Credit Facility Agreement (This document is an English summary from the original Chinese version)
EXHIBIT
10.1
(This
document is an English summary from the original Chinese version)
The
Borrower:
Jinzhou
Halla Electrical Equipment Co., Ltd.
The
Lender:
Bank of
China (Jinzhou Tiebei Branch)
1.
|
Scope
of Business
|
Subject
to the terms of this Credit Facility Agreement (the “Agreement”) and separate
agreements to be entered into by the Borrower and Lender (collectively, the
“Parties”), Lender hereby agrees to make loans to the Borrower for purposes of
RMB short-term loan, foreign currency short-term loan, bank acceptance, and
settlement financing business, etc.
2.
|
Types
of Loan and Commitment Amount
|
The
Lender hereby grants to the Borrower the following line of credit of up to
XXX
00 xxxxxxx:
(x) |
XXX
Short-Term Loan: XXX 00 xxxxxxx;
|
(xx) |
Bank’s
Acceptance Credit: XXX 00 xxxxxxx;
|
(xxx) |
Factor
Credit: XXX 00 million; and
|
(iv) |
Commercial
Invoice Discount: XXX 00 million.
|
3.
|
Use
of the Line of Credit
|
Within
the term of the Agreement as specified in Section 5, the Borrower may use
line
of credit in a revolving way up to the amount as provided under Section 2.
In
case
the Borrower needs to adjust the scope of business as specified in Section
1, it
shall apply to the Lender in writing. Upon the application, the Lender may
decide whether to adjust the scope.
4.
|
Separate
Agreements Required:
|
The
Parties shall enter into a separate agreement (collectively “Separate
Agreement”) as follows each time advances are made pursuant to this
Agreement:
4.1 |
For
RMB Short-Term Loan: RMB Loan Agreement (Short
Term);
|
4.2 |
For
Bank’s Acceptance Credit: Bank’s Acceptance Credit Agreement;
and
|
4.3 |
For
Settlement Financing Business: (1) Agreements: (i) Domestic Commercial
Invoice Discount Agreement; and (ii) Domestic General Factor Agreement;
and (2) Applications: (i) Application for Domestic Invoice Discount
Amount; (ii) Application for Domestic Commercial Invoice Discount;
(iii)Application for Domestic Factor Business; (iv) Application
for Change
of Domestic Factor Credit Amount; and (v) Application for Domestic
Factor
Financing.
|
The
Separate Agreements shall become integral part of this Agreement. The rights
and
obligations of both Parties shall be defined according to the Separate
Agreements and this Agreement. In case of any discrepancy between the Separate
Agreements and this Agreement, the Separate Agreements shall prevail.
5.
|
Term
of the Agreement
|
The
term
of this Agreement shall commence from the date as specified under Section
19 and
expires on September 24, 2008;
The
term
of this Agreement shall not be extended automatically. The term of this
Agreement may be extended upon a written approval by the Lender of the
Borrower’s application for extension and satisfaction of security interest
provided by the Borrower. The written agreement on extension shall provide
a new
term of the loans.
6.
|
Conditions
Precedent on Extending Credit
Facility:
|
The
obligation of the Lender to extend any credit facility under this Agreement
is
subject to the satisfaction of the following conditions by the Borrower:
6.1
|
Submit
an application for the specific type of loan to the Lender before
the
expiration date of the Agreement under Section
5;
|
6.2
|
Reserve
and execute relevant corporate documents, record, seal, lists of
personnel, sample of signature relevant to this Agreement and the
Separate
Agreements;
|
6.3
|
Set
up accounts necessary for drawing credit facility as required by
the
Lender;
|
6.4
|
Complete
all necessary legal and administrative procedures and submit to
the Lender
copies or appropriate photocopies of documents concerned. In case
these formalities shall be performed by the Lender according to
the
stipulations of laws and regulations, the Borrower agrees to provide
all
necessary assistance;
|
6.5
|
Satisfy
the conditions precedent as specified in the Separate
Agreements;
|
6.6
|
Provide
deposit or execute the security agreement required by the Lender;
and
|
6.7
|
Agree
to make presentation and warranty under Section 10 of this
Agreement.
|
6.8
|
Other
conditions deemed necessary by the
Lender.
|
2
7.
|
Obligations
of the Lender
|
Pursuant
to the Agreement and respective Separate Agreements, promptly process
applications for loans from the Borrower.
8.
|
Obligations
of the Borrower
|
8.1
|
Timely
payment of all necessary fees pursuant to this Agreement and respective
specific Separate Agreements;
|
8.2
|
Timely
provision of reserve in accordance with this Agreement and respective
specific Separate Agreements;
|
8.3
|
Timely
payment of all debts, including but not limited to, principals,
interests,
penalties and relevant fees pursuant to this Agreement and respective
specific Separate Agreements; and
|
8.4
|
Use
the loans obtained according to the use specified in this Agreement
and
respective specific Separate
Agreements.
|
9.
|
Security
Interest
|
With
respect to obligations arising from this Agreement and/or specific Separate
Agreements, the Parties hereby agrees to adopt the following ways of
guarantee:
The
Borrower provides mortgage to secure the fully payment of its obligation
under
the Agreement and signs the Agreement on Mortgage of the Highest Amount under
documentation 2007
Xxx Xxxxx Xxxx Tie Ya No. 001;
If
the
Lender believes that the occurrence of certain events could adversely affect
the
capacity of the Borrower or the Mortgagor to perform the Agreement or result
in
insufficiency of collateral, the Lender shall have the right to request the
Borrower to provide additional collaterals to secure the Lender’s
interests.
10.
|
Representations
and Warranties
|
10.1
|
The
Borrower is a duly organized, validly existing enterprise legal
person and
in good standing under Chinese laws, has duly gone through the
industrial
and commercial registration formalities, has all necessary power
and the
performance of this Agreement and respective specific Separate
Agreements
is within the Borrower’s powers;
|
10.2
|
Execution
and performance of this Agreement and respective specific Separate
Agreements are based on the true expression of intention of the
Borrower.
The Borrower has obtained all lawful and valid corporate authorization
in
accordance with its articles of association or other internal rules
and
regulations. The execution and performance of this Agreement and
respective specific Separate Agreements will not violate any agreements,
contracts and other legal documents which have legal binding effect
on the
Borrower;
|
3
10.3
|
All
documents, financial statements, and other materials provided by
the
Borrower to the Lender pursuant to this Agreement and specific
Separate
Agreements are true, complete, accurate and
valid;
|
10.4
|
The
transaction for which the Borrower applies for loans from the Lender
is
true and legitimate, not for any illegal purposes, such as money
laundry.
That the Borrower provides with the Lender any documents can not
be deemed
that the Lender is liable for reviewing the truth and legitimacy
of the
transactions in which the Borrower is
engaging;
|
10.5
|
The
Borrower has not disguised any events which will affect the financial
status and performance capabilities of the Borrower and the
mortgagor;
|
10.6
|
The
Borrower hereby warrants:
|
(i)
|
To
provide the Lender with financial statements on a regular basis
(including, but limited to, annul, quarterly and monthly reports)
and
other related materials;
|
(ii)
|
To
accept and coordinate the examination and supervision by the Lender
to the
use of the loans and the production, operation and financial activities
of
the Borrower;
|
(iii)
|
To
immediately inform the Lender of any material change of the Borrower,
including but not limited to decrease of registered capital, transfer
of
material assets or equity, sealing up the collaterals, dissolution,
bankruptcy, etc., which would affect the Borrower’s financial status or
capability to perform its obligations pursuant to this Agreement;
|
(iv)
|
Not
to enter into any division, merger, acquisition, reorganizes, contracting,
or joint venture or cooperation with foreign investors, etc. without
written consent from the
Lender; and
|
(v)
|
Any
matter not covered by this Agreement, the Borrower agrees to handle
them
according to international practice and the relevant provisions
of the
Lender.
|
11.
|
Adjustment
or Termination of the Line of
Credit
|
The
Lender shall have the right to adjust or terminate the line of credit at
any
time within the term of this Agreement, if any of the following events
occurs:
11.1
|
Occurrence
of Events of Default under Section
12;
|
4
11.2
|
The
Lender believes there is material negative news with regard to
the market
or of the industry that the Borrower is engaged
in;
|
11.3
|
The
Lender believes that certain restrictive policies or laws enacted
by the
domestic government, foreign governments or international organizations
have or could have material adverse impact on the industry that
the
Borrower is engaged in.
|
12.
|
Events
of Default
|
12.1
|
The
occurrence of any of the following will constitute an Event of
Default by
the Borrower:
|
(i)
|
The
Borrower fails to make the payment when the payment is due under
this
Agreement and any other specific Separate
Agreements;
|
(ii)
|
The
Borrower fails to provide reserves in accordance with this Agreement
and
any other specific Separate
Agreements;
|
(iii)
|
The
Borrower uses the proceeds of the loan for purposes outside of
the scope
as agreed upon by the Parties under this Agreement and specific
Separate
Agreements;
|
(iv)
|
Any
representation furnished by the Borrower proves to be incorrect
or the
Borrower breaches any of its representations/warranties under this
Agreement;
|
(v)
|
The
Borrower breaches other obligations contained in this Agreement
and
specific Separate Agreements; and
|
(vi)
|
Occurrence
of an event of default under other agreements between the Borrower
and the
Lender.
|
12.2
|
In
the event of 12.1, the Lender is entitled to take one or all of
following
actions:
|
(i)
|
Without
any prior notice to the Borrower, declare the principal of and
accrued
interest on the loans, and any other amount due under the specific
Separate Agreements due immediately and payable in
full;
|
(ii)
|
Without
any prior notice to the Borrower, deduct payment (including principal,
interests, penalties, fees, etc.) due directly from any accounts
the
Borrower has with the Lender and other branches of Bank of
China;
|
(iii)
|
Dispose
of the secured properties; and
|
(iv)
|
Other
actions deemed necessary by the
Lender.
|
13.
|
Change
of Exchange Rate - Borrower takes the risk of the change of exchange
rates.
|
5
14.
|
Others
|
14.1
|
Without
prior written consent from the Lender, the Borrower shall not assign
any
rights or obligations under this Agreement to a third
party;
|
14.2
|
The
Borrower acknowledges that Lender is entitled to assign and delegate
its
rights or obligations under this Agreement to other branches of
Bank of
China if necessary. Upon the Lender’s authorization, any other branch of
Bank of China is entitled to all rights under this Agreement, including
but not limited to, the right to file claims with a court or submit
disputes under this Agreement to certain arbitral institutions.
The
Borrower waives to make any objections to litigation or arbitration
qualification of other branches of Bank of
China.
|
14.3
|
This
Agreement shall have legal binding effects on the lawful successors
and
assignees of both Parties on condition that other stipulations
under this
Agreement are not affected.
|
15.
|
Reservation
|
15.1
|
Failure
to exercise any rights under this Agreement or require the Borrower
to
perform any obligations by the Lender does not constitute the Lender’s
waiver or exemption of such rights or obligations, nor constitute
the
Lender’s waiver or exemption of any other rights or any other obligations
of the Borrower under this Agreement.
|
15.2
|
Any
tolerance, extension or delay to execute the rights under this
Agreement
by the Lender shall not affect any enjoyable rights of the Lender
under
this Agreement and other laws and regulations, nor be deemed a
waiver of
the aforesaid rights of the Lender.
|
16.
|
Amendment,
Termination and Interpretation of
Contract
|
16.1
|
Unless
otherwise stipulated in this Agreement, this Agreement may be amended,
supplemented or terminated based on mutual written agreement between
both
Parties. Any amendments and supplements to this Agreement shall
constitute
an integral part of this Agreement.
|
16.2
|
Any
unenforceable provision of this Agreement will not affect the
enforceability of all the remaining provisions of this
Agreement.
|
17.
|
Dispute
Settlement
|
17.1
|
The
Agreement will be governed by laws of People’s Republic of
China;
|
17.2
|
Any
disputes, which cannot be settled through consultation, shall be
adjudicated by the court in the jurisdiction where the Lender or
the
branch of Bank of China that exercises the rights and obligations
under
this Agreement domiciles.
|
18.
|
Notarization:
no notarization is required under the
Agreement.
|
19.
|
Effectiveness
of the Agreement
|
6
This
Agreement shall take into effect as of the date when the legal representatives
or authorized representatives of both Parties sign and attach the seals to
the
Agreement. There are two official copies of the Agreement. Both Parties shall
hold one original set, which shall be equally authentic.
20.
|
Special
Note
|
The
Parties have conducted sufficient negotiations on the terms of this Agreement
and other specific Separate Agreements. The Lender has reminded the Borrower
of
paying special attentions to all the terms regarding the rights and obligations
of both Parties and of understanding these terms comprehensively and accurately.
Upon the request of the Borrower, the Lender has respectively informed and
explained the aforesaid terms to the Borrower.
Jinzhou
Halla Electrical Equipment Co., Ltd.
|
|
/s/
Yuncong Ma
|
|
Seal
|
|
September
27, 2007
|
|
Place:
Jinzhou Tiebei Branch
|
|
|
|
|
|
Bank
of China (Jinzhou Tiebei Branch)
|
|
/s/
Xxx Xxxx
|
|
Seal
|
|
September
27, 2007
|
|
Place:
Jinzhou Tiebei Branch
|
7