Loan Agreement - Ctrip.com (Hong Kong) Ltd.
TRANSLATION
Loan Agreement
This Loan Agreement (hereinafter referred to as this "Agreement") is
hereby executed by and among the parties below on September 10, 2003 in
Shanghai:
(1) Party A: Ctrip.com (Hong Kong) Limited
Address: Unit 2001, The Centrium, 60 Wyndham Street, Central,
Hong Kong.
(2) Party B:
Chinese identification card No.:________________
Home address: Rm. ___, No. ___, Xuhui District, Shanghai
(3) Party C:
Chinese identification card No.:
Home address: Rm. ___, No. ___, Hongkou District, Shanghai
(4) Party D:
Home address: Building ___, Block ____, Hongcao Road, Shanghai
Whereas:
1. Party A is a company registered in Hong Kong, China, and Party A
originally proposed to provide a total to RMB2 million loan to Party B,
Party C and Party D, to be used as capital contributions of Party B,
Party C and Party D to Ctrip Computer Technology (Shanghai) Limited
(hereinafter referred to as "Ctrip Commerce"). Due to foreign currency
remittance restrictions in China, the parties then decided to have
Party A issue the aforementioned loan in the form of a consulting fee.
On May 31, 2000, the parties executed the "Consulting Agreement"
(hereinafter referred to as the "Consulting Agreement"), and on May 31,
2000, Party A paid US$240,963.00 to Party B, Party C and Party D in the
form of a consulting fee (equivalent to RMB2 million), and the parties
understood that said consulting fee was essentially a loan from Party A
to Party B, Party C and Party D.
2. Now Parties A, B, C and D mutually acknowledge that the aforementioned
Consulting Agreement shall be invalid as of the date of its execution
and shall not be binding on the parties. The payment of RMB2 million
from Party A to Party B, Party C and Party D on May 31, 2000 was a loan
to Party B, Party C and Party D. Of this, Party A loaned RMB700,000 to
Party B, Party A loaned RMB650,000 to Party C, and Party A loaned
RMB650,000 to Party D.
3. In July 2000, Party B, Party C and Party D used the entire sum of the
aforementioned RMB2 million to set up Ctrip Commerce. Party B holds 35%
of the outstanding shares in Ctrip Commerce, Party C holds 32.5% of the
outstanding shares in Ctrip Commerce and Party D holds 32.5% of the
outstanding shares in Ctrip Commerce.
4. In March 2001, Party D transferred 16% of the shares held thereby in
Ctrip Commerce to Party B. Upon completion of said share transfer,
Party B held 51%
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EXHIBIT 10.8
TRANSLATION
of the outstanding shares in Ctrip Commerce, and Party C held 49% of
the outstanding shares in Ctrip Commerce. Concurrent with the share
transfer, as consideration for the share transfer, the RMB650,000 loan
from Party A to Party D was also taken over by Party B and Party C,
respectively, and of this, Party B took over RMB320,000 and Party C
took over RMB330,000.
5. Parties A, B, C and D mutually acknowledge that Party A lent a total of
RMB1.02 million to Party B, to be used as Party B's capital
contribution toward 51% of the equity interest in Ctrip Commerce. Party
A lent a total of RMB980,000 to Party C, to be used as Party C's
capital contribution toward 49% of the equity interest in Ctrip
Commerce. To further clarify the relationship of rights and obligations
with respect to the loan from Party A to Party B and Party C, the
parties desired to execute this Loan Agreement, and use this Loan
Agreement to replace all prior written or oral promises or agreements
among the parties regarding the aforementioned RMB1.02 million loan
from Party A to Party B (the relationship of loan rights and
obligations between Party A and Party C shall be covenanted by the
separately executed loan agreement as of the even date herewith ("Party
C's Loan Agreement").
Now therefore, through mutual promise and agreement, the parties have reached
the following agreement for their mutual compliance:
1. Loan
1.1 In accordance with the provisions of the terms and conditions of this
Agreement, Party A agrees to provide an RMB 1.02 million loan to Party
B. The term of the loan shall be ten years from the date of execution
of this Agreement, which may be extended upon consent of the parties.
During the term of the loan or the extended term of the loan, Party B
shall accelerate repayment of the loan as soon as one of the following
circumstances occurs:
(1) Party B's death, lack of capacity for civil conduct or limitation of
capacity for civil conduct;
(2) Party B no longer serves as director of Party A or Party A's affiliate;
(3) Party B engages in criminal conduct or is involved in criminal
activities;
(4) Any other party files a claim against Party B that exceeds RMB500,000;
and
(5) According to applicable Chinese laws, competent authorities begin to
approve large numbers of transactions associated with value added
Internet telecommunications services that foreign businesses are
permitted to invest in, and Party A exercises the exclusive option
under the Exclusive Option Agreement described in Section 1.6 of this
Agreement.
1.2 The parties acknowledge that Party A has issued and that Party B has
received the entire aforementioned loan.
1.3 Party B agrees to accept the aforementioned loan provided by Party A,
and hereby agrees and warranties to use the loan solely to provide
funds capital for Ctrip Commerce, so as to develop Ctrip Commerce's
business. Unless Party A's prior written consent is obtained, Party B
shall not use the aforementioned loan for any
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EXHIBIT 10.8
TRANSLATION
other purpose, nor can Party B transfer or mortgage the shares or other
interest he holds in Ctrip Commerce to any third party.
1.4 Party A and Party B hereby jointly agree and acknowledge that Party B's
method of repayment can only take the following form: Party B transfers
in whole the shares held by him in Ctrip Commerce to Party A or Party
A's designated person (legal or natural person).
1.5 Party A and Party B hereby jointly agree and acknowledge that any gains
obtained by Party B through the transfer of the shares it holds in
Ctrip Commerce shall be used to repay the loan to Party A in accordance
with this Agreement, and paid to Party A in its entirety in the manner
designated by Party A and this Agreement shall be concurrently
terminated.
1.6 Party A and Party B hereby jointly agree and acknowledge that to the
extent permitted by applicable laws, Party A shall have the right but
not the obligation to purchase or designate other persons (legal or
natural persons) to purchase Party B's shares in Ctrip Commerce in part
or in whole at any time, at a price agreed to by the parties. Party A
and Party B shall execute an "Exclusive Option Agreement" (hereinafter
to referred to as the "Exclusive Option Agreement") concurrently with
the execution of this Agreement. According to said Agreement, to the
extent permitted by Chinese laws, Party B shall irrevocably grant to
Party A an exclusive option to purchase all of the shares of Ctrip
Commerce held by Party B.
Party B also warranties to execute an irrevocable power of attorney,
which authorizes a person designated by Party A to exercise all of his
rights as a shareholder in Ctrip Commerce.
1.7 Interests on the Loan. When Party B transfers the shares he holds in
Ctrip Commerce to Party A or Party A's designated person, in the event
that the transfer price of such shares equals or is lower than the
principal of the loan under this Agreement, the loan under this
Agreement shall be deemed an interest-free loan. In the event, however,
that the transfer price of such shares exceeds the principal of the
loan under this Agreement, the excess over the principal shall be
deemed the interest of the loan under this Agreement paid by Party B to
Party A.
2. Representations and Warranties
2.1 Between the date of execution of this Agreement and prior to the
termination of this Agreement, Party A hereby makes the following
representations and warranties to Party B:
(a) Party A is a company set up and legally existing in accordance
with Hong Kong laws;
(b) Party A has the authority to execute and perform this Agreement.
The execution and performance by Party A of this Agreement is
consistent with Party A's scope of business and the provisions of
Party A's corporate bylaws and other organizational documents, and
Party A has obtained all necessary and proper approvals and
authorizations for the execution and performance of this
Agreement;
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EXHIBIT 10.8
TRANSLATION
(c) Party A's execution and performance of this Agreement does not
violate any laws and regulations or government approvals,
authorizations, notices or other government documents that are
binding thereon or that affect Party A, nor does it violate any
agreements that Party A has executed with any third party or any
promises to any third party; and
(d) This Agreement shall constitute Party A's legitimate and valid
obligations as soon as it is executed, and shall be enforceable
against it.
2.2 Between the date of execution of this Agreement and prior to the
termination of this Agreement, Party B hereby makes the following
representations and warranties:
(a) Ctrip Commerce is a limited liability company set up and legally
existing in accordance with Chinese laws, and Party B is a legal
holder of shares in Ctrip Commerce;
(b) Party B has the authority to execute and perform this Agreement.
The execution and performance by Party B of this Agreement is
consistent with Party B's corporate bylaws and other
organizational documents, and Party B has obtained all necessary
and proper approvals and authorizations for the execution and
performance of this Agreement;
(c) Party B's execution and performance of this Agreement does not
violate any laws and regulations or government approvals,
authorizations, notices or other government documents that are
binding upon or affect Party B, nor does it violate any agreements
that Party B has executed with any third party or any promises to
any third party;
(d) This Agreement shall constitute Party B's legitimate and valid
obligations as soon as it is executed, and shall be enforceable
against Party B;
(e) Party B has paid capital contributions in full with respect to
Party B's shares in accordance with law, and has obtained a
capital contribution verification report regarding capital
contributions paid in from a qualified accounting firm;
(f) Except for the provisions of the "Share Pledge Agreement"
(hereinafter referred to as the "Share Pledge Agreement") executed
by and between Party B and Ctrip Computer Technology (Shanghai)
Limited as of the date of execution of this Agreement, Party B has
not placed any mortgage, pledge or any other security measures on
Party B's shares, has not extended any offer to any third party
regarding the transfer of Party B's shares or executed any
agreement with any third party regarding the transfer of Party B's
shares;
(g) There are no disputes, litigation, arbitration, administrative
proceedings or any other legal proceedings relating to Party B and
/ or Party B's shares, nor are there any potential disputes,
litigation, arbitration, administrative proceedings or any other
legal proceedings relating to Party B and / or Party B's shares;
and
(h) Ctrip Commerce has completed all the government approvals,
authorizations, licensing, registration and filling required for
engaging in business within the scope of its business license and
for owning its assets.
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EXHIBIT 10.8
TRANSLATION
3. Party B's Covenants
3.1 As a major shareholder in Ctrip Commerce, Party B promises that during
the term of this Agreement, Party B shall cause Ctrip Commerce:
(a) Without Party A's prior written consent, Ctrip Commerce shall not
supplement, change or amend its corporate bylaws in any manner,
increase or decrease its registered capital or change its share
capital structure in any manner;
(b) Maintain its corporate existence in accordance with good financial
and business standards and practices by prudently and effectively
operating its business and handling its affairs;
(c) Without Party A's prior written consent, Party B shall not sell,
transfer, mortgage or in dispose in other manner its legitimate or
beneficial interest in any of its assets, business or revenue at
any time from the date of execution of this Agreement, or permit
the encumbrance of any other security interest thereon;
(d) Without Party A's prior written consent, Party B shall not incur,
inherit, guarantee or otherwise allow for the existence of any
debt, except for (i) debt incurred in the ordinary course of
business instead of that incurred through any loans; and (ii) debt
already disclosed to Party A for which Party A's written consent
has been obtained;
(e) Always operate all business during the ordinary course of
business, to maintain its asset value;
(f) Without the prior written consent of Party A, Party B shall not
execute any major contract, except for contracts in the ordinary
course of business (for purpose of this subsection, a contract
whose value exceeds RMB50,000 shall be deemed a major contract);
(g) Without the prior written consent of Party A, Party B shall not
provide any person with any loan or credit;
(h) Provide Party A with all of the information on Party B's business
operations and financial condition at Party A's request;
(i) Procure and maintain insurance from an insurance carrier
acceptable to Party A, and the amount and types of coverage
maintained shall be identical to the amount and types of coverage
usually maintained by companies that operate similar business and
hold similar properties or assets in the same area where Party B
is located;
(j) Without the prior written consent of Party A, Party B shall not
merge or be consolidated with any person, or acquire any person or
make investments in any person;
(k) Immediately notify Party A of the occurrence or possible
occurrence of any litigation, arbitration or administrative
proceedings relating to Party B's assets, business and income;
(l) To maintain the ownership by Party B of all of its assets, execute
all necessary or appropriate documents, take all necessary or
appropriate actions and file all necessary or appropriate
complaints or raise necessary and appropriate defense against all
claims;
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EXHIBIT 10.8
TRANSLATION
(m) Without the prior written consent of Party A, Party B shall not in
any manner distribute stock dividends to shareholders, provided
that as soon as Party A makes a request, Party B shall immediately
distribute all distributable profits to the respective
shareholders;
(n) At the request of Party A, appoint any persons designated by Party
A as directors of Ctrip Commerce; and
(o) Strictly abide by the provisions of the Exclusive Option
Agreement, and refrain from any action/omission sufficient to
affect the effectiveness and enforceability of the Exclusive
Option Agreement.
3.2 Party B promises that during the term of this Agreement, he shall
(a) Without the prior written consent of Party A, Party B shall not
sell, transfer, mortgage or dispose of in any other manner the
legal or beneficial interest in shares held by Party B, or allow
the encumbrance thereon of any security interest or permit the
encumbrance of any other security interest thereon, except in
accordance with the Share Pledge Agreement;
(b) Cause the directors of Ctrip Commerce appointed by Party B not to
approve the sale, transfer, mortgage or disposition in any other
manner of any legal or beneficial interest in shares held by Party
B, or allow the encumbrance thereon of any security interest,
except to Party A or Party A's designated person;
(c) Cause the directors of Ctrip Commerce appointed by Party B not to
approve the merger or consolidation of Ctrip Commerce with any
person, or its acquisition of or investment in any person, without
the prior written consent of Party A;
(d) Immediately notify Party A of the occurrence or possible
occurrence of any litigation, arbitration or administrative
proceedings relating to Party B's shares;
(e) To maintain his ownership of his shares in Ctrip Commerce, execute
all necessary or appropriate documents, take all necessary or
appropriate actions and file all necessary or appropriate
complaints or raise necessary and appropriate defense against all
claims;
(f) Without the prior written consent of Party A, Party B shall
refrain from any action / omission that may have a major impact on
the assets, business and liabilities of Ctrip Commerce;
(g) Appoint any designee of Party A as director of Ctrip Commerce, at
the request of Party A;
(h) To the extent permitted by Chinese law, at the request of Party A
at any time, promptly and unconditionally transfer all of the
shares held by Party B in Ctrip Commerce to Party A or Party A's
designated representative at any time, and cause the other
shareholder of Ctrip Commerce to waives his right of first refusal
with respect to the share transfer described in this section;
(i) To the extent permitted by Chinese law, at the request of Party A
at any time, cause the other shareholder of Ctrip Commerce to
promptly and unconditionally transfer all of the shares held by
him to Party A or Party A's designated representative at any time,
and Party B hereby waives his right of first refusal with respect
to the share transfer described in this section;
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EXHIBIT 10.8
TRANSLATION
(j) In the event that Party A purchases Party B's shares from Party B
in accordance with the provisions of the Exclusive Option
Agreement, Party B shall use such purchase price obtained thereby
to repay the loan to Party A first; and
(k) Strictly abide by the provisions of this Agreement, the Share
Pledge Agreement and the Exclusive Option Agreement, effectively
perform his obligations under this Agreement, the Share Pledge
Agreement and the Exclusive Option Agreement, and refrain from any
action / omission sufficient to affect the effectiveness and
enforceability of this Agreement, the Share Pledge Agreement and
the Exclusive Option Agreement.
4. Liability for Default
In the event that Party B fails to perform the repayment obligations by the
deadline set forth in this Agreement, Party B shall pay an overdue interest of
0.01% per day for the outstanding payment, until the day Party B repays all
principal of the loan, overdue interest and other amounts.
5. Notices
Unless there are written notices changing the addresses below, notices under
this Agreement shall be sent to the following addresses via personal delivery,
facsimile or registered mail. If a notice is sent via registered mail, the date
of signature for receipt on return receipt of the registered mail shall be the
date of service; if a notice is sent via personal delivery or facsimile, it
shall be deemed served on the date sent. If a notice is sent via facsimile, the
original document shall be immediately sent to the following addresses via
registered mail or personal delivery after transmission.
To Party A:
Ctrip.com (Hong Kong) Limited
Room 2001, The Centrium, 60 Wyndham Street
Central, Hong Kong
Facsimile: (00852) 21690920
Phone: (00852) 21690911
Attn: Neil Shen
To Party B:
Address: Rm. ____, No. ____, Alley ____, Xuhui District, Shanghai
Facsimile:
Phone:
To Party C:
Address: Rm. ____, No. ____, Alley ____, Shanghai
Facsimile:
Phone:
To Party D:
Address: Building ___, Block ___, Shanghai
Facsimile:
Phone:
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EXHIBIT 10.8
TRANSLATION
6. Duty to maintain confidentiality
The parties acknowledge that any oral or written information exchanged among
them with respect to this Agreement is confidential information. The parties
shall maintain the confidentiality of all such information, and without
obtaining the written consent of other parties, they shall not disclose any
relevant information to any third parties, except in the following
circumstances: (a) such information is or will be in the public domain (provided
that this is not the result of a public disclosure by the receiving party); (b)
information disclosed as required by applicable laws or rules or regulations of
any stock exchange; or (c) information required to be disclosed by any party to
its legal counsel or financial advisor regarding the transaction contemplated
hereunder, and such legal counsel or financial advisor are also required to be
bound by confidentiality duties similar to the duties in this section.
Disclosure of a secret by the staff members or agency hired by any party shall
be deemed disclosure of a secret by such a party, which shall be held liable for
breach of this Agreement. This section shall survive the termination of this
Agreement for any reason.
7. Governing Law and Resolution of Disputes
7.1 The execution, effectiveness, construction, performance and termination
of this Agreement and the resolution of disputes shall be governed by
Chinese laws.
7.2 In the event of any dispute with respect to the construction and
performance of this Agreement, the parties shall first resolve same
through friendly negotiations. Upon failure by the parties to reach an
agreement on the resolution of such a dispute within 30 days after
either party submits a request to the other party to resolve same
through negotiations, any party may submit the relevant dispute to the
China International Economics and Foreign Trade Arbitration Commission
Shanghai Chapter for resolution by arbitration, in accordance with its
arbitration rules effective then. The arbitration shall be performed in
Shanghai, and the language used during arbitration shall be Chinese.
The arbitration ruling shall be final and binding on all parties.
7.3 Upon the occurrence of any disputes arising from the construction and
performance of this Agreement or during the pendancy of arbitration of
any dispute, except for the matters under dispute, the parties to this
Agreement shall continue to exercise their respective rights under this
Agreement and perform their other respective obligations under this
Agreement.
8. Entire Agreement
The parties reaffirm that the Consulting Agreement executed by the parties to
this Agreement on May 31, 2000 is invalid, and shall not be binding on the
parties to this Agreement. The funding relations that occurred among the parties
with respect to the maters described in this Agreement are fully defined in this
Agreement and Party C's Loan Agreement.
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EXHIBIT 10.8
TRANSLATION
Except the written amendments, supplements or changes done after the execution
of this Agreement, this Agreement and Party C's Loan Agreement shall constitute
the entire agreement among the parties to this Agreement with respect to the
construction of this Agreement and the matters set forth in this Agreement, and
shall supercede all prior oral discussions and written contracts reached among
the parties with respect to the aforementioned matters.
9. Miscellaneous
9.1 This Agreement shall take effect upon the date of execution thereof,
and shall expire upon the date of performance by the parties of their
obligations under this Agreement.
9.2 This Agreement shall be in quadruplicate copies, with one copy for each
of the parties. The copies shall have equal legal validity.
9.3 The parties to this Agreement all agree that Party A and Party B shall
have the right to amend and supplement through written agreement any
covenants herein that involve the relationship of rights and
obligations between Party A and Party B. Such amendments and
supplements shall not require the consent of Party C and Party D, not
shall notices be required to be sent to Party C and Party D or
acknowledgement required from Party C and Party D. Party C and Party D
hereby acknowledge their waiver of all rights relating thereto. Such
written amendment agreement and / or supplementary agreement executed
by and between Party A and Party B are an integral part of this
Agreement, and shall have the same legal validity as this Agreement.
9.4 The invalidation of any provisions of this Agreement shall not affect
the legal validity of the remaining provisions of this Agreement.
9.5 The attachments to this Agreement shall be an integral part of this
Agreement and shall have the same legal validity as this Agreement.
Party A: Ctrip.com (Hong Kong) Limited
Authorized representative: ________________
Party B:
Signed: ____________________
Party C:
Signed: ____________________
Party D:
Signed: ____________________