LOAN CANCELLATION AND NOTE ASSIGNMENT AGREEMENT
Exhibit
10.6
This
LOAN CANCELLATION AND NOTE
ASSIGNMENT AGREEMENT (this “Agreement”), dated as of July
30, 2010, is by and among China Broadband, Inc, a Nevada corporation (the “Company”) and Xxxxxx Xxxxxxxx,
an individual (the “Investor”; together with the
Company, the “Parties”). Capitalized
terms not otherwise defined herein shall have the meanings set forth in that
certain Series B Preferred Stock Purchase Agreement, dated as of even date
herewith, between the Company and the Investor (the “Purchase
Agreement”).
BACKGROUND
On March 9, 2010, the Investor loaned
to the Company Six Hundred Thousand Dollars ($600,000) (the “Loan”). In June
2010, the Company repaid $580,000 of the Loan to the
Investor. Subsequent to the repayment, the Investor loaned $580,000
to Sinotop Group Limited, a Hong Kong corporation (“Sinotop”), as evidenced by the
issuance of a note to the investor (the “Sinotop Note”). The
Company desires to sell Units to the Investor pursuant to the terms and
conditions set forth in the Purchase Agreement. In addition, the
Company desires that the Investor purchase an additional $600,000 worth of Units
pursuant to the Purchase Agreement through (i) the cancellation of the remaining
$20,000 worth of indebtedness evidenced by the Loan (the “Loan Cancellation”) and (ii)
the assignment of the Sinotop Note to the Company (the “Note
Assignment”). As further inducement for the Investor to enter
into this Agreement, the Company has agreed to issue the Investor, an additional
Warrant to purchase twenty-four million (24,000,000) shares of the Company’s
Common Stock at an exercise price of $0.05 per share.
It is a condition precedent to the
closing under the Purchase Agreement that the Investor and the Company enter
into the present Agreement.
AGREEMENT
In
consideration of the mutual representations, warranties and covenants contained
herein, and intending to be legally bound hereby, and subject to the
satisfaction of the conditions set forth in Section 5 hereof, the Parties hereto
agree as follows:
1. Loan
Cancellation. The Investor hereby agrees that all
amounts owed and outstanding under Loan are hereby cancelled and that the
Company has no further obligations under the Loan whatsoever and that the Loan
and all evidences thereof are hereby terminated and forever
discharged.
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2. Note
Assignment. The Investor hereby assigns, grants, transfers,
conveys and relinquishes to the Company, and the Company hereby accepts from the
Investor, all of the right, title and interest of the Investor in the Sinotop
Note. The Investor represents and warrants to the Company that (i)
the Investor owns the Sinotop Note free and clear of any lien, encumbrance,
claim or interest of any kind, and (ii) there are no restrictions or conditions
to the transfer of the Sinotop Note. The Investor agrees that, except
for the foregoing representations and warranties, the Sinotop Notes are
transferred without any warranties or representations of any kind, express or
implied.
3. Purchase of
Units. As consideration for the Loan Cancellation and the Note
Assignment, the Company hereby agrees to (i) issue to the Investor 1,200,000
Units and (ii) a Warrant to purchase 24,000,000 Warrant Shares, on terms and
conditions identical those contained in the Purchase Agreement, which terms and
conditions are incorporated herein by reference.
4. Representations and Warranties of the
Company. The Company hereby represents and warrants that the
representations and warranties made by the Company in Section 5 of the Purchase
Agreement qualified as to materiality shall be true and correct at all times
prior to and on the Closing Date, except to the extent any such representation
or warranty expressly speaks as of an earlier date, in which case such
representation or warranty shall be true and correct as of such earlier date,
and, the representations and warranties made by the Company in Section 5 of the
Purchase Agreement not qualified as to materiality shall be true and correct in
all material respects at all times prior to and on the Closing Date, except to
the extent any such representation or warranty expressly speaks as of an earlier
date, in which case such representation or warranty shall be true and correct in
all material respects as of such earlier date
5. Representations and Warranties of the
Company. The Investor hereby represents and warrants that the
representations and warranties in Section 4 of the Purchase Agreement made by
the Investor shall be true and correct in all material respects at the time of
Closing as if made on and as of such date.
6. Governing Law. All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof, and in accordance with Section 10.6 of
the Purchase Agreement.
7. Severability. If
any provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and the
parties will attempt to agree upon a valid and enforceable provision that is a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
8. Successors. This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. The Company may not assign
this Agreement or any rights or obligations hereunder without the prior written
consent of the Investor. The Investor may assign any or all of its
rights under this Agreement to any Person to whom the Investor assigns or
transfers any Securities, provided such transferee agrees in writing to be
bound, with respect to the transferred Securities, by the provisions hereof that
apply to the Investor.
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9. Entire
Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof and no party shall be liable or bound to any other in any
manner by any representations, warranties, covenants and agreements except as
specifically set forth herein and therein.
10.
Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
[Signature
Page Follows]
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IN WITNESS WHEREOF, the
parties hereto have caused this Loan Cancellation and Note Assignment Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
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COMPANY:
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By:
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Name:
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Title:
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INVESTOR:
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Xxxxxx
Xxxxxxxx
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