Amended And Restated Loan Agreement

Amended and Restated Loan Agreement

Exhibit 4.6

 

Amended and Restated Loan Agreement

 

This Amended and Restated Loan Agreement (hereinafter referred to as this “Agreement”) is entered into on this 30th day of August, 2012 in Chaoyang District of Beijing, the People’s Republic of China (“China” or the “PRC”) by and between:

 

Ku6 (Beijing) Technology Co., Ltd. (hereinafter referred to as “Ku6 Technology”), a limited liability company incorporated and existing under the laws of the People’s Republic of China (hereinafter referred to as the “PRC”) with its principal business address at Units 1811-1816, Building 4, No.1 Yard, Wangzhuang Road, Haidian District, Beijing;

 

Yingfeng Zhang (hereinafter referred to as the “Borrower”), a Chinese citizen with the ID Card No. ##################.

 

(Ku6 Technology and the Borrower hereinafter individually referred to as a “Party” and collectively the “Parties”.)

 

Whereas,

 

1.              The Borrower has entered into a loan agreement with Ku6 Technology dated on 1th day of August, 2012 (hereinafter referred to as the “2012 Loan Agreement”), according to which, the Borrower borrowed RMB 9,800,000 from Ku6 Technology for the purpose of paying shares transfer price to purchase 98% equity interest of Ku6 (Beijing) Information Technology Co., Ltd. (hereinafter referred to as the “Company”) from the Company’s former shareholder;

 

2.              The registered capital of the Company will be increased from the current RMB10 million to RMB20 million. The increased capital amount will be RMB10 million which will be contributed by the Borrower and Mr. Mingfeng Chen, another shareholder of the Company. As such, the Borrower shall contribute RMB 9.8 million;

 

3.              Given the Borrower does not have enough funds to pay the increased capital amount, the Borrower seeks a loan from Ku6 Technology for a second time and Ku6 Technology agrees to lend such amount to the Borrower; and

 

4.              The Parties agree to aggregate the loan of RMB 9,800,000 under the 2012 Loan Agreement together with the loan hereunder, i.e. the total loan owed by the Borrower to Ku6 Technology shall be RMB 19.6 million. Moreover, the Borrower agrees to sign an amended and restated exclusive call option

 



 

agreement (hereinafter referred to as the “Call Option Agreement”) with Ku6 Technology, under which Ku6 Technology or a third party designated by Ku6 Technology has an exclusive option to acquire all or any part of the equity interest held by the Borrower in Ku6 Information Technology at any time.

 

Accordingly, through friendly consultation, based on the principle of equality and mutual benefit, the parties reached the following agreement in respect to the loan issue in accordance with China law:

 

1.         Type of the Loan: Cash

 

2.         Loan Amount: RMB 19.6 million (the “Loan”)

 

The Parties hereby confirm that Ku6 Technology has provided to the Borrower, and the Borrower has received from Ku6 Technology the Loan as of the execution date hereof.

 

3.         Loan Interest: Zero interest rate

 

4.         Loan Term

 

The loan term shall commence from the execution date hereof and shall continue and last until the date of repayment of the Loan by the Borrower as requested by Ku6 Technology (the “Loan Term”).

 

5.         Purpose of the Loan

 

The Borrower shall not use the Loan for any purpose other than making the contributions of the said increased capital.

 

6.         Taxes

 

Any and all taxes in relation to the Loan shall be borne by Ku6 Technology.

 

7.         Repayment of the Loan

 

7.1       Ku6 Technology may, at any time during the Loan Term by delivery of a repayment notice (the “Repayment Notice”) to Borrower thirty (30) days in advance, demand at its absolute discretion that the Borrower shall repay the Loan in whole or in part.

 

7.2       Upon expiry of the thirty (30) day period as set forth in the Repayment Notice,

 



 

the Borrower shall repay the Loan in cash, or make such repayments in other forms as decided by the Board of Directors (or Executive Director) of Ku6 Technology by means of a Board (or Executive Director) resolution duly adopted in accordance with its Articles of Association and the applicable laws and regulations.

 

7.3       Without the prior written consent of Ku6 Technology, the Borrower shall not repay the loan in whole or in part to Ku6 Technology during the Loan Term.

 

8.              Representations and Warranties

 

The Borrower warrants that he is not a director or executive officer of Ku6 Media Co., Ltd., an affiliated company of Ku6 Technology.

 

9.         Liability for Breach of Agreement

 

In the event that the Borrower fails to use the Loan according to the agreed purposes, Ku6 Technology is entitled to withdraw the Loan in whole or in part and claim against Borrower for any losses suffered therefrom by Ku6 Technology.

 

10.  Dispute Resolution

 

10.1    Any dispute arising out of the performance of this Agreement shall be settled through friendly negotiation by the Parties; if the disputes cannot be resolved through negotiation, such dispute may be submitted for arbitration.

 

10.2    Any such dispute shall be submitted to the Beijing Arbitration Commission according to it then effective rules in force for the time being.

 

10.3     The awards given by Beijing Arbitration Commission are final and binding upon the Parties. The arbitration costs (including but not limited to arbitration charges and attorney’s fees) shall be borne by the losing Party, unless otherwise specified in the given awards.

 

11.       Miscellaneous

 

11.1    This Agreement shall become effective upon execution by the Parties.

 

11.2    Neither Party shall amend or terminate this Agreement without the express written consent of the other Party. When any Party demands amending or terminating this Agreement in accordance with the laws and regulations, it shall inform the other Party of its demand in writing on a timely basis, and the Parties shall negotiate and agree on any such amendment or termination in

 



 

writing.

 

11.3    The Borrower shall not transfer any of its rights and/or obligations hereunder to any third party without the express written consent of Ku6 Technology. Ku6 Technology shall have the right to transfer its rights and/or obligations hereunder to any of its designated third party by delivery of a written notice to the Borrower.

 

11.4    Anything not covered herein shall be made in a supplementary agreement upon the negotiation of the Parties. Such supplementary agreement shall have the same force and effect with this Agreement.

 

11.5    This Agreement is made in two (2) counterparts with each of Ku6 Technology and the Borrower holding one (1) counterpart.

 

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IN WITNESS WHEREOF, the Parties have caused their authorized representatives to enter into this Agreement as of the date and year first above written.

 

Ku6 Technology

 

Ku6 (Beijing) Technology Co., Ltd. (Seal)

[Seal]

 

 

Authorized Representative:

 

 

 

/s/ Yu Shi

 

Name:

 

Yu Shi

 

 

Borrower

 

 

 

Signed by:

 

 

 

/s/ Yingfeng Zhang

 

Name:

 

Yingfeng Zhang