Exhibit 10.1
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INTERIM LOAN AGREEMENT
among
CHINAREN, INC.,
as Borrower,
▇▇▇▇.▇▇▇ INC.,
as Lender
and
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ AND ▇▇▇▇▇▇ ▇▇▇▇
as Pledgors
Dated as of September 20, 2000
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions ................................................... 1
ARTICLE II
AMOUNT AND TERMS OF THE LOANS
SECTION 2.01. The Loan ...................................................... 2
SECTION 2.02. Method of Borrowing ........................................... 2
SECTION 2.03. Maturity; Repayment ........................................... 2
SECTION 2.04. Interest ...................................................... 2
SECTION 2.05. Waiver ........................................................ 3
SECTION 2.06. Use of Loan Proceeds .......................................... 3
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Borrower ...................................................... 3
ARTICLE IV
CONDITIONS
SECTION 4.01. Conditions of Lending ......................................... 6
ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants ......................................... 7
SECTION 5.02. Negative Covenants ............................................ 8
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ARTICLE VI
EVENT OF DEFAULT
SECTION 6.01. Events of Default ............................................ 10
ARTICLE VII
PLEDGE AND SECURITY INTEREST
SECTION 7.01. Security Interest ............................................ 12
SECTION 7.02. Distribution, Options, or Other Adjustments .................. 13
SECTION 7.03. Certificates ................................................. 13
SECTION 7.04. Domain Name .................................................. 13
SECTION 7.05. Power of Attorney ............................................ 13
SECTION 7.06. Inducing Representations of the Pledgors ..................... 14
SECTION 7.07. Obligations of the Pledgors .................................. 15
SECTION 7.08. Rights of the Pledgors ....................................... 15
SECTION 7.09. Rights of the Lender ......................................... 16
SECTION 7.10. Remedies ..................................................... 16
SECTION 7.11. Disposition of Proceeds ...................................... 19
SECTION 7.12. Termination of Security Interests ............................ 19
SECTION 7.13. Non-Recourse ................................................. 19
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Illegality ................................................... 20
SECTION 8.02. Notices ...................................................... 20
SECTION 8.03. Foreign Exchange Restrictions ................................ 22
SECTION 8.04. Miscellaneous; Expenses; Indemnification ..................... 22
SECTION 8.05. Successors and Assigns ....................................... 22
SECTION 8.06. Governing Law and Arbitration ................................ 22
SECTION 8.07. Headings ..................................................... 23
SECTION 8.08. Entire Agreement ............................................. 23
SECTION 8.09. Counterparts ................................................. 24
SECTION 8.10. Waiver of Sovereign Immunity ................................. 24
SECTION 8.11. Use of English Language ...................................... 24
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INTERIM LOAN AGREEMENT (the "Agreement"), dated September 20,
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2000, among CHINAREN, INC., a California corporation, (the "Borrower"), ▇▇▇▇.▇▇▇
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INC., a Delaware corporation (the "Lender"), ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇
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Yang (each a "Pledgor", and collectively the "Pledgors").
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R E C I T A L S
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WHEREAS, the Lender, Alpha Sub Inc. and the Borrower have entered into an
Agreement and Plan of Merger, dated as of September 13, 2000 (the "Merger
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Agreement"), pursuant to which Alpha Sub Inc. will be merged with and into the
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Borrower (the "Merger");
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WHEREAS, the Borrower and the Lender desire to enter into a loan agreement
for the sole purpose of providing the Borrower with interim funding from the
date of the Merger Agreement until the earlier of the Effective Time (as defined
in the Merger Agreement) or the Termination Date (as defined in the Merger
Agreement) of the Merger;
WHEREAS, the Pledgors have agreed to pledge, for the benefit of the
Borrower, all of the shares of the Common Stock (as defined herein) of the
Borrower owned directly or indirectly by them to the Lender as collateral
securing the Loans (as defined herein); and
WHEREAS, ▇▇▇▇ ▇▇▇▇, one of the Pledgors, is the registered domain name
holder (the "Registrant"), of the domain name "▇▇▇▇▇▇▇▇.▇▇▇" (the "Domain
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Name"), and has agreed to pledge, for the benefit of the Borrower, all of his
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right, title and interest as the Registrant of the Domain Name to the Lender as
collateral securing the Loans.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Capitalized terms used herein but not otherwise
defined shall have the meanings assigned to them in the Merger Agreement.
ARTICLE II
AMOUNT AND TERMS OF THE LOANS
SECTION 2.01. The Loan. The Lender agrees, subject to the terms and
conditions of this Agreement, to extend loans to the Borrower (each a "Loan")
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which the Borrower reasonably requires for the purposes specified in the
Recitals above upon request by the Borrower to the Lender. The principal amount
of all Loans shall not exceed US$ 2,000,000. The Loans shall not be revolving in
nature and amounts repaid may not be reborrowed. The commitment of the Lender to
make Loans shall terminate at the close of business on the Maturity Date. For
the purposes of this Agreement, "Maturity Date" means the earlier of the
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Effective Time of the Merger and the Termination Date (as defined in the Merger
Agreement) of the Merger.
SECTION 2.02. Method of Borrowing. At least three Business Days prior to
the date on which each Loan is required, the Borrower shall deliver to the
Lender a written notice setting forth: (a) the amount of such Loan requested;
(b) information regarding the use of the proceeds from such Loan; and (c) the
date the requested amount is to be made available to the Borrower (each a "Loan
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Date"); provided, however, if a Loan Date does not fall on a Business Day, such
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Loan Date shall be deemed to fall on the Business Day immediately following such
Loan Date. On each Loan Date, the Lender shall make available to the Borrower by
the close of business (Beijing time) on such Loan Date the full amount of the
Loan requested by wire transfer of immediately available funds in United States
dollars to an account designated by the Borrower. For the purposes of this
Section 2.02, "Business Day" means any day except Saturday, Sunday or other day
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on which commercial banks in either New York City or Beijing are authorized or
required by law to be closed.
SECTION 2.03. Maturity; Repayment. Any outstanding Loans, unpaid interest
and any other moneys owing under this Agreement shall, subject to Section 8.01
hereof, become due and payable by the Borrower to the Lender on the Maturity
Date; provided, however, that in the event the Merger Agreement is terminated,
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all outstanding Loans, unpaid interest and any other moneys owing under this
Agreement shall become due and payable on the date that is ninety days after the
Maturity Date.
SECTION 2.04. Interest. (a) Interest shall be computed on the aggregate
amount of outstanding Loans for each day in which Loans are outstanding
beginning from the respective Loan Dates until the Maturity Date (the "Interest
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Period") at a rate per annum equal to 18%. Interest shall be computed on the
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basis of the actual number of days elapsed during the Interest Period and a year
of three hundred and sixty-five days. Interest shall be computed during the
Interest Period from and including the first day of the Interest Period to and
including the last day of the Interest Period.
(b) Any interest on any Loan that is not paid on the Maturity Date, and any
overdue principal on any Loan, shall bear interest, payable on the date that is
ninety days after the Maturity Date, for each day from and including the date
payment thereof was due but excluding the date of actual payment, at a rate per
annum equal to 22.5% (the "Default Rate");
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provided, however, that if the Default Rate is not permissible under applicable
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law, then the Default Rate shall be reduced to the highest rate permissible
under applicable law.
(c) In the event the Borrower is required by applicable law, decree or
regulation to deduct or withhold tax from any amounts payable to the Lender
under this Agreement, the interest rate set forth in Section 2.04(a) shall be
adjusted such that the interest payments to be made to the Lender, after such
deduction or withholding, shall be equal to the full amount stated to be payable
to the Lender under this Agreement.
SECTION 2.05. Waiver. No provision set forth in this Article II shall be
waived without the approval of the board of directors of the Lender.
SECTION 2.06. Use of Loan Proceeds. The Borrower shall use the proceeds
from any Loan only in a manner as approved by the Lender.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Borrower. The Borrower hereby represents and warrants to the
Lender that:
(a) Good Standing and Power. Except as set forth in Schedule 5.1(a) to the
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Company Disclosure Letter (as defined in the Merger Agreement), each
of the Borrower and its sole subsidiary, Sandhill Information
Technology (Beijing) Co. Ltd. (the "Subsidiary") is a corporation duly
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organized and existing, in good standing, under the laws of the
jurisdiction of its incorporation, and has the corporate power to own
its property and to carry on its business as now being conducted and
is qualified to do business and is in good standing in each
jurisdiction where the ownership or operation of its assets or
properties or conduct of its business requires such qualification,
except where the failure to be so organized, qualified or in good
standing, or to have such power or authority when taken together with
all other such failures, could have a Material Adverse Effect (as
defined below). Except for the Subsidiary, the Company does not have
any other subsidiaries.
(b) Corporate authority. The Borrower has full power and authority to
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enter into and deliver this Agreement, to make the borrowings, and to
incur and perform the obligations provided for herein, all of which
have been duly authorized by all proper and necessary corporate
action. No consent or
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approval of stockholders or of any governmental authority is required
as a condition to the validity of this Agreement or the performance by
the Borrower of its obligations hereunder.
(c) Binding Agreement. This Agreement constitutes the valid and legally
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binding obligations of the Borrower enforceable in accordance with
their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(d) Litigation. Except as disclosed in the Borrower Reports (as defined
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herein) provided to the Lender prior to the date hereof, there are no
(i) civil, criminal or administrative actions, suits, claims,
hearings, investigations or proceedings pending or, to the knowledge
of the officers of the Borrower, threatened against the Borrower or
the Subsidiary or (ii) obligations or liabilities, whether or not
accrued, contingent or otherwise and whether or not required to be
disclosed, including those relating to environmental and occupational
safety and health matters, or any other facts or circumstances of
which the executive officers of the Borrower has knowledge that could
result in any claims against, or obligations or liabilities of, the
Borrower or the Subsidiary, except for those that are not,
individually or in the aggregate, reasonably likely to have a Material
Adverse Effect or prevent or materially burden or materially impair
the ability of the Borrower to consummate the transactions
contemplated by this Agreement.
(e) No Conflicts. There is no statute, regulation, rule, order or
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judgment, no charter, by-law or preference stock provision of the
Borrower, and no provision of any mortgage, indenture, contract or
agreement binding on the Borrower or affecting its property, which
would prohibit, conflict with or in any way prevent the execution,
delivery, or carrying out of the terms of this Agreement.
(f) Company Reports; Financial Statements. The Borrower has delivered to
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the Lender each report or information statement prepared by it since
December 31, 1999 (the "Audit Date"), (collectively, the "Borrower
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Reports"). The Borrower Reports include (i) the financial statements
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for the Subsidiary, including a balance sheet dated December 31, 1999
and an income statement for the period from inception through December
31, 1999, as audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ together with an unaudited
balance sheet of the Subsidiary, dated as of August 31, 2000, and an
unaudited income statement for the Subsidiary for the eight months
ended August
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31, 2000 (collectively, the "Subsidiary Reports"), and (ii) certain
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financial information concerning revenues, expenses, assets and
liabilities of the Borrower, including unaudited consolidated and
unconsolidated balance sheets of the Borrower as June 30, 2000 and
unconsolidated and consolidated income statements of the Borrower for
the six months ended June 30, 2000, (collectively, the "US Reports").
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As of their respective dates, (or, if amended, as of the date of such
amended) the Borrower Reports did not contain any untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements made therein, in light of
the circumstances in which they were made, not misleading. The US
Reports were not prepared in accordance with generally accepted
accounting principles, but do provide disclosure of all material items
of revenue and expense and all material assets and liabilities of the
Borrower on an unconsolidated basis. Each of the consolidated balance
sheets included in or incorporated by reference into the Subsidiary
Reports (including the related notes and schedules) fairly presents,
or will fairly present, the consolidated financial position of the
Subsidiary as of its date and each of the consolidated statements of
income and of changes in financial position included in or
incorporated by reference into the Subsidiary Reports (including any
related notes and schedules) fairly presents, or will fairly present,
the results of operations, retained earnings and changes in financial
position, as the case may be, of the Subsidiary for the periods set
forth therein (subject, in the case of unaudited statements, to notes
and normal year-end audit adjustments that will not be material in
amount of effect), in each case in accordance with generally accepted
accounting principles in the People's Republic of China consistently
applied during the periods involved, except as may be noted therein.
(g) Absence of Certain Changes. Except as disclosed in the Company
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Disclosure Letter and the Borrower Reports provided to the Lender
prior to the date hereof, since the Audit Date, the Borrower and the
Subsidiary have conducted their respective businesses only in, and
have not engaged in any material transaction other than according to,
the ordinary and usual course of such businesses and there has not
been (i) any change in the financial condition, properties, prospects,
business or results of operations of the Borrower and the Subsidiary
or any development or combination of developments of which management
of the Borrower has knowledge that, individually or in the aggregate,
has had or is reasonably likely to have a Material Adverse Effect;
(ii) any material damage destruction or other casualty loss with
respect to any material asset or property owned, leased or otherwise
used by the Borrower or the Subsidiary, whether or not
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covered by insurance; (iii) any declaration, setting aside or payment
of any dividend or other distribution in cash, stock or property in
respect of the capital stock of the Borrower, except for dividends or
other distributions on its capital stock publicly announced prior to
the date hereof and except as expressly permitted hereby; or (iv) any
change by the Borrower in accounting principles, practices or methods.
Since the Audit Date, except as provided for herein or as disclosed in
the Borrower Reports delivered to the Lender prior to the date hereof,
there has not been any increase in the compensation payable or that
could become payable by the Borrower or the Subsidiary to officers or
key employees or any amendment of any of the Compensation and Benefit
Plans (as defined in the Merger Agreement). For purposes of this
Agreement, "Material Adverse Effect" means a material adverse effect
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on the financial condition, properties, prospects, business or results
of operations of the Borrower and the Subsidiary taken as a whole;
provided, however, that none of the following shall be deemed to
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constitute, and shall not be taken into account in determining the
occurrence of, a Material Adverse Effect: (i) any effect arising from
or relating to general business or economic conditions in the People's
Republic of China which does not affect the Borrower in any materially
disproportionate manner, or (ii) any effect relating to or affecting
the Internet industry in the People's Republic of China, which does
not affect the Borrower in a disproportionate manner and (iii) any
effect arising from or relating to the announcement or pendency of the
Merger.
ARTICLE IV
CONDITIONS
SECTION 4.01. Conditions of Lending. The obligation of the Lender to
extend Loans hereunder is subject to the following conditions precedent:
(a) Compliance. At the time of a Loan (i) each of the Borrower and the
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Pledgors shall have complied and shall then be in compliance with all
of the terms, covenants and conditions of this Agreement, (ii) there
shall have occurred no Event of Default as defined in Section 6.01 and
no event which, with the giving of notice or the lapse of time, or
both, would constitute such an Event of Default, (iii) the
representations and warranties of the Borrower contained in Section
3.01 and the Pledgors contained in Section 7.06 shall be true with the
same effect as though such representations and warranties had been
made at the time of the loan, (iv
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each of the Borrower and the Pledgors shall have complied and shall
then be in compliance with all of the terms, covenants and conditions
of the Merger Agreement, (v) the representations and warranties of the
Borrower and the Pledgors contained in the Merger Agreement shall be
true with the same effect as though such representations and
warranties had been made at the time of such Loan and (vi) the Lender
shall have received a certificate dated the date of the loan and
signed by the Chief Executive Officer or the Chief Financial Officer
of the Borrower to the foregoing effect.
(b) Use of Proceeds. The Lender shall be reasonably satisfied as of each
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Loan Date that the Borrower intends to use the proceeds of such Loan
for the purposes set forth in the Recitals.
(c) Evidence of Corporate Action. The Lender shall have received copies of
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all corporate action taken by the Borrower to authorize this Agreement
and the borrowing hereunder, certified the date of such Loan, and such
other papers as the Lender shall reasonably require.
(d) Pledged Collateral. The Lender shall have received as collateral
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securing the obligations of the Borrower and the Pledgors specified in
or contemplated by this Agreement in accordance with Article VII
hereunder the Certificates (as defined herein), the Borrower
Assignment (as defined herein) and the Lender Assignment (as defined
herein).
(e) Bank Accounts. The Borrower shall have appointed in writing the
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Lender's designated representatives as a joint signing authority on
the Borrower's bank accounts and shall have provided the Lenders with
joint control over the Subsidiary's bank accounts; provided, however,
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that the Lender shall cause such designated representatives to cease
such joint signing authority and such Lender's joint control shall
terminate upon the repayment in full by the Borrower of all
outstanding Loans, unpaid interest and any other moneys owing under
this Agreement.
ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants. From the date hereof until the
Maturity Date, so long as the commitment by the Lender to make Loans hereunder
shall be in effect or any Loans are outstanding, unless compliance shall have
been waived in writing by the Lender, the Borrower will comply with the
covenants set forth in Section 6.1 of the Merger Agreement. In
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the event the Merger Agreement is terminated, so long as any Loans are
outstanding, unless compliance shall have been waived in writing by the Lender,
the Borrower will:
(a) Financial Statements. Furnish to the Lender (i) as soon as available
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but in no event more than fourteen days after the end of each month,
consolidated and consolidating balance sheets of the Borrower and the
Subsidiary as of the close of such period and consolidated and
consolidating statements of income and expense and changes in
financial position, to the close of such period, certified by an
executive officer of the Borrower and accompanied by a certificate of
said officer stating whether any event has occurred which constitutes
an Event of Default hereunder or which would constitute such an event
of default with the giving of notice or the lapse of time, or both,
and, if so, stating the facts with respect thereto; (ii) as soon as
available, copies of all financial statements, reports, notices, and
proxy statements sent by the Borrower in a general mailing to all its
stockholders; and (iii) such additional information, reports or
statements as the Lender may from time to time reasonably request.
(b) Loan Repayment. Pay and discharge, and cause the Subsidiary to pay and
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discharge, any outstanding Loans, unpaid interest and any other moneys
owing under this Agreement prior to making any other payment that is
due and payable and that arises from Borrowed Money (as defined
herein). "Borrowed Money" means any obligation to repay money, any
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indebtedness evidenced by notes, bonds, debentures or similar
obligations, any obligation under a conditional sale or other title
retention agreement and the net aggregate rentals under any lease
which under generally accepted accounting principles would be
capitalized on the books of the Borrower or which is the substantial
equivalent of the financing of the property so leased.
(c) Corporate Existence. Maintain its corporate existence and, to the
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extent it is not in good standing, take all actions necessary for it
to obtain good standing status, and qualify and remain qualified to do
business as a foreign corporation in each jurisdiction in which the
character of the properties owned or leased by it therein or in which
the transaction of its business makes such qualification necessary,
and cause the Subsidiary so to do.
SECTION 5.02. Negative Covenants. From the date hereof until the Maturity
Date, so long as the commitment by the Lender to make Loans hereunder shall be
in effect or any Loans are outstanding, unless compliance shall have been waived
in writing by the Lender, the
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Borrower will comply with the covenants set forth in Section 6.1 of the Merger
Agreement. In the event the Merger Agreement is terminated, so long as any Loans
are outstanding, unless compliance shall have been waived in writing by the
Lender, the Borrower will not:
(a) Borrowing. Create, incur, assume or suffer to exist any liability for
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Borrowed Money, or permit the Subsidiary so to do, except (i)
indebtedness to the Lender, indebtedness of the Borrower or the
Subsidiary secured by mortgages, encumbrances or liens specifically
permitted by Section 5.02(b) hereof, (iii) indebtedness of the
Borrower to others which shall be subordinated, by a written agreement
satisfactory in form and substance to the Lender, to all indebtedness
of the Borrower to the Lender and (iv) the loan agreement set forth in
Annex B to Schedule 5.1(t)(i) of the Company Disclosure Letter.
(b) Mortgages and Pledges. Create, incur, assume or suffer to exist any
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mortgage, pledge, lien or other encumbrance of any kind (including the
charge upon property purchased under conditional sale or other title
retention agreements) upon, or any security interest in, any of its
property or assets, whether now owned or hereafter acquired, or permit
the Subsidiary so to do, except (i) liens for taxes not delinquent or
being contested in good faith and by appropriate proceedings, (ii)
deposits or pledges to secure obligations under workmen's
compensation, social security or similar laws, or under unemployment
insurance, (iii) deposits or pledges to secure bids, tenders,
contracts (other than contracts for the payment of money), leases,
statutory obligations, surety and appeal bonds and other obligations
of like nature arising in the ordinary course of business, (iv)
mechanic's, workmen's, materialmen's or other like liens arising in
the ordinary course of business with respect to obligations which are
not due or which are being contested in good faith and (v) existing
mortgages disclosed in the financial statements (or in the notes
thereto) referred to in Section 3.01(f).
(c) Merger, Acquisition or Sale of Assets. Enter into any merger or
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consolidation or acquire all or substantially all of the assets of any
person, firm, joint venture, corporation or other entity, or sell,
lease, or otherwise dispose of any of its assets or permit the
Subsidiary so to do.
(d) Loans. Make loans or advances to any person, firm, joint venture,
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corporation or other entity or permit the Subsidiary so to do.
(e) Contingent Liabilities. Assume, guarantee, endorse, contingently agree
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to purchase or otherwise become liable upon the obligation of any
person,
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firm, joint venture, corporation or other entity or permit the
Subsidiary to do so.
(f) Investments. Purchase or acquire the obligations or stock of, or any
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other interest in, any person, firm, joint venture, corporation or
other entity, or permit any Subsidiary so to do.
(g) Capital Expenditures. Make any capital expenditures, or permit the
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Subsidiary so to do.
(h) Dividends and Purchase of Stock. Declare any dividends on any shares
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of any class of its capital stock, or apply any of its property or
assets to the purchase, redemption or other retirement of, or set
apart any sum for the payment of any dividends on, or for the
purchase, redemption or other retirement of, or make any other
distribution by reduction of capital or otherwise in respect of, any
shares of any class of capital stock of the Borrower, or permit the
Subsidiary so to do (except for the sole purpose of repaying any
outstanding Loans), or permit the Subsidiary to purchase or acquire
any shares of any class of capital stock of the Borrower.
(i) Stock of Subsidiary. Sell or otherwise dispose of any shares of
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capital stock of the Subsidiary or permit the Subsidiary to issue any
additional shares of its capital stock.
(j) Compliance with ERISA. Permit with respect to any employee benefit
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plan or employee benefit plans covered by Title IV of the Employee
Retirement Income Security Act of 1974 ("ERISA") (i) any prohibited
transaction or prohibited transactions under ERISA or the Internal
Revenue Code of 1986, as amended, or (ii) any reportable event under
ERISA, if upon termination of the plan or plans with respect to which
one or more such reportable events shall have occurred there is or
would be any liability of the Borrower to the Pension Benefit Guaranty
Corporation.
ARTICLE VI
EVENT OF DEFAULT
SECTION 6.01. Events of Default. If one or more of the following events of
default shall occur:
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(a) Default shall be made in the payment of any principal of or interest
upon any outstanding Loan when due and payable, whether at maturity or
otherwise; or
(b) Default shall be made in the due observance or performance of any
term, covenant or agreement of the Borrower or any of the Pledgors
contained in this Agreement, and such default shall have continued
unremedied for a period of five Business Days after any officer of the
Borrower or such Pledgor, as the case may be, becomes aware of such
default; or
(c) Any representation or warranty made by the Borrower or any of the
Pledgors herein or any statement or representation made in any
certificate, report or opinion delivered in connection herewith shall
prove to have been misleading in any material respect when made; or
(d) The Borrower, the Subsidiary or any of the Pledgors makes an
assignment for the benefit of creditors, files a petition in
bankruptcy, is adjudicated insolvent or bankrupt, petitions or applies
to any tribunal for any receiver of or any trustee for the Borrower,
the Subsidiary or such Pledgor or any substantial part of its
property, commences any proceeding relating to the Borrower, the
Subsidiary or such Pledgor under any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, whether now or
hereafter in effect, or there is commenced against the Borrower, the
Subsidiary or such Pledgor any such proceeding which remains
undismissed for a period of thirty days, or the Borrower, the
Subsidiary or such Pledgor by any act indicates its consent to,
approval of or acquiescence in any such proceeding or the appointment
of any receiver of or any trustee for the Borrower, the Subsidiary or
such Pledgor or any substantial part of its property, or suffers any
such receivership or trusteeship to continue undischarged for a period
of thirty days; or
(e) One or more judgments against the Borrower, the Subsidiary or any of
the Pledgors or attachments against its property, which in the
aggregate exceed US$100,000 or the operation or result of which could
be to interfere materially and adversely with the conduct of the
business of the Borrower or the Subsidiary, remain
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unpaid, unstayed on appeal, undischarged, unbonded or undismissed for
a period of thirty days; or
(f) Default shall be made in the due observance or performance of any
other term, covenant or agreement of the Borrower or any of the
Pledgors contained in the Merger Agreement, and such default shall
have continued unremedied for a period of five Business Days after any
officer of the Borrower or such Pledgor, as the case may be, becomes
aware of such default; or
(g) Any representation or warranty made by the Borrower contained in the
Merger Agreement or any statement or representation made in any
certificate, report or opinion delivered in connection therewith shall
prove to have been misleading in any material respect when made;
then, upon the happening of any of the foregoing events of default which
shall be continuing, all outstanding Loans shall become and be due and
payable on the date that is ninety days after the declaration to that
effect delivered by the Lender to the Borrower; provided, that on the date
--------
of such declaration the Merger Agreement shall have been terminated;
provided further, that with respect to an Event of Default resulting from a
----------------
violation of Section 5.02(c) or upon the happening of any event specified
in Section 6.01(d), all outstanding Loans shall be immediately due and
payable without declaration or other notice to the Borrower. The Borrower
expressly waives any presentment, demand, protest or other notice of any
kind.
ARTICLE VII
PLEDGE AND SECURITY INTEREST
SECTION 7.01. Security Interest.
(a) As security for the performance in full of the obligations of the
Borrower and the Pledgors specified in or contemplated by this
Agreement, each of the Pledgors hereby deliver, pledge and assign to
the Lender, and creates in favor of the Lender, a first priority
security interest in all of right, title and interest in and to:
(A) all shares of common stock, no par value, of the Borrower
("Common Stock") held by such Pledgor ( "Pledged Shares"); and
------------ --------------
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(B) all rights and privileges of such Pledgor with respect to the
Pledged Shares, now or hereafter acquired, all proceeds, income
and profits thereof and all property received in addition
thereto, in exchange thereof or in substitution therefor.
(b) As security for the performance in full of the obligations of the
Borrower and the Pledgors specified or contemplated by this Agreement,
the Registrant hereby delivers, pledges and assigns to the Lender, and
creates in favor of the Lender, a first priority security interest in,
all of his right, title and interest, now and hereafter acquired, in
and to the Domain Name.
All such property enumerated in (a) through (b), together with the
assignments separate from certificate executed by the respective Pledgors
in connection with (a), are hereinafter collectively referred to as the
"Pledged Collateral". For the avoidance of doubt, each of the Pledgors
------------------
hereby acknowledges and agrees that the Pledged Collateral shall be applied
jointly and in its entirety as security for the performance in full of the
obligations of the Borrower and the Pledgors specified in or contemplated
by this Agreement.
SECTION 7.02. Distribution, Options, or Other Adjustments. So long as the
Borrower may borrow hereunder and until payment in full of all outstanding Loans
and performance of all other obligations of the Borrower hereunder, the Lender
shall receive, as Pledged Collateral, any and all additional property of any
kind distributable on or by reason of any Pledged Collateral, whether in the
form of or by way of distributions, issuances, warrants, partial liquidation,
conversion, prepayments or redemptions (in whole or in part), liquidation, or
otherwise. If any additional interests, instruments or other property (intended
hereunder to be part of the Pledged Collateral) against which a security
interest can be perfected only by possession by the Lender, which are
distributable on or by reason of the Pledged Collateral, shall come into the
possession or control of any of the Pledgors, such Pledgor shall hold or control
the same and forthwith transfer and deliver the same to the Lender subject to
the provisions hereof.
SECTION 7.03. Certificates. Each of the Pledgors represents and warrants
that a certificate or certificates (the "Certificates") has (have) been issued
------------
to such Pledgor evidencing its equity interest in the Borrower and that such
Pledgor has, on the date hereof, delivered the certificate(s) representing the
Pledged Collateral to the Lender together with transfer powers duly executed in
blank. If at any time the Lender notifies such Pledgor that it requires
additional transfer powers with respect to the Pledged Collateral endorsed in
blank, such Pledgor shall promptly execute in blank and deliver such transfer
powers to the Lender.
SECTION 7.04. Domain Name. The Registrant hereby represents and warrants
that he has executed and delivered to the Lender two assignments, one with the
Borrower as the assignee (the "Borrower Assignment") and the other with the
-------------------
Lender as the assignee (the
-13-
"Lender Assignment"), executed in blank relating to the assignment and transfer
-----------------
of all of his right, title and interest as the Registrant of the Domain Name to
the Lender. If at any time the Lender notifies the Registrant that it requires
additional instruments of transfer with respect to the Domain Name to be
executed, the Registrant shall promptly execute and deliver such additional
instruments of transfer.
SECTION 7.05. Power of Attorney . Each of the Pledgors hereby irrevocably
appoints the Lender (or its designee), with full power of substitution by the
Lender (or its designee), as such Pledgor's true and lawful attorney-in-fact for
the purpose of carrying out the provisions of this Article VII and taking any
action and executing any instrument which the Lender in good ▇▇▇▇▇ ▇▇▇▇▇
necessary or advisable to accomplish the purposes of this Article VII. The power
of attorney granted pursuant to this Article VII and all authority hereby
conferred are granted and conferred solely to protect the interest of the Lender
in the Pledged Collateral and shall not impose any duty upon the Lender to
exercise any power. This power of attorney shall be unconditional and
irrevocable and one coupled with an interest and will continue until all
outstanding Loans are paid in full.
SECTION 7.06. Inducing Representations of the Pledgors . Each of the
Pledgors represents and warrants to the Lender that:
(a) Such Pledgor is the sole legal, equitable and beneficial owner of, and
has good and valid title to, the Pledged Collateral, free and clear of
all pledges, liens, security interests and other encumbrances and
restrictions on the transfer and assignment thereof, other than the
security interest created by this Agreement, and such Pledgor has the
unqualified right and authority to execute this Agreement and to
pledge the Pledged Collateral to the Lender as provided for herein;
and except as set forth in the Common Stock Purchase Agreement, dated
August 24, 1999, between the Borrower and such Pledgor and the Voting,
Consent and Waiver Agreement, dated as of September 13, 2000, by and
among the Lender, the Borrower and other parties specified therein, no
portion of the Pledged Collateral is subject to any organizational or
contractual restriction governing its issuance, transfer, ownership or
control;
(b) there are no outstanding purchase or sale options, warrants or other
similar agreements with any Persons with respect to any portion of the
Pledged Collateral;
(c) the Pledged Shares have been duly authorized and validly issued and
are fully paid for and non-assessable;
-14-
(d) any consent, approval or authorization of, or designation or filing
with, any governmental or other authority on the part of such Pledgor
which is required in connection with the pledge and security interest
granted under this Agreement has been obtained or effected;
(e) the execution and delivery of this Agreement by such Pledgor, and the
performance by such Pledgor of its obligations hereunder and the
realization by the Lender upon any or all of the pledge and security
interests granted hereunder, will not result in a violation of any
mortgage, indenture, contract, instrument, judgment, decree or order
to which such Pledgor or any of its assets is subject; and
(f) this Agreement constitutes the valid and legally binding obligation of
such Pledgor enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights
and to general equity principles.
SECTION 7.07. Obligations of the Pledgors . Each of the Pledgors further
represents, warrants and covenants to the Lender that:
(a) without in each case the consent of the Lender,
(A) except as expressly permitted under this Article VII, such
Pledgor will not sell, transfer or convey any interest in, or
suffer or permit any lien or encumbrance to be created upon or
with respect to, any of the Pledged Collateral (other than as
created under this Article VII) until the termination of this
Article VII; any such transfer shall be subject to this Article
VII, and the transferee shall assume the obligations of such
Pledgor with respect to such Pledged Collateral;
(B) such Pledgor will not consent to any change in the constituent
documents of the Borrower, and will not permit, or fail to
exercise any of its rights as an equity holder, if any, to
prevent, any action that would cause the dissolution or
liquidation, or sale of all or substantially all of the assets of
the Borrower;
(b) such Pledgor will, at its own expense, defend the Pledged Collateral
against any and all claims and demands of all persons at any time
claiming the same or any interest therein; and
-15-
(c) such Pledgor will, at its own expense, at any time and from time to
time at the Lender's request, do, make, procure, execute and deliver
all acts, things, writings, assurances and other documents as may be
proposed by the Lender to preserve, establish or enforce the rights,
interests and remedies created by or provided in this Article VII in
favor of the Lender.
SECTION 7.08. Rights of the Pledgors . So long as no Event of Default has
been declared pursuant to this Agreement, and so long as the Lender has not
foreclosed or otherwise acquired ownership of the Pledged Collateral, the
Pledgors shall be entitled to vote or consent or take any other action with
respect to the Pledged Shares in any manner not inconsistent with this
Agreement. Each of the Pledgors hereby grants to the Lender an unconditional and
irrevocable proxy to vote or consent with respect to the Pledged Shares, which
proxy shall be effective immediately upon the declaration of a Event of Default.
Each of the Pledgors and the Lender hereby acknowledge that the proxy provided
for herein is a proxy coupled with an interest and will continue until all
outstanding Loans are paid in full. Upon request of the Lender, each of the
Pledgors agrees to deliver to the Lender such further evidence of such proxy to
vote the Pledged Shares as the Lender may reasonably request.
SECTION 7.09. Rights of the Lender . Subject to the Pledgors' right to
contest, if any, as set forth herein, at any time, the Lender may discharge any
taxes, liens, security interests or other encumbrances levied or placed on the
Pledged Collateral, and the amount of such payments, plus any and all fees,
costs and expenses of the Lender (including reasonable attorneys' fees and
disbursements) in connection therewith, shall immediately be due and payable
from each of the Pledgors to the Lender upon demand therefor, and the amount of
such payments shall bear interest at the Default Rate from the date upon which
each such payment was made by the Lender in respect thereof if not paid upon
demand. Except as may be expressly provided for herein, nothing contained herein
shall operate or be construed to impose any obligation upon the Lender with
respect to any portion of the Pledged Collateral.
SECTION 7.10. Remedies . Upon any outstanding Loan becoming due and payable
pursuant to Section 6.01 hereof, then:
(a) In addition to all the rights and remedies of a secured party under
applicable law, the Lender shall have the right at any time prior to
all outstanding Loans being paid in full, and without demand of
performance or other demand, advertisement or notice of any kind,
except as specified below, to or upon the Pledgors or any other person
(all and each of which demands, advertisements and/or notices are
hereby expressly waived to the extent permitted by law), to proceed
forthwith to collect, receive, appropriate and realize upon the
Pledged Collateral, or any part thereof, and to proceed forthwith to
exercise all voting and consensual powers pertaining to the Pledged
Collateral, or any part thereof, in such manner as
-16-
the Lender may elect (it being understood, however, that in
the event the Lender exercises its rights under the Lender
Assignment, the Lender shall return to the Registrant the
Borrower Assignment) and, in a commercially reasonable
manner, to sell, assign, give an option or options to
purchase, contract to sell, or otherwise dispose of and
deliver the Pledged Collateral or any part thereof in one or
more parcels or lots at public or private sale or sales at
any stock exchange, broker's board or at any of the Lender's
offices or elsewhere at such prices and on such terms
(including a requirement that any purchaser of all or any
part of the Pledged Collateral shall be required to purchase
any securities constituting the Pledged Collateral solely
for investment and without any intention to make a distri
bution thereof) as the Lender in its sole and absolute
discretion deems commercially reasonable, without any
liability for any loss due to decrease in the market value
of the Pledged Collateral during the period held. If any
notification of intended disposition of the Pledged
Collateral is required by law, such notification shall be
deemed reasonable and properly given if mailed, postage
prepaid, at least seven Business Days before any such
disposition to each of the Pledgors at their respective
addresses set forth herein. Any disposition of the Pledged
Collateral or any part thereof may be for cash or on credit
or for future delivery without assumption of any credit
risk, with the right of the Lender to purchase all or any
part of the Pledged Collateral so sold at any such sale or
sales, public or private, free of any equity or right of
redemption in favor of each of the Pledgors, which right or
equity is, to the extent permitted by applicable law, hereby
expressly waived or released by each of the Pledgors.
(b) The Lender may elect to obtain (at the reasonable expense of
the Borrower) the advice of any nationally-known investment
banking firm that is a member firm of the New York Stock
Exchange, with respect to the method and manner of sale or
other disposition of any of the Pledged Collateral, the best
price reasonably obtainable therefor, the consideration of
cash and/or credit terms, or any other details concerning
such sale or disposition. The Lender, in its sole
discretion, may elect to sell on such credit terms as it
deems reasonable.
(c) Each of the Borrower and the Pledgors recognizes that the
Lender may be unable to effect a public sale of all or a
part of the Pledged Collateral by reason of certain
prohibitions contained in the Securities Act of 1933, as
amended, as well as applicable Blue Sky or other state
securities laws, but may be compelled to resort to one or
more private sales to a restricted group of purchasers who
will be obliged to agree, among other things, to acquire the
Pledged Collateral or portions thereof for their own
account,
-17-
for investment and not with a view for the distribution or
resale thereof. Each of the Borrower and the Pledgors agrees
that private sales so made may be at prices and on other
terms less favorable to the seller than if the Pledged
Collateral were sold at public sale, and that the Lender has
no obligation to delay the sale of any Pledged Collateral
for the period of time necessary to permit the registration
of the Pledged Collateral or any portion thereof for public
sale under the Securities Act of 1933, as amended. Each of
the Borrower and the Pledgors agrees that the Lender has no
obligation to obtain the maximum possible price for the
Pledged Collateral (other than to conduct a sale in such
manner as the Lender deems commercially reasonable) and that
a private sale or sales made under the foregoing
circumstances shall not be deemed to have been made in a
commercially unreasonable manner solely by virtue of having
been a private placement.
(d) If any consent, approval or authorization of any state,
municipal or other governmental department, agency or
authority (except for registration of the Pledged Collateral
under the Securities Act of 1933, as amended) should be
necessary to effectuate any sale or other disposition of the
Pledged Collateral, or any partial disposition of the
Pledged Collateral, each of the Pledgors will execute all
such applications and other instruments as may be required
in connection with securing any such consent, approval or
authorization, and will otherwise use all commercially
reasonable efforts to secure the same. Each of the Pledgors
further agrees to use all commercially reasonable efforts to
secure such sale or other disposition of the Pledged
Collateral as the Lender may deem necessary pursuant to the
terms of this Agreement.
(e) Upon any sale or other disposition, the Lender shall have
the right to deliver, assign and transfer to the purchaser
thereof the Pledged Collateral so sold or disposed of. Each
purchaser at any such sale or other disposition (including
the Lender) shall hold the Pledged Collateral free from any
claim or right of whatever kind, including any equity or
right of redemption of Pledgor. Each of the Pledgors
specifically waives, to the extent permitted by applicable
law, all rights of redemption, stay or appraisal which it
had or may have under any rule of law or statute now
existing or hereafter adopted.
(f) The Lender shall not be obligated to make any sale or other
disposition, unless the terms thereof shall be satisfactory
to it. The Lender may, without notice or publication,
adjourn any private or public sale, and, upon five Business
Days' prior notice to each of the Pledgors, hold such sale
at
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any time or place to which the same may be so adjourned. In
case of any sale of all or any part of the Pledged
Collateral on credit or future delivery, the Pledged
Collateral so sold may be retained by the Lender until the
selling price is paid by the purchaser thereof, but the
Lender shall incur no liability in case of the failure of
such purchaser to take up and pay for the property so sold
and, in case of any such failure, such property may again be
sold as herein provided.
(g) The Lender may, subject to applicable law, cause the Pledged
Collateral to be transferred to its name or to the name of
its nominee or nominees and thereafter exercise as to such
Pledged Collateral all of the rights, powers and remedies of
an owner.
(h) The Lender may enter into any extension, subordination,
reorganization, deposit, merger, or consolidation agreement
or any other agreement relating to or affecting the Pledged
Collateral, and in connection therewith deposit or surrender
control of such Pledged Collateral thereunder, and accept
other property in exchange therefor and hold and apply such
property or money so received in accordance with the
provisions hereof.
(i) The Lender may at any time and without notice, collect by
legal proceedings or otherwise all payments, including
distributions, interest, principal payments and capital
distributions, now or hereafter payable on account of such
Pledged Collateral, and hold the same as part of the Pledged
Collateral.
(j) All of the rights and remedies of the Lender hereunder shall
be cumulative and not exclusive and shall be enforceable
alternatively, successively or concurrently as the Lender
may deem expedient.
(k) Each of the Pledgors acknowledges that there is no adequate
remedy at law for failure by it to comply with the
provisions of this Section 7.10 and that such failure would
not be adequately compensable in damages, and therefore
agrees that its agreements contained in this Section 7.10
may be specifically enforced.
SECTION 7.11. Disposition of Proceeds. The proceeds of any
sale or disposition of all or any part of the Pledged Collateral shall be
applied by the Lender in the following order: first, to the payment in full of
the costs and expenses of such sale or sales, collections, and the protection,
declaration and enforcement of any security interest granted hereunder,
including the reasonable compensation of the Lender's agents and attorneys; and
second to the satisfaction of the obligations secured hereby.
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SECTION 7.12. Termination of Security Interests. This Article
VII and the security interest granted hereby shall terminate upon: (i) the
repayment in full by the Borrower of all principal and accrued interest on all
outstanding Loans; or (ii) all conditions to the consummation of the Merger as
provided in the Merger Agreement having been satisfied or waived. Upon the
termination of this Article VII, the Lender shall deliver to the Pledgors the
Pledged Collateral and return to the Registrant: (x) in the event of termination
pursuant to subclause (i) above, the Borrower Assignment and the Lender
Assignment; and (y) in the event of termination pursuant to subclause (ii)
above, the Lender Assignment.
SECTION 7.13. Non-Recourse. Except in the event of (i) actual
fraud committed by a Pledgor or (ii) gross negligence or recklessness on the
part of a Pledgor, the rights of the Lender pursuant to this Article VII upon a
declaration of an Event of Default shall constitute the Lender's sole remedy
against the Pledgors for such declaration of an Event of Default, and the
Pledgors shall have no other liability or damages to the Lender resulting from
such declaration of an Event of Default. Nothing in this Article VII shall be
construe to give the Pledgors any personal liability for payments due by the
Borrower under this Agreement, and the liability of the Pledgors for such
payments shall be limited to the extent of the Pledgors' respective right, title
and interest in, to and under the Pledged Collateral.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Illegality. If it shall become unlawful for the
Lender to continue to maintain any Loan or to make any Loan hereunder, then upon
receipt of notice to such effect by the Borrower from the Lender, the Lender's
obligation to make the Loan hereunder shall be suspended and the Borrower shall
repay all outstanding Loans, unpaid interest and any other moneys owing under
this Agreement in full within 45 days following the delivery of notice by the
Lender to the Borrower.
SECTION 8.02. Notices. All notices, requests and other
communications to the Lender or to the Borrower hereunder shall be in writing
(including facsimile or similar writing and overnight express mail or courier
delivery, but excluding ordinary mail delivery) and shall be given to the
addresses stated below.
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If to the Borrower: ChinaRen, Inc.
▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇ ▇▇▇ Road
Beijing 100045
People's Republic of China
Attention: ▇▇▇▇▇▇ ▇▇▇▇, President
Facsimile: (▇▇-▇▇) ▇▇▇▇-▇▇▇▇
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
East Wing Office, Level 4
China World Trade Center
▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇▇ of China
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇-▇▇) ▇▇▇▇-▇▇▇▇
If to the Lender: ▇▇▇▇.▇▇▇ Inc.
▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇▇ of China
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chief Financial
Officer
Facsimile: (▇▇-▇▇) ▇▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇▇-▇▇▇▇
If to the Pledgors: ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
c/o ChinaRen, Inc.
▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-▇▇-
▇▇ ▇▇▇ ▇▇ ▇▇▇ Road
Beijing 100045
People's Republic of China
Facsimile: (▇▇-▇▇) ▇▇▇▇-▇▇▇▇
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
East Wing Office, Level 4
China World Trade Center
▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇▇ of China
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇-▇▇) ▇▇▇▇-▇▇▇▇
or to such other address or facsimile number as either party may hereafter
specify for the purpose by notice to the other party in the manner provided in
this Section 8.02. All such notices, requests and other communications shall be
deemed received (a) if given by facsimile transmission, when transmitted to the
facsimile number specified in this Section 8.02 and confirmation of receipt is
received and (b) if given by overnight express mail or courier delivery or any
other means permitted by this Section 8.02, when received; provided, that if the
date of receipt hereunder is not a business day in the place of receipt, the
notice, request or communication shall be deemed not to have been received until
the next succeeding business day in the place of receipt.
SECTION 8.03. Foreign Exchange Restrictions. All amounts
payable by the Borrower hereunder shall be paid in United States dollars. If, as
a result of foreign exchange restrictions in the People's Republic of China, it
becomes illegal for the Borrower to make any payment referred to in this
Agreement to the Lender in United States dollars, then the Borrower shall make
such payment in any other currency which is still permitted for such purposes.
The Lender, in its absolute discretion, may stipulate payment in any of these
permitted currencies. The amount of the payment in such circumstances shall be
the amount which is sufficient when fully converted in any foreign currency
market in New York or any other place in the world chosen by the Lender in its
absolute discretion to purchase the required amount in United States dollars,
free and clear of all costs, expenses and commissions.
SECTION 8.04. Miscellaneous; Expenses; Indemnification. The
provisions of this Agreement may not be waived, modified or amended except by an
instrument in writing signed by the party to be charged with such waiver,
modification or amendment and, if such party to be charged is the Lender, with
the approval of the board of directors of the Lender. No failure or delay on the
part of the Lender in exercising any of its powers or rights hereunder, nor
-22-
partial or single exercise thereof, shall constitute a waiver thereof or shall
preclude any other future exercise of any other power or right. The Borrower
shall pay all stamp, documentary or other taxes and reasonable out-of-pocket
expenses and internal charges of the Lender (including reasonable fees and
disbursements of counsel and time charges of attorneys who may be employees of
the Lender) in connection with any payment made hereunder and in connection with
the preparation of this Agreement and in connection with any Event of Default
and collection or other enforcement proceedings resulting therefrom. The
Borrower agrees to indemnify the Lender and hold the Lender harmless from and
against any and all liabilities, losses, damages, costs and expenses of any kind
(including, without limitation, the actual fees and disbursements of counsel for
the Lender in connection with any investigative, administrative or judicial
proceeding, whether or not the Lender shall be designated as a party thereto)
which may be incurred by the Lender relating to or arising out of this Agreement
or the use of the proceeds of the Loans.
SECTION 8.05. Successors and Assigns. This Agreement shall be
binding upon the parties hereto and their respective successors and assigns.
Neither party may assign or otherwise transfer its or his rights or obligations
under this Agreement without the prior written consent of the other party.
SECTION 8.06. Governing Law and Arbitration. THIS AGREEMENT SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
(a) Any dispute, controversy or claim arising out of or relating
to this Agreement shall be settled by arbitration
administered by the International Chamber of Commerce in
accordance with its International Arbitration Rules. The
arbitration shall be the sole and exclusive forum for
resolution of such dispute, controversy or claim, and the
award rendered shall be final and binding. Judgement on the
award rendered may be entered in any court having
jurisdiction thereof.
(b) The number of arbitrators shall be three, one of whom shall
be appointed by the party asserting a claim against the
other party or parties, one of whom shall be appointed by
the party or parties (acting together), as the case may be,
against whom a claim has been asserted, and the third of
whom shall be selected by mutual agreement, if possible,
within thirty days of the selection of the second arbitrator
and thereafter by the administering authority.
(c) The language of the arbitration shall be conducted in the
English language and any foreign-language documents
presented at such arbitration shall be accompanied by an
English translation thereof. The arbitration shall be held
in Hong Kong.
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(d) Any award of the arbitrators (i) shall be in writing, (ii)
shall state the reasons upon which such award is based and
(iii) may include an award of costs, including reasonable
attorneys' fees and disbursements.
(e) The arbitrators shall have no authority to award punitive
damages or any other damages not measured by the prevailing
party's actual damages, and may not, in any event, make any
ruling, finding or award that does not conform to the terms
and conditions of this Agreement.
(f) Any party may make an application to the arbitrators seeking
injunctive relief to maintain the status quo until such time
as the arbitration award is rendered or the dispute,
controversy or claim is otherwise resolved. Any party may
apply to any court having jurisdiction thereof and seek
injunctive relief in order to maintain the status quo until
such time as the arbitration award is rendered or the
dispute, controversy or claim is otherwise resolved.
SECTION 8.07. Headings. Headings are for ease of reference
only and shall not form a part of this Agreement.
SECTION 8.08. Entire Agreement. This Agreement, including
any appendices hereto, constitutes the entire agreement among the parties hereto
with respect to the subject matter hereof, and supersedes all other prior
agreements or undertakings with respect to the subject matter hereof, both
written and oral.
SECTION 8.09. Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be deemed an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
SECTION 8.10. Waiver of Sovereign Immunity. To the extent
that the Borrower has or hereafter may acquire any immunity from jurisdiction of
any court or from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid or execution or otherwise) with
respect to himself or his property, the Borrower hereby irrevocably waives such
immunity in respect of his obligations under this Agreement to the extent
permitted by applicable law and, without limiting the generality of the
foregoing, agrees that the waivers set forth in this Section 8.10 shall have the
effect to the fullest extent permitted under the Foreign Sovereign Immunities
Act of 1976 of the United States of America and are intended to be irrevocable
for the purposes of such Act.
SECTION 8.11. Use of English Language. This Agreement has
been executed and delivered in the English language. Any translation of this
Agreement into another language
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shall have no interpretive effect. All documents or notices to be delivered
pursuant to or in connection with this Agreement shall be in the English
language or, if any such document or notice is not in the English language,
accompanied by an English translation thereof, and the English language version
of any such document or notice shall control for purposes hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first written above.
CHINAREN, INC., as Borrower
By
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Name:
Title:
▇▇▇▇.▇▇▇ INC., as Lender
By
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Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇, as Pledgor
---------------------------------
▇▇▇▇ ▇▇▇▇, as Pledgor
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇, as Pledgor
---------------------------------