Exhibit 10.5
EXECUTION COPY
DATED the 17th day of September 2004
▇▇▇▇▇▇▇▇▇ INTERNATIONAL LIMITED (1)
▇▇▇▇▇▇▇▇▇ TELECOMMUNICATIONS
INTERNATIONAL (CAYMAN) HOLDINGS LIMITED (2)
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LOAN ASSIGNMENT AGREEMENT
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THIS LOAN ASSIGNMENT AGREEMENT is made the 17th day of September 2004
BETWEEN
(1) ▇▇▇▇▇▇▇▇▇ INTERNATIONAL LIMITED, a company incorporated in Hong Kong whose
registered office is at ▇▇/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
(the "Assignor"); and
(2) ▇▇▇▇▇▇▇▇▇ TELECOMMUNICATIONS INTERNATIONAL (CAYMAN) HOLDINGS LIMITED, a
company incorporated in the Cayman Islands whose registered office is at
Century Yard, Cricket Square, ▇▇▇▇▇▇▇▇ Drive, P.O. Box 2681GT, ▇▇▇▇▇▇ Town,
Grand Cayman, British West Indies, Cayman Islands (the "Assignee").
WHEREAS:
(A) Pursuant to a Sale and Purchase Agreement of even date hereof (the "Share
Sale and Purchase Agreement"), HTI (BVI) Holdings Limited agreed to
purchase, and ▇▇▇▇▇▇▇▇▇ Telecommunications Limited agreed to sell, 1 share
of US$1.00 in ▇▇▇▇▇▇▇▇▇ Telecommunications (HK) Holdings Limited, which in
turn holds interest in the group companies as set out in Schedule 2
thereto.
(B) Whampoa Holdings Limited is at 30 June 2004 indebted to the Assignor in the
amount of HK$2,901,752,190(the "Loan")
(C) The Loan is repayable on demand and is interest free.
(D) Subject to completion of the Share Sale and Purchase Agreement, the
Assignee agreed to acquire from the Assignor, and the Assignor agreed to
sell to the Assignee, all the benefit and interest of the Assignor in the
Loan on the terms and subject to the conditions set out herein.
NOW THIS AGREEMENT WITNESSETH as follows:
1. In consideration of the sum of HK$2,901,752,190 (receipt of which is hereby
acknowledged by the Assignor), the Assignor as legal and beneficial owner
hereby assigns unto the Assignee absolutely all its rights, title and
interest in the Loan together with all rights attaching thereto (the
"Assigned Rights") TO HOLD the
same unto the Assignee absolutely. The Assignee hereby acquires the
Assigned Rights absolutely.
2. The Assignor hereby warrants to the Assignee that:
(a) the Loan is repayable on demand and is still valid and subsisting and
free from all claims, charges, liens, encumbrances, options, equities
of any kind, compromise, releases, waivers, defects, and any agreement
for any of the same; and
(b) the Assignor has the right, authority and power to assign its benefit
of and in the Loan in the manner set out in this Agreement.
3. The parties hereto acknowledge and confirm that as from the date hereof the
Loan is owed to the Assignee, that the Assignee is entitled at any time and
from time to time to require repayment of all or part of the same
(including but without limitation interest accrued from time to time
thereon) and that all payments due in respect of the Loan and all its
obligations in respect thereof will be made and discharged directly to the
Assignee.
4. The Assignor hereby covenants with the Assignee to pay to the Assignee
immediately on receipt any payments or other money which may be received by
the Assignor from Whampoa Holdings Limited in respect of the Loan and until
such payment to hold the same on trust for the Assignee.
5. All payments made by the Assignee under Clause 1 of this Agreement shall be
made gross, free of any rights of counterclaim or set-off and without any
deductions or withholdings of any nature.
6. Each party hereto undertakes to the other parties that it will do all such
things and execute all such documents as may be necessary or desirable to
carry into effect or to give legal effect to the provisions of this
Agreement and the transactions hereby contemplated.
7. Each party undertakes that it shall not reveal, and shall cause its
shareholders, directors, senior executives, employees and agents not to
reveal, to any third party any information concerning the transactions
contemplated hereunder and/or the contents hereof (collectively,
"Confidential Information") without the prior written approval of the other
party hereto.
Nothing in this Clause 7 shall prevent a party hereto from using or
disclosing any Confidential Information which (a) is already known by such
party at the time it is disclosed to it; (b) has been rightfully received
by such party from a third party without a breach of an obligation of
confidentiality; (c) is in the public domain through no wrongful act of
such party; (d) is independently developed by such party without use,
directly or indirectly, of the Confidential Information; (e) is
required to be disclosed by applicable law, regulation or legal process or
by judicial order; or (f) is in connection with the proposed spin off and
listing of ▇▇▇▇▇▇▇▇▇ Telecommunications International Limited.
Notwithstanding anything contained in this Agreement, each party
acknowledges and agrees that the other party(ies) may be required by law or
any competent regulatory body (including but without limitation to The
Stock Exchange of Hong Kong Limited and the Securities and Futures
Commission) to issue time sensitive and/or urgent announcements relating to
this Agreement or matters contemplated under this Agreement. Each party
shall procure to be provided to the other parties a copy of each drafts of
such time sensitive and/or urgent announcements promptly, and shall
consider in good faith any comments provided to it in a timely manner by
the other parties to the extent reasonably practicable within the time
frame stipulated by law or by the relevant competent regulatory body.
8. Any notice required or permitted to be given by or under this Agreement
shall be given in writing by delivering it to the party concerned to the
address or facsimile number of that party below or such other address or
facsimile number as the party concerned may have notified to the others in
accordance with this Clause 8. Any such notice shall be deemed to be served
if sent by hand at the time of delivery, or if sent by facsimile, on the
date of complete transmission, or if sent by post, the third day after
posting, or if sooner upon acknowledgement of receipt by or on behalf of
the party to which it is addressed.
Assignor:
Address: ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Attention: Company Secretary
Fax No.: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Assignee:
Address: ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Attention: Company Secretary
Fax No.: (▇▇▇) ▇▇▇▇ ▇▇▇▇
9. This Agreement is governed by and shall be construed in accordance with the
laws of the Hong Kong Special Administrative Region of the People's
Republic of China ("Hong Kong") for the time being in force and the parties
hereto hereby irrevocably submit to the non-exclusive jurisdiction of the
Hong Kong courts in relation to any proceedings arising out of or in
connection with this Agreement.
IN WITNESS whereof this Loan Assignment Agreement has been duly signed on the
date first above written.
Signed by )
▇▇▇▇▇ ▇▇▇▇ )
For and on behalf of ) /s/ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ INTERNATIONAL LIMITED ) --------------------------------
was hereunto affixed in the presence of : )
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇
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Signed by )
▇▇▇▇ ▇▇▇▇ )
For and on behalf of )
▇▇▇▇▇▇▇▇▇ TELECOMMUNICATIONS ) /s/ ▇▇▇▇ ▇▇▇▇
INTERNATIONAL (CAYMAN) HOLDINGS ) --------------------------------
LIMITED )
was hereunto affixed in the presence of : )
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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