Exhibit
10.33


 


	
   

  	
  Agreement
  No. : 53092100927201

  



 


 


Mortgage Agreement


 


Important : This Agreement is entered
into by and between the parties in accordance with relevant laws and
regulations and based on equal and free negotiations, and all the provisions under
this Agreement represent true intention of both parties. In order to fully
protect the legal rights of mortgagor, mortgagee specifically urges the
mortgagor to carefully read the provisions in bolded fonts of this Agreement,
and consider the contents thereof thoroughly.


 


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Mortgagee: Industrial
and Commercial Bank of China Limited, Shanghai Pudong Development Zone
Sub-Branch  (hereinafter “Party A”)


 


Principal : Yanfen Wu


 


Business Address : No. 1391, Jinqiao Road,
Pudong New Area, Shanghai


 


Tel & Fax : 68455836   58992264


 


Mortgagor: OmniVision
Technologies (Shanghai) Co., Ltd. (hereinafter “Party B”)


 


Legal Representative : HE XINPING


 


Business
Address or Domicile :  Room 402, No. 88,
Lane 887, Zuchongzhi Road, Shanghai


 


Tel &
Fax: 61055132 61055101


 


To
secure the creditor’s rights of Party A, Party B is willing to provide a
mortgage guaranty (counter-guaranty) to Party A. For the purpose of specifying
both parties’ respective rights and obligations, and in accordance with the
Contract Law, the Guarantee Law, the Property Law and other relevant laws and
regulations, Party A and Party B hereby enter into this Agreement after equal
consultation.


 


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Article I    The Master Creditor’s Right Guarantied


 


Article 1.1  The master
creditor’s right guaranteed by Party B shall be the creditor’s right that Party
A is entitled to under Item A below (hereinafter “Master Agreement”)
entered into with OmniVision Technologies (Shanghai)
Co., Ltd. (hereinafter the “Debtor”):


 


A.  Fixed Assets Loan Agreement (No.: 53092100927
)


B.  Bank Acceptance Agreement (No.:           )


C.  Guarantee Issuance Agreement (No.:          )


D.  Letter of Credit Issuance Agreement
(No.:          )


E.


 


Article 1.2  The amount and
term of the master creditor’s right shall be subject to the provisions of the
Master Agreement.


 


Article II   
The Scope of the Mortgage Guaranty


 


The scope of Party B’s mortgage guaranty shall include:
the principal  of the master
creditor’s right, its interests, penalty interests, compound interests,
liquidated damages, compensatory payments, and all expenses incurred in connection with the
realization of the mortgage claims (including but not limited to litigation
costs, attorney fees, appraisal fees, etc.).


 


Article III   
The Mortgaged Properties


 


Article 3.1  Details of the
mortgaged properties are set forth in the “List


 


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of
Mortgaged Properties” attached hereto, which shall have the same legal force as
this Agreement.


 


Article 3.2  The effect of
Party A’s mortgage claims shall extend to the accessory items, accessory
rights, supplementary items, annexed items, and natural and legal proceeds of
the mortgaged properties, subrogation of the mortgaged properties, and the
insurance proceeds, indemnification, or compensation derived as a result of
damage, loss or expropriation of the mortgaged properties.


 


Article 3.3  If the Debtor
defaults on debt payments, or if the mortgage is foreclosed under this
Agreement, and that the mortgaged properties are sequestered by the People’s
Court, then as of the date of sequestration, Party A shall be entitled to
collect the natural and legal proceeds derived from the mortgaged properties, and
such collection shall first be used to offset the expenses of collecting the
same.


 


Article 3.4  Any provisions
about the value of mortgaged properties in the “List of Mortgaged Properties”
shall not be used as a basis for valuation by Party A in the disposition of the
mortgaged properties, nor shall those provisions constitute any restrictions
upon Party A in the exercise of its right to the mortgage.


 


Article 3.5  The ownership certificates of the mortgaged
properties and relevant materials shall be kept by Party A after confirmation
by both Party A and Party B, unless otherwise stipulated by laws and
regulations.


 


Article 3.6  During the period of mortgage, Party B shall
keep the mortgaged properties in good condition, and shall not use the
mortgaged properties in any unreasonable manner so as to cause the value to
decrease. Party A shall have the right to inspect the usage and management of
the mortgaged properties at any time.


 


Article 3.7  In the event the mortgaged properties are
damaged, lost or expropriated, Party B shall immediately inform Party A, and
timely


 


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provide
to Party A the proof of damage, loss or expropriation issued by relevant
competent authorities or authorized departments.


 


Article 3.8  In the event the
mortgaged properties are damaged, lost or expropriated, the insurance proceeds,
indemnification or compensation received by Party B shall be used to pay in
advance the master creditor’s rights, or at the consent of Party A, to restore
the value of the mortgaged properties, or to be deposited into the bank account
designated by Party A, to guarantee the fulfillment of the debt under the
Master Agreement. The remaining portion of the mortgaged properties, which
value is not decreased, shall remain the guaranty for the master creditor’s
rights.


 


Article 3.9  In the event
Party B’s action is likely to decrease the value of the mortgaged properties,
Party B shall immediately cease any such act. If the value of the mortgaged
properties has decreased, Party B shall restore the value of the mortgaged
properties, or provide additional guaranties equal to the amount of decrease.


 


Article IV   
Mortgage Registration


 


Within
ten days of execution of this Agreement, Party A and Party B shall register the
mortgage with relevant mortgage registration authorities. If there is any
change to the mortgage and amended registration is required by law, both
parties shall timely file the amendment registration.


 


Article V   
Insurance


 


Article 5.1  Within fifteen days of execution of this
Agreement, as


 


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requested
by Party A, Party B shall have in place appropriate insurance coverage for the
mortgaged properties. If the mortgaged properties cannot be fully insured
immediately due to the reasons of the insurance agency, Party B shall timely
apply for new insurance coverage to prevent any interruption of coverage during
the term of this Agreement.


 


Article 5.2  Party B shall
designate Party A as the first beneficiary of insured events in the insurance
policy, and insurer shall pay the insurance proceeds directly to Party A. The
insurance policy may not have any provision restricting Party A’s rights and
interests.


 


Article 5.3  During the term of this Agreement, Party B
shall not for any reason interrupt or cancel the insurance coverage; in case of
such interruption, Party A shall have the right to procure insurance on behalf
of Party B, at Party B’s expenses.


 


Article 5.4  During the term
of this Agreement, in case of occurrence of any insured event to the mortgaged
properties, the insurance proceeds shall be processed in accordance with Article 3.8
hereof.


 


Article VI   
Chattel Mortgage


 


Article 6.1  In the event that
Party B uses its current and future manufacturing equipment, raw materials,
work-in-progress inventory, or finished goods as collateral, then such
collateral shall be determined upon occurrence of any of the following events:


 


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A.  Party A’s right as creditor is not realized
at the maturity of the debt;


 


B.  Party B is declared bankrupt or
its business is suspended;


 


C.  The mortgage is foreclosed pursuant to
provisions of Article 7.1;


 


D.  There occurs other situation that materially
affects realization of the rights of Party A as a creditor.


 


Article 6.2  In the event that
Party B uses the above-mentioned properties as collateral to provide guaranty
to Party A, provisions of this and other Articles of this Agreement shall
apply.


 


Article VII   
Foreclosure of the Mortgage


 


Article 7.1  Party A is
entitled to foreclose the mortgage in case of any of the following
circumstances:


 


A.  The Debtor fails to pay off the debt upon
maturity of the master creditor’s right (including accelerated maturity);


 


B.  In case of the circumstances as set forth in Article 3.9,
Party B fails to restore the value of the mortgaged properties, or to
provide additional guaranties equal to the amount of decrease;


 


C.  Party B or the Debtor is
petitioned for bankruptcy or closes the business, dissolves, liquidates, is
suspended for restructuring, or when the business license is voided or revoked;


 


D.  Party B fails to comply with fair dealing
principles in the course of its business, and disposes of the chattels that
have been put as


 


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collateral;


 


E.  Other circumstances as stipulated by laws and
regulations where Party A may realize its right to the mortgage.


 


Article 7.2  In the event Party A forecloses the mortgage,
it may, through negotiation with Party B, be paid out of the proceeds from the
auction or sale of the mortgaged properties, or keep the mortgaged properties
to offset the debt owed by the Debtor. If Party A and Party B fail to reach an
agreement on the manner of mortgage settlement, Party A may directly petition
to the People’s Court to have the mortgaged properties auctioned off or sold.


 


Article 7.3  When the proceeds
from the disposal of the mortgaged properties are in a different currency from
that specified in the Master Agreement, such proceeds shall be converted into
the currency as denominated in the Master Agreement for repayment to Party A,
using the applicable exchange rate as published by Party A.


 


Article VIII   
Representations and Warranties of Party B


 


Party
B hereby makes the following representations and warranties to Party A:


 


Article 8.1  Party B is the owner or state-authorized
manager of the mortgaged properties, and has full power and right to dispose of
the mortgaged properties. The mortgaged properties are free and clear of
disputes concerning the ownership, right of use or operation and management
rights. The mortgage guaranty to Party A has been duly authorized or approved
in accordance with relevant procedures and authorities under the corporate bylaws,
and not against the laws and regulations and other relevant provisions.


 


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Article 8.2  If Party B is a listed company or a
subsidiary of a listed company, it promises to fulfill its obligation to timely
disclose the information regarding the mortgage guaranty pursuant to the
Securities Law, the Stock Exchange Share Listing Rules and other relevant
laws, regulations and rules.


 


Article 8.3  Party B fully
understands the purposes of the loan under the Master Agreement, and
voluntarily provides the mortgage guaranty, and all representations made under
this Agreement are true and genuine.


 


Article 8.4  The mortgage of
the properties under this Agreement is lawful and not subject to any other
restrictions.


 


Article 8.5  Party B has fully
disclosed the defects of the mortgaged properties under this Agreement, and
provided reasonable explanations to Party A.


 


Article 8.6  The mortgaged
properties are not subject to any sequestration, seizure or held in custody
under the law.


 


Article 8.7  If the mortgaged
properties are leased in part or in whole, Party B has informed the lessee of
the mortgage, and informed Party A in writing of the relevant leasing status.


 


Article 8.8  There are no other
liens on the mortgaged properties for other creditors, or if such lien exists,
Party B has informed Party A in writing.


 


Article 8.9  The mortgaged
properties are not jointly owned, or if jointly owned, Party B has obtained
written consent from the joint owner(s) for the mortgage.


 


Article IX   
Undertaking of Party B


 


Party
B hereby makes the following undertakings to Party A:


 


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Article 9.1  In any of the following
situations, Party B agrees to remain responsible for its guaranty obligations
under this Agreement, with no need to obtain its consent:


 


A.  Party A agrees with the Debtor to amend the
Master Agreement, without increasing the burden or obligations on the Debtor;


 


B.  The amount of the master creditor’s right is
changed due to floating interest rate adopted by the Master Agreement, or due
to interest rate policy adjustment made by People’s Bank of China;


 


C.  Party A assigns the master creditor’s right
and the mortgage.


 


Article 9.2  Without Party A’s written
consent, Party B undertakes to not create further mortgage or pledge in any
manner on the mortgaged properties, nor to lease, transfer or give away the
mortgaged properties to any third party, and Party B shall protect the
mortgaged properties from any damage.


 


Article 9.3  Party B agrees to bear all the
expenses in connection with the execution and performance of this Agreement,
including but not limited to insurance, authentication, appraisal, registration
and other relevant fees.


 


Article 9.4  In case Party A’s right to the
mortgage is harmed or likely to be harmed by any third party, Party B commits
to timely notify Party A and assist Party A in avoiding such harm.


 


Article 9.5  Party B agrees to actively
cooperate with Party A in the mortgage foreclosure, and not create any obstacle
for Party A in its exercise of mortgage right.


 


Article 9.6
Party B agrees to timely notify Party A in the event of any of the
following:


 


A.  changes to corporate bylaws, business scope,
registered capital, legal representative or equity interest;


 


B.  business closure, dissolution, liquidation,
closing down for


 


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restructuring, business license
being cancelled, being revoked, or filed for bankruptcy;


 


C.  involvement or possible involvement of
material economic dispute, litigation, arbitration, or when its properties are
sequestered, seized or held in custody according
to laws;


 


D.
 where Party B is a natural person,
changes to the place of domicile, working place, contact information, etc.


 


Article 9.7  Party B agrees to timely accept
the written notice sent by Party A.


 


Article 9.8  Where there is (are) other
guaranty(ies) on Party A’s master creditor’s right, no matter whether such
guaranty is provided by the Debtor or a third party, Party A is entitled to
determine in its sole discretion the sequence of guaranty realization, and
Party B undertakes to not dispute such determination. Waiver, modification or
forfeiture of Party A’s rights and interests to the other guaranty(ies) under
the Master Agreement does not void or diminish Party B’s obligations of the
mortgage guaranty.


 


Article X  
Undertaking of Party A


 


Party A hereby makes the
following undertakings to Party B:


 


Article 10.1  Party A agrees to maintain in
confidence the confidential information in the documents, financial and other
relevant materials furnished by Party B in performing its obligations under
this Agreement, unless otherwise stipulated by laws, regulations and rules;


 


Article 10.2  If, after the debts
covered by the mortgage guaranty are paid off, there is still a balance of the
proceeds from the disposition of the mortgaged properties, the balance will be
returned to Party B in a timely


 


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manner.


 


Article XI   
Default


 


Article 11.1  After the this Agreement is
effective, failure of either party to perform any of its obligations under this
Agreement, or breach of any representation, warranty and undertaking under this
Agreement, shall constitute a default. The defaulting party shall compensate
the other party for the damages caused thereto.


 


Article 11.2  Except as otherwise provided in this
Agreement, if either party is in default, the other party shall have the right
to take any measure afforded by laws, regulations and rules of the People’s
Republic of China.


 


Article XII   
Effect, Amendment and Cancellation


 


Article 12.1  This Agreement shall take effect upon
execution, and terminate when the debts owed to Party A under the Master
Agreement are fully paid off.


 


Article 12.2
 Any amendment to this Agreement
shall be made in writing upon consensus of both Party A and Party B. The
amended provisions or covenants shall constitute a part of this Agreement, and
have the same legal force as this Agreement. Except for the parts amended, the
remaining parts of this Agreement shall continue to be effective, and the
original provisions of this Agreement shall remain valid until the amended
parts take effect.


 


Article 12.3  Invalidity or unenforceability
of any provision of this


 


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Agreement shall not affect the
validity and enforceability of other provisions of this Agreement, nor shall
affect the effectiveness of the entire agreement.


 


Article 12.4  The amendment and cancellation
of this Agreement shall not affect each party’s right to claim for damages. The
cancellation of this Agreement shall not affect the validity of relevant
dispute resolution provisions under this Agreement.


 


Article XIII 
Dispute Resolution


 


The execution, validity,
interpretation, performance and dispute resolution of this Agreement shall be
governed by the laws of the People’s Republic of China. All disputes arising
out of or related to this Agreement shall be resolved through negotiation
between the parties. Where the negotiation fails, such disputes shall be
settled according to Item B below:


 


A.  Through arbitration, at the _______
Arbitration Commission according to the arbitration rules of such
commission effective at the time of the arbitration petition. The arbitration
shall be conducted at _______ (arbitration place), and the arbitration award
shall be final and binding upon the both parties.


 


B.  Through litigation at the People’s Court
where Party A is located.


 


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Article XIV   
Miscellaneous


 


Article 14.1  Without Party A’s written
consent, Party B shall not transfer in whole or in part its rights or
obligations under this Agreement.


 


Article 14.2
Non-exercise, partial or tardy exercise by Party A of any right under
this Agreement shall not constitute its waiver or modification of such right or
any other right, nor impair its ability to further exercise such right or any
other right.


 


Article 14.3  Party A shall have the right to
provide the information of this Agreement and other pertinent information in
accordance with the relevant laws and regulations or other regulatory documents
or as required by financial regulators to the credit information database at
the People’s Bank of China, or to other credit database legally set up, to be
available for inquiries and uses by appropriately qualified agencies or
individuals. For the purpose of executing and performing this Agreement, Party
A shall also be entitled to check Party B’s relevant information via the credit
information database at the People’s Bank of China and via other credit
database legally set up.


 


Article 14.4  This Agreement shall be made in
six originals. Party A, Party B and other parties involved shall
hold one copy each, all copies of which shall have the same legal force.


 


Article XV   
Other Matters Agreed by Both Parties


 


Article 15.1  Both parties hereby confirm that the mortgaged
properties under this Agreement are the land use right and the project under
construction, instead of chattel mortgage. Therefore, all the provisions under Article VI
“Chattel Mortgage” and the provision regarding chattel mortgage in Article 7.1
(D) under Article VII “Foreclosure of the Mortgage” are not
applicable to this Agreement. In addition, there is no


 


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other guaranty on the master creditor’s right under
this Agreement other than this mortgage, and therefore, Article 9.8 under Article IX
“Undertaking of Party B” is not applicable to this Agreement.


 


Article 15.2  The parties agree that the Loan under the Master Agreement may only be used
for the development and construction of the land located at Local 61/1,
Xinsheng Village, Zhang Jiang Town (No. 88 Shang Ke Road, Zhang Jiang).


 


Article 15.3  The Bank (i.e., Party A of this Agreement) shall exercise control and
management over the use of the Loan.


 


Article 15.4  The costs of the Land that have been paid off (inclusive of payments for
the land-use right purchase, the relocation and municipal preliminary
infrastructure development, and land compensation fees) are RMB 28,944,102.32 Yuan.


 


Article 15.5  The costs of the project are RMB 111,991,669 Yuan.


 


Article 15.6  The value of the Mortgage
Property is at least 25% of the cost of the project under construction.


 


Appendix: List of Mortgaged Properties


 


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Party A : Industrial and Commercial Bank of China
Limited, Shanghai Pudong Development Zone Sub-Branch (Official Seal)


 


 


Authorized Representative : Wu Yanfen (personal stamp)   (Signature/Seal)


 


(Industrial and Commercial Bank of China Limited,
Shanghai Pudong Development Zone Sub-Branch) (Seal Affixed)


 


Party B : OmniVision Technologies (Shanghai)
Co., Ltd. (Official
Seal)


 


 


Legal Representative (Authorized Agent) :  He
Xinping  (personal stamp) (Signature/Seal)


 


(OmniVision Technologies (Shanghai) Co., Ltd.) (Seal
Affixed)


 


 


Date: August 27, 2009


 


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Appendix to the Mortgage
Agreement numbered 53092100927201:


 


List of Mortgaged Properties


 


	
  Certificate

  	
   

  	
  Hu Real Estate Pu
  No. (2009) 049568

  
	
  Location

  	
   

  	
  Local 61/1, Xinsheng Village,
  Zhang Jiang (No. 88 Shang Ke Road, Zhang Jiang, Pudong New District)

  



 


	
  Building

  Number

  	
   

  	
  Unit and Location

  	
   

  	
  Type

  	
   

  	
  Structure

  	
   

  	
  Floor

  	
   

  	
  Purpose

  	
   

  	
  Construction

  Area (m2)

  	
   

  	
  Underground

  Area

  	
   

  	
  Remarks

  
	
  #1

  	
   

  	
  Whole Building

  	
   

  	
  Industrial

  	
   

  	
  Reinforce Concrete

  	
   

  	
  8/1

  	
   

  	
  Factory

  	
   

  	
  45681.61

  	
   

  	
   

  	
   

  	
  Building #1

  
	
  #2

  	
   

  	
  Whole Building

  	
   

  	
  Industrial

  	
   

  	
  Reinforce Concrete

  	
   

  	
  5

  	
   

  	
  Factory

  	
   

  	
  5606.22

  	
   

  	
   

  	
   

  	
  Building #2

  
	
  #3

  	
   

  	
  Whole Building

  	
   

  	
  Industrial

  	
   

  	
  Reinforce Concrete

  	
   

  	
  1

  	
   

  	
  Factory

  	
   

  	
  423.76

  	
   

  	
   

  	
   

  	
  Power facility room

  
	
  Total Construction Area:  51711.59 m2

  	
   

  	
  Total Land Area: 

  	
   

  	
  Value of the Real Property
  Rights: 140 Million Yuan

  



 


	
  Mortgagor:

  	
  Mortgagee:

  
	
  OmniVision Technologies
  (Shanghai) Co., Ltd. (seal added)

  	
  Industrial and Commercial
  Bank of China Ltd., Shanghai Pudong Development Zone Sub-Branch (seal added)

  
	
   

  	
   

  
	
  Principal: He Xinping (personal stamp)

  	
  Principal: Wu Yanfen (personal stamp)

  
	
   

  	
   

  
	
  Date:
                    
       2009

  	
   

  



 


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