Exhibit 33
Execution Copy
CALCULATION AGENCY AGREEMENT
CALCULATION AGENCY AGREEMENT, dated as of March 8, 2004 (the
"Agreement"), by and among Pacific Century Regional Developments Limited (the
"Company"), the person or entity identified in Part A of the Schedule
("Bondholder"), on behalf of itself and any other Bondholders, and ▇▇▇▇▇▇
Brothers Inc. ("Approved Investment Bank").
WHEREAS, the Company has authorized the issuance of up to US$100,000,000
Secured Redeemable Exchangeable Bonds due 2006 to 2007 (the "Bonds") to the
Bondholder;
WHEREAS, the Bonds were issued under a Deed Poll, dated as of January
15, 2002 (as amended from time to time), including the terms and conditions of
the Bonds incorporated therein (the "Deed Poll"); and
WHEREAS, the Company and the Bondholder have requested ▇▇▇▇▇▇ Brothers
Inc. to perform certain services described herein in connection with the Bonds;
NOW THEREFORE, the Company, the Bondholder and ▇▇▇▇▇▇ Brothers Inc.
agree as follows:
1. Appointment of Agent; Waiver of Conflict. The Company hereby appoints
▇▇▇▇▇▇ Brothers Inc. as the Approved Investment Bank under Conditions 6(g) and
7(f) of the Deed Poll, the final sentence of the first paragraph of Condition
8, and in connection with the determination of a successor service under the
definition of "Spot Rate," and ▇▇▇▇▇▇ Brothers Inc. hereby accepts such
appointment as the Approved Investment Bank for the purpose of performing the
services hereinafter described upon the terms and subject to the conditions
hereinafter mentioned. Each of the Company and the Bondholder hereby
acknowledges that the Approved Investment Bank or any of its Affiliates,
whether acting for itself or in any other capacity, may from time to time enter
into or be interested in contracts or transactions with the Company, PCCW
Limited, the Bondholder or any of their respective subsidiaries or holding or
associated companies which may create apparent or actual conflicts of interest
on the part of the Approved Investment Bank. Each of the Company and the
Bondholder hereby now and hereafter irrevocably waives any and all claims of
conflict of interest, unfair dealing, breach of fiduciary duty arising from a
conflict of interest and any claims similar to or based upon the foregoing
grounds with respect to the Approved Investment Bank's performance of its
duties hereunder. The foregoing shall not operate as a waiver of the Approved
Investment Bank's obligation to perform its duties hereunder in good faith and
in a commercially reasonable manner.
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2. Calculations and Information Provided. Upon the occurrence of any
event specified in the Deed Poll requiring the Approved Investment Bank to make
any selection under the definition of "Spot Rate" contained therein, any
determination under Condition 6(g) or the final sentence of the first paragraph
of Condition 8 thereof or to adjust the Exchange Price or make any modification
or determination in accordance with Condition 7(f) and the Fourth Schedule
thereof, the Issuer shall give written notice of the occurrence of such event
to the Approved Investment Bank in accordance with Section 10 below. Following
receipt of such notice, the Approved Investment Bank shall make any
determination or modification or determine adjustments to the Exchange Price of
the Bonds in accordance with the provisions thereof. The Approved Investment
Bank shall notify the Company and the Bondholder of all such determinations in
accordance with Section 10 below. The Approved Investment Bank will follow such
procedures as are set forth in the Deed Poll (including without limitation
clauses (i) through (viii) of the Fourth Schedule thereto) to determine the
information described in this Section 2. The Issuer shall on request provide
the Approved Investment Bank all information and inputs necessary to make any
such determination, modification or adjustment, as the case may be, including
without limitation information and inputs relating to previously made
determinations, modifications and adjustments. The Bondholder may provide
information considered relevant to such determination, modification or
adjustment and if so provided, the Approved Investment Bank shall take such
information into account in making its determination. For the avoidance of
doubt, nothing herein shall obligate the Approved Investment Bank to make any
determination or modification pursuant to Condition 8 of the Deed Poll, except
for the determination provided for in the final sentence of the first paragraph
of such Condition 8.
3. Calculations. The Approved Investment Bank undertakes that whenever
it is required under the Deed Poll to act or exercise judgment in any other
way, it will do so in good faith and in a commercially reasonable manner. Any
calculation or determination by the Approved Investment Bank pursuant hereto
shall (in the absence of manifest error) be final and binding. Any calculation
made by the Approved Investment Bank hereunder shall, at the request of either
the Company or the Bondholder, be made available to the trustee for the Bonds.
4. Fees and Expenses. The Approved Investment Bank shall be entitled to
a fee of $100,000 as compensation for all services rendered by it hereunder.
Such fee was paid by the Company (and the receipt of which is acknowledged by
the Approved Investment Bank) prior to the execution of this Agreement. The
Company and the Bondholder shall, in equal parts, reimburse the Approved
Investment Bank for reasonable expenses incurred by the Approved Investment
Bank hereunder in connection with the performance of its duties hereunder.
5. Terms and Conditions. The Approved Investment Bank accepts its
obligations herein set out upon the terms and conditions hereof, including the
following, to all of which the Company and the Bondholder agree:
(a) in acting under this Agreement, the Approved Investment Bank
is acting solely as an independent expert of the Company and the
Bondholders and except as set forth in Section 3 above does not assume
any obligation toward, or any relationship of agency or trust for or
with, the Company, the Bondholders or any subsequent holder of the
Bonds;
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(b) unless otherwise specifically provided herein, any order,
certificate, notice, request, direction or other communication from the
Company or the Bondholder made or given under any provision of this
Agreement shall be sufficient if signed by any person who the Approved
Investment Bank reasonably believes to be a duly authorized officer or
attorney-in-fact of the Company or the Bondholder, as the case may be;
(c) the Approved Investment Bank shall be obliged to perform only
such duties as are set out specifically herein and any duties
necessarily incidental thereto;
(d) the Approved Investment Bank, whether acting for itself or in
any other capacity, may become the owner or pledgee of Bonds with the
same rights as it would have had if it were not acting hereunder as
Approved Investment Bank; and
(e) the Approved Investment Bank shall incur no liability
hereunder except for loss sustained by reason of its gross negligence or
willful misconduct.
6. Resignation; Removal; Successor. (a) The Approved Investment Bank may
at any time resign by giving written notice to the Company and the Bondholder
of such intention on its part, specifying the date on which its desired
resignation shall become effective, subject to the appointment of a successor
Approved Investment Bank and acceptance of such appointment by such successor
Approved Investment Bank, as hereinafter provided. The Approved Investment Bank
hereunder may be removed at any time by the filing with it of an instrument in
writing signed by or on behalf of the Company and the Bondholder and specifying
such removal and the date when it shall become effective. Such resignation or
removal shall take effect upon the appointment by the Company and the
Bondholder, as hereinafter provided, of a successor Approved Investment Bank
and the acceptance of such appointment by such successor Approved Investment
Bank. In the event a successor Approved Investment Bank has not been appointed
and has not accepted its duties prior to the effectiveness of the Approved
Investment Bank's notice of resignation, the Approved Investment Bank shall
continue to perform its duties hereunder and to receive the compensation
therefore as agreed pursuant to Section 4 hereof until such time as a successor
Approved Investment Bank has been appointed. In the event that all of the Bonds
cease to be held by Intel Capital Corporation or an affiliate thereof, and
notwithstanding anything in this Agreement to the contrary, the Approved
Investment Bank shall be entitled to resign by giving 30 days' written notice
to the Company of such intention, regardless of whether a successor Approved
Investment Bank has been appointed or has failed to accept such appointment.
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(b) In case at any time the Approved Investment Bank shall resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or make an assignment for the benefit of its creditors
or consent to the appointment of a receiver or custodian of all or any
substantial part of its property, or shall admit in writing its inability to
pay or meet its debts as they mature, or if a receiver or custodian of it or
all or any substantial part of its property shall be appointed, or if any
public officer shall have taken charge or control of the Approved Investment
Bank or of its property or affairs, for the purpose of rehabilitation,
conservation or liquidation, a successor Approved Investment Bank shall be
appointed by the Company and the Bondholder by an instrument in writing, filed
with the successor Approved Investment Bank. Upon the appointment as aforesaid
of a successor Approved Investment Bank and acceptance by the latter of such
appointment, the Approved Investment Bank so superseded shall cease to be
Approved Investment Bank hereunder.
(c) Any successor Approved Investment Bank appointed hereunder shall
execute, acknowledge and deliver to its predecessor, to the Company and to the
Bondholders an instrument accepting such appointment hereunder and agreeing to
be bound by the terms hereof, and thereupon such successor Approved Investment
Bank, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Approved Investment
Bank hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer,
deliver and pay over, and such successor Approved Investment Bank shall be
entitled to receive, all moneys, securities and other property on deposit with
or held by such predecessor, as Approved Investment Bank hereunder.
(d) Any corporation into which the Approved Investment Bank hereunder
may be merged or converted or any corporation with which the Approved
Investment Bank may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Approved Investment Bank shall
be a party, or any corporation to which the Approved Investment Bank shall sell
or otherwise transfer all or substantially all of the assets and business of
the Approved Investment Bank shall be the successor Approved Investment Bank
under this Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
7. Certain Definitions. Terms not otherwise defined herein are used
herein as defined in the Deed Poll or the Bonds.
8. Indemnification. Each of the Company and the Bondholder will
indemnify the Approved Investment Bank, including its officers, agents and
employees, against any losses or liability which it may incur or sustain in
connection with its appointment or the exercise of its powers and duties
hereunder except such as may be finally judicially determined to result from
the gross negligence or willful misconduct of the Approved Investment Bank or
any of its agents or employees. The Approved Investment Bank shall incur no
liability and shall be indemnified and held harmless by each of the Company and
the Bondholder for or in respect of any action taken or suffered to be taken in
good faith by the Approved Investment Bank in reliance upon written
instructions from the Company. The Approved Investment Bank shall have no
liability for any failure to act in accordance with the Deed Poll in the
absence of notice from the Issuer in accordance with Section 2 above.
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9. Confidentiality. The parties acknowledge that the terms and
conditions of the Agreement and/or the Bonds, including their existence and the
occurrence of any specific adjustments to the Bonds pursuant to the Agreement
(the "Confidential Information"), shall be considered confidential information
and shall not be disclosed by any party to any third party (except as may be
required by law or by any securities exchange or any supervisory or regulatory
body to whose rules the parties are subject) except with the prior written
consent of the other parties hereto. Any party seeking to make any announcement
regarding the Confidential Information in a press release, conference,
advertisement, announcement, professional or trade publication, mass marketing
materials or otherwise to the general public shall provide the other parties
written notice of the contents of the intended announcement at least (2) two
Business Days in advance of the proposed release of the intended announcement,
save that where such announcement is required by law or by any securities
exchange or any supervisory or regulatory body to whose rules any party is
subject, written notice of the contents of the announcement shall be given as
soon as reasonably practicable prior to such release. Notwithstanding the
foregoing either party may disclose any of the terms and conditions of the
Agreement and/or the Bonds to its current or bona fide prospective investors
(including, without limitation, in the case of the Bondholders, any potential
transferees of any Bonds), employees, investment bankers, lenders, accountants,
attorneys, and other advisers in each case only where such persons or entities
are under appropriate nondisclosure obligations.
In the event that a party is requested or becomes legally compelled
(including without limitation, pursuant to securities laws and regulations or
the rules of any recognised stock exchange) to disclose the Confidential
Information, such party shall provide the other parties with prompt written
notice of that fact before such disclosure. In such event, such disclosing
party shall furnish for disclosure only that portion of the Confidential
Information which is legally required (including without limitation, pursuant
to securities laws and regulations or the rules of any recognized stock
exchange), and shall provide the proposed text of any filing or disclosure to
the other parties for their review and approval as soon as practicable prior to
such filing or disclosure's release. Such disclosing party will use all
reasonable endeavours to make any changes to such materials as may be
reasonably requested by the other parties. For any intended filing or
disclosure with the Singapore Stock Exchange or the HKSE, the Issuer agrees to
seek such confidential treatment as is available in the normal course before
such stock exchanges as the other parties may reasonably request. For any
intended disclosure made pursuant to U.S. securities law or the rules and
regulations of the U.S. Securities and Exchange Commission (SEC), the parties
agree to make reasonable endeavours to seek confidential treatment to the
extent permitted by law or any rules or regulations of the SEC and will make
such changes to such materials as reasonably requested by the other parties to
the extent permitted by law or any rules and regulations of the SEC. If
confidential treatment before the SEC is requested by any party, the disclosing
party agrees to file such a request and use all reasonable endeavours in
responding to any SEC comments to pursue assurance that confidential treatment
will be granted, in both cases fully cooperating with the other parties
(including, without limitation, providing the other parties with the
opportunity to review and comment on the request and the responses to any such
SEC comments).
10. Notices. Any notice required to be given hereunder shall be
delivered in person, sent (unless otherwise specified in this Agreement) by
letter, telex or facsimile transmission or communicated by telephone (confirmed
in a writing dispatched within two
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Business Days), (a) in the case of the Company, to it at6 ▇▇▇▇▇▇▇ ▇▇▇▇, #▇▇-▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Singapore, facsimile: (▇▇) ▇▇▇ ▇▇▇▇ (Attention: Company
Secretary); (b) in the case of the Bondholder, to it as specified in the Part B
of the Schedule; and (c) in the case of the Approved Investment Bank, to it at
(a)399 Park Avenue, New York, New York, attention: General Counsel (facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇; telephone: (▇▇▇) ▇▇▇-▇▇▇▇); (b) ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇, attention: Structured Equity Derivatives Trading, Telephone:
▇▇▇-▇▇▇-▇▇▇▇; (c) ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, attention: Equities
Legal, Telephone ▇▇▇-▇▇▇-▇▇▇▇, Fax: ▇▇▇-▇▇▇-▇▇▇▇; and (d) Ark Mori Building,
12-32 ▇▇▇▇▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, Telephone: ▇▇-▇-▇▇▇▇-▇▇▇▇,
Fax: ▇▇-▇-▇▇▇▇-▇▇▇▇ or, in any case, to any other address or number of which
the party receiving notice shall have notified the party giving such notice in
writing. Any notice hereunder given by telex, facsimile or letter shall be
deemed to be served when in the ordinary course of transmission or post, as the
case may be, it would be received; provided, however, that no notice to the
Approved Investment Bank requiring it to make any determination or modification
under the Deed Poll or to adjust the Exchange Price in accordance with the
Fourth Schedule thereof shall be effective until receipt of such notice by the
Approved Investment Bank has been confirmed telephonically or in writing to the
party giving such notice by an officer of the Approved Investment Bank.
11. Governing Law. This Agreement shall be governed by and continued in
accordance with the laws of the State of New York.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
13. Benefit of Agreement. This Agreement is solely for the benefit of
the parties hereto and their successors and assigns, and no other person shall
acquire or have any rights under or by virtue hereof.
14. No Amendments to Deed Poll. Each of the Company and the Bondholder
covenant and agree to make no amendments or modifications to the Deed Poll or
any attachment thereto (including, without limitation, the Fourth Schedule)
affecting the rights, duties and obligations of the Approved Investment Bank
thereunder without the prior written consent of the Approved Investment Bank.
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THE SCHEDULE
Part A
Bondholder
Part B
Bondholder's Address for Notices
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IN WITNESS WHEREOF, this Agreement has been entered into as of the day
and year first above written.
PACIFIC CENTURY REGIONAL DEVELOPMENTS LIMITED
By: ___________________________
Name:
Title:
THE BONDHOLDER
By: ___________________________
Name:
Title:
▇▇▇▇▇▇ BROTHERS INC.,
as Approved Investment Bank
By: __________________________
Name:
Title:
SIGNATURE PAGE TO THE CALCULATION AGENCY AGREEMENT
[DEED POLL]