EXHIBIT 10.98
LOAN AGREEMENT
THIS LOAN AGREEMENT, dated November 4, 2004, made in Beijing, People's Republic
of China ("China") by and between:
Party A: Beijing Enterprise Network Technologies Co., Ltd., a limited liability
company registered at Beijing Municipal Bureau for Industry and Commerce, with
its registered address at: Xxxx 000, Xxxxx Resources Building, Xx. 0 Xxxxxxxxxx
Xxxxxxxx, Xxxxxxx 000000, Legal Representative: Li Jieqiang
Party B: Yu Qin, a Chinese citizen, Chinese ID card (No.000000000000000000),
address at: Xxxx 0000, No.5 SOHO, Xx.00 Xxxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, Xxxxxxx
000000.
RECITALS
WHEREAS, Party B desires to receive funding for the business development
of its investee company; and Party A desires to provide Party B with loan in
RMB. For the purpose to define the rights and obligations of both parties
hereto, Party A and Party B enter into this Loan Agreement (this "Agreement") on
the principle of equality and mutual benefit.
ARTICLE I
AMOUNT AND TERM OF LOAN
1.1. Party A agrees, subject to the terms and conditions of this
Agreement, to extend interest-free loan in RMB to Party B (the "Loan"). The
aggregate amounts of the Loan shall be RMB10,000,000.
1.2. The term of the Loan shall be half a year, commencing from the
execution date hereof, that is, from November 4, 2004 until May 3, 2005.
1.3. Party B shall repay in full Party A the Loan that Party A actually
extends to Party B prior to the expiration of the term thereof.
ARTICLE II
METHOD OF BORROWING AND USE OF LOAN PROCEEDS
Within 5 business days after execution of this Agreement, Party A shall
make available to Party B the full amount of the Loan to the following account
designated by Party B:
Account Name: Beijing Zhangzhong Shishang Technology Co., Ltd.
Bank: China Everbright Bank
Bank No.: 240
Bank Account No.: 083500120100304121645
Party B shall not use such Loan for any purposes in violation of Chinese
laws and regulations, otherwise Party A may at any time require Party B to repay
the Loan.
ARTICLE III
PARTY B's REPRESENTATIONS AND WARRANTIES
Party B hereby represents and warrants to Party A that:
3.1. Party B is a legal citizen of the People's Republic of China, has
all the necessary rights, power and capability to enter into an perform all the
duties and obligations hereunder, and that this Agreement shall be binding upon
Party B after the execution hereof.
3.2. Party B will resolve appropriately any issues not covered hereunder
in conjunction with Party A in accordance with relevant Chinese laws and
policies.
ARTICLE IV
PARTY A's REPRESENTATIONS AND WARRANTIES
4.1. Party A is a limited liability company established and existing
under the laws of People's Republic of China, has all the necessary rights,
power and capability to enter into and perform all the duties and obligations
hereunder, and that this Agreement shall be binding upon Party A after the
execution hereof.
4.2. Party A will resolve appropriately any issues not covered hereunder
in conjunction with Party B in accordance with relevant Chinese laws and
policies.
ARTICLE V
CONFIDENTIALITY
Without written consent of the other party, neither Party shall disclose
to any third parties this Agreement or any information disclosed by any Party
hereto during the performance of this Agreement, except such disclose is
necessary for compliance with relevant laws and regulations, court rules and/or
governmental or regulatory or stock exchange rules; unless such information
become public known not as a result of violation of this Article 5.1.
2
ARTICLE VI
WAIVER
6.1. No waiver of any breach hereof or failure of any Party in
exercising any power or right hereunder shall operate as a waiver of other
breach or further breach hereof, nor waiver of all the power or right hereunder.
6.2. Any delay of any Party in exercising any power or right hereunder
shall operate as a waiver thereof.
ARTICLE VII
SEVERABILITY
If any provision of this Agreement shall be held invalid, illegal or
unenforceable in any respect under any Chinese laws and regulations, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof.
ARTICLE VIII
ENTIRE AGREEMENT
6.1. This Agreement contains all the agreement and understanding between
the Parties with respect to the Loan.
6.2. This Agreement shall supersede all prior agreements,
understandings, letter of intent, documents or communications between both
Parties or their representatives and advisors relating to the Loan. Neither
Party shall bring forward any claims against the other Party by reference to
such superseded agreements, understandings, letter of intent, documents or
communications.
6.3. No amendment to this Agreement or any provisions hereof shall be
effective unless it shall be agreed in writing by both Parties.
ARTICLE IX
TAXES, FEES AND EXPENSES
Any and all taxes, fees and expenses that are payable as a result of the
Loan shall be solely borne by the Party exercising its rights hereunder, unless
either Party A or Party B has been expressly required to pay the same under
applicable law or this Agreement.
3
ARTICLE X
BREACH
10.1. Failure by any of Party A or Party B in performing its obligations
hereunder shall constitute a breach of this Agreement.
10.2. The Party in breach of this Agreement shall indemnify the other
Party for all economic damages suffered as a result of such breach.
10.3. If this Agreement or any portion hereof can not be performed due
to negligence of any Party hereto, such Party shall be held liable for breach,
and the other Party shall have the right to terminate this Agreement. If both
Parties have negligence, each of Party A and Party B shall take respective
responsibilities to the extent of loss and damage.
ARTICLE XI
GOVERNING LAW
The formulation, validity, interpretation, performance, amendment and
termination of this Agreement and resolution of dispute shall be governed by the
relevant laws of the People's Republic of China.
ARTICLE XII
DISPUTE RESOLUTION
Any dispute arising out of or in connection with this Agreement shall be
settled by friendly discussions and, failing such a settlement within 30 days
upon notice by any Party hereto asking for negotiations, both Parties agree that
such dispute shall be referred to and finally resolved by arbitration in Beijing
before the China International Economic and Trade Arbitration Commission
pursuant to the then effective arbitration rules thereof. The arbitration award
shall be final and binding on both Parties.
ARTICLE XIII
DISPUTE RESOLUTION
This Agreement shall be signed in four counterparts, each of Party A and
Party B shall hold two thereof, with the same legal effect, and shall become
effective after being signed by both Parties.
4
SIGNATURE PAGE
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first written above in Beijing, China.
Party A: Beijing Enterprise Network Technologies Co., Ltd.
Authorized Representative: (Signature)
Party B: Yu Qin
(Signature)
5
