Exhibit 10.16
[Translation of Chinese original]
DATED AS AT 25/th/ November 2002
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ADVANCED INTERNET SERVICES LIMITED
- and -
WANG XXX XXXX
and
SHENZHEN FREENET INFORMATION
TECHNOLOGY COMPANY LIMITED
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LOAN AGREEMENT
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THIS AGREEMENT is made as at the [25/th/] day of [November 2002]
BETWEEN:
(1) ADVANCED INTERNET SERVICES LIMITED, a private company incorporated in Hong
Kong (under company number 687366) with limited liability and its
registered office is at 00/xx/ Xxxxx, Xxx Xxxxxx, 00 Xxxxx'x Xxxx Xxxxxxx,
Xxxx Xxxx; ("Lender");
(2) WANG XXX XXXX, holder of People's Republic of China Passport numbered
PCHN143637106, whose residence is at Room 101 Xxxx 0 Xxxxxxxx 0,
Xxxxxxxxxxxxx, Xxxxxxxx Xxxxxxxx, Xxxxxxx ("Borrower") ; and
(3) SHENZHEN FREENET INFORMATION TECHNOLOGY COMPANY LIMITED, a company
incorporated with limited liability under the laws of the PRC and its
registered address is at Xxxx 000, Xxxxx 0, Xxxxxx Xxxxxx, Xxxxx Xxxx 2,
Futian District, Shenzhen ("Shenzhen Freenet"),
(each a "Party" and collectively "Parties").
WHEREAS the Lender has agreed to make available to the Borrower a loan facility
upon the terms and subject to the conditions as hereinafter set out.
IT IS HEREBY AGREED as follows:
1. INTERPRETATION
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1.1 In this Agreement, the following expressions shall have the following
meanings, unless the context requires otherwise:
"Advance"
the principal amount advanced to the Borrower on the occasion of each
drawing under the Facility;
"Agreement"
this agreement;
"Facility"
the loan facility granted by the Lender to the Borrower upon the terms and
subject to the conditions of this Agreement;
"Hong Kong"
the Hong Kong Special Administrative Region of the PRC;
"Loan"
the aggregate principal amount drawn and for the time
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being outstanding under the Facility;
"Parties"
the parties to this Agreement and "Party" means any of them;
"PRC"
the People's Republic of China;
"RMB"
Renminbi, the lawful currency of the PRC;
"Shenzhen Freenet"
Shenzhen Freenet Information Technology Company Limited.
1.2 References in this Agreement to the Recital and Clauses are to the recital
and clauses in this Agreement unless the context requires otherwise.
2. FACILITY
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2.1 Subject to the provisions of this Agreement, the aggregate principal amount
of the Facility available to the Borrower shall be such amount as the
Lender and the Borrower may from time to time agree.
2.2 The proceeds of the Facility shall be used by the Borrower for the
exclusive purpose of contributing towards registered capital of Shenzhen
Freenet.
2.3 The Loan shall be interest-free.
3. ADVANCE
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3.1 The Lender shall make all or part of the principal amount of the Facility
available to the Borrower on such date(s) as the Lender and the Borrower
may from time to time agree by depositing an amount equal to each Advance
in clear fund into such bank account as the Borrower has by written notice
notified the Lender for such purpose.
3.2 The Lender shall make the first Advance, being an amount of RMB23,000,000,
available to the Borrower in the manner set out in Clause 3.1.
4. REPAYMENT
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4.1 Unless the Borrower has already repaid the Loan in full, the Lender shall
have at all times the right to demand the Borrower to make immediate and
full repayment
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of the entire outstanding amount of the Loan by giving notice in writing to
the Borrower.
4.2 The Borrower shall apply and hereby directs Shenzhen Freenet to apply all
dividends, cash and cash-in-kind, if any, received or receivable from, and
by virtue of the Borrower's equity (or other ownership) interest in,
Shenzhen Freenet as repayment of the Loan until the entire outstanding
amount of the Loan has been repaid in full, and Shenzhen Freenet hereby
acknowledges and agrees to the same.
4.3 In the event that the Borrower fails to repay the Loan in accordance with
Clause 4.1 and/or Clause 4.2, the Lender hereby acknowledges and agrees
that it shall only have recourse to:
(a) the Borrower's entire equity (or other ownership) interest in and/or
loans advanced to Shenzhen Freenet; and
(b) any and all gross proceeds (in whatever form) the Borrower receives or
is entitled to receive (whichever is the higher) upon any sale or
disposition in whole or in part of his equity (or other ownership)
interest in and/or loans advanced to Shenzhen Freenet.
4.4 In the event that the Borrower:
(a) assigns the Loan without the Lender's prior consent; and/or
(b) disposes any or all of his equity (or other ownership) interest in
Shenzhen Freenet without the Lender's prior consent,
the Lender shall have full recourse to all personal assets of the Borrower.
5. REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrower represents and warrants to the Lender that this Agreement
constitutes valid and legally binding obligations of the Borrower
enforceable in accordance with its terms. This representation and warranty
shall be deemed to be repeated by the Borrower on each day until the
outstanding amount of the Loan is fully repaid as if made with reference to
the facts and circumstances existing as at each such date.
6. MISCELLANEOUS
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6.1 This Agreement constitutes the whole agreement between the Parties in
respect of the Loan and shall supersede the terms of any other agreement in
respect of the Loan, whether oral or otherwise, made prior to the entering
into of this Agreement.
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It is expressly declared that no purported variations to the Loan shall be
effective unless made in writing and signed by all the Parties.
6.2 Each of the Parties shall at the request of the any other Party (and at the
reasonable cost of the Party making such request) do and/or execute or
procure to be done and/or executed all such further acts, deeds, things and
documents as may be necessary to give effect to the terms of this
Agreement.
6.3 No waiver by any Party of any breach by any other Party of any provision of
this Agreement shall be deemed to be a waiver of any subsequent breach of
that or any other provision of this Agreement and any forbearance or delay
by the relevant Party in exercising any of its rights under this Agreement
shall not be constituted as a waiver thereof.
6.4 Time shall be of the essence as regards any time, date or period mentioned
in this Agreement and any time, date or period substituted for the same by
agreement of the Parties or otherwise.
6.5 The illegality, invalidity or unenforceability of any part of this
Agreement shall not affect the legality, validity or enforceability of any
other part of this Agreement.
6.6 The provisions of this Agreement shall be binding on and shall enure for
the benefit of the successors, assigns and personal representatives (as the
case may be) of each Party. The rights and obligations of any Party under
this Agreement shall not be assigned without the prior written consent of
the other Parties.
6.7 This Agreement may be executed in any number of counterparts by the Parties
on separate counterparts, each of which when executed shall constitute an
original and all of which taken together shall constitute one and the same
document.
7. GOVERNING LAW AND JURISDICTION
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This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong. Each Party hereby irrevocably submits to the
non-exclusive jurisdiction of the courts of Hong Kong.
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IN WITNESS WHEREOF this Agreement has been executed on the day and year first
above written.
SIGNED by )
ADVANCED INTERNET SERVICES )
LIMITED )
in the presence of: )
)
SIGNED by )
WANG XXX XXXX )
in the presence of: )
)
Signed by )
)
for and on behalf of )
SHENZHEN FREENET )
INFORMATION TECHNOLOGY )
COMPANY LIMITED )
in the presence of )
)
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SUPPLEMENTAL AGREEMENT TO LOAN AGREEMENT
This Supplemental Agreement to Loan Agreement (the "Agreement") is entered
into as of September 26, 2003 between the following two parties:
(1) Advanced Internet Services Limited (the "Lender"), a limited liability
company incorporated in Hong Kong SAR, having its legal address at
48/F the Center, 00 Xxxxx'x Xxxx Xxxxxxx, Xxxx Xxxx; and
(2) Xxxx Xxxxxxx (the "Borrower")
Gender: Female
PRC Passport Number: PCHN143637106
Address: Xxxx 000 Xxxx 0 Xxxxxxxx 0, Xxxxxxxxxxxxx,Xxxxxxxx Xxxxxxxx,
Xxxxxxx
The Lender and the Borrower will hereinafter each be referred to as a
"Party" and collectively as "Both Parties".
WHEREAS, the Borrower holds a 70% equity interest in Shenzhen Freenet
Information Technology Company Limited (the "Borrower's Company"), a limited
liability company incorporated in the People's Republic of China (the "PRC").
WHEREAS, the Lender executed a loan agreement on November 25, 2002 (the
"Loan Agreement") with the Borrower.
WHEREAS, Both Parties agree to execute this Agreement to amend the Loan
Agreement and this Agreement shall form a part of the Loan Agreement.
NOW THEREFORE, Both Parties agree as follows:
1. Loan
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1.1 The Lender agrees to provide a loan to the Borrower with a principal
of Renminbi 16,100,000 in accordance with the terms and conditions set
forth in this Agreement. The term for such loan shall be ten (10)
years and shall be extended upon the agreement of Both Parties. During
the term or extended term of such loan, the Borrower shall immediately
repay the loan to the Lender, if any of the following events occurs:
(1) the Borrower dies or becomes a person with no or limited capacity
to perform civil acts;
(2) Xxxx Xxx Lei terminates his employment with or is dismissed by
the Lender or its affiliates;
(3) the Borrower commits a crime or becomes involved in a crime;
(4) any third party claims more than Renminbi 500,000 against the
Borrower;
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(5) foreign investors are permitted to invest in the business of
value-added telecommunications and the relevant authorities begin
to approve the establishment of such business in accordance with
the applicable laws of the PRC.
1.2 The Borrower agrees to accept such loan provided by the Lender and
hereby agrees and warrants that such loan shall be used only for the
investment in the Borrower's Company for the business development of
the Company. Without the Lender's prior written consent, the Borrower
shall not use the amount of such loan for any other purpose or
transfer or pledge its equity interest in the Borrower's Company to
any other third party.
1.3 The Lender and the Borrower jointly agree and confirm that the
Borrower shall repay the loan only by transferring all of the
Borrower's equity in the Borrower's Company to the Lender or to any
other person (legal person or natural person) designated by the
Lender.
1.4 The Lender and the Borrower hereby jointly agree and confirm that any
proceeds raised from the transfer of Borrower's equity in the
Borrower's Company shall be used to repay the Lender, for the
consideration of the loan provided by the Lender, in such manner as
designated by the Lender in accordance with this Agreement and the
Agreement shall terminate thereupon.
1.5 The Lender and the Borrower hereby jointly agree and confirm that the
Lender is entitled to, but is not obliged to, at any time, purchase or
designate any other person (legal person or natural person) to
purchase all or part of Borrower's equity in the Borrower's Company at
any price determined by Both Parties, subject to the permission of the
law.
The Borrower warrants to issue an irrevocable power of attorney to
confer all its rights as a shareholder of the Borrower's Company to a
person designated by the Lender.
1.6 Interest of the Loan. In the event that the Borrower transfers its
equity in the Borrower's Company to the Lender or the person
designated by the Lender, the loan hereunder shall be deemed to be an
interest-free loan, if the transfer price of such equity is equivalent
to or is less than the principal amount of the loan under this
Agreement. However, if the transfer price shall exceed the principal
amount of the loan hereunder, the amount in excess of the principal
amount of the loan shall be deemed the interest payable on such loan
under this Agreement, which shall be paid to the Lender by the
Borrower.
2. Assignment of This Agreement
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The Borrower shall not assign any of its rights or obligations under this
Agreement to any third party without the Lender's prior written agreement.
3. Governing Law and Settlement of Disputes
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3.1 The execution, validity, interpretation, performance, implementation,
termination and settlement of disputes of this Agreement shall be
governed by the laws of PRC.
3.2 Both Parties shall strive to settle any dispute arising from the
interpretation or performance in connection with this Agreement
through friendly negotiations. If a settlement cannot be reached
through negotiations within 30 days after a Party gives a written
notice requesting for a negotiation, then either Party can submit such
matter to China International Economic and Trade Arbitration
Commission (the "CIETAC"). The arbitration conducted by
CIETAC shall be in compliance with the current rules of CIETAC, and
the arbitration proceedings shall take place in Beijing. The
arbitration award shall be final and binding upon Both Parties and
shall be enforceable in accordance with its terms.
3.3 In the event when any disputes arise out of the interpretation and
performance of this Agreement or any pending arbitration of such
dispute, Both Parties shall continue to perform their rights and
obligations under this Agreement, except that such maters are involved
in the disputes.
4. Miscellaneous
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4.1 This Agreement shall be effective as of the date of execution and
shall expire when Both Parties have fully performed their obligations
under this Agreement.
4.2 This Agreement is made in duplicate, each of the same effect, and each
party shall keep copy of this Agreement.
4.3 Both Parties may amend and supplement this Agreement by a written
agreement between Both Parties. The amendment and supplement to this
Agreement duly executed by Both Parties shall form a part of this
Agreement and shall have the same legal effect as this Agreement.
4.4 Any provision of this Agreement which is invalid or unenforceable
shall not affect the validity and enforceability of the remaining
provisions hereof.
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Signature:________________
Lender: Advanced Internet Services Limited
Representative:________________
Title:
Borrower: Wang Xxx Xxxx
Signature:________________
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