1
Exhibit 10.4
DATED THIS 9TH DAY OF FEBRUARY 1996
BETWEEN
ZYCON CORPORATION SDN. BHD.
As Borrower
BANK BUMIPUTRA MALAYSIA BERHAD
As Arranger
BANK BUMIPUTRA MALAYSIA BERHAD,
As Working Capital Lender
BANK BUMIPUTRA MALAYSIA BERHAD,
BBMB KEWANGAN BERHAD,
As Lending Banks
BANK BOMIPUTRA MALAYSIA BERHAD
As Funding Lender
BANK BUMIPUTRA MALAYSIA BERHAD
As Facility Agent
AND
BANK BUMIPUTRA MALAYSIA BERHAD
As Security Agent
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RM50,400,000.00
FACILITIES AGREEMENT FOR
1. RM5,900,000.00 Working Capital Facilities
2. RM29,200,000.00 Term Loan I Facility
3. USD4,000,000.00 Term Loan Facility
4. USD2,000,000.00 Revolving Credit Facility
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Prepared by:
SKRINE & CO.
ADVOCATES & SOLICITORS
0, XXXXX XXXXX XXXXX
00000 XXXXX XXXXXX
File No. PTW/ag/1518780/95(TC)
February 7, 1996-1i4
H:\PTW\CORP\1518780\FAC-AG
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THIS AGREEMENT is made the 9th day of February, 1996 BETWEEN
(1) ZYCON CORPORATION SDN. BHD., a company incorporated in Malaysia and
having its registered office at 11th Floor, Wisma Damansara, Xxxxx
Xxxxxxxx, Xxxxxxxxx Xxxxxxx 00000 Xxxxx Xxxxxx ("Borrower");
(2) BANK BUMIPUTRA MALAYSIA BERHAD, ("Arranger");
(3) BANK BUMIPUTRA MALAYSIA BERHAD, ("Working Capital Lender");
(4) BANK BUMIPUTRA MALAYSIA BERHAD and, BBMB KEWANGAN BERHAD ("Lending
Banks");
(5) BANK BUMIPUTRA MALAYSIA BERHAD ("Funding Lender");
(6) BANK BUMIPUTRA MALAYSIA BERHAD, as facility agent for itself and the
Lenders (as hereinafter defined) (in such capacity, the "Facility Agent,"
which expression shall include any of its successors in such capacity);
and
(7) BANK BUMIPUTRA MALAYSIA BERHAD, as security agent for itself, the
Facility Agent and the Lenders (in such capacity, the "Security Agent,"
which expression shall include any of its successors in such capacity).
WHEREAS, as a result of arrangements by the Arranger made at the request of the
Borrower:
(1) the Working Capital Lender will make available to the Borrower the
Working Capital Facilities (as hereinafter defined) upon the security
granted or created in its favour under, pursuant to and/or in connection
with the Security Documents (as hereinafter defined).
(2) the Lending Banks will make available to the Borrower the TL I Facility
(as hereinafter defined) upon the security granted or created in favour
of each of them under, pursuant to and/or in connection with the Security
Documents; and
(3) the Funding Lender will make available to Borrower the Dollar Advances
Facility (as hereinafter defined) and the Dollar RC Facility (as
hereinafter defined) upon the security granted or created in its favour
under, pursuant to and/or in connection with the Security Documents.
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IT IS AGREED as follows:
1. INTERPRETATION
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1.1 Definition
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In this Agreement, unless the context otherwise requires:
"Advance Margin" means one point seven five per centum (1.75%) per
annum or such other rate as is varied by the Funding Lender as
specifically permitted by this Agreement;
"Agents" means the Facility Agent and the Security Agent;
"Assignment" means an assignment of all the Borrower's rights
interest benefit and title in respect of the Land Letter of Offer
and Acceptance and in and to the Land;
"Available Dollar Advances Commitment" means, in relation to the
Funding Lender at any particular time, the Dollar Advances
Commitment less the Dollar Advances Outstanding at that time;
"Available Dollar RC Commitment" means in relation to the Funding
Lender at any particular time, the Dollar RC Commitment less the
Dollar RC Loan at that time;
"Available Ringgit Advances Commitment" means the Available
Ringgit Advances Commitment (TL I);
"Available Ringgit Advances Commitment (TL I)" means, in relation
to a Lending Bank at any particular time, the Ringgit Advances
Commitment (TL I) less the Ringgit Advances Outstanding (TL I) at
that time;
"Available Working Capital Commitment" means, in relation to the
Working Capital Lender at any particular time, its Working Capital
Commitment less the aggregate principal amount comprised in its
Working Capital Outstanding Amount at that time;
"BAFIA" means the Banking and Financial Institutions Act, 1989;
"Base Lending Rate" means the rate of interest which is from time
to time stipulated by BBMB as its minimum or lowest lending rate
or where such rate is not available for any reason whatsoever,
such other rate in substitution thereof as may from time to time
be stipulated by BBMB to the Facility Agent;
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"XXXX" means Bank Bumiputra Malaysia Berhad, a company
incorporated in Malaysia pursuant to the Companies Act, 1965 and
licensed under the Banking and Financial Institutions Act, 1989 as
a licensed bank and having its registered office at Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxx, 00000 Xxxxx Xxxxxx and includes its
successors in title and assigns thereof;
"BBMB Group" means all companies which are related companies or
associate companies of BBMB;
"Beneficiaries" means the Agents, the Working Capital Lender, the
Lending Banks and the Funding Lender;
"Charge" means a first fixed legal charge over the Land under the
Sarawak Land Code (Chapter 81) in favour of the Security Agent for
the Beneficiaries as security for the Facilities;
"Commitment Termination Date" means:
(a) in relation to the TL I Facility, the date which is a
Ringgit Business Day following twenty four (24) months from
the date of first Ringgit Advance under the TL I Facility;
(b) in relation to the Dollar Advance Facility, the date which
is a Dollar Business Day following eighteen (18) months
from the date of first Dollar Advance;
(c) in relation to the Dollar RC Facility, the date which is a
Dollar Business Day on which the Dollar RC Facility is
cancelled or terminated pursuant to the terms herein;
"Corporate Guarantee" means the corporate guarantee for the
performance of the obligations of the Borrower to the Lenders
under or in connection with this Agreement and each of the
Security Documents, given by the Corporate Guarantor in favour of
the Facility Agent and the other Beneficiaries;
"Contractor" means HITI ENGINEERING (M) SDN. BHD. or such other
contractors appointed by the Borrower;
"Corporate Guarantor" means Zycon Corporation, a corporation
incorporated and existing under the laws of the State of Delaware
in the United States of America and having its registered office
at 000, Xx Xxxxxx Xxxx, Xxxxx Xxxxx, Xxxxxxxxxx XX 00000-0000;
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"Debenture" means the debenture to be executed by the Borrower in
favour of the Security Agent for the benefit of the Beneficiaries
wherein the Borrower as beneficial owner thereby:
(1) charges by way of first fixed legal charge over all estates
and interests in the Land and any other freehold or
leasehold property (hereinafter collectively called "the
Immovable Property") now or at any time during the
continuance of this security belonging or charged to the
Borrower in respect of which the Borrower shall at the
request of the Security Agent execute charges under the
Sarawak Land Code in favour of the Security Agent and such
other legal documents as may be required by the Security
Agent from time to time and all licenses now or hereafter
held by the Borrower to enter upon or use the Immovable
Property the benefit of all other agreements relating to
the Immovable Property to which the Borrower is or may
become a party or otherwise entitled and all buildings,
fixtures, plant and machinery owned by the Borrower and
from time to time on or in any freehold or leasehold
property an interest in which is charged hereunder and the
proceeds of sale thereof, all Debts (as defined in the
Debenture), all chattel paper, documents and instruments
evidencing any obligation to the Borrower, all accounts (as
defined in the Debenture), all its present and future
uncalled capital, all the undertaking and goodwill of the
Borrower, all stocks, shares, debentures, loan capital,
rights to subscribe for, convert other securities into or
otherwise acquire any stocks, shares, debentures and loan
capital of any other body corporate now or at any time
hereafter belonging to the Borrower, together with all
dividends, interest and other income and all other rights
of whatsoever kind deriving from or incidental to any of
the foregoing, all of the Equipment (as defined in the
Debenture) and all proceeds of sale thereof;
(2) assigns in favour of the Security Agent for the benefit of
the Beneficiaries, the benefit to the Borrower of all
rights and claims to which the Borrower is now or may
hereafter become entitled in relation to the Immovable
Property including in particular (but without prejudice to
the generality of the foregoing) all rights and claims of
the Borrower against all persons who now are or who at any
time have been or may become lessees of the whole or any
part or parts of the Immovable Property and all guarantors
and sureties for the obligations of such persons and
against all persons who are under any obligation to the
Borrower in respect of any works of design, construction,
repair or replacement to or on or about the Immovable
Property or any of the fixtures, fittings and equipment on,
in or about the Immovable Property so far as the same are
or become capable of assignment without the consent of a
third party or such consent shall be obtained; and
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(3) charges by way of a first floating charge all the Inventory
(as defined in the Debenture) and all its property assets
and rights whatsoever and wheresoever both present and
future not otherwise charged assigned or mortgaged by way
of fixed charge under paragraph (1) or (2) above or
otherwise pursuant to the Debenture,
save for future assets and properties of the Borrower which are
excluded in accordance with the provisions therein;
"Depository Agent" means the agent of BBMB in that foreign country
where the Letter of Credit shall be issued;
"Dollar Advance" means an advance in US Dollars made or to be made
by the Funding Lender to the Borrower under the Dollar Advances
Facility or, as the case may be, the outstanding principal amount
of any such advance;
"Dollar Advances Commitment" means the commitment of the Funding
Lender to make Dollar Advances to the Borrower of an aggregate
principal amount not exceeding United States Dollars Four Million
(USD4,000,000.00) upon the terms and subject to the conditions of
this Agreement;
"Dollar Advances Facility" means the USD term loan facility of up
to the aggregate principal amount of United States Dollars Four
Million (USD4,000,000.00) granted by the Funding Lender to the
Borrower subject to the terms and conditions herein;
"Dollar Advance Interest Period" means the period of one (1),
three (3) or six (6) months, as selected by the Borrower or if no
selection is made, such period as selected by the Funding Lender
provided that:
(a) the first Dollar Advance Interest Period in respect of any
Dollar Advance other than the first Dollar Advance shall
end upon the expiry of the Dollar Advance Interest Period
then current for the first Dollar Advance so that all
current Dollar Advance Interest Periods shall be
co-terminous;
(b) any Dollar Advance Interest Period relating to a Dollar
Advance which would otherwise extend beyond the last
installment date for the Dollar Advances Facility shall end
on the last installment date for the Dollar Advances
Facility;
(c) each subsequent Dollar Advance Interest Period shall
commence on the expiry of the previous one;
(d) any Dollar Advance Interest period which would otherwise
end on a non-Dollar Business Day shall end on the next
succeeding Dollar Business
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Day or if that Dollar Business Day falls in the next
calendar month of the year, on the preceding Dollar
Business Day;
(e) if a Dollar Advance Interest Period is extended or
shortened by (d) above, the following Dollar Advance
Interest Period shall (without prejudice to the application
of (d) above) end on the day on which it would have ended
if the preceding Dollar Advance Interest Period had not
been so extended or shortened; and
(f) If any Dollar Advance Interest Period commences on the last
Dollar Business Day in a calendar month or if there is no
corresponding date in the calendar month in which Dollar
Advance Interest Period is due to end, then such Dollar
Advance Interest Period shall end on the last Dollar
Business Day in the relevant later month;
"Dollar Advances Outstandings" means, in relation, to the Funding
Lender at any particular time, the aggregate principal amount of
all (if any) Dollar Advances outstanding under or in connection
with the Dollar Advances Facility at that time;
"Dollar Business Day" means a day (other than Saturday or Sunday
or any public holiday) on which (i) US Dollar deposits may be
dealt in on the Singapore Inter-bank Market and (ii) commercial
banks are open for business in Kuala Lumpur and Singapore;
"Dollar RC Commitment" means the commitment of the Funding Lender
to make Dollar RC Drawdowns to the Borrower of the aggregate
principal amount not exceeding United States Dollars Two Million
(USD2,000,000.00) upon the terms and subject to the conditions of
this Agreement;
"Dollar RC Drawdowns" means all drawdowns made or to be made by
the Borrower under the Dollar RC Facility and "Dollar RC Drawdown"
means each drawdown made or to be made by the Borrower under the
Dollar RC Facility;
"Dollar RC Drawdown Notice" means a notice of drawdown
substantially in the form set out in Schedule 6 hereto;
"Dollar RC Facility" means the USD revolving credit facility of up
to the aggregate principal amount of United States Dollars Two
Million (USD2,000,000.00) granted by the Funding Lender to the
Borrower subject to the terms and conditions herein;
"Dollar RC Loan" means at any particular time, the aggregate
principal amount of all Dollar RC Drawdowns or amounts rolled over
outstanding under or in connection with the Dollar RC Facility at
that time;
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"Dollar RC Margin" means one point seven five per centum (1.75%)
per annum or such other rate as is varied by the Funding Lender as
specifically permitted by this Agreement;
"Dollar RC Repayment Date" means the last Dollar Business Day of a
Dollar RC Rollover Period;
"Dollar RC Rollover Period" means the period of one (1), three (3)
or six (6) months, subject to the availability of funds, as
selected by the Borrower, for each Dollar RC Drawdown and any
roll-over thereof but in all cases to mature on a day which is not
later than the expiry date of the Dollar RC Facility and on a
Dollar Business Day;
"Dollar RC Interest Period" means the period of one (1), three (3)
and six (6) months as selected by the Borrower or if no selection
is made, such period as selected by the Funding Lender;
"Effective Cost of Funds" means in relation to a Lender the cost
to that Lender of obtaining one (1), three (3) or six (6) months
Ringgit deposit from the Kuala Lumpur Inter-bank Market plus the
cost of maintaining statutory reserves and complying with
liquidity and other requirements imposed from time to time and at
any time by Bank Negara Malaysia or any other appropriate
authority;
"Event of Default" means any of the events or circumstances
described in Clause 17;
"Facility Office" means in relation to any Beneficiary, its office
identified in Schedule 1 (or, in the case of a Transferee, at the
end of the Transfer Certificate to which it is a party as
Transferee) or such other office as it may from time to time
select and notify to the Agents and the Borrower in accordance
with Clause 29;
"Facilities" means the facilities comprising of the Dollar
Advances Facility, the Dollar RC Facility, the TL I Facility and
the Working Capital Facilities and the expression "Facility" means
any one of these Facilities;
"Funding Labor Outstanding Amount" means in relation to the
Funding Lender at any particular time, the aggregate at such time
of (i) its Dollar Advances Outstanding (ii) its Dollar RC Loan and
(iii) all interest, fees, costs, expenses and other monies
whatsoever which are expressed to be payable to the Funding Lender
under this Agreement;
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"Instructing Group" means:
(i) before any advance, drawdown or utilisation of any of the
Facilities granted hereunder, the Lenders whose Lender
Commitment constitute in aggregate more than fifty per
centum (50.0%) of the Lenders Commitments;
(ii) thereafter, the Lenders to whom in aggregate more than
fifty per centum (50.0%) of the Lenders Outstanding Amounts
are owed;
"Interest Payment Date" means:
(a) in relation to a Ringgit Advance, the last Ringgit Business
Day of a TL I Interest Period provided that upon
commencement of the installment payments under the TL I
Facility, each Interest Payment Date shall coincide with
the installment payment date then current for the TL I
Facility;
(b) in relation to a Dollar Advance, the last Dollar Business
day of the Dollar Advance Interest Period provided that
upon commencement of the installment payments under the
Dollar Advances Facility, each Interest Payment Date shall
coincide with the installment payment date then current for
the Dollar Advances Facility;
(c) in relation to a Dollar RC Drawdown the last Dollar
Business Day of the Dollar RC Interest Period or Dollar RC
Rollover Period, as the case may be;
(d) in relation to a drawdown under the RC Facility, the last
Ringgit Business Day of the Ringgit RC Interest Period or
the Ringgit RC Rollover Period, as the case may be;
"Kewangan" means BBMB Kewangen Berhad, a company incorporated in
Malaysia pursuant to the Companies Act, 1965 and having its office
at 1st Floor, Menara Promet, Xxxxx Xxxxxx Xxxxxx, 00000 Xxxxx
Xxxxxx and includes its successors in title and assigns thereof;
"Land" means all that piece of land provisionally known as Xxx Xx.
00 xx Xxxx Xxxx Xxxx Xxxxxxxxxx Xxxx Kuching and measuring
approximately 7.31 hectare;
"Land Letter of Offer and Acceptance" means the letter dated 21st
July 1995 from the Ministry of Industrial Development, Sarawek
approving the Borrower's application for the Land, the letter
dated 12th September 1995 from the Land and Survey Department,
Sarawak setting out the terms and conditions of the issue of
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the provisional lease in respect of the Land and such other
letter(s) issued by the relevant authorities in connection
thereto;
"Lenders" means (1) BBMB, in its capacity as the Working Capital
Lender, (2) BBMB, in its capacity as a Lending Bank, (3) BBMB, in
its capacity as the Funding Lender and (4) Kewangan, in its
capacity as a Lending Bank, including their respective successors
and "Lender" means any of them;
"Lender Commitment" means (1) in relation to the Working Capital
Lender, its Working Capital Commitment, (2) in relation to a
Lending Bank, its Ringgit Advances Commitment (TL I), and (3) in
relation to the Funding Lender, its Dollar Advances Commitment,
and its Dollar RC Commitment and "Lenders Commitments" means the
Lender Commitment of all the Lenders;
"Lender Outstanding Amount" means (1) in relation to the Working
Lender, its Working Capital Outstanding Amount, (2) in relation to
a Lending Bank, its Lending Bank Outstanding Amount and (3) in
relation to the Funding Lender, the Funding Lender Outstanding
Amount and "Lenders Outstanding Amounts" means the Lender
Outstanding Amounts of all Lenders;
"Lending Bank Outstanding Amount" means, in relation to a Lending
Bank at any particular time, the aggregate at such time of (i) the
amount for the time being owing and outstanding from or by the
Borrower to that Lending Bank under or in respect of its
Proportion of the Ringgit Advances Facility and (ii) all interest,
fees, costs, expenses and other monies whatsoever which are
expressed to be payable to that Lending Bank under this Agreement
and "Lending Bank Outstanding Amounts" means, at any particular
time, the aggregate of the Lending Bank outstanding amounts of the
lending Banks at such time;
"Margin" means:
(a) in relation to the Dollar Advances Facility, the Advance
Margin;
(b) in relation to the TL I Facility, the TL I Margin;
(c) in relation to the Dollar RC Facility, the Dollar RC
Margin.
"Parties" means the Borrower, the Arranger, the Facility Agent,
the Security Agent and each of the Lenders and "Party" means one
of such Parties;
"Potential Event of Default" means any event or circumstance
which, if it continued after the giving of any notice, the expiry
of any grace period, and/or (as the case may be) the making of any
reasonable determination by the Instructing Group would be an
Event of Default;
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"Proportion" means, in relation to a Lending Bank, a fraction the
numerator of which is the amount set out opposite its name in
Column 2 of Schedule 1 and the denominator of which is
RM29,200,000.00;
"Ringgit Malaysia" and "RM" means the lawful currency of Malaysia;
"Ringgit Advance" means an advance in Ringgit made or to be made
by the Lending Banks to the Borrower under the TL I Facility or,
as the case may be, the outstanding principal amount of that
Ringgit Advance;
"Ringgit Advances Commitment" means, in relation to a Lending
Bank, the aggregate of its Ringgit Advances Commitment (TL I);
"Ringgit Advances Commitment (TL I)" means, in relation to a
Lending Bank and subject as provided in this Agreement, the amount
set out opposite its name in Column 2 of Schedule 2 and "Ringgit
Advances Commitments (TL I)" means the aggregate of the Ringgit
Advances Commitments (TL I) of the Lending Banks;
"Ringgit Advances Facility" means the TL I Facility;
"Ringgit Advance Outstandings" means the Ringgit Advances
Outstandings (TL I);
"Ringgit Advances Outstandings (TL I)" means in relation to a
Lending Bank at any particular time, the aggregate principal
amount of all (if any) Ringgit Advances owing and outstanding from
or by the Borrower to that Lending Bank under or in connection
with the TL I Facility at that time;
"Ringgit Business Day" means a day (other than Saturday, Sunday or
any public holiday) on which (i) Ringgit deposits may be dealt in
on the Kuala Lumpur inter-bank market and (ii) commercial banks
are open for business in Kuala Lumpur and Sarawak;
"Ringgit RC Interest Period" means the period of one (1), three
(3) and six (6) months as selected by the Borrower or if no
selection is made, such period as selected by the Working Capital
Lender;
"Ringgit RC Repayment Date" means the last Ringgit Business Day of
a Ringgit RC Rollover Period;
"Ringgit RC Rollover Period" means the period of one (1), three
(3) or six (6) months, subject to the availability of funds, as
selected by the Borrower, for each drawdown under the RC Facility
and any roll-over thereof but in all cases to
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mature on a day which is not later than the expiry date of the
Ringgit RC Facility and on a Ringgit Business Day;
"Relevant Applicable Rate" means:
(a) the aggregate of the TL I Margin and the Base Lending Rate
or the Effective Cost of Funds, whichever is applicable, in
respect of the TL I Facility;
(b) the aggregate of the Advance Margin and SIBOR in respect of
the Dollar Advances Facility;
(c) the aggregate of the Dollar RC Margin and SIBOR in respect
of the Dollar RC Facility;
(d) the interest rate as set out or determined or varied as
specifically permitted by the terms of this Agreement in
respect of a facility within the Working Capital
Facilities.
"Security Documents" means collectively this Agreement, the
Debenture, the Assignment, the Charge, the Corporate Guarantee,
the Security Agency Agreement and nay and every other document
from time to time executed in substitution or in addition to
secure, guarantee, indemnify or otherwise assure the performance
of the obligations of the Borrower hereunder;
"Shareholders Loan" means the loans granted or to be granted by
the shareholders of the Borrower to the Borrower in such amounts
and on such dates as set out in Schedule 8 hereof;
"SIBOR" means the cost to the Funding Lender of obtaining one (1),
three (3) or six (6) months US Dollars deposit from the Singapore
Interbank Money Market as quoted on the Reuters Screen Page as at
11:00 a.m. (Singapore time) or based on the prevailing rate as
quoted in the said market whichever is applicable;
"TL I Facility" means the term loan facility of up to the
aggregate principal amount of Ringgit Malaysia Twenty Nine Million
And Two Hundred Thousand (RM29,200,000.00) granted by the Lending
Banks to the Borrower subject to the terms and conditions
hereunder;
"TL I Instalment Payment Date" means the date being a Ringgit
Business Day on which the Borrower pays the Ringgit Advances made
under the TL I Facility by Instalment pursuant to Clause 9.1.1;
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"TL I Interest Period" means, in respect of a Ringgit Advance made
under the TL I Facility, a period of three (3) months commencing
from the date of first Ringgit Advance under the TL I Facility
provided that:
(a) the first TL I Interest Period in respect of any Ringgit
Advance other than the first Ringgit Advance shall end upon
the expiry of the TL I Interest Period then current for the
first Ringgit Advance so that all current TL I Interest
Periods shall be co-terminous;
(b) any TL I Interest Period relating to a Ringgit Advance
which would otherwise extend beyond the last TL I
Instalment Payment Date shall end on the last TL I
Instalment Payment Date;
(c) each Subsequent TL I Interest Period shall commence on the
expiry of the previous one;
(d) any TL I Interest Period which would otherwise end on a
non-Ringgit business day shall end on the next succeeding
Ringgit Business Day or if that Ringgit Business Day falls
in the next calendar month of the year, on the preceding
Ringgit Business Day;
(e) if a TL I Interest Period is extended or shortened by (d)
above, the following TL I Interest Period shall (without
prejudice to the application of (d) above) end on the day
on which it would have ended if the preceding TL I Interest
Period had not been so extended or shortened; and
(f) if any TL I Interest Period commences on the last Ringgit
Business Day in a calendar month or if there is no
corresponding date in the calendar month in which TL I
Interest Period is due to end, then such TL I Interest
Period shall end on the last Ringgit Business Day in the
relevant later month;
"TL I Margin" in relation to BBMB shall mean one point seven five
per centum (1.75%) per annum above its Base Lending Rate or such
other rate as is varied by BBMB as specifically permitted by this
Agreement and in relation to Kewangan shall mean one point seven
five per centum (1.75%) per annum above the Effective Cost of
Funds or such other rate as is varied by Kewangan, as specifically
permitted by this Agreement;
"Transfer Certificate" means a certificate in the form set out in
Schedule 7 signed by a Lender and a Transferee whereby:
(a) such Lender seeks to procure the transfer to such
Transferee of all or a part of such Lender's rights and
obligations under the Facilities upon and subject to the
terms and conditions set out in Clause 22; and
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(b) such Transferee undertakes to perform the obligations it
will assume as a result of delivery of such certificate to
the Facility Agent as is contemplated in Clause 22.4;
"Transfer Date" in relation to any Transfer Certificate means the
date for the making of the transfer as specified in the schedule
to such Transfer Certificate;
"Transferee" means a bank or financial institution licensed under
BAFIA or the Offshore Banking Act, 1990 to which a Lender seeks to
transfer all or part of such Lender's rights and obligations
hereunder;
"US Dollars" or "USD" means United States Dollars, the lawful
currency of United States of America;
"Working Capital Commitment" means the commitment of the Working
Capital Lender to grant the Working Capital Facilities to the
Borrower of up to an aggregate principal amount of Ringgit Five
Million And Nine Hundred Thousand (RM5,900,000.00) upon the terms
and subject to the conditions of this Agreement;
"Working Capital Facilities" means, in relation to the Working
Capital Lender, the Working Capital Facilities described in
Schedule 3 granted by the Working Capital Lender to the Borrower
under Clause 2.1.1 and made or to be made available by the Working
Capital Lender, subject to the terms and conditions of this
Agreement and Working Capital Facility means any one of these
Working Capital Facilities;
"Working Capital Outstanding Amount" means, in relation to the
Working Capital Lender at any particular time, the aggregate at
such time of (i) the amount for the time being owing and
outstanding (including contingent liabilities) from or by the
Borrower to the Working Capital Lender under or in respect of the
Working Capital Facilities, and (ii) all interest, fees, costs,
expenses and other monies whatsoever which are expressed to be
payable, whether at maturity or otherwise, to the Working Capital
Lender under this Agreement;
"Working Capital Termination Date" means the date which is a
Ringgit Business Day on which the Working Capital Facilities is
canceled or terminated pursuant to Clause 2.3.2 of this Agreement;
1.2 Any reference in this Agreement to:
1.2.1 a "month" means (and references to "months" shall be construed
accordingly) a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar
month or, if that day is not a Ringgit
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Business Day or a Dollar Business Day, as the case may be, on the
next Ringgit Business Day or Dollar Business Day, as the case may
be, in the said next calendar month or, if none, on the preceding
Ringgit Business Day or Dollar Business Day, as the case may be,
provided that if either the period starts on the last Ringgit
Business Day or Dollar Business Day, as the case may be, in a
calendar month or if there is no corresponding day in the next
calendar month, the period shall end on the last Ringgit Business
Day or Dollar Business Day, as the case may be, of the next
relevant calendar month;
1.2.2 a "person" shall be construed as a reference to any person, firm,
company, corporation, government, state or agency of a state or
any association, partnership (whether or not having separate legal
personality) or one or more of the foregoing;
1.2.3 a "statute" shall be construed as a reference to such statute as
amended or re-enacted from time to time;
1.2.4 a "Consent" shall be construed so as to include any approval
authorization consent exemption license permission or registration
by or from any governmental or other authority or any other
person;
1.2.5 "fees, costs and expenses" shall be exclusive of any service tax
or similar tax chargeable on them, which shall accordingly be
payable in addition.
1.3 Section headings are for convenience only and shall not in any way
affect the interpretation thereof.
1.4 Save where the context otherwise requires words importing the
singular number include the plural and vice versa.
2. THE FACILITIES
--------------
2.1 The Facilities
--------------
2.1.1 Working Capital Facilities
--------------------------
The Working Capital Lender agrees to grant to the Borrower Working
Capital Facilities, pursuant to which the Working Capital Lender will, upon the
terms and conditions set out in this Agreement and upon the security granted or
created in its favour under, pursuant to and/or in connection with the Security
Documents, at the request of the Borrower, allow the Borrower to utilise the
Working Capital Facilities, provided, however, that following such utilisation,
the principal amount comprised in the Working Capital Outstanding Amount shall
not exceed the Working Capital Commitment;
16
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2.1.2 Ringgit Advances Facility
-------------------------
(i) Each of the Lending Bank agrees to grant to the Borrower
its respective Proportion of the TL I Facility, pursuant to which
each favour under, pursuant to and/or in connection with the
Security Documents and upon the terms and subject to the
conditions of this Agreement, make Ringgit Advances under the TL I
Facility to the Borrower provided however that the aggregate of
such Ringgit Advances relating to each Lending Bank shall not
exceed the Available Ringgit Advances Commitment relating to such
Lending Bank.
(ii) The tenor of the TL I Facility shall be for a period of
ten (10) years (inclusive of a grace period of eighteen (18)
months) commencing from the date of the first Ringgit Advance
under the TL I Facility. The TL I Facility shall be subject to
yearly review.
2.1.3 Dollar Advances Facility
------------------------
(i) The Funding Lender agrees to grant to the Borrower the
Dollar Advances Facility, pursuant to which the Funding Lender
will, upon the security granted or recreated in its favour under,
pursuant to and/or in connection with the Security Documents and
upon the terms and subject to the conditions of this Agreement,
make Dollar Advances to the Borrower.
(ii) The tenor of the Dollar Advances Facility shall be for a
period of five (5) years (inclusive of a grace period of twelve
(12) months) commencing from the date of the first Dollar Advance.
2.1.4 Dollar RC Facility
------------------
The Funding Lender agrees to grant to the Borrower the Dollar RC
Facility, pursuant to which the Funding Lender will, upon the
security granted or created in its favour under, pursuant to
and/or in connection with the Security Documents and upon the
terms and subject to the conditions of this Agreement, make Dollar
RC Drawdown to the Borrower.
2.2 Purpose
-------
2.2.1 The Borrower shall Utilise the Working Capital Facilities
for the purposes of financing its working capital requirements.
2.2.2 The Borrower shall Utilise the proceeds of each Ringgit
Advance made under the TL I Facility for the purpose of part
financing the construction of the Borrower's factory.
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2.2.3 The Borrower shall utilise the proceeds of each Dollar Advance
made under the Dollar Advances Facility for the purpose of part
financing the acquisition of new plant, machinery and equipment to
be installed at the Borrower's factory.
2.2.4 The Borrower shall utilise the proceeds of each Dollar RC Drawdown
made under the Dollar RC Facility to supplement its working
capital.
2.2.5 Notwithstanding the provisions herein contained, the Arranger, the
Facility Agent, the Security Agent nor any Lender need check that
the respective facilities are utilised for the purposes aforesaid.
2.3 Cancellation
------------
2.3.1 The Borrower may not cancel all or any part of any of the Lenders'
Commitments except as expressly provided in this Agreement.
2.3.2 The Facility Agent may, at its absolute discretion, cancel the
Facilities or any part thereof by written notice to the Borrower
and any amount so cancelled shall become immediately due and
payable together with interest and any other monies due thereon
within thirty (30) Ringgit Business Days or Dollar Business Days,
as the case may be, provided, however, the Facility Agent shall
only be entitled to such right:
(a) upon an occurrence of the Event of Default; or
(b) where such cancellation is made necessary as a result of
statutory or regulatory requirements imposed on the
Borrower and the Borrower elects in writing not to comply
or fails to comply with such statutory or regulatory
requirements, within thirty (30) days from the date the
Facility Agent notifies the Borrower in writing of the
same; or
(c) where such cancellation is made necessary as a result of
statutory or regulatory requirements imposed on the
Lenders.
3. CONDITIONS PRECEDENT
--------------------
3.1 Utilisation of Working Capital Facilities
-----------------------------------------
3.1.1 The Borrower may not make its request to the Working Capital
Lender for the utilisation of the Working Capital Facilities until
the Facility Agent has confirmed to the Borrower and the Working
Capital Lender that the Facility Agent has received documents
appearing to the Facility Agent to comply with the requirements of
Schedule 2 and to be satisfactory.
18
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3.2 Request for Ringgit Advances
----------------------------
3.2.1 The Borrower may not make its request for a Ringgit Advance until
the Facility Agent has confirmed to the Borrower and the Lending
Banks that the Facility Agent has received documents appearing to
the Facility Agent to comply with the requirements of Schedule 2
and to be satisfactory.
3.3 Request for Dollar Advances
---------------------------
3.3.1 The Borrower may not make its request for a Dollar Advance until
the Facility Agent has confirmed to the Borrower and the Funding
Lender that the Facility Agent has received documents appearing to
the Facility Agent to comply with the requirements of Schedule 2
and to be satisfactory.
3.4 Request for Dollar RC Drawdown
------------------------------
3.4.1 The Borrower may not make its request for a Dollar RC Drawdown
until the Facility Agent has confirmed to the Borrower and the
Funding Lender that the Facility Agent has received documents
appearing to the Facility Agent to comply with the requirements of
Schedule 2 and to be satisfactory.
4. WORKING CAPITAL FACILITIES
--------------------------
4.1 Terms and Conditions
--------------------
The Working Capital Facilities shall be made available by the
Working Capital Lender upon and subject to the terms and conditions
contained herein or otherwise made known and agreed to by the Borrower in
writing.
4.2 Review
------
The Working Capital Lender reserves the right to review the
Working Capital Facilities periodically. Such review may be carried out
by the Working Capital Lender as an "in-house exercise" and the Borrower
need not be informed of such review.
4.3 Revolving Credit Facility ("RC Facility")
-----------------------------------------
4.3.1 Purpose of the RC Facility
The RC Facility shall be used by the Borrower to supplement its
working capital requirements or such other purpose as may be
acceptable to the Working Capital Lender.
19
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4.3.2 Drawdown
(a) In the event the Borrower intends to drawdown the RC Facility or
part thereof from the Working Capital Lender subject to the terms
herein after determination of the Relevant Applicable Rate
pursuant to Clause 4.3.2(b) hereof, and agreed by the Borrower,
the Borrower shall give notice of such drawdown to the Facility
Agent in accordance with Clause 4.3.2(b) hereof and such notice
must reach the Facility Agent by the third Ringgit Business Day,
at the latest, following the determination and agreement of the
Relevant Rate for the RC Facility. The Borrower shall also deliver
to the Facility Agent, before noon on the date of the relevant
advance, a duly executed and stamped promissory note for the face
amount and tenor which is equivalent to the face amount and tenor
of the proposed advance.
(b) The drawdown notice substantially in the form set out in Schedule
9 must be delivered in accordance with the provisions of Clause 29
and must specify:
(i) the amount of the drawdown which shall be in multiples of
Ringgit Malaysia One Hundred Thousand (RM100,000.00) but
subject to a minimum of Ringgit Malaysia One Hundred
Thousand (RM100,000.00). The total drawdown under the RC
Facility must not exceed the approved sub-limit of Ringgit
Malaysia One Million (RM1,000,000.00);
(ii) the date on which the drawdown is required, which must in
any event be a Ringgit Business Day not less than three (3)
Ringgit Business Days following the date of the drawdown
notice; and
(iii) the Ringgit Rollover Period selected by the Borrower for
such drawdown referred to herein.
(c) Subject to Clauses 4.3.2(a) and (b) being satisfied and to the
availability of funds, the Working Capital Lender shall on the
date of drawdown credit the Borrower's account as specified in the
drawdown notice.
(d) The Borrower shall repay the principal amount of the RC Facility
so drawdown on demand by the Facility Agent for and on behalf of
the Working Capital Lender for repayment thereof or on its Ringgit
RC Repayment Date unless the Borrower shall have served a request
in writing on the Facility Agent at least three (3) Ringgit
Business Days before the Ringgit RC Repayment Date to roll-over
the principal amount for the Ringgit Rollover Period and the
Working Capital Lender has agreed to the same in writing. If the
Working Capital Lender has agreed to allow a rollover the
principal amount of the RC Facility so drawdown which is repayable
on the Ringgit RC Repayment Date shall on the Ringgit RC Repayment
Date be rolled over for the Ringgit RC Rollover Period stipulated
in such notice.
20
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(e) Any drawdown notice once received by the Facility Agent shall be
irrevocable. In the event the Borrower fails to drawdown after the
drawdown notice is received by the Facility Agent, the Borrower
shall on demand indemnify the Facility Agent and the Working
Capital Lender against all funding losses and related expenses
suffered by them in liquidating or otherwise employing deposits
from third parties acquired or arranged to fund the drawdown
following receipt of the drawdown notice.
(f) The Borrower may prepay the whole or any part of any drawdown
under the RC Facility Provided That:
(a) it has given to the Facility Agent not less than fourteen
(14) Ringgit Business Days' notice in respect of prepayment
under the Ringgit RC Facility;
(b) all prepayments shall not be less than RM100,000.00 or in
integral multiples of RM100,000.00; and
(c) each prepayment must be made on an Interest Payment Date;
in default of which, the Borrower shall pay to the Facility Agent
for the account of the Working Capital Lender a premium calculated
at zero point five per centum (0.5%) flat on the amounts to be
prepaid.
(g) Interest
--------
(i) The Working Capital Lender shall at the request of the
Borrower and on selection of the Ringgit RC Interest Period
by the Borrower, or if no selection is made by the
Borrower, such period as selected by the Working Capital
Lender, prior to making of an advance or a rollover of an
advance under the RC Facility, as the case may be,
determine (i) whether the Ringgit RC Interest Period or the
Ringgit RC Rollover Period, as the case may be, is agreed
upon and if not, the proposed Ringgit RC Interest Period or
the Ringgit RC Rollover Period, as the case may be, and
(ii) the Relevant Applicable Rate for the intended Ringgit
RC Interest Period or the Ringgit RC Rollover Period, as
the case may be, and shall notify the Borrower of such
determination PROVIDED ALWAYS that the Relevant Applicable
Rate shall not be less than the Working Capital Lender's
Effective Cost of Funds plus one point seven five per
centum (1.75%) per annum.
(ii) Interest at the Relevant Applicable Rate shall accrue from
day to day and shall be calculated on the basis of the
number of days elapsed and a 365 day year. The Relevant
Applicable Rate so determined in accordance with
21
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the Clause 4.3.2(g)(1) above shall be the Relevant
Applicable Rate for the RC Facility or portion thereof so
drawdown or rolled over.
(iii) Interest on the amount of the RC Facility so drawdown or
rolled over, as the case may be, shall be payable on the
Ringgit RC Repayment Date in arrears Provided Always that
if the day on which interest is due is not a Ringgit
business Day then payment shall be made on the next
succeeding Ringgit Business Day. In the event the next
succeeding Ringgit Business Days falls on the first day of
the month following, then payment shall be made on the day
preceding the due date for payment.
(h) The approved sub-limits in respect of the RC Facility and the LG
Facility (as hereinafter defined) may be varied by the Borrower
giving not less than three (3) Ringgit Business Days' notice to
the Working Capital Lender. The variation to the approved
sub-limits in respect of the RC Facility and the LG Facility is
subject to the available unutilised amount under the aggregate
limited of RMS,900,000.00.
4.4 Letters of Credit Facility ("LC Facility")
------------------------------------------
4.4.1 Purpose
The LC Facility shall be utilised by the Borrower to facilitate
its imports or local purchase of goods, spare parts, new machinery
and/or new equipment or such other purpose as may be acceptable to
the Working Capital Lender.
4.4.2 Tenor of Letters of Credit
The Working Capital Lender will open sight and usance letters of
credit and each such letter of credit shall have a maximum
validity period of one hundred and eighty (180) days from its
issuance date.
4.4.3 Payment
Full payment for each letter of credit must be effected by the
Borrower upon presentation by the Borrower of the same and other
relevant documents for payment.
4.4.4 Interest
Foreign Letters of Credit (sight)
(i) at the prevailing overdraft rate levied or such other rate
as may be levied by the Working Capital Lender's Depository
Agent from the date of
22
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negotiation to the date of receipt of notification of
negotiation calculated on the basis of a 365-day year for
the actual number of days elapsed.
(ii) at one point seven five percent (1.75%) per annum above the
Working Capital Lender's Base Lending Rate from the date of
receipt of notification of negotiation to the date of
payment or conversion to the TR Facility (as hereinafter
defined) or BA Facility (as hereinafter defined) calculated
on the basis of a 365-day year for the actual number of
days elapsed.
Local Letters of Credit (sight)
At one point seven five percent (1.75%) per annum above the
Working Capital Lender's Base Lending Rate from the date of
receipt of notification of negotiation to the date of payment or
conversion to the TR Facility or the BA Facility calculated on the
basis of a 365-day year for the actual number of days elapsed.
Foreign or Local Letters of Credit (usance)
At one point seven five percent (1.75%) per annum above the
Working Capital Lender's Base Lending Rate from the date of
maturity to the date of payment or conversion to the TR Facility
or the BA Facility calculated on the basis of a 365-day year for
the actual number of days elapsed.
4.5 Trust Receipts Facility ("the TR Facility")
-------------------------------------------
4.5.1 Purpose of the TR Facility
The TR Facility shall be utilised by the Borrower to convert bills
drawn under the LC Facility issued by the Working Capital Lender
to facilitate its imports or local purchase of goods related to
the Borrower's trade.
4.5.2 Utilisation of the TR Facility
(a) The Borrower acknowledges that all goods covered by the relevant
trust receipts, all documents of title relating to the goods and
the proceeds of sale thereof, and all insurance monies arising
from them, are held as trustees for the Working Capital Lender.
(b) The Borrower shall hold all relevant documents of title relating
to the goods for the purpose of obtaining delivery and to
warehouse the goods. The goods will be warehoused in the name of
the Working Capital lender or as otherwise agreed by the Working
Capital Lender and at the sole expense of the Borrower.
(c) The Borrower undertakes to keep the goods duly covered by
insurance against fire and such other risks as are required by the
working Capital Lender with such
23
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company or companies as acceptable to the Working Capital Lender
and in case of loss to pay the insurance money immediately on
receipt to the Working Capital Lender without any deduction. The
Borrower agrees to pay to the Working Capital lender immediately
and specifically on receipt the whole proceeds of sale and each
part of the proceeds (whatever form they may take) without any
deduction. The Working Capital Lender may require any money
received on any insurance be applied in or towards making good the
loss or damage in respect of which money is received or receivable
or in or towards discharge of any principal sum, interest, default
interest or any other monies payable hereunder or under any of the
other Security Documents and the Working Capital Lender may give a
good discharge for any such monies and nay balance remaining after
discharging all monies payable hereunder or under the other
Security Documents, shall be refunded to the Borrower.
(d) The Borrower shall return to the Working Capital Lender
immediately on demand at any time all relevant documents of title
relating to the goods and/or any other documents received by the
Borrower in exchange or substitution for them and to comply
promptly and fully with any instructions which the Working Capital
Lender may give as to the dealing with the goods of any of them.
(e) The Borrower undertakes to keep the documents of title relating to
the goods, the goods, the proceeds of any sale and all insurance
money separate and distinct from any other documents, goods,
proceeds of sale or insurance money relating to or arising from
any transaction.
(f) A copy of the relevant insurance policy showing the Working
Capital Lender as mortgagee is to be delivered and to be retained
by the Working Capital Lender. However, where the goods are
covered by a master policy, the Borrower need not submit another
insurance policy for specific goods, nor is there a need to have
the master policy specially endorsed to the Working Capital Lender
as mortgagee. In such an instance, the Borrower must confirm in
writing to the Working Capital Lender that the master policy
covers the goods financed by the Working Capital Lender and a copy
of such master policy is to be delivered to the Working Capital
Lender and kept by the Working Capital Lender for its reserves.
(g) Any amount not paid by the Borrower to the Working Capital Lender
under the TR Facility shall be subject to interest at the rate of
one point seven five per centum (1.75%) per annum above the Base
Lending Rate or such other rate as is varied by the Working
Capital Lender pursuant to this Agreement and shall be payable
upon maturity of the relevant bills shown by the Working Capital
Lender and accepted by the Borrower on all goods covered by the
relevant trust receipt.
(h) The tenor or each TR shall be up to one hundred and eighty (180)
days inclusive of supplier's credit.
24
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4.6 Bankers Acceptances Facility ("the BA Facility")
------------------------------------------------
4.6.1 Purpose of the BA Facility
The BA Facility shall be utilised by the Borrower for financing
its export as well as inland sales, imports, as well as local
purchases or for such other purpose as may be acceptable to the
Working Capital Lender.
4.6.2 Utilisation of the BA Facility
(a) Each bankers acceptance will be discounted at inter-bank offer
rates prevailing on the date of discount.
(b) The tenor of each bankers acceptance shall be up to one hundred
and eighty (180) days inclusive of supplier's credit.
(c) If the Borrower fails to put the Working Capital Lender in
sufficient funds to meets its obligations on the maturity of any
bankers acceptance, the Working Capital Lender shall have the
right but not the obligation to debit the Borrower's current
account with the Working Capital Lender without prior notice the
Borrower and if in consequent of so doing the current account is
overdrawn, an additional interest of one per centum (1%) per annum
above the Working Capital Lender's Base Lending Rate shall be
charged and the Working Capital Lender shall not be liable if any
cheque drawn under the said current account is dishonored by
reason of insufficiency of funds.
(d) All bankers acceptances accepted by the Working Capital Lender are
to be discounted with the Working Capital Lender only.
(e) Interest and commission are to be paid at the time of acceptance.
(f) The procedure for accepting and discounting bankers acceptances
will be subject to all the conditions and guidelines laid down by
Bank Negara Malaysia and/or other statutory bodies from time to
time.
(g) The Working Capital Lender reserves the right to accept or reject
any bankers acceptance presented.
(h) No new bankers acceptance will be accepted or discounted if there
are any overdue amounts under the BA Facility and/or any of the
other facilities.
25
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4.7 Export Credit Refinancing Facility ("the ECR Facility")
-------------------------------------------------------
4.7.1 Purpose
The ECR (Preshipment) Facility shall be utilised by the Borrower
as additional working capital to finance the Eligible Goods (as
defined in the ECR Guidelines issued by Bank Negara Malaysia). The
ECR (Postshipment) Facility shall be utilised by the Borrower for
the purchase of usance export bills in respect of Eligible Goods.
4.7.2 Tenor of the ECR (Preshipment) Facility
(a) In respect of Eligible Goods not already shipped by the Borrower
("ECR-Pre") the Working Capital Lender will advance sums to the
Borrower for a maximum of one hundred and twenty (120) days under
pre-shipment bills of exchange. Such bills of exchange shall
expire on a day which is not a Saturday, a Sunday or a public
holiday in Kuala Lumpur or Kuching. Each request for an advance
shall be supported by an ECR domestic letter of credit (as defined
by the ECR Guidelines) or an ECR domestic purchase order (as
defined by the ECR Guidelines).
(b) The tenor of each advance under the ECR-Pre Facility shall be
calculated from the date the Working Capital Lender receives the
relevant supporting documents et out in Clause 4.7.2(a) above to
the shipment date of the Eligible Goods from Malaysia.
4.7.3 Tenor of Post-Shipment Advances
(a) In respect of Eligible Goods already shipped by the Borrower
("ECR-Post") the Working Capital Lender will advance sums to the
Borrower for a maximum of one hundred and eighty (180) days by
discounting the amounts stated in post-shipment bills of exchange.
Such bills of exchange shall mature on a day which is not a
Saturday, a Sunday or a public holiday in Kuala Lumpur or Kuching.
(b) Each request of ran advance under the ECR-Post Facility shall be
accompanied by the export documents (as defined by the ECR
Guidelines) in respect of the shipment of the Eligible Goods.
(c) All post-shipment bills of exchange shall be discounted by the
Working Capital Lender with recourse to the Borrower. In the event
a Borrower's customer shall fail to pay a post-shipment bill for
whatever reason on presentation of such bill, the Borrower shall
pay the bill amount to the Working Capital Lender on demand
failing which the Working Capital Lender shall be entitled to
debit the Borrower's Account for the said amount. The Borrower
shall also indemnify the Working Capital Lender against all costs,
expenses and charges incurred by the
26
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Working Capital Lender arising from the default in payment by the
Borrower's customer.
4.8 Letters of Guarantee Facility ("the LG Facility")
-------------------------------------------------
4.8.1 Purpose of the LG Facility
The LG Facility shall be utilised for the issuance of guarantees
in favor of the Government, semi-Government and private bodies in
respect of tender, performance, advance payment, security deposit,
supply of equipment and other business related to the Borrower's
trade.
4.8.2 Indemnity
(a) The Borrower is to issue a letter of indemnity for each guarantee
issued under the LG Facility and in the event that the Working
Capital Lender is called upon to make any payment under any of the
guarantees so issued, then the Borrower shall forthwith thereafter
and in any event not later than seven (7) Ringgit Business Days
from the date of payment by the Working Capital Lender, repay the
Working Capital Lender all such monies paid out by the Working
Capital Lender, together with all interest (chargeable at one
point zero percent (1.0%) above the Working Capital Lender's Base
Lending Rate or such rate as the Working Capital Lender may at its
absolute discretion impose subject to the maximum interest rate as
allowable by Bank Negara Malaysia and any other charges and
expenses incurred thereon.
(b) Without prejudice to the Working Capital Lender's right to recall
on demand, the Working Capital Lender may at its absolute
discretion convert the monies paid out under any guarantee into a
term loan facility or an overdraft facility on such terms and
conditions (including repayments) as the Working Capital Lender
may at its absolute discretion impose.
4.8.3 Commission
(a) The commission payable under the LG Facility shall be charged for
the full liability period (inclusive of the claim period) of the
guarantee issued.
(b) Should the same letter of guarantee be renewed upon expiry,
commission shall be calculated from the date or renewal to the new
expiry date.
5. UTILISATION OF WORKING CAPITAL FACILITIES
-----------------------------------------
5.1 Subject to the provisions of this Agreement, any of the Working
Capital Facilities made available by the Working Capital Lender to
the Borrower may be utilised
27
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by the Borrower, at the request of the Borrower, made in writing
to the Working Capital Lender if:
5.1.1 following such utilisation by the Borrower, the aggregate
principal amount comprised in the Working Capital
Outstanding Amount shall not exceed its Working Capital
Commitment;
5.1.2 all representations and warranties in Clause 18 have been
complied with and would be correct in all respects if
repeated on the proposed date of utilisation of the Working
Capital Facilities by reference to the circumstances then
existing;
5.1.3 no Event of Default or Potential Event of Default has
occurred on or before the proposed date of utilisation of
the Working Capital Facilities or will occur as a result of
the utilisation of the Working Capital Facilities;
5.1.4 such terms and conditions as may be imposed by the Working
Capital Lender in relation to the utilisation of the
Working Capital Facilities have been satisfactorily
complied with and/or will not be breached pursuant to such
utilisation;
5.1.5 not later than 11:00 a.m. on the proposed date of
utilisation of that Working Capital Facilities, the Working
Capital Lender has received and found satisfactory such
additional information and/or other documents as it may
reasonably request.
6. PAYMENT OF WORKING CAPITAL FACILITIES
-------------------------------------
6.1 Payment by Borrower
-------------------
6.1.1 In consideration of the Working Capital Lender agreeing to grant
or continue to grant the Working Capital Facilities to the
Borrower and without prejudice to any other rights of the Working
Capital Lender and obligations of the Borrower under this
Agreement, the Borrower hereby covenants and undertakes with and
to the Working Capital Lender that, subject to any specific
agreement or arrangement for payments by the Borrower in relation
to each or all of the working Capital Facilities now or hereafter
subsisting between the Working Capital Lender and the Borrower,
the Borrower will on demand, pay to the Working Capital Lender:
(a) all sums of money in respect of the Working Capital
Facilities which are then due and payable to the Working
Capital Lender by the Borrower and whether as principal or
surety or which the Borrower is then liable to pay
28
-27-
to the Working Capital Lender anywhere or any account or
otherwise or in any manner whatsoever as provided in this
Agreement; and
(b) all other liabilities in respect of the Working Capital
Facilities which have accrued or become due and payable
then, including the balance for the time being owing for or
in respect of cheques, bills, notes, drafts or other
negotiable or non-negotiable instruments accepted, paid or
discounted for or on behalf of the Borrower or for any
other payments, credits or advances made to or for the use
or accommodation of or on behalf of the Borrower pursuant
to or in respect of or under any guarantee or letter of
credit given, established or opened by the Working Capital
Lender for the Borrower or in respect of any other
facilities whatsoever whether or not given upon or under
any trust receipts or other security whatsoever or
otherwise howsoever together with, in all cases aforesaid,
interest and fees at such rate as may from time to time be
fixed or determined by the Working Capital Lender (which
shall not be more than the relevant rate provided in Clause
7), such interest and fees to be charged and calculated on
a daily basis with monthly or such other periodic rests and
together also with commission, discount and other usual
bankers' charges (which shall not be more than the relevant
rate provided in Clause 7), such sums to be raised and paid
at the time and in the manner set out herein immediately
upon service on the Borrower of a demand for payment in
writing sent by the Working Capital Lender in the manner
provided in this Agreement.
6.1.2 If and when a demand is made for payment of all or any monies
agreed to be paid pursuant to this Agreement and/or the account
current or otherwise of the Borrower with the Working Capital
Lender shall be closed and a balance shall be owing to the Working
Capital Lender, the balance so owing shall be an overdue sum under
this Agreement and the Borrower will, so long as the same or any
part thereof shall remain owing pay to the Working Capital Lender
interest thereon in accordance with Clause 10.4.
7. PROVISIONS RELATION TO INTEREST, SECURITIES AND OTHERS
------------------------------------------------------
7.1 Interest
--------
7.1.1 In respect of the Working Capital Facilities, the Borrower hereby
expressly agrees and declares, subject to Clauses 7.2 and 7.3 and
any specific agreement or arrangement referred to in Clause 6.1.1,
that:
(a) the Working Capital Lender shall be at liberty without
thereby affecting its rights under this Agreement at any
time:
29
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(i) to vary the rate of interest and/or commission
payable for or in respect of any or all of its
Working Capital Facilities or any part thereof and
on serving a notice in writing on the Borrower to
this effect, such amended rate of interest and/or
commission shall be payable as from the date
specified in the said notice Provided that such
right shall only be exercisable by the Working
Capital Lender upon the occurrence of an Event of
Default or where such variation is made necessary as
a result of any statutory and/or regulatory
requirements imposed on the Borrower and/or the
Working Capital Lender;
(ii) to vary exchange or release any security held or to
be held by the Working Capital Lender for or on
account of the Working Capital Facilities or any
monies and liabilities owing under this Agreement or
any part thereof; and
(iii) to vary any credit to the Borrower and to renew
bills or promissory notes in any manner and to
compound with, give time for payment (except that
any such time given shall not extend beyond the
Working Capital Termination Date), accept
composition from and make any other arrangements
with any person or party liable to that Working
Capital Lender in respect of bills, rates or other
securities held or to be held by that Working
Capital Lender for its Working Capital Facilities or
any monies or liabilities owing under this Agreement
or any part thereof.
7.1.2 When the payment of any monies under any of the Working Capital
Facilities shall be secured to the Working Capital Lender by any
bill of exchange, promissory note, draft, receipt or other
instrument reserving a higher rate of interest to be paid in
respect thereof than that provided in Clause 7.2, such higher rate
of interest shall be payable in respect of such monies and nothing
contained in or to be implied by this Agreement shall affect the
right of the Working Capital Lender to enforce and recover payment
of such higher rate of interest.
7.2 Interest, Commission and Other Charges
--------------------------------------
The Working Capital Lender agrees with the Borrower (but without
affecting its rights under Clauses 6.1.2 and 7.1.2) that the rate
of interest, fees, commission and other charges payable by the
Borrower on each sub-facility of the Working Capital Facilities
utilised by the Borrower shall not exceed the rate specified in
Schedule 3 in respect of each sub-facility granted to the Borrower
under its Working Capital Facilities.
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7.3 Miscellaneous
-------------
7.3.1 The Working Capital Lender agrees that no Working Capital
Facilities may be canceled prior to the Working Capital
Termination Date otherwise than pursuant to Clauses 14 and 17.
8. DRAWDOWN
--------
8.1 Drawdown Conditions for Ringgit Advances
----------------------------------------
8.1.1 Subject to the provisions of this Agreement, Ringgit Advances will
be made by the Lending Banks to the Borrower at its request if the
following additional conditions are fulfilled:
(a) not later than 11:00 a.m. on the third Ringgit Business Day
before the proposed date of the relevant Ringgit Advance,
the Facility Agent has received:
(i) a notice substantially in the form set out in
Schedule 4 specifying (aa) the proposed ate of that
Ringgit Advance, which must be a Ringgit Business
Day falling on or before the Commitment Termination
Date and (bb) the amount of that Ringgit Advance,
which must be in multiples of RM100,000.00 subject
to a minimum of RM100,000.00 provided that the
aggregate of the Ringgit Advances made or to be made
under the TL I Facility shall not at any time exceed
the Available Ringgit Advances Commitment (TL I);
(ii) a certificate of work done issued by the
Contractor's architect in respect of Ringgit
Advances to be made under the TL I Facility;
(b) all representations and warranties in Clause 18 (except to
any extent waived in accordance with Clause 23.2) have been
complied with and would be correct in all respects if
repeated on this proposed date of that Ringgit Advance by
reference to the circumstances then existing;
(c) no Event of Default or Potential Event of Default has
occurred on or before the proposed date of that Ringgit
Advance, or will occur as a result of the making of that
Ringgit Advance, other than that waived in accordance with
Clause 23.2; and
(d) not later than 11:00 a.m. on the proposed date of that
Ringgit Advance, the Facility Agent and/or the Lending
Banks have received and found satisfactory such additional
information, legal opinions and/or other
31
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documents relevant in the context of or relating to this
Agreement as it or they may reasonably request.
8.1.2 The Facility Agent shall promptly notify the Lending Banks of the
proposed date of, the amount of, each Ringgit Advance.
8.1.3 Each Lending Bank shall participate in each Ringgit Advance made
pursuant to Clause 8.1.1 in respect of the TL I Facility in its
respective Proportion.
8.2 Drawdown Condition for Dollar Advances
--------------------------------------
8.2.1 Subject to the provisions of this Agreement and to the
availability of funds, Dollar Advances will be made by the Funding
Lender to the Borrower at its request if the following conditions
are fulfilled:
(a) not later than 11:00 a.m. on the third Dollar Business Day
before the proposed date of the relevant Dollar Advance,
the Facility Agent has received from the Borrower:
(i) a notice substantially in the form set out in
Schedule 5 specifying (aa) the proposed date of that
Dollar Advance, which must be a Dollar Business Day
falling on or before the Commitment Termination Date
and (bb) the amount of that Dollar Advance, which
must be in multiples of USD100,000.00 subject to a
minimum of USD100,000.00 Provided That the aggregate
of the Dollar Advances made to be made under the
Dollar Advances Facility shall not at any time
exceed the Available Dollar Advances Commitment (cc)
the Dollar Advance Interest Period selected by the
Borrower for such Dollar Advance Provided that if
the Borrower fails to select the Dollar Advance
Interest Period, the Funding Lender shall be at
liberty to select the Dollar Advance Interest
Period; and
(ii) original document verified by an independent
engineer/valuer acceptable to the Facility Agent or
other documents reasonably acceptable to the
Facility Agent confirming the purchase, value and
installation of machines and an independent opinion
from a consultant acceptable to the Facility Agent
confirming the date of installation of the machines
(if the machines have been installed) in writing, in
respect of Dollar Advances to be made under the
Dollar Advances Facility.
(b) all representations and warranties in Clause 18 (except to
any extent waived in accordance with Clause 23.2) have been
complied with and
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would be correct in all respects if repeated on the
proposed date of that Dollar Advance by reference to the
circumstances then existing;
(c) no Event of Default or Potential Event of Default has
occurred on or before the proposed date of that Dollar
Advance, other than that waived in accordance with Clause
23.2; and
8.2.2 The Facility Agent shall promptly notify the Funding
Lender of the proposed date of, and the amount of, each
Dollar Advance.
8.2.3 (a) Subject to Clause 8.2.3(b) hereof, all payments under the
Dollar Advances Facility for the purchase of new fixed
assets shall be made direct to the parties concerned against
relevant original documents evidencing the delivery and
installation thereof.
(b) Where the purchase price of the new fixed assets have
been paid by the Borrower directly to the vendors of such
fixed assets, the Funding Lender, upon receipt of the
original document by the Facility Agent and/or the Funding
Lender to evidence the delivery and installation of such
fixed assets and/or other documentary evidence satisfactory
to the Facility Agent and/or the Funding Lender that the
purchase price has been paid to the said vendors, will
reimburse the Borrower for such payments.
(c) The Facility Agent shall have custody or possession of
the original documents referred to in this Clause so long as
this Agreement remains in subsistence PROVIDED, however. the
Borrower may request the Facility Agent in writing and at its
own cost and expenses for the release of any one of such
original documents and the Facility Agent, acting on the
instructions of the Instructing Group, will only release such
original documents after the interest of the Beneficiaries
have been endorsed thereon.
8.3 Drawdown Conditions for Dollar RC Drawdown
------------------------------------------
8.3.1 Subject to the provisions of this Agreement and to the
availability of funds Dollar RC Drawdown will be made by the
Funding Lending to the Borrower at is request if the following
conditions are fulfilled:
(a) not later than 11:00 a.m. on the third Dollar Business Day
before the proposed date of the relevant Dollar RC
Drawdown, the Facility agent has received from the
Borrower:
(i) a notice substantially in the form set out in
Schedule 6 specifying (aa) the proposed date of that
Dollar RC Drawdown, which must be a Dollar Business
Day and (bb) the amount of the Dollar RC Drawdown
which must be in multiples of USD100,000.00 subject
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to a minimum of USD100,000.00. Provided that the
aggregate of the Dollar RC Drawdowns made or to be
made under the Dollar RC Facility shall not at any
time exceed the Available Dollar RC Commitment and
(cc) the Dollar RC Interest Period selected by the
Borrower for such Dollar RC Drawdown Provided that
if, the Borrower fails to select the Dollar RC
Interest Period, the Funding Lender shall be at
liberty to select the Dollar RC Interest Period for
that particular Dollar RC Drawdown; and
(ii) not later than 12:00 noon on the proposed date of
the relevant Dollar RC Drawdown, a duly executed and
stamped Promissory Note for the amounts of each
Dollar RC Drawdown;
(b) all representations and warranties in Clause 18(except to
any extent waived in accordance with Clause 23.2) have been
complied with and would be correct in all respects if
repeated on the proposed date of the Dollar RC Drawdown by
reference to the circumstances then existing;
(c) no Event of Default or Potential Event of Default has
occurred on or before the proposed date of that Dollar RC
Drawdown, other than that waived in accordance with Clause
23.2;
(d) not later than 11:00 a.m. on the proposed date of that
Dollar RC Drawdown, the Facility Agent and/or the Funding
Lender have received and found satisfactory such additional
information, legal opinions and/or other document relevant
in the context of or relating to this Agreement as it may
reasonably request.
8.3.2 The Facility Agent shall promptly notify that Funding Lender of
the proposed date of, and the amount of, each Dollar RC Drawdown.
9. REPAYMENT AND PREPAYMENT
------------------------
9.1 Repayment of Ringgit Advances
-----------------------------
9.1.1 The Borrower shall repay the Ringgit Advances made under the TL I
Facility by the thirty four (34) quarterly installments commencing
on the 21st month from the date of the first Ringgit Advance in
respect of the TL I Facility. The amount of each installment will
vary based on the aggregate of all Ringgit Advances made under the
TL I Facility Provided that after the Commitment Termination Date,
the amount of the remaining installments in respect of the TL I
Facility shall be fixed by the Facility Agent.
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9.2 Repayment of Dollar Advances
----------------------------
9.2.1 The Borrower shall repay the Dollar Advances made under the Dollar
Advances Facility by sixteen (16) quarterly installments
commencing on the 15th month from the date of the first Dollar
Advance. The amount of each installment will vary based on the
Dollar RC Loan provided that after the Commitment Termination
Date, the amount of the remaining installments will be fixed by
the Facility Agent.
9.2.2 The Facility Agent shall promptly notify the Borrower of the
amount of each installment payable by it under the Dollar Advances
Facility.
9.3 Repayment of Dollar RC Loan
---------------------------
9.3.1 The Borrower shall repay the principal amount of each Dollar RC
Drawdown on the Dollar RC Repayment Date unless the Borrower shall
have served on the Facility Agent not less than three (3) Dollar
Business Days, prior to the Dollar RC Repayment Date, a request to
rollover the principal amount of the Dollar RC Drawdown for a
period of one (1), three (3) or six (6) months and the Funding
Lender has agreed to the same in writing. If the Funding Lender
agrees to the request for a rollover, then the principal amount of
the Dollar RC Drawdown which is repayable on the Dollar RC
Repayment Date shall on the Dollar RC Repayment Date be rolled
over for the Dollar RC Rollover Period stipulated in such notice.
9.4 Prepayment of Ringgit Advances Facility
---------------------------------------
9.4.1 The Borrower may prepay the whole or any part of any Ringgit
Advance Provided That:
(a) it has given to the Facility Agent not less than thirty
(30) Ringgit Business Days' notice; and
(b) all prepayments shall not be for less than RM100,000.00 or
in integral multiples of RM100,000.00;
in default of which, the Borrower shall pay to the Facility Agent
for account of the Lending Banks a premium calculated at the rate
of zero point five per centum (0.5%) flat on amounts to be
prepaid.
9.4.2 Amounts prepaid shall be applied in the inverse order of maturity
and any amount prepaid cannot be re-borrowed by the Borrower.
35
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9.5 Prepayment of Dollar Advances Facility
--------------------------------------
9.5.1 The Borrower may prepay the whole or any part of any Dollar
Advance Provided That:
(a) it has given to the Facility Agent not less than
thirty (30) Dollar Business Days' notice in respect
of prepayment under the Dollar Advances Facility; and
(b) all prepayments shall not be for less than
USD100,000.00 or in integral multiples of
USD100,000.00;
in default of which, the Borrower shall pay to the Facility
Agent for the account of the Funding Lender a premium
calculated at zero point five per centum (0.5%) flat on
amounts to be prepaid.
9.5.2 Amounts prepaid shall be applied in the inverse order of
maturity and any amount prepaid cannot be re-borrowed by the
Borrower.
9.6 Prepayment of Dollar RC Facility
--------------------------------
9.6.1 The Borrower may prepay the whole or any part of any Dollar RC
Drawdown Provided That:
(a) it has given to the Facility Agent not less than
fourteen (14) Dollar Business Days' notice in respect
of prepayment under the Dollar RC Facility;
(b) all prepayments shall not be less than USD100,000.00
or in integral multiples of USD100,000.00; and
(c) each prepayment must be made on an Interest Payment
Date:
in default of which, the Borrower shall pay to the Facility
Agent for the account of the Funding Lender a premium
calculated at zero point five per centum (0.5%) flat on the
amounts to be prepaid.
9.6.2 The Borrower shall, upon demand, reimburse the Facility Agent
for all cost, expenses or other charges incurred by the
Facility Agent in the event of such prepayment.
9.7 Miscellaneous
-------------
9.7.1 Any notice of prepayment given by the Borrower under Clause
9.4.1 (a) or 9.5.1 (a) or 9.6.1 (a) will oblige the Borrower
to prepay in accordance with that notice.
36
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The Borrower may not repay or prepay all or any part of the
Ringgit Advances Outstandings or the Dollar Advances
Outstandings or the Dollar RC Loan except as expressly
provided in this Agreement and may not re-borrow any amount
repaid or prepaid.
10. INTEREST
10.1 Interest Rates and Interest Period
----------------------------------
10.1.1 Interest at the Relevant Applicable Rate shall accrue from day
to day and shall be calculated on each Ringgit Advance on the
basis of a year of 365 days for the actual number of days
elapsed and shall exclude the day of which interest is paid.
Interest shall be paid on the relevant Interest Payment Date.
10.1.2 Interest at the Relevant Applicable Rate shall accrue from day
to day and shall be calculated on each Dollar Advance made
under the Dollar Advance Facility on the basis of a year of
360 days for the actual number of days elapsed and shall
exclude the day on which the interest is paid. Interest shall
be paid on the relevant Interest Payment Date.
10.1.3 Interest at the Relevant Applicable Rate shall accrue from day
to day and shall be calculated on each Dollar RC Drawdown made
under the Dollar RC Facility on the basis of a year of 360
days for the actual number of days elapsed and shall exclude
the day on which interest is paid. Interest shall be paid on
the relevant Interest Payment Date.
10.2 Notification of Interest Rates
------------------------------
10.2.1 Each of the Lending Bank shall promptly notify the Facility
Agent of its rate of interest.
10.2.2 The Funding Lender shall promptly notify the Facility Agent of
its rate of interest.
10.2.3 The Facility Agent shall promptly notify the Borrower of each
rate of interest notified to the Facility Agent by the
relevant Lender pursuant to Clause 10.2.1 and 10.2.2.
10.3 Payment of Interest
-------------------
10.3.1 Subject as otherwise provided in this Agreement, on each
Interest Payment Date relating to a Ringgit Advance, the
Borrower shall pay to the Facility Agent for the account of
the Lending Banks the unpaid interest accrued during the
relevant TL I Interest Period, on that Ringgit Advance at the
Relevant Applicable Rate.
37
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10.3.2 Subject as otherwise provided in this Agreement, on each
Interest Payment Date relating to a Dollar Advance made under
the Dollar Advance Facility, the Borrower shall pay to the
Facility Agent for the account of the Funding Lender the
unpaid interest accrued during that Dollar Advance Interest
Period on that Dollar Advance at the Relevant Applicable Rate.
10.3.3 Subject as otherwise provided in this Agreement, on each
Dollar RC Interest Payment Date relating to a Dollar RC
Drawdown made under the Dollar RC Facility, the Borrower shall
pay to the Facility Agent for the account of the Funding
Lender the unpaid interest accrued during that Dollar RC
Interest Period on that Dollar RC Drawdown at the Relevant
Applicable Rate.
10.4 Default Interest
----------------
10.4.1 If the Borrower does not pay any sum payable under this
Agreement (including, without limitation, any sum payable
under this Clause) when due, it shall pay interest, in the
same currency as that in which that overdue sum is payable, on
the amount from time to time outstanding in respect of that
overdue sum for the period beginning on the 11th day after its
due date and ending on the date of its receipt by the Facility
Agent or the relevant Lender (both before and after judgment
and notwithstanding the termination of any banker and customer
relationship) in accordance with this Clause. For the purpose
of this Clause, if any payment is received by the Facility
Agent on the due date, but after the term required and too
late to be made available by the Facility Agent on that due
date to the Lender(s) entitled to it, that payment shall be
deemed to be received on the next Ringgit Business Day or the
Dollar Business Day, as the case may be.
10.4.2 Interest under this Clause shall be calculated by reference to
successive Interest Periods, each of which (other than the
first, which shall begin on the 11th day after its due date)
shall begin on the last day of the previous one. Each such
Interest Period shall be of one month or such other period as
the Facility Agent may from time to time select and the rate
of interest payable on each person's share of that overdue sum
for all or any part of a particular Interest Period shall be
the rate per annum (as quoted by that person to the Facility
Agent) equal to the sum of the Default Rate, the Margin and
the cost (as certified by that person and expressed as a rate
per annum) to that person (including the cost occasioned by or
attributable to complying with reserves, liquidity, deposit or
other requirements imposed on that person by such relevant
authority or authorities) of funding its share of that overdue
sum, in the currency in which it is payable, for that Interest
Period by whatever means it determines to be appropriate.
In this sub-Clause 10.4.2 "Default Rate" means one per centum
(1.0%) per annum or such other relevant rate not exceeding the
maximum interest rate imposed by Bank Negara Malaysia from
time to time.
38
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10.4.3 Each Lender to whom any default interest is payable under this
Agreement shall promptly notify the Borrower and the Facility
Agent of each rate of interest determined in accordance with
Clause 10.4.2.
10.5 Variation of Interest Rate/Commission
-------------------------------------
Each of the Lenders reserve the right to vary from time to
time and at its absolute discretion, the interest and/or
commission payable by the Borrower to that Lender under this
Agreement Provided that such right shall only be exercisable
by that Lender upon the occurrence of an Event of Default or
where such variation is made necessary as a result of any
statutory and/or regulatory requirements imposed on the
Borrower and/or the Lenders.
11. FEES
----
11.1 Participation Fee
-----------------
11.1.1 Upon the execution of this Agreement, the Borrower shall pay
to the Facility Agent for the account of the Lenders a
participation fee of USD55,000.00.
11.1.2 On receipt of the participation fee, the Facility Agent shall
pay to each Lender, its share of the participation fee in the
amount already agreed between the Facility Agent and that
Lender.
11.2 Commitment Fees
---------------
11.2.1 The Borrower shall pay to the Lending Banks a commitment fee
at the rate of zero point two five per centum (0.25%) per
annum on the account of the Available Ringgit Advances
Commitment based on the drawdown schedule for the TL I
Facility and ending on the Commitment Termination Date. Such
drawdown schedules shall be agreed upon by the Facility Agent
and the Borrower on or before the execution of this Agreement
and shall be annexed hereto as Schedule 10. The Ringgit
Advances commitment fees shall be payable from the date of
this Agreement to the earlier of he Commitment Termination
Date or the date on which the Available Ringgit Advances
Commitment first equals zero.
11.2.2 The Borrower shall pay to the Funding Lender a commitment fee
at the rate of zero point two five per centum (0.25%) per
annum on the account of the Available Dollar Advances
Commitment based on the drawdown schedule for the Dollar
Advances Facility and ending on the Commitment Termination
Date. Such drawdown schedule shall be agreed upon by the
Facility Agent and the Borrower on or before the execution of
this Agreement and shall be annexed hereto as Schedule 10. The
Dollar Advances commitment fee shall be payable
39
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from the date of this Agreement to the earlier of the
Commitment Termination Date or the date on which the Available
Dollar Advances Commitment first equals zero.
11.2.3 The Borrower shall pay to the Funding Lender a commitment fee
at the rate of zero point two five per centum (0.25%) per
annum on the Available Dollar RC Commitment from day to day
during the period beginning on the date of this Agreement and
ending on the Commitment Termination Date. The Dollar RC
commitment fee shall be payable from the date of this
Agreement and on the earlier of the Commitment Termination
Date and the date on which the Available RC Commitment first
equals zero.
12. INDEMNITIES
-----------
12.1 Miscellaneous Indemnities
-------------------------
The Borrower shall on demand indemnity the Facility Agent, the
Security Agent, the Arranger and the Lenders against any
funding or other cost, loss (including loss of Margin),
expense or liability sustained or incurred by it as a result
of:
(a) any Ringgit Advance not being made by reason of
non-fulfillment of any of the conditions in Clause
3.2.1 or the Borrower purporting to revoke the notice
requesting a Ringgit Advance.
(b) a Dollar Advance not being made by reason of
non-fulfillment of any of the conditions in Clause
3.3.1 or the Borrower purporting to revoke a notice
requesting a Dollar Advance.
(c) a Dollar RC Drawdown not being made by reason of
non-fulfillment of any of the conditions in Clause
3.4.1 or the Borrower purporting to revoke a notice
requesting for a Dollar RC Drawdown.
(d) the occurrence or continuance of any Event of Default
or Potential Event of Default.
(e) the receipt of recovery by any Lender (or the
Facility Agent on its behalf) of all or any part of
its Outstandings otherwise than on the last day of an
Interest Period or the receipt or recovery by any
Lender (or the Facility Agent on its behalf) of all
or any part of an overdue sum otherwise than on the
last day of an Interest Period relating to that
overdue sum.
12.2 Broken Funding Costs
--------------------
In the case of sub-Clause 12.1(a), (b), (c) and (e) above, the
amount payable shall in any event include the amount (if any)
by which:
40
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(a) the amount of interest which the relevant person is
able to obtain by placing an amount equal to its
share of the relevant Ringgit Advance, or overdue sum
payable in Ringgit on deposit in the Kuala Lumpur
inter-bank market or, as the case may be, the
relevant Dollar Advance or the relevant Dollar RC
Drawdown or respective overdue sum payable in Dollars
on deposit in the inter-bank market, for the
remainder of the relevant Interest Period, as soon as
reasonably practicable after it becomes aware that
the relevant Ringgit Advance or Dollar Advance or
Dollar RC Drawdown is not being made or (as the case
may be) of the relevant receipt or recovery;
is less than:
(b) the amount of interest which, in accordance with the
expressed terms of this Agreement, would otherwise be
payable to that person on the Ringgit Advance or, as
the case may be, the Dollar Advance or, as the case
may be, the Dollar RC Drawdown for its first Interest
Period or on the relevant amount so received or
recovered for the remainder of the relevant Interest
Period.
12.3 Currency Indemnity
------------------
12.3.1 Any amount received or recovered by any part to this Agreement
(other than the Borrower) in respect of any sum expressed to
be due to it from the Borrower under or in connection with
this Agreement or any other Security Documents in a currency
(such currency being referred to as the "Relevant Currency")
other than the currency in which such sum is expressed to be
due under this Agreement or any other Security Document (such
currency being referred to as the "Currency of Account")
whether as a result of, or of the enforcement of, a judgment
or order of court or tribunal of any jurisdiction, in the
dissolution of the Borrower or otherwise, shall only
constitute a discharge to the Borrower to the extent of the
amount in the Currency of Account which the recipient is able,
in accordance with its usual practice, to purchase with the
amount of the Relevant Currency so received or recovered on
the date of that receipt or recovery (of, if it is not
practicable to make that purchase on that date, on the first
date on which it is practicable to do so).
12.3.2 If that amount in the Currency of Account is less than the
amount of the Currency of Account due to the recipient under
or in connection with this Agreement or any other Security
Document, the Borrower shall indemnify it against any loss
sustained by it as a result. In any event, the Borrower shall
indemnify the recipient against the cost of making any such
purchase. For the purpose of this sub-clause 12.3, it will be
sufficient for the recipient to demonstrate that it would have
suffered a loss had an actual exchange or purchase taken
place.
41
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12.4 Indemnities Separate
--------------------
Each of the indemnities in this Agreement constitute a
separate and independent obligation from the other obligations
in this Agreement, shall give rise to a separate and
independent cause of action, shall apply irrespective of any
indulgence granted by the Arranger, the Facility Agent, the
Security Agent and/or any Lender and shall continue in full
force and effect despite any judgment, order, claim or proof
for a liquidated amount in respect of any sum due under this
Agreement or any other judgment or other.
13. TAXES
-----
13.1 Payments to be Free and Clear
-----------------------------
All sums payable by the Borrower under this Agreement shall be
paid (i) free of any restriction or conditions, (ii) free and
clear of and (except to the extent required by law) without
any deduction or withholding for or on account of any tax and
(iii) without deduction or withholding (except to the extent
required by law) on account of any other amount, whether by
way of set-off or otherwise.
13.2 Grossing-up of Payments
-----------------------
13.2.1 If the Borrower or any other person (whether or not a party
to, or on behalf of a party to, this Agreement) must at any
time deduct or withhold any tax or other amount from any sum
paid on payable by, or received or receivable from, the
Borrower under this Agreement, the Borrower shall pay such
additional amount as is necessary to ensure that the Facility
Agent, the Security Agent or the relevant Lender, as the case
may be, to which that sum is due receives on the due date and
retains (free from any liability other than tax on its own
overall net income) a net sum equal to what it would have
received and so retained had not such deduction or withholding
been required or made.
13.2.2 If the Borrower or any other person (whether or not a party
to, or on behalf of a party to, this Agreement) must at any
time pay any tax or other amount on, or calculated by
reference to, any sum received or receivable by the Facility
Agent, the Security Agent or any lender, as the case may be,
under this Agreement (except for a payment by the Facility
Agent, the security Agent or a Lender of tax on its own
overall net income), the Borrower shall pay or procure the
payment of that tax or other amount before any interest or
penalty becomes payable or, if that tax or other amount is
payable and paid by the Facility Agent, the Security Agent or
any Lender shall reimburse it on demand for the amount paid by
it.
12.2.3 Within thirty (30) Ringgit Business Days after paying any sum
from which it is required by law to make any deduction or
withholding, and within thirty (30)
42
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Ringgit Business Days after the due date of payment of any tax
or other amount which it is required by Clause 13.2.2 to pay,
the Borrower shall deliver to the Facility Agent evidence
satisfactory to the Facility Agent, the Security Agent or the
relevant Lender, as the case may be, of that deduction,
withholding or payment and (where remittance is required) of
the remittance thereof to the relevant taxing or other
authority.
14. CHANGES IN CIRCUMSTANCES
------------------------
14.1 Illegality
----------
14.1.1 If at any time any Lender determines that it is or will become
unlawful or contrary to any directive of any agency of any
state for it to allow all or part of its Lender's Commitment
to remain outstanding, to make, fund or allow to remain
outstanding all or part of its Outstanding Amount and/or to
carry out all or any of its other obligations under this
Agreement, upon that Lender notifying the Facility Agent and
the Borrower.
(a) its Lender's Commitment or the relevant part thereof,
shall be cancelled; and
(b) the Borrower shall:
(i) prepay that Lender's Outstanding Amount, or
the relevant part thereof, on such date as
that Lender shall certify to be necessary to
comply with the relevant law or directive
with all unpaid accrued interest thereon,
all unpaid fees accrued to that Lender and
any other sum then due to that Lender under
Clause 12.1 or any other provision of this
Agreement; and/or
(ii) (if that Lender is a Working Capital Lender
and a part of the Lender's Outstanding
Amount, or a relevant part thereof, comprise
its Working Capital Outstanding Amount which
include any contingent liabilities of that
Lender) pay to the Facility Agent for the
account of that Lender an amount equal to
the aggregate of the amounts of the
contingent liabilities of that Lender
comprised in its Working Capital Outstanding
Amount (which shall be held by the Facility
Agent for the account of the Working Capital
Lender and applied towards the discharge of
the obligations of the Borrower to the
Working Capital Lender under or in
connection with this Agreement and shall
only be released to the Borrower as and when
and to the extent that the maximum
contingent liability of the Borrower to the
Working Capital Lender under this Agreement
is reduced) and shall pay any sum then due
from the
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Borrower to the Working Capital Lender in
relations to its Working Capital Facilities.
14.2 Increased Costs
---------------
14.2.1 If the Facility Agent or (as the case may be) any Lender
determines that, as a result of (a) the introduction of or any
change in, or in the interpretation or application of, any law
(which shall for this purpose include any removal or
modification or any exemption currently in force in favor of
the Borrower) or (b) compliance by the Facility Agent or that
Lender with any directive any agency of any state (including,
without limitation, a directive which affects the manner in
which that Lender allocates capital resources to its
obligations under this Agreement or any Working Capital
Facilities granted by it to the Borrower):
(i) the cost to that Lender of maintaining all or any
part of its Lender's Commitment and/or of making,
maintaining or funding all or any part of its
Lender's Outstanding Amount or any overdue sum is
increased; and/or
(ii) any sum received or receivable by the Facility Agent
or (as the case may be) that Lender under this
Agreement or the effective return to it under this
Agreement or any Working Capital Facilities granted
by it to the Borrower or the overall return on its
capital is reduced (except on account of tax on its
overall net income); and/or
(iii) the Facility Agent or (as the case may be) that
Lender makes any payment (except on account of tax on
its overall net income) or forgoes any interest or
other return on or calculated by reference to the
amount of any sum received or receivable by it under
this Agreement;
the Borrower shall indemnify the Facility Agent or (as the
case may be) that Lender against that increased cost,
reduction, payment or forgone interest or other return (except
to the extent that if results from a deduction or withholding
of tax) and, accordingly, shall from time to time on demand
(whenever made) pay to the Facility Agent for its own account
or (as the case may be) for the account of that Lender the
amount certified by it to be necessary so to indemnify it.
Under this Clause 14.2.1, a Lender shall be entitled to claim
interest or other return directly attributable to this
Agreement, its Lender's Commitment, its Lender's Outstanding
Amount or its share of any overdue sum, but also for that
proportion of any cost, reduction, payment or forgone interest
or other return which that Lender determines to be allocable
to this Agreement, its Lender's Commitment, its Outstanding
Amount or its share of any overdue sum in relation to any law
or directive applicable to that Lender or affecting the
conduct of that Lender's business or a type of business or the
manner in which or the extent to which that Lender allocates
capital resources.
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15. PAYMENTS
--------
15.1 Ringgit Advances
----------------
15.1.1 On each date on which a Ringgit Advance under the TL I
Facility is to be made, each Lending Bank shall make its
Proportion of that Ringgit Advance available to the Borrower
in Ringgit, in immediately available and freely transferable
funds to the account of the Borrower with such bank in Kuala
Lumpur or Kuching as the Borrower shall have specified in the
notice requiring that Ringgit Advance. Each of the Lending
Bank shall promptly notify the Facility Agent upon making such
Ringgit Advance.
15.1.2 On each date on which any sum is due from the Borrower to each
Lending Bank under this Agreement in Ringgit, it shall make
that sum available to that Lending Bank, by payment in
Ringgit, in immediately available and freely transferable
funds to the account of the Lending Bank with such bank in
Kuala Lumpur or Kuching as the Lending Bank shall have
designated to it for this purpose. Each Lending Bank shall
promptly notify the Facility Agent upon receipt of any such
sum from the Borrower.
15.2 Dollar Advances
---------------
15.2.1 On each date on which a Dollar Advance is to be made, the
Funding Lender shall make that Dollar Advance available to the
Borrower, and on each date on which any sum is due to the
Funding Lender from the Borrower in US Dollars it shall make
that sum available to the Funding Lender, by payment in US
Dollars and in funds which are for same day settlement to the
Account of the Borrower with BBMB, Kuala Lumpur Branch.
15.3 Dollar RC Drawdown
------------------
15.3.1 On each date on which a Dollar RC Drawdown is to be made, the
Funding Lender shall make that Dollar RC Drawdown available to
the Borrower, and on each date on which any sum is due to the
Funding Lender from the Borrower in US Dollars it shall make
that sum available to the Funding Lender, by payment in US
Dollars and in fund which are for same day settlement to the
account of the Borrower with BBMB, Kuala Lumpur Branch.
15.4 Distribution to Lenders, Agents
-------------------------------
15.4.1 The Facility Agent shall make available to each Lender (other
than the Funding Lender) before close of business in Kuala
Lumpur on that date its pro rata share (if any) of any sum in
Ringgit so received or recovered by the Facility Agent from
the Borrower in the same currency and funds as received by the
Facility Agent to such account of that Lender with such bank
in Kuala Lumpur as it shall have designated to the Facility
Agent for that purpose. If any sum is received by
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the Facility Agent from the Borrower later than 11:00 a.m. on
its due date, the Facility Agent shall make each Lender's
share (if any) available to it as soon as practicable
thereafter.
15.4.2 The Facility Agent shall make available to the Funding Lender
before close of business in Singapore on that date any sum in
US Dollars so received by the Facility Agent from the Borrower
in the same currency and funds as received by the Facility
Agent to such account of the Funding Lender with such bank in
Kuala Lumpur as it shall have designated to the Facility Agent
for that purpose. If any sum is received by the Agent from the
Borrower later than 11:00 a.m. (local time in Singapore), the
Facility Agent shall make available to it the said sum in US
Dollars as soon as practicable thereafter.
15.5 Order or Distribution
---------------------
If the amount received by the Facility Agent from the Borrower
for the account of the Lenders on any date is less than the
total sum remaining and/or becoming due to the Lenders under
this Agreement on that date, the Facility Agent shall apply
that amount tin or towards payment of the following sums in
the following order:
(a) first, any sum then due to the Facility Agent in its
capacity as such; and
(b) secondly, in or towards payment pro rata of any sums
then due to the Lender (or any of them).
Any such applications shall override any purported
appropriation by any person.
15.6 Refunding of Payments
---------------------
The Facility Agent shall not be obliged to (but may) make
available to any person any sum which it is expecting to
receive for the account of that person until it has been able
to establish that it has received that sum. Howsoever, it may
do so if it wishes. If and to the extent that it does so but
it transpires that it has not then received the sum which it
paid out:
(a) the person to whom the Facility Agent made that sum
available shall on request refund it to the Facility
Agent; and
(b) that person or (at the option of the Facility Agent)
the person by whom that such should have been made
available shall on request pay to the Facility Agent
the amount (as certified by the Facility Agent) which
will indemnify the Facility agent against any funding
or other cost, loss expense or liability sustained or
incurred by it as a result of paying out that sum
before receiving it but without prejudice to the
rights of any party hereto against such defaulting
party.
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15.7 Non-Business Days
-----------------
15.7.1 If any Interest Payment Date or any other repayment date,
(each such date hereinafter referred to as a "Relevant Date")
would otherwise fall on a day which is not a Ringgit Business
Day or, as the case may, a Dollar Business Day, it shall
instead fall on the next Ringgit business Day or, as the case
may be, Dollar Business Day in the same calendar month (if
there is one) or the preceding Ringgit Business Day, or as the
case may be, Dollar Business Day (if there is not).
15.7.2 Any payment to be made by the Borrower on a day which is not a
Relevant Date and which would otherwise be due on a day which
is not a Ringgit Business Day or, as the case may be, a Dollar
Business Day shall instead be due on the next Ringgit Business
Day or, as the case may be, Dollar Business Day.
16. SECURITY
--------
16.1 For the consideration aforesaid and for better securing the
repayment by the Borrower of the moneys due and payable or
hereafter due and payable under the Facilities respective
interest thereon and all other moneys hereby agreed to be paid
under this Agreement and the other Security Documents the
Borrower hereby agrees that the Facilities shall be secured
against the Security Documents.
16.2 The Borrower hereby warrants, represents and declares that
there is not mortgage charge pledge or lien or any encumbrance
over the assets secured under the Security Documents or any
part thereof and:
(a) The Borrower shall not have power to create any
subsequent assignment mortgage charge pledge lien or
encumbrance in respect of the assets secured under
the Security Documents or any part thereof without
the prior written consent of the Security Agent and
the Lenders, such consent shall not be unreasonably
withheld by the Security Agent and the Lenders;
(b) This Agreement shall be without prejudice to any
security already given by the Borrower to the
Security Agent and the Lenders whether the same be
for securing repayment of the principal sums and
interest hereby secured or any part hereof or any
other moneys and whether such security is taken as
additional or collateral security or otherwise
howsoever.
16.3 The Borrower shall at the request of the Lenders and at the
cost and expense of the Borrower charge or deposit with the
Security Agent all documents of title of any or all immovable
and movable properties vested in the Borrower for any tenure
save for future assets and properties of the Borrower which
are excluded in accordance with the provisions in the
Debenture. Such charge or deposit shall be
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by way of security for the repayment of the principal sum of
the Facilities respective interest thereon and all other
monies covenanted to be paid herein and in the Security
Documents.
16.4 The security created by the Security Documents is and shall be
a continuing security for all moneys whatsoever now or
hereafter from time to time owing to the Facility Agent,
Security Agent and the Lenders by the Borrower whether alone
or jointly and severally with another or others and whether as
principal or surety notwithstanding that the Borrower may at
any time or times cease to be indebted to any of them for any
period or periods and notwithstanding any settlement of
account or accounts or otherwise.
17. EVENTS OF DEFAULT
-----------------
17.1 Upon the occurrences of any of the following events:
17.1.1 the Borrower fails to pay any sum payable by it under
any of the Security Documents within ten (10) days
after the same has become due; or
17.1.2 the Borrower commits any breach of any other
provision of the Security Documents, and such breach
(if capable of remedy) is not remedied within thirty
(30) days of notification of such breach by the
Facility Agent; or
17.1.3 any representation or warranty made or deemed to be
made or repeated by the Borrower in or pursuant to
the Security Documents is or proves to have been
untrue or incorrect in any material and adverse
respect when made or when deemed to be repeated with
reference to the facts and circumstances existing at
such time; or
17.1.4 an encumbrancer takes possession over the undertaking
assets rights or revenues of the Borrower or a
distress or other process is lifted or enforced upon
any such assets rights or revenues and any such
action is not lifted or discharged within fourteen
(14) days or in the opinion of the Facility Agent
(acting on the instructions of an Instructing Group)
is not bona fide challenged by the Borrower in the
appropriate court within seven (7) days of such
possession or distress or enforcement; or
17.1.5 a petition is presented or an order is made or a
resolution is passed for the winding up or
dissolution of the Borrower or Corporate Guarantor;
or
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17.1.6 any of the Security Documents is or becomes or is
alleged to be unlawful or unenforceable in any
material and adverse respect; or
17.1.7 any requisite Consent for the borrowing of the
Facilities is withdrawn or revoked or expires or is
modified or made subject to any condition which may
have a materials adverse effect on the Borrower; or
17.1.8 any other event or series of events or any
circumstances whether related or not (including but
without limitation any adverse change in the assets
or financial condition of the Borrower and/or
Corporate Guarantor) occurs or arises which, in the
opinion of the Facility Agent (acting on the
instructions of the Instructing Group, may/would (be
likely to) have a material adverse effect on the
Borrower or its ability or willingness to perform or
comply with any of its obligations under the Security
Documents; or
17.1.9 the transfer of the Land in favor of the Borrower is
not executed within seven (7) days from the date of
written request by the Security Agent or is not
registered for any reason whatsoever resulting in the
non-registration of the Charge; or
17.1.10 the Borrower fails and/or neglects to execute the
transfer of the Land as transferers; or
17.1.11 the Borrower breaches any term or condition of the
Land Letter of Offer and Acceptance; or
17.1.12 the Borrower fails to obtain the necessary Consent
for the transfer of the land to the Borrower and/or
the Charge; or
17.1.13 the Land Letter of Offer and Acceptance is revoked
for any reason whatsoever; or
17.1.14 the Corporate Guarantor ceases to be the major
shareholder of the Borrower; or
17.1.15 the Corporate Guarantor and/or the Borrower ceases or
threatens to cease to carry on its business; or
17.1.16 any other indebtedness of the Borrower in respect of
borrowed money is or is declared to be or is capable
of being rendered due and payable before its normal
maturity by reason of actual or potential default and
in the reasonable opinion of the Facility Agent
(acting on the instructions of the Instructing Group)
may/would (be likely to) have a adverse effect on the
Borrower or
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its ability or willingness to perform or comply with
any of its obligations under any of the Security
Documents; or
then and in any such event and at any time thereafter if such
event is continuing the Facility Agent may by notice to the
Borrower declare that the Facilities shall be cancelled and
the Lender's Outstanding Amounts have become immediately due
and repayable, whereupon the Borrower shall forthwith repay
the same together with all interest accrued and all other sums
payable under the Security Documents. A demand for repayment
of the Lenders Outstanding Amounts may be made by notice in
writing from the Facility Agent to the Borrower demanding
payment of the same within seven (7) Ringgit Business Days or,
as the case may be, seven (7) Dollar Business Days or, as the
case may be, seven (7) Dollar Business Days, from the date of
such notice.
18. REPRESENTATIONS AND WARRANTIES
------------------------------
18.1 Representation and Warranties
-----------------------------
The Borrower represents and warrants to the Beneficiaries as
at the date hereof and shall be deemed to represent at each
date of drawdown, as follows:
18.1.1 the execution of the Security Documents is a valid
and legally binding obligation on the Borrower
enforceable in accordance with the terms therein;
18.1.2 the execution of the Corporate Guarantee by the
Corporate Guarantor is valid and legally binding
obligation on the Corporate Guarantor enforceable in
accordance with the terms therein;
18.1.3 the execution delivery and performance of the
Security Documents and the use of the Facilities do
not and will not:
(a) contravene any law regulation directive
judgment or order to which the Borrower
and/or the Corporate Guarantor is subject;
or;
(b) result in any actual or potential breach of
or default under any obligation agreement
instrument or Consent to which the Borrower
and/or the Corporate Guarantor is a party or
by which it is bound;
18.1.4 no litigation arbitration or administrative or
winding up proceeding and without limitation no
dispute with any statutory or governmental authority
is pending or to the Borrower's knowledge
50
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threatened against it or any of its assets which
might/would be likely to have a material adverse
effect on the Borrower (having regard to all its
other obligations);
18.1.5 no Event of Default or Potential Event of Default has
occurred and is continuing;
18.1.6 the Borrower is not in default in the payment of any
due and payable taxes or in the filing registration
or recording of any document or under any legal or
statutory obligation or requirement which default
might/would be likely to have a material adverse
effect on the Borrower;
18.1.7 the Borrower will not nor would it, with the giving
of notice or lapse of time or any certificate or the
making of any determination or any combination
thereof be in breach of or in default under any
agreement relating to any indebtedness to which it is
a party or by which it is bound which might/would
have a material adverse effect on the Borrower
(having regard to all its other obligations);
18.1.8 all Consents necessary or appropriate for the
execution, delivery and performance of the Security
Documents and the grant of and use of the Facilities
have been obtained and complied with and the same are
in full force and effect;
18.1.9 all factual information supplied by the Borrower to
the Facility Agent in contemplation or for the
purpose of this Agreement, was true and accurate in
all material respects as at its date and not
misleading; and such information did not omit
anything, nor since the date of such information has
anything occurred, which renders that information
untrue or misleading in any material respect or
which, if disclosed, might/would (be likely to)
adversely affect the reasonable decision of a person
considering whether to enter into this Agreement; and
all projections and statements of belief and opinion
given by the Borrower to the Facility Agent were made
honestly and in good faith after due and careful
inquiry and remain valid;
18.1.10 Section 62 of BAFIA would not be contravened upon the
granting of the Facilities by the Lenders;
18.1.11 The Land Letter of Offer and Acceptance has been duly
accepted by the Borrower;
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18.1.12 The Land Letter of Offer and Acceptance is still
valid and binding on the Borrower.
19. COVENANTS
---------
19.1 Particular Covenants
--------------------
The Borrower hereby expressly covenants with the Beneficiaries
that at all times during the continuance of this Agreement and
so long as any principal sums under the Facilities so utilised
and interest and any monies payable under this Agreement or
other Security Documents shall remain unpaid:
19.1.1 it will ensure that its obligations under this
Agreement and the other Security Documents shall at
all times rank ahead of all its other present and
future liabilities to any other third party or
parties (with the exception of any obligations which
are mandatorily preferred by law and not by
contract);
19.1.2 it will obtain, maintain in full force and effect and
comply with all Consents and any conditions thereof
necessary (or appropriate) for the execution delivery
and performance of this Agreement and the other
Security Documents and the use of the Facilities;
19.1.3 it will promptly inform the Facility Agent, forthwith
upon becoming aware of the same, of any occurrence or
circumstance of which it becomes aware which
might/would be likely to adversely affect its ability
to perform its obligations under the Security
Documents and of any Event of Default or Potential
Event of Default;
19.1.4 it will punctually pay all interests payable on its
relevant Interest Payment Dates and any other sums
owing under any of the Security Documents;
19.1.5 it will furnish to the Facility Agent all information
as the Facility Agent shall reasonably request
concerning the use of the Facilities and on any
factors partially affecting the financial condition
of the Borrower;
19.1.6 it will promptly inform and keep the Facility Agent
informed of any legal proceedings litigation claims
of a
52
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material nature involving the Borrower which would
have a material adverse effect on its assets or
financial condition or its ability to observe or
perform its obligations under the Security Documents;
19.1.7 it will observe and perform all terms and conditions
of the Land Letter or Offer and Acceptance and will
make all necessary payments pursuant to the said
letter;
19.1.8 it will execute all documents, undertake all acts
necessary to effect a transfer of the land in favor
of the Borrower and the Charge;
19.1.9 it will procure the delivery of the relevant issue
document of title to the Land when issued, the said
transfer and all other necessary documents to effect
the transfer of the Land in favor of the Borrower to
the Security Agent or its solicitors;
19.1.10 it will inform the Security Agent as regards the
progress in the issuance of the separate document of
title to the Land and inform the Security Agent in
respect of all matters relating to the Land;
19.1.11 it will ensure that there is no material change in
the nature of its business;
19.1.12 it will not make any repayments in respect of the
Shareholders Loan;
19.1.13 it will convert the Shareholders Loan to paid-up
capital on acquisition of the new plant and
machinery;
19.1.14 it will maintain its debt : equity ratio to at least
3 : 1. For the purpose of this paragraph, equity
shall include loans from its shareholders;
19.1.15 it will procure its shareholders to meet any cost
overrun and at the request of the Facility Agent
procure documentary evidence in this respect;
19.1.16 it will pay or procured to be paid punctually, in
accordance with all proper demands for payment, all
sums due or to become due under the construction
contract in respect of the factory on the Land and
all other costs relating thereto,
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duly comply with all its obligations and take all
reasonable steps to assume that other parties comply
with their respective obligations under the said
contract;
19.1.17 it will at all times comply with all applicable laws
or directives and any conditions of any consent
relating to the construction of the factory on the
Land and maintain in full force and effect such
consents and if required, apply for all consent;
19.1.18 it will supply a copy of the said construction
contract to the Security Agent;
19.1.19 it will allow the Security Agent and its agents and
employees (subject to prior appointment) access from
time to time to the Land and for the purpose of
carrying out an inspection and review thereof, cause
its agents or employees to give their full
co-operation on any such inspection and all and any
reasonable expenses incurred by the Security Agent in
connection with such inspection shall be borne by the
Borrower (save and except for expenses incurred in
respect of post sanction visits which will be borne
by the respective Lenders);
19.1.20 it will maintain in full force and effect all
Consents;
19.1.21 it will promptly inform the Security Agent on receipt
of any notice from the relevant land authority; and
19.1.22 it will at all times comply with all terms and
conditions of the manufacturing license issued in
connection with the Borrower's manufacturing
activities.
19.2 Restrictive Covenants
---------------------
The Borrower hereby covenants with the Beneficiaries that
during the continuance of this Agreement it will not without
the consent of the Facility Agent (acting on the instructions
of the Instructing Group) in writing first had and obtained,
such consent shall not be unreasonably withheld:
19.2.1 create or permit to subsist any encumbrance over all
or any of its present or future revenues or assets,
charged under any of the Security Documents, such
consent not to be unreasonably withheld by the
Facility Agent;
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19.2.2 make any loans or grant any credit or give any
guarantee or indemnity to or for the benefit or any
person or otherwise voluntarily assume any liability,
whether actual or contingent, in respect of any
obligation or any other person, otherwise than in the
ordinary courses of its business and/or in accordance
with schemes approved by the Borrower for its
employees;
19.2.3 (disregarding disposals in the ordinary course of
business) sell, lease, transfer or otherwise dispose
of, by one or more transactions or series of
transactions (whether related or not), the whole or
any part of its revenues or its assets unless such
sale is in respect of non material items disposed of
on an arms length basis;
19.2.4 declare any dividends or any other distribution of
profits (whether in cash, specie or otherwise) within
the first three (3) years from the date of this
Agreement. Thereafter the Borrower without prior
permission shall be entitled to declare dividends
PROVIDED that such payment of dividends shall not
exceed 15% of the Borrower's retained earnings in any
one financial year;
19.2.5 vary, cancel rescind or otherwise terminate or agree
to any variation cancellation, rescission or accept
any repudiation of the said construction contract;
19.2.6 sell, lease, transfer or otherwise dispose of the
Land;
19.2.7 change its corporate structure either by merger,
amalgamation, reorganization or reconstruction;
19.2.8 amend its Memorandum and Articles of Association;
19.2.9 enter into any transaction with any person other than
in the ordinary course of business on ordinary
commercial terms and at arm's length;
19.2.10 made any prepayment or repayment in respect of any
debt (except any debts incurred by way of normal
trade transactions) or loan advanced to the Borrower
by the shareholders third parties or related
companies as defined under Section 6 of the Companies
Act, 1965 (except the Comerica Bank loan of
approximately United States
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Dollars Ten Million (USD10,000,000.00) provided that
in _____ month, the Borrower shall repay all monies
to the Lenders first before any repayment of the loan
or any part thereof;
19.2.11 save as provided by any provisions herein decrease or
in any way whatsoever alter the authorized or issued
Capital of the Borrower whether by varying the amount
structure or value thereof or the rights attaching
thereto or convert any of the its share capital into
stock or by consolidating, dividing, or sub-dividing
all or any of its shares;
19.2.12 make advances or guarantee to others or make
investments in other companies or enterprises (other
than normal trade credit or temporary loans to
customers, contractors or suppliers in the ordinary
course of business);
19.2.13 reduce its share capital;
19.2.14 enter or threaten to enter into any partnership,
profit sharing or royalty agreement or other similar
arrangement whereby the Borrower's income or profits
are, or might be shared with any other person, firm,
company, or enter into any management contract or
similar arrangement whereby the Borrower's business
or operations are managed by any other person, firm
or company save and except in the ordinary course of
the Borrower's business;
19.2.15 make or permit loans or make advances to any
shareholder or director of the Borrower or to any
related or associate company of the Borrower or to
any shareholder or director thereof or guarantee any
person, enterprise, or company (other than normal
trade credits or trade guarantees or temporary loans
to staff, customers or suppliers in the ordinary
course of business);
19.2.16 alter the category of land use of the Land;
19.2.17 allow or permit any change in the Corporate
Guarantor's shareholding in the Borrower to less than
75%.
19.3 Government Acquisition
----------------------
19.3.1 In the event that the Land or any part thereof shall at any
time become the subject matter of or be included in any notice
notification or declaration
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concerning or relating to acquisition by government or
governmental authority or any inquiry or proceedings in
respect thereof if any government or governmental authority
shall condemn, nationalize, seize or otherwise expropriate all
or any part of the property or other assets of the Borrower
charged hereunder or under any of the other Security Documents
or shall have assumed custody or control of such property or
other assets the Borrower shall forthwith inform the Facility
Agent of the same and shall forward to the Facility Agent a
copy or copies of any such notice, notification or declaration
as soon as the same shall be delivered to or served on the
Borrower and shall not be more than three (3) days of
receiving such notification or declaration.
19.3.2 The Facility agent shall be entitled to engage advisers and
agents (including solicitors and valuers) as it may think fit
for the purpose of appearing or attending at or advising upon
any inquiry or proceedings affecting concerning or relating to
any such acquisition, expropriation or any of the matters
referred to in Clause 19.3.1 hereof at the reasonable expense
of the Borrower.
19.3.3 All monies received as or by way of compensation in respect of
any of the matters referred to in Clause 19.3.1 hereof shall
be applied in or towards discharge or repayment of any money
or liability secured by the Security Documents and the
Borrower shall, and hereby declares that it will hold all such
monies so received in trust for the Facility Agent and the
Borrower agrees and confirms that the Facility Agent may
receive and give a good discharge for all such monies.
20. INSURANCE
---------
20.1 The Borrower shall so long as any monies under any of the
Security Documents remain unpaid:
20.1.1 at all times prior to the completion of the
construction of the factory on the Land effect and
maintain with insurers or underwriters acceptable by
the Lenders in writing from time to time insurances
against such risks and liabilities customary for
businesses similar to its business as the Lenders may
from time to time require and in amounts and on terms
satisfactory to the Lenders, including but not
limited to Contractor's all risks insurance and
material supplies insurance;
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20.1.2 at all times after the completion of the said factory
effect and maintain with insurers or underwriters
acceptable by the Lenders in writing from time to
time insurances against such risks and business as
the Lenders may from time to time require and in
amounts and on terms satisfactory to the Lenders,
including but not limited to insurances over the
buildings on the Land against loss and damage by
fire, explosion, aircraft and other serial devices
and articles dropped therefrom, storm, tempest,
flooding, burst pipes and tanks, subsidence,
malicious damage and such other risks as the Lenders
may from time to time require to the full
reinstatement value of the buildings on the Land
(which shall not be less than any amount in that
behalf which the Lenders may from time to time notify
to it) together with additional amounts estimated as
sufficient to cover architects' surveyors' and other
professional fees and the costs of demolition and
debris removal and will give such information to the
Lenders regarding such insurances as the Lenders may
from time to time require;
20.1.3 punctually pay or procure to be paid all premium and
deliver or procure to be delivered receipts therefor
to the Security Agent; and
20.1.4 not make, do, consent, or agree to any act or
omission which would or might enable cancellation of
any of the insurances or render any of the insurances
invalid, void, voidable or unenforceable.
20.2 Each of such insurances shall:
20.2.1 be taken out in the joint names of the Borrower and
the Security Agent for and on behalf of the Lenders
or be noted, by indorsement on such insurances (in
such form as may be acceptable to the Lenders), with
the interest of the Beneficiaries;
20.2.2 contain a non-cancellation clause, a mortgage
interest clause and a loss payee or beneficiary
clause in favor of the Security Agent for and on
behalf of the Lenders;
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20.2.3 acknowledge that the Borrower is the sole party
liable to pay the premium in respect thereof;
20.2.4 provide for the insurers or underwriters to pay to
the Security Agent at least thirty (30) days' prior
notice of cancellation by reason of non-payment of
calls, premiums or otherwise and allow the security
Agent or the Lenders an opportunity of paying such
calls or premiums which may be in default;
20.2.5 provide that they may not be altered or amended
without the prior consent in writing of the Security
Agent;
20.2.6 acknowledge that all proceeds shall, irrespective of
any other provisions therein contained, be paid to
the Security Agent without deduction, set-off or
counterclaim in respect of any outstanding premiums
or calls on it. The Security Agent (acting on the
instructions of the Instructing Group) may require
any money received on any insurance be applied in or
towards making good the loss or damage in respect of
which money is received or receivable or in or
towards discharge of any principal sum, interest,
default interest or any other monies payable
hereunder or under any of the other Security
Documents and the Security Agent may give a good
discharge for any such monies and any balance
remaining after discharging all monies payable
hereunder or under the other Security Documents,
shall be refunded to the Borrower; and
20.2.7 be in all other respects in form and substance
acceptable to the Security Agent.
Each of such insurances shall also contain a loss payee and
notice of cancellation clause, a notice of assignment signed
in accordance with the relevant policy rules and such other
terms and conditions as the Lenders may require, all such
provisions to be in form and substance acceptable to the
Lenders.
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21. AGENCY PROVISIONS
-----------------
21.1 Each of the Arrangers and the Lenders hereby appoint each of
the Facility Agent and the Security Agent to act as its agent
in connection with the Security Documents and authorizes each
Agent to exercise such rights, powers and discretions as are
specifically delegated to such Agent by the terms hereof and
of any other Security Document together with such other
rights, powers and discretions as are reasonably incidental
thereto.
21.2 The Beneficiaries agree that each Agent may:
21.2.1 assume that:
(a) any representation made by any person in
connection with any Security Document is
true;
(b) no event which is an Event of Default or
Potential Event of Default has occurred; and
(c) no person is in breach of or default of its
obligations under any Security Document
unless it has actual knowledge or actual
notice to the contrary;
21.2.2 assume that the Facility Office of each Lender is
that identified in the Schedule (or, in the case of a
Transferee, at the end of the Transfer Certificate to
which it is a party as Transferee) until it has
received from such Lender a notice designating some
other office of such Lender to replace its Facility
Office and act upon any such notice until the same is
superseded by a further such notice;
21.2.3 engage and pay for the advice or services of any
lawyers, accountants, surveyors or other experts
whose advice or services may to it seem necessary,
expedient or desirable and rely upon any advice so
obtained;
21.2.4 rely as to any matters of fact which might reasonably
be expected to be within the knowledge of any person
upon a certificate signed by or on behalf of any
person;
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21.2.5 rely upon any communication or document believed by
it to be genuine;
21.2.6 refrain from exercising any right, power or
discretion vested in it as agent under Security
Document unless and until instructed by the
Instructing Group as to whether or not such right,
power or discretion is to be exercised and, if it is
to be exercised, as to the manner in which it should
be exercised; and
21.2.6 refrain from acting in accordance with any
instructions of an Instructing Group to begin any
legal action or proceeding arising out of or in
connection with any Security Document until it shall
have received such security as it may require
(whether by way of payment in advance or otherwise)
for all costs, claims, expenses (including legal
fees) and liabilities which it will or may expend or
incur in complying with such instructions.
21.3 The Facility Agent shall:
21.3.1 promptly inform each Lender of the contents of any
notice or document received by it from the Borrower
or the Security Agent hereunder;
21.3.2 promptly notify each Lender of the occurrence of any
Event of Default or any default by the Borrower in
the due performance of or compliance with its
obligations under this Agreement of which the
Facility Agent has actual knowledge or actual notice;
21.3.3 save as otherwise provided herein, act in accordance
with any instructions given to it by the Instructing
Group, which instructions shall be binding on the
Arranger and the Lenders; and
21.3.4 if so instructed by the Instructing Group, refrain
from exercising any right, power or discretion vested
in it as agent hereunder.
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21.4 Not withstanding anything to the contrary expressed or implied
herein, none of the Agents or Arranger shall:
21.4.1 be bound to enquire as to:
(a) whether or not any representation made by
any person in connection herewith or with
the Security Documents is true;
(b) the occurrence or otherwise of any event
which is or may become an Event of Default;
(c) the performance by any person of its
obligations under any Security Documents; or
(d) any breach of or default by any person of or
under its obligations under any Security
Document;
21.4.2 be bound to account to any Lender for any sum or the
profit element of any sum received by it for its own
account;
21.4.3 be bound to disclose to any other person any
information relating to the Borrower if such
disclosure would or might in its opinion constitute a
breach of any law or regulation or be otherwise
actionable at the suit of any person; or
21.4.4 be under any obligations other than those for which
express provision is made herein.
21.5 Each Lender shall from time to time on demand by an Agent,
indemnify such Agent, in the proportion its share of its
Lender's Outstanding Amounts (or, if no drawdown has been
made, its Lender's Commitment) bears to the amount of the
Lenders Outstanding Amounts (or, if no drawdown has been made,
the aggregate amount of the Commitments) at the time of such
demand (or, if the Lender's Outstanding Amounts has then been
repaid in full, immediately prior to the final repayment
thereof), against any and all costs, claims, expenses
(including legal fees)
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and liabilities which such Agent may incur, otherwise than by
reason of its own gross negligence or willful misconduct, in
acting in its capacity as agent hereunder or under any
Security Document.
21.6 None of the Agents or the Arranger accepts any responsibility
for the accuracy and/or completeness of any information
supplied by the Borrower in connection herewith or for the
legality, validity, effectiveness, adequacy or enforceability
of any Security Document and none of the Agents or the
Arranger shall be under any liability as a result of taking or
omitting to take any action in relation to this Agreement or
any other Security Documents save in the case of gross
negligence or willful misconduct.
21.7 Each of the Lenders agrees that it will not assert or seek to
assert against any director, officer or employee of any Agent
or the arranger any claim it might have against any of them in
respect of the matters referred to in Clause 21.6.
21.8 The Agent may resign its appointment hereunder at any time
without assigning any reason therefor by giving not less than
thirty (30) days' prior written notice to that effect to each
of the other parties hereto Provided that no such resignation
shall be effective until a successor for such Agent is
appointed in accordance with the succeeding provisions of this
Clause 21.
21.9 Any Agent may resign its appointment hereunder at any time
without assigning any reason therefor by giving not less than
thirty (30) days' prior written notice to that effect to each
of the other parties hereto Provided that no such resignation
shall be effective until a successor for such Agent is
appointed in accordance with the succeeding provisions of this
Clause 21.
21.10 If an Agent gives notice of its resignation pursuant to Clause
21.9, then any reputable and experienced bank or other
financial institution may be appointed as a successor to such
Agent by the Instructing Group (or failing such appointment
during the period of such notice, by the Agent itself) with
the consent of the Borrower which consent shall not be
unreasonably withheld or delayed.
21.11 If a successor to such Agent is appointed under the provisions
of Clause 21.10 then (i) the retiring Agent shall be
discharged from any further obligation hereunder but shall
remain entitled to the benefit of the provisions of this
Clause 21 and (ii) its successor and each of the other Parties
hereto shall have the same rights and
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obligations amongst themselves as they would have had if such
successor had been a party hereto.
21.12 It is understood and agreed by each Lender that it has itself
been, and will continue to be, solely responsible for making
its own independent appraisal of and investigations into the
financial condition creditworthiness, condition affairs,
status and nature of the Borrower and, accordingly, each
Lender warrants to the Agents and the Arranger or any of them;
21.12.1 to check or enquire on its behalf into the adequacy,
accuracy or completeness of any information provided
by any person in connection with any Security
Document or the transactions herein contemplated
(whether circulated to such Lender by any Agent or
Arranger); or
21.12.2 to assess or keep under review on its behalf the
financial condition, creditworthiness, condition,
affairs, status or nature of the Borrower.
21.13 The Facility Agent may at any time without the consent of the
Lenders or the Instructing Group, but only if and in so far as
such matters are purely technical or mechanical and which will
not have a material commercial effect on the transaction or
relate to the correction of a manifest error, grant any
consent under this Agreement or waive on such terms and
subject to such conditions as it shall think fit and proper
any requirement of this Agreement or any breach by the
Borrower of any of the covenants or other provisions of this
Agreement and in all such circumstances the Facility Agent
will not be deemed to be acting unreasonably or with undue
delay if it seeks the instructions of the Instructing Group
before taking any such action. Any such consent, waiver or
agreement shall be binding on the Lenders.
22. ASSIGNMENT AND TRANSFERS
------------------------
22.1 Benefit of Agreement
--------------------
This Agreement shall be binding upon and ensure to the benefit of each
Party hereto and its successors and assigns.
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22.2 Assignments and Transfers by the Borrower
-----------------------------------------
The Borrower shall not be entitled to assign or transfer all or any of
its rights, benefits and obligations hereunder.
22.3 Assignments and Transfers by Lenders
------------------------------------
22.3.1 Any Lender may at any time assign all or any of its rights and benefits
hereunder and under the Security Documents or transfer in accordance
with Clause 22.4 all or any of its rights, benefits and obligations
hereunder and under the Security Documents to a company which is its
subsidiary or holding company or to any other financial institution
without any consent.
22.3.2 If any Lender assigns all or any of its rights and benefits hereunder
in accordance with Clause 22.3.1, then, unless and until the assignee
has agreed with the Beneficiaries that it shall be under the same
obligations towards each of them as it would have been under if it had
been an original party hereto as a Lender, the Beneficiaries shall not
be obliged to recognize such assignee as having the rights against each
of them which it would have had if it had been such a party hereto.
22.4 If any Lender wishes to transfer all or any of its rights, benefits
and/or obligations hereunder as contemplated in Clause 22.3.1, then
such transfer may be effected by the delivery to the Facility Agent of
a duly completed and duly executed Transfer Certificate in which event,
on this later of the Transfer Date specified in such Transfer
Certificate and the fifth (5th) Ringgit Business Day after (or such
earlier Ringgit Business Day endorsed by the Facility Agent on such
"Transfer Certificate failing on or after) the date of delivery of such
Transfer Certificate to the Facility Agent:
22.4.1 to the extent that in such Transfer Certificate the Lender
party thereto seeks to transfer its rights and obligations
hereunder, the Borrower and such Lender shall each be released
from further obligations to the other hereunder and their
respective rights against each other shall be cancelled (such
rights and obligations being referred to in this Clause 22.4
as "discharged rights and obligations);
22.4.2 the Borrower and the Transferee party thereto shall each
assume obligations towards each other and/or acquire rights
against each other which differ from such discharged rights
and obligations only insofar as the Borrower and such
Transferee have assumed and/or acquired the same in place of
the Borrower and such Lender; and
22.4.3 The facility Agent, the Arranger, such Transferee and the
other Lenders shall acquire the same rights and assume the
same
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obligations between themselves as they would have acquired and
assumed had such Transferee been an original party hereto as a
Lender with the rights and/or obligations acquired or assumed
by it as a result of such transfer
22.5 Any Beneficiary may at any time change its Facility Office by giving
written notice of such change to the Agents and the Borrower.
23. MISCELLANEOUS
-------------
23.1 Modification and Indulgence
---------------------------
The Beneficiaries may in their absolute discretion at any time and
without in any way affecting any of their powers, rights or remedies
conferred herein or in any of the other Security Documents or affecting
the security thereunder:
23.1.1 determine, vary or increase any of the approved sub-limits,
exceed or allow the Borrower to exceed such sub-limit and may
open and/or continue any account or accounts for the Borrower
and the Borrower hereby expressly consents to any such
reduction, determination, variation and/or increase as may be
effected or determined by the Beneficiaries;
23.1.2 vary or depart from the terms and conditions in the Security
Documents governing the Facilities or any of them (however
substantial) but such variation or departure shall not
increase the Borrower's obligations under the Security
Documents without the Borrower's written consent;
23.1.3 grant to the Borrower, or any surety or guarantor any time or
indulgence;
23.1.4 renew any bills, notes or other negotiable securities;
23.1.5 deal with, exchange, release or modify or abstain from
perfecting or enforcing any securities or guarantees or rights
they may now or at any time hereafter or from time to time
have (including any under the Security Documents) from or
against the Borrower or any other person; or
23.2 Waiver
------
No waiver by the Beneficiaries or any of them of the Borrower's
compliance with any of the provisions in any of the Security Documents
or of any of the conditions precedent to utilisation or to drawdown
shall affect the Borrower's
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obligation to subsequently comply with all provisions of such Security
Doicuments ot to comply with all he conditions precedent for any
subsequent utilisation or drawdown. No failure or delay on the part of
the Beneficiaries or any of them in exercising nor any omission to
exercise any right, power, privilege or remedy accruing to them under
the Security Documents upon any default on the part of the Borrower
shall impair any such right, power, privilege or remedy or be construed
as a waiver thereof or an acquiescence in such default, affect or
impair any of their right, power, privilege or remedy in respect of any
other or subsequent default.
24. Costs and Expenses
------------------
24.1 The Borrower shall, from time to time on demand of the Facility Agent,
reimburse the agents and the Arranger for all reasonable costs and
expenses (including legal fees) incurred by them in connection with the
negotiation, preparation and execution of this Agreement and the
completion of the transaction herein contemplated.
24.2 The Borrower shall, from time to time on demand of the Facility Agent,
reimburse the for all costs and expenses (including legal fees)
reasonably incurred by any of them in or in connection with the
preservation and/or enforcement of any of the rights of the
Beneficiaries under this Agreement and each of the Security Documents.
24.3 The Borrower shall pay all stamp, registration and other documentary
duties to which this Agreement or any Security Document or any judgment
given in connection herewith or therewith is or at any time may be
subject in Malaysia an shall, from time to time within ten (10) days of
demand by the Facility Agent, indemnify each Beneficiary against any
liabilities, costs, claims and expenses resulting from any failure to
pay or any delay in paying any such tax.
25. Liens and other Securities not Affected
---------------------------------------
Nothing herein contained shall prejudice or affect any lien to which
the Beneficiaries are entitled or any other securities which the
Beneficiaries may at any time or from time to time hold for or on
account of the monies advanced hereunder nor shall anything herein
contained operate so as to merge or otherwise prejudice or affect any
bill, note or guarantee, mortgage or other security which the
Beneficiaries may for the time being have for any money intended to be
hereby or otherwise secured or any right or remedy of the Beneficiaries
thereunder.
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26. Calculations and Evidence of Debt
---------------------------------
26.1 The Facility Agent shall maintain on its books a control account or
accounts in which shall be recorded (i) the amount of the drawdown made
or arising hereunder and each Lender's share therein, (ii) the amount
of all principal, interest and other sums due or to become due from the
borrower to any of the Lenders hereunder and each Lender's share
therein and (iii) the amount of any sum received or recovered by the
Facility Agent hereunder and each Lender's share therein.
26.2 In any legal action or proceeding arising out of or in connection with
this Agreement, the entries made in the accounts maintained pursuant
to Clause 26.1 shall be prima facie evidence of the existence and
amounts of the obligations of the Borrower therein recorded.
27. Disclosure
----------
The Borrower hereby expressly authorizes the Agents, the Arranger and
the Lenders to furnish all relevant information pertaining to the
Facilities to the Central Credit Bureau of BNM whenever requested to do
so in writing from time to time pursuant to any applicable regulation
or directive (whether having the force of law or otherwise), to the
BBMB Group or to any potential Transferees and they shall not be liable
for furnishing such information.
28. Governing Law
-------------
The Security Documents shall be governed by and construed in all
respects in accordance with the laws of Malaysia and the Parties hereby
submit to the jurisdiction of the Courts of Malaysia in all matters
connected with the obligations and liabilities of the parties under the
Security Documents.
29. Notices
-------
29.1 Each communication to be made hereunder shall be made in writing but,
unless otherwise stated, may be made by telex, facsimile or letter.
29.2 Any communication or document to be made or delivered by one person to
another pursuant to this Agreement shall (unless that other person has
by fifteen (15) days' written notice to the Facility agent specified
another address) be made
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or delivered to that other person at the address identified herein or,
in the case of a Transferee, at the end of the Transfer Certificate to
which it is a party as Transferee.
29.3 Any communication or document made or delivered under Clause 29.1
hereof shall be deemed to have been made or delivered:
29.3.1 in the case of delivery in person, at the time of delivery;
29.3.2 in the case of prepaid registered post, five (5) days after
the date of posting or where posted to an address outside
Malaysia, seven (7) days after the date of posting;
29.3.3 in the case of telex on receipt by the sender of the
answer-back code of the recipient at the end of the
transmission; and
29.3.4 in the case of telegram or facsimile, within twenty-four (24)
hours after the time of transmission by the sender to be
authenticated by the receipt by the sender of a transmission
controlled report appearing on its face to emanate from the
sender's machine showing the relevant number of pages, the
correct facsimile number of the recipient and the result of
the transmission being described as "O.K." or any equivalent
description indicating that the communication has been
properly transmitted. The original of the notice demand or
request so sent by facsimile shall be forwarded to the
receiving party by prepaid registered post.
Provided That any communication or document to be made or delivered to
the Facility Agent shall be effective only when received by the
Facility Agent.
30. Agreement to Prevail
--------------------
In the event of any conflict between the provisions of this Agreement
and any of the other Security Documents, the provisions of this
Agreement shall prevail.
31. Severability
------------
Any condition, term, stipulation, covenant or undertaking of this
Agreement which is illegal, prohibited or unenforceable shall be
ineffective to the extent of such illegality, voidness, prohibition or
unenforceability without invalidating or impairing the remaining
provisions hereof.
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32. Concurrent Actions
------------------
In the event of the Borrower defaulting in payment of any sums due or
payable hereunder whether or not a demand is required or has been made
or in the event of the Borrower failing to observe or perform any of
the provisions of this Agreement it shall be lawful for the Security
Agent forthwith to institute such lawful for the Security Agent
forthwith to institute such proceedings and take such steps as it may
think fit to enforce or exercise of all or any of the rights and
remedies available whether under all or some of the Security Documents
or by statute or otherwise and the Security Agent shall be entitled to
exercise such rights and remedies concurrently.
33. Time of the Essence
-------------------
Time wherever mentioned herein, shall be of the essence of this
Agreement.
34. Choice of Legal Remedy
----------------------
The Beneficiaries shall be entitled to recover from the Borrower all
sums payable by the Borrower under the Facilities without first
availing itself of its legal remedies under this Agreement or the other
Security Documents or against any other security which the
Beneficiaries may now or at any time hereafter or from time to time
have from or again person.
35. Principal & Subsidiary Instruments
----------------------------------
It is hereby declared and agreed:
35.1 this Agreement;
35.2 the Debenture;
35.3 the Assignment;
35.4 the Charge;
35.5 the Corporate Guarantee; and
35.6 the Security Agency Agreement;
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are instruments employed in one transaction within the meaning of
Section 4(3) of the Xxxxx Xxx, 0000 (Consolidated and Revised 1989) to
secure one aggregate principal sum comprising:
(i) TL I Facility of up to RM29,200,000.00;
(ii) Dollar Advances Facility of up to USD4,000,000.00;
(iii) Dollar RC Facility of up to USD2,00,000.00;
(iv) Working Capital Facilities of up to RM5,900,000.00;
and respective interest thereon and for the purpose of the said Section
this Agreement is deemed to be the Principal Instrument and the other
documents the Subsidiary Instruments.
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IN WITNESS WHEREOF the parties hereto have hereunto set their hands and
seal the day and year first above written.
The Common Seal of ZYCON
CORPORATION SDN. BHD. was hereunto
affixed in the presence of :
---------------------------------- -------------------------------------
Director *Director/Secretary
SIGNED by
for and on behalf of
BANK BUMPUTRA MALAYSIA BERHAD
as Arranger in the presence of:
SIGNED by
for and on behalf of
BANK BUMPUTRA MALAYSIA BERHAD
as Working Capital Lender
in the presence of:
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SIGNED by
for and on behalf of
BANK BUMPUTRA MALAYSIA BERHAD
as Lender Bank
in the presence of:
SIGNED by
for and on behalf of
BBMB Kewangan Berhad
as Lending Bank
in the presence of:
SIGNED by
for and on behalf of
BANK BUMIPUTRA MALAYSIA BERHAD
as Funding Lender
in the presence of:
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SIGNED by
for and on behalf of
BANK BUMIPUTRA MALAYSIA BERHAD
as Facility Agent
in the presence of:
SIGNED by
for and on behalf of
BANK BUMIPUTRA MALAYSIA BERHAD
as Security Agent
in the presence of:
74
SCHEDULE 1
----------
LENDER AND LENDERS COMMITMENTS
Column 1 Column 2 Column 3 Column 4
Working Cap Ringgit Malaysia Dollar Advances Dollar RC
under Commitment Commitment Commitment Commitment
----- ---------- ---------- ---------- ----------
8MB BUMIPUTRA RM5,900,000.00 RM14,600,000.00 USD4,000,000.00 USD2,000,000.00
MALAYSIA
XXXXXX
Xxxxxx Xxxxxxxxx
Xxxx Xxxxxx
0000 Xxxxx Xxxxxx
Telex: XXXXX XX 00000
Facsimile: 2914967
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SCHEDULE 1 (Cont.2)
-------------------
LENDER AND LENDERS COMMITMENTS
Column 1 Column 2 Column 3 Column 4
Working Cap Ringgit Malaysia Dollar Advances Dollar RC
under Commitment Commitment Commitment Commitment
----- ---------- ---------- ---------- ----------
8MB KEWANGAN RM14,600,000.00
BERHAD
First Floor
Benara Promet
Alan Sultan Ismail
0000 Xxxxx Xxxxxx
Telex: -
Facsimile: 2451155
---------------------------------------------------------------------------------------
RM5,900,000.00 RM29,200,000.00 USD4,000,000.00 USD2,000,000.00
76
SCHEDULE 2
----------
CONDITIONS PRECEDENT
--------------------
1. Corporate Authorisation
-----------------------
In relation to the Borrower:
---------------------------
1.1 A copy of the following documents, certified as true by a director or
the company secretary of the Borrower:
(a) the certificate of incorporation of the Borrower;
(b) the Memorandum and Articles of Associations of the Borrower;
and
(c) the latest Forms 24 and 49 relating to the Borrower filed with
the Registrar of Companies
1.1 A copy, certified as true by a director or the company secretary of the
Borrower, of a board of directors' resolution approving the execution,
delivery and performance of this Agreement and the other Security
Documents to which it is a party and to authorise appropriate person(s)
to execute, affix the Common Seal of the Borrower or such documents,
give any communications and take any other action required under or in
connection with this Agreement or such other Security Documents.
1.3 Passport number(s)/identification card number(s) and specimen
signatures of the person(s) authorised to take action on behalf of the
Borrower as referred to in paragraph 1.2 above.
In relation to the Corporate Guarantor:
1.4 A certified true copy of its Articles of Incorporation and Bylaws.
1.5 A certified true copy of its board of directors' resolution authorising
the execution of the Corporate Guarantee and the person or persons
authorized to execute, affix the Common Seal of the Corporate Guarantor
on the Corporate Guarantee.
2. Authorization and Consents
--------------------------
2.1 A certified true copy of each authorisation, consent, licence, approval
or registration required by the Borrower for the borrowing the
Facilities (including but without limitation, (1) all approvals of Bank
Negara Malaysia as may be
77
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required by or pursuant to the laws and directives in force or as may
be appropriate in relation to the execution, performance and
enforcement of this Agreement and the other Security Documents to which
it is a party and (2) evidence of a report to Bank Negara Malaysia of
such information relating to this Agreement, the other Security
Documents to which it is a party and such other information as may be
required by or pursuant to the laws and directions is force.
2.2 A certified true of each authorization, consent, licence, approval or
registration required by the Corporate Guarantor for the issuing of the
Corporate Guarantee (including but without limitation, all approvals of
Bank Negara Malaysia as may be required by or pursuant to the laws and
directives in force or as may be appropriate in relation to the
execution, performance and enforcement of the Corporate Guarantee).
3. Security Documents
------------------
3.1 Certified true copies of each of the Security Documents duly executed
by each party thereto, and where appropriate, duly stamped and
presented for registration with all appropriate authorities.
4. Paid-up Capital of Borrower/Debt to Equity Ratio
------------------------------------------------
4.1 Evidence acceptable to Facility Agent that Guarantor has made loans to
Borrower as set forth on Schedule 8.
4.2 Evidence acceptable to the Facility Agent that the debt equity ratio as
defined in paragraph 19.1.14 of the Borrower is maintained at not more
than 3:1.
5. Letter of Undertaking from the Contractor
-----------------------------------------
5.1 Irrevocable letter of undertaking from the Contractor in form and
substance satisfactory to the Facility Agent when the Contractor
undertakes to forward to the Facility Agent Certificate of Fitness for
Occupation issued by the relevant authority in respect of the factory
and/or such other building or structure constructed by the Contractor
on the Land.
6. Letter of Undertaking from the Corporate Guarantor
--------------------------------------------------
6.1 Irrevocable and unconditional letter of undertaking from Corporate
Guarantor to meet any costs over-run incurred and the construction
period of the factory for the Borrower.
78
-3-
7. Opinion
-------
7.1 Opinion of Messrs. Skrine & Co., the Solicitors to the Lenders, in form
and substance satisfactory to the Facility Agent.
7.2 Opinion (in a form and substance satisfactory to the Facility Agent) of
a firm of solicitors to the Corporate Guarantor which is acceptable to
the Lenders, as to such matters relating to the Corporate Guarantor and
the Corporate Guarantee.
8. Letter of Undertaking from the Borrower
---------------------------------------
8.1 Irrevocable Letter of Undertaking from the Borrower:
(1) to comply with all terms and conditions set out in the Land
Letter of Offer and Acceptance promptly;
(2) confirming that the Shareholders Loan shall be free of
interest;
(3) not to vary any repayments in respect of the Shareholders
Loan; and
(4) to convert the Shareholders Loan to paid-up capital on the
acquisition of the new plant and machinery.
79
SCHEDULE 3
----------
WORKING CAPITAL FACILITIES
--------------------------
1. Revolving Credit Facility
Interest Rate - 1.75% per annum above the Effective Cost of
Funds of the Working Capital Lender.
2. Letters of Credit Facility
Interest Rate - as stipulated in Clause 4.4.4 of this
Agreement
Commission - 0.15% on the amount of each letter of credit
issued for each month or part thereof
payable in advance but subject to a minimum
charge of RM50.00 for each letter of credit
issued.
3. Trust Receipts Facility
Interest Rate - 1.75% per annum above the Base Lending Rate
of the Working Capital Lender.
Commission - 1.0% per annum on each bankers acceptance
created on the face value of the bankers
acceptance from the date of creation up to
the date of maturity.
5. Export Credit Refinancing Facility
(Pre-shipment and Post-shipment)
Interest Rate - 1.0% per annum above the prevailing Bank
Negara Malaysia (BNM) discount rate or such
other rate as may be determined by BNM from
time to time.
6. Letter of Guarantee
Commission - 0.1% per month or part thereof on the amount
guaranteed or issued but subject to a
minimum charge of RM50.00, such commission
to be payable immediately upon issuance of
each guarantee and for every extension
thereafter.
80
SCHEDULE 4
----------
FORM OF REQUEST FOR RINGGIT ADVANCE
-----------------------------------
To: BANK BUMIPUTRA MALAYSIA BERHAD
[address]
For the attention of: [name and title of relevant person]
Dear Sirs,
Zycon Corporation Sdn. Bhd.
RM50,400,000.00 Facility Agreement
dated 1996
----------------------------------
We refer to the above Agreement between (1) ourselves, as Borrower, (2)
yourselves as Arranger, (3) the Working Capital Lender named therein, as Working
Capital Lender, (4) the Lending Banks named therein, as Lending Banks, (5) the
Funding Lender named therein, as Funding Lender, (6) yourselves, as Facility
Agent, and (7) yourselves, as Security Agent. Terms defined in the Agreement
have the same meaning in this notice.
We give you notice that we request a Ringgit Advance to be made to us by the
Lending Banks under the Agreement as follows:
(1) Amount : [RM ]
(2) Date of Ringgit Advance : ,19 (or, if that is not a Ringgit
Business Day, the next succeeding
Ringgit Business Day).
We confirm that no Event of Default or Potential Event of Default in relation to
ourselves or has occurred or will occur as a result of the making of that
Ringgit Advance, we represent and warrant that the representations and
warranties contained in Clause 18 of the Agreement have been complied with and
would be correct in all respects if repeated today by reference to the
circumstances now existing and we confirm that all the undertakings on our part
contained in Clause 19 and 20 of the Agreement have been fully performed and
observed by us.
81
-2-
You are requested to make the proceeds of that Ringgit Advance available to us
by credit to [details of bank accounts].
Dated 19
Yours faithfully,
For and on behalf of
ZYCON CORPORATION SDN. BHD
By:
Name:
Title:
82
SCHEDULE 5
----------
FORM OF REQUEST FOR DOLLAR ADVANCE
----------------------------------
To: BANK BUMIPUTRA MALAYSIA BERHAD
[address]
For the attention of: [name and title of relevant person]
Dear Sirs,
Zycon Corporation Sdn. Bhd.
RM50,400,000.00 Facility Agreement
dated 1996
----------------------------------
We refer to the above Agreement between (1) ourselves, as Borrower, (2)
yourselves as Arranger, (3) the Working Capital Lender named therein, as Working
Capital Lender, (4) the Lending Banks named therein, as Lending Banks, (5) the
Funding Lender named therein, as Funding Lender, (6) yourselves, as Facility
Agent, and (7) yourselves, as Security Agent. Terms defined in the Agreement
have the same meaning in this notice.
We give you notice that we request a Dollar Advance to be made to us by the
Funding Lender under the Agreement as follows:
(1) Amount : [USD ]
(2) Date of Dollar Advance : ,19 (or, if that is not a Dollar
Business Day, the next succeeding
Dollar Business Day).
(3) Period : [1, 3 or 6 months]
We confirm that no Event of Default or Potential Event of Default in relation to
ourselves or any Security Party has occurred or will occur as a result of the
making of that Dollar Advance, we represent and warrant that the representations
and warranties contained in Clause 18 of the Agreement have been complied with
and would be correct in all respects if repeated today by reference to the
circumstances now existing and we confirm that all the undertakings on our part
contained in Clause 19 and 20 of the Agreement have been fully performed and
observed by us.
83
-2-
You are requested to make the proceeds of that Dollar Advance available to us by
credit to [details of bank accounts].
Dated 19
Yours faithfully,
For and on behalf of
ZYCON CORPORATION SDN. BHD.
By:
Name:
Title:
84
SCHEDULE 6
----------
FORMS OF REQUEST FOR DOLLAR RC DRAWDOWN
---------------------------------------
TO: BANK BUMIPUTRA MALAYSIA BERHAD
[ address ]
For the attention of: [name and title of relevant person]
Dear Sirs:
Zycon Corporation Sdn. Bhd.
RM50,400,000.00 Facility Agreement
dated 1996
-------------------------------------
We refer to the above Agreement between (1) ourselves, as Borrower, (2)
yourselves as Arranger, (3) the Working Capital Lender named therein, as Working
Capital Lender, (4) the Lending Banks named therein, as Lending Banks, (5) the
Funding Lender named therein, as Funding Lender, (6) yourselves, as Facility
Agent, and (7) yourselves, as Security Agent. Terms defined in the Agreement
have the same meaning in this notice.
We give you notice that we request a Dollar RC Drawdown to be made to us by the
Funding Lender under the Agreement as follows:
(1) Amount : [ USD ]
(2) Date of Dollar
RC Drawdown : 19 (or, if
that is not a Dollar Business Day, the next
succeeding Dollar Business Day).
(3) Period : [1, 3 or 6 months]
We confirm that no Event or Default or Potential Event of Default in relation to
ourselves or any Security Party has occurred or will occur as a result of the
making of that Dollar RC Drawdown, we represent and warrant that the
representations and warranties contained in Clause 18 of the Agreement have been
complied with and would be correct in all respects if repeated today by
reference to the circumstances now existing and we confirm that all the
undertakings on our part contained in Clause 19 and 20 of the Agreement have
been fully performed and observed by us.
85
-2-
We enclose the Promissory Note for the proposed Dollar RC Drawdown. You are
requested to make the proceeds of that Dollar RC Drawdown available to us by
credit to [details of bank account].
Dated 1997.
Yours faithfully,
for and on behalf of
ZYCON CORPORATION SDN. BHD.
By:
Name:
Title:
86
SCHEDULE 7
----------
FORM OF TRANSFER CERTIFICATE
----------------------------
TO: [Facility Agent]
[Address]
TRANSFER CERTIFICATE
--------------------
relating to an agreement (as from time to time amended, varied, novated or
supplemented, "the Facilities Agreement") dated 19 and made between
(1) ZYCON CORPORATION SDN. BHD. as borrower (2) BANK BUMIPUTRA MALAYSIA BERHAD
as Arranger, Facility Agent and Security Agent and (3) the Lenders listed in
Schedule 1 thereto.
1. Terms defined in the Facilities Agreement shall, subject to any contrary
indication, have the same meaning herein. The terms Lender, Transferee,
Lender's Participation and Amount Transferred are defined in the Schedule
hereto.
2. The Lender confirms that the Lender's Participation is an accurate summary
of its participation in the Facilitation specified in the Facilities
Agreement and request the Transferee to accept and procure the transfer to
the Transferee of a percentage of the Lender's Participation (equal to the
percentage that the Amount Transferred is of the aggregate of the
component amounts (as set out in the schedule hereto) of the Lender's
Participation) by counter-signing and delivering this Transfer Certificate
to the Facility Agent at its address for the service of notices specified
in the facilities Agreement.
3. The Transferee hereby requests the Facility Agent to accept this Transfer
Certificate as being delivered to the Facility Agent pursuant to and for
the purposes of Clause 22.4 of the Facilities Agreement so as to take
effect in accordance with the terms thereof on the Transfer Date or on
such later date as may be determined in accordance with the terms thereof.
4. The Transferee warrants that:
(I) it has received a copy of the Facilities Agreement and each Security
Document together with such other information as it has required in
connection with this transaction and that it has not relied and will
not hereafter rely on the Lender to check or inquire on its behalf
into the legality, validity, effectiveness, adequacy, accuracy or
completeness of any such information and further agrees that it has
not relied and will not rely on the Lender to assess or keep under
review on its
87
-2-
behalf the financial condition, creditworthiness, condition,
affairs, status or nature of the Borrower; and
(ii) it is a transferee permitted by Clause 22.3.1 of the Facilities
Agreement.
The Transferee expressly acknowledges that its execution and delivery of
the Transfer Certificate constitutes its contractual acceptance of the
offer to become a party to the Security Agency Agreement.
5. The Transferee hereby undertakes with the Lender and each of the other
parties to the Facilities Agreement and the Security Agency Agreement that
it will perform in accordance with their terms all those obligations which
by the terms of the Facilities Agreement and the Security Agency Agreement
will be assumed by it after delivery of this Transfer Certificate to the
Facility Agent and satisfaction of the conditions (if any) subject to
which this Transfer Certificate is expressed to take effect.
6. The Lender makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Facilities Agreement or any document
relating thereto and assumes no responsibility for the financial condition
of the Borrower or for the performance and observance by the Borrower of
any of its obligations under the Facilities Agreement or any documents
relating thereto and any and all such conditions and warranties, whether
express or implied by law or otherwise are hereby excluded.
7. The Lender hereby gives notice that nothing herein or in the Facilities
Agreement (or any document relating thereto) shall oblige the Lender to
(i) accept a re-transfer from the Transferee of the whole or any part of
its rights, benefits and/or obligations under the Facilities Agreement
transferred pursuant hereto or (ii) support any losses directly or
indirectly sustained or incurred by the Transferee for any reason
whatsoever including, without limitation, the non-performance by the
Borrower or any other party to the Facilities Agreement (or any document
relating thereto) of its obligations under any such document. The
transferee hereby acknowledges the absence of any such obligation as is
referred to in (i) or (ii) above.
8. This Transfer Certificate and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with Malaysian
law.
Schedule to the Transfer Certificate
1. Lender:
2. Transferee:
3. Transfer Date:
88
-3-
4. Lender's Participation:
Lender's Available Commitment
-----------------------------
Lender's Outstanding Amount
---------------------------
5. Amount Transferred:
[Transferor Lender] [Transferee Lender]
By: By:
Date: Date:
Address:
89
SCHEDULE 8
----------
SHAREHOLDERS LOAN
-----------------
Date Amount
31 August 1995 USD 2,000,000.00
30 September 1995 USD 1,000,000.00
31 October 1995 USD 2,000,000.00
31 December 1995 USD 2,000,000.00
1 January 1996 USD 2,000,000.00
29 February 1996 USD 2,000,000.00
----------------
USD11,000,000.00
================
90
SCHEDULE 9
----------
FORM OF REQUEST FOR RINGGIT RC DRAWDOWN
---------------------------------------
TO: BANK BUMIPUTRA MALAYSIA BERHAD
[ address ]
For the attention: [name and title of relevant person]
Dear Sirs,
Zycon Corporation Sdn. Bhd.
RM50, 400,000.00 Facility Agreement
dated 1996
-----------------------------------
We refer to the above Agreement between (1) ourselves, as Borrower, (2)
yourselves as Arranger, (3) the Working Capital Lender named therein, as Working
Capital Lender, (4) the Lending Banks named therein, as Lending Banks, (5) the
Funding Lender named therein, as Funding Lender, (6) yourselves, as Facility
Agent, and (7) yourselves, as Security Agent. Terms defined in the Agreement
have the same meaning in this notice.
We give you notice that we request a Ringgit RC Drawdown to be made to us by the
Working Capital Lender under the Agreement as follows:
(1) Amount : [USD ]
(2) Date of Ringgit
RC Drawdown : 19 (or, if
that is not a Ringgit Business Day, the
next succeeding Ringgit Business Day).
(3) Period : [1, 3 or 6 months]
We confirm that no Event of Default or Potential Event of Default in relation to
ourselves or any Security Party has occurred or will occur as a result of the
making of that Ringgit RC Drawdown, we represent and warrant that the
representations and warranties contained in Clause 18 of the Agreement have been
complied with and would be correct in all respects if repeated today by
reference to the circumstances now existing and we confirm that all the
undertakings on our part contained in Clause 19 and 20 of the Agreement have
been fully performed and observed by us.
91
-2-
We enclose the Promissory Note for the proposed Ringgit RC Drawdown. You are
requested to make the proceeds of that Ringgit RC Drawdown available to us by
credit to [details of bank account].
Dated 19 .
Yours faithfully,
for and on behalf of
ZYCON CORPORATION SDN. BHD.
92
SCHEDULE 10
-----------
ZYCON CORPORATION
-----------------
FORECASTED 1996 DRAWDOWN SCHEDULE
---------------------------------
DRAWDOWN # ESTIMATED DATE ESTIMATED AMOUNT
---------- -------------- ----------------
RM-TL1 (TERM LOAN FACILITY)
1) APRIL 19, 1996 RM 13,400,000.00
2) MAY 20, 1996 RM 5,000,000.00
3) JUNE 21, 1996 RM 5,000,000.00
4) JULY 23, 1996 RM 5,000,000.00
5) AUG 23, 1996 RM 800,000.00
-------------
TOTAL: RM 29,200,000.00
=============
USD (TERM LOAN FACILITY)
1) JUNE 15, 1996 USD $1,000,000.00
2) JULY 15, 1996 USD $2,000,000.00
3) AUG 15, 1996 USD $1,000,000.00
-------------
TOTAL: USD $4,000,000.00
=============
