EXHIBIT 10.3
RMB FINANCING AGREEMENT
Agreement No. 2003 0166204R
Financing type: working capital loan
Loanee: Shenzhen ACTO Digital Video Tech. Co., Ltd.
Address:2608-2616 ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ Zhonglu, Shenzhen City
Legal representation: ▇▇▇ ▇▇▇▇
Loaner: China Construction Bank Shenzhen Branch
Person in Charge: Sun Jiancheng
Sub-branch: ▇▇▇▇ ▇▇▇▇ sub branch
Address: ▇▇▇▇ ▇▇▇-▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇ Garden, Long Gang Disc.,
Shenzhen City
Postcode: 518112
Fax: ▇▇▇▇-▇▇▇▇▇▇▇▇
Tel: ▇▇▇▇-▇▇▇▇▇▇▇▇
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Loanee (Party A): Shenzhen ACTO Digital Video Tech. Co., Ltd.
Loaner (Party B): China Construction Bank Shenzhen Branch
Party A seeks loan from Party B and Party B agrees to finance Party A. Both
parties agree the following articles according to relevant regulations and laws.
ARTICLE ONE:
Party A borrowed RMB10,000,000 Yuan (US$1,204,819) from Party B.
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ARTICLE TWO:
The loan will be used for working capital of Party A.
ARTICLE THREE: TERM OF LOAN
The term of this loan is one year starts from March 26th, 2003 to March 25th,
2004.
If the starting date of loan of this contract is different from the loan
indenture, the date of the loan indenture of first round loan will be used as
the standard. The loan indenture is part of this contract and has the same legal
effectiveness of this contract.
ARTICLE FOUR: LOAN INTEREST, INTEREST CALCULATION AND INTEREST CLEARANCE
1. The loan interest of this contract is 0.4425% per month.
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2. Interests of the loan will be calculated from the date the loan is
transferred to Party A's account and the interest will be paid monthly on
the 20th day of each month, daily interest is monthly interest/30.
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3. If Bank of China adjusts interest from the contract date to the first round
loan transfer, the interest will be calculated according to (A)
(A) The interest rate will use the contract rate mentioned above.
(B) The interest rate will use the after-adjustment rate.
4. Calculation and adjustment of the interest will accord the regulations by
Bank of China. If there is any amendment of relevant regulations by Bank of
China during the loan period, Party B has the right to execute the new
regulations without notice Party A.
ARTICLE FIVE: DISBURSEMENT OF THE LOAN
1. Precondition of the disbursement
(A) Party B has the responsibility to disburse the loan only if all the
preconditions below are satisfied unless Party B partly or wholly
waive.
(1) Party A has finished processing including approvals, filings etc.
according to relevant laws and regulations.
(2) The guarantee contract or other guarantee means has been effected if
there is any.
(3) Party A has not breached any term of this contract.
(4) Any other precondition both parties has agreed:
(B) If Party A satisfies all the preconditions above, Party B will start
to disburse loan to Party A within 10 days.
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ARTICLE SIX: PAYMENT
1. Payment ▇▇▇▇▇
Any payment of this contract will be paid interest first then corpus.
2. Payment of interest
Party A should pay interest on the interest payment day. The first payment of
interest should be paid on first interest payment day after first round
disbursement of loan. The final payment will be the interest and corpus
together.
3. Payment of corpus
4. Payment method
Party A should deposit enough cash on its bank account before the payment day or
transfer capital to Party B on the payment day, if Party A delayed payment,
Party B has the right to collect from Party A's accounts in China Construction
Bank.
5. Advanced redemption
(A) If Party A wants to make advanced redemption of interest it needs to
notice Party B.
(B) If Party A wants to make advanced redemption of corpus it needs to
give Party B written notice 10 working days in advance and only make
the payment with Party B's agreement.
Party A agrees to pay subvention if make advanced redemption of corpus,
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subvention amount=advanced redemption amount x 0.05ie x advanced days
Party A should pay advanced redemption by the reverse order and Party A should
pay interest for residual amount according to this contract.
ARTICLE SEVEN: LOAN GUARANTEE
The type of the guarantee is 1
-
1. Guarantee
2. Mortgage
3. Hypothecation
4. Credit
5. Credit insurance
6. Others
ARTICLE EIGHT: PARTY A'S RIGHTS AND RESPONSIBILITIES
1. Rights
(A) To ask Party B to disburse loan according to this contract.
(B) To use the loan according to the usage term of this contract.
(C) To apply the extension of loan term if satisfied Party B's
requirements.
(D) To ask Party B to obey the confidentiality term for the financial
statements and operation materials offered, the conflicts with
relevant regulations and laws are exemptions.
2. Responsibilities
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(A) To offer Party B its financial statements and operation materials
within first 10 days of each season, should include balance sheet,
profit and loss account, cash flow statement, Party A should be
responsible for the authenticity, completeness and effectiveness of
these statements.
(B) To use the loan according to usage term, not to misconduct or to
peculate.
(C) Corporate Party B to investigate and review its operation,
accounting activities etc.
(D) To make the payment on time.
(E) Could not guarantee for the third party by the capital borrowed by
this contract without the permission of Party B.
(F) If Party A wants to guarantee for any third party by its assets it
needs to notice Party B by written and get permission.
(G) If the warrantor of this contract has stopped production, shut up
shop, logout registration, be revoked business license, bankrupted,
report loss etc. and partly or wholly lost its capacity to guarantee,
or the guaranties of this contract lost, diminished or the value
decreased, Party A should immediately offer other guarantee/guaranty.
(H) Party A should notice Party B if there is any change in its name,
legal representation, address, business core, registered capital etc.
(I) If there is any change in shareholder structure, lease, merger,
acquisition, set up joint venture, divestitures, dissolutions, apply
bankruptcy etc. which will effect the payment ability of Party A,
Party A should notice Party B in written 10 days in advance, get the
permission and solve the payment with Party B according to Party B's
requirements.
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(J) If Party A is to stop production, shut up shop, logout registration,
be revoked business license, the legal representation or main person
in charge involved in material lawbreakings, resulted in the material
difficulty in operation or accounting and the ability of payment is
fundamentally effected, Party A should notice Party B by written and
solve the payment and guarantee issued according to Party B's
requirements.
(K) To be charged for the legal, insurance, valuation, registration,
safekeeping, appraisal and notarization fee relevant to this
contract.
ARTICLE NINE: PARTY B'S RIGHTS AND RESPONSIBILITIES
1. Rights
(A) To comprehend the operations and accounting activities of Party A, to
ask Party A to offer relevant plans, statistics, financial statements
etc.
(B) To deduct the payment from Party A's account in all branches in China
Construction Bank in any currency. 2. Responsibilities (A) To
disburse loan on time according to this contract, the delays due to
Party A's problem is exemption. (B) Obey the confidentiality term for
Party A's operation and business materials. ARTICLE TEN: BREACH 1.
Situations (A) Party A breaches the contract (1) Did not offer to
Party B true, whole, effective financial statements and/or operation
reports according to Party B's requirements.
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(2) Did not use the loan according to usage term of this contract.
(3) Did not pay interest and/or corpus on time.
(4) Refuse or block Party B's investigation on the usage of loan.
(5) Transfer the capital, misconduct capital etc. to avoid debt.
(6) Operational or accounting situation exacerbated and could not make the
payment on time, or involved in any material lawsuit which makes Party
B believes its interest under this contract had been damaged.
(7) Other debt responsibility may or has affected the payment ability.
(8) Party A has failed to pay mature loan issued by China Construction
Bank.
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(9) During the period of validity, Party A processes lease, merger,
acquisition, set up joint venture, pool, divestitures, changes in
shareholder structure etc. which makes Party B believes it will affect
the payment ability of Party A or damage the interest of Party B.
(10) Any material problems which Party B believes it will affect the
payment of debt.
(11) Breach of any other responsibility terms of this contract.
(B)In case the warrantor processes the following activities, it will be regarded
as breach of the contract by Party A if Party B receives no new reasonable
guarantee from Party A :
(1) Warrantor processes contracting, lease, merger, acquisition, set up
joint venture, pool, divestitures, changes in shareholder structure
etc, which will influence the warrantor's joint liability for
guarantee
(2) Warrantor supplies the third party with guarantee unaffordable
(3) Warrantor loses or by any possibility to lose ability of guarantee
(4) Other breaches of the contract of the guarantee by the warrantor
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(C)In case the mortgagor processes the following activities, it will be regarded
as breach of the contract by Party A if Party B receives no new reasonable
guarantee from Party A:
(1) Mortgagor doesn't cover insurance for property in mortgage
according to Party B's requirements, or doesn't handle the
insurance indemnity as per the mortgage contract after insured
accident occurred.
(2) In case of damage, loss or devaluation of the guaranty, the
mortgagor doesn't handle the damage indemnity as per the
mortgage contract
(3) Without the written consent of Party B, mortgagor handles the
guaranty through donation, demise, lease, remortgage,
transference or other activities.
(4) Mortgagor handles guaranty with the consent of Party B, but
doesn't handle the received indemnity from guaranty as per the
mortgage contract.
(5) In case of damage, loss or devaluation of the guaranty, which
can affect liquidation of the debt under this contract,
mortgagor does not regain the former value of the guaranty or
can not supply other guaranty accepted by Party B.
(6) Other breaches by the mortgagor according to the mortgage
contract.
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(D)In case the ▇▇▇▇▇▇▇ processes the following activities, it will be regarded
as breach of the contract by Party A if Party B receives no new reasonable
guarantee from Party A:
(1) ▇▇▇▇▇▇▇ doesn't cover insurance for property in pledge according
to Party B's requirements, or doesn't handle the insurance indemnity
as per the pledge contract after insured accident occurred.
(2) In case of damage, loss or devaluation of the pledged property
caused by the third party, the ▇▇▇▇▇▇▇ doesn't handle the damage
indemnity as per the pledge contract
(3) ▇▇▇▇▇▇▇ handles pledged property with the consent of Party B, but
doesn't handle the received indemnity from the pledged property as per
the pledge contract.
(4) In case of damage, loss or devaluation of the pledged property,
which can affect liquidation of the debt under this contract,
together with the interest, ▇▇▇▇▇▇▇ does not regain the former value
of the pledged property or can not supply other kind of guaranty
accepted by Party B.
(5) Other breaches by the ▇▇▇▇▇▇▇ according to the pledge contract.
(E) The following situations shall be regarded as breaches of the
contract by Party A: The contract of guarantee is not put into effect, of no
effect, cancelled, or other situations in which the guarantee fully or partly
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loses the ability to offer guarantee or rejects to perform the responsibility of
guarantee and Party A supplies no new guarantee to Party B.
2. Remedies
In case the situations described in (A)-(E) occur, Party B reserves the
following right(s):
(A) Party B may stop granting loan, declare that loan expires immediately
and ask Party A to compensate for all the debts under this contract,
together with interests and relative expenses.
(B) Party B may ask Party A to pay the penalty at the rate of 6.3ie of the
corpus.
(C) In case Party A does not make use of the loan according to the purpose
described in this contract, according to relative regulations of the
People's Bank of China, Party B may make a levy of interest on part of
the loan which is peculated by Party A.
(D) Before the loan expiration, the interests unpaid punctually by Party A
shall be calculated at compound rate according to relative regulations
in Article 4 of this contract.
(E) If exceeding the loan expiration date, the loan and interests on it
unpaid punctually by Party A(including the whole or part of the loan
and interest expire in advance, which declared by Party B) shall be
calculated at compound rate according to relative regulations showed
in this contract and which are issued by People's Bank of China.
Exceeds the loan expiration date is defined as IF Party A does not
make the full payment on scheduled date or does not clear each payment
on time.
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(F) To transfer any types of currency from Party A's account opened at
China Construction Bank
(G) To ask Party A to supply new guarantee for the payment of the debts.
(H) To exercise the rights of guarantee.
(I) To terminate the contract.
Article 11 The bank which is responsible for performance, execution of
this contract and other issues Party B authorizes China Construction Bank
Shenzhen Branch ▇▇▇▇ ▇▇▇▇ sub branch to be the bank which are responsible
for performance, execution of this contract, and litigation etc. Article
12 Other items agreed by both parties.
Article 13
Disputes occurred during the performance of this contract shall be
resolved through consultation, or otherwise to take the following way 2
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1. ▇▇▇ the court where Party B is located
2. Bring to Shenzhen arbitration commission(place of arbitration:
Shenzhen ) and arbitrate according to existing valid arbitration
regulations. The arbitration shall be final one which is binding
on both parties.
During arbitration, the articles which have no connection with the
disputes still shall be performed and executed. Article 14 Execution of
Contract The contract will come into effect after it is signed and sealed
by both parties' legal representatives or authorized agents.
Article 15 IN WITNESS WHEREOF, the parties have caused this Contract to be
executed in four copies.
Article 16 Declaration
1. Party A has a good understanding of Party B's range of business
and limits of authority.
2. Party A has read all of the articles under this contract. Party B
has given relative explanation of the articles according to
requirement of Party A. Party A has a fully knowing and good
understanding of the meaning of the articles together with
corresponding legal consequence.
3. Party A is entitled to execute this contract.
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Party A: Shenzhen ACTO Digital Video Technology Co. Ltd.
Legal Representative:
Date: March 26 2003
Party B: China Construction Bank Shenzhen Branch
Legal Representative:
Date: March 26 2003
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CHINA CONSTRUCTION BANK SHENZHEN BRANCH
ADVICE OF DRAWING
Loanee: Shenzhen ACTO Digital Video Tech. Co., Ltd.
Agreement No. 2003 0166204R
Account No.of Loan: 024010030000066
Account No.of Deposit: 024010020001127
Business Code: 708841295-9
Type of Currency: RMB
Amount of Loan: (Y)10,000,000
Valid date of drawing:
Within 20 days since the day when the Loan Agreement comes into effect
If loanee wants to draw out in one time, the valid date of drawing shall be
within 20 days since the day of 26 Mar. 2003.
China Construction Bank Shenzhen Branch:
Aggording to the agreement executed on 25 Mar. 2003 between us, we are preparing
to draw out all the loan in one time, and the amount is(Y)10,000,000. Please
transfer this amount of money to our account opened in your bank (Please see the
account No. given above)
Loanee: Shenzhen ACTO Digital Video Tech. Co., Ltd.
Legal Representative: ▇▇▇ ▇▇▇▇
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Shenzhen ACTO Digital Video Tech. Co., Ltd.
We have received your advice of drawing. We will transfer the amount described
in the advice to your account in our bank within 7 days since we have signed in
this advice.
China Construction Bank Shenzhen Branch
Date of Execution: 2003
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CHINA CONSTRUCTION BANK SHENZHEN BRANCH
VOUCHER OF LOAN TRANSFER DEPOSIT
Loanee: Shenzhen ACTO Digital Video Tech. Co., Ltd.
Amount of Transfer Deposit: (Y)10,000,000
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