Dated the 1st day of November 2006 HUA YANG PRINTING HOLDINGS CO. LTD. (as Borrower) and CORNERSTONE OVERSEAS INVESTMENTS LIMITED (as Lender)
Exhibit 4.49
Dated
the 1st day of November 2006
XXX
XXXX PRINTING HOLDINGS CO. LTD.
(as
Borrower)
and
CORNERSTONE
OVERSEAS INVESTMENTS LIMITED
(as
Lender)
AGREEMENT
FOR
HK$35,000,000
FACILITY
Solicitors
普笵糘律師
事
務
所
35th
Floor, Two International Xxxxxxx Xxxxxx,
0
Xxxxxxx Xxxxxx,
Xxxxxxx,
Xxxx Xxxx
Tel:
(000) 0000 0000 Fax: (000) 0000 0000
Website:
xxx.xxxxxxxxxxxx.xxx
Our
ref: 42547-00004/NKA/MHCW/COYY
1
CONTENTS
|
Clause
|
Heading
|
Page
|
|||||
|
1.
|
INTERPRETATION |
3
|
|||||
|
2.
|
THE FACILITY |
6
|
|||||
|
3.
|
ADVANCE |
6
|
|||||
|
4.
|
INTEREST |
6
|
|||||
|
5.
|
REPAYMENT AND PREPAYMENT |
7
|
|||||
|
6.
|
CHANGE OF LAW OR CIRCUMSTANCES |
7
|
|||||
|
7.
|
TAXES AND OTHER DEDUCTIONS |
7
|
|||||
|
8.
|
FEES AND EXPENSES |
8
|
|||||
|
9.
|
PAYMENTS AND EVIDENCE OF DEBT |
8
|
|||||
|
10.
|
WAIVER AND SEVERABILITY |
9
|
|||||
|
11.
|
MISCELLANEOUS |
9
|
|||||
|
12.
|
ASSIGNMENT |
10
|
|||||
|
13.
|
NOTICES |
11
|
|||||
|
14.
|
GOVERNING LAW AND JURISDICTION |
11
|
|||||
|
Execution
|
12
|
||||||
2
THIS
AGREEMENT
is made
on the 1st day of November 2006
BETWEEN:
|
(1)
|
|
(2)
|
CORNERSTONE
OVERSEAS INVESTMENTS LIMITED,
a
company incorporated in British Virgin Islands - whose registered
office
is PO Box 957, Offshore Incorporations Centre, Road Town, Tortola,
British
Virgin Islands, as lender (“Lender”).
|
WHEREAS:
|
(A)
|
The
Borrower is a wholly-owned subsidiary of Grand Toys International
Limited
(“Grand
Toys”),
a
Hong Kong corporation and listed on the NASDAQ (Stock Code:
GRIN).
|
|
(B)
|
The
Lender is a company controlled by Xx. Xxxx Xxxxx Cheng which in turn
is
Grand Toys’ majority shareholder.
|
|
(C)
|
The
Lender agrees to lend and the Borrower agrees to borrow the Facility
(as
defined below) subject to and upon the terms and conditions of this
Agreement.
|
IT
IS HEREBY AGREED
as
follows:
|
1.
|
INTERPRETATION
|
|
1.1
|
Definitions
|
In
this
Agreement, unless the context requires otherwise:
|
“Advance”
|
means
each lending under the Facility pursuant to Clause 3 or, as the
context may require, the principal amount advanced to the Borrower
on each
such occasion;
|
||
|
“Banking
Day”
|
means
a day (excluding Saturday and Sunday) on which banks are open for
business
in Hong Kong;
|
||
|
“Charge”
|
means: | ||
| (a) |
any
mortgage, charge, pledge, lien, encumbrance, hypothecation or other
security interest or security arrangement of any
kind;
|
||
3
| (b) |
any
arrangement whereby any rights are subordinated to any rights of
any third
party; and
|
||
| (c) |
any
contractual right of set off; and
|
||
| (d) |
the
interest of a vendor or lessor under any conditional sale agreement,
lease, hire purchase agreement or other title retention arrangement
other
than an interest in a lease or hire purchase agreement which arose
in the
ordinary course of business;
|
||
|
“Facility”
|
means
the loan facility to be made available under this
Agreement;
|
||
|
“Grand
Toys”
|
shall
have the meaning prescribed to it in Recital A;
|
||
|
“HK
Dollars”
and “HK$”
|
mean
the lawful currency for the time being of Hong Kong;
|
||
|
means
the Hong Kong Special Administrative Region of the People’s Republic of
China;
|
|||
|
“Loan”
|
means
the aggregate principal amount drawn and for the time being outstanding
under the Facility; and
|
||
|
“Unpaid
Sum”
|
shall
have the meaning ascribed to it in
Clause 4.4.
|
||
|
1.2
|
Construction
|
In
this
Agreement, unless the context requires otherwise, any reference to:
|
“including” or “includes”
|
means including or includes without limitation; | ||
|
“indebtedness”
|
includes any obligation of any person for the payment or repayment of money, whether present or future, actual or contingent, including but not limited to any such obligation: | ||
| (a) |
under
or in respect of any acceptance, xxxx, bond, debenture, note or similar
instrument;
|
||
| (b) |
under
or in respect of any guarantee, indemnity, counter security or other
assurance against financial loss;
|
||
4
| (c) |
in
respect of the purchase, hire or lease of any asset or service;
or
|
||
| (d) |
in
respect of any indebtedness of any other person whether or not secured
by
or benefiting from a Charge on any property or asset of such
person;
|
||
|
“law” and/or “regulation”
|
includes
any constitutional provisions, treaties, conventions, statutes, acts,
laws, decrees, ordinances, subsidiary and subordinate legislation,
orders,
rules and regulations having the force of law and rules of civil
and
common law and equity;
|
||
|
“order”
|
includes
any judgment, injunction, decree, determination or award of any court,
arbitration or administrative tribunal;
|
||
|
“person”
|
includes
any individual, company, body corporate or unincorporated or other
juridical person, partnership, firm, joint venture or trust or any
federation, state or subdivision thereof or any government or agency
of
any thereof;
|
||
|
“tax”
|
includes
any tax, levy, duty, charge, impost, fee, deduction or withholding
of any
nature now or hereafter imposed, levied, collected, withheld or assessed
by any taxing or other authority and includes any interest, penalty
or
other charge payable or claimed in respect thereof and “taxation”
shall be construed accordingly.
|
||
|
1.3
|
Successors
and Assigns
|
The
expressions “Borrower”
and
“Lender”
shall
where the context permits include their respective successors and permitted
assigns and any persons deriving title under them.
|
1.4
|
Miscellaneous
|
In
this
Agreement, unless the context requires otherwise, references to statutes or
statutory provisions shall be construed as references to such statutes or
statutory provisions as the same may be or have been replaced, amended, modified
or re enacted from time to time; words importing the singular include the plural
and vice versa and words importing a gender include every gender; unless
otherwise stated, references to Clauses and Schedule are to clauses of and
schedule to this Agreement and references to this Agreement include its
Schedule. Clause headings are inserted for reference only and shall be ignored
in construing this Agreement.
5
|
2.
|
THE
FACILITY
|
|
2.1
|
Amount
|
Subject
to the provisions of this Agreement the aggregate principal amount of the
Facility available to the Borrower is THIRTY-FIVE MILLION HK Dollars
(HK$35,000,000).
|
2.2
|
Purpose
|
The
proceeds of the Facility was used by the Borrower to settle the bank loan
outstanding from the Borrower to Industrial and Commercial Bank of China (Asia)
Limited on November 2006.
|
3.
|
ADVANCE
|
|
3.1
|
Availability
of Advance
|
Subject
to the terms and conditions of this Agreement, the Facility shall be advanced
by
the Lender to the Borrower in such currency and on such date as shall be
nominated by the Borrower.
|
4.
|
INTEREST
|
|
4.1
|
Interest
|
The
Borrower shall pay interest on the Loan in accordance with the provisions of
this Clause 4 on or before each scheduled repayment date as set out in
Schedule I.
|
4.2
|
Rate
of Interest
|
The
rate
of interest applicable to the Loan or the relevant part thereof shall be Hong
Kong Dollar Prime Rate as quoted by The Hongkong Shanghai Banking Corporation
Limited plus one per cent (1%) per annum.
|
4.3
|
Calculation
of Interest
|
Interest
at the rate determined as aforesaid shall accrue from the date of drawdown
until
the date of repayment from day to day, shall be calculated on the basis of
the
actual number of days elapsed and a 360 day year, including the first day of
the
period during which it accrues but excluding the last, and shall be paid in
arrears on each scheduled repayment date.
|
4.4
|
Default
Interest
|
In
the
event of default of payment by the Borrower of all or any part of the principal
amount of the Facility and interest thereon (“Unpaid
Sum”)
in
accordance with clause 5 below, default interest on the Unpaid Sum shall
accrue from the due date until the date of payment at the fixed rate of 18%
per
annum.
6
|
5.
|
REPAYMENT
AND PREPAYMENT
|
|
5.1
|
Repayment
|
Without
prejudice to Clause 5.2, the Borrower shall repay the Loan together with
any interest accrued thereon on or before each scheduled repayment date as
set
out in Schedule I.
|
5.2
|
Voluntary
Prepayment
|
The
Borrower may, without any penalty, premium or other prepayment fee, prepay
all
or part of the Loan at any time, provided that at the time of prepayment, the
Borrower shall also pay to the Lender all other sums (if any) then due and
payable by the Borrower under this Agreement.
|
5.3
|
Provisions
applicable to Prepayments
|
Any
notice of prepayment given by the Borrower under any provision of this Agreement
shall be irrevocable and the Borrower shall be bound to make a prepayment in
accordance therewith. Amounts prepaid may not be re-borrowed under this
Agreement. The interest paid by the Borrower under Clause 4.2 shall be
non-refundable notwithstanding any prepayment.
|
6.
|
CHANGE
OF LAW OR
CIRCUMSTANCES
|
If
it
becomes unlawful for the Lender to give effect to its obligations hereunder,
the
Lender shall so notify the Borrower, whereupon the Facility shall be cancelled.
The Borrower shall forthwith after such notification, or such longer period
as
the Lender may certify as being permitted by the relevant law, prepay the Loan
in full together with interest accrued thereon to the date of prepayment and
any
other monies owing hereunder.
|
7.
|
TAXES
AND OTHER DEDUCTIONS
|
|
7.1
|
No
Deductions or Withholdings
|
All
sums
payable by the Borrower under this Agreement shall be paid in full without
set
off or counterclaim or any restriction or condition and free and clear of any
tax or other deductions or withholdings of any nature. If the Borrower or any
other person is required by any law or regulation to make any deduction or
withholding (on account of tax or otherwise) from any payment, the Borrower
shall, together with such payment, pay such additional amount as will ensure
that the Lender receives (free and clear of any tax or other deductions or
withholdings) the full amount which it would have received if no such deduction
or withholding had been required. The Borrower shall promptly forward to the
Lender copies of official receipts or other evidence showing that the full
amount of any such deduction or withholding has been paid over to the relevant
taxation or other authority.
7
|
7.2
|
Advance
Notification
|
If
at any
time the Borrower becomes aware that any such deduction, withholding or payment
contemplated by Clause 7.1 is or will be required, they shall immediately
notify the Lender and supply all available details thereof.
|
8.
|
FEES
AND EXPENSES
|
Each
party shall bear its own costs and expenses incurred in connection with the
negotiation, preparation, execution and (where relevant) registration of this
Agreement and any other documentation required hereunder or thereunder and
the
arrangement of the Facility.
|
9.
|
PAYMENTS
AND EVIDENCE OF DEBT
|
|
9.1
|
Advances
|
The
amounts advanced by the Lender under this Agreement were utilized by the
Borrower to settle its bank loan outstanding due to Industrial and Commercial
Bank of China (Asia) Limited on November 2006.
|
9.2
|
Payments
by Borrower
|
The
monthly principal payment by the Borrower under this Agreement shall be made
to
the Lender by issuing eighteen (18) posted dated cheques payable to “Cornerstone
Overseas Investments, Limited at the end of the each calendar month from 31
January 2007 to 30 June 2008immediately upon completion of this Agreement.
At
the first day of each calendar month, the Lender shall issue debit note
regarding the interest payment to the Borrower and the Borrower shall within
five business working days deposit the relevant interest money into the Lender’s
bank account maintained with Industrial and Commercial Bank of China (Asia)
Limited and the relevant bank account number is 000-000-000000 and return the
original bank-in-slip to the Borrower for evidence upon payment.
|
9.3
|
Allocation
of Receipts
|
If
any
amount received by the Lender is less than the full amount due, the Lender
shall
have the right to allocate the amount received towards principal, interest
and/or other sums owing hereunder as it considers appropriate.
|
9.4
|
Banking
Days
|
If
any
sum would otherwise become due for payment on a non Banking Day that sum shall
become due on the next following Banking Day and interest shall be adjusted
accordingly, except that if any repayment due under Clause 5.1 would then
become due in another calendar month such repayment shall become due on the
immediately preceding Banking Day.
8
|
9.5
|
Evidence
of Debt
|
The
Lender shall maintain on its books in accordance with its usual practice a
set
of accounts recording the amounts from time to time owing by the Borrower
hereunder. In any legal proceeding and otherwise for the purposes of this
Agreement the entries made in such accounts shall, in the absence of manifest
error, be conclusive and binding on the Borrower as to the existence and amounts
of the obligations of the Borrower recorded therein.
|
9.6
|
Certificate
Conclusive and Binding
|
Where
any
provision of this Agreement provides that the Lender may certify or determine
an
amount or rate payable by the Borrower, a debit note to be issued by the Lender
as to such amount or rate shall be conclusive and binding on the Borrower in
the
absence of manifest error.
|
10.
|
WAIVER
AND SEVERABILITY
|
Time
is
of the essence of this Agreement but no failure or delay by the Lender in
exercising any right, power or remedy hereunder shall impair such right, power
or remedy or operate as a waiver thereof, nor shall any single or partial
exercise of the same preclude any further exercise thereof or the exercise
of
any other right, power or remedy. The rights, powers and remedies herein
provided are cumulative and do not exclude any other rights, powers and remedies
provided by law. If at any time any provision of this Agreement is or becomes
illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, the legality, validity and enforceability of such provision under
the law of any other jurisdiction, and of the remaining provisions of this
Agreement, shall not be affected or impaired thereby.
|
11.
|
MISCELLANEOUS
|
|
11.1
|
Execution
|
This
Agreement shall become effective as of the date hereof.
|
11.2
|
Entire
Agreement
|
This
Agreement and the documents referred to herein constitute the entire obligation
of the parties hereto and supersede any previous expressions of intent or
understandings in respect of this transaction.
|
11.3
|
Amendments
in Writing
|
No
amendment to this Agreement shall be valid unless it is evidenced by a written
agreement executed by the parties hereto.
9
|
11.4
|
Counterparts
|
This
Agreement may be executed in counterparts and by different parties on separate
counterparts which when taken together shall be deemed to constitute one
agreement.
|
11.5
|
Legal
Representation
|
The
parties hereby acknowledge that Xxxxxxx Xxxxx & Xxxxx only act for the
Borrower in connection with this Agreement, and the Lender has been duly advised
to seek independent legal advice and to obtain separate legal
representation.
|
12.
|
ASSIGNMENT
|
|
12.1
|
The
parties hereto agree that neither the Borrower nor the Lender shall
have
the right to assign or transfer any of its rights or obligations
hereunder
unless with written consent of the other
party.
|
|
12.2
|
Confidentiality
|
Each
party to this Agreement (together the “Parties”
and
separately, each a “Party”)
shall
not disclose to any third party any information relating to the Facility or
any
information consisting of the terms of this arrangement, evaluation materials,
financial statements or any other information which has commercial or other
value and is confidential or proprietary in nature, and otherwise not generally
available to the public (the “Confidential
Information”).
The
Parties agree that all such Confidential Information which is disclosed will
be
(i) treated confidentially by each Party and their employees, affiliates and
agents, and (ii) used solely in connection with the performance of the Parties
obligations under this Agreement and not for any other purpose. The Parties
further agree to use best efforts to safeguard the Confidential Information
from
any unauthorized use and with at least the same duty of care that each Party
and
their respective employees and agents use to safeguard their own Confidential
Information and will protect against distribution, reproduction or disclosure
to
anyone other than their directors, officers, employees or agents who need to
know such information solely in connection with this Agreement. The foregoing
provisions in this Clause 18.4 shall not apply to any disclosure required
by any applicable law or regulation of Hong Kong or elsewhere. The provisions
of
this Clause 18.4 shall survive any termination of this
Agreement.
10
|
13.
|
NOTICES
|
|
13.1
|
Delivery
|
Each
notice, demand or other communication to be given or made under this Agreement
shall be in writing and delivered or sent to the relevant party at its address
or fax number set out below (or such other address or fax number as the
addressee has by five (5) days’ prior written notice specified to the other
party):
|
To
the Lender:
|
XX000,
XX0/X, Xxxxxxxxx Xxxxxx Xxxxx, 00 Xxxx Xxxx, Xxxxxxxxxxx, Xxxxxxx,
Xxxx
Xxxx
Fax
Number: 000-0000
0000
Attention: Xx.
Xxxxx Xxx/Xxxxx Xxx
|
|
|
To
the Borrower:
|
Xxxx
X, 00/X., Xxxxx 0, Xxxxxxx Xxxxxxxxxx Xxxxxx, 57 Xxxx Xxx Road, Tai
Po,
New
Territories, Hong Kong
Fax
Number: 000-0000
0000
Attention: Xx.
Xxxx XX Xxxx
|
|
13.2
|
Deemed
Delivery
|
Any
notice, demand or other communication so addressed to the relevant party shall
be deemed to have been delivered (a) if given or made by hand, when actually
delivered to the relevant address or (b) if given or made by fax, when
despatched with a report of the sender confirming successful
transmission.
|
14.
|
GOVERNING
LAW AND JURISDICTION
|
|
14.1
|
Law
|
This
Agreement and the rights and obligations of the parties hereunder shall be
governed by and construed in accordance with the laws of Hong Kong.
|
14.2
|
Jurisdiction
|
The
parties irrevocably agree with each other that any legal action or proceeding
arising out of or relating to this Agreement may be brought in the courts of
Hong Kong and irrevocably submits to the non exclusive jurisdiction of such
courts.
IN
WITNESS WHEREOF
this
Agreement has been executed on the day and year first above
written.
11
THE
BORROWER
|
SIGNED
by XXXXX XXXXXX,
|
)
|
||||||||||
|
a
director of
|
)
|
|
|||||||||
|
XXX
XXXX PRINTING HOLDINGS
|
)
|
|
|||||||||
|
CO.
LTD.
|
)
|
|
|||||||||
|
in
the presence of:
|
)
|
|
|||||||||
|
)
|
|
||||||||||
|
)
|
|
||||||||||
|
/s/
Xxxx Xxxx Lun
|
)
|
|
|||||||||
|
Signature
of Witness
|
)
)
|
|
|||||||||
|
)
|
|
||||||||||
|
)
|
|||||||||||
|
XXXX
XXXX LUN
|
)
|
/s/
Xxxxx Xxxxxx
|
|||||||||
|
Name
of Witness (block letters)
|
)
|
Signature
of Xxxxx Xxxxxx
|
|||||||||
THE
LENDER
|
SIGNED
by XXXX XXXXX CHENG,
|
)
|
|||||||
|
a
director of
|
)
|
|
||||||
|
CORNERSTONE
OVERSEAS
|
)
|
|
||||||
|
INVESTMENTS
LIMITED
|
)
|
|
||||||
|
in
the presence of:
|
)
|
|
||||||
|
)
|
|
|||||||
|
)
|
|
|||||||
|
/s/
Yip Po Kuen
Signature
of Witness
|
)
)
|
|||||||
|
)
|
||||||||
|
)
|
||||||||
|
YIP
PO KUEN
Name
of Witness (block letters)
|
)
)
|
/s/
Xxxx Xxxxx Xxxxx
Signature
of Xxxx Xxxxx Cheng
|
||||||
SCHEDULE I
REPAYMENT
SCHEDULE
|
Repayment
date
|
Principal
HK$
|
|||
|
31
January 2007
|
1,500,000
|
|||
|
28
February 2007
|
1,500,000
|
|||
|
31
March 2007
|
1,500,000
|
|||
|
30
April 2007
|
1,500,000
|
|||
|
31
May 2007
|
2,500,000
|
|||
|
30
June 2007
|
2,500,000
|
|||
|
31
July 2007
|
2,500,000
|
|||
|
31
August 2007
|
2,500,000
|
|||
|
30
September 2007
|
2,500,000
|
|||
|
31
October 2007
|
2,500,000
|
|||
|
30
November 2007
|
1,500,000
|
|||
|
31
December 2007
|
1,500,000
|
|||
|
31
January 2008
|
1,500,000
|
|||
|
28
February 2008
|
1,500,000
|
|||
|
31
March 2008
|
1,500,000
|
|||
|
30
April 2008
|
1,500,000
|
|||
|
31
May 2008
|
2,500,000
|
|||
|
30
June 2008
|
2,500,000
|
|||
|
35,000,000
|
||||
