AMENDED AND RESTATED LOAN AGREEMENT
AMENDED
AND RESTATED LOAN AGREEMENT
This
Amended and Restated Loan Agreement (the “Agreement”) is entered into in
ShenZhen as of February 08, 2007 by the following
parties.
Party
A:
JingWei HengTong Technology (ShenZhen) Co., Ltd. (经纬恒通科技（深圳）有限公司
)
Registration
Address: Xxxx 0000 X,Xxxxxx Xx-xxxx Xxxxx Xxxxx X,Xxxx An Cyber Park,Futian
District,Shenzhen,China
Party
B:
Mr. JianGuo Du
ID
No.
310104640815041
Party
C:
Ms. AiLing Yin
ID
No.
310104660918042
Party
D:
Xx. XxxXxxx Yin
ID
No.
410802640601252
WHEREAS,
1.
Party
A
is a wholly-owned foreign enterprise incorporated in the People’s Republic of
China (the “PRC”);
2.
Party B, C and D (collectively the “the Borrowers”) are the citizens of
the PRC. They own respectively 90% (Party B), 8% (Party C) and 2% (Party
D) of the equity interests of ShenZhen JingWei Communication Co., Ltd.
(the “ShenZhen JingWei”) incorporated in ShenZhen;
3.
Party A provides an interest-free loan RMB 2,000,000 to Party B,
Party C and Party D for their capital contribution of ShenZhen
JingWei;
NOW
THEREFORE, All parties agree to amend and restate the Original Loan Agreement
as
follows:
1.
Party A agrees to provide an interest-free loan to the Borrowers with the
principal as RMB 2,000,000 in accordance with the terms and conditions
set forth in this Agreement. RMB 1,800,000 is loaned to Party B, RMB 160,000
is loaned to Party C and RMB 40,000 is loaned to Party
D.
2.
The
Borrowers confirm that they have obtained the total amount of the loan and
have
invested them into ShenZhen JingWei as capital contribution.
3.
The
Term
of such loan starts from the date that the Borrowers received the loan until
ten
(10) years after signing this Agreement and could be extended upon the written
agreement of three parties through negotiations. During the term or extended
term of such a loan, Party A may accelerate the loan repayment, if any of the
following events occurs:
(1)
The
Borrower quits or is dismissed by Party A or its affiliates;
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(2)
The
Borrower dies or becomes a person without capacity or with limited capacity
for
civil acts;
(3)
The
Borrower commits a crime or is involved in a crime;
(4)
Any
other
third party claims more than RMB100,000 against the Borrower; or
(5)
According
to the PRC laws, Party A or its designated person may be qualified to invest
in
the business of value-added telecommunication, such as internet information
service and other services, which ShenZhen JingWei runs, and also Party A will
have given a written notice to ShenZhen JingWei and exercised its right of
purchase in accordance with the terms under the exclusive purchase agreement
speculated in Article 4 of this agreement.
4.
All
parties herein agree and confirm that, according to the PRC laws, Party A or
its
designated person (including natural person, legal entity or any other entity)
has the right, but the obligation, to purchase all or part of the equity
interest held by Party B and/or Party C and/or Party D in ShenZhen JingWei
(the
“Option Right”) at anytime, however, Party A shall notify Party B, Party C and
Party D of such purchase of equity interests with a written notice. Once the
written notice for exercising the Option Right is issued by Party A, Party
B,
Party C and Party D shall sell their equity interests of ShenZhen JingWei with
the original invest price (the “Original Investment Price”) or other price
allowed by laws according to the consent of Party A to Party A or its designated
person. All parties agree and confirm that when Party A exercises the Option
Right, the price that allowed by the applicable law at the time is higher than
the Original Investment Price, Party A shall purchase the equity interests
at
the lowest price in accordance with the applicable law. All parties agree to
execute the “Amended and Restated Option Agreement” (the “Option Agreement”) in
connection with above matters and.
5.
All
parties herein agree and confirm that the Borrowers or their successors or
assignees may repay the loan only by the following methods: transfer the equity
interest in ShenZhen JingWei to Party A and use the proceeds to repay the loan
when the loan is due and Party A gives a written notice.
6.
All
parties agree and confirm that this loan is an interest-free loan unless there
are different provisions in this Agreement. But if the loan is due and the
Borrowers have to transfer their equity interests in ShenZhen JingWei to Party
A
or its designated person and the proceeds exceed the loan principal due to
the
legal requirement or other reasons, the extra amount over the principal of
proceeds will be considered as the interests or capital use cost, which shall
be
repaid to Party A.
7.
All
parties agree and confirm that the Borrowers shall be deemed the completion
of
performing their obligations under this agreement only if the following
requirements are met:
(a)
The
Borrowers have transferred all their equity interests of ShenZhen JingWei to
Party A and/its designated person; and,
(b)
The
Borrowers have repaid the total amount caused from the equity interest
transferring or the maximum amount (including principal and the highest loan
interest) allowed by the applicable law concerning loans to Party
A.
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8.
To
secure
the performance of the debt under this agreement, the Borrowers agree to
respectively pledge all their own equity interest of ShenZhen JingWei to Party
A
(the “Equity Pledge”). All parties acknowledge that, other than the debts herein
under this Agreement, the debts secured by Equity Pledge under the “Amended and
Restated Exclusive Technology Consulting Service Agreement” (the “Service
Agreement”) executed between the ShenZhen JingWei and Party A. All parties agree
to execute an “Amended and Restated Equity Interest Pledge Agreement” (the
“Equity Pledge Agreement”).
9.
Party
A
hereby represents and warrants to the Borrowers that, as of the execution date
of this Agreement:
(a)
Party
A
is a company incorporated and validly existing under the laws of
PRC;
(b)
Party
A
has the right to execute and perform this Agreement. Party A, subject to its
business scope, Articles or other institutional documents, has taken necessary
actions to get all necessary and appropriate approvals and
authorizations;
(c)
The
principal of loan to the Borrowers is legally owned by the Party A;
(d)
The
execution and the performance of this Agreement by Party A does not violate
any
laws, regulations, approvals, authorizations, notices, other governmental
documents, any agreement signed with the third party or any promise issued
to
the third party; and
(e)
This
Agreement shall constitute the legal, valid and binding obligations of Party
A,
which is upon its execution.
10.
The
Borrowers hereby represent and warrant to Party A that, from the execution
date
of this Agreement until this Agreement terminates:
(a)
ShenZhen
JingWei is a limited liability company incorporated and validly existing under
the laws of PRC and the Borrowers are the legal holders of the equity interest
of ShenZhen JingWei;
(b)
The
Borrowers has the right to execute and perform this Agreement. Each Borrower,
subject to its business scope, Articles or other institutional documents, has
taken necessary actions to get all necessary and appropriate approvals and
authorizations;
(c)
The
execution and the performance of this Agreement by the Borrowers does not
violate any laws, regulations, approvals, authorizations, notices, other
governmental documents, any agreement signed with the third party or any promise
issued to the third party; and
(d)
This
Agreement shall constitute the legal and valid obligations of the Borrower,
which is enforceable against the Borrowers in accordance with its terms upon
its
execution;
(e)
The
Borrowers have paid contribution in full for their equity interests in the
ShenZhen JingWei in accordance with applicable laws and regulations and have
obtained capital contribution verification report issued by the qualified
accounting firm;
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(f)
Except
the provisions stipulated in “Equity Pledge Agreement” and “Option Agreement”,
the Borrowers does not create pledge or any other security, make third party
any
offer to transfer the Borrowers’ equity, make acceptance for the offer of any
third party to purchase Borrowers’ equity, or execute agreement with any third
party to transfer Borrowers’ equity;
(g)
There
are
no pending or potential disputes, litigation, arbitration or other
administrative proceedings or other legal proceedings in connection with the
equity interests of ShenZhen JingWei hold by the Borrowers;
(h)
ShenZhen
JingWei has completed all governmental approval, authorization, license,
registration, filing and otherwise necessary to carry out the business subject
to its business license and to possess its assets.
11.
The
Borrowers covenant that it shall, during the term of this
Agreement,
(a)
Not
sell,
transfer, pledge, dispose in any other manners of their equity interests of
ShenZhen JingWei or other interests, or not allow to create other security
interests on it without Party A’s prior written consent, except the terms of the
Equity Interest Pledge Agreement;
(b)
Not
cause
the shareholder’s meeting to make resolutions to sell, transfer, pledge, dispose
of in any other manners, or not allow to create other security interest on,
any
of the Borrower’s legal right of equity or equity interest without Party A’s
prior written consent, except that is caused by Party A and its designated
person;
(c)
Not
cause
the shareholder’s meeting to make resolutions to merge or combine with, acquire
or invest in any person without Party A’s prior consent;
(d)
Promptly
inform Party A of the pending or threatened litigation, arbitration or
regulatory procedure concerning the Borrowers’ equity interests of the ShenZhen
JingWei;
(e)
Execute
all necessary or appropriate documents, take all necessary or appropriate
actions and bring all necessary or appropriate lawsuits or make all necessary
and appropriate defending against all claims in order to maintain their equity
interest of the ShenZhen JingWei;
(f)
Not
do
anything that may materially affect the assets, business and liabilities of
ShenZhen JingWei without Party A’s prior written consent;
(g)
Appoint
any person to be the director of ShenZhen JingWei subject to Party A’s
request;
(h)
Transfer
promptly and unconditionally, at any time, all of the Borrowers’ equity interest
in the ShenZhen JingWei to Party A or the representative designated by Party
A
subject to the request of Party A, provided that such transfer is permitted
under the laws of PRC;
(i)
Not
to
request ShenZhen JingWei to distribute dividends or profits;
(j)
In
case
the equity interest of ShenZhen JingWei is transferred to Party A and its
designated person by the Borrowers, the Borrowers shall repay the price caused
by transferring their equity interest of ShenZhen JingWei in full, as the
principal and the interests or capital use cost allowed by laws, to Party A;
and
4
(k)
Comply
strictly with the terms of this Agreement, and perform the obligations pursuant
to this Agreement and do not conduct any action or nonfeasance that affects
the
validity and enforceability of such contracts.
12.
The
Borrowers, as the shareholders of the ShenZhen JingWei, covenant that they
shall
cause the ShenZhen JingWei, during the term of this Agreement:
(a)
Not
to
supply, amend or modify its articles of association, or to increase or decrease
its registered capital, or to change its capital structure in any way without
Party A’s prior written consent;
(b)
To
maintain and operate its business and deal with matters prudently and
effectively, subject to good financial and business rules and
practices,;
(c)
Not
to
sell, transfer, mortgage, dispose of in any other manner, or to create other
security interest on, any of its assets, business or legal right to collect
interests without Party A’s prior written consent;
(d)
Not
to
create, succeed to, guarantee or permit any liability, without the Party A’s
prior written consent, except (i) the liability arising from the course of
the
ordinary or daily business operation, but not arising from the loan; and (ii)
the liability reported to Party A or approved by Party A in
writing;
(e)
To
operate persistently all the business and to maintain the value of its
assets;
(f)
Not
to
execute any material contracts (during this stage, a contract will be deemed
material if the value of it exceeds RMB ¥ 100,000), without Party A’s prior
written consent, other than those executed during the ordinary
operation;
(g)
To
provide information concerning all of its operation and financial affairs
subject to Party A’s request;
(h)
Not
to
merger or combine with, buy or invest in, any other person without Party A’s
prior written consent;
(i)
Not
to
issue dividends to each shareholder in any form without Party A’s prior written
consent. However, the ShenZhen JingWei shall promptly allocate all its allocable
profits to each of its shareholders upon the Party A’s request;
(j)
To
inform
promptly Party A of the pending or threatened suit, arbitration or regulatory
procedure concerning the assets, business or income of the ShenZhen
JingWei;
(k)
To
execute all necessary or appropriate documents, to take all necessary or
appropriate action and to bring all necessary or appropriate lawsuit or to
make
all necessary and appropriate defending against all compensation claims in
order
to maintain the ownership for all its assets;
5
(l)
To
comply
strictly with the terms of Service Agreement and other agreements executed
by
Party A, to perform their obligation under aforesaid agreements, and not to
conduct any action or nonfeasance that affects the validity and enforceability
of such agreements;
13.
This
agreement is binding to all the parties herein and their respective successors
and assignees only on their behalf. Without prior written approval of Party
A,
the Borrowers can not transfer, pledge or assign any right, benefit or
obligation under this agreement.
14.
The
Borrowers agree that Party A can assign its rights and duties under this
agreement to a third party when it thinks necessary, in which Party A only
needs
to give a written notice to the Borrowers and no further consent of the
Borrowers is required.
15.
The
execution, validity, interpretation, performance, amendment, termination and
the
dispute resolution of this agreement are governed by the laws of
PRC.
16.
Arbitration.
Both
Parties shall strive to settle any dispute, conflicts, or compensation claims
arising from the interpretation or performance (including any issue relating
to
the existence, validity and termination) in connection with this Agreement
through friendly consultation. In case no settlement can be reached within
thirty (30) day after one party ask for the settlement, each party can submit
such matter to China International Economic and Trade Arbitration Commission
(the “CIETAC”) in accordance with its rules. The arbitration award shall be
final and conclusive and binding upon the Parties.
The
arbitration should take place in
Beijing.
The
arbitration language is Chinese.
17.
This
Agreement shall be concluded on the date of execution. And all Parties agree
that the terms and conditions of this Agreement shall be effective as of the
date on which the Borrowers have obtained the loan and shall expire when both
Parties has completed their obligations under this Agreement.
18.
The
Borrowers cannot terminate or revoke this Agreement unless (a) Party A commits
the material defect, fraud or other material illegal action; (b) the bankrupt
of
Party A.
19.
The
Parties may amend and supply this Agreement with a written agreement. The
amendment and supplement duly executed by the Parties shall be a part of this
Agreement and shall have the same legal effect as this Agreement.
20.
This
Agreement constitutes the entire agreement of the Parties with respect to the
subject matters therein and supersedes and replaces all prior or contemporaneous
verbal and written agreements and understandings.
21.
This
Agreement is severable. If any clause of this Agreement is judged as invalid
or
non-enforceable according to relevant PRC Laws, such clause shall be deemed
invalid only within the applicable area of the PRC Laws, and without affecting
other clauses hereof in any way.
6
22.
Any
party
should protect the confidentiality of the information concerning the other
party’s business, operation, financial situation or other confidential
information obtained under this agreement or during the performance of this
agreement.
23.
Any
obligation arising from or terminated by this Agreement before the expiration
or
early termination this Agreement shall survive after such expiration or early
termination. The Article 15, 16 and 22 shall survive after the termination
of
this Agreement.
24.
This
Agreement has three original copies and is hold respectively by Party A, B
and
C, and each original copy has the same legal effect.
Party
A:
JingWei HengTong Technology (ShenZhen) Co., Ltd.
Legal
Representative/Authorized Representative:
Seal:
Party
B:
Mr. JianGuo Du
Signature:
Party
C:
Ms. AiLing Yin
Signature:
Party
D:
Xx. XxxXxxx Yin
Signature:
