EXHIBIT 10.38
EXECUTION COPY
ASIA NETCOM SINGAPORE PTE. LTD.
AS ASSIGNOR
and
THE INDUSTRIAL AND COMMERCIAL BANK OF CHINA (ASIA) LIMITED
AS SECURITY TRUSTEE
--------------------------------------------------------------------------------
ASSIGNMENT OF BUILDING AGREEMENT
DATED 2004
--------------------------------------------------------------------------------
WTL
WONG TAN & XXXXX XXX LLC
Advocates & Solicitors * Notaries Public
Commissioners for Oaths
00 Xxxxxxxx Xxxx #00-00
Xxxxxxxxx 000000
Tel: 0000 0000
Fax: 0000 0000
(RP/2004192267IR/ja)
(SW/CSJ/NHP/2004192267IR)
TABLE OF CONTENTS
CONTENTS PAGE
1. INTERPRETATION ............................................................. 1
2. COVENANT TO PAY ............................................................ 3
3. ASSIGNMENT ................................................................. 3
4. CONTINUING SECURITY ........................................................ 5
5. REPRESENTATIONS AND WARRANTIES ............................................. 6
6. UNDERTAKINGS ............................................................... 7
7. CONTINUING OBLIGATIONS ..................................................... 9
8. INDEMNITY .................................................................. 9
9. ENFORCEMENT ................................................................ 10
10. APPLICATION OF MONEYS ..................................................... 10
11. DELEGATION ................................................................ 11
12. FURTHER ASSURANCE ......................................................... 11
13. POWER OF ATTORNEY ......................................................... 11
14. AVOIDANCE OF PAYMENTS ..................................................... 12
15. BENEFIT OF ASSIGNMENT ..................................................... 12
16. REMEDIES AND WAIVERS ...................................................... 12
17. CURRENCY INDEMNITY ........................................................ 13
18. PARTIAL INVALIDITY ........................................................ 13
19. THE CONTRACTS (RIGHTS OF THIRD PARTIES) ACT, CAP 53B ...................... 13
20. COMMUNICATIONS ............................................................ 13
21. GOVERNING LAW ............................................................. 14
SCHEDULE ...................................................................... 15
APPENDIX ...................................................................... 16
This Assignment is made on the day of 2004 between:
(1) ASIA NETCOM SINGAPORE PTE. LTD. ("the ASSIGNOR"), a company incorporated
in Singapore with its registered office 0 Xxxxxxx Xxx #00-00 XXX Xxxxxx 0
Xxxxxxxxx 000000; 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 security 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 and Amendment Deed (the "FACILITY AGREEMENT"), entered into
by (1) Asia Netcom Corporation Limited, as borrower (the "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 Borrower 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 agent and trustee for
the Finance Parties pursuant to this Deed and 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 of Assignment in respect of the Building Agreement.
It is agreed as follows:
1. INTERPRETATION
1.1 Definitions: In this Assignment, except to the extent that the context
requires otherwise:
"ACT" means the Conveyancing and Law of Property Act, Chapter 61;
"ASSIGNED PROPERTY" means all the assets and property of the Assignor
assigned under or pursuant to Clause 3.1;
"BUILDING AGREEMENT" means the building agreement dated 9 May 2002 entered
into between the Lessor and Assignor pursuant to the Letter of Offer (and
any reference in this Assignment to the Building Agreement includes the
Building Agreement as from time to time amended, modified and supplemented
and any document which amends, modifies or supplements the Building
Agreement);
"BUSINESS DAY" means any day (other than a Saturday or Sunday) on which
commercial banks are generally open for business in Singapore and Hong
Kong;
"COMPANIES ACT" means the Companies Act, Chapter 50 of Singapore;
"DEFAULT RATE" has the meaning assigned thereto in the Facility Agreement;
"ESCROW MORTGAGE" means a mortgage executed or to be executed in escrow by
the Assignor, as mortgagor in favour of the Security Trustee, as
mortgagee, substantially in the form of the Appendix (or in such other
form as may be approved by the Security Trustee), as amended, modified and
supplemented from time to time;
"EVENT OF DEFAULT" has the meaning assigned thereto in the Facility
Agreement;
"FACILITY AGENT" has the meaning assigned thereto in the Facility
Agreement;
"INTEREST PAYMENT DATE" has the meaning assigned thereto in the Facility
Agreement;
"INTEREST RATE" has the meaning assigned in clause 8.1 of the Facility
Agreement;
"LEASE" means a lease of the Property granted or to be granted by the
Lessor to the Assignor on the terms and subject to the conditions set out
in the Building Agreement (and any reference in this Assignment to the
Lease includes the Lease as from time to time amended, modified or
supplemented and any document which amends, modifies or supplements the
Lease);
"LENDERS" has the meaning assigned thereto in the Facility Agreement;
"LESSOR" means Jurong Town Corporation and its successors in title and
assigns;
"LETTER OF OFFER" means the Letter of Offer dated 5 March 2001 from the
Lessor to the Assignor (under its former name of Asia Global Crossing
(Singapore) Pte Ltd) and accepted by the Assignor and the agreement
between the Lessor and the Assignor pursuant to the Assignor's acceptance
of the Letter of Offer and containing the Lessor's agreement to enter into
the Building Agreement and to grant to the Assignor the Lease (and any
reference in this Agreement to the Letter of Offer includes the Letter of
Offer as from time amended, modified and supplemented and any document
which amends, modifies or supplements the Letter of Offer);
"PARTIES" means the parties to this Assignment;
"PERMITTED SECURITY INTEREST" means any Security Interest permitted by
clause 16.16(a) of the Facility Agreement;
"PERSON" shall mean any individual, firm, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock
company, limited liability company, any governmental authority or other
entity of any kind, and shall include any successor (by merger or
otherwise) of such entity;
"PROPERTY" means the property described in the Schedule;
"SECURED OBLIGATIONS" means any and all moneys, liabilities and
obligations of the Borrower (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 Borrower or
any other Security Party which is a member of the CNC HK Group to the
Finance Parties or any of them under or pursuant to the Finance Documents
and/or all other obligations hereby secured;
"SECURITY INTEREST" has the meaning assigned thereto in the Facility
Agreement;
"SECURITY TRUSTEE" includes its successors and assigns.
2
1.2 THIS ASSIGNMENT: Except to the extent that the context otherwise requires
any reference to "this Assignment" includes this Assignment as amended,
modified or supplemented from time to time and shall include any document
which is supplemental to or is expressed to be collateral herewith, or is
entered into pursuant to or in accordance with the terms.
1.3 CONSTRUCTION
In this Deed, unless the context otherwise requires:-
(a) Clauses 1.1, 1.2 and 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 "BORROWER", the "ASSIGNOR", any "SECURITY PARTY",
the "SECURITY TRUSTEE" or any "FINANCE PARTY", and any other person
include, where the context permits, include their respective
successors and transferees and permitted assigns in accordance with
their respective interests.
2. COVENANT TO PAY
2.1 The Assignor hereby covenants that it will pay and discharge:
2.1.1 all amounts, interests, expenses, claims, liabilities, losses,
costs, duties, fees, charges or other moneys as are stated in this
Assignment to be payable by the Assignor to be recoverable from the
Assignor by the Security Trustee at the times and in the manner
specified in this Agreement; and
2.1.2 interest on any such amounts, interests, expenses, claims,
liabilities, losses, costs, duties, fees, charges or other moneys
referred to in Clause 2.1.1 from the date on which the relevant
amount, interest, expense, claim, liability, loss, cost, duty, fee,
charge or other money is paid or discharged by the Security Trustee
until the date of reimbursement thereof to the Security Trustee
(both before and after any relevant judgment) at the Interest Rate
or, if an Event of Default has occurred, at the Default Rate, such
interest to be calculated on the basis of a 360 day year and the
actual number of days elapsed. Accrued interest on all amounts
outstanding hereunder shall be payable in arrears on the Interest
Payment Date for the calendar month immediately preceding such
Interest Payment Date; provided however, that if an Event Default
has occurred, any such interest shall be payable on demand of the
Security Trustee and to be payable on demand.
3. ASSIGNMENT
3.1 ASSIGNMENT: In consideration of the Security Trustee agreeing, at the
request of the Assignor and the Borrower, upon and subject to the terms of
the Facility Agreement, to make available to the Borrower a term loan
facility of up to US$150,000,000.00 for the purposes more particularly
specified therein and as a continuing security for the Secured
Obligations, the Assignor as beneficial owner hereby assigns and agrees to
assign absolutely to the Security Trustee, free for all Security
Interests:
3.1.1 all the present and future rights, title, interest, benefits,
advantages, permits, licences and remedies which the Assignor has
in, under or arising out of the Building Agreement and the
Assignor's rights to the issue of the Lease whether pursuant to the
Building Agreement or otherwise;
3
3.1.2 all the present and future estate, right, title and interest
of the Assignor in and to the Property.
PROVIDED ALWAYS that such assignment shall be subject to the
provisions of the Building Agreement and the Lease and the claims of
the Lessor thereunder.
3.2 UNDERTAKINGS: The Assignor hereby undertakes to the Security Trustee
that:
3.2.1 PAYMENTS: the Assignor shall pay all sums of money and other
charges or payments as and when the same are due under the
Building Agreement and shall make all such payments and do all
such acts as may be required to obtain the grant to it of the
Lease or other document of title relating to the Property, and
produce to the Security Trustee as and when required the
issued receipts for all such payments and further the Assignor
shall observe and perform all the covenants, undertakings,
stipulations, terms and conditions therein contained and shall
save harmless and indemnify the Security Trustee in full
against all actions, proceedings, claims, demands, losses,
fees, expenses, damages, costs, liabilities and penalties
whatsoever in relation thereto;
3.2.2 LEASE: as soon as the Lease or other documents of title
relating to the Assigned Property shall have been issued and,
if required, the transfer relating thereto executed, the
Assignor shall forthwith cause the same to be delivered to the
Security Trustee and shall make all such payments and do all
such acts as shall enable the Escrow Mortgage referred to in
Clauses 3.3 and 3.4 to be completed and perfected;
3.2.3 AUTHORITY OF SECURITY TRUSTEE: if the Assignor shall neglect
or refuse to comply in any way with the provisions of Clauses
3.2.1 and 3.2.2, it shall be lawful for the Security Trustee
in the name of the Assignor or otherwise to demand and receive
the Building Agreement, the Lease or other documents of title
relating to the Property from the Lessor and to make such
payments and do such acts as shall enable the Escrow Mortgage
referred to in Clauses 3.3 and 3.4 to be completed and
perfected; and
3.2.4 NOTICES AND COMMUNICATIONS: the Assignor shall keep the
Security Trustee informed of any notice or communication
relating to the Building Agreement, the Lease and the Property
which may reasonably be deemed to affect the rights of the
Security Trustee to the Assigned Property as and when the
Assignor receives the same.
3.3 ESCROW MORTGAGE: Contemporaneous with the execution of this
Assignment the Assignor shall execute and deliver to the Security
Trustee the Escrow Mortgage with the intent that, upon the delivery
by the Lessor to the Assignor of the Lease or other documents of
title relating to the Property, the Escrow Mortgage shall be
registered and take effect as a first legal mortgage over the
Property if, on the date of such delivery of the Lease or other
documents of title relating to the Property, any sum remains payable
by the Assignor, whether actually or contingently, under or in
connection with any of the Facility Agreement, this Assignment or
such other Finance Documents.
3.4 PERFECTION OF ESCROW MORTGAGE: the Assignor undertakes to do all
such acts as shall enable the Escrow Mortgage to be completed and
perfected and further undertakes that in the event that following
the issue of the Lease the Escrow Mortgage is not acceptable for
registration under applicable law, the Assignor shall at its own
cost and at the request of the Security Trustee, either (1) vary or
amend the Escrow Mortgage so that the Escrow Mortgage, so varied or
amended, may be acceptable for registration under applicable law, or
(2) execute and deliver to the Security Trustee a fresh registrable
legal mortgage over the Property in favour of the Security Trustee
in substitution for the Escrow Mortgage in such form as may
4
be acceptable for registration under applicable law, and containing
substantially the terms and conditions contained in the Escrow
Mortgage.
3.5 TERMS OF ESCROW MORTGAGE: it is hereby expressly agreed and declared
that notwithstanding that the Escrow Mortgage is inoperative as a
legal mortgage of the Property pending the issue of the Lease or
other documents of title relating to the Property and registration
of the Escrow Mortgage, all the covenants, undertakings,
stipulations, terms and conditions as contained and referred to in
the Escrow Mortgage shall be deemed to have full force and effect as
if they were contained and referred to in this Assignment with the
intent that the Escrow Mortgage and this Assignment shall be read as
one document, and the Assignor hereby covenants to perform and
observe all such covenants, undertakings, stipulations, terms and
conditions contained and referred to in the Escrow Mortgage.
4. CONTINUING SECURITY
4.1 CONTINUING OBLIGATIONS: The security created by this Assignment
shall constitute and be a continuing security for the payment and
discharge of the Secured Obligations notwithstanding any
intermediate payment or satisfaction of any part of the Secured
Obligations, and shall be in addition to and shall not in any way
prejudiced or affected by any of the Finance Documents.
4.2 UNCONDITIONALITY OF SECURITY: Neither the Secured Obligations nor
the security created by this Assignment shall be discharged or
affected by (i) any time, indulgence, concession, waiver or consent
at any time given to the Assignor, the Borrower, any other Security
Party or any other person, (ii) any amendment, modification or
supplement to the Building Agreement, this Assignment, the Facility
Agreement, any Finance Document, or any other agreement, document or
security, guarantee, indemnity, right, remedy or lien, (iii) the
making or absence of any demand on the Assignor, the Borrower, any
Security Party or any other person for payment, (iv) the enforcement
or absence of enforcement of any of the Facility Agreement, this
Assignment, any Finance Document, or any other agreement, security,
guarantee, indemnity, right, remedy or lien, (v) the taking,
variation, compromise, renewal or release of or refusal or neglect
to perfect or enforce any rights, remedies or securities against the
Assignor, the Borrower or any Security Party or any other person,
(vi) the insolvency, winding-up, amalgamation, reconstruction or
reorganisation of the Assignor, the Borrower, any Security Party or
any other person (or the commencement of any of the foregoing), or
(vii) the illegality, invalidity or unenforceability of or any
defect in any provision of any of the Building Agreement, the
Facility Agreement, any Finance Document, this Assignment or any
other agreement, security, guarantee, indemnity, right, remedy or
lien or any of the obligations of any of the parties thereunder.
4.3 CONTINUING/OPENING OF ACCOUNTS: In the event of the commencement of
the winding up of the Assignor or the Borrower or of this Assignment
ceasing for any reason to be binding on the Assignor or the Borrower
or if the Security Trustee shall at any time receive notice (either
actual or otherwise) of any subsequent or other Security Interest or
other like interest, matter, event or transaction affecting the
Assigned Property or any part of it, the Security Trustee may on
receiving such notice forthwith open a new or separate account or
separate accounts for the Assignor and/or the Borrower in its books
either alone or jointly with any other person or party. If the
Security Trustee does not in fact open such new or separate account
or accounts for the Assignor and/or the Borrower either alone or
jointly with any other person or party, the Security Trustee shall
nevertheless be deemed to have done so at the time when the Security
Trustee received or was deemed to have received such notice (the
"time of notice") and as from and after the time of notice, all
payments in account made by or on behalf of the Assignor and/or the
Borrower to the Security Trustee shall (notwithstanding any legal or
equitable rule of presumption to the contrary) be placed or deemed
to have been placed to the
5
credit of the new or separate account or accounts so opened or
deemed to have been opened as aforesaid and shall not go in
reduction of any part of the Secured Obligations at the time of
notice. Nothing contained in this Clause 4.3 shall prejudice the
security which the Security Trustee otherwise would have had under
this Assignment for the payment of the moneys costs charges and
expenses secured or intended to be secured by this Assignment
notwithstanding that the same may become due or owing or be incurred
after the time of notice.
4.4 SUSPENSE ACCOUNT: All moneys received, recovered or realised by the
Security Trustee under this Assignment (including, without
limitation, the proceeds of any conversion of currency) may at the
discretion of the Security Trustee be credited to any suspense or
impersonal account and may be held in such account for so long as
the Security Trustee may think fit (without liability to pay
interest thereon) pending their application from time to time (as
the Security Trustee shall be entitled to do its discretion) in or
towards the discharge of any part of the Secured Obligations;
provided, however, that if the Security Trustee does not apply any
such amounts to the discharge of the Secured Obligations, the
Security Trustee shall be deemed to have waived its right to receive
interest at the Default Rate otherwise payable on the portion of the
Secured Obligations that could otherwise be discharged by virtue of
such application.
4.5 NO RIGHT OF INDEMNITY: During the continuance of this Assignment:
4.5.1 the Assignor shall not have any right to be indemnified by the
Borrower or to take the benefit of or to enforce any Security
Interest in respect of all or any part of the Secured
Obligations;
4.5.2 any right or proof of the Assignor in the winding up of the
Borrower in respect of any indebtedness whatsoever shall be
exercised and enforced by it only in such manner and on such
terms as the Security Trustee may require; and
4.5.3 any amount received or recovered by the Assignor as a result
of any exercise by it of any such right shall be immediately
paid to the Security Trustee.
5. REPRESENTATIONS AND WARRANTIES
5.1 BY ASSIGNOR: The Assignor represents and warrants to and for the
benefit of the Security Trustee as follows:
5.1.1 INCORPORATION: it is a company duly incorporated and validly
existing under the laws of Singapore;
5.1.2 POWERS: it has all requisite power and authority, corporate or
otherwise, to (i) engage in the business in which it currently
engages and proposes to engage, (ii) to own the Assigned
Property and (iii) execute, deliver and perform all of its
obligations under this Assignment and to consummate the
transactions contemplated hereby (including the creation of
the security to be created by this Assignment);
5.1.3 AUTHORISATION AND CONSENTS: no consent of any other Person,
and no consent, licence, permit, approval or authorisation of,
exemption by, or registration, filing or declaration with, any
governmental authority is required to be obtained or made in
connection with the execution, delivery, performance, validity
or enforceability of this Assignment, other than those which
have been obtained or made and remain in full force and
effect, the stamping of this Assignment and any filing in
relation thereto in the Accounting and Corporate Regulatory
Authority and those that the
6
failure of which to obtain, will not have a material adverse
effect on the ability of the Assignor to perform its
obligations under this Assignment;
5.1.4 OBLIGATIONS BINDING: this Assignment has been executed and
delivered by a duly authorised officer of the Assignor, and
constitutes the legal, valid and binding obligations of the
Assignor enforceable against the Assignor in accordance with
its terms except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganisation, moratorium
or similar laws affecting the enforcement of creditors' rights
only and by general equitable principles;
5.1.5 NON VIOLATION OF LAWS, ETC: the entry into and performance of
this Assignment and the transactions contemplated by this
Assignment 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, 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;
5.1.6 LITIGATION: no litigation, arbitration or administrative
proceeding is currently taking place or pending or, to the
knowledge of the officers of that Assignor, threatened against
the Assignor or any of its respective assets which could, in
the reasonable opinion of the Security Trustee, materially and
adversely affect its business, assets or financial condition
or its respective ability to perform its obligations under
this Assignment;
5.1.7 BUILDING AGREEMENT: the Building Agreement constitutes valid,
binding and enforceable obligations of the Assignor, are in
full force and effect and have not been varied or modified in
any respect from the form in which they were entered into, or
cancelled, and neither it nor, to the best of the Assignor's
knowledge, the Lessor, is in default thereunder or has
asserted or threatened to assert any right of termination or
repudiation thereof or any right of re-entry; and
5.1.8 OWNERSHIP: it is the sole and beneficial owner of the Assigned
Property free from any Security Interest (other than those
created by this Assignment and permitted under the terms of
the Facility Agreement).
6. UNDERTAKINGS
6.1 The Assignor hereby undertakes to the Security Trustee that:
6.1.1 DISPOSITION: it will not, (and will not agree, conditionally
or unconditionally, to) sell assign, transfer or otherwise
dispose of, or create (or agree, conditionally or
unconditionally, to create) or have outstanding any Security
Interest on or over any part of the Assigned Property or any
interest in the Assigned Property, except for the security
created by this Assignment and Permitted Security Interest;
6.1.2 IMPAIRMENT OF SECURITY: it will not take or omit to take any
action the taking or omission of which will result in any
alteration or impairment of this Assignment or of any of the
rights created under this Assignment;
7
6.1.3 ESCROW MORTGAGE: it will promptly upon the grant of the Lease
or other documents of title relating to the Property, deliver
the documents of title to the Security Trustee and will
complete and perfect the Escrow Mortgage;
6.1.4 PERFORMANCE: it will take all commercially reasonable steps
necessary or reasonably advisable to secure the due
performance by the Lessor of its obligations under the
Building Agreement;
6.1.5 BUILDING AGREEMENT: (1) it will promptly and diligently
perform and comply with the obligations on its part contained
in the Building Agreement, remedy any breach of its
obligations under the Building Agreement, notify the Security
Trustee of any breach of or default of which it has knowledge
under the Building Agreement and institute and prosecute all
such proceedings as may be necessary or reasonably advisable
to preserve or protect its interests and the interests of the
Security Trustee in the Building Agreement, and (2) it will at
its own cost and expense use commercially reasonable efforts
to obtain the grant to it of the Lease pursuant to the
Building Agreement and will promptly upon the grant of the
Lease, notify the Security Trustee of such grant;
6.1.6 VARIATION: it will not, except with the prior consent in
writing of the Security Trustee, make or agree to any
amendment, modification or variation of the Building
Agreement, agree to any extension of time or period for any
matter in the Building Agreement, release the Lessor from any
of its obligations under the Building Agreement, exercise any
rights or powers of termination under the Building Agreement
or waive any breach of the Building Agreement;
6.1.7 FRUSTRATION: it will not make or agree to any claim that the
Building Agreement is frustrated or invalid;
6.1.8 EXERCISE: it will at no time exercise any right or power
conferred on it by the Building Agreement in any manner which
is in the reasonable opinion of the Security Trustee adverse
to the interests of the Security Trustee under this
Assignment;
6.1.9 ENFORCEMENT OF RIGHTS: it will do or permit to be done each
and every act or thing which the Security Trustee may from
time to time reasonably require to be done for the purpose of
enforcing the rights of the Security Trustee under the
Building Agreement and this Assignment and will allow its name
to be used as and when required by the Security Trustee for
that purpose;
6.1.10 RENDERING BUILDING AGREEMENT VOID: it will not do, or omit to
do, or permit to be done, anything which will render the
Building Agreement to be or become, in any respect, invalid,
void or voidable;
6.1.11 ASSIGNMENT OF BUILDING AGREEMENT: as soon as the Building
Agreement shall have been made between the Lessor and the
Security Trustee and, if so required by the Security Trustee,
deliver to the Security Trustee an assignment in substantially
the same form as this Assignment as agreed by the Security
Trustee and/or such further instruments or documents, and do
such act or thing as the Security Trustee may require or which
is required by law, for the purpose of perfecting the security
created or intended to be created by this Assignment over the
Property and for obtaining the full benefit of this Assignment
and the rights and powers hereby granted.
8
7. CONTINUING OBLIGATIONS
7.1 ASSIGNOR'S OBLIGATIONS: It is further agreed and declared by the
Assignor that notwithstanding this Assignment:
7.1.1 NO OBLIGATION: the Security Trustee shall not be obliged to
enforce any rights and benefits hereby assigned to it or to
which it may at any time be entitled under this Assignment;
7.1.2 ASSIGNOR TO REMAIN LIABLE: the Assignor shall remain liable
under the Building Agreement to perform all the conditions and
obligations provided in the Building Agreement to be observed
and performed by it and neither this Assignment nor the
receipt by the Security Trustee of any payment pursuant hereto
shall cause the Security Trustee to be under any obligation or
liability under the Building Agreement or for the performance
or observance of any of the representations, warranties,
conditions, covenants, agreements or other terms of the
Building Agreement; and
7.1.3 CONTRACTING PARTY: the Lessor shall continue to give or
receive instructions to or from the Security Trustee and in
all other respects deal with and look to the Security Trustee
as its contracting party until the Security Trustee shall
notify the Lessor of the occurrence and continuation of an
Event of Default.
7.2 RIGHTS OF SECURITY TRUSTEE: At any time after the occurrence and
continuation of an Event of Default and subject to the terms of the
Facility Agreement, the Security Trustee shall be entitled either in
its own name or as agent for the Assignor;
7.2.1 PERFORMANCE: to perform and enforce the Building Agreement;
7.2.2 AMENDMENT: to agree to the amendment, variation, termination
or repudiation of the Building Agreement and/or the Lease;
7.2.3 DISPOSAL: to sell, assign, transfer or otherwise dispose of
the Assigned Property or of any interest therein or of any
property, assets or rights received thereunder or pursuant
thereto;
7.2.4 DEALING: in all other respects to exercise the Assignor's
rights under the Building Agreement as if it were the
contracting party thereto; and
7.2.5 POWERS AS SECURITY TRUSTEE: otherwise to put into force and
effect all rights, powers and remedies available to it at law
or otherwise as assignee of the Building Agreement.
8. INDEMNITY
8.1 The Assignor agrees (i) to pay, indemnify, and hold harmless the
Security Trustee on demand from, any and all stamp, excise,
withholding, documentary and other like duties and taxes and all
recording and filing fees (collectively, "Taxes and Fees") and any
and all liabilities with respect to, or resulting from any delay or
omission on the part of the Assignor to pay Taxes and Fees which may
be payable or determined to be payable in connection with the
execution and delivery of, or consummation of any of the
transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of,
this Assignment, and (ii) to, on demand, pay, indemnify, and hold
the Security Trustee and its Affiliates, officers, directors,
employees, agents, attorneys, successors and assigns, harmless from
and against any and all other liabilities, obligations, losses,
damages, penalties, actions,
9
judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever (including, without limitation, reasonable
attorneys' fees and expenses) with respect to (i) negotiation,
preparation, execution, delivery, consummation, enforcement,
performance and administration of this Assignment and any amendment,
supplement or modification to, or extension of this Assignment
(whether or not the same is actually implemented, completed or
granted, as the case may be) and any other documents prepared in
connection herewith and (ii) the enforcement or preservation of any
of the Security Trustee's rights under the Assignment (all of the
foregoing, collectively, the "Indemnified Liabilities"); provided,
that the Assignor shall have no obligation hereunder with respect to
Indemnified Liabilities directly arising from the gross negligence
or willful misconduct of the Security Trustee.
8.2 If the Security Trustee expends any moneys reimbursable by Assignor
by reason of Section 8.1 or any other provision of this Assignment,
all moneys so expended by the Security Trustee shall on demand be
repaid by the Assignor to the Security Trustee in the currency in
which such moneys were expended together with interest thereon from
the date such moneys were expended until the date of reimbursement
thereof to the Security Trustee (whether before or after judgment)
at the Interest Rate or, if an Event of Default has occurred, at the
Default Rate, such interest to be calculated on the basis of a 360
day year and the actual number of days elapsed. Accrued interest on
all amounts hereunder shall be payable in arrears on the Interest
Payment Date for the calendar month immediately preceding such
Interest Payment Date; provided, however, that if an Event of
Default has occurred, any such interest shall be payable on demand
to the Security Trustee.
9. ENFORCEMENT
9.1 SECTION 21: Section 21 of the Act shall not apply to this
Assignment;
9.2 POWER OF SALE: the Security Trustee may exercise the power of sale
conferred on mortgagees by the Act (as varied and extended by this
Assignment) free from the restrictions imposed by Section 25
thereof. The security created by this Assignment shall become
immediately enforceable and the power of sale and all other powers
conferred by the Act and/or this Assignment shall arise and may be
immediately exercised by the Security Trustee at any time after the
occurrence and continuation of an Event of Default.
9.3 STATUTORY POWERS: the powers conferred by this Assignment in
relation to the Assigned Property or any part thereof on the
Security Trustee shall be addition to and not in substitution for
the powers conferred on mortgagees under the Act, which shall apply
to the security created by this Assignment 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 Assignment as aforesaid or where the powers or protections
in this Assignment are more extensive or less restricted than those
provided by the Act, then the terms of this Assignment shall prevail
to the extent permitted by law.
10. APPLICATION OF MONEYS
10.1 Any moneys received by the Security Trustee under or pursuant to
this Assignment and/or the powers conferred by this Assignment shall
be applied by it in the following manner and order:
10.1.1 first, in or towards payment of any costs, charges and
expenses reasonably incurred by the Security Trustee in
exercising the powers specified in this Assignment or as
otherwise referred to herein:
10.1.2 secondly, in or towards payment of the Secured Obligations;
and
10
10.1.3 thirdly, in payment of any surplus to the Assignor or any
other person lawfully entitled thereto.
11. DELEGATION
The Security Trustee, at any time and from time to time, may
delegate by power of attorney or in any other manner to such person
or persons as the Security Trustee may select in its reasonable
commercial judgment, all or any of the powers, authorities and
discretions which are for the time being exercisable by the Security
Trustee under this Assignment in relation to the Assigned Property
or any part thereof. Any such delegation may be made upon such terms
and be subject to such regulations between the Security Trustee and
its delegate as the Security Trustee may think fit. The Security
Trustee shall not be in any way liable or responsible to the
Assignor for any loss or damage arising from any act, default,
omission or misconduct on the part of any such delegate, provided
the Security Trustee has acted reasonably in its selection of such
delegate.
12. FURTHER ASSURANCE
The Assignor shall at its own expense execute and do all such
assurances, acts and things as the Security Trustee may reasonably
deem necessary or advisable for perfecting or protecting the
security over the Assigned Property or any part thereof or for
facilitating the realisation of the Assigned Property and the
exercise of all powers, authorities and discretions vested in the
Security Trustee or in any such delegate as aforesaid and shall in
particular execute all transfers, conveyances, assignments and
assurances relating to the Assigned Property (whether to the
Security Trustee or to its nominees) and give all notices, orders
and directions which the Security Trustee may in its reasonable
opinion think expedient.
13. POWER OF ATTORNEY
13.1 POWERS: the Assignor hereby by way of security irrevocably appoints
the Security Trustee and every such delegate or sub-delegate as
aforesaid to be its attorney and on its behalf and in its name or
otherwise, and with full power of substitution, to execute and do
all or any of the following acts, things or deeds:
13.1.1 DELIVERY OF LEASE: from and after the occurrence and
continuation of an Event of Default, to take delivery of the
Lease or other documents of title relating to the Property
from the Lessor and execute and accept the Lease or other
documents of title relating to the Property on such terms
and subject to such conditions as the Security Trustee may
accept;
13.1.2 DOCUMENTS OF TITLE: to execute the Lease with the Lessor and
accept and take delivery of the Certificates of Title or
other documents of title relating to the Property on such
terms and subject to such conditions as the Security Trustee
may accept; provided that, until the occurrence of an Event
of Default, the Security Trustee will execute and do the
aforesaid in the name of the Assignor;
13.1.3 PERFECTION OF ESCROW MORTGAGE: to execute, deliver and
otherwise complete and perfect the Escrow Mortgage as a legal
mortgage of the Property in favour of the Security Trustee
and to register the Escrow Mortgage with the relevant
authority;
11
13.1.4 OTHER ASSURANCES: to execute and do all such other
assurances, acts and things required of the Assignor pursuant
to this Assignment;
13.1.5 GENERAL: (i) to execute (whether by seal or otherwise) and do
all such other assurances, acts and things which may be
required for the full exercise of all or any of the powers
conferred or which may be deemed proper on or in connection
with any of the purposes aforesaid.
13.2 RATIFICATION: the Assignor declares that such power of attorney has
been given for valuable consideration and shall remain irrevocable
for as long as any part of the Secured Obligations remain
outstanding. The Security Trustee hereby ratifies and confirms and
agrees to ratify and confirm whatever any such attorney as is
mentioned in Clause 13.1 shall do or purport to do in the exercise
or purported exercise of all or any of the powers, authorities and
discretion referred to in Clause 13.1. In relation to the power
referred to herein, the exercise by the Security Trustee of such
power shall be conclusive evidence of its right to exercise the
same.
14. AVOIDANCE OF PAYMENTS
No assurance, security, guarantee or payment which may be avoided
under any law relating to the bankruptcy, insolvency or winding up,
and no release, settlement or discharge given or made by the
Security Trustee on the faith of any such assurance, security,
guarantee or payment, shall prejudice or affect the right of the
Security Trustee to enforce the security created by this Assignment
in respect of the full extent of the moneys hereby secured. Any such
release, settlement or discharge shall be deemed to be made subject
to the condition that it will be void if any payment or security
which the Security Trustee may previously have received or may
thereafter receive from any person in respect of the Secured
Obligations is set aside under any applicable law or proves to have
been for any reason invalid.
15. BENEFIT OF ASSIGNMENT
This Assignment shall be binding upon and enure to the benefit of
each party hereto and its successors and permitted assigns (as
provided in this Clause 15). The Assignor may not assign or transfer
all or any of its rights, benefits and/or obligations under this
Assignment. The Security Trustee may assign or transfer all or any
of its rights, benefits and/or obligations under this Assignment.
16. REMEDIES AND WAIVERS
16.1 The Security Trustee may in its discretion grant time or other
indulgence, or make any other arrangement, variation or release
with, any person or persons whether or not a party hereto (whether
or not such person or persons are jointly liable with the Assignor)
in respect of any part of the Secured Obligations or any other
security therefor, or guarantee in respect thereof without prejudice
either to the security constituted by or pursuant to this Assignment
or to the liability of the Assignor for the Secured Obligations or
the exercise by the Security Trustee of any rights, remedies and
privileges conferred upon by this Assignment.
12
16.2 The rights, powers and remedies provided in this Assignment are
cumulative and are not, nor are they to be construed as, exclusive
of any rights, powers or remedies provided by law.
16.3 No failure on the part of the Security Trustee to exercise or delay
on its part in exercising, any of the rights, powers and remedies
provided by this Assignment or by law shall operate as a waiver
thereof, nor shall any single or partial exercise of any such
rights, powers or remedies preclude any further or other exercise of
the Security Trustee's rights, powers or remedies concerned or the
exercise of any other rights, powers or remedies.
17. CURRENCY INDEMNITY
If, under any applicable law or regulation, and whether pursuant to
a judgment being made or registered against the Assignor or the
bankruptcy or liquidation of the Assignor or for any other reason
any payment under or in connection with this Assignment is made or
fails to be satisfied in a currency (the "PAYMENT CURRENCY") other
than the currency in which such payment is due under or in
connection with this Assignment (the "CONTRACTUAL CURRENCY"), then
to the extent that the amount of such payment actually received by
the Security Trustee when converted into the Contractual Currency at
the rate of exchange, falls short of the amount due under or in
connection with this Assignment, the Assignor, as a separate and
independent obligation, shall indemnify and hold harmless the
Security Trustee against the amount of such shortfall. For the
purposes of this Clause 17, "RATE OF EXCHANGE" means the rate at
which the Security Trustee is able on or about the date of such
payment to purchase the Contractual Currency with the Payment
Currency and shall take into account any premium and other costs of
exchange with respect thereto.
18. PARTIAL INVALIDITY
The illegality, invalidity or unenforceability of any provision of
this Assignment under the law of any jurisdiction shall not affect
its legality, validity or enforceability under the law of any other
jurisdiction nor the legality, validity or enforceability of any
other provision.
19. THE CONTRACTS (RIGHTS OF THIRD PARTIES) ACT, CAP 53B
The Contracts (Rights of Third Parties) Act, Cap 53B shall not under
any circumstances apply to this Assignment and any person who is not
a party to this Assignment (whether or not such person shall be
named, referred to, or otherwise identified, or shall form part of a
class of persons so named, referred to, or identified, in this
Assignment) shall have no right whatsoever under the Contracts
(Rights of Third Parties) Act 53B to enforce this Assignment or any
of its terms.
20. COMMUNICATIONS
20.1 All notices, consents, requests and demands to or upon the Parties
to be effective shall be in writing in the English language and,
unless otherwise expressly provided herein, shall be deemed to have
been duly given or made when delivered by hand, or five (5) Business
Days after being deposited in the mail, certified mail, return
receipt requested, postage prepaid, or, in the case of facsimile
notice, when sent and receipt has been confirmed, addressed as set
forth to the Party or Parties on the signature page hereof (or to
such other address as may be hereafter notified by the Parties).
13
20.2 Notices or communications shall be sent to the following addresses:
To the Assignor:
Name : Asia Netcom (Singapore) Pte Ltd
Address : 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 : 0000 0000
Attention : Xx Xxxxxx Xxxxx/Ms Xxx Xxxx
21. GOVERNING LAW
21.1 This Assignment is governed by, and construed in accordance with,
the laws of Singapore.
21.2 For the benefit of the Security Trustee, the parties irrevocably
agree that the courts of Singapore are to have jurisdiction to
settle any disputes which may arise out of or in connection with
this Assignment and that, accordingly, any legal action or
proceedings arising out of or in connection with this Assignment
("Proceedings") may be brought in those courts and the Assignor
irrevocably submits to the jurisdiction of those courts.
21.3 Nothing in this Clause shall limit the right of the Security Trustee
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 from taking
Proceedings in any other jurisdiction, whether concurrently or not.
21.4 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 and any claim that any such Proceedings
have been brought in an inconvenient forum.
14
SCHEDULE
PROPERTY
All that piece of land known as Xxxxxxx Xxx X00000 at Changi North Crescent
Singapore, forming part Government Survey Lot 3754C of Mukim 31, estimated to
contain an area of 5,312 square metres, more or less subject to survey, and more
particularly shown on the plan attached to the Letter of Offer and the Building
Agreement.
15
APPENDIX
FORM OF MORTGAGE
16
In witness whereof this Assignment has been entered into on the date stated at
the beginning of this Assignment.
THE ASSIGNOR
SIGNED, SEALED AND DELIVERED )
as a Deed by its authorised attorney )
)
Xxxx, Xxx Ping Xxxxxx ) /s/ Xxxx, Xxx Ping Xxxxxx
for and on behalf of )
ASIA NETCOM SINGAPORE PTE. LTD. )
in the presence of:- )
)
/s/ Xxxxxx Xxxxxxx Xxxx
Xxxxxx Xxxxxxx Xxxx
Solicitor
XXXXXXXX XXXXXX
00/X Xxxxxxxxx Xxxxx
Xxxx Xxxx SAR
THE SECURITY TRUSTEE
SIGNED BY )
)
)
Xxxx Xxx, Xxxxxx Xxx ) /s/ Xxxx Xxx /s/ Xxxxxx Xxx
For and on behalf of )
INDUSTRIAL AND COMMERCIAL )
BANK OF CHINA (ASIA) LIMITED )
17
