Exhibit 10.39
DATED the 18th day of September 2004
XXXXXXXXX TELECOMMUNICATIONS LIMITED (1)
WIDCOMBE LIMITED (2)
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ACKNOWLEDGMENT OF DEBT AND ASSIGNMENT OF ADVANCES
AGREEMENT
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THIS AGREEMENT is made the 18th day of September 2004
BETWEEN
(1) XXXXXXXXX TELECOMMUNICATIONS LIMITED, a company incorporated in Hong Kong
whose registered office is at 00/X Xxxxxxxxx Xxxxx, 00 Xxxxxxxx Xxxx, Xxxx
Xxxx (the "HTL"); and
(2) WIDCOMBE LIMITED, a company incorporated in British Virgin Islands whose
registered office at P.O. Box 957, Offshore Incorporations Centre, Road
Town, Tortola, British Virgin Islands (the "Widcombe").
WHEREAS:
(A) Widcombe owes to HTL the Outstanding Debts (as defined below), which sum
the parties have agreed is to be repaid to HTL on the terms and subject to
the conditions set out herein.
(B) HTL has made Advances (as defined below) to HTP and wishes to transfer to
Widcombe, and Widcombe wishes to accept the assignment, of the Advances on
the terms and subject to the conditions set out in this Agreement.
NOW THIS AGREEMENT WITNESSETH as follows:
Definitions
1. In this Agreement, (including the Recitals), the words and expressions set
out below shall have the respective meanings attributed to them below
unless the context otherwise requires:
"Debt" has the meaning given in Clause 2;
"First Advance" means aggregate sum of US$14,868,227.63 advanced by HTL to
HTP during the period from 1 January 2002 to 31 December 2002 (both days
inclusive);
"Second Advance" means the aggregate sum of US$8,778,598.60 advanced by HTL
to HTP during the period from 1 January 2003 to 31 December 2003 (both days
inclusive);
"Third Advance" means the aggregate sum of US$3,960,000.00 advanced by HTL
to HTP during the period from 1 January 2004 to 30 June 2004 (both days
inclusive).
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Acknowledgement and Repayment of Debt
1. HTL hereby confirms, and Widcombe hereby acknowledges that:
(a) On or about 31 December 2002, HTL assigned to Widcombe the First
Advance for a consideration payable by Widcombe to HTL of
US$14,868,227.63 (the "First Debt");
(b) on or about 31 December 2003, HTL assigned to Widcombe the Second
Advance for a consideration payable by Widcombe to HTL of
US$8,778,598.60 (the "Second Debt");
(c) that the First Debt and the Second Debt in the aggregate sum of
US$23,646,826.23 (the "Outstanding Debts") is an outstanding debt owed
by Widcombe to HTL as at the date of this Agreement.
2. The Outstanding Debt shall be interest free and shall be repaid by Widcombe
to HTL (or its nominee) upon demand by HTL.
Assignment of the Third Advance
3. In consideration of the sum of US$3,960,000 payable by Widcombe to HTL, HTL
as legal and beneficial owner of the Third Advance hereby assigns unto
Widcombe absolutely all its rights, title and interest in the Third Advance
together with all rights attaching thereto.
4. HTL hereby warrants to Widcombe that:
(a) the Third Advance is 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) HTL has the right, authority and power to assign its benefit of and in
the Third Advance in the manner set out in this Agreement.
Miscellaneous
5. 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.
6. 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
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written approval of the other party hereto, save and except a disclosure of
this Agreement to HTP.
Nothing in this Clause 6 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
Xxxxxxxxx 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.
7. 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 5. 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: Xxxxxxxxx Telecommunications Limited
Address: 00xx Xxxxx, Xxxxxxxxx Xxxxx, 00 Xxxxxxxx Xxxx, Xxxx Xxxx
Attention: The Company Secretary
Fax No.: (000) 0000 0000
Assignee: Widcombe Limited
Address: 00xx Xxxxx, Xxxxxxxxx Xxxxx, 00 Xxxxxxxx Xxxx, Xxxx Xxxx
Attention: The Company Secretary
Fax No.: (000) 0000 0000
6. 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
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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 Agreement has been duly signed on the date first above
written.
Signed by Xxxxx Xxxx )
For and on behalf of )
XXXXXXXXX TELECOMMUNICATIONS ) /s/ Xxxxx Xxxx
LIMITED ) ------------------------
in the presence of : )
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Signed by Xxxx Xxxx )
For and on behalf of ) /s/ Xxxx Xxxx
WIDCOMBE LIMITED ) ------------------------
in the presence of : )
/s/ Xxxxxx X. Xxxxx
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