CLIFFORD CHANCE PTE LTD
Exhibit 4.47
|
XXXXXXXX CHANCE PTE LTD |
Dated
___ 2010
INFOCOMM ASIA HOLDINGS PTE. LTD.
(Singapore Company Registration Number 200414772H)
(Singapore Company Registration Number 200414772H)
as Chargor
In favour of
BLIZZARD ENTERTAINMENT INTERNATIONAL
as Chargee
SECURITY OVER SHARES AGREEMENT
CONTENTS
| Clause | Page | |||
1. Definitions And Interpretation |
2 | |||
2. Charge |
3 | |||
3. Deposit Of Certificates, Related Rights And Release |
3 | |||
4. Voting Rights And Dividends |
4 | |||
5. Chargor’s Representations And Undertakings |
5 | |||
6. Further Assurance |
8 | |||
7. Power Of Attorney |
8 | |||
8. Security Enforcement |
9 | |||
9. Receivers |
10 | |||
10. Effectiveness Of Xxxxxxxxxx |
00 | |||
00. Expenses, Stamp Taxes, Indemnity |
13 | |||
12. Application Of Proceeds |
14 | |||
13. Other Security Interests |
15 | |||
14. Calculations And Certificates |
15 | |||
15. Assignment |
15 | |||
16. Notices |
16 | |||
17. Waivers And Counterparts |
16 | |||
18. Law |
16 | |||
19. Enforcement |
16 | |||
20. Process Agent |
16 | |||
THIS
AGREEMENT is made by way of deed on ___ 2010
BETWEEN
| (1) | INFOCOMM ASIA HOLDINGS PTE. LTD. a company incorporated in Singapore with company
registration number 200414772H (the “Chargor”); and |
| (2) | Blizzard Entertainment International, a division of Coöperatie Activision Blizzard
International U.A., a co-operative association, with its corporate seat in Amsterdam and
office address at Xxxxxxxxxxx 000 X, 0000 XX Xxxxxxxx-Xxxx, Xxx Xxxxxxxxxxx, registered with
the Trade Register under number 34324431 (the “Chargee”). |
IT IS AGREED as follows:
| 1. | DEFINITIONS AND INTERPRETATION |
|
| 1.1 | Definitions |
In this Agreement: |
“Act” means the Conveyancing and Law of Property Act, Chapter 61 of Singapore. |
“Charged Portfolio” means the Shares and the Related Assets. |
“Collateral Rights” means all rights, powers and remedies of the Chargee provided by this
Agreement or by law. |
“Company” means Monsoon Online Pte. Ltd., a Singapore corporation with its principal place
of business at 00 Xxxxxxx Xxxx #00-00, Xxx Xxx Xxxxxxx, Xxxxxxxxx 000000. |
“Receiver” means a receiver or receiver and manager or administrative receiver of the whole
or any part of the Charged Portfolio. |
“Related Assets” means all dividends, interest and other monies at any time payable at any
time in respect of the Shares and all other rights, benefits and proceeds in respect of or
derived from the Shares (whether by way of allotment, accretion, redemption, bonus,
preference, option, rights, substitution, conversion or otherwise) held by, to the order or
on behalf of the Chargor at any time. |
“Secured Obligations” means the obligation of the Chargor to sell its Shares in the Company
to the Chargee in accordance with Clause 18 (Events of Default) of the Management Agreement
but excludes any obligation or liability which, if it were included, would cause that
obligation or liability or any of the Security in respect thereof, to be unlawful or
prohibited by any applicable law. |
“Security” means the security created under or pursuant to or evidenced by this Agreement. |
“Shares” means all of the shares in the capital of the Company held by, to the
order or on behalf of the Chargor at any time. |
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| 1.2 | Terms defined in the Management Agreement |
Unless defined in this Agreement or the context otherwise requires, a term defined in
the Management Agreement has the same meaning in this Agreement or any notice given under or
in connection with this Agreement. |
| 1.3 | Construction |
Clause 1.2 of the Management Agreement will apply as if incorporated in this Agreement
or in any notice given under or in connection with this Agreement. |
| 1.4 | Third Party Rights |
Unless otherwise expressly provided to the contrary in this Agreement, a person who is
not a party to this Agreement has no right under the Contracts (Rights of Third Parties)
Act, Chapter 53B of Singapore to enforce or to enjoy the benefit of any term of this
Agreement. |
| 2. | CHARGE |
The Chargor charges the Charged Portfolio as legal and beneficial owner and by way of
first fixed charge, in favour of the Chargee, and assigns and agrees to assign absolutely to
the Chargee all its present and future rights, title and interest in and to the Charged
Portfolio, as continuing security for the payment and discharge of the Secured Obligations. |
| 3. | DEPOSIT OF CERTIFICATES, RELATED RIGHTS AND RELEASE |
|
| 3.1 | Deposit of certificates |
The Chargor will immediately upon the execution of this Agreement (or upon coming into
possession of the Chargor at any time): |
| (a) | (in the case of Shares which are represented by share certificates) deposit (or
procure there to be deposited) with the Chargee all original certificates and other
documents of title to the Shares, and share or stock transfer forms (executed in blank
by or on behalf of the Chargor) in respect of the Shares; and |
| (b) | (in the case of Shares which are not represented by share certificates) deliver
or cause to be delivered to the Chargee or any other person as the Chargee may specify,
all such documents, notices or instruments duly executed by the Chargor and/or the
relevant person or persons as may be required or deemed necessary by the Chargee to
grant or create in favour of the Chargee or its nominees a first-priority security
interest by way of a charge in such Shares in accordance with any law as may be
applicable to such Shares. |
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| 3.2 | Related Assets |
The Chargor shall, promptly upon the accrual, offer or issue of any Related Assets (in
the form of stocks, shares, rights, warrants or other securities) in which the Chargor has a
beneficial interest, procure the delivery to the Chargee of: |
| (a) | (in the case of Related Assets which are represented by share certificates) (i)
all original certificates and other documents of title representing those Related
Assets and (ii) such share or stock transfer forms or other instruments of transfer
(executed in blank by or on behalf of the Chargor) in respect of those Related Assets
as the Chargee may request; and |
| (b) | (in the case of Related Assets which are not represented by share certificates)
all such documents, notices or instruments duly executed by the Chargor and/or the
relevant person or persons as may be required or deemed necessary by the Chargee to
grant or create in favour of the Chargee or its nominees a first-priority security
interest by way of a charge in the Related Assets in accordance with any law as may be
applicable to such Shares. |
| 3.3 | Release |
Upon the Chargee being satisfied that the Secured Obligations have been irrevocably
discharged in full, the Chargee shall, at the request and cost of the Chargor release all
the security granted by this Agreement without recourse to, and without any representations
or warranties by, the Chargee or any of its nominee(s). |
| 4. | VOTING RIGHTS AND DIVIDENDS |
|
| 4.1 | Voting rights and dividends prior to an Event of Default |
Prior to the occurrence of an Event of Default, the Chargor shall: |
| (a) | be entitled to retain all dividends, interest and other monies or distributions
of an income nature arising from the Charged Portfolio; and |
| (b) | subject to Clause 5.2ý(e) be entitled to exercise all voting rights in relation
to the Charged Portfolio. |
| 4.2 | Voting rights and dividends after an Event of Default |
Upon the occurrence of an Event of Default, the Chargee may, at its discretion, (in the
name of the Chargor or otherwise and without any further consent or authority from the
Chargor): |
| (a) | exercise (or refrain from exercising) any voting rights in respect of the
Charged Portfolio; |
| (b) | apply all dividends, interest and other monies arising from the Charged
Portfolio as though they were the proceeds of sale under this Agreement; |
| (c) | transfer the Charged Portfolio into the name of the Chargee or such nominee(s)
of the Chargee as it shall require; and |
| (d) | exercise (or refrain from exercising) the powers and rights conferred on or
exercisable by the legal or beneficial owner of the Charged Portfolio and the right, in
relation to any company whose shares or other securities are included in the Charged
Portfolio, to concur or participate in: |
| (i) | the reconstruction, amalgamation, sale or other disposal of such
company or any of its assets or undertaking (including the exchange,
conversion or reissue of any shares or securities as a consequence thereof), |
| (ii) | the release, modification or variation of any rights or liabilities
attaching to such shares or securities, and |
| (iii) | the exercise, renunciation or assignment of any right to subscribe
for any shares or securities, |
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in each case in the manner and on the terms the Chargee thinks fit, and the proceeds of any
such action shall form part of the Charged Portfolio. |
| 5. | CHARGOR’S REPRESENTATIONS AND UNDERTAKINGS |
|
| 5.1 | Representations |
The Chargor makes the following representations and warranties to the Chargee and
acknowledges that the Chargee has become a party to this Agreement in reliance on these
representations and warranties: |
| (a) | Status |
| (i) | It is a corporation, duly incorporated and validly existing under the
laws of Singapore. |
| (ii) | It and each of its subsidiaries has the power to own its assets and
carry on its business as it is being conducted. |
| (b) | Binding obligations |
Subject to general equitable principles and insolvency and other laws generally
applicable to creditors’ rights, the obligations expressed to be assumed by it in
this Agreement are legal, valid, binding and enforceable obligations; and create a
first ranking security interest over the Charged Portfolio. |
| (c) | Non-conflict with other obligations |
The entry into and performance by it of, and the transactions contemplated by, this
Agreement (including any transfer of the Shares on creation or enforcement of the
security constituted by this Agreement) do not and shall not: |
| (i) | conflict with: |
| (A) | any law or regulation applicable to it; |
||
| (B) | its or any of its subsidiaries constitutional documents; or |
||
| (C) | any agreement or instrument binding upon it, any of its
subsidiaries or the Shares; or |
| (ii) | result in the existence of, or oblige it to create, any security over
the Shares. |
| (d) | Ranking |
The security created by this Agreement has or will have first ranking priority and
it is not subject to any prior ranking or pari passu security. |
| (e) | Power and authority |
It has the power to enter into, perform and deliver, and has taken all necessary
action to authorise its entry into, performance and delivery of, this Agreement and
the transactions contemplated by this Agreement. |
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| (f) | Ownership of Shares |
It is the sole legal and beneficial owner of the Charged Portfolio free and clear
of all security interests save as created by this Agreement and has not sold or
disposed of or granted any options or pre-emption rights in respect of any of its
right, title and interest, in the Charged Portfolio (other than as permitted under
the Management Agreement) and all of the Shares are validly issued, fully paid and
are not subject to any options to purchase, pre-emption rights or similar rights or
other restrictions upon disposal which would operate to restrict in any way their
disposal by the Chargee should it come to enforce its security over the Charged
Portfolio contained in this Agreement. |
| (g) | Authorisations |
All authorisations required or desirable: |
| (i) | to enable it lawfully to enter into, exercise its rights and comply
with its obligations under this Agreement; and |
| (ii) | to make this Agreement admissible in evidence in Singapore and the
jurisdiction of incorporation of each company whose shares are charged under
this Agreement, |
have been obtained or effected and are in full force and effect. |
| (h) | Deduction of Tax |
It is not required to make any deduction for or on account of tax from any payment
it may make under this Agreement. |
| (i) | Winding-up |
No corporate actions, legal proceedings or other procedure or steps have been taken
in relation to, or notice given in respect of, a composition, compromise,
assignment or arrangement with any creditor of the Chargor or in relation to the
suspension of payments or moratorium of any indebtedness, winding-up, dissolution,
administration, judicial management or reorganisation (by way of voluntary
arrangement, scheme of arrangement or otherwise) of, or the appointment of an
administrator or judicial manager to, the Chargor and no such step is intended by
the Chargor (save for the purposes of any solvent re-organisation or reconstruction
which has previously been approved by the Chargee). |
| (j) | Repetition |
The representations set out in Clauses (a) (Status) to (i) (Winding-up) are
deemed to be made by the Chargor by reference to the facts and circumstances then
existing on each date until the security granted by this Agreement is released
pursuant to Clause 3.3 (Release). |
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| 5.2 | Undertakings |
| (a) | Authorisations |
The Chargor shall promptly: |
| (i) | obtain, comply with and do all that is necessary to maintain in full
force and effect; and |
| (ii) | supply certified copies to the Chargee of, |
any authorisation required under any law or regulation of any relevant jurisdiction
to enable it to perform its obligations under this Agreement and to ensure the
legality, validity, enforceability or admissibility in evidence in any relevant
jurisdiction of this Agreement. |
| (b) | Compliance with laws |
The Chargor shall comply in all respects with all laws to which it may be subject,
if failure so to comply would impair its ability to perform its obligations under
this Agreement. |
| (c) | Disposals and Negative pledge |
The Chargor shall not enter into a single transaction or a series of transactions
(whether related or not) and whether voluntarily or involuntarily, to sell, lease,
transfer or otherwise dispose of the whole or any part of the Charged Portfolio and
will not create or permit to subsist any security interest on any part of the
Charged Portfolio or otherwise deal with any part of the Charged Portfolio, save as
may be permitted under the Management Agreement. |
| (d) | Calls on Shares |
The Chargor undertakes to pay all calls or other payments when due in respect of
any part of the Charged Portfolio. If the Chargor fails to make any such payment
the Chargee may make that payment on behalf of the Chargor and any sums so paid by
the Chargee shall be reimbursed by the Chargor on demand together with interest on
those sums. Such interest shall be calculated from the due date up to the actual
date of payment (after, as well as before, judgment) at a rate determined by the
Chargee in accordance with the rate referred to in Clause 11.5 (Interest on
demands). |
| (e) | Voting Rights |
The Chargor shall not exercise (and shall procure that any nominee acting on its
behalf does not exercise) its voting rights in relation to the Charged Portfolio in
any manner, or otherwise permit or agree to, or concur or participate in any (i)
variation of the rights attaching to or conferred by all or
any part of the Charged Portfolio (ii) increase in the issued share capital of any
company whose shares are charged pursuant to this Agreement (iii) exercise,
renunciation or assignment of any right to subscribe for any shares or securities
or (iv) reconstruction, amalgamation, sale or other disposal of any company or any
of the assets of any company (including the exchange, conversion or reissue of any
shares or securities as a consequence thereof) whose shares are charged under this
Agreement, which in the opinion of the Chargee would prejudice the value of, or the
ability of the Chargee to realise, the security created by this Agreement. |
- 7 -
| 6. | FURTHER ASSURANCE |
|
| 6.1 | Further assurance |
The Chargor will promptly at its own cost do all such acts or execute all such
documents (including assignments, transfers, mortgages, charges, notices, instructions,
shareholders’ agreements or resolutions amending or varying the constitutional documents of
any company whose shares are charged pursuant to this Agreement in respect of rights
attaching to any of the Shares) as the Chargee may specify (and in such form as the Chargee
may require in favour of the Chargee or its nominee(s)) for the purpose of exercising the
Collateral Rights or perfecting the Security created or intended to be created in respect of
the Charged Portfolio (which may include the execution by the Chargor of a mortgage, charge
or assignment over all or any of the assets constituting, or intended to constitute, the
Charged Portfolio) or for the exercise of the rights, powers and remedies of the Chargee
provided by or pursuant to this Agreement or by law in each case in accordance with the
rights vested in it under this Agreement. |
| 6.2 | Registration and stamp duty |
The Chargor shall promptly after the execution of this Agreement (and, in any case
within the time period prescribed by applicable law): |
| (a) | cause Singapore stamp duty to be paid on this Agreement in the amount
prescribed by law; and |
| (b) | cause particulars of this Agreement to be submitted for registration at the
Accounting and Regulatory Authority of Singapore. |
| 7. | POWER OF ATTORNEY |
|
| 7.1 | Appointment and powers |
The Chargor by way of security irrevocably appoints the Chargee and any Receiver
severally to be its attorney and in its name, on its behalf and as its act and deed to
execute, deliver and perfect all documents and do all things which the attorney may consider
to be required or desirable for: |
| (a) | carrying out any obligation imposed on the Chargor by this Agreement or any
other agreement binding on the Chargor to which the Chargee is a party (including the
execution and delivery of any deeds, charges, assignments or other security and any
transfers of the Charged Portfolio); and |
| (b) | enabling the Chargee to exercise, or delegate the exercise of, all or any of
the Collateral Rights; |
| (c) | enabling any Receiver to exercise, or delegate the exercise of, any of the
rights, powers and authorities conferred on them by or pursuant to this Agreement or by
law. |
| 7.2 | Ratification |
The Chargor hereby declares that such power of attorney has been given for valuable
consideration and shall remain irrevocable for so long as any part of the Secured
Obligations remains outstanding. The Chargor hereby ratifies and confirms and agrees to
ratify and confirm all things done or purported to be done and all documents executed by any
attorney in the exercise or purported exercise of all or any of his powers, authorities and
discretions referred to in Clause 7.1 (Appointment and powers) above. Any attorney
referred to in this Clause 7 may enjoy the benefit or enforce the terms of this Clause in
accordance with the provisions of the Contracts (Rights of Third Parties) Act, Chapter 53B
of Singapore. |
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| 8. | SECURITY ENFORCEMENT |
|
| 8.1 | Time for Enforcement |
On and at any time after the failure of the Chargor to comply with its obligations
under Clause 18, including Clause 18.2.2, of the Management Agreement or if the Chargor
requests the Chargee to exercise any of its powers under this Agreement or if a petition or
application is presented for the making of a judicial management in relation to the Chargor
or if any person gives written notice of its intention to appoint a judicial manager of the
Chargor or files such a notice with the court, the security created by or pursuant to this
Agreement is immediately enforceable and the Chargee may, without notice to the Chargor or
prior authorisation from any court, in its absolute discretion: |
| (a) | secure and perfect its title to all or any part of the Charged Portfolio
(including transferring the Charged Portfolio into the name of the Chargee or its
nominees); |
| (b) | enforce all or any part of the Security (at the times, in the manner and on the
terms it thinks fit) and take possession of and hold, sell, or otherwise dispose of all
or any part of the Charged Portfolio (at the time, in the manner and on the terms it
thinks fit); and |
| (c) | whether or not it has appointed a Receiver, exercise all or any of the powers,
authorisations and discretions conferred by the Act (as varied or extended by this
Agreement, but free from the restrictions imposed by Section 25 thereof) on chargees
and by this Agreement on any Receiver or otherwise conferred by law on mortgagees or
Receivers. |
| 8.2 | Power of sale |
| (a) | After the security created by this Agreement has become enforceable in
accordance with Clause 8.1 (Time for enforcement), the Chargee shall be entitled,
without prior notice to the Chargor or prior authorisation from any
court, to sell or otherwise dispose of all or any part of the Charged Portfolio (at
the times, in the manner and on the terms it thinks fit). The Chargee may apply
the proceeds of any part of that sale or other disposal in paying the costs of that
sale or disposal. |
| (b) | The security created by this Agreement shall become immediately enforceable and
the power of sale and other powers conferred by the Act and/or this Agreement shall
arise and may be immediately exercised after the security created by this Agreement has
become enforceable in accordance with Clause 8.1 (Time for enforcement). |
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| (c) | The powers conferred by this Agreement in relation to the Charged Portfolio or
any part thereof on the Chargee shall be in addition to and not in substitution for the
powers conferred on mortgagees under the Act, which shall apply to the security created
by this Agreement except insofar as they are expressly or impliedly excluded. Where
there is any ambiguity or conflict between the powers contained in the Act and those
conferred by this Agreement as aforesaid or where the powers or protections in this
Agreement are more extensive or less restricted than those provided by the Act, then
the terms of this Agreement shall prevail to the extent permitted by law. |
| (d) | Section 21 of the Act shall not apply to this Agreement. |
| (e) | A certificate in writing by an officer or agent of the Chargee that any power
of sale or other disposal has arisen and is exercisable shall be conclusive evidence of
that fact, in favour of a purchaser of all or any part of the Charged Portfolio. No
person dealing with the Chargee shall be concerned to enquire whether any event has
happened upon which any of the powers, authorities and discretions conferred by or
pursuant to this Agreement in relation to such property or any part thereof are or may
be exercisable by the Chargee or otherwise as to the propriety or regularity of acts
purporting or intended to be in exercise of any such powers. |
| 8.3 | Chargee’s liability |
Neither the Chargee nor any Receiver will be liable to account as mortgagee or
mortgagee in possession in respect of the Charged Portfolio or be liable for any loss upon
realisation or for any neglect or default of any nature whatsoever in connection with the
Charged Portfolio for which a mortgagee or mortgagee in possession might as such be liable. |
| 9. | RECEIVERS |
|
| 9.1 | Appointment and removal |
At any time after having been requested to do so by the Chargor or after this Agreement
becomes enforceable in accordance with Clause 8 (Security Enforcement), the Chargee may by
deed or otherwise (acting through an authorised officer of the Chargee), without prior
notice to the Chargor: |
| (a) | appoint one or more persons to be a Receiver of the whole or any part of the
Charged Portfolio; |
| (b) | appoint one or more Receivers of separate parts of the Charged Portfolio
respectively; |
| (c) | remove (so far as it is lawfully able) any Receiver so appointed; and |
| (d) | appoint another person(s) as an additional or replacement Receiver(s). |
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| 9.2 | Capacity of Receivers |
Each person appointed to be a Receiver pursuant to Clause 9.1 (Appointment and
removal) will be: |
| (a) | entitled to act individually or together with any other person appointed or
substituted as Receiver; |
| (b) | for all purposes deemed to be the agent of the Chargor which shall be solely
responsible for his acts, defaults and liabilities and for the payment of his
remuneration and no Receiver shall at any time act as agent for the Chargee; and |
| (c) | entitled to remuneration for his services at a rate to be fixed by the Chargee
from time to time (without being limited to the maximum rate specified by the Act). |
| 9.3 | Statutory powers of appointment |
The powers of appointment of a Receiver shall be in addition to all statutory and other
powers of appointment of the Chargee under the Act (as extended by this Agreement) or
otherwise and such powers shall remain exercisable from time to time by the Chargee in
respect of any part of the Charged Portfolio. |
| 9.4 | Powers of Receivers |
Every Receiver shall (subject to any restrictions in the instrument appointing him but
notwithstanding any winding-up or dissolution of the Chargor) have and be entitled to
exercise, in relation to the Charged Portfolio in respect of which he was appointed, and as
varied and extended by the provisions of this Agreement (in the name of or on behalf of the
Chargor or in his own name and, in each case, at the cost of the Chargor): |
| (a) | all the powers conferred by the Act on mortgagors and on mortgagees in
possession and on receivers appointed under that Act; |
| (b) | all the powers of a receiver appointed under the Companies Act, Chapter 50 of
Singapore; |
| (c) | all the powers and rights of an absolute owner and power to do or omit to do
anything which the Chargor itself could do or omit to do; |
| (d) | the power to delegate (either generally or specifically) the powers,
authorities and discretions conferred on it by this Agreement (including the power of
attorney) on such terms and conditions as it shall see fit which delegation shall
not preclude either the subsequent exercise any subsequent delegation or any
revocation of such power, authority or discretion by the Receiver itself; and |
| (e) | the power to do all things (including bringing or defending proceedings in the
name or on behalf of the Chargor) which seem to the Receiver to be incidental or
conducive to: |
| (i) | any of the functions, powers, authorities or discretions conferred on
or vested in him; |
| (ii) | the exercise of any rights, powers and remedies of the Chargee
provided by or pursuant to this Agreement or by law (including realisation of
all or any part of the Charged Portfolio); or |
| (iii) | bringing to his hands any assets of the Chargor forming part of, or
which when got in would be, Charged Portfolio. |
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| 9.5 | Consideration |
The receipt of the Chargee or any Receiver shall be a conclusive discharge to a
purchaser and, in making any sale or disposal of any of the Charged Portfolio or making any
acquisition, the Chargee or any Receiver may do so for such consideration, in such manner
and on such terms as it thinks fit. |
| 9.6 | Protection of purchasers |
No purchaser or other person dealing with the Chargee or any Receiver shall be bound to
inquire whether the right of the Chargee or such Receiver to exercise any of its powers has
arisen or become exercisable or be concerned with any propriety or regularity on the part of
the Chargee or such Receiver in such dealings. |
| 9.7 | Discretions |
Any liberty or power which may be exercised or any determination which may be made
under this Agreement by the Chargee or any Receiver may be exercised or made in its absolute
and unfettered discretion without any obligation to give reasons. |
| 10. | EFFECTIVENESS OF COLLATERAL |
|
| 10.1 | Collateral Cumulative |
The collateral constituted by this Agreement and the Collateral Rights shall be
cumulative, in addition to and independent of every other security which the Chargee may at
any time hold for the Secured Obligations or any rights, powers and remedies provided by
law. No prior security held by the Chargee over the whole or any part of the Charged
Portfolio shall merge into the collateral constituted by this Agreement. |
| 10.2 | No Waiver |
No failure to exercise, nor any delay in exercising, on the part of the Chargee, any
right, power or remedy of the Chargee provided by this Agreement or by law shall operate as
a waiver, nor shall any single or partial exercise of that right, power or remedy prevent
any further or other exercise of that or any other right, power or remedy of the Chargee
provided by this Agreement or by law. |
| 10.3 | Illegality, Invalidity, Unenforceability |
If, at any time, any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither the legality,
validity or enforceability of the remaining provisions of this Agreement nor the legality,
validity or enforceability of such provision under the law of any other jurisdiction will in
any way be affected or impaired. |
| 10.4 | No liability |
None of the Chargee, its nominee(s) or any receiver appointed pursuant to this
Agreement shall be liable by reason of (a) taking any action permitted by this Agreement or
(b) any neglect or default in connection with the Charged Portfolio or (c) the taking
possession or realisation of all or any part of the Charged Portfolio, except in the case of
gross negligence or wilful default upon its part. |
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| 10.5 | Continuing security |
| (a) | The Security from time to time constituted by this Agreement is a continuing
security and will remain in full force and effect as a continuing security until
released or discharged by the Chargee. |
| (b) | No part of the Security from time to time constituted by this Agreement will be
considered satisfied or discharged by any intermediate payment, discharge or
satisfaction of the whole or any part of the Secured Obligations. |
| 10.6 | Immediate recourse |
The Chargor waives any right it may have of first requiring the Chargee to proceed
against or enforce any other rights or Security or claim payment from any person before
claiming from the Chargor under this Agreement. This waiver applies irrespective of any law
or any provision of this Agreement to the contrary. |
| 10.7 | Avoidance of Payments |
Notwithstanding Clause 3.3 (Release) if the Chargee considers that any amount paid or
credited to it is capable of being avoided or reduced by virtue of any bankruptcy,
insolvency, liquidation or similar laws the liability of the Chargor under this Agreement
and the security constituted by this Agreement shall continue and that amount shall not be
considered to have been irrevocably paid. |
| 10.8 | No prejudice |
The Security created by or pursuant to this Agreement and the rights, powers and
remedies of the Chargee provided by or pursuant to this Agreement or by law shall not be
prejudiced by any unenforceability or invalidity of any other agreement or document or by
any time or indulgence granted to the Chargor or any other person by the Chargee or by any
other thing which might otherwise prejudice the Security or any rights, powers and remedies
of the Chargee provided by or pursuant to this Agreement or by law. |
| 11. | EXPENSES, STAMP TAXES, INDEMNITY |
|
| 11.1 | Expenses |
The Chargor shall promptly on demand pay the Chargee the amount of all costs and
expenses (including legal fees) reasonably incurred by the Chargee in connection with the
completion of the transactions and perfection of the security contemplated in this
Agreement. Subject to the foregoing, each Party shall pay its own costs and expenses of and
incidental to the negotiation, preparation and execution by it of this Agreement. |
| 11.2 | Enforcement expenses |
The Chargor shall, within three business days of demand pay to the Chargee the amount
of all costs and expenses (including legal fees) on a full indemnity basis reasonably
incurred by it in connection with the exercise, preservation and/or enforcement of any of
the rights, powers or remedies of the Chargee or the Security or any proceedings instituted
by or against the Chargee as a consequence of taking or holding the Security or of enforcing
any rights, powers or remedies of the Chargee. |
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| 11.3 | Stamp Taxes |
The Chargor shall pay all stamp, registration and other taxes to which this Agreement,
the Security or any judgment given in connection with it is or at any time may be subject
and shall, from time to time, indemnify the Chargee on demand against any liabilities,
costs, claims and expenses resulting from any failure to pay or delay in paying any such
tax. |
| 11.4 | Indemnity |
The Chargor shall, notwithstanding any release or discharge of all or any part of the
security, indemnify the Chargee, its attorneys and any Receiver against any action,
proceeding, claims, losses, liabilities and costs which it may sustain as a consequence of
any breach by the Chargor of the provisions of this Agreement, the exercise or purported
exercise of any of the rights and powers conferred on them by this Agreement or otherwise
relating to the Charged Portfolio. |
| 11.5 | Interest on demands |
If the Chargor fails to pay any sum on the due date for payment of that sum the Chargor
shall pay interest on any such sum (before and after any judgment and to the extent interest
at a default rate is not otherwise being paid on such sum) from the date seven (7) days
after the date of demand until the date of payment at a rate per annum equal to the lesser
of (i) five one hundredths of one per cent (0.05%) per day, not compounded, or (ii) the
maximum amount permitted by Applicable Laws. |
| 11.6 | Payments Free Of Deduction |
All payments to be made to the Chargee under this Agreement shall be made free and
clear of and without deduction for or on account of tax unless the Chargor is required to
make such payment subject to the deduction or withholding of tax, in which case the sum
payable by the Chargor in respect of which such deduction or withholding is required to be
made shall be increased to the extent necessary to ensure that, after the making of such
deduction or withholding, the person on account of whose liability to
tax such deduction or withholding has been made receives and retains (free from any
liability in respect of any such deduction or withholding) a net sum equal to the sum which
it would have received and so retained had no such deduction or withholding been made or
required to be made. |
| 12. | APPLICATION OF PROCEEDS |
|
| 12.1 | Fee and Expense |
All moneys received or recovered by the Chargee or any Receiver pursuant to this
Agreement or the powers conferred by it shall (subject to the claims of any person having
prior rights thereto and by way of variation of the provisions of the Act) be applied first
in the payment of the costs, charges and expenses incurred and payments made by the
Receiver, the payment of his remuneration and the discharge of any liabilities incurred by
the Receiver in, or incidental to, the exercise of any of his powers and thereafter shall be
applied by the Chargee in accordance with the order of application agreed between the
Chargee and the Chargor. |
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| 12.2 | Surplus |
Any surplus shall be applied in payment to the person or persons entitled thereto. |
| 13. | OTHER SECURITY INTERESTS |
|
| 13.1 | Redemption or transfer |
In the event of any action, proceeding or step being taken to exercise any powers or
remedies conferred by any prior ranking security in case of exercise by the Chargee or any
Receiver of any power of sale under this Agreement the Chargee may redeem such prior
security or procure the transfer thereof to itself. |
| 13.2 | Accounts |
The Chargee may settle and pass the accounts of the prior security and any accounts so
settled and passed will be conclusive and binding on the Chargor. |
| 13.3 | Costs of redemption or transfer |
All principal monies, interest, costs, charges and expenses of and incidental to any
redemption or transfer will be paid by the Chargor to the Chargee on demand together with
accrued interest thereon (after as well as before judgment) at the rate set out in Clause
11.5 (Interest on demands) from the time or respective times of the same having been paid
or incurred until payment thereof (after as well as before judgment). |
| 14. | CALCULATIONS AND CERTIFICATES |
| 14.1 | Accounts |
In any litigation or arbitration proceedings arising out of or in connection with this
Agreement, the entries made in the accounts maintained by the Chargee are prima facie
evidence of the matters to which they relate. |
| 14.2 | Certificates and Determinations |
Any certification or determination by the Chargee of a rate or amount under this
Agreement is, in the absence of manifest error, conclusive evidence of the matters to which
it relates. |
| 15. | ASSIGNMENT |
| 15.1 | Permitted Successors |
This Agreement shall be binding upon and shall inure to the benefit of each party and
its direct or subsequent legal successors, permitted transferees and assigns. |
| 15.2 | Chargee Successors |
This Agreement shall remain in effect despite any amalgamation or merger (however
effected) relating to the Chargee; and references to the Chargee shall include any assignee
or successor in title of the Chargee and any person who, under the laws of its jurisdiction
of incorporation or domicile, has assumed the rights and obligations of the Chargee under
this Agreement or to which, under such laws, those rights and obligations have been
transferred. |
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| 16. | NOTICES |
All communication to be made under or in connection with this Agreement shall be made
in accordance with Clause 27 (Notices) of the Management Agreement. |
| 17. | WAIVERS AND COUNTERPARTS |
|
| 17.1 | Waivers |
No waiver by the Chargee of any of its rights under this Agreement shall be effective
unless given in writing. |
| 17.2 | Counterparts |
This Agreement may be executed in any number of counterparts, and this has the same
effect as if the signatures on the counterparts were on a single copy of this Agreement. |
| 18. | LAW |
This Agreement is governed by Singapore law. |
| 19. | ENFORCEMENT |
| (a) | The courts of Singapore have exclusive jurisdiction to settle any dispute,
controversy or claim arising out of or in connection with this Agreement (including a
dispute relating to the existence, validity, interpretation, breach or termination of
this Agreement or the consequences of its nullity) (a “Dispute”). |
| (b) | The parties agree that the courts of Singapore are the most appropriate and
convenient courts to settle disputes and accordingly no party will argue to the
contrary. |
| (c) | This Clause 19 is for the benefit of the Chargee only. As a result and
notwithstanding paragraph (a) above, it does not prevent the Chargee from taking
proceedings relating to a Dispute in any other courts with jurisdiction. To the extent
allowed by law, the Chargee may take concurrent proceedings in any number of
jurisdictions. |
| 20. | PROCESS AGENT |
Chargor agrees that the documents which start any proceedings relating to a Dispute
(the “Proceedings”) and any other documents required to be served in relation to those
Proceedings may be served on its advisers at the date of this Agreement, on its behalf and
irrevocably appoints such advisers as its agent to accept service of Proceedings (the
“Process Agent”). These documents may, however, be served in any other manner allowed by
law. This clause applies to all Proceedings wherever started. If for any reason the
Process Agent of the Chargor ceases to be able to act as such, the Chargor shall immediately
inform the Chargee of this, and undertakes to appoint a substitute Process Agent, and to
deliver to the Chargee a copy of the substitute Process Agent’s acceptance of that
appointment, within thirty (30) days of the original Process Agent ceasing to act as such. |
THIS AGREEMENT has been executed as a deed by the Chargor and Chargee and is delivered by it on the
date specified above.
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EXECUTION PAGE
Chargor |
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The COMMON SEAL of
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) | |||||
INFOCOMM ASIA HOLDINGS PTE. LTD.
|
) | |||||
was affixed hereto in accordance
|
) | |||||
with the Articles of Association of
|
) | |||||
the company.
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) |
[SIGNATURE PAGE TO SECURITY OVER SHARES AGREEMENT]
Chargee |
||||||
SIGNED, SEALED and DELIVERED
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) | |||||
as a DEED by:
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) | |||||
for and on behalf of:
|
) | X.X. | ||||
XXXXXXXX ENTERTAINMENT INTERNATIONAL
|
) | |||||
a division of Coöperatie Activision
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) | |||||
Blizzard International U.A.
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) | |||||
in the presence of:
|
Name: | |||||
| Title: | ||||||
Witness:
Name of witness:
Address of witness:
Occupation of witness:
Address of witness:
Occupation of witness:
[SIGNATURE PAGE TO SECURITY OVER SHARES AGREEMENT]
