Exhibit 10.13
TERM LOAN AGREEMENT
This term loan agreement (this "Agreement") dated September 10, 2004 ("Effective
Date") between Tianyuan Capital Development Corp. Ltd., Room 2401, 24/F New York
Life Tower Windsor HSE 311 Gloucester Road, Causeway Bay, Hong Kong, PRC (the
"Lender"), and Tianshi International Holding Corp., P.O. Box 957, Offshore
Incorporation Center, Road Town, Tortola, British Virgin Island (the
"Borrower"). The parties have hereby agreed as follows:
SECTION 1 TERM LOAN
The Lender agrees on the terms and conditions hereinafter set forth, to make a
loan (the "Loan") to the Borrower on the Effective Date this Agreement in the
principal amount of US$10.63 million in two installments: the first installment
of US$9.60 million on July 31, 2004, and the second US$1.03 million on August
26, 2004.
SECTION 2 INTEREST
The Borrower shall pay interest to the Lender on the outstanding and unpaid
principal in the amount of the Loan made under this Agreement at a rate per
annum equal to five percent (5%). Interest shall be calculated on the basis of a
year of 365 days for the actual number of days elapsed. Interest shall be paid
in immediately available funds on the last Business Day (i.e., any day other
than a Saturday, Sunday, or other day on which the commercial banks in Hong Kong
are authorized to close under the laws of Hong Kong) of each June, December
(semiannual basis) and at maturity by wire transfer (i.e., the Lender shall
provide the Borrower with the wire transfer information before the first payment
becomes due). The first payment of the interest shall be made on December 31,
2004.
SECTION 3 TERM
The Borrower shall repay the principal of the Loan i.e., $US10.63 million in
lawful money of the United States and in immediately available funds in
consecutive semiannual installments of each US$1,063,000 on the last day of each
June, December commencing June 2006, and ending June 2011. The last such
installment shall be in the amount necessary to repay in full the unpaid
principal of the Loan and to pay interest on the unpaid principal of the Loan
from the date of this Agreement until June 30, 2011. The Borrower may, upon at
least ten Business Days' notice to the Lender, prepay the principal of the Loan
in whole or in part with accrued interest to the date of such prepayment on the
amount prepaid, provided that each partial prepayment shall be in a principal
amount of not less than US$2 million.
If any installment hereof becomes due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day.
SECTION 4 USE OF PROCEEDS
The proceeds of the Loan hereunder shall be used by the Borrower to invest in
the Shanghai Project (i.e., See attached Memorandum) only. The Borrower shall
not directly or indirectly use any portion of the proceeds for the purpose of
other than investing in the Shanghai project.
SECTION 5 RATIFICATION OF THE LOAN
The Borrower will provide the Lender with the document evidencing that the board
of directors of Tiens Biotech Group (USA), Inc., the solely owner of the
Borrower shall have approved or ratified this Agreement on or before September
15, 2004.
SECTION 6 LEGALLY ENFORCEABLE AGREEMENT
This Agreement is legal, valid and binding obligations of the Borrower in
accordance with its terms and conditions hereof except to the extent that such
enforcement may be limited by applicable bankruptcy or insolvency.
SECTION 7 COMPLIANCE WITH LAWS
The Borrower will comply in all respects with all applicable laws, rules,
regulations, and orders, such compliance to include, without limitations, paying
before the same become delinquent all taxes, assessments, and governmental
charges imposed upon it or upon its property.
SECTION 8 RIGHT OF INSPECTION
At any reasonable time and from time to time, the Borrower will permit the
Lender or any agent or representative of the Lender to examine and make copies
of and abstracts from the records and books of account of, and visit the
properties of the Borrower, and to discuss the affairs, finance, and accounts of
the Borrower.
SECTION 9 FINANCIAL STATEMENTS
As soon as available and in any event within thirty days after end of each
fiscal year of the Borrower, the Borrower will furnish to the Lender the
balance, sheet, the income statement and retained earnings of the Borrower for
the preceding fiscal year.
SECTION 10 NOTICE OF DEFAULTS AND EVENTS OF DEFAULT
As soon as possible and in any event within five days after the occurrence of
each default or event of default the Borrower shall give the Lender a written
notice setting forth the details of such default or event of default and the
action of correction is proposed to be taken by the Borrower.
SECTION 11 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the Borrower
and the Lender and their respective successors and assigns, except that the
Borrower may not assign or transfer any of its rights under this Agreement
without the prior written consent of the Lender.
SECTION 12 GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with, the laws
of Hong Kong, China.
SECTION 13 JURISDICTION
In the case where a dispute or controversy arises from or relates to this
Agreement, the parties shall first negotiate to settle the dispute by consulting
with each other for thirty days. If the settlement through such consultation
fails to be reached in thirty days, either of the parties may bring the dispute
to the International Chamber of Commerce in Hong Kong for arbitration. The
arbitration award shall be final and binding on the parties.
SECTION 14 SEVERABILITY OF PROVISIONS
In the case where any of the provisions of this Agreement is found by authority
in charge unenforceable or invalid, such finding is only to apply to the related
provision and shall not affect the remainder of this Agreement. This Agreement
shall continue to be binding upon the parties as if without the provision in
question.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their respective officers thereto duly authorized, as of the date first written
above.
Tianyuan Capital Development Corp. Ltd. Tianshi International Holding Corp.
By /s/ Shi Shuang By /s/ Li Jinyuan
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[Name] Shi Shuang [Name] Li Jinyuan
[Title] Vice President [Title] President
