Exhibit 10.9


 


Loan Agreement


 


This Loan Agreement (this “Agreement”) is  made and entered into by and between the Parties below as of  the 23rd day of September, 2005 in Beijing, China:


 


(1)                        ChinaCache International Holdings Ltd. (“Lender”), a Cayman corporation, organized and
existing under the company law of the Cayman Islands, British
West Indies (“Cayman”), with its address at Offshore Incorporations (Cayman) Limited, Scotia Center, 4th Floor, P.O. Box 2804, George
Town, Cayman Islands, British West Indies;


 


(2)                        Xiaohong Kou  (“Borrower”),
a citizen of the People’s Republic of China
(“China”) with Chinese Identification No.:               , whose address is at No.301, Unit 2, Building 3, Block 9, Liuli Bridge
Beili, Fengtai District, Beijing.


 


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


 


Whereas,


 


Borrower
holds 45% of
equity interests (“Borrower Equity Interest”) in Beijing Blue I. T. Technologies Co., Ltd. (“Borrower Company”), which is a limited company duly registered in
Beijing, China with its registered capital of RMB10,000,000.


 


Lender
intends to provide Borrower with a loan to be used for the purposes set forth
under this Agreement. After friendly consultation, the Parties agree as follows:


 


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 4,500,000 (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:


 


1.1.1                     30
days elapse after  Borrower receives a written notice from Lender requesting repayment of the Loan;


 


1.1.2                     Borrower’s death, lack
or limitation of civil capacity;


 


1.1.3                     Borrower ceases (for any reason) to be an employee of Lender, Borrower Company or
their
affiliates;


 


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


 


1

















 


1.1.5                     Any third party filed a claim against Borrower that exceeds RMB  100,000;  or


 


1.1.6                     According to the applicable laws of China, foreign
investors are permitted to invest in the value-added telecommunication
business, including Internet content delivery network business, and/or other business approved by Lender 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 the Exclusive Option Agreement (the
“Exclusive Option Agreement”) described
in this  Agreement.


 


1.2                       Lender agrees to remit the total 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 upon 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.


 


1.3                       Borrower agrees to accept the aforementioned Loan provided by Lender, and
hereby agrees and warrants using the Loan
to provide capital for Borrower Company to develop the business of
Borrower Company. Without Lender’s prior
written consent, Borrower  shall not use the Loan for any purpose other than as set forth herein.


 


1.4                       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.


 


1.5                       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.


 


1.6                       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.


 


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


 


2

















 


1.8                       When Borrower transfers Borrower
Equity Interest to Lender or Lender’s
designated person(s), the transfer price of such equity interest shall
equal
to the
outstanding principal of the Loan under this Agreement.   The
Loan
under this  Agreement
shall be deemed an interest-free loan.


 


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                       Borrower Company and Lender or other person (legal or natural person)
designated by Lender have officially executed an Exclusive Business Cooperation
Agreement, an Trademarks License Agreements, and an Domain Names License
Agreement (collectively “Business Agreements”), under
which Lender or other person designated by Lender, as an exclusive service provider, will provide Borrower
Company with technical service and business
consulting service.


 


2.3                       Borrower, Borrower
Company and Lender or other person
(legal or natural person) designated by Lender have executed a Share Pledge Agreement (“Share Pledge Agreement”), the
contents of which have been confirmed, and according to the Share Pledge
Agreement, Borrower agrees to pledge Borrower Equity Interest to Lender or
other person designated by Lender.


 


2.4                       Borrower, Lender and Borrower Company have officially executed an Exclusive
Option Agreement,  the contents of which have been confirmed, and under which Borrower
shall irrevocably grant Lender an exclusive option to purchase all of the Borrower Equity Interest.


 


2.5                       Borrower has executed an irrevocable Power of Attorney (“Power of
Attorney”), which authorizes Lender or Lender’s wholly-owned PRC subsidiary or
other person (legal or natural person) designated by Lender to exercise all of
Borrower’s rights as a shareholder in Borrower Company.


 


2.6                       The aforementioned Share Pledge Agreement, Power of Attorney, Exclusive Option Agreement and Business
Agreements have been entered into before or on the date of execution of this Agreement
and shall have full legal validity without any default or encumbrance related
to these agreements or contracts, and all the related filing procedures, approvals,
authorization, registrations and government procedures have been completed (as
applicable).


 


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


 


3

















 


2.8                       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:


 


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


 


3.1.2                     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


 


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


 


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


 


3.2.1                     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;


 


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


 


3.2.3                     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


 


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


 


4.1.1                     to strictly abide by the provisions of the Exclusive Option  Agreement
and the Business Agreements, and to refrain
from any 


 


4

















 


action/omission
that may  affect
the effectiveness and enforceability of the Exclusive  Option Agreement
and the Exclusive Business Cooperation Agreement;


 


4.1.2                     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;


 


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


 


4.1.4                     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;


 


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


 


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


 


4.2.1                     endeavor to keep Borrower Company to engage in its
current content delivery network businesses;


 


4.2.2                     abide
by the provisions of this Agreement, the
Power of Attorney, the Share  Pledge Agreement and the Exclusive Option
Agreement, perform his obligations under this Agreement, the Power of Attorney, the
Share Pledge  Agreement and the Exclusive Option Agreement, and refrain from any  action/omission that may affect the
effectiveness and  enforceability of this Agreement, the
Power of Attorney, the Share Pledge
Agreement and  the Exclusive Option Agreement;


 


4.2.3                     not 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;


 


4.2.4                     cause
any shareholders’ meeting and/or the board of
directors of Borrower 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;


 


4.2.5                     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 


 


5

















 


investment in any person, without  the prior written consent of Lender;


 


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


 


4.2.7                     to
the extent necessary to maintain his ownership of the Borrower Equity Interest,
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;


 


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


 


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


 


4.2.10               to the extent permitted by the laws of China, at the request of Lender  at any time, 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 Borrower Company to waive their right of first refusal  with respect to the share transfer described
in this Section;


 


4.2.11               to the extent permitted by the laws of China, at the request of Lender  at any time, cause the other shareholders of
Borrower 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;


 


4.2.12               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


 


4.2.13               without the prior written consent of Lender, not
to cause Borrower Company 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


 


5.1                       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 


 


6

















 


Parties
breach this Agreement, each Party shall be liable for its respective breach.


 


5.2                       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


 


6.1                    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:


 


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


 


6.1.2                     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).


 


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


 


	
  Lender:

  	
   

  	
  ChinaCache International
  Holdings Ltd.

  
	
  Address:

  	
   

  	
  Offshore Incorporations
  (Cayman) Limited, Scotia Center, 4th Floor, P.O. Box 2804, George Town, Cayman
  Islands, British West Indies, Cayman Islands, British West Indies

  
	
  Attn:

  	
   

  	
  General Manager

  
	
  Phone:

  	
   

  	
  6437 3399

  
	
  Facsimile:

  	
   

  	
  6437 4251

  



 


Borrower: Xiaohong Kou


Address: No.301, Unit 2, Building 3, Block 9, Liuli Bridge
Beili, Fengtai District, Beijing


Phone: 6437 3399 ext. 202


 


6.3                     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.


 


7.                  Confidentiality


 


The Parties acknowledge that any oral or
written information exchanged among  them with respect to this Agreement is confidential information. The
Parties  shall
maintain the confidentiality of all such information, and without  the written 


 


7

















 


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 (c) information required to be disclosed by
any Party to  its legal counsel or financial advisor regarding the transaction
contemplated  hereunder, and such 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.


 


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 


 


8

















 


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.


 


9

















 


	
  Lender:      ChinaCache International Holdings Ltd.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Xiaohong Kou

  	
   

  
	
  Name:

  	
  Xiaohong Kou

  	
   

  
	
  Title:

  	
  Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Borrower: Xiaohong
  Kou

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Xiaohong Kou

  	
   

  



 


10














 


Loan Agreement


 


This Loan Agreement (this “Agreement”) is  made and entered into by and between the Parties below as of  the 23rd day of September, 2005 in Beijing, China:


 


(1)                        ChinaCache International Holdings Ltd. (“Lender”), a Cayman corporation, organized and
existing under the company law of the Cayman Islands, British
West Indies (“Cayman”), with its address at Offshore Incorporations (Cayman) Limited, Scotia Center, 4th Floor, P.O. Box 2804, George
Town, Cayman Islands, British West Indies;


 


(2)                        Song Wang
(“Borrower”), a citizen of the People’s
Republic of China (“China”) with Chinese Identification No.:           , whose address is at No.4,
Unit 8, No.2 Xilangxia Hutong, Xicheng District, Beijing.


 


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


 


Whereas,


 


Borrower
holds 55% of
equity interests (“Borrower Equity Interest”) in Beijing Blue I. T. Technologies Co., Ltd. (“Borrower Company”), which is a limited company duly registered in
Beijing, China with its registered capital of RMB10, 000,000.


 


Lender
intends to provide Borrower with a loan to be used for the purposes set forth
under this Agreement. After friendly consultation, the Parties agree as follows:


 


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 5,5 00,000 (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:


 


1.1.1                     30 days elapse after  Borrower receives a written notice from Lender requesting repayment of the Loan;


 


1.1.2                     Borrower’s death, lack or limitation of civil capacity;


 


1.1.3                     Borrower ceases (for any reason) to be an employee
of Lender, Borrower Company or their affiliates;


 


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


 


1

















 


1.1.5                     Any third party filed a claim against Borrower
that exceeds RMB 100,000; or


 


1.1.6                     According to the applicable laws of China, foreign
investors are permitted to invest in the value-added telecommunication
business, including Internet content delivery network business, and/or other
business approved by Lender 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
the Exclusive Option Agreement (the “Exclusive Option Agreement”) described in
this Agreement.


 


1.2                       Lender agrees to remit the total 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 upon 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.


 


1.3                       Borrower agrees to accept the aforementioned Loan
provided by Lender, and hereby agrees and warrants using the Loan to provide capital
for Borrower Company to develop the business of Borrower Company. Without
Lender’s prior written consent, Borrower shall not use the Loan for any purpose
other than as set forth herein.


 


1.4                       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.


 


1.5                       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.


 


1.6                       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.


 


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


 


2

















 


1.8                       When Borrower transfers Borrower Equity Interest
to Lender or Lender’s designated person(s), the transfer price of such equity
interest shall equal to the outstanding principal of the Loan under this
Agreement.  The Loan under this Agreement
shall be deemed an interest-free loan.


 


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                       Borrower Company and Lender or other person (legal
or natural person) designated by Lender have officially executed an Exclusive
Business Cooperation Agreement, an Trademarks License Agreements, and an Domain
Names License Agreement (collectively “Business Agreements”), under which Lender
or other person designated by Lender, as an exclusive service provider, will
provide Borrower Company with technical service and business consulting
service.


 


2.3                       Borrower, Borrower Company and Lender or other
person (legal or natural person) designated by Lender have executed a Share
Pledge Agreement (“Share Pledge Agreement”), the contents of which have been
confirmed, and according to the Share Pledge Agreement, Borrower agrees to
pledge Borrower Equity Interest to Lender or other person designated by Lender.


 


2.4                       Borrower, Lender and Borrower Company have officially
executed an Exclusive Option Agreement, the contents of which have been
confirmed, and under which Borrower shall irrevocably grant Lender an exclusive
option to purchase all of the Borrower Equity Interest.


 


2.5                       Borrower has executed an irrevocable Power of
Attorney (“Power of Attorney”), which authorizes Lender or Lender’s
wholly-owned PRC subsidiary or other person (legal or natural person)
designated by Lender to exercise all of Borrower’s rights as a shareholder in Borrower
Company.


 


2.6                       The aforementioned Share Pledge Agreement, Power
of Attorney, Exclusive Option Agreement and Business Agreements have been
entered into before or on the date of execution of this Agreement and shall
have full legal validity without any default or encumbrance related to these
agreements or contracts, and all the related filing procedures, approvals, authorization,
registrations and government procedures have been completed (as applicable).


 


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


 


3

















 


2.8                       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:


 


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


 


3.1.2                     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


 


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


 


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


 


3.2.1                     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;


 


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


 


3.2.3                     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


 


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


 


4.1.1                     to strictly abide by the provisions of the
Exclusive Option Agreement and the Business Agreements, and to refrain from any



 


4

















 


action/omission
that may  affect
the effectiveness and enforceability of the Exclusive  Option Agreement
and the Exclusive Business Cooperation Agreement;


 


4.1.2                     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;


 


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


 


4.1.4                     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;


 


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


 


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


 


endeavor to keep Borrower Company to engage in its
current content delivery network businesses;


 


4.2.1                     abide by the provisions of this Agreement, the
Power of Attorney, the Share Pledge Agreement and the Exclusive Option
Agreement, perform his obligations under this Agreement, the Power of Attorney,
the Share Pledge Agreement and the Exclusive Option Agreement, and refrain from
any action/omission that may affect the effectiveness and enforceability of
this Agreement, the Power of Attorney, the Share Pledge Agreement and the
Exclusive Option Agreement;


 


4.2.2                     not 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;


 


4.2.3                     cause any shareholders’ meeting and/or the board
of directors of Borrower 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;


 


4.2.4                     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 


 


5

















 


investment
in any person, without  the prior written consent of Lender;


 


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


 


4.2.6                     to the extent necessary to maintain his ownership
of the Borrower Equity Interest, 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;


 


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


 


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


 


4.2.9                     to the extent permitted by the laws of China, at
the request of Lender at any time, 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 Borrower Company to waive their
right of first refusal with respect to the share transfer described in this Section;


 


4.2.10               to the extent permitted by the laws of China, at
the request of Lender at any time, cause the other shareholders of Borrower
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;


 


4.2.11               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


 


4.2.12               without the prior written consent of Lender, not
to cause Borrower Company 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


 


5.1                       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 


 


6

















 


Parties
breach this Agreement, each Party shall be liable for its respective breach.


 


5.2                       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


 


6.1                       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:


 


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


 


6.1.2                     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).


 


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


 


	
  Lender:

  	
   

  	
  ChinaCache International
  Holdings Ltd.

  
	
  Address:

  	
   

  	
  Offshore Incorporations
  (Cayman) Limited, Scotia Center, 4th Floor, P.O. Box 2804, George Town, Cayman
  Islands, British West Indies, Cayman Islands, British West Indies

  
	
  Attn:

  	
   

  	
  General Manager

  
	
  Phone:

  	
   

  	
  6437 3399

  
	
  Facsimile:

  	
   

  	
  6437
  5315

  



 


Borrower: Song
Wang


Address: No.4, Unit 8,
No.2 Xilangxia Hutong, Xicheng District, Beijing


Phone: 6437 3399 ext 201


 


6.3                     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.


 


7.                  Confidentiality


 


The Parties acknowledge that any oral or
written information exchanged among  them with respect to this Agreement 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 


 


7

















 


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 (c) information required to be disclosed by
any Party to  its legal counsel or financial advisor regarding the transaction
contemplated  hereunder, and such 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.


 


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 


 


8

















 


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.


 


9

















 


	
  Lender:  ChinaCache International Holdings Ltd.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Xiaohong Kou

  	
   

  
	
  Name:

  	
  Xiaohong Kou

  	
   

  
	
  Title:

  	
  Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Borrower: Song
  Wang

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Song Wang

  	
   

  



 


10