融资租赁合同模板-英文.doc

Annex 6 Seller’s Credit Agreement

P21

THIS SELLER’S CREDIT AGREEMENT is made and entered into on ________ day of _________ (month), ____ (year), by and between: between Wuhan Fiberhome International Technologies Co., Ltd, a corporation incorporated incorporated and existing under the laws of the People’s Republic of China (hereinafter referred to as “the Lender” which expression where the context so admits shall include its assign and successors in title), with its principal place of business located at 88 Youkeyuan Road, Hongshan District, Wuhan, People’s Republic of China(hereinafter referred to as “the Lender” which expression where the context so admits shall include its assign and successors in title) and Win Win Net Corporation Co., Ltd(WNC), a company incorporated and existing registered under the laws of the Kingdom of Thailand (hereinafter referred to as “the Borrower”, which expression where the context so admits shall include its assign and successors in title), with its principal office at Win Win Tower, 11th Floor, 86 Ratchadapisek Road, Chankasem, Chatuchak, Bangkok 10900, Thailand (hereinafter referred to as “the Borrower”, which expression where the context so admits shall include its assign and successors in title).
WITNESSETH THAT:
A WHEREAS, Borrower is a telecommunications service provider licensed to provide telecommunications services within the Kingdom of Thailand;and.

B WHEREAS, Borrower wishes to deploy a FTTH network in the Kingdom of Thailand using Lender’s products and associated services;and

C WHEREAS, Lender has experience and expertise in the business of designing, integrating, manufacturing, supply, servicing and financing of fiber communications cables and telecommunication equipments;and.

D WHEREAS, Borrower has approached Lender for a credit facility to finance the first phase of deployment of the FTTH network in Thailand hereinafter referred to as “the Network” and as described in the Contract to deploy the Network within the Kingdom of Thailand hereinafter referred to as “the Principal Contract” with the contract No. WNC-FHI-HTT-01/2009 –WNC FTTH PROJECT;and.

E WHEREAS the Lender has agreed to grant to the Borrower the credit facility to finance the first phase of deployment of the said Network in Thailand under the terms and conditions hereunder provided, by means of its equipment, implementation and services.

NOW THEREFORE , IN CONSIDERATION OF THE PREMISES AND COVENANTS DESCRIBED HEREINAFTER, THE PARTIES AGREE AS FOLLOWS:

1. Definitions:

For the purpose of this Agreement, the definitions set forth in this section shall apply to the respective terms when employed both in singular and plural forms:

The following phrases and words used in this Agreement shall have the following meanings:

1.1 "Agreement" means this agreement including amendments, modifications and supplements hereto or any part thereof (including any Exhibits or Schedules) pursuant to the terms of this Agreement, provided all such exhibits, amendments, modifications and supplements are reduced to writing and signed by both the Lender and the Borrower.

1.2 “Principal Contract” means the Contract No. WNC-FHI-HTT-01/2009 –WNC FTTH PROJECT to deploy a FTTH Network within the Kingdom of Thailand between the Lender and the Borrower.

1.3 “Contract Value” means the cost of the Contract Equipment and Services. The total Contract Value shall be split into 4 phases as stipulated in the Principal Contract.

1.4 “Effective Date” means the date on which this Agreement is duly executed by the parties hereto this Agreement is signed by the parties.

1.5 “Grace Period” shall be commenced from the shipment date of supply for the WNC FTTH Project-Phase I.

1.6 “The Credit Facility” means 70% of the contract value of Phase I. The credit facility shall be up to the sum of USD 64,827,445.00 (SAY US DOLLARS SIXTY-FOUR MILLION EIGHT HUNDRED AND TWENTY-SEVEN THOUSAND FOUR HUNDRED AND FORTY-FIVE ONLY).

1.7 “Delivery Point” means the customs facility in Thailand mutually agreed upon by the parties.

1.8 “Project” shall mean the purpose or undertaking for which the credit facility is granted, as described in this Agreement or as maybe amended from time to time.

1.9 “Lien” includes charges, pledges, mortgages, privileges, priorities, encumbrances or securities of any kind.

2. The Credit Facility:

2.1 The Credit Facility: The Credit Facility shall be available upon terms and conditions set forth in this Agreement, the Financial Proposal, and the Principal Contract.

2.2 The Lender has agreed to grant to the Borrower the principal amount of USD 64,827,445.00 (SAY US DOLLARS SIXTY-FOUR MILLION EIGHT HUNDRED AND TWENTY-SEVEN THOUSAND FOUR HUNDRED AND FORTY-FIVE ONLY) for the purpose of financing for partial cost of deployment of the Network in accordance with the Principal Contract and Annexure thereto or such as other changes or variations as the Parties hereto may deem necessary in the circumstance.

2.3 Tenor of the Credit Facility: The tenor of the Credit Facility shall be three (3) years and three (3) months.

2.4 Grace Period: There shall be a Grace Period of 3 months from the date of shipment of the supply for Phase I.

2.5 Repayment of the Credit Facility: The repayment of the Credit Facility shall be in United States Dollars and shall be repaid in twelve (12) equal quarterly installments in the sum of US$5,402,287 (SAY US-DOLLARS FIVE MILLION FOUR HUNDRED AND TWO THOUSAND TWO HUNDRED AND EIGHT-SEVEN ONLY) to commence after the Grace Period.

2.6 The repayment of the Credit Facility by the Borrower shall on demand or without demand within the first week of each quarter in accordance with the conditions herein contained.

2.7 If any amount due under this Agreement is not paid when and as due, such amount shall bear interest from the date such payment was due until and including the date such payment is received by Lender at a rate per annum equal to LIBOR + 400Bp (LIBOR + 4.0 %) per annum (the Default Rate).

2.8 Prepayment of the Credit Facility: The Borrower may prepay the Credit Facility in advance of maturity or due date without penalty; provided however, that all accrued and calculated interest outstanding or expected as of the time are also paid.

2.9 Place and Method of Payment: The principal and/or interest on the Credit Facility shall be paid on the due date by the Borrower to the Lender at Lender’s address specified in this Agreement or such other place the Lender may indicate in writing 7 days before the due date.

3. Interest and Fees

3.1 Interest: The Borrower shall pay to the Lender interest at the rate equal to LIBOR plus 400Bp on all outstanding balance from time to time. The interest shall accrue from the date of shipment of the supply for Phase I of the Network until the total credit amount is fully repaid. The interest shall be payable based on the prevalent LIBOR on the first day of each quarter (actual LIBOR). Interest for the first 10 installments will be paid with LIBOR assumed to be that on the date of both Parties signing the Principal Contract, which is 2.13% on March 13, 2009 (assumed LIBOR). The balance accrued from the difference between the assumed LIBOR and the actual LIBOR shall be settled in the last 2 installments of repayment for the Credit Facility.

3.2 Legal Fees and Related Costs and Expenses: All costs and expenses, including insurances, lawyers professional fees, documentary stamps, taxes and other legal charges payable in connection with the execution, delivery, registration and enforcement of the Agreement, the guarantee and the other documents referred to herein shall be for the account of the Borrower.

4. Security
4.1 Security: To secure repayment of the Credit Facility and the performance of all obligations of the Borrower under this Agreement, the borrower shall provide at least one of the following means as financial security to the Lender:

2
3
4
4.1
4.1.1 Before the commissioning date of the network under implementation schedule of Phase I, Borrower shall be responsible for rendering all its resources to assist the Lender until Lender has reached a Receivables Purchase Agreement (sans recourse purchase) with any bank accepted by Lender;

4.1.2 Borrower shall provide a security covering at least 35% of the BOQ contract value of Phase I either in the form of Cashier’s Check or Bank Guarantee. This security shall be irrevocable and transferable and made payable to Lender unconditionally, and shall be released subject to the consent of the Lender.

4.2 Regulatory Agency Approvals of Charges/Mortgages: In case any provision of law or contract requires the prior authorization, approval or consent of any department, bureau, office, agency or instrumentality of the government or of any person, association, corporation or other entities for a valid and proper creation or execution by the Borrower of any charge, security, mortgage or lien required to be executed in favor of Lender, the Borrower shall secure such authorization, approval or consent and cause the same to be issued in the proper or stipulated form and/or endorse on the deed of mortgage or lien. Conversely, where the Lender by the failure of the Borrower shall take steps to acquire such consents, approvals and authorizations, all fees and charges incurred shall be for the account of the Borrower.

5. Project and the Borrower

5.1 Borrower shall guarantee to follow the reimbursement schedule and amounts in the appendix Credit Analysis by means of its revenue gained from the Network and its own cash flow. The Contractor’s real rights in the contractual equipments of Phase I shall remain valid until Employer has effected reimbursement as scheduled.

5.2 Maintenance of Legal Personality: Borrower shall cause to be done all things necessary to maintain and preserve the corporate existence, rights and franchises of Borrower and shall comply with all related laws applicable to Borrower and/or its subsidiaries.

5.3 Financial Information: Borrower shall furnish or cause to be furnished to Lender, as soon as practicable and in any event within thirty (30) days after the close of each fiscal quarter, the following unaudited financial statements of Borrower for each such quarter, all in reasonable detail and certified by a Responsible Officer of Borrower to be true and correct: balance sheet, statement of income, and statement of cash flows all as of the end of such fiscal year (together, in each case, where applicable, with the comparable figures for the prior fiscal year), all in reasonable detail. Annual consolidated financial statements shall be prepared and audited (without any qualification or exception deemed material by Lender) in accordance with generally accepted accounting principles applied on a basis consistently maintained throughout the period involved (except as disclosed in the notes to the financial statements) by independent auditors of recognized national standing or otherwise reasonably acceptable to Lender.

5.4 Concurrently with the information described in 5.3 above, a certificate of a Responsible Officer of Borrower stating that the consolidated financial statements delivered to Lender are properly stated and that there exists no Event of Default, or event which with notice or lapse of time, or both, would constitute an Event of Default, or, if any such event exists, specifying the nature and period of existence thereof and what action Borrower proposes to take with respect thereto.

5.5 Borrower shall also furnish or cause to be furnished, from time to time, such additional financial and other information as Lender may reasonably request in order to monitor the financial condition of Borrower.

5.6 Borrower shall also furnish or cause to be furnished information relating to further borrowing from third parties that may have substantial effects on the Borrower’s finances or cash flow.

5.7 Prohibition against Alienation or disposition: The Borrower shall at no time, while any part of the Credit Facility or any other obligation of the Borrower to the Lender remains unpaid, sell, assign, transfer, alienate, encumber, lease, remove or otherwise dispose of any asset or property purchased or financed with the proceeds of the Credit Facility or mortgaged, pledged or assigned to the Lender.

6. Representations & Warranties

Borrower hereby represents and warrants to Lender that for the duration of the Agreement that:

6.1 It is a company duly incorporated and validly existing, organized and in good standing under the laws of Kingdom of Thailand, and has the full legal power to enter into and perform this Agreement, and to borrow funds and own property and carry on the business. The Borrower has the power to execute and deliver, and to perform its obligations under this Agreement, the Security and to take all necessary corporate or legal action to authorize each of the foregoing and undergoing acts. It has obtained all necessary consents and authorities from all parties required or entitled to be consulted about acceptance of the terms of the Credit Facility and such terms will not conflict with any existing law or with any other Agreements to which the Borrower is a party.

6.2 The Agreement and the security constitute valid, legal and binding obligations enforceable in accordance with their respective terms.

6.3 No event has occured which constitutes a default by the Borrower under or any respect of any Agreement, undertaking or instrument to which the Borrower is a party or by which the Borrower or any of its assets or properties maybe bound. Furthermore, no event has occured which with the giving of notice, lapse of time or other condition will constitute a default by the Borrower under or in respect of any such agreement, undertaking or instrument.

6.4 Legal Proceedings. Borrower covenants that there is no action, suit or proceeding pending or, to the knowledge of Borrower, threatened, at law or in equity or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, that might result in a material adverse change in Borrower’s ownership or title to any of the Collateral or in its financial condition or operations. As used in this subsection, the phrase “to the knowledge of Borrower” shall mean the current actual knowledge of the executive officers and directors of Borrower.

6.5 Disclosure. This Agreement does not contain any untrue statement of a material fact and does state all material facts necessary in order to make the statements contained herein not misleading in light of the circumstances under which they were made. There is, to the knowledge of Borrower, no fact that would materially adversely affect its business, prospects, condition, affairs or operations or any o