XcelMobility Inc.: Exhibit 10.4 - Filed by newsfilecorp.com





 

Loan Agreement 

 

By and between 

 

Shareholders of Shenzhen Jifu Communication Technology Co.,
Ltd. 

(“Borrower”) 

 

and 

 

Shenzhen CCPower Investment Consulting Co., Ltd. 

(“Lender”) 

 

 

 

 

[May 7, 2013] 





	Loan Agreement
  


Loan Agreement 

This Loan Agreement (“this Agreement”) is executed by
and among the following Parties on May 7, 2013. 

	(1) 	
      Shareholders of Shenzhen Jifu Communication Technology
      Co., Ltd. (hereinafter as “Borrower”), as
follows:





	Name of the 
Shareholder 	Shareholding 
Ratio
      (%) 	Contribution 
	ID Card No. 

	Sumin Su 	55 	RMB1,650,000 	360104196204090424

	Di Wu 	45 	RMB1,350,000 	440301198703170913
  



and 

	(2) 	
      Shenzhen CCPower Investment Consulting Co., Ltd.
      (hereinafter called the “Lender”), a wholly foreign owned
      enterprise registered in China with its registered address at Room 705,
      Cyber Times Tower B, Tairan Road, Futian district, Shenzhen, China. Its
      legal representative is Renyan GE.



(Borrower and Lender are collectively called “the
Parties” or “each Party” or “a Party” respectively.) 

WHEREAS: 

	(1) 	
      Borrower holds 100% of the Equity Interests in Shenzhen
      Jifu Communication Technology Co., Ltd. (the “Company”);

	(2) 	
      Lender is a wholly foreign owned enterprises incorporated
      in Shenzhen in accordance with the laws of People’s Republic of
    China;

	(3) 	
      Borrower desires to borrow from Lender for the operations
      of the Company by pledging her equity in the Company to Lender as the
      guaranty hereof, and Lender agrees to provide such loan to
  Borrower.



NOW, THEREFORE, The Parties made and entered into this
Agreement with respect to the Loan hereunder through friendly negotiation as
follows: 

1.         
Definitions 
Except provided otherwise, the terms under this Agreement
shall mean: 

	1.1 	
      “Assets Transfer” refers to the assignment of the
      Company’s assets to Lender or its designated third party in accordance
      with the provisions of the exclusive purchase option agreement (the
      “Exclusive Purchase Option Agreement”) executed on the execution
      date of this Agreement;

	1.2 	
      “Company” refers to Shenzhen Jifu Communication
      Technology Co., Ltd., a domestic company which is incorporated and validly
      existing under the PRC Laws, its business license No. is 440301105334393,
      and its registered address is West Side, 4 Floor, 8 Building, Maqueling
      Industrial Zone, Nanshan District, Shenzhen, China;

	1.3 	
      “Equity” or “Equity Interests” refers to
      one hundred percent (100%) of the equity interests in the Company owned by
      Borrower;



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	1.4 	
      “Equity Transfer” refers to the assignment of
      Company’s Equity Interests held by Borrower to Lender or its designated
      third party in accordance with the provisions of the Exclusive Purchase
      Option Agreement;

	1.5 	
      “Loan” refers to the Total Principal loaned to
      Borrower by Lender in accordance with Article 2
hereunder;

	1.6 	
      “PRC” refers to the People’s Republic of China,
      for the purpose of this Agreement, excluding the Hong Kong Special
      Administrative Region, Macao Special Administrative Region and Taiwan
      Province;

	1.7 	
      “PRC Laws” refers to all PRC laws, administrative
      regulations and government rules in effect now or as they may be modified
      throughout the term of this Agreement;

	1.8 	
      “RMB” refers to the legal currency within the
      PRC;

	1.9 	
      “Shareholder” or “Borrower” refers to the
      owner of the Equity Interests in the Company.



2.          The
Total Loan Amount 
The total principal of the Loan hereunder is
[3,000,000] RMB (“Total Principal”). 

	3. 	
      Term of the Loan

		
      Unless otherwise provided, the term of Loan shall
      commence upon the obtaining of the Loan by Borrower and expire when the
      Loan is completely repaid by Borrower in accordance with the provisions of
      Article 6 hereunder or expressly waived in writing by
  Lender.




	4. 	
      Loan Usage

	4.1 	
      The Total Principal of the Loan provided hereunder shall
      be used by Borrower for the operations of the Company, and Borrower shall
      in no event change the usage without the prior written consent by Lender.
      Borrower hereby covenants and agrees to contribute, within two (2) working
      days immediately following the funding of the Loan, the Total Principal of
      the Loan to the bank account of the Company.




	5. 	
      Loan Interest

	5.1 	
      Except as provided in Section 5.2 hereunder, the
      Loan hereunder shall be interest-free.

	5.2 	
      When the Equity Transfer or the Assets Transfer set forth
      in the Article 6 hereof takes place and if the deemed value of the
      consideration of Equity Transfer or consideration of Assets Transfer in
      accordance with Article 6 hereof is higher than the Total Principal
      due to the requirement by the then applicable law or any other reason, the
      excess shall be deemed to be interest on the Loan (the “Interest”)
      to the maximum extent being permitted by the PRC Laws, and shall be repaid
      to Lender by Borrower together with the Total Principal pursuant to the
      consideration of Equity Transfer or consideration of Assets Transfer, as
      the case may be, in accordance with Article 6 hereof. Borrower
      further agrees to handle the balance in excess of the permitted Interest
according to Lender’s instruction. 



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	6. 	
      Repayment

	6.1 	
      The Loan shall become due and payable upon request of
      Lender after the completion of the Equity transfer or the Assets transfer.
      Lender shall be entitled to demand the repayment at any time by the
      delivery of a written notice of demand for repayment sent by Lender to
      Borrower (“Repayment Notice”). The Repayment Notice shall indicate
      Lender’s election for the Loan to be repaid by way of the consideration of
      Equity Transfer or consideration of Assets Transfer in accordance with
      Section 6.3, or by other manner set forth in the Repayment
      Notice.

	6.2 	
      Repayment Notice shall indicate the terms and conditions
      for repayment of the Loan (“Repayment Terms”).

	6.3 	
      Except as provided otherwise by Repayment Notice,
      Borrower shall repay the Loan to Lender in accordance with the following
      provisions:

		6.3.1 	
      In the event of an Equity Transfer under the Exclusive
      Purchase Option Agreement, the Loan shall be repaid in full by way of
      Borrower’ payment to Lender of the consideration of Equity Transfer paid
      by Lender to Borrower, net of any tax paid by the Shareholder on such
      consideration (the “Consideration of Equity Transfer”) (If the
      deemed value of the Consideration of Equity Transfer is higher than the
      Total Principal, the excess shall be deemed to be Interests of the Loan to
      the maximum extent being permitted by PRC Laws. Borrower further agrees to
      handle the balance in excess of the permitted Interest according to
      Lender’s instruction);

		6.3.2 	
      In the event of an Assets Transfer, the Loan shall be
      repaid in full by way of Borrower’ payment to Lender of her allocable
      portion, to the maximum extent as permitted by PRC Laws, of the
      consideration paid by Lender to the Company for the Assets Transfer, net
      of any tax paid by the Company or the Shareholder on such consideration
      (the “Consideration of Assets Transfer”) (If the deemed value of
      the Consideration of Assets Transfer is higher than the Total Principal,
      the excess shall be deemed to be Interest on the Loan to the maximum
      extent being permitted by PRC Laws. Borrower further agrees to handle the
      balance in excess of the permitted Interest according to Lender’s
      instruction);

	6.4 	
      If the deemed value of the Consideration of Equity
      Transfer or Assets Transfer is lower than the Total Principal under this
      Agreement, Borrower shall be exempted from the shortfall repayment
      obligation.




	7. 	
      Conditions for Granting of the Loan

	7.1 	
      Lender shall grant the Loan immediately following the
      receipt of the written evidence which proves that the Parties have
      fulfilled all the following conditions hereof (or subject to any waiver by
      Lender of any conditions as follows):



	 	7.1.1 	
      Lender has obtained all of the required licenses,
      permits, approvals and registrations to open its capital account and current
    bank accounts and has commenced its business;



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	 	7.1.2 	
      Borrower has signed the Equity Pledge Agreement set forth
      in Article 9 hereof; and

	 	7.1.3 	
      The warranties and undertakings made by Borrower in
      Article 8 hereof shall be true, correct and complete in all aspects
      when made, and shall be true, correct and complete in all aspects during
      the term of the Loan.



	7.2 	
      Borrower shall cause the Total Principal amount to be
      transferred directly to the Company’s bank account for the operations of
      the Company.




	8. 	
      Borrower’s Warranties and Undertakings

	8.1 	
      Borrower hereby represents and warrants to Lender that,
      as of the execution date of this Agreement:

		8.1.1 	
      Borrower legally holds one hundred percent (100%) of the
      Equity Interests in the Company and there are no other options, warrants,
      rights, agreements or understandings by which any person has a right or
      claim to acquire from the Company or from Borrower any equity interest in
      the Company;

		8.1.2 	
      Except as otherwise provided in the Equity Pledge
      Agreement and Exclusive Purchase Option Agreement, there is no pledge or
      other forms of encumbrances or claims on the Equity Interests;

		8.1.3 	
      There are no material debts which adversely affect the
      Loan borrowed by Borrower from Lender;

		8.1.4 	
      Borrower has obtained all the necessary written approvals
      and authorizations from every relevant third party, if any, with respect
      to Borrower’ execution and implementation of this Agreement; and

		8.1.5 	
      Execution of this Agreement by Borrower shall not
      constitute any breach of the Article of Associations of the
  Company.



	8.2 	
      Borrower undertakes, and will also cause the Company to
      undertake, the followings:

		8.2.1 	
      Except as otherwise provided in the Equity Pledge
      Agreement and Exclusive Purchase Option Agreement and other agreements
      signed among Borrower, the Company and the Lender, without Lender’s prior
      written consent, Borrower and Company shall not transfer, sell, mortgage
      or otherwise dispose of or encumber any assets or incomes of the
      Company;

		8.2.2 	
      Without Lender’s prior written consent, Borrower shall
      not engage in any business or operation which is in competition with the
      Company, the Company’s owned or controlled subsidiaries and Lender, nor
      shall Borrower invest in or work for any company or entity which is in
      competition with the Company, the Company’s owned or controlled
      subsidiaries, or Lender;

		8.2.3 	
      Without Lender’s prior written consent, Borrower shall
      not take action to supplement or amend the Articles of Association of the
      Company, nor to increase or decrease the registered capital or change the
    shareholding structure of the Company in any manner;



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	 	8.2.4 	
      Without Lender’s prior written consent, Borrower or the
      Company shall not take action to, and shall prevent the Company from
      taking action to approve, cause or allow the dissolution, liquidation or
      change of legal form of the Company or any of its owned and controlled
      subsidiaries;

	 	8.2.5 	
      Without Lender’s prior written consent, the shareholder’s
      meeting of the Company shall not approve, cause or allow any profit
      distribution proposal, nor shall Borrower accept such distributed
      dividends; at Lender’s request, Borrower shall promptly convene the
      shareholder’s meeting of the Company for the purpose of allocating the
      Company’s distributable profits, approve for the profit distribution
      proposal, which has been approved by Lender in writing in advance, and
      accept such distributed dividends;

	 	8.2.6 	
      At Lender’s request, Borrower shall provide Lender with
      all information regarding the Company’s business operation and financial
      condition;

	 	8.2.7 	
      Without Lender’s prior written consent, Borrower shall
      not incur or succeed to any debts or liabilities which may adversely
      affect her Equity Interests;

	 	8.2.8 	
      Borrower shall appoint, and appoint only, the candidates
      nominated by Lender to the board of directors and supervisor office of the
      Company, and shall not replace such candidates without Lender’s written
      consent;

	 	8.2.9 	
      Except as Lender may otherwise consent in writing in
      advance, Borrower shall not cause the Company shareholder’ meeting and the
      board of directors to approve any establishment of new subsidiary, any
      acquisition by, any consolidation with, or any investment in any third
      party;

	 	8.2.10 	
      Borrower shall promptly notify Lender of any pending or
      threatened lawsuit, arbitration or administrative disputes which involve
      the assets, business or incomes of the Company; and make every effort to
      take action to resolve such lawsuit, arbitration or administrative
      disputes for safeguarding the legal rights and interests of the
      Company;

	 	8.2.11 	
      Without Lender’s prior written consent, Borrower shall
      not take action to approve, cause or allow any conduct that could
      materially affect the Company’s assets, business or liabilities;
  and

	 	8.2.12 	
      Borrower shall strictly comply with the provisions of
      this Agreement, and effectively perform its obligations hereunder, and
      shall be prohibited from committing any conduct which may affect the
      validity or enforceability of this Agreement.



9.          Guaranty
of the Loan 
To secure the repayment of the Loan hereunder, Borrower
agrees to pledge all her Equity Interests in the Company to Lender, and all
Parties agree to execute the Equity Pledge Agreement with respect thereto. 

10. Tax and Expense 

	10.1 	
      The Parties shall pay their respective taxes and expenses
      in relation to the execution and performance hereof in accordance with the
      PRC Laws. Borrower may charge her taxes and expenses in relation to the
      execution and performance hereof to the Company, upon Lender’s prior
  approval.



5





	10.2 	
      Lender shall pay the taxes and expenses in accordance
      with Section 6.4 hereof (if
applicable).





	11. 	
      Assignment of Agreement

	11.1 	
      Borrower shall not transfer any or all of her rights and
      obligations under this Agreement to any third party without the prior
      written consent of Lender.

	11.2 	
      The Parties agree that Lender shall be allowed, at its
      own discretion, to transfer any or all of its rights and obligations under
      this Agreement to any third party upon the delivery of a five (5)–day
      written notice to Borrower.




	12. 	
      Liabilities and Indemnities for Breach of this
      Agreement

	12.1 	
      If Borrower fails to use the Loan in compliance with the
      terms and conditions of this Agreement, Lender may require Borrower to
      promptly repay the unduly used part.

	12.2 	
      If Borrower breaches any warranty or undertaking as
      provided in Article 8 or other provisions under this Agreement
      hereof, or the Company breaches any provisions provided in the Technology
      Service Agreement, Consigned Management and Service Agreement or Exclusive
      Purchase Option Agreement or other agreements signed among Borrower, the
      Company and Lender, and fail to redress such breach within fifteen (15)
      days upon receipt of the written notice from Lender, Lender shall be
      entitled to request Borrower to repay the granted Loan
  immediately.

	12.3 	
      If Borrower fails to repay the Loan in compliance with
      the terms and conditions of this Agreement, Borrower should pay a damage
      of 0.03% of the unpaid part of the repayable Loan on each day of delay to
      Lender. If the repayment is delayed for more than fifteen (15) days,
      Lender is entitled to foreclose its equity pledge rights in accordance
      with the Equity Pledge Agreement.




	13. 	
      Effectiveness, Modification and
  Cancellation

	13.1 	
      This Agreement shall take effect on the date of execution
      hereof by the Parties.

	13.2 	
      The modification of or amendment to this Agreement shall
      not be effective without written agreement of the Parties through the
      negotiation.

	13.3 	
      This Agreement shall not be terminated or canceled
      without written agreement through negotiation, provided Lender may, by
      delivering a thirty (30)-day prior notice to Borrower hereto, terminate
      this Agreement.

	13.4 	
      Unless Lender fails to grant the Loan as required
      hereunder after the satisfaction of all conditions as set forth in
      Section 7.1 hereunder by Borrower, Borrower shall not be entitled
      to unilaterally terminate this Agreement.




	14. 	
      Confidentiality

	14.1 	
      The negotiation, execution and articles of this Agreement
      and any information, documents, data and all other materials (herein
      “Confidential Information”) arising out of the implementation of
this Agreement, shall be kept in strict confidential by the Parties. Without the
written approval by the other Parties, neither of the Parties shall disclose to
any third parties any Confidential Information, but the following shall not be
considered to be “Confidential Information”: 



6






	 	(1) 	
      The materials that are known by the general public (but
      not including the materials disclosed by a party receiving the materials
      in breach of this Agreement); or

	 	(2) 	
      The materials required to be disclosed subject to the
      applicable laws or the rules or provisions of any stock
  exchange.




		
      The materials disclosed by each Party to its legal or
      financial consultants relating to the transactions under this Agreement,
      provided the legal or financial consultants shall comply with the
      confidentiality set forth in this Section. The disclosure of the
      confidential materials by staff or employed institution of any Party shall
      be deemed as the disclosure of such materials by such Party, and such
      Party shall bear the liabilities for breaching the contract.

	14.2 	
      This Article shall survive whatever this Agreement is
      invalid, amended, revoked, terminated or unable to implement by any
      reason.




	15. 	
      Force Majeure

	15.1 	
      “Force Majeure” refers that any event that could
      not be foreseen, and could not be avoided and overcome, which includes
      among other things, but without limitation, acts of nature (such as
      earthquake, flood or fire), government acts, strikes or riots;.

	15.2 	
      If an event of Force Majeure occurs, any of the Parties
      who is prevented from performing its obligations under this Agreement by
      an event of Force Majeure shall notify the other Party without delay and
      within fifteen (15) days of the event provide detailed information about
      and notarized documents evidencing the event and take appropriate means to
      minimize or remove the negative effects of Force Majeure on the other
      Party, and shall not assume the liabilities for breaching this Agreement.
      While the Force Majeure is continuing, the Party alleging breach may
      suspend her performance. The Parties shall keep on performing this
      Agreement after the event of Force Majeure
disappears.




	16. 	
      Governing Law and Dispute Resolution

	16.1 	
      The effectiveness, interpretation, implementation and
      dispute-resolution related to this Agreement shall be governed under PRC
      Laws.

	16.2 	
      Any dispute arising out of this Agreement shall be
      resolved by Parties through mutual negotiation. If Parties could not reach
      an agreement within thirty (30) days since the dispute is brought forward,
      any Party may submit the dispute to China International Economic and Trade
      Arbitration Commission in Beijing for arbitration under its applicable
      rules, the language of arbitration proceedings shall be English. The
      arbitration award should be final and binding upon both parties.

	16.3 	
      During the process of dispute-resolution, Parties shall
      continue to perform other terms under this Agreement, except for provision
      of dispute resolution.



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	17. 	
      Miscellaneous

	17.1 	
      The Parties acknowledge that this Agreement constitutes
      the entire agreement of the Parties with respect to the subject matters
      therein and supersedes and replaces all prior or contemporaneous oral or
      written agreements and understandings.

	17.2 	
      This Agreement shall bind and benefit the successor of
      each Party and the transferee permitted hereunder with the same rights and
      obligations as if the original parties hereof.

	17.3 	
      Any notice required to be given or delivered to the
      Parties hereunder shall be in writing and delivered to the address as
      indicated below or such other address or as such party may designate, in
      writing, from time to time. All notices shall be deemed to have been given
      or delivered upon by personal delivery, fax and registered mail. It shall
      be deemed to be delivered upon: (1) registered air mail: five (5) business
      days after deposit in the mail; (2) personal delivery or by fax: two (2)
      business days after transmission. If the notice is delivered by fax, it
      should be confirmed by original through registered air mail or personal
      delivery:



Borrower: 
Sumin Su 
Address: 3D,
Building 2, Manao Ge, Yitian Mingyuan, Futian District; 
Tel: 0755-26710021

Fax: 0755-26710227 

Hongjin Wu 
Address: 18B, Building
No.120, Yitian Chun, Futian District; 
Tel: 0755-26710021 
Fax:
0755-26710227 

Lender:Shenzhen CCPower Investment
Consulting Co., Ltd. 
Contact person: Renyan GE 
Address: Room 705, Cyber
Times Tower B, Tairan Road, Futian district, Shenzhen, China 
Tel:
136-3266-8228 

	17.4 	
      If any provision of this Agreement shall be invalid,
      illegal or unenforceable, the validity, legality and enforceability of the
      remaining portions shall not in any way be affected or impaired thereby.
      In such event, the Parties shall use best efforts to negotiate, in good
      faith, a substitute, valid and enforceable provision or agreement which
      effects the Parties original intention to the largest extent.

	17.5 	
      This Agreement shall be executed in English and Chinese
      language versions, each of which shall have equal validity. However, in
      the event of any inconsistency between the two, the English language
      version shall govern and control.



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	17.6 	
      This Agreement is executed in four (4) copies with each
      of the person signing this Agreement holding one copy. Each of copy shall
      be equally valid and authentic.



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IN WITNESS THEREFORE, the parties hereto have caused
this Agreement to be executed and delivered as of the date first above written.


 

For and on behalf of 

Borrower: 

Shareholders of Shenzhen Jifu Communication Technology Co.,
Ltd. 

Sumin Su:        /s/
Sumin
Su                                                                                 


Di Wu:       
    /s/ Di
Wu                                                                                       


Lender: 

Shenzhen CCPower Investment Consulting Co., Ltd. 

Legal Representative:      
Renyan GE 

 

Signature & Seal: :      
/s/ Renyan
Ge                                                                


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