FINANCING AGREEMENT
THIS AGREEMENT is made and entered into as of December 15, 1993 by and
between TRB SYSTEMS INC., a New York corporation ("TRB"), and TIANJIN
WORLDWIDE INC., a New York corporation ("TWI").
W I T N E S S E T H:
WHEREAS, TRB and SINO-DANISH ENTERPRISES CO. LTD., a [nature of legal entity]
partially owned by the Municipalities of Tianjin, China ("Licensee"), have
entered into a licensing agreement on or around December 15, 1993 (the
"Licensing Agreement"), whereby Licensee is granted a license to manufacture
the TRB Patent Bicycles (as defined in the Licensing Agreement) for the
purpose of selling them back to TRB; and
WHEREAS, in order for TRB to purchase the TRB Patent Bicycles from Licensee
pursuant to the Licensing Agreement, TWI desires to provide certain financing
to TRB up to $2,000,000 under the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and promises set forth herein, the parties hereto agree as follows:
Section 1. Letters of Credit.
1.1. TWI agrees to seek the issuance of one or more irrevocable documentary
letters of credit acceptable to TRB (each such documentary letter of credit
being an "LC"), in respect of TRB Patent Bicycles purchased by TRB from
Licensee, on the terms and conditions hereinafter set forth.
1.2. Within 5 working days after receipt by TWI of a written request from
TRB in substantially the form of Exhibit A hereto (the "LC Request"), TWI
shall cause an LC to be issued in accordance with each LC Request; provided,
however, that TWI has a right to refuse each LC Request under Section 1.6
below, in which event TWI shall notify TRB of such refusal within 2 working
days after receipt of such request. If TWI fails to so notify, it is deemed
that the LC Request concerned is accepted by TWI.
1.3. TRB shall pay TWI a financing charge of $11 per unit of the TRB Patent
Bicycles shipped under each LC (the "Financing Charge"), payable on or before
the 60th day after the date the TRB Patent Bicycles covered by such LC are
delivered to a warehouse in the United States jointly designated by TRB and
TWI (such 60th day after the delivery date being the "Payment Due Date").
1.4. On the Payment Due Date for each LC, Licensor shall reimburse Licensee
for all amounts, including all banking charges
except late payment charges, reimbursed to a bank on account of payments made
of any proper draft duly presented against such LC.
1.5. In the event that TRB pays the purchase price for any shipment of TRB
Patent Bicycles without obtaining financing from TWI, TRB shall not pay any
Financing Charge to TWI but shall pay to TWI $1 per unit for TWI's
cooperation with Licensee.
1.6. TWI shall not be obligated to seek the LC's for the benefit of TRB
in an aggregate amount exceeding at any time outstanding $2,000,000 (two
million dollars).
Section 2. Repayment by Sales Proceeds- Upon receipt by TRB of any sales
proceeds of the TRB Patent Bicycles, TRB shall, to the extent there exists
outstanding indebtedness by TRB to TWI, utilize at least 50 percent of the
sales proceeds so as to reduce such indebtedness. Any outstanding balance
indebtedness shall be paid by TRB on or before the Payment Due Date.
121
Section 3. Security Interest. TRB hereby grants to TWI a security interest
in the TRB Patent Bicycles shipped to TRB under the foregoing financing
furnished by TWI, together with any proceeds thereof, to secure the payment
by TRB to TWI of any outstanding indebtedness hereunder.
Section 4. Term and Termination This Agreement shall continue in force for
a period of five years from the date of this Agreement, and thereafter shall
be renewed on mutually agreeable terms and conditions for additional
successive one-year periods unless one party gives the other notice of its
intention to terminate no later than 90 days prior to the expiration of the
term hereof or of any renewal period.
Section 5. Notices. All notices and other communications provided for
hereunder shall be in writing and mailed or delivered, if to TRB, at TRB
Systems Inc., 000 Xxxxxxxxxx Xxxxxxx, Xxxxx 00, Xxxxxxxxxx, Xxx Xxxxxx
00000, Attention: Xxxxx X. Xxx; if to TWI, at its address at 00-00 Xxxx
00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Mr. Zong Xx
Xxx, Chairman; or as to either party at such other address as is designated
by such party in a written notice to the other party. All such notices and
other communications shall, when mailed or delivered, respectively, be
effective when deposited in the mails by registered or certified mail,
postage prepaid, or delivered by commercial courier, addressed as aforesaid.
Section 6. Amendments. This Agreement may not be changed, amended or
modified except by a writing signed by the parties hereto.
12/14/93/PPV/09152/OO1/AGREE-11/27189.1
Section 7. Waiver. The waiver by either party hereto of any right
hereunder, or of the failure to perform or breach by the other party,
shall not be deemed a waiver of any other right hereunder or of any other
breach or failure by said other party, whether of a similar nature or
otherwise.
Section 8. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
Section 9. Entire Agreement. This Agreement (together with the Exhibits
hereto) constitutes the entire agreement and understanding by the parties
hereto as to the subject matter of this Agreement, and merges all prior
discussions by and between them.
Section 10. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but shall not be assignable or delegable
by any party without the prior written consent of the other party.
Section 11. Execution in Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their respective officers thereunto duly authorized, as of the
date first above written.
TRB SYSTEMS INC. TIANJIN WORLDWIDE INC.
By: /s/ Xxxxx X. Xxx /s/ By: /s/ Tao Zong-Yu /s/
Name: Xxxxx X. Xxx Name: Tao Zong-Yu
Title: President Title: Chairman and President
12/15/93/PPV/09152/001/AGREE-11/27189.1
000
XXXXX XX XXX XXXX)
)SS.
COUNTY OF NEW YORK)
On this 15th day of December 1993, before me came Xxxxx X. Xxx, who
presented evidence to me of his identity and who executed the
foregoing instrument on behalf of TRB Systems, Inc. and who acknowledged
that he executed the same.
/s/ Xxxxxx Xxxxxxxx /s/
Notary Public
Xxxxxx Xxxxxxxx
Notary Public, State of New York
No.00-0000000
Qualified in New York County
Commission Expires September 30, 0000
XXXXX XX XXX XXXX)
)SS.
COUNTY OF NEW YORK)
On this 15th day of December 1993, before me came Zong Xx Xxx, who presented
evidence to me of his identity and who executed the foregoing instrument on
behalf of Tianjin Worldwide Inc. and who acknowledged that he executed the
same.
/s/ Xxxxxx Xxxxxxxx /s/
Notary Public
Xxxxxx Xxxxxxxx
Notary Public, State of New York
No. 00-0000000
Qualified in New York County
Commission Expires
September 30, 1995
12/15/93/PPV/09152.001/AGREE-11/27189.1
123
