EXHIBIT 10.44
Execution Copy
Dated 27 July 2004
ASIA NETCOM CORPORATION LIMITED
(as Borrower)
and
THE COMPANIES LISTED IN SCHEDULE 2
(as Assignors)
in favour of
INDUSTRIAL AND COMMERCIAL BANK OF CHINA (ASIA) LIMITED
(as Security Trustee)
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GROUP ASSIGNMENT OF INSURANCES
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
HONG KONG
[Group Assignment of Insurances]
TABLE OF CONTENTS
CLAUSE NO. CLAUSE HEADING PAGE NO.
--------- -------------- -------
1. DEFINITIONS AND CONSTRUCTION............................................................... 1
2. CHARGE AND ASSIGNMENT...................................................................... 3
3. CONTINUING AND INDEPENDENT SECURITY........................................................ 5
4. REPRESENTATIONS AND WARRANTIES............................................................. 7
5. TAXES AND OTHER DEDUCTIONS................................................................. 9
6. COSTS, CHARGES AND EXPENSES................................................................ 11
7. UNDERTAKINGS............................................................................... 12
8. ENFORCEMENT................................................................................ 13
9. APPLICATION OF PROCEEDS.................................................................... 14
10. INDEMNITY.................................................................................. 15
11. SUSPENSE ACCOUNT........................................................................... 16
12. SET OFF.................................................................................... 16
13. POWER OF ATTORNEY.......................................................................... 16
14. FURTHER ASSURANCE.......................................................................... 17
15. NOTICES.................................................................................... 17
16. WAIVERS, AMENDMENTS AND CONSENTS, REMEDIES, SEVERABILITY, ASSIGNMENT AND COUNTERPARTS...... 18
17. GOVERNING LAW AND JURISDICTION............................................................. 20
SCHEDULE 1 - FORM OF NOTICE OF ASSIGNMENT.............................................................. 22
SCHEDULE 2 - THE ASSIGNORS............................................................................. 24
SCHEDULE 3 - FORM OF LOSS PAYABLE AND NOTICE OF CANCELLATION CLAUSE.................................... 25
SIGNATURE PAGE......................................................................................... 26
[Group Assignment of Insurances]
THIS DEED OF ASSIGNMENT OF INSURANCES is made on 27 July 2004
BETWEEN:-
(1) ASIA NETCOM CORPORATION LIMITED, a company incorporated under the laws of
Bermuda whose registered office is situate at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ (the "BORROWER");
(2) THE COMPANIES NAMED AND PARTICULARS OF WHICH ARE SET OUT IN SCHEDULE 2
(each an "ASSIGNOR" and collectively the "ASSIGNORS"); and
(3) INDUSTRIAL AND COMMERCIAL BANK OF CHINA (ASIA) LIMITED, a company
incorporated under the laws of Hong Kong acting through its head office at
ICBC ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ acting on its
own behalf and as facility agent and trustee for and on behalf of the
Finance Parties (the "SECURITY TRUSTEE").
WHEREAS:-
(A) By a facility agreement signed on 2 December, 2003 (but held undated in
escrow) as released from escrow and amended and restated by the
Supplemental Amendment and Restatement Deed (the "FACILITY AGREEMENT")
entered into by (1) Borrower, as borrower; (2) the banks and financial
institutions named therein as lenders (the "LENDERS"); (3) Industrial and
Commercial Bank of China (Asia) Limited as arranger; and (4) the Security
Trustee, the Lenders have agreed, upon and subject to the terms of the
Facility Agreement, to make available to the Borrower a term loan facility
of up to US$150,000,000 (the "FACILITY") for the purposes more
particularly specified therein.
(B) The Security Trustee is acting as facility agent for the Finance Parties
pursuant to the Facility Agreement and security trustee for the Finance
Parties pursuant to this Deed and other Finance Documents.
(C) It is a condition precedent to the availability of the Facility under of
the Facility Agreement that the Borrower and the Assignors shall have
executed and delivered this Assignment to the Security Trustee assigning
their respective rights and benefits under the Insurances and the
Insurance Proceeds in favour of the Security Trustee by way of security.
NOW THIS DEED WITNESSES as follows:-
1. DEFINITIONS AND CONSTRUCTION
1.1 TERMS DEFINED
In this Assignment, unless the context otherwise requires, terms used
shall have the
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[Group Assignment of Insurances]
meanings defined in the Facility Agreement and:-
"COLLATERAL" means all of the right, title, interest and benefit, present
and future, of the Borrower and each Assignor in and to the Insurances
(including, without limitation, insurance policy certificate
no.PTF/2003/ASINET/1206 issued by ▇▇▇▇▇▇ Telecommunications Facility
Members Association Limited and dated 24 June, 2003) and all rights of the
Borrower and each Assignor to make recovery under the Insurances and all
Insurance Proceeds receivable by the Borrower and/or each Assignor;
"INSURER" means each of the insurance companies or brokers through whom
the Insurances are presently to be effected (including, without
limitation, ▇▇▇▇▇▇ Telecommunications Facility Members Association
Limited); and
"SECURED OBLIGATIONS" means
(i) in respect of the Borrower, any and all moneys, liabilities and
obligations (whether actual or contingent, whether now existing or
hereafter arising, whether or not for the payment of money, and
including, without limitation, any obligation or liability to pay
damages) which are or may become payable by the Borrower or any
other Security Party which is a member of the CNC HK Group or any of
them to the Security Trustee and/or the Finance Parties or any of
them under or pursuant to the Facility Agreement and/or any other
Finance Document and/or all other obligations hereby secured; and
(ii) in respect of the Assignors, any and all moneys, liabilities and
obligations (whether actual or contingent, whether now existing or
hereafter arising, whether or not for the payment of money, and
including, without limitation, any obligation or liability to pay
damages) which are or may become payable by the Borrower or any of
the Assignors or any other Security Party or any of them to the
Security Trustee and/or the Finance Parties or any of them under or
pursuant to the Facility Agreement and/or any other Finance Document
and/or all other obligations hereby secured.
1.2 TRUST
All rights, benefits, interests, powers and discretions granted to or
conferred on the Security Trustee pursuant to this Assignment shall be
held by the Security Trustee on trust for the benefit of itself as
Security Trustee and each Finance Party from time to time. The Security
Trustee may do all acts within its powers to administer and manage the
trust constituted by this Clause including any full or partial release
and/or re-assignment by deed of the rights, benefits and interests
conferred by Clause 2.1 or the release and/or reassignment of all or any
part of the Collateral secured by this Deed. The trust constituted by this
Clause shall come into existence on the date of this Assignment and shall
last for so long as any of the Secured Obligations remain outstanding
provided that for the purposes of the rule against perpetuities, the
perpetuity period applicable to the trust constituted under this Clause
and any dispositions made or to be made pursuant to this Assignment and
this trust, is hereby specified as a period of eighty (80) years less one
(1) day from the date of this Assignment.
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[Group Assignment of Insurances]
1.3 CLAUSE HEADINGS
Clause headings and the table of contents are for ease of reference only
and shall be ignored in the interpretation of this Assignment.
1.4 CONSTRUCTION
In this Assignment, unless the context otherwise requires:-
(a) Clause 1.3 of the Facility Agreement shall be deemed incorporated in
this Assignment mutatis mutandis as if set out separately in this
Assignment; and
(b) references to the "ASSIGNOR(S)", the "BORROWER", the "SECURITY
TRUSTEE" or any "FINANCE PARTY" include, where the context permits,
include their respective successors and transferees and permitted
assigns in accordance with their respective interests.
1.5 SEVERAL LIABILITY
The rights and obligations of each of the Borrower and Assignors hereunder
and all representations, warranties, undertakings and indemnities given by
each and any of them in this Assignment are several.
2. CHARGE AND ASSIGNMENT
2.1 CHARGE AND ASSIGNMENT
(a) In consideration of the Lenders agreeing to make the Facility
available to the Borrower upon the terms and conditions of the
Facility Agreement and as a continuing security for the due and
punctual performance and discharge of the Secured Obligations, each
of the Borrower and Assignors, as beneficial owner, hereby
mortgages, charges and agrees to charge in favour of the Security
Trustee as trustee for the benefit of the Finance Parties by way of
first legal charge, the Collateral.
(b) Each of the Borrower and Assignors as beneficial owner hereby
assigns to the Security Trustee and the Finance Parties and each of
them all of their respective rights, title and interest in and to
the Collateral, present and future, in and to the Collateral.
2.2 NOTICE OF ASSIGNMENT
Each of the Borrower and Assignors shall forthwith upon execution of this
Assignment:
(a) deliver a notice of assignment in the form set out in Schedule 1, to
each Insurer and shall, as soon as possible, request that such
Insurer executes and delivers to the Security Trustee an
acknowledgement to the notice of assignment; and
(b) give instructions to incorporate the loss payable and notice of
cancellation clause
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[Group Assignment of Insurances]
substantially in the form of Schedule 3, and in any event in a form
satisfactory to the Security Trustee, into each of the policies or
contracts of insurance comprised in the Insurances.
2.3 COVENANT TO PAY
Each of the Assignors hereby covenants that it will on demand pay to the
Security Trustee and the Finance Parties all moneys and discharge all
obligations and liabilities now or hereafter due, owing or incurred to the
Security Trustee and/or the Finance Parties or any of them under or
pursuant to the Facility Agreement and/or any other Finance Document when
the same become due for payment or discharge.
2.4 PERFORMANCE AND INDEMNITY
Notwithstanding the foregoing, each of the Borrower and Assignors shall
remain liable to perform all the obligations to be performed by it in
respect of the Insurances and shall discharge fully its obligations
thereunder as they become due and neither the Security Trustee nor any of
the Finance Parties shall have any obligation of any kind whatsoever
thereunder or be under any liabilities whatsoever in the event of any
failure to perform their obligations thereunder, and each of the Borrower
and Assignors hereby indemnifies and agrees to keep indemnified the
Security Trustee, the Finance Parties and each of them from and against
any such liability.
2.5 RELEASE AND TRANSFER
(a) The Security Trustee shall, upon the full performance and discharge
of the Secured Obligations to the satisfaction of the Security
Trustee and the Finance Parties, at the request and cost of the
Borrower and the relevant Assignor(s) and in such form as the
Security Trustee shall reasonably approve, release and transfer to
the Borrower or the relevant Assignor(s) (as the case maybe), the
Collateral then the subject of the Security Interest constituted by
this Deed.
(b) Notwithstanding any discharge, release or settlement from time to
time between the Security Trustee and/or any Finance Party and the
Borrower and/or any Assignor, if any security, disposition or
payment granted or made to the Security Trustee and/or any Finance
Party in respect of the Secured Obligations by the Borrower or any
Assignor or any other person is avoided or set aside or ordered to
be surrendered, paid away, refunded or reduced by virtue of any
provision, law or enactment relating to bankruptcy, insolvency,
liquidation, winding-up, composition or arrangement for the time
being in force or for any other reason, the Security Trustee shall
be entitled thereafter to enforce this Assignment as if no such
discharge, release or settlement had occurred.
2.6 REGISTRATION
The Borrower and each Assignor hereby authorises the Security Trustee
forthwith upon execution of this Assignment to procure the delivery to the
Companies Registry in Hong Kong or other competent authority in the place
of incorporation of the Assignors (if necessary) the particulars of this
Assignment.
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[Group Assignment of Insurances]
3. CONTINUING AND INDEPENDENT SECURITY
3.1 CONTINUING SECURITY
This Assignment and the security hereby created shall remain in full force
and effect by way of a continuing security notwithstanding the insolvency
or liquidation or any incapacity or change in the constitution or status
of the Borrower or any Assignor or any other person and in particular but
without limitation shall not be, nor be considered as, satisfied by any
intermediate discharge or payment on account of any liabilities or any
settlement of accounts between the Borrower and/or any Assignor and the
Security Trustee and/or any Finance Party.
3.2 ADDITIONAL SECURITY
This Assignment and the security hereby created shall be in addition to
and not in substitution for or derogation of any other Security Interest,
guarantee or other security (whether given by the Borrower and/or any
Assignor or otherwise) now or from time to time hereafter held by the
Security Trustee and/or any Finance Party in respect of or in connection
with the Secured Obligations.
3.3 UNRESTRICTED ENFORCEMENT
The Security Trustee need not before exercising any of the rights, powers
or remedies conferred upon it by this Assignment or by law (i) take action
or obtain judgment against the Borrower or any Assignor, or any other
person in any court, (ii) make or file any claim or prove in a winding-up
or liquidation of the Borrower or any Assignor or of any other person or
(iii) enforce or seek to enforce the recovery of the moneys and
liabilities hereby secured by any other security or other rights all of
which the Assignors hereby waive and may be enforced for any balance due
after resorting to any one or more other means of obtaining payment or
discharge of the monies, obligations and liabilities hereby secured.
3.4 NO DISCHARGE
The liabilities and obligations of each Assignor under this Deed and the
security constituted by this Deed shall remain in force notwithstanding
any act, omission, event or circumstance whatsoever until full, proper and
valid payment and discharge of the Secured Obligations and without
limiting the foregoing, neither the liabilities of any Assignor under this
Deed nor the validity or enforceability of this Deed shall be prejudiced,
affected or discharged by:-
(a) the granting of any time or indulgence to the Borrower, any Assignor
or any other person in respect of the Secured Obligations;
(b) any variation or modification of the Facility Agreement, any of the
other Finance Documents or any other documents referred to therein
or related thereto;
(c) the invalidity or unenforceability of any obligation or liability of
any party under the Facility Agreement, any of the other Finance
Documents or any other
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[Group Assignment of Insurances]
documents referred to therein or related thereto;
(d) any invalidity or irregularity in the execution of the Facility
Agreement, any of the other Finance Documents or any other documents
referred to therein or relating thereto;
(e) any lack of capacity or deficiency in the powers of the Borrower,
any Assignor or any other person to enter into or perform any of its
respective obligations under the Facility Agreement or any of the
other Finance Documents to which it is party or any other documents
referred to therein or related thereto or any irregularity in the
exercise thereof or any lack of authority by any person purporting
to act on behalf of the Borrower, any Assignor or such other person;
(f) the insolvency, bankruptcy or liquidation or any incapacity,
disability or limitation or any change in the constitution or status
of the Borrower, any Assignor or any other person;
(g) any other Finance Document, Security Interest, guarantee or other
security or right or remedy being or becoming held by or available
to the Security Trustee, any Finance Party or by any other person or
by any of the same being or becoming wholly or partly void, voidable
or unenforceable or impaired or by the Security Trustee or any
Finance Party at any time releasing, refraining from enforcing,
varying or in any other way dealing with any of the same or any
power, right or remedy the Security Trustee and/or any Finance Party
may now or hereafter have from or against the Borrower, any Assignor
or any other person;
(h) any waiver, exercise, omission to exercise, compromise, renewal or
release of any rights against the Borrower, any Assignor or any
other person or any compromise, arrangement or settlement with any
of the same; or
(i) any act, omission, event or circumstance which would or may but for
this provision operate to prejudice, affect or discharge this
Assignment or the liability of the Borrower or any Assignor
hereunder.
3.5 NO SUBROGATION
(a) Neither the Borrower nor any of the Assignors shall exercise any
right of subrogation, contribution or any other rights of a surety
or enforce any security or other right or claim against the Borrower
or any of the other Assignors (whether in respect of its liability
under this Assignment or otherwise) or any other person who has
guaranteed or given any security in respect of the Secured
Obligations or claim in the insolvency or liquidation of the
Borrower or any of the Assignors or any such other person in
competition with the Security Trustee and/or the Finance Parties.
(b) If the Borrower or any Assignor receives any payment or benefit in
breach of this Clause 3.5, it shall hold the same upon trust for the
Security Trustee as a continuing security for the Secured
Obligations.
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[Group Assignment of Insurances]
4. REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES
Each of the Borrower and Assignors hereby severally represents and
warrants to the Security Trustee that for the benefit of the Finance
Parties:-
(a) STATUS: it is a company duly incorporated and validly existing under
the laws of its respective place of incorporation and has full
power, authority and legal right to own its property and assets and
to carry on its business as such business is now being conducted;
(b) POWER AND AUTHORITY: it has all legal power and authority to enter
into this Assignment and perform its obligations under this
Assignment and all actions (including any corporate action) required
to authorise the execution and delivery of this Assignment and the
performance of its obligations under this Assignment have been duly
taken;
(c) LEGAL VALIDITY: this Assignment constitutes or, when so executed and
delivered, will constitute its legal, valid and binding obligations
enforceable in accordance with its terms;
(d) NON-CONFLICT WITH LAWS: the entry into and performance of this
Assignment and the transactions contemplated by this Assignment do
not and will not conflict with or result in (i) a breach of any law,
judgment or regulation or any official or judicial order, or (ii) a
breach of the constitutional documents of the Borrower or that
Assignor (as the case may be), or (iii) a material breach of any
agreement or document to which the Borrower or that Assignor (as the
case may be) is a party or which is binding upon it or any of its
assets or revenues with a monetary value greater than US$500,000,
nor cause any limitation placed on it or the powers of its directors
to be exceeded or result in the creation or imposition of any
Security Interest on any part of the Collateral pursuant to the
provisions of any such agreement or document;
(e) NO CONSENTS: other than the Consents, no consent, authorisation,
licence or approval of, or registration with or declaration to, any
governmental or public bodies or authorities or courts in Hong Kong
or in any relevant jurisdiction is required for or in connection
with the execution, delivery, validity, enforceability and
admissibility in evidence in proceeding of this Assignment, or the
performance by, the Borrower or that Assignor (as the case may be)
of any of its respective obligations under this Assignment;
(f) NO REGISTRATION: it is not necessary in order to ensure the
legality, validity, enforceability or admissibility in evidence of
this Deed that it or any other instrument be notarised, filed,
recorded, registered or enrolled in any court or other authority or
that any stamp, registration or similar tax or charge be paid on or
in relation to this Deed and this Deed is in proper form for its
enforcement in the courts of Hong Kong and all jurisdictions the
subject of any legal opinion referred to in paragraph 4 of Schedule
3 of the Facility
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[Group Assignment of Insurances]
Agreement
(g) LITIGATION: except as disclosed in a letter of even date from the
Borrower to the Security Trustee, no litigation, arbitration or
administrative proceeding is currently taking place or pending or,
to the knowledge of the officers of the Borrower or that Assignor
(as the case may be), threatened against the Borrower or that
Assignor (as the case may be) or its assets which could, in the
reasonable opinion of the Majority Finance Parties, materially and
adversely affect its business, assets or financial condition or its
respective ability to perform its obligations under this Assignment;
(h) WINDING UP AND STRIKING OFF: it has not taken any corporate action
or no other step has been taken or legal proceedings have been
commenced or threatened against it for its winding-up, dissolution,
administration or reorganisation or for the appointment of a
receiver, administrator, trustee or similar officer of it or all or
any of its assets or revenues, except as permitted by clause 17.1(g)
(Winding-up) of the Facility Agreement;
(i) TAXES ON PAYMENTS: all payments to be made by it under this
Assignment may be made by it free and clear of, and without
deduction for, Taxes and no deductions or withholdings are required
to be made therefrom save as specified in any legal opinion referred
to in paragraphs 2, 3 and 4 of Schedule 3 to the Facility Agreement;
and no Taxes are imposed on or by virtue of the execution or
delivery by the Borrower or that Assignor of this Assignment or any
document to be executed or delivered under this Assignment;
(j) TAX LIABILITIES: it has complied with all Taxation laws in all
material respects in all jurisdictions in which it is subject to
Taxation and has paid all Taxes due and payable by it; no material
claims are being asserted against it with respect to Taxes;
(k) NO DEFAULT:
(i) no Default has occurred and is continuing;
(ii) it is not, or with the giving of notice or lapse of time or
satisfaction of any other condition or any combination
thereof, would not be in material breach of or in default
under any agreement relating to Financial Indebtedness to
which it is a party or by which it may be bound;
(l) NO IMMUNITY: it is generally subject to civil and commercial law and
to legal proceedings and neither it or any of its assets or revenues
are entitled to any immunity or privilege (sovereign or otherwise)
from any set-off, judgment, execution, attachment or other legal
process;
(m) COMPLIANCE, WITH CONSENTS AND LICENSES: every consent,
authorisation, licence or approval required for the time being by it
in connection with the conduct of its business and the ownership,
use, exploitation or occupation of its property and assets has been
applied for and not refused or has been obtained and is in full
force and effect and there has been no material default in the
observance of
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[Group Assignment of Insurances]
the conditions and restrictions (if any) imposed on, or in
connection with, any of the same which may have a material adverse
effect on its ability to perform its obligations under this Deed
and, to the knowledge of its officers, no circumstances have arisen
whereby any remedial action is likely to be required to be taken by
it, or at its expense under or pursuant to any law or regulation
applicable to its business, property or assets;
(n) NO FINANCIAL INDEBTEDNESS: it does not have any Financial
Indebtedness other than as permitted by Clause 16.17 of the Facility
Agreement;
(o) SOLE AND BENEFICIAL OWNER: it is or will be the sole, absolute and
beneficial owner of the Collateral and it has good and marketable
title thereto;
(p) LEGAL AND BINDING OBLIGATIONS: the obligations of the parties to the
Insurances are legal, valid and binding and enforceable in
accordance with its terms;
(q) SECURITY INTEREST: no Security Interest exists in any of its rights,
title, interests or benefits in the Collateral (other than as
created by this Assignment);
(r) THIRD PARTY RIGHT: it has not sold or otherwise disposed of any of
the Collateral or granted in favour of any other person any interest
in or any option or other rights in respect of any of the
Collateral;
(s) VALID AND IN FULL FORCE: the Insurances are valid and in full force
and effect and are not void or voidable; and
(t) PREMIUMS: all premiums and other monies (if any) due and payable in
respect of the Insurances have been duly paid and all covenants,
terms and conditions contained in the Insurances have been duly
observed and performed.
4.2 CONTINUING REPRESENTATION AND WARRANTY
Each of the Borrower and Assignors severally represents and warrants to
and undertakes with the Security Trustee that the foregoing
representations and warranties made by them respectively in Clause 4.1(a)
to (n) inclusive are deemed to be made by the Assignors on each Drawdown
Date and on each Interest Payment Date with reference to the facts and
circumstances then existing and that the foregoing representations in
Clause 4.1(o), (p), (s) and (t) will be true and accurate throughout the
continuance of this Assignment with reference to the facts and
circumstances from time to time.
5. TAXES AND OTHER DEDUCTIONS
5.1 TAX GROSS-UP
(a) All sums payable by the Borrower or any Assignor under this
Assignment shall be paid in full without any restriction or
condition and free and clear of any Tax or other deductions or
withholdings of any nature.
(b) If at any time the Borrower or any Assignor or any other person is
required in
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any jurisdiction to make any deduction or withholding in respect of
Taxes or otherwise from any payment due under this Assignment for
the account of the Security Trustee or any Finance Party (or if the
Security Trustee is required to make any such deduction or
withholding from a payment to any Finance Party), the sum due from
any Assignor in respect of such payment shall be increased to the
extent necessary to ensure that, after the making of such deduction
or withholding, the Security Trustee and each Finance Party receives
on the due date for such payment (and retains, free from any
liability in respect of such deduction or withholding) a net sum
equal to the sum which it would have received had no such deduction
or withholding been required to be made.
(c) The Borrower's and any Assignor's obligations under Clauses 5(a) and
(b) shall not apply in respect of any Tax on Overall Net Income
levied on the Security Trustee or any other Finance Party.
(d) All Taxes required by law to be deducted or withheld by the Borrower
or any Assignor from any amounts paid or payable under this Deed
shall be paid by the Borrower or the relevant Assignor (as the case
may be) when due (except for such amounts being disputed by the
Borrower or such Assignor in good faith) to the relevant tax
authority.
5.2 TAX INDEMNITY
Each Assignor shall indemnify the Security Trustee and each other Finance
Party against any losses or costs incurred by any of them by reason of:
(a) any failure of any Assignor or any other person to make any such
deduction or withholding referred to in Clause 5.1; or
(b) any increased payment referred to in Clause 5.1 not being made on
the due date for such payment; or
(c) any Taxes which are being disputed by any Assignor and remaining
unpaid; and
(d) any liability suffered (directly or indirectly) for or on account of
Tax by that Finance Party in respect of any payment received or
receivable or deemed to be received or receivable under this Deed.
5.3 EVIDENCE OF PROOF
Each of the Borrower and Assignors shall promptly deliver to the Security
Trustee any receipts, certificates or other proof evidencing the amounts
(if any) paid or payable in respect of any deduction or withholding as
aforesaid. Any certificate or determination of the Security Trustee
showing in reasonable details the calculations made by the Security
Trustee as to any amount for the purposes of this Clause 5 shall, in the
absence of manifest error, be conclusive and binding on each Borrower or
Assignor, as the case may be.
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5.4 TAX CREDIT
If an Assignor or the Borrower, as the case may be, makes a Tax payment
and the relevant Finance Party determines that:-
(a) a Tax Credit is attributable either to an increased payment of which
that Tax payment forms part, or to that Tax payment; and
(b) that Finance Party has obtained, utilised and retained that Tax
Credit,
the Finance Party shall pay an amount to that Assignor or the Borrower, as
the case may be, which that Finance Party determines will leave it (after
that payment) in the same after-Tax position as it would have been in had
the Tax payment not been required to be made by that Assignor or the
Borrower, as the case may be.
6. COSTS, CHARGES AND EXPENSES
6.1 COSTS, CHARGES AND EXPENSES
Each of the Borrower and Assignors shall from time to time forthwith on
demand pay to or reimburse the Security Trustee and the Finance Parties
for:
(a) all expenses (including legal, printing and out-of-pocket expenses)
reasonably incurred by the Security trustee or any other Finance
Party in connection with the negotiation, preparation and execution
of this deed and any amendment or extension of or the granting of
any waiver or consent under this Deed; and
(b) all costs, charges and expenses (including legal fees) on a full
indemnity basis properly incurred by the Security Trustee or any
other Finance Party in connection with the enforcement of or
preservation of any rights under this Assignment unless and to the
extent such costs, charges and expenses results directly from the
gross negligence, fraud or wilful misconduct of the Security Trustee
or any other Finance Party,
and until payment of the same in full, all such costs, charges and
expenses shall be secured by this Assignment.
6.2 STAMP DUTY
Each of the Borrower and Assignors shall pay all stamp, documentary,
registration or other like duties or taxes (including any duties or taxes
payable by the Security Trustee or any Finance Party) imposed on or in
connection with this Deed and shall indemnify each of the Security Trustee
and the other Finance Parties against any liability arising by reason of
any delay or omission by the Borrower and/or Assignors to pay such duties
or taxes.
- 11 -
[Group Assignment of Insurances]
7. UNDERTAKINGS
Each of the Borrower and Assignors hereby jointly and severally undertakes
and agrees with the Security Trustee for the benefit of the Security
Trustee and the Finance Parties throughout the continuance of this
Assignment and so long as the Secured Obligations or any part thereof
remains owing that, unless the Security Trustee otherwise agrees in
writing, it will:-
(a) perform all its obligations under the Insurances;
(b) notify the Security Trustee of any breach by any party to the
Insurances;
(c) give to the Security Trustee upon receipt copies of all cover notes,
policies, notices, requests and other documents sent or received
with respect to the Insurances;
(d) give to the Security Trustee such information regarding the
Collateral as the Security Trustee shall reasonably require;
(e) do or permit to be done every act or thing which the Security
Trustee may require to be done for the purpose of enforcing the
rights of the Security Trustee hereunder and will allow its name to
be used as and when required for that purpose;
(f) not amend or agree to amend the Insurances or waive any of its
rights thereunder, except in accordance with Clause 16.5 of the
Facility Agreement;
(g) not create or attempt or agree to create or permit to exist any
Security Interest over all or any part of the Collateral or any
interest therein or otherwise sell, transfer, assign, deal with or
dispose of all or any part of the Collateral (except under or
pursuant to this Assignment) or attempt or agree to do any of the
same;
(h) not sell or agree to sell, transfer or assign, any part of the
Collateral;
(i) not grant in favour of any other person any interest in or any
option or other rights in respect of any of the Collateral;
(j) not do or cause or permit to be done anything which may in any way
depreciate, jeopardise or otherwise prejudice the value of the
Security Trustee's security hereunder;
(k) punctually pay all premiums or sums of money necessary for effecting
such Insurances and endorse over, produce or deliver to the Security
Trustee all policy or policies of insurance and the receipts for
every such payment;
(l) promptly advise the Security Trustee upon any of the following:
(i) if any Insurer cancels, purports to cancel or gives notice of
cancellation of any of the Insurances;
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[Group Assignment of Insurances]
(ii) any purported or actual variation or alteration to the terms
of or termination or expiry of any of the Insurances;
(iii) any default in the payment of any premium or call;
(iv) knowledge of any act or omission or event which might
invalidate or render unenforceable in whole or in part of any
of the Insurances;
(m) take all reasonable steps which may be necessary or expedient to
keep the Insurances in full force and effect in such manner and to
such extent as is reasonable and customary for a business enterprise
engaged in the same or similar business and in the same locations as
the Borrower and the relevant Assignor, and whose practice is not to
self-insure;
(n) not, without the prior written consent of the Security Trustee,
waive, release, settle, compromise or abandon any claim made in
relation to or under the Insurances or do or omit to do any other
act or thing whereby the recovery in full of any amounts in respect
of the Insurances as and when they become payable may be impeded;
and
(o) subject to Clause 16.5 of the Facility Agreement, renew all policies
or contracts of Insurances within fourteen (14) days of the expiry
of such policies or contracts.
8. ENFORCEMENT
8.1 EVENTS OF DEFAULT
The security created by this Assignment shall become enforceable
immediately upon the occurrence of an Event of Default which is
continuing. For the purposes of this Clause, each of the following events
and circumstances shall be an Event of Default:-
(a) any Event of Default as that term is defined in the Facility
Agreement; or
(b) if the Borrower or any Assignor purports or attempts to create any
Security Interest (except under or as permitted by this Assignment)
over all or any part of the Collateral or any third party asserts a
claim in respect thereof.
8.2 ENFORCEMENT OF SECURITY
Upon this Assignment becoming enforceable the Security Trustee may, at any
time or times thereafter and without further notice or restriction,
withdraw, transfer or otherwise dispose of all or any part of the monies
in the Deposit Account in or towards the payment or discharge of the
Secured Obligations in accordance with Clause 9, for this purpose, the
Security Trustee may, at the expense of the Borrower or the Assignors,
convert all or any part of such monies into other currencies. The above
provisions apply notwithstanding any other terms upon which such monies
may have been deposited or that any such monies may have been deposited
for a fixed period or be subject to a period of notice and that the fixed
period or period of notice may not have expired or
- 13 -
[Group Assignment of Insurances]
that notice or sufficient notice may not have been given.
8.3 AMENDMENT
Any amendment or waiver of any provision of this Assignment and any waiver
of any default under this Assignment shall only be effective if made in
writing and signed by the Security Trustee.
8.4 EVIDENCE OF DEBT
Any statement of account signed as correct by the Security Trustee showing
any amount due under the Facility Agreement or under any other Finance
Document or under this Assignment shall, in the absence of manifest error,
be conclusive evidence of the amount so due.
9. APPLICATION OF PROCEEDS
9.1 APPLICATION
All monies received by the Security Trustee hereunder shall be applied in
or towards satisfaction of the Secured Obligations (subject to the prior
discharge of all liabilities having priority thereto by law) in the
following order of priority:-
(a) in payment or satisfaction of all costs, charges, expenses and
liabilities properly incurred and payments made by or on behalf of
the Security Trustee in connection with the exercise of any powers
hereunder and in preserving or attempting to preserve this security
or the Collateral and of all outgoings in respect of the Collateral
paid by the Security Trustee pursuant to this Deed;
(b) in payment to the Receiver of all remuneration as may be agreed
between it and the Security Trustee to be paid to him at, or at any
time after, its appointment;
(c) in or towards reduction of the remaining Secured Obligations in such
manner as is provided in the Facility Agreement; and
(d) the surplus (if any) to the Borrower or the respective Assignor
Proceeds as the case may be.
9.2 THE DEPOSIT ACCOUNT
Notwithstanding Clause 9.1, the Borrower and each Assignor shall pay or
cause to be paid to the credit of the Prepayment Escrow Account all
Insurance Proceeds received or receivable by it (in respect of any
one claim but aggregating all claims in respect of the same or
related incidents) except (i) for all costs or expenses reasonably
incurred in procuring the recovery of the Insurance Proceeds, which
it shall be entitled to apply in meeting or relieving the same and
(ii) to the extent that proceeds of claims under third party
liability policies are applied directly in discharge of the relevant
claim and provided that after the occurrence of an Event of Default
which is continuing, all Insurance Proceeds
- 14 -
[Group Assignment of Insurances]
received or receivable by the Borrower or any Assignor, shall be
paid or caused to be paid directly into the Prepayment Escrow
Account (except to the extent that proceeds of claim under third
party liability policies are applied by the Insurers directly in
discharge of the relevant claim for the purposes of making a
Mandatory Prepayment under Clause 7.5B of the Facility Agreement).
10. INDEMNITY
10.1 GENERAL INDEMNITY
Each of the Borrower and Assignors hereby jointly and severally undertakes
with the Security Trustee to indemnify and keep indemnified the Security
Trustee, Finance Parties and each of them (each an "INDEMNITEE") from and
against all costs, charges and expenses which the Security Trustee or such
Finance Party shall properly incur in connection with the exercise of any
powers conferred by this Assignment or the perfection, preservation or
enforcement of the security created by this Assignment (unless and to the
extent that any of the foregoing results directly from the fraud, gross
negligence or wilful misconduct of that indemnitee).
10.2 CURRENCY INDEMNITY
(a) If an amount due to the Security Trustee or any Finance Party from
the Borrower or any Assignor under the Facility Agreement and/or any
other Finance Document (a "SUM"), or any order, judgment or award
given or made in relation to a sum, has to be converted from the
currency (the "FIRST CURRENCY") in which that sum is payable into
another currency (the "SECOND CURRENCY") for the purpose of:
(i) making or filing a claim or proof against the Borrower or any
Assignor;
(ii) obtaining or enforcing an order, judgment or award in relation
to any litigation or arbitration proceedings,
the Borrower and any Assignor shall, as an independent
obligation to the Security Trustee or such Finance Party,
indemnify the Security Trustee or such Finance Party to whom
that sum is due against any cost, loss or liability arising
out of or as a result of the conversion including any
discrepancy between (A) the rate of exchange used to convert
that sum from the first currency into the second currency and
(B) the rate or rates of exchange available to that person at
the time of its receipt of that sum.
(b) Each of the Borrower and Assignors hereby waives any right it may
have in any jurisdiction to pay any amount under the Facility
Agreement and/or any other Finance Document in a currency or
currency unit other than that in which it is expressed to be
payable.
10.3 PAYMENT AND SECURITY
The Security Trustee or any Finance Party may retain and pay out of any
money in the
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[Group Assignment of Insurances]
hands of the Security Trustee or such Finance Party all sums necessary to
effect the indemnity contained in this Clause and all sums payable by any
Assignor under this Clause shall form part of the monies hereby secured.
11. SUSPENSE ACCOUNT
The Security Trustee may, notwithstanding Clause 9 (Application of
Proceeds), place and keep any monies received under this Assignment,
before or after the insolvency of the Borrower or any Assignor, to the
credit of a suspense account in order to preserve the rights of the
Security Trustee or the Finance Parties to ▇▇▇ or prove for the whole
amount in respect of claims against the Borrower and any Assignor or any
other person.
12. SET OFF
(a) Without prejudice to any right of set-off, combination of accounts,
lien or other rights which the Security Trustee or any Finance Party
is at any time entitled whether by operation of law or contract or
otherwise, the Security Trustee and each Finance Party may (but
shall not be obliged to) set off against any obligation of the
Borrower or any Assignor due and payable by it hereunder without
prior notice any moneys held by the Security Trustee or such Finance
Party for the account of the Borrower or any Assignor at any office
of the Security Trustee or such Finance Party anywhere and in any
currency. The Security Trustee or such Finance Party may effect such
currency exchanges as are appropriate to implement such set-off.
(b) If the obligations are in different currencies, the Security Trustee
or any Finance Party may convert either obligation at a market rate
of exchange in its usual course of business for the purpose of the
set-off.
13. POWER OF ATTORNEY
13.1 POWER OF ATTORNEY
Each of the Borrower and Assignors irrevocably appoints the Security
Trustee and any persons deriving title under it by way of security jointly
and severally to be its attorney (with full power of substitution) and in
its name or otherwise on its behalf and as its act and deed to sign, seal,
execute, deliver, perfect and do all deeds, instruments, acts and things
which may be required or which the Security Trustee shall think proper or
expedient for carrying out any obligations imposed on the Borrower or any
Assignor hereunder or for exercising, following the security constituted
by this Deed becoming enforceable, any of the powers conferred by this
Assignment or for giving to the Security Trustee the full benefit of this
security and so that this appointment shall operate to authorise the
Security Trustee to do on behalf of the Borrower and any Assignor anything
it can lawfully do by an attorney. Each of the Borrower and Assignors
ratifies and confirms and agrees to ratify and confirm any deed,
instrument, act or thing which such attorney or substitute may execute or
do in exercising its powers under this Clause.
- 16 -
[Group Assignment of Insurances]
13.2 DELEGATION
The Security Trustee may delegate to any person all or any of the rights
or powers conferred on it by this Assignment or by law. Any such
delegation may be made upon such terms and conditions (including power to
sub-delegate) as the Security Trustee or the Receiver thinks fit.
14. FURTHER ASSURANCE
Each of the Borrower and Assignors agrees that at any time and from time
to time upon the written request of the Security Trustee it will promptly
and duly execute and deliver any and all such further instruments and
documents as the Security Trustee may reasonably require for the purpose
of obtaining the full benefit of this Assignment and of the rights and
powers herein granted.
15. NOTICES
15.1 NOTICES
Any notice or communication under or in connection with this Assignment
shall be in writing and shall be delivered personally or by prepaid letter
(airmail if available) or facsimile transmission to the addresses or
facsimile numbers set out below or at such other address as the recipient
may have notified to the other parties in writing. Proof of posting or
despatch of any notice or communication to any party hereto shall be
deemed to be proof of receipt:-
(a) in the case of a letter, on the fifth Business Day after posting if
airmail or second Business Day if local mail;
(b) in the case of a facsimile transmission, on the Business Day
immediately following the date of despatch with confirmed facsimile
report.
All communications or other correspondence between any Assignor and any of
the Finance Parties in connection with this Assignment shall be made
through the Security Trustee.
15.2 ADDRESSES
Notices or communications shall be sent to the following addresses:-
To the Borrower:-
Name Asia Netcom Corporation Limited
Address 46/F ▇▇▇▇▇▇ Kong Center
▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
- 17 -
[Group Assignment of Insurances]
Fax (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/Wenlong Sun
With a copy to: Asia Netcom Singapore Pte Limited
▇ ▇▇▇▇▇▇▇ ▇▇▇ #▇▇-▇▇
▇▇▇ ▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax (▇▇) ▇▇▇▇ ▇▇▇▇
Attention ▇▇▇▇▇▇ ▇▇
To any Assignor:-
Name c/o Asia Netcom Corporation Limited
Address ▇▇/▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Fax (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/ ▇▇▇▇▇▇▇ Sun
With a copy to: Asia Netcom Singapore Pte Limited
▇ ▇▇▇▇▇▇▇ ▇▇▇ #▇▇-▇▇
▇▇▇ ▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax (▇▇) ▇▇▇▇ ▇▇▇▇
Attention ▇▇▇▇▇▇ ▇▇
To the Security Trustee:-
Name Industrial and Commercial Bank of China
(Asia) Limited
Address 10/F, ICBC Asia ▇▇▇▇▇▇▇▇
▇▇▇-▇▇▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Fax (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇/ Ms. ▇▇▇ ▇▇▇▇
15.3 LANGUAGE
Each notice or document referred to in this Assignment or to be delivered
under this Assignment shall be in the English language.
16. WAIVERS, AMENDMENTS AND CONSENTS, REMEDIES, SEVERABILITY, ASSIGNMENT AND
COUNTERPARTS
- 18 -
[Group Assignment of Insurances]
16.1 WAIVERS
No failure or delay on the part of the Security Trustee or any Finance
Party to exercise any power, right or remedy under this Assignment shall
operate as a waiver thereof, nor shall any single or partial exercise by
the Security Trustee or any Finance Party of any power, right or remedy
preclude any other or further exercise thereof or the exercise of any
other power, right or remedy.
16.2 AMENDMENTS AND CONSENTS
(a) Any amendment of any provision of this Assignment shall only be
effective if made in accordance with provisions with this Assignment
and if all the parties hereto so agree in writing and any waiver of
any breach or default under this Assignment shall only be effective
if the Security Trustee acting on the instructions of the Finance
Parties or the Majority Finance Parties (as the case may be) agrees
in writing. Any consent by the Security Trustee under this
Assignment must be made in writing.
(b) Any such waiver or consent may be given subject to any conditions
thought fit by the Security Trustee acting on the instructions of
the Finance Parties or the Majority Finance Parties, as the case may
be, and shall be effective only in the instance and for the purpose
for which it is given.
16.3 REMEDIES
The remedies provided in this Assignment are cumulative and are not
exclusive of any remedies provided by law.
16.4 SEVERABILITY
If any provision of this Assignment is prohibited or unenforceable in any
jurisdiction such prohibition or unenforceability shall not invalidate the
remaining provisions hereof or affect the validity or enforceability of
such provision in any other jurisdiction.
16.5 ASSIGNMENT
The Security Trustee may assign its rights under this Assignment in
accordance with the provisions of the Facility Agreement. None of the
Borrower or the Assignor shall assign any of its respective rights
hereunder without the prior written consent of the Security Trustee.
16.6 COUNTERPARTS
This Assignment may be executed in any number of counterparts including by
facsimile and all of which taken together shall constitute one and the
same instrument, and any party hereto may execute this Assignment by
signing any such counterpart.
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[Group Assignment of Insurances]
16.7 It is intended that this document takes effect as a deed notwithstanding
the fact that a party may only execute this document under hand.
17. GOVERNING LAW AND JURISDICTION
17.1 GOVERNING LAW
This Assignment is governed by and construed in accordance with the laws
of Hong Kong.
17.2 SUBMISSION TO JURISDICTION
For the benefit of the Security Trustee and the Finance Parties, each of
the Borrower and Assignors irrevocably agrees that the courts of Hong Kong
are to have jurisdiction to settle any disputes which may arise out of or
in connection with this Assignment and that, accordingly, any legal action
or proceedings arising out of or in connection with this Assignment
("PROCEEDINGS") may be brought in those courts and each of the Borrower
and Assignors irrevocably submits to the jurisdiction of those courts.
17.3 OTHER JURISDICTIONS
Nothing in this Clause 17 (Governing Law and Jurisdiction) shall limit the
right of the Security Trustee or any Finance Party to take Proceedings
against the Borrower or any Assignor in any other court of competent
jurisdiction nor shall the taking of Proceedings in one or more
jurisdictions preclude the Security Trustee or any Finance Party from
taking Proceedings in any other jurisdiction, whether concurrently or not.
17.4 WAIVER OF INCONVENIENT FORUM
Each of the Borrower and Assignors irrevocably waives any objection which
it may at any time have to the laying of the venue of any Proceedings in
any court referred to in this Clause 17 (Governing Law and Jurisdiction)
and any claim that any such Proceedings have been brought in an
inconvenient forum.
17.5 PROCESS AGENT
Each of the Borrower and Assignors hereby irrevocably appoints Asia Netcom
Asia Pacific Commercial Limited of ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇
▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ to receive, for it and on its behalf,
service of process in any Proceedings in Hong Kong. Such service shall be
deemed completed on delivery to the process agent whether or not it is
forwarded to and received by the Borrower or that Assignor. If for any
reason the process agent ceases to be able to act as such or not longer
has an address in Hong Kong, each of the Borrower and Assignors
irrevocably agrees to appoint a substitute process agent acceptable to the
Security Trustee, and to deliver to the Security Trustee a copy of the new
process agent's acceptance of that appointment, within 30 days.
17.6 SERVICE
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[Group Assignment of Insurances]
Each of the Borrower and Assignors irrevocably consents to any process in
any Proceeding anywhere being served by mailing a copy by post in
accordance with Clause 15 (Notices). Nothing shall affect the right to
serve any process in any other manner permitted by law.
17.7 WAIVER OF IMMUNITIES
To the extent that the Borrower or any Assignor has or hereafter may
acquire any immunity (sovereign or otherwise) from any legal action, suit
or proceeding, from jurisdiction of any court or from set-off or any legal
process (whether service or notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or
otherwise) with respect to itself or any of its property, each of the
Borrower and Assignors hereby irrevocably waives and agrees not to plead
or claim such immunity in respect of its obligations under this
Assignment.
IN WITNESS whereof this Assignment has been executed by the parties hereto and
is intended to be and is hereby delivered by the Borrower and each Assignor as
its deed on the day and year first above written.
- 21 -
[Group Assignment of Insurances]
SCHEDULE 1
FORM OF NOTICE OF ASSIGNMENT
(for attachment by way of endorsement to the relevant policy in respect of the
Insurances)
To: [the Insurer(s)]
Copy to: Industrial and Commercial Bank of China (Asia) Limited (as Security
Trustee)
[INSERT POLICY NUMBER OF INSURANCES AND OTHER DETAILS OF POLICY OF INSURANCES
(THE "POLICY")]
[Name of Borrower or Assignor], (the "INSURED") referred to in this Policy,
HEREBY GIVES NOTICE that by a Group Assignment of Insurances dated
______________ 2004 (a copy of which is attached hereto) (the "ASSIGNMENT") and
executed by us, among others, in favour of Industrial and Commercial Bank of
China (Asia) Limited, as facility agent and security trustee (the "SECURITY
TRUSTEE"), there has been assigned by us to the Security Trustee all our right,
title, interest and benefit in and the Policy stated above whereon this Notice
is endorsed.
Following an event of default as notified by the Security Trustee, we hereby
authorise and instruct you, upon receiving a notice from the Security Trustee
requesting for proceeds of the insurance under the Policy to be paid over to the
Security Trustee, to pay directly to the Security Trustee all payments then due
to us under the Policy into such account as the Security Trustee shall direct or
to such person and in such manner as the Security Trustee may from time to time
instruct.
Please note that the authority and instructions herein contained cannot be
revoked or varied by us without the prior written consent of the Security
Trustee.
This Notice is governed by the laws of Hong Kong.
Please countersign one copy of this Notice to record your acknowledgment of
receipt and to record that you will act in accordance with the terms hereof.
Dated _____________ 2004.
______________________________
Director
For and on behalf of
[Borrower/Assignor]
- 22 -
[Group Assignment of Insurances]
We acknowledge receipt of the above notice of assignment and we agree to act in
accordance with its terms.
For and on behalf of
_____________________________
[Name of Insurer]
- 23 -
[Group Assignment of Insurances]
SCHEDULE 2
THE ASSIGNORS
NAME PLACE OF INCORPORATION REGISTERED OFFICE
---- ---------------------- -----------------
East Asia Netcom Ltd. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
- ▇▇ -
[Group Assignment of Insurances]
SCHEDULE 3
FORM OF LOSS PAYABLE AND NOTICE OF CANCELLATION CLAUSE
By a Deed of Assignment of Insurances, [-] (the "Assignor") assigned all its
right, title, interest and benefit in and to this policy/contract of insurance
and the benefits and proceeds hereof including all claims of whatever nature and
returns of premiums to the Industrial and Commercial Bank of China (Asia)
Limited (the "Security Trustee") acting on its own behalf and as agent and
trustee for the Lenders (as defined therein). Until notice in writing to the
contrary is received by the insurer or insurance broker hereunder from the
Security Trustee, all the proceeds of any claim for an amount not exceeding
US$1,000,000 shall be paid to the Assignor and all the proceeds of any claim for
an amount exceeding US$1,000,000 shall be paid to the Security Trustee.
Following receipt of such notice in writing, all proceeds payable hereunder
shall be paid directly to the Security Trustee.
The Security Trustee shall be advised:
(i) if any insurer under this policy/contract gives notice of
cancellation of any insurance hereunder, at least fourteen (14) days
before any such cancellation is to take effect;
(ii) of any proposed alteration in or termination or expiry of any such
insurance at least fourteen (14) days before such alteration,
termination or expiry is to take effect;
(iii) promptly of any default in the payment of any premium or call;
(iv) promptly of any act or omission or of any event of which any insurer
hereunder has knowledge and which might invalidate or render
unenforceable in whole or in part such insurance.
No cancellation, termination or expiry of or alteration to any insurance
hereunder shall be effective as against the Security Trustee or the Lenders
unless the relevant provision of this Clause have been complied with in full.
The rights of the Security Trustee and the Lenders under this policy/contract of
insurance shall not be prejudiced by any act or neglect of the Assignor or any
other person nor by any foreclosure or other proceedings.
The Security Trustee may, but shall not be required to, pay any insurance
premiums unpaid by the Assignor.
- 25 -
[Group Assignment of Insurances]
SIGNATURE PAGE
THE BORROWER
SIGNED, SEALED AND DELIVERED )
as a Deed by its duly authorised attorney )
)
for and on behalf of )
ASIA NETCOM CORPORATION LIMITED )
in the presence of:- )
THE ASSIGNOR
SIGNED, SEALED AND DELIVERED )
as a Deed by its duly authorised attorney )
)
for and on behalf of )
EAST ASIA NETCOM LTD. )
in the presence of:- )
THE SECURITY TRUSTEE
SIGNED BY )
)
for and on behalf of )
INDUSTRIAL AND COMMERCIAL )
BANK OF CHINA (ASIA) LIMITED )
in the presence of:- )
- 26 -