Exhibit 10.28


 


Loan
Agreement


 


This
Loan Agreement (this “Agreement”) is made and entered into by and between the
Parties below as of January 10, 2008 in Beijing, People’s Republic of China (the “PRC” or “China”):


 


(1)     ChinaCache
Network Technology (Beijing) Co., Ltd.  (“Lender”), a limited liability company organized and
existing under the laws of the PRC, with its address at Floor 6, Tower A,
Galaxy Plaza, No.10 Jiu Xian Qiao Middle Road, Chaoyang District, 100016,
Beijing;


 


(2)     Huiling Ying (“Borrower”), a citizen of the PRC with Chinese
Identification No.:            .


 


Each of the Lender and the Borrower shall be hereinafter
referred to as a “Party” respectively, and as the “Parties” collectively.


 


Whereas:


 


1.                             Borrower intends to acquire a limited liability company— Shanghai Jnet Telcom Co., Ltd. (“Domestic Company”) in Shanghai,
China.  The proposed registered capital
of the Domestic Company is RMB1,000,000, among which, Borrower intends to
purchase 50% of the equity interest of the Domestic Company (“Borrower Equity Interest”) with RMB500,000;


 


2.                             Lender intends to provide Borrower with a loan to
be used for the purposes set forth under this Agreement.


 


1.                   Loan


 


1.1                      In accordance with the terms and conditions of this Agreement, Lender
agrees to provide a loan in USD equivalent to the amount of RMB 500,000 (the “Loan”)
to Borrower. The term of the Loan
shall be ten years
from the date of this Agreement, which may be extended upon mutual written
consent of the Parties.  During the term of the Loan or the extended term of the Loan, Borrower shall immediately repay
the full amount of the Loan  in the event any one or more of the following  circumstances occur:


 


30
days elapse after  Borrower receives a written notice from Lender requesting repayment of the Loan;


 


Borrower
ceases (for any reason) to be an employee of Lender or its affiliates;


 


Borrower
engages in criminal act or is involved in criminal activities;


 


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According
to the applicable laws of China, foreign investors are permitted to invest in
the value-added telecommunication services business in China with a controlling
stake or in the form of wholly-foreign-owned enterprises, the relevant competent
authorities of China begin to approve such investments, and Lender exercises
the exclusive option under Section 4.1.1 and 4.2.5 of the Exclusive Option
Agreement (the “Exclusive Option Agreement”) described in this Agreement.


 


Lender agrees to remit such amount of the Loan to the
account designated by Borrower within 20 days after receiving a written
notification from the Borrower regarding the same, provided that all the conditions
precedent in Section 2 are fulfilled. Borrower shall provide Lender with a
written receipt for the Loan on the date of receiving the Loan. The Loan
provided by Lender under this Agreement shall inure to Borrower’s benefit only
and not to Borrower’s successors or assigns.


 


Borrower agrees to accept the aforementioned Loan
provided by Lender, and hereby agrees and warrants using the Loan to purchase
the registered capital of the Domestic Company in Shanghai, China. Borrower
will thereby become a shareholder to the Domestic Company holding 50% of the
latter’s equity interest (“Borrower Equity Interest”).  Borrower agree to provide a full set of the
Domestic Company’s registration documents (copies), business license and
articles of association within 60 days following the execution of this
Agreement. Without Lender’s prior written consent, Borrower shall not use the
Loan for any purpose other than as set forth herein.


 


Lender and Borrower hereby agree and acknowledge that
Borrower’s method of repayment shall be at the sole discretion of Lender, and
may at Lender’s option take the form of Borrower’s transferring the Borrower
Equity Interest in whole to Lender or Lender’s designated persons (legal or
natural persons) pursuant to the Lender’s exercise of its right to acquire the
Borrower Equity Interest under the Exclusive Option Agreement executed by
Lender, Borrower and Domestic Company.


 


Lender and Borrower hereby agree and acknowledge that
any proceeds from the transfer of the Borrower Equity Interest (to the extent
permissible) shall be used to repay the Loan to Lender, in accordance with this
Agreement and in the manner designated by Lender.


 


Lender and Borrower hereby agree and acknowledge that to
the extent permitted by applicable laws, Lender shall have the right but not
the obligation to purchase or designate other persons (legal or natural
persons) to purchase Borrower Equity Interest in part or in whole at any time,
at the price stipulated in the Exclusive Option Agreement.


 


Borrower also undertakes to execute an irrevocable Power
of Attorney (the “Power of Attorney”, please refer to Sectin 4.2.4), which
authorizes a legal or natural person designated by Lender to exercise all of
Borrower’s rights as a shareholder of Domestic Company.


 


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2.                   Conditions Precedent


 


The obligation of Lender to provide the Loan to Borrower
contemplated in Section 1.1 shall be subject to the satisfaction of the
following conditions, unless waived in writing by Lender.


 


2.1                      Lender receives the written notification for drawdown
under the Loan sent by Borrower according to Section 1.2.


 


2.2                      All the representations and warranties by Borrower
in Section 3.2 are true, complete, correct and not misleading.


 


2.3                      Borrower has not violated the covenants in Section 4
of this Agreement, and no event which may affect Borrower’s performance of its
obligations under this Agreement has occurred or is expected to occur.


 


3.                   Representations and Warranties


 


3.1                      Between the date of this Agreement and the date of
termination of this Agreement, Lender hereby makes the following
representations and warranties to Borrower:


 


Lender is a corporation duly organized and legally
existing in accordance with the laws of the PRC;


 


Lender
has the legal capacity to execute and perform this Agreement. The execution and
performance by Lender of this Agreement is consistent with Lender’s scope of
business and the provisions of Lender’s corporate bylaws and other
organizational documents, and Lender has obtained all necessary and proper
approvals and authorizations for the execution and performance of this
Agreement; and


 


This Agreement constitutes Lender’s legal, valid and
binding obligations enforceable in accordance with its terms.


 


Between the date of this Agreement and the date of
termination of this Agreement, Borrower hereby makes the following
representations and warranties:


 


Borrower
has the legal capacity to execute and perform this Agreement. Borrower has
obtained all necessary and proper approvals and authorizations for the
execution and performance of this Agreement;


 


This
Agreement constitutes Borrower’s legal, valid and binding obligations enforceable
in accordance with its terms; and


 


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There
are no disputes, litigations, arbitrations, administrative proceedings or any
other legal proceedings relating to Borrower, nor are there any potential disputes,
litigations, arbitrations, administrative proceedings or any other legal
proceedings relating to Borrower.


 


4.                   Borrower’s Covenants


 


As and when he becomes, and for so long as he remains a
shareholder of Domestic Company, Borrower covenants irrevocably that during the
term of this Agreement, Borrower shall cause Domestic Company:


 


to execute an Exclusive Option Agreement with Borrower
and Lender, according to which Borrower will irrevocably grant an exclusive
option to Lender to purchase all of the Borrower Equity Interest; to execute an
Exclusive Business Cooperation Agreement with Lender (the “Exclusive Business
Cooperation Agreement”), according to which, Lender will provide technical
service and business consultation service to Domestic Company as the exclusive
service provider; to execute the above Exclusive Option Agreement and Exclusive
Business Cooperation Agreement as soon as possible after the updated business
license of Domestic Company is issued, and to obtain all relevant governmental
approvals, registrations or filings (if necessary);


 


to strictly abide by the provisions of the Exclusive
Option Agreement and the Business Agreements, and to refrain from any
action/omission that may affect the effectiveness and enforceability of the
Exclusive Option Agreement and the Exclusive Business Cooperation Agreement;


 


at the request of Lender (or a party designated by
Lender), to execute contracts/agreements on business cooperation with Lender
(or a party designated by Lender), and to strictly abide by such
contracts/agreements;


 


to provide Lender with all of the information on
Borrower Company’s business operations and financial condition at Lender’s
request;


 


to immediately notify Lender of the occurrence or
possible occurrence of any litigation, arbitration or administrative
proceedings relating to Borrower Company’s assets, business or income;


 


at the request of Lender, to appoint any persons
designated by Lender as directors of Borrower Company;


 


without the prior written consent of Lender, not to
supplement, change, or amend its articles of association in any manner,
increase 


 


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or decreases its registered capital or change its share
capital structure in any manner.


 


to maintain its corporate existence in accordance with
good financial and commercial standars and practice, and diligently and
effectively manage its business and handle its matters;


 


without the prior written consent of Lender, not sell,
transfer, mortgage or dispose of in any other manner any legal or beneficial
interests in its assets, business or incomes, or allow establishment of any
other collateral interests thereon;


 


without the prior written consent of Lender, not to incur,
inherit, guarantee or allow the existence of any debts, except for (i) those
incurred in the ordinary or daily course of business other than by loans, and (ii) those
disclosed to Lender and to which Lender has consented to in writing;


 


to operate all of its business in ordinary course of
business to maintain its asset value;


 


without the prior written consent of Lender, not to
enter into any material contracts (for the purpose of this paragraph, if the
value of a contract exceeds RMB100,000, such contracts shall be deemed a
material contract), except for those entered into in the ordinary course of
business;


 


without the prior written consent of Lender, not to
provide loans or credit to any persons;


 


to purchase and maintain insurance with insurance company
accepted by Lender, the amount and type of such insurance shall be the same or
have the same level with those purchased by companies which operate similar business
and own similar property or assets in the same district;


 


without the prior written consent of Lender, not to
consolidate or merge with any entities, or purchase or invest in any entities;


 


to execute all necessary or appropriate documents, adopt
all necessary or appropriate actions and bring all necessary or appropriate
claims or make all necessary or appropriate defends to all claims so as to maintain
ownership to all of its assets;


 


without the prior written consent of Lender, not to
issue dividends in any forms to the shareholders, however, upon request by
Lender, to distribut all or part of its distributable profits to the
shareholders.


 


Borrower covenants that during the term of this
Agreement, he shall:


 


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To compelte the acquisition of the Domestic Company in
accordance with the PRC laws within 60 days after the execution of this
Agreement;


 


To make all contributions corresponding to the Borrower
Equity Interest in accordance with relevant laws, and provide Lender with a
capital verification report regarding such contribution issued by qualified
accounting firm;


 


To use best efforts to cause Domestic Company to engage
in relevant value-added telecommunication service business, the detaild
business scope shall be subject to its business license; Borrower shall cause
Domestic Company to obtain all governmental approvals, authorizations,
licenses, registrations and filings necessary for engagement in the business
stated in its business license and to own its assets, and provide relevant
governmental approval and filing documents to Lender for its verification;


 


to execute an irrevocable Power of Attorney, which
authorizes Lender or Lender’s designated person (legal or natural person) to
exercise all of Borrower’s rights as a shareholder in Domestic Company, and
refrain from exercising such shareholder rights except for those otherwise
specified in this Agreement, the Share Pledge Agreement (defined as follows) or
by Lender.


 


to execute an Exclusive Option Agreement with Lender and
Domestic Company, under which Borrower shall irrevocably grant Lender an
exclusive option to purchase all of the Borrower Equity Interest;


 


to execute a Share Pledge Agreement with Lender and
Domestic Company (“Share Pledge Agreement”), under which Borrower agrees to
pledge all of Borrower Equity Interest to Lender;


 


To execute the above power of attorney, Exclusive Option
Agreement and Share Pledge Agreement as soon as possible after issuance of the
business license of Domestic Company, and obtain all relevant governmental
approvals, registrations or filings (if necessary);


 


To strictly comply with this Agreement, the power of attorney,
Share Pledge Agreement and Exclusive Option Agreement, and perform its
obligations under such documents, and not no commit any actions/inactions that
may affect the validity and enforceability of such documents;


 


not to sell, transfer, mortgage or dispose of in any
other manner the legal or beneficial interest in Borrower Equity Interest, or
allow the encumbrance thereon of any security interest or the encumbrance,
except in accordance with the Share Pledge Agreement;


 


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To cause any shareholders’ meeting and/or the board of
directors of Domestic Company not to approve the sale, transfer, mortgage or
disposition in any other manner of any legal or beneficial interest in Borrower
Equity Interest, or allow the encumbrance thereon of any security interest,
except to Lender or Lender’s designated person;


 


To cause any shareholders’ meeting and/or the board of
directors of the Borrower Company not to approve the merger or consolidation of
Borrower Company with any person, or its acquisition of or investment in any
person, without the prior written consent of Lender;


 


To immediately notify Lender of the occurrence or
possible occurrence of any litigation, arbitration or administrative
proceedings relating to Borrower Equity Interest;


 


to the extent necessary to maintain his ownership of the
Borrower Equity Interest, to execute all necessary or appropriate documents,
take all necessary or appropriate actions and file all necessary or appropriate
complaints or raise necessary and appropriate defense against all claims;


 


without the prior written consent of Lender, to refrain
from any action / omission that may have a material impact on the assets,
business and liabilities of Borrower Company;


 


To appoint any designee of Lender as director of
Borrower Company, at the request of Lender;


 


to the extent permitted by the laws of China, at the
request of Lender at any time, to promptly and unconditionally transfer all of
Borrower Equity Interest to Lender or Lender’s designated representative(s) at
any time, and cause the other shareholders of Domestic Company to waive their
right of first refusal with respect to the share transfer described in this
Section;


 


to the extent permitted by the laws of China, at the
request of Lender at any time, to cause the other shareholders of Domestic
Company to promptly and unconditionally transfer all of their equity interests
to Lender or Lender’s designated representative(s) at any time, and
Borrower hereby waives his right of first refusal (if any) with respect to the
share transfer described in this Section;


 


in the event that Lender purchases Borrower Equity
Interest from Borrower in accordance with the provisions of the Exclusive
Option Agreement, use such purchase price obtained thereby to repay the Loan to
Lender; and


 


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without the prior written consent of Lender, not to
supplement, change, or amend its articles of association in any manner,
increase or decreases its registered capital or change its share capital
structure in any manner.


 


5.                   Liability for Default


 


In
the event either Party breaches this Agreement or otherwise causes the
non-performance of this Agreement in part or in whole, the Party shall be
liable for such breach and shall compensate all damages (including litigation
and attorneys fees) resulting therefrom. In the event that both Parties breach
this Agreement, each Party shall be liable for its respective breach.


 


In
the event that Borrower fails to perform the repayment obligations set forth in
this Agreement, Borrower shall pay overdue interest of 0.01% per day for the
outstanding payment, until the day Borrower repays the full principal of the
Loan, overdue interests and other payable amounts.


 


6.                   Notices


 


All notices and other communications required or
permitted to be given pursuant to this Agreement shall be delivered personally
or sent by registered mail, postage prepaid, by a commercial courier service or
by facsimile transmission to the address of such Party set forth below.  A confirmation copy of each notice shall also
be sent by email.  The dates on which
notices shall be deemed to have been effectively given shall be determined as
follows:


 


Notices given by personal delivery, by courier
service or by registered mail, postage prepaid, shall be deemed effectively
given on the date of delivery.


 


Notices given by facsimile transmission shall be
deemed effectively given on the date of successful transmission (as evidenced
by an automatically generated confirmation of transmission).


 


For the purpose of notices, the addresses of the
Parties are as follows:


 


Lender:                          ChinaCache
Network Technology (Beijing) Co., Ltd.


Address:                         Floor 6, Tower A, Galaxy Plaza, No.10 Jiu Xian Qiao Middle Road,
Chaoyang District, 100016, Beijing


Facsimile:                                        + 8610-6437 4251


 


Borrower:   Huiling
Ying


Address:                         Floor 6, Tower A, Galaxy Plaza, No.10 Jiu Xian Qiao Middle Road,
Chaoyang District, 100016, Beijing


Facsimile:                                        + 8610-6437 4251


 


Any Party may at any time change its address for
notices by a notice delivered to the other Party in accordance with the terms
hereof.


 


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7.                   Confidentiality


 


The Parties acknowledge that any oral or written
information exchanged among them with respect to this Agreement, the contents
of the Agreement and the preparation or performance thereof is confidential
information. The Parties shall maintain the confidentiality of all such
information, and without the written consent of other Party, either Party shall
not disclose any relevant information to any third party, except in the
following circumstances: (a) such information is or will be in the public
domain (provided that this is not the result of a public disclosure by the
receiving party); (b) information disclosed as required by applicable laws
or rules or regulations of any stock exchange, or orders by governmental
authorities or court; or (c) information required to be disclosed by any
Party to its shareholders, investors, legal counsel or financial advisor regarding
the transaction contemplated hereunder, and such shareholders, investors, legal
counsel or financial advisor are also bound by confidentiality duties similar
to the duties in this section. Disclosure of any confidential information by
the staff members or agency hired by any Party shall be deemed disclosure of
such confidential information by such Party, which Party shall be held liable
for breach of this Agreement. This section shall survive the termination of
this Agreement for any reason.


 


8.                   Governing Law and Resolution of Disputes


 


8.1            The
execution, effectiveness, construction, performance, amendment and termination
of this Agreement and the resolution of disputes shall be governed by the laws
of China.


 


8.2            In
the event of any dispute with respect to the construction and performance    of this Agreement, the Parties shall first
resolve the dispute through friendly negotiations. In the event the Parties
fail to reach an agreement on the dispute within 30 days after either Party’s
request to the other Party for resolution of the dispute through negotiations,
either Party may submit the relevant dispute to the China International
Economic and Trade Arbitration Commission for arbitration, in accordance with
its then effective arbitration rules. The arbitration shall be conducted in
Beijing, and the language used in arbitration shall be Chinese. The arbitration
award shall be final and binding on all Parties.


 


8.3            Upon the occurrence of any disputes arising from
the construction and performance of this Agreement or during the pending
arbitration of any dispute, except for the matters under dispute, the Parties
to this Agreement shall continue to exercise their respective rights under this
Agreement and perform their respective obligations under this Agreement.


 


9.                  Miscellaneous


 


9.1            This Agreement shall become effective on the date
thereof, and shall expire upon the date of full performance by the Parties of
their respective obligations under this Agreement.


 


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9.2            This Agreement shall be written
in both Chinese and English language in
two
copies, each Party having one copy  with equal
legal validity. In case there is any conflict between the Chinese version and
the English version, the Chinese version shall prevail.


 


9.3            This
Agreement may be amended or supplemented through written agreement by and
between Lender and Borrower. Such written amendment agreement and/or
supplementary agreement executed by and between Lender and Borrower are an
integral part of this Agreement, and shall have the same legal validity as this
Agreement.


 


9.4            In the event that one or several of the provisions
of this Agreement are found to be invalid, illegal or unenforceable I n any
aspect in accordance with any laws or regulations, the validity, legality or
enforceability of the remaining provisions of this Agreement shall not be
affected or compromised in any respect. The Parties shall strive in good faith
to replace such invalid, illegal or unenforceable provisions with effective provisions
that accomplish to the greatest extent permitted by law the intentions of the
Parties, and the economic effect of such effective provisions shall be as close
as possible to the economic effect of those invalid, illegal or unenforceable
provisions.


 


9.5            The attachments (if any) to this Agreement shall
be an integral part of this Agreement and shall have the same legal validity as
this Agreement.


 


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IN WITNESS THEREOF, the parties have caused their authorized
representatives to sign this Loan Agreement on the date first above written.


 


 


Lender:   ChinaCache Network Technology (Beijing) Co., Ltd.


 


 


	
  By:

  	
      /s/ Song Wang

  	
   

  
	
  Name: Song Wang

  	
   

  
	
  Title: Legal Representative

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Borrower:
  Huiling
  Ying

  	
   

  
	
   

  	
   

  
	
  By:

  	
        /s/
  Huiling Ying 

  	
   

  



 


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