Exhibit 23
EXECUTION COPY
DATED 12th June 2003
AIG GLOBAL INVESTMENT CORPORATION (ASIA) LIMITED
AIG ASIAN INFRASTRUCTURE FUND II LP
AMERICAN INTERNATIONAL ASSURANCE COMPANY (BERMUDA) LIMITED
AIG ASIAN OPPORTUNITY FUND, L.P.
and
PACIFIC CENTURY REGIONAL DEVELOPMENTS LIMITED
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SECURITIES LENDING AGREEMENT
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I N D E X
Clause No. Particulars Page No.
1. DEFINITIONS........................................................1
2. LOANS OF SHARES....................................................4
3. INTEREST AND COLLATERAL............................................5
4. DELIVERY...........................................................5
5. RIGHTS AND TITLE...................................................5
6. RE-DELIVERY OF EQUIVALENT SECURITIES...............................6
7. REPRESENTATIONS AND WARRANTIES.....................................7
8. BORROWERS' OBLIGATIONS.............................................8
9. MISCELLANEOUS......................................................9
10. REMEDIES...........................................................9
11. SEVERANCE..........................................................9
12. PUBLICITY.........................................................10
13. NOTICE............................................................10
14. ASSIGNMENT AND NOVATION...........................................12
15. GOVERNING LAW AND JURISDICTION....................................12
THIS AGREEMENT is dated 12th June 2003 and made
BETWEEN
(1) AIG GLOBAL INVESTMENT CORPORATION (ASIA) LIMITED, a company
incorporated under the laws of Hong Kong whose registered office is at
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ as Security
Trustee (the Security Trustee);
(2) AIG ASIAN INFRASTRUCTURE FUND II LP, AMERICAN INTERNATIONAL ASSURANCE
COMPANY (BERMUDA) LIMITED and AIG ASIAN OPPORTUNITY FUND, L.P. (each a
Borrower and together the Borrowers); and
(3) PACIFIC CENTURY REGIONAL DEVELOPMENTS LIMITED, a company incorporated
under the laws of Singapore whose registered office is at ▇ ▇▇▇▇▇▇▇
▇▇▇▇, #▇▇-▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Singapore, and whose shares are listed
on the Stock Exchange of Singapore (the Lender).
WHEREAS
(A) The Parties are desirous of lending and borrowing securities and they
have agreed to enter into securities borrowing and lending
transactions subject to the terms and conditions of this Agreement.
(B) Shares may be lent hereunder from time to time pursuant to the terms
hereof. With respect to the loan of Shares, it is the intention and
desire of the Borrowers that such Shares will be used by them for
commercial on-lending or other specified purpose within section 19(16)
Stamp Duty Ordinance if and when commercial opportunities arise which
make it attractive to the Borrowers to do so.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS
1.1 In this Agreement unless the context otherwise requires:
Bonds means the secured redeemable exchangeable bonds due 2006 in the
aggregate principal amount of US$250,000,000 issued by the Lender to
the Borrowers pursuant to the Subscription Agreement;
Borrowing Request means a written request made by the Security Trustee
in accordance with Condition 9(f) of the Conditions to the Lender and
the Borrowers specifying the description, title and amount of the
Shares required to be borrowed by the Borrowers from the Lender and
the date, time, mode and place of delivery which shall, where
relevant, include the bank, agent,
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clearing or settlement system, and account to which delivery of the
Loaned Shares is to be made;
Business Day means any day on which licensed banks in Hong Kong,
Singapore and New York are open for business generally;
Collector means the Collector of Stamp Revenue appointed under section
3 of the Ordinance;
Conditions means the terms and conditions to the Bonds, including any
amendments from time to time made thereto in accordance with the terms
thereof;
Equivalent Securities means securities of an identical type, nominal
value, description and amount to particular Loaned Shares and such
term shall include the certificates and other documents of or
evidencing title and transfer in respect of the foregoing (as
appropriate). If and to the extent that such Loaned Shares are partly
paid or have been converted, subdivided, consolidated, redeemed, made
the subject of a takeover, capitalisation issue, rights issue or event
similar to any of the foregoing, the expression shall have the
following meaning:
(a) in the case of conversion, subdivision or consolidation the
securities into which the Loaned Shares have been converted,
subdivided or consolidated provided that if appropriate,
notice has been given in accordance with Clause 5.3;
(b) in the case of takeover, a sum of money, securities or other
assets, being the consideration or alternative consideration
under the takeover which the Lender has directed the
Borrowers to accept in accordance with Clause 5.3;
(c) in the case of a call on partly paid securities, the paid-up
securities provided that the Lender shall have paid to the
Borrowers an amount of money equal to the sum due in respect
of the call;
(d) in the case of a capitalisation issue, the Loaned Shares
together with the securities allotted by way of a bonus
thereon;
(e) in the case of a rights issue, the Loaned Shares together
with the securities allotted thereon, provided that the
Lender is entitled to and has given notice to the Borrowers
in accordance with Clause 5.4 (subject always to the proviso
therein), and has paid to the Borrowers all and any sums due
in respect thereof on a timely basis;
(f) in the event that a payment or delivery of Income is made in
respect of the Loaned Shares in the form of securities or a
certificate which may at a future date be exchanged for
securities or in the event of an option to take Income in the
form of securities or a certificate which may at a future
date be exchanged for securities and notice has been given to
the Borrowers in accordance with Clause 5.4 (and subject
always to the proviso therein), the Loaned Shares together
with securities or a certificate equivalent to those allotted
save insofar as any of the same have previously been
delivered to the Lender;
(g) in the case of any event similar to any of the foregoing, the
Loaned Shares together with or replaced by a sum of money or
securities equivalent to that received in respect of such
Loaned Shares resulting from such event;
for the purposes of this definition, securities are equivalent to
other securities where they are of an identical type, nominal value,
description and amount and such term shall include the certificate and
other documents of or evidencing title and transfer in respect of the
foregoing (as appropriate);
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Hedging Shares has the meaning set out in the Conditions.
Hong Kong means the Hong Kong Special Administrative Region of the
People's Republic of China;
Hong Kong Stock has the meaning set out in section 2 of the Ordinance;
Income means any interest, dividends or other distributions of any
kind whatsoever with respect to any Shares;
Income Payment Date with respect to any Shares means the date on which
Income is paid in respect of such Shares or, in the case of registered
Shares, the date by reference to which particular registered holders
are identified as being entitled to payment of Income;
Loan means a loan of Shares under this Agreement;
Loaned Shares means the Shares delivered under a Loan hereunder and
includes the certificates and other documents of or evidencing title
and transfer thereof;
Ordinance means the Hong Kong Stamp Duty Ordinance (Cap. 117);
Parties means the parties to this Agreement;
Return Notice means a written notice made by the Security Trustee to
both the Borrowers and the Lender specifying the amount of the
Equivalent Securities required to be re-delivered by the Borrowers to
the Lender and the date, time, mode and place of re-delivery which
shall, where relevant, include the bank agent clearing or settlement
system and account to which re-delivery of the Equivalent Securities
is to be made;
Rules means the rules for the time being of the Stock Exchange
(including the Rules of the Exchange) and/or other regulatory
authority whose rules and regulations shall from time to time affect
the activities of the Parties pursuant to this Agreement including but
not limited to regulations and guidance notes relating to stock
lending for the time being in force of any relevant tax authority and
any associated procedures required pursuant thereto;
Security Shares shall have the meaning ascribed to it in the Share
Charge Agreement;
Share Charge Agreement means the agreement dated 7 December 2001
between the Lender and the Security Trustee, including any amendments
from time to time made thereto in accordance with the terms thereof.
Settlement Date means the date upon which Shares are or are to be
transferred to the Borrowers in accordance with this Agreement;
Shares means shares with a par value of HK$0.25 each in the share
capital of PCCW Limited and/or such other listed equity securities as
may from time to time be comprised in Exchange Property as defined in
the terms and conditions of the Bonds and lent hereunder;
Stock Exchange means The Stock Exchange of Hong Kong Limited;
Subscription Agreement means the subscription agreement dated 11
October 2001 and entered into between the Lender and the Borrowers in
relation to the subscription by the Borrowers of the Bonds issued by
the Lender in accordance with the terms therein;
1.2 Notwithstanding the use of expressions such as borrow, lend, or
re-deliver, which are used to
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reflect terminology used in the market for transactions of the kind
provided for in this Agreement, title to Loaned Shares "borrowed" or
"lent" in accordance with this Agreement shall pass from one party to
another as provided for in this Agreement, the party obtaining such
title being obliged to re-deliver Equivalent Securities.
1.3 Save where the contrary is indicated, any reference in this Agreement
to:
(a) this Agreement or any other agreement or document shall be
construed as a reference to this Agreement or, as the case
may be, such other agreement or document as the same may have
been or may from time to time be amended, varied, novated or
supplemented and shall include any document which is
supplemental to, is expressed to be collateral with or is
entered into pursuant to or in accordance with the terms of
this Agreement or, as the case may be, such other agreement
or document;
(b) a statute shall be construed as a reference to such statute
as the same may have been, or may from time to time be,
amended or re-enacted;
(c) a time of day shall, unless otherwise specified, be construed
as a reference to Hong Kong time;
(d) a Clause or a Schedule is a reference to a clause or schedule
in or of this Agreement; and
(e) the singular shall include the plural and vice versa and
reference to one gender shall include all genders.
1.4 All headings appear for convenience only and shall not affect the
interpretation hereof.
2. LOANS OF SHARES
2.1 Subject to the terms and conditions of this Agreement, the Lender
shall, from time to time upon receipt of a Borrowing Request from the
Security Trustee, lend the number of Shares as set out in the
Borrowing Request to the Borrowers, and the Borrowers shall further
borrow such number of Shares from the Lender, in each case in
accordance with the terms and conditions of this Agreement. The number
of shares to be made available to the Borrowers shall be not less than
the Hedging Shares.
2.2 The Security Trustee shall have the right to reduce the amount of
Shares referred to in a Borrowing Request provided that the Security
Trustee has notified the Lender of such reduction no later than 12:00
noon on the day which is two Business Days prior to the Settlement
Date unless otherwise agreed between the Parties and the Lender shall
have, by whatever means, accepted such reduction.
2.3 The Lender shall be bound to comply with each Borrowing Request
(including any amendments thereto). Notwithstanding the provisions in
this Agreement, with respect to when a Loan occurs, a Loan hereunder
shall not occur until the relevant Shares shall have been delivered to
the Borrowers.
2.4 For the purposes of and compliance with Section 171 of the Securities
and Futures Ordinance (Cap. 571 of the Laws of Hong Kong), the Lender
hereby confirms that the Lender presently has, and at all times during
the continuance of this Agreement will have, sufficient Shares
available to lend to the Borrowers to satisfy any Borrowing Request
made hereunder.
Page 4 of 17
3. INTEREST AND COLLATERAL
The Parties agree that, in respect of each Loan, the Borrowers are not
required to pay any interest or consideration or provide any
collateral (cash or otherwise) to the Lender.
4. DELIVERY
4.1 The Lender shall procure the delivery of Shares to the Borrowers or
deliver such Shares in accordance with the relevant Borrowing Request
together with appropriate instruments of transfer duly stamped and
such other instruments as may be required to vest title thereto in the
Borrower. Such Shares shall be deemed to have been delivered by the
Lender to the Borrower on delivery to the Borrower or as it shall
direct of the relevant instruments of transfer, or in the case of
Shares held by an agent or a clearing or settlements system on the
effective instructions to such agent or operator of such system to
hold the securities absolutely for the Borrower, or by such other
means as may be agreed.
4.2 Upon delivery of a Borrowing Request by the Security Trustee to the
Lender, the Borrowers shall be, and hereby are, authorised to borrow
Security Shares in accordance with the terms of the Share Charge
Agreement and such borrowed Security Shares shall be deemed to have
been delivered to the Borrowers and to be Loaned Shares subject to the
terms and conditions of this Agreement.
5. RIGHTS AND TITLE
5.1 The Parties shall execute and deliver all necessary documents and give
all necessary instructions to procure that all right, title and
interest in:
(a) any Shares borrowed pursuant to Clause 2; and
(b) any Equivalent Securities re-delivered pursuant to Clause 6,
shall pass from one Party to the other on delivery or re-delivery of
the same in accordance with this Agreement, free from all liens,
charges and encumbrances or any other restrictions. The Party
acquiring such right, title and interest shall have no obligation to
return or re-deliver any of the assets so acquired but, in so far as
any Loaned Shares are borrowed, such Party shall be obliged, subject
to the terms of this Agreement, to re-deliver Equivalent Securities.
5.2 In the case of Loaned Shares and Equivalent Securities title to which
is registered in a computer based system the transfer of title thereof
shall take place in accordance with the rules and procedures of such
system as are in force from time to time.
5.3 Where, in respect of any Loaned Shares, any rights relating to
conversion, subdivision, consolidation, pre-emption, rights arising
under a takeover offer or other rights, including those requiring
election by the holder for the time being of such Shares, become
exercisable prior to the redelivery of Equivalent Securities, then the
Lender may, not less than seven (7) Business Days before the latest
time for the exercise of the right or option give written notice to
the Borrowers that on redelivery of Equivalent Securities, it wishes
to receive Equivalent Securities in such form as will arise if the
right is exercised or, in the case of a right which may be exercised
in more than one manner, is exercised as is specified in such written
notice and the
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Borrowers will use their reasonable endeavours to follow such request
Provided always that this shall only apply to Loaned Shares actually
in the possession of the Borrowers at the time of such notice and
provided further that it is acknowledged by the Lender that the
Borrowers' intention is to use Shares for commercial on-lending or
other specified purpose within section 19(16) Stamp Duty Ordinance if
and when commercial opportunities arise which make it attractive to
the Borrowers to do so and that accordingly there is no obligation
whatsoever on the Borrowers at any time actually to retain in its
possession any Shares lent hereunder from time to time whether or not
any transactions or events as referred to above have been announced.
5.4 When Income is paid in relation to any Shares on or by reference to an
Income Payment Date on which such Shares are the subject of a loan
hereunder, the Borrowers shall, within 5 Business Days from the date
of the actual receipt by the Borrowers of the payment of such Income,
or on such other date as the Parties may from time to time agree, pay
and deliver a sum of money or property equivalent to the same (with
any such endorsements or assignments as shall be customary and
appropriate to effect the delivery) to the Lender or its nominee and
the provisions of Clauses 5.5 and 5.6 below shall apply in relation
thereto Provided always that the Borrowers shall only have an
obligation to pay such sums of money or property or in any way account
to the Lender for Income in respect of Loaned Shares which are not in
the possession of the Borrowers to the extent the Borrowers actually
receive such Income, in which circumstances payment shall be made
within 5 Business Days from the date of actual receipt by the
Borrowers of the payment of such Income, or on such other date as the
Parties may from time to time agree.
5.5 Subject to Clause 5.4, in the case of any Income comprising a payment,
the amount payable by the Borrowers (subject to actual receipt) shall
be equal to the amount that the Lender would have received but for the
Loan.
5.6 Any payment to be made by the Borrowers under this Clause shall
be made in a manner to be agreed between the Parties.
5.7 Voting rights in respect of Loaned Shares in the possession of the
Borrowers shall be exercised by the Borrowers in accordance with the
instruction of the Lender provided that such instruction does not, in
the sole discretion of the Borrowers, adversely affect the rights or
position of the Borrowers and/or their Affiliates under the Bonds
and/or any other position any of them may have with respect to PCCW
Limited and/or shares of PCCW Limited and provided further for the
avoidance of doubt that no such obligation on voting rights shall
apply to Loaned Shares which are not actually in the possession of the
Borrowers and provided further that it is acknowledged by the Lender
that the Borrowers' intention is to use Shares for commercial
on-lending or other specified purpose within section 19(16) Stamp Duty
Ordinance if and when commercial opportunities arise which make it
attractive to the Borrowers to do so and that accordingly there is no
obligation whatsoever on the Borrowers at any time actually to retain
in its possession any Shares lent hereunder from time to time.
6. RE-DELIVERY OF EQUIVALENT SECURITIES
6.1 Subject to Clause 6.2, the Borrowers shall, from time to time upon
receipt of a Return Notice from the Security Trustee, re-deliver, or
procure the redelivery of, such number of Equivalent Securities as set
out in the Return Notice to the Lender or as otherwise specified in
the Return Notice and the Security Trustee undertakes to deliver a
Return Notice or Return Notices relating to Equivalent Securities in
respect of all Loaned Shares which are to be re-delivered to the
Lender in accordance with the provisions of Condition 9(f) of the
Conditions.
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6.2 If the Lender elects to exercise its rights of set-off under Condition
9(c)(i) or Condition (d)(i), it shall notify the Security Trustee and
the Borrowers not later than 2 Business Days prior to the proposed
date of exercise of such rights and the Borrowers obligations under
Clause 6.1 shall be reduced to the extent of the exercise of such
rights.
6.3 The Borrowers shall re-deliver Equivalent Securities by such means as
the Parties may from time to time agree. For the avoidance of doubt,
any reference herein or in any other agreement or communication
between the Parties (howsoever expressed) to an obligation to
re-deliver or account for or act in relation to Loaned Shares shall
accordingly be construed as a reference to an obligation to re-deliver
or account for or act in relation to Equivalent Securities.
6.4 The Borrowers shall be entitled at any time to terminate a particular
Loan and to re-deliver or procure redelivery of all and any Equivalent
Securities due and outstanding to the Lender in accordance with the
Lender's instructions. The Lender shall accept such re-delivery.
6.5 If the Security Trustee notifies the Lender and the Borrowers that a
Notice of Acceleration (as defined in Condition 12 of the Conditions)
has been given or the Bonds are automatically accelerated (whether
under Condition 14 of the Conditions or otherwise), all outstanding
Equivalent Securities under this Agreement which are liable to be
re-delivered to the Lender shall be so re-delivered to the Lender
within 30 days of the giving of the Notice of Acceleration or such
automatic acceleration. If a notice of assignment of the rights of the
Lender under this Clause has been given by the Security Trustee, the
Parties agree that the aforesaid obligations of re-delivery of the
outstanding Equivalent Securities shall be performed by re-delivery of
the outstanding Equivalent Securities to the relevant assignee instead
of the Lender.
6.6 For the avoidance of doubt, the Lender shall not be entitled to
require the Borrowers to make any re-delivery of Loaned Shares and,
save and except pursuant to Clauses 6.1 and 6.5, the Borrowers shall
only be obliged to re-deliver Equivalent Securities to the Lender upon
its receipt of a Return Notice.
7. REPRESENTATIONS AND WARRANTIES
7.1 Each of the Parties to this Agreement represents and warrants to and
for the benefit of the other that during the term of any Loan
hereunder:
(a) it is duly incorporated, established or constituted (as the
case may be) and validly existing under the laws of its
country of incorporation, establishment or constitution (as
the case may be);
(b) it has the power to execute and deliver this Agreement;
(c) it has the power to enter into and perform, and it is not
restricted under the terms of its constitution or in any
other manner from entering into and performing its
obligations under, this Agreement and the Loans contemplated
hereby;
(d) it has taken all necessary action to authorise such
execution, delivery and performance;
(e) this Agreement constitutes its legal, valid and binding
obligations, enforceable in accordance with its terms;
(f) as to all Loaned Shares (in the case of the Lender), it is
absolutely entitled to pass full legal and beneficial
ownership of such Loaned Shares provided or delivered by it
hereunder to the Borrowers free and clear of all liens,
charges, encumbrances or
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restrictions provided, however, the Borrowers understand that
any Loaned Shares lent pursuant to this Agreement have not
been and will not be registered under the U.S. Securities Act
of 1933, as amended (Securities Act), or in any state or
other jurisdiction in the United States and that such Loaned
Shares cannot be offered, sold, pledged, transferred or
otherwise disposed of unless and until they are registered
under the Securities Act (which the Borrowers acknowledge the
Lender has no obligation to do) or sold or transferred in a
transaction exempt from, or not subject to, the Securities
Act; notwithstanding the foregoing, the restrictions set
forth above shall not prohibit any sale of Shares in
transactions on the Stock Exchange if neither the seller nor
any person acting on its behalf knows, or has reason to know,
that the sale has been prearranged with, or that the
purchaser is, a person in the United States; and
(g) (in the case of the Borrowers), it is or will be absolutely
entitled to pass full legal and beneficial ownership of all
Equivalent Securities provided or delivered by it hereunder
to the Lender free and clear of all liens, charges,
encumbrances or restrictions.
7.2 Each Party hereto accepts liability as principal with respect to its
obligations hereunder.
7.3 Each Party hereto represents and warrants that the execution, delivery
and performance by it of this Agreement and each Loan hereunder will
to its knowledge comply with all applicable laws, rules and
regulations including those of Hong Kong.
8. BORROWERS' OBLIGATIONS
8.1 The Borrowers hereby undertake to the Lender on a continuing basis
that they shall, and the Lender hereby undertakes to provide the
Borrowers with all reasonable assistance in order to assist the
Borrowers to:
(a) register this Agreement with the Collector and
(i) pay to the Collector such fees and duties for
registration of this Agreement as specified from
time to time by the Financial Secretary for Hong
Kong for the purposes of section 19(12a) of the
Ordinance;
(ii) provide the Collector with two copies of this
Agreement, one of which must be an executed copy;
and
(iii) provide the Collector with such other documents and
such particulars and information as the Collector
may require;
(b) promptly notify the Lender upon its having complied with its
undertaking under Clause 8.1(a) above and provide to the
Lender such documents as the Lender may reasonably request in
respect of the same; and
(c) promptly comply with all filing and reporting obligations and
do all other acts and things as may be required from time to
time by the Collector and any applicable rules and
regulations for the time being in force.
8.2 If the Borrowers are in breach of their undertakings under Clauses
8.1(a), (b) or (c) above, the Lender may (but shall not be obliged to)
submit this Agreement, pay such fee and provide such other documents,
particulars and information to the Collector, and do all other acts
and things in relation thereto as the Lender may consider necessary or
desirable, at the cost and expense of and on behalf of the Borrowers,
without prejudice to the provisions of Clause 8.
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9. MISCELLANEOUS
9.1 Each borrowing of Hong Kong Stock under this Agreement shall be
confirmed by a contract note which complies with section 152 of the
Securities and Futures Ordinance (Cap.571 of the Laws of Hong Kong)
(and any rules made thereunder), indicating on its face that it is a
securities borrowing transaction, and which is easily distinguishable
from a contract note issued for transactions other than securities
borrowing.
9.2 Notwithstanding any provision of this Agreement, it is hereby
acknowledged, confirmed and agreed for all purposes that, until the
Loaned Shares shall have been delivered to the Borrowers, no interest
whatsoever in the Loaned Shares shall pass to the Borrowers and no
Loan shall occur.
9.3 This Agreement shall not be amended except by instrument in writing
signed by each of the Parties hereto.
9.4 This Agreement may be executed in any number of counterparts, each of
which shall be deemed as an original.
9.5 The obligations of the Borrowers under this Agreement and each Loan
are several.
9.6 Time shall be of the essence of this Agreement.
10. REMEDIES
10.1 No delay or omission on any Party's part in exercising any right,
power, privilege or remedy hereunder shall impair such right, power,
privilege or remedy or be construed as a waiver thereof nor shall any
single or partial exercise of any such right, power, privilege or
remedy preclude any further exercise thereof or the exercise of any
other right, power, privilege or remedy.
10.2 The rights, powers, privileges and remedies herein provided are
cumulative and not exclusive of any rights, powers, privileges or
remedies provided by law. All remedies hereunder shall survive the
termination of the relevant Loan, re-delivery of Equivalent Securities
and termination of this Agreement.
10.3 The Lender shall indemnify and hold harmless the Borrowers on demand
from and against all legal fees and other out-of-pocket expenses
reasonably and properly incurred by the Borrowers in enforcing their
rights against the Lender hereunder or as a consequence of any default
by the Lender in the performance of any of the obligations expressed
to be assumed by it in this Agreement.
11. 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
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to that severed provision.
12. PUBLICITY
Subject to any applicable statutory or regulatory rules, or otherwise
as may be required by Singapore Exchange Securities Trading Limited or
the Stock Exchange, the parties agree that they shall not, and shall
procure that no director, employee, associate or advisor of any party
shall make an announcement to the press or give an interview to the
press or in any way publicise the contents of this Agreement without
the prior written approval of the other parties hereto. The text of
any press release or announcement by any of the parties which any of
them may intend to release or make in respect of the contents of the
Agreement shall be supplied to the other parties, in the case of any
press release or announcement which does not require the approval of
the other parties, at or before the time of such release or
announcement and, in the case of any press release or announcement
that requires the approval of the other parties, two Business Days in
advance of the intended time of such release or announcement for the
approval of the other parties, such approval not to be unreasonably
withheld or delayed.
13. NOTICE
Notice shall be in writing and all notices pursuant hereto shall be
sufficient if delivered by registered or certified post or by telex,
telegram, telefax or by hand to the party entitled thereto at the
following addresses:
If to the Security Trustee to:
AIG Global Investment Corporation (Asia) Limited
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
If to the Borrowers to:
AIG Asian Infrastructure Fund II LP
American International Building
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ Bermuda
with copies to:
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇▇ ▇▇▇▇
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Emerging Markets Partnership
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇ 2006
U.S.A
Facsimile: (1) (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
American International Assurance Company (Bermuda) Limited
▇▇▇ ▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇
AIG Asian Opportunity Fund, L.P.
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇ ▇▇▇
and if to the Lender, addressed to it at ▇ ▇▇▇▇▇▇▇ ▇▇▇▇, #▇▇-▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Singapore,facsimile: (▇▇) ▇▇▇ ▇▇▇▇ (Attention:
Company Secretary)
or to such other address as either Party may from time to time provide
to the other by notice.
Any notice shall be addressed as provided in Clause 13 and if so
addressed, shall be deemed to have been duly given or made as follows:
(a) if sent by personal delivery, upon delivery at the address of
the relevant party;
(b) if sent by post, two Business Days after the date of posting;
(c) if sent by airmail, five Business Days after the date of
posting;
(d) if sent by facsimile, when despatched with confirmed receipt
as evidenced by the transmission report generated at the end
of the transmission of such facsimile by the facsimile
machine used for such transmission.
Any notice received or deemed to be received on a day which is not a
Business Day shall be deemed to be received on the next Business Day.
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14. ASSIGNMENT AND NOVATION
The parties shall not be entitled to assign or novate any of their
rights and benefits under this Agreement provided that the Lender may
assign its rights hereunder in favour of the Security Trustee.
15. GOVERNING LAW AND JURISDICTION
15.1 This Agreement shall be governed by and construed in accordance with
the laws of Hong Kong.
15.2 The courts of Hong Kong are to have jurisdiction to settle any
disputes which may arise out of or in connection with this Agreement
and accordingly any legal action or proceedings arising out of or in
connection with this Agreement (Proceedings) may be brought in such
courts. The Lender irrevocably submits to the jurisdiction of such
courts and waives any objection to Proceedings in such courts whether
on the ground of venue or on the ground that the Proceedings have been
brought in an inconvenient forum. This submission is made for the
benefit of the Borrowers and shall not limit their rights to take
Proceedings in any other court of competent jurisdiction nor shall the
taking of Proceedings in one or more jurisdictions preclude the taking
of Proceedings in any other jurisdiction (whether concurrently or
not).
15.3 The Lender irrevocably appoints PCCW Services Limited of ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ as
its authorised agent for service of process in Hong Kong. If for any
reason such agent shall cease to be such agent for service of process,
the Lender shall forthwith appoint a new agent for service of process
in Hong Kong and deliver to the Borrowers a copy of the new agent's
acceptance of that appointment within 30 days. Nothing in this
Agreement shall affect the right to serve process in any other manner
permitted by law.
15.4 Each Borrower irrevocably appoints AIG Global Investment Corporation
(Asia) Limited, Suite 3601, One ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
as its authorised agent for service of process in Hong Kong. If for
any reason such agent shall cease to be such agent for service of
process, the relevant Borrower shall forthwith appoint a new agent for
service of process in Hong Kong and deliver to the Lender a copy of
the new agent's acceptance of that appointment within 30 days. Nothing
in this Agreement shall affect the right to serve process in any other
manner permitted by law.
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IN WITNESS whereof this Agreement has been executed the day and year first
above written.
SIGNED by ▇▇▇▇▇ ▇. ▇▇▇▇▇ )
for and on behalf of PACIFIC CENTURY )
REGIONAL DEVELOPMENTS LIMITED )
in the presence of : - )
Witness : ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Address : ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
#▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Occupation : Solicitor
SIGNED by )
for and on behalf of AIG GLOBAL )
INVESTMENT CORPORATION )
(ASIA) LIMITED )
in the presence of : - )
Witness :
Address : ________________________________
________________________________
________________________________
________________________________
Occupation : ________________________________
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SIGNED by )
for and on behalf of AIG ASIAN )
INFRASTRUCTURE FUND II LP )
in the presence of : - )
Witness :
Address : ________________________________
________________________________
________________________________
________________________________
Occupation : ________________________________
SIGNED by )
for and on behalf of AMERICAN )
INTERNATIONAL ASSURANCE )
COMPANY (BERMUDA) LIMITED )
in the presence of : - )
Witness :
Address : ________________________________
________________________________
________________________________
________________________________
Occupation : ________________________________
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SIGNED by )
for and on behalf of AIG ASIAN )
OPPORTUNITY FUND, L.P. )
in the presence of : - )
Witness :
Address : ________________________________
________________________________
________________________________
________________________________
Occupation : ________________________________
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