Exhibit 32
EXECUTION COPY
SECURITY AGREEMENT NOVATION
THIS AGREEMENT is dated 8 March, 2004 and made between:
(1) PACIFIC CENTURY REGIONAL DEVELOPMENTS LIMITED, a company incorporated
under the laws of Singapore whose registered office is at ▇ ▇▇▇▇▇▇▇
▇▇▇▇, #▇▇-▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ("PCRD");
(2) 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");
(3) INTEL PACIFIC, INC., a company incorporated under the laws of the state
of Delaware, USA whose registered office is at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, ▇▇▇ ("IPI");
(4) The company of which details are given in part 1 of the Schedule
("Purchaser"); and
(5) The company of which details are given in part 2 of the Schedule
("New Trustee").
WHEREAS:-
(A) PCRD, ICC and IPI are the Assignor, Securities Borrower and Security
Trustee respectively under a security agreement dated 14 January, 2002
("Security Agreement") and PCRD and IPI are the Issuer and Security
Trustee respectively under a share charge agreement dated 14th January,
2002 ("Share Charge Agreement"), a copy of each of which agreements is
annexed hereto and initialled by the parties for the purposes of
identification.
(B) Purchaser, ICC, IPI 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.
(C) ICC wishes to assign its obligations under the Securities Lending
Agreement to the Purchaser pursuant to Clause 14 thereof and this
Agreement is entered into in connection with the novation of the
Securities Lending Agreement pursuant to an agreement dated March, 2004
("SLA Novation") between ICC, PCRD and Purchaser.
(D) IPI wishes to appoint New Trustee as the new Security Trustee under the
Security Agreement and the Share Charge Agreement in place of IPI,
pursuant to IPI's power of appointment as existing Security Trustee in
paragraph 5.1 of Schedule 1
of the Security Agreement and, for the avoidance of doubt, to assign all
of the benefit of respectively the Security Agreement and the Share
Charge Agreement to New Trustee pursuant to Clause 23.1 of the Security
Agreement and Clause 17.1 of the Share Charge Agreement.
(E) ICC holds 100% of the Bonds and has given its approval to the
appointment of New Trustee as the new Security Trustee under the
Security Agreement in place of IPI, by letter to IPI dated ▇▇▇▇▇, ▇▇▇▇,
as holder of all the Bonds and as Securities Borrower.
(F) New Trustee is a financial institution of recognised standing.
(G) ICC, PCRD and Purchaser have on the date hereof entered into a novation
of the Securities Lending Agreement pursuant to Clause 14 thereof
whereby it has been agreed that Purchaser shall be substituted as
Borrower (as defined in the Securities Lending Agreement) in place of
ICC in the Securities Lending Agreement with the effect inter alia that
the rights and obligations of the Borrower under the Securities Lending
Agreement are assigned to Purchaser.
(H) Pursuant to Clause 23.3 of the Security Agreement and Clause 17.3 of the
Share Charge Agreement, IPI has required that this Agreement be entered
into in connection with the SLA Novation.
(I) This Agreement is supplemental to the Security Agreement and the Share
Charge Agreement.
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 Security
Agreement.
2. Appointment of new Security Trustee and assignment of benefit
IPI hereby appoints, and PCRD agrees to the appointment of, New Trustee
as Security Trustee in place of IPI under the Security Agreement, the
Share Charge Agreement and any other Security Interest it holds in
respect of the Secured Obligations, to be effective simultaneously with
the novation and release referred to in Clause 3 below. IPI assigns
absolutely to the New Trustee the whole of the benefit of the Security
Agreement, the Share Charge Agreement and any other Security Interest it
holds in respect of the Secured Obligations and PCRD and ICC acknowledge
receipt of notice of such assignment by entering into this Agreement,
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such assignment and acknowledgement to be effective simultaneously with
the novation and release referred to in Clause 3 below.
3. Novation and Release
3.1 (a) Without prejudice to Clauses 2 and 3.2, PCRD, Purchaser and
New Trustee agree and undertake with each other that (i) PCRD,
Purchaser and New Trustee shall perform and be bound by the terms
and conditions of the Security Agreement on the basis that
Purchaser replaces ICC as Securities Borrower thereunder and New
Trustee replaces IPI as Securities Trustee thereunder and (ii)
PCRD and New Trustee shall perform and be bound by the terms and
conditions of the Share Charge Agreement on the basis that the
New Trustee replaces IPI as Security Trustee thereunder; and
(b) (i) PCRD releases and discharges ICC from all liabilities and
obligations arising in favour of or owed to PCRD by ICC under the
Security Agreement as Securities Borrower and PCRD releases and
discharges IPI from further obligations arising in favour of or
owed to PCRD by IPI under the Security Agreement and the Share
Charge Agreement as Security Trustee and (ii) ICC and IPI release
and discharge PCRD from all liabilities and obligations arising
in favour of or owed to them, and the security in their favour
created, by PCRD under the Security Agreement and the Share
Charge Agreement provided that (01) such releases and discharges
shall not affect any of the parties' respective rights accruing
due and/or obligations to be performed before the Effective Time
and (02) the releases and discharges under Clause 3.1(b)(ii)
shall not in any way prejudice the security created in favour of
the New Trustee pursuant to this Agreement,
in each case with effect from the Effective Time referred to in Clause 4
below and with intent inter alia that Purchaser and New Trustee should
receive and assume as at and from that time all outstanding rights and
obligations of the Securities Borrower and Security Trustee,
respectively, under the Security Agreement and the Share Charge
Agreement. At the Effective Time IPI shall transfer to New Trustee all
Security Shares (as defined in the Share Charge Agreement) then held by
it. 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 Security Agreement,
which arise prior to the Effective Time and PCRD acknowledges and agrees
that it shall have no rights of any nature against New Trustee under
this Agreement, the Security Agreement and the Share Charge Agreement in
respect of or in connection with any and all obligations whatsoever,
which arise prior to the Effective Time. ICC acknowledges and agrees
that it shall remain liable for its obligations as Securities Borrower
under the Security Agreement which arise prior to the Effective Time and
IPI acknowledges and agrees that it shall remain liable for its
obligations as Security Trustee under
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the Security Agreement and the Share Charge Agreement which arise prior
to the Effective Time.
3.2 For the avoidance of doubt and for the purposes of giving effect to the
novation contained in Clause 3.1 and without prejudice to any other
provision of this Agreement and with effect from the Effective Time:
(a) as a continuing security for the payment, performance and
discharge of the Secured Obligations, PCRD hereby:
(i) mortgages and assigns and agrees to mortgage and assign
absolutely to the New Trustee all of its right, 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 (as novated pursuant to the SLA
Novation) and all rights and powers (but for the
avoidance of doubt, no obligations) incidental or
ancillary to its right, title, and interest in to and
under Clause 6 of the Securities Lending Agreement (as
novated pursuant to the SLA Novation), including, without
limitation, rights and powers under Clauses 5, 10.1 and
10.2 of the Securities Lending Agreement (as novated
pursuant to the SLA Novation); and
(ii) mortgages and agrees to mortgage to the New Trustee all
of its right, title, benefit and interest in, to and
under all shares, warrants, cash and other securities and
property to be delivered to PCRD or any relevant assignee
by the Purchaser pursuant to Clause 6.5 of the Securities
Lending Agreement (as novated pursuant to the SLA
Novation);
(b) PCRD as beneficial owner hereby assigns and transfers absolutely
by way of first fixed legal mortgage and agrees to mortgage to
the New Trustee for and on behalf of the Beneficiaries as a
continuing security for the discharge of the Secured Obligations:
(i) the Original Shares (as defined in the Share Charge
Agreement, as novated and amended by this Agreement);
(ii) any Additional Security Shares (as defined in the Share
Charge Agreement, as novated and amended by this
Agreement);
(iii) any other securities which PCRD may, with the prior
written unanimous consent of the Beneficiaries, from time
to time substitute for all or any of the Original Shares
(as so defined) or Additional Security Shares (as so
defined);
(iv) all other securities and all rights, monies (excluding
dividends other than the issue of shares paid up by way
of bonus or other capitalisation
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of profits or reserves and/or share premium account) and
property whatsoever which may from time to time at any
time be derived from, accrue on or be offered in respect
of the Original Shares (as so defined), the Additional
Security Shares (as so defined) or the other securities
referred to in Clause 2(a)(iii) whether by way of
redemption, exchange, conversion, rights, bonus, capital
reorganisation or otherwise; and
(v) any cash paid to the New Trustee pursuant to Condition 8
of the Conditions (as supplemented from time to time and
amended by the Fourth Supplemental Deed Poll); and
(c) all the representations, covenants, provisions, protections and
powers as between the parties thereto contained in or subsisting
under the Security Agreement and the Share Charge Agreement shall
also be applicable to the security created by Clauses 3.1(a) and
(b) respectively and for securing the payment, and for
protecting, enforcing and defining the rights of PCRD, the
Purchaser and the New Trustee in respect, of the Secured
Obligations, mutatis mutandis.
4. 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.
5. Consequential amendments to the Security Agreement
With effect from the Effective Time the Security Agreement shall be
deemed to be amended by:
(a) deleting Clause 4.3 and Clause 26.5 in their entirety.
(b) replacing each reference to the words "Intel Capital Corporation"
in Schedule 2 to Schedule 5 (inclusive) with the words "the
Securities Borrower under the Agreement (as defined below)".
6. Consequential amendment to the Share Charge Agreement
With effect from the Effective Time the Share Charge Agreement shall be
deemed to be amended by deleting Clause 21.5 in its entirety.
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7. New Trustee
The New Trustee warrants, represents and undertakes to ICC and PCRD
that it is a financial institution of recognised standing and is
carrying on the business described in part 2 of the Schedule.
8. Change to Notice Provisions and Agent for Service
At the Effective Time the address for notice of the Securities Borrower
and the Securities Trustee in Clause 22.1 of the Security Agreement and
clause 13.1 of the Share Charge Agreement shall be deemed changed to the
address of the Purchaser and the address of the New Trustee specified in
parts 1 and 2 of the Schedule and the identity and address of the agents
for service of process in Hong Kong in Clauses 28.5 and 28.6 of the
Security Agreement and Clauses 19.3 and 19.4 of the Share Charge
Agreement shall be deemed changed to those specified in part 3 of the
Schedule.
9. Documents remain binding
Save as amended, supplemented, novated and/or otherwise modified by this
Agreement, the Security Agreement and the Share Charge Agreement shall
remain in full force and effect and continue to be binding on PCRD,
Purchaser and New Trustee as the case may be.
10. 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.
11. 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 claims or matter
arising under this Agreement.
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EXECUTION COPY
SCHEDULE
Part 1
Purchaser: ▇▇▇▇▇▇ Brothers Commercial Corporation Asia Limited
Registered Office ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Part 2
New Trustee: ▇▇▇▇▇▇ Brothers Asia Limited
Registered Office ▇▇▇▇▇ ▇▇▇▇-▇, ▇▇▇▇-▇▇, ▇▇▇▇▇ 37 and ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Part 3
Agent for Service: ▇▇▇▇▇▇ Brothers Asia Limited
Address: ▇▇▇▇▇ ▇▇▇▇-▇, ▇▇▇▇-▇▇, ▇▇▇▇▇ 37 and ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇▇▇▇
Fax No.: ▇▇▇-▇▇▇▇-▇▇▇▇
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The COMMON SEAL of )
PCRD )
was hereunto affixed )
in the presence of:- )
-------------------------
Director
-------------------------
Director/Secretary
SIGNATURE PAGE FOR SECURITY AGREEMENT 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 ICC )
in the presence of:- )
Signed by )
)
duly authorised for and on )
behalf of IPI )
in the presence of:- )
SIGNATURE PAGE FOR SECURITY AGREEMENT 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:- )
Signed by )
)
duly authorised for and on )
behalf of New Trustee )
in the presence of:- )
SIGNATURE PAGE FOR SECURITY AGREEMENT 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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