Loan Agreement By and between Tianjin Shengkai Industrial Technology Development Co., Ltd. and Shengkai (Tianjin) Ceramic Valve Co., Ltd. May 30th, 2008
By
and between
Tianjin
Shengkai Industrial Technology Development Co., Ltd.
and
Shengkai
(Tianjin) Ceramic Valve Co., Ltd.
May
30th,
2008
This
Loan
Agreement (this “Agreement”) is executed by and between the following Parties on
May 30th,
2008,
in Tianjin, PRC.
(1)
All Shareholders of Tianjin Shengkai Industrial Technology Development Co.,
Ltd.
(hereinafter collectively called the “Borrowers” or “Party
A”),
and the
shareholding structure refers to the following:
|
Name
of Each
Shareholder
|
Shareholding
Ratio
(%)
|
ID
Card No.
|
Contact
Address
|
|||
|
▇▇▇▇ ▇▇▇▇
|
71.39%
|
120103196412022118
|
▇▇▇-▇▇▇,▇▇▇▇
▇,▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,▇▇.▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, Heping District,
Tianjin
|
|||
|
▇▇▇ ▇▇▇
|
13.33%
|
120103196607222128
|
▇▇▇-▇▇▇,▇▇▇▇
▇,▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,▇▇.▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, Heping District,
Tianjin
|
|||
|
▇▇▇▇ ▇▇▇▇▇▇
|
6.55%
|
2310851197903050762
|
Tuanjie
Wei, Muleng Town, Muleng City, Helongjiang Province
|
|||
|
Ji Haihong
|
6.55%
|
140102197002012349
|
▇▇.▇,▇▇▇▇▇,▇▇▇/▇,▇▇.▇▇,▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇,▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
|||
|
▇▇▇▇▇ ▇▇▇▇
|
0.48%
|
51010319740824628X
|
▇▇.▇,▇▇▇/▇,
▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇
|
|||
|
▇▇▇▇ ▇▇▇▇
|
0.48%
|
110108197106111811
|
No.1905,No.1Building,
Yangguang 100 ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇,▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
|
|||
|
▇▇▇▇ ▇▇▇▇
|
0.48%
|
440402197211205769
|
▇▇▇▇
▇▇▇, ▇▇▇▇ ▇, ▇▇▇▇ ▇,▇▇.▇▇▇▇,▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ North Road,
Xiangzhou
District,Zhuhai City,Guangzhou Province
|
|||
|
▇▇ ▇▇▇▇▇▇▇
|
0.37%
|
120106196505060526
|
▇▇.▇▇▇,▇▇▇▇
▇,▇▇.▇▇ ▇▇▇▇▇▇▇▇,▇▇▇▇▇▇▇▇▇,▇▇▇▇▇▇▇ ▇▇▇▇▇▇,▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,▇▇▇▇▇▇▇
|
|||
|
Liu Naifan
|
0.37%
|
372832196010257414
|
Dormitory
District,Yinan Gold Mine,Yinan County,Shandong
Province
|
(2)
Shengkai (Tianjin) Ceramic Valve Co., Ltd. (hereinafter referred to as the
“Lender” or “Party B”)
Legal
Representative : ▇▇▇▇
▇▇▇▇
Address
:
▇▇▇▇
▇▇-▇▇▇, ▇▇.▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Logistics Processing Zones,
Tianjin
(Party
A
and Party B are collectively called “the
Parties” and individually called “each Party” or “a Party” in this agreement.)
WHEREAS:
(1)
Borrowers (Party A) hold 100% of the equity interests in Tianjin Shengkai
Industrial Technology Development Co., Ltd. (the “Company”);
(2)
Party
B is a wholly foreign-owned enterprise incorporated under PRC laws;
(3)
Party
A desires to secure a loan from Party B, for the purpose of increasing the
registered capital of the Company, by pledging its equity in the Company to
Party B as a guaranty of the loan, and Party B agrees to provide the loan to
Party A ;
NOW,
THEREFORE, The
Parties have agreed through friendly negotiation to the terms and conditions
with respect to the loan hereunder as follows:
1.
DEFINITION
Except
where provided otherwise, the terms used in this Agreement shall
mean:
1.1
“PRC”
refers to the People’s Republic of China, excluding the Hong Kong 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 to be loaned to the Borrowers by the Lender
in accordance with Article 2 hereunder;
1.5
“The
Company” refers to Tianjin Shengkai Industrial Technology Development Co., Ltd.,
a domestic company which is incorporated and validly existing under PRC Laws;
its business license No. is 120191000015144, and its registered address is
Room324, 3/F, 1stStreet, Tianjin Economic-Technological Development
Area;
1.6
“Shareholder” refers to each of the Shareholders in the Company;
1.7
“Equity” or “Equity Interests” refers to the equity interests in the
Company;
1.8
“Equity Transfer” refers to the assignment of Equity Interests in the Company
held by Party A 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 on May 30th,
2008.
1.9
“Asset Transfer” refers to the assignment of the assets of the Company by the
Company to Party B or its designated third party in accordance with the
provisions of the Exclusive Purchase Option Agreement.
1.10
“Consideration for Equity Transfer” has the meaning set forth in Section 6 of
this Agreement.
1.11
“Consideration for Assets Transfer” has the meaning set forth in Section 6 of
this Agreement.
2.
THE TOTAL LOAN AMOUNT
2.1
The
total principal amount of the loan hereunder is RMB 49,000,000Yuan (the “Total
Principal”), and the amount and ratio of the loan to be made to each Shareholder
are as set forth in the following table:
|
Name of the
Shareholders
|
Amount of the Loan
(Ten Thousand Yuan)
|
Percentage of Total
Principal
( %
)
|
|||||
|
▇▇▇▇
▇▇▇▇
|
34,981,100
|
71.39
|
%
|
||||
|
▇▇▇
▇▇▇
|
6,531,700
|
13.33
|
%
|
||||
|
▇▇▇▇
▇▇▇▇▇▇
|
3,209,500
|
6.55
|
%
|
||||
|
Ji
Haihong
|
3,209,500
|
6.55
|
%
|
||||
|
Zhangying
|
235,200
|
0.48
|
%
|
||||
|
▇▇▇▇
▇▇▇▇
|
235,200
|
0.48
|
%
|
||||
|
▇▇▇▇
▇▇▇▇
|
235,200
|
0.48
|
%
|
||||
|
▇▇
▇▇▇▇▇▇▇
|
181,300
|
0.37
|
%
|
||||
|
Liu
Naifan
|
181,300
|
0.37
|
%
|
||||
3.
TERM OF THIS AGREEMENT
3.1
Unless otherwise provided, the term of this Agreement shall begin from the
Effective Date and expire when the loan is completely repaid by the Borrowers
in
accordance with the provisions of Article 6 hereunder.
4.
LOAN USAGE
4.1
The
full amount of the loan provided hereunder shall be used to increase the
registered capital of the Company, and the Borrowers shall in no event change
the usage without the prior written consent of the Lender.
4.2
The
Borrowers shall cause the Company to complete the registration of the Company
with the competent Administration Bureau of Industry and Commerce in respect
of
the increase in the registered capital of the Company within 30 business days
upon receipt of the Loan hereunder, and such period may be prolonged upon the
consent of the Lender.
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 the Consideration for Asset Transfer,
in accordance with Section 6 hereof, is higher than the Total Principal as
a
result of the requirements of then applicable law or for any other reason,
the
excess shall be deemed to be loan interest/utilizing fees of the Loan to the
largest extent permitted by PRC Laws, and will be paid to Party B by Party
A
together with loan principal.
6.
LOAN REPAYMENT
6.1
The
Loan shall be repaid upon receipt of 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 6.3.1 or 6.3.2 hereof.
6.2
The
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 equity transfers (the “Repayment Term”).
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 Consideration for Asset Transfer is
lower than the total principal under this Agreement, Party A shall be exempted
from the shortfall repayment obligation.
7.
CONDITONS FOR GRANTING OF THE LOAN
7.1
The
loan shall be granted only upon satisfaction of all the following
conditions:
| 7.1.1 |
Party
A shall cause the Shareholders General Meeting of the Company to
approve
increasing the registered capital by an amount equal to the Total
Principal.
|
| 7.1.2 |
Party
A, or the Company on behalf of Party A, shall execute all documents
necessary for the registration with the competent Administration
Bureau of
Industry and Commerce in respect of the increase of registered capital
of
the Company.
|
7.2
Party
B shall grant the Loan immediately and deposit it in the escrow account as
agreed by Party B for increasing the registered capital of the Company after
it
receives written evidence which proves that Party A has fulfilled all the
conditions under Section 7.1 hereof.
8.
WARRANTIES AND UNDERTAKINGS
8.1
Party
A hereby represents and warrants to Party B that, as of the execution date
of
this Agreement:
8.1.1
Party A legally holds 100% of the Equity in the Company;
8.1.2
Except as otherwise provided in the Equity Pledge Agreement and Exclusive
Purchase Option Agreement, there is no pledge or other form of encumbrance
on
the Equity;
8.1.3
There are no material debts which will adversely affect the Equity of Party
A;
8.1.4
Execution of this Agreement by Party A shall not constitute a breach of the
articles of association of the Company.
8.2
Party
A warrants to Party B that, as of the execution date of this
Agreement:
8.2.1
Except as otherwise provided in the Equity Pledge Agreement and Exclusive
Purchase Option Agreement, without Party B’s prior written consent, Party A
shall not transfer, sell, mortgage or otherwise dispose of assets or income
of
the Company;
8.2.2
Without Party B’s prior written consent, Party A shall not supplement or amend
the articles of association or rules of the Company, nor shall it increase
or
decrease the registered capital or change the shareholding structure of the
Company in any manner;
8.2.3
Without Party B’s prior written consent, Party A shall not cause or allow the
Shareholders’ General Meeting of the Company to approve the resolutions for the
Company or any subsidiary controlled or wholly owned by the Company to dissolve,
liquidate or change legal form;
8.2.4
Without Party B’s prior written consent, Party A shall not cause or allow the
Shareholders’ General Meeting of the Company to approve any Profit Distribution
Proposal, nor shall it accept such a distributed dividend; and at Party B’s
request, Party A shall promptly approve a Profit Distribution Proposal and
accept such a distributed dividend;
8.2.5
At
Party B’s request, Party A shall provide Party B with all information regarding
Party B’s business operations and financial condition;
8.2.6
Without Party B’s prior written consent, Party A shall not incur or succeed to
any debts or liabilities which may adversely affect its Equity
Interests;
8.2.7
Party A shall appoint, and appoint only, the candidates nominated by Party
B to
the board of directors of the Company, and shall not replace such candidates
without Party B’s written consent;
8.2.8
Without Party B’s prior written consent; Party A shall not cause or allow the
board of directors of the Company appointed by Party A to approve any
acquisition of, any consolidation with, or any investment in any third
party;
8.2.9
Party A shall promptly notify Party B of any pending or threatened lawsuit,
arbitration or administrative dispute which involves the assets, business or
income of the Company; and shall make every effort to take action to resolve
such lawsuit, arbitration or administrative dispute in order to safeguard the
legal rights and interests of the Company;
8.2.10
Without Party B’s prior written consent, Party A shall not commit any act or
omission that would materially affect the Company’s assets, business or
liabilities;
8.2.11
Party A shall strictly comply with the provisions of this Agreement, and
effectively perform its obligations hereunder, and shall be prohibited from
committing any act or omission which may affect the validity or enforceability
of this Agreement.
8.3
Party
A
warrants to Party B that it shall
use
its best efforts to ensure that the Company:
8.3.1
shall not, without Party B’s prior written consent, supplement or amend the
articles of association or rules of the Company, or any subsidiary controlled
or
wholly owned by the Company, in any manner, nor shall it increase or decrease
the registered capital or change the shareholding structure of the aforesaid
entities in any manner;
8.3.2
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;
8.3.3
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 security interests unless as
required for the business operations of the Company or upon prior written
consent by Party B;
8.3.4
shall not incur or succeed to any debts or liabilities without Party B’s prior
written consent;
8.3.5
without Party B’s prior written consent, shall not enter into any material
contract (exceeding RMB 3,000,000 in value);
8.3.6
without Party B’s prior written consent, shall not provide any loans or guaranty
to any third party;
8.3.7
at
Party B’s request, shall provide Party B with all information regarding the
Company’s business operation and financial condition;
8.3.8
without Party B’s prior written consent, shall not acquire or consolidate with
any third party, nor shall it invest in any third party;
8.3.9
shall
promptly notify Party B of any pending or threatened lawsuit, arbitration or
administrative dispute which involves the assets, business or income of the
Company; and shall make every effort to take action to resolve such lawsuit,
arbitration or administrative dispute in order to safeguard the legal rights
and
interests of the Company;
8.3.10
without Party B’s prior written consent, shall not distribute any dividends to
the shareholders in any manner, and, at Party B’s request, shall promptly
distribute all distributable dividends to the shareholders;
8.3.11
without Party B’s prior written consent, shall not commit any act or omission
that would materially affect the Company’s assets, business or
liabilities.
Loan
Agreement
9.
GUARANTY OF THE LOAN
9.1
To
secure the repayment of the debts under this Agreement, Party A agrees to pledge
all its equity in the Company to Party B, and both Parties agree to execute
the
Equity Pledge Agreement with respect thereto.
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 PRC Laws.
10.2
Party B shall pay taxes and expenses in accordance with Section 6.4 hereof
(if
applicable).
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 have the right to transfer any or all of its
rights and obligations under this Agreement to any third party upon a six (6)
days’ written notice to Party A without approval by Party A.
12.
LIABILITIES AND INDEMITIES FOR BREACH OF THIS AGREEMENT
12.1
If
Party A uses the Loan other than in compliance with the terms of this Agreement,
Party B shall require Party A repay the improperly used part
promptly.
12.2
If
Party A breaches the warranties and undertakings as provided in Article 8 hereof
or other provisions under this Agreement and fails to redress such breach within
60 days upon receipt of written notice from Party B, Party B shall be entitled
to require Party A to repay the granted Loan promptly.
13.
EFFECTIVENESS, MODIFICATION AND CANCELLATION
13.1
This
Agreement shall take effect on the date of execution hereof by Party A and
the
duly authorized representatives of Party B.
13.2
The
modification of this Agreement shall not be effective without written agreement
through negotiation. If the Parties do not reach an agreement as to
modification, this Agreement remains effective.
13.3
This
Agreement shall not be discharged or canceled without written agreement through
negotiation, provided that Party B may, by giving thirty (30) days’ prior notice
to Party A, terminate this Agreement.
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 hereof by Party
A,
Party A shall in no event unilaterally terminate this Agreement.
13.5
If
Party B fails to provide the Loan in accordance with the terms hereof, this
Agreement shall be automatically terminated.
14.
CONFIDENTIALITY
14.1
Any
information, documents, data and all other materials (herein “confidential
information”) arising out of the negotiation, signing, and implementing of this
Agreement shall be kept in strict confidence by the Parties. Without the written
approval of the other Parties, no Party shall disclose to any third party any
relevant materials, but the following circumstances shall be
excluded:
(1)
Material that is known or may be known by the Public (but not including
material disclosed by each party receiving the materials);
(2)
Material required to be disclosed subject to the applicable laws or the rules
or
provisions of a stock exchange; or
(3)
Material disclosed by each Party to its legal or financial consultant relating
to the transaction of this Agreement, and this legal or financial consultant
shall comply with the confidentiality set forth in this Section. The disclosure
of confidential material by staff or a consignee of any Party shall be deemed
to
be disclosure of such materials by such Party, and such Party shall bear the
liabilities for breaching the contract.
14.2
This
Clause shall survive whether this Agreement is invalid, amended, revoked,
terminated or incapable of implementation for 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 earthquakes, flood or fire), government
acts, strikes or riots.
15.2
If
an event of force majeure occurs, any of the Parties that is prevented from
performing its obligations under this Agreement by an event of force majeure
shall notify the other Party without delay and within fifteen (15) days of
the
event provide detailed information about and notarized documents evidencing
the
event, shall take appropriate means to minimize or remove the negative effects
of force majeure on the other Party and shall not assume the liabilities for
breaching this Agreement. The Parties shall continue performing this Agreement
after the event of force majeure disappears.
Loan
Agreement
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.
16.2
Any
dispute arising out of this Agreement shall be resolved by both parties through
mutual negotiation. If both parties cannot reach an agreement within 30 days
from the date on which the dispute is brought forward, either Party may submit
the dispute to the Beijing Arbitration Commission for arbitration under its
applicable rules, and the language of arbitration proceedings shall be Chinese.
The arbitration award shall be final and binding upon both parties.
16.3
During the process of dispute-resolution, both parties shall continue to perform
other terms under this Agreement, except for the provisions subject to the
dispute resolution.
17.
MISCELLANEOUS
17.1
The
Parties acknowledge that this Agreement constitutes the entire agreement of
the
Parties with respect to the subject matters herein and supersedes and replaces
all prior or contemporaneous oral or written agreements and understandings.
17.2
This
Agreement shall bind and benefit the successor of each Party and any transferee
permitted hereunder with the same rights and obligations as if such successor
or
transferee were an original party hereto.
16.3
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
delivered by personal delivery, fax or 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:
The
Representative designated by Party A:
Contact
person: ▇▇▇▇ ▇▇▇▇
Address:
Room324, ▇/▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇▇▇ Development
Area
Tel:
▇▇-▇▇-▇▇▇▇▇▇▇▇ Fax:
▇▇-▇▇-▇▇▇▇▇▇▇▇
Party
B:
Contact
person: ▇▇▇▇ ▇▇▇▇
Address:
▇▇▇▇ ▇▇-▇▇▇, ▇▇.▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Logistics Processing Zones,
Tianjin
Tel:
▇▇-▇▇-▇▇▇▇▇▇▇▇ Fax: ▇▇-▇▇-▇▇▇▇▇▇▇▇
Loan
Agreement
17.4
This
Agreement is executed in eleven originals with each of the person for signing
this Agreement holding one original, and each of originals shall be equally
valid and authentic.
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 All
Shareholders of Tianjin Shengkai Industrial Technology development Co., Ltd.
|
Name of the
Shareholders
|
Signature
|
Name of the
Shareholders
|
Signature
|
|||
|
▇▇▇▇ ▇▇▇▇
|
/s/ ▇▇▇▇ ▇▇▇▇
|
▇▇▇ ▇▇▇
|
/s/ ▇▇▇ ▇▇▇
|
|||
|
▇▇▇▇ ▇▇▇▇▇▇
|
/s/ ▇▇▇▇ ▇▇▇▇▇▇
|
Ji Haihong
|
/s/ Ji ▇▇▇▇▇▇▇
|
|||
|
▇▇▇▇▇ ▇▇▇▇
|
/s/ ▇▇▇▇▇ ▇▇▇▇
|
▇▇▇▇ ▇▇▇▇
|
/s/ ▇▇▇▇ ▇▇▇▇
|
|||
|
▇▇▇▇ ▇▇▇▇
|
/s/ ▇▇▇▇ ▇▇▇▇
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▇▇ ▇▇▇▇▇▇▇
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/s/ Wu ▇▇▇▇▇▇▇
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▇▇▇ Naifan
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/s/ Liu Naifan
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Party
B Shengkai
(Tianjin) Ceramic Valves Co., Ltd. (Seal)
Legal
Representative (or Authorized Representative): ▇▇▇▇ ▇▇▇▇
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Signature
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/s/ ▇▇▇▇ ▇▇▇▇
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