Exhibit 31
EXECUTION COPY
SLA NOVATION
THIS AGREEMENT is dated 3rd March, 2004 and made between:
(1) INTEL CAPITAL CORPORATION, a company incorporated under the laws of the
Cayman Islands whose registered office is at c/o Caledonian Bank and
Trust Co., Ltd., Caledonian House, ▇▇▇▇▇▇ Town, Grand Cayman, Cayman
Islands ("ICC");
(2) PACIFIC CENTURY REGIONAL DEVELOPMENTS LIMITED, a company incorporated
under the laws of Singapore whose registered office is at ▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
#▇▇-▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ("PCRD"); and
(3) The company of which details are given in part 1 of the Schedule
("Purchaser").
WHEREAS:-
(A) ICC and PCRD are the Borrower and the Lender respectively under a
securities lending agreement dated 14 January, 2002 ("SLA"), a copy of
which is annexed hereto and initialled by the parties for the purposes
of identification.
(B) Purchaser, ICC, Intel Pacific, Inc. and New Trustee have entered into a
conditional sale and purchase agreement dated March, 2004 ("SPA") for
the sale of the Bonds by ICC to Purchaser. The effective time of
transfer of the Bonds will be on registration of Purchaser by PCRD as
owner of the Bonds and issuance by PCRD of Certificates for the Bonds to
the Purchaser (which actions PCRD shall effect at the same time).
(C) The purpose of this Agreement is to replace ICC with Purchaser as the
Borrower under the SLA and this purpose is being effected pursuant to
Clause 14 of the SLA.
(D) PCRD has agreed to release and discharge ICC from its liabilities and
obligations as Borrower under the SLA and that Purchaser be substituted
as Borrower under the SLA, in each case upon the completion of the SPA.
NOW THEREFORE IT IS HEREBY AGREED as follows:-
1. Interpretation
Unless the context otherwise requires, words and expressions used in
this Agreement shall have the meaning ascribed to them in the SLA.
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2. Notice of transfer
This Agreement constitutes written notice duly signed by ICC as Borrower
and Purchaser as transferee of the Bonds specifying the effective date
of transfer of the Bonds and the identity of the transferee for
counter-execution by PCRD as a deed as contemplated by Clause 14 of the
SLA and execution of this Agreement by ICC and Purchaser shall be deemed
to constitute delivery of such written notice to PCRD and their request
of PCRD to counter-execute the same. The effective date of transfer
specified is the Effective Time set out in Clause 5. Execution of this
Agreement by or on behalf of PCRD shall constitute counter-execution of
the said written notice by PCRD for the purposes of Clause 14 of the
SLA, such that the transfer of relevant rights, benefits and obligations
to the Purchaser shall come into effect at the Effective Time.
3. Novation and Release
(a) PCRD and Purchaser agree and undertake with each other that PCRD
and Purchaser shall perform and be bound by the terms and
conditions of the SLA on the basis that Purchaser replaces ICC as
Borrower thereunder; and
(b) PCRD releases and discharges ICC from all liabilities and
obligations arising in favour of or owed to PCRD by ICC under the
SLA provided that such release and discharge shall not affect
their respective rights accruing due and/or obligations to be
performed before the Effective Time,
in each case with effect from the Effective Time referred to in Clause 5
below and with intent inter alia that Purchaser should receive and
assume as at and from that time all outstanding rights and obligations
of ICC as Borrower under the SLA. PCRD acknowledges and agrees that it
shall have no rights of any nature against Purchaser in respect of or in
connection with any and all liabilities and obligations whatsoever under
the SLA, which arise prior to the Effective Time and ICC acknowledges
and agrees that it shall remain liable for any and all of its
liabilities and obligations whatsoever under the SLA which arise prior
to the Effective Time.
4. Consequential Amendment
With effect from the Effective Time referred to in Clause 5 below the
SLA shall be deemed to be amended by deleting Clause 12.5 in its
entirety.
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5. Effective Time
The Effective Time shall be the time of registration of Purchaser by
PCRD as owner of the Bonds and issuance by PCRD of Certificates for the
Bonds to the Purchaser (which actions PCRD shall effect at the same
time), at which time the novation and release hereunder and novation and
releases of certain other Transaction Documents shall take effect
simultaneously.
6. Change to Notice Provisions and Agent for Service
At the Effective Time the address for notice of the Borrower in clause
13 of the SLA shall be deemed changed to the address of the Purchaser
specified in part 1 of the Schedule and the identity and address of the
agent for service of process in Hong Kong in clause 15.4 of the SLA
shall be deemed changed as specified in part 2 of the Schedule.
7. Severance
If any provision of this Agreement is declared by any judicial or other
competent authority to be void or otherwise unenforceable, that
provision shall be severed from this Agreement and the remaining
provisions of this Agreement shall remain in full force and effect. This
Agreement shall, however, thereafter be amended by the parties in such
reasonable manner as they consider appropriate so as to achieve, without
illegality, the intention of the Parties with respect to that severed
provision.
8. Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong and each party hereto submits to the non-exclusive
jurisdiction of the courts of Hong Kong as regards any claim or matter
arising under this Agreement.
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SCHEDULE
Part 1
Purchaser: ▇▇▇▇▇▇ Brothers Commercial Corporation Asia Limited
Registered Office: ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Part 2
Agent for Service: ▇▇▇▇▇▇ Brothers Asia Limited
Address: ▇▇▇▇▇ ▇▇▇▇-▇, ▇▇▇▇-▇▇, ▇▇▇▇▇ 37 and ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇▇▇▇
Fax No.: ▇▇▇-▇▇▇▇-▇▇▇▇
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EXECUTION COPY
Signed by )
)
duly authorised for and on )
behalf of ICC )
in the presence of:- )
The COMMON SEAL of )
PCRD )
was hereunto affixed )
in the presence of:- )
----------------------------
Director
----------------------------
Director/Secretary
SIGNATURE PAGE FOR SLA NOVATION RELATING TO US$100,000,000 SECURED REDEEMABLE
EXCHANGEABLE BONDS DUE 2006 TO 2007 ISSUED BY PACIFIC
CENTURY REGIONAL DEVELOPMENTS LIMITED
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Signed by )
)
duly authorised for and on )
behalf of Purchaser )
in the presence of:- )
SIGNATURE PAGE FOR SLA NOVATION RELATING TO US$100,000,000
SECURED REDEEMABLE EXCHANGEABLE BONDS DUE 2006 TO 2007 ISSUED BY PACIFIC
CENTURY REGIONAL DEVELOPMENTS LIMITED
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