EXHIBIT A
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment") is made as of October 16,
2003, by and between SWISS RE FINANCIAL PRODUCTS CORPORATION, a Delaware
corporation ("Assignor"), and SET TOP INTERNATIONAL INC., a British Virgin
Islands company ("Assignee").
PRELIMINARY STATEMENT
A. Assignor wishes to assign all of its rights, title and
interest in the L/C Reimbursement Agreement, the Security Documents, the Stay
Relief Agreement, the Order and the Swiss Re Claim (each, as defined below) to
Assignee.
B. Assignor and Assignee desire to set forth the terms and
conditions under which this Assignment will be made.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. ASSIGNMENT. Assignor does hereby assign and transfer to Assignee all
rights, title and interest under or in respect of (a) that certain Amended and
Restated Letter of Credit and Reimbursement Agreement (the "L/C Reimbursement
Agreement"), dated as of September 21, 2001, between Pacific Electric Wire &
Cable Co., Ltd., a Taiwanese company ("PEWC") and the Assignor, as amended by
that certain Amendment No. 1 and Waiver Agreement, dated February 20, 2002,
together with the indebtedness of PEWC to Assignor evidenced by the L/C
Reimbursement Agreement; (b) any and all security documents related to or
executed in connection with the L/C Reimbursement Agreement (the "Security
Documents") including, without limitation, that certain Amended and Restated
Pledge Agreement dated as of February 20, 2002 (the "Pledge Agreement"), between
PEWC, Pacific USA Holdings Corp., a Texas Corporation ("PUSA"), PUSA Investment
Company, a Nevada corporation ("PUSIC"), Xxxxxxxx Limited, a British Virgin
Islands international business company ("Xxxxxxxx"), Elan Investments Limited, a
British Virgin Islands international business company ("Elan"), Top Target
Limited, a British Virgin Islands international business company ("Top Target"),
Xxxxxx Systems Limited, a British Virgin Islands international business company
("Xxxxxx"), Austway Services Limited, a British Virgin Islands international
business company ("Austway," and together with PUSA, PUSIC, Montford, Elan, Top
Target and Xxxxxx, the "Debtors") and the Assignor; (c) that certain Agreement
Regarding Relief From the Automatic Stay (the "Stay Relief Agreement"), dated
January 23, 2003, by and between the Assignor, on the one hand, and the Debtors,
on the other hand, and all of Assignor's rights thereunder; (d) the Order
Approving Agreement Regarding Relief from the Automatic Stay (the "Order")
issued on February 20, 2003, entered by the United States Bankruptcy Court for
the Northern District of Texas, Dallas Division (the "Bankruptcy Court"), in the
bankruptcy cases of Venturelink Holdings, Inc. et al., administratively
consolidated as Case No. 02-80906 (the "Bankruptcy Case"), and all of Assignor's
rights thereunder; (e) the Swiss Re Claim (as defined in the Stay Relief
Agreement
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and together with the Proof of Claim (as defined below), the "Claim"; and (f)
any proof of claim filed by Assignor in the Bankruptcy Case (the "Proof of
Claim" and, together with the items set forth in clauses (a) through (e) above,
the "Assigned Assets").
TO HAVE AND TO HOLD unto Assignee, its successors and assigns, all
right, title and interest of Assignor in, to and under the Assigned Assets and
all liens, security interests, stock powers and rights of Assignor in, to and
under the Security Documents or to which Assignor might be entitled by being the
lender or providing an extension of credit under the L/C Reimbursement
Agreement.
2. CONSIDERATION. In exchange for and in consideration of the assignment
of the Assigned Assets by Assignor to Assignee, Assignee shall pay to Assignor
by wire transfer to the following account, in immediately available funds, the
sum of US$11,500,000.00:
JPMorgan Chase Bank NY
Swift: CHASUS 33
ABA: 000000000
Account No.: 066-911184
Account Name: Swiss Re Financial Products Corp.
3. FURTHER ASSURANCES. Assignor, for itself and its successors and
assigns, further covenants and agrees that it and its respective successors and
assigns shall:
A. do or cause to be done all such further acts and shall
execute, acknowledge and deliver, or shall cause to be executed, acknowledged
and delivered, any and all such further assignments, transfers and conveyances,
powers of attorneys and assurances as Assignee or its successors and assigns may
reasonably require to carry out the transactions contemplated by this
Assignment; and
B. will not object, and will consent to, Assignee's filing of an
evidence of transfer of the Swiss Re Claim with the Bankruptcy Court, in
accordance with Federal Rule of Bankruptcy Procedure 3001, in the form annexed
hereto as Exhibit A.
4. REPRESENTATIONS AND WARRANTIES OF ASSIGNOR. Assignor represents and
warrants to Assignee as follows:
A. Assignor has full power and authority to execute, deliver and
perform this Assignment in accordance with its terms, and the execution,
delivery and performance of this Assignment by Assignor, and the assignment and
transfer of the Assigned Assets, have been duly authorized by all necessary
action of Assignor. This Assignment constitutes the legal, valid and binding
obligation of Assignor, enforceable against Assignor in accordance with its
terms, except as such enforceability may be limited by (a) bankruptcy,
insolvency, moratorium or other laws of general applicability affecting the
enforcement of creditors' rights, and (b) the application of general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
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B. All consents, filings and authorizations required to be
obtained or made by Assignor and necessary for the execution, delivery and
performance of this Assignment have been obtained or made prior to the date
hereof, except for such consents, filing or authorizations required in
connection with the exercise of the rights and remedies under the Assigned
Assets in respect of the Pledged Stock (as defined in the Pledge Agreement).
C. Assignor owns all right, title and interest in and to the
Assigned Assets. Except for (i) the sale by Assignor of 306,545,800 shares of
Xxxxxx Group Ltd. pledged to Assignor pursuant to the Pledge Agreement, and (ii)
the assignment of the Assigned Assets as contemplated herein, Assignor has not
transferred or assigned, otherwise pledged or encumbered, or, except as set
forth in the Stay Relief Agreement, entered into any agreement or commitment to
transfer or assign, any of its rights under, or interest in, any of the Assigned
Assets. Assignor has not withdrawn the Swiss Re Claim.
D. Except as provided in that certain letter agreement among
Seller, PEWC and PUSA dated Xxxxx 00, 0000, xxxx of the terms of any of the
Security Documents, the L/C Reimbursement Agreement, the Stay Relief Agreement
or the Order has been modified and, to the knowledge of Assignor the Order has
not been reversed, stayed, vacated or appealed and no motion for reconsideration
or rehearing is pending.
E. Assignor has not previously compromised the Proof of Claim
other than as reflected in the Stay Relief Agreement. Since December 2, 2002,
Assignor has received payments on account of, and has otherwise released, the
obligations owed by PEWC under the L/C Reimbursement Agreement and the claims
evidenced by the Proof of Claim in the aggregate amount of US$38,787,138.64.
F. To the knowledge of Assignor, there are no pending objections
to the Proof of Claim by the Debtor or any party in interest in the Bankruptcy
Case.
G. Assignor shall have delivered to Assignee a resolution of
Assignor's Board of Directors authorizing and approving this Assignment and the
execution of this Assignment on behalf of Assignor by the person whose signature
is affixed hereto.
H. Assignor has possession of the original stock certificates
representing the Pledged Stock (as defined in the Pledge Agreement) and original
of the stock powers in respect of such Pledged Stock as referenced in Section 8
hereof.
5. REPRESENTATIONS AND WARRANTIES OF ASSIGNEE. The Assignee represents and
warrants to Assignor as follows:
A. Assignee has full power and authority to execute, deliver and
perform this Assignment in accordance with its terms, and the execution,
delivery and performance of this Assignment by Assignee have been duly
authorized by all necessary action of Assignee. This Assignment constitutes the
legal, valid and binding obligation of Assignee, enforceable against
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Assignee in accordance with its terms, except as such enforceability may be
limited by (a) bankruptcy, insolvency, moratorium or other laws of general
applicability affecting the enforcement of creditors' rights, and (b) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
B. All consents, filings and authorizations required to be
obtained or made by Assignee and necessary for the execution, delivery and
performance of this Assignment have been obtained or made prior to the date
hereof, except for such consents, filing or authorizations required in
connection with the exercise of the rights and remedies under the Assigned
Assets in respect of the Pledged Stock (as defined in the Pledge Agreement).
C. Assignee is, and after giving effect to the transaction
contemplated hereby will be, solvent, in that the fair saleable value of
Assignee's assets is and will be greater than its liabilities.
D. Assignee does not, in the ordinary course of business or
otherwise, prepare or maintain financial statements with respect to its
business.
E. The information set forth in the Due Diligence Certification
(here in so called) of the Assignee dated on or about the date hereof and
delivered to Assignor in connection herewith is true, accurate and correct in
all material respects.
F. All funds to be used by Assignee to pay to Assignor the
consideration identified in Section 2 of this Assignment are funds (a) that are
and have been legitimately and lawfully acquired and are not direct or indirect
proceeds from any criminal or unlawful enterprise or activity in any
jurisdiction and (b) have not been received, directly or indirectly, from any
"Specially Designated National" or "Specially Designated Terrorist or Terrorist
Organization" as identified by the Office of Foreign Asset Control of the United
States Treasury Department or from any other person or entity that is prohibited
under the laws of any jurisdiction to which Assignee is or would be subject.
G. Neither Assignee nor any officer, director or shareholder of
Assignee has been identified by the Office of Foreign Asset Control of the
United States Treasury Department as a "Specially Designated National" or
"Specially Designated Terrorist or Terrorist Organization".
H. Except as provided herein, Assignee acknowledges and
recognizes that the Assigned Assets are sold "AS IS, WHERE IS" and that Assignor
makes no warranties or representations, whether written or oral, express or
implied, regarding the Assigned Assets.
I. Prior to making a decision regarding purchase of the Assigned
Assets, Assignee has conducted a due diligence investigation regarding the
advisability of entering into the Assignment, and other than the representations
made by Assignor herein, Assignee's decision to enter into the Assignment is not
be based upon any information provided by or representations of Assignor or any
of its affiliates or representatives.
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J. Assignee acknowledges that (i) Assignor currently may have,
and later may come into possession of, information with respect to the Assigned
Assets, PEWC, the Debtors or any of their affiliates that is not known to
Assignee and that may be material to a decision to acquire the Assigned Assets
("Assignee Excluded Information"), (ii) Assignee has determined to purchase the
Assigned Assets notwithstanding its lack of knowledge of the Assignee Excluded
Information, and (iii) Assignor shall have no liability to Assignee, and
Assignee waives and releases any claims that it might have against Assignor or
any of Assignor's affiliates or representatives, whether under applicable
securities laws or otherwise, with respect to the nondisclosure of the Assignee
Excluded Information in connection with the transactions contemplated hereby;
provided, however, that the Assignee Excluded Information shall not and does not
affect the truth or accuracy of Assignor's representations or warranties in this
Agreement.
K. Assignee shall have delivered to Assignor (i) copies of
Assignee's Articles of Incorporation and Bylaws, each as in effect on the date
of closing, and (ii) a resolution of Assignee's Board of Directors authorizing
and approving this Assignment and the execution of this Assignment on behalf of
Assignee by the person whose signature is affixed hereto.
6. PROOF OF CLAIM. Notwithstanding any other provision hereof, this
Assignment (together with any separate assignment forms required by law) shall,
and does, constitute the complete assignment, conveyance and transfer by
Assignor of the Proof of Claim. Assignor hereby irrevocably appoints Assignee as
its true and lawful attorney and authorizes Assignee to act in Assignor's stead,
to demand, xxx for, compromise and recover all such amounts as now are, or may
hereafter become, due and payable for or on account of the Claim herein
assigned. Assignor grants unto Assignee full authority to do all things
necessary to enforce the claim and its rights thereunder pursuant to this
Assignment. Assignor agrees that the powers granted by this paragraph are
discretionary in nature and that Assignee may exercise or decline to exercise
such power at Assignee's sole option. Assignee shall have no obligation to take
any action to prove or defend the Claim's validity or amount in the proceedings
relating to the Bankruptcy Case. Assignor agrees to take such further action, at
its own expense, as may be necessary or desirable to effect the assignment of
the Claim and any payments or distributions on account of the Claim to Assignee
including, without limitation, the execution of appropriate transfer powers,
corporate resolutions and consents.
Assignor agrees to use reasonable efforts to forward to Assignee all
notices received from Debtor, the Bankruptcy Court or any third party with
respect to the Claim assigned herein, provided that promptly after the
consummation of the transactions contemplated hereby, Assignee shall file the
evidence of transfer and a notice of appearance in the Bankruptcy Court.
Assignor further agrees that any distribution received by Assignor on account of
the Claim, whether in the form of cash, securities, instrument or any other
property, shall constitute property of Assignee to which Assignee has an
absolute right, and that Assignor will hold such property in trust, will provide
Assignee with prompt notice of the receipt of such property, and will promptly
deliver to Assignee any such property in the same form received, together with
any endorsements or documents necessary to transfer such property to Assignee,
upon written instructions of, and at the sole cost and expense of Assignee.
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7. EFFECT OF DISGORGEMENT. If Assignor is required to disgorge to PEWC,
any Debtor or any other person any payment previously received under or on
account of the L/C Reimbursement Agreement, the Security Documents, the Pledge
Agreement, the Stay Relief Agreement, the Order or the Claim, the rights of
Assignor arising therefrom shall not constitute Assigned Assets and shall remain
the sole property of Assignor, and Assignor shall be entitled to pursue any and
all such rights as it may deem appropriate in its sole discretion.
8. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered in person, by overnight courier or facsimile to the
respective parties as follows:
If to Assignor: Swiss Re Financial Products Corp
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx
O'Melveny & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
If to Assignee: Xx. Xxx-Xxxxx Xxxx
4th Fl., Xx. 00, Xxx. 0
Xxxxx-Xx Xxxx
Xxxxxx, Xxxxxx
Xxxxx & XxXxxxxx
2300 Xxxxxxxx Xxxx Center
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx
or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth above
(provided that notice of any change of address shall be effective only upon
receipt thereof).
9. PLEDGE DOCUMENTS. The Assignor hereby authorizes the Assignee to file
at any time hereafter such filings or statements under the Uniform Commercial
Code (including without the Assignor's signature) as may be necessary to reflect
in the public record the assignment of the security interests and liens
described in this Assignment. The Assignor will deliver such other statements or
documents as the Assignee may from time to time reasonably request to effectuate
or reflect of public record the assignment of such security interests and liens.
As of the date hereof and upon receipt of the payment of the amount required in
Section 2 of this Assignment, Assignor shall deliver to Assignee original stock
certificates representing the Pledged Stock (as
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defined in the Pledge Agreement) of Asia Pacific Wire & Cable Corporation and
Xxxxxxx Global Corp. including those identified on Annex 1 hereto, together with
originals of all stock powers executed in blank.
10. ENTIRE AGREEMENT. This Assignment and the other documents and
instruments executed in connection herewith, constitute a single transaction,
and shall be construed as one agreement. THIS ASSIGNMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS BY THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
11. GOVERNING LAW. THIS ASSIGNMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT
TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF NEW
YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF
ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK. Any legal action or
proceeding with respect to this Assignment will be brought in any New York state
or federal court sitting in the City of New York, County of New York, and, by
execution and delivery of this Assignment, the parties hereto hereby accept for
themselves generally and unconditionally, the jurisdiction of the aforesaid
courts. Each of the parties hereto hereby irrevocably waives any objection,
including, without limitation, any objection to the laying of venue or based on
the grounds of forum non conveniens, which it may now or hereafter have to the
bringing of any such action or proceeding in such jurisdiction.
12. EXPENSES. All costs and expenses incurred in connection with the
transactions contemplated by this Assignment shall be paid by the party
incurring such expenses.
13. PUBLIC ANNOUNCEMENT. Assignor and Assignee shall not issue any press
release concerning the existence of, or terms of, this Assignment, except with
the prior written consent of the other party or as required by law.
14. COUNTERPARTS. This Assignment may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
15. CONFIDENTIALITY. Assignor will maintain in confidence, and will cause
its respective directors, officers, employees, agents, and advisors to maintain
in confidence, any information set forth in the Due Diligence Certification,
unless (a) such information is already known to such party or to others not
bound by a duty of confidentiality or such information becomes publicly
available through no fault of such party, or (b) the furnishing or use of such
information is required by law.
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Executed and delivered as of the date indicated in the first sentence
of this Assignment.
ASSIGNOR:
SWISS RE FINANCIAL PRODUCTS CORPORATION
BY: /s/
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
ASSIGNEE:
SET TOP INTERNATIONAL INC.
BY: /s/ Tsai Fu-Chuan
-----------------------------------
Fu-Xxxxx Xxxx
Director
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ANNEX 1
Issuer Certificate Nos./ Registered Owner Number of Shares
------- ----------------- ---------------- ------------------------
Xxxxxxx LG0987 PUSIC 4,000,000 shares of
common stock, par value
$.00001 per share
Xxxxxxx LG0988 PUSIC 1,427,989 shares of
common stock, par value
$.00001 per share
Xxxxxxx LG1005 PUSIC 1,763,994 shares of
common stock, par value
$.00001 per share
Xxxxxxx LG1028 PUSIC 1,000,000 shares of
common stock, par value
$.00001 per share
Xxxxxxx LG1069 PUSIC 150,000 shares of common
stock, par value $.00001
per share
APWC AP2025 PUSA 6,976,666 shares of
common stock, par value
$.01 per share
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