Loan Agreement By and among Shanghai Atrip Medical Technology Co., Ltd. The Individual Shareholders thereto. and Anhante (Beijing) Medical Technology Co., Ltd. April 14, 2008
By
and among
Shanghai
Atrip Medical Technology Co., Ltd.
The
Individual Shareholders thereto.
and
Anhante
(Beijing) Medical Technology Co., Ltd.
April
14, 2008
This
Loan
Agreement (“this Agreement”) is executed by and among the following Parties on
April 14, 2008 in Shanghai, PRC.
| (1) |
Shanghai
Atrip Medical Technology Co., Ltd. (hereinafter referred to as “Party A”
or “Borrower”);
|
Legal
Representative: ▇▇▇▇
▇▇▇▇▇
Address:
▇▇▇▇▇
▇▇▇▇-▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
| (2) |
Anhante
(Beijing) Medical Technology Co., Ltd. (hereinafter referred to as
“Party
B”);
|
Legal
Representative: ▇▇▇▇
▇▇▇▇▇
Address:
▇▇▇▇▇▇▇▇▇▇-▇,
▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Palaze, No. 9 Building, Manting Fangyuan Community,
Qingyunli, Haidian District, Beijing
| (3) |
Individual
Shareholders of Shanghai Atrip Medical Technology Co., Ltd. (hereinafter
collectively called the “Shareholders of Party A” or
“Shareholders”),
and the shareholding structure refers to the
following:
|
|
Name
of the
Shareholders
|
Percentage Ownership in
Registered Capital (%)
|
ID
Card No.
|
Contact
Address
|
|||||||
|
▇▇▇▇
▇▇▇▇▇
|
93.9
|
310106196809272814
|
Room
202, ▇▇.▇▇ ▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
|
|||||||
|
▇▇▇▇
Fang
|
4.25
|
320504197607243041
|
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
|
|||||||
(Party
A,
Party B and Shareholders of Party A collectively called “the Parties” and
individually called “each Party” or “a Party”.)
WHEREAS:
(1)
Party
A is duly incorporated and validly existing under the PRC Laws as a domestic
limited liability company;
(2)
Party
B is duly incorporated and validly existing under the PRC laws as a wholly
foreign-owned enterprise;
1
(3)
The
Shareholders of Party A collectively hold 98.15% of the equity interests in
Party and agree to pledge their all equities in Party A to Party B as the
guaranty of the loan granted by a bank as entrusted by Party B;
NOW,
THEREFORE, The
Parties made and entered into this Agreement with respect to the loan hereunder
through friendly negotiation as follows:
1.
DEFINITION
Except
provided otherwise, the terms under this Agreement shall mean:
1.1
“PRC”
refers to the People’s Republic of China, excluding the HongKong Special
Administrative Region, Macao Special Administrative Region and Taiwan
Province;
1.2
“PRC
Laws” refers to all PRC laws, administrative regulations and government rules in
effect;
1.3
“RMB”
refers to the legal currency within the PRC;
1.4“Loan”
refers to the Total Principal lend to the Borrowers by a bank entrusted by
Party
B in accordance with Article 2 hereunder;
1.5
“Equity” or “Equity Interests” refers to the 98.15% of equity interests in Party
A held by the Shareholders;
1.6
“Equity Transfer” refers to the assignment of Equity Interests in Party A held
by the Shareholders to Party B or its designated third party in accordance
with
the provisions of the exclusive purchase option agreement (the “Exclusive
Purchase Option Agreement”) executed by relevant parties thereto on April 14,
2008.
1.7
“Assets Transfer” refers to the assignment of assets of Party A to Party B or
its designated third party in accordance with the provisions of the Exclusive
Purchase Option Agreement.
1.8
“Consideration for Equity Transfer” has the meaning set forth in Section 6 of
this Agreement.
1.9
“Consideration for Assets Transfer” has the meaning set forth in Section 6 of
this Agreement.
2
2.
THE TOTAL LOAN AMOUNT
2.1
The
total principal of the loan hereunder shall be equal to USD 8,000,000 (“Total
Principal”), the exchange rate for conversion from USD to RMB applicable
hereunder shall be the rate published by the People’s Bank of China on date of
grant of the Loan.
3.
TERM AND FORM OF THE LOAN
3.1
Unless otherwise provided, the term of this Agreement shall begin from obtaining
the loan by the Borrower and expire when the loan is completely repaid by the
Borrower in accordance with the provisions of Article 6 hereunder.
3.2
Party
B shall, at its own discretion, entrust a bank (“Loan Bank”) to grant loan to
Party A, and Party A and Party B agree to execute the Entrusting Loan Agreement
with the Loan Bank under the condition that it will abide by this Agreement
and
perform the obligations hereunder.
4.
LOAN USAGE
4.1
The
full amount of the loan provided hereunder shall be used in the form of flowing
cash for the purpose of its business operation, and shall the Borrower in no
event change the usage without the prior written consent by Party
B.
5.
LOAN INTEREST
5.1
Except as provided in Section 5.2 hereunder, the Loan hereunder shall be
interest-free.
5.2
If
the Consideration for Equity Transfer or for Assets Transfer in accordance
with
Section 6 hereof, is higher than the Total Principal as a result of the
requirements of the then applicable law or any other reasons, the excess shall
be deemed to be the loan interest and /or utilizing fees of the Loan to the
largest extent being permitted by PRC Laws, and be repaid to Party B by Party
A
together with the Total Principal.
6.
REPAYMENT OF THE LOAN
6.1
The
Loan shall be repaid upon the receipt of the written notice sent by Party B
to
Party A (the “Repayment Notice”), which shall instruct Party A to repay the Loan
in accordance with Section 6.3 hereof.
6.2
Repayment Notice shall indicate the term of repayment, which shall be adjusted
from time to time by Party B in accordance with the provisions of PRC Laws
regarding the Equity Transfer (the “Repayment Term”).
3
6.3
Except as provided otherwise by the Repayment Notice, Party A shall make payment
to Party B during the Repayment Term as follows:
| 6.3.1 |
In
the event of any Equity Transfer by Party A, the after-tax consideration
paid to Party A in exchange for such Equity Transfer (including the
principal and interest of the loan, if applicable) (hereinafter referred
to as the “Consideration for Equity Transfer”) shall be used by Party A to
repay the Loan to Party B;
|
| 6.3.2 |
In
the event that the Company receives consideration for any Asset Transfer,
Party A shall cause the Company to adopt a plan of profit distribution
to
transfer all after-tax income of the Company to Party B to the greatest
extent permitted by PRC Laws, in order to repay the loan made by
Party B
under this agreement.
|
6.4
If
the Consideration for Equity Transfer or Assets Transfer is lower than the
Total
Principal under this Agreement, Party A shall be exempted from the shortfall
repayment obligation.
7.
CONDITON FOR GRANTING OF THE LOAN
7.1
The
loan shall be granted under the condition that Party A has caused its
Shareholders’ General Meeting and Board of directors to approve for the loan
hereunder.
7.2
Party
B shall immediately entrust a bank as designated by it to grant the Loan to
Party A following receiving the written evidence which proves that the Party
A
has fulfilled the condition under Section 7.1 hereof.
8.
WARRANTIES AND UNDERTAKINGS
| 8.1 |
Party
A warrants to Party B that, as of the execution date of this
Agreement:
|
| 8.1.1 |
Without
Party B’s prior written consent, it shall not supplement or amend the
articles of association or rules of Party A and any of its subsidiaries
wholly-owned or controlled by Party A in any manner, nor shall it
increase
or decrease the registered capital or change the shareholding structure
of
aforesaid entities in any manner;
|
| 8.1.2 |
It
shall prudently and effectively maintain its business operations
according
to good financial and business standards so as to maintain or increase
the
value of its assets;
|
| 8.1.3 |
Unless
as required necessary for its business operation or upon prior written
consent by Party B, it shall not transfer, mortgage or otherwise
dispose
of the lawful rights and interests to and in its assets or incomes,
nor
shall it encumber its assets and income in any way that would affect
Party
B’s interests hereunder;
|
4
| 8.1.4 |
It
shall not incur or succeed to any debts or liabilities unless as
required
necessary for the business operation of Party A or upon the prior
written
consent by Party B;
|
| 8.1.5 |
Without
Party B’s prior written consent, it shall not enter into any material
contract (exceeding RMB5,000,000 in
value);
|
| 8.1.6 |
Without
Party B’s prior written consent, it shall not provide any loans or
guaranty to any third party;
|
| 8.1.7 |
At
Party B’s request, it shall provide Party B with all information regarding
its business operation and financial
condition;
|
| 8.1.8 |
Party
A shall purchase the insurance from insurance companies acceptable
to
Party B in such amounts and of such kinds as are customary in the
region
among companies doing similar business and having similar
assets;
|
| 8.1.9 |
Without
Party B’s prior written consent, it shall not acquire or consolidate with
any third party, nor shall they invest in any third
party;
|
| 8.1.10 |
It
shall promptly notify Party B of any pending or threatened lawsuit,
arbitration or administrative dispute which involve its assets, business
or incomes, and take positive measures against aforesaid lawsuits,
arbitrations or administrative
dispute;
|
| 8.1.11 |
Without
Party B’s prior written consent, it shall not distribute any dividends to
the Shareholders in any manner, and at Party B’s request, it shall
promptly distribute all distributable dividends to the
Shareholders;
|
| 8.1.12 |
Without
Party B’s prior written consent, it shall not commit any act or omission
that would materially affect its assets, business or
liabilities.
|
| 8.2 |
The
Shareholders of Party
A warrant to Party B that:
|
| 8.2.1 |
They
agree to use the Consideration of Equity Transfer to discharge Party
A
from repayment of the loan
hereunder;
|
| 8.2.2 |
Without
Party B’s prior written consent,
they shall not accept such distributed dividend, and at Party B’s request,
it shall promptly approve for the Profit Distribution Proposal, and
accept
such distributed dividend;
|
| 8.2.3 |
They
shall not
transfer, sell, mortgage or otherwise disposing of
the equity interests in Party A;
|
| 8.2.4 |
Without
Party B’s prior written consent, they shall not commit any act or omission
that would materially affect the Party A’s assets, business or
liabilities.
|
9.
GUARANTY OF THE LOAN
9.1
To
secure the repayment of the loan hereunder, the Shareholders agree to pledge
98.15% of equity in Party A to Party B, and the Parties agree to execute the
Equity Pledge Agreement with respect thereto.
5
10.
TAX AND EXPENSE
10.1
The
Parties shall pay their respective taxes and expenses in relation to the
execution and performance hereof in accordance with the PRC Laws.
11.
ASSIGNMENT OF AGREEMENT
11.1
Party A shall not transfer any or all of its rights and obligations under this
Agreement to any third party without the prior written consent of Party
B.
11.2
The
Parties agree that Party B shall be, at its own discretion, transfer any or
all
of its rights and obligations under this Agreement to any third party upon
the
delivery of a six (6) days’ written notice to Party A.
12.
LIABILITIES AND INDEMITIES FOR BREACH OF THIS AGREEMENT
12.1
If
Party A uses the Loan incompliance with the provided manners hereunder, Party
B
shall require Party A to promptly repay the unduly used part.
12.2
If
Party A or the Shareholders breach(es) the warranties and undertakings as
provided in Article 8 or other provisions under this Agreement, and fail to
redress such breach within 60 days upon receipt of the written notice from
Party
B, it shall be entitled to require Party A to repay the granted Loan promptly.
12.3
If
Party A fails to repay the Loan in accordance with the provisions hereunder,
it
shall pay to Party B the liquidated damage per day equal to 0.03% of the unduly
paid proportion of the Loan; if the delay of repayment of the Loan excesses
sixty (60) days, Party B shall be entitled to exercise the right of pledge
under
the Equity Pledge Agreement.
13.
EFFECTIVENESS, MODIFICATION AND CANCELLATION
13.1
This
Agreement shall take effect on the date of execution hereof by the
Parties.
13.2
The
modification of this Agreement shall not be effective without written agreement
through negotiation. If the Parties could not reach an agreement, this Agreement
remains effective.
13.3
This
Agreement shall not be discharged or canceled without written agreement through
negotiation, provided Party B may, by delivering a thirty (30)-day prior notice
to Party A hereto, terminate this Agreement.
6
Loan
Agreement
13.4
Unless Party B fails to grant the Loan as required hereunder after the
satisfaction of all conditions as set forth in Section 7.1 hereunder by Party
A,
shall Party A in no event unilaterally terminate this Agreement.
14.
CONFIDENTIALITY
14.1
Any
information, documents, data and all other materials (herein “confidential
information”) arising out of the negotiation, signing, and implement of this
Agreement, shall be kept in strict confidence by the Parties. Without the
written approval by the other Parties, any Party shall not disclose to any
third
party any relevant materials, but the following circumstances shall be
excluded:
| (1) |
The
materials that is known or may be known by the Public (but not include
the
materials disclosed by each party receiving the
materials);
|
| (2) |
The
materials required to be disclosed subject to the applicable laws
or the
rules or provisions of stock exchange; or
|
| (3) |
The
materials disclosed by each Party to its legal or financial consultant
relating the transaction of this Agreement, and this legal or financial
consultant shall comply with the confidentiality set forth in this
Section. The disclosure of the confidential materials by staff or
employed
institution of any Party shall be deemed as the disclosure of such
materials by such Party, and such Party shall bear the liabilities
for
breaching the contract.
|
14.2
This
Clause shall survive whatever this Agreement is invalid, amended, revoked,
terminated or unable to implement by any reason
15.
FORCE MAJEURE
15.1
“Force Majeure” refers that any event that could not be foreseen, and could not
be avoided and overcome, which includes among other things, but without
limitation, acts of nature (such as earthquake, flood or fire), government
acts,
strikes or riots;.
15.2
If
an event of force majeure occurs, any of the Parties who is prevented from
performing its obligations under this Agreement by an event of force majeure
shall notify the other Parties without delay and within fifteen (15) days of
the
event provide detailed information about and notarized documents evidencing
the
event and take appropriate means to minimize or remove the negative effects
of
force majeure on the other Parties, and shall not assume the liabilities for
breaching this Agreement due to the force majeure. The Parties shall keep on
performing this Agreement after the event of force majeure
disappears.
16.
GOVERNING LAW AND DISPUTE RESOLUTION
16.1
The
effectiveness, interpretation, implementation and dispute-resolution related
to
this Agreement shall be governed under PRC Laws.
7
Loan
Agreement
16.2
Any
dispute arising out of this Agreement shall be resolved by the Parties through
friendly negotiation. If the Parties could not reach an agreement within 30
days
since the dispute is brought forward, any Party may submit the dispute to
Beijing Arbitration Commission for arbitration under its applicable rules,
the
language of arbitration proceedings shall be Chinese. The arbitration award
should be final and binding upon the Parties.
16.3
During the process of dispute-resolution, the Parties shall continue to perform
other terms under this Agreement, except for provision of dispute
resolution.
17.
MISCELLANEOUS
17.1
The
Parties agree and acknowledge that Party B shall be entitled to provide the
Loan
hereunder to the Shareholders by delivering a three (3)-day’s prior written
notice to the Parties, and such Shareholders agree that the Loan will then
be
used to increase the registered capital of Party A.
17.2
The
Parties acknowledge that this Agreement constitutes the entire agreement of
the
Parties with respect to the subject matters therein and supersedes and replaces
all prior or contemporaneous oral or written agreements and understandings.
17.3
This
Agreement shall bind and benefit the successor of each Party and the transferee
permitted hereunder with the same rights and obligations as if the original
parties hereof.
17.4
With
respect to the matters in connection with the loan hereunder, if there is any
discrepancy between the Entrusting Loan Agreement and this Agreement or any
other matters excluding in the Entrusting Loan Agreement, this Agreement shall
prevail.
17.5
Any
notice required to be given or delivered to the Parties hereunder shall be
in
writing and delivered to the address as indicated below or such other address
or
as such party may designate, in writing, from time to time. All notices shall
be
deemed to have been given or delivered upon by personal delivery, fax and
registered mail. It shall be deemed to be delivered upon: (1) registered air
mail: 5 business days after deposit in the mail; (2) personal delivery: 2
business days after transmission. If the notice is delivered by fax, it should
be confirmed by original through registered air mail or personal
delivery:
Party
A
Contact
person: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Address:
No. ▇▇▇▇-▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,▇▇▇▇▇▇
Tel:
▇▇▇-▇▇▇▇▇▇▇▇
Fax:
▇▇▇-▇▇▇▇▇▇▇▇
8
Loan
Agreement
Party
B
Contact
person: ▇▇▇▇ ▇▇▇▇▇
Address:
2A, ▇▇▇▇▇▇▇▇▇, ▇▇.▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇-▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇
Tel:
▇▇▇-▇▇▇▇▇▇▇▇
Fax:
▇▇▇-▇▇▇▇▇▇▇▇
The
Representative designated by the Shareholders
Contact
person: ▇▇▇▇ ▇▇▇▇▇
Address:
2A, ▇▇▇▇▇▇▇▇▇, ▇▇.▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇-▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇
Tel:
▇▇▇-▇▇▇▇▇▇▇▇
Fax:
▇▇▇-▇▇▇▇▇▇▇▇
17.6
This
Agreement is executed in four (4) originals with each of the person for signing
this Agreement holding one original, and each of originals shall be equally
valid and authentic.
[Signature
Page Follows]
9
Loan
Agreement
IN
WITNESS THEREFORE,
the
Parties hereto have caused this Agreement to be
executed
and delivered as of the date first above written.
For
and on behalf of
Party
A Shanghai Atrip Medical Technology Co., Ltd. (Seal)
Legal
Representative (or Authorized Representative): ▇▇▇▇ ▇▇▇▇▇
Signature
_____________
Party
B Anhante (Beijing) Medical Technology Co., Ltd. (Seal)
Legal
Representative (or Authorized Representative): ▇▇▇▇ ▇▇▇▇▇
Signature
____________
The
Shareholders of Shanghai Atrip Medical Technology Co.,
Ltd.
Mr.
▇▇▇▇ ▇▇▇▇▇, _______________________________
▇▇.
▇▇▇▇ Fang, _______________________________
10