EXHIBIT 10.45
Execution Copy
Dated 27 July 2004
ASIA NETCOM CORPORATON LIMITED
(as Assignor)
in favour of
INDUSTRIAL AND COMMERCIAL BANK OF CHINA (ASIA) LIMITED
(as Security Trustee)
------------------------------------------
SECURITY ASSIGNMENT
in respect of the
Deed of Right of First Refusal
------------------------------------------
XXXXXXXX XXXXXX
HONG KONG
[Security Assignment]
TABLE OF CONTENTS
CLAUSE NO. CLAUSE HEADING PAGE NO.
---------- -------------- --------
1. DEFINITIONS AND CONSTRUCTION................................................................. 1
2. ASSIGNMENT................................................................................... 3
3. CONTINUING AND INDEPENDENT SECURITY.......................................................... 4
4. REPRESENTATIONS AND WARRANTIES............................................................... 6
5. TAXES AND OTHER DEDUCTIONS................................................................... 9
6. COSTS, CHARGES AND EXPENSES.................................................................. 10
7. UNDERTAKINGS................................................................................. 11
8. ENFORCEMENT.................................................................................. 12
9. APPLICATION OF PROCEEDS...................................................................... 13
10. INDEMNITY.................................................................................... 13
11. SUSPENSE ACCOUNT............................................................................. 14
12. SET OFF...................................................................................... 14
13. POWER OF ATTORNEY............................................................................ 14
14. FURTHER ASSURANCE............................................................................ 15
15. NOTICES...................................................................................... 15
16. WAIVERS, AMENDMENTS AND CONSENTS, REMEDIES, SEVERABILITY, ASSIGNMENT AND COUNTERPARTS....... 16
17. GOVERNING LAW AND JURISDICTION............................................................... 17
SCHEDULE 1 - PART I: FORM OF NOTICE OF ASSIGNMENT......................................................... 20
SCHEDULE 2 - PART 2: FORM OF ACKNOWLEDGEMENT OF ASSIGNMENT................................................ 20
SIGNATURE PAGE............................................................................................ 22
[Security Assignment]
THIS DEED OF SECURITY ASSIGNMENT is made on 27 July 2004
BETWEEN:-
(1) ASIA NETCOM CORPORATION LIMITED, a company incorporated under the laws of
Bermuda whose registered office is situate at Xxxxxxxxx Xxxxx, 0 Xxxxxx
Xxxxxx, Xxxxxxxx, XX00 Xxxxxxx (the "ASSIGNOR"); and
(2) INDUSTRIAL AND COMMERCIAL BANK OF CHINA (ASIA) LIMITED, a company
incorporated under the laws of Hong Kong acting through its head office at
ICBC Xxxx Xxxxxxxx, 000-000 Xxxxx'x Xxxx Xxxxxxx, Xxxx Xxxx acting on its
own behalf and as facility agent and trustee for and on behalf of the
Finance Parties (the "SECURITY TRUSTEE").
WHEREAS:
(A) By a facility agreement signed on 2nd December, 2003 (but held undated in
escrow) as released from escrow and amended and restated by the
Supplemental Amendment and Restatement Deed (the "FACILITY AGREEMENT"),
entered into by (1) the Assignor, as borrower; (2) the banks and financial
institutions named therein as lenders (the "LENDERS"); (3) Industrial and
Commercial Bank of China (Asia) Limited as arranger; and (4) the Security
Trustee as facility agent, the Finance Parties have agreed, upon and
subject to the terms of the Facility Agreement, to make available to the
Assignor a term loan facility of up to US$150,000,000 (the "FACILITY") for
the purposes more particularly specified therein.
(B) The Security Trustee is acting as facility agent for the Finance Parties
pursuant to the Facility Agreement and as security trustee for the Finance
Parties pursuant to this Deed and the other Finance Documents.
(C) It is a condition precedent to the availability of the Facility under the
Facility Agreement that the Assignor shall have executed and delivered
this Deed to the Security Trustee assigning its rights, title and interest
in and to the Assigned Agreement (as defined below) by way of security.
NOW THIS DEED WITNESSES as follows:-
1. DEFINITIONS AND CONSTRUCTION
1.1 TERMS DEFINED
In this Deed, unless the context otherwise requires, terms used shall have
the meanings defined in the Facility Agreement and:-
"ASSIGNED AGREEMENT" means the Deed of Right of First Refusal.
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[Security Assignment]
"COLLATERAL" means all of the right, title, interest and benefit, present
and future, of the Assignor in and to the Assigned Agreement including,
without limitation:-
(i) the right to receive any and all moneys due or to become due to the
Assignor under or pursuant to the Assigned Agreement upon the
occurrence of an Event of Default;
(ii) all claims in respect of any breach of the Assigned Agreement
(including any claims for liquidated damages);
(iii) the right (but not the obligation) of the Assignor to perform and to
compel performance of the Assigned Agreement;
(iv) any right of the Assignor to rescind or otherwise terminate the
Assigned Agreement; and
(v) any right of the Assignor to give and receive notices, requests and
consents, to exercise discretion and to exercise all options and
elections under the Assigned Agreement.
"DEED OF RIGHT OF FIRST REFUSAL" means the deed of right of first refusal
entered or to be entered into between China Netcom Corporation (Hong Kong)
Limited and the Assignor.
"RECEIVER" means any receiver, manager, receiver and manager or other
similar officer appointed by the Security Trustee in respect of the
Security Interest hereby granted.
"SECURED OBLIGATIONS" means any and all moneys, liabilities and
obligations (whether actual or contingent, whether now existing or
hereafter arising, whether or not for the payment of money, and including,
without limitation, any obligation or liability to pay damages) which are
or may become due, owing or incurred by the Assignor or any other Security
Party which is a member of the CNC HK Group to any Finance Parties or any
of them under or pursuant to the Finance Documents and/or all other
obligations hereby secured.
1.2 TRUST
All rights, benefits, interests, powers and discretions granted to or
conferred on the Security Trustee pursuant to this Deed shall be held by
the Security Trustee on trust for the benefit of itself as Security
Trustee and each Finance Party from time to time. The Security Trustee may
do all acts within its powers to administer and manage the trust
constituted by this Clause including any full or partial release and/or
re-assignment by deed of the rights, benefits and interests conferred by
Clause 2.1 or the release of all or any part of the Collateral from this
Deed. The trust constituted by this Clause shall come into existence on
the date of this Deed and shall last for so long as any of the Secured
Obligations remain outstanding provided that for the purposes of the rule
against perpetuities, the perpetuity period applicable to the trust
constituted under this Clause and any dispositions made or to be made
pursuant to this Deed and this trust, is hereby specified as a period of
eighty (80) years less one (1) day from the date of this
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Deed.
1.3 CLAUSE HEADINGS
Clause headings and the table of contents are for ease of reference only
and shall be ignored in the interpretation of this Deed.
1.4 CONSTRUCTION
In this Deed, unless the context otherwise requires:-
(a) Clause 1.3 of the Facility Agreement shall be deemed incorporated in
this Deed mutatis mutandis as if set out separately in this Deed;
and
(b) references to the "ASSIGNOR", the "SECURITY TRUSTEE" or any "FINANCE
PARTY" include, where the context permits, include their respective
successors and transferees and permitted assigns in accordance with
their respective interests.
2. ASSIGNMENT
2.1 ASSIGNMENT
In consideration of the Lenders agreeing to make the Facility available to
the Assignor upon the terms and conditions of the Facility Agreement and
as a continuing security for the due and punctual performance and
discharge of the Secured Obligations, the Assignor, as beneficial owner,
hereby assigns absolutely by way of security all of its rights, title and
interest in and to the Collateral to the Security Trustee.
2.2 NOTICE OF ASSIGNMENT
The Assignor shall forthwith upon execution of this Deed deliver a notice
of assignment, in the form set out in Part I of the Schedule, to each of
the other parties to the Assigned Agreement and shall request that each
such other party to the Assigned Agreement executes and delivers to the
Security Trustee an acknowledgement of assignment in the form set out in
Part II of the Schedule.
2.3 PERFORMANCE AND INDEMNITY
Notwithstanding the foregoing, the Assignor shall remain liable to perform
all the obligations to be performed by it in respect of the Assigned
Agreement and shall discharge fully its obligations thereunder as they
become due and neither the Security Trustee nor any of the Finance Parties
shall have any obligation of any kind whatsoever thereunder or be under
any liabilities whatsoever in the event of any failure to perform their
obligations thereunder and the Assignor hereby indemnifies and agrees to
keep indemnified the Security Trustee, the other Finance Parties and each
of them from and against any such liability.
2.4 RELEASE AND TRANSFER
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(a) The Security Trustee shall, at the request and cost of the Assignor
and in such form as the Security Trustee shall reasonably approve,
release and transfer to the Assignor, the Collateral then the
subject of the Security Interest constituted by this Deed upon the
full performance and discharge of the Secured Obligations to the
satisfaction of the Security Trustee and the Finance Parties.
(b) Notwithstanding any discharge, release or settlement from time to
time between the Security Trustee and/or any other Finance Party and
the Assignor, if any security, disposition or payment granted or
made to the Security Trustee and/or any other Finance Party in
respect of the Secured Obligations by the Assignor or any other
person is avoided or set aside or ordered to be surrendered, paid
away, refunded or reduced by virtue of any provision, law or
enactment relating to bankruptcy, insolvency, liquidation,
winding-up, composition or arrangement for the time being in force
or for any other reason, the Finance Parties shall be entitled
thereafter to enforce this Deed as if no such discharge, release or
settlement had occurred.
2.5 REGISTRATION
The Assignor hereby authorises the Security Trustee forthwith upon
execution of this Deed to procure the delivery to the Companies Registry
in Hong Kong or other competent authority in the place of incorporation of
the Assignor of the particulars of this Deed.
3. CONTINUING AND INDEPENDENT SECURITY
3.1 CONTINUING SECURITY
This Deed and the security hereby created shall remain in full force and
effect by way of a continuing security notwithstanding the insolvency or
liquidation or any incapacity or change in the constitution or status of
the Assignor or any other person and in particular but without limitation
shall not be, nor be considered as, satisfied by any intermediate
discharge or payment on account of any liabilities or any settlement of
accounts between the Assignor and the Security Trustee and/or any Finance
Party.
3.2 ADDITIONAL SECURITY
This Deed and the security hereby created shall be in addition to and not
in substitution for or derogation of any other Security Interest,
guarantee or other security (whether given by the Assignor or otherwise)
now or from time to time hereafter held by the Security Trustee and/or any
Finance Party in respect of or in connection with the Secured Obligations.
3.3 UNRESTRICTED ENFORCEMENT
The Security Trustee need not before exercising any of the rights, powers
or remedies conferred upon it by this Deed or by law (i) take action or
obtain judgment against the
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[Security Assignment]
Assignor, or any other person in any court, (ii) make or file any claim or
prove in a winding-up or liquidation of the Assignor or of any other
person or (iii) enforce or seek to enforce the recovery of the monies and
liabilities hereby secured by any other security or other rights all of
which the Assignor hereby waive and may be enforced for any balance due
after resorting to any one or more other means of obtaining payments or
discharge of the monies, obligations and liabilities hereby secured.
3.4 NO DISCHARGE
The liabilities and obligations of the Assignor under this Deed and the
security constituted by this Deed shall remain in force notwithstanding
any act, omission, event or circumstance whatsoever until full, proper and
valid payment and discharge of the Secured Obligations and without
limiting the foregoing, neither the liabilities of the Assignor under this
Deed nor the validity or enforceability of this Deed shall be prejudiced,
affected or discharged by:-
(a) the granting of any time or indulgence to the Assignor or any other
person in respect of the Secured Obligations;
(b) any variation or modification of the Facility Agreement, any of the
other Finance Documents or any other documents referred to therein
or related thereto;
(c) the invalidity or unenforceability of any obligation or liability of
any party under the Facility Agreement, any of the other Finance
Documents or any other documents referred to therein or related
thereto;
(d) any invalidity or irregularity in the execution of the Facility
Agreement, any of the other Finance Documents or any other documents
referred to therein or relating thereto;
(e) any lack of capacity or deficiency in the powers of the Assignor or
any other person to enter into or perform any of its respective
obligations under the Facility Agreement or any of the other Finance
Documents to which it is party or any other documents referred to
therein or related thereto or any irregularity in the exercise
thereof or any lack of authority by any person purporting to act on
behalf of the Assignor or such other person;
(f) the insolvency, bankruptcy or liquidation or any incapacity,
disability or limitation or any change in the constitution or status
of the Assignor or any other person;
(g) any other Finance Document, Security Interest, guarantee or other
security or right or remedy being or becoming held by or available
to the Security Trustee, any Finance Party or by any other person or
by any of the same being or becoming wholly or partly void, voidable
or unenforceable or impaired or by the Security Trustee or any
Finance Party at any time releasing, refraining from enforcing,
varying or in any other way dealing with any of the same or any
power, right or remedy the Security Trustee and/or any Finance Party
may now or hereafter have from or against the Borrower, any Assignor
or any other
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person;
(h) any waiver, exercise, omission to exercise, compromise, renewal or
release of any rights against the Assignor or any other person or
any compromise, arrangement or settlement with any of the same; or
(i) any act, omission, event or circumstance which would or may but for
this provision operate to prejudice, affect or discharge this Deed
or the liability of the Assignor hereunder.
3.5 NO SUBROGATION
(a) The Assignor shall not exercise any right of subrogation,
contribution or any other rights of a surety or enforce any security
or other right or claim against the Assignor or any other person
(whether in respect of its liability under this Deed or otherwise)
who has guaranteed or given any security in respect of the Secured
Obligations or claim in the insolvency or liquidation of the
Assignor or any such other person in competition with the Security
Trustee and/or the Finance Parties.
(b) If the Assignor receives any payment or benefit in breach of this
Clause 3.5, it shall hold the same upon trust for the Security
Trustee as a continuing security for the Secured Obligations.
4. REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES
The Assignor hereby represents and warrants to the Security Trustee for
the benefit of the Finance Parties that:-
(a) STATUS: the Assignor is a company duly incorporated and validly
existing under the laws of Bermuda and has full power, authority and
legal right to own its property and assets and to carry on its
business as such business is now being conducted;
(b) POWER AND AUTHORITY: the Assignor has all legal power and authority
to enter into this Deed and perform its obligations under this Deed
and all actions (including any corporate action) required to
authorise the execution and delivery of this Deed and the
performance of its obligations under this Deed have been duly taken;
(c) LEGAL VALIDITY: this Deed constitutes or, when so executed and
delivered, will constitute legal, valid and binding obligations of
the Assignor enforceable in accordance with its terms;
(d) NON-CONFLICT WITH LAWS: the entry into and performance of this Deed
and the transactions contemplated by this Deed do not and will not
conflict with or result in (i) a breach of any law, judgment or
regulation or any official or judicial order,
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[Security Assignment]
or (ii) a breach of the constitutional documents of the Assignor, or
(iii) a material breach of any agreement or document to which the
Assignor is a party or which is binding upon it or any of its assets
or revenues with a monetary value greater than US$500,000, nor cause
any limitation placed on it or the powers of its directors to be
exceeded or result in the creation or imposition of any Security
Interest on any part of the Collateral pursuant to the provisions of
any such agreement or document;
(e) NO CONSENTS: other than the Consents and any registration of this
Deed by the Security Trustee pursuant to Clause 2.5, no consent,
authorisation, licence or approval of, or registration with or
declaration to, any governmental or public bodies or authorities or
courts in Hong Kong or in any relevant jurisdiction is required for
or in connection with the execution, delivery, validity,
enforceability and admissibility in evidence in proceeding of this
Deed, or the performance by, the Assignor of any of its obligations
under this Deed;
(f) NO REGISTRATION: it is not necessary in order to ensure the
legality, validity, enforceability or admissibility in evidence of
this Deed that it or any other instrument be notarised, filed,
recorded, registered or enrolled in any court or other authority or
that any stamp, registration or similar tax or charge be paid on or
in relation to this Deed and this Deed is in proper form for its
enforcement in the courts of Hong Kong and all jurisdictions the
subject of any legal opinion referred to in paragraph 4 of Schedule
3 of the Facility Agreement;
(g) LITIGATION: except as disclosed in a letter of even date from the
Borrower to the Security Trustee, no litigation, arbitration or
administrative proceeding is currently taking place or pending or,
to the knowledge of the officers of the Assignor, threatened against
the Assignor or any of its assets which could, in the reasonable
opinion of the Security Trustee, materially and adversely affect its
business, assets or financial condition or its ability to perform
its obligations under this Deed;
(h) WINDING UP: it has not taken any corporate action or no other step
has been taken or legal proceedings have been commenced or
threatened against it for its winding-up, dissolution,
administration or reorganisation or for the appointment of a
receiver, administrator, trustee or similar officer of it or all or
any of its assets or revenues, except as permitted by clause 17.1(g)
(Winding-up) of the Facility Agreement;
(i) TAXES ON PAYMENTS: all payments to be made by the Assignor under
this Deed may be made by the Assignor free and clear of, and without
deduction for, Taxes and no deductions or withholdings are required
to be made therefrom save as specified in any legal opinion referred
to in paragraphs 2, 3 and 4 of Schedule 3 to the Facility Agreement;
and no Taxes are imposed on or by virtue of the execution or
delivery by the Assignor of this Deed or any document to be executed
or delivered under this Deed;
(j) TAX LIABILITIES: the Assignor has complied with all Taxation laws in
all material
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respects in all jurisdictions in which it is subject to Taxation and
has paid all Taxes due and payable by it; no material claims are
being asserted against it with respect to Taxes;
(k) NO DEFAULT:
(i) no Default has occurred and is continuing:
(ii) it is not, or with the giving of notice or lapse of time or
satisfaction of any other condition or any combination
thereof, would not be in material breach of or in default
under any agreement relating to Financial Indebtedness to
which it is a party or by which it may be bound;
(l) COMPLIANCE, WITH CONSENTS AND LICENSES: every consent,
authorisation, licence or approval required for the time being by it
in connection with the conduct of its business and the ownership,
use, exploitation or occupation of its property and assets has been
applied for and not refused or has been obtained and is in full
force and effect and there has been no material default in the
observance of the conditions and restrictions (if any) imposed on,
or in connection with, any of the same which may have a material
adverse effect on its ability to perform its obligations under this
Deed and, to the knowledge of its officers, no circumstances have
arisen whereby any remedial action is likely to be required to be
taken by it, or at its expense under or pursuant to any law or
regulation applicable to its business, property or assets;
(m) NO FINANCIAL INDEBTEDNESS: it does not have any Financial
Indebtedness other than as permitted by Clause 16.17 of the Facility
Agreement;
(n) NO IMMUNITY: the Assignor is generally subject to civil and
commercial law and to legal proceedings and neither the Assignor nor
any of its assets or revenues is entitled to any immunity or
privilege (sovereign or otherwise) from any set-off, judgment,
execution, attachment or other legal process;
(o) SOLE AND BENEFICIAL OWNER: the Assignor is or will be the sole,
absolute and beneficial owner of the Collateral;
(p) LEGAL AND BINDING OBLIGATIONS: the obligations of the parties to the
Assigned Agreement are legal, valid and binding and enforceable in
accordance with its terms;
(q) SECURITY INTEREST: no Security Interest exists in any of its rights,
title, interests or benefits in the Collateral (other than as
created by this Deed); and
(r) THIRD PARTY RIGHT: it has not granted in favour of any other person
any interest in or any option or other rights in respect of any of
the Collateral.
4.2 CONTINUING REPRESENTATION AND WARRANTY
The Assignor also represents and warrants to and undertakes with the
Security Trustee
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that the foregoing representations and warranties in Clause 4.1 (a) to (n)
inclusive are deemed to be made by the Assignors on each Drawdown Date and
on each Interest Payment Date with reference to the facts and
circumstances then existing and that the foregoing representations in
Clause 4.1(o) and (p) will be true and accurate throughout the continuance
of this Deed with reference to the facts and circumstances from time to
time.
5. TAXES AND OTHER DEDUCTIONS
5.1 TAX GROSS-UP
(a) All sums payable by the Assignor under this Deed shall be paid in
full without any restriction or condition and free and clear of any
Tax or other deductions or withholdings of any nature.
(b) If at any time the Assignor or any other person is required in any
jurisdiction to make any deduction or withholding in respect of
Taxes or otherwise from any payment due under this Deed for the
account of the Security Trustee or any Finance Party (or if the
Security Trustee is required to make any such deduction or
withholding from a payment to other Finance Parties), the sum due
from the Assignor in respect of such payment shall be increased to
the extent necessary to ensure that, after the making of such
deduction or withholding, the Security Trustee and each Finance
Party receives on the due date for such payment (and retains, free
from any liability in respect of such deduction or withholding) a
net sum equal to the sum which it would have received had no such
deduction or withholding been required to be made.
(c) The Assignor's obligations under Clause 5.1(a) and (b) shall not
apply in respect of any Tax on Overall Net Income levied on the
Security Trustee or any other Finance Party.
(d) All Taxes required by law to be deducted or withheld by the Assignor
from any amounts paid or payable under this Deed shall be paid by
the Assignor when due (except for such amounts being disputed by the
Assignor in good faith) to the relevant tax authority.
5.2 TAX INDEMNITY
The Assignor shall indemnify the Security Trustee and each other Finance
Party against any losses or costs incurred by any of them by reason of:
(a) any failure of the Assignor or any other person to make any such
deduction or withholding referred to in Clause 5.1; or
(b) any increased payment referred to in Clause 5.1 not being made on
the due date for such payment; or
(c) any Taxes which are being disputed by the Assignor and remaining
unpaid;
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and
(d) any liability suffered (directly or indirectly) for or on account of
Tax by that Finance Party in respect of any payment received or
receivable or deemed to be received or receivable under this Deed.
5.3 EVIDENCE OF PROOF
The Assignor shall promptly deliver to the Security Trustee any receipts,
certificates or other proof evidencing the amounts (if any) paid or
payable in respect of any deduction or withholding as aforesaid. Any
certificate or determination of the Security Trustee showing in reasonable
details the calculations made by the Security Trustee as to any amount for
the purposes of this Clause 5 shall, in the absence of manifest error, be
conclusive and binding on the Assignor.
5.4 TAX CREDIT
If the Assignor makes a Tax payment and the Security Trustee determines
that:-
(a) a Tax Credit is attributable either to an increased payment of which
that Tax payment forms part, or to that Tax payment; and
(b) it has obtained, utilised and retained that Tax Credit,
the Security Trustee shall, promptly after obtaining the benefit of that
Tax Credit, pay an amount to the Assignor which will leave it (after that
payment) in the same after-Tax position as it would have been in had the
Tax Payment not been required to be made by the Assignor.
6. COSTS, CHARGES AND EXPENSES
6.1 The Assignor shall from time to time forthwith on demand pay to or
reimburse the Finance Parties and the Receiver (on the basis of a full
indemnity) the amount of:
(a) all costs, charges and expenses properly incurred by the Finance
Parties or the Receiver in connection with the investigation of
title to or any survey, inspection or valuation of the Collateral
under or in connection with this Deed following an Event of Default,
and the negotiation, preparation, registration, perfecting,
amendment, modification or administration of this Deed (or any of
the charges therein contained) or any other document relating
thereto;
(b) all costs, charges and expenses properly incurred by the Finance
Parties or the Receiver in connection with the exercise, or the
attempted exercise, by or on behalf of the Security Trustee or any
other Finance Party or the Receiver of any of the powers of the
Security Trustee or any other Finance Party or the Receiver, or any
other action taken by or on behalf of the Security Trustee or any
other Finance Party with a view to or in connection with the
recovery by
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the Security Trustee or any other Finance Party of the Secured
Obligations from the Assignor or any other person;
(c) all costs, charges and expenses properly incurred by the Finance
Parties or the Receiver in connection with the carrying out of any
other act or matter which the Security Trustee or any Finance Party
or the Receiver may reasonably consider to be necessary or required
for the preservation of the Collateral; and
(d) all costs, charges and expenses (including legal and other fees on a
full indemnity basis) properly incurred by the Security Trustee or
any other Finance Party or Receiver in exercising any of its rights
or powers hereunder or in suing for or seeking to recover any sums
due hereunder or otherwise preserving or enforcing its rights
hereunder or in defending any claims brought against it in respect
of this Deed or in releasing or re-assigning this Deed upon payment
of all moneys hereby secured,
and until payment of the same in full, all such costs, charges and
expenses shall be guaranteed by this Deed.
6.2 STAMP DUTY
The Assignor shall pay all stamp, documentary, registration or other like
duties or taxes (including any duties or taxes payable by the Security
Trustee or any Finance Party) imposed on or in connection with this Deed
and shall indemnify each of the Security Trustee and the other Finance
Parties against any liability arising by reason of any delay or omission
by the Assignor to pay such duties or taxes.
7. UNDERTAKINGS
The Assignor hereby undertakes and agrees with the Security Trustee for
the benefit of the Finance Parties throughout the continuance of this Deed
and so long as the Secured Obligations or any part thereof remains owing
that, unless the Security Trustee otherwise agrees in writing, it will:-
(a) perform all its obligations under the Assigned Agreement;
(b) notify the Security Trustee of any breach by any party to the
Assigned Agreement;
(c) give to the Security Trustee upon receipt copies of all notices,
requests and other documents sent or received with respect to the
Assigned Agreement;
(d) give to the Security Trustee such information regarding the
Collateral as the Security Trustee shall reasonably require;
(e) do or permit to be done every act or thing which the Security
Trustee may require to be done for the purpose of enforcing the
rights of the Security Trustee hereunder and will allow its name to
be used as and when required for that
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purpose;
(f) not amend or agree to amend the Assigned Agreement or waive any of
its rights thereunder without the prior written consent of the
Security Trustee (such consent not to be unreasonably withheld);
(g) not create or attempt or agree to create or permit to exist any
Security Interest over all or any part of the Collateral or any
interest therein or otherwise assign, deal with or dispose of all or
any part of the Collateral (except under or pursuant to this Deed);
(h) not sell or agree to sell, transfer or assign, any part of the
Collateral;
(i) not grant in favour of any other person any interest in or any
option or other rights in respect of any of the Collateral; and
(j) not do or cause or permit to be done anything which may in any way
depreciate, jeopardise or otherwise prejudice the value of the
Security Trustee's security hereunder.
8. ENFORCEMENT
8.1 EVENTS OF DEFAULT
The security created by this Deed shall become enforceable immediately
upon the occurrence of an Event of Default which is continuing. For the
purposes of this Clause, each of the following events and circumstances
shall be an Event of Default:-
(a) any Event of Default as that term is defined in the Facility
Agreement;
(b) if the Assignor purports or attempts to create any Security Interest
(except under or as permitted by this Deed) over all or any part of
the Collateral or any third party asserts a claim in respect
thereof.
8.2 ENFORCEMENT OF SECURITY
Upon this Assignment becoming enforceable, the Security Trustee may, at
any time or times thereafter and without further notice or restriction,
except as required in accordance with any applicable laws, be entitled to
exercise and enforce any or all rights of the Assignor in respect of the
Collateral in or towards the payment or discharge of the Secured
Obligations in accordance with Clause 9, for this purpose, the Security
Trustee may, at the expense of the Assignor, convert all or any part of
such monies into other currencies. The above provisions apply
notwithstanding any other terms upon which such monies may have been
deposited or that any such monies may have been deposited for a fixed
period or be subject to a period of notice and that the fixed period or
period of notice may not have expired or that notice or sufficient notice
may not have been given.
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[Security Assignment]
8.3 AMENDMENT
Any amendment or waiver of any provision of this Deed and any waiver of
any default under this Deed shall only be effective if made in writing and
signed by the Security Trustee.
8.4 EVIDENCE OF DEBT
Any statement of account signed as correct by the Security Trustee showing
any amount due under the Facility Agreement or under any other Finance
Document or under this Deed shall, in the absence of manifest error, be
conclusive evidence of the amount so due.
9. APPLICATION OF PROCEEDS
All monies received by the Security Trustee or the Receiver hereunder
shall be applied in or towards satisfaction of the Secured Obligations
(subject to the prior discharge of all liabilities having priority thereto
by law) in the following order of priority:-
(a) in payment or satisfaction of all costs, charges, expenses and
liabilities properly incurred and payments made by or on behalf of
the Security Trustee or the Receiver in connection with the exercise
of any powers hereunder and in preserving or attempting to preserve
this security or the Collateral and of all outgoings in respect of
the Collateral paid by the Security Trustee or the Receiver pursuant
to this Deed;
(b) in payment to the Receiver of all remuneration as may be agreed
between it and the Security Trustee to be paid to him at, or at any
time after, its appointment;
(c) in or towards reduction of the remaining Secured Obligations in such
manner as is provided in the Facility Agreement; and
(d) the surplus (if any) to the Assignor.
10. INDEMNITY
10.1 GENERAL INDEMNITY
The Assignor hereby undertakes with the Security Trustee to indemnify and
keep indemnified the Finance Parties and each of them (each an
"INDEMNITEE") from and against all costs, charges and expenses which the
Security Trustee or such Finance Party shall properly incur in connection
with the exercise of any powers conferred by this Deed or the perfection,
preservation or enforcement of the security created by this Deed (unless
and to the extent that any of the foregoing results directly from the
fraud, gross negligence or wilful misconduct of that indemnitee).
10.2 CURRENCY INDEMNITY
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[Security Assignment]
(a) If an amount due to the Security Trustee or any Finance Party from
the Assignor under this Deed (a "SUM"), or any order, judgment or
award given or made in relation to a sum, has to be converted from
the currency (the "FIRST CURRENCY") in which that Sum is payable
into another currency (the "SECOND CURRENCY") for the purpose of:
(i) making or filing a claim or proof against the Assignor;
(ii) obtaining or enforcing an order, judgment or award in relation
to any litigation or arbitration proceedings,
the Assignor shall, as an independent obligation to the Security
Trustee or such Finance Party, indemnify the Security Trustee or
such Finance Party to whom that sum is due against any cost, loss or
liability arising out of or as a result of the conversion including
any discrepancy between (A) the rate of exchange used to convert
that sum from the first currency into the second currency and (B)
the rate or rates of exchange available to that person at the time
of its receipt of that sum.
(b) The Assignor waives any right it may have in any jurisdiction to pay
any amount under the Facility Agreement and/or any other Finance
Document in a currency or currency unit other than that in which it
is expressed to be payable.
10.3 PAYMENT AND SECURITY
The Security Trustee or any other Finance Parties may retain and pay out
of any money in the hands of the Security Trustee or such Finance Party
all sums necessary to effect the indemnity contained in this Clause and
all sums payable by any Assignor under this Clause shall form part of the
monies hereby secured.
11. SUSPENSE ACCOUNT
The Security Trustee may, notwithstanding Clause 9 (Application of
Proceeds), place and keep any monies received under this Deed, before or
after the insolvency of the Assignor, to the credit of a suspense account
in order to preserve the rights of the Security Trustee or the Finance
Parties to xxx or prove for the whole amount in respect of claims against
the Assignor or any other person.
12. SET OFF
(a) Without prejudice to any right of set-off, combination of accounts,
lien or other rights which the Security Trustee or any Receiver is
at any time entitled whether by operation of law or contract or
otherwise, the Security Trustee and the Receiver may (but shall not
be obliged to) set off against any obligation of the Assignor due
and payable by it hereunder without prior notice any moneys held
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[Security Assignment]
by the Security Trustee or such Receiver for the account of the
Assignor at any office of the Security Trustee or such Receiver
anywhere and in any currency. The Security Trustee or such Receiver
may effect such currency exchanges as are appropriate to implement
such set off.
(b) If the obligations are in different currencies, the Security Trustee
or any Receiver may convert either obligation at a market rate of
exchange in its usual course of business for the purpose of the
set-off.
13. POWER OF ATTORNEY
13.1 POWER OF ATTORNEY
The Assignor irrevocably appoints the Security Trustee, the Receiver and
any persons deriving title under it by way of security jointly and
severally to be its attorney (with full power of substitution) and in its
name or otherwise on its behalf and as its act and deed to sign, seal,
execute, deliver, perfect and do all deeds, instruments, acts and things
which may be required or which the Security Trustee or the Receiver shall
think proper or reasonably expedient for carrying out any obligations
imposed on the Assignor hereunder or for exercising, following the
security constituted by this Deed becoming enforceable, any of the powers
conferred by this Deed or for giving to the Security Trustee the full
benefit of this security and so that this appointment shall operate to
authorise the Security Trustee and the Receiver to do on behalf of the
Assignor anything it can lawfully do by an attorney. The Assignor ratifies
and confirms and agrees to ratify and confirm any deed, instrument, act or
thing which such attorney or substitute may execute or do in exercising
its powers conferred by this Clause.
13.2 DELEGATION
The Security Trustee and/or the Receiver may delegate to any person all or
any of the rights or powers conferred on it by this Deed or by law Any
such delegation may be made upon such terms and conditions (including
power to sub-delegate) as the Security Trustee or the Receiver thinks fit.
14. FURTHER ASSURANCE
The Assignor agrees that at any time and from time to time upon the
written request of the Security Trustee it will promptly and duly execute
and deliver any and all such further instruments and documents as the
Security Trustee may reasonably require for the purpose of obtaining the
full benefit of this Deed and of the rights and powers herein granted.
15. NOTICES
15.1 NOTICES
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[Security Assignment]
Any notice or communication under or in connection with this Deed shall be
in writing and shall be delivered personally or by prepaid letter (airmail
if available) or facsimile transmission to the addresses or facsimile
numbers set out below or at such other address as the recipient may have
notified to the other parties in writing. Proof of posting or despatch of
any notice or communication to any party hereto shall be deemed to be
proof of receipt:-
(a) in the case of a letter, on the fifth Business Day after posting if
airmail or second Business Day if local mail;
(b) in the case of a facsimile transmission, on the Business Day
immediately following the date of despatch with confirmed facsimile
report.
All communications or other correspondence between the Assignor and any of
the Finance Parties in connection with this Deed shall be made through the
Security Trustee.
15.2 ADDRESSES
Notices or communications shall be sent to the following addresses:-
To the Assignor:-
Name Asia Netcom Corporation Limited
Address 00/X Xxxxxx Xxxx Xxxxxx
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Fax (000) 0000 0000
Attention Xxxxxxx Xxxxxxxx/Wenlong Sun
With a copy to: Asia Netcom Singapore Pte Limited
0 Xxxxxxx Xxx #00-00
XXX Xxxxxx 0
Xxxxxxxxx 000000
Fax (00) 0000 0000
Attention Xxxxxx Xx
To the Security Trustee:-
Name Industrial and Commercial Bank of China
(Asia) Limited
Address 10/F, ICBC Asia Xxxxxxxx
000-000 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Fax (000) 0000 0000
Attention Xx. Xxxxxx Xxxxx/ Ms. Xxx Xxxx
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[Security Assignment]
15.3 LANGUAGE
Each notice or document referred to in this Deed or to be delivered under
this Deed shall be in the English language.
16. WAIVERS, AMENDMENTS AND CONSENTS, REMEDIES, SEVERABILITY, ASSIGNMENT AND
COUNTERPARTS
16.1 WAIVERS
No failure or delay on the part of the Security Trustee or Finance Party
to exercise any power, right or remedy under this Deed shall operate as a
waiver thereof, nor shall any single or partial exercise by the Security
Trustee or any Finance Party of any power, right or remedy preclude any
other or further exercise thereof or the exercise of any other power,
right or remedy.
16.2 AMENDMENTS AND CONSENTS
(a) Any amendment of any provision of this Deed shall only be effective
if made in accordance with provisions with this Deed and if all
parties hereto so agree in writing and any waiver of any breach or
default under this Deed shall only be effective if the Security
Trustee acting on the instructions of the Lenders or the Majority
Lenders (as the case may be), agrees in writing. Any consent by the
Security Trustee under this Deed must be made in writing.
(b) Any such waiver or consent may be given subject to any conditions
thought fit by the Security Trustee acting on the instructions of
the Lenders or the Majority Lenders, as the case may be, and shall
be effective only in the instance and for the purpose for which it
is given.
16.3 REMEDIES
The remedies provided in this Deed are cumulative and are not exclusive of
any remedies provided by law.
16.4 SEVERABILITY
If any provision of this Deed is prohibited or unenforceable in any
jurisdiction such prohibition or unenforceability shall not invalidate the
remaining provisions hereof or affect the validity or enforceability of
such provision in any other jurisdiction.
16.5 ASSIGNMENT
The Security Trustee may assign its rights under this Deed in accordance
with the provisions of the Facility Agreement. The Assignor shall not
assign any of its rights hereunder without the prior written consent of
the Security Trustee.
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[Security Assignment]
16.6 COUNTERPARTS
This Deed may be executed in any number of counterparts including by
facsimile and all of which taken together shall constitute one and the
same instrument, and any party hereto may execute this Deed by signing any
such counterpart.
16.7 It is intended that this document takes effect as a deed notwithstanding
the fact that a party may only execute this document under hand.
17. GOVERNING LAW AND JURISDICTION
17.1 GOVERNING LAW
This Deed is governed by the laws of Hong Kong.
17.2 SUBMISSION TO JURISDICTION
For the benefit of the Security Trustee and each Finance Party, the
Assignor irrevocably agrees that the courts of Hong Kong are to have
jurisdiction to settle any disputes which may arise out of or in
connection with this Deed and that, accordingly, any legal action or
proceedings arising out of or in connection with this Deed ("PROCEEDINGS")
may be brought in those courts and the Assignor irrevocably submits to the
jurisdiction of those courts.
17.3 OTHER JURISDICTIONS
Nothing in this Clause 17 (Governing Law and Jurisdiction) shall limit the
right of the Security Trustee or any Finance Party to take Proceedings
against the Assignor in any other court of competent jurisdiction nor
shall the taking of Proceedings in one or more jurisdictions preclude the
Security Trustee or any Finance Party from taking Proceedings in any other
jurisdiction, whether concurrently or not.
17.4 WAIVER OF INCONVENIENT FORUM
The Assignor irrevocably waives any objection which it may at any time
have to the laying of the venue of any Proceedings in any court referred
to in this Clause 17 (Governing Law and Jurisdiction) and any claim that
any such Proceedings have been brought in an inconvenient forum.
17.5 PROCESS AGENT
The Assignor hereby irrevocably appoints Asia Netcom Asia Pacific
Commercial Limited of 00xx Xxxxx, Xxxxxx Xxxx Xxxxxx, 0 Xxxxx'x Xxxx
Xxxxxxx, Xxxx Xxxx to receive, for it and on its behalf, service of
process in any Proceedings in Hong Kong. Such service shall be deemed
completed on delivery to the process agent whether or not it is forwarded
to and received by the Assignor). If for any reason the process agent
ceases to be able to act as such or no longer has an address in Hong Kong,
the Assignor irrevocably agrees to appoint a substitute process agent
acceptable to the
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[Security Assignment]
Security Trustee, and to deliver to the Security Trustee a copy of the new
process agent's acceptance of that appointment, within 30 days.
17.6 SERVICE
The Assignor irrevocably consents to any process in any Proceeding
anywhere being served by mailing a copy by post in accordance with Clause
15 (Notices). Nothing shall affect the right to serve any process in any
other manner permitted by law.
17.7 WAIVER OF IMMUNITIES
To the extent that the Assignor has or hereafter may acquire any immunity
(sovereign or otherwise) from any legal action, suit or proceeding, from
jurisdiction of any court or from set-off or any legal process (whether
service or notice, attachment prior to judgment, attachment in aid of
execution of judgment, execution of judgment or otherwise) with respect to
itself or any of its property, the Assignor hereby irrevocably waives and
agrees not to plead or claim such immunity in respect of its obligations
under this Deed.
IN WITNESS whereof this Deed has been executed by the parties hereto and is
intended to be and is hereby delivered by the Assignor as its deed on the day
and year first above written.
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[Security Assignment]
SCHEDULE
PART I
FORM OF NOTICE OF ASSIGNMENT
To: China Netcom Corporation (Hong Kong) Limited
Copy to: Industrial and Commercial Bank of China (Asia) Limited
Date: 2004
Dear Sirs,
We refer to the Deed of Right of First Refusal dated [_____________________] and
made between us (the "DEED").
We hereby give you notice that by a deed of security assignment dated as of the
date of this Notice (a copy of which is attached), we have assigned to the
Industrial and Commercial Bank of China (Asia) Limited (the "SECURITY TRUSTEE")
all our rights, title, interest and benefits in and to the Deed and all benefits
and proceeds thereof.
Following an event of default as notified by the Security Trustee, we hereby
irrevocably instruct you that all payments which you may be required to make
under the Deed shall be made directly to the Security Trustee or its order.
However, in all other respects you shall continue to deal with us in respect of
the Deed until you receive written notice to the contrary from the Security
Trustee.
These instructions shall not be altered or revoked by us without the prior
written consent of the Security Trustee.
This letter is governed by the laws of Hong Kong.
Please acknowledge this Notice by signing and returning the enclosed
acknowledgement to the Security Trustee with a copy to ourselves.
Yours faithfully,
--------------------------------------
ASIA NETCOM CORPORATION LIMITED
(Authorised Signatory)
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[Security Assignment]
SCHEDULE
PART II
FORM OF ACKNOWLEDGEMENT OF ASSIGNMENT
To: Industrial and Commercial Bank of China (Asia) Limited
Copy to: Asia Netcom Corporation Limited
We acknowledge receipt from Asia Netcom Corporation Limited (the "ASSIGNOR") of
a notice dated [__________________] (the "NOTICE") of a security assignment upon
the terms of the Deed of Security Assignment dated [_________________] of all
the Assignor's rights, title, interest and benefit in and to the Deed. We
confirm that we:-
(a) have received no other notice in respect of the Deed;
(b) are not aware of any default by any party in the performance of its
obligations under the Deed; and
(c) will comply with the terms of the said Notice.
This letter shall be governed by the laws of Hong Kong.
Dated _________________________
-----------------------------
for and on behalf of
CHINA NETCOM CORPORATION (HONG KONG) LIMITED
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[Security Assignment]
SIGNATURE PAGE
ASSIGNOR
SIGNED, SEALED AND DELIVERED )
as a Deed by its duly authorised attorney )
)
for and on behalf of )
ASIA NETCOM CORPORATION LIMITED )
in the presence of:- )
SECURITY TRUSTEE
SIGNED by )
)
for and on behalf of )
INDUSTRIAL AND COMMERCIAL BANK )
OF CHINA (ASIA) LIMITED )
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