EXHIBIT 4.57
LOAN AGREEMENT
No: ___________
This Loan Agreement ("Agreement") is made and entered into this 19th day of
March, 2006 (the "Effective Date") by and between:
CHINA MERCHANTS BANK DONGFANG BRANCH, a corporation duly organized and
validly existing under the laws of the People's Republic of China ("PRC")
and having its principal place of business at Xx. 000-000, Xxxxxxxx Xxxx,
Xxxxxx Xxx Xxxx, Xxxxxxxx 000000, the PRC (the "Agent"); and
XXXXXX COMPUTER (SHANGHAI) CO., LTD., a corporation duly organized and
validly existing under the laws of the PRC and having its principal place
of business at Xx.0 Xxxxxx Xxxxxxxx, Xx. 000 Xxxx Xxxx, Xxxxxx New Area,
Shanghai 201203, the PRC ("Xxxxxx Computer").
The Agent and Xxxxxx Computer shall be referred to individually as a
"Party" and collective as the "Parties".
RECITALS
WHEREAS, Nanjing Xxxxxx Networking Co. Ltd. ("Nanjing Xxxxxx") and the
Agent entered into an Entrusted Loan Agreement dated as of March 19, 2006,
pursuant to which Nanjing Xxxxxx will deposit funds with the Agent, which the
Agent will loan to Xxxxxx Computer; and
WHEREAS, the Agent would like to provide Xxxxxx Computer with a loan on the
terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and for other good and valuable consideration, the Parties
hereto agree as follows:
1. DEFINITIONS
1.1 "Advance" shall mean the principal amount of the lump sum drawing made by
Xxxxxx Computer under the Facility or, as the context requires, the
outstanding balance thereof (as reduced by repayments and prepayments by
Xxxxxx Computer from time to time).
1.2 "Availability Period" shall mean the period commencing from March 19, 2006
and ending on March 18, 2008.
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1.3 "Business Day" shall mean any day other than a Saturday, Sunday or a legal
holiday in the PRC.
1.4 "Event of Default" shall mean any of the events specified in Section 6.1
below.
1.5 "Facility" shall mean the thirty-eight million RenMinBi ("RMB") loan
facility to be made available to Xxxxxx Computer pursuant to Section 2.
2. THE LOAN
2.1 Subject to the terms and conditions set forth in this Agreement, Xxxxxx
Computer may on any Business Day during the Availability Period make one
drawing from the Agent under the Facility.
2.2 Xxxxxx Computer shall provide the Agent with the records and information
needed by the Agent to ensure that loan proceeds are used according to the
terms and conditions of this Agreement.
3. INTERESTS AND TAXES
3.1 Interest. Xxxxxx Computer shall not be obligated to pay any interest on the
Advance.
3.2 All Advances to be made hereunder shall be made by the Agent. The Agent
hereby acknowledges and agrees that, upon Nanjing Xxxxxx 's instructions,
the Agent shall be responsible for transferring the Advances to Xxxxxx
Computer.
4. REPAYMENT
Xxxxxx Computer shall repay the Advance outstanding at the end of the
Availability Period. Xxxxxx Computer may prepay any or all part of the
Advance in the event that Nanjing Xxxxxx agrees upon such prepayment by
Xxxxxx Computer.
5. PAYMENT PROVISIONS
5.1 Payment of Advance by the Agent. On the date on which the Advance is to be
made, the Agent shall make available such Advance to Xxxxxx Computer in RMB
in immediately available funds to an account with the Agent specified in
the notice and maintained by Xxxxxx Computer.
5.2 Payment of Xxxxxx Computer. All payment(s) to be made by Xxxxxx Computer
shall be made to the Agent on the date upon which the relevant payment is
due in RMB in immediately available funds to the Agent into such account as
specified in writing by the Agent. The Agent shall deliver payments made by
Xxxxxx Computer to the account specified by Xxxxxx Networking within one
(1) Business Day after receipt of such
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payment.
6. EVENT OF DEFAULT
6.1 Each of the following events shall be deemed an Event of Default:
(a) Non-Payment. Xxxxxx Computer fails to pay any sum payable under this
Agreement when due or otherwise in accordance with the provisions.
(b) Failure to Perform. Xxxxxx Computer fail to perform any of its other
obligations hereunder;
(c) Insolvency. Xxxxxx Computer becomes insolvent or stops or suspends or
threatens to stop or suspend payments of all or a material part of its
debts or is unable or admits its inability to pay its debts as they fall
due.
6.2 Acceleration. At any time after the occurrence of an Event of Default and
regardless of whether such Event of Default continues, the Agent may
declare the Facility to be canceled whereupon the same shall be so canceled
forthwith according to Nanjing Shanda's instruction.
7. MISCELLANEOUS
7.1 Notice. Xxxxxx Computer shall send a notice to the Agent upon the
occurrence of a combination, dissolution, receivership or any such similar
proceedings.
7.2 Entire Agreement. This Agreement constitutes the entire agreement between
the Parties with respect to the subject matter hereof, and merges, revokes
and supersedes all prior and contemporaneous agreements, understandings,
arrangements, documents and communications (whether written or oral)
between the Parties and is intended as a final expression of their
agreement.
7.3 Amendments and Waivers. This Agreement shall not be modified or amended
except by written agreement signed by duly authorized representatives of
the Parties. None of the provisions of this Agreement shall be deemed to
have been waived by any act or acquiescence on the part of a Party, except
by an instrument in writing signed by such Party; and no waiver of any
provision of this Agreement shall constitute a waiver of any other
provision(s) or of the same provision on another occasion. The failure of
either Party to enforce, or the delay by either Party in enforcing any of
its rights under this Agreement shall not preclude either Party from
commencing appropriate legal or equitable proceedings, within the time
provided by the applicable law, to enforce any or all of its rights under
this Agreement, and any prior failure to enforce, or delay in enforcement,
shall not constitute a defense.
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7.4 Disputes and Governing Law. This Agreement shall be construed and enforced
in accordance with the laws of the PRC. Any disputes that arise in
connection with this Agreement shall be litigated in courts located within
the Pudong New Area, Shanghai, PRC.
7.5 Costs and Expenses. The Parties shall each bear their own costs and
expenses incurred in connection with the preparation, negotiation and
execution of this Agreement.
7.6 Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. This Agreement may be executed and
delivered by facsimile and transmission by facsimile shall be considered
proper delivery for legal purposes.
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IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly
authorized representatives on the date first set forth above.
CHINA MERCHANTS BANK DONGFANG BRANCH
By:
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Name:
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Title:
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XXXXXX COMPUTER (SHANGHAI) CO., LTD.
By:
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Name: Chen Tianqiao
Title: General Manager
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