Novation Agreement - Wang Xiu Ling, Sheng Yong and Shenzhen Freenet Information Technology Co. Ltd.
Dated 26/th/ September 2003
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WANG XIU LING
and
SHENG YONG
and
SHENZHEN FREENET INFORMATION
TECHNOLOGY COMPANY LIMITED
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NOVATION AGREEMENT
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THIS NOVATION AGREEMENT is made as of 26/th/ September 2003
BETWEEN
(1) WANG XIU LING, holder of the passport of People's Republic of China
numbered PCHN143637106and whose correspondence address is at Room 3-101,
Floor 7, Wushengdongli, Chaoyang District, Beijing ("WXL");
(2) SHENG YONG, holder of People's Republic of China Identity Card
numbered110108197508120016 and whose correspondence address is at Room 6,
Unit 1, Jiwei Dormitory, 9 Huangchenggen Nanjie Street, Xicheng District,
Beijing ("SY"); 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 Room 616, Block 1, Pengyi Garden Bagua Road 2,
Futian District, Shenzhen, PRC
(each a "Party" and collectively "Parties").
WHEREAS
(A) Pursuant to a Loan Agreement dated 25/th/ November 2002 and made between,
inter alia, WXL and Shenzhen Freenet ("Original Agreement"), WXL has
granted a loan of a principal amount of RMB136,032,781 to Shenzhen Freenet
subject to the terms and conditions therein.
(B) The Parties have agreed to enter into this Agreement for the purpose of
assigning and transferring part of the interests and rights in respect of
WXL (in particular, all rights in respect of a sum of RMB30,309,834 forming
part of the principal loan of RMB136,032,781 granted by WXL to Shenzhen
Freenet) under the Original Agreement to SY, subject to the terms and
conditions set out in this Agreement.
NOW THEREFORE, IT IS AGREED as follows:
1. INTERPRETATION
1.1 In this Agreement, the following expressions shall have the following
meanings:-
"Effective Date" means 26/th/ September 2003.
"Novated Agreement" means the Original Agreement as novated and amended by
this Agreement.
1.2 Terms defined in the Original Agreement shall have the same meaning when
used in this Agreement unless otherwise defined herein.
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2. ASSIGNMENT
2.1 Subject to Clause 2.4 hereof, WXL and Shenzhen Freenet hereby release each
other with effect from the Effective Date from the respective rights and
obligations in respect of a sum of RMB30,309,834 ("Novated Loan") (being
part of the principal loan of RMB136,032,781 ("Loan") granted by WXL to
Shenzhen Freenet) assumed by each of them under Original Agreement. For the
avoidance of doubt, WXL shall remain entitled to all rights and interests
in respect of the remaining balance of the Loan (i.e. RMB105,722,947) under
the Original Agreement and Shenzhen Freenet shall remain liable for
repayment and satisfaction of and all obligations and liabilities relating
to the remaining balance of the Loan (i.e. RMB105,722,947) to WXL under the
Original Agreement.
2.2 SY and Shenzhen Freenet hereby respectively agree to perform obligations
and to assume liabilities towards the other under the Original Agreement on
terms and subject to conditions identical to those upon unless otherwise
indicated herein, and subject to which, corresponding obligations and
liabilities (in respect of the Novated Loan) specified in Clause 2.1 above
fall to be performed and satisfied under the Original Agreement and also
subject to Clause 2.4 hereof.
2.3 WXL hereby assigns and transfers all her rights, claims and interests in
respect of the Novated Loan, in and under the Original Agreement to SY,
such assignment and transfer shall take effect on and from the Effective
Date.
2.4 Notwithstanding anything contained in Clauses 2.1, 2.2 and 2.3 hereof, it
is agreed between the Parties that WXL shall remain liable for all
breaches, non-compliance and/or non-performance of the Original Agreement
in respect of the Novated Loan on the part of WXL prior to the date of this
Agreement and shall be held solely liable for all demands, claims, losses,
damages, costs and expenses incurred by Shenzhen Freenet and/or SY as a
result of or incidental to the aforesaid breaches, non-compliance and
non-performance and shall indemnify SY and/or Shenzhen Freenet and hold SY
and/or Shenzhen Freenet indemnified from all such demands, claims, losses,
damages, costs and expenses.
2.5 With effect from the Effective Date, Shenzhen Freenet, WXL and SY agree
that the provisions of the Original Agreement as varied and amended by this
Agreement shall be identical to those in existence prior to the execution
hereof, save insofar as the same have been varied and amended hereby.
3. CONTINUING PROVISIONS
Save as provided for herein, the Novated Agreement and all provisions
thereof will continue in full force and effect as the legal, valid and
binding obligations of each of Shenzhen Freenet, WXL and SY, enforceable in
accordance with its terms.
4. MISCELLANEOUS
4.1 If a provision of this Agreement is or becomes illegal, invalid or
unenforceable in any jurisdiction, that will not affect:
(a) the legality, validity or enforceability in that jurisdiction of any
other
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provision of this Agreement; or
(b) the legality, validity or enforceability in any other jurisdiction of
that or any other provision of this Agreement.
4.2 This Agreement shall be subject to, governed by and construed in accordance
with the laws of Hong Kong, the Special Administrative Region of the
People's Republic of China ("Hong Kong") and the parties hereby irrevocably
agrees to submit to the non-exclusive jurisdiction of the courts in Hong
Kong.
4.3 This Agreement may be executed in any number of counterparts and by any
party hereto in separate counterparts, each of which shall be deemed to be
an original and all of which, when taken together, shall constitute one and
the same document.
IN WITNESS whereof this Agreement shall be deemed to have been executed on the
date first above written.
Signed by )
WANG XIU LING )
in the presence of )
)
Signed by )
SHENG YONG )
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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