EXHIBIT 10.43
AGREEMENT ON COMPREHENSIVE CREDIT LINE
Date: December 25, 2001
To: Farmers' Bank of China
This Agreement is made and entered into on this 25th day of December, 2001, by
and among:
DII Taiwan Co., Ltd. (Hereinafter referred to as the Debtor);
N/A (The Joint Guarantor, hereinafter referred to as Guarantor) and
Farmers' Bank of China (Hereinafter referred to as the Creditor);
WHEREAS the Debtor intends to negotiate a short-term loan in revolving use with
the Creditor, within the comprehensive credit line at New Taiwan Dollars Sixty
Million or in U. S. Dollars or other foreign currencies of equivalent value
(Hereinafter referred to as the Loan, including credit lines in individuals)
within the time limit stated in Article I, A. General Provisions of this
Agreement, parties hereto come to this Agreement. The terms and conditions
herein shall apply to the Loans granted by the Creditor as comprehensive
provisions except the respective liability documents:
A. GENERAL PROVISIONS:
Article I The Loan may be taken out during the period between Dec/25,
2001 and Dec/24 2002. Unless otherwise stated in the law, all
debts incurred by the indebtedness certificates, checks, L/Cs,
purchase orders, endorsements issued by the Debtor or
Guarantor shall be relieved when all liabilities under the
Loans are repaid in full within the time limit specified
above. In case of ambiguity on amount of the Loan by the
Debtor, the Creditor's account cards, accounting books
vouchers, computerized data, vouchers otherwise, correspondent
papers or photocopies or epitome shall govern.
Article II The "comprehensive credit line" refers the maximum credit the
Creditor grants to the Debtor for the specified purposes. The
Creditor may define individual credit line aiming at
respective purposes to be expressly provided for in the
respective parts of the Agreement within the maximum credit
line of the Loan items. The grand total of the respective item
credit lines may exceed the comprehensive credit line. When
the Debtor actually takes out the Loan, when the total of the
expected and received loans exceeds the comprehensive credit
line, the Debtor shall be subject to the restriction of the
comprehensive credit line though the expected loan does not
exceed the corresponding credit line. Unless otherwise stated,
the Debtor may use the Loans within the comprehensive credit
line and individual credit line on a revolving basis. If the
disbursement involves foreign currencies, the comprehensive
credit line and individual credit line shall be calculated at
the exchange rate quoted by the Creditor at the time.
Article III When the Creditor shall deem the Debtor is in misuse of the
Loan, or in doubtful credit standing, or fails to provide
collateral as required, or whenever the Creditor deems
necessary, the Creditor may terminate the Debtor's use of the
Loan or reduce the credit line without notice. In the event of
a dispute with a third party or extra expenditure, the Debtor
shall be liable for all damages thereof.
Article IV Unless otherwise stated in the Agreement, the collateral
provided under the Agreement shall be in the contents,
registered, in the scope and method totally according to
relevant laws and regulations.
Article V The Agreement shall come into force upon execution. Where the
Creditor has appropriated the Loan, or issued the Guarantee or
take other action for the Loan, the Agreement shall come into
force retroactively upon completion of such action. When the
Debtor applies for and gets approved by the Creditor of
renewal, the Agreement remains in effect even before the
renewal agreement is signed.
Article VI Other contracts and liability vouchers issued by the Debtor
and Guarantor, if any, shall form an integral part of the
Agreement and shall be equally valid as the Agreement unless
specifically stated in the Agreement for preferentially
applicable.
Article VII For the application issued by the Debtor upon taking out the
Loan, the Guarantor shall guarantee to abide by the clauses of
the Agreement to assume the responsibility of joint guarantee,
absolutely free of any objection by reason that the
application has not been signed by the Guarantor.
Article XIII The Agreement takes Paochiao Branch of the Creditor as the
place of enforcement and takes the district court located in
the place where the Paochiao Branch of the Creditor is located
as the jurisdictional court. The Debtor and the Guarantor
shall waive the right to object regarding the jurisdictional
court disregarding any change in domicile or nationality.
Article IX This Agreement is made in duplicate. The duplicate copy is
valid in case the original shall be lost.
B. RESPECTIVE CLAUSES
SHORT-TERM OPERATING CAPITAL
Article I The total credit line in this loan comes to NT$60 million,
specifically to be used by the Debtor in the needs for working
capital, to be disbursed on grounds of advance application.
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Article II The interest of the Loan in this loan is 0.25% in addition to
the Creditor's prime loan rate.
DOMESTIC PROCUREMENT LOAN, AND ACCEPTANCES
Article I The credit line for this individual loan comes to NT$60
million and is specifically for purchasing domestic supplies
by consigning the Creditor to issue domestic, irrevocable
L/Cs, either instant or forward ones, in revolving
disbursement with the drafts or acceptances issued by the L/C
beneficiaries. The L/C guarantee issued by the Debtor
according to Article II functions as the guarantee for
liabilities to the Creditor and shall not be included in the
credit line.
Article II: The Debtor shall act according to the following when
consigning the Creditor to issue the aforementioned L/Cs: (I)
Fill out the application with the Creditor provided form.
(II)Submit trading contracts and other transaction vouchers
concerned in photocopies. (III)Pay the Creditor the guarantee
bond at 0 % of the minimum L/C amount. (IV)Issue certificate
of exemption from protest and notification obligation at the
L/C amount and take the promissory note, with a creditor as
the payer, as the tool to make repayment.
Article III: Of the forward domestic L/C opened under the Agreement, the
drafts shall not exceed 180 days from acceptance. The day
preceding maturity of the draft, or the day informed by the
Creditor shall be the day for reimbursement for each case of
the liability.
Article IV Of the spot domestic L/C issued under the Agreement, the
drafts shall be payable at-sight and shall take the day
preceding the beneficiary's presentation of the draft or the
day informed by the Creditor shall be the day for
reimbursement for each case of the liability. In a case of
spot draft where the Debtor applies to the Creditor for
consent to advance the amount to the beneficiary, the Debtor
shall agree to repay within 180 days from the day when the
amount is advanced, plus interest 0.25% in addition to the
Creditor's prime loan rate. The sum shall be repaid in advance
if the supplies purchased under the Loan are sold out ahead of
schedule.
Article V Until the acceptance draft of the L/C under the Agreement
becomes mature, the Debtor shall agree to submit the draft
amount to the Creditor ready for payment. When the Debtor
fails to do so, the Debtor shall pay interest for the period
beginning the day when the Creditor pays until the day of
repayment at the rate set forth in the preceding article and,
in addition, penalty according to the covenant separately
signed with the Creditor even if the draft has been purchased
with discount from the Creditor.
Article VI Where the Creditor with review process considers that the
drafts and auxiliary vouchers presented with the L/C under the
Agreement satisfactory to the L/C terms and thus accepts or
makes payment, the Debtor shall agree to make payment
forthwith. When the aforementioned drafts or auxiliary
vouchers proved unauthentic, forged or defective otherwise
later on (including nonconformity of the products in quality
or quantities with the vouchers), the Creditor shall not held
responsible and the Debtor shall not contend or refuse payment
by any reasons.
Article VII On all operations, responsibility and obligations under the
L/C of the Agreement, the Debtor agrees to the "Uniform
Customs of L/C" promulgated by the International Chamber of
Commerce, the clauses interpreted under the trading terms
which shall form an integral part of this Agreement.
Article VIII Of the commodities under the L/C, when the beneficiary fails
to fulfill contract, delays in delivery, forges or in case of
force majeure, the Debtor shall solely bear the losses and
shall hold the Creditor harmless.
Article IX Of the commodities under the L/C, the Debtor shall agree to
purchase insurance at the terms and conditions satisfactory to
the Creditor and that the Creditor be the preferential
beneficiary. The Debtor shall pay the premium solely.
LOAN FOR PURCHASE FROM OVERSEAS SOURCES AND GUARANTEE
Article I The credit line for this individual loan comes to NT$60
million or the equivalent value in U. S. Dollars or other
foreign currencies and is specifically for importing goods and
apply to the Creditor for guarantee required for such import.
The categories, methods, period and contents of the
aforementioned guarantee shall be subject to the Creditor's
agreement. In case of a need to use the Loan exceeding the
specified credit line
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due to shipment, economy or reasons otherwise, the credit line
may be used within 20% in excess of the specified limit after
the Debtor applies and the Creditor approves. In such
excessive use, nevertheless, all clauses under the Agreement
are continually applicable.
Article II The Debtor, when issuing a forward L/C, shall agree to pay the
L/C guarantee on grounds of the percentage of exchange
settlement and the Creditor's requirements and requests that
the Creditor pay the remainder sum. The Debtor shall pay in
New Taiwan Dollars at the exchange rate prevalent at the time
of repayment or pay with the Debtor's own foreign exchange.
The Debtors shall repay in advance when the imported goods are
sold ahead of schedule, provided, that each loan shall not
exceed the maximum of 180 days.
Article III In the event the L/C guarantee bond under the preceding
article is advanced in New Taiwan Dollars loan under the
Creditor's consent, such sum shall be converted into New
Taiwan Dollars loan at the exchange rate agreed that time and
shall be repaid within the period set forth in the preceding
article. The interest shall be 0.25% in addition to the
Creditor's prime loan rate in New Taiwan Dollars and shall be
settled case by case.
Article IV In the wake of the Debtor's application with the Creditor's
approval, if the sum advanced under Article II is converted
into advance sum in New Taiwan Dollars, the Debtor shall agree
that the date of conversion, exchange and interest rates be
determined at the Creditor's discretion which the Debtor and
Guarantor shall not object. For interests accruing for advance
in foreign currency before conversion, the Debtor shall pay at
the time of conversion. The advance sum in New Taiwan Dollars
after conversion shall accrue interest at the rate as
promulgated by the Creditor and shall be paid in package with
the principle set forth in Article II.
Article V The Loan accrue interest at fixed rate beginning the day when
the foreign creditor makes payment. In case of credit in U. S.
Dollars, the interest shall be the 6-month SIBOR rate plus
0.75% and divided by 0.946. In case of in Japanese yen, the
interest rate shall be the loan rate of Japanese yen
promulgated by the Creditor minus 1.75%. In case of other
foreign currencies, the interest shall be on grounds of the
interest rates promulgated by the Creditor. In absence of the
rate as promulgated by the Creditor, the interest shall be
1.5% in addition to the Creditor's acquiring costs. The
aforementioned interest shall be paid as required and the
interest under the Loan shall be paid up before repayment of
the principal. The interest will be reduced in line with the
repayment of principal.
Article VI In the event the guarantees defined under Article I meet the
Creditor's agreement, the amount of guarantee, maturity dates
and other contents shall be subject to the guarantee documents
issued by the Creditor. For the guarantee handling fee, the
Debtor shall pay in a lump-sum before the Creditor issues the
guarantee papers.
Article VII The Debtor shall fulfill the guarantees to the Creditor in
time and in full and agrees to keep the Creditor informed of
the fulfillment from time to time. Whenever the guarantee
beneficiary considers that the Debtor unable to fulfill the
obligations in time and in full and thus informs the Creditor
anytime during the guarantee period, whatsoever the reasons,
the Creditor may fulfill the guarantee responsibility
forthwith straight on grounds of the notice served by the
guarantee beneficiary. The Creditor shall not be required to
look into whether the credit claimed by the guarantee
beneficiary is actually present, the amount, and whether or
not presence of other refutal existent between the Debtor and
the guarantee beneficiary which the Debtor shall absolutely
not object.
Article VIII After the Creditor fulfills the guarantee responsibility
according to the preceding article, the Creditor may, without
a notice, dispose the collateral provided under the Agreement
at the Creditor's discretion to settle all liabilities of the
Debtor to the Creditor. The Debtor agrees to make good the
insufficiency forthwith, if any. Prior to the disposal, the
Creditor may, as well, request that the Debtor and the
Guarantor settle all liabilities with the Creditor which the
Debtor and the Guarantor shall absolutely not object and shall
not act against the Creditor with any contention existent
between the Debtor and the Guarantee Beneficiary.
Article IX Where the Debtor is likely to fail to fulfill the guarantee
obligations to the Creditor, or where in multiple guarantees
the Debtor is likely to fail in any guarantee case to the
Creditor, the Creditor may, without the need to fulfill the
guarantee responsibility beforehand, straight dispose
collateral to offset all amounts and all expenses the Creditor
pays for the fulfillment of the guarantee obligations. In case
of balance after the offset, until the guarantee
responsibility with the Creditor is relieved in full, the
Debtor shall not request return. The Creditor may, as well,
straight request that the Debtor and Guarantor pay the
aforementioned amounts and expenses forthwith in cash or
straight seize the Debtor and Guarantor's property.
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Article X Where the Creditor pays the guarantee amount, all arrearages
related to the guarantee or amounts otherwise, the Debtor
agrees to pay interest and default penalty according to
Article V and other covenants executed with the Creditor.
Article XI For the Loan and all sums advanced by the Creditor under the
Agreement, other than the collateral defined under Article IV
of Agreement A, General Provisions, the Debtor further agrees
to pledge the aforementioned imported goods to the Creditor
and take this Agreement as the certificate of the pledge. The
Creditor obtains all pledge rights of the delivery vouchers
(e.g., import permit and B/L) beginning the day when the
Creditor issues the L/C until arrival of the imported goods,
and obtains the chattel pledge right of the goods beginning
the time when the import arrives. The Debtor further agrees to
get the aforementioned goods insured at the terms and
conditions satisfactory to the Creditor, with the Creditor as
the preferential beneficiary. The Debtor shall pay all costs
required for the insurance.
Article XII In the event the Debtor fails to complete repayment within the
time limit set forth in Article II, the Creditor may straight
convert the outstanding sums in whole or in part into New
Taiwan Dollars loan based on the Creditor's selling exchange
rate, provided, that the Creditor is not obliged to make the
conversion. Under no circumstances shall the Debtor and
Guarantor object the time, exchange rate, amount and interest
rate involved in the conversion.
Article XIII In the event the goods imported under the Loan are lost, or
devaluated in whole or in part because of a marine accident,
war, floods, fire or force majeure otherwise in the process of
transportation, or in the event the insurance company refuses
to pay or pays insufficiently or delays the payment, the
Debtor shall solely solve the problems and hold the Creditor
harmless. With a notice served in a reasonable period, the
Creditor may request that the Debtor and the Guarantor repay
the Loan, interest, advanced sums and expenses in one package,
free of the restriction of time limit set forth in Article II.
EXPORT LOAN
Article I The credit line for this individual loan comes to NT$60
million and is specifically for export and payment for
guarantee bond in forward foreign exchange. After the Debtor
submits disbursement application, the Loan may be granted
within 80% of the irrevocable L/C approved by the Creditor.
Subject to the Creditor's consent, the Loan may be disbursed
within 80% of the transaction vouchers acknowledged by the
Creditor, or be disbursed on grounds of lending application or
"application for advance sales of foreign exchange and
contract.".
Article II The time of repayment under the Loan shall be totally pursuant
to the Creditor's requirements. The Debtor shall repay the
Loan with the foreign exchange obtained from export on or
before the day of maturity.
Article III The Loan shall accrue interest at floating rate 0.25% in
addition to the Creditor's prime loan rate and the interest
shall be paid on a monthly basis. In case of overdue payment,
the Debtor shall be subject to late interest and default
penalty according to the covenant separately signed with the
Creditor.
C. SPECIAL CLAUSES
I. The interest rate of the New Taiwan Dollars Loan interest rate under the
Agreement shall be negotiable on a case-by-case basis at the Creditor's
discretion based on the capital status. The extra interest margin shall
be adjusted every three months.
To: Farmers' Bank of China
Debtor: DII Taiwan Co., LTD.
Responsible person: Xxxx Xxxx-xxxx
Address: 0X, 000x00 Xxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxx Xxxxxx
Joint Guarantor:N/A
ID Card: N/A
Address: N/A
Date: 12/25/01
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