggregate of LIBOR in
relation to that Interest Period and one point seventy per cent
(1.7%). If no applicable LIBOR is able to be determined pursuant to
this Agreement, the applicable rate shall be agreed upon by the
Lender and the Borrower. Should no agreement on the applicable
LIBOR be reached by the Parties within five (5) business days
after occurrence of the above situation, the interest rate
applicable to any Loan during any Interest Period shall be a rate
per annum certified by the Lender to be the aggregate of the most
recent available LIBOR to that Interest Period and one point
seventy per cent (1.7%).
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4.2
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Interest Period
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(i)
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the
first Interest Period in relation to a Loan shall commence on the
Drawdown Date for such Loan, and each Interest Period ( other than
the first Interest Period) in relation to the loan shall commence
on the expiry date of its immediately preceding Interest
Period;
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(ii)
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Except as this Article 4.2
(Interest Period) provides otherwise, each Interest Period in
relation to a Loan, shall be six(6) months provided
that:
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a.
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if
any Interest Period shall end on a day which is not a business day,
such period shall end on the next succeeding business day (if any)
of the calendar month or, if such next succeeding business day
falls in another month, on the immediately preceding Business
Day;
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b.
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if
any Interest Period would extend beyond the Repayment Date, it
shall be deemed to expire on the Repayment Date.
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4.3
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Calculation of Interest
Interest shall accrue
from day to day and be calculated on
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the
basis of the actual number of days elapsed and a year of
360 days. Unless otherwise provided herein, the interest of
any Loan in an Interest Period shall be calculated from the first
date (inclusive) of the Interest Period to the last day
(exclusive) of such Interest Period at the rate applicable
thereto. The determination of a rate of interest by the Lender
under this Agreement shall be conclusive and binding on the
Borrower in the absence of error.
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4.4
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Payment of Interest
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(i)
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Payment on Interest Payment
Date The
interest on each Loan shall be paid on each Interest Payment Date,
provided that the last Interest Payment Date for each Loan shall be
the Repayment Date or the prepayment date of such Loan;
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(ii)
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Interest Payment Notice
The Lender shall deliver
a notice to the Borrower for interest payment five
(5) business days before each Interest Payment Date. But any
failure to deliver or delay in delivering such notice shall not
affect the Borrower’s obligation to pay the
interest.
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(iii)
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Payment by Borrower
The Borrower shall make
such interest payment by wire or intrabank transfer into its US$
loan account opened with the Lender prior to 10:00 a.m. (Beijing
time) on the Interest Payment Date.
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4.5
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Default Interest
If the Borrower fail to
pay all or any part of the principal, interest or other amount due
and payable or declared to be due and payable in relation to the
Loans, the Borrower shall pay an overdue interest in addition to
the above sums to the Lenders upon the demand by the Lender. The
overdue interest rate shall be an annual rate which is certified by
the Lender to be the aggregate from time of (i) LIBOR for six
(6) months in relation to relevant interest period,
(ii) one point seventy per cent (1.7%) and(iii) three percent
(3%). The first overdue interest period of any due but unpaid
amounts shall commence from the due date of such amount and end on
the date falling six (6) months thereafter. The overdue
interest period thereafter shall commence on the expiry date of its
preceding overdue interest period and end on the date falling six
(6) months thereafter, with the exception that the last
overdue Interest Payment Date shall end on the date when all
amounts due but unpaid are fully paid.
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