LOAN AGREEMENT
Exhibit 4.16
THIS AGREEMENT is made in Shanghai, the People’s Republic of China (the “PRC”, and, for purpose of this Agreement, excluding Hong Kong Special Administrative Region, Macau Special Administrative Region and Taiwan) as of this 21st day of March, 2018 by and among:
Party A: Shanghai Guangjian Information Technology Co., Ltd.
Registered address: Room23306-23308, Xxxxxxxx 00, 000 Xxx Xxxxxxxx Xxxx, Xxxxx (Xxxxxxxx) Pilot Free Trade Zone
Party B:
Name: GU Shaofeng
ID Card No.: ***************
Residential address: ***, Pudong New Area, Shanghai
Name: HU Honghui
ID Card No.: ***************
Residential address: ***, Zhabei District, Shanghai
Name: LI Tiezheng
ID Card No.: ***************
Residential address: ***, Minhang District, Shanghai
Name: ZHANG Jun
ID Card No.: ***************
Residential address: ***, Putuo District, Shanghai
WHEREAS:
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(1) |
Party A is a wholly foreign-owned enterprise duly established and validly existing under the laws of the PRC; |
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(2) |
Each of Party B is a PRC citizen, and, in particular, GU Shaofeng, HU Honghui, LI Tiezheng and ZHANG Jun hold 69.1244%, 12.8525%, 4.8054% and 13.2177%, respectively, of the equity interests of Beijing Paipairongxin Investment Consulting Co., Ltd. (hereinafter referred to as “Paipairongxin”). As at the execution of this Agreement, the registered capital of Paipairongxin amounts to RMB 100,000,000, and Party B has contributed RMB 100,000 in total to the registered capital of Paipairongxin by use of their respective own capitals; |
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(3) |
Party A, Party B and other relevant parties have entered into a Restated Option Agreement on the 21st day of March, 2018 (the “2018 Option Agreement”), and Party B will transfer their equity interests in Paipairongxin to Party A in circumstances then permitted by the PRC laws and regulations; |
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(5) |
Party B needs to borrow money from Party A for their contribution to the registered capital of Paipairongxin, and Party A agrees to provide Party B with a loan on terms and conditions of this Agreement. |
NOW, THEREFORE, upon friendly consultation, the Parties hereby agree as follows:
Chapter 1 Loan
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Article 1 |
Purpose of the Loan |
Party B agrees that all loan proceeds received hereunder shall be solely used to pay capital contributions to Paipairongxin. Without Party A’s prior written consent, Party B shall not use the loan proceeds for any other purpose.
Considering that, prior to the execution of this Agreement, Party B has actually contributed RMB 100,000 to Paipairongxin in total by use of their respective own capitals, the Parties agree that RMB 100,000 under the loan granted by Party A hereunder may be used to repay the sum already paid by each of Party B respectively to Paipairongxin for capital contribution. For avoidance of doubt, the Parties confirm that, upon the completion of repayment to Party B’s own capitals, the total principal amount borrowed by each of Party B from Party A shall be RMB100,000,000.
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Article 2 |
Loan Amount: RMB 100,000,000 (Renminbi One Hundred Million Yuan). |
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Article 3 |
Term of the Loan: the term of the loan shall commence on the execution date of this Agreement and expire on the day when Party B has completed its obligations in a way specified in Article 9 hereof. |
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Article 4 |
Prior to Party A’s advance of the loan to Party B, the following conditions must be satisfied: |
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4.1 |
Party A shall have received a written notice for advance of loan from Party B as set out in Article 5(1) of this Agreement; |
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4.3 |
Party A, Party B and other relevant parties shall have executed the 2018 Option Agreement at the same time of signing this Agreement, whereby Party B grants Party A with an irrevocable option to purchase all equity interests of Party B in Paipairongxin at any time, to the extent permitted by the PRC law, within the valid term of the 2018 Option Agreement; |
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4.4 |
the 2018 Equity Pledge Agreement and 2018 Option Agreement shall remain valid, none of the parties thereto is in any material breach of the terms and conditions thereunder, all the necessary approvals, consents, authorizations and registrations required by such two agreements shall have been duly completed, and amendments to such agreements (if any) shall have been confirmed by the parties thereto; |
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4.5 |
all representations and warranties in Chapter 3 hereof shall remain true and accurate on the day when the notice of advancing the loan is delivered to Party A and on the day when the loan is provided to Party B, as all representations and warranties are made on aforementioned days; and |
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4.6 |
no material breach of any terms and conditions of this Agreement has been committed by Party B. |
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Article 5 |
Advance of Loan Proceeds |
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5.1 |
Upon execution of this Agreement, Party B may send a notice to Party A for advance of the loan either on one-time basis or, according to business needs of Paipairongxin, by stages. |
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5.2 |
Party A shall, within ten (10) banking days, advance the sum specified in the loan advance notice to Party B’s designated account on a lump-sum basis and by means permitted by laws and regulations, and deliver a scan document of remittance to Party B. |
Chapter 2 Interest Rate
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Article 6 |
For the purpose of supporting the business operation of Paipairongxin and thereby facilitate the development of Party A, the interest rate of the loan shall be zero (0%). |
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Chapter 3 Representations and warranties
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Article 7 |
Party A hereby represents and warrants to Party B that: |
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7.1 |
Party A is a wholly foreign-owned enterprise duly established and validly existing under the laws of the PRC; |
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7.2 |
according to Party A’s articles of association and other constitutional documents, it has full right, power and all necessary approvals and authority to execute and perform this Agreement; |
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7.3 |
the execution and performance of this Agreement will not result in a violation or breach of any laws and regulations applicable to Party A or any contractual restrictions by which Party A may be bound or affected; and |
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7.4 |
this Agreement, after it comes into effect, shall constitutes the legal, valid and binding obligations of Party A and be enforceable against Party A in accordance with its terms. |
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Article 8 |
Party B hereby represents and warrants to Party A that: |
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8.1 |
Paipairongxin is a limited liability company duly established and validly existing under the laws of the PRC, and, among Party B, GU Shaofeng, HU Honghui, LI Tiezheng and ZHANG Jun hold 69.1244%, 12.8525%, 4.8054% and 13.2177%, respectively, of the equities of Paipairongxin; |
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8.2 |
without Party A’s prior written consent, Party B shall not transfer or pledge any of its interests in Paipairongxin to any third party; |
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8.3 |
Party B has full rights, power and all necessary and appropriate approvals and authority to execute and perform this Agreement; |
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8.4 |
the execution and performance of this Agreement will not result in a violation or breach of any laws or regulations applicable to Party B or any contractual restrictions by which Party B may be bound or affected; |
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8.5 |
this Agreement, after it comes into effect, shall constitutes the legal, valid and binding obligations of Party B and be enforceable against Party B in accordance with its terms; and |
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8.6 |
as of the execution date of this Agreement, there is no pending or threatened legal or other proceedings against Party B before or in any court, tribunal or other regulatory authority. |
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Article 9 |
Method of Repayment |
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9.1 |
The Parties agree and acknowledge that only the following methods of repayment will be taken by Party B and accepted by Party A: to the extent permitted by the PRC laws and regulations then in effect, Party B shall, according to requirements specified in Party A’s written notice, transfer its equity interests in Paipairongxin to Party A on the terms and conditions of the 2018 Option Agreement, and use the proceeds that it may receive from such equity transfer to repay the loan hereunder. |
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9.2 |
The Parties agree and acknowledge that, if, with Party A’s consent, Party B transfers all or part of its equity interests in Paipairongxin to any third party other than Party A, all the proceeds obtained by Party B from such transfer shall be paid to Party A in priority, irrespective of whether the amount of such proceeds is higher than the loan amount hereunder. |
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9.3 |
The Parties agree and acknowledge that, where Party B transfers its equity interests in Paipairongxin on terms and conditions of the 2018 Option Agreement, if the actual price for such equity transfer is higher than the loan amount hereunder due to requirements of the PRC laws and regulations then applicable or any other reasons, the portion of such transfer price exceeding the principal amount of the loan hereunder shall, to the extent permitted by laws, be deemed as occupation cost and paid to Party A along with the principle amount of the loan. |
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Article 10 |
Early Repayment |
If Party A or its designated assignee is able to lawfully purchase all equities of Paipairongxin owned by Party B in accordance with laws of the PRC and Party A selects to exercise its right to accept the transfer of all equities of Paipairongxin pursuant to the terms of the 2018 Option Agreement, Party B shall repay the loan, irrespective of whether the loan is mature or not.
Chapter 5 Security
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Article 11 |
Party B pledges all of its equity interests in Paipairongxin as security for its obligations hereunder. If Party B fails to repay the loan to Party A when it becomes due, Party A shall have the right to dispose such pledged equities in accordance with the provisions of laws and regulations. |
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Article 12 |
Party B undertakes that it will repay the loan in the manner specified in Article 9 hereof. |
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Chapter 6 Confidentiality
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Article 14 |
Confidentiality |
The Parties acknowledge and confirm that any oral or written information exchanged between them in connection with this Agreement is confidential information. The Parties shall protect and maintain the confidentiality of all such confidential data and information, and not disclose them to any third party without the other parties written consent, except for data and information which (a) is in the public domain, is subsequently released, or becomes generally available to the public, without disclosure by the receiving Party, (b) is required to be disclosed pursuant to relevant laws or regulations, and (c) is required to be disclosed to the legal or financial advisors of a Party who are also bound by confidentiality obligations similar to those under this Article. Any improper disclosure of confidential data or information by any legal or financial advisor of a Party shall be deemed as an improper disclosure by such Party, and such Party shall be liable for breach of this Agreement.
Chapter 7 Default and Damages
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Article 15 |
Within the term of this Agreement, any of the following events shall be deemed as a breach of agreement by Party A: |
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15.1 |
Party A disposes the equities pledged by Party B without Party B’s authorization within the term of this Agreement; |
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15.2 |
Party A fails to transfer corresponding loan proceeds into Party B’s designated account within ten (10) banking days upon receipt of the notice of advancing loan from Party B; or |
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15.3 |
without Party B’s consent, Party A requests Party B to make any early repayment of the loan except as specified in Article 10 hereof. |
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Article 16 |
Within the term of this Agreement, any of the following events shall be deemed as a breach of agreement by Party B: |
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16.1 |
during the term of this Agreement, Party B disposes the equities already pledged to Party A without Party A’s consent; or |
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16.2 |
upon expiration of this Agreement, Party B is unable to repay the loan through the method specified in Article 9. |
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A breach of any provisions of this Agreement by a Party shall constitute a breach of this Agreement. The breaching Party shall fully and adequately indemnify the non-breaching Party. The non-breaching Party shall have the right to decide whether to continue the performance of or terminate this Agreement.
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Article 18 |
Dispute Resolution |
If any dispute with respect to this Agreement between the Parties cannot be resolved through negotiation, either Party may submit the dispute to Shanghai International Economic and Trade Arbitration Commission for settlement through arbitration in accordance with its arbitration rules then in effect. The arbitration shall be conducted in Shanghai, and the arbitration proceeding shall be in Chinese. The arbitration award shall be final and binding upon the Parties.
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Article 19 |
This Agreement shall be governed by and construed in accordance with the laws of the PRC. |
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Article 20 |
The invalidity or unenforceability of any provision of this Agreement shall not affect the validity and enforceability of any other provisions of this Agreement |
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Article 21 |
This Agreement shall be executed in five originals, and each Party hold one original hereof. |
(THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK)
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Party A: Shanghai Guangjian Information Technology Co., Ltd. (Seal)
/s/ XIANG Qiongfang
Legal/Authorized representative:
/s/ Seal of Shanghai Guangjian Information Technology Co., Ltd.
Party B:
/s/ GU Shaofeng
/s/ HU Honghui
/s/ LI Tiezheng
/s/ ZHANG Jun
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