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English Translation Dated March 31, 2007 Thinkplus Investments Limited (as the Lender) AND Airland International Limited Bizexpress Limited (as the Borrower) Loan Agreement Contents
THIS LOAN AGREEMENT (“this Agreement”) is entered into by and between the parties below in Beijing, China as of March 31, 2007: Thinkplus Investments Limited., a corporation incorporated under the laws of the Cayman Islands, whose registered address is Codan Trust Company (Cayman) Limited, Century Yard, Cricket Square, Hutchins Drive, P.O. Box 2681GT, George Town, Grand Cayman, British West Indies, hereinafter referred to as the “Company”; Airland International Limited, a corporation incorporated under the laws of the British Virgin Islands, whose registered address is 2nd floor, Abbott Building Road Town, Tortola, British Virgin Islands, hereinafter referred to as the “Airland”; AND Bizexpress Limited, a corporation incorporated under the laws of the British Virgin Islands, whose registered address is 2nd floor, Abbott Building Road Town, Tortola, British Virgin Islands, hereinafter referred to as the “Bizexpress” Airland and Bizexpress are collectively referred to as the “Borrower”. The Company and the Borrower are collectively referred to as the “Parties” and individually as a “Party”. RECITAL:
THEREFORE, in consideration of the mutual covenants and undertakings contained herein, and subject to the terms and conditions herein, the Parties hereto agree as follows Article 1 Definitions
As used in this Agreement, the following terms shall have the meanings set forth or referenced below:
Other terms may be defined elsewhere in the text of this Agreement and, unless otherwise indicated, shall have such meaning indicated throughout this Agreement.
Headings (including those in brackets at the beginning of paragraphs) are for convenience only and do not affect the interpretation of this Agreement. Article 2 Loan
Subject to Article 3 of this Agreement, the Company hereby undertakes to grant to the Borrower, and the Borrower agrees to borrow from the Company, a loan in an aggregate amount of no more than the USD equivalent to RMB 20,000,000 (the “Loan”), in which the USD equivalent to RMB 14,613,000 shall be granted to Airland and the USD equivalent to RMB 5,387,000 shall be granted to Bizexpress.
The interest of the Loan (the “Interest”) shall accrue on the outstanding balance of the Loan commencing from the Funding Date at an annual rate of 5% calculated on a basis of a year of three hundred sixty five (365) days.
The Borrower shall fully repay the Loan and the accrued interest according to the following arrangement on the First Repayment Date and/or the Second Repayment Date:
On the Second Repayment Date, the Borrower makes the second repayment, i.e. repay all the outstanding balance of the Loan to the Company. Article 3 Security for the Loan
To secure the Loan provided by the Company to the Borrower, the Borrower agrees to pledge all the Tranche A Shares to the Company on the Funding Date as a security for the Loan and upon request by the Company, to sign all documents and take all actions necessary or appropriate to effect such pledge.
The pledge of the Tranche A Shares shall be fully discharged upon full repayment of the Loan and the accrued interest, upon which the Company agrees to sign all documents and take all actions necessary or appropriate to effect the discharge of the pledge. Article 4 Representations and Warranties by the Company The Company represents and warrants to the Borrower that each of the following representations is true and accurate and not misleading in any material respect on the date of this Agreement and will be true and accurate and not misleading in any material respect as at the Funding Date:
It is duly organized, validly existing and in good standing under, and by virtue of, the laws of the place of its incorporation or establishment and has all requisite power and authority to own its properties and assets and to carry on its business as now conducted.
It has the power to execute and perform this Agreement and has obtained all necessary consents and authorizations to enable it to do so.
This Agreement constitutes a valid and binding obligation enforceable against it in accordance with its provisions.
This Agreement does not conflict with or result in a breach of any obligation (including any statutory, contractual or fiduciary obligation) or constitute or result in any default under any provision of its constitution or any material provision of any agreement, deed, writ, order, injunction, judgment, law, rule or regulation to which it is a party or is subject or by which it is bound. Article 5 Representations and Warranties by the Borrower The Borrower represents and warrants to the Company that each of the following representations is true and accurate and not misleading in any material respect on the date of this Agreement and will be true and accurate and not misleading in any material respect as at the Funding Date and the Repayment Date:
It is duly organized, validly existing and in good standing under, and by virtue of, the laws of the place of its incorporation or establishment and has all requisite power and authority to own its properties and assets and to carry on its business as now conducted.
It has the power to execute and perform this Agreement and has obtained all necessary consents and authorizations to enable it to do so.
This Agreement constitutes a valid and binding obligation enforceable against it in accordance with its provisions.
This Agreement does not conflict with or result in a breach of any obligation (including any statutory, contractual or fiduciary obligation) or constitute or result in any default under any provision of its constitution or any material provision of any agreement, deed, writ, order, injunction, judgment, law, rule or regulation to which it is a party or is subject or by which it is bound.
It is not required to obtain any consents or approvals from, or file a record with, any third party or government authority in connection with this Agreement and the Loan contemplated thereby.
It is able to pay its debts as and when they fall due. Article 6 Confidentiality All Confidential Information exchanged between the Parties under this Agreement or during the negotiations preceding this Agreement is confidential to them and may not be disclosed to any person except:
Article 7 Taxes and Expenses
The Company and the Borrower shall pay their own legal and other costs and expenses in connection with the negotiation, preparation, execution and completion of this Agreement and other related documentation. Article 8 Succession and Assignment This Agreement shall bind upon the Parties and their respective successors and assignees. Without the prior written consent of the Company, the Borrower shall not transfer any of its rights or obligations under this Agreement. Article 9 Notices Any notice required to be made or given by either Party pursuant to this Agreement shall be sent by hand delivery, registered mail (postage prepaid) (if mailed to an overseas address, by airmail) or fax to the address or fax number of the other Party as set forth herein or for the propose of notices, such other address or fax number as may be notified by the other Party in writing from time to time (at least 5 business days in advance). Such notice shall be deemed to be served on the recipient: if by hand delivery, at the time of delivery; if by fax, at the time of sending; if by registered mail (postage prepaid), 48 hours (72 hours if being airmailed overseas) after posting. The following contents can fully prove the service of notice: if by hand delivery and registered mail (postage prepaid), address is correct, notice has been appropriately delivered, posted and (as the case may be) and notice has been appropriately received; if by fax transmission, sending fax machine receives an acknowledgement message: If to the Company: Attn.: Sidney X. Huang Address: 3F, No.8 Building, Zhongguancun Software Park, Beijing, China Fax: 86 (10) 8282-5058 If to Airland: Attn.: Zhang Jilun Address: Rm.701, 36#, Lane 100, Tianlin East Road, Shanghai Fax: 86 (10) 5424-8771 If to Bizexperss: Attn.: Shi Rongbin Address: Rm.501, 44#, Lane 345, Guidu Road, Shanghai Fax: 86 (10) 5424-8771 Article 10 Applicable Law and Dispute Resolution
This Agreement shall be governed by and construed by the laws of Hong Kong.
Any dispute or controversy arising from or in connection with this Agreement shall be resolved by the Parties through negotiations. In case no resolution can be reached within thirty (30) days after a Party makes a request for resolution, such Party may refer such dispute to Hong Kong International Arbitration Center for arbitration in accordance with its arbitration rules then in effect. Arbitral award shall be final and binding upon the Parties. Article 11 Effectiveness This Agreement shall go into effect as of the date when it is signed by the duly authorized representatives of the Parties. IN WITNESS WHEREOF, the Parties hereto have caused this Loan Agreement to be executed by their duly authorized representatives as of the date first above written.
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