Exhibit 10.24
EXECUTION COPY
ASSIGNMENT AND NOVATION AGREEMENT
Assignment and Novation Agreement (this "ASSIGNMENT AND NOVATION"), dated
as of June 30, 2004 by and between Asia Netcom Corporation Limited, a company
organized and existing under the laws of Bermuda ("SELLER"); CNC Network
Corporation Limited, a company organized and existing under the laws of the
British Virgin Islands ("PURCHASER"); and China Netcom Corporation (Hong Kong)
Limited, a company organized and existing under the laws of Hong Kong ("CNC
HK").
WHEREAS, Seller and Purchaser entered into a Share Purchase and Sale
Agreement on June 30, 2004 (the "SPA") under which Seller agreed to sell and
Purchaser agreed to purchase all of the issued and outstanding shares (the
"Shares") of East Asia Netcom Limited, a company organized and existing under
the laws of Bermuda;
WHEREAS, pursuant to Section 1.2 of the SPA, in consideration of the
aforesaid sale to Purchaser of the Shares, Purchaser has delivered to Seller a
promissory note dated June 30, 2004 in the principal amount of US$43,362,136.00,
a copy of which is attached hereto as Annex A (the "NOTE");
WHEREAS, the parties hereto desire that CNC HK be substituted for Purchaser
under the Note and that Purchaser assign all of its title, rights, interests,
benefits, obligations and liabilities under the Note to CNC HK, and CNC HK
desires to assume all such title, rights, interests, benefits, obligations and
liabilities.
WHEREAS, Seller desires to consent to the substitution of CNC HK as the
Purchaser under the Note and the assignment and delegation to CNC HK of all of
Purchaser's rights, benefits, liabilities obligations thereunder, and upon such
substitution, assignment and assumption, to release Purchaser of its obligations
and liabilities under the Note.
NOW, THEREFORE, in consideration of the foregoing and the agreements set
forth in this Assignment and Novation and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by each of the
parties, the parties hereby agree as follows:
Section 1. ASSIGNMENT AND NOVATION.
(a) Purchaser hereby assigns to CNC HK all title, rights, interests,
benefits, obligations duties and liabilities arising from and under the Note.
This Assignment and Novation is a present assignment and shall be effective
immediately upon execution and delivery of this Assignment and Novation by each
of the parties hereto.
(b) CNC HK hereby accepts such assignment and assumes all the
obligations and liabilities under the Note, and agrees to fully and faithfully
pay, discharge and perform, as and when due, all such obligations and
liabilities.
(c) CNC HK is hereby substituted as the "Obligor" under the Note for
all purposes, and all references to the "Obligor" in the Note shall hereafter be
deemed to refer only to CNC HK.
Section 2. RELEASE OF PURCHASER
Seller hereby consents and agrees to the foregoing assignment and
substitution. Seller further agrees that Purchaser is hereby released and
relieved of any and all obligations and liabilities arising under or with
respect to the Note and agrees to look only to CNC HK for the performance
thereof.
Section 3. COUNTERPARTS
This Assignment and Novation may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when all of the counterparts have been signed by each of
the parties and delivered to the other parties. This Assignment and Novation
applies to, inures to the benefit of and binds all parties hereto and their
respective successors and assigns.
Section 4. FURTHER ASSURANCE
The parties agree (a) to furnish upon request to each other such
further information, (b) to execute and deliver to each other such other
documents, and (c) to do such other acts and things, all as the other party may
reasonably request for the purpose of carrying out the intent of this Assignment
and Novation.
Section 5. AMENDMENTS
No amendment, modification or waiver in respect of this Assignment and
Novation will be effective unless in writing and executed by each of the parties
or confirmed by an exchange of telexes or electronic messages on an electronic
messaging system.
Section 6. GOVERNING LAW
This Assignment and Novation shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to the
principles of conflicts of laws thereof.
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IN WITNESS WHEREOF, each of the parties hereto has executed this Assignment
and Novation or caused this Assignment and Novation to be executed by their
respective officers thereunto duly authorized as of the date first written
above.
ASIA NETCOM CORPORATION LIMITED
By: /s/ Wenlong Sun
--------------------------------------
Name: Wenlong Sun
Title: Director
CNC NETWORK CORPORATION LIMITED
By: /s/ Hu Ji
--------------------------------------
Name: Hu Ji
Title: Director
CHINA NETCOM CORPORATION (HONG KONG) LIMITED
By: /s/ Suning Tian
--------------------------------------
Name: Suning Tian
Title: Director
ANNEX A
COPY OF PROMISSORY NOTE
PROMISSORY NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED. NEITHER THIS NOTE NOR ANY INTEREST THEREIN MAY BE REOFFERED OR SOLD IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE NOTE UNDER SAID ACT
OR EVIDENCE SATISFACTORY TO CNC NETWORK CORPORATION LIMITED, THAT SUCH
REGISTRATION IS NOT REQUIRED.
US$43,362,136.00 JUNE 30, 2004
FOR VALUE RECEIVED, the undersigned, CNC Network Corporation Limited, a
company organized and existing under the laws of the British Virgin Islands
("OBLIGOR"), promises to pay to Asia Netcom Corporation Limited, a company
organized and existing under the laws of Bermuda ("HOLDER"), the principal
amount of Forty-Three Million Three Hundred and Sixty-Two Thousand and One
Hundred and Thirty-Six United States Dollars (US$43,362,136.00), as hereinafter
provided. Such principal shall be payable in money of the United States of
America lawful at such time for the payment of public and private debts.
Payment. The entire principal amount of this Note shall be payable on
demand.
Interest. No interest shall be payable on any principal amount outstanding.
Method of Payment. Payment of principal hereunder shall be made by wire
transfer of next-day funds to the account of Holder specified below:
Name of Account: Asia Netcom Corporation Limited
Account Number: 01-56-00607-5
Name of Bank: Industrial and Commercial Bank of China (Asia) Ltd
Bank I.D. Number: 072
Branch code: 861
SWIFT Code: XXXXXXXX
Waivers. Obligor hereby waives presentment, diligence, protest and demand,
notice of protest, demand, dishonor and nonpayment of this Note, and all other
notices of any kind in connection with the delivery, acceptance, performance,
default or enforcement of this Note.
Successors. The provisions hereof shall be binding upon the legal
representatives, successors and assigns of Obligor and shall inure to the
benefit of Holder and its successors by operation of law.
Governing Law. This Note shall be governed by and construed in accordance
with the laws of the State of New York without giving effect to the principles
of conflicts of laws thereof.
IN WITNESS WHEREOF, Obligor has executed this Note as of the day and year
first above written.
CNC Network Corporation Limited
By:____________________________
Name:
Title:
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