exv10w29



 






EXHIBIT 10.29




EXECUTION COPY



 





INVESTMENT NUMBER 24052




GUARANTEE AGREEMENT




between




CHINDEX INTERNATIONAL, INC.




and




INTERNATIONAL FINANCE CORPORATION




Dated October 11, 2005



 






 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Article/Section	 	Item	 	Page No.	 
	ARTICLE I
	 	 	 	 	2	 
	 
	 	 	 	 	 	 
	   Definitions and Interpretation	 	 	2	 
	Section 1.01.
	 	Defined Terms	 	 	2	 
	Section 1.02.
	 	Guaranteed Obligations	 	 	5	 
	Section 1.03.
	 	Interpretation	 	 	6	 
	 
	 	 	 	 	 	 
	ARTICLE II
	 	 	 	 	6	 
	 
	 	 	 	 	 	 
	   Guarantee	 	 	6	 
	Section 2.01.
	 	Guarantee	 	 	6	 
	Section 2.02.
	 	Continuing Guarantee	 	 	7	 
	Section 2.03.
	 	No Set-off	 	 	8	 
	Section 2.04.
	 	Taxes	 	 	8	 
	Section 2.05.
	 	Certificate Conclusive	 	 	8	 
	Section 2.06.
	 	Application of Payments	 	 	8	 
	Section 2.07.
	 	Allocation	 	 	9	 
	 
	 	 	 	 	 	 
	ARTICLE III
	 	 	 	 	9	 
	 
	 	 	 	 	 	 
	   Saving Provisions	 	 	9	 
	Section 3.01.
	 	Waiver of Defenses	 	 	9	 
	Section 3.02.
	 	Immediate Recourse	 	 	10	 
	Section 3.03.
	 	Non-Competition	 	 	10	 
	Section 3.04.
	 	Bankruptcy or Liquidation of Borrowers	 	 	10	 
	Section 3.05.
	 	Appropriation of Moneys	 	 	11	 
	Section 3.06.
	 	Reinstatement	 	 	11	 
	Section 3.07.
	 	Additional Security	 	 	11	 
	 
	 	 	 	 	 	 
	ARTICLE IV
	 	 	 	 	12	 
	 
	 	 	 	 	 	 
	   Representations and Warranties	 	 	12	 
	Section 4.01.
	 	Representations and Warranties	 	 	12	 
	Section 4.02.
	 	IFC Reliance	 	 	13	 
	Section 4.03.
	 	Rights and Remedies not Limited	 	 	13	 
	 
	 	 	 	 	 	 
	ARTICLE V
	 	 	 	 	13	 
	 
	 	 	 	 	 	 
	   Covenants	 	 	13	 
	Section 5.01.
	 	Guarantor’s Covenants	 	 	13	 






 









 






	 	 	 	 	 	 	 
	Article/Section	 	Item	 	Page No.	 
	ARTICLE VI
	 	 	 	 	15	 
	 
	 	 	 	 	 	 
	   Miscellaneous
	 	 	 	 	15	 
	Section 6.01.
	 	Notices	 	 	15	 
	Section 6.02.
	 	English Language	 	 	16	 
	Section 6.03.
	 	Expenses	 	 	16	 
	Section 6.04.
	 	Remedies and Waivers	 	 	17	 
	Section 6.05.
	 	Jurisdiction and Enforcement	 	 	17	 
	Section 6.06.
	 	Successors and Assigns	 	 	19	 
	Section 6.07.
	 	Amendment	 	 	19	 
	Section 6.08.
	 	Counterparts	 	 	19	 







 









 








GUARANTEE AGREEMENT




This AGREEMENT is made on October 11, 2005, 




Between





	 	(1)	 	CHINDEX INTERNATIONAL, INC. (“the Guarantor”), a NASDAQ listed company incorporated
in Delaware with its registered address at Chindex International, Inc. c/o National
Registered Agent, 160 Greentree Drive, Suite 101, Dover, DE 11904; and
	 
	 	(2)	 	INTERNATIONAL FINANCE CORPORATION (“IFC”), an international organization established
by Articles of Agreement among its member countries, including the PRC, with its legal
office at 2121 Pennsylvania Avenue, N.W., Washington, D.C. 20433, United States of
America.





Whereas:




     (A) By a loan agreement (the “IFC Loan Agreement”) dated on or around the date of this
Agreement between Beijing United Family Health Center, Shanghai United Family Hospital, Inc.
(collectively, the “Borrowers”) and IFC, IFC has agreed to extend to the Borrowers a loan in the
principal amount of sixty-four million eight hundred and eighty thousand Renminbi (RMB64,880,000)
(the “Loan”) on the terms and subject to the conditions set forth in the IFC Loan Agreement.



     (B) The Guarantor has been provided with, and hereby acknowledges receipt of, a copy of the
IFC Loan Agreement.



     (C) It is a condition of the Disbursement under the IFC Loan Agreement that the Guarantor has
guaranteed the obligations of the Borrowers in respect of the Loan on terms and conditions
satisfactory to IFC.



     (D) The Guarantor will obtain benefits as a result of the Loan made to the Borrowers under the
IFC Loan Agreement and, accordingly, desires to execute and deliver this Guarantee Agreement in
order to satisfy the condition described in the preceding paragraph.



     (E) The Guarantor, to induce IFC to make the Loan and, in particular, the first disbursement
of the Loan, has agreed to guarantee such obligations of the Borrowers.



     NOW, THEREFORE, the Guarantor and IFC agree as follows:



 









 





- 2 -




ARTICLE I




Definitions and Interpretation




     Section 1.01. Defined Terms. Unless the context otherwise requires, terms defined in
the IFC Loan Agreement have the same meanings when used in this Agreement and the following term
has the meaning opposite it:



	 	 	 
	“Auditors”

	 	BDO Seidman, LLP or such other
internationally reputable accounting firm that
the Guarantor appoints from time to time as
its auditors;
	 
	 	 
	“Balance Sheet Liabilities”

	 	Liabilities reflected in the balance sheet of
the Guarantor;
	 
	 	 
	“Balance Sheet Liabilities
to Tangible Net Worth
Ratio”

	 	

the result obtained by dividing Balance Sheet Liabilities by Tangible Net Worth. For the
purpose of this calculation, (i) any bid bonds and/or performance bonds related to
fulfilling the requirements of tenders submitted for supply of equipment by the Guarantor
will be deducted from the Balance Sheet Liabilities; and (ii) for any transaction whose
accounting is treated under EITF 00-27 (Application of Issue #98-5 to Certain Convertible
Instruments), requiring a charge to debt and a reduction in equity accounts due to
beneficial conversion provisions, any deduction to equity will be added back to Tangible Net
Worth;
	 
	 	 
	“Financial Year”

	 	the accounting year of the Guarantor commencing each year
on April 1 and ending on the following March 31, or such
other period as the Guarantor, with IFC’s consent, from
time to time designates as its accounting year.
	 
	 	 
	“Financial Debt”

	 	any indebtedness of the Guarantor for or in respect of:







	 	(i)	 	borrowed money;




 









 











- 3 -





	 	(ii)	 	the outstanding
principal amount of any bonds, debentures, notes, loan
stock, commercial paper, acceptance credits, bills or
promissory notes drawn, accepted, endorsed or issued by
the Guarantor;
	 
	 	(iii)	 	the deferred
purchase price of assets or services (except trade
accounts that are payable in the ordinary course of
business within 90 days of the date they are incurred and
which are not overdue);
	 
	 	(iv)	 	non-contingent
obligations of the Guarantor to reimburse any other person
for amounts paid by that person under a letter of credit
or similar instrument (excluding any letter of credit or
similar instrument issued for the benefit of the Guarantor
with respect to trade accounts that are payable in the
ordinary course of business within 90 days of the date of
determination and which are not overdue);
	 
	 	(v)	 	the amount of any
liability in respect of any Financial Lease;
	 
	 	(vi)	 	amounts raised under
any other transaction having the financial effect of a
borrowing and which would be classified as a borrowing
(and not as an off-balance sheet financing) under the
Accounting Principles;
	 
	 	(vii)	 	the amount of the
Guarantor’s obligations under derivative transactions
entered into in connection with the protection against or
benefit from fluctuation in any rate or price (but only
the net amount owing by the
Guarantor after marking the relevant derivative
transactions to market);
	 
	 	(viii)	 	any premium payable on a redemption or
replacement of any of the foregoing items; and
	 
	 	(xi)	 	the amount of any
liability in respect of any guarantee or indemnity for any
of the




 









 





- 4 -



	 	 	 	foregoing items incurred by any other person.





	 	 	 
	“Liabilities”

	 	 the aggregate of all obligations (actual or contingent) of the Guarantor to pay
or repay money, including, without limitation:







	 	(i)	 	Financial Debt;
	 
	 	(ii)	 	the amount of all
liabilities of the Guarantor (actual or contingent) under
any conditional sale or a transfer with recourse or
obligation to repurchase, including, without limitation,
by way of discount or factoring of book debts or
receivables;
	 
	 	(iii)	 	taxes (included
deferred taxes liabilities);
	 
	 	(iv)	 	trade accounts that
are payable in the ordinary course of business (including
letters of credit or similar instruments issued for the
benefit of the Guarantor in respect of such trade
accounts);
	 
	 	(v)	 	accrued expenses,
including wages and other amounts due to employees and
other services providers;
	 
	 	(vi)	 	the amount of all
liabilities of the Guarantor howsoever arising to redeem
any of its shares; and





	 	 	 
	 

	 	to the extent not included in the definition of Financial Debt,
the amount of all liabilities of any person to the extent the
Guarantor guarantees them or otherwise obligates itself to pay
them;
	 
	 	 
	“Tangible Net Worth”

	 	the aggregate of:







	 	(i)	(A)	 the amount paid up on the
share capital of the
Guarantor; and




 









 











- 5 -





	 	(B)	 	the amount standing to the credit of the
reserves of the Guarantor (including, without
limitation, any share premium account, capital
redemption reserve funds and any credit balance
on the accumulated profit and loss account);





	 	 	 
	 

	 	after deducting from that aggregate:
	 
	 	 
	 

	 	(x) any debit balance on the profit and loss
account or impairment of the issued share capital of
the Guarantor (except to the extent that deduction
with respect to that debit balance or
impairment has already been made);







	 	(y)	 	amounts set aside for dividends or taxation
(including deferred taxation); and
	 
	 	(z)	 	amounts attributable to capitalized items such as
goodwill, trademarks, deferred charges, licenses,
patents and other intangible assets; and






	 	(ii)	 	if applicable, that
part of the net results of operations and the net assets
of any subsidiary of the Guarantor attributable to
interests that are not owned, directly or indirectly, by
the Guarantor.





     Section 1.02. Guaranteed Obligations. In this Agreement, the term “Guaranteed
Obligations” means all debts and monetary liabilities of the Borrowers to IFC under or in relation
to the IFC Loan Agreement, and in any capacity irrespective of whether the debts or liabilities:



     (a) are present or future;



     (b) are actual or contingent;



     (c) are at any time ascertained or unascertained;



 









 





- 6 -




     (d) are owed or incurred by or on account of the Borrowers alone, or severally or jointly with
any other Person;



     (e) are owed or incurred to or for the account of IFC alone, or severally or jointly with any
other Person;



     (f) are owed or incurred as principal, interest, fees, charges, taxes, duties or other
imposts, damages (whether for breach of contract or tort or incurred on any other ground), losses,
costs or expenses, or on any other account; or



     (g) comprise any combination of the above.



     Section 1.03. Interpretation. In this Agreement, unless the context otherwise
requires:



     (a) headings are for convenience only and do not affect the interpretation of this Agreement;



     (b) words importing the singular include the plural and vice versa;



     (c) a reference to a Section, Article, paragraph, party, Annex, Exhibit or Schedule is a
reference to that Section, Article or paragraph of, or that party, Annex, Exhibit or Schedule to,
this Agreement;



     (d) a reference to a document includes an amendment or supplement to, or replacement or
novation of, that document but disregarding any amendment, supplement, replacement or novation made
in breach of this Agreement; and



     (e) a reference to a party to any document includes that party’s successors and permitted
assigns.



ARTICLE II




Guarantee




     Section 2.01. Guarantee. (a) The Guarantor irrevocably, absolutely and
unconditionally:



 









 





- 7 -





	 	(i)	 	as principal obligor and not merely as surety, guarantees
to IFC the due and punctual payment of the Guaranteed Obligations; and
	 
	 	(ii)	 	undertakes with IFC that whenever the Borrowers do not
pay any amount of the Guaranteed Obligations when due the Guarantor will,
upon demand by IFC, pay that amount to IFC, in the currency prescribed in
the IFC Loan Agreement, and otherwise in the same manner in all respects as
the Guaranteed Obligations are required to be paid by the Borrowers.





     (b) The Guarantor waives notice of acceptance of this Agreement and notice of any liability to
which it may apply, and waives presentment, demand of payment, protest, notice of dishonor or
nonpayment of any such liability, suit or taking of other action by IFC against, and any other
notice to, any party liable thereon (including such Guarantor or any other guarantor).



     Section 2.02. Continuing Guarantee. (a) The guarantee contained in this Agreement
is a continuing obligation of the Guarantor (and all liabilities to which it applies or may apply
under the terms of this Agreement shall be conclusively presumed to have been created in reliance
on this Agreement), notwithstanding any settlement of account or the occurrence of any other thing,
and shall remain in full force and effect until:




	 	(i)	 	the Guaranteed Obligations have been fully paid strictly
in accordance with the provisions of the IFC Loan Agreement, regardless of
any intermediate payment or discharge; and
	 
	 	(ii)	 	IFC has finally discharged the Guarantor from all of its
obligations under this Agreement.





     (b) The guarantee contained in this Agreement shall be an additional, separate and independent
obligation of the Guarantor and shall survive the termination of the IFC Loan Agreement.



     (c) The Guarantor’s obligations under this Agreement can be discharged only by performance and
then only to the extent of such performance. These obligations are not subject to any prior notice
to, demand upon or action against the Borrowers or to any prior notice to the Guarantor with regard
to any default by the Borrowers.



 









 





- 8 -




     Section 2.03. No Set-off. All payments which the Guarantor is required to make under
this Agreement shall be without any set-off, counterclaim or condition.



     Section 2.04. Taxes. (a) The Guarantor shall pay or cause to be paid all present
and future taxes, duties, fees and other charges of whatsoever nature, if any, now or in the future
levied or imposed by the Government of the PRC or by any Authority or any jurisdiction through or
out of which a payment is made on or in connection with the payment of any and all amounts due
under this Agreement.



     (b) All payments due under this Agreement shall be made without deduction for or on account of
any such taxes, duties, fees or other charges.



     (c) If the Guarantor is prevented by operation of law or otherwise from making or causing to
be made such payments without deduction, the amounts due under this Agreement shall be increased to
such amount as may be necessary so that IFC receives the full amount it would have received (taking
into account any such taxes, duties, fees or other charges payable on amounts payable by the
Guarantor under this subsection) had such payments been made without such deduction.



     (d) If subsection (c) above applies and IFC so requires, the Guarantor shall deliver to IFC
official tax receipts evidencing payment (or certified copies of them) within thirty (30) days of
the date of payment.



     Section 2.05. Certificate Conclusive. A certificate of IFC stating:



     (a) the amount of the Guaranteed Obligations due and payable; or



     (b) any amount due and payable by the Guarantor under this Agreement; or



     (c) the amount of the Guaranteed Obligations, whether currently due and payable or not,



     shall be conclusive in the absence of manifest error.



     Section 2.06. Application of Payments. IFC may apply any amounts received by it or
recovered under:



     (a) any Security; and



 









 





- 9 -




     (b) any other document or agreement which is a security for any of the Guaranteed Obligations
and any other moneys,



in such manner as it determines in its absolute discretion.



     Section 2.07. Allocation. If the Guarantor at any time pays to IFC an amount less
than the full amount then due and payable to IFC under this Agreement, IFC may allocate and apply
such payment in any way or manner and for such purpose or purposes as IFC in its sole
discretion determines, notwithstanding any instruction that the Guarantor might give to the
contrary.



ARTICLE III




Saving Provisions




     Section 3.01. Waiver of Defenses. The Guarantor’s obligations under this Guarantee
shall not be affected or impaired by any act, omission, circumstance (other than complete payment
of the Guaranteed Obligations), matter or thing which, but for this provision, would reduce,
release or prejudice any of its obligations under this Agreement or which might otherwise
constitute a legal or equitable discharge or defense of a surety or a guarantor, including (whether
or not known to the Guarantor or to IFC):



     (a) any time, waiver, composition, forbearance or concession given to the Borrowers or any
other person;



     (b) any assertion of, or failure to assert, or delay in asserting, any right, power or remedy
against the Borrowers or any other person, or in respect of any security for the Loan;



     (c) any amplification, amendment (however fundamental), variation or replacement of the
provisions of any Transaction Document or of any other agreement or security between IFC and the
Borrowers;



     (d) any failure of the Borrowers or the Guarantor to comply with any requirement of any law,
regulation or order;



     (e) the dissolution, liquidation, reorganization or other alteration of the legal status or
structure of the Borrowers or the Guarantor;



 









 





- 10 -




     (f) any purported or actual assignment of the Loan by IFC to any other party; or



     (g) the IFC Loan Agreement or any other Transaction Document being in whole or in part
illegal, void, voidable, avoided, invalid, unenforceable or otherwise of limited force and effect.



     Section 3.02. Immediate Recourse. The Guarantor waives any right it may have of
first requiring IFC (or any trustee, agent or other person acting on its behalf) to proceed against
or enforce any other rights or security or claim payment from any person before claiming from the
Guarantor under this Agreement.



     Section 3.03. Non-Competition. (a) If any amounts have become payable or have been
paid by the Guarantor under this Agreement, the Guarantor shall not, in respect of such monies,
seek to enforce repayment, obtain the benefit of any security or exercise any other rights or legal
remedies of any kind which may accrue to the Guarantor against the Borrowers, whether by way of
subrogation, offset, counterclaim or otherwise, in respect of the amount so payable or so paid (or
in respect of any other monies for the time being due to the Guarantor from the Borrowers) if and
for so long as any Guaranteed Obligations remain payable.


The Guarantor shall hold in trust for, and forthwith pay or transfer to, IFC any payment or
distribution or benefit of security received by it contrary to this Section 3.03.




     (b) Upon the payment and satisfaction in full of all the Guaranteed Obligations and of all
sums now or in future becoming due to IFC from the Guarantor pursuant to this Agreement, and
provided that IFC is not under any further obligation (actual or contingent) to advance monies to
the Borrowers under the IFC Loan Agreement, the Guarantor, if it has made a payment under this
Agreement, shall be entitled to exercise its rights of subrogation to its proportion of all
relevant rights of IFC against the Borrowers pursuant to the IFC Loan Agreement. IFC shall promptly
execute, at the expense of the Guarantor, an assignment and such other documents in such form as
the Guarantor may reasonably request to transfer such proportion of such rights of IFC against the
Borrowers to the Guarantor as are required for the Guarantor to obtain the full benefit of such
subrogation. The Guarantor shall enforce such rights directly against the Borrowers in its own
name and not in the name of IFC.



     Section 3.04. Bankruptcy or Liquidation of Borrowers. If the Borrowers is adjudged
bankrupt or insolvent, or a receiver, liquidator, assignee, trustee,



 









 





- 11 -



sequestrator (or other similar
official) of the Borrowers, or any substantial part of its property or other assets, is appointed,
or the Borrowers makes any arrangement with its creditors, or is liquidated or wound up, the
Guarantor shall not claim, rank, prove or vote as a creditor of the Borrowers or its estate in
competition with IFC in respect of any amounts owing to the Guarantor by the Borrowers on any
account whatsoever, but instead shall give IFC the benefit of any such proof and of all amounts to
be received in respect of that proof until all Guaranteed Obligations have been fully paid.




     Section 3.05. Appropriation of Monies. Until all of the Guaranteed Obligations have
been irrevocably paid in full, IFC (or any trustee, agent or other person acting on its behalf)
may:



     (a) refrain from applying or enforcing any other monies, security or rights held or received
by IFC (or such trustee, agent or other person) in respect of the Guaranteed Obligations, or apply
and enforce the same in such manner and order as it sees fit (whether against the Guaranteed
Obligations or otherwise) and the Guarantor shall not be entitled to the benefit of the same; and



     (b) hold and keep for such time as it thinks prudent any monies received, recovered or
realized under this Agreement, to the credit either of the Guarantor or such other person or
persons as it thinks fit or in a suspense account.



     Section 3.06. Reinstatement. (a) Where any discharge (whether in respect of the
obligations of the Borrowers, the Guarantor or any security for those obligations or otherwise) is
made in whole or in part or any arrangement is made on the faith of any payment, security or other
disposition which is avoided or must be restored on insolvency, liquidation or otherwise without
limitation, the liability of the Guarantor under this Agreement shall continue or shall be
reinstated (as the case may be) as if such discharge or arrangement had not occurred.



     (b) IFC (or any trustee, agent or other person acting on its behalf) may concede or compromise
any claim that any payment, security or other disposition is liable to avoidance or restoration.



     Section 3.07. Additional Security. This Agreement is in addition to and is not in
any way prejudiced by any collateral or other security now or in future held by IFC, nor shall such
collateral or other security held by IFC or the liability of any person for all or any part of the
Guaranteed Obligations be in any manner prejudiced or affected by this Agreement.



 









 





- 12 -




ARTICLE IV




Representations and Warranties




     Section 4.01. Representations and Warranties. The Guarantor represents and warrants
that as of the date of this Agreement:



     (a) it is a company duly organized and validly existing under the laws of its place of
establishment, and has the corporate power to enter into and deliver and to perform its obligations
under this Agreement;



     (b) the execution and delivery by it of this Agreement and the performance by it of its
obligations hereunder have been duly authorized;



     (c) this Agreement has been duly executed by it and constitutes its valid and legally binding
obligations enforceable in accordance with its terms and would be so treated in the courts of its
place of incorporation and any other jurisdiction to which the Guarantor has agreed to submit in
this Agreement;



     (d) neither the execution and delivery by it of this Agreement nor the performance by it of
its obligations under this Agreement conflicts or will conflict with or result in any breach of any
of the terms, conditions or provisions of, or violate or constitute a default or require any
consent under:




	 	(i)	 	any indenture, mortgage, contract, agreement or other
instrument or arrangement to which it is a party or which purports to be
binding upon it or any of its property or assets, and will not result in the
imposition or creation of any material lien, charge, or encumbrance on, or
security interest in, any part thereof pursuant to the provisions of any
such agreement, instrument or arrangement; or
	 
	 	(ii)	 	any of the terms or provisions of its memorandum or
articles of association or by-laws; or
	 
	 	(iii)	 	any statute, rule or regulation or any judgment, decree
or order of any court, governmental authority, bureau or
agency known to the Guarantor and binding on or applicable to it; and




 









 











- 13 -




     (e) all Authorizations required for the execution and delivery of this Agreement by it and the
performance by it of its obligations hereunder, have been duly obtained or granted and are in full
force and effect.



     Section 4.02. IFC Reliance. (a) The Guarantor acknowledges that it makes the
representations in Section 4.01 with the intention of inducing IFC to enter into this Agreement and
the IFC Loan Agreement and that IFC enters into this Agreement and the IFC Loan Agreement on the
basis of, and in full reliance on, each of such representations.



     (b) The Guarantor warrants to IFC that each of such representations is true and correct in all
material respects as of the date of this Agreement and that none of them omits any matter the
omission of which makes any of such representations misleading.



     Section 4.03. Rights and Remedies not Limited. IFC’s rights and remedies in relation
to any misrepresentation or breach of warranty on the part of the Guarantor are not prejudiced:



     (a) by any investigation by or on behalf of IFC into the affairs of the Guarantor;




     (b) by the execution or the performance of this Agreement; or




     (c) by any other act or thing which may be done by or on behalf of IFC in connection with this
Agreement and which might, apart from this Section, prejudice such rights or remedies.



ARTICLE V




Covenants




     Section 5.01. Guarantor’s Covenants. The Guarantor shall:



     (a) when reasonably requested by IFC, do or cause to be done such things as necessary to aid
the exercise of any power, right or remedy of IFC under this Agreement including, but not limited
to, the execution of any document or agreement;



 









 





- 14 -




     (b) obtain, maintain and renew when necessary all Authorizations required under any law or
document or agreement:




	 	(i)	 	to enable it to perform its obligations under this
Agreement; or
	 
	 	(ii)	 	for the validity or enforceability of the Agreement;





     (c) comply in all respects with the terms of the Authorizations referred to in paragraph (b)
above;



     (d) as soon as available or within sixty (60) days after the end of each quarter of each
Financial Year, whichever is later, furnish to IFC two (2) copies of its financial statements for
such period prepared on a Consolidated Basis in accordance with the Accounting Principles;



     (e) as soon as available or within one hundred and twenty (120) days after the end of each
Financial Year, whichever is later, furnish to IFC two (2) copies of the its financial statements
for such Financial Year (which are in agreement with its books of account and prepared on a
Consolidated Basis in accordance with the Accounting Principles, together with an audit report on
them, all in form satisfactory to IFC;



     (f) provide IFC a copy of all filings that have been made by the Guarantor with the U.S.
Securities and Exchange Commission within one Business Day after relevant filling is made;



     (g) if at any time the Borrowers fail to deposit funds in the Sinking Fund Account as required
in Section 6.01(d) of the Loan Agreement, the Guarantor shall deposit such amounts as necessary to
maintain the minimum balance in the Sinking Fund Account as specified in Section 6.01(d) of the Loan Agreement;



     (h) ensure that: (i) all dividends and distributable profits of the Clinics are, to the extent
not payable to relevant domestic joint venture partners or domestic co-investors, distributed
directly or indirectly through an Affiliate to the relevant Borrower and not other Person; and (ii)
all income from any clinic management contracts with the Guarantor or any other company affiliated
with the Guarantor are paid directly or indirectly to the relevant Borrower and not any other
Person or entity within the Group; and



 









 





- 15 -




     (i) not incur any additional debt should the Balance Sheet Liabilities to Tangible Net
Worth Ratio be greater than 2.5 after giving effect of such debt transaction.



ARTICLE VI




Miscellaneous




          Section 6.01. Notices. Any notice, request or other communication to be given or
made under this Agreement to IFC or to the Guarantor shall be in writing and shall be deemed to
have been duly given or made when it is delivered by hand, airmail, established courier service or
facsimile to the party to which it is required or permitted to be given or made at such party’s
address specified below or at such other address as such party has designated by notice to the
other party hereto.




     For the Guarantor:


Chindex International, Inc.

7201 Wisconsin Avenue

Bethesda, MD20814


Attention: Chief Financial Officer


Alternative address for communications by facsimile:


(301) 215-7719



 









 








- 16 -




	 	 	 
	For IFC:
	 	 
	 
	 	 
	 

	 	International Finance Corporation
	 

	 	2121 Pennsylvania Ave., N.W.
	 

	 	Washington, D.C. 20433
	 

	 	United States of America
	 
	 	 
	 

	 	Attention: Director, Global Manufacturing and Services Department
	 
	 	 
	 

	 	Alternative address for communications by facsimile:
	 
	 	 
	 

	 	(202)974-4792
	 
	 	 
	 

	 	With a copy (in the case of communications relating to payments) sent to the
attention of the Senior Manager, Financial Operations Unit, at:
	 
	 	 
	 

	 	Facsimile: (202) 974-4371






     Section 6.02. English Language. All documents to be furnished or communications to
be given or made under this Agreement shall be in the English language or, if in another language,
shall be accompanied by a translation into English satisfactory to IFC certified by a
representative of the Guarantor, which translation shall be the governing version between the
Guarantor and IFC.



     Section 6.03. Expenses. The Guarantor shall pay to IFC or as IFC may direct:



     (a) the fees and expenses of IFC’s counsel in the PRC, Delaware and New York incurred in
connection with:




	 	(i)	 	the preparation and/or review, execution and, where
appropriate, stamping or registration of this Agreement;
	 
	 	(ii)	 	the giving of any legal opinions required by IFC under
this Agreement; and
	 
	 	(iii)	 	any amendment, supplement or modification to, or waiver
under, this Agreement; and




 









 











- 17 -




     (b) the costs and expenses incurred by IFC in relation to the enforcement or protection or
attempted enforcement or protection of its rights under this Agreement, including legal and other
professional consultants’ fees.



     Section 6.04. Remedies and Waivers. No failure or delay by IFC in exercising any
power, remedy, discretion, authority or other rights under this Agreement shall waive or impair
that or any other right of IFC. No single or partial exercise of such a right shall preclude its
additional or future exercise. No such waiver shall waive any other right under this Agreement.
All waivers or consents given under this Agreement shall be in writing.



     Section 6.05. Jurisdiction and Enforcement. (a) This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York, United States of America.



     (b) For the exclusive benefit of IFC, the Guarantor irrevocably agrees that any legal action,
suit or proceeding arising out of or relating to any this Agreement may be brought by IFC in the
courts of the State of New York or of the United States of America located in the Southern District
of New York. Final judgment against the Guarantor in any such action, suit or proceeding shall be
conclusive and may be enforced in any other jurisdiction, including the PRC, by suit on the
judgment, a certified or exemplified copy of which shall be conclusive evidence of the judgment, or
in any other manner provided by law.



     (c) By the execution of this Agreement, the Guarantor irrevocably submits to the non-exclusive
jurisdiction of such Court in any such action, suit or proceeding and designates, appoints and
empowers Gary Simon, Esq., Hughes, Hubbard & Reed, LLP, 1 Batlery Park Plaza, New York, NY
10004-1418 as its authorized agent to receive for and on its behalf service of the writ of summons
or other legal process in any such action, suit or proceeding in the State of New York.



     (d) Nothing in this Agreement shall affect the right of IFC to commence legal proceedings or
otherwise sue the Guarantor in the PRC or any
other appropriate jurisdiction, or concurrently in more than one jurisdiction, or to serve process,
pleadings and other papers upon the Guarantor in any manner authorized by the laws of any such
jurisdiction.



     (e) As long as this Agreement remains in force, the Guarantor shall maintain a duly appointed
agent for the service of summons, complaint and other legal process in New York, New York, United
States of America, for purposes of



 









 





- 18 -



any legal action, suit or proceeding brought by IFC in respect
of this Agreement. The Guarantor shall keep IFC advised of the identity and location of such agent.




     (f) The Guarantor also irrevocably consents, if for any reason the Guarantor’s authorized
agent for service of process of summons, complaint and other legal process in any such action, suit
or proceeding is not present in New York, New York, to service of such papers being made out of
those courts by mailing copies of the papers by registered United States air mail, postage prepaid,
to the Guarantor at its address specified in Section 7.01. In such a case, IFC shall also send by
telex or facsimile, or have sent by telex or facsimile, a copy of the papers to the Borrowers.



     (g) Service in the manner provided in subsection (f) above in any such action, suit or
proceeding will be deemed personal service, will be accepted by the Guarantor as such and will be
valid and binding upon the Guarantor for all purposes of any such action, suit or proceeding.



     (h) The Guarantor irrevocably waives to the fullest extent permitted by applicable law:




	 	(i)	 	any objection which it may have now or in the future to
the laying of the venue of any such action, suit or proceeding in any court
referred to in this Section;
	 
	 	(ii)	 	any claim that any such action, suit or proceeding has
been brought in an inconvenient forum;
	 
	 	(iii)	 	its right of removal of any matter commenced by IFC in
the courts of the State of New York to any court of the United States of
America; and
	 
	 	(iv)	 	any and all rights to demand a trial by jury in any such
action, suit or proceeding brought against the Guarantor by IFC.





     (i) To the extent that the Guarantor may be entitled in any jurisdiction to claim for itself
or its assets immunity in respect of its obligations under this Guarantee from any suit, execution,
attachment (whether provisional or final, in aid of execution, before judgment or otherwise) or
other legal process or to the extent that in any jurisdiction such immunity (whether or not
claimed), may be attributed to it or its assets, the Guarantor irrevocably agrees not to claim and



 









 





- 19 -



irrevocably waives such immunity to the fullest extent permitted by the laws of such jurisdiction.




     (j) The Guarantor hereby acknowledges that IFC shall be entitled under applicable law,
including the provisions of the International Organizations Immunities Act, to immunity from a
trial by jury in any action, suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby, brought against IFC in any court of the United States of America.
The Guarantor hereby waives any and all rights to demand a trial by jury in any action, suit or
proceeding arising out of or relating to this Agreement or the transactions contemplated by this
Agreement brought against IFC in any forum in which IFC is not entitled to immunity from a trial by
jury.



     (k) To the extent that the Guarantor may, in any suit, action or proceeding brought in any of
the courts referred to in paragraph (b) above or a court of the PRC or elsewhere arising out of or
in connection with this Agreement, be entitled to the benefit of any provision of law requiring IFC
in such suit, action or proceeding to post security for the costs of the Guarantor (cautio
judicatum solvi), or to post a bond or to take similar action, the Guarantor hereby
irrevocably waives such benefit, in each case to the fullest extent now or in the future permitted
under the laws of the PRC or, as the case may be, the jurisdiction in which such court is located.



     Section 6.06. Successors and Assigns. This Agreement binds and inures to the benefit
of the respective successors and assigns of the parties, except that the Guarantor may not assign
or otherwise transfer all or any part of its rights or obligations under this Agreement without the
prior written consent of IFC. The benefit of this Agreement may be
freely and unconditionally assigned, transferred or otherwise disposed of, in whole or in part, by
IFC to any other person, corporate or otherwise.



     Section 6.07. Amendment. Any amendment of any provision of this Agreement shall be
in writing and signed by the parties.



     Section 6.08. Counterparts. This Agreement may be executed in several counterparts,
each of which is an original, but all of which together constitute one and the same agreement.



 









 





- 20 -




     IN WITNESS WHEREOF, the parties hereto, acting through their duly authorized representatives,
have caused this Agreement to be signed in their respective names as of the date first above
written.



	 	 	 	 	 
	 	 	CHINDEX INTERNATIONAL, INC.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Roberta Lipson
	 

	 	 	 	Authorized Representative
	 
	 	 	 	 
	 	 	INTERNATIONAL FINANCE CORPORATION
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Karin Finkelston
	 

	 	 	 	Authorized Representative