EXHIBIT 10.37
Execution Copy
Dated 29 July 2004
THE COMPANIES NAMED IN SCHEDULE 7
(as Mortgagors)
in favour of
THE INDUSTRIAL AND COMMERCIAL BANK OF CHINA (ASIA) LIMITED
(as Security Trustee)
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GROUP SHARE MORTGAGE
IN EACH OF THE COMPANIES NAMED IN SCHEDULE 1 HEREIN
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HONG KONG
[Group Share Mortgage]
TABLE OF CONTENTS
CLAUSE NO. CLAUSE HEADING PAGE NO.
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1. DEFINITIONS AND CONSTRUCTION.................................................................... 1
2. COVENANT TO PAY................................................................................. 3
3. MORTGAGE AND ASSIGNMENT......................................................................... 4
4. CONTINUING AND INDEPENDENT SECURITY............................................................. 6
5. REPRESENTATIONS AND WARRANTIES.................................................................. 8
6. TAXES AND OTHER DEDUCTIONS...................................................................... 11
7. COSTS, CHARGES AND EXPENSES..................................................................... 12
8. UNDERTAKINGS.................................................................................... 13
9. ENFORCEMENT..................................................................................... 14
10. DIVIDENDS AND VOTING RIGHTS..................................................................... 17
11. APPLICATION OF PROCEEDS......................................................................... 18
12. INDEMNITY....................................................................................... 18
13. SUSPENSE ACCOUNT................................................................................ 19
14. SET-OFF......................................................................................... 20
15. POWER OF ATTORNEY............................................................................... 20
16. FURTHER ASSURANCE............................................................................... 21
17. NOTICES......................................................................................... 21
18. WAIVERS, AMENDMENTS AND CONSENTS, REMEDIES, SEVERABILITY, ASSIGNMENT AND COUNTERPARTS........... 22
19. GOVERNING LAW AND JURISDICTION.................................................................. 23
20. AVOIDANCE OF PAYMENTS........................................................................... 24
21. THE CONTRACTS (RIGHTS OF THIRD PARTIES) ACT, CAP 53B............................................ 25
22. MISCELLANEOUS................................................................................... 25
SCHEDULE 1 PARTICULARS OF THE SHARES...................................................................... 27
SCHEDULE 2 FORM OF INSTRUMENT OF TRANSFER................................................................. 28
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SCHEDULE 3 FORM OF LETTER OF RESIGNATION.................................................................. 30
SCHEDULE 4 FORM OF WRITTEN RESOLUTION..................................................................... 31
SCHEDULE 5 FORM OF AUTHORISATION FROM DIRECTORS/SECRETARY................................................. 32
SCHEDULE 6 FORM OF LETTER OF UNDERTAKING.................................................................. 33
SCHEDULE 7 MORTGAGORS..................................................................................... 34
SCHEDULE 8 FORM OF ACKNOWLEDGEMENT OF NOMINEE............................................................. 35
EXECUTION PAGE ............................................................................................. 36
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THIS DEED OF GROUP SHARE MORTGAGE is made on 29 July 2004
BETWEEN:-
(1) THE COMPANIES NAMED AND PARTICULARS OF WHICH ARE SET OUT IN SCHEDULE 7
(each a "MORTGAGOR" and together the "MORTGAGORS"); 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 dated 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) Asia Netcom International 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 Lenders 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 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 Mortgagors shall each have executed and
delivered this Deed to the Security Trustee.
NOW THIS DEED WITNESSES as follows:-
1. DEFINITIONS AND CONSTRUCTION
1.1 TERMS DEFINED
In this Deed, unless the context otherwise requires, terms used or defined
in the Facility Agreement shall have the same meaning or construction
and:-
"COLLATERAL" means the assets of each Mortgagor from time to time subject,
or expressed to be subject to the Security Interest constituted or
expressed to be constituted by this Deed or any part of those assets and
includes:-
(i) the Shares;
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(ii) all stocks, shares or other securities, rights, monies or other
assets (the "RELATED ASSETS") accruing, offered or issued at any
time by way of bonus, redemption, exchange, purchase, substitution,
conversion, preference, option or otherwise in respect of the Shares
or the above mentioned Related Assets; and
(iii) all Dividends;
(iv) allotments, offers and rights accruing or offered in respect of any
Shares or the above mentioned Related Assets
(v) other rights and assets attaching to or deriving from or exercisable
by virtue of any right title or interest in or to any Shares or the
above mentioned Related Assets.
"COMPANY" means each and any of the companies listed in Schedule 1, being
direct or indirect wholly owned subsidiaries of the Borrower, whose Shares
are the subject of this Deed (and "COMPANIES" means any or all of them).
"DELEGATE" means a delegate or sub-delegate appointed under Clause 15.2.
"DIVIDENDS" means all dividends, interest and other sums received or
receivable by any person in its capacity as shareholder of that Company
and includes:
(i) the right to receive any and all such sums and all claims in respect
of any default in paying such sums; and
(ii) all forms of remittance of such sums.
"NOMINEE" means in respect of any Share held by a person as nominee or on
trust for the Mortgagor and who is described as "REGISTERED SHAREHOLDER IN
SCHEDULE 1".
"RECEIVER" means any receiver, manager, receiver and manager or other
similar officer appointed by the Security Trustee in respect of the
security hereby granted.
"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 any
Finance Party under or in connection with any Finance Document and/or all
other obligations hereby secured.
"SHARES" means in respect of the relevant Mortgagor:
(a) all present and future shares in the Companies described in Schedule
1 against that Mortgagor's name, including the shares issued and
outstanding at the date of this Deed as described in Schedule 1
(including any shares held by any Nominee for and on behalf of that
Mortgagor);
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(b) all warrants, options or other rights to subscribe for, purchase or
otherwise acquire those shares; and
(c) all rights relating to any of those shares which are deposited with,
or registered in the name of, any depositary, custodian, nominee or
other similar person (including rights against any such person).
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 Lender 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 by deed of the rights,
benefits and interests conferred by Clause 3.1 (Mortgage) 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 and any
dispositions made or to be made pursuant to this Deed and this trust, is
hereby specified as a period of twenty one (21) years less one (1) day
from the date of this 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 "MORTGAGOR", the "BORROWER", the "SECURITY
TRUSTEE", any "FINANCE PARTY" or any "LENDER" include, where the
context permits, their respective successors and permitted
transferees and permitted assigns in accordance with their
respective interests.
2. COVENANT TO PAY
Each Mortgagor hereby covenants that it will on demand pay to the Security
Trustee and the other Finance Parties, the Secured Obligations when the
same become due for payment or discharge in accordance with the Finance
Documents.
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3. MORTGAGE AND ASSIGNMENT
3.1 MORTGAGE
In consideration of the Security Trustee and the Lenders agreeing to make
the Facility available to the Borrower 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, each
Mortgagor as sole legal and beneficial owner of the Shares not held by a
Nominee and as beneficial owner of the Shares held by a Nominee hereby:
(a) mortgages and charges by way of first fixed charge to the Security
Trustee (as trustee for the Finance Parties) all its right title and
interest present and future in and to, the Collateral; and
(b) assigns, and agrees to assign absolutely to the Security Trustee (as
trustee for the Finance Parties) all its rights (including those
rights it may have against a Nominee), present and future, relating
to any of the Shares, including:
(i) its rights relating to or against any depositary, nominee or
similar person with whom any of the Shares may be deposited to
the extent of those Shares;
(ii) rights that it may have against any person to require delivery
to it of any of the Shares;
(iii) rights (contractually or otherwise) to give instructions
relating to the Shares; and
(iv) all claims for damages and rights to receive moneys due or to
become due for any reason whatsoever in respect of any of the
Shares;
including those rights it may have against a Nominee or Delegate.
3.2 DELIVERY OF DOCUMENTS
Each Mortgagor shall forthwith upon execution of this Deed deliver or
procure to be delivered (as the case may be) to the Security Trustee each
of the following documents:-
(i) all original share certificates or such other documents
evidencing title in respect of the Shares;
(ii) instruments of transfer in the form of Schedule 2 duly
executed by each Mortgagor and/or its Nominee (as the case may
be) in respect of the Shares with the name(s) of the
transferee(s), date and consideration left blank;
(iii) undated letters of resignation in the form of Schedule 3 duly
executed by each of the directors and the secretary of each
Company as at the date of this Deed;
(iv) signed but undated resolutions of the directors of each
Company
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approving the resignation of the directors and secretary
referred to in sub-paragraph (iii) above in the form set out
in Schedule 4;
(v) letter of authority to date the letters of resignation and
board resolutions respectively referred to in sub-paragraphs
(iii) and (iv) above in the form set out in Schedule 5 signed
by all the directors and the secretary of each Company;
(vi) letter of undertaking not to appoint any additional or
substitute directors in the form set out in Schedule 6 signed
by all the directors of each Company; and
(vii) letter of acknowledgement in the form set out in Schedule 8
from the Nominees acknowledging the Security Interests
constituted by this Deed and agreeing to act in accordance
with the instructions of the Security Trustee.
3.3 PERFORMANCE AND INDEMNITY
Notwithstanding the foregoing, each of the Mortgagors shall remain liable
to perform all the obligations to be performed by it in respect of the
Collateral and shall discharge fully its respective obligations thereunder
as they become due and neither the Security Trustee nor any other Finance
Party 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 each Mortgagor hereby jointly and
severally indemnifies and agrees to keep indemnified the Security Trustee
and the other Finance Parties and each of them from and against any such
liability.
3.4 RELEASE AND TRANSFER
(a) The Security Trustee shall, upon the full performance and discharge
of the Secured Obligations to the satisfaction of the Security
Trustee and the Lenders, at the request and cost of the Mortgagors
and in such form as the Security Trustee shall reasonably approve,
release and transfer and reassign (as appropriate) to the Mortgagors
the Collateral.
(b) Notwithstanding any discharge, release or settlement from time to
time between the Security Trustee and any Mortgagor, if any
security, disposition or payment granted or made to the Security
Trustee in respect of the Secured Obligations by any Mortgagor 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 Security Trustee shall
be entitled thereafter to enforce this Deed as if no such discharge,
release or settlement had occurred.
(c) For that Collateral which has been transferred and registered under
the name of the Security Trustee (as trustee for the Finance
Parties) or its nominee, the Security Trustee shall only be obliged
to return the share certificate(s) then representing the Collateral
not yet disposed of or realised by the Security Trustee pursuant to
its powers under this Deed (but not the original share certificates
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originally delivered to the Security Trustee by the relevant
Mortgagor) with the instruments of transfer duly executed in favour
of the relevant Mortgagor or such other person as that Mortgagor may
direct.
3.5 CALLS
Each Mortgagor shall during the continuance of this security pay all calls
or other payments which may become due in respect of any part of the
Collateral and the Security Trustee may, if it thinks fit, make such
payments on behalf of a Mortgagor. Any sums so paid by the Security
Trustee shall be repayable by that Mortgagor to the Security Trustee on
demand together with interest at the Default Rate from the date of such
payment by the Security Trustee and pending such repayment shall
constitute part of the Secured Obligations.
3.6 REGISTRATION OF TITLE TO THE SHARES
Each Mortgagor hereby agrees and authorises the Security Trustee to
arrange for the Shares and any other Collateral to be registered at any
time following the security constituted by this Deed becoming enforceable
in the name of the Security Trustee or its nominee and (under the powers
of enforcement contained herein) to transfer or cause the Collateral to be
transferred to and registered in the name of any purchasers or transferees
from the Security Trustee or its nominee and each Mortgagor undertakes
from time to time to execute and sign all transfers, powers of attorney
and other documents which the Security Trustee may require for perfecting
its title to or, otherwise registering and transferring any part of the
Collateral or for vesting the same in itself or its nominee or in any
purchasers or transferees.
4. CONTINUING AND INDEPENDENT SECURITY
4.1 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
any Mortgagor, the Borrower 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 any Mortgagor and the Security Trustee or
any other person.
4.2 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 any Mortgagor or otherwise)
now or from time to time hereafter held by the Security Trustee or any
Finance Party in respect of or in connection with the Secured Obligations.
4.3 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 any
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Mortgagor or any other person in any court, (ii) make or file any claim or
prove in a winding-up or liquidation of any Mortgagor or of any other
person or (iii) enforce or seek to enforce the recovery of the moneys and
liabilities hereby secured by any other security or other rights all of
which the Mortgagors hereby waive and may be enforced for any balance due
after resorting to any one or more other means of obtaining payment or
discharge of the monies, obligations and liabilities hereby secured.
4.4 NO DISCHARGE
The liabilities and obligations of each Mortgagor 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 any Mortgagor 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 Borrower or any
Mortgagor or any other Security Party 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 Borrower or
any Mortgagor or any other Security Party or any other person to
enter into or perform any of its 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 Borrower or any such
Mortgagor or such Security Party or such other person;
(f) the insolvency, bankruptcy or liquidation or any incapacity,
disability, death or limitation or any change in the constitution or
status of the Borrower or any Mortgagor or any other Security Party
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 and/or the Lenders 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 and/or the
Lenders 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 the Lenders may now or hereafter
have from or against any Mortgagor or any other Security Party or
any other person;
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(h) any waiver, exercise, omission to exercise, compromise, renewal or
release of any rights against any Mortgagor or any other Security
Party or any other person or any compromise, arrangement or
settlement with any of the same;
(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 any Mortgagor hereunder.
4.5 NO SUBROGATION
(a) None of the Mortgagors shall exercise any right of subrogation,
contribution or any other rights of a surety or enforce any security
or other right or claim against the Borrower or any of the other
Mortgagors (whether in respect of its liability under this Deed or
otherwise) or any other person who has guaranteed or given any
security in respect of the Secured Obligations or claim in the
insolvency or liquidation of the Borrower or any Mortgagor or any
such other person in competition with the Security Trustee and/or
the Lenders.
(b) If any Mortgagor receives any payment or benefit in breach of this
Clause 4.5, it shall hold the same upon trust for the Security
Trustee as a continuing security for the Secured Obligations. For
the purpose of the rule against perpetuities, the perpetuity period
applicable to the trust constituted under this Clause is hereby
specified as a period of twenty-one (21) years less one day from the
date of this Mortgage.
5. REPRESENTATIONS AND WARRANTIES
5.1 REPRESENTATIONS AND WARRANTIES
Each of the Mortgagors hereby severally represents and warrants to the
Security Trustee and each of the other Finance Parties for itself that:-
(a) STATUS: it is a company duly incorporated and validly existing under
the laws of its respective place of incorporation and has full
power, authority and legal right to own its property and assets, to
carry on its business as such business is now being conducted;
(b) POWER AND AUTHORITY: it has all legal power and authority to enter
into this Deed and perform its obligations under this Deed and all
actions (including any corporate actions) 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 its legal, valid and binding obligations
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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or (ii) a breach of the constitutional documents of that Mortgagor,
or (iii) a material breach of any agreement or document to which
that Mortgagor 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 of its assets or revenues pursuant to the
provisions of any such agreement or document;
(e) NO CONSENTS: save for the lodgment of the Statement Containing
Particulars of Charge with the Accounting and Corporate Regulatory
Authority of Singapore within 30 days from the date hereof (or 37
days, if executed outside Singapore) and stamping of this Deed with
the Inland Revenue Authority of Singapore, other than the Consents,
no consent, authorisation, licence or approval of, or registration
with or declaration to, any governmental or public bodies or
authorities or courts in Singapore or in any relevant jurisdiction
is required for or in connection with the execution, delivery,
validity, enforceability and admissibility in evidence in
proceedings of this Deed, or the performance by that Mortgagor of
any of its respective obligations under this Deed;
(f) NO REGISTRATION: save for the lodgment of the Statement Containing
Particulars of Charge with the Accounting and Corporate Regulatory
Authority of Singapore within 30 days from the date hereof (or 37
days, if executed outside Singapore) and stamping of this Deed with
the Inland Revenue Authority of Singapore, 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
Singapore and all jurisdictions which are 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 that Mortgagor, threatened
against that Mortgagor 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 Deed;
(h) WINDING UP AND STRIKING OFF: 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, and no demand under Section
254(1), and no enquiry under Section 344(1), of the Companies Act,
Cap 50, has been received by the Mortgagor;
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(i) TAXES ON PAYMENTS: all payments to be made by it under this Deed may
be made by it 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 that
Mortgagor of this Deed or any document to be executed or delivered
under this Deed;
(j) TAX LIABILITIES: it has complied with all Taxation laws in all
jurisdictions in all material respects in which it is subject to
Taxation and has paid all Taxes due and payable by it and 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) NO IMMUNITY: it is generally subject to civil and commercial law and
to legal proceedings and neither it 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;
(m) 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;
(n) NO FINANCIAL INDEBTEDNESS: it does not have any Financial
Indebtedness other than as permitted by Clause 16.17 of the Facility
Agreement;
(o) ISSUED AND PAID-UP SHARES: the Shares represent all the shares in
the relevant Company and all the Shares have been validly issued and
are fully paid up;
(p) SOLE AND BENEFICIAL OWNER: other than the Shares held by any
Nominee, it is or will be the sole, absolute, direct legal and
beneficial owner of the Collateral and it has good and marketable
title thereto;
(q) SECURITY INTEREST: no Security Interest exists over all or any of
its right, title,
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interest or benefit in its Collateral (other than as created by this
Deed);
(r) THIRD PARTY RIGHT: it has not sold or otherwise disposed of any of
its Collateral or granted in favour of any other person any interest
in or any option or other rights in respect of any of its
Collateral; and
(s) COMPANY: each Company is validly incorporated under the laws of
Singapore.
5.2 CONTINUING REPRESENTATION AND WARRANTY
Each of the Mortgagors severally represents and warrants to and undertakes
with the Security Trustee that the foregoing representations and
warranties in Clause 5.1(a) to (n) inclusive are deemed to be made by the
Mortgagor 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 5.1(o) and (s) will be true and
accurate throughout the continuance of this Deed with reference to the
facts and circumstances from time to time.
6. TAXES AND OTHER DEDUCTIONS
6.1 TAX GROSS-UP
(a) All sums payable by any Mortgagor or any other person 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 any Mortgagor 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 other Finance Party (or if
the Security Trustee is required to make any such deduction or
withholding from a payment to other Finance Party), the sum due from
that Mortgagor 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 other 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 Mortgagor's obligations under Clause 6.1(a) and (b) shall not
apply in respect of any Tax on Overall Net Income levied on a
Finance Party.
(d) All Taxes required by law to be deducted or withheld by any
Mortgagor from any amounts paid or payable under this Deed shall be
paid by such Mortgagor when due (except for such amounts being
disputed by such Mortgagor in good faith) to the relevant taxing
authority.
6.2 TAX INDEMNITY
Each Mortgagor shall indemnify the Security Trustee and each other Finance
Party against any losses or costs incurred by any of them by reason of:
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(a) any failure of any Mortgagor or any other person to make any such
deduction or withholding referred to in Clause 6.1; or
(b) any increased payment referred to in Clause 6.1 not being made on
the due date for such payment; or
(c) any Taxes which are being disputed by any Mortgagor and remaining
unpaid; 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.
6.3 EVIDENCE OF PROOF
Each Mortgagor 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.
6.4 TAX CREDIT
If any Mortgagor 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 that Mortgagor 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 that Mortgagor. 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 6 shall, in the absence of manifest error, be
conclusive and binding on each Mortgagor.
7. COSTS, CHARGES AND EXPENSES
7.1 EXPENSES
Each Mortgagor shall pay to the Security Trustee on demand and in the
currency specified by the Security Trustee.
(a) irrespective as to whether any Advance is made, all expenses
(including legal, printing and out-of-pocket expenses) reasonably
incurred by the Security Trustee or any other Finance Party in
connection with the negotiation, preparation and execution of this
Deed and any amendment or extension of or the granting of any waiver
or consent under this Deed; and
(b) all expenses on a full indemnity basis (including legal and
out-of-pocket
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expenses) properly incurred by the Security Trustee or any other
Finance Party in connection with the enforcement of or preservation
of any rights under this Deed, or otherwise in respect of the monies
owing under this Deed together with interest at the Default Rate
from the date on which such expenses were incurred to the date of
payment (both before and after judgment).
7.2 STAMP DUTY
Each Mortgagor 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 any Mortgagor to pay such duties or taxes.
8. UNDERTAKINGS
Each Mortgagor 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) not create or attempt or agree to create or permit to exist
(conditionally or unconditionally) any Security Interest over all or
any part of its Collateral or any interest therein or otherwise
sell, transfer, assign, deal with or dispose of all or any part of
its Collateral or attempt or agree to do any of the same (except
under or pursuant to this Deed);
(b) not grant or attempt or agree to grant (conditionally or
unconditionally) in favour of any other person any interest in or
any option or other rights in respect of any of its Collateral;
(c) ensure that no person holding any of its Collateral as its Nominee
for the time being does any of the acts prohibited in this Deed;
(d) at all times remain the sole, direct absolute legal and beneficial
owner of its Collateral;
(e) procure that no material amendment or supplement is made to the
memorandum or articles of association of the relevant Company other
than pursuant to Clause 16.15 of the Facility Agreement without the
prior written consent of the Security Trustee;
(f) immediately upon the appointment of any new director of the relevant
Company, deposit or procure that there be deposited with the
Security Trustee, the equivalent documents mutatis mutandis with
respect to such director in the forms set out in Schedules 3, 4, 5
and 6;
(g) not take or permit any action whereby the rights attaching to the
Collateral and/or any other shares in the relevant Company are
altered or any further shares in the relevant Company are issued;
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(h) give to the Security Trustee upon receipt copies of all notices,
requests and other documents sent or received with respect to its
Collateral;
(i) give to the Security Trustee such information regarding its
Collateral as the Security Trustee shall reasonably require;
(j) do or permit to be done every act or thing which the Security
Trustee may from time to time require 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 purpose;
(k) 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 and will at its own expense
promptly take all action which is at any time necessary or desirable
to protect its and the Security Trustee's interests in and rights to
its Collateral;
(l) procure that the relevant Company will forthwith on presentation by
the Security Trustee or its nominee following the security
constituted by this Deed becoming enforceable, duly register all
transfers of the Collateral;
(m) if it shall acquire any such other stocks or shares as referred to
in the definition of Collateral, it shall forthwith deliver or
procure that there be delivered to the Security Trustee the
certificates in respect thereof together with instruments of
transfer in respect thereof duly executed in blank to enable the
same to be registered in the name of the Security Trustee or its
nominee following the security constituted by this Deed becoming
enforceable; and
(n) from time to time duly execute and lodge for registration or procure
the due execution and lodgement for registration with the Accounting
and Corporate Regulatory Authority or any other companies registry
or other authority of all such forms and documents as may be
required under all applicable laws and regulations with respect to
the security created or intended to be created by this Deed.
9. ENFORCEMENT
9.1 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 any Mortgagor is declared by the Minister (as defined in the
Companies Act, Chapter 50), to be a declared company under the
provisions of Part IX of the Companies Act, Chapter 50;
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(c) if any Mortgagor 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, and
the Security Trustee shall be entitled, without prior or further notice
and whether or not it shall have appointed a Receiver, to exercise the
power to sell or otherwise dispose of the whole or any part of the
Collateral.
9.2 EXCLUSION OF LIMITATION
No restrictions imposed by any ordinance or other statutory provision in
relation to the exercise of any power of sale or consolidation, including
without limitation, section 25 of the Conveyancing and Law of Property
Act, Chapter 61, shall apply to this Deed.
9.3 APPOINTMENT AND POWERS OF RECEIVER
(a) At any time after the security hereby created has become
enforceable, or if requested by any Mortgagor, the Security Trustee
may in writing either under seal or under the hand of a duly
authorised officer of the Security Trustee, appoint any person or
persons to be a Receiver of the Collateral and may from time to time
fix its or their remunerations and may remove any Receiver so
appointed and appoint another in its place. Where more than one
Receiver is so appointed, any reference in this Deed to a Receiver
shall apply to both or all of the Receivers so appointed and the
appointment shall be deemed to be a joint and several appointment so
that the rights, powers, duties and discretions vested in the
Receiver may be exercised jointly by the Receivers so appointed or
severally by each of them.
(b) The Receiver shall be the agent of each Mortgagor and each Mortgagor
shall be solely responsible for the Receiver's acts or defaults and
for the Receiver's remuneration and the Receiver shall have all the
powers (save for his wilful default or gross negligence) conferred
from time to time on mortgagees or receivers by law or otherwise
(but without the restrictions imposed by law or any ordinance or
other statutory provision in relation to the exercise of any power
of sale or consolidation) and power on behalf and at the cost of any
Mortgagor (notwithstanding any liquidation of any Mortgagor) to do
or omit to do anything which any Mortgagor could do or omit to do in
relation to the Collateral or any part thereof.
(c) The Receiver shall in the exercise of the Receiver's powers,
authorities and discretions conform to the directions and
regulations from time to time given or made by the Security Trustee.
9.4 POWERS TO BE GIVEN WIDE CONSTRUCTION
The powers of the Security Trustee and the Receiver hereunder shall be
construed in the widest possible sense to the intent that the Security
Trustee and the Receiver shall be afforded as wide and flexible a range of
powers as possible.
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9.5 NO LIABILITY TO ACCOUNT AS MORTGAGEE IN POSSESSION
Nothing that shall be done by or on behalf of the Security Trustee shall
render it liable to account as a mortgagee in possession for any sums
other than actual receipts.
9.6 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.
9.7 EVIDENCE OF DEBT
Any statement of account signed as correct by the Security Trustee showing
any amount due under the Facility Agreement or under this Deed or under
any other Security Document shall, in the absence of manifest error, be
conclusive evidence of the amount so due.
9.8 SALE OF COLLATERAL
(a) Section 21 of the Conveyancing and Law of Property Act, Chapter 61,
(the "ACT") shall not apply to the security created by this Deed.
The Security Trustee may exercise the power of sale conferred on
mortagees by the Act (as varied and extended by this Deed) free from
the restrictions imposed by Section 25 of the Act.
(b) Each of the Security Trustee and the Receiver shall be entitled to
exercise such power of sale in such manner and at such time or times
and for such consideration (whether payable immediately or by
instalments) as it shall in its absolute discretion think fit
(whether by private sale or otherwise) and so that the Collateral
(or any relevant part thereof) may be sold (i) subject to any
conditions which the Security Trustee or the Receiver may think fit
to impose, (ii) to any person (including, without limitation, any
person connected with any Mortgagor or the Security Trustee) and
(iii) at any price which the Security Trustee or the Receiver in its
absolute discretion considers to be the best obtainable in the
circumstances.
(c) The powers conferred by this Deed in relation to the Collateral or
any part thereof on the Security Trustee shall be in addition to and
not in substitution for the powers conferred on Security Trustees
under the Act, which shall apply to the security created by the
Security Trustee 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 Security
Trustee, the terms of this Deed shall prevail.
(d) If the Security Trustee exercises the rights conferred on it by this
Clause 9 any sale or disposal of any of the Collateral pursuant to
those rights shall not be treated as an absolute appropriation of or
foreclosure on the Collateral to the exclusion of any Mortgagor and
in extinguishment of its interest therein, unless the Security
Trustee shall otherwise notify the Mortgagors (whether before or
after the relevant appropriation or foreclosure has been effected),
in which latter
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[Group Share Mortgage]
event any such appropriation or foreclosure shall be treated as a
sale of the Collateral at a fair market value and the Secured
Obligations shall be reduced by an equivalent amount.
(e) In any disposal pursuant to this Clause 9, the Security Trustee or
the Finance Parties may, provided that they shall first have used
reasonable efforts to dispose of the relevant Collateral or rights
to third parties subject to compliance with any rules or regulations
laid down by any governmental or other agency or authority,
themselves purchase the whole or any part of the Collateral or
rights disposed of free from any rights of redemption on the part of
the Mortgagors which are hereby waived and released.
9.9 DIVIDENDS
At any time after the power of sale has arisen, any Dividends which have
been or may be received or receivable by the Security Trustee or the
Receiver may be applied by the Security Trustee or the Receiver as though
they were proceeds of sale hereunder.
9.10 PURCHASER NOT BOUND TO ENQUIRE
Each of the Security Trustee and the Receiver is authorised to give a good
discharge for any monies received by it pursuant to the exercise of its
power of sale and no purchaser or other person shall be bound to enquire
whether the power of sale has arisen as herein provided nor be concerned
with the manner of application of the proceeds of sale.
9.11 NO LIABILITY FOR LOSSES
None of the Mortgagors shall have any claim against the Receiver or the
Security Trustee in respect of any loss arising out of the exercise by the
Security Trustee or the Receiver of their respective powers hereunder
including without limitation out of any such sale or any postponement
thereof howsoever caused and whether or not a better price could or might
have been obtained upon the sale of the Collateral or any part thereof by
deferring or advancing the date of such sale or otherwise howsoever unless
caused by the negligence or wilful default of the Security Trustee or the
Receiver.
9.12 WAIVER OF PRE-EMPTION RIGHTS
Each Mortgagor hereby irrevocably and unconditionally waives any rights it
may have under the constitutional documents of the Companies or otherwise
to purchase the Shares or Related Assets or other Collateral in the event
that they are or are proposed to be transferred, sold or otherwise
disposed of pursuant to the provisions of this Deed.
10. DIVIDENDS AND VOTING RIGHTS
10.1 After the security under this Deed has become enforceable and subject to
Clause 10.2, the Security Trustee shall have complete discretion to retain
the dividends, interest and other moneys received by the Security Trustee
in respect of the Collateral and to exercise or abstain from exercising
all voting and other rights and powers attaching to the Collateral as the
Security Trustee in its absolute discretion thinks fit without being
liable for any losses which the Mortgagors may suffer as a result thereof
(except in case
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[Group Share Mortgage]
of gross negligence or wilful default on the part of the Security Trustee)
and in this respect each Mortgagor will, or will procure its Nominee to
act or refrain from acting in accordance with the directions given by the
Security Trustee from time to time.
10.2 The Security Trustee agrees with the Mortgagor that until the security
under this Deed shall have become enforceable:
(a) the Mortgagor shall be entitled to receive and retain all Dividends,
interest or other distributions or payments paid to and received by
the Mortgagor in respect of the Collateral; and
(b) the Mortgagor shall be entitled to exercise all voting and other
rights and powers attaching to the Collateral or any part thereof
for all purposes, including but not limited to, exercising any
option, warrant, conversion right or any other right, power or other
privilege attaching to the Collateral provided that the same does
not adversely affect or prejudice the rights of the Finance Parties
or the security hereby created.
11. 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 it 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) surplus (if any) to the Mortgagors.
12. INDEMNITY
12.1 GENERAL INDEMNITY
Each of the Mortgagors hereby jointly and severally undertakes with the
Security Trustee to indemnify and keep indemnified the Security Trustee
and each other Finance party, any nominee, agent, officer or employer
thereof for whose liability the Security Trustee may be answerable, the
Receiver and each of them (each an "INDEMNITEE") from and against all
costs, charges and expenses which the Security Trustee or such Lender
shall properly incur in connection with the exercise of any powers
conferred by this
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[Group Share Mortgage]
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).
12.2 CURRENCY INDEMNITY
(a) If an amount due to the Security Trustee or any Lender from any
Mortgagor 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 any Mortgagor;
(ii) obtaining or enforcing an order, judgment or award in relation
to any litigation or arbitration proceedings,
that Mortgagor shall, as an independent obligation to the Security
Trustee or such Lender, indemnify the Security Trustee or such
Lender 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) Each Mortgagor waives any right it may have in any jurisdiction to
pay any amount under this Deed in a currency or currency unit other
than that in which it is expressed to be payable.
12.3 PAYMENT AND SECURITY
The Security Trustee or the Receiver may retain and pay out of any money
in the hands of the Security Trustee or the Receiver all sums necessary to
effect the indemnity contained in this Clause and all sums payable by the
Mortgagor under this Clause shall form part of the monies hereby secured.
13. SUSPENSE ACCOUNT
Notwithstanding Clause 11 (Application of Proceeds), in the event of the
commencement at any time of the insolvency, bankruptcy winding-up or
analogous proceedings of any Mortgagor, or of the security created under
or pursuant to this Deed ceasing for any reason to be binding on the
Mortgagor or if the Security Trustee should receive notice (either actual
or otherwise) of any other security or interest affecting any of the
Collateral, the Security Trustee may at any time open a new account or
continue any then existing account in the name of the Mortgagor. No moneys
paid into any such new account or continued account thereafter shall
discharge or reduce the amount recoverable pursuant to this Deed. If the
Security Trustee does not open a new account for such purposes, each
Mortgagor shall nevertheless be treated as if it had done so at such time
and as from that time all payments made by or on that Mortgagor's behalf
for the account of the Security
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[Group Share Mortgage]
Trustee shall be treated as having been credited to the new account and
shall not operate to reduce the Secured Obligations at such time.
14. SET-OFF
(a) Without prejudice to any right of set-off, combination of accounts,
lien or other rights which the Security Trustee or any Lender is at
any time entitled whether by operation of law or contract or
otherwise, the Security Trustee and each Lender may (but shall not
be obliged to) set off against any obligation of any Mortgagor due
and payable by it hereunder without prior notice any moneys held by
the Security Trustee or such Lender for the account of such
Mortgagorat any office of the Security Trustee or such Lender
anywhere and in any currency. The Security Trustee or such Lender
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 Lender may convert either obligation at a market rate of
exchange in its usual course of business for the purpose of the
set-off.
15. POWER OF ATTORNEY
15.1 POWER OF ATTORNEY
(a) Each Mortgagor irrevocably appoints the Security Trustee, the
Receiver and any persons deriving title under either of them by way
of security jointly and severally to be his attorney (hereinafter
referred to as the "ATTORNEY", which expression shall include any
substitute attorney appointed hereunder and for the time being
acting) (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 each Mortgagor hereunder or for
exercising, following the security constituted by this Deed becoming
enforceable, any of the powers conferred by this Deed or in
connection with any sale or disposition of the Collateral or the
exercise of any rights in respect thereof or for giving to the
Security Trustee and the Receiver 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 each Mortgagor anything
it can lawfully do by an attorney.
(b) Each Mortgagor hereby declare that all acts and things done and all
deeds, instruments and documents executed by the Attorney by virtue
of the provisions hereof on behalf of the Mortgagor shall be as
good, valid and effectual to all intents and purposes whatsoever as
if the same had been duly and properly done or lawfully executed by
itself and each Mortgagor hereby undertakes to ratify and confirm
all such acts and things done and all such deeds, instruments and
documents lawfully executed by virtue of the powers and authority
hereby conferred.
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(c) Each Mortgagor hereby further declares that the powers and authority
conferred by this clause 14.1 are given for valuable consideration
and shall be and remain irrevocable until payment and discharge of
all of the Secured Obligations.
(d) None of the Security Trustee and the Attorney shall be liable to the
Mortgagor for any loss suffered by any Mortgagor as a result of the
exercise by the Attorney in good faith of the powers conferred by
this clause 8.1.
15.2 DELEGATION
The Security Trustee and the Receiver may delegate to any person all or
any of the rights or powers conferred on it by this Deed or by law and any
such delegation may be made upon such terms and conditions (including
power to sub-delegate) and subject to such regulations as the Security
Trustee may think fit and the Security Trustee shall not be in any way
liable or responsible to the Mortgagors for any loss or damage arising
from any act, default, omission or misconduct on the part of any such
delegate or sub-delegate.
16. FURTHER ASSURANCE
The Mortgagor 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.
17. NOTICES
17.1 NOTICES
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 party 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 any of the Mortgagors
and any of the Lenders in connection with this Deed shall be made through
the Security Trustee
17.2 ADDRESSES
Notices or communications shall be sent to the following addresses:-
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To any Mortgagor:-
Address c/o Asia Netcom Corporation Limited
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:-
Address Industrial and Commercial Bank of China (Asia) Limited
10/F., ICBC Asia Xxxxxxxx
000-000 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Fax (000) 0000 0000
Attention Xx. Xxxxxx Xxxxx/Ms Xxx Xxxx
17.3 LANGUAGE
Each notice or document referred to in this Deed or to be delivered under
this Deed shall be in the English language.
18. WAIVERS, AMENDMENTS AND CONSENTS, REMEDIES, SEVERABILITY, ASSIGNMENT AND
COUNTERPARTS
18.1 WAIVERS
No failure or delay on the part of the Security Trustee or any Lender 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 Lender of any power, right or remedy preclude any other or
further exercise thereof or the exercise of any other power, right or
remedy.
18.2 AMENDMENTS AND CONSENTS
(a) Any amendment of any provision of this Deed shall only be effective
if made in accordance with the provisions of this Deed and each
Mortgagor and the Security Trustee 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
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[Group Share Mortgage]
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.
18.3 REMEDIES
The remedies provided in this Deed are cumulative and are not exclusive of
any remedies provided by law.
18.4 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.
18.5 ASSIGNMENT
The Security Trustee may assign its rights under this Deed in accordance
with the provisions of the Facility Agreement. None of the Mortgagors may
assign any of their respective rights hereunder without the prior written
consent of the Security Trustee.
18.6 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.
18.7 It is intended that this document takes effect as a deed notwithstanding
the fact that a party may only execute this document under hand.
19. GOVERNING LAW AND JURISDICTION
19.1 GOVERNING LAW
This Deed shall be governed by and construed in accordance with the laws
of Singapore.
19.2 SUBMISSION TO JURISDICTION
For the benefit of the Security Trustee, each Mortgagor irrevocably agrees
that the courts of the Singapore 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 each Mortgagor irrevocably submits to the jurisdiction of those
courts.
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[Group Share Mortgage]
19.3 OTHER JURISDICTIONS
Nothing in this Clause 18 (Governing Law and Jurisdiction) shall limit the
right of the Security Trustee to take Proceedings against any Mortgagor 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.
19.4 WAIVER OF INCONVENIENT FORUM
Each Mortgagor 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 19 (Governing Law and Jurisdiction) and any claim that
any such Proceedings have been brought in an inconvenient forum.
19.5 PROCESS AGENT
Each of the Mortgagors hereby irrevocably appoints Asia Netcom Singapore
Pte Limited, 0 Xxxxxxx Xxx #00-00, XXX Xxxxxx 0, Xxxxxxxxx 000000 to
receive, for it and on its behalf, service of process in any Proceedings
in Singapore. Such service shall be deemed completed on delivery to the
process agent whether or not it is forwarded to and received by the
Mortgagors). If for any reason the process agent ceases to be able to act
as such or no longer has an address in Singapore, the Mortgagors
irrevocably agree to appoint a substitute process agent acceptable to the
Security Trustee, and to deliver to the Security Trustee a copy of the new
process agent's acceptance of that appointment, within 30 days.
19.6 SERVICE
Each of the Mortgagors irrevocably consents to any process in any
Proceedings anywhere being served by mailing a copy by post in accordance
with Clause 17 (Notices). Nothing shall affect the right to serve any
process in any other manner permitted by law.
19.7 WAIVER OF IMMUNITIES
To the extent that each Mortgagor 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, each Mortgagor
hereby irrevocably waives and agrees not to plead or claim such immunity
in respect of its obligations under this Deed.
20. AVOIDANCE OF PAYMENTS
No assurance, security or payment which may be avoided under any law
relating to bankruptcy or insolvency or under Section 329 or 330 of the
Companies Act (Cap. 50), and no release, settlement or discharge given or
made by the Security Trustee on the faith of any such assurance, security
or payment, shall prejudice or affect the right
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[Group Share Mortgage]
of the Security Trustee to enforce the security created by this Deed in
respect of the full extent of the moneys hereby secured. It is further
agreed that (to the extent that the Security Trustee is of the opinion
that there is a reasonable prospect of any assurance, security or payment
being avoided as aforesaid) the Security Trustee shall be at liberty at
its absolute discretion to retain any of the Collateral as security for
the Secured Amounts for a period of seven months after the Secured Amounts
shall have been paid in full, notwithstanding any release, settlement,
discharge or arrangement given or made by the Security Trustee on, or as a
consequence of, such termination of liability and, if at any time within
the period of six months after such termination a petition (or equivalent)
shall be presented to a competent court for an order for the bankruptcy or
winding up (or equivalent) of any Mortgagor, or any Mortgagor shall be
declared a bankrupt or commence to be wound up voluntarily (or
equivalent), the Security Trustee shall be at liberty, notwithstanding the
same, to continue to retain such Collateral or any part thereof for and
during such further period as the Security Trustee in its absolute
discretion shall determine and each Mortgagor agree that such security
shall be deemed to have been and to have remained held by the Security
Trustee as and by way of security for the payment and discharge of the
Secured Amounts.
21. 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 Deed and any person who is not a party to this
Deed (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 Deed) shall have no right whatsoever under the
Contracts (Rights of Third Parties) Act 53B to enforce this Deed or any of
its terms.
22. MISCELLANEOUS
22.1 The Security Trustee may convert any moneys available to it by virtue of
this Deed from their existing currency of denomination into such other
currency of denomination as may be necessary to enable it to discharge the
Secured Obligations, any such conversion to be effected at the prevailing
spot rate of exchange selected by the Security Trustee for the sale of
such existing currency for such other currency (or, if there is no such
rate, such other rate (being a rate generally available in the ordinary
course of business) as the Security Trustee may select for this purpose).
22.2 The Security Trustee may act under this Deed through any of its branches
or offices.
22.3 Each Mortgagor hereby irrevocably consents to the disclosure by the
Security Trustee and the other Finance Parties on a confidential basis of
such information about the Mortgagor as has been made available to them to
any potential assignee or transferee in respect of their rights and/or
obligations under or in connection with this Deed.
22.4 It is intended that this document takes effect as a deed notwithstanding
the fact that a party may only execute this document under hand.
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[Group Share Mortgage]
IN WITNESS whereof this Deed has been executed by the parties hereto and is
intended to be and is hereby delivered by each Mortgagor as its deed on the day
and year first above written.
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[Group Share Mortgage]
SCHEDULE 1
PARTICULARS OF THE SHARES
DESCRIPTION AND NUMBER OF REGISTERED SHAREHOLDERS AND
NAME OF COMPANY SHARES NUMBER OF SHARES HELD
--------------- ------ ---------------------
Asia Netcom Corporation 2 shares of S$1.00 each Asia Netcom Corporation
(Singapore) Pte. Limited Limited
(2 shares)
Asia Netcom Services (S) Pte. Ltd. 13,975,691 shares of S$1.00 Asia Netcom Corporation
each (Singapore) Pte Limited
(13,975,691 shares)
Southeast Asia Netcom (Singapore) 2,356,780 shares of Asia Netcom Singapore Pte
Pte. Ltd. S$1.00 each Ltd (2,356,780 shares)
Asia Netcom Singapore Pte. Ltd. 2 shares of S$1.00 each Asia Netcom Corporation
(Singapore)
Pte Limited
(2 shares)
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[Group Share Mortgage]
SCHEDULE 2
FORM OF INSTRUMENT OF TRANSFER
Instrument of Transfer
[-]
TRANSFER
FOR THE CONSIDERATION stated the Transferor named below hereby transfers to the
Transferee named below the shares or stock stated subject to the several
conditions on which the said shares or stock are or is now held by the
Transferor and the Transferee hereby agree(s) to accept and hold the said shares
or stock subject to the conditions aforesaid.
Full Name of Company
--------------------------------------------------------------------------------
Amount or Number and
full details of Share or Stock
--------------------------------------------------------------------------------
Transfer from Transferor
Name and Address in full
--------------------------------------------------------------------------------
Consideration
--------------------------------------------------------------------------------
Transfer to
Transferee
Name and Address
in full
--------------------------------------------------------------------------------
Dated
SIGNED by the Transferor )
in the presence of: )
SIGNED by the Transferee )
in the presence of: )
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[Group Share Mortgage]
SCHEDULE 3
FORM OF LETTER OF RESIGNATION
To: The Board of Directors
of [-] (the "COMPANY") Date: ______________________
I, [Name of director/secretary], hereby resign my position as a
[director/secretary] of the Company with effect from ______ and waive all claims
to fees or compensation in connection with or arising from my employment and/or
resignation save as provided by law in Singapore.
SIGNED, SEALED AND DELIVERED by
[Name of director/secretary]
in the presence of:
Signature of witness: _____________________
Name of witness: _____________________
Address of witness: _____________________
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[Group Share Mortgage]
SCHEDULE 4
FORM OF WRITTEN RESOLUTION
[-]
Written Resolutions of all the Directors of the Company dated the day of
We, the undersigned, being all the Directors of the Company, hereby resolve:-
1. Appointment of Directors/Secretary
That the following persons be appointed as Directors and/or Secretary of
the Company with immediate effect:-
2. Resignation of Directors
That the Letters of Resignation signed by [names of all
Directors/secretary] be accepted and that the same shall take effect
forthwith.
[signed by all Directors]
_______________________________ _____________________________
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[Group Share Mortgage]
SCHEDULE 5
FORM OF AUTHORISATION FROM DIRECTORS/SECRETARY
[Date]
To: Industrial and Commercial Bank of China (Asia) Limited
10/F., ICBC Asia Xxxxxxxx
000-000 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
We are, at the date hereof, all the directors and the sole secretary of [-] (the
"COMPANY").
We refer to (a) the facility agreement dated [-], 2004, as amended and restated
by the Supplemental Amendment and Restatement Deed dated [ ], 2004 (the
"FACILITY AGREEMENT"), entered into between (1) Asia Netcom Corporation Limited,
as borrower (the "BORROWER") (2) the banks and financial institutions named
therein as lenders (the "LENDERS") and (3) the Industrial and Commercial Bank of
China (Asia) Limited as arranger and facility agent; (b) the Group Share
Mortgage dated [-], 2004 (the "MORTGAGE") made between the companies named in
Schedule 7 therein and yourselves as Security Trustee in relation the Shares in
the Company; and (c) an undated written resolution of all the directors of the
Company signed by us resolving to approve the appointment of new director(s)
and/or a new secretary of the Company and the resignation of us as directors
and/or secretary of the Company (the "WRITTEN RESOLUTIONS").
We hereby irrevocably authorise you, at any time after the Mortgage has become
enforceable without our consent, to nominate such person(s) as you may in your
absolute discretion determine to be the director(s) of the Company and to
complete the written resolutions in such manner as you may think fit, including
to insert the date (which can be any date after the date hereof) and the name(s)
of the additional director(s) and/or the secretary. We confirm and declare that
the written resolutions as completed by you shall in all respects be valid and
effective as a board resolutions of the Company on the date and to the effect as
stated therein, and be binding on us and on the Company.
We also refer to the undated letters of resignation as directors and/or the
secretary of the Company signed by us. Each of us hereby irrevocably authorises
you at any time after the Mortgage has become enforceable without our consent to
insert a date (which can be any date after the date hereof) on the letters of
resignation, upon which our resignation of directorship and/or as secretary
shall take immediate effect.
[signed by all Directors and the secretary]
____________________________ _____________________________
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[Group Share Mortgage]
SCHEDULE 6
FORM OF LETTER OF UNDERTAKING
[Date]
To: Industrial and Commercial Bank of China (Asia) Limited
10/F., ICBC Asia Xxxxxxxx
000-000 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
We, the undersigned Directors of [ - ] (the "COMPANY"), refer to the Mortgage
of Shares dated [ ], 2004 and made between the companies named in
Schedule 7 therein as mortgagors and yourselves as Security Trustee, and in
pursuance thereof hereby undertake not to appoint any additional or substitute
Directors or Secretary of the Company without your written consent.
[signed by all Directors]
______________________________ ___________________________
______________________________ ___________________________
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[Group Share Mortgage]
SCHEDULE 7
MORTGAGORS
Name of Mortgagor Shares being Mortgaged
----------------- ----------------------
1. Asia Netcom Corporation Limited Asia Netcom Corporation (Singapore) Pte.
Limited
2. Asia Netcom Corporation (Singapore) Asia Netcom Services (S) Pte. Ltd. AND
Pte. Limited Asia Netcom Singapore Pte. Ltd.
3. Asia Netcom Singapore Pte. Ltd. Southeast Asia Netcom (Singapore) Pte.
Ltd.
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[Group Share Mortgage]
SCHEDULE 8
FORM OF ACKNOWLEDGEMENT OF NOMINEE
To: Industrial and Commercial Bank of China (Asia) Limited
_________________, 2004
Dear Sirs,
RE: ASIA NETCOM CORPORATION LIMITED (THE "COMPANY")
I/We acknowledge that by a deed of mortgage of shares dated [___________], 2004
(the "SHARE MORTGAGE"), China Netcom Corporation International Limited (the
"MORTGAGOR") has agreed to mortgage the entire issued share capital of the
Company (the "SHARES") of which the Mortgagor is the sole beneficial owner to
you.
I/We hereby agree to deposit with you the certificates in respect of the
Share(s) of which I/we are the registered holder and to execute and deliver to
you such instruments of transfer, contract note, and other documents in respect
of such Share(s), including a power of attorney to sell, transfer or otherwise
dispose of the same, in such form as you may at any time and from time to time
require.
I/We [jointly and severally], until such time as I/we receive written notice
from you stating that the Share Mortgage has been released or otherwise
discharged:
1. warrant that I/we are the registered holder(s) of a total of [____]
[ordinary share(s)] of $[_______] each, in the Company;
2. confirm that I/we hold such share(s) as nominee(s) on trust for you and
that I/we shall hereafter hold such share(s) on you behalf as mortgagee in
accordance with the terms of the Share Mortgage; and
3. grant to you a power of attorney in the terms of clause 15 of the Share
Mortgage as if references therein to the Mortgagor were references to
me/us and undertake to grant you such further powers of attorney in such
form as you may at any time and from time to time require.
EITHER:
SIGNED, SEALED AND DELIVERED )
by [___________________________] )
in the presence of: )
OR:
THE COMMON SEAL of )
[---------------------------] )
was hereunto affixed in )
the presence of: )
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[Group Share Mortgage]
EXECUTION PAGE
THE MORTGAGORS
SIGNED, SEALED AND DELIVERED )
as a Deed by its duly authorised attorney )
Xxxx, Xxx Ping Xxxxxx ) /s/ Xxxx, Xxx Ping Xxxxxx
for and on behalf of )
ASIA NETCOM CORPORATION LIMITED )
in the presence of:- )
/s/ Xxxxxx Xxxxxxx Xxxx
Xxxxxx Xxxxxxx Xxxx
Solicitor
XXXXXXXX XXXXXX
00/X Xxxxxxxxx Xxxxx
Xxxx Xxxx SAR
SIGNED, SEALED AND DELIVERED )
as a Deed by its duly authorised attorney )
Xxxx, Xxx Ping Xxxxxx ) /s/ Xxxx, Xxx Ping Xxxxxx
for and on behalf of )
ASIA NETCOM CORPORATION (SINGAPORE) )
PTE LIMITED )
in the presence of:- )
/s/ Xxxxxx Xxxxxxx Xxxx
Xxxxxx Xxxxxxx Xxxx
Solicitor
XXXXXXXX XXXXXX
00/X Xxxxxxxxx Xxxxx
Xxxx Xxxx SAR
SIGNED, SEALED AND DELIVERED )
as a Deed by its duly 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
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[Group Share Mortgage]
THE SECURITY TRUSTEE
SIGNED by )
Xxxx Xxx, Xxxxxx Xxx ) /s/ Xxxx Xxx /s/ Xxxxxx Xxx
for and on behalf of )
THE INDUSTRIAL AND COMMERCIAL )
BANK OF CHINA (ASIA) LIMITED )
in the presence of:-
/s/ Xxxxxx Xxxxxxx Xxxx
Xxxxxx Xxxxxxx Xxxx
Solicitor
XXXXXXXX XXXXXX
00/X Xxxxxxxxx Xxxxx
Xxxx Xxxx SAR
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