Exhibit 10.15
[Translation of Chinese original]
Execution Copy
Loan Agreement
This Loan Agreement (hereinafter referred to as the "Agreement") was entered
into between the following two parties on August 8, 2002:
(1) LAHIJI VALE LIMITED (hereinafter referred to as the "Lender"), a limited
liability company incorporated in the British Virgin Islands, whose registered
office is located at Offshore Incorporations Limited, P.O. Box 957, Offshore
Incorporations Centre, Road Town, Tortola, British Virgin Islands.
(2) Xxxx Xxxxxxx (hereinafter referred to as the "Borrower")
Gender: Female
PRC Passport Number: PCHN143637106
Address: Xx. 000, Xxxx 0, 0/xx/ Xxxxx,
Xx Xxxxx East Lane, Xxxx Xxxx District, Beijing
The People's Republic of China (hereinafter referred to as the "PRC")
The Lender and the Borrower are respectively referred to as a "Party" and
collectively referred to as the "Parties" hereinafter.
WHEREAS:
Wang Leilei and the Borrower each originally held an 80% and 20%, respectively,
equity interest in Beijing Lei Ting Wan Jun Network Technology Limited
(hereinafter referred to as the "Borrower's Company"), a company established in
the PRC with limited liability.
Wang Leilei and the Borrower then entered into a share transfer agreement on
August 8, 2002, pursuant to which, Wang Leilei agreed to transfer his 60% equity
interest (hereinafter referred to as the "Transferred Interest") to the Borrower
and the Borrower agreed to accept the Transferred Interest, which represents the
registered capital in the sum of RMB 6.6 million.
Upon the completion of the Transferred Interest process, the shareholding
interest held by the Borrower in the Borrower's Company increased from RMB 2.2
million to RMB 8.8 million, and thus the percentage of her shareholding in the
Borrower's
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Company increased from 20% to 80% (hereinafter referred to as the "Borrower's
Interest"); whereas the shareholding interest held by Wang Leilei in the
Borrower's Company was reduced from RMB 8.8 million to RMB 2.2 million, and the
percentage of his shareholding in the Borrower's Company was reduced from 80% to
20%.
Pursuant to the loan agreement dated August 18, 2001 entered into between the
Lender and the Borrower (hereinafter referred to as the "Original Loan Agreement
1"), the Lender agreed to extend a loan to the Borrower in an amount of RMB
200,000 (hereinafter referred to as the "Original Loan"). In order to enable the
Borrower's Company to raise funds for its business development, the Lender and
the Borrower entered into a Loan Agreement on December 28, 2001 (hereinafter
referred to as the "Original Loan Agreement 2"), pursuant to which, the Lender
agreed to increase the amount of the Original Loan to RMB 2.2 million
(hereinafter referred to as the "Loan"). As Wang Leilei has transferred his 60%
equity interest in the Borrower's Company to the Borrower, the Lender and the
Borrower agree to enter into this Agreement to supersede the Original Loan
Agreement 1 and Original Loan Agreement 2 with reference to the change in the
Shareholding interest in the Borrower's Company as above said.
NOW THEREFORE, after negotiations and as agreed upon by the Parties, the Parties
agree to enter into this Agreement and to observe the following:
1. The Loan
--------
1.1 Pursuant to the terms and conditions of this Agreement, the Lender agrees
to extend a loan to the Borrower in an amount of RMB 8.8 million. The loan
commitment of the Lender provided herein is only applicable to the Borrower, and
is not applicable to any successor-in-title and assignee of the Borrower. The
portion of the Loan repaid or prepaid by the Borrower shall not be re-borrowed
again. The Lender may terminate its commitment or obligations under this
Agreement at any time by giving to the Borrower one (1) month's prior notice.
1.2 The Lender agrees to remit the total amount of the Loan to the account
specified by the Borrower within seven (7) days upon its receiving the written
request for the Loan from the Borrower. The Borrower shall issue a receipt
confirmation to the Lender on the same day of its receiving the remittance of
the loan as aforesaid.
1.3 The Borrower agrees to use the Loan solely for the purpose of providing
funds to
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the Borrower's Company for the development of its business.
1.4 Save as the circumstances provided in Clause 5, the Parties agree that the
Lender shall extend the Loan to the Borrower on an interest-free basis.
1.5 The Parties agree that the Borrower shall repay the Loan with any overdue
interest (if any), in Renminbi or otherwise as specified by the Lender to the
Lender in full within one (1) month from the date of the written notice from the
Lender notifying the Borrower that the Loan is due and payable. The Loan shall
become forthwith due and payable on the date upon which the Borrower breaches
any of its representations and warranties provided in Clause 3.2 herein or
breaches any of its undertakings provided in Clause 4 herein, and the Borrower
shall repay forthwith the Loan with any overdue interest (if any) in full to the
Lender.
2. Conditions Precedent
--------------------
The Lender's obligation to extend the Loan to the Borrower pursuant to Clause
1.1 shall be conditional upon the fulfillment of all of the following conditions
or any of them being waived by the Lender in writing.
2.1 The Lender shall have received on time the drawdown notice duly executed by
the Borrower as provided in Clause 1.2.
2.2 Upon entering into this Agreement, the Parties shall have duly entered into
a share pledge agreement, pursuant to which, the Borrower agrees to pledge all
of the Borrower's Interest to the Lender (the "Share Pledge Agreement"). The
Parties shall have also duly entered into an exclusive option agreement,
pursuant to which, the Borrower grants an exclusive option to the Lender to
purchase all of the Borrower's Interest (the "Exclusive Option Agreement").
Furthermore, the Share Pledge Agreement and the Exclusive Option Agreement shall
be in full legal force and there shall be no breach in respect of such
agreements. All the relevant filing procedures, approvals, authorizations,
registrations and government procedures shall be duly obtained or completed (if
necessary).
2.3 All the representations and warranties provided by the Borrower in Clause
3.2 shall be accurate, correct, complete and not misleading, and shall remain
accurate, correct, complete and not misleading on the date of the drawdown
notice and the drawdown date, as though they are provided on such dates.
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2.4 The Borrower shall not have breached any of its undertakings provided by it
in Section 4, and no event, which may affect the performance of the Borrower's
obligations hereunder shall have occurred or is likely to occur.
3. Representations and Warranties
------------------------------
3.1 The Lender makes the following representations and warranties to the
Borrower, which shall remain valid up to the expiration or termination of this
Agreement:
(a) The Lender is a company lawfully and validly incorporated and existing
under the laws of the British Virgin Islands;
(b) The Lender has the power to enter into and perform this Agreement. The
execution and performance of this Agreement by the Lender is in compliance with
the business scope of the Lender and the provisions of the articles of
association or other constitutional documents of the Lender. The Lender has duly
obtained all the necessary approvals or authorizations for the execution and
performance of this Agreement;
(c) The execution and performance of this Agreement by the Lender will neither
result in a breach of the laws and regulations or any government approvals,
authorizations, notices or other government documents binding or affecting the
Lender, nor will result in a breach of any agreement entered into with any third
party or any undertaking provided to any third party by the Lender; and
(d) Upon execution of this Agreement, this Agreement constitutes the legal and
valid obligation of the Lender enforceable in accordance with the laws.
3.2 The Borrower makes the following representations and warranties, which
shall remain valid up to the expiration or termination of this Agreement:
(a) The Borrower's Company is a company with limited liability lawfully and is
validly incorporated and existing under the laws of the PRC, and the Borrower is
the legal owner of the Borrower's Interest;
(b) The Borrower has the power to enter into and perform this Agreement. The
execution and performance of this Agreement by the Borrower is in compliance
with
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the business scope of the Borrower and the provisions of the articles of
association or other constitutional documents of the Borrower. The Borrower has
duly obtained all the necessary approvals or authorizations for the execution
and performance of this Agreement;
(c) The execution and performance of this Agreement by the Borrower will
neither result in a breach of the laws and regulations or any governmental
approval, authorization, notice or other government documents binding or
affecting the Borrower nor result in a breach of any agreement entered into with
any third party or any undertaking provided to any third party by the Borrower;
(d) Upon the signing of this Agreement, this Agreement shall constitute the
legal and valid obligation of the Borrower enforceable in accordance with laws;
(e) The Borrower has contributed all the share capital required to be paid for
the Borrower's Interest in accordance with the laws, and has obtained the
verification report issued by a qualified accountant regarding the capital
contribution;
(f) Except for the provisions in the Share Pledge Agreement, the Borrower has
not created any pledge, charge or any other security over the Borrower's
Interest; or offered to transfer the Borrower's Interest to any third party; nor
undertaken to any third party regarding any offer to purchase the Borrower's
Interest; or entered into any agreement to transfer the Borrower's Interest with
any third party.
(g) No dispute, action, arbitration, administrative procedure or other legal
proceeding regarding the Borrower and/or the Borrower's Interest is in
existence, and no potential dispute, action, arbitration, administrative
procedure or other legal proceeding regarding the Borrower and/or the Borrower's
Interest is pending; and
(h) The Borrower's Company has obtained or completed all the necessary
government approvals, authorizations, licenses, registrations and filing
procedures to engage in the businesses within the operation scope under its
business license and to own its assets.
4. Undertakings of the Borrower
----------------------------
4.1 The Borrower undertakes, in the capacity of the majority shareholder of the
Borrower's Company, to procure the Borrower's Company to observe the following
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terms during the term of this Agreement:
(a) It shall not supplement, change or modify in any way its articles of
association, increase or reduce its registered capital or alter its shareholding
structure without the prior written consent of the Lender;
(b) It shall maintain the continuance of the company and operate its business
and handle its affairs in a prudent and effective manner according to proper
financial and commercial codes and practices;
(c) It shall not sell, transfer, pledge or otherwise dispose of any asset,
business and legal or beneficial interest of income, or permit the creation of
any other security interest over the same without the prior written consent of
the Lender;
(d) It shall not incur, inherit, warrant or permit the existence of any debt
without the prior written consent of the Lender, save as those (i) incurred in
the ordinary or daily course of business without borrowing; and (ii) already
disclosed to the Lender, who has given its written consent thereof;
(e) It shall conduct all of its operations in the ordinary course of business
and maintain its asset value;
(f) It shall not enter into any material contracts without the prior written
consent of the Lender, except those entered into in the ordinary course of
business (for the purpose of this paragraph, any contract with a value exceeding
RMB 100,000 shall be deemed to be a material contract);
(g) It shall not extend any loan or credit to any party without the prior
written consent of the Lender;
(h) It shall provide all information and details relating to all of its
operations and financial affairs to the Lender upon request by the Lender;
(i) It shall obtain and maintain insurance with insurers acceptable to the
Lender, and the sum insured and class of insurance shall be comparable to the
sum insured and class of insurance maintained by those companies engaging in
similar business with similar assets or properties;
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(j) It shall not merge or consolidate with any party, or acquire or invest in
any party without the prior written consent of the Lender;
(k) It shall notify the Lender immediately when any legal action, arbitration
or administrative procedure relating to its assets, operations and incomes
occurs or is likely to occur;
(l) It shall execute all the necessary or appropriate documents, take all the
necessary or appropriate actions, file all the necessary or appropriate actions
and make all the necessary or appropriate defenses for the purpose of
maintaining all rights and proprietorship in respect of all of its assets;
(m) It shall not pay dividends of any kind to its shareholders without the
prior written consent of the Lender; however, it shall distribute all its of
distributable profits to its shareholders upon the request of the Lender;
(n) It shall appoint any person nominated by the Lender as a director of the
Borrower's Company upon the request of the Lender;
(o) It shall strictly observe all of the provisions under the Share Option
Agreement and shall not cause any action/omission which may impair the validity
and enforceability of the Share Option Agreement; and
(p) It shall use its best efforts, according to the request of the Lender and
pursuant to the plans provided by the Lender, to execute and procure the related
parties to execute all the necessary documents; to take and procure the related
parties to take all the necessary actions, in order to ensure that the Lender
shall be able to hold directly or indirectly 80% equity interest in the
Borrower's Company.
4.2 The Borrower undertakes that, during the term of this Agreement:
(a) It shall not sell, transfer, pledge or otherwise dispose of the legal or
beneficial interest of the Borrower's Interest, or permit the creation of any
other security interest over the same without the prior written consent of the
Lender, without offering the same to the Lender;
(b) It shall procure the members in the board of directors appointed by it not
to approve any sale, transfer, pledge or otherwise dispose of the legal or
beneficial
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interest of the Borrower's Interest, or permit the creation of any
other security interest over the same without the prior written consent of the
Lender, without offering the same to the Lender;
(c) It shall procure the members in the board of directors appointed by it not
to approve any merger or consolidation with any party, or any acquisition of or
investment into any party without the prior written consent of the Lender;
(d) It shall notify the Lender immediately when any legal action, arbitration
or administrative procedure relating to the Borrower's Interest occurs or is
likely to occur;
(e) It shall enter into all the necessary or appropriate documents, take all
the necessary or appropriate actions, file all the necessary or appropriate
actions and make all the necessary or appropriate defenses for the purpose of
maintaining all rights and proprietorship of the Borrower's Interest;
(f) It shall not cause any action and/or omission which may materially,
adversely affect the assets, operations and liabilities of the Borrower's
Company without the prior written consent of the Lender;
(g) It shall appoint any person nominated by the Lender as a director of the
Borrower's Company upon the request of the Lender;
(h) It shall use its best efforts, according to the request of the Lender and
pursuant to the plans provided by the Lender, to execute and procure the related
parties to execute all the necessary documents; to take and procure the related
parties to take all the necessary actions, in order to ensure that the Lender
shall be able to hold directly or indirectly 80% equity interest in the
Borrower's Company;
(i) Upon the request made from time to time by the then parent holding company
of the Lender, it shall transfer unconditionally and forthwith the entire
interest owned by it in the Borrower's Company to the Lender or its designated
representative at any time. It shall also procure the other shareholder of the
Borrower's Company to waive its right of first refusal over the interest
transfer as provided herein;
(j) It shall procure the other shareholder of the Borrower's Company, upon the
request made from time to time by the then parent holding company of the Lender,
to
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transfer unconditionally and forthwith the entire interest owned by that other
shareholder in the Borrower's Company to the designated representative of the
Lender at any time. The Borrower hereby waives its right of first refusal over
the interest transfer as provided herein;
(k) In the event that the Lender purchases the Borrower's Interest pursuant to
the Share Option Agreement, the Borrower shall first apply the proceeds
therefrom to repay the Loan to the Lender; and
(l) It shall strictly observe all the provisions under this Agreement, the
Share Pledge Agreement and the Share Option Agreement, and perform all of its
obligations under this Agreement, the Share Pledge Agreement and the Share
Option Agreement. It shall not cause any action/omission which may impair the
validity and enforceability of this Agreement, the Share Pledge Agreement and
the Share Option Agreement.
5. Event of Default
----------------
If the Borrower fails to perform its repayment obligation pursuant to this
Agreement, an overdue interest at the rate of 0.01% per day upon the outstanding
amount of the loan shall be payable from the date on which such amount becomes
due and payable until the date on which the total amount of the loan overdue,
overdue interest and other moneys payable Lender shall be fully settled.
6. Notices
-------
Unless a written notice of change of address is issued, all correspondence
relating to this Agreement shall be delivered in person or by facsimile or
registered mail to the following addresses. Any notice given by registered mail
shall be deemed delivered on the date stated on the receipt of the registered
mail. Any notice given in person or by facsimile shall be deemed delivered on
the date of delivery or transmission. The original copies of all facsimile
transmitted notices shall be delivered forthwith to the following addresses by
registered mail or in person.
Lender: LAHIJI VALE LIMITED
x/x Xxxxxxxx Xxxxxxxxxxxxxx Xxxxxxx, X.X. Xxx 000,
Xxxxxxxx Incorporations Centre, Road Town, Tortola,
British Virgin Islands
Fax Number: 0-000-000-0000
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Cc: 00/xx/ Xxxxx, Xxx Xxxxxx
Xx. 00 Xxxxx'x Xxxx Xxxxxxx, Xxxx Xxxx
Attention: The Company Secretary
Fax Number: 000-00000000
Borrower: Xxxx Xxxxxxx
Xx. 000, Xxxx 0, 0/xx/ Xxxxx, Xx Xxxxx East Lane,
Xxxx Xxxx District, Beijing, the PRC
Fax Number: 0000-00000000
7. Confidentiality
---------------
The Parties acknowledge and confirm that all information exchanged orally or in
written form in relation to this Agreement are confidential. The Parties shall
keep confidential all such information and shall not disclose the same to any
third party without the prior written consent of the other Party, except in the
following situations: (a) Such information is or becomes publicly known (without
any unauthorized disclosure by any party hereto); (b) Such information is
required to be disclosed pursuant to applicable laws or the rules of the Stock
Exchange; or (c) Such information is required to be disclosed to either Party's
legal or financial advisers in relation to the transactions hereunder. In case
(c), such legal or financial advisers shall observe the duty of confidentiality
as provided in this clause. Any breach of confidentiality by the employees or
agents of either Party shall be deemed as the breach of confidentiality by such
Party, who shall be held responsible for all consequences of breach pursuant to
this Agreement. This clause shall survive the termination of this Agreement.
8. Governing Law and Dispute Settlement
------------------------------------
8.1 The implementation, effect, interpretation, performance, amendment and
termination of this Agreement and the settlement of disputes shall be in
accordance with the laws of the Hong Kong Special Administrative Region of the
PRC.
8.2 All disputes arising from the interpretation and performance of this
Agreement shall initially be resolved by amicable negotiations. Should the
dispute remain unsettled after the expiration of thirty (30) days after the date
on which the notice of negotiation is given by a Party to the other Party,
either Party shall have right to
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submit the dispute to Hong Kong International Arbitration Centre for arbitration
in Singapore. The result of the arbitration shall be final and binding to the
Parties.
8.3 In case of any disputes arising out of the interpretation and performance
of this Agreement or any pending arbitration of such dispute, Both Parties shall
continue to perform their rights and obligations under this Agreement, except
for the maters involved in the disputes.
9. Miscellaneous
-------------
9.1 This Agreement shall become effective from the date of execution by the
Parties, and shall expire upon the completion of obligations by the Parties
under this Agreement.
9.2 This Agreement is executed in duplicate and each of the said executed
Agreement has the same legal force and effect. Each of the Parties hereto shall
have one executed Agreement.
9.3 This Agreement may be amended and supplemented by the Parties by written
agreements. All amendments and/or supplementary agreements to this Agreement
shall form integral parts hereof and are as equally enforceable as this
Agreement.
9.4 The invalidity of any provision herein shall not impair the legal effects
of the remaining provisions.
9.5 The schedule of this Agreement shall form integral parts hereof and are
equally enforceable as this Agreement.
Lender: LAHIJI VALE LIMITED
Signature: /s/ Wang Sing
Name/Position: Wang Sing
Director
Borrower: Xxxx Xxxxxxx (PRC Passport Number: PCHN143637106)
Signature: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
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Supplemental Agreement to Loan Agreement
The Supplemental Agreement to Loan Agreement (the "Agreement" is entered
into as of September 26, 2003 between the following two parties.
(1) LAHIJI VALE LIMITED (the "Lender")
Offshore Incorporations Limited, P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British Virgin Islands
(2) Wang Xxx Xxxx (the "Borrower")
Gender: Female
PRC Passport Number: PCHN143637106
Address: Room 101 Xxxx 0 Xxxxxxxx 0, Xxxxxxxxxxxxx, Xxxxxxxx Xxxxxxxx,
Xxxxxxx
The Lender and the Borrower will hereinafter each be referred to as a
"Party" and collectively as "Both Parties".
WHEREAS, the Borrower holds 80% equity in Beijing Lei Ting Wan Jun Network
Technology Ltd. (the "Borrower's Company"), a limited liability company
incorporated in the People's Republic of China (the "PRC").
WHEREAS, the Lender and the Borrower executed a loan contract on August 8,
2002 (the "Loan Contract"), upon which the Lender provided the Borrower a loan
in the amount of Renminbi 8,800,000.
WHEREAS, Both Parties agree to execute this Agreement to amend the Loan
Contract and this Agreement shall form an integral part of the Loan Contract.
NOW THEREFORE, Both Parties agree as follows:
1 Loan
----
1.1 The Lender agrees to provide a loan to the Borrower with a principal
of Renminbi 8,800,000 in accordance with the terms and conditions set
forth in this Agreement. The term for such loan shall be ten (10)
years and shall be extended upon the agreement of Both Parties. During
the term or extended term of such loan, the Borrower shall immediately
repay the loan to the Lender, if any of the following events occurs:
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(1) the Borrower dies or becomes a person with no or limited capacity
to perform civil acts;
(2) Xxxx Xxx Lei terminates his employment with or is dismissed by
the Lender or its affiliates;
(3) the Borrower commits a crime or becomes involved in a crime;
(4) any third party claims more than Renminbi 500,000 against the
Borrower;
(5) foreign investors are permitted to invest in the business of
value-added telecommunication and the relevant authorities begin
to approve the establishment of such business in accordance with
the applicable laws of the PRC.
1.2 The Borrower agrees to accept such loan provided by the Lender and
hereby agrees and warrants that such loan shall be used only for the
investment in the Borrower's Company for the business development of
the Company. Without the Lender's prior written consent, the Borrower
shall not use the amount of such loan for any other purpose or
transfer or pledge its equity interest in the Borrower's Company to
any other third party.
1.3 The Lender and the Borrower jointly agree and confirm that the
Borrower shall repay the loan only by transferring all of the
Borrower's equity in the Borrower's Company to the Lender or to any
other person (legal person or natural person) designated by the
Lender.
1.4 The Lender and the Borrower hereby jointly agree and confirm that any
proceeds raised from the transfer of Borrower's equity in the
Borrower's Company shall be used to repay the Lender, for the
consideration of the loan provided by the Lender, in such manner as
designated by the Lender in accordance with this Agreement and the
Agreement shall terminate thereupon.
1.5 The Lender and the Borrower hereby jointly agree and confirm that the
Lender is entitled to, but is not obliged to, at any time, purchase or
designate any other person (legal person or natural person) to
purchase all or part of Borrower's equity in the Borrower's Company at
any price determined by Both Parties, subject to the permission of the
law.
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The Borrower warrants to issue an irrevocable power of attorney to
confer all its rights as a shareholder of the Borrower's Company to a
person designated by the Lender.
1.6 Interest of the Loan. In the event that the Borrower transfers its
equity in the Borrower's Company to the Lender or the person
designated by the Lender, the loan hereunder shall be deemed to be an
interest-free loan, if the transfer price of such equity is equivalent
to or is less than the principal amount of the loan under this
Agreement. However, if the transfer price shall exceed the principal
amount of the loan hereunder, the amount in excess of the principal
amount of the loan shall be deemed the interest payable on such loan
under this Agreement, which shall be paid to the Lender by the
Borrower.
2 Assignment of This Agreement
----------------------------
The Borrower shall not assign any of its rights or obligations under this
Agreement to any third party without the Lender's prior written agreement.
3 Governing Law and Settlement of Disputes
----------------------------------------
3.1 The execution, validity, interpretation, performance, implementation,
termination and settlement of disputes of this Agreement shall be
governed by the laws of PRC.
3.2 Both Parties shall strive to settle any dispute arising from the
interpretation or performance in connection with this Agreement
through friendly negotiations. If a settlement cannot be reached
through negotiations within 30 days after a Party gives a written
notice requesting for a negotiation, then either Party can submit such
matter to China International Economic and Trade Arbitration
Commission (the "CIETAC"). The arbitration conducted by CIETAC shall
be in compliance with the current rules of CIETAC, and the arbitration
proceedings shall take place in Beijing. The arbitration award shall
be final and binding upon Both Parties and shall be enforceable in
accordance with its terms.
3.3 In the event when any disputes arise out of the interpretation and
performance of this Agreement or any pending arbitration of such
dispute,
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Both Parties shall continue to perform their rights and obligations
under this Agreement, except that such maters are involved in the
disputes.
4 Miscellaneous
-------------
4.1 This Agreement shall be effective as of the date of execution and
shall expire when Both Parties have fully performed their obligations
under this Agreement.
4.2 This Agreement is made in duplicate, each of the same effect, and each
party shall keep copy of this Agreement.
4.3 Both Parties may amend and supplement this Agreement by a written
agreement between Both Parties. The amendment and supplement to this
Agreement duly executed by Both Parties shall form a part of this
Agreement and shall have the same legal effect as this Agreement.
4.4 Any provision of this Agreement which is invalid or unenforceable
shall not affect the validity and enforceability of the remaining
provisions hereof.
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Signature:________________
Lender: LAHIJI VALE LIMITED
Representative:________________
Title:
Borrower: Wang Xxx Xxxx
Signature:________________
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