LOAN ASSIGNMENT AGREEMENT among GIGAMEDIA ASIA PACIFIC LIMITED and INFOCOMM ASIA HOLDINGS PTE. LTD. and SPRING ASIA LIMITED relating to ASSIGNMENT OF SHAREHOLDER LOAN AGREEMENT

 

 

 

 

 

 

THIS LOAN ASSIGNMENT AGREEMENT (“Agreement”) is dated June 1, 2010 (the “Effective Date”) and made

GIGAMEDIA ASIA PACIFIC LIMITED (the “Lender”), a company duly organised and existing under the laws of the British Virgin Islands with its registered office at Overseas Management Company Trust (B.V.I.) Ltd., OMC ▇▇▇▇▇▇▇▇, ▇.▇.▇▇▇ 3152, Road Town, Tortola, British Virgin Islands;

INFOCOMM ASIA HOLDINGS PTE. LTD. (the “Borrower”), a company incorporated in Singapore with its registered office at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ #▇▇-▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇; and

SPRING ASIA LIMITED (Certificate of Incorporation No. LL017149) (the “Assignee”), a company duly organised and existing under the laws of Labuan with its registered office at ▇▇▇ ▇ & ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ Federal Territory of Labuan.

WHEREAS, the Lender and the Borrower entered into the Shareholder Loan Agreement (as defined below) pursuant to which the Lender advanced a loan facility to the Borrower in an principal amount of US$7,000,000 (the “Loan”);

WHEREAS, the Lender and the Borrower entered into the Amendment to Shareholder Loan Agreement (as defined below); and

WHEREAS, the Lender desires to assign and transfer to the Assignee, and the Assignee wishes to accept the assignment and transfer from the Lender of, all of the Lender’s rights and interests as a lender under the Shareholder Loan Agreement.

Definitions

The headings and sub-headings in this Agreement are inserted for convenience only and shall not affect the interpretation of this Agreement.

Effective as of the Effective Date, the Lender hereby assigns and transfers to the Assignee all of its rights and interests as the lender under the Shareholder Loan Agreement and the Amendment to Shareholder Loan Agreement (the “Assignment”). Such assigned and transferred rights and interests include but not limited to its rights and interests with respect to the outstanding principal amount of US$7,000,000 and the interest accruing in accordance with the Shareholder Loan Agreement and the Amendment to Shareholder Loan Agreement on and after the Effective Date.

Effective as of the Effective Date, the Borrower accepts the Assignment and assumes and agrees to perform toward the Assignee, as and when due, any and all obligations of the Borrower under the Shareholder Loan Agreement and the Amendment to Shareholder Loan Agreement.

It is a duly organised and validly existing legal person in good standing under the laws of its jurisdiction of incorporation or establishment.

It possesses full power and authority to enter into this Agreement and to perform its obligations hereunder and thereunder.

The execution and performance of this Agreement will not constitute a breach or violation of any material contract or agreement to which it is a party.

It is in compliance with all material laws, regulations and governmental orders, and all interpretations thereof, of all governmental authorities having jurisdiction over it, its business, finances, operations, property or any other matter.

Its representative, whose signature is affixed hereto, has been fully authorised to sign this Agreement on its behalf pursuant to a valid power of attorney or board of directors’ resolution, as the case may be.

This Agreement shall constitute its legal, valid and binding obligation as of the Effective Date.

This Agreement may be terminated by written agreement among the Parties.

Notice. All notices, requests, demands and other communications to be given or delivered under or by reason of this Agreement shall be in writing (which shall include notice by facsimile or like transmission) and shall be deemed given:

if delivered by hand, on the day it is delivered, or on the next Business Day if delivery is made on a non-Business Day or after the business hours of a Business Day;

if sent by facsimile, on the day when transmittal confirmation is received, or on the next Business Day if the facsimile is transmitted on a non-Business Day or after the business hours on a Business Day;

if sent by certified or registered air mail, on the seventh Business Day following its being deposited at a local postal service provider for mailing if the address of the addressee for notice is in the same country as the place of mailing, or otherwise, on the tenth Business Day following its being deposited at a local postal service provider for mailing,

For Lender:

Address

Attention

 

With copies to:

Address

Telephone Number

Facsimile Number

Attention:

 

For Borrower:

Address

Facsimile Number

Telephone Number

Attention:

 

For Assignee:

Address

Attention:

Governing Law. Matters regarding the execution, validity, interpretation and performance of this Agreement as well as settlements of disputes arising hereunder, shall be governed by the published and publicly available laws and regulations of Hong Kong and the treaties and other international agreements to which Hong Kong is a party.

The Parties shall try to resolve any dispute, controversy or claim arising out of or in connection with this Contract through friendly consultations between the Parties. But, if no settlement is reached within thirty (30) days from the date one Party notifies the other Party in writing of its intention to submit the dispute, controversy or claim to arbitration in accordance with this Article, then any such dispute, controversy or claim arising out of or relating to this Contract, or the breach, termination or invalidity thereof, shall be settled by arbitration by the HKIAC in accordance with the UNCITRAL Arbitration Rules as at present in force and as may be amended by the rest of this Article. The arbitration will be administered by HKIAC in accordance with HKIAC Procedures for Arbitration in force at the date of this Contract including additions to the UNCITRAL Arbitration Rules as are therein contained.

The place of arbitration shall be in Hong Kong at the HKIAC. The arbitration proceedings will be conducted in English. The arbitration panel will consist of three (3) members. Each Party shall select one (1) arbitrator. The arbitration award shall be final and binding on the Parties, and the Parties agree to be bound thereby and to act accordingly. The costs of arbitration and the costs of enforcing the arbitration award (including witness expenses and reasonable attorneys’ fees) shall be borne by the losing Party, unless otherwise determined by the arbitration award.

In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any legal action between the Parties pursuant to or relating to this Agreement, each Party expressly waives any defence based

Any award of the arbitrators may be enforced by any court having jurisdiction over the Party against which the award has been rendered, or wherever assets of that Party are located, and shall be enforceable in accordance with the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958).

Entire agreement. This Agreement, together with the Shareholder Loan Agreement as altered hereby and the exhibits and the schedules hereto, constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior written or oral understandings or agreements (except for untrue or fraudulent statements). Each Party has only relied on the representations, warranties, understandings and specifications contained in this Agreement in reaching its decision to execute this Agreement and to enter into the transactions contemplated hereby.

Severability. If any provision of this Agreement shall be held invalid, illegal, voidable, unenforceable or unconscionable, to any extent by any court, tribunal or governmental authority with competent jurisdiction, such parts shall be deemed as having been severed from this Agreement and the remainder of this Agreement shall continue to be effective. If any provision is deemed unenforceable, both Parties shall replace it with a similar provision agreed on through negotiation to reflect the original intention of the Parties to the greatest extent permitted by law.

No waiver. A Party’s failure to exercise, exercise with delay or exercise in part its rights under this Agreement, shall not be deemed to constitute a waiver of its other rights or all rights under this Agreement. A Party’s waiver of its rights in respect of a breach by the other Party of this Agreement in one particular situation shall not be deemed to have waived such Party’s rights against the other Party for a similar breach of this Agreement in other situations.

Counterpart execution. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

No third party beneficiary. Except to the extent otherwise expressly provided herein, nothing in this Agreement is intended to confer upon any Person other than the Parties hereto and their respective permitted successors and assigns any rights, benefits or obligations hereunder.

Costs. Each Party shall pay its own costs relating to the negotiation, preparation, execution and implementation by it of this Agreement and of any documents referred to in it.

 

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