Credit Facility Agreement
Credit
Facility
Agreement
No.
(2007) Xxxx Xxxxx Xxx X Xxx Zi 000274
Applicant
(hereinafter “Party A”): Shenzhen
BAK Battery Co., Ltd
Legal
Representative: Li
Xiangqian
Address:
Kuichong
Town, Longgang District, Shenzhen
Telephone
No: 0000-00000000
Creditor
(hereinafter “Party B”): Shenzhen
Branch, Bank of China
Person
in Charge: Duan
Yongkuan
Address:
No.
2022, Construction Road, Shenzhen
Telephone
No: 0000-00000000
In
order
to develop the long-term, stable, mutual benefit cooperation relationship
between Party A and Party B, both parties have entered into this Agreement
under
the principle of voluntaries, equity, mutual benefits and
trustworthiness.
Article
1. Credit Facility
| (1) |
Party
B provides Party A the credit facility of no more than RMB 450,000,000.00
yuan from November 1, 2007 to Novemeber 1, 2008. Party A may apply
for
different currencies within the aforesaid amount. If the credit facility
which provided by Party B is involved with more than one currency,
all
credit facility shall be converted by the inner conversion ratio on
the
date of the business happens. Once Party A applies the credit facility
under this Agreement, it shall be the indebtedness of Party B’s and the
aforesaid legal application documents shall contribute as parts of
this
Agreement;
|
| (2) |
The
types and divisions of the business within the credit
facility:
|
|
Content
|
Sum
(Currency)
|
|
|
1.
Loan amount
|
RMB
350,000,000.00 yuan
|
|
|
2.
Amount of accepted xxxx of exchange by opening bank
|
RMB
100,000,000.00 yuan
|
The
aforesaid amount shall be applied in writing by Party A and by the consensus
of
Party B. The division of the amount shall be adjusted by the inner conversion
ratio, but the maximum amount of use really shall not exceed the maximum credit
facility of this Agreement.
Article
2. The Term of Credit Facility
The
term
of the credit facility of this Agreement is one year (from November 1, 2007
to
November 1, 2008). The aforesaid facility could be used from time to time if
Party A applies and it is approved by Party B.
1
Article
3. Use of Credit Facility
Party
A
shall use the credit facility in accordance with the requirements of using
it
which stipulated in Clause 2 of Article 1.
Article
4. Security
All
the
indebtedness of every single credit facility under this Credit Facility
Agreement shall be guaranteed by Shenzhen BAK Battery Co., Ltd and Xx. Xx
Xiangqian in accordance with No. 0085 Pledge Contract of Maximum Amount of
2007
Zhen Zhongyin Si Di E Zi and No. 0284 Guaranty Contract of Maximum Amount of
2007 Zhen Zhongyin Si Bao E Zi.
Article
5. Use of Credit Facility under this Agreement
Party
A
shall use the credit facility under this Agreement with satisfaction of all
following conditions:
| (1) |
Credit
Facility Agreement has become valid;
|
| (2) |
All
legal documents provided by Party A that required by Party B under
this
Agreement are qualified and completed;
|
| (3) |
Provides
Party B with Party B’s uniform application form and/or loan
receipt;
|
| (4) |
All
above applications have been approved by Party
B;
|
| (5) |
The
performance of Party A has been accepted by Party B
if
Party B requires Party A shall provide
other supplementary legal documents or increase guaranty under the
application form;
|
| (6) |
The
usage of credit facility shall be in accordance with the relevant laws,
regulations and policies of the People’s Republic of
China.
|
Article
6. Interest and Expense
1. Interest
(1).
Interest ratio: the interest ratio will be carried out by Party B in accordance
with the interest ratio which formulated and publicized by People’s Bank of
China on the date of loan/prepayment (the prepayment foreign exchange under
the
settle credit facility shall be increased by 20% of the foreign loan interest
in
the corresponding period, RMB shall be charged as the overtime loan interest
ratio; packing loan exchange shall be charged as agreed); Party B shall perform
as the stipulations and not necessary to inform Party A and the guarantor if
there are interest ratio changes or the ratio formulation has been
changed;
The
interest ratio of every single credit facility shall be decided by both Party
A
and Party B while they are carrying out the business.
(2).
The
basis for calculating the interest:
A.
The
basis for calculating the interest: XXX 00 days, foreign exchange 360
days;
B.
The
prepayment under the credit facility shall be the actual days that calculate
from the imprest day to the repay day;
(3).
The
interest calculating formula: the interest shall be calculated once each month,
the interest calculating day is 20 days after the end of each month; the
prepayment interest under the settlement of credit facility shall be calculated
by the actual imprest days; the interest shall be repaid at the same time as
when the loan has been repaid;
(4).
Payment of interest: Party A shall pay the interest on the interest calculating
day, Party B could also deduct directly from Party A’s deposit
account;
2
(5).
Compound interest:
If
Party
A could not pay the interest on time and the currency of the money he loans
is
RMB, then Party B has the right to calculate and claim the compound interest
of
the unpaid interest from the interest settlement day every season (or every
month); if the money he loans is foreign exchange, the penaltyed interest shall
be required on the loan interest ratio agreed by both Party A and Party B as
to
the credit facility until the interest has been repaid.
(6).
The
interest of overdue loan and apropriation loan:
If
Party
A does not repay the loan in accordance with the loan repay plan and he has
not
reached an Agreement with Party B, then Party A contributes an overdue loan.
If
the money he loans is RMB, then Party B has the rights to charge 50% penaltyed
interest on the basis of loan interest ratio of the credit facility which agreed
by both Party A and Party B. If the loan is foreign exchange, then 20% penaltyed
interest will be charged on the basis of the loan interest ratio affirmed by
both Party A and Party B; if Party A has not use the loan as both Parties agreed
on and the money he loans is RMB, then Party B has the rights to charge 100%
penaltyed interest of the remove parts on the basis of confirmed loan interest
ratio agreed by both Parties. If the money Party A loans is foreign exchange,
Party B has the rights to charge 50% penaltyed interest on the basis of
confirmed interest ratio agreed by both Parties.
2. Expense
Party
B
has the rights to charge all expenses in accordance with the fee charged types
and ratios according to the Party B’s requirements. The expense ratio and its
claiming method shall be confirmed by both Party A and Party B when the loan
is
taken. Any expenses resulting from performing this Agreement other than this
Clause shall be paid by Party A.
Article
7. Rights and Obligations
(1).
Party A has the rights to use the credit facility under this Agreement in
accordance with the requirements of this Agreement;
(2).
Party A shall pay all payable credit facility and its interest, expenses on
time
in accordance with the stipulations of this Agreement and other relevant
application letter, which:
(I).
the
credit facility under the exporter’s packing loan; inward documentary xxxx; sum
shall be repaid on or before the due date.
Party
A
shall apply in written to Party B one month in advance if he estimates that
he
could not repay the sum and need to extend the term. Party B has the rights
to
decide whether or not to extend the term.
(II).
Under the terms of letter of credit:
After
receiving the acceptance/payment phone call or written notice, Party A shall
go
to Party B’s place and carry out the acceptance/payment within 3 working days;
Party A and/or the guarantor shall repay it as required no later than Party
B
pays to the beneficiary; if there are discrepancies of the documents under
the
terms of letter of credit, Party B has the rights to refuse to pay for it;
if
Party A accepts the discrepancies under the deferred letter of credit and accept
to pay for it, then Party B has the rights to require Party A to accept and
pay
for it after Party A has pay for guaranty money to some degree. Any
responsibilities resulting from it shall be bore by Party A; if there are some
disputes about whether or not it shall be accepted or shall be paid, Party
B has
the rights to dispose it according to international customs.
3
(III).
Under the terms of Guaranty Letter:
Party
A
shall make the payment in Party B’s place and deposit sufficient money in the
guaranty account which opened in Party B’s place within 3 working days from the
date of Party A receives Party B’s payment phone call of the Guaranty Letter or
written notice. Despite of the reasons which cause the beneficiary to require
Party B to make the compensation payment under this Agreement and which leads
Party B to pay, Party A shall repay all principle, interest and other relevant
expenses etc within 5 working days.
The
proof
of indebtedness of Party A to Party B shall be including but not limited to
the
following documents:
| i. |
The
application letter, loan receipt which filled by Party A or account
transfer or payment receipt;
|
| ii. |
The
Letter of Credit, Guaranty Letter and other bills, receipts which opened
by Party B under the terms of this
Agreement;
|
| iii. |
The
beneficiary’s compensation claim
documents;
|
| iv. |
Party
B’s account statement or computer record or other payment
proofs;
|
(3).
The
abovementioned operations include: The abovementioned operations include: Loan
in RMB/Foreign Currency; Issuance of L/C without or with reduced of deposit;
exporter’s packing loan; discount of bank/commercial draft; inward documentary
xxxx; outward documentary xxxx; bank guarantee; acceptance of bank draft.
Despite of the reasons which might cause Party B unable to claim the payment
from the third party under the terms of this credit facility (including the
counterparty refusing to pay), Party B has the rights to reimburse directly
from
Party A or deduct directly from the authorized principle, interest and expenses
from Party A’s account.
(4).
Party A shall deposit the sufficient money into the account opened in Party
B’s
place before the due date of accepted xxxx of exchange in order to prepare
to
pay; if because Party A could not deposit the sufficient money into the account
on time which cause Party B has to imprest, then Party B has the rights to
reimburse from Party A or deduct directly the relevant imprest principle,
interest and expenses from Party A’s account;
(5).
While Party A use credit facility of the foreign exchange transaction, he should
comply with the stipulations in other legal documents which signed with Party
B,
and the aforesaid legal documents shall contribute as part of this
Agreement;
(6).
Party A shall report to Party B in writing by season the main financial
statement, main project process which are including but not limited to the
documents and materials of the reports, charts of management status, financial
status. Party A guarantees that the information provided is accurate, authentic,
completed and valid;
(7)
The
total settlement, agent and deposit which conducted by Party A in Party B and
its branch shall not be less than (/)% of all same transactions in all financial
institutions by Party A or the ratio of the settlement, transaction and deposit
which conducted by Party A in Party B out of Party A’s settlement, total
transaction and total deposit shall not be less than the ratio of credit
facility to Party A provided by Party B out of the total credit facility of
financial institutions, the higher ratio between them shall
prevail.
(8).
Party A has the responsibility to inform Party B in writing under the following
circumstances:
I.
Any
breaches of the Loan Contract, the Credit Facility Agreement and the Credit
Facility Contract, Guaranty Contract which signed by Party A and Bank of China
and its departments or branches, other banks, non-banking financial institutions
and any breaches of the Credit Facility Contract, Guaranty Contract or any
other
Credit Facility Contract which signed with other creditors;
4
II.
The
changes of the relationship of administrative subordination, changes of main
business scope, alterations of directors of board and senior management staff,
modification of Contract of Equity Joint Venture and articles of associations
and adjustment of inner organization;
III.
Material violation of principles, violation of law or compensation claiming
which are relating to Party A or Party A’s principle leader;
IV.
The
serious difficulties occur in Party A’s management and the deterioration of
financial situation;
V.
Party
A has already undertaken or would undertake the indebtedness, possible
indebtedness or mortgage, pledge to the third party;
VI.
Any
litigation or arbitration deriving from the disputes of Party A’s material
creditor’s rights and indebtedness;
VII.
Other situations which might affect Party A’s financial status or indebtedness
repay ability;
(9).
Party A undertakes the possible indebtedness and dispose the fixed assets shall
not affect its ability to repay the indebtedness to Party B;
(10).
Accepts Party B’s credit facility inspection and supervision and provides the
sufficient association and cooperation to Party B;
(11).
Despite of whether or not Party A has already signed any forms of
counter-guarantee Agreement regarding to his guarantee responsibilities under
the terms of this Agreement, this Agreement shall not legally or practically
affect
Party
B’s
rights under the terms of this Agreement;
(12).
Party A shall obtain Party B’s written approval on the following
occurrences:
I.
Material system changes which including reducing the registered capital in
any
forms, division, merge, reconstruction, share structure transformation etc
or
cancellation, dismissal, suspending a business;
II.
Material events which are concerning the outer investment and assets
transferring;
III.
Conducting the title transaction, management transaction by the way of lease,
contract, affiliation, trusteeship;
IV.
The
material share alteration of share adjustment or Party A’s share
transformation;
(13).
If
any commercial businesses under this Agreement are needed to be insured, Party
A
shall insure in accordance with the requirements of Party B and the relevant
insurance fee shall be paid by Party A;
(14).
Party A’s asset-liability ratio shall not exceed 70% within the period of credit
facility which is stipulated in Article 2 of this Agreement;
(15).
Party B shall provide inquiry, agency, settlement and other intermediary service
within its business scope on Party A’s commands;
(16).
Party A shall pay Party B annual fee of RMB ( / ) yuan at one time by (/) within
3 working days after this Agreement comes into force;
(17).
Party A confirms that Party B has the rights to authorize the institutions
of
Shenzhen branch, Bank of China (including its branch and sub-branches) to
perform this Credit Facility Agreement or credit facility
division.
Article
8. Breach of Contract
5
(1).
It
is deemed that Party A conducts breach of contract on any of the following
occurrences:
I.
Party
A does not use the loan as stipulated in this Agreement;
II.
Party
A does not repay or pay for the principle of credit facility (including the
imprest money), interest, expenses and any other payable sum on time as
stipulation;
III.
Party A does not perform any responsibilities of Article 7 of this
Agreement;
IV.
Any
breach occurrences by Party A under other Loan Agreement or Guaranty Agreement
or any breaches by guarantee under the terms of Guaranty Agreement which might
affect Party A to perform his liabilities of this Agreement;
V.
The
mortgage or pledge provided for this Agreement is obviously devaluation and
affects Party B’s benefits and the mortgagor or the pledgor does not provide the
supplementary guaranty;
VI.
Party
A or guarantee’s management is serious deteriorated;
VII.
Party A or the guarantee has the actions of transferring the property, capital
withdrawing and other actions of evading indebtedness;
VIII.
Party A or the guarantee loses his commercial creditworthiness;
IX.
There
are disputes, litigations between Party A or the guarantee and the third party
or any other occurrences which judged by Party B that they might be disadvantage
or threaten to his rights and benefits;
X.
Any
reasons which already or might cause party A or the guarantee lose his repay
ability;
XI.
Party
A or the guarantee intentionally conceals the material facts relating to this
Agreement or provides the fraud information;
XII.
Party A indicates expressly or by his actions expresses that he would not
undertake the liabilities under this Agreement before the expiration date of
this Agreement;
XIII.
Any
material occurrences happen on Party A which affect the security of the loan
and
Party A does not inform Party B;
(2).
Breach of contract by Party B:
I.
does
not perform Party B’s liabilities which stipulating in Article 7 of this
Agreement;
II.
does
not perform relevant Party B’s responsibilities under the every single credit
facility application stipulations of this Agreement.
Article
9. Responsibilities of Breach of Contract
(1).
If
Party A commits any breaches of Clause 1, Article 8 of this Agreement, Party
B
has the rights to take the following actions solely or
simultaneously:
I.
requires Party A to correct it within the required time;
II.
adjusts or cancels the credit facility to Party A at any time and suspend to
perform this Agreement or any credit facility under this Agreement;
III.
informs Party A to suspends this Agreement and requires Party A to regain his
performance ability or provides the guaranty which permitted by Party
B;
IV.
rescinds this Agreement;
V.
announces that the credit facility, expenses occurred under this Agreement
become due and requires Party A to repay it immediately;
VI.
deducts the principle and interest of credit facility, expenses and liquidate
damages directly from all Party A’s accounts.
(2).
If
Party B has committed any breaches of Clause 2, Article 8 of this Agreement,
Party A has the rights to take the following actions solely or
simultaneously:
6
I.
requires Party B to correct it within the required time;
II.
repays the loan in advance.
Article
10. The Application Laws and Dispute Settlements
The
applicable law for this Agreement shall be laws of People’s Republic of
China.
Any
dispute arising from the performance of this Agreement shall be settled by
negotiation by the parties. In case that no settlement has been reached, the
dispute shall be settled in the following (1) solution:
(1).
to
be submitted to the People’s Court located in the region of Party
B;
(2).
to
be submitted to (/) Arbitration Committee. The arbitration shall be proceeded
by
its own arbitration rules.
Article
11. Effectiveness
This
Agreement would come into effect if it satisfies the following
conditions:
(1).
this
Agreement has been signed and stamped by the authorized persons of both
parties;
(2).
the
guaranty documents under this Agreement have become valid.
Article
12. Miscellaneous
(1).
any
modification or replenishing of this Agreement shall be made in writing and
contributes as undivided parts of this Agreement;
(2).
there are six original copies of this Agreement. Party A retains two copies,
the
guarantee retains one copy, the registration office retains one copy and Party
B
retains two copies. All of these copies have the same legal
force.
7
Party
A (Stamp): Shenzhen
BAK Battery Co., Ltd
Authorized
person (signature/stamp): Xx.
Xx
Xiangqian
Date:
November
1, 2007
Party
B (Stamp): Shenzhen
Branch, Bank of China
Authorized
person (signature/stamp): Xx.
Xxx
Zhen
Date:
November
1, 2007
Venue:
Xxxxxxxx
0
