Exhibit 10.5
LOAN AGREEMENT
This Loan Agreement (this "Agreement") is made and entered into by and
between the parties below as of 23August 2010 in Beijing, the People's Republic
of China ("China"):
(1) ARKI (BEIJING) E-COMMERCE TECHNOLOGY CO., LTD. ("Lender"), a wholly foreign
owned enterprise duly registered under the laws of China with its address
at No.15 # 0301, China Central Place, Xx.00, Xxxxxxx Xxxx, Xxxxxxxx
Xxxxxxxx, Xxxxxxx
(2) GAO FEI ("Borrower"), a citizen of China, with his Chinese identification
No.: 000000000000000000.
Each of Lender and Borrower shall be hereinafter referred to as a "Party"
respectively, and as the "Parties" collectively.
WHEREAS, Lender intends to provide Borrower with a loan to be used for the
purpose set forth under this Agreement. After friendly consultation, the Parties
agree as follows:
1. LOAN
1.1 In accordance with the terms and conditions of this Agreement, Lender
agrees to provide a loan equivalent to the amount of RMB 500,000 (the
"Loan") to Borrower, and the Loan will be provided according to the amount
specified in the written notice from the Borrower. The term of the Loan
shall be ten (10) years from the date of this Agreement, which may be
extended upon mutual written consent of the Parties. During the term of the
Loan or the extended term of the Loan, Borrower shall immediately repay the
full amount of the Loan in the event any one or more of the following
circumstances occur:
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1.1.130 days elapse after Borrower receives written notice from Lender
requesting repayment of the Loan;
1.1.2 Borrower's death, lack or limitation of civil capacity;
1.1.3Borrower ceases to be a shareholder of Borrower Company (as defined
below);
1.1.4Borrower engages in criminal act or is involved in criminal
activities;
1.1.5Any third party filed a claim against Borrower that exceeds
RMB100,000; or
1.1.6The Lender decides to exercise the exclusive option under the
Exclusive Option Agreement (the "Exclusive Option Agreement")
described in Sections 4.1.1 and 4.2.5 of this Agreement.
1.2 Lender agrees to remit the total amount under the Loan to the account
designated by Borrower within 20 days after receiving a written
notification from the Borrower regarding the same, provided that all the
conditions precedent in Section 2 are fulfilled. Borrower shall provide
Lender with a written receipt for the Loan upon receiving the Loan. The
Loan provided by Lender under this Agreement shall inure to Borrower's
benefit only and not to Borrower's successors or assigns.
1.3 Borrower agrees to accept the aforementioned Loan provided by Lender, and
hereby agrees and warrants using the Loan to increase the registered
capital of America Arki Networkservice Beijing Co., Ltd. ("Borrower
Company"), and Borrower shall remain a Borrower Company's shareholder who
shall own 50% equity interests in Borrower Company (such 50% equity
interests, hereinafter referred to as the "Borrower Equity Interest").
Without Lender's prior written consent, Borrower shall not use the Loan for
any purpose other than as set forth herein.
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1.4 Lender and Borrower hereby agree and acknowledge that Borrower's method of
repayment shall be at the sole discretion of Lender, (1) at Lender's option
take the form of Borrower's transfer the Borrower Equity Interest in whole
to Lender or Lender's designated persons (legal or natural persons)
pursuant to the Lender's exercise of its right to acquire the Borrower
Equity Interest under the Exclusive Option Agreement; and (2) in case of
liquidation, the Borrower shall repay all the residuary estate of the
Borrower Compay distributed after liquidation to Lender or the designees of
the Lender.
1.5 Lender and Borrower hereby agree and acknowledge that any proceeds from the
transfer of the Borrower Equity Interest (to the extent permissible) shall
be used to repay the Loan to Lender, in accordance with this Agreement and
in the manner designated by Lender.
1.6 Lender and Borrower hereby agree and acknowledge that to the extent
permitted by applicable laws, Lender shall have the right but not the
obligation to purchase or designate other persons (legal or natural
persons) to purchase Borrower Equity Interest in part or in whole at any
time, at the price stipulated in the Exclusive Option Agreement.
1.7 Borrower also undertakes to execute an irrevocable Power of Attorney (the
"Power of Attorney", referred to in Section 4.2.4), which authorizes the
Lender or a legal or natural person designated by Lender to exercise all of
Borrower's rights as a shareholder of Borrower Company.
1.8 When Borrower transfers Borrower Equity Interest to Lender or Lender's
designated person(s), in the event that the transfer price of such equity
interest equals or is lower than the principal of the Loan under this
Agreement, the Loan under this Agreement shall be deemed an interest-free
loan. In the event that the transfer price of such equity interest exceeds
the principal of the Loan under this Agreement, the excess over the
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principal shall be deemed the interest of the Loan under this Agreement
payable by Borrower to Lender, subject to applicable laws and regulations.
2. CONDITIONS PRECEDENT
The obligation of Lender to provide the Loan to Borrower contemplated in
Section 1.1 shall be subject to the satisfaction of the following
conditions, unless waived in writing by Lender.
2.1 Lender receives the written notification for drawdown under the Loan sent
by Borrower according to Section 1.2.
2.2 All the representations and warranties by Borrower in Section 3.2 are true,
complete, correct and not misleading.
2.3 Borrower has not violated the covenants in Section 4 of this Agreement, and
no event which may affect Borrower's performance of its obligations under
this Agreement has occurred or is expected to occur.
3. REPRESENTATIONS AND WARRANTIES
3.1 Between the date of this Agreement and the date of termination of this
Agreement, Lender hereby makes the following representations and warranties
to Borrower:
3.1.1Lender is a company duly organized and legally existing in accordance
with the laws of China;
3.1.2Lender has the legal capacity to execute and perform this Agreement.
The execution and performance by Lender of this Agreement is
consistent with Lender's scope of business and the provisions of
Lender's corporate bylaws and other organizational documents, and
Lender has obtained all necessary and proper approvals and
authorizations for the execution and performance of this Agreement;
and
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3.1.3This Agreement constitutes Lender's legal, valid and binding
obligations, enforceable in accordance with its terms.
3.2 Between the date of this Agreement and the date of termination of this
Agreement, Borrower hereby makes the following representations and
warranties:
3.2.1Borrower has the legal capacity to execute and perform this Agreement.
Borrower has obtained all necessary and proper approvals and
authorizations for the execution and performance of this Agreement;
3.2.2This Agreement constitutes Borrower's legal, valid and binding
obligations enforceable in accordance with its terms; and
3.2.3There are no disputes, litigations, arbitrations, administrative
proceedings or any other legal proceedings relating to Borrower, nor
are there any potential disputes, litigations, arbitrations,
administrative proceedings or any other legal proceedings relating to
Borrower.
4. BORROWER'S COVENANTS
4.1 For so long as Borrower remains a shareholder of Borrower Company, he
covenants irrevocably that during the term of this Agreement, he shall
cause Borrower Company:
4.1.1to execute the Exclusive Option Agreement with Borrower and Lender,
under which Borrower shall irrevocably grant Lender an exclusive
option to purchase all of the Borrower Equity Interest; to execute the
Exclusive Business Cooperation Agreement entered into by Lender and
Borrower Company (the "Exclusive Business Cooperation Agreement"),
under which the Lender, as an exclusive service provider, will provide
Borrower Company with technical service and business consulting
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service; to execute the Equity Interest Pledge Agreement with the
Lender and Borrower (the "Equity Interest Pledge Agreement"), under
which the parties will agree on the pledge of the Borrower Equity
Interest to the Lender; to enter into the Exclusive Option Agreement
and the Equity Interest Pledge Agreement on the date hereof, and to
complete all the related governmental approvals, registrations or
fillings (as applicable);
4.1.2to strictly abide by the provisions of the Exclusive Option
Agreement, Equity Interest Pledge Agreement and the Exclusive Business
Cooperation Agreement, and to refrain from any action/omission that
may affect the effectiveness and enforceability of the Exclusive
Option Agreement, Equity Interest Pledge Agreement and the Exclusive
Business Cooperation Agreement;
4.1.3at the request of Lender (or a party designated by Lender), to
execute contracts/agreements on business cooperation with Lender (or a
party designated by Lender), and to strictly abide by such
contracts/agreements;
4.1.4to provide Lender with all of the information on its business
operations and financial condition at Lender's request;
4.1.5to immediately notify Lender of the occurrence or possible occurrence
of any litigation, arbitration or administrative proceedings relating
to its assets, business or income;
4.1.6at the request of Lender, to appoint any persons designated by Lender
as executive director of Borrower Company;
4.1.7without Lender's prior written consent, not to supplement, change or
amend its articles of association in any manner, increase or decrease
its registered capital or change its share capital structure in any
manner;
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4.1.8to maintain its corporate existence in accordance with good financial
and business standards and practices by prudently and effectively
operating its business and handling its affairs;
4.1.9without Lender's prior written consent, not to sell, transfer,
mortgage or dispose of in any other manner its legal or beneficial
interest in any of its assets, business or revenue at any time from
the date of this Agreement, or permit the encumbrance of any other
security interest thereon;
4.1.10 without Lender's prior written consent, not to incur, inherit,
guarantee or otherwise allow for the existence of any debt, except for
(i) debt incurred in the ordinary course of business other than
through any loans; and (ii) debt already disclosed to Lender for which
Lender's written consent has been obtained;
4.1.11 to operate its businesses in the ordinary course and to maintain the
value of its assets;
4.1.12 without the prior written consent of Lender, not to execute any
major contract, except for contracts in the ordinary course of
business (for purpose of this subsection, a contract with a value
exceeding RMB100,000 shall be deemed a major contract);
4.1.13 without the prior written consent of Lender, not to provide any
person with any loan or credit;
4.1.14 without the prior written consent of Lender, not to merge,
consolidate with, acquire, or invest in any person;
4.1.15 to maintain the ownership of all of its assets, execute all
necessary or appropriate documents, take all necessary or appropriate
actions and file all necessary or appropriate complaints or raise
necessary and appropriate defenses against all claims; and
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4.1.16 without the prior written consent of Lender, not to distribute
dividends to shareholders, provided that upon Lender's written
request, to distribute the distributable profits in whole or in part
to its shareholders.
4.2 Borrower covenants that during the term of this Agreement, he shall:
4.2.1ensure that Borrower Company shall be a limited liability company
without foreign investment, and Borrower shall hold 50% equity
interest of Borrower Company;
4.2.2Contribute the registed capital in full corresponding to the Borrower
Equity Interest in accordance with the laws of China, and provide
Lender with a capital contribution verification report regarding
paid-in capital issued by a qualified accounting firm;
4.2.3 endeavor to cause Borrower Company to engage in its current business;
4.2.4execute an irrevocable Power of Attorney, which authorizes a legal or
natural person designated by Lender to exercise all of Borrower's
rights as a shareholder in Borrower Company, and refrain from
exercising any such shareholder rights except to the extent required
under this Agreement or the Equity Interest Pledge Agreement
(hereinafter Section 4.2.6) or as requested by Lender;
4.2.5execute the Exclusive Option Agreement with Lender and Borrower
Company, under which Borrower shall irrevocably grant to Lender an
exclusive option to purchase all of the Borrower Equity Interest;
4.2.6execute a Equity Interest Pledge Agreement with the Lender and
Borrower Company, under which Borrower shall pledge the Borrower
Equity Interest to the Lender;
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4.2.7enter into the aforementioned Power of Attorney, Exclusive Option
Agreement and Equity Interest Pledge Agreement on the date hereof, and
complete all the related governmental approvals, registrations or
fillings (as applicable);
4.2.8abide by the provisions of this Agreement, the Power of Attorney, the
Equity Interest Pledge Agreement and the Exclusive Option Agreement,
perform his obligations under this Agreement, the Power of Attorney,
the Equity Interest Pledge Agreement and the Exclusive Option
Agreement, and refrain from any action/omission that may affect the
effectiveness and enforceability of this Agreement, the Power of
Attorney, the Equity Interest Pledge Agreement and the Exclusive
Option Agreement;
4.2.9not sell, transfer, mortgage or dispose of in any other manner the
legal or beneficial interest in Borrower Equity Interest, or allow the
encumbrance thereon of any security interest or the encumbrance,
except in accordance with the Equity Interest Pledge Agreement;
4.2.10 cause any shareholders' meeting and/or executive director of
Borrower Company not to approve the sale, transfer, mortgage or
disposition in any other manner of any legal or beneficial interest in
Borrower Equity Interest, or allow the encumbrance thereon of any
security interest, without the prior written consent of Lender, except
to Lender or Lender's designated person;
4.2.11 cause any shareholders' meeting and/or executive director of the
Borrower Company not to approve the merger or consolidation of
Borrower Company with any person, or its acquisition of or investment
in any person, without the prior written consent of Lender;
4.2.12 immediately notify Lender of the occurrence or possible occurrence
of any litigation, arbitration or administrative proceedings relating
to Borrower Equity Interest;
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4.2.13 to the extent necessary to maintain his ownership of the Borrower
Equity Interest, execute all necessary or appropriate documents, take
all necessary or appropriate actions and file all necessary or
appropriate complaints or raise necessary and appropriate defense
against all claims;
4.2.14 without the prior written consent of Lender, refrain from any
action/omission that may have a material impact on the assets,
business and liabilities of Borrower Company;
4.2.15 appoint any designee of Lender as executive director of Borrower
Company, at the request of Lender;
4.2.16 to the extent permitted by the laws of China, at the request of
Lender at any time, promptly and unconditionally transfer all of
Borrower Equity Interest to Lender or Lender's designated
representative(s) at any time, and cause the other shareholders of
Borrower Company to waive their right of first refusal with respect to
the share transfer described in this Section;
4.2.17 to the extent permitted by the laws of China, at the request of
Lender at any time, cause the other shareholders of Borrower Company
to promptly and unconditionally transfer all of their equity interest
to Lender or Lender's designated representative(s) at any time, and
Borrower hereby waives his right of first refusal (if any) with
respect to the share transfer described in this Section;
4.2.18 in the event that Lender purchases Borrower Equity Interest from
Borrower in accordance with the provisions of the Exclusive Option
Agreement, use such purchase price obtained thereby to repay the Loan
to Lender; and
4.2.19 without the prior written consent of Lender, not to cause Borrower
Company to supplement, change, or amend its articles of association in
any manner, increase or decreases its registered capital or change its
share capital structure in any manner.
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5. LIABILITY FOR DEFAULT
5.1 In the event either Party breaches this Agreement or otherwise causes the
non-performance of this Agreement in part or in whole, the Party shall be
liable for such breach and shall compensate all damages (including
litigation and attorneys fees) resulting therefrom. In the event that both
Parties breach this Agreement, each Party shall be liable for its
respective breach.
5.2 In the event that Borrower fails to perform the repayment obligations set
forth in this Agreement, Borrower shall pay overdue interest of 0.01% per
day for the outstanding payment, until the day Borrower repays the full
principal of the Loan, overdue interests and other payable amounts.
6. NOTICES
6.1 All notices and other communications required or permitted to be given
pursuant to this Agreement shall be delivered personally or sent by
registered mail, postage prepaid, by a commercial courier service or by
facsimile transmission to the address of such party set forth below. A
confirmation copy of each notice shall also be sent by email. The dates on
which notices shall be deemed to have been effectively given shall be
determined as follows:
6.1.1Notices given by personal delivery, by courier service or by
registered mail, postage prepaid, shall be deemed effectively given on
the date of receipt or refusal at the address specified for notices.
6.1.2Notices given by facsimile transmission shall be deemed effectively
given on the date of successful transmission (as evidenced by an
automatically generated confirmation of transmission).
6.2 For the purpose of notices, the addresses of the Parties are as follows:
Lender: Arki (Beijing) E-commerce Technology Co., Ltd.
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Address: Xxxx 000, Xxxxxxxx Xx.00, Xxxxx Central Place, Xx.00,
Xxxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, Xxxxxxx
Facsimile: 010-65305285
Borrower: Gao Fei
Address: Xxxx 000, Xxxxxxxx Xx.00, Xxxxx Central Place, Xx.00,
Xxxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, Xxxxxxx
Facsimile: 010-65305285
6.3 Any Party may at any time change its address for notices by a notice
delivered to the other Party in accordance with the terms hereof.
7. CONFIDENTIALITY
The Parties acknowledge that any oral or written information exchanged
among them with respect to this Agreement is confidential information. The
Parties shall maintain the confidentiality of all such information, and
without the written consent of other Party, either Party shall not disclose
any relevant information to any third party, except in the following
circumstances: (a) such information is or will be in the public domain
(provided that this is not the result of a public disclosure by the
receiving party); (b) information disclosed as required by applicable laws
or rules or regulations of any stock exchange; or (c) information required
to be disclosed by any Party to its legal counsel or financial advisor
regarding the transaction contemplated hereunder, and such legal counsel or
financial advisor are also bound by confidentiality duties similar to the
duties in this section. Disclosure of any confidential information by the
staff members or agency hired by any Party shall be deemed disclosure of
such confidential information by such Party, which Party shall be held
liable for breach of this Agreement. This section shall survive the
termination of this Agreement for any reason.
8. GOVERNING LAW AND RESOLUTION OF DISPUTES
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8.1 The execution, effectiveness, construction, performance, amendment and
termination of this Agreement and the resolution of disputes shall be
governed by the laws of China.
8.2 In the event of any dispute with respect to the construction and
performance of this Agreement, the Parties shall first resolve the dispute
through friendly negotiations. In the event the Parties fail to reach an
agreement on the dispute within 30 days after either Party's written
request to the other Party for resolution of the dispute through
negotiations, either Party may submit the relevant dispute to the China
International Economic and Trade Arbitration Commission for arbitration, in
accordance with its then effective arbitration rules. The arbitration shall
be conducted in Beijing, and the language used in arbitration shall be
Chinese. The arbitration award shall be final and binding on all parties.
8.3 Upon the occurrence of any disputes arising from the construction and
performance of this Agreement or during the pending arbitration of any
dispute, except for the matters under dispute, the parties to this
Agreement shall continue to exercise their respective rights under this
Agreement and perform their respective obligations under this Agreement.
9. MISCELLANEOUS
9.1 This Agreement shall become effective on the date thereof, and shall expire
upon the date of full performance by the Parties of their respective
obligations under this Agreement.
9.2 This Agreement shall be written in both Chinese and English language in two
copies, each Party having one copy with equal legal validity. In case there
is any conflict between the Chinese version and the English version, the
Chinese version shall prevail.
9.3 This Agreement may be amended or supplemented through written agreement by
and between the Parties. Such written amendment agreement and/or
supplementary agreement executed by and between the Parties are an integral
part of this Agreement, and shall have the same legal validity as this
Agreement.
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9.4 In the event that one or several of the provisions of this Agreement are
found to be invalid, illegal or unenforceable in any aspect in accordance
with any laws or regulations, the validity, legality or enforceability of
the remaining provisions of this Agreement shall not be affected or
compromised in any respect. The Parties shall strive in good faith to
replace such invalid, illegal or unenforceable provisions with effective
provisions that accomplish to the greatest extent permitted by law and the
intentions of the Parties, and the economic effect of such effective
provisions shall be as close as possible to the economic effect of those
invalid, illegal or unenforceable provisions.
9.5 The attachments (if any) to this Agreement shall be an integral part of
this Agreement and shall have the same legal validity as this Agreement.
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IN WITNESS WHEREOF, the Parties have executed, or caused their authorized
representatives to execute, this Loan Agreement as of the date first above
written.
Lender: Arki (Beijing) E-commerce Technology Co., Ltd.
By: /s/ Gao Fei
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Name: Xxx Xxxxxxx
Title: Legal Representative
Borrower: Gao Fei
By: /s/ Gao Fei
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