Irrevocable Guarantee for Maximum Amount Contract No.: 2011 Nanzi. No.0011818815-2
Exhibit 4.25
Irrevocable Guarantee for Maximum Amount
Contract No.: 2011 Nanzi. No.0011818815-2
To: China Merchants Bank Co., Ltd. Shenzhen Jinzhonghuan Sub-branch (the “Bank”)
Whereas:
The Bank and Wuxi Zastron Precision-Flex Co., Ltd, (the “Borrower”) have entered into the Banking Facility Letter No. (2011) Nanzi 0011818815 (the “Facility Agreement”) on January 12, 2012. According to the Facility Agreement, between January 18, 2012 and January 18, 2013 (the “Term of Facilities”), the Bank shall provide banking facilities up to XXX 00 million (including other currencies of the equivalent value) to the Borrower.
At the request of the Borrower, the Guarantor agrees to issue the guarantee to assume joint and severable liability for all the debts of the Borrower repayable to the Bank under the Facility Agreement under the following terms and conditions:
1 The Guarantee Is the Maximum Amount Guarantee
1.1 During the Term of Facilities, the Bank shall provide loans or other facilities to Borrower according to Facility Agreement and/or specific contracts under the Facility Agreement. Revolving facility allows Borrower to utilize the facilities that has been utilized and repaid, while under non-revolving facilities, Borrower cannot utilize repeatedly. The amount, period and purpose of each loan or other facility are stipulated by the specific contract.
The maturity dates of specific businesses can be later than the maturity date of Term of Facilities in Facility Agreement.
1.2 If Borrower has not repaid all the loans, advances or other facilities provided by the Bank when the Term of Facilities expires, the Guarantor shall assume joint and severable liability for repaying within the guarantee scope specified in Clause 2 herein; if the Bank requires Borrower to repay the loans before the expiry of Term of Facilities in accordance with Facility Agreement and/or specific contracts, the Guarantor shall assume joint and severable liability for repaying within the guarantee scope specified in Clause 2 herein.
1.3 If the Bank provides commercial draft guarantee, issue letters of credit (including entrusting others to issue, hereinafter the same), letters of guarantee and delivery against bank guarantee, the Guarantor shall bear joint and severable liability within the scope specified in Clause 2 herein for any advances of the Bank incurred by the above-said businesses after the expiry of the Term of Facilities even if the Bank has not provided any advances for Borrower during the Term of Facilities.
1.4 Renewal of the Facility Agreement or amendments of terms under it made between the Bank and Borrower with regard to periods, interest rates and amounts of specific businesses during the performance of Facility Agreement, or the Bank’s adjustment of interest rates during Term of Facilities in accordance with the Facility Agreement and/or specific contracts are not subject to the Guarantor’s consent or acknowledgment, and have no impacts on the joint and severable liability assumed by the Guarantor herein.
1.5 If the Bank discovers anything incompliant with its requirements in documents received for providing letters of credits under the Facility Agreement, and Borrower admits the incompliance, the Guarantor shall assume liability for the principal and interest incurred by the external acceptance or payment, and shall not demur because the Bank accepts the incompliance without obtaining the Guarantor’s consent or notifying the Guarantor.
1.6 Amendments to letters of credit and guarantee (or stand-by letters of credit ), acceptance of time letters of credit or postponement of payment terms upon guarantee of due payment are not subject to the Guarantor’s consent or acknowledgement, and have no impacts on the joint and severable liability assumed by the Guarantor herein.
2 Scope of Guarantee
2.1 The guarantee provided by the Guarantor covers principal balance of loans and other facilities provided by the Bank to the Borrower (RMB 50 million at most) and interest, interest penalties, compound interest, penalties for default, factoring and other costs for exercising the creditor’s rights, including without limitation:
2.1.1 Balance of the principal of facilities granted by the Bank according to specific contracts under the Facility Agreement and interests, interest penalties, compound interest, penalties for default and other costs;
2.1.2 Balance of the principal of advances made by the Bank for the Borrower for fulfilling the payment liability for commercial drafts, letters of credit and guarantee and delivery against bank guarantee issued under the Facility Agreement, interest, interest penalties, compound interest, penalty for default and other costs;
2.1.3 Creditor’s rights to the Borrower’s receivables transferred to the Bank and related penalties for delaying (overdue penalties) under factoring businesses, and/or basic acquisition payment paid by the Bank to the Borrower (basic underwriting payment) and relate factoring costs;
2.1.4 Advances the Bank entrusts banks to made in trade financing businesses under the Facility Agreement and balance of principal of the payment, interest, interest penalties, compound interest, penalties for default and other costs;
2.1.5 Balance of principal of advances made by the Bank for fulfilling the issuing bank’s obligations, import xxxx advances and debts caused by delivery against bank guarantee and interest, interest penalties, compound interest and penalties for default and other costs after the Bank issues letters of credit at the request of the Borrower and entrusts other branches to issue letters of credit for beneficiaries;
[ ] 2.1.6 Balance unpaid in specific businesses under the previous Facility Agreement (No ) signed between the Bank and Borrower from the effective date of this agreement (xxxx “ü” in [ ] if the clause is applicable);
2.1.7 All the costs arising from recovering debts from Borrower by the Bank, including without limitation legal costs, attorney fees, announcement, delivery and traveling fees.
2.2 In terms of revolving facilities, if the balance of the principal of loans or other facilities provided by the Bank to the Borrower exceeds the credit line, the Guarantor is not liable for the excess of the balance over the credit line, and is only liable for principal of loans or other facilities and interest, penalties, compound interest, penalties for default and other costs within the credit line.
Notwithstanding the foregoing, the Guarantor acknowledges that despite the balance of the principle of loans or other facilities provided by the Bank to the Borrower exceeds the credit line, but remains within the credit line when the Bank requires the Guarantor to undertake the guarantee responsibility, the Guarantor shall not demur on the ground of the foregoing clause and shall assume joint and severable liability for the balance of all the principals of facilities provided and interest, interest penalties, compound interest, penalties for default and other costs (see Clause 2.1 for the specific scope).
3 Ways of Guarantee
The Guarantor shall assume joint and severable economic and legal liability for all the debts of the Borrower within the scope specified in Clause 2 herein. If the Borrower fails to repay the principal and interest of loans, advances and other facilities and other costs repayable to the Bank as agreed upon in the Facility Agreement and/or specific contracts, or in case of any default provided in the Facility Agreement and/or specific contracts, the Bank has the right of recourse against the Guarantor without first demanding repayment from Borrower or instituting a proceedings. Even if the Borrower provides pledges or mortgages or other guarantees to repay all the debts under the Facility Agreement, the Bank has the right of recourse against the Guarantor for all the debts under the Facility Agreement without first disposing of the pledges, mortgages or goods and bills for trade financing or demanding repayment from other guarantors.
The recourse notice issued by the Bank is final and the Guarantor shall accept it unconditionally. The Guarantor agrees that it shall fully repay all the debts of the Borrower under the Facility Agreement within 5 days of receiving the written recourse notice of the Bank without any certification or other documents issued by the Bank. Unless with obvious and material mistakes, the Guarantor accepts the amount of repayment required by the Bank as accurate.
The Bank has the right to take appropriate measures, including without limitation fax, mail, delivery by hand and public announcement, to demand payment from the Guarantor.
4 Guarantee Term
The term of the guarantee begins on the effective date of the guarantee and ends on the maturity date of each loan or other facilities or creditor’s right for receivables of the Bank or two years after the date when each advance is made. The term of guarantee for renewal of each facility lasts for 2 years after expiry of the renewed period.
5 Independence of the Guarantee
The guarantee is independent, continuously effective, irrevocable and unconditional. It is unaffected by the effectiveness of the Facility Agreement and other specific contracts, or any agreements and documents between the Borrower and any organizations and person, or fraudulence, reorganization, suspension of business, dismissal, liquidation, bankruptcy, merger, division and reform of the Borrower, or any extension and postpone of time for the Borrower by the Bank or delaying in exercising the right to demand repayment from the Borrower.
Even if the Bank waives, change or release the pledge, mortgage or relieves other guarantors from liability, the Guarantor shall assume the guarantee liability in accordance with the guarantee.
6 Special Statement and Guarantee
6.1 The Guarantor is a legal person lawfully established or other organizations with the qualification as a guarantor, or natural person with full capacity for civil conduct (ID No. ). The Guarantor agrees to pledge all its assets or assets that it has right to dispose of to guarantee the obligation provided herein;
6.2 The Guarantor has obtained authorization or approval of the superior department/board of directors to provide the guarantee;
6.3 The guarantee is made on a bona fide basis.
6.4 During the effective term of the guarantee, the total amount (including converted foreign exchanges) of the guarantee shall not exceed the Guarantor’s total owner’s equity;
6.5 The Guarantor shall provide financial statements to the Bank as required and notify the Bank of the Guarantor’s significant decisions and changes with regard to its production, business and management;
6.6 The financial statements and other documents provided by the Guarantee to the Bank are real and lawful and the Guarantor’s legal representative or other responsible persons shall assume legal responsibility;
6.7 The Guarantor shall issue the guarantee confirmation at the request of the Bank;
6.8 The binding force of the guarantee for the Guarantor will remain unaffected by any change to the Guarantor’s industry and commercial registration, organization structure, equity structure, business operation or financial conditions or any debt restructuring or significant connected transaction. If such changes may impact the Guarantor’s capability of performing the guarantee, the Guarantor shall immediately notify the Bank.
6.9 The guarantee is binding on the Guarantor’s successor or assignee. The Guarantor shall not transfer the above-mentioned obligations without the Bank’s written consent.
6.10 If the Guarantor fails to fully repay the guaranteed debts according to the guarantee, the Bank has the right to deduct the amount from the Guarantor’s account at the Bank or entrust another financial institution to deduct the amount from the Guarantor’s account at the financial institution until all the debts of the Borrower under the Facility Agreement are repaid.
7 Non-waiver Clause
During the effective term of the guarantee, the Bank’s tolerance of any default or delaying of Borrower and Guarantor, extension or delay in performing Facility Agreement and interests or rights of the Bank under the guarantee shall not damage, impact or restrict interests and rights of the Bank as the creditor according to applicable law and this guarantee, and are not deemed as waiver of the right to take actions for current or future default.
8 Solution of Disputes
The guarantee is governed by law of the People’s Republic of China. Any disputes arising from the guarantee will be settled through ways agreed in Facility Agreement.
9 Definitions
Unless otherwise expressively specified, terms in the guarantee have the same meanings provided in Facility Agreement.
10 Notice
Notices and requests between the Bank and Guarantor with regard to the guarantee shall be made in writing. Documents delivered by hand are deemed received after the receiver signs for the documents (if the documents are rejected by the receiver, they will be deemed received on the rejection date); documents mailed will be deemed received after 7 days of the delivery; documents faxed will be deemed received when the receiver’s fax machine receives the fax.
The announcement issued by the Bank on media to request for repayment will be deemed received on the issuance date.
Address of the Guarantor: Namtai Industrial Estate, 2 Namtai Road, Gushu Community, Xixiang Street, Bao’an District, Shenzhen
If the Guarantor changes the address, the Guarantor shall prompt notify the Bank, or the Guarantor shall bear any losses caused hereby.
11 Effectiveness
11.1 If the Guarantor is a legal person or other organization, the guarantee comes into force on the date when the Guarantor’s legal representative/major responsible person or authorized person signs/stamps the guarantee and imprints the Guarantor’s contract stamp on the guarantee.
11.2 If the Guarantor is a natural person, the guarantee comes into force on the date when the Guarantor signs the guarantee.
12 Creditor’s Rights and Transfer of Accessory Rights
12.1 No matter whether the creditor’s rights of the maximum amount guarantee are confirmed, when the Bank transfer its creditor’s rights under the Facility Agreement to a third party, the maximum amount guarantee will be transferred to the assignee of the creditor’s rights.
12.2 After the creditor’s rights of the guarantee are confirmed, when the Bank transfers part of its creditor’s rights, the Guarantor’s accessory rights under the guarantee will be partly transferred. The Bank and the assignee of the transferred creditor’s rights will jointly share the rights and interests of the Guarantor under the guarantee; before the creditor’s rights under the guarantee are confirmed, if the Bank transfers part of its creditor’s rights, the rights and interests will be transferred partly. The maximum amount of the Bank’s main creditor’s rights under the previous maximum amount guarantee will decrease (the maximum amount of the Bank’s main creditor’s rights less the transferred part of the creditor’s rights). After the main creditor’s rights of the remaining part are confirmed, the Bank and the assignee of the transferred creditor’s rights will share the rights and interests of the Guarantor under the guarantee.
13 Supplementary Provision
The guarantee is made in three copies, one for Bank, Borrower and Guarantor, with equal legal force.
(The page is left blank for signature)
Note: All the terms of the guarantee are fully negotiated by the parties. The Bank has required the other parties to notice and understand terms about relief or restrict of the Bank’s responsibility, rights only enjoyed by the Bank, and increase of responsibilities of other parties or restrict of their rights. The Bank has explained such clauses at the request of the other parties. Parties that sign the guarantee have consistent understanding about the clauses in the guarantee.
Guarantor (legal person or other organization): /s/ X. X. Xxx
| Guarantor: Namtai Investment (Shenzhen) Co., Ltd (stamp) | ||
Legal representative/main responsible person or authorized person (signature or stamp):
Address of the Guarantor: Namtai Industrial Estate, 2 Namtai Road, Gushu Community, Xixiang Street, Bao’an District, Shenzhen
Guarantor (natural person):
Guarantor (signature):
Guarantor’s address: Xxxxxx Xxxxxxxxxx Xxxxxx, 0 Xxxxxx Xxxx, Xxxxx Community, Xixiang Street, Bao’an District, Shenzhen
Bank of Deposit:
Settlement account:
Tel.:
Fax:
Signing date: January 13, 2012.
(required fields)
