Our ref: P/S2254/00005/06 Date: 6th March, 2006 Customer: Shenzhen Ritar Power Co., Ltd. Address: Building 9, Second Industrial Zone, Fuqiao, Qiaotou Village, Fuyong Town, Bao’an District, Shenzhen Dear Sirs,
Exhibit
10.9
Our
ref:
P/S2254/00005/06
Date:
6th
March,
2006
Customer:
Shenzhen
Ritar Power Co., Ltd.
Address:
Building
0, Xxxxxx Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxx Xxxxxxx, Xxxxxx Xxxx, Xxx’xx
Xxxxxxxx, Xxxxxxxx
Dear
Sirs,
Banking
Facilities: Shenzhen Ritar Power Co., Ltd. (the
“Borrower”)
We,
DBS
Bank (Hong Kong) Limited Shenzhen Branch (the “Bank
”),
are
pleased to inform you that we propose to make available to you the following
banking facilities (the “Facilities”)
upon
the following terms and conditions. The Facilities will be effective until
the
date when the Bank decides to terminate the Facilities and serve you the
termination notice. The Bank shall have the right to review the Facilities
anytime (including the annual review on the Facilities pursuant to the standard
practice of banks), and to elect (not obliged) to notify the Borrower/or
any
security provider/or any guarantor of the decision to extend the term of
the
Facilities. Whether the aforesaid notice is served shall not affect any right
under this letter/or any guaranty or mortgage documents:
Facilities:
1. |
Account
Receivables Based Credit - RMB 2,000,000 Yuan (non-affirmatory
limit)
|
Payment
under this Facility shall be made directly to the supplier as long as the
trust
receipt by evidence of the origin or counterpart (duly certified as a true
counterpart by the Borrower) of the supplier’s invoice is
presented.
The
maximum financing period for each invoice shall be 3 month, less:
(1) Supplier’s
credit period (if any); and
(2) In
case
payment is made to the supplier after the payment due date, the period lapsed
after such date.
Suppliers
of account payable financing and each of its individual limits shall be
respectively subject to the Bank’s prior written approval on a case by case
basis (if so required by the Bank). The Bank may from time to time carry
out at
the Borrower’s expense updated evaluations on the suppliers of Account
Receivable Based Financing. All costs and fees incurred thereby may be charged
on the Borrower’s account.
Interest
[35]%
per
annum over the prime rate by the People’s Bank of China in accordance with the
corresponding level of the loan on the date when such loan is
provided.
1
Account
Payable Financing Charges:
The
charges shall be collected subject to the current standards of the Bank unless
any other agreement is reached or any other provision is stipulated under
this
letter.
2. |
Factoring(Ⅰ)-USD
300,000 (non-affirmatory limit)
|
Terms
and
conditions of the Factoring are stipulated in Appendix 2 and the Factoring
Agreement.
3. |
Factoring
(Ⅱ)-RMB
5,000,000 Yuan or US dollars in equivalent value(converting in
accordance
with the rate decided by the Bank).
|
(ⅰ)
Internal Factoring -
RMB
5,000,000 Yuan or US dollars in equivalent value (converted in accordance
with
the rate decided by the Bank).
(ⅱ)
External Factoring - RMB 3,000,000 Yuan or US dollars in equivalent
value (converted in accordance with the rate decided by the Bank).
Terms
and
conditions of the Factoring are stipulated in Appendix 2 and the Factoring
Agreement.
Note:
The
unused limits of aforesaid external factoring may provide to Ritar Power
Group
(Hong Kong) Limited, but the unpaid loan to the Borrower and Ritar Power
Group
(Hong Kong) Limited (collectively, the “Co-borrowers”) shall not exceed RMB
3,000,000 Yuan or US dollars in equivalent value (converted in accordance
with
the rate publicized by the Bank from time to time) at any time.
Facilities
to Several Borrowers:
The
Facility used by the Borrower or any of the Co-borrowers shall not exceed
the
amount that is stipulated separately in this letter. If such Facility is
used by
the Borrower or any of the Co-borrowers, the Bank shall not be responsible
for
informing other borrowers the status of such usage.
However,
all the borrowers and every Co-borrower shall be liable jointly and severally
to
the Facility.
Every
payment request made to any of the Co-borrowers shall be deemed as the same
made
to the Borrower.
2
Even
if
the Bank terminates the agreement, reconcile, accept relevant articles or
make
any other arrangement with any of the Co-borrowers, the Bank shall not be
liable
to make a same arrangement with the Borrower.
The
insolvency or dissolution of any borrowers or co-borrowers shall not affect
the
effectiveness of this letter.
For
any
reason if any of the Co-borrowers may not be bound by this letter anymore,
the
Borrower shall still be bound by the obligations under this letter.
Conditions
Precedent:
The
availability of the Facilities is conditional upon completion and delivery
of
the appropriate supporting board minutes and/or shareholders’ resolutions, and
the following documentations, items and evidence in form and substance
satisfactory to the Bank:
(a) The
Bank’s standard form General Commercial Agreement duly executed by the
Borrower;
(b) The
Bank’s standard form Guarantee Agreement duly executed by Xxxxx Xx to provide
guarantee for all the debts owed by the Borrower under this letter;
(c)
The
originals of the certificate of the title to the property which is located
in
room 2201, Tian’an Digital Time Building, Xi Shennan road, Che Gongmiao
industrial area (Certificate No. 3000217876) and the one which is located
in
room 706, D3 block, Fuyuan Shangzhu Garden, Baoshui Futian District, Shenzhen,
Guangdong Province (Certificate No. 0000000);
(d)
The
bank’s standard form Guarantee Agreement duly executed by [name of guarantor]
to
secure all indebtedness owed by the Borrower to the Bank; The Borrower shall
open a certain drawback account in the Bank and execute the authorization
letter
acceptable to the Bank in respect of the irrepealably account management
and
deduction;
(e) The
Bank’s standard form Factoring Agreement duly executed by the Borrow dated
13th
December, 2004;
(f) The
Bank’s standard form Factoring Agreement duly executed by the Borrow dated
30th
September, 2005;
(g) Such
other documents, items or evidence as the Bank may require (including the
documents and relevant legal opinions in respect of the approval, registration
and/or record in relation to this letter, any Facility and relevant guarantee
and/or mortgage.
Most
Favored Rate: The
most
favored rate shall mean Hong Kong Dollar most favored rate quoted by DBS
Bank
(Hong Kong) Limited from time to time unless otherwise provided herein. If
the
interest rate in respect of any Facility is expressed to be a margin plus
the
most favorable rate quoted by the Bank from time to time, the Bank shall
be
entitled, in its reasonable discretion, at any time without reference or
notice
to the Borrower, to substitute the rate of “HIBOR plus 0.5%” for the most
favorable rate in calculating the interest payable under such Facility. If
the
interest rate in respect of any Facility is expressed to be a percentage
less
than the most favorable rate quoted by the Bank from time to time, the Bank
shall be entitled, in its reasonable discretion, at any time without reference
or notice to the Borrower, to replace such interest rate by the rate of “HIBOR
plus 0.5%” as the applicable interest rate in respect of such
Facility.
3
Operation
Day: As
far as
the foreign currency is concerned, operation day shall mean the operation
day of
commercial banks in the main financial centre in Shenzhen and (if applicable)
such main financial centre as relevant to the denominated currency of relevant
Facilities (or part of them) (excluding Saturday) unless otherwise provided
herein. As far as RMB is concerned, operation day shall mean the operation
day
of commercial banks in Shenzhen (excluding Saturday) unless otherwise provided
herein. If the repayment day or the interests payment day is not an operation
day, the Bank shall be entitled, in its own discretion, to adjust it to the
operation day immediate after or preceding the operation day. Furthermore,
if
the repayment day or the interests payment day does not exist in the month,
such
payment day shall be adjusted to the last operation day of the month.
Overdue
Interest: As far as the foreign currency is concerned, if any amount of foreign
currency under this letter which is unpaid on due date or exceeds the permitted
Overdraft Facility limit, such overdue or excess sum will be subject to the
Bank’s then prevailing overdue or over limit interest rate, and may be
compounded monthly or at such other intervals as the Bank determines. The
Bank
may, without prejudice to its other rights, increase the interest rate on
the
entire amount outstanding under this Letter if any amount becomes
overdue.
As
far as
RMB is concerned, if any amount of RMB under this letter is unpaid on due
date,
the Borrower shall be liable to pay a penalty interest subject to the determined
annual interest rate under this letter plus 2% (Whenever the overdue rate
becomes higher or lower than the maximum or minimum overdue rate quoted by
the
People’s Bank of China, the aforesaid overdue rate shall be adjusted to the
maximum or minimum overdue rate quoted by the People’s Bank of China.) before
all the loan and interests are repaid, and such interest shall be adjusted
and
calculated in subsection. The interest which is unpaid when due shall be
collected subject to a compounded monthly rate.
Handling
Fee/ Commission/ Commitment Fee: RMB
5,000
Yuan
Stamp
Duty:
RMB 200
Yuan
Interest
Calculation:
Unless
otherwise provided herein, interest will accrue on daily basis and will be
calculated by reference to the number of days elapsed and 365-days per year
(if
the loan is denominated in HK Dollars, Pounds Sterling, Singapore Dollars
or
Malaysia Ringgit) or 360-days per year (if the loan is denominated in any
other
approved foreign currency).
4
Payments:
All
payments by the Borrower are to be made to the Bank in accordance with the
Bank’s directions in the currency in which the Facility (or the part in
question) is denominated or, as the case may be, in which the same was incurred
or, if the Bank shall so require, in HK Dollars, in each case in immediately
available funds without set-off or counterclaim and free and clear and without
any deduction or withholding for any taxes, duties or any other charges
whatsoever. If any payment to the Bank is not denominated in the aforesaid
currency as agreed, the Bank shall be entitled to convert it into the agreed
currency in accordance with the rate quoted by the Bank at that time, and
the
Borrower shall complement the insufficient part (if any). In any case, all
the
fees incurred in respect of the converting of the currency shall at the
Borrower’s expense.
Fee
and Expenses: The
Borrower shall be responsible for the Stamp Tax in respect of this letter
(including the part which shall be paid by the Bank). Without prejudice to
the
above clause, whether or not any monies are advanced to the Borrower pursuant
to
this Letter or otherwise; the Borrower shall pay on demand by the Bank all
costs
and expenses (including without limitation the debt collection agents’, legal
and other professional adviser’ fees on a full indemnity basis, travel,
communications, publicity and other expenses and charges) reasonably and
properly incurred by the Bank in connection with the preparation, negotiation
and entry into this Letter, the General Commercial Agreement and other security
documents to be given by the Borrower or other security providers (collectively
“Loan
Document”)
or in
perfecting, preserving or protecting any rights under the Loan Documents
or in
exercising or enforcing or attempting to exercise or enforce any rights under
the Loan Documents.
A
handling fee in an amount to be determined by the Bank will be payable in
respect of the annual review to be carried out by the Bank so long as the
Facilities are continuing. Such fee may be debited to the Borrower’s account.
Undertakings:
By
signing this Letter, the Borrower shall be deemed to undertake to and in
favor
of the Bank the following;
(a) The
Borrower will keep and prepare its books of account and financial statements
in
accordance with applicable law and generally accepted accounting principles
and
practices in Hong Kong.
(b) The
Borrower shall deliver to the Bank:
(i) |
as
soon as available, and in any event within 10 months after the
end of each
of its financial years, copies of its audited (and, as appropriate,
consolidated) accounts and the related directors’ auditors’ reports for
each financial year of the Borrower and financial condition and
business
as the Bank may request;
|
5
(ii)
|
With
reasonable promptness, details of any material litigation, arbitration
or
administrative proceeding current or, to its knowledge, threatened
by or
against it.
|
(c) The
Borrower will notify the Bank promptly of any change of its directors or
beneficial shareholders or any amendment to its contracts (if any) or articles
of association. Without the prior written approval of the Bank, the Borrower
shall not make any change of its directors or beneficial shareholders or
any
amendment to its contracts (if any) or articles of association.
(d) The
Borrower will promptly notify the Bank upon becoming aware of any factor
which
may inhibit, impair or delay performance by the Borrower or any guarantor
or
security provider of its obligations under the Loan Documents.
(e)
Without the prior written consent of the Bank, the Borrower shall not mortgage
the property ascribed to it in aforesaid article (c) to any bank or company
excluding the guarantee and/or mortgage made pursuant to the Loan
Documents.
(f)
The
Borrower shall obtain all the approval, registration and/or record in respect
of
the Loan Documents obtained by all the relevant guarantors and/or security
providers, and maintain the validity of such approval, registration and/or
record until all the Facilities are repaid. Furthermore, the Borrower shall
immediately deliver the origin or counterpart (which has been duly certified
as
a true counterpart by the Borrower or the guarantors or security providers
(as
the case may be)) to the Bank as soon as the approval, registration and/or
record is/are obtained.
Limitation
to the Facilities:
During
the valid term of the Facilities pursuant to this letter, the amount of
Facilities provided by the bank shall be on the basis of the fund raised
by the
Bank. If any restrictive regulation in respect of the Bank’s borrowing from
other banks or any other restrictive regulation enacted by the People’s Bank of
China/China Banking Regulatory Commission results in a failure for the Bank
to
provide the Borrower all or part of the Facilities under this letter, the
currency of the Facilities should be adjusted to other currency on the basis
of
current law and regulation and the available money of the Bank. The Borrower
shall agree to all the arrangements made by the Bank in respect of the aforesaid
matter and give active cooperation, and the Borrower hereby further agrees
that
the Bank is not liable at all in this regard.
Demand
Facilities:
(a) Without
prejudice to following section (b), if the Borrower fails to make any payable
payment on time or to perform any obligation under this letter or any other
Loan
Documents, or the Borrower is adjudicated a bankrupt or dissolved, the Bank
shall be entitled to cancel the Facilities or any part thereof and/or to
demand
immediate repayment or payment (as the case may be )of all principal ,interest,
fees and other amounts outstanding under this Letter or any part thereof
(“Liabilities”)
and/or
to require the Borrower immediately to provide full cash collateral in respect
of the Liabilities shall be immediately so payable and/or such cash collateral
shall be so provided.
6
(b) Notwithstanding
any other provision of this Letter (including above section (a)),the Bank
shall
be entitled at any time in its absolute discretion to cancel the Facilities
or
any part thereof and/or to demand immediate repayment or payment (as the
case
may be )of all principal ,interest, fees and other amounts outstanding under
this Letter or any part thereof (“Liabilities”)
and/or
to require the Borrower immediately to provide full cash collateral in respect
of the Liabilities shall be immediately so payable and/or such cash collateral
shall be so provided.
(c) Notwithstanding
the clause headed “payments”
above
(which shall only apply where no demand has been made ), all monies received
by
the Bank at any time after the Bank has exercised its rights under paragraph
(a)
mentioned above shall be applied, subject to any prior ranking claims and
the
right of the Bank to place them in a suspense account pursuant to the General
Commercial Agreement:
First:
in or
towards discharging all costs and expenses incurred by the Bank in perfecting,
preserving, enforcing or attempting to so perfect, preserve of enforce its
rights under the Loan Documents;
Secondly:
in or
towards discharging all unpaid Liabilities in such order and manner as the
Bank
may prescribe;
Thirdly:
subject
to the rights of third parties of which the Bank has actual notice, any balance
in payment to the Borrower.
Breaching
Liability:
Any
loss or damage incurred from the Borrower’s failure to perform the obligations
under this letter plus such profits as shall be obtained if the Borrower
does
not fail to perform aforesaid obligations shall be compensated by the
Borrower.
Assignment:
(a)
The
Borrower shall not assign or transfer any or all of its rights or obligations
under this Letter.
(b)
The
Bank may at any time transfer all or any part of its rights and/or of its
obligations under this letter. If the transferee is a member of DBS Group
(DBS
Group members shall mean all the subsidiaries, branches which engage in the
banking businesses under the DBS Group, include but without limitation DBS
Bank
Ltd., DBS Bank (Hong Kong) Ltd. and their branches.), the Bank shall only
be
required to inform the Borrower with prior written notice. Such
transfer/modification shall enter into effect on the date stipulated in the
prior written notice. All references in this Letter to “Bank” include the
successor, transferee and any other person with which the Bank merges or
consolidates and will be deemed as if such entity formed by the merger or
amalgamation, the successor or the transferee (as the case may be) had been
a
party to this Letter in place of the Bank.
7
Data
Policy: The
Borrower agrees that the applicable Data Policies and other communications
to
customers concerning its data from time to time issued by the Bank (a member
of
the DBS Group) shall apply. A copy is available on request at any Bank or
from
its website. The Borrower agrees that all information obtained from any sources
or that arises from the relationship with the Bank (or any other DBS Group
Company) (“data”)
will be
subject to such polices/or other communications. (as may be from time to
time).
The Borrower agrees in particular that:
(a) |
The
Bank may verify, provide and collect information about the Borrower’s data
from other organizations, institutions or other
persons.
|
(b) |
The
Bank may transfer the data outside the Hong Kong Special Administrative
Region including to Singapore; and
|
(c) |
The
Bank may compare any data obtained with the Borrower’s data, and use the
results for taking of any actions including actions that may be
adverse to
the Borrower’s interest (including declining any
application).
|
The
Borrower agrees to be bound by the provisions of such Data Policies, notices
and
other communications, which shall from part of the Borrower’s agreement with the
Bank.
Relationship
with Directors/Employees:
As a
licensed bank, the Bank is subject to certain limitations in advances to
persons
related to directors or employees of the Bank or of other DBS Group banks.
By
signing this Letter, the Borrower confirms that it is not in any way related
to
any of the directors or employees of the Bank and/or its parent Bank Ltd
or its
other indebtedness to the Bank is outstanding, immediately to advise the
Bank in
writing.
Miscellaneous:
(a) Without
prejudice to any other provision of this letter, the Borrower shall be entitled
at any time to repay all the loans or any part thereof under the Facilities
on
the precondition that it has obtained the Bank’s prior approval and met all the
requirements made by the Bank (including requiring the Borrower to pay the
interests calculated from the advance repayment date to original repayment
date.)
(b) Time
shall be of essence of this Letter, but no failure or delay on the part of
the
Bank to exercise or enforce any right to remedy will operate as a waiver
therefore, nor will any single or partial of defective exercise of any right
or
remedy. The rights and remedies in this Letter are cumulative, may be exercised
as often as the Bank considers appropriate and are not exclusive of any rights
or remedies provides by law.
8
(c) Any
notice or correspondence given hereunder or to be served in respect of this
letter may be:
(ⅰ)
by
sending the same through the post from the Bank to the Borrower and shall
be
deemed to be served on the date it is sent; by sending the same through the
post
from the Borrower to the Bank and shall be deemed to be served on receipt.
(ⅱ)
by
sending the same through the fax and shall be deemed to be served on the
date it
is sent if the sending day is the working day of the receiver or shall be
deemed
to be served on the first working day immediate after the sending day if
the
sending day is not the working day of the receiver.
Should
there be a change of address to which notices must be sent, the Borrower
must
promptly inform the Bank. Such changes shall not be effective until duly
entered
in the Bank’s records.
(d) The
illegality, invalidity or unenforceability or any provision of this Letter
under
the law of any jurisdiction shall not affect its legality, validity or
enforceability under the laws of any other jurisdiction nor the legality,
validity or enforceability of any other provision.
General
Commercial Agreement: The
provisions of the General Commercial Agreement, including without limitation,
provisions relating to interest periods, shall also apply to this Letter.
If
there is any conflict between them, this Letter shall prevail.
Law:
This
Letter and the Facilities shall be governed by the laws of the PRC and the
parties hereto submit to the non-exclusive jurisdiction of the China Courts.
The
aforesaid clause shall not limit the Bank’s right to perform this letter in the
court located in any other jurisdiction area. If any lawsuit in respect of
or
arising out of this letter is brought to the China Courts, the jurisdiction
court shall be the one located in the same place as the Bank.
Please
signify your understanding and acceptance of this offer by signing and returning
to us the duplicate copy of this Letter for the attention of [name of RM],
within one month from the date of this Letter, after which this offer will
lapse. Ms. Xxxxx Xx or Mr. Xxxx Xx, within one month from the date of this
Letter, after which this offer will lapse. [Add for 2nd
new
format full offer letter: When accepted, this Letter will supersede our previous
facility letter dated 29 November, 2006 with referenced/P/S2254/0817/04.
]
9
We
enclose a set of documents which should be completed and returned to us.
If you
have any queries, please contact Ms. Xxxxx Xx or Mr. Xxxx Xx at telephone
number
(000) 00000000 or 82691005.
We
are
pleased to be of service to you.
Signed
for and on behalf of
DBS
Bank
(Hong Kong) Limited Shenzhen Branch
(Corporate
Seal)
Signed
and accepted by:
Shenzhen
Ritar Power Co., Ltd
(Corporate
Seal)
By: | /s/ Xxxxx Xx | |||
Jiada
Hu
Date:
7 March, 2006
|
||||
10
Appendix
1 Borrower
Information
Borrower
|
Shenzhen
Ritar Power Co., Ltd.
|
|
Registration
No.
|
4403012089074
|
|
Registration
Address:
|
Building
9, Xxxxxx Xxxxxxxxxx Xxxx,
Xxxxxx,
Xxxxxxx Xxxxxxx, Xxxxxxx Xxxx, Xxx’xx Xxxxxxxx, Xxxxxxxx
X.R.C.
|
|
Legal
Representative
|
Xxxxx
Xx
|
|
Mailing
Address
|
Tian’an
Digital Time Building 2200#
Xxxxxx
Xxxxxxxx, Xxxxxxxx
|
|
Fax:
|
(000)
0000 0000
|
11
Appendix
2: Disclosed
Terms and Conditions for the Factoring
Disclosed
Terms and Conditions for the Factoring, including:
a)
Advance:
Upon
the
Bank’s sole discretion, the Bank may determine the amount of the advance
pursuant to certain qualification requirement and provide the Borrower with
the
prepayment as requested, before the “Payment Due Date.”
b)
Account Receivable Management
The
Bank
agrees to manage the Borrower’s Sales Statements, send out monthly balance
statement on behalf of the Borrower to the Borrower’s debtors, and accept
payments on behalf of the Borrower relating to the Borrower’s account
receivable.
1.
(a) Maximum Amount of the Advance:
|
(i)
$300,000 U.S. dollars.
|
|
(ii)RMB5,000,000,
or U.S. dollars in equivalent value.
|
||
(b)
Percentage of the Advancet:
|
(i)
75%
|
|
(ii)
80%
|
||
(c)
Maximum Financing Period:
|
Not
to exceed 120 days from the date of invoice issuance.
|
|
(d)
Management Fee:
|
3%
of the face value of the invoice. (All remedies therein reserved,
except
remedies against Zhongda Electronic (Jiangsu) Ltd.
|
|
(e)
Interest Rate on Cash Advance:
|
45%
per annum over the People’s Bank of China prime rate on the date when such
advance is provide.
|
|
|
||
(f)
Interest Rate:
|
2%,
payable per month, accrued upon unpaid
balance
|
.
2. |
Respective
Maximum Advance Amount to certain debtors of the Borrower shall
be
determined by the Bank upon the Bank’s sole discretion, subject to the
Bank’s satisfaction with its evaluation on such debtor’s financial
conditions.
|
12
3.
|
The
Borrower shall notify its debtors in writing and in the form designated
by
the Bank.
|
4. |
When
requesting drawings by a debtor insured by China Export Credit
Insurance
Company, the Borrower shall tender relevant shipping documents
to China
Export Credit Insurance Company, and convey to the Bank the certificate
of
insurance acquired thereof together with other export documents
required
by the Bank.
|
5. |
Debtors
shall assign, transfer and convey to the Bank all interests and
rights
arising from the insurance policy pertaining to certain loans.
|
6. |
Any
advance to the Borrower shall be placed into the Borrower’s account with
the Bank, pursuant to the Borrower’s instructions via facsimile. The Bank
is not responsible for any delay, loss, damage caused by the delay,
damage
or transmission error during the facsimile process.
|
7. |
The
Borrower’s account receivables shall be duly evaluated before activation
of the Borrower’s account with the Bank. The terms and conditions of this
letter (including this appendix) may be modified according to the
result
of the evaluation. Periodic evaluations by the Bank thereafter
are also
allowed. The Bank reserves any right to modify this letter provided
it is
not satisfied with any result of the evaluation.
|
8. |
The
Standard Form Facility Agreements dated December 13, 2004 and September
30, 2005, by and between the Borrower and the Bank shall remain
full force
and effect notwithstanding the foregoing provisions. Any modification
of
terms or conditions made pursuant to this letter (including the
appendix)
shall become effective as of the date designated in the Bank’s written
notice pertaining to such modification.
|
DBS
Bank
13