Loan Agreement
This Loan Agreement (Agreement), dated as of July 7, 2019, is made in Beijing, the People’s Republic of China (the PRC, excluding the Hong Kong Special Administrative Region, the Macao Special Administrative Region and Taiwan for the purpose of this Agreement), by and between the following parties (Parties):
Xxxxxxx HuiTong Technologies Co., Ltd. (the Lender)
Registered Address:
Legal Representative: Jian He
Jian He (the Borrower)
Address: Xxxx 000, Xx.00, Xxxx 00, XxxxXxxx Xxxx, Xxxxxx Xxx Xxxxxxxx, Xxxxxxxx.
Whereas:
B. The Borrower intends to borrow RMB255,000 (the Loan) from the Lender for paying Xx. Xxx Quji the consideration for equity transfer of Xxxxxxx Gaochuang, representing 51% of the equity interests in Xxxxxxx Gaochuang.(Hereinafter referred to as “payment equity transfer)
C. The Lender agrees to provide the Loan to the Borrower.
Therefore, based on the principle of equality and mutual benefit, and through friendly negotiation, the parties agree as follows:
1. Purpose and Amount
1.1 The Lender agrees to grant the Borrower a loan with a maximum principal amount of RMB255,000 pursuant to the terms and conditions of this Agreement. The loan shall be paid in RMB. The Loan shall be interest free for its entire term.
1.2 Subject to the following prerequisite, the Lender shall remit the Loan into the bank account designated by the Borrower within 5 days upon receipt of the withdrawal request sent by the Borrower, and the Borrower shall confirm receipt of the Loan in writing.
2. Term
2.1 The term of the Loan shall be ten (10) years commencing from the date on which the Loan is actually withdrawn by the Borrower. The term shall be automatically extended for another 10 years unless the Lender indicates otherwise by 3 months’ prior written notice before the expiry of this Agreement.
2.2 The Borrower hereby agrees and warrants that the Loan provided by the Lender may only be used for payment equity transfer of Xxxxxxx Gaochuang. The Borrower may not transfer or mortgage his equity interest under this Agreement to any other third party without prior written consent of the Lender.
2.3 The Lender and the Borrower hereby agree and acknowledge that the Loan shall not be repaid in advance unless requested by the Lender, or upon the expiry of this Agreement. The Borrower shall repay the Loan in the manner and amount specified below: The Borrower shall only repay the Loan in the funds by transferring the equity of Xxxxxxx Gaochuang held by the Borrower to the Lender or any other third party designated by the Lender. If the funds from such transfer comply with any tax or administrative expense policies, then the Borrower shall only be obligated to repay the net portion of such funds to the Lender (after deducting any applicable taxes or expenses). If the Borrower’s equity in Xxxxxxx Gaochuang has been transferred in whole pursuant to such provisions, and the Borrower has repaid the Loan in all funds from such transfer to the Lender, then the outstanding balance of the Loan under this Agreement shall be deemed to be repaid.
2.4 The Lender and the Borrower agree and acknowledge that the Borrower shall immediately repay the Loan upon the occurrence of any of the following:
2.4.1 The Borrower dies or his capacity to perform civil acts is lost or limited;
2.4.2 The Borrower is charged with a criminal offense or involved in a crime;
2.4.3 PRC laws impose legal restrictions or adverse effects on the operations of Xxxxxxx Gaochuang; or
2.4.4 The Lender sends the Borrower a written notice to repay the Loan.
3. Prerequisites for Payment
3.1 Payment of the Loan by the Lender shall, unless specifically waived by the Lender in writing, be conditional upon the fulfillment of all of the following conditions precedent:
3.1.1 The Borrower has sent a written request for withdrawal pursuant to Article 1.2 of this Agreement, and the amount requested does not exceed the available balance;
3.1.2 All representations and warranties provided by the Borrower are true, complete, correct and not misleading; and
3.1.3 The Borrower has not breached any of his commitments and warranties provided in Article 5.
4. Representations and Warranties
4.1 The Borrower represents and warrants to the Lender as follows, and acknowledges that the Lender will execute and perform this Agreement on the basis of such representations and warranties:
4.1.1 He has full capacity for civil conduct and the power to enter into the Agreement;
4.1.2 The execution of this Agreement by him will not result in a breach of any laws or binding obligations;
4.1.3 This Agreement shall constitute his binding obligations and shall be enforceable against him upon execution;
4.1.4 He hasn’t been charged with a criminal offense or involved in a crime;
4.1.5 Except the Option under the Equity Disposal Agreement and the pledge under the Share Pledge Agreement, he shall not create any pledges over all or part of his shareholder rights in Xxxxxxx Gaochuang, or create any priority for any third-party in the situation where the beneficiary is not the Lender or its subsidiary or affiliate.
4.2 The Lender represents and warrants to the Borrower as follows:
4.2.1 it is a company duly incorporated and validly existing under PRC laws;
4.2.2 it has the power to enter into and perform this Agreement. It has taken appropriate actions and obtained the authorization and approval from third parties and relevant governmental authorities with respect to the execution and performance of this Agreement pursuant to all binding legal restrictions and contracts;
4.2.3 this Agreement shall constitute a legitimate, valid and binding obligation, and shall be enforceable against it pursuant to the provisions hereof upon execution of this Agreement.
5. The Borrower’s Commitments and Warranties
5.1 As a shareholder of Xxxxxxx Gaochuang, the Borrower hereby commits and warrants that, Xxxxxxx Gaochuang exerts its best efforts to comply with the following during the term of this Agreement:
5.1.1 shall not modify, in any way, its articles of association or alter its shareholding structure without the prior written consent of the Lender;
5.1.2 shall not transfer or otherwise dispose of any significant assets, or create any other security interests over any significant assets for the Lender, the Lender’s subsidiary or affiliate without the prior written consent of the Lender;
5.1.3 shall not provide any security or be liable for any debt beyond the scope of their daily business without the prior written consent of the Lender;
5.1.4 shall not enter into any major contracts, except those entered into in the daily business without the prior written consent of the Lender;
5.1.5 shall not provide any loans or credit to any party without the prior written consent of the Lender;
5.1.6 shall not merge with or invest in any third-party without the prior written consent of the Lender; and
5.1.7 shall not declare, in any fashion, any bonuses or dividends for shareholders without the prior written consent of the Lender.
5.2 The Borrower further commits to the Lender during the term of the Agreement:
5.2.1 to take all appropriate measures to maintain its identity and status as the shareholder of Xxxxxxx Gaochuang;
5.2.2 not to transfer or dispose of any equity held by it in Xxxxxxx Gaochuang or other rights or powers related thereto;
5.2.3 to procure that the shareholders of Xxxxxxx Gaochuang will not adopt any resolutions at the shareholders’ meeting with regard to merging with or investing in any third-party without the prior written consent of the Lender;
5.2.4 not to take any actions that will have a material effect on the assets, business, obligations or responsibilities of Xxxxxxx Gaochuang without the prior written consent of the Lender;
5.2.5 at the request of the Lender, to promptly and unconditionally transfer to the Lender or any third-party designated by the Lender all or part of the shares it holds in Xxxxxxx Gaochuang in accordance with PRC law, and to procure all other shareholders of Xxxxxxx Gaochuang to waive any priority to purchase such shares (if applicable); and
5.2.6 to be strictly in compliance with the commitments and warranties hereunder and under other related agreements.
5.3 The Borrower hereby warranties and commits, after the execution of this Agreement, that it shall act as follows:
5.3.1 for the benefit of the Lender, to pledge all equity interest held by the Borrower in Xxxxxxx Gaochuang, to ensure that the Borrower repays the Loan under this Agreement and pays the service fee under the Exclusive Technical and Consulting Service Agreement on time and enters into the Equity Pledge Agreement with the Lender;
5.3.2 to appoint and authorize the person designated by the Lender to exercise the rights and powers related to the equity interest held by the Borrower in Xxxxxxx Gaochuang at the time of the signing of this Agreement, and to sign and deliver the necessary power of attorney;
5.3.3 in its capacity as shareholder of Xxxxxxx Gaochuang, to confirm and warrant that the Borrower is bound by the Business Operation Agreement, which was entered into among the Lender, Xxxxxxx Gaochuang and the Borrower in July 1, 2019; and
5.3.4 to acknowledge and agree that the Lender shall be entitled to purchase, or opt to designate any third party to purchase, the equity interest held by the Borrower in Xxxxxxx Gaochuang from time to time and at the agreed price, and to sign the Equity Disposal Agreement.
6. Breach of Contract
The Borrower shall pay the Lender overdue interests which should be 0.01% of the outstanding balance of the Loan per day If he fails to repay the Loan in accordance with this Agreement.
7. Confidentiality
7.1 The Parties acknowledge and confirm that all possible measures will be taken to keep all materials and information known through this Agreement (Confidential Information) confidential. Without the prior written consent of the other Party, neither Party shall disclose or transfer such confidential information to any third party. Upon termination of this Agreement, the receiving Party shall, at the request of the disclosing Party, return or destroy any document, material, or software which contains the aforesaid Confidential Information, delete such Confidential Information from any memory devices and cease to use such Confidential Information.
7.2 Both Parties agree that this Article shall continue to be valid after this agreement is revised and terminated.
8. Notice
Unless a written notice is given to change the address, all communications with respect to this Agreement shall be delivered in person, or by registered or prepaid mail, or by generally accepted courier service, or by tax, to the addresses designated by the other Party from time to time.
9. Applicable Law and Dispute Resolution
9.1 The execution, validity, performance and interpretation of this Agreement shall be governed by PRC law.
9.2 Should any disputes arise in connection with the performance and interpretation of this Agreement, the Parties shall seek to resolve such disputes through friendly negotiation. If such dispute is not so resolved, either Party may submit it to the China International Economic and Trade Arbitration Commission for arbitration in accordance with its then effective arbitration rules. The place of arbitration shall be Beijing. The language of the arbitration shall be English. The arbitration award shall be final and binding on the Parties. This article shall survive the termination or expiry of this Agreement.
9.3 During the arbitration, the Parties shall continue to perform any provisions which are not related to the matter under arbitration.
10. Force Majeure
10.1 Force majeure means any event which is unforeseeable or is beyond the reasonable control of the affected Party and cannot be prevented despite reasonable care, including without limitation governmental actions, forces of nature, fires, explosions, storms (snow), floods, earthquakes, tides, lightning or war. However, in no case may a lack of credit, financing or funds be deemed an event beyond the reasonable control of a Party. A Party affected by force majeure and asserting exemption from any obligations under this Agreement shall notify the other Party of such circumstances as soon as possible and shall promptly notify the other Party of the necessary steps to be taken by it in order to resume its performance of such obligations and shall resume the performance of its obligations under this Agreement.
10.2 Provided that a Party affected by a Force Majeure Event has used its reasonable and practicable efforts to perform this Agreement and overcome such Force Majeure Event, such Party shall not be held liable for its failure to perform its obligations hereunder to the extent that such performance of its obligations has been delayed or impeded by such Force Majeure Event. Upon the cessation of a Force Majeure Event, the affected Party shall immediately resume its performance of this Agreement.
11. Miscellaneous
11.1 Any amendment or supplement to this Agreement may be effected only by written instrument executed by each of the Parties.
11.2 All attachments hereto shall have the same legal force and effect as this Agreement.
11.3 Without the prior written consent of the Lender, the Borrower shall not transfer its rights and/or obligations hereunder to any third party.
11.4 Any provision hereof held invalid or unenforceable in accordance with the provisions of applicable laws and regulations shall be deemed removed from this Agreement and voided, as if such provision had never been contained herein, but the rest of the provisions of this Agreement shall remain in force and effect. The Parties shall replace such removed provision with a lawful and valid provision acceptable to the Lender.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives on the date first indicated above.
Xxxxxxx HuiTong Technologies Co., Ltd.(Company Seal)
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By: |
/s/ Jian He |
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Authorized Representative: Jian He |
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Jian He
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Signature: |
Jian He |
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