Exhibit 24
THIS SHARE CHARGE AMENDMENT AGREEMENT is made on 12th June 2003
BETWEEN
(1) PACIFIC CENTURY REGIONAL DEVELOPMENTS LIMITED, a company incorporated
under the laws of Singapore and whose registered office is at ▇
▇▇▇▇▇▇▇ ▇▇▇▇, #▇▇-▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (the Issuer);
(2) AIG GLOBAL INVESTMENT CORPORATION (ASIA) LIMITED of ▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ as Security Trustee for and on
behalf of the Bondholders (the Security Trustee).
WHEREAS
(A) By a resolution of its directors passed on 11 October 2001, the Issuer
has created US$250,000,000 secured redeemable exchangeable bonds (the
Bonds) which are constituted under a deed poll dated 7 December 2001
made by the Issuer as amended pursuant to a Supplemental Deed Poll
dated 12 June 2003 (the Deed Poll). The Bonds are exchangeable into
ordinary shares of HK$0.25 each of PCCW Limited (PCCW).
(B) AIG Asian Infrastructure Fund II L.P., American International
Assurance Company (Bermuda) Limited and AIG Asian Opportunity Fund,
L.P. (each a Bondholder and together the Bondholders) have subscribed
for the Bonds in accordance with the terms and conditions of a
subscription agreement dated 11 October 2001 (the Subscription
Agreement).
(C) To secure the Issuer's obligations under the Bonds, the Issuer entered
into a Share Charge Agreement dated 7 December 2001 (the Share Charge
Agreement) to create security over the Security Shares (as defined
therein) in favour of the Security Trustee for and on behalf of the
Bondholders.
(D) The Issuer and the Security Trustee have agreed to amend the terms of
the Share Charge Agreement as set out herein.
IT IS AGREED as follows:
1. INTERPRETATION AND DEFINITIONS
1.1 In this Share Charge Amendment Agreement definitions and rules of
interpretation set out in the Share Charge Agreement will have the same meaning
when used herein.
1.2 Effective Date means the date of this Share Charge Amendment Agreement.
1.3 Supplemental Agreements means this Share Charge Amendment Agreement and the
supplemental deed poll made between the Issuer and the Security Trustee and the
warranty agreement made between the Issuer and the Bondholders, each dated 12
June 2003.
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2. AMENDMENT
2.1 The Share Charge Agreement shall be amended as follows with effect from the
Effective Date:
(a) By deleting the definition of "Valuation Date" and inserting a new
definition as follows:
"Securities Lending Agreement means the securities lending agreement
dated on or about 2003 made between the Issuer, the Security Trustee
and the Bondholders, as amended from time to time.
Security Shares means the Original Shares and all and any other
securities, which are for the time being mortgaged or charged to the
Security Trustee pursuant to clause 3 (but excluding any rights,
title, benefit and interest charged, assigned or mortgaged to the
Security Trustee pursuant to Clause 3(d)).
Valuation Date means:
(a) each anniversary of the date of this Share Charge Agreement
(and if such a day is not a Business Day, the first following
day which is a Business Day); and
(b) the date of service of a notice pursuant to Condition
9(a)(ii) and, if the Issuer has not redeemed any Bonds
pursuant to Condition 9(a), the date of service of a notice
pursuant to Condition 9(b)(ii)."
(b) By inserting a new Clause 3(d) and Clause 3(e) as follows:
"(d) mortgages and assigns and agrees to mortgage and assign
absolutely to the Security Trustee all of its rights, title,
benefit and interest (but for the avoidance of doubt, none of
its obligations) in, to and under clause 6 (Redelivery of
Equivalent Securities) of the Securities Lending Agreement
and all rights and powers (but for the avoidance of doubt, no
obligations) incidental or ancillary to its rights, title,
and interest in to and under clause 6 of the Securities
Lending Agreement, including, without limitation, rights and
powers under clauses 5, 10.1 and 10.2 of the Securities
Lending Agreement (the Mortgaged Property); and
(e) with full title guarantee, mortgages and agrees to mortgage
to the Security Trustee all of its rights, title, benefit and
interest in, to and under all shares, warrants, cash and
other securities and property delivered or to be delivered to
the Issuer or any relevant assignee by any Borrower (as
defined in the Securities Lending Agreement) pursuant to
Clause 6 of the Securities Lending Agreement.
Notwithstanding the foregoing unless and until a Sale Event
has occurred (whether under Condition 12 of the Conditions or
otherwise), the Security Trustee shall not, save as expressly
provided in this Share Charge Agreement or the Securities
Lending Agreement, exercise any or all of the Issuer's right,
title, benefit, and interest in, to and under the Mortgaged
Property and the
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Issuer shall be entitled (subject to the terms hereof) to
continue to exercise all such rights under the Securities
Lending Agreement."
(c) By deleting the existing Clause 4.2 and inserting a new Clause 4.2 as
follows:
"4.2 The Security Trustee agrees to calculate in respect of each
Valuation Date:
(a) the aggregate outstanding principal amount of the Bonds as at
the close of business in Hong Kong on the relevant Valuation
Date (the Reference Net Exposure); and
(b) the Aggregate Security Value on the relevant Valuation Date
(the Reference Security Value) converted into US dollars at
the spot buying rate prevailing at noon (Hong Kong time) on
such date of The Hongkong and Shanghai Banking Corporation
Limited."
(d) By deleting the existing Clause 4.4(a) and inserting a new Clause 4.4
(a) as follows:
"(a) No later than the close of business in Hong Kong on the tenth
Business Day after receipt of notification from the Security
Trustee in accordance with clause 4.3, the Issuer shall
transfer or procure that there shall be transferred to and
registered in the name of the Security Trustee (or such
nominee as the Security Trustee may direct) to be held on
trust for the Bondholders such additional Shares (the
Additional Security Shares) such that the Aggregate Security
Value after the transfer of such Additional Security Shares,
together with the Current Market Value (as at the relevant
Valuation Date) of (x) any Security Shares used by the
Security Trustee pursuant to Condition 9(f)(iii) and (y) any
Shares made available to the Security Trustee or Bondholders
by the Issuer pursuant to Condition 9(f)(i) (excluding for
the avoidance of doubt, any Shares made available to the
Security Trustee or the Bondholders by any person other than
the Issuer), in each case which have not been returned to the
Issuer or set-off pursuant to Condition 9(c)(i) or Condition
9 (d)(i) on or before the date of transfer of Additional
Security Shares pursuant to this clause 4.4 equals not less
than 150% of the Reference Net Exposure."
(e) by the insertion of a new Clause 7A as set out below:
"7A. RIGHT OF REHYPOTHECATION
7A.1 If Condition 9(f)(iii) of the Conditions applies, the Security Trustee
and each Bondholder may at any time or times borrow, lend or otherwise
use for its own purposes any Security Shares (to the extent permitted
under Condition 9) which are for the time being subject to the
Security Interests constituted under the Share Charge Agreement.
7A.2 The Security Trustee and each Bondholder may retain for its own
account all fees, profits and other benefits received in connection
with any such borrowing, loan or use. Upon such borrowing, lending or
other use, such investments will become the absolute property of the
Security Trustee or Bondholder (as the case may be) free from the
Security Interests constituted under the Share Charge Agreement and
free from any equity, right, title or interest of the Issuer and the
Issuer will thereupon have
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a right against the Security Trustee or Bondholder (as the case may
be) for the delivery of the Shares (to the extent used under Clause
7A.1).
All costs, expenses, fees, duties and taxes incurred in connection
with establishing and operating such stock borrowing, lending or
hedging facilities or other use of the Shares envisaged by this Clause
7A shall be for the account of the Issuer but for the avoidance of
doubt the Issuer shall have no liability to the Security Trustee or
any Bondholder for any losses they may incur in connection with any
stock borrowing, lending or hedging transactions.
7A.3 The Issuer will procure that PCCW issues promptly such share
certificates, documents of title, share transfer forms and contract
notes to the Security Trustee as it may require to exercise its rights
under this Clause 7A.
7A.4 The Issuer agrees that if the Security Trustee or any Bondholder
re-transfers or re-delivers Shares to it, these do not need to be the
identical Shares originally deposited, charged or transferred, to the
Security Trustee, and the Issuer will accept such other Shares."
(f) By deleting the existing Clause 7.1 and inserting a new Clause 7.1 as
follows:
"If any Bondholder exercises his Exchange Right to exchange all or any
of his Bonds for Exchange Property or upon redemption of the Bonds for
cash or otherwise or upon any purchase or cancellation of the Bonds,
the Security Trustee shall immediately release from the security
constituted by this Share Charge Agreement and deliver to such
Bondholder on behalf of the Issuer, out of the Security Shares, such
portion of the Exchange Property as the Bondholder shall be entitled
in accordance with the Conditions, including all certificates or other
documents of title, share transfer forms and contract notes relating
thereto."
2.2 With effect from the Effective Date, the Share Charge Agreement shall be
read and construed as if the amendments set out in Clause 2.1 above were
incorporated therein.
3. ACKNOWLEDGEMENT
The parties acknowledge that the amendments set out in this Share Charge
Amendment Agreement do not constitute a waiver or release of the Security
Interests constituted under the Share Charge Agreement.
4. FURTHER ASSURANCE
The Issuer will take such other actions or execute such other documents (in
each case, at the Issuer's cost) as the Security Trustee may reasonably require
for giving effect to, and protecting the rights of the Security Trustee and the
Bondholders under, this Share Charge Amendment Agreement, including making any
filings required in any jurisdiction.
5. COUNTERPARTS
This Share Charge Amendment Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
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6. GOVERNING LAW
The provisions of Clause 22 of the Share Charge Agreement shall apply to this
Agreement as if set out herein.
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IN WITNESS whereof this Share Charge Amendment Agreement has been executed the
day and year first above written.
EXECUTED as a DEED under )
the COMMON SEAL of )
PACIFIC CENTURY REGIONAL )
DEVELOPMENTS LIMITED )
in the presence of: )
Director ________________________________
Director/Secretary______________________________
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Share Charge Amendment Agreement
EXECUTED as a DEED under )
the COMMON SEAL of )
AIG GLOBAL INVESTMENT )
CORPORATION (ASIA) LIMITED )
in the presence of: )
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12th June 2003
(1) PACIFIC CENTURY REGIONAL DEVELOPMENTS LIMITED
(2) AIG GLOBAL INVESTMENT CORPORATION (ASIA) LIMITED
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SHARE CHARGE
AMENDMENT AGREEMENT
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