EXHIBIT 10.12D
Confidential Treatment Requested
The Company has requested confidential treatment of certain portions of
this exhibit on page 8 of the Loan Agreement and pages 61, 154, 167 and 170 of
the Schedules attached thereto.
LOAN AGREEMENT
DATED THIS 18/TH/ DAY OF AUGUST 1995,
RELATING TO A TERM LOAN FACILITY OF
RM91,000,000
BETWEEN
SYARIKAT TELEFON WIRELESS (M) SDN. BHD.
AS BORROWER
AND
PERMATA MERCHANT BANK BERHAD
AS ARRANGER
AND
PERMATA MERCHANT BANK BERHAD
AS AGENT
AND
A SYNDICATE OF FINANCIAL INSTITUTIONS
AS LENDERS
▇▇▇▇▇ ▇▇▇▇▇▇ & LOW
ADVOCATES & SOLICITORS
KUALA LUMPUR
PMB/00503.95/JC/EK/AC
TABLE OF CONTENTS
Clause Page
1. INTERPRETATION 1
2. THE FACILITY 12
3. SYNDICATE 12
4. CONDITIONS PRECEDENT 13
5. DRAWINGS 14
6. INTEREST 16
7. REPAYMENT 17
8. PREPAYMENT 18
9. REPRESENTATIONS AND WARRANTIES 19
10. UNDERTAKINGS 23
11. CHANGES IN CIRCUMSTANCES 29
12. PAYMENTS 31
13. DEFAULT 34
14. ENFORCEMENT OF SECURITY 39
15. INDEMNITY 40
16. THE AGENT AND THE ARRANGER 40
17. FEES AND EXPENSES 45
18. SET OFF AND PRO RATA SHARING 47
19. ASSIGNMENT AND TRANSFER 49
20. FURTHER PROVISIONS 51
SCHEDULE
1 LIST OF LENDERS 56
2 CONDITIONS PRECEDENT 57
3A CERTIFICATE OF BORROWER 61
3B CERTIFICATE OF ▇▇▇▇▇ ▇▇▇▇▇▇▇ 63
3C CERTIFICATE OF SHUBILA 65
4A DRAWING NOTICE 67
4B DRAWING NOTICE 68
5 CHARGE 70
6 DEBENTURE A 90
7 DEBENTURE B 112
8 CORPORATE GUARANTEE 139
9 PERSONAL GUARANTEE 154
10 ASSIGNMENT 171
11 DECLARATION BY DIRECTORS 184
12 COLLATERAL AGREEMENT 185
13 TRANSFER CERTIFICATE 229
14 MEMORANDUM OF PLEDGE 233
A LOAN AGREEMENT made on the 18th day of August 1995 BETWEEN:-
(1) SYARIKAT TELEFON WIRELESS (M) SDN. BHD. (the "Borrower");
(2) PERMATA MERCHANT BANK BERHAD (the "Arranger");
(3) PERMATA MERCHANT BANK BERHAD (the "Agent").
AND
(4) THE FINANCIAL INSTITUTIONS (the "Lenders") whose names are set out in
Schedule 1.
WHEREBY IT IS AGREED:-
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement each of the following expressions has, except where the
context otherwise requires, the meaning shown opposite it:-
Agent PERMATA MERCHANT BANK BERHAD, a company incorporated in
Malaysia and having its registered office at 27th Floor,
Menara Boustead, ▇▇. ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ or any successor as agent of the Lenders under
this Agreement;
Arranger PERMATA MERCHANT BANK BERHAD, a company incorporated in
Malaysia and registered office at 27th Floor, Menara
Boustead. ▇▇. ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ or
any successor as arranger of the Facility under this
Agreement;
Assignment the assignment by the Borrower of all its rights interest
and title in and to the Project Proceeds credited and
maintained in the Project Account from time to time in
favor of the Agent as security for the Facility and
substantially in the form set out in Schedule 10 hereof;
Availability Period the period commencing on the date of this Agreement and
ending on the close of business
2
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
in Kuala Lumpur on the Business Day falling twelve (12)
months after that date; on the Business Day falling
twelve (12) months after that date;
▇▇▇▇▇ the Banking and Financial Institutions Act, 1989;
Base Lending Rate the rate of interest per annum from time to time
prescribed by a Participant Commercial Bank (and as
varied from time to time by such Participant Commercial
Bank as an indicator rate against which rates of interest
for loans made in Ringgit Malaysia in Malaysia to
customers of Participant Commercial Bank (other than
customers in priority sectors of lending from time to
time prescribed by Bank Negara Malaysia or any other
relevant monetary or fiscal authority in Malaysia) is
determined by the addition or otherwise of margins, which
rate is presently called the Base Lending Rate and shall
mean any such indicator rate by whatever other name
called by such Participant Commercial Bank from time to
time;
Beneficiaries the Arranger, the Agent and the Lenders;
BOC BANK OF COMMERCE (M) BERHAD;
Borrowed Money includes:-
(i) the principal amount outstanding in respect of any
debentures of the Borrower;
(ii) the principal amount outstanding under any
acceptance credit (not being an acceptance in
relation to the purchase or sale of goods in the
ordinary course of trading) opened by any bank or
accepting house on behalf of or in favor of the
Borrower;
(iii) the nominal amount of any share capital and the
principal amount of any
3
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
debentures or other Borrowed Money of any person
not being the Borrower, the redemption or repayment
whereof is guaranteed or secured by the Borrower;
(iv) any fixed or minimum premium payable on final
redemption or repayment of any debentures, share
capital or other Borrowed Money falling to be taken
into account; and
(v) any obligation to pay money under any guarantee,
financial lease, hire purchase or conditional sale
agreement;
Borrower SYARIKAT TELEFON WIRELESS (M) SDN. BHD., a private
company with limited liability incorporated under the
laws of Malaysia and having its registered office at 2nd
Floor, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇;
Business Day a day (other than a Saturday) on which banks are open in
Kuala Lumpur for the transaction of business of the
nature required by this Agreement;
Charge a charge under the National Land Code, 1965, over the
Land, to be given by ▇▇▇▇▇ ▇▇▇▇▇▇▇ in favor of the Agent,
substantially in the form set out in Schedule 5;
Collateral Agreement the agreement entered into between (1) the shareholders
of the Borrower, (2) the Borrower and (3) the Agent
substantially in the form set out in Schedule 12.
Commitment in relation to each Lender means the amount which it is
for the time being committed to lend under the Facility
being (subject to reduction and cancellation pursuant to
this Agreement) the amount in Ringgit Malaysia set out
opposite the name of such Lender in the third column of
Schedule 1 or, as the case may be, arising pursuant to
any Transfer Certificate, as adjusted at any time in
4
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
accordance with the terms hereof or any Transfer
Certificate;
Corporate Guarantee the corporate guarantee and indemnity substantially in
the form set out in Schedule 8 duly executed by ▇▇▇▇▇▇▇
in favor of the Agent;
Debenture A a debenture to be given by the Borrower in favor of the
Agent as security to the Facility, substantially in the
form set out in Schedule 6;
Debenture B a debenture to be given by ▇▇▇▇▇▇▇ in favor of the Agent
as security for the Facility, substantially in the form
set out in Schedule 7;
Debentures Debenture A and Debenture B;
Drawing the amount of a drawing under the Facility made or to be
made in accordance with the provisions of this Agreement;
Drawing Notice a notice of drawing duly completed and signed on behalf
of the Borrower which:-
(a) in the case of the Drawing under Tranche I of the
Facility, is substantially in the form set out in
Schedule 4A; and
(b) in the case of a Drawing under Tranche II of the
Facility, is substantially in the form set out in
Schedule 4B;
Effective Cost of in relation to a Participant Merchant Bank and any
Funds Interest Period, the rate per annum which is the cost to
that Participant Merchant Bank of funding its
participation in the relevant Drawing or the Loan or the
relevant part of it for that Interest Period, being the
aggregate of the rate at which Ringgit Malaysia deposits
are offered for the same period as that Interest Period
to that Participant Merchant Bank and the amount
(expressed as a percentage rate per annum)
5
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
required to compensate that Participant Merchant Bank for
the cost to it of complying with, in respect of the
relevant Drawing or the Loan or the relevant part of it,
reserve, liquidity or other requirements imposed by Bank
Negara Malaysia or any law;
Ericsson Contract the contract awarded on the 15th day of September, 1994
by the Borrower to the Project Contractor for the design,
supply and installation of a Public Switched Wireless
Network (as defined in the License);
Event of Default any of the events mentioned in Clause 13.1 or any event
which with the giving of notice and/or the lapse of time
and/or a determination being made under the relevant
paragraph, would constitute any of the events mentioned
in Clause 13.1;
Existing Charge the charge created vide Presentation No. 605/95 by ▇▇▇▇▇
▇▇▇▇▇▇▇ in favor of BOC over the Land and security for
the Existing Facility;
Existing Facility the term loan facility for Ringgit Malaysia Six Million
(RM6,000,000.00) made available by BOC to ▇▇▇▇▇ ▇▇▇▇▇▇▇;
Existing Loan all amounts owing by ▇▇▇▇▇ ▇▇▇▇▇▇▇ to BOC under the
Existing Facility;
Facility the term loan facility referred to in Clause 2, the terms
and conditions of which are set out in this Agreement;
Fixed Deposit the fixed deposit(s) held under the certificate(s) more
particularly described in Schedule A of the MOP and any
renewal(s) thereof up to the principal sum of Ringgit
Malaysia One Million (RM1,000,000.00);
Fixed Deposit Bank the bank in which the Borrower shall be placing the Fixed
Deposit;
Guarantors Personal Guarantors and SHUBILA;
6
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
Guarantees Personal Guarantee and Corporate Guarantee;
Instructing Group a Lender or group of Lenders whose aggregate Commitments
exceeds sixty per cent (60%) of the total Commitments;
Interconnect the agreement dated 16th day of August, 1994 between
Agreement TELEKOM and the Borrower in respect of the access of and
the interconnection between the wireless local loop
network to TELEKOM's public switch telephone network;
Interest Payment Date the last day of an Interest Period save and except if a
six (6) month Interest Period is selected by the Borrower
pursuant to Clause 6.1, Interest Payment Date shall be
the last day of every quarter thereof,
Interest Period the period determined in accordance with Clause 6.1 but
so that:
(a) the first Interest Period:-
(i) in respect of the first Drawing shall commence
on the date of that Drawing and expire on the
date falling one (1) three (3) or six (6) months
as the case may be after the date of that
Drawing; and
(ii)in respect of any Drawing other than the first
Drawing shall commence on the date of that
Drawing and shall expire at the end of the
Interest Period current at the time of that
Drawing;
(b) each subsequent Interest Period shall commence on
the last day of the previous one;
(c) an Interest Period which would otherwise end on a
day which is not a Business Day shall end on the
next succeeding Business Day or, if that Business
Day
7
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
falls in the following month, on the preceding
Business Day;
(d) if an Interest Period is extended or shortened by
the application of (c) above, the following Interest
Period shall (without prejudice to the application
of (c) above) end on the day on which it would have
ended if the preceding Interest Period had not been
so extended or shortened;
(e) any amount to be repaid under Clause 7.1 shall have
a final Interest Period expiring on the relevant
date for repayment;
Land all that piece of land held under Pajakan Negeri No.
Pendaftaran 2784, Lot ▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Persekutuan;
Lenders those of the financial institutions listed in Schedule 1
of this Agreement and any subsequent successors,
Transferees and assigns which are for the time being
participating in the Facility or the Loan; and where the
context so requires or admits, references to the Lenders
shall be construed as references to any one or more of
them;
License the domestic wireless telecommunications license
effective from the 24th day of December, 1994 granted to
the Borrower under the Telecommunications Act 1950 by the
Minister of Energy, Telecommunications and Post, Malaysia
upon terms and conditions as set out in the License;
Loan the aggregate principal amount of all drawings made on
the Facility and for the time being outstanding;
Loan Documents this Agreement, the Collateral Agreement and the Security
Documents;
8
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
Margin two point five per cent (2.5%) per annum;
MOP the memorandum of pledge over the Fixed Deposit to be
given by the Borrower in favor of the Agent as security
for the Facility, substantially in the form set out in
Schedule 14;
Participant Commercial
Bank a Lender which is licensed under ▇▇▇▇▇ to carry on
banking business;
Participant Merchant
Bank a Lender which is licensed under ▇▇▇▇▇ to carry on
merchant banking business;
Personal Guarantee the guarantee and indemnity substantially in the form set
out in Schedule 9, duly executed by the Personal
Guarantors in favor of the Agent;
Personal Guarantors the following parties:-
(1) [*];
(2) [*]; and
(3) [*];
Project the project comprising a network of installed planned or
proposed operations to be undertaken by the Borrower in
accordance with the provisions of the License for the
purpose of providing wireless telecommunication services
to subscribers of the network within Malaysia and shall
include two way, transmission and reception of
terrestrial telecommunications and the network shall
consist of..-
(a) wireless local loop subscriber systems;
______________
*Confidential portion has been omitted and filed separately with the Commission.
9
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd
Facility : Term Loan Facility of RM91,000,000.00
(b) cabling systems to extend the range of wireless
services;
(c) network switching systems; and
(d) network transmission systems, which are more clearly
specified in the License.
Project Account the account of the Borrower opened and maintained or to
be opened and maintained with the Project Account Bank to
receive the Project Proceeds;
Project Account Bank PERWIRA AFFIN BANK BERHAD or such other licensed bank
acceptable to the Agent and appointed by the Borrower
with whom the Project Account is to be opened and
maintained;
Project Accountant COOPERS & ▇▇▇▇▇▇▇ or such other firm of accountants
acceptable to the Agent to be appointed by the Borrower
as accountant for the Project to monitor all incoming and
outgoing funds in relation to the Project Account;
Project Contractor ERICSSON TELECOMMUNICATIONS SDN. BHD. and having its
principal place of business at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇/▇, ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇;
Project Proceeds such monies payable to the Borrower including but not
limited to equity, shareholders' advances, loan drawings
and revenue proceeds received by the Borrower in respect
of the Project;
RM & Ringgit Malaysia the lawful currency of Malaysia and, in relation to all
payments to be made under this Agreement, same day funds;
Security Documents the Assignment, the Charge, the Debentures, the
Guarantees, the MOP and any other documents for the time
being or from time to time constituting security for the
obligations and liabilities of the Borrower
10
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd
Facility : Term Loan Facility of RM91,000,000.00
under this Agreement; and references to the Security
Documents shall include references to any one or more of
them;
Security Interest any mortgage, charge, pledge, lien, right of set off or
any security interest whatsoever, howsoever created or
arising;
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ SDN. BHD., a company incorporated under the
laws of Malaysia and having its registered office at 2nd
Floor, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇;
SHUBILA SHUBILA HOLDINGS SDN. BHD., a company incorporated under
the laws of Malaysia and having its registered office at
Suite ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, President House, ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇;
TELEKOM TELEKOM MALAYSIA BERHAD;
Third Parties SHUBILA, ▇▇▇▇▇ ▇▇▇▇▇▇▇, the Personal Guarantors and the
shareholders of the Borrower;
Tranche I an amount not exceeding Ringgit Malaysia Six Million out
of the Facility and which is to be utilized only for the
purpose stated in clause 2.2(a);
Tranche II the Facility amount of Ringgit Malaysia Ninety One
Million (RM91,000,000.00) less the amount actually
drawndown under Tranche I and which is to be utilized for
the purpose stated in clause 2.2(b);
Transferee a bank or other financial institution to which a Lender
seeks to transfer all or part of such ▇▇▇▇▇▇'s rights and
obligations under the Loan Documents;
Transfer Certificate a certificate substantially in the form set out in
Schedule 13 signed by a Lender and a Transferee whereby:-
11
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd
Facility : Term Loan Facility of RM91,000,000.00
(i) the Lender seeks to procure the transfer to such
Transferee of all or part of the Lender's rights and
obligations under the Loan Documents upon and
subject to the terms and conditions set out in
Clause 19 of this Agreement; and
(ii) such Transferee undertakes to perform the
obligations it will assume as a result of delivery
of such certificate to the Lender as is contemplated
in clause 19.3 of this Agreement;
Transfer Date in relation to any Transfer Certificate, the date for the
making of the transfer as specified in schedule to such
Transfer Certificate;
1.2 CONSTRUCTION
Except where the context otherwise requires, any reference in this
Agreement to:-
(a) an "agreement" also includes a concession, contract, deed, franchise,
license, treaty or undertaking (in each case, whether oral or written);
(b) the "assets" of any person shall be construed as a reference to the whole
or any part of its business, undertaking, property, assets and revenues
(including any right to receive revenues);
(c) "equity share" shall be construed in accordance with Section 4 of the
Companies Act, 1965;
(d) a "guarantee" also includes any other obligation (whatever called) of any
person to pay, purchase, provide funds (whether by way of the advance of
money, the purchase of or subscription for shares or other securities, the
purchase of assets or services, or otherwise) for the payment of, indemnify
against the consequences of default in the payment of, or otherwise be
responsible for, any indebtedness of any other person;
(e) "indebtedness" includes any obligation (whether present or future, actual
or contingent, secured or unsecured, as principal or surety or otherwise)
for the payment or repayment of money;
12
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd
Facility : Term Loan Facility of RM91,000,000.00
(f) a "law" includes common or customary law and any constitution, decree,
judgment, legislation, order, ordinance, regulation, statute, treaty or
other legislative measure in any jurisdiction or any present or future
directive, regulation, request or requirement (in each case, whether or not
having the force of law but, if not having the force of law, the compliance
with which is in accordance with the general practice of persons to whom
the directive, regulation, request or requirement is addressed);
(g) "related companies" or "related company" shall be construed in accordance
with section 6 of the Companies Act 1965;
(h) "subsidiaries" or "subsidiary" shall be construed in accordance with
Section 5 of the Companies Act, 1965.
1.3 HEADINGS
Headings and the table of contents are for ease of reference only.
2. THE FACILITY
2.1 FACILITY
Subject to the provisions of this Agreement, the Lenders will make
available to the Borrower a term loan facility in the maximum aggregate
principal amount of Ringgit Malaysia Ninety One Million (RM91,000,000.00) only.
2.2 PURPOSE
(a) Tranche I of the Facility may be used by the Borrower only for the purpose
of providing funds for repayment of the Existing Loan.
(b) Tranche II of the Facility may be used by the Borrower only for payment of
development cost including the cost of equipment, fixtures and other
incidental cost relating to the implementation of the Project and which are
acceptable to the Agent.
3. SYNDICATE
3.1 PARTICIPATION
13
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd
Facility : Term Loan Facility of RM91,000,000.00
Each of the Lenders shall, subject to the provisions of this Agreement,
participate in a Drawing on the Facility in the proportion which its commitment
bears to the aggregate amount of the maximum liability of the Lenders
participating in that Drawing on the Facility.
3.2 OBLIGATIONS SEVERAL
The rights and obligations of each of the Lenders under this Agreement are
several. Failure of a Lender to perform its obligations under this Agreement
shall neither:-
(a) result in any of the Beneficiaries incurring any liability whatsoever; nor
(b) relieve the Borrower or any of the Beneficiaries from their respective
obligations under this Agreement.
4. CONDITIONS PRECEDENT
4.1 CONDITIONS
(a) Tranche I of the Facility shall become available to the Borrower on the
date two (2) Business Days after the Agent has received the documents or
evidence set out in Part A of Schedule 2 in each case in form and content
satisfactory to the Agent.
(b) Tranche II of the Facility shall become available to the Borrower on the
date two (2) Business Days after the Agent has received the documents or
evidence set out in both Part A and Part B of Schedule 2 in each case in
the form and content satisfactory to the Agent.
4.2 NOTICE
The Agent shall notify the Lenders and the Borrower after the Facility has
become available to the Borrower in accordance with Clause 4.1.
4.3 WAIVER OF CONDITION PRECEDENT
The terms and conditions set out in Schedule 2 are inserted for the sole
benefit of the Lenders and may be waived by the Instructing Group through the
Agent in whole or in part with or without terms or conditions without
prejudicing the right of the Lenders to assert such
14
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd
Facility : Term Loan Facility of RM91,000,000.00
terms and conditions in whole or in part with regard to subsequent Drawings on
the Facility.
5. DRAWINGS
5.1 CONDITIONS FOR DRAWING UNDER TRANCHE I
If:-
(a) no Event of Default has occurred or would occur as a result of the making
of the Drawing;
(b) the Agent has received the relevant Drawing Notice by the fifth (5th)
Business Day or such lesser number of Business Days acceptable to the Agent
before the date of the proposed Drawing;
(c) there has been no material adverse change in the financial conditions of
the Borrower since the date referred to in Clause 9.1(h);
(d) each of the representations and warranties mentioned in Clause 9.1 remains
accurate at the date of the proposed Drawing as if given on that date by
reference to the facts and circumstances then existing;
(e) all fees and expenses due and payable under Clause 17 have been paid in
full by the Borrower,
then subject to the provisions of this Agreement, the Borrower may on a Business
Day during the Availability Period, but not thereafter make one (1) Drawing
under Tranche I of the Facility. Any amount undrawn shall be cancelled after
the Availability Period unless otherwise agreed between the Borrower and the
Instructing Group.
5.2 CONDITIONS FOR DRAWING UNDER TRANCHE II OF THE FACILITY
If:-
(a) no Event of Default has occurred or would occur as a result of the making
of the Drawing;
(b) the Agent has received the relevant Drawing Notice by the fifth (5th)
Business Day or such lesser number of Business Days acceptable to the Agent
before the date of the proposed Drawing;
15
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd
Facility : Term Loan Facility of RM91,000,000.00
(c) there has been no material adverse change in the financial conditions of
the Borrower since the date referred to in Clause 9.1(h);
(d) each of the representations and warranties mentioned in Clause 9.1 remains
accurate at the date of the proposed Drawing as if given on that date by
reference to the facts and circumstances then existing;
(e) all fees and expenses due and payable under Clause 17 have been paid in
full by the Borrower,
then, subject to the provisions of this Agreement, the Borrower may on Business
Days during the Availability Period, but not thereafter, make Drawings under
Tranche II of the Facility provided that every Drawing shall be supported by
relevant invoice(s) acceptable to the Agent or such other document(s) acceptable
to the Agent none of which shall have been the subject of any previous request
for Drawings. Any amount undrawn shall be cancelled after the Availability
Period unless otherwise agreed between the Borrower and the Instructing Group.
5.3 AMOUNT
The amount of each Drawing on Tranche II shall be in a minimum of Ringgit
Malaysia Five Hundred Thousand (RM500,000.00) and in an integral multiple of
Ringgit Malaysia One Hundred Thousand (RM100,000.00).
5.4 NOTICE TO LENDERS
Subject to Clause 5.1 or Clause 5.2 as the case may be when the Agent
receives a Drawing Notice on the Facility it shall, at least two (2) Business
Days before the proposed date of issue of the Drawing notify each of the Lenders
of the amount and terms of the proposed Drawing, and each Lender shall, subject
to the provisions of this Agreement, make available to the Agent its
participation in each such Drawing.
5.5 IRREVOCABILITY
A Drawing Notice shall be irrevocable and, subject to Clause 11, the
Borrower shall borrow the stated amount on the stated date.
5.6 CANCELLATION
16
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd
Facility : Term Loan Facility of RM91,000,000.00
The Facility may be cancelled in part or in whole during the Availability
Period by the Borrower upon the Borrower giving thirty (30) days prior written
notice to the Agent.
6. INTEREST
6.1 INTEREST PERIOD
Subject to the provisions in the definition of "Interest Period" and to the
availability of funds for the Interest Period determined pursuant to this
Clause, each Interest Period shall be three (3) months unless not later than
10:30 am (Kuala Lumpur time ) by the fifth (5th) Business Day before the first
day of an Interest Period the Agent has received from the Borrower a notice
selecting a period of one (1) or six (6) months PROVIDED THAT where any Lender
gives the Agent notice on the first day of an Interest Period that funds are not
available to it for the forthcoming Interest Period determined pursuant to this
Clause then the Interest Period for the participation of that Lender in the Loan
shall be such period as is selected by such ▇▇▇▇▇▇ and notified to the Agent.
6.2 RATE
The rate of interest payable on the Loan or any part of it for each
Interest Period in relation to the participation of the Lenders shall be the
rate determined by the Agent to be:-
(a) in the case of a Participant Commercial Bank, the aggregate of the Margin
and the rate notified to the Agent by such Participant Commercial Bank as
its Base Lending Rate; and
(b) in the case of a Participant Merchant Bank, the aggregate of the Margin and
the rate notified to the Agent by such Participant Merchant Bank as its
Effective Cost of Funds.
6.3 OPTION
Notwithstanding clause 6.2, subject to the availability of fixed rate funds
and to the prior consent of each of the Lenders or the relevant Lenders as the
case may be, the Borrower may elect to convert the rate(s) of interest
prescribed in clause 6.2 above into fixed rates of interest to be payable in
respect of the whole of the Loan or any part thereof to which the relevant
Lenders have consented PROVIDED THAT:-
17
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd
Facility : Term Loan Facility of RM91,000,000.00
(a) the Agent shall have received from the Borrower not less than forty five
(45) days prior written notice of the proposed Conversion such notice to be
accompanied by the written consent of the relevant Lenders; and
(b) the conversion takes place on an Interest Payment Date falling after the
expiry of the Availability Period.
6.4 PAYMENT
Interest under this Agreement shall be calculated on the basis of actual
days elapsed and a year of 365 days and shall be paid by the Borrower to the
Agent for the account of the Lenders in arrear on each Interest Payment Date.
6.5 AGENT'S CERTIFICATE
The Agent shall notify the Borrower and the Lenders of each rate of
interest for the Loan as soon as it is determined under this Agreement. The
certificate of the Agent as to a rate of interest shall, in the absence of
manifest error, be conclusive.
6.6 VARIATION
Notwithstanding the provisions relating to the rate or rates of interest
payable in respect of the Loan as hereinbefore provided save and except for the
rate of interest converted pursuant to Clause 6.3, each Lender shall be entitled
to vary at its discretion such rate or rates of interest payable on the Loan by
varying the Margin or otherwise. A Lender intending to vary the rate of
interest payable to it shall give written notice of such intention to the Agent
who shall in turn notify the Borrower. The new rate of interest shall be
payable as from the date specified in the notice from the Agent to the Borrower.
Service of such notice shall be effected in the same manner as a notice
demanding payment of the balance due as hereinafter provided.
7. REPAYMENT
7.1 LOAN
(a) Subject to the terms of this Agreement the amount of the Loan at the end of
the Availability Period shall be repaid by eleven (11) installments. In
the event the principal sum of the Facility is fully drawn to its principal
limit, the installments shall be made by the Borrower at the times and in
the amounts set out
18
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd
Facility : Term Loan Facility of RM91,000,000.00
hereunder, the first installment being made on the date which shall be
twenty four (24) months from the date of first Drawing and the other ten
(10) installments on dates falling at successive six (6) monthly intervals
thereafter.
MONTHS FROM DATE OF FIRST DRAWING AMOUNT
(RM)
24 6,500,000
30 6,500,000
36 6,500,000
42 8,000,000
48 8,000,000
54 8,000,000
60 9,000,000
66 9,000,000
72 9,000,000
78 10,000,000
84 10,500,000
TOTAL 91,000,000
(b) If the amount of the Loan at the end of the Availability Period is less
than Ringgit Malaysia Ninety One Million (RM91,000,000.00) the amount of
each installment shall be proportionately reduced so that the rate of
amortization of the Loan is maintained.
8. PREPAYMENT
8.1 PREPAYMENT
Subject to the terms of this Agreement the Borrower may after the expiry of
the Availability Period upon payment of all accrued interest and other fees
payable under the terms of this Agreement prepay the Loan in whole or in part by
a minimum sum of Ringgit Malaysia One Million (RM1,000,000.00) or integral
multiples thereof on any Interest Payment Date provided that it has given the
Agent not less than thirty (30) Business Days' notice stating the principal
amount to be prepaid or otherwise by paying to the Agent a prepayment premium
equivalent to a sum which is the higher of one per cent (1%) flat of the amount
to be prepaid and the funding loss of each Lender on the amount to be prepaid in
lieu of notice. Such prepayment fee shall be paid to the Agent on the date of
prepayment for the pro rata account of the Lenders.
19
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
8.2 IRREVOCABILITY
Any notice under Clause 8.1 shall be irrevocable. The amount of any
prepayment shall become due and payable on the applicable Interest Payment Date.
8.3 NO REDRAWING
Any amount of the Loan which is prepaid may not be redrawn and shall be
applied towards the Borrower's payment obligations under Clause 7.1 in inverse
order of maturity.
8.4 LIMITATION
The Borrower shall not be entitled to prepay the Loan or any part thereof
or cancel the Facility in whole or in part otherwise than as specifically
provided in this Agreement.
9. REPRESENTATIONS AND WARRANTIES
9.1 REPRESENTATIONS AND WARRANTIES
The Borrower acknowledges that each of the Beneficiaries have entered into
this Agreement and participated in the Facility in full reliance on
representations by the Borrower in the following terms; and the Borrower now
warrants to each of them that:-
(a) STATUS
the Borrower is duly incorporated with limited liability under the laws of
Malaysia;
(b) POWERS AND AUTHORIZATIONS
the memorandum and articles of association of the Borrower include
provisions which give power, and all necessary corporate authority has been
obtained and action taken, for the Borrower to own its assets, carry on its
business and operations as they are now being conducted, and execute and
deliver, and perform the transactions contemplated in, this Agreement and
the other Loan Documents to which it is a party and this Agreement and the
other Loan Documents to which it is a party constitute valid and binding
obligations of the Borrower enforceable in accordance with their respective
terms;
20
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(c) NON-VIOLATION
neither the signing and delivery of this Agreement or the other Loan
Documents to which it is a party nor the performance of any of the
transactions contemplated herein or therein does or will contravene or
constitute a default under, or cause to be exceeded any limitation on it or
the powers of its directors imposed by or contained in, (i) any law by
which it or any of its assets is bound or affected, (ii) its memorandum or
articles of association or (iii) any agreement to which it is a party or by
which any of its assets is bound;
(d) CONSENTS
no authorization, approval, consent, license, exemption, registration,
recording, filing or notarization and no payment of any duty or tax and no
other action whatsoever is necessary or desirable to ensure the validity,
enforceability or priority of the liabilities and obligations of the
Borrower or the rights of the Beneficiaries under this Agreement or the
other Loan Documents save for payment of stamp duty in Malaysia, the
registration of the Charge with the Registry of Titles, Wilayah
Persekutuan, pursuant to the National Land Code, 1965, the lodgment of this
Agreement, the Assignment, the Debentures and the Charge with the Registrar
of Companies in accordance with section 108 of the Companies Act 1965 and
the lodgment of the Debentures with the Registry of the High Court of
Malaya for registration of the power of attorney contained therein;
(e) NO DEFAULT
no event has occurred which constitutes, or which with the giving of notice
and/or the lapse of time and/or a relevant determination would constitute,
a contravention of, or default under, any agreement or instrument by which
the Borrower or any of its assets is bound or affected, being a
contravention or default which might either have an adverse effect on the
business, assets or condition of the Borrower or adversely affect its
ability to observe or perform its obligations under this Agreement or the
other Loan Documents to which it is a party;
21
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(f) LITIGATION
no litigation, arbitration or administrative proceeding or claim which
might by itself or together with any other such proceedings or claims
either have an adverse effect on its business, assets or condition or
adversely affect its ability to observe or perform its obligations under
this Agreement or the Loan Documents to which it is a party, is presently
in progress or pending or, to the best of the knowledge, information and
belief of the Borrower, threatened against the Borrower or any of its
assets;
(g) TAX LIABILITIES
all necessary returns have been delivered by or on behalf of the Borrower
to the relevant taxation authorities and the Borrower is not in default in
the payment of any taxes, and no claim is being asserted with respect to
taxes which is not disclosed in the financial statements referred to in
paragraph (h) below;
(h) ACCOUNTS
the audited financial statements (including the income statement and
balance sheet) of the Borrower for the year ended 31st December, 1994 have
been prepared on a basis consistently applied in accordance with generally
accepted accounting principles in Malaysia and give a true and fair view of
the results of its operations for that year and the state of its affairs at
that date, and in particular accurately disclose or reserve against all the
liabilities (actual or contingent) of the Borrower;
(i) ASSETS
the Borrower is the beneficial owner and has title to all its properties
and assets;
(j) NO SECURITY INTEREST
none of the assets of the Borrower is affected by any Security Interest,
and the Borrower is not a party to, nor is it or any of its assets bound
by, any order, agreement or instrument under which the Borrower is, or in
certain events may be, required to create, assume or permit to arise any
Security Interest, other than those created pursuant to this Agreement and
any permitted under clause 10.1(a);
22
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(k) CHANGE IN BORROWER
since the date the Borrower applied for the Facility there has been no
material alterations or changes in the constitution, condition and business
or other affairs of the Borrower which could or might adversely affect the
ability of the Borrower to perform its obligations under this Agreement and
the other Loan Documents to which it is a party;
(l) CHANGE IN LAW
no extraordinary circumstances or change of law or other government action
has occurred which shall make it improbable that the business of the
Borrower can be carried out or that the Borrower will be able to observe
and perform the covenants and obligations on its part to be performed and
observed under this Agreement and the other Loan Documents to which it is a
party;
(m) INFORMATION
the information furnished by the Borrower in connection with the Land and
the Project do not contain any untrue statement or omit to state any fact
the omission of which makes the statements therein, in the light of the
circumstances under which they were made, misleading, and all expressions
of expectation, intention, belief and opinion contained therein were
honestly made on reasonable grounds after due and careful inquiry by the
Borrower;
(n) HOLDING COMPANY
SHUBILA is the holding company of the Borrower with the meaning of the
Companies Act, 1965.
(o) LICENSE THE ERICCSSON CONTRACT AND THE INTERCONNECT AGREEMENT
(i) the License is subsisting and has not been revoked or amended in whole
or in part;
(ii) the Ericcsson Contract is subsisting and has not been varied in whole
or in part and there is no default under the Ericcsson Contract by any
of the parties thereto; and
(iii)the Interconnect Agreement is subsisting and has not been varied in
whole or in part and there is no default under the Interconnect
Agreement by any of the parties thereto.
23
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(p) DISCLOSURE
the Borrower has fully disclosed in writing to the Agent all facts relating
to the Borrower which the Borrower knows or should reasonably know and
which are material for disclosure to the Beneficiaries in the context of
the Facility.
9.2 REPETITION
Each of the above representations and warranties will be correct and
complied with in all respects on each date on which a Drawing is requested or to
be made and on each Interest Payment Date as if repeated then by reference to
the then existing circumstances, except that each reference to financial
statements in paragraph (h) above shall be construed as a reference to the then
latest available audited financial statements.
10. UNDERTAKINGS
10.1 The Borrower undertakes with each of the Beneficiaries that, from the date
of this Agreement until all its liabilities under this Agreement have been
discharged:
(a) RANKING AND NEGATIVE PLEDGE
The liabilities of the Borrower under this Agreement rank and will rank
(and would rank if the Security Documents to which it is a party were
neither executed nor required) at least equally and ratably (pari passu) in
point of priority and security with all its other liabilities (both actual
and contingent) except:
(i) liabilities which are subject to liens or rights of set off arising
in the normal course of trading and the aggregate amount of which is
not material;
(ii) liabilities which are preferred solely by Malaysian law and not by
reason of any Security Interest; and
(iii) any other security created or outstanding with the prior consent of
the Instructing Group,
and the Borrower will not create or permit to exist over all or any part of
its business or assets any Security Interest (other than those created
pursuant to this Agreement or any permitted under sub-paragraphs (i) and
(iii) above);
24
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(b) PREPARATION OF ACCOUNTS
The Borrower will prepare the financial statements referred to in Clause
10.1 (c) on a basis consistently applied in accordance with generally
accepted accounting principles in Malaysia and those financial statement
shall give a true and fair view of the results of the operations of the
Borrower for the period in question and the state of its affairs for the
period to which the financial statements are made up and shall disclose or
reserve against all the liabilities (actual or contingent) of the Borrower;
(c) INFORMATION
The Borrower will deliver to the Agent in sufficient numbers for each of
the Lenders:
(i) as soon as they become available (and in any event within ninety (90)
days after the end of each of its financial periods) copies of its
financial statements for that period which shall contain an income
statement and a balance sheet and be audited by a firm of independent
accountants;
(ii) within sixty (60) days after the end of each half year of its
financial year copies of a full report on its business for that
period which shall contain full particulars of its business and an
income statement and a balance sheet and also a full report on all
construction and installation works done on the Project for that
period and for that purpose shall maintain comprehensive records of
all such works and shall allow the Agent and consultants appointed by
the Agent to inspect such records from time to time as and when the
Agent so requests; all costs of and incidental to such inspection and
the fees of the consultants shall be borne and paid for by the
Borrower and until payment shall be a debt due under the terms of
this Agreement;
(iii) within thirty (30) days after the end of each of its financial year,
information on the Borrower's cashflow projections for the next
financial year;
(iv) within fifteen (15) days from the end of each month furnish to the
Agent information regarding the Borrower's management account and
monthly progress report on subscriber base, revenue proceeds and
expenditure statements;
25
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(v) promptly, such other financial or other information relating to the
Borrower and available to the Borrower as the Agent may reasonably
require from time to time, in addition to that expressly provided for
herein;
(d) CONSENTS
The Borrower will obtain and promptly renew from time to time, and will
promptly deliver to the Agent certified copies of, any authorization,
approval, consent, license, exemption, registration, recording, filing or
notarization as may be necessary or desirable to ensure the validity,
enforceability or priority of the liabilities and obligations of the
Borrower or the rights of the Beneficiaries under this Agreement and the
other Loan Documents to which it is a party and the Borrower shall comply
with the terms of the same;
(e) DEFAULT
If the Borrower becomes aware of the occurrence of an Event of Default it
will forthwith notify the Agent and provide the Agent with full details of
any steps which it is taking, or is considering taking, in order to remedy
or mitigate the effect of the Event of Default or the delay or suspension
or otherwise in connection therewith;
(f) INSURANCES
The Borrower shall maintain or cause the Project Contractor (as the case
maybe) to maintain such insurances up to their full insurable value as are
required by the terms of the Security Documents and such additional
insurances in respect of its assets and business against all risks
(including third party risks, contractor's all risks, workmen's
compensation and public liability insurance) which a prudent company
carrying on a similar business would normally insure and all such
insurances shall be in amounts, on terms and policies and with insurers
approved by the Agent and will not do or omit to do or suffer anything to
be done which might render any such insurance policies to be void or
voidable;
(g) BUSINESS
The Borrower will carry out and operate its business and affairs with due
diligence and efficiency and in accordance with sound
26
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
financial and industrial standards and practices and shall in particular
procure:-
(i) that at all times installation and construction works in respect of
the Project are carried out by ▇▇▇▇ qualified and experienced
personnel; and
(ii) all necessary licenses and comply with all regulations relating to
the Project and the carrying on of its business generally;
(h) LOANS TO OTHERS
The Borrower will not make any loans to any persons except with the prior
written consent of the Instructing Group;
(i) DIVIDENDS
The Borrower will not, except with the prior written consent of the
Instructing Group, declare, make or pay any dividend or other distribution
to its shareholders;
(j) INDEBTEDNESS TO OTHERS
Apart from indebtedness arising out of the provisions of this Agreement and
existing hire purchase and leasing financing obtained by the Borrower,
details of which have been made known to the Agent, the Borrower will not,
except with the prior written consent of the Instructing Group, incur any
indebtedness for Borrowed Money, or enter into any guarantee in respect of
any indebtedness of any person, unless such indebtedness is:-
(i) a short-term debt owing to a non-financial institution and payable on
demand or maturing by its terms within twelve (12) months after the
date on which it is originally incurred; and
(ii) regarded by the Borrower to be necessary for the normal course and
conduct of its operations and the Borrower shall have evidenced the
necessity thereof to the satisfaction of the Lenders;
(k) SUBORDINATION OF LOANS BY DIRECTORS, SHAREHOLDERS
OR RELATED COMPANIES
27
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
The Borrower will procure and ensure that all present and future loans
granted to it by any of its directors, shareholders or related companies
will be subordinated to the Loan and will not be repaid in whole or in part
without the prior written consent of the Instructing Group;
(l) ALTERATION TO MEMORANDUM OR ARTICLES
The Borrower will not alter its memorandum or articles of association
without the prior written consent of the Instructing Group;
(m) CHANGE IN SHAREHOLDERS AND SHAREHOLDINGS
Save and except for (i) changes in the shareholdings of the Borrower not
exceeding seven point five per cent (7.5%) of the Borrower's total paid up
capital and (ii) changes in the Borrower's shareholders which result in the
aggregate change in the shareholdings in the Borrower not exceeding seven
point five per cent (7.5%) of the Borrower's total paid up capital, the
Borrower will not allow any change in its shareholders or their
shareholdings in the Borrower as set out in clause 9.1(n) hereof without
the prior written consent of the Instructing Group;
(n) CHANGE IN DIRECTORS
The Borrower will not allow any change in the composition of its board of
directors without the prior written consent of the Instructing Group;
(o) NOTIFICATION OF DISPUTES
The Borrower will, by written notice, inform the Agent of:-
(i) any legal proceeding, litigation or claim, involving the Borrower;
(ii) any dispute between the Borrower and any Government or statutory body
in respect of any of the Borrower's lands and other assets;
(iii) any labor controversy which might result in a strike against the
Borrower;
(iv) any matter which has adversely affected or may adversely affect the
Borrower's ability to fulfill its obligations
28
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
under this Agreement, its financial position or its ability to repay
the Loan;
(p) PAYMENT OF OUTGOINGS
The Borrower will punctually pay all quit rents, assessments, rates,
license fees, taxes, utility charges, premia and all other outgoings
whatsoever payable from time to time in respect of its business and assets
as and when the same shall become due and payable and produce the receipt
therefor to the Agent as and when so requested.
(q) ADDITIONAL SECURITY
(i) The Borrower shall at any time if and when required by the
Instructing Group so to do execute in favor of the Agent or as the
Agent shall direct such legal or other mortgages charges assignments
transfers or agreements as the Instructing Group shall require of and
on all the Borrower's estate right title and interest in any property
or assets or business now belonging to or which may hereafter be
acquired by or belong to the Borrower (including any vendor's lien)
and the benefit of all licenses held in connection therewith to
secure all moneys and liabilities hereby agreed to be paid or
intended to be hereby secured, such mortgages charges assignments
transfers or agreements to be prepared by or on behalf of the Agent
at the cost of the Borrower and to contain all such terms and
conditions for the benefit of the Lenders as the Instructing Group
may reasonably require.
(ii) The Borrower shall at any time if and when required by the
Instructing Group so to do deposit with the Agent the documents of
title of any or all immovable properties vested in the Borrower for
any tenure and all or any debentures shares stocks or other
investments or securities registered in the name of the Borrower or
otherwise belonging to the Borrower. Such deposit may be by way of
collateral security for the repayment of moneys and liabilities
hereby secured and may also or otherwise be for the purpose of
securing any other moneys owing to the Lenders by the Borrower and
not secured thereby.
(r) PROJECT ACCOUNT
The Borrower shall forthwith open and maintain the Project Account with the
Project Account Bank to receive all the Project
29
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91, 000,000.00
Proceeds and save and expect with written consent of the Agent,
the Borrower shall not open and/or maintain any bank account in
respect of the Project Proceeds other than the Projcet Account.
(s) PROJECT ACCOUNTANT AND AUDITORS
The Borrower shall appoint the Project Accountant and auditors acceptable
to the Agent at the expense of the Borrower and the Borrower shall ensure
that the Project Accountant is accountable to the Agent in respect of the
Project and the auditors so appointed shall provide the Agent with copies
of all requisite correspondence in respect of the Borrower.
(t) PROJECT SITE
The Borrower shall permit any of the Beneficiaries to enter and visit the
site of the Project at any time.
(u) VALUATION
The Borrower shall forthwith provide the Agent with an update valuation
report by a valuer on the Agent's panel of valuer in respect of the Land as
and when notified by the Agent to do provided that the Agent may not
request for more than one (1) update valuation in each calendar year.
(v) LICENSE THE ERICCSSON CONTRACT AND THE INTERCONNECT AGREEMENT
The Borrower shall comply with the requirements of the License and the
terms and conditions of the Ericcsson Contract and the Interconnect
Agreement.
(w) PARTNERSHIP
The Borrower shall not enter into any partnership, profit-sharing or
royalty agreement or other similar arrangement whereby the Borrower's
income and profits are, or might be, shared with any other person, firm or
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 without the written consent of the Instructing
Group.
11. CHANGES IN CIRCUMSTANCES
11.1 ILLEGALITY
30
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91, 000,000.00
Where the introduction, imposition or variation of any law or any change in
the interpretation or application of any law or any change in circumstances in
relation to compliance with existing laws (such as those set out in Section
62(1)(b) of ▇▇▇▇▇) makes it unlawful or impractical without breaching such law
for any Lender to allow all or part of its participation in the Facility or the
Loan to remain outstanding or to fund all or part of its participation in a
Drawing or the Loan or to carry out all or any of its other obligations under
this Agreement or to charge or receive interest at the rate applicable, upon
that Lender notifying the Agent:
(a) the Agent shall notify the Borrower and that ▇▇▇▇▇▇'s obligation to
participate in any future Drawings shall forthwith be suspended and the
Facility shall be suspended to such extent;
(b) the Borrower shall, upon being so notified, prepay to the Agent for the
account of that Lender all of that ▇▇▇▇▇▇'s participation in the Loan in
accordance with Clause 11.4 on such date as that Lender shall certify to be
necessary to comply with the relevant law and that ▇▇▇▇▇▇'s obligation to
participate in any future Drawings shall terminate and the Facility shall
be cancelled to the extent of that ▇▇▇▇▇▇'s participation;
11.2 INCREASED COSTS
Where any Lender determines that, as a result of the introduction or
variation of any law or any change in the interpretation or application of any
law, or compliance with any request (whether or not having the force of law)
from any central bank or other fiscal, monetary or other authority or agency,
the cost to that Lender of making or maintaining or funding its participation in
the Facility or the Loan is increased or the amount of any sum received or
receivable by it in respect of its participation in the Facility or the Loan or
the effective return to it under this Agreement is reduced or it is obliged to
make any payment (except in respect of tax on its overall net income) or
foregoes any interest or other return on, or calculated by reference to, the
amount of any sum received or receivable by it from the Borrower under this
Agreement, then:
(a) that Lender shall notify the Borrower through the Agent of such event
promptly upon its becoming aware of such event;
(b) the Borrower shall on demand pay to the Agent for the account of that
Lender such amounts as that ▇▇▇▇▇▇ from time to time and at any time
(including after a prepayment of that ▇▇▇▇▇▇'s participation) notifies the
Agent to be necessary to compensate
31
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91, 000,000.00
it for such increased cost, reduction, payment or foregone interest or
return; and
(c) at any time thereafter, so long as the circumstances giving rise to the
obligation to make the compensating payment continue:
(i) at the Borrower's irrevocable election (by notice to the Agent), that
▇▇▇▇▇▇'s obligation to participate in any future Drawings shall
terminate and the Facility shall be cancelled to such extent; and
(ii) the Borrower may, upon giving the Agent not less than 30 days' notice
which shall be irrevocable, prepay to the Agent for the account of
that Lender all of that ▇▇▇▇▇▇'s participation in the Loan subject to
and in accordance with Clauses 11.3 and 11.4.
11.3 PREPAYMENT
Where the Borrower has given notice under Clause 11.2 to prepay a ▇▇▇▇▇▇'s
participation in the Loan:
(a) the Borrower shall provide the Agent with satisfactory evidence that all
authorizations necessary to the prepayment have been unconditionally
obtained;
(b) the amount of the prepayment shall become due and payable on expiry of the
period specified in the notice to the Agent; and
(c) that ▇▇▇▇▇▇'s obligations to participate in further Drawings shall
terminate and the Facility shall be cancelled to the extent of that
▇▇▇▇▇▇'s participation.
11.4 AMOUNT
On prepaying a Loan or a ▇▇▇▇▇▇'s participation in the Loan under this
Clause 11, the Borrower shall pay to the Agent for the account of that ▇▇▇▇▇▇
accrued interest on that participation together with all other amounts due to
that Lender (including any sum payable under the indemnity contained in Clause
15.1) and, subject to such amounts having been paid, the amount of each
subsequent repayment installment shall be proportionately reduced.
11.5 CERTIFICATES
32
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91, 000,000.00
Any determination or notification by the Agent or any Lender concerning any
matter referred to in this Clause 11 shall, in the absence of manifest error, be
conclusive evidence as to that matter and shall be binding on the Borrower, the
Lenders and the Agent.
12. PAYMENTS
12.1 BY THE BORROWER
All payments to be made by the Borrower:
(a) for the account of any of the Lenders shall be made in Ringgit Malaysia in
immediately available funds not later than 11:30 a.m. (Kuala Lumpur time)
on the relevant day and shall be made to the Agent's account with Bank
Negara Malaysia or such other account as the Agent may have notified to the
Borrower for the account of the Agent who shall, before the close of
business in Kuala Lumpur on the date of receipt, remit to each Lender in
Ringgit Malaysia its portion of the payment so made by remitting it to any
account of that Lender which that ▇▇▇▇▇▇ may have previously notified to
the Agent.
(b) to the Agent or the Arranger shall be made in Ringgit Malaysia to such
account as they may specify by notice to the Borrower.
12.2 BY THE LENDERS
All amounts to be advanced by the Lenders to the Borrower under the
Facility shall be remitted in Ringgit Malaysia in immediately available
funds not later than 11:30 am. (Kuala Lumpur time) on the relevant day to
the Agent's account with Bank Negara Malaysia or such other account as the
Agent may have notified to the Lenders and the Agent shall make such
amounts available for the Borrower's benefit on the same day. If the Agent
makes available to the Borrower any amount which has not been made
unconditionally available to the Agent the Borrower shall forthwith on
notice from the Agent repay such amount to the Agent together with interest
on such amount until its repayment at a rate determined by the Agent to
reflect its cost of funds.
12.3 WITHHOLDINGS
All payments by the Borrower under this Agreement, whether in respect of
principal, interest, fees, commission or any other item, shall be made in full
without any deduction or withholding (whether in respect of set off,
counterclaim, duties, taxes, charges or otherwise
33
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91, 000,000.00
whatsoever) unless the deduction or withholding is required by law, in which
event the Borrower shall:
(a) ensure that the deduction or withholding does not exceed the minimum amount
legally required;
(b) forthwith pay to the Agent for the account of each Lender such additional
amount so that the net amount received by that Lender will equal the full
amount which would have been received by it had no such deduction or
withholding been made;
(c) pay to the relevant taxation or other authorities within the period for
payment permitted by applicable law the full amount of the deduction or
withholding (including, but without prejudice to the generality of the
foregoing, the full amount of any deduction or withholding from any
additional amount paid pursuant to this Clause 12.3); and
(d) furnish to the Agent on behalf of the Lender concerned, within the period
for payment permitted by the relevant law, either:
(i) an official receipt of the relevant taxation authorities involved in
respect of all amounts so deducted or withheld; or
(ii) if such receipts are not issued by the taxation authorities concerned
on payment to them of amounts so deducted or withheld, a certificate
of deduction or equivalent evidence of the relevant deduction or
withholding.
12.4 JUDGMENT CURRENCY
If, under any applicable law, whether as a result of a judgment against
the Borrower or the liquidation of the Borrower or for any other reason, any
payment under or in connection with this Agreement is made or is recovered in a
currency (the "other currency") other than that in which it is required to be
paid hereunder (the "original currency") then, to the extent that the payment to
the relevant payee (when converted at the rate of exchange on the date of
payment or, in the case of a liquidation, the latest date for the determination
of liabilities permitted by the applicable law) falls short of the amount unpaid
under this Agreement, the Borrower shall as a separate and independent
obligation, fully indemnify that payee against the amount of the shortfall; and
for the purposes of this sub-Clause "rate of exchange" means the rate at which
the relevant payee is able on the
34
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91, 000,000.00
relevant date to purchase the original currency in Kuala Lumpur with the other
currency.
12.5 DEFAULT INTEREST
(a) If the Borrower fails to pay any amount in accordance with this Agreement,
the Borrower shall pay interest in Ringgit Malaysia on that amount from the
time of default up to the time of actual payment (as well after as before
judgment) at the rates per annum which are one per cent (1%) per annum
above the rates payable under Clause 6.2 or such other rate or rates as
prescribed by the relevant Lender for such period as the relevant Lender
may from time to time select and notify the Borrower through the Agent.
For this purpose the Agent and the Arranger shall each be deemed to be a
Participant Merchant Bank.
(b) Interest under this Clause shall accrue daily on the basis of a year of 365
days from and including the first day to the last day of each period
selected by the relevant Lender under Clause 12.5(a) and shall be due and
payable by the Borrower at the end of each such period. So long as the
default continues, the rate referred to in Clause 12.5(a) shall be
calculated on a similar basis at the end of each period selected by the
relevant Lender and notified to the Borrower through the Agent and interest
payable under Clause 12.5(a) which is unpaid at the end of each period
selected shall thereafter itself bear interest at the rate provided in
Clause 12.5(a).
(c) Interest as set out in Clause 12.5(a) and (b) shall continue to be payable
notwithstanding that the relationship of banker/financier and customer
between the Lenders and the Borrower may cease for any reason whatsoever.
12.6 DATE
If any payment would otherwise be due on a day which is not a Business Day,
it shall be due on the next succeeding Business Day or, if that Business Day
falls in the following month, on the preceding Business Day.
13. DEFAULT
13.1 EVENTS
If:
35
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91, 000,000.00
(a) NON-PAYMENT
The Borrower fails to pay any amount due under this Agreement on the due
date or on demand, if so payable;
(b) BREACH OF OBLIGATIONS
The Borrower or any of the Third Parties fails to observe or perform any of
their respective obligations under this Agreement or the other Loan
Documents or under any other undertaking or arrangement entered into in
connection herewith or therewith, other than an obligation of the type
referred to in Clause 13.1(a) and, in the case of a failure capable of
being remedied, the Instructing Group do not determine, within fourteen
(14) days after the Borrower became aware of the failure, that it has been
remedied to the Instructing Group's' satisfaction;
(c) MISREPRESENTATION
Any representation, warranty or statement which is made (or acknowledged to
have been made) by the Borrower or any of the Third Parties in this
Agreement or the other Loan Documents or which is contained in any
certificate, statement, legal opinion or notice provided under or in
connection herewith or therewith proves to be incorrect in any material
respect, or if repeated at any time with reference to the facts and
circumstances subsisting at such time would not be accurate in all material
respects;
(d) INVALIDITY
Any provision of this Agreement or the other Loan Documents is or becomes,
for any reason, invalid or unenforceable;
(e) DISPOSAL OF ASSETS
The Borrower or any of its subsidiaries or related companies or any of the
Third Parties transfers or disposes of, or threatens to transfer or dispose
of, a substantial part of its, his or her business or assets and the result
of any of the foregoing is, in the determination of the Instructing Group,
adversely to affect the financial condition or ability of either the
Borrower or such Third Party to observe or perform its or his respective
obligations under this Agreement or the other Loan Documents;
(f) CESSATION OF BUSINESS
36
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91, 000,000.00
The Borrower or any of its subsidiaries or related companies or any of the
Third Parties changes or threatens to change the nature or scope of its or
his business, suspends or threatens to suspend a substantial part of the
present business operations which it or he now conducts directly or
indirectly, or any governmental authority expropriates or threatens to
expropriate all or part of its or his assets and the result of any of the
foregoing is, in the determination of the Instructing Group, adversely to
affect the respective financial condition or ability of either the Borrower
or such Third Party to observe or perform its or his obligations under this
Agreement or the other Loan Documents;
(g) CROSS-DEFAULT
Any indebtedness of the Borrower or any of its subsidiaries or related
companies or any of the Third Parties becomes due, any guarantee of the
Borrower or any of its subsidiaries or related companies or any of the
Third Parties is not discharged at maturity or when called or the Borrower
or any of its subsidiaries or related companies or any of the Third Parties
goes into default under, or commits a breach of, any instrument or
agreement relating to any such indebtedness or guarantee;
(h) APPOINTMENT OF RECEIVER, LEGAL PROCESS
An encumbrancer takes possession of, or a trustee or administrative or
other receiver or similar officer is appointed in respect of, all or any
part of the business or assets of the Borrower or any of its subsidiaries
or related companies or any of the Third Parties or distress or any form of
execution is levied or enforced upon or sued out against any such assets or
any Security Interest which may for the time being affect any of such
assets becomes enforceable;
(i) INSOLVENCY
The Borrower or any of its subsidiaries or related companies or any of the
Third Parties is deemed unable to pay its or his debts or becomes unable to
pay its or his debts as they fall due;
(j) SUSPENSION OF PAYMENTS
The Borrower or any of its subsidiaries or related companies or any of the
Third Parties suspends or threatens to suspend making payments (whether of
principal or interest) with respect to all
37
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91, 000,000.00
or any class of its or his debts and the result of any of the foregoing is,
in the determination of the Instructing Group, adversely to affect the
financial condition or ability of either the Borrower or such Third Party
to observe or perform its or his respective obligations under this
Agreement or the other Loan Documents;
(k) COMPOSITION, WINDING-UP
The Borrower or any of its subsidiaries or related companies or any of the
Third Parties convenes a meeting of its or his creditors or proposes or
makes any arrangement or composition with, or any assignment for the
benefit of, its or his creditors or a petition is presented or a meeting is
convened for the purpose of considering a resolution or other steps are
taken for making an administration order against or for winding up of the
Borrower or any of its subsidiaries or related companies (other than for
the purposes of and followed by a reconstruction previously approved in
writing by the Lenders, unless during or following such reconstruction the
Borrower or the relevant subsidiary or related company, or such Third Party
(as the case may be) becomes or is declared to be insolvent);
(l) ANALOGOUS PROCEEDINGS
Anything analogous to any of the events specified in paragraphs (h), (i),
(j) or (k) occurs under the laws of any applicable jurisdiction;
(m) LEGAL PROCEEDINGS
Any legal proceedings suit or action shall be instituted against the
Borrower or any of its subsidiaries or related companies or any of the
Third Parties and if after the Instruction Group have reviewed the matter
with the Borrower and that Third Party (where relevant), the Instructing
Group are of the opinion that this will affect the Borrower's or that Third
Party's ability to observe or perform its or his obligations under this
Agreement or the other Loan Documents;
(n) JUDGMENT OUTSTANDING
A judgment by a court of competent jurisdiction is obtained against the
Borrower or any of its subsidiaries or related companies or any of the
Third Parties;
38
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91, 000,000.00
(o) CHANGE IN LAW
Any law is brought into effect which purports to render ineffective or
invalid any provision of this Agreement or any of the other Loan Documents
or which would prevent the Borrower or a Third Party from performing any of
their respective obligations hereunder or thereunder;
(P) DAMAGE TO LAND ETC.
Any part of the Land or any structures thereon or any assets of the
Borrower or SHUBILA is damaged or destroyed and the result, whether by
reason of the insurance over the Land or structure or such assets proving
to be invalid or unenforceable or for any other reason is, in the
determination of the Instructing Group, adversely to affect the financial
condition of the Borrower or the Borrower's ▇▇▇▇▇ KASTURI's and/or
SHUBILA's ability to observe or perform its respective obligations under
this Agreement or any of the Security Documents as the case may be;
(q) INCAPACITY
A Personal Guarantor is declared bankrupt, dies, becomes insane or of
unsound mind or becomes incapacitated in any other way;
(r) NON-COMPLETION OF PROJECT
The Project should be abandoned by the Borrower and/or there should be any
stoppage of work for a continuous period exceeding thirty (30) days;
(s) BREACH AND/OR REVOCATION OF LICENSE
Any terms of the License has been breached by the Borrower and/or the
License has been revoked for any reasons whatsoever; or
(t) ADVERSE EVENTS
Any event or events has or have occurred or a situation exists which could
or might, in the opinion of the Instructing Group, prejudice the ability of
the Borrower or a Third Party to perform any of their respective
obligations under this Agreement or the other Loan Documents or under any
other undertaking or arrangement entered into in connection herewith or
therewith in accordance with the terms hereof or thereof,
39
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000
then, at once or at any time thereafter, the Agent may (and, if so directed by
the Instructing Group, shall) by notice to the Borrower, declare the Loan to be
immediately due and payable whereupon:
(i) the Loan shall become so due and payable together with accrued interest
thereon and any other amounts then payable under this Agreement; and
(ii) no further Drawings shall be made and the Facility shall be cancelled.
13.2 NOTICE
(a) If the Agent is notified under this Agreement of the occurrence of an Event
of Default it shall inform each of the Lenders.
(b) If the Borrower defaults in payment of any amount due and payable to the
Agent for the account of the Lenders the Agent shall inform each of the
Lenders of such default within seven (7) Business Days from the date of
such default.
14. ENFORCEMENT OF SECURITY
14.1 ENFORCEMENT
Upon default by the Borrower in the manner provided in Clause 13.1 the
Agent may and upon the request of the Instructing Group, shall, forthwith
enforce the rights of the Lenders under this Agreement and the Security
Documents to recover all sums payable under this Agreement and the Security
Documents. Enforcement may, at the absolute discretion of the Agent, be against
the person of the Borrower and its assets concurrently or consecutively and if
consecutively in such order as the Agent deems fit.
14.2 APPLICATION OF PROCEEDS
All moneys received from the sale of any assets shall, subject to Clause
20.2 and also to the claims of all secured or unsecured creditors (if any)
ranking in priority to the Security Documents, be applied as follows:-
First, in or towards the payment of all costs expended or incurred by the
Agent in the enforcement of the Security Documents or any thereof or
part thereof (including court costs and solicitors' fees);
40
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
Second, in or towards the payment of all amounts payable under the Security
Documents other than principal and interest PROVIDED, HOWEVER, that if
such proceeds are insufficient to pay all such amounts, the Agent
shall apply such proceeds pro-rata based on the respective
entitlements to such amounts of the Beneficiaries;
Third, in or towards the payment in full of the aggregate accrued but unpaid
interest pursuant to this Agreement PROVIDED, HOWEVER, that if such
proceeds are insufficient to pay all such interest, the Agent shall
apply such proceeds pro-rata based on the interest then due to the
Lenders;
Fourth, in or towards the payment of the principal outstanding to the Lenders
PROVIDED, HOWEVER, that if such proceeds are insufficient to pay all
such amounts, the Agent shall apply such proceeds pro-rata based on
the then outstanding principal due to each Lender;
Fifth, the balance to the Borrower or to such other person(s) as may be
lawfully entitled thereto.
14.3 In the event of any pro-rata application of proceeds hereunder, the
Agent's determination of the amount of each party's claim and the pro-rata
amount to be applied against such claim shall be prima facie evidence of such
amounts.
14.4 If the amount realized by the Agent on behalf of the Beneficiaries on any
sale of the properties and assets secured under the Security Documents, after
the deduction and payment from the proceeds of such sale of all fees dues costs
rates taxes and other outgoings is less than the amount due to the Beneficiaries
and whether at such sale they or any of them are or is the purchasers or
purchaser or otherwise the Borrower shall pay to the Beneficiaries the
difference between the amount due and the amount so realized and until payment
will also pay interest on such balances at the rate as aforesaid Provided Always
that such personal liability of the Borrower to pay the aforesaid differential
sum shall not in any way prejudice, reduce, affect or limit the right of the
Beneficiaries to sue and recover from the Borrower all amounts payable under the
Security Documents nor shall this Clause be construed to preclude or prevent the
Beneficiaries from suing the Borrower or to postpone the right of the
Beneficiaries to sue the Borrower until after the assets secured under this
Agreement have been sold.
15. INDEMNITY
41
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000
15.1 GENERAL INDEMNITY
The Borrower shall fully indemnify each of the Beneficiaries from and
against any expense, loss, damage or liability (as to the amount of which the
certificate of the Agent shall, in the absence of manifest error, be conclusive)
which any of them may incur as a consequence of the occurrence of any Event of
Default, of any failure to borrow in accordance with a Drawing Notice or of any
prepayment under this Agreement or otherwise in connection with this Agreement.
Without prejudice to its generality, the foregoing indemnity shall extend to any
interest, fees or other sums whatsoever paid or payable on account of any funds
borrowed in order to carry any unpaid amount and to any loss (including loss of
profit), premium, penalty or expense which may be incurred in liquidating or
employing deposits from third parties acquired to make, maintain or fund the
Loan (or any part thereof) or any other amount due or to become due under this
Agreement.
16. THE AGENT AND THE ARRANGER
16.1 APPOINTMENT
Each Lender irrevocably authorizes the Agent, subject to Clause 16.13, to
enter into and execute each of the Loan Documents, and to hold the security
thereby created, as security agent for the Beneficiaries, and to take such
action on its behalf and to exercise and carry out such powers, discretions,
authorities and duties as are specifically delegated to it by this Agreement and
the other Loan Documents and such powers as the Agent reasonably considers are
incidental thereto. The Agent shall have only those powers, discretions,
authorities and duties which are expressly specified in this Agreement and the
other Loan Documents.
16.2 RELATIONSHIP
(a) In connection with its powers, discretions, authorities and duties under
this Agreement and the other Loan Documents, the Agent shall act solely as
the agent of each of the Lenders, and neither the Agent nor the Arranger
shall assume, and shall not be deemed to have assumed, any obligations to,
or fiduciary relationship with, the Lenders other than those for which
specific provision is made by this Agreement or the other Loan Documents or
any obligations to, or fiduciary relationship with, the Borrower.
42
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000
(b) The Agent shall not be liable for any failure of any of the parties to this
Agreement duly and punctually to observe and perform any of their
respective obligations under this Agreement and the other Loan Documents.
(c) The Agent shall not be liable for any action taken or omitted by it under
or in connection with this Agreement or the other Loan Documents in good
faith.
(d) The Agent may act under this Agreement or the other Loan Documents through
its authorized personnel and agents.
16.3 INSTRUCTING GROUP'S DIRECTIONS
In the exercise of any power, right, authority or discretion vested in the
Agent under this Agreement or the other Loan Documents and as to any matter not
expressly provided for in this Agreement or the other Loan Documents or where a
decision of the Instructing Group is provided for, the Agent shall act or
refrain from acting in accordance with the instructions of the Instructing
Group. In the absence of any such instructions, the Agent may act or refrain
from acting as it shall see fit. Any such instructions of the Instructing Group
or any such decision of the Agent shall be binding on the Arranger and all the
Lenders and the Agent shall not be liable to any of the Borrower, the Arranger
and the Lenders for the consequences of any such instructions or decision.
16.4 CREDIT APPROVAL
In favor of the Agent and the Arranger, each Lender acknowledges in
connection with this Agreement and the other Loan Documents:
(a) that it has made such inquiries on its own behalf and taken such care as
would have been the case had its participation in the Loan been a loan made
directly by that Lender to the Borrower without the intervention of the
Agent, the Arranger or any other Lender and that it has not relied, and
does not rely, upon any information or advice provided, or any appraisal
of, or investigation into the financial condition, credit worthiness,
affairs, status or nature of the Borrower effected, by the Agent or the
Arranger in such capacity; and
(b) that, subject to Clause 16.8, neither the Agent nor the Arranger was or
will be obliged either before or at any time after the signing of this
Agreement to provide that Lender with any
43
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
information or advice or to make any such investigation or appraisal.
16.5 DOCUMENTATION
Neither the Agent nor the Arranger or any of their respective directors,
officers, employees or agents shall be liable:
(i) for the execution, validity, enforceability or effectiveness of this
Agreement, the other Loan Documents or any document delivered pursuant
hereto or thereto or connected herewith or therewith; or
(ii) for any statements, representations or warranties made or referred to in
this Agreement or the other Loan Documents or any information given in
connection with this Agreement or the other Loan Documents.
16.6 RELIANCE
The Agent shall not be liable:-
(a) for the consequences of relying on any communication or document believed
by it to be genuine and correct and to have been communicated or signed by
the person by whom it purports to be communicated or signed; or
(b) for the consequences of relying on the advice of any professional advisers
selected by it in connection with this Agreement or the other Loan
Documents.
16.7 DEFAULT
(a) Neither the Agent nor the Arranger shall be obliged to take any steps to
ascertain whether any Event of Default has occurred and until the Agent or
the Arranger has received express notice to the contrary from the Borrower
or a Lender, it shall be entitled to assume that no such event has
occurred.
(b) The Agent shall not be obliged to take any proceedings against the Borrower
for the recovery of any sum due under this Agreement or the other Loan
Documents or otherwise in connection herewith or therewith unless it has
been fully indemnified to its satisfaction by each of the Lenders in
proportion to its aggregate participation in the Loan (or, if no Drawing
has been made, in the Facility).
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
16.8 INFORMATION
(a) The Agent shall send a copy of all notices served by the Borrower under
this Agreement or the other Loan Documents and of all other documents
delivered to it under this Agreement or the other Loan Documents to each of
the Lenders affected by such notice or document.
(b) Neither the Agent nor the Arranger shall be obliged to transmit to the
Lenders any information in any way relating to any of the parties to this
Agreement which the Agent or the Arranger may have acquired otherwise than
in connection with this Agreement or the other Loan Documents.
16.9 THE AGENT AND THE ARRANGER AS ▇▇▇▇▇▇
Each of the Arranger and the Agent shall, with respect to their own
participations in the Facility, have the same rights under this Agreement and
the other Loan Documents as any other Lender and may exercise them as though it
were not also acting as a Arranger or as agent for the Lenders (as the case may
be). Each of the Agent and the Arranger and its related companies, associates
and affiliates may, without liability to disclose or account, engage in any kind
of financial, trust or commercial business with, or acquire or dispose of any
kind of security of, the Borrower or any of its related companies, associates or
affiliates and none of the Agent, the Arranger and their respective related
companies associates or affiliates shall have any obligation to disclose or
account for any dealings with the Borrower and its related companies, associates
or affiliates prior to the date of this Agreement.
16.10 INDEMNITY
Each of the Lenders shall fully indemnify the Agent and the Arranger
ratably according to its aggregate participation in the Loan (or if no Drawing
has been made, the Facility), from and against all claims, proceedings,
expenses, losses, damages and liabilities of every description (except in
respect of any agency fee due to the Agent and any arrangement fee due to the
Arranger) which may be incurred by the Agent or the Arranger in such capacity in
good faith and which in any way relate to or arise out of this Agreement, the
other Loan Documents or any related documents or any action taken or omitted by
the Agent or the Arranger in enforcing or preserving, or in attempting to
enforce or preserve, any of the rights of the Lenders under this Agreement, the
other Loan Documents or any related
45
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
documents. If the Agent in good faith makes available to the Borrower an amount
which has not been made unconditionally available to the Agent by a Lender, then
that ▇▇▇▇▇▇ shall indemnify the Agent against any loss which the Agent suffers
or incurs as a result.
Unless the Borrower notifies the Agent before the date a payment is due
hereunder that it does not intend to make the payment, the Agent may assume that
the Borrower has made that payment when so due and the Agent may make available
to each Lender on that payment date an amount equal to that ▇▇▇▇▇▇'s share of
the assumed payment. If the Borrower has not made payment to the Agent, each
Lender shall on demand repay to the Agent, for value on the date of payment to
the Lender, the amount made available to that Lender.
16.11 MODIFICATIONS AND AMENDMENTS TO THIS AGREEMENT
The Agent may grant waivers or approvals under, or modify or amend, this
Agreement if authorized by the Instructing Group. Any such waiver, approval,
modification or amendment so authorized and effected by the Agent shall be
binding on all the Lenders and the Agent shall be under no liability whatsoever
in respect of any such waiver, approval, modification or amendment. This Clause
16.11 shall not authorize except with the approval of all the Lenders:-
(a) any increase in any Lender's participation in the Facility or the Loan;
(b) any extension of the Availability Period; or
(c) any variation of the definition of the Instructing Group or this Clause
16.11.
16.12 MODIFICATIONS AND AMENDMENTS TO THE LOAN DOCUMENTS
The Agent may approve modifications or amendments to the Loan Documents or
release of any one or more assets secured under any of the Security Documents if
authorized by the Instructing Group. The Agent in such capacity shall be under
no liability whatsoever in respect of any such approval.
16.13 TERMINATION
The Agent or the Instructing Group may at any time notify the Borrower,
the Agent and the Instructing Group of the proposed termination of the agency.
After the giving of any notice of proposed termination, the Instructing Group
may in writing appoint a successor
46
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
as Agent. If such successor has not accepted in writing the appointment within
thirty (30) days after the notice of proposed termination, the Agent may within
a further thirty (30) days appoint, on behalf of the Instructing Group, a
successor which shall be a bank or merchant bank with an office in Kuala Lumpur.
Upon the written acceptance (in such form as the Instructing Group may approve)
by the successor of its appointment as Agent:
(a) as regards the Borrower and each of the Lenders, such successor shall
become bound by all the obligations of the Agent and become entitled to all
the rights, privileges, powers, authorities and discretions of the Agent
hereunder;
(b) the agency of the retiring Agent shall terminate but without prejudice to
any liabilities which the retiring Agent may have incurred prior to the
termination of its agency;
(c) the retiring Agent shall be discharged from any further liability or
obligation under this Agreement (save that the retiring Agent shall pay to
the successor a pro rata proportion of the agency fee paid under Clause
17.4),
and the provisions of this Agreement shall continue in effect for the benefit of
any retiring Agent in respect of any actions taken or omitted to be taken by it
or any event occurring before the termination of its agency.
17. FEES AND EXPENSES
17.1 COMMITMENT FEE
The Borrower shall pay a commitment fee which shall be charged on the
cumulative undrawn and uncancelled portion of the Facility and shall be
calculated on the basis of actual days elapsed and a three hundred and sixty
five (365) day year at the rate of zero point one two five per cent (0. 125%)
per annum upon the daily amount for the time being undrawn for the period
commencing on the date which is ninety (90) days from the date of this Agreement
and ending on the last day of the Availability Period and shall be paid to the
Agent for the account of the Lenders monthly in arrear and on the last day of
the Availability Period or any earlier day when the Facility is fully drawndown
or cancelled.
17.2 PARTICIPATION FEE
47
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
The Borrower shall on the date of execution of this Agreement pay to the
Agent for the pro rata account of the Lenders a participation fee of zero point
twenty five per cent (0.25%) flat on the amount of the Facility.
17.3 ARRANGEMENT FEE
The Borrower shall pay to the Arranger from its own account an arrangement
fee at such rate and time in accordance with the terms as stated in the letter
dated 11th May, 1995 exchanged between the Borrower and the Arranger.
17.4 AGENCY FEE
The Borrower shall pay to the Agent for its own account an agency fee at
such rate and time in accordance with the terms as stated in the letter dated
11th May, 1995 exchanged between the Borrower and the Agent.
17.5 FACILITY FEE
The Borrower shall pay to each of the Lender from its own account a
facility fee at such rate and time and in accordance with the terms stated in
the letter dated 11th May, 1995 exchanged between the Borrower and the Agent.
17.6 EXPENSES
The Borrower shall on demand pay, in each case on the basis of a full
indemnity:-
(a) to the Agent and the Arranger all expenses (including legal, printing,
publicity and out-of-pocket expenses) incurred in connection with the
negotiation, preparation or completion of this Agreement, the other Loan
Documents and any related documents and the syndication of the Facility
PROVIDED THAT the out of-pocket expenses shall not exceed the maximum sum
of Ringgit Malaysia Fifty Thousand (RM50,000);
(b) to the Agent (for its own account or (as the case may require) for the
account of the other Beneficiaries) all expenses (including legal and out-
of-pocket expenses) incurred in connection with any variation, assignment,
transfer consent or approval relating to this Agreement, the other Loan
Documents or any related documents or in connection with the preservation
or enforcement or the attempted preservation or enforcement of any
48
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000
of their respective rights under this Agreement, the other Loan Documents
or any related documents; and
(c) to the Agent (for the account of the Lenders) all expenses pertaining to
insuring the Land and the assets of the Borrower or SHUBILA as the case may
be pursuant to the terms of the Security Documents and all expenses
pertaining to the valuation of the Land and abovementioned assets as may be
required by the Lenders from time to time.
17.7 STAMP DUTY
The Borrower shall pay any stamp, documentary and other similar duties and
taxes to which this Agreement, the other Loan Documents or any related documents
may be subject or give rise and shall fully indemnify each of the Beneficiaries
from and against any losses or liabilities which any of them may incur as a
result of any delay or omission by the Borrower to pay any such duties or taxes.
18. SET OFF AND PRO RATA SHARING
18.1 SET-OFF
Following an Event of Default, any Lender may without notice to the
Borrower combine, consolidate or merge all or any of the Borrower's accounts
with, and liabilities to, that Lender and may set off or transfer any sum
standing to the credit of any such accounts in or towards satisfaction of any of
the Borrower's liabilities to that Lender under this Agreement, and may do so
notwithstanding that the balances on such accounts and the liabilities may not
be expressed in the same currency and each Lender is hereby authorized to effect
any necessary conversions at the Lender's own rate of exchange then prevailing.
18.2 PRO RATA SHARING
(a) If a Lender receives or recovers any amount (other than from the Agent) in
respect of sums due from the Borrower under this Agreement or the Security
Documents (whether by set off or otherwise) it shall promptly notify the
Agent of such amount and the manner of its receipt or recovery.
(b) Following receipt of notice under Clause 18.2(a) the Agent shall, as soon
as practicable, having regard to the circumstances, consult with the
Lenders to establish the aggregate amount of sums received or recovered by
the Lenders and what payments are
49
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loans Facility of RM91,000,000.00
necessary amongst the Lenders for such aggregate amount to be divided
amongst the Lenders in proportion to their participations.
(c) The Lenders shall promptly make such payments to each other, through the
Agent, as the Agent shall direct to effect the proportionate division
referred to in Clause 18.2(b).
(d) If a Lender makes a payment or payments pursuant to Clause 18.2(c), any
payment previously received by that ▇▇▇▇▇▇ as described in Clause 18.2(a)
shall, subject to Clause 18.2(e), be deemed to have been made by the
Borrower on the understanding that it was received by that Lender as agent
for the Lenders and that the payments described in Clause 18.2(c) would be
made and the liabilities of the Borrower to each of the Lenders shall
accordingly be determined on the basis that such payment or payments
pursuant to Clause 18.2(c) would be made.
(e) If a Lender makes a payment or payments pursuant to Clause 18.2(c), Clause
18.2(d) shall not apply if, as a result, the indebtedness of the Borrower
to the Lender has been extinguished, discharged or satisfied by the amount
received or recovered (for example because of set off). In this event, for
the purpose only of determining the liabilities of the Borrower to the
Lenders (other than the Lender making the said payment or payments) and the
liabilities of the Lenders to each other, the said payment or payments by
the Lender shall be deemed to have been made on behalf of the Borrower in
respect of its obligations under this Agreement or the other Loan Documents
(as the case may be) and to the extent the Loans are thereby discharged the
Borrower shall fully indemnify the Lender for such payment or payments.
(f) Any moneys payable by the Borrower under Clause 18.2(e) by way of indemnity
shall be payable from the date the Lender makes the payment or payments
under Clause 18.2(c), shall carry interest from such date and for such
purpose and all other purposes of this Agreement be treated in the same way
as other amounts payable under this Agreement as though such moneys were
payable in respect of the participation of the Lender which has the benefit
of the indemnity contained in Clause 18.2(e) (whether or not the
indebtedness attributable to such participation has been extinguished,
discharged or satisfied in whole or in part).
(g) The parties shall make such payments and take such steps as may be just and
equitable to re-adjust the position of the parties if a Lender, having
followed the procedures required above, is
50
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
required to return any sum to the Borrower as referred to in Clause
18.2(a).
18.3 NOTIFICATION
Each Lender shall promptly give notice to the Agent of:
(a) the institution by such Lender of any legal action or proceedings hereunder
or in connection herewith prior to such institution; and
(b) the receipt or recovery by such Lender of any amount due and payable to
such ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and received or recovered by it otherwise than
through the Agent.
Upon receipt of any such notice the Agent will as soon as practicable thereafter
notify the other Lender.
19. ASSIGNMENT AND TRANSFER
19.1 BENEFIT OF AGREEMENT
This Agreement shall be binding upon and enure to the benefit of each party
hereto and its or any subsequent successors, Transferees and assigns.
19.2 ASSIGNMENTS AND TRANSFERS BY THE BORROWER
The Borrower shall not, without the prior written consent of the
Instructing Group obtained through the Agent, be entitled to assign or transfer
all or any of its rights, benefits and obligations hereunder.
19.3 ASSIGNMENTS AND TRANSFERS BY ▇▇▇▇▇▇▇
(a) Any Lender may, at any time, assign all or any of its rights and benefits
hereunder or transfer in accordance with Clause 19.3(c) all or any of its
rights, benefits and obligations to any bank or financial institution
provided that at the same time it assigns or, as the case may be, transfers
an equal portion of its rights, benefits and obligations under the other
Loan Documents to the same bank or financial institution.
(b) If any Lender assigns all or any of its rights and benefits hereunder in
accordance with Clause 19.3(a) 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
51
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd
Facility : Term Loans Facility of RM91,000,000.00
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.
(c) If any Lender wishes to transfer all or any of its rights, benefits and/or
obligations hereunder as contemplated in Clause 19.3(a) then such transfer
may be effected by the delivery to the Agent of a duly completed and duly
executed Transfer Certificate in which event, on the later of the Transfer
Date specified in such Transfer Certificate and the fifth (5th) Business
Day after (or such earlier Business Day endorsed by the Agent on such
Transfer Certificate falling on or after) the date of delivery of such
Transfer Certificate to the Agent:-
(i) to the extent that in such Transfer Certificate the Lender party
thereto seeks to transfer its rights, benefits and obligations
hereunder, the Borrower and such Lender shall be released from further
obligations towards one another hereunder and their respective rights
against one another shall be cancelled (such rights, benefits and
obligations being referred to in this Clause 19.3(c) as "discharged
rights and obligations");
(ii) the Borrower and the Transferee party thereto shall assume obligations
towards one another and/or acquire rights against one another 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
(iii)the Agent, the Arranger, such Transferee and the other Lenders shall
acquire the same rights and benefits and assume the same obligations
between themselves as they would have acquired and assumed had such
Transferee been an original party hereto as a Lender with the rights,
benefits and/or obligations acquired or assumed by it as a result of
such transfer.
(d) On the date upon which a transfer takes effect pursuant to Clause 19.3(c),
the Transferee in respect of such transfer shall pay to the Agent for its
own account a transfer fee of Ringgit Malaysia Five Hundred (RM500.00).
(e) Notwithstanding any other provisions herein contained a Lender may only
assign its rights and benefits and/or for its rights,
52
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd
Facility : Term Loans Facility of RM91,000,000.00
benefits and obligations under this Agreement to a Transferee falling
within the description of Section 38(1B)(c) of the Companies Act, 1965, and
being either (a) an office in Malaysia of a company or other body corporate
or a fund incorporated or established in Malaysia or (b) the Malaysian
branch of a company incorporated or established outside Malaysia.
19.4 DISCLOSURE OF INFORMATION
Any Lender may disclose to any actual or potential assignee or Transferee
or to any person who may otherwise enter into contractual relations with such
Lender in relation to this Agreement or to any governmental agency or authority
requiring the same such information about the Borrower and/or any of the Third
Parties as such Lender shall consider appropriate.
20. FURTHER PROVISIONS
20.1 EVIDENCE OF INDEBTEDNESS
In any proceedings relating to this Agreement:
(a) a statement as to any amount due to the Lenders under this Agreement which
is certified as being correct by an officer of the Agent; and
(b) a statement as to any amount due to a Lender under this Agreement which is
certified as being correct by an officer of the Lender;
shall, unless otherwise provided in this Agreement, be conclusive evidence (in
the absence of manifest error) that such amount is in fact due and payable.
20.2 APPLICATION OF MONEYS
If any sum paid or recovered in respect of the liabilities of the Borrower
under this Agreement is less than the amount then due, the Agent may apply that
sum to principal, interest, fees or any other amount due under this Agreement in
such proportions and order and generally in such manner as the Instructing Group
shall determine.
20.3 MODIFICATION AND INDULGENCE
The Agent and the Lenders may at any time without in any way affecting this
Agreement or any of the other Loan Documents:-
53
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd
Facility : Term Loans Facility of RM91,000,000.00
(a) determine, vary or increase the amounts of the Facility or any credit or
other facility granted to the Borrower and may open and/or continue any
accounts with the Borrower at any branch or branches of the Agent and/or
the Lenders under the Loan Agreement; and/or
(b) grant to the Borrower, any Third Party or any other person any time or
indulgence; and/or
(c) renew any bill, notes or other negotiable securities; and/or
(d) deal with, exchange, release or modify or abstain from perfecting or
enforcing any securities or other guarantees or rights it may now or at any
time hereafter or from time to time have from or against the Borrower, any
Third Party or any other person; and/or
(e) compound with the Borrower, any Third Party or any other person or
guarantor.
20.4 RIGHTS CUMULATIVE, WAIVERS
The respective rights of each of the Beneficiaries under this Agreement are
cumulative, may be exercised as often as they consider appropriate and are in
addition to their respective rights under the general law. The respective
rights of each of the Beneficiaries in relation to the Facility and/or the Loan
(whether arising under this Agreement or under the general law) shall not be
capable of being waived or varied otherwise than by an express waiver or
variation in writing; and in particular any failure to exercise or any delay in
exercising any of such rights shall not operate as a waiver or variation of that
or any other such right; any defective or partial exercise of any of such rights
shall not preclude any other or further exercise of that or any other such
right; and no act or course of conduct or negotiation on their part or on their
behalf shall in any way preclude them from exercising any such right or
constitute a suspension or any variation of any such right.
20.5 FURTHER ASSURANCES
The Borrower shall promptly, upon the request of the Agent, execute,
acknowledge, deliver, file and register at its own expense all such additional
agreements, amendments, instruments, certificates, documents and assurances and
perform such other acts, as shall be necessary or appropriate to effectuate the
purposes of this Agreement or any of the other agreements, instruments or
documents delivered hereunder or in correction herewith. The Borrower hereby
irrevocably
54
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd
Facility : Term Loans Facility of RM91,000,000.00
authorizes the Agent to act and sign any agreement, instrument or
document in the name of and on behalf of the Borrower in order to carry out the
provisions of this Clause 20.5 save that notwithstanding such authorization the
Agent shall not be obliged to so act but shall have the absolute discretion to
decide whether or not to so act.
20.6 DISCHARGE OF PERSONAL GUARANTORS
The parties hereto agree that in the event the number of subscribers of the
wireless local loop network which network is installed and implemented under the
Project and operated by the Borrower exceeds the figure of thirty seven thousand
(37,000), then the Personal Guarantors shall be discharged from the Personal
Guarantee with immediate effect (the "Discharge") PROVIDED THAT:-
(i) the evidence prescribed and provided by the Borrower to ascertain the
thirty seven thousand (37,000) subscribers is acceptable to the Agent at
its absolute discretion;
(ii) the Instructing Group having evaluated the feasibility of the Discharge has
given its consent at its absolute discretion through the Agent for the
Discharge;
(iii)the Borrower has complied with such conditions (if any) to the satisfaction
of the Agent as may be prescribed by the Agent in consideration of the
Discharge.
20.7 NOTICES
(a) Notices to be given or served under the provisions of this Agreement shall
be deemed properly given or served if given in writing delivered personally
or by post by prepaid letter, telex or facsimile transmission addressed to
the relevant party at its address stated above or to any telex number or
facsimile number which is published as belonging to it (or such other
addressor telex or facsimile number as is notified by any party to the
other party hereunder). Every notice or other communication shall be
deemed to have been received in the case of a telex message or facsimile
transmission the next working day after the date of dispatch, subject to
such telex message or facsimile transmission being confirmed forthwith
thereafter by written notice delivered by post to the party entitled to
receive the same as aforesaid, and in the case of a letter the next working
day after the date of delivery when delivered personally or forty-eight
(48) hours after it has been put into post.
55
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd
Facility : Term Loans Facility of RM91,000,000.00
(b) In proving the giving of a notice hereunder it shall be sufficient to prove
that the notice was left or that the envelope containing such notice was
properly addressed and posted or that the telex bears the correct
answerback or that the facsimile transmission report bears the correct
transmission receipt confirmation of the party to whom the notice was sent.
20.8 INVALIDITY OF ANY PROVISION
If any of the provisions of this Agreement becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired.
20.9 GOVERNING LAW
This Agreement is governed by, and shall be construed in accordance with,
the laws of Malaysia.
56
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd
Facility : Term Loans Facility of RM91,000,000.00
IN WITNESS WHEREOF this Agreement is executed by the parties hereto.
The execution of this Agreement by )
the Borrower, SYARIKAT TELEFON )
WIRELESS (M) SDN. BHD. is duly )
effected in a manner authorized ) [Seal]
by its constitution under the Seal )
of the Borrower, SYARIKAT TELEFON )
WIRELESS (M) SDN. BHD. which said )
▇▇▇▇ is hereunto duly affixed on )
this 18th day of August, 1995 )
in the presence of:- )
/s/................................. Director
NAME:
/s/................................. Director
NAME:
SIGNED by )
)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ )
)
for and on behalf of ) /s/..........................
PERMATA MERCHANT BANK )
BERHAD, as Arranger and Agent )
on the 18th day of August, )
1995 )
............................
/s/
▇▇▇ ▇▇▇ N
Advocate & Solicitor
Kuala Lumpur
57
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd
Facility : Term Loans Facility of RM91,000,000.00
SIGNED by )
)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ )
)
for and on behalf of ) /s/..........................
PERMATA MERCHANT BANK )
BERHAD, as Lender on the 18th )
day of August, 1995 )
............................
/s/
▇▇▇ ▇▇▇ N
Advocate & Solicitor
Kuala Lumpur
SIGNED by )
)
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ )
)
for and on behalf of ) /s/
PERWIRA AFFIN BANK )
▇▇▇▇▇▇, as Lender on the )
18th day of August, )
1995 )
/s/
▇▇▇ ▇▇▇ N
Advocate & Solicitor
Kuala Lumpur
58
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd
Facility : Term Loans Facility of RM91,000,000.00
SCHEDULE 1
LENDERS
A. PARTICIPANT COMMERCIAL BANK
INITIAL
NAME LENDING OFFICE COMMITMENT
1. Perwira Affin
Bank Berhad RM47,000,600
B. PARTICIPANT MERCHANT BANK
1. Permata Merchant RM44,000,000
Bank Berhad
Total
---------------
RM 91,000,000
---------------
Schedule 1 -
59
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
SCHEDULE 2
CONDITIONS PRECEDENT
(referred to in Clause 4.1)
PART A
1. A certificate signed by two (2) directors and the company secretary of the
Borrower substantially in the form set out in Schedule 3A and the documents
therein referred to.
2. A certificate signed by two (2) directors and the company secretary of
▇▇▇▇▇ ▇▇▇▇▇▇▇ substantially in the form set out in Schedule 3B and the
documents therein referred to.
3. A certificate signed by two (2) directors and the company secretary of S
▇▇▇ substantially in the form set out in Schedule 3C and the documents
therein referred to.
4. This Agreement and the other Loan Documents which shall have been duly
executed by or on behalf of all the parties hereto and thereto and stamped.
5. Evidence that the relevant prescribed forms in respect of each of this
Agreement, the Assignment, the MOP, the Debentures and the Charge have been
lodged with the Registrar of Companies for registration pursuant to Section
108 of the Companies Act, 1965 and that a search has been made by the
Agent's solicitors on the Borrower, SHUBILA and ▇▇▇▇▇ ▇▇▇▇▇▇▇ at the time
of such lodgment confirming that no charges or other encumbrances have been
registered in the Companies Registry prior to such lodgment which would
adversely affect the security of the Lenders.
6. Evidence that each of the power of attorney granted by the Borrower to the
Agent under the terms of Debenture A and the MOP, and the power of attorney
granted by S ▇▇▇ to the Agent under the terms of Debenture B has been
lodged for registration with the High Court of the States of Malaya.
7. The receipt for payment of quit rent for the current year in respect of the
Land.
8. Evidence that the consent from the relevant State Authority has been
obtained in respect of the creation of the Charge in favor of the Agent on
the Land.
Schedule 2 -
60
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
9. A valuation report on the Land made not earlier then three (3) months by a
valuer on the Agent's panel of valuers stating that the open market value
of the Land on an "as is" basis is not less than Ringgit Malaysia Fifteen
Million (RM15,000,000.00).
10. Evidence that a private caveat over the Land in favor of the Agent has been
presented for registration with the relevant land office/registry and a
search has been conducted by the Agent's solicitors confirming that
immediately prior to the presentation of the private caveat for
registration ▇▇▇▇▇ ▇▇▇▇▇▇▇ is the registered proprietor of the Land and
that save for the Existing Charge, the Land is free from all encumbrances
which could or might adversely affect the security of the Lenders.
11. A letter from BOC addressed directly to the Agent in respect of.-
(i) the amount of the Existing Loan due and payable to it;
(ii) BOC's irrevocable undertaking to forthwith forward the following
documents to the Agent or the Agent's solicitors upon receipt of the
Existing Loan:-
(a) the original issue document of title to the Land;
(b) the duplicate Existing Charge;
(c) the duly executed valid and registrable discharge of the
Existing Charge;
(d) the duly executed Form 42B in respect of the discharge of the
Existing Charge; and
(iii) BOC's irrevocable undertaking to refund the amount of the Existing
Loan received from the Agent in the event the discharge of the
Existing Charge is not registered to any reason whatsoever.
12. Confirmation from the Agent's solicitors that they are in receipt of an
amount equivalent to the difference between the Existing Loan and the
principal limit of Tranche I (if any) from the Borrower.
13. A certified copy of each of the following:-
(i) the License;
Schedule 2 -
61
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(ii) the Ericsson Contract; and
(iii) the Interconnect Agreement.
14. Evidence that all statutory and other necessary approvals permits, licenses
and consents (if any) for the implementation of the Project (including but
not limited to those set out in paragraph 13 above) have been obtained and
have not been revoked or amended.
15. A certificate from a firm of auditors acceptable to the Agent confirming
that the Borrower's issued and paid-up capital is not less than Ringgit
Malaysia Forty Five Million (RM45,000,000).
16. A favorable legal opinion from [*] counsel in respect of the enforceability
and validity of the Personal Guarantee given or to be given by the Personal
Guarantor, [*].
17. A letter addressed to the Agent from the party appointed by the Personal
Guarantor, [*] confirming its appointment to accept the service of process
in Malaysia on its behalf.
18. A declaration of each and every director of the Borrower in the form set
out in Schedule 11.
19. Evidence that each and every shareholder of the Borrower have deposited
with the Agent the following:-
(a) the share certificates of all the shares of which represent the entire
paid up share capital of the Borrower (the "STW Shares");
(b) the duly executed valid and registrable blank transfers in respect of
the STW Shares.
20. The latest Forms 24 and 49 of each of the Borrower, SHUBILA, ▇▇▇▇▇ ▇▇▇▇▇▇▇
and the corporate shareholders of the Borrower.
21. A written undertaking from the Registrar of the Borrower together with a
certified extract of the resolution of the board of directors of the
Borrower:-
(i) acknowledging the contents of the Collateral Agreement;
_________
*Confidential portion has been omitted and filed separately with the Commission.
Schedule 2 -
62
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(ii) irrevocably approving the registration of the transfer of the STW Shares in
the name of the Agent or its nominee; and
(iii) irrevocably approving the registration of the transfer of the STW
Shares or any parts thereof in the name of such third party(ies)
nominated by the Agent to accept the transfer in the event of a
force sale of the STW Shares or any parts thereof by the Agent under
such memoranda of deposit in respect of the STW Shares if so
executed by the shareholders of the Borrower in favor of the Agent
as security for the Facility.
22. Evidence that the Borrower has opened the Project Account and has appointed
the Project Accountant.
23. The following documents:-
(i) a certified copy of the notice substantially in the form set out in
Schedule B 1 of the MOP addressed to the Fixed Deposit Bank; and
(ii) the acknowledgment from the Fixed Deposit Bank addressed to the
Agent substantially in the form set out in Schedule B2 of the MOP.
PART B
1. Evidence that the Charge has been presented for registration at the
relevant land official registry and a search has been conducted by the
Agent's solicitors at the time of the presentation of the Charge for
registration confirming that no charge or other encumbrances have been
registered over the Land prior to such presentation which would adversely
affect the security of the Lenders.
Schedule 2 -
63
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
CERTIFICATE
(to be given by the Borrower)
[Letterhead of the Borrower]
To: PERMATA NMRCHANT BANK BERHAD
(as Agent)
We, [name] and [name], both directors of SYARIKAT TELEFON WIRELESS (M) SDN. BHD.
of [ ] (the "Company")
HEREBY CERTIFY that:
(a) attached hereto, marked "A", are true, correct and up to date copies of the
certificate of incorporation and the memorandum and articles of association
of the Company;
(b) attached hereto, marked "B", is a true and correct copy of resolution duly
passed by the directors of the Company on * , 199 approving (i) a loan
agreement (the "Loan Agreement") between (1) the Company, (2) yourselves
(as Arranger and Agent) and (3) the lenders listed therein relating to a
term loan facility aggregating Ringgit Malaysia Ninety One Million
(RM91,000,000.00) for principal to the Company (ii) Debenture A (iii) the
Assignment (iv) the MOP and (v) Collateral Agreement (all as defined in the
Loan Agreement) and authorizing their execution, delivery and performance;
and such resolution has not been amended, modified or revoked and are in
full force and effect.
We hereby confirm that all consents and approvals for the implementation of the
Project (as defined in the Loan Agreement) have been obtained and have not been
varied or amended.
The following signatures are the true signatures of the persons any two of whom
have been authorized to witness the affixing of the common seal of the Company
to the Loan Agreement, Debenture A, the Assignment, the MOP and the Collateral
Agreement:-
Schedule 3A -
64
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
Name Position Signature
* * *
* * *
* * *
The following signatures are the true signatures of the persons any [state
number] of whom have been authorized to issue any requests and give any notices
and other communications under or in connection with the Loan Agreement,
Debenture A, the Assignment, the MOP and the Collateral Agreement:-
Name Position Signature
* * *
* * *
* * *
Signed:
____________________ _____________________
Director Director
Date:
I, [name], the secretary of SYARIKAT TELEFON WIRELESS (M) SDN. BHD. (the
"Company") hereby certify that [names of two directors giving above certificate]
are duly appointed directors of the Company and that the signatures above are
the true signatures of such directors.
Signed: ____________________
Secretary
Date:
Schedule 3A -
65
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
SCHEDULE 3B
CERTIFICATE
(to be given by ▇▇▇▇▇ ▇▇▇▇▇▇▇)
[Letterhead of ▇▇▇▇▇ ▇▇▇▇▇▇▇]
To: PERMATA MERCHANT BANK BERHAD
(as Agent)
We, [name] and [name], both directors of ▇▇▇▇▇ ▇▇▇▇▇▇▇ SDN. BHI). of
[ ](the "Company")
HEREBY CERTIFY that:
(a) attached hereto, marked "A", are true, correct and up to date copies of the
certificate of incorporation and the memorandum and articles of association
of the Company;
(b) attached hereto, marked "B", is a true and correct copy of resolution duly
passed at a meeting of the Board of Directors of the Company duly convened
and held on [ ], 1995 approving the execution of a charge
(the "Charge") in relation to a loan agreement (the "Loan Agreement") dated
[ ] made between (1) SYARIKAT TELEFON NWRELESS (M) SDN. BHD.
as borrower, (2) PERMATA MERCHANT BANK BERHAD as arranger and agent and (3)
the institutions listed in Schedule 1 thereto as lenders for a term loan
facility aggregating not more than Ringgit Malaysia Ninety One Million
(RM91,000,000.00) and authorizing the execution of the Charge under the
Common Seal of the Company and its delivery and performance, and such
resolution has not been amended, modified or revoked and is in full force
and effect.
The following signatures are the true signatures of the persons any two of whom
have been authorized to witness the affixing of the Common Seal of the Company
on the Charge:-
Schedule 3B -
66
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
Name Position Signature
* * *
* * *
* * *
The following signatures are the true signatures of the persons any [state
number] of whom have been authorized to give any notices and other
communications under or in connection with the Charge:-
Name Position Signature
* * *
* * *
* * *
Signed:
__________________ ___________________
Director Director
Date:
I, [name], the company secretary of ▇▇▇▇▇ ▇▇▇▇▇▇▇ SDN. BHD. (the
"Company") hereby certify that [names of directors giving above certificates]
are duly appointed directors of the Company and that the signatures above are
the true signatures of such directors.
Signed:
_______________
Secretary
Date:
Schedule 3B -
67
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
SCHEDULE 3C
CERTIFICATE
(to be given by ▇▇▇▇▇▇▇)
[Letterhead of SHUBILA]
To: PERMATA MIERCHANT BANK BERHAD
(as Agent)
We, [name] and [name], both directors of SE"▇▇▇ HOLDINGS SDN. BHD. of
[ ] (the "Company")
HEREBY CERTIFY that:
(a) attached hereto, marked "A", are true, correct and up to date copies of the
certificate of incorporation and the memorandum and articles of association
of the Company;
(b) attached hereto, marked "B", is a true and correct copy of resolution duly
passed at a meeting of the Board of Directors of the Company duly convened
and held on [ ], 1995 approving the execution of a
guarantee (the "Corporate Guarantee"), a debenture ("Debenture B") and the
collateral agreement (the "Collateral Agreement") in relation to a loan
agreement (the "Loan Agreement") dated [ ] made between
(1) SYARIKAT TELEFON WIRELESS (M) SDN. BHD. as borrower, (2) PERMATA
MIERCHANT BANK BERHAD as arranger and agent and (3) the institutions listed
in Schedule 1 thereto as lenders for a term loan facility aggregating not
more than Ringgit Malaysia Ninety One Million (RM91,000,000.00) and
authorizing the execution of the Corporate Guarantee, Debenture B and the
Collateral Agreement under the Common Seal of the Company and its delivery
and performance, and such resolution has not been amended, modified or
revoked and is in full force and effect.
The following signatures are the true signatures of the persons any two of whom
have been authorized to witness the affixing of the Common Seal of the Company
on the Corporate Guarantee, Debenture B and the Collateral Agreement:-
Schedule 3C -
68
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
Name Position Signature
* * *
* * *
* * *
The following signatures are the true signatures of the persons any [state
number] of whom have been authorized to give any notices and other
communications under or in connection with the Corporate Guarantee, Debenture B
and the Collateral Agreement:-
Name Position Signature
* * *
* * *
* * *
Signed:
_________________ ____________________
Director Director
Date:
I, [name], the company secretary of SHUBILA HOLDINGS SDN. BHD. (the
"Company") hereby certify that [names of directors giving above certificate] are
duly appointed directors of the Company and that the signatures above are the
true signatures of such directors.
Signed:
_______________
Secretary
Date:
69
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
SCHEDULE 4A
DRAWING NOTICE
(TRANCHEI)
To: PERMATA NMRCHANT BANK BERRAD
as Agent
[Date]
Attention:
TERM LOAN FACILITY OF RM91,000,000
DRAWING NUMBER [ ]
We refer to the term loan facility made available by a loan agreement dated 199_
(the "Loan Agreement") between (l) this Company, (2) yourselves(as arranger and
agent) and (3) the lenders listed therein. Terms defined in the Loan Agreement
have the same meanings herein.
WHEREBY:-
(a) give you notice that we wish to make a Drawing of Ringgit Malaysia [specify
amount] on Tranche I of the Facility on [Date];
(b) request you to remit the Drawing to Bank of Commerce (specify account
number);
(c) confirm that each of the conditions contained in Clause 5.1(a),(c),(d) and
(e) is satisfied as at the date hereof and we know of no reason why it
should not be satisfied as at the date referred to in (a) above;
SYARIKAT TELEFON WIRELESS (M) SDN. BHD.
By _______________________
Schedule 4A -
70
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
SCHEDULE 4B
DRAWING NOTICE
(TRANCHE II)
To: PERMATA MERCHANT BANK BERHAD
as Agent
[Date]
Attention:
TERM LOAN FACILITY OF RM91,000,000
DRAWING NUMBER [ ]
We refer to the term loan facility made available by a loan agreement dated 199
(the "Loan Agreement") between (1) this Company, (2) yourselves (as Arranger and
Agent) and (3) the lenders listed therein. Terms defined in the Loan Agreement
have the same meanings herein.
WHEREBY:-
(a) give you notice that we wish to make a Drawing of Ringgit Malaysia [specify
amount] on Tranche II of the Facility on [Date];
(b) request you to remit the Drawing to (specify name of bank and account
number);
(c) confirms that each of the conditions contained in Clause 5.2(a),(c),(d) and
(e) is satisfied as at the date hereof and we know of no reason why it
should not be satisfied as at the date referred to in (a) above;
(d) enclose herewith the *invoice(s) of [specify particulars]/document(s)
relating to [specify particulars] and we confirm that these
*invoice(s)/document(s) have not been the subject of any previous request
for Drawings.
(e) enclose herewith the Project Accountant's certificate certifying the
authenticity and validity of the *invoice/documents enclosed under item (d)
above.
Schedule 4B -
71
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
SYARIKAT TELEFON WIRELESS (M) SDN. BHD.
By _____________________
*Delete as appropriate
72
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
SCHEDULE5
LAMPIRAN
(ANNEXURE)
We, ▇▇▇▇▇ ▇▇▇▇▇▇▇ SDN. BHD., a company incorporated in Malaysia and having
its registered office at 2nd Floor, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Chargor"), the proprietor of the land
described in the Schedule hereinbefore appearing (the "Said Land") HEREBY CHARGE
the Said Land to PERMATA MERCHANT BANK BERHAD, a company incorporated in
Malaysia and having its registered office at 27th Floor, Menara Boustead, ▇▇. ▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Agent"), as agent for the
Beneficiaries (as hereinafter defined) of the other part upon the terms and
conditions hereinafter appearing.
WHEREAS:-
(i) By a loan agreement to be entered into simultaneously with this Charge or
shortly hereafter between (1) SYARIKAT TELEFON WIRELESS (M) SDN. BHD. (the
"Borrower") of the one part and (2) the Agent of the second part and (3)
PERMATA MERCHANT BANK BERHAD and PERWIRA AFFIN BANK BERHAD, (the "Lenders")
of the third part, the Lenders agree to make available a term loan facility
in the maximum principal sum of Ringgit Malaysia -Ninety One Million
(RM91,000,000.00) (the "Facility") to the Borrower upon the terms and
conditions contained therein.
(ii) It is a condition precedent to the availability of the Facility that inter
alia the Chargor charges the Said Land in favor of the Agent as security
for the Facility.
In consideration of the premises, the Chargor HEREBY AGREES, COVENANTS AND
UNDERTAKES with the Agent as follows:-
1. DEFINITIONS
1.1 Except where the context otherwise requires, terms and expressions defined
in the Loan Agreement and not otherwise defined herein bear the same meanings
where used in this Charge, and the following terms and expressions where used in
this Charge bear the meanings respectively set opposite them:
Schedule 5 -
73
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
Additional Interest the additional interest payable by the Borrower pursuant to
Clause 12.5(a) of the Loan Agreement due to failure to pay
any Indebtedness when so payable;
Beneficiaries the Arranger, the Agent and the Lenders;
Code the National Land Code No. 56 of 1965 and includes any
amendment, re-enactment or re-certification thereof;
Indebtedness at any time, the aggregate of all sums advanced from time
to time by the Lenders to the Borrower and outstanding
pursuant to the Loan Agreement together with interest
thereon and all other monies payable to the Beneficiaries
or any of them pursuant to, upon and under the Loan
Documents (whether in respect of principal, interest,
Additional Interest, fees, prepayment premium, costs,
expenses, indemnity or otherwise);
Loan Documents the Loan Agreement, the Collateral Agreement, this Charge,
the other Security Documents and any other documents for
the time being constituting security for the Facility or
any parts thereof;
Prescribed Rates the rates of interest chargeable on the Loan or any parts
thereof stipulated in the Loan Agreement or such other rate
or rates which the Lenders may at their discretion
stipulate from time to time or at any time in the manner
provided for therein.
1.2 The headings in this Charge Annexure are inserted for convenience only and
shall not be taken read and construed as essential parts of this Charge.
References to Clauses are to be construed as references to Clauses of this
Charge Annexure. All references to provisions of statutes include such
provisions as modified, re-certified or re-enacted. Words applicable to natural
persons include any body of persons, company, corporation, firm or partnership
corporate or incorporate and vice versa. Words importing the masculine gender
shall include the feminine and neuter genders and vice versa. Words importing
the singular number shall include the plural number and vice
Schedule 5 -
74
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
versa. Where two or more persons or parties are included or comprised in any
expressions, agreements, covenants, terms, stipulation and undertakings
expressed to be made to such persons or parties shall, unless expressly stated
to the contrary, be enforceable by them jointly and severally and agreements,
covenants, terms, stipulations and undertakings expressed to be made by or on
the part of such persons or parties shall be deemed to be made by and binding
upon such persons or parties jointly and severally.
2. UNDERTAKIING TO PAY
2.1 The Chargor hereby covenants with the Agent that as and when the
Indebtedness or any part thereof is due for payment in accordance with the
provisions of the Loan Documents or on such earlier date as the security
constituted by this Charge becomes enforceable and the Agent becomes entitled to
exercise the rights and powers upon default provided under this Charge and by
law the Chargor shall pay to the Agent in the manner specified in the Loan
Agreement, the Indebtedness or, as the case may be, the part thereof due to be
paid and, in the meantime will pay to the Agent interest and Additional
Interest, (as well after as before any judgment), at the rates and calculated in
the manner prescribed in the Loan Agreement on the Indebtedness from time to
time outstanding.
3. USE OF THE SAID LAND
3.1 The Chargor will not store or bring upon the Said Land articles of a
specially combustible, inflammable or dangerous nature other than those required
for the normal course of the Chargor's business or do or permit to occur any
act, thing or event whereby the insurance effected pursuant to Clause 1 1. 1
and/or Clause 1 1. 3 may be or become avoided, vitiated, discharged or
unenforceable.
3.2 The Chargor shall forthwith upon receipt of notice from the Agent,
discontinue any user of the Said Land or any part thereof for any reason which,
in the opinion of the Agent, would adversely affect the interest of the Agent
and the other Beneficiaries under this Charge.
4. COMPLIANCE WITH LAND CONDITIONS
4.1 The Chargor shall comply with and observe all the conditions, restrictions
and category of land use, express or implied, imposed upon, relating to or
affecting the Said Land or to which the Said Land
Schedule 5 -
75
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
are subject as well as the provisions of any law for the time being in force and
affecting the Said Land.
5. PAYMENT OF OUTGOINGS
5.1 The Chargor shall punctually pay all quit rents, assessments, rates, taxes
and all other outgoings whatsoever payable from time to time in respect of the
Said Land as and when the same shall become due and payable and deliver the
receipt therefor to the Agent.
5.2 In the event of failure by the Chargor to make any of the payments
mentioned in Clause 5. 1, it shall be lawful but not obligatory upon the Agent
to make such payments or any of them.
6. INFORMATION OF MATTERS AFFECTING SECURITY
6.1 The Chargor shall inform the Agent forthwith upon its issue, publication,
service or occurrence (time being of the essence in this respect) of any
application, demand, notice, order, proposal or transaction in any way
affecting, concerning or touching the Said Land or any part thereof and produce
the same to the Agent if called upon to, do so.
6.2 The Chargor shall do all acts and take all steps necessary or expedient to
safeguard and preserve the Said Land or any part thereof or the title or
ownership thereto.
6.3 The Agent may, if it thinks fit, and on the Chargor's failure so to do, on
behalf or in the name and the expense of the Chargor, do all such acts and
employ all such persons as the Agent deems necessary or expedient, for the
purpose of safeguarding and preserving the Said Land or any part thereof or the
Beneficiaries' rights and interests thereon.
7. GOVERNMENT ACQUISITION
7.1 In the event that the Said Land or any part thereof shall at any time
become the subject matter of or be included in any notice, notification or
declaration concerning or relating to acquisition by any government or
government authority or any inquiry or proceedings in respect thereof or if any
government or government authority shall condemn, nationalize, seize or
otherwise expropriate all or any substantial part of the property or other
assets of the Chargor or shall have assumed custody or control of such property
or other assets
Schedule 5 -
76
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
or of the business and operations of the Chargor or shall have taken any action
for the winding up of the Chargor or any action that would prevent the Chargor
or its officers to carry on the operations of its business or a substantial part
thereof the Chargor shall forthwith inform the Agent of the same and shall
forward to the Agent, a copy or copies of any such notice, notification or
declaration as soon as the same is delivered to or served on the Chargor.
7.2 The Agent shall be entitled at the expense of the Chargor, to engage such
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 7.1 hereof at the
expense of the Chargor.
7.3 All monies received as or by way of compensation in respect of any of the
matters referred to in clause 7.1 shall be applied in or towards the discharge
or repayment of the Indebtedness and the Chargor shall, and hereby declares that
it will, hold monies so received in trust for the Agent and the Chargor agrees
and confirms that the Agent may receive and give a good discharge for all such
monies.
8. DEALINGS WITH SECURITY
8.1 The Chargor shall not transfer, sell, charge or otherwise howsoever deal
with the Said Land or any part thereof or any interest therein or make the same'
subject to any burden, charge, encumbrance, liability or lien whatsoever or make
any application for the alteration of the category of land use or for the
imposition of any fresh category of land use in respect of the Said Land or for
the rescission, removal or amendment of any condition or restriction affecting
the Said Land without the prior written consent of the Agent. Provided,
however, that if any change will, in the opinion of a valuer appointed by the
Agent, enhance the value of the said Land then the consent of the Agent shall
not be required.
9. LEASING AND POSSESSION
9.1 The Chargor shall not lease or let out or grant any license or otherwise
howsoever part with the possession of the Said Land except in the ordinary
course of business or make or accept the surrender of any lease whatsoever of or
in respect of the Said Land or any part thereof to any person firms or companies
without the prior written consent in writing of the Agent.
Schedule 5 -
77
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
9.2 The consent of the Agent referred to in Clause 9.1 may be refused without
assigning any reason therefor or given either absolutely or on such terms and
conditions as the Agent deems fit and the decision of the Agent shall be final
and conclusive.
9.3 It is hereby expressly agreed and declared that the provisions of Section
251 of the Code shall not apply to this Charge.
10. REPAIRS AND RIGHT OF INSPECTION
10.1 The Chargor shall keep all buildings and structures now or at any time
hereafter erected on the Said Land in good repair and working condition and
shall keep the Said Land clean, weeded and free from undergrowth in default
whereof it shall be lawful for but not obligatory upon the Agent to carry out,
at the cost and expense of the Chargor, such repairs and acts for the purpose of
keeping the Said Land and structures thereon clean and in good repair and
working condition and free from undergrowth as the Agent may deem necessary or
expedient.
10.2 The Agent by its officers, servants, agents and/or workmen shall be at
liberty at all reasonable times and after having given prior notice to enter
into the Said Land and to view and inspect the state and condition thereof.
10.3 If the Agent should enter the Said Land and carry out the repairs and acts
mentioned in Clause 10.1, it shall not be liable as a chargee in possession.
11. INSURANCE
11.1 The Chargor shall insure and keep insured any buildings and structures now
or at any time hereafter erected on the Said Land against loss or damage by
fire, lightning, tempest, flood, landslide, riot, civil commotion, strike,
theft, burglary, malicious acts collapse of any structure constructed thereon
and such other risks as the Agent may require from time to time, in the full
amount of its insurable value, with such insurers as may be acceptable to the
Agent and the Lenders, under a policy or policies of insurance and shall
forthwith have the Agent as trustee for the Beneficiaries endorsed thereon as
loss payee.
11.2 The Chargor shall pay all premia for the insurance effected pursuant to
Clause 11.1 on the first day on which the same ought to be paid and, if required
by the Agent, deliver to the Agent on demand,
Schedule 5 -
78
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
the policy or policies of insurance effected and the receipt for every premium
payable under such policy or policies.
11.3 If the Chargor shall fail to effect, maintain or renew the insurance
referred to in Clause 11.1, it shall be lawful for but not obligatory upon the
Agent, at the cost and expense of the Chargor, to effect, maintain or renew any
such insurance as the Agent may think fit.
11.4 Save and except at the request and with the prior written consent of the
Agent, the Chargor shall not effect or keep on foot any insurance against any
risk in respect of any buildings and structures now or at any time hereafter
erected on the Said Land if the Agent has effected or kept on foot any such
insurance.
11.5 The Agent may, at its discretion, require any money received on any
insurance of any buildings and structures now or at any time hereafter erected
on the Said Land, whether effected by the Agent or the Chargor, to be applied in
or towards making good the loss or damage in respect of which the money is
received or, as the Agent may decide, in or towards the discharge of the
Indebtedness and the Chargor shall hold all such money, in the meantime, in
trust for the Agent.
11.6 Upon its exercise of its powers in clause 11.5 above the Agent shall be
entitle to receive and give a good discharge for any money received on any
insurance of any buildings and structures now or at any time hereafter erected
on the Said Land.
12. CONTINUING SECURITY
12.1 The security created by this Charge is expressly intended to be and shall
be a continuing security for all moneys whatsoever now or hereafter from time to
time owing by the Borrower or the Chargor whether alone or jointly and severally
with another or others to the Beneficiaries under the Loan Documents or
otherwise and whether as principal or surety notwithstanding that the Borrower
or the Chargor may at any time or times, cease to be indebted to any of the
Beneficiaries under the Loan Documents for any period or periods.
13. DOCUMENTS OF TITLE
13.1 The Agent shall have the custody or possession of the issue document of
title in respect of the Said Land.
Schedule 5 -
79
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
13.2 Insofar as the law shall permit, the application of Section 244(2) of the
Code shall be restricted to instances where the production of any document is
required for purposes of any action or matter initiated or instituted by any
government or government authority, department or officer and not where such
document is required for any purpose or to effect any transaction conducted or
initiated by the Chargor and nothing contained or expressed in Section 244(2) of
the Code shall be construed as or deemed to be consent by the Agent (whether
express or implied) to any act or transaction requiring the consent of the
Agent.
14. CONSOLIDATION
14.1 Section 245 of the Code (restricting the right of consolidation) shall not
apply to the security created by this Charge and it is hereby expressly agreed
and declared that unless the Agent otherwise agrees, this Charge shall not be
discharged except on payment by the Chargor of not only the Indebtedness but
also all monies secured by any other charge created by the Chargor in favor of
or vested in the Agent or any of the other Beneficiaries.
15. REPRESENTATION AND WARRANTIES AND UNDERTAKINGS
15.1 The Chargor acknowledges that each of the Agent and the other Beneficiaries
has entered into the Loan Documents and agreed to accept this Charge as security
on the basis of, and in full reliance on, representations in the following
terms; and the Chargor now warrants to each of them as follows:-
(a) the Chargor is duly incorporated as a private company with limited
liability and validly existing under the laws of Malaysia;
(b) the Chargor is the subsidiary of the Borrower and the creation of this
Charge will not contravene Section 133A of the Companies Act 1965;
(c) the documents which contain or establish the Chargor's constitution
incorporate provisions which authorize, and all necessary corporate action
has been taken to authorize, and all authorizations of any governmental or
other authority have been duly and unconditionally obtained and are in full
force and effect which are required to authorize, the Chargor to own its
assets, carry on its business as it is now being conducted, and sign and
deliver, and perform the transactions contemplated in, this Charge and to
enable the Agent and the other Beneficiaries
Schedule 5 -
80
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
to exercise the rights, powers and authorities hereby vested in them or any
of them;
(d) neither the signing and delivery of this Charge nor the performance of any
of the transactions contemplated in it will:-
(i) contravene or constitute a default under any provision contained in
any agreement, instrument, law, judgment, order, license, permit or
consent by which the Chargor or any of its assets is bound or
affected; or
(ii) cause any limitation on it or the powers of its directors, whether
imposed by or contained in any document which contains or establishes
its constitution or in any law, order, judgment, agreement, instrument
or otherwise, to be exceeded;
(e) no event has occurred which constitutes, or which with the giving of notice
and/or the lapse of time and/or a relevant determination would constitute,
a contravention of, or default under, any agreement or instrument by which
the Chargor or any of its assets is bound or affected, being a
contravention or default which might either have an adverse effect on the
business, assets or condition of the Chargor or adversely affect its
ability to observe or perform its obligations under this Charge;
(f) no litigation, arbitration or administrative proceeding or claim which
might by itself or together with any other such proceedings or claims
either have an adverse effect on the business, assets or condition of the
Chargor or adversely affect its ability to observe or perform its
obligations under this Charge is presently in progress or pending or, to
the best of the knowledge, information and belief of the Chargor,
threatened against the Chargor, or any of its assets;
(g) all necessary returns have been delivered by or on behalf of the Chargor to
the relevant taxation authorities and the Chargor is not in default in the
payment of any taxes and no claim is being asserted with respect to taxes
which is not disclosed in the financial statements referred to in paragraph
(h) below;
(h) the audited financial statements (including the income statement and
balance sheet) of the Chargor for the year ended 31st day of December, 1994
have been prepared on a basis consistently applied and give a true and fair
view of the results of its operations for that year and the state of its
affairs at the date, and in
Schedule 5 -
81
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
particular accurately disclose all the
liabilities (actual or contingent) of the Chargor;
(i) the Chargor is the beneficial owner and has title to the Said Land;
(j) otherwise than has been disclosed in writing to the Agent the Said Land is
affected by any Security Interest, and the Chargor is not a party to, nor
is it or the Said Land bound by, any order, agreement or instrument under
which the Chargor is, or in certain events may be, required to create,
assume or permit to arise any Security Interest;
(k) the Chargor has fully disclosed in writing to the Agent all facts relating
to the Borrower and the Chargor which the Chargor knows or should
reasonably know and which are material for disclosure to the Beneficiaries
(or any of them) in the context of the Facility and this Charge.
15.2 The Chargor undertakes that, from the date of this Charge until all its
liabilities under this Charge have been discharged:-
(a) the Chargor will prepare the financial statements referred to in clause
15.2(b) on a basis consistently applied in accordance with generally
accepted accounting principles in Malaysia and those financial statements
shall give a true and fair view of the results of the operations of the
Chargor for the period in question and the state of its affairs for the
period to which the financial statements are made up and shall disclose or
reserve against all the liabilities (actual or contingent) of the Chargor;
(b) the Chargor will deliver to the Agent in sufficient numbers for each of the
Beneficiaries:-
(i) as soon as they become available (and in any event within ninety (90)
days after the end of each of its financial periods) copies of its
financial statements for that period which shall contain an income
statement and abalance sheet and be audited and certified without
adverse qualification by a firm of independent accountants;
(ii) within sixty (60) days after the end of each half year of its
financial year copies of a full report on its business for that period
which shall contain full particulars of its business and an income
statement and a balance sheet; and
Schedule 5 -
82
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(iii) promptly, such additional financial or other information and records
as the Agent may from time to time reasonably request;
(c) the Chargor will maintain in full force and effect all relevant
authorizations (governmental and otherwise) and will promptly obtain any
further authorization which may become necessary to enable it to carry on
its business and to perform any of the transactions contemplated by this
Charge;
(d) the Chargor will immediately notify the Agent upon becoming aware of the
revocation or variation of any authorization;
(e) if the Chargor becomes aware of the occurrence of an Event of Default it
will forthwith notify the Agent and provide the Agent with full details of
any steps which it is taking, or is considering taking, in order to remedy
or mitigate the effect of the Event of Default or otherwise in connection
with it;
(f) the Chargor will carry out and operate its business and affairs with due
diligence and efficiency and in accordance with sound financial and
industrial standards and practices;
(g) the Chargor will, by written notice, inform the Agent of:-
(i) any legal proceedings, litigation or claim involving the Said Land;
(ii) any dispute between the Chargor and any Government or statutory body
in respect of the Said Land;
(iii) any labor controversy which might result in a strike against the
Chargor in relation to the Said Land; and
(iv) any matter which has adversely affected or may adversely affect the
Chargor's ability to fulfill its obligations under this Charge or its
financial position;
(h) in relation to the Indebtedness the Chargor shall not take or accept any
encumbrance or other security from the Borrower or any other third party,
without first obtaining the Agent's written consent;
(i) after the occurrence of an Event of Default, the Chargor shall not, without
first obtaining the Agent's written consent, seek to
Schedule 5 -
83
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
recover, whether directly or by set off, lien, counterclaim or otherwise,
nor accept any moneys or other property, nor exercise any rights in respect
of, any sum which may be or become due to the Chargor on any account by the
Borrower or, in relation to the Indebtedness, from any third party, nor
claim, prove for or accept any payment in any composition by, or any
winding up of, the Borrower or, in relation to the Indebtedness, any third
party;
(j) if, notwithstanding paragraphs (h) and (i) above, the Chargor holds or
receives any such security, moneys or property, it shall forthwith pay or
transfer the same to the Agent;
(k) if so requested by the Agent, the Chargor will cause an update valuation on
the Said Land to be made at the Chargor's cost provided that the Agent may
not request for more than one (1) update valuation in each calendar year.
16. DEFAULT
If:-
16.1 the Chargor shall fail to observe or perform any of its agreements,
covenants, stipulations, terms and conditions contained in this Charge; or
16.2 an Event of Default as defined in Clause 13.1 of the Loan Agreement shall
occur;
then and in either of such cases, the amount of the Indebtedness outstanding for
the time being shall immediately become payable by the Chargor to the Agent on
demand and the Agent shall forthwith be entitled to exercise the rights and
powers upon default provided by law and this Charge without any previous notice
to or concurrence on the part of the Chargor.
17. DEMANDS
17.1 Any demand for payment of the amount of the Indebtedness for the time being
outstanding may be made by a notice in writing requiring payment within seven
(7) days from the date thereof and may be signed on behalf of the Agent by a
director, general manager, manager, assistant manager or any other officer of
the Agent or by any solicitor or firm of solicitors purporting to act for the
Agent and such notice shall be deemed to have been sufficiently served on the
Chargor if it is left at the registered office for the time being of
Schedule 5 -
84
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
the Chargor or, at the usual or last known place of business of the Chargor or,
at such address as the Chargor may notify to the Agent or sent by prepaid
registered letter to any of such addresses and, in the last mentioned case, the
service shall be deemed to be made at the time when the registered letter would
in the ordinary course of post be delivered.
18. BREACH OF COVENANT
18.1 In the event of a default committed by the Chargor as provided in clause 16
above occurring and continuing for a period of not less than SEVEN (7) DAYS, it
shall be lawful for the Agent forthwith to give the statutory notice pursuant to
the provisions of the Code requiring the Chargor to remedy the said breach
within a period of SEVEN (7) DAYS and service of such notice shall be effected
in the same manner as a notice demanding payment as provided in Clause 17 or as
may be prescribed by the Code.
19. PERSONAL LIABILITY OF ▇▇▇▇▇▇▇ AND CONCURRENT ACTION
19.1 If the amount realized by the Agent on a sale of the Said Land under the
provisions of the Code after deduction and payment from the proceeds of such
sale of all fees, dues, costs, rents, rates, taxes and other outgoings on the
Said Land is less than the amount of the Indebtedness for the time being
outstanding and due to the Beneficiaries under the Loan Documents and whether at
such sale the Agent or any of the other Beneficiaries is the purchaser or
otherwise, the Chargor shall pay to the Agent the difference between the amount
due and the amount so realized and until such payment will also pay interest on
such balance at the rates in the manner prescribed in clause 12.5(a) of the Loan
Agreement Provided Always that such personal liability of the Chargor to pay the
aforesaid differential sum shall not in any way prejudice, reduce, affect or
limit the right of the Beneficiaries or any of them to sue and recover the
Indebtedness from the Chargor nor shall this clause be construed to preclude or
prevent the Beneficiaries or any of them from suing the Chargor or to postpone
the right of any of the Beneficiaries to sue the Chargor until after the Said
Land has been sold.
19.2 It is hereby expressly agreed that notwithstanding any other provisions
contained herein and in the other Loan Documents each of the Beneficiaries shall
at all times be entitled, whether individually or together with each other, to
exercise all its rights, powers and privileges and, in the event of any breach
of default, to pursue all remedies concurrently, whether by way of sale,
possession, receivership, civil suit or otherwise.
Schedule 5 -
85
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
20. LIENS AND OTHER SECURITIES NOT AFFECTED
20.1 Nothing contained in this Charge shall prejudice or affect any lien to
which each of the Agent and the other Beneficiaries is entitled or any other
securities (whether taken as additional or collateral security or otherwise
howsoever) which the Agent and/or the Lenders may, at any time or from time to
time hold for or on account of the Indebtedness hereby secured and no provision
in this Charge shall operate so as to merge or otherwise prejudice or affect any
bill, note, guarantee, mortgage or other security which the Agent and/or any of
the other Beneficiaries may for the time being have of the Indebtedness intended
to be hereby or otherwise secured or any right or remedy under such bill, note,
guarantee, mortgage or other security of the Agent and/or the other
Beneficiaries.
21. INTEREST RATE IN OTHER SECURITIES
21.1 When the payment of the Indebtedness hereby secured or intended so to be
shall be further secured to the Agent and/or the other Beneficiaries 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 those prescribed in
the Loan Documents, such higher rate of interest shall be payable in respect of
the Indebtedness and nothing contained in or to be implied from this Charge
shall affect the right of the Agent to enforce and recover payment of such
higher rate of interest or as the case may be the difference between such higher
rate of interest and the rates payable under the Loan Documents.
22. MODIFICATION AND INDULGENCE
22.1 The Agent and any other Beneficiary may at any time and without in any way
affecting the security hereby created:-
(a) grant to the Borrower or to any other surety or guarantor any time or
indulgence; and/or
(b) renew any bill, notes or other negotiable securities; and/or
(c) compound with the Borrower or the Chargor or any other person or guarantor.
23. SUSPENSE ACCOUNT
Schedule 5 -
86
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
23.1 For the purpose of enabling the Agent and the Beneficiaries to prove in the
bankruptcy, liquidation or insolvency of the Chargor for the Indebtedness, or to
preserve intact the liability of any other party, the Agent may on behalf of
itself and the other Beneficiaries at any time place and keep, for such time as
the Agent thinks prudent, any moneys received, recovered or realized under this
Charge or under any other security or guarantee to the credit of an account of
the Chargor or of such other person (if any) as the Agent shall think fit,
without any obligation on the part of the Agent to apply the same or any part
thereof in or towards the discharge of the Indebtedness. Notwithstanding any
such payment in the event of any proceedings in or analogous to liquidation,
composition or arrangement, the Agent may prove for and agree to accept any
dividend or composition in respect of the whole or any part of the amount of the
Indebtedness for the time being outstanding and due to the Beneficiaries under
the Loan Documents in the -same manner as if this security had not been created.
24. PROCEDURE ON NOTICE OF FURTHER CHARGE
24.1 It is hereby agreed that if the Chargor shall execute or create any further
or subsequent charge, mortgage or encumbrance over the Said Land hereby charged
or any part or parts thereof in favor of any other corporation, person or
persons of which the Agent or the Lenders shall receive notice either actual or
constructive, the Agent may, on receiving such notice, forthwith open a new or
separate account with the Chargor in its books and if the Agent does not in fact
open such new or separate account the Agent shall nevertheless be deemed to have
done so as at the time when the Agent received or was deemed to have received
such notice and as from and after such time, all payments in account made by the
Chargor to the Agent shall (notwithstanding any legal or equitable rule of
presumption to the contrary) be placed or deemed to have been placed to the
credit of the new or separate account so opened or deemed to have been opened
and shall not go in reduction of the amount due by the Chargor to the Agent and
the Lenders at the time when the Agent received or was deemed to have received
the aforesaid notice. Provided always that the provisions of this Clause shall
not prejudice the security which the Agent and the Lenders otherwise would have
had under this Charge for the payment of the amount of the Indebtedness for the
time being outstanding and due to the Agent and the Lenders under the Loan
Agreement notwithstanding that the same may become due or owing or be incurred
after the time when the Agent received or was deemed to have received the
aforesaid notice.
25. NO OBLIGATION TO MAKE FURTHER ADVANCES
Schedule 5 -
87
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
25.1 Nothing contained in this Charge shall be deemed to render it obligatory
upon the Lenders either at law or in equity to make or continue to make any
advances or to afford any other accommodation or facilities whatsoever to the
Borrower save and except for the Facility upon terms set out in the Loan
Agreement.
26. PAYMENTS BY THE AGENT
26.1 All costs, charges and expenses incurred under this Charge by the Agent
(including any expenditure incurred in the creation, enforcement and/or
preparation of this Charge or, in the giving of any notice or, in the making of
any demand under, pursuant to or in respect of this Charge or the amount of the
Indebtedness for the time being outstanding and due to the Agent and secured by
this Charge) and all other monies whatsoever paid by the Agent in respect of the
said costs, charges expenses and expenditure otherwise howsoever and all or any
other sums and moneys paid or expended by the Agent under or pursuant to the
provisions of the Code and this Charge, express or implied, and in particular
the provisions of Clauses 5.2, 6.3, 7.2, 10.1 and 11.3 shall be payable by the
Chargor to the Agent on demand.
26.2 Until payment to the Agent, the costs, charges, expenses, monies and sums
referred to in Clause 26.1 shall bear interest calculated on the basis of actual
days elapsed and a three hundred and sixty-five (365) day year (inclusive of the
first day but excluding the last day of the period in respect of which interest
shall be payable) at the rates and in the manner prescribed in the Loan
Agreement from the date of the same having been paid or expended and such sums
and interest shall on demand be paid to the Agent by the Chargor and, until
payment, shall form part of the Indebtedness and be charged on the Said Land.
27. CHANGE IN THE AGENT
27.1 The security, liabilities and or obligations created by this Charge shall
continue to be valid and binding for all purposes whatsoever notwithstanding any
change by amalgamation, reconstruction or otherwise which may be made in the
constitution of the Agent or of any company by which the business of the Agent
may, for the time being, be carried on and shall be available to the company
carrying on that business for the time being.
28. CHANGE IN CHARGOR AND BORROWER
Schedule 5 -
88
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
28.1 The security, liabilities and or obligations created by this Charge shall
continue to be valid and binding for all purposes whatsoever notwithstanding any
change whether by amalgamation, reconstruction or otherwise howsoever in the
constitution of the Chargor or the Borrower and it is expressly declared that no
change of any sort whatsoever in, relating to or affecting the Chargor or the
Borrower shall in any way, affect the security, liabilities and or obligations
created by this Charge in relation to any transaction whatsoever whether past,
present or future.
29. ASSIGNMENT/TRANSFER OF CHARGE
29.1 The Agent shall be at liberty to assign and transfer this Charge and the
costs and expenses of the Agent and incidental to such assignment or transfer
shall be paid by the Chargor and any statement therein of the amount due to the
Agent under or by virtue of this Charge shall be conclusive and binding for all
purposes against the Chargor save for manifest error.
29.2 The Chargor shall not be entitled to assign or transfer all or any of its
rights, benefits and obligations hereunder without the prior written consent of
the Instructing Group obtained through the Agent.
29.3 Any Lender may, at any time, assign all or any of its rights and benefits
hereunder or transfer in accordance with Clause 29.5 all or any of its rights,
benefits and obligations hereunder to any financial institution provided that at
the same time it assigns or, as the case may be, transfers an equal portion of
its rights, benefits and obligations under the other Loan Documents to the same
financial institution.
29.4 If any Lender assigns all or any of its rights and benefits hereunder in
accordance with Clause 29.3, then, unless and until the assignee has agreed with
the Agent and the other 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 Agent and the other 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.
29.5 If any Lender wishes to transfer all or any of its rights, benefits and/or,
obligations hereunder as contemplated in Clause 29.3, then such transfer may be
effected by the delivery to the Agent of a duly completed and duly executed
Transfer Certificate in which event, on the later of the Transfer Date specified
in such Transfer
Schedule 5 -
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
Certificate and the fifth business day after (or such earlier
business day endorsed by the Agent on such Transfer Certificate falling on or
after) the date of delivery of such Transfer Certificate to the Agent:
(i) to the extent that in such Transfer Certificate the Lender party thereto
seeks to transfer its rights, benefits and obligations hereunder, the
Chargor and such Lender shall be released from further obligations towards
one another hereunder and their respective rights against one another shall
be cancelled (such rights, benefits and obligations being referred to in
this Clause 29.5 as "discharged rights and obligations");
(ii) the Chargor and the Transferee party thereto shall assume obligations
towards one another and/or acquire rights against one another which differ
from such discharged rights and obligations only insofar as the Chargor and
such Transferee have assumed and/or acquired the same in place of the
Chargor and such Lender; and
(iii)the Agent such Transferee and the other Beneficiaries shall acquire the
same rights and benefits and assume the same obligations between themselves
as they would have acquired and assumed had such Transferee been an
original party hereto as a Lender with the rights, benefits and/or
obligations acquired or assumed by it as a result of such transfer.
30. SUCCESSORS BOUND
30.1 This Charge shall be binding upon the liquidators, receivers,
representatives, assigns and successors-in-title of the Chargor and on the
successors-in-title of the Agent.
31. INCORPORATION OF LOAN AGREEMENT
31.1 The Chargor hereby covenants and agrees that all the provisions, covenants,
stipulations, conditions, undertakings and agreements contained in the Loan
Agreement shall unless repugnant to any of the provisions contained herein, be
read as forming part of this Charge and shall be applicable with full force and
effect as if the same were set out hereunder. @ere relevant, references therein
to the "Agreement" shall for the purposes hereof be references to this Charge
and references therein to the "Borrower" shall for purpose hereof be references
to the Chargor.
32. PRINCIPAL SUPPLEMENTAL INSTRUMENTS
Schedule 5 -
90
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
32.1 It is hereby agreed and declared that this Charge and the Loan Documents
are instruments employed in one transaction namely to secure the Facility in an
aggregate sum of Ringgit Malaysia Ninety One Million (RM91,000,000.00) for
principal only together with interest thereon and all other monies payable by
the Chargor to the Agent and the Lenders under the Loan Documents and for the
purpose of Section 4(3) of the Stamp Act 1949, the Loan Agreement shall be
deemed to be the principal instrument and this charge shall be deemed to be the
subsidiary instrument.
Schedule 5 -
91
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
IN WITNESS WHEREOF the Chargor hereto has hereunto affixed its Common Seal
in the presence of its officers and the Agent hereto has hereunto by its
Attorneys duly authorized the day and year first above written.
The execution of this instrument )
by ▇▇▇▇▇ ▇▇▇▇▇▇▇ SDN. BHD. )
is duly effected in a manner )
authorized by its constitution under )
the Common Seal of ▇▇▇▇▇ ▇▇▇▇▇▇▇ )
SDN. BHD. Which said seal is )
hereunto DULY affixed )
on this day of )
,199 in )
the presence of:- )
______________________________ Director
NAME:
______________________________ Director/Secretary
NAME:
SIGNED by )
)
and )
)
for and on behalf of ) ________________
PERMATA MERCHANT BANK )
BERHAD as Agent on the )
day of ,199_ )
________________
Schedule 5 -
92
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
SCHEDULE 6
(FIRST PARTY)
DEBENTURE
Issued pursuant to Clause of the Borrower's Memorandum of Association and
Article of the Borrower's Articles of Association and a Resolution of the
Directors passed on the day of ,199 .
THIS DEED OF DEBENTURE is made the day of 199 Between SYARIKAT TELEFON
WIRELESS (M) SDN. BHD., a company incorporated in Malaysia and having its
registered office at 2nd Floor, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Borrower"), of the one part And PERMATA
MERCHANT BANK BERHAD, a company incorporated in Malaysia and licensed to carry
on banking business and having its registered office at 27th Floor, Menara
Boustead, ▇▇. ▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Agent") as agent
for the Beneficiaries (as hereinafter defined) of the other part.
WHEREAS:-
(i) By a loan agreement (the "Loan Agreement") to be entered into
simultaneously with this Debenture or shortly hereafter between (1) the
Borrower (2) the Agent and (3) PERMATA MERCHANT BANK BERHAD and PERWIRA
AFFIN BANK BERHAD (the "Lenders"), the Lenders agree to make available a
term loan facility in the maximum aggregate principal amount of Ringgit
Malaysia Ninety One Million (RM91,000,000.00) only ("the Facility") to the
Borrower upon the terms and conditions contained therein.
(ii) It is a condition precedent to the availability of the Facility that inter
alia, the Borrower charges all its assets in favor of the Agent as security
for the Facility.
IN PURSUANCE of the Loan Agreement and in consideration of the premises the
Borrower HEREBY AGREES, COVENANTS ANI) UNDERTAKES with the Agent as follows:-
1. DEFINITIONS
1.1 Except where the context otherwise requires, terms and expressions defined
in the Loan Agreement and not otherwise defined herein bear the same
meanings where used in this Debenture, and the following terms and
expressions where used in this
Schedule 6 -
93
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
Debenture, and the following terms and expressions where used in this
Debenture bear the meanings respectively set opposite them:
Additional Interest the additional interest payable by the Borrower pursuant
to Clause 12.5 (a) of the Loan Agreement and pursuant to
the other Loan Documents due to failure to pay any
Indebtedness when due and payable thereunder;
Beneficiaries the Arranger, the Agent and the Lenders;
Indebtedness at any time the aggregate of all sums advanced from time
to time by the Lenders to the Borrower pursuant to the
Loan Agreement together with interest thereon and all
other monies payable to the Beneficiaries or any of them
pursuant to, upon and under the Loan Documents (whether in
respect of principal, interest, Additional Interest, fees,
prepayment premium, costs, expenses, indemnity or
otherwise);
Loan Documents the Loan Agreement, the Collateral Agreement, this
Debenture and the other Security Documents and any other
documents for the time being constituting security for the
Facility or any part thereof,
Prescribed Rates the respective rates of interest (including Additional
Interest) chargeable on the Indebtedness or any part
thereof stipulated in the Loan Agreement or such other
rate or rates which the Lenders may at their discretion
stipulate from time to time or at any time in the manner
provided for therein.
1.2 The headings in this Debenture are inserted for convenience only and shall
not be taken read and construed as essential parts of this Debenture.
References to Clauses are to 'be construed as references to Clauses of this
Debenture. All references to provisions of statutes include such provisions as
modified, re-certified or re-enacted. Words applicable to natural persons
include any body of persons, company, corporation, firm or partnership corporate
or incorporate and vice versa. Words importing the masculine gender shall
include the feminine and neuter genders and vice versa. Words importing the
singular number shall include the plural number and vice versa. Where two or
more persons or parties are included or comprised
Schedule 6 -
94
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
in any expressions, agreements, covenants, terms, stipulations and undertakings
expressed to be made to such persons or parties shall, unless expressly stated
to the contrary, be enforceable by them jointly and severally and agreements,
covenants, terms, stipulations and undertakings expressed to be made by or on
the part of such persons or parties shall be deemed to be made by and binding
upon such persons or parties jointly and severally.
2. UNDERTAKING TO PAY
2.1 The Borrower hereby covenants with the Agent that as and when the
Indebtedness for any part thereof is due for payment in accordance with the
provisions of the Loan Documents or on such earlier date as the security
constituted by this Debenture becomes enforceable and the Agent becomes entitled
to exercise the rights and powers upon default provided under this Debenture and
by law the Borrower shall pay to the Agent in the manner specified in the Loan
Agreement, the Indebtedness or, as the case may be, the part thereof due to be
paid and, in the meantime will pay to the Agent interest and Additional
Interest, (as well after as before any judgment), at the rates and calculated in
the manner prescribed in the Loan Agreement on the Indebtedness from time to
time outstanding.
3. FIXED AND FLOATING CHARGES
3.1 For better securing the payment of the Indebtedness and discharge of the
obligations of the Borrower under the Loan Documents the Borrower as beneficial
owner hereby charges to the Agent as trustee for itself and the other
Beneficiaries and so that the charge hereby created shall be a continuing
security:-
(a) by way of a fixed charge over the Project Proceeds standing in the Project
Account, all its uncalled capital, goodwill, patents, trademarks, licenses
and concessions and all its plant, equipment and machinery, motor vehicles,
furniture and fittings wheresoever they may be and all patents, trademarks,
licenses, concessions, plant equipment machinery motor vehicles furniture
and fittings hereafter acquired together with all accessories and parts
pertaining thereto;
(b) by way of a floating charge over all the lands, undertakings and other
properties and assets of the Borrower movable and immovable whatsoever and
wheresoever situate both present and future (including without limitation
the Borrower's uncalled capital, goodwill, book debts, accounts receivable,
stock-in-trade and
Schedule 6 -
95
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
materials (including raw materials and partly finished and finished
products), shares, stocks, securities, options and other rights in
securities) not otherwise charged under clause 3.1 (a).
4. CONVERSION OF FLOATING CHARGE INTO FIXED CHARGE AND VICE VERSA
4.1 (a) Where the Borrower should, in breach of clause 5, create or attempt to
create any Security Interest over or in respect of any of the assets
of the Borrower covered by this Debenture such act of creating or
attempting to create any such Security Interest shall forthwith
convert the floating charge over the properties and assets described
in clause 3.1(b) hereof into a fixed charge over all such properties
and assets.
(b) The Agent may at any time by notice in writing to the Borrower
forthwith convert the floating charge over the properties and assets
described in Clause 3.1(b) hereof into a fixed charge as regards any
properties and assets specified in the said notice which the Agent
shall in its absolute discretion consider to be in jeopardy or in
danger of being seized or sold under any form of distress or execution
levied or threatened and may appoint a receiver therefor.
4.2 The Agent may at any time and from time to time agree with the Borrower
that all or part of the assets for the time being subject to a fixed charge
under this Debenture, whether by virtue of clause 3.1(a), 4.1(a) or 4.1(b) or
otherwise, shall in the future be subject to a floating charge within clause
3.1(b) until such time as such floating charge crystallizes.
5. RESTRICTION AGAINST OTHER SECURITY INTEREST
5.1 The Borrower hereby declares that there is no mortgage charge or debenture
upon any of its assets secured by this Debenture having priority to this
Debenture and-
(a) the Borrower shall not during the subsistence of this Debenture without the
consent in writing of the Agent execute any Security Interest (including
without limitation, any form of charge mortgage debenture (whether fixed or
floating) pledge or lien) over or in respect of any of the assets of the
Borrower covered by this Debenture;
Schedule 6 -
96
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(b) this Debenture shall be without prejudice to any securities already given
by the Borrower to any of the Beneficiaries or any security which may
hereafter be given to any of the Beneficiaries whether the same be for
securing repayment of the Indebtedness or any part thereof or any other
money covenanted to be paid under the Loan Documents and whether such
security is taken as additional or collateral security or otherwise
howsoever.
6. INFORMATION OF MATTERS AFFECTING SECURITY
6.1 The Borrower will inform the Agent forthwith upon its issue, publication,
service or occurrence (time being of the essence in this respect) of any
application, demand, notice, order, proposal or transaction in any way
affecting, concerning or touching its assets herein secured or any part
thereof and produce the same to the Agent if called upon to do so.
6.2 The Borrower will do all acts and take all steps necessary or expedient to
safeguard and preserve its assets and each part thereof or the title or
ownership thereto.
6.3 The Agent may, if it thinks fit, and on behalf or in the name and the
expense of the Borrower, do all such acts and employ all such persons as
the Agent deems necessary or expedient, for the purpose of safeguarding and
preserving the assets herein secured or any part thereof or the
Beneficiaries' rights and interests thereon.
7. INSURANCE
7.1 The Borrower shall insure and keep insured the properties and assets
covered by this Debenture wheresoever situate against loss or damage by
fire, lightning, tempest, flood, landslide, riot, civil commotion, strike,
theft, burglary, malicious acts, collapse of any structure constructed
thereon and such other risks as the Agent may require from time to time, in
the full amount of their insurable value, with such insurers as may be
acceptable to the Agent, under a policy or policies of insurance and shall
forthwith have the Agent, as trustee for the Beneficiaries, endorsed
thereon as loss payee.
7.2 The Borrower will pay all premia for the insurance effected pursuant to
Clause 7.1 on the first day on which the same ought to be paid and, if
required by the Agent, deliver to the Agent on demand the receipt for every
premium payable under such policy or policies.
Schedule 6 -
97
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
7.3 If the Borrower shall fail to effect, maintain or renew the insurance
referred to in Clause 7.1, it shall be lawful for but not obligatory upon
the Agent, at the cost and expense of the Borrower, to effect, maintain or
renew any such insurance as the Agent may think fit.
7.4 Save and except at the request and with the prior written consent of the
Agent, the Borrower shall not effect or keep on foot any insurance against
any risk in respect of any assets if the Agent has effected or kept on foot
any such insurance.
7.5 The Agent shall be entitled to receive and give a good discharge for any
money received on any insurance.
8. CONTINUIING SECURITY
8.1 The security created by this Debenture is expressly intended to be and
shall be a continuing security for all moneys whatsoever now or hereafter
from time to time owing by the Borrower whether alone or jointly and
severally with another or others to. the Beneficiaries under the Loan
Documents or otherwise and whether as principal or surety notwithstanding
that the Borrower may at any time or times, cease to be indebted to any of
the Beneficiaries under the Loan Documents for any period or periods.
9. UNDERTAKINGS
9.1 The Borrower undertakes in favor of the Agent and the other Beneficiaries:-
(a) to inform the Agent in writing forthwith if it acquires or agrees to
acquire any land buildings or structures;
(b) to deposit with the Agent (which the Agent shall be entitled to retain so
long as any Indebtedness remains unpaid) all documents of title relating to
any land, buildings or structures, all log-books of any motor vehicles and
any documents of title to plant and machinery owned by the Borrower from
time to time;
(c) without the prior written consent of the Agent, not to transfer, factor,
discount, sell, release, compound, subordinate, defer or vary the terms of
any book or other debt or moneys due, owing or payable whether on demand,
at a future time or on a contingency or otherwise to deal with the same
except by getting in the same in the normal course of business, and if so
required by the Agent
Schedule 6 -
98
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
to execute in relation thereto a legal assignment to the Agent in terms
specified by the Agent;
(d) not to transfer, sell, lease or otherwise dispose of any land, buildings or
structures subject to this Debenture (and in particular not to exercise any
statutory or other powers of making leases, taking surrenders of leases,
nor to part with possession of nor grant any license or right to occupy any
such land, buildings or structures) without the prior written consent of
the Agent;
(e) not to transfer, sell, lease or otherwise dispose of any property or assets
subject to this Debenture (other than the property referred to in sub-
clause. (d) above) otherwise than by way of sale on arm's length terms in
the ordinary course of the Borrower's day-to-day trading or in the case of
property which is spent, consumed or has otherwise outlived its useful
life, by way of disposal provided that such property has been replaced
prior to such disposal with new and unused property of the same original
quality and type;
(f) to keep in good state of repair and in proper working order and to renew
and replace, when necessary, all buildings, structures, fixtures, plant,
machinery and equipment belonging to or used by the Borrower;
(g) to permit the Agent (and any persons appointed in writing by the Agent)
full access to the property and assets subject to this Debenture wherever
situated to inspect or survey the same;
(h) punctually to pay all rents, hires, royalties and other sums reserved by
and to comply with all other obligations under any lease, hiring or license
under which the Borrower has the use or possession of any property or
assets; and
(i) punctually to pay all governmental, municipal and other taxes, duties,
rates and outgoings assessed upon or payable with reference to any property
or assets subject to this Debenture.
10. DEFAULT
If:-
10.1 the Borrower shall fail to observe or perform any of its agreements,
covenants, stipulations, terms and conditions contained in this Debenture;
or
Schedule 6 -
99
Borrower : Syrikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
10.2 an Event of Default as defined in Clause 13.1 of the Loan Agreement shall
occur;
then and in either of such cases, the amount of the Indebtedness outstanding for
the time being shall immediately become payable by the Borrower to the Agent on
demand and the Agent shall forthwith be entitled to exercise the rights and
powers upon default provided by law and this Debenture without any previous
notice to or concurrence on the part of the Borrower.
11. DEMANDS
11.1 Any demand for payment of the amount of the Indebtedness or any part
thereof for the time being outstanding may be made by a notice in writing
requiring payment within seven (7) days from the date thereof and may be
signed on behalf of the Agent by its general manager, manager, assistant
manager, sub-manager, accountant or any other officer of the Agent or by
any solicitor or firm of solicitors purporting to act for the Agent and
shall be served in accordance with the provisions of the Loan Agreement.
12. APPOINTMENT OF RECEIVER AND MANAGER
12.1 At any time after the moneys hereby secured shall have become immediately
repayable or upon the Borrower's request:
(a) the Agent or any person authorized by the Agent may enter into and upon any
land or premises where the properties or assets of the Borrower hereby
charged or any of them may be without any notice and may take possession
and control of such land and premises and all such properties and assets
hereby charged and all books of accounts and documents relating to such
properties and assets;
(b) the Agent may at its discretion be at liberty to give any notice which may
be deemed necessary by the Agent to any person or persons owing money to
the Borrower that all such moneys be paid to the Agent alone and the
Borrower hereby irrevocably appoints the manager of the Agent or the
officer in charge for the time being of the Agent and each of them jointly
and severally to be its attorneys and attorney for it and in its name and
on its behalf to demand sue for and take all appropriate legal proceedings
to recover such moneys and to give a good receipt for the same and to give
such notices to the debtors of the Borrower
Schedule 6 -
100
Borrower : Syrikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
and take all necessary steps to complete the assignment of such moneys to
the Agent as may be necessary;
(c) the Agent may appoint in writing under the hand of the manager or the
officer in charge for the time being of the Agent any person to be Receiver
and or Manager of all or any of the properties hereby charged and may in
like manner from time to time remove or accept the resignation of any
Receiver and or Manager so appointed and appoint another in his stead
and/or extend the appointment to relate to any other such properties.
12.2 A Receiver and Manager or Receivers and Managers so appointed shall be the
agent of the Borrower and the Borrower shall be solely responsible for his or
their acts and defaults and remuneration. Such Receiver and Manager or
Receivers and Managers shall have power:-
(a) to take possession or collect and get in any property hereby charged and
for that purpose to take any proceedings in the name of the Borrower or
otherwise as may seem expedient;
(b) to carry on manage or concur in carrying on and managing and to continue
the business of the Borrower or any part thereof as agent or agents for the
Borrower and for any of those purposes to raise and borrow any money that
may be required upon the security of the whole or any part of the property
hereby charged and to apply or petition for, seek and otherwise howsoever
certificates consents licenses leases permission and title convenient,
expedient or necessary for all or any such purposes;
(c) subject when applicable to the provisions of any and all relevant
legislation (including, but so that this provision shall be in
amplification but not in derogation of the generality of the foregoing
legislation relating to land and mines or mining) forthwith (obtaining when
and where necessary the leave of the Court) to or to agree to sell,
license, exchange, lease or otherwise dispose of or deal with the assets
comprised in this security and to carry the same into effect by conveying
or executing in the name or on behalf of the Borrower any deed or document
whatsoever for such consideration (if any) (including cash debentures or
other obligations shares stock or other valuable consideration) payable in
a lump sum or by installments spread over such period as the Agent shall
think fit; plant machinery and other fixtures may be recovered and sold
separately from the premises containing them without the consent of the
Borrower being obtained thereto;
Schedule 6 -
101
Borrower : Syrikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(d) to make any arrangements or enter into any compromise which he or they
shall think expedient; bring take defend discontinue any actions suits or
proceedings whatsoever civil or criminal in relation to the assets charged
hereunder;
(e) to make and effect all or any repairs and improvements to the Borrower's
plant machinery property and effects and to maintain and renew all
insurance in respect of the Borrower's property against loss or damage by
fire or any other risk in such sums as he or they shall think fit;
(f) to employ and dismiss such managers agents officers servants clerks
accountants and workmen and others in respect of the Borrower's property
and upon such terms and with such salaries wages or remuneration and for
such purposes as he or they shall think proper;
(g) to allow time for payment of any debts either with or without security;
(h) for such consideration and on such terms as he may think fit, to purchase
outright or acquire by leasing, hiring, licensing or otherwise, any land,
buildings, plant, equipment, vehicles or materials or any other property,
assets or rights of any description which he considers necessary or
desirable for the carrying on, improvement or realization of any business
of the Borrower or otherwise for the benefit of the property and assets
subject to this Debenture;
(i) in connection with the exercise, or the proposed exercise, of any of his
powers or in order to obtain payment of his remuneration (whether or not it
is already due) to borrow or raise money from any person, including any of
the Banks, without security or on the security of the property and assets
of the Borrower whether subject to this Debenture or not, and generally in
such manner and on such terms as he may think fit;
(j) to bring, defend, submit to arbitration, negotiate, compromise, abandon and
settle any claims and proceedings concerning any of the property or assets
of the Borrower;
(k) to transfer all or any of the property or assets of the Borrower and/or any
of the liabilities of the Borrower to any other company or body corporate,
whether or not formed or acquired for the purpose;
Schedule 6 -
102
Borrower : Syrikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(l) to call up all or any portion of the uncalled capital for the time being
(if any) of the Borrower;
(m) generally to carry out, or cause or authorize to be carried out, any
transaction, scheme or arrangement whatsoever, whether similar or not to
any of the foregoing, in relation to the property and assets of the
Borrower which he may consider expedient as effectually as if he were
solely and absolutely entitled to the property and assets of the Borrower;
(n) to repair and keep in repair the works machinery plants and other property
of the Borrower comprised in the security hereby made and for this purpose
to apply in the name of the Borrower for any certificate license permission
or consent required under any Act Ordinance other regulations or by-law
made by any competent authority;
(o) to execute and do all such other acts deeds and things as to him or them or
the Agent may appear necessary or proper for or in relation to any of the
purposes aforesaid and which he or they lawfully may or can do as agent or
agents for the Borrower;
(p) generally to do and cause to be done such acts and things which the
Borrower may have done in the ordinary conduct of its business as well as
for the protection and/or for the improvement of the property hereby
charged.
12.3 The powers of appointment of a Receiver and Manager or Receivers and
Managers hereunder shall be in addition to and without prejudice to any
statutory and other powers of the Agent whether under the Companies Act or any
other legislation and so that such powers shall be and remain exercisable by the
Agent in respect of any property hereby charged and of which no appointment of a
Receiver and Manager or Receivers and Managers by the Agent shall from time to
time be subsisting and that that an appointment under the powers of clauses 12.1
and 12.2 hereof shall have subsisted and been withdrawn in respect of that
property or shall be subsisting in respect of any other property hereby charged.
12.4 The Agent may at any time after the moneys hereby secured shall have become
repayable effect the sale of the properties of which it has taken possession
under the provisions of Clause 12.1(a) hereof upon giving not less than twenty-
four (24) hours' notice of the intended sale to the Borrower in such manner as
the Agent shall deem proper with liberty to bid buy in and resell the same and
the Agent shall not be liable for any loss caused to the Borrower thereby and
Schedule 6 -
103
Borrower : Syrikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
the Borrower shall do all things necessary to enable the Agent to complete any
sale by the Agent of any part of the properties included in this security. The
Agent shall be liable only for loss caused by its willful default.
12.5(a) For the purpose of giving effect to the Borrower's obligations under
this Debenture, the Borrower hereby irrevocably appoints the Agent
and/or the manager and/or the officer in charge for the time being of
the Agent and/or the Receiver and/or Manager and his substitute(s) the
attorney(s) of the Borrower for the Borrower and in the attorney's own
name(s) or in the name of the Borrower or in the joint names of the
attorney and the Borrower and on behalf of the Borrower as its act and
deed to do and execute any deed assurance or act which may be required
or may be deemed proper on any sale or disposition by the Agent or by
any Receiver and/or Manager as aforesaid of any properties or assets of
the Borrower under any power of sale or other disposition applicable
thereto and to execute, seal complete, sign, transfer and deliver or
otherwise perfect and do any transfer, deed, assurance, agreement,
instrument, assignment, act or thing and to bring, take, defend,
prosecute, compromise, submit to arbitration and/or discontinue any
actions, suits or proceedings whatsoever which may be required or may
be deemed proper for any of the purposes of this Debenture or which the
Borrower ought to execute, seal, complete sign, transfer and deliver or
otherwise perfect and do pursuant to its obligations under this
Debenture with power for such attorney(s) to appoint and remove any
substitute(s).
(b) The Borrower hereby undertakes that it will ratify and confirm whatsoever
the attorney or attorneys appointed pursuant to clause 12.5(a) shall
lawfully do or cause to be done and hereby expressly agrees that all acts
done or caused to be done by such attorney(s) shall be as good and
effectual to all intents and purposes whatsoever as if the same has been
done by the Borrower in its own person.
12.6 Notwithstanding the provisions hereinbefore contained the Agent shall have
the full right and power at its sole and absolute discretion to appoint a
Receiver or Receivers who is or are not also to be Manager or Managers and such
Receiver or Receivers shall have all the powers enumerated in Clauses 12.2 and
12.3 hereof save and excluding the power to carry on or manage or continue the
business of the Borrower or such other powers applicable to Managers only.
Schedule 6 -
104
Borrower : Syrikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
13. ADDITIONAL POWERS OF AGENT
13.1 To the extent permitted by law, the terms of the statutory powers of sale
and leasing available to a chargee are hereby extended to authorize the Agent at
its absolute discretion:-
(a) to sell all the title to and interest in any property or assets subject to
this Debenture or any interest in the same, and to do so in consideration
of shares, debentures or any other securities whatsoever, or of an
agreement to pay all or part of the purchase price at a later date or
dates, or an agreement to make periodical payments, whether or not the
agreement is secured by a Security Interest or a guarantee, or for such
other consideration whatsoever as the Agent may think fit, and also to
grant any option to purchase, and to effect exchanges;
(b) with a view to selling any property or assets subject to this Debenture (or
offering it for sale) to repair, replace and develop such property or
assets and to apply for any appropriate permission, license or approval;
(c) to severe any fixtures and to sell them apart from the land or buildings on
or to which they are affixed, and also to apportion any rent affecting the
property sold, to charge such rent upon the property sold or retained and
to agree to indemnify any purchaser in respect of such rent or any
covenants by the limitation of a new rent, by granting powers of entry or
otherwise, or to reserve any such indemnity or powers of entry;
(d) with a view to, or in connection with, the sale of any property or assets
subject to this Debenture to carry out any transaction, scheme or
arrangement which the Agent may, in its absolute discretion, consider
appropriate;
(e) to insure any property or assets subject to this Debenture against such
risks (in addition to loss or damage by fire) and for such amounts as the
Agent may consider prudent; and
(f) to do all or any of the things or exercise all or any of the powers
(mutatis mutandis) which are mentioned or referred to in Clause 12
(receiver's powers) and which may not be included in paragraphs (a) to (e)
above.
14. PERSONAL LIABILITY OF BORROVER AND CONCURRENT ACTION
Schedule 6 -
105
Borrower : Syrikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
14.1 If the amount realized by the Agent on a sale of the assets herein secured
after deduction and payment from the proceeds of such sale of all fees, dues and
other costs is less than the amount of the Indebtedness for the time being
outstanding and due to the Beneficiaries under the Loan Documents and whether at
such sale the Agent or any of the Beneficiaries is the purchaser or otherwise,
the Borrower shall pay to the Agent the difference between the amount due and
the amount so realized and until such payment will also pay interest on such
balance at the rates and in the manner prescribed in the Loan Agreement Provided
Always that such personal liability of the Borrower to pay the aforesaid
differential sum shall not in any way prejudice, reduce, affect or limit the
right of any of the Beneficiaries to sue and recover the Indebtedness from the
Borrower nor shall this clause be construed to preclude or prevent any of the
Beneficiaries from suing the Borrower or to postpone the right of any of the
Beneficiaries to sue the Borrower until after the assets secured by this
Debenture have been sold.
14.2 It is hereby expressly agreed that notwithstanding any other provisions
contained herein and in the other Loan Documents each of the Beneficiaries shall
at all times be entitled, whether individually or together with each other, to
exercise all its rights, powers and privileges and, in the event of any breach
or default, to pursue all remedies concurrently, whether by way of sale,
possession, receivership, civil suit or otherwise.
15. LIENS AND OTHER SECURITIES NOT AFFECTED
15.1 Nothing contained in this Debenture shall prejudice or affect any lien to
which each of the Agent and the other Beneficiaries is entitled or any other
securities (whether taken as additional or collateral security or otherwise
howsoever) which any of the Agent and the other Beneficiaries may, at any time
or from time to time hold for or on account of the Indebtedness hereby secured
and no provision in this Debenture shall operate so as to merge or otherwise
prejudice or affect any bill, note, guarantee, mortgage or other security which
the Agent and/or the other Beneficiaries may for the time being have of the
Indebtedness intended to be hereby or otherwise secured or any right or remedy
under such bill, note, guarantee, mortgage or other security of the Agent and/or
any of the other Beneficiaries.
16. INTEREST RATE IN OTHER SECURITIES
16.1 When the payment of the Indebtedness hereby secured or intended so to be
shall be further secured to any Beneficiary by any bill of exchange, promissory
note, draft, receipt or other instrument
Schedule 6 -
106
Borrower : Syrikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
reserving a higher rate of interest to be paid in respect thereof than those
prescribed in the Loan Documents, such higher rate of interest shall be payable
in respect of the Indebtedness and nothing contained in or to be implied from
this Debenture shall affect the right of the Agent to enforce and recover
payment of such higher rate of interest or as the case may be the difference
between such higher rate of interest and the rates payable under the Loan
Documents.
17. PROTECTION OF THIRD PARTIES
17.1 No purchaser from, or other person dealing with, the Agent and/or the
Receiver and Manager shall be concerned to inquire whether any of the powers
which they have exercised or purported to exercise has arisen or become
exercisable, or whether the whole or any part of the Indebtedness remain
outstanding, or whether any case has happened to authorize the Receiver and
Manager to act or as to the propriety or validity of the exercise or purported
exercise of any such power; and the title of such a purchaser and the position
of such a person shall not be impeachable by reference to any of those matters.
17.2 The receipt of the Agent or the Receiver and Manager shall be an absolute
and a conclusive discharge to a purchaser and shall relieve him of any
obligation to see to the application of any moneys paid to or by the direction
of the Agent or the Receiver and Manager.
17.3 In clauses 17.1 and 17.2 hereof, "purchaser" includes any person acquiring,
for money or money's worth, any lease of, or security interest over, or any
other interest or right whatsoever in relation to, any of the property or assets
subject to this Debenture.
18. PROTECTION OF AGENT, RECEIVER AND MANAGER
18.1 Neither the Agent nor the Receiver and Manager shall be liable in respect
of any loss or damage which arises out of the exercise, or the attempted or
purported exercise of, or the failure to exercise any of their respective
powers, unless such loss or damage is caused by its or his gross negligence or
willful default.
18.2 Without prejudice to the generality of clause 18.1, entry into possession
of any property or assets subject to this Debenture shall not render the Agent
or the Receiver and Manager liable to account as mortgage in possession; and if
and whenever the Agent enters into possession of any such property or assets, it
shall be entitled at any time at its pleasure to go out of such possession.
19. INDEMNITY
Schedule 6 -
107
Borrower : Syrikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
19.1 The Borrower further covenants with the Agent fully to indemnify the Agent
and each of the other Beneficiaries and the Receiver and Manager against all
claims, proceedings, liabilities, costs, charges and expenses which the Agent,
that other Beneficiaries or the Receiver and Manager may incur at any time:-
(a) in consequence of anything done or purported to be done by the Agent, that
Lender or the Receiver and Manager under this Debenture and/or any of the
Loan Documents or any other document relating thereto or of any failure by
the Borrower to comply with its obligations to the Beneficiaries thereunder
or otherwise in connection therewith; or
(b) in consequence of any payment in respect of the Indebtedness (whether made
by the Borrower or a third person) being impeached or declared void for any
reason whatsoever.
19.2 The amounts payable under clause 19.1 shall carry interest (as well after
as before judgment) in accordance with the provisions of the Loan Agreement from
the date on which they were paid or incurred by the Agent, that Lender or the
Receiver and Manager (as the case may require) and such amounts and interest may
be debited by the Agent or that Lender to any account of the Borrower, but
shall, in any event, form part of the Indebtedness and accordingly be secured on
the property and assets subject to this Debenture under the charges contained in
this Debenture.
20. MODIFICATION AND INDULGENCE
20.1 The Agent and any other Beneficiary may at any time and without in any way
effecting the security hereby created:-
(a) grant to the Borrower or to any other surety or guarantor any time or
indulgence; and/or
(b) renew any bill, notes or other negotiable securities; and/or
(c) compound with the Borrower or any other person or guarantor.
21. SUSPENSE ACCOUNT
21.1 Any money received under this Debenture may be placed and kept to the
credit of a suspense account for so long as the Agent thinks fit without any
obligation in the meantime to apply the same or any part thereof in or towards
discharge of the amount of the Indebtedness for
Schedule 6 -
108
Borrower : Syrikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
the time being outstanding and due to the Agent. Notwithstanding any such
payment in the event of any proceedings in or analogous to liquidation,
composition or arrangement, the Agent may prove for and agree to accept any
dividend or composition in respect of the whole or any part of the amount of the
Indebtedness for the time being outstanding and due to the Beneficiaries under
the Loan Documents in the same manner as if this security had not been created.
22. NO OBLIGATION TO MAKE FURTHER ADVANCES
22.1 Nothing contained in this Debenture shall be deemed to render it
obligatory upon the Lenders either at law or in equity to make or continue to
make any advances or to afford any other accommodation or facilities whatsoever
to the Borrower save and except for the Facility.
23. PAYMENTS BY THE AGENT
23.1 All costs, charges and expenses incurred under this Debenture by the Agent
(including any expenditure incurred in the creation, enforcement and/or
preparation of this Debenture or, in the giving of any notice or, in the making
of any demand under, pursuant to or in respect of this Debenture or the amount
of the Indebtedness for the time being outstanding and due to the Agent and
secured by this Debenture) and all other monies whatsoever paid by the Agent in
respect of the said costs, charges expenses and expenditure otherwise howsoever
and all or any other sums and moneys paid or expended by the Agent under or
pursuant to the provisions of this Debenture, express or implied, and in
particular the provisions of Clauses 6.3, and 7.3 shall be payable by the
Borrower to the Agent on demand.
23.2 Until payment to the Agent, the costs, charges, expenses, monies and sums
referred to in Clause 23.1 shall bear interest calculated on the basis of actual
days elapsed and a three hundred and sixty-five (365) day year (inclusive of the
first day but excluding the last day of the period in respect of which interest
shall be payable) and at the Prescribed Pates from the date of the same having
been paid or expended until payment (as well after as before judgment) and such
sums and interest shall on demand be paid to the Agent by the Borrower and,
until payment, shall form part of the Indebtedness and be secured hereunder. In
the event of default in payment by the Borrower after demand from the Agent the
Borrower shall pay Additional Interest on the defaulted amounts.
24. NOTICE OF FURTHER SECURITY INTEREST
Schedule 6 -
109
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
24.1 Without prejudice to clause 5 (restriction against Security Interest), if
the Agent receives notice of any Security Interest or any other interest (other
than an interest arising out of a sale in the usual course of trading which is
permitted by the terms hereof) affecting the property or assets subject to this
Debenture:
(a) the Agent may open a new account for the Borrower and, if it does not, it
shall nevertheless be deemed to have done so at the time the Agent received
such notice; and
(b) all payments made by the Borrower to the Agent or that ▇▇▇▇▇▇ after the
Agent receives such notice shall be credited or deemed to have been
credited to the new account, and in no circumstances whatsoever shall
operate to reduce the indebtedness as at the time the Agent received such
notice.
25. POWERS CUMULATIVE
25.1 The powers which this Debenture confers on the Agent, each of the other
Beneficiaries and the Receiver and Manager are cumulative, without prejudice to
their respective powers under the general law, and may be exercised as often as
the Agent, that other Beneficiary or the Receiver and Manager thinks
appropriate, the Agent, each of the Beneficiaries or the Receiver and Manager
may, in connection with the exercise of their powers, join or concur with any
person in any transaction, scheme or arrangement whatsoever, and the Borrower
acknowledges that the respective powers of the Agent, the other Beneficiaries
and the Receiver and Manager shall in no circumstances whatsoever be suspended,
waived or otherwise prejudiced by anything other than an express waiver or
variation in writing.
26. CHANGE IN THE AGENT
26.1 The security, liabilities and or obligations created by this Debenture
shall continue to be valid and binding for all purposes whatsoever
notwithstanding any change by amalgamation, reconstruction or otherwise which
may be made in the constitution of the Agent or of any company by which the
business of the Agent may, for the time being, be carried on and shall be
available to the company carrying on that business for the time being.
27. CHANGE IN BORROWER
27.1 The security, liabilities and or obligations created by this Debenture
shall continue to be valid and binding for all purposes
Schedule 6 -
110
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
whatsoever notwithstanding any change whether by amalgamation, reconstruction or
otherwise howsoever in the constitution of the Borrower and it is expressly
declared that no change of any sort whatsoever in, relating to or affecting the
Borrower shall in any way, affect the security, liabilities and or obligations
created by this Debenture in relation to any transaction whatsoever whether
past, present or future.
28. ASSIGNMENTITRANSFER OF DEBENTURE
28.1 The Agent shall be at liberty to assign and transfer this Debenture and the
costs and expenses of the Agent and incidental to such assignment or transfer
shall be paid by the Borrower and any statement therein of the amount due to the
Agent under or by virtue of this Debenture shall be conclusive and binding for
all purposes against the Borrower save for manifest error.
28.2 The Borrower shall not be entitled to assign or transfer all or any of its
rights, benefits and obligations hereunder without the prior written consent of
the Instructing Group obtained through the Agent.
28.3 Any Lender may, at any time, assign all or any of its rights and benefits
hereunder or transfer in accordance with Clause 28.5 all or any of its rights,
benefits and obligations hereunder to any financial institution provided that at
the same time it assigns or, as the case may be, transfers an equal portion of
its rights, benefits and obligations under the other Loan Documents to the same
financial institution.
28.4 If any Lender assigns all or any of its rights and benefits hereunder in
accordance with Clause 28.3, then, unless and until the assignee has agreed with
the Agent and the other 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 Agent and the other 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.
28.5 If any Lender wishes to transfer all or any of its rights, benefits and/or
obligations hereunder as contemplated in Clause 28.3, then such transfer may be
effected by the delivery to the Agent of a duly completed and duly executed
Transfer Certificate in which event, on the later of the Transfer Date specified
in such Transfer Certificate and the fifth (5th) Business Day after (or such
earlier Business Day endorsed by the Agent on such Transfer Certificate
Schedule 6 -
111
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
falling on or after) the date of delivery of such Transfer Certificate to the
Agent:
(i) to the extent that in such Transfer Certificate the Lender party thereto
seeks to transfer its rights, benefits and obligations hereunder, the
Borrower and such Lender shall be released from further obligations towards
one another hereunder and their respective rights against one another shall
be cancelled (such rights, benefits and obligations being referred to in
this Clause 28.5 as "discharged rights and obligations");
(ii) the Borrower and the Transferee party thereto shall assume obligations
towards one another and/or acquire rights against one another 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
(iii)the Agent such Transferee and the other Beneficiaries shall acquire the
same rights and benefits and assume the same obligations between themselves
as they would have acquired and assumed had such Transferee been an
original party hereto as a Lender with the rights, benefits and/or
obligations acquired or assumed by it as a result of such transfer.
29. SUCCESSORS BOUND
29.1 This Debenture shall be binding upon the liquidators, receivers,
representatives, and successors-in-title of the Borrower and on the successors-
in-title and assign of the Agent.
30. INCORPORATION OF LOAN AGREEMENT
30.1 . The Borrower hereby covenants and agrees that all the provisions,
covenants, stipulations, conditions, undertakings and agreements contained in
the Loan Agreement shall unless repugnant to any of the provisions contained
herein, be read as forming part of this Debenture and shall be applicable with
full force and effect as if the same were set out hereunder.
31. PRINCIPAL/SUPPLEMENTAL INSTRUMENTS
31.1 It is hereby agreed and declared that this Debenture and the Loan Documents
are instruments employed in one transaction namely to secure the Facility in an
aggregate sum of Ringgit Malaysia Ninety One Million (RM91,000,000.00) for
principal only together with interest
Schedule 6 -
112
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
thereon and all other monies payable by the Borrower to the Agent and the
Lenders under the Loan Documents and for the purpose of Section 4(3) of the
Stamp Act 1949, the Loan Agreement shall be deemed to be the principal
instrument and this Debenture shall be deemed to be the subsidiary instrument.
IN WITNESS WHEREOF the Borrower hereto has hereunto affixed its Common Seal
in the presence of its officers duly authorized and the Agent hereto has
hereunto by its Attorney set its hands.
The execution of this instrument )
by the Borrower SYARIKAT TELEFON )
WIRELESS(M)SDN. BHD. is duly )
effected in a manner authorized )
by its constitution under the )
Seal the Borrower which said )
▇▇▇▇ is hereunto duly affixed on )
this day of 199 )
in the presence of:- )
_________________________________ Director
_________________________________ Director/Secretary
Schedule 6 -
113
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
I, an Advocate and Solicitor
of the High Court in Malaya practicing at Kuala Lumpur hereby certify that on
this day of , 199 the Common Seal of SYARIKAT TELEFON
WIRELESS (M) SDN. BHD., was duly affixed to the above written instrument in my
presence in accordance with the regulations of the said Company.
Witness my hand
________________
SIGNED by )
)
and )
)
for and on behalf of PERMATA )
MERCHANT BANK BERHAD, )
as Agent on the day of ) ________________
199 )
________________
Schedule 6 -
114
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
SCHEDULE 7
(THIRD PARTY)
DEBENTURE
Issued pursuant to Clause of the Chargor's Memorandum of Association
and Article of the Chargor's Articles of Association and a Resolution of the
Directors passed on the day of , 199 .
THIS DEED OF DEBENTURE is made the day of 199 Between SHUBILA HOLDINGS
SDN. BHD., a company incorporated in Malaysia and having its registered office
at Suite ▇▇▇▇▇, ▇▇▇ Floor, President House, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ (the "Chargor"), of the one part And PERMATA MERCHANT BANK BERHAD, a
company incorporated in Malaysia and having its business address at 27th Floor,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Agent") as
agent for the Beneficiaries (as hereinafter defined) of the other part.
WHEREAS:-
(i) By a loan agreement (the "Loan Agreement") to be entered into
simultaneously with this Debenture or shortly hereafter between (1)
SYARIKAT TELEFON WIRELESS (M) SDN. BHD. (the "Borrower"), (2) the Agent and
(3) BERHAD (the "Lenders"), the Lenders agree to make available a term loan
facility in the maximum aggregate principal amount of Ringgit Malaysia
Ninety One Million (RM91,000,000.00) (the "Facility") to the Borrower upon
the terms and conditions contained therein.
(ii) It is a condition precedent to the availability of the Facility that inter-
alia the Chargor charges all its asset in favor of the Agent as security
for the Facility.
IN PURSUANCE of the Loan Agreement and in consideration of the premises the
Chargor HEREBY AGREES, COVENANTS AND UNDERTAKES with the Agent as follows:-
1. DEFINITIONS
1.1 Except where the context otherwise requires, terms and expressions defused
in the Loan Agreement and not otherwise defined herein bear the same
meanings where used in this Debenture, and the following terms and
expressions where used in this Debenture bear the meanings respectively set
opposite them:-
Additional Interest the additional interest payable by the Borrower pursuant
to Clause 12.5(a) of the
Schedule 7 -
115
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
Loan Agreement due to failure to pay any Indebtedness
when so payable;
Beneficiaries the Arranger, the Agent and the Lenders;
Indebtedness at any time, the aggregate of all sums advanced from time
to time by the Lenders to the Borrower together with
interest thereon and all other monies payable to the
Beneficiaries or any of them pursuant to, upon and under
the Loan Documents (whether in respect of principal,
interest, Additional Interest, fees, commission, costs,
expenses, indemnity or otherwise);
Loan Documents the Loan Agreement, the Collateral Agreement, this
Debenture and the other Security Documents and any other
documents for the time being constituting security for
the Indebtedness of any part thereof;
Prescribed Rates the respective rates of interest (including Additional
Interest) chargeable on the Indebtedness or any part
thereof stipulated in the Loan Agreement or such other
rate or rates which the Lenders may at their discretion
stipulate from time to time or at any time in the manner
provided for therein.
1.2 The headings in this Debenture are inserted for convenience only and shall
not be taken read and construed as essential parts of this Debenture. References
to Clauses are to be construed as references to Clauses of this Debenture. All
references to provisions of statutes include such provisions as modified, re-
certified or re-enacted. Words applicable to natural persons include any body of
persons, company, corporation, firm or partnership corporate or incorporate and
vice versa. Words importing the masculine gender shall include the feminine and
neuter genders and vice versa. Words importing the singular number shall include
the plural number and vice versa. Where two or more persons or parties are
included or comprised in any expressions, agreements, covenants, terms,
stipulations and undertakings expressed to be made to such persons or parties
shall, unless expressly stated to the contrary, be enforceable by them jointly
and severally and agreements, covenants, terms, stipulations and undertakings
expressed to be made by or on the part of such
Schedule 7 -
116
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
persons or parties shall be deemed to be made by and binding upon such persons
or parties jointly and severally.
2. UNDERTAKING TO PAY
2.1 The Chargor hereby covenants with the Agent that as and when the
Indebtedness or any part thereof is due for payment in accordance with the
provisions of the Loan Documents or on such earlier date as the security
constituted by this Debenture becomes enforceable and the Agent becomes entitled
to exercise the rights and powers upon default provided under this Debenture and
by law the Chargor shall pay to the Agent in the manner specified in the Loan
Agreement, the Indebtedness or, as the case may be, the part thereof due to be
paid and, in the meantime will pay to the Agent interest and Additional Interest
at the rates and calculated in the manner prescribed in the Loan Agreement on
the Indebtedness from time to time outstanding.
3. FIXED AND FLOATING CHARGES
3.1 For better securing the payment of the Indebtedness and discharge of the
obligations of the Borrower and the Chargor under the relevant Loan Documents
the Chargor as beneficial owner hereby charges to the Agent as trustee for
itself as agent and for the other Beneficiaries and so that the charge hereby
created shall be a continuing security:-
(a) by way of a fixed charge over all its uncalled capital, goodwill,
patents, trademarks, licenses and concessions and all its plant,
equipment and machinery, motor vehicles, furniture and fittings
wheresoever they may be including but not limited to all those listed in
the Schedule hereto and including all patents, trademarks, licenses,
concessions, plant equipment machinery motor vehicles furniture and
fittings hereafter acquired together with all accessories and parts
pertaining thereto;
(b) by way of a floating charge over all the lands undertakings and other
properties and assets of the Chargor movable and immovable whatsoever
and wheresoever situate both present and future (including without
limitation the Chargor's uncalled capital, goodwill, book debts,
accounts receivable, stock-in-trade and materials (including raw
materials and partly finished and finished products), shares, stocks,
securities, options and other rights in securities) not otherwise
charged under clause 3.1 (a).
Schedule 7 -
117
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
4. CONVERSION OF FLOATING CHARGE INTO FIXED CHARGE AND VICE VERSA
4.1(a) Where the Chargor should, in breach of clause 5, create or attempt to
create any Security Interest over or in respect of any of the assets of
the Chargor covered by :this Debenture such act of creating or
attempting to create any such Security Interest shall forthwith convert
the floating Charge over the properties and assets described in clause
3.1(b) hereof into a fixed charge over all such properties and assets.
(b) The Agent may at any time by notice in writing to the Chargor forthwith
convert the floating charge over the properties and assets described in
Clause 3. 1 (b) hereof into a fixed charge as regards any properties and
assets specified in the said notice which the Agent shall in its
absolute discretion consider to be in jeopardy or in danger of being
seized or sold under any form of distress or execution levied or
threatened and may appoint a receiver therefor.
5. RESTRICTION AGAINST OTHER SECURITY INTERESTS
5.1 The Chargor hereby declares that there is no mortgage charge or debenture
upon any of its assets secured by this Debenture having priority to this
Debenture and-
(a) the Chargor shall not during the subsistence of this Debenture without the
consent in writing of the Agent permit any Security Interest to exist or
arise over or in respect of any of the assets of the Chargor covered by
this Debenture;
(b) this Debenture shall be without prejudice to any securities already given
by the Borrower or the Chargor to any of the Beneficiaries or any security
which may hereafter be given to any of the Beneficiaries whether the same
be for securing repayment of the Indebtedness or any part thereof or any
other money covenanted to be paid under the Loan Documents and whether such
security is taken as additional or collateral security or otherwise
howsoever.
6. INFORMATION OF MATTERS AFFECTING SECURITY
6.1 The Chargor shall inform the Agent forthwith upon its issue, publication,
service or occurrence (time being of the essence in this respect) of any
application, demand, notice, order, proposal or transaction in any way
affecting, concerning or touching its assets
Schedule 7 -
118
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
herein secured or any part thereof and produce the same to the Agent if called
upon to do so.
6.2 The Chargor shall do all acts and take all steps necessary or expedient to
,safeguard and preserve its assets and each part thereof or the title or
ownership thereto.
6.3 The Agent may, if it thinks fit, and on behalf or in the name and at the
expense of the Chargor, do all such acts and employ all such persons as the
Agent deems necessary or expedient, for the purpose of safeguarding and
preserving the assets herein secured or any part thereof or the Beneficiaries'
rights and interests thereon.
7. INSURANCE
7.1 The Chargor shall insure and keep insured the properties and assets covered
by this Debenture wheresoever situate against loss or damage by fire, lightning,
tempest, flood, riot, civil commotion, strike, theft, burglary, malicious acts
and such other risks as the Agent may require from time to time, in the full
amount of their insurable value, with such insurers as may be acceptable to the
Agent, under a policy or policies of insurance and shall forthwith have the
Agent, as trustee for the Beneficiaries endorsed ▇▇▇▇▇▇▇ as loss payee.
7.2 The Chargor shall pay all premia for the insurance effected pursuant to
Clause 7.1 on the first day on which the same ought to be paid and, if required
by the Agent, deliver to the Agent on demand the receipt for every premium
payable under such policy or policies.
7.3 If the Chargor shall fail to effect, maintain or renew the insurance
referred to in Clause 7.1, it shall be lawful for but not obligatory upon the
Agent, at the cost and expense of the Chargor, to effect, maintain or renew any
such insurance as the Agent may think fit.
7.4 Save and except at the request and with the prior written consent of the
Agent, the Chargor shall not effect or keep on foot any insurance against any
risk in respect of any assets if the Agent has effected or kept on foot any such
insurance.
7.5 The Agent shall be entitled to receive and give a good discharge for any
money received on any insurance.
8. CONTINUING SECURITY
Schedule 7 -
119
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
8.1 The security created by this Debenture is expressly intended to be and
shall be a continuing security for all moneys whatsoever now or hereafter from
time to time owing by the Borrower or the Chargor whether alone or jointly and
severally with another or others to any of the Beneficiaries under the Loan
Documents or otherwise and whether as principal or surety notwithstanding that
the Borrower or the Chargor may at any time or times, cease to be indebted to
any of the Beneficiaries under the Loan Documents for any period or periods.
9. REPRESENTATIONS AND WARRANTIES
9.1 The Chargor acknowledges that each of the Agent and the other Beneficiaries
has entered into the Loan Documents and agreed to accept this Debenture as
security on the basis of, and in full reliance on, representations in the
following terms; and the Chargor now warrants to each of them as follows:-
(a) the Chargor is duly incorporated as a private company with limited
liability and validly existing under the laws of Malaysia;
(b) the Chargor is the holding company of the Borrower and the creation of
this Debenture will not contravene Section 133A of the Companies Act
1965;
(c) the documents which contain or establish the Chargor's constitution
incorporate provisions which authorize, and all necessary corporate
action has been taken to authorize, and all authorizations of any
governmental or other authority have been duly and unconditionally
obtained and are in full force and effect which are required to
authorize, the Chargor to own its assets, carry on its business as it is
now being conducted, and sign and deliver, and perform the transactions
contemplated in, this Debenture and to enable the Agent and each of the
other Beneficiaries to exercise the rights, powers and authorities hereby
vested in them or any of them;
(d) neither the signing and delivery of this Debenture nor the performance of
any of the transactions contemplated in it will:-
(i) contravene or constitute a default under any provision contained in
any agreement, instrument, law, judgment, order, license, permit or
consent by which the Chargor or any of its assets is bound or
affected; or
Schedule 7 -
120
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(ii) cause any limitation on it or the powers of its directors, whether
imposed by or contained in any document which contains or establishes
its constitution or in any law, order, judgment, agreement, instrument
or otherwise, to be exceeded;
(e) no event has occurred which constitutes, or which with the giving of notice
and/or the lapse of time and/or a relevant determination would constitute,
a contravention of, or default under, any agreement or instrument by which
the Chargor or any of its assets is bound or affected, being a
contravention or default which might either have an adverse effect on the
business, assets or condition of the Chargor or adversely affect its
ability to observe or perform its obligations under this Debenture;
(f) no litigation, arbitration or administrative proceeding or claim which
might by itself or together with any other such proceedings or claims
either have an adverse effect on the business, assets or condition of the
Chargor or adversely affect its ability to observe or perform its
obligations under this Debenture is presently in progress or pending or, to
the best of the knowledge, information and belief of the Chargor,
threatened against the Chargor, or any of its assets;
(g) all necessary returns have been delivered by or on behalf of the Chargor to
the relevant taxation authorities and the Chargor is not in default in the
payment of any taxes and no claim is being asserted with respect to taxes
which is not disclosed in the financial statements referred to in paragraph
(h) below;
(h) the audited financial statements (including the income statement and
balance sheet) of the Chargor for the year ended the 31st December, 1994
have been prepared on a basis consistently applied and give a true and fair
view of the results of its operations for that year and the state of its
affairs at the date, and in particular accurately disclose all the
liabilities (actual or contingent) of the Chargor;
(i) the Chargor is the beneficial owner and has title to all its assets;
(j) otherwise than has been disclosed in writing to the Agent none of the
assets of the Chargor is affected by any Security Interest, and the Chargor
is not a party to, nor is it or any to its assets bound by, any order,
agreement or instrument under which the
Schedule 7 -
121
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
Chargor is, or in certain events may be, required to create, assume or
permit to arise any Security Interest;
(k) the Chargor has fully disclosed in writing to the Agent all facts relating
to the Borrower and the Chargor which the Chargor knows or should
reasonably know and which are material for disclosure to the Beneficiaries
(or any of them) in the context of the Facility and this Debenture.
10. UNDERTAKINGS
10.1 The Chargor undertakes with the Agent and the other Beneficiaries from
the date of this Debenture until all its liabilities under this Debenture have
been discharged:-
(a) to inform the Agent in writing forthwith if it acquires or agrees to
acquire -any land buildings or structures;
(b) to deposit with the Agent (which the Agent shall be entitled to retain so
long as this Debenture shall be in force) all documents of title relating
to all assets charged under Clause 3.1 (a) herein;
(c) without the prior written consent of the Agent, not to transfer, - factor,
discount, sell, release, compound, subordinate, defer or vary the terms of
any book or other debt or moneys due, owing or payable whether on demand,
at a future time or on a contingency or otherwise to deal with the same
except by getting in the same in the normal course of business, and if so
required by the Agent to execute in relation thereto a legal assignment to
the Agent in terms specified by the Agent;
(d) not to transfer, sell, lease or otherwise dispose of any land, buildings or
structures subject to a fixed charge under this Debenture (and in
particular not to exercise any statutory or other powers of making leases,
taking surrenders of leases, nor to part with possession of nor grant any
license or right to occupy any such land, buildings or structures) without
the prior written consent of the Agent;
(e) not to transfer, sell, lease or otherwise dispose of any property or assets
subject to this Debenture (other than the property referred to in sub-
clause (d) above) otherwise than by way of sale on arm's length terms in
the ordinary course of the Chargor's day-to-day trading or in the case of
property which is
Schedule 7 -
122
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
spent, consumed or has otherwise outlived its useful
life, by way of disposal provided that such property has been replaced
prior to such disposal with new and unused property of the same original
quality and type;
(f) to keep in good state of repair and in proper working order and to renew
and replace, when necessary, all buildings, structures, fixtures, plant,
machinery and equipment belonging to or used by the Chargor;
(g) to permit the Agent (and any persons appointed in writing by the Agent)
full access to the assets subject to this Debenture wherever situated to
inspect and survey the same;
(h) punctually to pay all rents, hires, royalties and other sums reserved by
and to comply with all other obligations under any lease, hiring or license
under which the Chargor has the use or possession of any property or,
assets;
(i) punctually to pay all governmental, municipal and other taxes, duties,
rates and outgoings assessed upon or payable with reference to any assets
subject to this Debenture;
(j) the Chargor will prepare the financial statements referred to in clause
10.1(k) on a basis consistently applied in accordance with generally
accepted accounting principles in Malaysia and those financial statements
shall give a true and fair view of the results of the operations of the
Chargor for the period in question and the state of its affairs for the
period to which the financial statements are made up and shall disclose or
reserve against all the liabilities (actual or contingent) of the Chargor;
(k) the Chargor will deliver to the Agent in sufficient numbers for each of the
Lenders:-
(i) as soon as they become available (and in any event within ninety (90)
days after the end of each of its financial periods) copies of its
financial statements for that period which shall contain an income
statement and a balance sheet and be audited and certified without
adverse qualification by a firm of independent accountants;
(ii) within sixty (60) days after the end of each half year of its
financial year copies of a full report on its business
Schedule 7 -
123
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
for that period which shall contain full particulars of its business
and an income statement and a balance sheet; and
(iii)promptly, such additional financial or other information and records
as the Agent may from time to time reasonably request;
(l) the Chargor will maintain in full force and effect all relevant
authorizations (governmental and otherwise) and will promptly obtain any
further authorization which may become necessary to enable it to carry on
its business and to perform any of the transactions contemplated by this
Debenture;
(m) the Chargor will immediately notify the Agent upon becoming aware of the
revocation or variation of any authorization;
(n) if the Chargor becomes aware of the occurrence of an Event of Default it
will forthwith notify the Agent and provide the Agent with full details of
any steps which it is taking, or is considering taking, in order to remedy
or mitigate the effect of the Event of Default or otherwise in connection
with it;
(o) the Chargor will carry out and operate its business and affairs with due
diligence and efficiency and in accordance with sound financial and
industrial standards and practices;
(p) the Chargor will not make any loans to any persons except with the prior
written consent of the Instructing Group;
(q) the Chargor will not, except with the prior written consent of the
Instructing Group, declare, make or pay any dividend or other distribution
to its shareholders (such consent not to be unreasonably withheld)';
(r) apart from indebtedness arising out of the provisions of this Debenture the
Chargor will not, except with the prior written consent of the Instructing
Group, incur any indebtedness for Borrowed Money, or enter into any
guarantee in respect of any indebtedness of any person, unless such
indebtedness is regarded by the Chargor to be necessary for the normal
course and conduct of its operations and the Chargor shall have evidenced
the necessity thereof to the satisfaction of the Instructing Group;
(s) the Chargor will punctually pay all its indebtedness when due and owing;
Schedule 7 -
124
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(t) the Chargor will, by written notice, inform the Agent of.-
(i) any legal proceedings, litigation or claim involving the Chargor;
(ii) any dispute between the Chargor and any Government or statutory body
in respect of any of the Chargor's lands and other assets;
(iii) any labor controversy which might result in a strike against the
Chargor; and
(iv) any matter which has adversely affected or may adversely affect the
Chargor's ability to fulfill its obligations under this Debenture or
its financial position;
(u) the Chargor will not divest in whole or in part its shareholding in the
Borrower without the prior written consent of the Instructing Group being
obtained through the Agent;
(v) in relation to the Indebtedness the Chargor shall not take or accept any
Security Interest or other security from the Borrower or any other third
party, without first obtaining the Instructing Group consent being obtained
through the Agent;
(w) after the occurrence of an Event of Default, the Chargor shall not, without
first obtaining the Agent's written consent, seek to recover, whether
directly or by set off, lien, counterclaim or otherwise, nor accept any
moneys or other property, nor exercise any rights in respect of, any sum
which may be or become due to the Chargor on any account by the Borrower
or, in relation to the Indebtedness, from any third party, nor claim, prove
for or accept any payment in any composition by, or any winding up of, the
Borrower or, in relation to the Indebtedness, any third party;
(x) if, notwithstanding paragraphs (v) and (w) above, the Chargor holds or
receives any such security, moneys or property, it shall forthwith pay or
transfer the same to the Agent.
11. DEFAULT
11.1 If:-
Schedule 7 -
125
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(a) the Chargor shall fail to observe or perform any of its agreements,
covenants, stipulations, terms and conditions contained in this Debenture;
or
(b) an Event of Default as defined in the Loan Agreement shall occur;
then and in either of such cases, the amount of the Indebtedness outstanding for
the time being shall immediately become payable by the Chargor to the Agent on
demand and the Agent shall forthwith be entitled to exercise the rights and
powers upon default provided by law and this Debenture without any previous
notice to or concurrence on the part of the Chargor.
12. DEMANDS
12.1 Any demand for payment of the amount of the Indebtedness or any part
thereof for the time being outstanding may be made by a notice in writing
requiring payment within seven (7) days from the date thereof and may be
signed on behalf of the Agent by its general manager, manager, assistant
manager, sub-manager, accountant or any other officer of the Agent or by
any solicitor or firm of solicitors purporting to act for the Agent and
shall be served in accordance with the provisions of the Loan Agreement.
13. APPOINTMENT OF RECEIVER AND MANAGER
13.1 At any time after the moneys hereby secured shall have become immediately
repayable:
(a) the Agent or any person authorized by the Agent may enter into and upon any
land or premises where the properties or assets of the Chargor hereby
charged or any of them may be without any notice and may take possession
and control of such assets hereby charged and all documents relating to
such properties and assets;
(b) the Agent may at its discretion be at liberty to give any notice which may
be deemed necessary by the Agent to any person or persons owing money to
the Chargor that all such moneys be paid to the Agent alone and the Chargor
hereby irrevocably appoints the manager of the Agent or the officer in
charge for the time being of the Agent and each of them jointly and
severally to be its attorneys and attorney for it and in its name and on
its behalf to demand sue for and take all appropriate legal proceedings to
recover such moneys and to give a good receipt for the same and to give
such notices to the debtors of the Chargor
Schedule 7 -
126
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
and take all necessary steps to complete the assignment of such moneys to
the Agent as may be necessary;
(c) the Agent may appoint in writing under the hand of the manager or the
officer in charge for the time being of the Agent any person to be receiver
and or manager of the assets hereby charged and may in like manner from
time to time remove any receiver and or manager so appointed and appoint
another in his stead and/or extend the appointment to relate to any other
such properties.
13.2 A Receiver and/or Manager or Receivers and/or Managers so appointed shall
be the agent of the Chargor and the Chargor shall be solely responsible for his
or their
acts and defaults and remuneration. Such Receiver and/or Manager or Receivers
and/or Managers shall have power:-
(a) to take possession or collect and get in any assets hereby charged and for
that purpose to take any proceedings in the name of the Chargor or
otherwise as may seem expedient;
(b) to carry on manage or concur in carrying on and managing and to continue
the business of the Chargor or any part thereof as agent or agents for the
Chargor and for any of those purposes to raise and borrow any money that
may be required upon the security of the whole or any part of the property
hereby charged and to apply or petition for, seek and otherwise howsoever
certificates consents licenses leases permission and title convenient,
expedient or necessary for all or any such purposes;
(c) subject when applicable to the provisions of any and all relevant
legislation (including, but so that this provision shall be in
amplification but not in derogation of the generality of the foregoing
legislation relating to land) forthwith (obtaining when and where necessary
the leave of the Court) to or to agree to sell, license, exchange, lease or
otherwise dispose of or deal with the assets comprised in this security and
to carry the same into effect by conveying or executing in the name or on
behalf of the Chargor any deed or document whatsoever for such
consideration (if any) (including cash debentures or other obligations
shares stock or other valuable consideration) payable in a lump sum or by
installments spread over such period as the Agent shall think fit; plant
machinery and other fixtures may be recovered and sold separately from the
premises containing them without the consent of the Chargor being obtained
thereto;
Schedule 7 -
127
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(d) to make any arrangements or enter into any compromise which he or they
shall think expedient; bring take defend discontinue any actions suits or
proceedings whatsoever civil or criminal in relation to the assets charged
herein;
(e) to make and effect all or any repairs and improvements to the assets
charged herein and to maintain and renew all insurance in respect of such
assets against loss or damage by fire or any other risk in such sums as he
or they shall think fit;
(f) to employ and dismiss such managers agents officers servants clerks
accountants and workmen and others in respect of the assets charged herein
and upon such terms and with such salaries wages or remuneration and for
such purposes as he or they shall think proper;
(g) to allow time for payment of any debts either with or without security;
(h) for such consideration and on such terms as he may think fit, to purchase
outright or acquire by leasing, hiring, licensing or otherwise, any land,
buildings, plant, equipment, vehicles or materials or any other property,
assets or rights of any description which he considers necessary or
desirable for the carrying on, improvement or realization of any business
of the Chargor or otherwise for the benefit of the property and assets
subject to this Debenture;
(i) in connection with the exercise, or the proposed exercise, of any of his
powers or in order to obtain payment of his remuneration (whether or not it
is already due) to borrow or raise money from any person, including any of
the Banks, without security or on the security of the property and assets
of the Chargor whether subject to this Debenture or not, and generally in
such manner and on such terms as he may think fit;
(j) to bring, defend, submit to arbitration, negotiate, compromise, abandon and
settle any claims and proceedings concerning any of the assets charged
herein;
(k) to transfer all or any of the assets charged herein to any other company or
body corporate, whether or not formed or acquired for the purpose;
(1) to call up all or any portion of the uncalled capital for the time being
(if any) of the Chargor;
Schedule 7 -
128
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(m) generally to carry out, or cause or authorize to be carried out, any
action, scheme or arrangement whatsoever, whether similar or not to any of
the foregoing, in relation to the assets charged herein which he may
consider expedient as effectually as if he were solely and absolutely
entitled to such assets;
(n) to repair and keep in repair the assets comprised in the security hereby
made and for this purpose to apply in the name of the Chargor for any
certificate license permission or consent required under any Act Ordinance
other regulations or by-law made by any competent authority;
(o) to execute and do all such other acts deeds and things as to him or them or
the Agent may appear necessary or proper for or in relation to any of the
purposes aforesaid and which he or they lawfully may or can do as agent or
agents for the Chargor;
(p) generally to do and cause to be done such acts and things which the Chargor
may have done for the protection and/or for the improvement of the property
hereby charged.
13.3 The powers of appointment of a Receiver and/or Manager or Receivers
and/or Managers hereunder shall be in addition to and without prejudice to any
statutory and other powers of the Agent whether under the Companies Act or any
other legislation and so that such powers shall be and remain exercisable by the
Agent in respect of any property hereby charged and of which no appointment of a
Receiver and/or Manager or Receivers and/or Managers by the Agent shall from
time to time be subsisting and that notwithstanding that an appointment under
the powers of clauses 13.1 and 13.2 hereof shall have subsisted and been
withdrawn in respect of that property or shall be subsisting in respect of any
other property hereby charged.
13.4 The Agent may at any time after the moneys hereby secured shall have
become repayable effect the sale of the properties of which it has taken
possession under the rovisionsofClausel3.1(a)hereof upon giving not less than
twenty-four (24) hours notice of the intended sale to the Chargor in such manner
as the Agent shall deem proper with liberty to bid buy in and resell the same
and the Agent shall not be liable for any loss caused to the Chargor thereby and
the Chargor shall do all things necessary to enable the Agent to complete any
sale by the Agent of any part of the properties included in this security. The
Agent shall be liable only for loss caused by its willful default.
Schedule 7 -
129
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
13.5 For the purpose of giving effect to the Chargor's obligations under this
Debenture, the Chargor hereby irrevocably appoints the Agent and/or the manager
and/or the officer in charge for the time being of the Agent and/or the Receiver
and/or Manager and his substitute(s) the attorney(s) of the Chargor for the
Chargor and in the ▇▇▇▇▇▇▇'s attorney's own name(s) or in the name of the
Chargor or in the joint names of the attorney and the Chargor and on behalf of
the Chargor as its act and deed to execute, seal complete, sign, transfer and
deliver or otherwise perfect and do any transfer, deed, assurance, agreement,
instrument, assignment, act or thing and to bring, take, defend, prosecute,
compromise, submit to arbitration and/or discontinue any actions, suits or
proceedings whatsoever which may be required or may be deemed proper for any of
the purposes of this Debenture or which the Chargor ought to execute, seal,
complete, sign, transfer and deliver or otherwise perfect and do pursuant to its
obligations under this Debenture with power for such attorney(s) to appoint and
remove any substitute(s).
13.6 Notwithstanding the provisions hereinbefore contained the Agent shall
have the full right and power at its sole and absolute discretion to appoint a
Receiver or Receivers who is or are not also to be Manager or Managers and such
Receiver or Receivers shall have all the powers enumerated in Clauses 13.2, 13.3
and 13.5 hereof save and excluding the power to carry or manage or continue the
business of the Chargor or such other powers applicable to Managers only.
13.7 The Chargor hereby undertakes at all times to ratify and confirm
whatsoever the attorney or attorneys appointed pursuant to Clause 13.5 shall
lawfully do or caused to be done and the Borrower further declares that all acts
done or caused to be done for the purposes herein contained shall be as good,
valid and effectual to all intents and purposes whatsoever as if the same has
been done by the Borrower itself.
14. ADDITIONAL POWERS OF AGENT
14.1 To the extent permitted by law, the terms of the powers of sale and
leasing available to a chargee are hereby extended to authorize the Agent at its
absolute discretion:-
(a) to sell all the title to and interest in any property or assets subject
to this Debenture or any interest in the same, and to do so in
consideration of shares, debentures or any other securities whatsoever,
or of an agreement to pay all or part of the purchase price at a later
date or dates, or an agreement to make periodical payments, whether or
not the agreement is secured by
Schedule 7 -
130
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
an Encumbrance or a guarantee, or for such other consideration whatsoever
as the Agent may fit, and also to grant any option to purchase, and to
effect exchanges;
(b) with a view to selling any property or assets subject to this Debenture (or
offering it for sale) to repair, replace and develop such property or
assets and to apply for any appropriate permission, license or approval;
(c) to sever any fixtures and to sell them apart from the land or buildings on
or to which they are affixed, and also to apportion any rent affecting the
property sold, to charge such rent upon the property sold or retained and
to agree to indemnify any purchaser in respect of such rent or any
covenants by the limitation of a new rent, by granting powers of entry or
otherwise, or to reserve any such indemnity or powers of entry;
(d) with a view to, or in connection with, the sale of any property or assets
subject to this Debenture to carry out any action, scheme or arrangement
which the Agent may, in its absolute discretion, consider appropriate;
(e) to insure any property or assets subject to this Debenture against such
risks (in addition to loss or damage by fire) and for such amounts as the
Agent may consider prudent; and
(f) to do all or any of the things or exercise all or any of the powers
(mutatis mutandis) which are mentioned or referred to in Clause 13
(receiver's powers) and which may not be included in paragraphs (a) to (e)
above.
15. PERSONAL LIABILITY AND CONCURIRENT ACTION
15.1 If the amount realized by the Agent on a sale of the assets herein
secured after deduction and payment from the proceeds of such sale of all fees,
dues and other costs is less than the amount of the Indebtedness for the time
being outstanding and due to the Beneficiaries under the Loan Documents and
whether at such sale the Agent or any of the other Beneficiaries is the
purchaser or otherwise, the Chargor shall pay to the Agent the difference
between the amount due and the amount so realized and until such payment will
also pay interest on such balance at the rates and in the manner prescribed in
the Loan Agreement Provided Always that such personal liability of the Chargor
to pay the aforesaid differential sum shall not in any way prejudice, reduce,
affect or limit the right of the Agent to sue and recover the Indebtedness from
the Chargor nor shall this clause be
Schedule 7 -
131
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
construed to preclude or prevent the Agent and/or any of the Beneficiaries from
suing the Chargor or to postpone the right of the Agent and/or any of the
Beneficiaries to sue the Chargor until after the assets secured by this
Debenture has been sold.
15.2 It is hereby expressly agreed that notwithstanding any other provisions
contained herein and in the other Loan Documents each of the Beneficiaries shall
at all times be entitled, whether individually or together with each other, to
exercise all its rights, powers and privileges and, in the event of any breach
or default, to pursue all remedies concurrently, whether by way of sale,
possession, receivership, civil suit or otherwise.
16. LIENS AND OTHER SECURITIES NOT AFFECTED
16.1 Nothing contained in this Debenture shall prejudice or affect any lien to
which each of the Agent and/or the other Beneficiaries are entitled or any other
securities (whether taken as additional or collateral security or otherwise
howsoever) which the Agent and/or any of the Beneficiaries may, at any time or
from time to time hold for or on account of the Indebtedness hereby secured and
no provision in this Debenture shall operate so as to merge or otherwise
prejudice or affect any bill, note, guarantee, mortgage or other security which
the Agent and/or the other Beneficiaries may for the time being have of the
Indebtedness intended to be hereby or otherwise secured or any right or remedy
under such bill, note, guarantee, mortgage or other security of the Agent and/or
any of the other Beneficiaries.
17. INTEREST RATE IN OTHER SECURITIES
17.1 When the payment of the Indebtedness hereby secured or intended so to
be shall be further secured to any of the Beneficiaries 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 those prescribed in the Loan
Documents, such higher rate of interest shall be payable in respect of the
Indebtedness and nothing contained in or to be implied from this Debenture shall
affect the right of the Agent to enforce and recover payment of such higher rate
of interest or as the case may be the difference between such higher rate of
interest and the rates payable under the Loan Documents.
18. PROTECTION OF THIRD PARTIES
18.1 No purchaser from, or other person dealing with, the Agent and/or the
Receiver shall be concerned to inquire whether any of the powers which they have
exercised or purported to exercise has arisen or
Schedule 7 -
132
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
become exercisable, or whether the whole or any part of the Indebtedness remain
outstanding, or whether any case has happened to authorize the Receiver to act
or as to the propriety or validity of the exercise or purported exercise of any
such power; and the title of such a purchaser and the position of such a person
shall not be impeachable by reference to any of those matters.
18.2 The receipt of the Agent or the Receiver shall be an absolute and a
conclusive discharge to a purchaser and shall relieve him of any obligation to
see to the application of any moneys paid to or by the direction of the Agent or
the Receiver.
18.3 In clauses 18.1 and 18.2 hereof, "purchaser" includes any person
acquiring, .for money or money's worth, any lease of, or Security Interest over,
or any other interest or right whatsoever in relation to, any of the property or
assets subject to this Debenture.
19. PROTECTION OF AGENT AND RECEIVER AND MANAGER
19.1 Neither the Agent nor the Receiver shall be liable in respect of any loss
or damage which arises out of the exercise, or the attempted or purported
exercise of, or the failure to exercise any of their respective powers unless
such loss or damage is caused by its or his gross negligence or willful default.
19.2 Without prejudice to the generality of clause 19. 1, entry into
possession of any property or assets subject to this Debenture shall not render
the Agent or the Receiver liable to account as mortgagee in possession; and if
and whenever the Agent enters into possession of any such property or assets, it
shall be entitled at any time at its pleasure to go out of such possession.
20. INDEMNITY
20.1 The Chargor further covenants with the Agent fully to indemnify the Agent
and each of the other Beneficiaries and the Receiver and the Manager against all
claims, proceedings, liabilities, costs, charges and expenses which the Agent,
that Lender or the Receiver may incur at any time:-
(a) in consequence of anything done or purported to be done by the Agent,
that Lender or the Receiver under this Debenture or any of the Loan
Documents or any other document relating thereto or of any failure by the
Borrower or the Chargor to comply with its or their obligations to the
Beneficiaries hereunder or thereunder or otherwise in connection herewith
or therewith; or
Schedule 7 -
133
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(b) in consequence of any payment in respect of the Indebtedness (whether
made by the Borrower, the Chargor or a third person) being impeached or
declared void for any reason whatsoever.
20.2 The amounts payable under clause 20.1 shall carry interest in accordance
with the provisions of the Loan Agreement from the date on which they were paid
or incurred by the Agent, that Lender or the Receiver (as the case may require)
and such amounts and interest may be debited by the Agent or that Lender to any
account of the Borrower or the Chargor but shall, in any event, form part of the
Indebtedness and accordingly be secured on the property and assets subject to
this Debenture under the charges contained in this Debenture.
21. MODIFICATION AND INDULGENCE
21.1 Agent and/or any of the Beneficiaries may at any time and without in any
way affecting the security hereby created:-
(a) grant to the Borrower or the Chargor or to any other surety or guarantor
any time or indulgence; and/or
(b) renew any bill, notes or other negotiable securities; and/or
(c) compound with the Borrower or the Chargor or any other person or
guarantor.
22. SUSPENSE ACCOUNT
22.1 Any money received under this Debenture may be placed and kept to the
credit of a suspense account for so long as the Agent thinks fit without any
obligation in the meantime to apply the same or any part thereof in or towards
discharge of the amount of the Indebtedness for the time being outstanding and
due to the Agent. Notwithstanding any such payment in the event of any
proceedings in or analogous to liquidation, composition or arrangement, the
Agent may prove for and agree to accept any dividend or composition in respect
of the whole or any part of the amount of the Indebtedness for the time being
outstanding and due to the Beneficiaries under the Loan Documents in the same
manner as if this security had not been created.
23. NO OBLIGATION TO MAKE FURTHER ADVANCES
23.1 Nothing contained in this Debenture shall be deemed to render it
obligatory upon the Lenders either at law or in equity to make or continue to
make any advances or to afford any other accommodation or
Schedule 7 -
134
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
facilities whatsoever to the Borrower save and except for the Facilities.
24. PAYMENTS BY THE AGENT
24.1 All costs, charges and expenses incurred under this Debenture by the
Agent (including any expenditure incurred in the creation, enforcement and/or
preparation of this Debenture or, in the giving of any notice or, in the making
of any demand under, pursuant to or in respect of this Debenture or the amount
of the Indebtedness for the time being outstanding and due to the Agent and
secured by this Debenture) and all other monies whatsoever paid by the Agent in
respect of the said costs, charge ' s expenses and expenditure otherwise
howsoever and all or any other sums and moneys paid or expended by the Agent
under or pursuant to the provisions of this Debenture, express or implied, and
in particular the provisions of Clauses 6.3, and 7.3 shall be payable by the
Chargor to the Agent on demand.
24.2 Until payment to the Agent, the costs, charges, expenses, monies and sums
referred to in Clause 24.1 shall bear interest calculated on the basis of actual
days elapsed and a three hundred and sixty-five (365) day year (inclusive of the
first day but excluding the last day of the period in respect of which interest
shall be payable) and at the Prescribed Rates from the date of the same having
been paid or expended until payment (as well after as before judgment) and such
sums and interest shall on demand be paid to the Agent by the Chargor and, until
payment, shall form part of the Indebtedness and be secured hereunder. In the
event of default in payment by the Chargor after demand from the Agent the
Chargor shall pay Additional Interest on the defaulted amounts.
25. NOTICE OF FURTHER SECURITY INTEREST
25.1 Without prejudice to clause 5 (restriction on Security Interest), if the
Agent receives notice of any Security Interest or any other interest affecting
the property or assets subject to this Debenture:
(a) the Agent may open a new account for the Borrower and/or the Chargor and,
if it does not, it shall nevertheless be deemed to have done so at the
time the Agent received such notice; and
(b) all payments made by the Borrower and/or the Chargor to the Agent or that
Lender after the Agent receives such notice shall be credited or deemed
to have been credited to the new account, and
Schedule 7 -
135
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
in no circumstances whatsoever shall operate to reduce the indebtedness
as at the time the Agent received such notice.
26. POWERS CUMULATIVE
26.1 The powers which this Debenture confers on the Agent, each of the other
Beneficiaries and the Receiver are cumulative, without prejudice to their
respective powers under the general law, and may be exercised as often as the
Agent, that Lender or the Receiver thinks appropriate, the Agent, each of the
other Beneficiaries or the Receiver may, in connection with the exercise of
their powers, join or concur with any person in any transaction, scheme or
arrangement whatsoever, and' the Borrower acknowledges that the respective
powers of the Agent, the other Beneficiaries and the Receiver shall in no
circumstances whatsoever be suspended, waived or otherwise prejudiced by
anything other than an express waiver or variation in writing.
27. CHANGE IN THE AGENT
27.1 The security, liabilities and or obligations created by this Debenture
shall continue to be valid and binding for all purposes whatsoever
notwithstanding any change by amalgamation, reconstruction or otherwise which
may be made in the constitution of the Agent or of any company by which the
business of the Agent may, for the time being, be carried on and shall be
available to the company carrying on that business for the time being.
28. CHANGE IN BORROWER OR CHARGOR
28.1 The security, liabilities and or obligations created by this Debenture
shall continue to be valid and binding for all purposes whatsoever
notwithstanding any change whether by amalgamation, reconstruction or otherwise
howsoever in the constitution of either the Borrower or the Chargor and it is
expressly declared that no change of any sort whatsoever in, relating to or
affecting the Borrower or the Chargor shall in any way, affect the security,
liabilities and or obligations created by this Debenture in relation to any
transaction whatsoever whether past, present or future.
29. ASSIGNMENT/TRANSFER OF DEBENTURE
29.1 The Agent shall be at liberty to assign and transfer this Debenture and
the costs and expenses of the Agent and incidental to such assignment or
transfer shall be paid by the Chargor and any statement therein of the amount
due to the Agent under or by virtue of
Schedule 7 -
136
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
this Debenture shall be conclusive and binding for all purposes against the
Chargor save for manifest error.
29.2 The Chargor shall not be entitled to assign or transfer all or any of its
rights, benefits and obligations hereunder without the prior written consent of
the Instructing Group obtained through the Agent.
29.3 Any Lender may, at any time, assign all or any of its rights and benefits
hereunder or transfer in accordance with Clause 29.5 all or any of its rights,
benefits and obligations hereunder to any financial institution provided that at
the same time it assigns or, as the case may be, transfers an equal portion of
its rights, benefits and obligations under the other Loan Documents to the same
financial institution.
29.4 If any Lender assigns all or any of its rights and benefits hereunder in
accordance with Clause 29.3, then, unless and until the assignee has agreed with
the Agent and the other 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 Agent and the other 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.
29.5 If any Lender wishes to transfer all or any of its rights, benefits
and/or obligations hereunder as contemplated in Clause 29.3, then such transfer
may be effected by the delivery to the Agent of a duly completed and duly
executed Transfer Certificate in which event, on the later of the Transfer Date
specified in such Transfer Certificate and the fifth business day after (or such
earlier business day endorsed by the Agent on such Transfer Certificate falling
on or after) the date of delivery of such Transfer Certificate to the Agent:
(i) to the extent that in such Transfer Certificate the Lender party thereto
seeks to transfer its rights, benefits and obligations hereunder, the
Chargor and such Lender shall be released from further obligations
towards one another hereunder and their respective rights against one
another shall be cancelled (such rights, benefits and obligations being
referred to in this Clause 29.5 as "discharged rights and obligations");
(ii) the Chargor and the Transferee party thereto shall assume obligations
towards one another and/or acquire rights against one another which
differ from such discharged rights and obligations only insofar as the
Chargor and such Transferee have assumed
Schedule 7 -
137
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
and/or acquired the same in place of the Chargor and such Lender; and
(iii) the Agent such Transferee and the other Beneficiaries shall acquire the
same rights and benefits and assume the same obligations between
themselves as they would have acquired and assumed had such Transferee
been an original party hereto as a Lender with the rights, benefits
and/or obligations acquired or assumed by it as a result of such
transfer.
30. SUCCESSORS BOUND
30.1 This Debenture shall be binding upon the liquidators, receivers,
representatives and successors-in-title of the Chargor and on the successors-in-
title and assigns of the Agent.
31. INCORPORATION OF LOAN AGREEMENT
31.1 The Chargor hereby covenants and agrees that during the continuance of
the Loan Agreement, all the provisions, covenants, stipulations, conditions,
undertakings and agreements contained in the Loan Agreement shall unless
repugnant to any of the provisions contained herein, be read as forming part of
this Debenture and shall be applicable with full force and effect as if the same
were set out hereunder with the references therein to the "Loan Agreement" and
the "Borrower" being replaced respectively by references to this "Debenture" and
to the "Chargor".
32. PRINCIPAL/SUPPLEMENTAL INSTRUMENTS
32.1 It is hereby agreed and declared that this Debenture and the other Loan
Documents are instruments employed in one transaction namely to secure the
Facility in an aggregate sum of Ringgit Malaysia Ninety One Million
(RM91,000,000.00) for principal only together with interest thereon and all
other monies payable under the Loan Documents by the Borrower and the Chargor to
the Agent and the Lenders and for the purpose of Section 4(3) of the Stamp Act
1949, the Loan Agreement shall be deemed to be the principal instrument.
Schedule 7 -
138
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
IN WITNESS WHEREOF the Chargor hereto has hereunto affixed its Common
Seal in the presence of its officers duly authorized and the Agent hereto has
hereunto by its Attorney set its hands.
The execution of this instrument )
by the Chargor, SHUBILA )
HOLDINGS SDN. BHD. Was )
duly effected in a manner )
authorized by its constitution )
under the Seal of SHUBILA )
HOLDINGS SDN. BHD. Which )
said seal was hereunto duly )
affixed on the day of )
1995 in the )
presence of:- )
____________________ Director
____________________ Director/Secretary
I, an Advocate and Solicitor of the High Court in
Malaya practicing at Kuala Lumpur hereby certify that on this day of
, 1995 the Common Seal of SHUBILA HOLDINGS SDN. BHD., was duly affixed to the
above written instrument in my presence in accordance with the regulations of
the said Company.
Witness my hand,
____________________
Schedule 7 -
139
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Faciltiy : Term Loan Facility of RM91,000,000.00
SIGNED by )
)
as Attorney for and on behalf of )
PERMATA MERCHANT BANK BERHAD )
as trustee for itself as Agent )
and for the Lenders on the )
day of , 1995 )
in the presence of:- )
Schedule 7 -
140
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Faciltiy : Term Loan Facility of RM91,000,000.00
SCHEDULE8
CORPORATE GUARANTEE
THIS GUARANTEE AND INDEMNITY is issued the day of
,1995 by:-
(1) SHUBILA HOLDINGS SDN. BHD., a company incorporated under the laws of
Malaysia and having its registered office at Suite ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
President House, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Guarantor")
of the first part in favor of:-
(2) PERMATA MERCHANT BANK BERHAD, a company incorporated under the laws of
Malaysia and having its registered office at 27th Floor, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇. ▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Agent") as agent for
the Beneficiaries (as hereinafter defined) of the second part.
WHEREAS:-
(A) Pursuant to a loan agreement (the "Loan Agreement") to be entered into
simultaneously with this Guarantee and Indemnity or shortly hereafter
between (1) SYARIKAT TELEFON WIRELESS (M) SDN. BHD. as borrower (the
"Borrower"), (2) the Agent as arranger and agent and (3) PERMATA MERCHANT
BANK BERHAD and PERWIRA AFFIN BANK BERHAD, (the "Lenders) as lenders agree
to provide a Ringgit Malaysia Ninety One Million (RM91,000,000.00) term
loan facility (the "Facility") to the Borrower.
(B) It is a condition precedent to availability of the Facility that the
Guarantor issues this Guarantee and Indemnity in favor of the Agent.
NOW THIS GUARANTEE AND INDEMNITY WITNESSETH AND IT IS
▇▇▇▇▇▇ AGREED as follows:-
1. DEFINITIONS
1.1 Except where the context otherwise requires, terms and expressions defused
in the Loan Agreement and not otherwise defined herein bear the same meanings
where used in this Guarantee and Indemnity, and the following terms and
expressions where used in this Guarantee and Indemnity bear the meanings
respectively set opposite them:-
Schedule 8 -
141
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Faciltiy : Term Loan Facility of RM91,000,000.00
Additional Interest the additional interest payment by the Borrower pursuant to
clause 12.5(a) of the Loan Agreement and pursuant to the
other Loan Documents due to failure to pay any Indebtedness
when due and payable thereunder;
Beneficiaries the Arranger, the Agent and the Lenders;
Indebtedness at any time, the aggregate of all sums advanced from time
to time by the Lenders to the Borrower together with
interest thereon and all other monies payable to the
Beneficiaries or any of them pursuant to, upon and under
the Loan Documents (whether in respect of principal,
interest, Additional Interest, fees, prepayment premium,
costs, expenses, indemnity or otherwise);
Loan Agreement the agreement described in paragraph (i) of the Retital
hereto and includes modifications thereto as the parties to
the Loan Agreement may agree upon in writing;
Loan Documents the Loan Agreement, the Collateral Agreement, this
Guarantee and Indemnity, the other Security Documents and
any other documents for the time being or from time to time
constituting security for the obligations of the Borrower
under the Loan Agreement; and references to the Loan
Documents shall include references to any one or more of
them.
2. GUARANTEE AND INDEMNITY
2.1 In consideration of the Agent and the other Beneficiaries acting under or
in connection with the Loan Documents (unexecuted copies whereof the Guarantor
acknowledges having received), the Guarantor UNCONDITIONALLY AND IRREVOCABLY
GUARANTEES, as a continuing obligation, the proper and punctual payment by the
Borrower of the Indebtedness and UNCONDITIONALLY AND IRREVOCABLY UNDERTAKES, as
a continuing obligation, with the Agent that, if for any reason and at any time
and from time to time the Borrower does not make payment of any amount of the
Indebtedness, the Guarantor shall pay the amounts not so paid upon first written
demand by the Agent.
3. LIABILITY AS PRINCIPAL DEBTOR
Schedule 8 -
142
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Faciltiy : Term Loan Facility of RM91,000,000.00
3.1 The Guarantor shall be deemed to be liable for the Indebtedness as sole or
principal debtor.
4. LIABILITY TO SUBSIST UNTIL FULL PAYMENT
4.1 The liabilities and obligations of the Guarantor under this Guarantee and
Indemnity shall remain in force notwithstanding any act, omission, neglect,
event or matter whatsoever, except the proper and valid payment of all the
Indebtedness and, subject to Clause 5 below, an absolute discharge or release of
the Guarantor signed by the Agent and without prejudice to its generality, the
foregoing shall apply in relation to anything which would have discharged the
Guarantor (wholly or in part) or which would have afforded the Guarantor any
legal or equitable defense, and in relation to any winding up or dissolution of,
or any change in constitution or corporate identity or loss of corporate
identity by, the Borrower or any other person.
5. DISCHARGE TO BE VOID IF PAYMENT IS NOT VALID
5.1 Any such discharge or release referred to in Clause 4, and any composition
or arrangement which the Guarantor may effect with the Agent and/or the other
Beneficiaries shall be deemed to be made subject to the condition that it will
be void, if any payment or security which the Agent may previously have received
or may thereafter receive from any person in respect of the Indebtedness, is set
aside under any applicable law or proves to have been for any reason invalid.
6. GUARANTEE NOT TO BE IMPAIRED
6.1 Without prejudice to the generality of Clauses 3 and 4 hereof, none of the
liabilities or obligations of the Guarantor under this Guarantee and Indemnity
shall be impaired by the Agent or the other Beneficiaries:-
(a) agreeing with the Borrower any variation or departure (howsoever
substantial) of or from any of the Loan Documents so that any such
variation or departure (including any which may have been made before the
signing of this Guarantee and Indemnity) shall, whatever its nature, be
binding upon the Guarantor in all circumstances, notwithstanding that it
may increase or otherwise affect the liability of the Guarantor provided
however that if any such variation is made without the Guarantor's prior
written consent increasing the amount of the Facility, the amount of the
Guarantor's liability under this paragraph shall be limited to
Schedule 8 -
143
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Faciltiy : Term Loan Facility of RM91,000,000.00
the amount for which it would have been liable had such variation not been
made;
(b) releasing or granting any time or any indulgence whatsoever to the Borrower
or any other guarantor or other third party and, in particular, waiving any
of the conditions precedent for Drawing(s) under the Loan Agreement or any
contravention by the Borrower of the Loan Documents to which it is a party
or entering into any transaction or arrangement whatsoever with or in
relation to the Borrower and/or any third party;
(c) taking, accepting, varying, dealing with, enforcing, abstaining from
enforcing, surrendering or releasing any security for the Indebtedness in
such manner as it thinks fit, or claiming, proving for, accepting or
transferring any payment in respect of the Indebtedness in any composition
by, or winding up of, the Borrower and/or any third party or abstaining
from so claiming, proving, accepting or transferring.
7. GUARANTEE ENFORCEABLE WHETHER OTHER SECURITY IS ENFORCED OR NOT
7.1 Demands under this Guarantee and Indemnity may be made from time to time,
and the liabilities and obligations of the Guarantor under this Guarantee and
Indemnity may be enforced, irrespective of.-
(a) whether any steps or proceedings are being or have been taken against the
Borrower and/or any third party; or
(b) whether or in what order any security to which the Agent and the other
Beneficiaries may be entitled in respect of the Indebtedness is enforced.
8. WARRANTIES OF GUARANTOR
8.1 The Guarantor acknowledges that the Agent and the other Beneficiaries have
entered into the Loan Documents on the basis of, and in full reliance on,
representations in the following terms; and the Guarantor now warrants as
follows:-
(a) the Guarantor is a corporation duly incorporated and validly existing under
the laws of Malaysia;
(b) the documents which contain or establish the Guarantor's constitution
incorporate provisions which authorize, and all necessary corporate action
has been taken to authorize, and all authorizations of any governmental or
other authority have been
Schedule 8 -
144
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Faciltiy : Term Loan Facility of RM91,000,000.00
duly and unconditionally obtained and are in full force and effect which
are required to authorize, the Guarantor to own its assets, carry on its
business as it is now being conducted, and sign and deliver, and perform
the transactions contemplated in, this Guarantee and Indemnity and to
enable the Agent and the other Beneficiaries to exercise the rights, powers
and authorities thereby vested in them;
(c) neither the signing and delivery of this Guarantee and Indemnity nor the
performance of any of the transactions contemplated in it will:-
(i) contravene or constitute a default under any provision contained in
any agreement, instrument, law, judgment, order, license, permit or
con -sent by which the Guarantor or any of its assets is bound or
affected; or
(ii) cause any limitation on it or the powers of its directors, whether
imposed by or contained in any document which contains or establishes
its
constitution or in any law, order, judgment, agreement, instrument or
otherwise, to be exceeded;
(d) no registration, recording, filing or notarization of this Guarantee and
Indemnity and no payment of any duty or tax (save stamp duty in Malaysia)
and no other action whatsoever is necessary or desirable to ensure the
validity, enforceability or priority in Malaysia of the liabilities and
obligations of the Guarantor or the rights of the Agent and the other
Beneficiaries under this Guarantee and Indemnity;
(e) no event has occurred which constitutes, or which with the giving of notice
and/or the lapse of time and/or a relevant determination would constitute,
a contravention of, or default under, any agreement or instrument by which
the Guarantor or any of its assets is bound or affected, being a
contravention or default which might either have an adverse effect on the
business, assets or condition of the Guarantor or adversely affect its
ability to observe or perform its obligations under this Guarantee and
Indemnity;
(f) no litigation, arbitration or administrative proceeding or claim which
might by itself or together with any other such proceedings or claims
either have an adverse effect on the business, assets or condition of the
Guarantor or adversely affect its ability to observe or perform its
obligations under this Guarantee and
Schedule 8 -
145
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Faciltiy : Term Loan Facility of RM91,000,000.00
Indemnity is presently in progress or pending or, to the best of the
knowledge, information and belief of the Guarantor threatened against the
Guarantor, or any of its assets;
(g) all necessary returns have been delivered by or on behalf of the Guarantor
to the relevant taxation authorities and the Guarantor is not in default in
the payment of any taxes of a material amount, and no material claim is
being asserted with respect to taxes which is not disclosed in the
financial statements referred to in paragraph (h) below;
(h) the financial statements (including the income statement and balance sheet)
of the Guarantor submitted to the Agent have been prepared on a basis
consistently applied and give a true and fair view of the results of its
operations for that year and the state of its affairs at the date, and in
particular accurately disclose all the liabilities (actual or contingent)
of the Guarantor;
(i) the Guarantor has fully disclosed in writing to the Agent and the other
Beneficiaries all facts relating to the Borrower and the Guarantor which
the Guarantor knows or should reasonably know and which are material for
disclosure to the Agent and the other Beneficiaries in the context of the
Facility and the Loan Documents;
(j) the transactions on the part of the Guarantor which are contemplated in
this Guarantee and Indemnity represent transactions of a purely commercial
nature by the Guarantor and are not, in any sense, public or governmental
acts;
(k) the Guarantor will derive commercial benefit in issuing this Guarantee and
Indemnity in favor of the Agent; and
(l) the Guarantor is the holding company of the Borrower and the issuance and
execution of the Guarantee will not contravene section 133A of the
Companies Act 1965.
9. UNDERTAKINGS OF GUARANTOR
9.1 The Guarantor undertakes with the Agent, from the date of this Guarantee
and Indemnity until all its liabilities under this Guarantee and Indemnity have
been discharged:-
(a) the liabilities of the Guarantor under this Guarantee and Indemnity will
rank at least equally and ratably (pari passu) in
Schedule 8 -
146
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Faciltiy : Term Loan Facility of RM91,000,000.00
point of priority and security with all its other liabilities (both actual
and contingent) except:-
(i) liabilities which are subject to liens or rights of set off arising
in the normal course of trading and the aggregate amount of which is
not material; and
(ii) liabilities which are preferred solely by Malaysian law and not by
reason of any Security Interest,
and the Guarantor shall not create or permit to exist over all or any part
of its business or assets any Security Interests other than those permitted
under this Clause 9. 1 (a) without the prior written consent of the Agent
and the Lenders;
(b) the Guarantor will send to the Agent (in sufficient copies) as soon as they
become available, but in any event within ninety (90) days of the end of
each of its financial year, copies of its financial statements for that
period, which shall contain an income statement and a balance sheet,
accurately disclose all its liabilities (actual or contingent), be prepared
on a basis consistently applied, be audited and certified without material
adverse qualification by a firm of independent accountants of recognized
international standing in Malaysia and give a true and fair view, in
accordance with accounting principles for the time being generally accepted
in Malaysia, of the results of the operations and the state of affairs of
the Guarantor, and the Guarantor will promptly supply the Agent with such
additional financial or other information as it may from time to time
reasonably request;
(c) the Guarantor will maintain in full force and effect all relevant
authorizations (governmental and otherwise) and will promptly obtain any
further authorization which may become necessary to enable it to perform
any of the transactions contemplated by this Guarantee and Indemnity;
(d) the Guarantor will immediately notify the Agent upon becoming aware of the
revocation or variation of any authorization;
(e) if the Guarantor becomes aware of the occurrence of an Event of Default it
will forthwith notify the Agent and provide the Agent with full details of
any steps which it is taking, or is considering taking, in order to remedy
or mitigate the effect of the Event of Default or otherwise in connection
with it;
Schedule 8 -
147
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Faciltiy : Term Loan Facility of RM91,000,000.00
(f) the Guarantor will punctually pay all its indebtedness when due and owing
except for indebtedness which the Guarantor contests in good faith;
(g) the Guarantor will carry out and operate its business and affairs with due
diligence and efficiency and in accordance with sound financial and
industrial standards and practices and take out/maintain valid insurances
in respect of all its assets and business against all risks which are
normally insured by other companies carrying on similar business for such
amounts as would in the circumstances be considered prudent by such other
companies and will not do or omit to do or suffer anything to be done which
might render any policies of insurance taken out by it void or voidable;
(h) the Guarantor will, by written notice, inform the Agent of:-
(i) any legal proceedings, litigation or claim, involving the Guarantor;
(ii) any dispute between the Guarantor and any Government or statutory
body in respect of any of the Guarantor's lands and other assets;
(iii) any matter which has adversely affected or may adversely affect the
Guarantor's ability to fulfill its obligations under this Guarantee
and Indemnity or its financial position;
(i) the Guarantor shall not take or accept any Security Interest or other
security from the Borrower or, in relation to the Indebtedness, from any
third party, without first obtaining the Instructing Group's written
consent through the Agent;
(j) after the occurrence of an Event of Default the Guarantor shall not,
without first obtaining the Instructing Group's written consent through the
Agent, seek to recover, whether directly or by set off, lien, counterclaim
or otherwise, nor accept any moneys or other property, nor exercise any
rights in respect of, any sum which may be or become due to the Guarantor
on any account by the Borrower or, in relation to the Indebtedness, from
any third party, nor claim, prove for or accept any payment in any
composition by, or any winding up of, the Borrower or, in relation to the
Indebtedness, any third party; and
Schedule 8 -
148
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Faciltiy : Term Loan Facility of RM91,000,000.00
(k) if, notwithstanding Clauses (i) and (j) above, the Guarantor holds or
receives any such security, moneys or property, it shall forthwith pay or
transfer the same to the Agent.
10. INDEMNITY OF GUARANTOR
10.1 As a separate, additional and continuing obligation, the Guarantor
unconditionally and irrevocably undertakes with the Agent that, should the
Indebtedness not be recoverable from the Guarantor under Clause 2 for any reason
whatsoever (including, but without prejudice to the generality of the foregoing,
by reason of any provision of the Loan Documents being or becoming void,
unenforceable or otherwise invalid under applicable law) then, notwithstanding
that that may have been known to the Agent or the other Beneficiaries, the
Guarantor will, as a sole, original independent obligor, upon first written
demand by the Agent under Clause 2, make payment of the Indebtedness by way of a
full indemnity in such currency and otherwise in such manner as is provided for
under the Loan Agreement or this Guarantee and Indemnity.
11. CURRENCY INDEMNITY
11.1 If, under any applicable law, regulation or guideline whether as a result
of a judgment against the Borrower and/or the Guarantor or the liquidation of
the Borrower and/or the Guarantor or for any other reason, any payment under or
in connection with this Guarantee and Indemnity is made or is recovered in a
currency ("the other currency") other than that in which it is required to be
paid hereunder ("the original currency") then, to the extent that the payment to
the Agent and the other Beneficiaries (when converted at the rate of exchange on
the date of payment or, in the case of a liquidation, the latest date for the
determination of liabilities permitted by the applicable law) falls short of the
amount unpaid under this Guarantee and Indemnity, the Guarantor shall as a
separate and independent obligation, fully indemnify the Agent and the other
Beneficiaries against the amount of the shortfall; and for the purposes of this
subclause "rate of exchange" means the rate at which the Agent or the other
Beneficiaries is able on the relevant date to purchase the original currency in
Kuala Lumpur with the other currency.
12. SUSPENSE ACCOUNT
12.1 Any money received hereunder may be placed and kept to the credit of a
suspense account for so long as the Agent thinks fit without any obligation in
the meantime to apply the same or any part thereof in or towards discharge of
Indebtedness or any party thereof.
Schedule 8 -
149
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
Notwithstanding any such payment in the event of any proceedings in or analogous
to bankruptcy, liquidation, composition or arrangement the Agent may prove for
and agree to accept any dividend or composition in respect of the whole or any
part of such money and liabilities in the same manner as if this Guarantee and
Indemnity had not been created.
13. CONTINUING GUARANTEE
13.1 The guarantee and indemnity of the Guarantor herein shall be a continuing
guarantee and security for all monies whatsoever now or hereafter from time to
time owing to the Agent and the other Beneficiaries 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 the Agent and the other Beneficiaries for any period or periods and
notwithstanding any settlement of account or accounts or otherwise.
14. CHANGE IN GUARANTOR
14.1 The security, liabilities and/or obligations created by this Guarantee and
Indemnity shall continue to be valid and binding for all purpose whatsoever
notwithstanding any change whether by amalgamation, reconstruction or otherwise
howsoever in the constitution of the Guarantor and it is expressly declared that
no change of any sort whatsoever in, relating to or affecting the Guarantor
shall in any way affect the security, liabilities and/or obligations created by
this Guarantee and Indemnity in relation to any transaction whatsoever whether
past, present or future.
15. AMENDMENTS AND SEVERABILITY
15.1 No provision of this Guarantee and Indemnity may be amended, waived,
discharged or terminated orally nor may any breach of any provision of this
Guarantee and Indemnity be waived or discharged orally.
15.2 If at any time any provision of this Guarantee and Indemnity is or becomes
illegal, invalid or unenforceable in any respect the remaining provisions of
this Guarantee and Indemnity shall in no way be affected or impaired thereby.
16. WAIVERS
16.1 No failure or delay by any party hereto in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor
Schedule 8 -
150
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
shall any single or partial execution of any right, power or privilege preclude
any further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided are cumulative and not
exclusive of any rights and remedies provided by law.
17. JURISDICTION
17.1 This Guarantee and Indemnity is governed by, and shall be construed in
accordance with, the laws of Malaysia.
18. COSTS
18.1 All costs and disbursements of and incidental to this Guarantee and
Indemnity and the collection of any money due or to become due hereunder
including the Agent's and the other Beneficiaries' legal costs on a full
indemnity basis shall be born by the Guarantor.
19. PAYMENTS
19.1 All payments to be made by the Guarantor for the account of the Agent and
the other Beneficiaries shall be made in Ringgit Malaysia in immediately
available funds not later than 11:30 a.m. on the day in question to such account
as the Agent may have notified to the Guarantor.
19.2 All payments by the Guarantor under this Guarantee and Indemnity whether in
respect of principal, interest, fees or any other item, shall be made in full
without any deduction or withholding (whether in respect of set-off,
counterclaim, duties, taxes, charges or otherwise whatsoever) unless the
deduction or withholding is required by law, in which event the Guarantor shall:
(i) ensure that the deduction or withholding does not exceed the minimum
amount legally required;
(ii) forthwith pay to the Agent such additional amount so that the net amount
received by the Agent will equal the full amount which would have been
received by it had no such deduction or withholding been made;
(iii) pay to the relevant taxation or other authorities within the period for
payment permitted by applicable law the full amount of the deduction or
withholding (including, but without prejudice to the generality of the
foregoing, the full amount of any deduction
Schedule 8 -
151
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
or withholding from any additional amount paid pursuant to this sub-
clause); and
(iv) furnish to the Agent within the period for payment permitted by applicable
law, an official receipt of the relevant taxation or other authorities
involved for all amounts deducted or withheld as aforesaid.
20. ASSIGNMENT/TRANSFER
20.1 This Guarantee and Indemnity shall be binding upon and enure to the benefit
of each party hereto and its successors, Transferees and assigns.
20.2 The Guarantor shall not be entitled to assign or transfer all or any of its
rights, benefits and obligations hereunder without the prior written consent of
the Instructing Group being obtained through the Agent.
20.3 Any Lender may, at any time, assign all or any of its rights and benefits
hereunder or transfer in accordance with Clause 20.5 all or any of its rights,
benefits and obligations hereunder to any financial institution provided that at
the same time it assigns or, as the case may be, transfers an equal portion of
its rights, benefits and obligations under the other Loan Documents to the same
financial institution.
20.4 If any Lender assigns all or any of its rights and benefits hereunder in
accordance with Clause 20.3, then, unless and until the assignee has agreed with
the Agent and the other 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 Agent and the other 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.
20.5 If any Lender wishes to transfer all or any of its rights, benefits and/or
obligations hereunder as contemplated in Clause 20.3, then such transfer may be
effected by the delivery to the Agent of a duly completed and duly executed
Transfer Certificate in which event, on the later of the Transfer Date specified
in such Transfer Certificate and the fifth business day after (or such earlier
business day endorsed by the Agent on such Transfer Certificate falling on or
after) the date of delivery of such Transfer Certificate to the Agent:
Schedule 8 -
152
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(i) to the extent that in such Transfer Certificate the Lender party thereto
seeks to transfer its rights, benefits and obligations hereunder, the
Guarantor and such Lender shall be released from further obligations
towards one another hereunder and their respective rights against one
another shall be cancelled (such rights, benefits and obligations being
referred to in this Clause 20.5 as "discharged rights and obligations");
(ii) the Guarantor and the Transferee party thereto shall assume obligations
towards one another and/or acquire rights against one another which differ
from such discharged rights and obligations only insofar as the Guarantor
and such Transferee have assumed and/or acquired the same in place of the
Guarantor and such Lender; and
(iii) the Agent, such Transferee and the other Beneficiaries shall acquire the
same rights and benefits and assume the same obligations between
themselves as they would have acquired and assumed had such Transferee
been an original party hereto as a Lender with the rights, benefits and/or
obligations acquired or assumed by it as a result of such transfer.
21. INDEPENDENT LEGAL ADVICE
21.1 The Guarantor hereby declares that it has been advised to seek independent
legal advice on the effect and consequence of the Guarantor signing this
Guarantee and Indemnity and the Guarantor hereby agrees that the provisions
contained in this Guarantee and Indemnity shall be binding on the Guarantor
regardless of whether the Guarantor has resorted to any such advice.
22. SUCCESSORS BOUND
22.1 This Guarantee and Indemnity shall be binding upon the successors-in-title
of the Guarantor and the respective successors-in-title and assigns of the Agent
and the Lenders.
23. PRINCIPAL AND SUBSIDIARY INSTRUMENTS
23.1 It Is Hereby Agreed And Declared that this Guarantee and Indemnity and the
Loan Documents are instruments employed in one transaction to secure the sum of
Ringgit Malaysia Ninety One Million (RM91,000,000.00) for principal only and
interest thereon within the meaning of Section 4(3) of the Stamp Act, 1949 of
the States of Malaya and for the purpose of the said Section, the Loan Agreement
shall be
Schedule 8 -
153
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
deemed to be the principal instrument and this Guarantee and Indemnity shall be
deemed to be the subsidiary instrument.
IN WITNESS WHEREOF this Guarantee and Indemnity is executed by the parties
hereto.
THE GUARANTOR
The execution of this instrument )
by the Guarantor, SHUBILA )
HOLDINGS SDN. BHD. was duly effected )
in a manner authorized by its )
constitution under the Seal of )
the Guarantor, SHUBILA HOLDINGS SDN. )
BHD. which said ▇▇▇▇ was hereunto duly )
affixed on the day of ,1995 )
in the presence of.- )
_______________ Director
_______________ Director/Secretary
THE AGENT )
)
SIGNED by )
)
and )
)
for and on behalf of ________________________
PERMATA MERCHANT BANK )
BERHAD as Agent on the )
day of , 1995 )
________________________
Scheudle 8 -
154
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
SCHEDULE 9
GUARANTEE AND INDEMNITY
THIS GUARANTEE AND INDEMNITY is issued this day of ,1995.
by
(1) (i) [*] of [*];
(ii) [*] of [*];
(iii) [*] of [*],
(together the "Guarantors") of the first part in favor of:-
(2) PERMATA MERCHANT BANK BERHAD of 27th Floor, Menara Boustead, ▇▇. ▇▇, ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Agent") as agent for the
Beneficiaries (as hereinafter defined) of the second part.
RECITALS
(i) By a loan agreement(the "Loan Agreement") to be entered into simultaneously
with this Guarantee and Indemnity or shortly hereafter between (1) SYARIKAT
TELEFON WIRELESS (M) SDN. BHD. ("the Borrower") (2) the Agent and (3)
PERMATA MERCHANT BANK BERHAD; and PERWIRA AFFIN BANK BERHAD) (the
"Lenders"), the Lenders agree subject to the conditions therein appearing,
to make available to the Borrower a term loan facility in a maximum
aggregate principal amount of Ringgit Malaysia Ninety One Million
(RM91,000,000.00) (the "Facility").
(ii) One of the conditions precedent to availability of the Facility that the
Guarantors issue this Guarantee and Indenmity in favor of the Agent.
NOW THIS GUARANTEE AND INDEMNITY WITNESSETH AND IT IS
_________
*Confidential portion has been omitted and filed separately with the Commission.
Schedule 9 -
155
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
▇▇▇▇▇▇ AGREED as follows:-
1. DEFINITIONS
1.1 Except where the context otherwise requires, terms and expressions defined
in the Loan Agreement and not otherwise defined herein bear the same meanings
where used in this Guarantee and Indemnity, and the following terms and
expressions where used in this Guarantee and Indemnity bear the meanings
respectively set opposite them:-
Additional Interest the additional interest payment by the Borrower pursuant
to clause 12.5(a) of the Loan Agreement and pursuant to
the other Loan Documents due to failure to pay any
Indebtedness when due and payable thereunder;
Beneficiaries the Arranger, the Agent and the Lenders;
Loan Agreement the agreement described in paragraph (i) of the Recital
hereto and includes such modifications thereto as the
parties to the Loan Agreement may agree upon in writing;
Indebtedness at any time, the aggregate of all sums advanced from time
to time by the Lenders to the Borrower together with
interest thereon and all other monies payable to the
Beneficiaries or any of them pursuant to, upon and under
the Loan Documents (whether in respect of principal,
interest, Additional Interest, fees, prepayment premium,
costs, expenses, indemnity or otherwise);
Loan Documents the Loan Agreement, the Collateral Agreement, this
Guarantee and Indemnity, the other Security Documents and
any other documents for the time being or from time to
time constituting security for the obligations of the
Borrower under the Loan Agreement; and references to the
Loan Documents shall include references to any one or more
of them;
1.2 The headings in this Guarantee and Indemnity are inserted for convenience
only and shall not be taken read and construed as essential parts of this
Guarantee and Indemnity. References to
Schedule 9 -
156
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
clauses are to be construed as references to clauses of this Guarantee and
Indemnity. All references to provisions of statutes include such provisions as
modified, re-certified or re-enacted. Words applicable to natural persons
include any body of persons, company, corporation, firm or partnership corporate
or incorporate and vice versa. Words importing the masculine gender shall
include the feminine and neuter genders and vice versa. Words importing the
singular number shall include the plural number and vice versa.
2. GUARANTEE AND INDEMNITY AND UNDERTAKIING
2.1 GUARANTEE AND INDEMNITY
In consideration of the Agent and the other Beneficiaries acting under or
in connection with the Loan Documents (the receipt of unexecuted copies whereof,
each of the Guarantors hereby acknowledges) the Guarantors HEREBY JOINTLY AND
SEVERALLY GUARANTEE, AGREE, UNDERTAKE AND COVENANT with the Agent and its
respective successors-in-title and assigns and each of them that the Guarantors
will ensure due and punctual payment of all Indebtedness by the Borrower and
that the Guarantors will pay to the Agent and other Beneficiaries the
Indebtedness or any part thereof forthwith upon default of such payment by the
Borrower and without any demand by the Agent on any of the Guarantors AND the
Guarantors HEREBY JOINTLY AND SEVERALLY UNDERTAKE to indemnify the Agent and the
other Beneficiaries against all losses and expenses, including legal costs on a
full indemnity basis, charges and damages incurred or suffered by the Agent and
other Beneficiaries or any of them in consequence of any failure by the Borrower
to pay the Indebtedness aforesaid or resulting from any breach, non-performance
or non-observance by the Borrower of the obligations, terms, covenants and
agreements to be performed or observed by the Borrower and contained in the Loan
Documents.
3. GUARANTORS' COVENANTS
3.1 Each Guarantor hereby agrees, undertakes and covenants with the Agent and
their respective successors-in-title and assigns and each of them as follows:-
(a) that the guarantee, indemnity and undertaking herein shall not in any way
be discharged, diminished or affected by the granting of time or indulgence
to the Borrower or the effecting of any compromise between the Agent and
the other Beneficiaries or any of them and the Borrower or any agreement
between the Borrower and the Agent and the Beneficiaries or any of them not
to sue the Borrower;
Schedule 9 -
157
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(b) that the liability of the Guarantors under the guarantee, indemnity and
undertaking herein shall subsist whether or not the Agent and the other
Beneficiaries or any of them has or have a legal right to claim against the
Borrower or any other surety or against any security which the Agent and
the other Beneficiaries or any of them may now or at any time hereafter or
from time to time have from or against the Borrower or any other person for
any sums, loss or damage and whether or not the Agent and the other
Beneficiaries or any of them has or have availed itself or themselves of
its or their legal remedies against the Borrower or any other surety or
against any security as aforesaid;
(c) that all sums payable by the Guarantors or any one of them under the
guarantee and indemnity herein shall be paid in full without set-off,
counter-claim, condition or qualification of any nature whatsoever;
(d) that the liability of the Guarantors under the guarantee, indemnity and
undertaking herein shall not be affected by the Agent and the other
Beneficiaries or any of them granting any relaxation, forbearance or
indulgence to the Guarantors or any of them;
(e) that the Agent or the other Beneficiaries or any of them may, at any time
or times, agree not to sue any of the Guarantors or release any of the
Guarantors from their liability under the guarantee and indemnity herein
without affecting the liability of the remaining Guarantors under the
guarantee and indemnity herein and whether or not the remaining Guarantors
shall have notice of or assented to such agreement or release and whether
or not the Agent and the other Beneficiaries or any of them shall have
reserved its or their remedies against the remaining Guarantors;
(f) that the Agent and the other Beneficiaries or any of them may, at any time
or times, at its or their absolute discretion, without discharging,
impairing or affecting the liability of the Guarantors or any of them under
their guarantees, indemnities and undertakings herein and without giving
notice to the Guarantors or any of them and without obtaining the assent of
the Guarantors or any of them, vary, add to, or alter the obligations
undertaken by the Borrower or refuse further credit to the Borrower;
(g) that the guarantee and indemnity of the Guarantors herein shall be in
addition to any other guarantee and other security held by the Agent and
the other Beneficiaries or any of them in respect
Schedule 9 -
158
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
of the repayment of the monies and liabilities from time to time at any
time due and owing by the Borrower under the Loan Documents to the Agent
and the other Beneficiaries and the due performance and observance by the
Borrower of the terms, provisions, covenants, agreements and obligations on
the part of the Borrower to be performed and observed and contained in the
Loan Documents and whether such guarantee or other security shall be given
to the Agent and the other Beneficiaries by the Guarantors or any of them
or otherwise and no renewal, variation, exchange, release, modification of
or other dealing with or forbearance from perfecting or enforcing any such
other guarantee or other security by the Agent and the other Beneficiaries
or any of them shall affect the liability of the Guarantors or any of them
under their guarantees and indemnities herein and whether or not the
Guarantors or any of them shall have notice of or given their assent to
such renewal, variation, exchange, release, modification of or other
dealing with or forbearance from perfecting or enforcing such other
guarantee or other security;
(h) that the guarantee and indemnity herein shall not be considered as
satisfied by any intermediate payment or satisfaction of the whole or any
part of any sum or sums of money owing as aforesaid but shall be continuing
security and shall extend to cover any sum or sums of money which shall for
the time being constitute the balance due from the Borrower to the Agent
and the other Beneficiaries upon any such account or accounts as herein
mentioned;
(i) that the guarantee and indemnity of the Guarantors herein shall be a
continuing guarantee and security for all monies whatsoever now or
hereafter from time to time owing to the Agent and the other Beneficiaries
by the Borrower pursuant to and under the Loan Documents notwithstanding
that the Borrower may at any time or times cease to be indebted to the
Agent and the other Beneficiaries or any of them for any period or periods
and notwithstanding any settlement of account or accounts or otherwise;
(j) that the guarantee and indemnity of the Guarantors herein shall be binding
on the Guarantors and each of them and on their respective successors-in-
title for all purposes and no change whatsoever in the constitution of the
Agent and the other Beneficiaries or any of them or the Borrower whether by
amalgamation, reconstruction or otherwise shall affect or impair the
liability of the Guarantors or any of them under the guarantee and
indemnity herein;
Schedule 9 -
159
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(k) that all sums of monies not recovered or recoverable from the Guarantors or
any of them on the basis of a guarantee whether by reason of any legal
limitation, disability or incapacity on or of the Borrower or any other
fact and circumstance and, whether known or not to the Agent and the other
Beneficiaries or any of them shall nevertheless be recoverable from the
Guarantors or any of them as principal debtors in respect thereof and shall
be repaid by the Guarantors and each of them upon demand made by the Agent
or the other Beneficiaries or on the Agent's or Beneficiaries' behalf;
(l) that the death or disability or determination of liability of any one of
the Guarantors shall not prejudice or affect the liability of the other
Guarantors or of the liability in respect of the monies due and owing by
the Borrower to the Agent and the other Beneficiaries or losses, actions,
proceedings, claims, demands, costs, damages and expenses sustained or
incurred by the Agent and the other Beneficiaries or any of them prior to
the date of determination of the liability of that one of the Guarantors
who shall have died or be under disability or whose liability hereunder
shall have been determined and the Agent and the other Beneficiaries and
each of them shall be at liberty without affecting its or their rights
hereunder to open fresh accounts with the Borrower and, unless the person
or persons paying specifically direct the Agent or the other Beneficiaries
otherwise in writing, no money paid from time to time into any such account
or accounts by or on behalf of the Borrower shall be appropriated towards
or have the effect of payment of any part of the monies due and owing from
the Borrower to the Agent and the other Beneficiaries or losses, actions,
proceedings, claims, demands, costs, damages and expenses sustained or
incurred by the Agent and the other Beneficiaries prior to or at the time
of the cesser of liability of that one of the Guarantors who shall have
died or be under disability or whose liability hereunder shall have been
determined;
(m) that any accounts settled or stated by or between the Agent and the other
Beneficiaries or any of them and the Borrower or admitted by or on behalf
of the Borrower and duly certified by one of the officers of the Agent may
be adduced by the Agent and the other Beneficiaries or any of them and
shall, in that case and in the absence of manifest error, be accepted by
the Guarantors and each of them as conclusive evidence that the balance or
amount thereby appearing is due from the Borrower to the Agent and the
other Beneficiaries and payable on demand to
Schedule 9 -
160
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
the Agent and the other Beneficiaries by the Guarantors or any of them;
(n) that if the Borrower becomes insolvent or if an order is made or
legislation enacted or an effective resolution passed for winding up the
Borrower or a receiver is appointed for the debenture or debenture holders
of the Borrower, the Agent and the other Beneficiaries and each of them may
prove in the winding up of the Borrower for the whole amount owing or
remaining due and unpaid by the Borrower to the Agent and the other
Beneficiaries and each of them and no money or dividend received by the
Agent and the other Beneficiaries or any of them shall be treated as
received in respect of the Guarantors' guarantee, indemnity and undertaking
herein or otherwise in relation to the Guarantors or any of them but the
full amount hereby guaranteed shall be payable by the Guarantors until the
Agent and the other Beneficiaries and each of them shall have received from
all sources one hundred (100) sen to a ringgit on the ultimate balance
owing and remaining due and unpaid to the Agent and the other
Beneficiaries;
(o) that if the Agent and the other Beneficiaries have received such ultimate
balance in full, any claim on the part of the Guarantors or any of them to
any excess or any securities remaining in the hands of the Agent or any of
the Beneficiaries shall be a matter of adjustment between the Agent or that
Beneficiary and the Guarantors or any of them and any other person or
persons laying claim thereto;
(p) that all payments received by the Agent and the other Beneficiaries from
the Borrower or from its liquidators or otherwise shall be taken and
applied by the Agent and the other Beneficiaries as payments in gross and
the right of the Guarantors or any of them to be subrogated to the Agent
and the other Beneficiaries in respect thereto shall not arise until the
Agent and the other Beneficiaries shall have received the full amount of
all claims of the Agent and the other Beneficiaries against the Borrower;
(q) that the Guarantors have not taken and shall not take, without the prior
consent in writing of the Agent and the other Beneficiaries, whether
directly or indirectly, in respect of the liability undertaken pursuant to
the guarantee, indemnity and undertaking herein by the Guarantors or any of
them on behalf of the Borrower, any counter security, whether involving a
charge on any property whatsoever of the Borrower or otherwise, whereby the
Schedule 9 -
161
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
Guarantors or any of them or any person or persons claiming through the
Guarantors or any of them would, or might, on the insolvency or liquidation
of the Borrower and to the prejudice of the Agent and the other
Beneficiaries or any of them increase the proof in such insolvency or
liquidation or diminish the property distributable among the creditors of
the Borrower and, as regards any such counter security taken by the
Guarantors or any of them with the consent of the Agent and the other
Beneficiaries as aforesaid, the same shall be a security to the Agent and
the other Beneficiaries for the fulfillment of the Guarantors' obligations
under their guarantee, indemnity and undertaking herein;
(r) that the Agent and the other Beneficiaries shall, so long as any money
remains owing under the guarantee, indemnity and undertaking herein have a
lien therefor on all money now or hereafter standing to the credit of the
Guarantors or any of them with the Agent and the other Beneficiaries or any
of them;
(s) that a certificate by an officer of the Agent as to the money and
liabilities for the time being due or incurred from or by the Borrower to
the Agent and the other Beneficiaries shall, in the absence of manifest
error, be conclusive evidence in any legal proceedings against the
Guarantors or any of them;
(t) that any sums or security paid or given to the Agent and the other
Beneficiaries by or on behalf of the Borrower or the Guarantors or any of
them shall not constitute a valid settlement or discharge of the liability
of the Guarantors or any of them under their guarantee and indemnity herein
or any part thereof if the payment of such sums or the giving of such
security shall be avoided or reduced under the provisions of any law
relating to insolvency or liquidation for the time being in force and the
Agent and the other Beneficiaries shall be entitled to claim against the
Guarantors and each of them in the case of avoidance, the full amount or
value of the aforesaid sums or security and, in the case of reduction, the
amount or value by which the aforesaid sums or security shall be reduced;
(u) that the Agent and the other Beneficiaries shall be entitled to recover
from the Guarantors and each of them, all sums payable by the Guarantors
hereunder without first availing themselves of their legal remedies against
the Borrower or any other surety or against any security the Agent and the
other Beneficiaries or any of them may now or at any time hereafter or from
time to time have from or against the Borrower or any other person; and
Schedule 9 -
162
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(v) that any notice, demand or request required or permitted to be given or
made under the guarantee indemnity herein shall be in writing and shall be
sufficiently made or given to the Guarantors if left by hand or sent by
telegram, telex or post addressed to the Guarantors at their respective
addresses above written or their respective last known places of business
or residence as the case may be or at such other addresses as the
Guarantors shall notify the Agent and shall, in the case of a notice,
demand or request sent by telegram, telex or post be deemed to have been
served on and duly received by the Guarantors at the time when the same
would, in the ordinary course of transmission or post, be received.
4. WARRANTIES BY THE GUARANTORS
4.1 The Guarantors acknowledge that each of the Agent and the other
Beneficiaries has entered into the Loan Agreement on the basis of, and in full
reliance on, representations in the following terms; and each of the Guarantors
now warrants as follows:-
(a) neither the signing and delivery of this Guarantee and Indemnity nor the
performance of any of the transactions contemplated in it will contravene
or constitute a default under any provision contained in any agreement,
instrument, law, judgment, order, license, permit or consent by which the
Guarantor or any of his assets is bound or affected;
(b) no event has occurred which constitutes, or which with the giving of notice
and/or the lapse of time and/or a relevant determination would constitute,
a contravention of, or default under, any agreement or instrument by which
the Guarantor or any of his assets is bound or affected, being a
contravention or default which might either have an adverse effect on the
business or assets of the Guarantor or adversely affect his ability to
observe or perform his obligations under this Guarantee and Indemnity;
(c) no litigation, arbitration or administrative proceeding or claim which
might by itself or together with any other such proceedings or claims
either have an adverse effect on the business or assets of the Guarantor or
adversely affect his ability to observe or perform his obligations under
this Guarantee and Indemnity is presently in progress or pending or, to the
best of the knowledge, information and belief of the Guarantor, threatened
against the Guarantor, or any of his assets;
Schedule 9 -
163
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(d) all necessary returns have been delivered by or on behalf of the Guarantor
to the relevant taxation authorities and the Guarantor is not in default in
the payment of any taxes of a material amount, and no material claim is
being asserted with respect to taxes which has not been disclosed to the
Agent' and the other Beneficiaries; and
(e) the Guarantor has fully disclosed in writing to the Agent and the other
Beneficiaries all facts relating to the Borrower and the Guarantor which
the Guarantor knows or should reasonably know and which are material for
disclosure to the Agent and the other Beneficiaries in the context of the
Loan Documents and this Guarantee and Indemnity.
5. UNDERTAKING BY THE GUARANTORS
5.1 Each of the Guarantors undertakes with the Agent, from the date of this
Guarantee and Indemnity until all his liabilities under this Guarantee and
Indemnity have been discharged:-
(a) the Guarantor will ensure that the Borrower pays the Indebtedness and each
and every part thereof as it falls due;
(b) the liabilities of the Guarantor under this Guarantee and Indemnity will
rank at least equally and ratably (pari passu) in point of priority and
security with all his other unsecured liabilities (both actual and
contingent);
(c) the Guarantor will maintain in full force and effect all relevant
authorizations (governmental and otherwise) and will promptly obtain any
further authorization which may become necessary to enable him to perform
any of the transactions contemplated by this Guarantee and Indemnity;
(d) the Guarantor will immediately notify the Agent upon becoming aware of the
revocation or variation of any authorization;
(e) if the Guarantor becomes aware of the occurrence of an Event of Default he
or she will forthwith notify the Agent and provide the Agent with full
details of any steps which he or she is taking, or is considering taking,
in order to remedy or mitigate the effect of the Event of Default or
otherwise in connection with it;
Schedule 9 -
164
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(f) the Guarantor will punctually pay all his indebtedness when due and owing
except for indebtedness which the Guarantor contests in good faith;
(g) the Guarantor will, by written notice, inform the Agent of any dispute or
matter which has adversely affected or may adversely affect the Guarantor's
ability to fulfill his obligations under this Guarantee and Indemnity of
his financial position;
(h) the Guarantor will not take or accept any Security Interest or other
security from the Borrower or, in relation to the Indebtedness, from any
third party, without first obtaining the written consent of the Instructing
Group through the Agent;
(i) after the occurrence of an Event of Default, the Guarantor will not,
without first obtaining the written consent of the Instructing Group
through the Agent, seek to recover, whether directly or by set-off, lien,
counterclaim or otherwise, nor accept any moneys or other property, nor
exercise any rights in respect of, any sum which may be or become due to
the Guarantor on any account by the Borrower or, in relation to the
Indebtedness, from any third party, nor claim, prove for or accept any
payment in any composition by, or any winding up of, the Borrower or, in
relation to the Indebtedness, any third party;
(j) if, notwithstanding paragraphs (h) and (i) above, the Guarantor holds or
receives any such security, moneys or property, it or he shall forthwith
pay or transfer the same to the Agent for the account of the Beneficiaries;
(k) the Guarantor will maintain the Borrower's solvency and provide the
Borrower (by way of fully subordinated loans or contribution of further
share capital or by way of any other means acceptable to the Agent and the
other Beneficiaries) with sufficient funds to meet its obligations and
ensure that the Project is completed according to the schedule made known
to and accepted by the Agent and the other Beneficiaries.
6. INDEMNITY
6.1 As a separate, additional and continuing obligation each of the Guarantors
unconditionally and irrevocably undertakes with the Agent that, should the
Indebtedness not be recoverable from any Guarantor under paragraph 2 for any
reason whatsoever (including, but without prejudice to the generality of the
foregoing, by reason of any
Schedule 9 -
165
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
provision of the Loan Documents being or becoming void, unenforceable or
otherwise invalid under any applicable law) then, notwithstanding that that may
have been, known to the Agent and the other Beneficiaries or any of them, each
Guarantor will, as a sole, original and independent obligor, upon first written
demand by the Agent under paragraph 2.1, make payment of the Indebtedness by way
of a full indemnity in such currency and otherwise in such manner as is provided
for in the Loan Agreement.
7. PAYMENTS
7.1 All payments to be made by the Guarantors for the account of the Lenders
shall be made in Ringgit Malaysia in immediately available funds not later than
11.30 a.m. on the day in question to such account as the Agent may have notified
to the Guarantors.
7.2 All payments by the Guarantors under this Guarantee and Indemnity whether
in respect of principal, interest, fees or any other item, shall be made in full
without any deduction or withholding (whether in respect of set-off,
counterclaim, duties, taxes, charges or otherwise whatsoever) unless the
deduction or withholding is required by law, in which event the Guarantors
shall:
(i) ensure that the deduction or withholding does not exceed the minimum amount
legally required;
(ii) forthwith pay to the Agent such additional amount so that the net amount
received by the Beneficiaries will equal the full amount which would have
been received by it had no such deduction or withholding been made;
(iii)pay to the relevant taxation or other authorities within the period for
payment permitted by applicable law the full amount of the deduction or
withholding (including, but without prejudice to the generality of the
foregoing, the full amount of any deduction or withholding from any
additional amount paid pursuant to this sub-clause); and
(iv) furnish to the Agent within the period for payment permitted by applicable
law, an official receipt of the relevant taxation or other authorities
involved for all amounts deducted or withheld as aforesaid.
7.3 If, under any applicable law, regulation or guideline, whether as a
result of a judgment against the Guarantors or the bankruptcy of the Guarantors
or for any other reason, any payment under or in connection
Schedule 9 -
166
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
with this Guarantee and Indemnity is made or is recovered in a currency (the
"foreign currency") other than that in which it is required to be paid hereunder
(the "original currency") then, to the extent that the payment to the
Beneficiaries (when converted at the rate of exchange on the date of payment or,
in the case of a bankruptcy, the latest date for the determination of
liabilities permitted by the applicable law) falls short of the amount unpaid
under this Guarantee and Indemnity, the Guarantors shall as a separate and
independent obligation, fully indemnify the Beneficiaries against the amount of
the shortfall; and for the purposes of this sub-clause "rate of exchange" means
the rate at which the Agent is able on the relevant date to purchase the
original currency in Kuala Lumpur with the foreign currency.
8. AMENDMENTS AND SEVERABILITY
8.1 No provision of this Guarantee and Indemnity may be amended, waived,
discharged or terminated orally nor may any breach of any provision of this
Guarantee and Indemnity be waived or discharged orally.
8.2 If at any time any provision of this Guarantee and Indemnity is or becomes
illegal, invalid or unenforceable in any respect the remaining provisions of
this Guarantee and Indemnity shall in no way be affected or impaired thereby.
9. INDEPENDENT LEGAL ADVICE
9.1 The Guarantors hereby declare that they have been advised to seek
independent legal advice on the effect and consequence of the Guarantors signing
this Guarantee and Indemnity and the Guarantors hereby agree that the provisions
contained in the Guarantee and Indemnity shall be binding on the Guarantors
regardless of whether the Guarantors have resorted to any such advice.
10. WAIVERS
10.1 No failure or delay by any party hereto in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial execution of any right, power or privilege preclude any further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided are cumulative and not exclusive of any rights and
remedies provided by law.
11. LAW AND JURISDICTION
Schedule 9 -
167
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
11.1 This Guarantee and Indemnity is governed by, and shall be construed in
accordance with, the laws of Malaysia.
11.2 The Guarantors irrevocably:-
(a) submits to the exclusive jurisdiction of the Courts of Malaysia
PROVIDED ALWAYS in the case of the foreign Guarantor, he will
irrevocably submits to the non-exclusive jurisdiction of the Courts of
Malaysia and the Courts of Sweden;
(b) waives any objections on the ground of venue or forum non convenience
or any similar grounds;
(c) consents to service of process by mall or in any other manner
permitted by the relevant law.
1l.3 [*] shall at all times maintain an agent for service of process in
Malaysia. Such agent shall be:-
Name:
Address:
and the said Guarantor abovenamed undertakes not to revoke the authority of
the above agent and if, for any reason, such agents or any successor agent
no longer serves as agent of the said Guarantor to receive service of
process, the said Guarantor shall promptly appoint another such agent and
advise the Agent thereof.
12. COSTS
12.1All costs and disbursements of and incidental to this Guarantee and
Indemnity and the collection of any money due or to become due hereunder
including the legal costs of the Agent and the other Beneficiaries on a
full indemnity basis shall be borne by the Guarantors.
13. ASSIGNMENT/TRANSFER
13.1 This Guarantee and Indemnity shall be binding upon and enure to the
benefit of each party hereto and its successors, Transferees and assigns.
__________
*Confidential portion has been omitted and filed separately with the Commission.
Schedule 9 -
168
Borrower : Facility Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
13.2 The Guarantors shall not be entitled to assign or transfer all or any of
its rights, benefits and obligations hereunder without the prior written consent
of the Instructing Group obtained through the Agent.
13. 3 Any Lender may, at any time, assign all or any of its rights and benefits
hereunder or transfer in accordance with Clause 13.5 all or any of its rights,
benefits and obligations hereunder to any financial institution provided that at
the same time it assigns or, as the case may be, transfers an equal portion of
its rights, benefits and obligations under the other Loan Documents to the same
financial institution.
13.4 If any Lender assigns all or any of its rights and benefits hereunder in
accordance with Clause 13.3, then, unless and until the assignee has agreed with
the Agent and the other 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 Agent and the other 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.
13.5 If any Lender wishes to transfer all or any of its rights, benefits and/or
obligations hereunder as contemplated in Clause 13.3, then such transfer may be
effected by the delivery to the Agent of a duly completed and duly executed
Transfer Certificate in which event, on the later of the Transfer Date specified
in such Transfer Certificate and the fifth business day after (or such earlier
business day endorsed by the Agent on such Transfer Certificate falling on or
after) the date of delivery of such Transfer Certificate to the Agent:
(i) to the extent that in such Transfer Certificate the Lender party thereto
seeks to transfer its rights, benefits and obligations hereunder, the
Guarantors and such Lender shall be released from further obligations
towards one another hereunder and their respective rights against one
another shall be cancelled (such rights, benefits and obligations being
referred to in this Clause 13.5 as "discharged rights and obligations");
(ii) the Guarantors and the Transferee party thereto shall assume obligations
towards one another and/or acquire rights against one another which differ
from such discharged rights and obligations only insofar as the Guarantors
and such Transferee have assumed and/or acquired the same in place of the
Guarantors and such Lender; and
Schedule 9 -
169
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(iii) the Agent such Transferee and the other Beneficiaries shall acquire the
same rights and benefits and assume the same obligations between
themselves as they would have acquired and assumed had such Transferee
been an original party hereto as a Lender with the rights, benefits
and/or obligations acquired or assumed by it as a result of such
transfer.
14. SUCCESSORS BOUND
14.1 This Guarantee and Indemnity shall be binding upon the respective
successors-in-title of the Guarantors and the respective successors-in-title and
assigns of the Agent.
15. PRINCIPAL/SUBSIDIARY INSTRUMENTS
15.1 It is hereby agreed and declared that this Guarantee and Indemnity and
the Loan Documents are instruments employed in one transaction namely to secure
the Facility in an aggregate sum of Ringgit Malaysia Ninety One Million
(RM91,000,000.00) for principal only together with interest thereon and all
other monies payable by the Borrower to the Agent and the other Beneficiaries
under the Loan Documents and for the purpose of Section 4(3) of the Stamp Act
1949, the Loan Agreement shall be deemed to be the principal instrument and this
Guarantee and Indemnity shall be deemed to be the subsidiary instrument.
IN WITNESS WHEREOF this GUARANTEE AND INDEMNITY is executed by the
parties hereto.
THE AGENT
SIGNED by )
)
and )
)
for and on behalf of PERMATA ) ________________
MERCHANT BANK BERHAD, )
as Agent on the day of )
,199 )
________________
Schedule 9 -
170
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
THE GUARANTORS
SIGNED by [*] )
as Guarantor on )
the day of , )
199 in the presence of:- )
SIGNED by [*] )
as )
Guarantor on the day of )
,199 )
in the presence of:- )
SIGNED by [*] )
as Guarantor on the )
day of , )
199 in the presence of:- )
________
*Confidential portion has been omitted and filed separately with the Commission.
Schedule 9 -
171
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
SCHEDULE 10
ASSIGNMENT
THIS DEED OF ASSIGNMENT is made on the day of ,199_
BETWEEN:
(1) SYARIKAT TELEFON WIRELESS (M) SDN. BHD., a company incorporated in Malaysia
and having its registered office at 2nd Floor, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Borrower") of the
one part; and
(2) PERMATA MERCHANT BANK BERHAD (the "Agent") of a company incorporated in
Malaysia and licensed to carry on banking business and having its
registered office at 27th Floor, Menara Boustead, ▇▇. ▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ as agent for the Beneficiaries (as hereinafter
defined) of the other part.
WHEREAS:-
(A) By a loan agreement to be entered into simultaneously within this
Assignment or shortly hereafter (the "Loan Agreement") between (1) the
Borrower and (2) the Agent and (3) PERMATA MERCHANT BANK BERHAD and PERWIRA
AFFIN BANK BERHAD, (the "Lenders"), the Lenders agree to make available to
the Borrower a term loan facility of up to the maximum principal sum of
Ringgit Malaysia Ninety One Million (RM91,000,000.00) (the "Facility") upon
and subject to the terms and conditions therein set out.
(B) It is a condition precedent to the availability of the Facility that inter-
alia the Borrower executes this Assignment in favor of the Agent as
security for the Facility.
NOW THIS ASSIGNMENT WITNESSETH AND IT IS ▇▇▇▇▇▇ AGREED as follows:-
1. DEFINITIONS
1.1 Except where the context otherwise requires, terms and expressions defined
in the Loan Agreement and not otherwise defined herein bear the same meanings
where used in this Assignment, and the
Schedule 10 -
172
Borrower : Syarikat Telefon Wireless (M) Sdn. Bdn.
Facility : Term Loan Facility of RM91,000,000.00
following terms and expressions where used in this Assignment bear the meanings
respectively set opposite them:-
Beneficiaries the Agent, the Arranger and the Lenders;
Credit Balance all amounts (whether of principal or interest) from time to
time and at any time standing to the credit of the Project
Account;
Project Account the bank account opened and maintained, or to be opened and
maintained with the Project Account Bank, by the Borrower
for the purpose of receiving the Project Proceeds;
Project Account Bank PERWIRA AFFIN BANK BERHAD or such other licensed bank
acceptable to the Agent and appointed by the Borrower with
whom the Borrower shall open and maintain the Project
Account;
Project Accountant COOPERS & ▇▇▇▇▇▇▇ or such other firm of accountants
acceptable to the Agent to be appointed by the Borrower as
accountant of the Project to monitor all incoming and
outgoing funds in relation to the Project Account;
Project Proceeds all amounts payable to the Borrower including but not
limited to all equity, shareholders' advances, loan
drawings and revenue proceeds received by the Borrower in
respect of the Project;
Indebtedness at any time, the aggregate of all sums advanced from time
to time by the Lenders to the Borrower together with
interest thereon and all other monies payable to the
Beneficiaries or any of them pursuant to, upon and under
the Loan Documents (whether in respect of principal,
interest, Additional Interest, fees, commission, costs
expenses, indemnity or otherwise).
1.2 HEADINGS
Clause headings are for ease of reference only.
2. COVENANT TO PAY INDEBTEDNESS
Schedule 10 -
173
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
2.1 The Borrower hereby covenants with the Agent and the other Beneficiaries
that it will duly pay the Indebtedness.
3. ASSIGNMENT
3.1 ASSIGNMENT
The Borrower as beneficial owner hereby assigns and agrees to assign
absolutely to the Agent as security for the payment of the Indebtedness all its
present and future rights, title and interest in and to--
(a) the Project Account; and
(b) the Credit Balance.
3.2 REASSIGNMENT
The Borrower may, at its own cost, call for a reassignment of the rights,
title and interest hereby assigned at any time after all amounts payable under
the Loan Documents have been paid in full.
4. PROJECT ACCOUNT
4.1 PROJECT ACCOUNT
To give proper effect to the intent and purposes of the assignment herein
contained, the Borrower shall open and maintain the Project Account with the
Project Account Bank and all the Project Proceeds shall be deposited and paid
into the Project Account.
4.2 NO DEALINGS
Until such time as the Borrower is entitled to call for a reassignment of
the rights, title and interest hereby assigned under Clause 3.2, no part of the
Credit Balance shall be repayable or payable to the Borrower save and except
with the express written consent of the Agent.
4.3 NO ASSIGNMENT
The Credit Balance (and any part thereof), the rights, title and interest
of the Borrower in and to the Project Account and the Credit Balance, any right
of the Borrower against the Project Account Bank in relation to the Project
Account and the Credit Balance and the right
Schedule 10 -
174
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
of the Borrower to call for a reassignment pursuant to clause 3.2 shall not be
capable of assignment, transfer or encumbrance (otherwise than in favor, or with
the prior written consent of the Agent). Without prejudice to the foregoing, the
Borrower undertakes not to, and not to purport to, sell, assign, transfer,
mortgage, charge or otherwise deal with or encumber the Project Proceeds, the
Credit Balance (or any part thereof), any of its rights, title and interest in
and to the Project Account and the Project Proceeds and the Credit Balance, any
right in relation to the Project Account and the Project Proceeds or the Credit
Balance or the right of the Borrower to call for a reassignment pursuant to
clause 3.2, to the extent that any such sale, assignment, transfer, mortgage,
charge or other dealing shall be void.
4.4 APPLICATION OF THE CREDIT BALANCE
Subject to Clause 6 the Credit Balance shall be applied upon the following
terms and conditions and in the following manner:-
(a) the Borrower shall be at liberty to make withdrawals from the Project
Account for the following purposes only:-
(i) for purchase of materials, goods, equipment and machinery pertaining
to the Project and the meeting of the other development costs of the
Project;
(ii) for making installment repayment of the principal sum and payment of
interest, fees and commissions due and payable under the Facility;
and
(iii) for meeting operating, maintenance, overhead and administrative
costs and expenses incurred in the day to day management and
administration of the Borrower,
PROVIDED AILWAYS THAT:
(aa) all withdrawals from the Project Account shall be verified by the
Project Accountant;
(bb) withdrawals to be utilized for the purpose stipulated under item (i)
above shall be supported by official invoices; and
(cc) withdrawals to be utilized for the purpose stipulated under item
(iii) above shall be supported by bills and/or statement of request
for payment; and
Schedule 10 -
175
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(b) the Borrower shall cause the Project Accountant to provide the Agent with a
statement of account in respect of the Project Account within fifteen (15)
days from the end of each month.
5. UNDERTAKINGS
5.1 The Borrower hereby undertakes to the Agent that it will do or permit to be
done each and every act or thing, including executing any documents, which the
Agent may from time to time require to be done for the purpose of enforcing the
Agent's rights under this Assignment or for perfecting any security created or
intended to be created by this Assignment, or for obtaining the full benefits of
this Assignment and of the rights and powers herein, and will allow its name to
be used as and when required by the Agent for that purpose.
5.2 The Borrower undertakes that forthwith upon execution of this Assignment to
deliver a notice of assignment in the form set out in Appendix A hereto to the
Project Account Bank and shall procure an acknowledgment by the Project Account
Bank to the Agent of the receipt of such notice of assignment in the form set
out in Appendix B hereto.
6. DEFAULT
6.1 If:-
(a) the Borrower shall fail to observe or perform any of its agreements,
covenants, stipulations, terms and conditions contained in this Assignment;
or
(b) an Event of Default as defined in Clause 13.1 of the Loan Agreement shall
occur,
then and in either of such cases, the Indebtedness outstanding for the time
being shall immediately become payable by the Borrower to the Agent on demand
and the Agent shall forthwith be entitled to exercise the rights and power upon
default provided by law and this Assignment without previous notice to or
concurrence on the part of the Borrower and no further withdrawals from the
Project Account shall be made by the Borrower.
7. ENFORCEMENT OF SECURITY
7.1 ENFORCEMENT
Schedule 10 -
176
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
The security hereby created shall immediately become enforceable if the
Loan is declared immediately due and payable Pursuant to Clause 6.1 above.
7.2 AGENT'S RIGHTS
At any time after the security hereby created becomes enforceable the Agent
may apply, or cause to be applied, all or any part of the Credit Balance in
accordance with Clause 14.2 of the Loan Agreement as if the same had been held
or received by the Agent thereunder.
7.3 APPLICATION OF MONEYS
All moneys held or received by the Agent after the security hereby created
becomes enforceable shall be applied by the Agent, or paid to the Agent for
application, in accordance with Clause 14.2 of the Loan Agreement.
8. CONTINUING SECURITY
8.1 CONTINUING SECURITY
The security hereby constituted shall be a continuing security and is in
addition to, and shall not be merged in or in any way prejudice any other
Security Interest which the Agent may now or at any time hold OR have regard to
the Borrower or any other person in respect of the obligations of the Borrower
under the Loan Documents.
9. MISCELLANEOUS
9.1 NO LIABILITY
Notwithstanding the provisions of Clause 3.1, the Borrower shall remain
liable to perform all the obligations assumed by it in relation to the Project
Account and the Credit Balance and the Agent shall be under no obligation of any
kind whatsoever in relation thereto nor be under any liability whatsoever in
relation thereto in the event of any failure by the Borrower to perform such
obligations.
9.2 GOVERNING LAW
This Assignment is governed by, and shall be construed in accordance with, the
laws of Malaysia.
9.3 INDEMNITY
Schedule 10 -
177
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
The Borrower shall fully indemnify the Agent against all costs, charges,
expenses and liabilities which the Borrower may incur under or by virtue of the
assignment herein contained except such as arises or arise as a result of the
fraud or willful misconduct of the Agent.
10. ASSIGNMENT/TRANSFER OF ASSIGNMENT
10.1 The Agent shall be at liberty to assign and transfer this Assignment and
the costs and expenses of the Agent and incidental to such assignment or
transfer shall be paid by the Borrower and any statement therein of the amount
due to the Agent under or by virtue of this Assignment shall be conclusive and
binding for all purposes against the Borrower save for manifest error.
10.2 The Borrower shall not be entitled to assign or transfer all or any of its
rights, benefits and obligations hereunder without the prior written consent of
the Instructing Group obtained through the Agent.
10.3 Any Lender may, at any time, assign all or any of its rights and benefits
hereunder or transfer in accordance with Clause 10.5 all or any of its rights,
benefits and obligations hereunder to any financial institution provided that at
the same time it assigns or, as the case may be, transfers an equal portion of
its rights, benefits and obligations under the other Loan Documents to the same
financial institution.
10.4 If any Lender assigns all or any of its rights and benefits hereunder in
accordance with Clause 10.3, then, unless and until the assignee has agreed with
the Agent and the other 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 Agent and the other 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.
10.5 If any Lender wishes to transfer all or any of its rights, benefits and/or
obligations hereunder as contemplated in Clause 10.3, then such transfer may be
effected by the delivery to the Agent of a duly completed and duly executed
Transfer Certificate in which event, on the later of the Transfer Date specified
in such Transfer Certificate and the fifth business day after (or such earlier
business day endorsed by the Agent on such Transfer Certificate falling on or
after) the date of delivery of such Transfer Certificate to the Agent:
Schedule 10 -
178
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(i) to the extent that in such Transfer Certificate the Lender party thereto
seeks to transfer its rights, benefits and obligations hereunder, the
Borrower and such Lender shall be released from further obligations towards
one another hereunder and their respective rights against one another shall
be cancelled (such rights, benefits and obligations being referred to in
this Clause 10.5 as "discharged rights and obligations");
(ii) the Borrower and the Transferee party thereto shall assume obligations
towards one another and/or acquire rights against one another 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
(iii)the Agent such Transferee and the other Beneficiaries shall acquire the
same rights and benefits and assume the same obligations between themselves
as they would have acquired and assumed had such Transferee been an
original party hereto as a Lender with the rights, benefits and/or
obligations acquired or assumed by it as a result of such transfer.
11. PRINCIPAL/SUBSIDIARY INSTRUMENTS
11.1 PRINCIPAL/SUBSIDIARY INSTRUMENTS
It is hereby agreed and declared that this Assignment and the Loan
Documents are instruments employed in one transaction namely to secure the
Facility in an aggregate sum of Ringgit Malaysia Ninety One Million
(RM91,000,000.00) for principal only together with interest thereon and all
other monies payable by the Borrower to the Agent and the Lenders under the Loan
Documents and for the purpose of Section 4(3) of the Stamp Act 1949, the Loan
Agreement shall be deemed to be the principal instrument and this Assignment
shall be deemed to be the subsidiary instrument.
Schedule 10 -
179
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
IN WITNESS WHEREOF the parties hereto have executed this Assignment the day
and year herein written.
The execution of this instrument )
by the Borrower, SYARIKAT )
TELEFON WIRELESS (M) SDN. )
BHD., was duly effected in )
a manner authorized by its )
constitution under the Seal )
of the Borrower, SYARIKAT )
TELEFON WIRELESS (M) SDN. BHD., )
which said ▇▇▇▇ was hereunto duly )
affixed on the day of , )
199 in the presence of:- )
_______________ Director
_______________ Director/Secretary
SIGNED by )
)
and )
)
for and on behalf of PERMATA ) _______________
MERCHANT BANK BERHAD, )
as Agent on the day of )
,199 )
_______________
Schedule 10 -
180
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
APPENDIX A
NOTICE OF ASSIGNMENT
From SYARIKAT TELEFON WIRELESS (M) SDN. BHD.
To [Name of Project Account Bank]
[Date]
Dear Sirs
RE: PROJECT ACCOUNT NO. [ ](THE "PROJECT ACCOUNT") OPENED AND
MAINTAINED WITH YOUR BANK BY SYARIKAT TELEFON WIRELESS (M) SDN. BHD.
("STW")
We hereby give you notice that by a deed of assignment dated the day of
, 199 (the "Assignment") and made between STW and PERMATA MERCHANT BANK BERHAD
as agent for itself and your bank (the "Agent"), STW has assigned absolutely to
the Agent all STW's rights, title and interest in and to all moneys held under
the Project Account referred to above.
You are hereby authorized and directed to pay to the Agent pursuant to the
Assignment upon notice from the Agent all monies standing in the credit of the
Project Account which are due and payable to STW.
This notice and the instructions herein contained are irrevocable and may not be
modified or varied without the consent in writing of the Agent.
Please acknowledge to the Agent the receipt of this notice in the form of the
acknowledgment attached.
Yours faithfully
____________________
for and on behalf of
SYARIKAT TELEFON WIRELESS
(M) SDN. BHD.
Schedule 10 -
181
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
APPENDIX B
From: [Name of Project Account Bank]
To: PERMATA MERCHANT BANK BERHAD
[Date]
Dear Sir
RE: PROJECT ACCOUNT NO. [ ] (THE "PROJECT ACCOUNT")
OPENED AND MAINTAINED WITH OUR BANK BY SYAIRIKAT TELEFON WIRELESS SDN.
BHD. ("STW")
We acknowledge receipt of a notice of assignment of the moneys held under the
Project Account in your favor and hereby confirm our agreement to the assignment
(the "Assignment") upon terms as contained therein. We note that henceforth all
payments under the Project Account to be made to STW should be made to
yourselves or as you may otherwise direct upon the terms of the Assignment and
shall forthwith forward all monies standing in the credit of the Project Account
to you upon notification from you to do so.
We confirm that we will not effect any amendments or variations to the Project
Account without your prior written consent.
Yours faithfully
____________________
for and on behalf of
[Name of Project Account Bank]
c.c. STW
Schedule 10 -
182
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
SCHEDULE 11
DECLARATION BY DIRECTORS
To: PERMATA MERCHANT BANK BERHAD
as Agent
[Date]
Attention: [ ]
LOAN AGREEMENT DATED [ ] 199[]
I refer to the term loan facility for Ringgit Malaysia Ninety One Million
(RM91,000,000.00) (the "Facility") constituted by a loan agreement (the "Loan
Agreement") dated [ ] day of [ ], 1995 and made between (1)
Syarikat Telefon Wireless (M) Sdn. Bhd., (the "Borrower") as borrower (2) your
bank as Arranger and Agent and (3) the financial institutions listed in Schedule
1 of the Loan Agreement (the "Lenders") as lenders. Terms defined in the Loan
Agreement have the same meanings herein.
I am a director of the Borrower.
As required by the Loan Agreement:-
(i) I hereby confirm that 1 am not and none of my parents, spouse and children
is a director, officer or employee of any of the Lenders; and
(ii) I hereby irrevocably confirm and undertake that all present and future
loans granted by me to the Borrower will be subordinated to the Loan and
will not be repaid in whole or in part without the prior written consent
of the Lenders.
____________________
[Name of Director]
Schedule 11 -
183
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
SCHEDULE 12
COLLATERAL AGREEMENT
THIS AGREEMENT is made on [ ],1995
BETWEEN:-
(1) (a) [TO INSERT NAMES OF THE SHAREHOLDERS OF THE
BORROWER];
(b) [ ];
(c) [ ];
(collectively the "Shareholders");
(2) SYARIKAT TELEFON WIRELESS (M) SDN. BHD. (the "Borrower");
(3) PERMATA MERCHANT BANK BERHAD (the "Agent") as agent for the Beneficiaries
(as hereinafter defined).
WHEREAS:-
(A) PERMATA MERCHANT BANK BERHAD AND PERWIRA AFFIN BANK BERHAD (the "Lenders")
have agreed at the request of the Borrower and the Shareholders to provide
a Ringgit Malaysia Ninety One Million (RM91,000,000) term, loan facility
(the "Facility") to the Borrower upon the terms and conditions set out in a
loan agreement (the "Loan Agreement") to be entered into simultaneously
with this Agreement or shortly hereafter between (1) the Borrower as
borrower, (2) the Agent as arranger and agent and (3) the Lenders as
lenders.
(B) The Shareholders are shareholders of and lenders to the Borrower.
(C) It is a condition precedent to availability of the Facility that the
Shareholders and the Borrower execute this Agreement in favor of the Agent.
NOW THEREFORE IN CONSIDERATION of the above premises the parties hereto
agree as follows:-
1. INTERPRETATION
In this Agreement terms defined in the Loan Agreement shall bear the same
meanings when used herein, unless otherwise defused herein, and in addition when
used herein:
Schedule 12 -
184
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(i) "BENEFICIARIES" means the Arranger, the Agent and the Lenders;
(ii) "INDEBTEDNESS FOR BORROWED Money" means any indebtedness of the Borrower
owed to any Shareholder for or in respect of any monies borrowed by the
Borrower from any Shareholder or amounts raised under any other
transaction having the commercial effect of a borrowing by the Borrower
from any Shareholder;
(iii) "LOAN DOCUMENTS" means the Loan Agreement, the Security Documents and this
Agreement;
(iv) "MEMORANDUM OF DEPOSIT" means the memorandum of deposit to be executed by
each of the Shareholders pursuant to Clause 12.1 in favor of the Agent
creating a fixed charge over its portion of the Shares as security for the
Facility substantially in the form set out in Appendix B;
(V) "ORIGINAL FINANCIAL STATEMENTS" means:-
(a) in relation to [ ], the audited consolidated financial
statements of [ ] for the financial year ended the
[ ]; and
(b) in relation to [ ], the audited consolidated financial
statements of [ ] for the financial year ended the
[ ];
(c) in relation to [ ], the audited consolidated financial
statements of for the financial year ended
the [ ];
(vi) "SENIOR LIABILITIES" means the Loan, all interest thereon and all fees and
other amounts expressed to be payable to the Beneficiaries under the Loan
Documents;
(vi) "SHARES" all those shares in the Borrower which shall represent 100% of
the total issued paid up capital of the Borrower;
(vii) "SHAREHOLDERS" means the shareholders of the Borrower as specified in the
preamble of this Agreement and where the context so requires or admits,
references to Shareholders shall be construed as references to any of
them;
Schedule 12 -
185
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(viii) "SUBORDINATED LIABILITIES" means all monies, whether in the nature of
principal, interest or otherwise, from time to time due and to become due
to any Shareholder from the Borrower in respect of any:-
(a) Indebtedness for Borrowed Money owed to any Shareholder by the
Borrower at any time; and
(b) any preference shares in the Borrower owned by any Shareholder,
and shall include additional loans granted to the Borrower and preference
shares in the Borrower subscribed for under Clause 5.1 (ii) herein.
2. REPRESENTATIONS
2.1 Each Shareholder represents that:-
(i) it is a corporation duly incorporated under the laws of Malaysia with
power to enter into this Agreement and to exercise its rights and perform
its obligations thereunder and all corporate and other action required to
authorize its execution of this Agreement and its performance of its
obligations hereunder has been duly taken;
(ii) in any proceedings taken in Malaysia in relation to this Agreement, it
will not be entitled to claim for itself or any of its assets immunity
from suit, execution, attachment or other legal process;
(iii) all acts, conditions and things required to be done, fulfilled and
performed in order (a) to enable it lawfully to enter into, exercise its
rights under and perform and comply with the obligations expressed to be
assumed by it in this Agreement, (b) to ensure that the obligations
expressed to be assumed by it in this Agreement are legal, valid and
binding and (c) to make this Agreement admissible in evidence have been
done, fulfilled and performed;
(iv) under the laws in force at the date hereof, it is not necessary that this
Agreement be filed, recorded or enrolled with any court or other authority
or that (save for stamp duty of a nominal amount) any stamp, registration
or similar tax be paid on or in relation to this Agreement; and
Schedule 12 -
186
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(v) the obligations expressed to be assumed by it in this Agreement are legal
and valid obligations binding on it in accordance with the terms hereof,
(vi) it has not taken any corporate action nor have any other steps been taken
or legal proceedings been started or (to the best of its knowledge and
belief) threatened against it for its winding-up, dissolution,
administration or re-organization or for the appointment of a receiver,
administrator, administrative receiver, trustee or similar officer of it
or of any or all of its assets or revenues;
(vii) it is not in breach of or in default under any agreement to which it is a
party or which is binding on it or any of its assets to an extent or in a
manner which might have a material adverse effect on its business or
financial condition;
(viii)no action or administrative proceeding of or before any court or' agency
which might have a material adverse effect on its business or financial
condition has been started or threatened;
(ix) all of the written information supplied by it to the Agent and the other
Beneficiaries in connection with this Agreement is true, complete and
accurate in all material respects and it is not aware of any material
facts or circumstances that have not been disclosed to the Agent and the
other Beneficiaries and which might, if disclosed, adversely affect the
decision of the Agent and the other Beneficiaries to enter into the Loan
Documents to which it is a party;
(x) the execution of this Agreement and its exercise of its rights and
performance of its obligations hereunder will not result in the existence
of nor oblige it to create any encumbrance over all or any of its present
or future revenues or assets;
(xi) the execution of this Agreement and its exercise of its rights and
performance of its obligations hereunder do not and will not:
(a) conflict with any agreement, mortgage, bond or other instrument or
treaty to which it is a party or which is binding upon it or any of
its assets;
(b) conflict with its constitutive documents and rules and regulations;
or
Schedule 12 -
187
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(c) conflict with any applicable law, regulation or official or judicial
order;
(xii) the execution of this Agreement constitutes, and its exercise of its
rights and performance of its obligations hereunder will constitute,
private and commercial acts done and performed for private and commercial
purposes; and
(xiii) it is an exempt private company and as such, Section 133A of the
Companies Act, 1965 is not in any way contravened.
2.2 Each of the Shareholders further represents that:-
(i) its respective Original Financial Statements were prepared in accordance
with accounting principles generally accepted in Malaysia and consistently
applied and give (in conjunction with the notes thereto) a true and fair
view of its financial condition as at the date as of which they were
prepared and the results of its operations during the financial year ended
on such date;
(ii) since publication of its respective Original Financial Statements there
has been no material adverse change in its respective business or
financial condition;
(iii) as at the date as of which its respective Original Financial Statements
were prepared, there were no liabilities (contingent or otherwise) which
were not disclosed thereby (or by the notes thereto) or reserved against
therein nor were there at that date any unrealized or anticipated losses
arising from its respective commitments entered into by it which were not
so disclosed or reserved against; and
(iv) as at the date hereof the only Indebtedness for Borrowed -Money owed by
the Borrower to the various Shareholders are owed to the Shareholders
being of the nature described in item 1 of the First Schedule hereto.
2.3 Each of the Shareholders hereby represents and warrants that it is the
beneficial owner of the Shares in such proportion as stated in item 2 of
the First Schedule hereto and such Shares are free from all claims,
charges, liens and any other encumbrances whatsoever.
3. SUBORDINATION
Schedule 12 -
188
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
3.1 Each of the parties hereto agrees that the Senior Liabilities shall rank
in all respects in priority to the Subordinated Liabilities and that accordingly
all of the Subordinated Liabilities shall be fully subordinated to the Senior
Liabilities.
4. UNDERTAKINGS OF THE BORROWER
4.1 From and after the date hereof and so long as any of the Senior
Liabilities are outstanding the Borrower shall not without the prior written
consent of the Agent:-
(i) pay, prepay or repay (or permit the payment prepayment or repayment of) or
make any distribution (or permit any distribution to be made) in respect
of any of the Subordinated Liabilities in cash or in kind;
(ii) discharge any of the Subordinated Liabilities by set off or any right of
combination of accounts;
(iii) waive or release any term of the Subordinated Liabilities; or
(iv) take or omit to take any action whereby the subordination of the
Subordinated Liabilities or any part thereof to the Senior Liabilities
might be terminated, impaired or adversely affected.
5. UNDERTAKINGS OF THE SHAREHOLDERS
5.1 From and after the date hereof and so long as any of the Senior
Liabilities are outstanding or in force, the Shareholders:-
(i) shall not without the prior written consent of the Agent;
(aa) receive payment, prepayment or repayment of, or any distribution
in respect of (or on account of), any of the Subordinated
Liabilities in cash or in kind or apply any money or property in
discharge of any Subordinated Liabilities;
(bb) discharge the Subordinated Liabilities by set-off or any right
of combination of accounts; or
(cc) amend, vary, waive or release any term of the Subordinated
Liabilities;
Schedule 12 -
189
Borrower : Syarikat Telefon Wireless (M) Snd. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(ii) shall ensure that the Borrower--
(aa) remains solvent and able to meet all its financial -liabilities
as and when they fall due; and
(bb) will complete the Project timeously,
and to this end shall whenever necessary put the Borrower in funds
including funds to meet costs-overrun in respect of the Project,
whether by way of provision of additional loans or subscription for
additional preference shares, in each case ranking pari passu in
priority with then existing Subordinated Liabilities or by way of
subscription for additional equity in the Borrower;
(iii)shall ensure that each Shareholder will remain an exempt private
company and in the event that any of them shall cease to be an exempt
private company, then that Shareholder shall render such financial
assistance to the Borrower by way of equity or preference shares or in
any other manner that is in conformity to the laws of Malaysia.
5.2 From and after the date hereof and so long as any of the Senior Liabilities
are outstanding or in force, the Shareholders shall not reduce their
respective shareholdings in the Borrower without the prior written consent
of the Instructing Group save and except if the aggregate of all
reduction(s) is equal or less than seven point five per cent (7.5%) of the
total paid up capital of the Borrower.
6. SUBORDINATION PRIOR TO INSOLVENCY PROCEDURES
6.1 If in breach of Clause 5.1: -
(i) any Shareholder receives a payment or distribution in cash or in kind of,
or on account of, any of the Subordinated Liabilities;
(ii) the Borrower makes any payment or distribution in cash or in kind on
account of the Subordinated Liabilities;
(iii)any of the Subordinated Liabilities are discharged by set-off or by
exercise of any right of combination of accounts; or
(iv) any Shareholder receives any other payment or value in respect of the
Subordinated Liabilities,
Schedule 12 -
190
Borrower : Syarikat Telefon Wireless (M) Snd. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
the Shareholder receiving or otherwise obtaining the benefit of such payment,
set-off or combination of accounts will hold in trust on behalf of the
Beneficiaries and forthwith pay an amount equal to the amount of the payment so
received by it to the Agent for application against or retention by the Agent on
account of the Senior Liabilities, which amount shall be treated, as between
such Shareholder, the Borrower and the Beneficiaries, as originally paid to the
Beneficiaries and not to such Shareholder.
7. SUBORDINATION ON INSOLVENCY
7.1 If:-
(i) any resolution is passed or order made for the winding up,
liquidation, dissolution, or reorganization of the Borrower;
(ii) the Borrower becomes subject to any insolvency, bankruptcy,
reorganization, receivership, liquidation, dissolution or other
similar proceeding whether voluntary or involuntary (and whether or
not involving insolvency);
(iii)the Borrower assigns its assets for the benefit of its creditors or
enters into any agreement with its creditors generally; or
(iv) the Borrower becomes subject to any distribution of its assets, or if
any analogous event occurs anywhere,
then--
(a) the Agent and the other Beneficiaries may, (i) claim, enforce and
prove for the Subordinated Liabilities, (ii) file claims and proofs,
give receipts and take all such proceedings and do all such things as
it sees fit to recover the Subordinated Liabilities and (iii) receive
all distributions on the Subordinated Liabilities for application
towards the Senior Liabilities;
(b) if and to the extent that the other Beneficiaries are not entitled to
claim, enforce, prove, file claims or proofs, or take proceedings for
the Subordinated Liabilities, each Shareholder will do so in good time
as reasonably requested by the Agent and the other Beneficiaries;
Schedule 12 -
191
Borrower : Syarikat Telefon Wireless (M) Snd. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(c) any payment or distribution of any kind. or character, whether in
cash, securities, or other property which is payable or deliverable
upon or with respect to the Subordinated Liabilities -or any part
thereof to any Shareholder by the Borrower shall be held in trust by
such Shareholder for the benefit of the other Beneficiaries and shall
forthwith be paid or delivered directly to the Agent for application
against the Senior Liabilities until the Senior Liabilities have been
fully paid and satisfied;
(d) if the trust in paragraph (c) above fails or cannot be given effect
to, such Shareholder (so as to bind any agent or trustee on its
behalf) will, upon demand, pay an amount equal to such payment or
distribution to the Agent for application towards the Senior
Liabilities until the Senior Liabilities have been fully paid and
satisfied; and
(e) the trustee, liquidator, assignee or other person distributing the
assets of the Borrower or their proceeds shall, and is hereby directed
to, pay distributions on the Subordinated Liabilities direct to the
Agent until the Senior Liabilities are irrevocably paid in full.
8. ENFORCEMENT BY THE SHAREHOLDERS
8.1 Unless the Instructing Group has previously consented thereto in writing no
Shareholder will:-
(i) demand or accelerate any of the Subordinated Liabilities or otherwise
declare any of the Subordinated Liabilities prematurely payable for any
reason whatsoever;
(ii) enforce the Subordinated Liabilities by execution or otherwise;
(iii)petition for (or vote in favor of any resolution for) or initiate or
support or take any steps with a view to any insolvency, liquidation,
reorganization, administration or dissolution proceedings or any voluntary
arrangement or assignment for the benefit of creditors or any similar
proceedings involving the Borrower, whether by petition convening a
meeting, voting for a resolution or otherwise.
9. ASSIGNMENT OF CLAIM
Schedule 12 -
192
Borrower : Syarikat Telefon Wireless (M) Snd. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
9.1 No Shareholder will assign or transfer to any person the whole or any part
of the Subordinated Liabilities or any interest therein otherwise than to the
Beneficiaries in respect of the Loan Agreement.
10. CONTINUING AGREEMENT
10.1 The subordination effected by this Agreement shall continue to apply in
respect of the Subordinated Liabilities notwithstanding any intermediate payment
in whole or in part of the Senior Liabilities.
11. WAIVER OF DEFENCES
11.1 The subordination effected by this Agreement and the obligations of each of
the Borrower and the Shareholders hereunder shall remain in full force and
effect without regard to, and shall not be impaired or affected by:-
(i) any time or indulgence granted to or composition with the Borrower, the
Shareholders or any other person; or
(ii) the taking, variation (no matter how fundamental or extensive), compromise,
renewal or release of, or refusal or neglect to perfect or enforce, any
rights, remedies or securities against or granted by the Borrower, the
Shareholders or any other person; or
(iii)any legal limitation, disability, incapacity or other circumstances
relating to the Borrower, the Shareholders or any other person or, any
amendment to or variation of the terms of any document or security; or
(iv) any other act, omission or circumstances, whether or not the Borrower or
the Shareholders shall have notice or knowledge thereof.
12. CHARGIING OF THE SHARES
12.1 In consideration of the Lenders at the request of the Shareholders making
and continue to make available the Facility to the Borrower each Shareholder
hereby irrevocably covenants and undertakes that upon written notification from
the Agent, it shall forthwith execute in favor of the Agent the Memorandum of
Deposit and such other relevant documents as the Agent may prescribe to enable
each of the Shareholders to create a fixed charge over their respective portion
of the Shares in favor of the Agent as trustee for the Beneficiaries as
Schedule 12 -
193
Borrower : Syarikat Telefon Wireless (M) Snd. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
security for the Facility and all expenses incurred in connection with the above
shall be borne solely by the Borrower.
12.2 In connection with the Shareholders' covenant and undertaking stipulated in
Clause 12.1 above, each Shareholder shall deposit the share certificates of
its/his portion of the Shares together with the corresponding duly executed
registrable transfer form thereof with the Agent who shall hold the same as
stakeholder.
13. COVENANTS
13.1 The Borrower and each Shareholder shall obtain, comply with the terms of
and do all that is necessary to maintain in full force and effect all
authorizations, approvals, licenses and consents required in or by the laws and
regulations of Malaysia to enable it lawfully to enter into and perform its
obligations under this Agreement or to ensure the legality, validity,
enforceability or admissibility in evidence in Malaysia.
14. NOTICES
14.1 Each communication to be made hereunder shall be made in writing but,
unless otherwise stated, may be made by telex, facsimile or letter.
14.2 Any communication or document to be made or delivered by one person to
another hereunder shall (unless such person has by fifteen days written notice
to the Agent) specified another address, person or department be made or
delivered to such other person at the address and marked for the attention of
the person and/or the department identified with its signature to the Loan
Agreement or, in the case of a Shareholder, hereunder and shall be deemed to
have been delivered (i) in the case of any communication made by telex, on the
date of transmission with confirmed answerback,(ii) in the case of any
communication made by facsimile, when transmission thereof is confirmed by an
activity report stating the correct number of pages sent and that such
transmission is error free (or equivalent) or (iii) in the case of any
communication made by letter, when left at that address or (as the case may be)
five (5) days after the same has been deposited in the post first class postage
prepaid in an envelope addressed to it at that ,address Provided that any
communication or document to be made or delivered to the Agent shall be
effective only when received by the Agent.
15. ASSIGNMENT/TRANSFER
Schedule 12 -
194
Borrower : Syarikat Telefon Wireless (M) Snd. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
15.1 The Agent shall be at liberty to assign and transfer this Agreement and the
costs and expenses of the Agent and incidental to such assignment or transfer
shall be paid by the Borrower and any statement therein of the amount due to the
Agent under or by virtue of this Agreement shall be conclusive and binding for
all purposes against the Borrower save for manifest error.
15.2 The Shareholders and the Borrower shall not be entitled to assign or
transfer all or any of its rights, benefits and obligations hereunder without
the prior written consent of the Instructing Group obtained through the Agent.
15.3 Any Lender may, at any time, assign all or any of its rights and benefits
hereunder or transfer in accordance with Clause 15.5 all or any of its rights,
benefits and obligations hereunder to any financial institution provided that at
the same time it assigns or, as the case may be, transfers an equal portion of
its rights, benefits and obligations under the other Loan Documents to the same
financial institution.
15.4 If any Lender assigns all or any of its rights and benefits hereunder in
accordance with Clause 15.3, then, unless and until the assignee has agreed with
the Agent and the other 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 Agent and the other 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.
15.5 If any Lender wishes to transfer all or any of its rights, benefits and/or
obligations hereunder as contemplated in Clause 15.3, then such transfer may be
effected by the delivery to the Agent of a duly completed and duly executed
Transfer Certificate in which event, on the later of the Transfer Date specified
in such Transfer Certificate and the fifth business day after (or such earlier
business day endorsed by the Agent on such Transfer Certificate falling on or
after) the date of delivery of such Transfer Certificate to the Agent:
(i) to the extent that in such Transfer Certificate the Lender party thereto
seeks to transfer its rights, benefits and obligations hereunder, the
Shareholders, the Borrower and such Lender shall be released from further
obligations towards one another hereunder and their respective rights
against one another shall be cancelled (such rights, benefits and
obligations being referred to in this Clause 15.5 as "discharged rights and
obligations");
Schedule 12 -
195
Borrower : Syarikat Telefon Wireless (M) Snd. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(ii) the Shareholders, the Borrower and the Transferee party thereto shall
assume obligations towards one another and/or acquire rights against one
another which differ from such discharged rights and obligations only
insofar as the Shareholders, the Borrower and such Transferee have assumed
and/or acquired the same in place of the Chargor and such Lender; and
(iii)the Agent such Transferee and the other Beneficiaries shall acquire the
same rights and benefits and assume the same obligations between themselves
as they would have acquired and assumed had such Transferee been an
original party hereto as a Lender with the rights, benefits and/or
obligations acquired or assumed by it as a result of such transfer.
16. DISCLOSURE
16.1 The Agent may disclose to any actual or potential assignee, to any person
who may otherwise enter into contractual relations with the Agent and the other
Beneficiaries in relation to this Agreement or to any governmental agency or
authority requiring the same such information about any Shareholder as the Agent
shall consider appropriate.
17. INDEMNITY
17.1 The Shareholders each hereby jointly and severally undertake to indemnify
the Agent and the other Beneficiaries from and against any loss or expense,
including legal
fees, which it may sustain as a consequence of any default by any Shareholder in
the performance of any of the obligations expressed to be assumed by it under
this Agreement.
18. GOVERNING LAW AND JURISDICTION
18.1 This Agreement shall be governed by and construed in accordance with the
laws of Malaysia.
18.2 The Borrower and each Shareholder irrevocably agrees that the Courts of
Malaysia shall have jurisdiction to hear and determine any suit, action or
proceedings and to settle any disputes, which may arise out of or in connection
with this Agreement and, for such purpose, irrevocably submits to the
jurisdiction of such courts.
Schedule 12 -
196
Borrower : Syarikat Telefon Wireless (M) Snd. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed on the day and in the year first above written.
The execution of this Agreement by )
[ ] )
as a Shareholder is duly effected )
in a manner authorized by its )
constitution under the Seal of )
[ ] )
which said ▇▇▇▇ is hereunto duly )
affixed on this day of )
, 1995 )
in the presence of:- )
_______________ Director
_______________ Director/Secretary
Correspondence particulars of [ ]
Address:
Facsimile:
Attention:
Schedule 12 -
197
Borrower : Syarikat Telefon Wireless (M) Snd. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
The execution of this Agreement by )
[ ] )
as a Shareholder is duly effected in )
a manner authorized by its )
constitution under the Seal of )
[ ] )
which said ▇▇▇▇ is hereunto duly )
affixed on this day of )
,1995 )
in the presence of:- )
_______________ Director
_______________ Director/Secretary
Correspondence particulars of [ ]
Address:
Facsimile:
Attention:
Schedule 12 -
198
Borrower : Syarikat Telefon Wireless (M) Snd. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
The execution of this Agreement by )
[ ] )
as a Shareholder is duly effected in )
a manner authorized by its )
constitution under the Seal of )
[ ] )
which said ▇▇▇▇ is hereunto duly )
affixed on this day of )
,1995 )
in the presence of:- )
_______________ Director
_______________ Director/Secretary
Correspondence particulars of [ ]
Address:
Facsimile:
Attention:
Schedule 12 -
199
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
The execution of this Agreement by )
[ ] )
as a Shareholder is duly effected in )
a manner authorized by its )
constitution under the Seal of )
[ ] )
which said ▇▇▇▇ is hereunto duly )
affixed on this day of )
,1995 )
in the presence of:- )
_______________ Director
_______________ Director/Secretary
Correspondence particulars of [ ]
Address:
Facsimile:
Attention:
Schedule 12 -
200
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
The execution of this Agreement by )
the Borrower, SYARIKAT TELEFON )
WIRELESS (M) SDN. BHD. is duly )
effected in a manner authorized by )
its constitution under the Seal )
of the Borrower, SYARIKAT TELEFON )
WIRELESS (M) SDN. BHD. which said )
▇▇▇▇ is hereunto duly affixed on )
this day of , 199 )
in the presence of:- )
_______________ Director
_______________ Director/Secretary
Schedule 12 -
201
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
THE AGENT
SIGNED by )
)
and )
)
for and on behalf of )
PERMATA MERCHANT BANK ) _______________
▇▇▇▇▇▇ as Agent on the )
day of ,1995 )
_______________
Schedule 12 -
202
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
APPENDIX A
DETAILS OF SUBORDINATED LIABILITIES
EXISTING AS AT THE DATE OF THIS AGREEMENT
ITEM 1
Subordinated Liabilities owed to the Shareholders:-
NAME AMOUNT OF SUBORDINATED LIABILITIES
ITEM 2
Shareholdings of the Shareholders:-
NAME SHAREHOLDINGS NO. OF SHARES
Schedule 12 -
203
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
APPENDIX B
MEMORANDUM OF DEPOSIT OF STOCK AND
NON-MARKETABLE SECURITIES
To: PERMATA MERCHANT BANK BERHAD
27th Floor, Menara Boustead
▇▇. ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
I/We [ ] of [ ] refer to the loan agreement dated
the day of 1995 (the "Loan Agreement") entered into between:-
(1) SYARIKAT TELEFON WIRELESS (M) SDN. BHD. (the "Borrower");
(2) PERMATA MERCHANT BANK BERHAD (the "Agent");
(3) (i) [ ]; and
(ii) [ ],
(collectively the "Lenders"),
pursuant to which the Lenders have subject to the terms and conditions therein
contained granted and made available to the Borrower a term loan facility of
Ringgit Malaysia Ninety One Million (RM91,000,000) only (the "Facility").
I/We also refer to the shareholder's agreement dated the day of ,1995
(the "Shareholders' Agreement") entered into between (1) myself/ourselves and
the other shareholders of the Borrower (together the "Shareholders") (2) the
Borrower and (3) the Agent, wherein the Shareholders have agreed that in
consideration of the Lenders making available the Facility to the Borrower at
the Shareholders' request, each of the Shareholders shall upon written
notification from the Agent create a fixed charge over such shares in the
Borrower owed by each of the Shareholders respectively in favor of the Agent as
agent for the Beneficiaries (as hereinafter defined) as security for the
Facility.
In consideration of the above premises and [further consideration to be
specified at the time of execution], the Chargor has executed this
Schedule 12 -
204
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
Memorandum of Deposit in favor of the Agent as trustee for the Beneficiaries
upon the following terms and conditions.
1. DEFINITIONS
1.1 Words and expressions defined in the Loan Agreement bear, except where the
context otherwise requires or as otherwise specified, the same meanings
when used herein.
1.2 The following words and expressions, when used in this Memorandum bear the
meanings respectively set opposite them:-
Additional Interest the additional interest payable by the Borrower
pursuant to Clause 12.5(a) of the Loan Agreement
due to failure to pay any Indebtedness when so
payable;
Actual Security Value the Total Value of the Mortgaged Securities, or,
where the Mortgaged Securities are denominated in
a currency other than Ringgit Malaysia, the
equivalent in Ringgit Malaysia for the time being
as determined by the Agent, of such Total Value;
Additional Security such further Qualifying Securities as are required
so that the Actual Security Value will, following
the making of the relative Advance, as the case
may be, equal or exceed the Required Security
Value and thereafter such Qualifying Securities
as, by virtue of Clause 6.1 below, are for the
time being subject to this Memorandum and includes
all and any securities, rights, moneys and
property whatsoever which may at any time after
the date hereof be derived from, accrued on or
offered in respect of any Additional Securities or
any other Qualifying Securities charged in
substitution therefor pursuant hereto then in
existence, whether by way of redemption, exchange,
conversion, rights, bonus, capital reorganization
or otherwise howsoever;
Schedule 12 -
205
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
Advance the amount of each drawdown made or to be made to
the Borrower pursuant to and under the Facility;
Beneficiaries the Arranger, the Agent and the Lenders;
Chargor [ ] of
[ ] and includes its
representatives, successors-in-title;
Event of Default any of the events or states of affairs specified
in clause 13.1 in the Loan Agreement;
Indebtedness at any time, the aggregate of all sums advanced
from time to time by the Lenders to the Borrower
together with interest thereon and all other
monies payable to the Beneficiaries or any of them
pursuant to, upon and under the Loan Documents
(whether in respect of principal, interest,
Additional Interest, fees, commission, costs,
expenses, indemnity or otherwise);
Loan Agreement the loan agreement dated the day of
, 1995 between (1) the Borrower; (2) the Agent;
and (3) the Lenders and includes any subsequent
renewals and variations thereof permitted by the
Agent and the Lenders;
Mortgaged Securities the Originally Charged Shares and the Additional
Security, as well as any other Qualifying
Securities which are charged in addition to or in
substitution for any Mortgaged Securities for the
time being pursuant hereto and includes all and
any securities rights moneys and property
whatsoever which may at any time after the date
hereof be derived from,
Schedule 12 -
206
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
accrued on or be offered in respect of the
Originally Charged Shares and Additional Security
so charged or any other Mortgaged Securities then
in existence, whether by way of redemption,
exchange, conversion, rights, bonus, capital
reorganization or otherwise howsoever;
Originally Charged
Shares those Shares as are charged pursuant to this
Memorandum which are more particularly described
in the Schedule hereto;
Power of Attorney the Power of Attorney granted by the Chargor to
the Agent pursuant to Clause 3 hereof;
Qualifying Securities securities acceptable to the Agent, which are in
the absolute beneficial ownership of the Chargor,
free from any Security Interest;
Required Security Value the required security value as may be determined
by the Lenders from time to time at their absolute
discretion;
Security Interest any mortgage, charge, pledge, lien, right of set-
off or any security interests howsoever created or
arising;
Total Value the total value of the Mortgaged Securities as
determined by the Agent at their absolute
discretion from time to time.
1.3 The headings in this Memorandum are inserted for convenience only and shall
be ignored in construing the provisions of this Memorandum.
1.4 Words denoting the singular includes the plural number and vice versa.
1.5 If the name of the Chargor hereinbefore inserted is that of a limited
company or other corporation any of the provisions herein
Schedule 12 -
207
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
contained which are primarily and literally applicable to the case of a
single and individual person only shall be construed and take effect so as
to give the Agent hereunder a security for the money owing from that
limited company or corporation as identical or analogous as may be with or
to that which would have been given for the money owing from a single
individual if the Chargor had been a single individual and any money shall
be deemed to be so owing notwithstanding any defect informality or
insufficiency in the borrowing powers of the Chargor or in the exercise
thereof which might be defense as between the Chargor and the Agent.
1.6 References to clauses, sub-clauses and paragraphs are to be construed as
references to clauses, sub-clauses and paragraphs of this Memorandum.
1.7 References to any statute or legislation includes any statutory amendment
or re-enactment thereof.
2. CHARGE
2.1 As a continuing security for the payment of the Indebtedness and the
performance by the Borrower of its obligations under the relevant Loan
Documents and the Chargor of its obligations under this Memorandum, the
Chargor as beneficial owner hereby charges by way of mortgage to the Agent
all its rights, title and interest in and to:-
(a) the Originally Charged Shares; and
(b) the Additional Security,
as well as any other Qualifying Securities from time to time charged in
addition to and or in substitution for any of the securities referred to in
(a) and (b) above.
2.2 The Chargor shall deliver or procure that there are delivered to or to
order of the Agent all certificates or other documents of title in relation
to the Mortgaged Securities together with duly executed blank transfers in
respect thereof.
2.3 The charge hereby created shall be in addition to, and shall not merge
with, or in any way prejudice, any other Security Interest or right which
the Agent and the other Beneficiaries may now, or at any time hereafter,
hold or have, as against the Chargor or any other person or property, in
respect of the Indebtedness,
Schedule 12 -
208
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
including, without limitation, any liens to which the Agent may become
entitled on the certificates or other documents of title relating to any of
the Mortgaged Securities.
3. POWER OF ATTORNEY
3.1 In consideration of the aforesaid premises the Chargor hereby irrevocably
and by way of security for the payment by the Chargor of the Indebtedness
and the performance by the Borrower of its obligations under the relevant
Loan Documents and the Chargor of its obligation under this Memorandum
appoints the Agent or any of its directors or any of its officers (from
time to time duly appointed or authorized in writing by the Agent for the
purposes herein and the certificate of the Agent of such appointment shall
be final and conclusive) to be the Chargor's attorney or attorneys
(hereinafter collectively called "the Attorney") for or in the name of the
Chargor or through the Chargor's nominee or otherwise in the name of the
Chargor to do and execute the following acts and deeds or any of them as
and when the Attorney shall think fit:-
(a) to demand, sue for and receive from any person, registered company,
corporation, government or other body politic all dividends,
interests, bonuses or any other sums that may become due to the
Chargor in respect of any of the Mortgaged Securities and likewise any
capital sum represented by or complied in any of the Mortgaged
Securities as and when the same shall respectively be payable or
repayable;
(b) for any such purpose to sign, endorse and execute all receipts,
dividend and interest warrants, cheques, releases, discharges,
reconveyances, or other deeds or documents whatsoever that may be
necessary or usual in the circumstances;
(c) to attend, vote at and otherwise take part in all meetings held in
connection with any company or corporation in relation to any of the
Mortgaged Securities and to sign proxies for the purpose of voting
thereat or for any other purpose connected therewith as freely as the
Chargor could do;
(d) out of any of the money of the Chargor in the Attorney's hands or
under the control of the Attorney to pay all calls that may lawfully
be made upon the Chargor or other expenses
Schedule 12 -
209
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
that may be incurred in relation to any of the Mortgaged Securities
and to give security for the payment of the same;
(e) to receive all notices, reports, accounts, circulars and other
documents which are sent to the registered holders of the Mortgaged
Securities;
(f) to receive or accept service of, or agree to waive, all or any notices
or to agree to accept short notice for and to attend all or any
meetings or class meetings of the registered holders of the Mortgaged
Securities and exercise all voting and other rights and powers which
may at any time be exercisable in respect thereof at any such
meetings;
(g) to transfer or procure the transfer of all or any of the Mortgaged
Securities into the name of the Attorney or its nominee or nominees or
the name of any purchaser of the Mortgaged Securities (and for such
purpose to complete, make and/or execute any form or forms of transfer
in respect of any thereof) and to execute and deliver all other deeds
or documents and to do all acts and things which the Attorney may
consider necessary or advisable to perfect or to give proper effect to
the intent and purpose of this Memorandum, or to procure the
registration of any transfer of the Mortgaged Securities in the name
of any such transferee;
(h) to sell, transfer, exchange or otherwise dispose of all or any part of
the title to and interest in and any rights attaching to all or any of
the Mortgaged Securities for such consideration (which may comprise or
include shares or debentures) and upon such terms and generally in
such manner as the Attorney may in its absolute discretion think fit
and for this purpose to enter into any contract for such sale or
disposition on such terms (including the giving of such warranties and
indemnities) and subject to such conditions as the Attorney shall in
its absolute discretion think fit;
(i) to receive or authorize the receipt of the consideration for such
sale, transfer, exchange or disposition as is referred to in paragraph
(h) above and to apply any proceeds thereof in or towards the
discharge of the Indebtedness in the manner stipulated in this
Memorandum;
(j) to execute and deliver all and any other or further instruments of
charge and other documents that the Chargor is at any time and from
time to time obliged to execute
Schedule 12 -
210
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
pursuant to this Memorandum, and to effect all such registrations and
do all such other things as may be necessary or as may seem to the
Attorney advisable in order properly to give effect thereto, and to
execute all such documents and to do all such other acts and things in
relation to all or any stock or shares the subject of any such further
or other charges as the Attorney is by this instrument entitled or
empowered to execute or do in relation to this Memorandum;
(k) to assent (if it seems to the Attorney necessary or desirable) to any
arrangement modifying the Chargor's rights;
(l) generally to exercise all rights and privileges and perform all duties
which now or hereafter may appertain to the Chargor in relation to any
of the Mortgaged Securities;
(m) to cause this Power of Attorney to be registered at the registry of
the High Court of Malaya and in the books of any company or
corporation or elsewhere as may be necessary or desirable;
(n) to disclose to any person or party who may be concerned with the
exercise of the powers hereby conferred, including any purchaser or
potential purchaser of any of the Mortgaged Securities the terms of
this Memorandum and such other documents or information as may be
related thereto or to the exercise of the Agent's powers hereunder or
to the Mortgaged Securities where such disclosure is deemed by the
Attorney to be necessary for or expedient to the exercise of the
powers hereunder;
(o) to appoint and at the Attorney's discretion to remove from time to
time any substitute for or agent under the Attorney in connection with
any of the purposes aforesaid upon such terms as the Attorney shall
think fit.
3.2 The Chargor hereby declares that this Power of Attorney shall be
irrevocable so long as this Memorandum shall remain in effect or so long as
the Borrower shall remain under any liability (contingent or otherwise)
under the Loan Documents and or in respect of the Facility.
3.3 The Chargor hereby further declares that the Attorney shall not be held
responsible or liable to the Chargor for any loss or
Schedule 12 -
211
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
damage howsoever and whatsoever arising as a result of any act neglect
omission of the Attorney arising out of the exercise of the powers granted
to the Attorney herein (save and except for any loss or damage caused by
the gross negligence of the Attorney) and the Chargor shall keep the
Attorney indemnified against all costs expenses and charges which the
Attorney may incur in the exercise of the powers aforesaid and the
provisions of this paragraph shall continue in force notwithstanding the
discharge by the Chargor of all its obligations under this Memorandum.
3.4 The Chargor hereby further declares that all and every receipt(s), deed(s),
matter(s) and thing(s) which shall be by the Attorney given, made, executed
or done for the aforesaid purposes shall be as good, valid and effectual to
all intents and purposes whatsoever as if the same had been signed, sealed,
delivered, given or made or done by the Chargor itself.
3.5 The Chargor hereby undertakes at all times to ratify whatsoever the
Attorney shall lawfully do or cause to be done in or concerning the
premises by virtue of this Power of Attorney.
4. CALLS
The Chargor shall forthwith make payment of all calls or other amounts which may
be or become due in respect of the Mortgaged Securities whether or not the
Chargor is the registered holder. The Agent shall not under any circumstance be
liable for such calls or other payments whether or not the Agent or its nominee
is a registered holder of any or all of such Mortgaged Securities. If the
Chargor shall fail to make any such payment, the Agent may make payment of the
amounts of any such calls or other amounts on behalf of the Chargor or such
registered holder. In such event, the Chargor shall forthwith on demand
indemnify the Agent against each and every such payment, together with interest
thereon (as well after as before judgment) from the date of payment by the Agent
until the date of repayment by the Chargor under this indemnity at the rate or
rates specified in the Loan Agreement.
5. EXERCISE OF RIGHTS
5.1 Unless an Event of Default shall have occurred and be continuing, the
Chargor shall be entitled to receive all income derived from the Mortgaged
Securities and to exercise all rights attaching to any part thereof as he
may think fit, but shall deliver to the
Schedule 12 -
212
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
Agent forthwith upon receipt copies of all notices, reports, accounts and
circulars issued to the registered holders of the Mortgaged Securities
(unless the Agent or its nominee is the registered holder).
5.2 The Chargor will procure that, following the occurrence of any Event of
Default and whilst any Event of Default is continuing, all income derived
from the Mortgaged Securities shall be paid to or to the order of the
Agent, (and if received by the Chargor, the Chargor shall forthwith pay the
same to the Agent) and any such income received by the Agent shall be
retained by the Agent in a cash collateral deposit account maintained for
that purpose until:-
(a) the Event of Default shall have been remedied to the satisfaction of
the Agent whereupon any such income shall subject to no other Event of
Default having occurred and be continuing and if the Agent and the
Lenders so agrees, be released to the Chargor;
(b) payments in full by the Chargor of the Indebtedness; or
(c) recall and or termination of the Facility pursuant to the terms of the
Loan Documents.
5.3 The security constituted by this Memorandum and any further or other
security constituted pursuant hereto, shall become enforceable immediately
on the occurrence of any Event of Default, and the Agent shall be entitled
then, and at any time thereafter, and without prior notice to the Chargor
to sell or otherwise dispose of all the Chargor's title to and interest in
the Mortgaged Securities for such consideration (which may comprise or
include shares or debentures), upon such terms and generally in such manner
as the Agent may, in its absolute discretion think fit and so that the
Agent shall be entitled as against the Chargor, to retain and apply the
proceeds of any sale or disposal and all and any amounts then standing to
the credit of any cash collateral deposit account pursuant to Clause 5.2
above, in or towards the discharge of the Indebtedness as the same fall
due, in such manner as the Agent may in its absolute discretion think fit
(and for that purpose to effect any currency conversion that the Agent may
consider appropriate) with any surplus being paid to the Chargor or other
person entitled thereto. The Agent shall not be liable for any loss
howsoever arising out of such sale.
Schedule 12 -
213
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
5.4 The rights, powers and authorities of the Agent pursuant to the Power of
Attorney hereunder shall be in addition to, and shall not in any way
prejudice or affect the rights and powers of the Agent under this
Memorandum; notwithstanding any other provision herein contained the Agent
and or any substitute or agent of the Agent under the said Power of
Attorney may at any time prior to the discharge of all moneys hereby
secured without notice to the Chargor transfer the Mortgaged Securities
into the name of the Agent or its nominees and the Chargor shall upon
demand and at the Chargor's cost execute and do all such transfers acts
assurances or things as the Agent may require for assuring and vesting the
full legal title in the Mortgaged Securities or any of them to and in the
name(s) of the Agent or its nominees PROVIDED ALWAYS that save as aforesaid
and as is otherwise stated herein neither the Agent nor any of its
substitutes or agents under the Power of Attorney will exercise any of the
other rights, powers or authorities conferred by the said Power of Attorney
(other than powers of substitution and appointment of agents and the powers
conferred in paragraph (o) of Clause 3.1 of the said Power of Attorney)
unless and until an Event of Default has occurred, whereupon and whereafter
the Agent (or its substitute or agent) shall be entitled to exercise all
and any such rights, powers and authorities as it may in its absolute
discretion think fit.
6. FURTHER SECURITY
6.1 If at any time any Mortgaged Security shall cease to be a Qualifying
Security or the Agent shall determine the Actual Security Value is less
than the Required Security Value then the Agent may, at any time whilst
such circumstances are continuing, require the Chargor to provide to the
Agent further and other security in the form of further Qualifying
Securities, and to execute and deliver to the Agent or procure the
execution and delivery to the Agent by any nominee of such instrument or
instruments of charge in favor of the Agent in relation thereto, in such
form and on such terms, as the Agent may require, so that such shares and
securities become part of the Additional Securities.
6.2 In the event of the Agent requiring further security pursuant to Clause 6.1
above, the Chargor will do all such acts and things, and execute all such
further or other documents, as may be necessary or as the Agent may require
in order to constitute, render enforceable or perfect such security and to
protect the rights of the Agent in relation thereto, and in particular
will,
Schedule 12 -
214
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
within fourteen (14) days of notice of such requirement, identify,
and offer to the Agent further Qualifying Securities as aforesaid to be
charged, having an aggregate Actual Security Value which is not less than
the difference between the Required Security Value and the Actual Security
Value of the existing Mortgaged Securities already charged and execute all
and any instruments of charge and other documents relating thereto as
required and forthwith upon being so requested by the Agent.
6.3 Any securities which cease for any reason to be acceptable to the Agent
shall cease to be Qualifying Securities.
6.4 Any determination of the Agent as to the Actual Security Value of, or
attributable to, all or any part of the Mortgaged Securities and any
further security provided (or proposed to be provided) pursuant to this
Clause 6 shall, in the absence of manifest error, be conclusive.
7. REASSIGNMENT
7.1 In the event of any Mortgaged Securities ceasing to be Qualifying
Securities (the "Disqualified Securities") the Agent shall, upon the
provision of other Qualifying Securities in accordance with Clause 6 having
in the aggregate an Actual Security Value not less than the value, so
assessed, of the Disqualified Securities on the last day on which they are
accepted by the Agent, release the Disqualified Securities from this
Memorandum.
7.2 Upon payment in full of the Indebtedness in accordance with the terms
hereof and of the Loan Documents and upon there being no further moneys to
be lent by the Lenders pursuant to the Loan Agreement the Agent will, at
the request and cost of the Chargor, release the Mortgaged Securities then
charged hereunder from the charge hereby created and transfer the same to
the Chargor or as the Chargor may direct in writing.
8. RIGHTS TO RESORT TO OTHER SECURITIES
The Agent shall at any time be at liberty (without being bound to do so) to
resort for the benefit of the Beneficiaries to any other means of payment at any
time and in any order as it may think fit without thereby diminishing the
Chargor's liability hereunder and the Agent may exercise its rights hereunder
for the payment of the amount hereby intended to be secured either after
resorting to other means of
Schedule 12 -
215
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
payment or at any time notwithstanding that other means of payment have not been
resorted to.
9. REPRESENTATIONS AND WARRANTIES
9.1 In the event the Chargor is a corporation the Chargor hereby represents and
warrants to and undertakes with the Agent as follows
(a) the Chargor is duly incorporated with limited liability and validly
existing under the laws of Malaysia;
(b) the Chargor is an exempt private company and by virtue thereof, the
creation of this Memorandum has not contravened Section 133A of the
Companies Act, 1965 in any way;
(c) the documents which contain or establish the Chargor's constitution
incorporate provisions which authorize, and all necessary action has
been taken to authorize, and all authorizations of any governmental or
other authority have been duly and unconditionally obtained and are in
full force and effect which are required to authorize, the Chargor to
own the Mortgaged Securities, carry on its business as they are now
being conducted, and sign and deliver, and perform the transactions
contemplated in this Memorandum and the Power of Attorney and to
enable the Agent to exercise the rights, powers and authorities hereby
and thereby vested in the Agent;
(d) it is in the interest of the Chargor as a related company to assist
the Chargor in the manner herein provided;
(e) neither the signing and delivery of this Memorandum and the Power of
Attorney nor the performance of any of the transactions contemplated
in them will :-
(i) contravene or constitute a default under any provision contained
in any agreement, instrument, law, judgment, order, license,
permit or consent by which the Chargor or any of its assets is
bound or affected; or
(ii) cause any limitation on its powers whether imposed by or
contained in any document which contains or establishes its
constitution or in any law, order, judgment, agreement,
instrument or otherwise, to be executed;
Schedule 12 -
216
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(iii) result in the creation or imposition of any obligation to
create or impose, any mortgage, lien, pledge or charge on any of
the Chargor's assets pursuant to the provisions of any mortgage,
contract or other undertaking or instrument;
(f) this Memorandum and the Power of Attorney when signed will constitute
the legal, valid and binding obligations of the Chargor in accordance
with their terms;
(g) the Chargor is the beneficial owner of and has title to the Mortgaged
Securities;
(h) the property and rights of the Chargor to the Mortgaged Securities is
not affected by any Security Interest, and the Chargor is not a party
to nor is it nor any of the property and rights hereby mortgaged bound
by, any order, agreement or instrument under which the Chargor is, or
in certain events may be, required to create, assume or permit to
arise any Security Interest;
(i) no event has occurred which constitutes, or which with the giving of
notice and/or the lapse of time and/or a relevant determination would
constitute, a contravention of, or default under, any agreement or
instrument by which the Chargor or any of its assets is bound or
affected, being a contravention or default which might either have an
adverse effect on the business, assets or condition of the Chargor or
adversely affect its ability to observe or perform its obligation
under this Memorandum and the Power of Attorney;
(j) no litigation, arbitration or administrative proceeding or claim which
might by itself or together with any other such proceedings or claims
either have an adverse effect on any of the Chargor's business, assets
or condition or adversely affect its ability to observe or perform its
obligations under this Memorandum and the Power of Attorney is
presently in progress or pending or, to the best of the knowledge,
information and belief of the Chargor, threatened against the Chargor
or any of its assets;
(k) no extraordinary circumstance or change of law or other government
action shall have occurred which shall make it improbable that the
business of the Chargor can be carried out or that the Chargor will be
able to observe and perform
Schedule 12 -
217
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
the covenants and obligations on its part to be performed and observed
under this Memorandum and the Power of Attorney;
(l) no violation of any provisions of legislation, Court orders, judgment
and others have been committed by the Chargor;
(m) no information furnished by the Chargor in connection with this
Memorandum contains any untrue statement or omits to state any fact
the omission of which makes the statements therein, in the light of
the circumstances under which they were made, misleading, and all
expressions of expectation, intention, belief and opinion contained
therein were honestly made on reasonable grounds after due and careful
inquiry by the Chargor;
(n) the Chargor has fully disclosed in writing to the Agent all facts
relating to the Chargor which the Chargor knows or should reasonably
know and which are material for disclosure to the Agent in the context
of this Memorandum and the Power of Attorney.
9.2 In the event the Chargor is an individual the Chargor hereby represents and
warrants to and undertakes with the Agent as follows:-
(a) That neither the signing and delivery of this Memorandum nor the
performance of any of the transactions contemplated in them will:-
(i) contravene or constitute a default under any provision contained
in any agreement, instrument, law, judgment, order, license,
permit or consent by which the Chargor or any of his assets is
bound or affected; or
(ii) result in the creation or imposition of any obligation to create
or impose, any mortgage, lien, pledge or charge on any of the
Chargor's assets pursuant to the provisions of any mortgage,
contract or other undertaking or instrument;
(b) no extraordinary circumstance or change of law or other government
action shall have occurred which shall make it improbable that the
business of the Chargor can be carried out or that the Chargor will be
able to observe and perform
Schedule 12 -
218
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
the covenants and obligations on his part to be performed and observed
under this Memorandum;
(c) that this Memorandum constitute the legal, valid and binding
obligations of the Chargor enforceable in accordance with their terms
and the obligations of the Chargor in respect of the payment of
principal, interest, fees and other expenses and charges do not
contravene any legislation or regulation binding on the Chargor;
(d) that the Chargor is not in default this Memorandum or any other
contract or agreement binding on the Chargor or to which he is
subject;
(e) that there is no order of any Court or other governmental agency or
any provision of any existing agreement binding on the Chargor or to
which he is subject which would be contravened or breached by the
execution, delivery and performance of this Memorandum;
(f) no litigation, arbitration or administrative proceeding or claim which
might by itself or together with any other such proceedings or claims
either have a material adverse effect on his business, assets or
condition or materially and adversely affect his ability to observe or
perform his obligations under this Memorandum is presently in progress
or pending or, to the best of the knowledge, information and belief of
the Chargor, threatened against the Chargor or any of his assets;
(i) all necessary returns have been delivered by or on behalf of the
Chargor to the relevant taxation authorities and the Chargor is not in
default in the payment of any taxes of a material amount, and no
material claim is being asserted with respect to taxes which has not
been disclosed in the financial statements submitted to the Agent;
(j) that the Chargor has fully disclosed in writing to the Agent all facts
relating to the Chargor which the Chargor knows or should reasonably
know and which are material for disclosure to the Agent in the context
of this Memorandum;
(k) that no lawsuits or investigations by governmental agency, body or
other regulatory authority are pending or to be instituted against the
Chargor;
Schedule 12 -
219
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(l) that no violation of any provision of legislation court orders and
judgment has been committed by the Chargor.
9.3 The Chargor acknowledges that the Beneficiaries have, at the request of the
Chargor accepted this Memorandum and the Power of Attorney on the basis of,
and in full reliance on, the aforesaid representations and warranties,
which will be correct and complied with in all material respects so long
as, this Memorandum, the Power of Attorney and the other Loan Documents
shall remain in force.
10. MISCELLANEOUS
10.1 No provision of any law restricting a mortgagee's or chargee's right of
consolidation of mortgages shall apply to this Memorandum or to any further
or other charge created pursuant hereto.
10.2 The Chargor shall and hereby undertakes to fully indemnify the Agent and
the other Beneficiaries from and against any expense, loss, damage or
liability (as to the amount of which the certificate of the Agent and the
other Beneficiaries shall, in the absence of manifest error, be conclusive)
which it may incur as the consequence of the occurrence of an Event of
Default or otherwise in connection with this Memorandum and/or other Loan
Documents. Without prejudice to its generality, the foregoing indemnity
shall extend to any interest, fees and other sums whatsoever paid or
payable on account of any funds borrowed in order to carry any unpaid
amount and to any loss (including loss of profit), premium, penalty or
expense which may be incurred in liquidating or employing deposits from
third parties.
10.3 (a) Every notice or demand under this Memorandum shall be in writing but
may be given or made by telex, telegram, facsimile or cable.
(b) Any notice required to be given by the Chargor shall, if given by
telex, be subsequently confirmed by letter posted or delivered as soon
as practicable thereafter.
(c) Subject as aforesaid any notice or certificate required to be given by
the Chargor to the Agent hereunder shall be in writing and shall be
addressed to the Agent at 27th Floor, Menara Boustead, ▇▇. ▇▇, ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ or at such other address as may from
time to time be notified by the Agent to the Chargor for that purpose.
Any
Schedule 12 -
220
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
notice or certificate required to be given to the Chargor hereunder
shall be given by ▇▇▇▇▇, facsimile, telegram, cable or letter
addressed to the Chargor at its address hereinbefore specified or such
other address as may from time to time be notified by the Chargor to
the Agent for the purpose.
(d) Any notice or certificate delivered personally shall be deemed to be
given at the time of such delivery. Any notice or certificate
dispatched by first class inland letter shall be deemed to have been
given 48 hours after posting. Any notice or certificate transmitted
by telex or facsimile shall be deemed to have been given at the time
of transmission and any notice or certificate sent by cable shall be
deemed to have been given 24 hours after dispatch. All notices or
certificates given hereunder by ▇▇▇▇▇, facsimile, telegram or cable
shall be subsequently confirmed by letter posted or delivered as soon
as practicable thereafter.
10.4 The security liabilities and or obligations under this Memorandum shall
continue to be valid and binding for all purposes whatsoever
notwithstanding any change by amalgamation reconstruction or otherwise
which may be made in the constitution of the Agent and it is expressly
declared that no change of any sort whatsoever in relation to or affecting
the Chargor shall in any way affect the security, liabilities and or
obligations created hereunder.
10.5 This Memorandum shall be governed by and construed in accordance with the
laws of Malaysia and the service of any writ or summons or any legal
process in respect of any such action or proceeding may be effected on the
Chargor by the Agent by forwarding a copy of the writ or summons statement
of claim or other legal process by prepaid registered post to its address
as indicated herein as the case may be.
10.6 Any term condition stipulation provision covenant or undertaking of @s
instrument which is illegal, prohibited or unenforceable in any
jurisdiction shall as to such jurisdiction be ineffective to the extent of
such illegality, voidness, prohibition or unenforceability without
invalidating the remaining provisions hereof and any such illegality,
voidness, prohibition or unenforceability in any jurisdiction shall not
invalidate or render illegal, void or unenforceable any such term condition
Schedule 12 -
221
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
stipulation provision covenant or undertaking in any other jurisdiction.
10.7 This Memorandum is expressly intended to be and shall be a continuing
security for all moneys whatsoever now or from time to time owing by the
Chargor notwithstanding that the Chargor may at any time or times cease to
be indebted to the Agent and the other Beneficiaries for any period or
periods and notwithstanding any settlement of account or accounts.
10.8 No failure to exercise nor any delay in exercising on the part of the
Agent and the other Beneficiaries any right or remedy hereunder shall
operate as a waiver thereof nor shall any single or partial exercise of
any right or remedy prevent any further or other exercise hereof or the
exercise of any action right or remedy.
10.9 This Memorandum shall be binding on the representatives successors-in-
title of the Chargor and the successors-in-title and assigns of the Agent.
10.10 The terms of the Loan Agreement shall where the context so permits and
unless repugnant to the context, apply to this Memorandum as if set out
herein.
11. PRINCIPAL/SUBSIDIARY INSTRUMENTS
11.1 It is hereby agreed and declared that this Memorandum and the Loan
Agreement are instruments employed in one transaction namely 'to secure
the Indebtedness in an aggregate sum of Ringgit Malaysia Ninety One
Million (P-M9 1,000,000) for principal only together with interest thereon
and all other monies payable under the Loan Agreement and the Security
Documents to the Agent and the Lenders and for the purpose of Section 4(3)
of the Stamp Act 1949, the Loan Agreement shall be deemed to be the
principal instrument and this Memorandum shall deemed to be the subsidiary
instrument.
Schedule 12 -
222
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
IN WITNESS WHEREOF the Chargor has executed this Memorandum this day of
,1995.
*[The Common Seal of the abovenamed )
▇▇▇▇▇▇▇, )
was hereunto duly affixed in )
accordance with its Constitution )
in the presence of:- )
Director Director/Secretary
I, an Advocate and Solicitor of the High
Court in Malaya practicing at Kuala Lumpur hereby certify that on this day
of , 1995 the Common Seal of [
], was duly affixed to the above written instrument in my presence in accordance
with the regulations of the said Company.
Witness my hand,
_______________]
or
Schedule 12 -
223
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
*[SIGNED by )
the abovenamed ▇▇▇▇▇▇▇ )
[ ] )
in the presence of:- )
I, an Advocate and Solicitor of the High
Court in Malaya practicing at Kuala Lumpur hereby certify that the signature of
the donor abovenamed was written in my presence on this day of
,199 and is, to my own personal knowledge, the true signature of who has
acknowledged to me that he/she is of full age and that he/she has voluntarily
executed this instrument.
Witness my hand
_______________
*Delete as appropriate
Schedule 12 -
224
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
THE SCHEDULE HEREINBEFORE REFERRED TO
THE ORIGINALLY CHARGED SHARES
DESCRIPTION OF SECURITY SHARE CERTIFICATE NO. NO. OF SHARES
Schedule 12 -
225
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
SCHEDULE 13
TRANSFER CERTIFICATE
To: PERMATA MERCHANT BANK BERHAD
relating to the agreement (as from time to time amended, varied, novated or
supplemented, the "Loan Agreement") dated [ ] , 1995 whereby a term
loan facility was made available to SYARIKAT TELEFON WIRELESS (M) SDN. BHD. as
borrower by a group of lenders on whose behalf PERMATA MERCHANT BANK ▇▇▇▇▇▇
acted as agent in connection therewith.
1. Terms defined in the Loan Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms Lender, Transferee,
▇▇▇▇▇▇'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 Loan Agreement and requests the Transferee
to accept and procure the transfer to the Transferee of the portion(s) of the
Lender's Participation as set forth in paragraph 5 of the Schedule hereto by
counter-signing and delivering this Transfer .Certificate to the Agent at its
address for the service of notices specified in the Loan Agreement.
3. The Transferee hereby requests the Agent to accept this Transfer
Certificate as being delivered to the Agent pursuant to and for the purposes of
Clause 19 of the Loan 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 confirms that it has received a copy of each of the Loan
Documents 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 behalf the financial condition, creditworthiness,
condition, affairs, status or nature of the Borrower.
Schedule 13 -
226
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
5. The Transferee hereby undertakes with the Lender and each of the other
parties to the Loan Documents that it will perform in accordance with their
terms all those obligations which by the terms of the Loan Documents will be
assumed by it after delivery of this Transfer Certificate to the 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 Loan Documents or any document relating thereto and
assumes no responsibility for the financial condition of the Borrower, any Third
Party or any other person or for the performance and observance by the Borrower
or any Third Party or any other person of any of its obligations under the Loan
Documents or any document 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 Loan
Documents (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 Loan Documents 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, any Third Party or any other party to the Loan
Documents of its obligations under any document. The Transferee hereby
acknowledges the absence of any such obligation as is referred to in (i) or (ii)
above.
8. The Transferee confirms that it is an entity falling within the
description of Section 38(1B)(c) of the Companies Act, 1965, of Malaysia.
9. This Transfer Certificate and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with the laws of
Malaysia.
THE SCHEDULE
1 Lender:
2. Transferee:
Schedule 13 -
227
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
3. Transfer Date:
4. ▇▇▇▇▇▇'s Participation:
COMMITMENT Portion of Loan*
[specify Commitment of [specify Lender's portion of the
the Lender Loan]
5. Amount Transferred:
PORTION OF COMMITMENT PORTION OF LOAN
TRANSFERRED TRANSFERRED*
[specify percentage of [specify amount in dollars
the Commitment corresponding to percentage
transferred] of ▇▇▇▇▇▇'s portion of the Loan
transferred]
6. Adjusted Commitments under the Loan Agreement after Transfer:-
Lender :
Transferee :
[Transferor Lender] [Transferee Lender]
By: By:
Date: Date:
*Complete only if the Loan or such portion thereof has been drawn.
Schedule 13 -
228
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
ADMINISTRATIVE DETAILS OF TRANSFEREE
Address:
Contact Name:
Account for Payments:
Telex:
Facsimile:
Telephone:
Schedule 13 -
229
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
SCHEDULE 14
MEMORANDUM OF PLEDGE
THIS MEMORANDUM OF PLEDGE is made the day of
,199 Between SYARIKAT TELEFON WIRELESS (M) SDN. BHD., a company incorporated in
Malaysia and having its registered office at 2nd Floor, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Borrower"),
incorporated in Malaysia and licensed to carry on banking business and having
its registered office at 27th Floor, Menara Boustead, ▇▇. ▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Agent") as agent for the Beneficiaries (as hereinafter
defined) of the other part.
WHEREAS:-
(i) By a loan agreement (the "Loan Agreement") to be entered into
simultaneously with this Memorandum or shortly hereafter between the
Borrower of the first part, the Agent of the second part and the Lenders of
the third part, the Lenders agree subject to the conditions therein
appearing, to make available to the Borrower a term loan facility (the
"Facility") in the maximum aggregate principal amount of Ringgit Malaysia
Ninety One Million (RM91,000,000.00)only. -
(ii) The Borrower undertook in the Loan Agreement that the Borrower will inter
alia execute this Memorandum in favor of the Agent as trustee for itself as
agent and for the Lenders as further security for the Facility.
IN PURSUANCE of the Loan Agreement and in consideration of the premises the
Borrower HEREBY AGREES, COVENANTS AND UNDERTAKES with the Agent as follows:-
1. DEFINITIONS
1.1 Except where the context otherwise requires, terms and expressions defined
in the Loan Agreement and not otherwise defined herein bear the same meanings
where used in this Memorandum, and the following terms and expressions where
used in this Memorandum bear the meanings respectively set opposite them:
Additional Interest the additional interest payable by the Borrower pursuant to
Clause 12.5 (a) of the Loan Agreement and pursuant to the
other Loan Documents due to
Schedule 14 -
230
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
failure to pay any Indebtedness when due and payable
thereunder;
Beneficiaries the Arranger, the Agent and the Lenders;
Fixed Deposit the fixed deposit(s) held under the certificate(s) more
particularly described in Schedule A hereto and any
renewal(s) thereof;
Fixed Deposit Bank the bank in which the Borrower has placed the Fixed Deposit;
Indebtedness at any time the aggregate of all sums advanced from time to
time by the Lenders to the Borrower pursuant to the Loan
Agreement together with interest thereon and all other
monies payable to the Beneficiaries or any of them pursuant
to, upon and under the Loan Documents (whether in respect of
principal, interest, Additional Interest, fees, prepayment
premium, costs, expenses, indemnity or otherwise);
Loan Documents the Loan Agreement, the Collateral Agreement, this
Memorandum and the other Security Documents and any other
documents for the time being constituting security for the
Facility or any part thereof,
Prescribed Rates the respective rates of interest (including Additional
Interest) chargeable on the Indebtedness or any part thereof
stipulated in the Loan Agreement or such other rate or rates
which the Lenders may at their discretion stipulate from
time to time or at any time in the manner provided for
therein.
1.2 The headings in this Memorandum are inserted for convenience only and shall
not be taken read and construed as essential parts of this Memorandum.
References to Clauses are to be construed as references to Clauses of this
Memorandum. All references to provisions of statutes include such provisions as
modified, re-certified or re-enacted. Words applicable to natural persons
include any body of persons, company, corporation, firm or partnership corporate
or incorporate and vice versa. Words importing the masculine gender shall
include the feminine and neuter genders and vice versa. Words importing the
singular number shall include the plural number and vice
Schedule 14 -
231
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
versa. Where two or more persons or parties are included or comprised in any
expressions, agreements, covenants, terms, stipulations and undertakings
expressed to be made to such persons or parties shall, unless expressly stated
to the contrary, be enforceable by them jointly and severally and agreements,
covenants, terms, stipulations and undertakings expressed to be made by or on
the part of such persons or parties shall be deemed to be made by and binding
upon such persons or parties jointly and severally.
2. THE PLEDGE
2.1 In consideration of the Lenders having agreed at the Borrower's request to
make available the Facility to the Borrower pursuant to the provisions of the
Loan Agreement, the Borrower hereby irrevocably pledges the Fixed Deposit and
any renewal(s) thereof up to the principal sum of Ringgit Malaysia One Million
(PM 1,000,000.00) to the Agent to be held by the Agent as continuing security
for the due payment by the Borrower to the Lenders of the Indebtedness together
with interest thereon at the Prescribed Rate(s).
3. NO WITHDRAWAL AND ENCUMBRANCES
3.1 During the continuance of this Memorandum the Borrower shall not be
entitled, except with the prior written consent of the Agent, to withdraw the
whole or any part of the Fixed Deposit.
3.2 During the continuance of this Memorandum the Borrower shall not assign,
transfer or in any way deal with the Fixed Deposit or the Borrower's rights,
title or interest therein or any rights in relation thereto.
4. DEFAULT
4.1 The Borrower hereby further authorizes the Agent in default of payment by
the Borrower to the Lenders of the Indebtedness or any part thereof under its
account in respect of the Facility and/or if the Borrower shall fail to observe
and perform any of its covenants and undertakings hereunder and under the Loan
Documents without further notice to the Borrower to forthwith appropriate all or
any part of the amount(s) from the Fixed Deposit in or towards payment or
discharge of any or all of the Indebtedness together with interest
aforementioned up to the date of actual payment (as well after as before
judgment).
5. POWER OF ATTORNEY
Schedule 14 -
232
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
5.1 For the purpose of giving effect to the Borrower's obligations under this
Memorandum the Borrower hereby irrevocably appoints the Agent and/or the manager
and/or the officer in charge for the time being of the Agent, the attorney(s) of
the Borrower for the Borrower and in the Borrower's attorney's own name(s) or in
the name of the Borrower or in the joint names of the attorney and the Borrower
and on behalf of the Borrower as its act and deed to execute sign and deliver,
any documents pertaining to the Fixed Deposit, to collect all sums of monies as
are due under the Fixed Deposit, to renew the Fixed Deposit for such period(s)
as the Agent may direct, to issue good receipts therefor and to do such act,
deed and/or things as the Agent may require in respect of this Memorandum with
power for such Attorney to substitute and appoint one or more Attorneys under
them or each of them for all or any of the purposes aforesaid as they or each of
them shall think fit AND the Borrower hereby agrees and undertakes at all times
hereafter to ratify and confirm whatsoever the said Attorney or his Attorneys
shall lawfully do or cause to be done in and concerning the premises by virtue
of this Memorandum.
6. CHANGES IN CONSTITUTION
6.1 Any change in the constitution(s) of the Lenders, the Agent and or the
Borrower or the Agent's and or the Borrower's absorption in or amalgamation with
any other person or the acquisition of all or any part of the Agent's and or
Borrower's undertaking, as the case may be, by any other person shall not in any
way prejudice or affect the Agent's rights hereunder.
7. ASSIGNMENT/TRANSFER OF THE MEMORANDUM
7.1 The Agent shall be at liberty to assign and transfer this Memorandum and
the costs and expenses of the Agent and incidental to such assignment or
transfer shall be paid by the Borrower and any statement therein of the amount
due to the Agent under or by virtue of this Memorandum shall be conclusive and
binding for all purposes against the Borrower save for manifest error.
7.2 The Borrower shall not be entitled to assign or transfer all or any of its
rights, benefits and obligations hereunder without the prior written consent of
the Instructing Group obtained through the Agent.
7.3 Any Lender may, at any time, assign all or any of its rights and benefits
hereunder or transfer in accordance with Clause 7.5 all or any of its rights,
benefits and obligations hereunder to any financial institution provided that at
the same time it assigns or, as the case
Schedule 14 -
233
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
may be, transfers an equal portion of its rights, benefits and obligations under
the other Loan Documents to the same financial institution.
7.4 If any Lender assigns all or any of its rights and benefits hereunder in
accordance with Clause 7.3, then, unless and until the assignee has agreed with
the Agent and the other 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 Agent and the other 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.
7.5 If any Lender wishes to transfer all or any of its rights, benefits and/or
obligations hereunder as contemplated in Clause 7.3, then such transfer may be
effected by the delivery to the Agent of a duly completed and duly executed
Transfer Certificate in which event, on the later of the Transfer Date specified
in such Transfer Certificate and the fifth Business Day after (or such earlier
Business Day endorsed by the Agent on such Transfer Certificate falling on or
after) the date of delivery of such Transfer Certificate to the Agent:
(i) to the extent that in such Transfer Certificate the Lender party thereto
seeks to transfer its rights, benefits and obligations hereunder, the
Borrower and such Lender shall be released from further obligations
towards one another hereunder and their respective rights against one
another shall be cancelled (such rights, benefits and obligations being
referred to in this Clause 7.5 as "discharged rights and obligations");
(ii) the Borrower and the Transferee party thereto shall assume obligations
towards one another and/or acquire rights against one another 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
(iii) the Agent such Transferee and the other Beneficiaries shall acquire the
same rights and benefits and assume the same obligations between
themselves as they would have acquired and assumed had such Transferee
been an original party hereto as a Lender with the rights, benefits and/or
obligations acquired or assumed by it as a result of such transfer.
8. UNDERTAKING
Schedule 14 -
234
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
The Borrower hereby undertakes to forthwith upon the execution of this
Memorandum issue the Notice substantially in the form set out in Schedule B1 to
the Fixed Deposit Bank and to procure the Acknowledgment from the Fixed Deposit
Bank substantially in the form set out in Schedule B2 addressed to the Agent.
9. CONTINUING SECURITY
This security shall not be considered as satisfied by any conditional
payment or satisfaction of the whole or any sum or sums of money owing or by any
payment made to be held in suspense but shall be a continuing security and
extend to cover all or any sum or sums of money which shall for the time being
or from time to time be due and owing by the Borrower to the Lenders under or in
connection with or arising from the Facility and/or this Memorandum.
10. WAIVER
No failure or delay on the Agent's part in exercising nor any omission to
exercise any right, power, privilege or remedy accruing to the Agent under this
Memorandum upon any default on the part of the Borrower shall impair any such
right, power, privilege or remedy or to be construed as a waiver thereof or an
acquiescence in such default nor shall any waiver or action by the Agent in
respect of any default or any acquiescence in any such default affect or impair
any of the Agent's rights, power, privilege or remedy in respect of any other or
subsequent default.
11. NOTICES
(a) Notices to be given or served under the provisions of this Memorandum shall
be deemed properly given or served if given in writing delivered personally
or by post by prepaid letter, telex or facsimile transmission addressed to
the relevant party at its address stated above or to any telex number or
facsimile number which is published as belonging to it (or such other
address or telex or facsimile number as is notified by any party to the
other party hereunder). Every notice or other communication shall be
deemed to have been received in the case of a telex message or facsimile
transmission the next working day after the date of dispatch, subject to
such telex message or facsimile transmission being confirmed forthwith
thereafter by written notice delivered by post to the party entitled to
receive the same as aforesaid, and in the case of a letter the next working
day after the date of delivery when delivered personally or forty-eight
(48) hours after it has been put into post.
Schedule 14 -
235
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(b) In proving the giving of a notice hereunder it shall be sufficient to prove
that the notice was left or that the envelope containing such notice was
properly addressed and posted or that the telex bears the correct
answerback or that the facsimile transmission report bears the correct
transmission receipt confirmation of the party to whom the notice was sent.
12. GOVERNING LAW
This Memorandum shall be governed by and construed in accordance with the
laws of Malaysia.
Schedule 14 -
236
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
AS WITNESS WHEREOF this Memorandum is executed by the parties hereto.
The execution of this instrument )
by the Borrower SYARIKAT TELEFON )
WIRELESS (M) SDN. BHD. is duly )
effected in a manner authorized )
by its constitution under the )
Seal of the Borrower which said )
▇▇▇▇ is hereunto duly affixed on )
this day of , 199 )
in the presence of.- )
_______________ Director
_______________Director/Secretary
I, an Advocate and Solicitor of the High Court
in Malaya practicing at Kuala Lumpur hereby certify that on this day of
,199 the Common Seal of SYARIKAT TELEFON WIIRELESS (M) SDN. BHD., was duly
affixed to the above written instrument in my presence in accordance with the
regulations of the said Company.
Witness my hand
_______________
Schedule 14 -
237
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
SIGNED by ) PERMATA MIERCHANT BANK BERHAD
) by its Attorneys
and )
)
for and on behalf of )
PERMATA MERCHANT BANK BERHAD )
in the presence of:- )
Schedule 14 -
238
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
SCHEDULE A
CERTIFICATE NO. ISSUED BY AMOUNT IN THE NAME OF
Schedule 14 -
239
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
SCHEDULE B1
NOTICE
[Letterhead of Syarikat Telefon Wireless (M) Sdn. Bhd.]
Date: [ ]
To: [Name of the Fixed Deposit Bank]
Dear Sirs,
We refer to the fixed deposit receipt No. [ ] and such other
fixed deposit(s) to be placed with you up to the aggregate principal sum of
Ringgit Malaysia One Million (RM1,000,000.00) under our fixed deposit account
No.[ ] (collectively, the "Deposit").
We enclosed herewith a copy of the memorandum of pledge dated day of
,1995 (the "Pledge") between us and PERMATA MERCHANT BANK BERHAD as
trustee (the "Agent") and we hereby give you notice that pursuant to the Pledge,
the Deposit whether additional or by way of renewals or otherwise have been
pledged to the Agent as trustee upon the terms of the Pledge.
We irrevocably and unconditionally instruct and authorize you:-
(i) to disclose to the Agent without any reference to or further authority
from us and without any inquiry by you as to the justification for such
disclosure, such information relating to the Deposit as the Agent may, at
any time and from time to time, request you to disclose to it;
(ii) to hold the Deposit to the order of the Agent;
(iii) at any time and from time to time upon receipt by you of instructions in
writing from the Agent to release the Deposit or any part thereof to act
in accordance with such instructions, without any reference to or further
authority from us and without any inquiry by you as to the justification
for such instructions or the validity of them; and
(iv) to comply with the terms of any written notice, statement or instructions
in any way relating or purporting to relate to the Pledge and/or the
Deposit which you receive at any time and from time to time from the Agent
without any reference to or further
Schedule 14 -
240
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
authority from us and without any inquiry by you as to the justification
for such notice, statement or instructions or the validity of them.
The instructions and authorizations which are contained in this letter
shall remain in full force and effect until the Agent give you notice in writing
revoking them.
Kindly acknowledge receipt of this letter and your acceptance of the
instructions and authorizations contained in it by signing the attached form of
acknowledgment and returning it to the Agent.
Yours faithfully
____________________
(signature of authorized signatory)
(SYARIKAT TELEFON WIRELESS (M) SDN. BHD)
Schedule 14 -
241
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
SCHEDULE B2
ACKNOWLEDGEMENT
[Letterhead of the Fixed Deposit Bank]
Date:
To:
PERMATA MERCHANT BANK BERHAD
Dear Sirs,
We, [ ] acknowledge receipt of a notice dated the day
of ,1995 (the "Notice") addressed to us by SYARIKAT TELEFON WIRELESS
(M) SDN. BHD. (the "Company") regarding the fixed deposit(s) (collectively, the
"Deposit") more specifically mentioned in the Notice and we undertake to act in
accordance and comply with the terms of the Notice. A copy of the Notice is
annexed hereto.
We acknowledge and confirm:-
(i) we do not have, and will not make or exercise, any claims or demands, any
rights of counterclaim, rights of set-off or any other equities against
the Company in respect of the Deposit or any parts thereof;
(ii) we have not, as at the date of this Acknowledgment, received any notice
that any third party has or will have any right or interest whatsoever in
or has made or will be making any claim or demand or taking any action
whatsoever against the Deposit or any parts thereof.
We undertake that, in the event of our becoming aware at any time that any
person or entity other than yourselves or the Company has or will have any right
or interest whatsoever in or has or will be making any claim or demand or taking
any action whatsoever against the Deposit or any parts thereof, we will
immediately give written notice of the terms of such right or interest claim or
demand or action to both yourselves and the Company.
We have made the acknowledgments and confirmations and have given the
undertakings set out in this letter in the knowledge that they are required by
you in connection with the security which has been consisted by the Company in
your favor under a memorandum of pledge dated the day of
1995.
Schedule 14 -
242
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
We confirm that we shall not permit the whole or any part of the Deposit to be
withdrawn without your prior written authority.
Yours faithfully
Schedule 14 -
DATED THIS 2/ND/ DAY OF OCTOBER, 1995
BETWEEN
PERMATA MERCHANT BANK BERHAD
AND
INTERNATIONAL WIRELESS COMMUNICTIONS, INC.
*************************
OPTION AGREEMENT
*************************
▇▇▇▇▇ ▇▇▇▇▇▇ & LOW
ADVOCATES & SOLICITORS
KUALA LUMPUR
PMB/00503.95/JC/pa/ek(ar3)
AGREEMENT
THIS AGREEMENT is made the 2nd day of October, 1995,
Between:-
PERMATA MERCHANT BANK BERHAD, a company incorporated in Malaysia and having its
registered office at 27th Floor, Menara Boustead, ▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Bank") of the one part; and
INTERNATIONAL WIRELESS COMMUNICATIONS INC., a company incorporated in the State
of Delaware in the United States of America and having its registered office at
15E, North Street, ▇▇▇▇▇, ▇▇▇▇ County, Delaware ( the "Grantor") of the other
part.
WHEREAS:
1. SYARIKAT TELEFON WIRELESS (M) SDN. BHD. (the "Company") is a company
incorporated in Malaysia and having its registered office at 2nd Floor,
▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ and has an authorised capital of Ringgit Malaysia Fifty Million
(RM50,000,000) divided into fifty million (50,000,000) ordinary shares of
Ringgit Malaysia One (RMI100) each of which forty six million four hundred
and eighteen thousand (46,418,000) shares have been issued and fully paid
up or credited as fully paid up (the "Issued Shares").
2. As at the date hereof, the Grantor is the beneficial owner of thirty two
per cent (32%) of the Issued Shares (the "Grantor's Shares").
At the request of the Company and its shareholders (including the Grantor), the
Bank has agreed to the following:
to arrange for the Company a syndicated term loan facility of Ringgit
Malaysia Ninety One Million (RM91,000,000.00) (the "Facility");
to participate in the granting of the Facility to the Company together
with ▇▇▇▇▇▇▇ AFFIN BANK BERHAD ("PERWIRA"); and
to act as the agent for the lenders in respect of the Facility,
upon the terms and conditions set out in a loan agreement (the "Loan
Agreement") to be entered into simultaneously with this Agreement or
shortly hereafter between (1) the Company, (2) the Bank as arranger and
agent (the "Agent") and (3) the Bank and PERWIRA as lenders (together the
"Lenders").
In consideration of the above thereof the Grantor has irrevocably agreed to do
the following:
to grant the Bank a call option (the "Call Option") over such number of the
Grantor's Shares (the "Option Shares") constituting seven point five per cent
(7.5%) of the Grantor's Shares; and
to give the Bank the right of first refusal in respect of matters more
specifically stated under Clause 9.1 hereof,
upon the terms and conditions hereinafter contained.
All the other shareholders of the Company (the "Other Shareholders") have on
even date granted to the Bank call options over seven point five percent (7.5%)
of their shares in the Company respectively (the "Other Options") on terms and
conditions similar to the terms and conditions of the Call Option herein
contained.
NOW IT IS HEREBY AGREED as follows:
1. THE CALL OPTION
1.1 In consideration of the above premises, the Grantor hereby grants to the
Bank the Call Option which is an unconditional and irrevocable right
exercisable at any time within the Call Option Period (as hereinafter
defined) by the Bank to purchase from the Grantor all or part of the Option
Shares, free from all encumbrances together with all rights and bonuses
attaching thereto from the date hereof at the price and on the terms and
conditions hereinafter contained.
2. EXERCISE OF CALL OPTION
2.1 The Bank shall be entitled to exercise the Call Option at any time
commencing from the date hereof and ending on a date that is seven (7)
years from the date of the first drawndown of the Facility under the Loan
Agreement (the "Option Period") upon the occurrence of the following
events, in the manner as set out in Clause 2.2 hereof:
(a) the approval of the Securities Commission ("SC") being obtained for
the listing ("the Listing") of the Company on the first board or the
second board of the Kuala Lumpur Stock Exchange ("the KLSE") as the
case may be; or
(b) an agreement ("the Sale Agreement") being executed between the Grantor
and the Other Shareholders of the one part and a company listed on the
KLSE ("the Listed Company") of the
other part for the sale of the Issued Shares (excluding the Option
Shares) by the Grantor and the Other Shareholders to the Listed
Company; or
(c) five (5) years having expired from the date of the first drawdown of
the Facility under the Loan Agreement without either of the events
stated in Clauses 2.1 (a) or 2.1 (b) having occurred.
2.2 The Call Option may be exercised by the Bank by way of a notice in writing
(the "Option Notice") issued by the Bank to the Grantor as follows:
(i) in respect of the exercise of the Call Option upon occurrence of the
event set out in Clause 2.1 (a) or 2.1 (b) shall be substantially in
the form set out in Schedule I Part A; and
(ii) in respect of the exercise of the Call Option upon occurrence of the
event set out in Clause 2.1(c) shall be substantially in the form set
out Schedule I Part B. The Call Option shall be exercised upon service
of the Option Notice by the Bank in accordance with the provisions of
Clause 10.1 and the Grantor shall sell and the Bank shall purchase
such number of the Option Shares as specified in the Option Notice
(the "Sale Shares").
3. PRICE
3.1 The parties hereto hereby agree that the price payable by the Bank for the
Sale Shares shall be determined as follows:
(a) If the Bank exercises the Call Option pursuant to Clause 2.1(a)
hereof, the price payable by the Bank for each of the Sale Shares
shall be fifty per cent (50%) of the listing price of each of the
Issued Shares as approved or determined by the SC; or
(b) If the Bank exercises the Call Option pursuant to Clause 2.1(b)
hereof, the price payable by the Bank for each of the Sale Shares
shall be fifty percent (50%) of the purchase price of each of the
Issued Shares as set out in the Sale Agreement; or
(c) If the Bank exercises the Call Option pursuant to Clause 2.1(c)
hereof; the price payable by the Bank for the Sale Shares shall be
determined by the following person(s) and in the following manner:
(i) the Bank shall notify the Grantor in the Option Notice of the
independent firm of auditors or merchant bankers appointed by
the Bank (the "Bank's Appointee") to certify the fair value of
the Sale Shares valued on a going concern basis as between a
willing buyer and willing seller and without adjustment on
grounds that the shareholding represents a minority or majority
interest in the Borrower;
(ii) If the Grantor does not appoint its own independent firm of
auditors or merchant bankers ("the Grantor's Appointee") to
certify the fair value of the Sale Shares on the above basis and
notify the Bank of such appointment within seven (7) days from
the date of the Option Notice, the Grantor shall be deemed to
have consented to the appointment of the Bank's Appointee and
the price as certified by the Bank's Appointee shall be final
and binding on the parties.
(iii) In the event that the Grantor wishes to appoint the Grantor's
Appointee, the Grantor shall do so within seven (7) days from
the date of the Option Notice and shall inform the Bank within
the said seven (7) days period and the price payable by the Bank
for the Sale Shares shall be the average of the two (2) prices
certified (a) by the Bank s Appointee and (b) by the Grantor's
Appointee as the fair value of the Sale Shares.
(iv) The parties shall procure their respective appointees to certify
the fair value of the Sale Shares within seven (7) days from the
date of the Option Notice. All fees and expenses of the Bank's
Appointee and the Grantor's Appointee (if applicable) shall be
borne and paid solely by the Grantor.
4. COMPLETION
4.1 Upon the exercise of the Call Option by the Bank, the parties shall within
a period of seven (7) days from the date of the exercise of the Call Option
pursuant to Clause 2.2(i) hereof or within seven (7) days from the date the
last of the Bank's Appointee and the Grantor's Appointee (if applicable)
certifies the fair value of the Sale Shares in the case of Clause 2.2(ii)
hereof (the "Completion Date") comply simultaneously with their obligations
as follows:
(a) the Bank shall on Completion Date subject to the Grantor complying
with Clause 4.1(b)(i) and (ii) hereof pay to the
Grantor the price for the Sale Shares calculated in accordance with
Clause 3 hereof by way of a bankers draft or cashier's order; and
(b) the Grantor shall :
(i) cause the Agent with whom the Grantor has deposited the share
certificates of the Grantor's Shares and the corresponding duly
executed registrable transfer forms in respect of the Grantor's
Shares (collectively the "Share Documents") pursuant to the
Shareholders' Agreement (as defined in the Loan Agreement) to
release to the Bank or its nominee on the Completion Date the
Share Documents in respect of the Sale Shares; and
(ii) deliver to the Bank or its nominee on the Completion Date any
form of waiver or consent required to enable the Sale Shares to
be registered in favour of the Bank or its nominee.
5. VENUE FOR COMPLETION
5.1 The parties hereto agree that the completion of the sale and purchase
transaction on the Completion Date as stipulated in Clause 4.1 shall be
carried out at the venue nominated by the Bank in the Option Notice at its
absolute discretion.
6. VARIATION OF SHARE CAPITAL
6.1 If, while the Call Option is outstanding, the Company shall effect or carry
out any capitalisation issue, subdivision, consolidation or reduction of
its share capital or any variation of its issued share capital, including
without limitation any rights or bonus issue or special or restricted
issue, then the number of shares which shall remain the subject of the Call
Option shall be adjusted accordingly in such manner as shall place the Bank
in the same position as regards the percentage of the Grantor's shares in
the Company which the Bank shall be entitled to purchase pursuant to the
exercise of the Call Option and the purchase price of each such share shall
be adjusted accordingly. In connection with the above, the Grantor hereby
covenants that it shall take up all capitalisation issues which the Company
may undertake from time to time such that the Grantor's shareholding in the
Company shall at all times remain at the percentage that the Grantor's
Shares represent in the share capital of the Company.
7. WARRANTY AND UNDERTAKING OF THE GRANTOR
7.1 The Grantor hereby warrants to the Bank that at the time of execution of
this Agreement, it is the beneficial owner of all the Grantor's Shares and
that the Option Shares will be sold to the Bank free of encumbrances and
with all rights attaching thereto as at the date of exercise of the Call
Option by the Bank and, subject to Clause 7.2 hereof, the Grantor has full
power and authority to exercise and enjoy all rights attaching thereto
without the consent of any other person and to grant an option in respect
of the same upon the terms and conditions of this Agreement.
7.2 The Grantor hereby undertakes that it shall not sell transfer assign
dispose pledge encumber or in any way deal with their shares in the Company
during the Option Period, unless with the prior written consent of the
Bank. Upon the exercise of the Call Option, the Grantor shall procure and
ensure that all the Sale Shares are free from any liens, charges, pledges,
equities, adverse interests and encumbrances whatsoever and shall be freely
transferable to the Bank.
7.3 The Grantor hereby covenants that in the event the Call Option is
exercised, the Grantor shall procure the registration of the transfer of
the Sale Shares in favour of the Bank or its nominees and do such acts and
things and execute such documents as shall be necessary to give effect to
the sale of the Sale Shares.
7.4 The Grantor hereby warrants that all voting and other rights attached to
the Sale Shares shall accrue to the Bank or its nominee on the date of
deliverance of the Option Notice to the Grantor and following that time the
Grantor shall exercise all voting and other rights at the direction of the
Bank or its nominee and shall account for all dividends or other
distributions of the Company declared or paid by reference to a record date
which is subsequent to such date of deliverance of the Option Notice.
8. RIGHT OF FIRST REFUSAL
8.1 The Grantor hereby agrees and undertakes to procure or cause the Company to
give the Bank the right of first refusal to act for the Company in respect
of (a) the corporate exercises undertaken by the Company in respect of the
Listing or the Sale and (b) any exercises undertaken by the Company for
raising of finance and/or such other corporate exercises for any form of
capital raising of the Company.
9. MISCELLANEOUS
9.1 Notices required or permitted to be given hereunder shall be in writing and
shall be deemed to have been validly given to the parties hereto if
delivered at or sent by hand to the addresses stated herein or to their
respective last known address and if so given shall be deemed to have been
received when delivered (if delivered by hand) or on the third day of
despatch (if delivered by mail).
9.2 The stamp duties and all other fees and expenses in connection with or
incidental to this Agreement (including the Bank's solicitors fees) shall
be borne by the Grantor.
9.3 Time shall be of the essence of this Agreement.
9.4 This Agreement shall be binding on the successors-in-title of the Grantor
and the successors-in-title and assigns of the Bank. The Bank may assign
all or any of its rights and benefits hereunder to such party(ies) as the
Bank may determine at its absolute discretion without reference to or the
consent of the Grantor.
9.5 The Schedule hereto shall have full force and effect and shall be read as
part of this Agreement as if they were incorporated herein.
9.6 This Agreement is governed by and shall be construed in accordance with,
the laws of Malaysia.
9.7 The Grantor irrevocably:-
(a) submit to the non-exclusive jurisdiction of the course of Malaysia and
the courts of the State of Delaware in the United States of America;
(b) waives any objections on the ground of venue or form non-convenience
or any similar grounds;
(c) consents to service of process by mail or in any other manner
permitted by the relevant law.
9.8 The Grantor shall at all times maintain an agent for service of process in
Malaysia. Such agent shall be:-
Name : M/S ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ASSOCIATES
Address : ▇▇. ▇▇-▇▇, 2nd Floor
Bangunan Ming
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
and the Grantor undertakes not to revoke the authority of the above agent
and if, for any reason, such agent or any successor agent no longer serves
as the agent of the Grantor to received service of process, the Grantor
shall promptly appoint another such agent and advise the Bank thereof.
IN WITNESS WHEREOF the parties hereto have set their respective hands
the day and year first above written.
SIGNED BY )
▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
as attorney (P.A. No. 45465/95) )
for and on behalf of ) /s/
INTERNATIONAL WIRELESS )
COMMUNICATIONS INC. )
in the presence of:- )
/s/
LOO YEN NI
Advocate & Solicitor
Kuala Lumpur
SIGNED BY )
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ )
for and on behalf of ) /s/
PERMATA MERCHANT BANK )
▇▇▇▇▇▇ in the presence of:- )
/s/
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
ADVOCATE & SOLICITOR
KUALA LUMPUR
UNDERTAKING BY THE COMPANY
We, SYARIKAT TELEFON WIRELESS (M) SDN BHD, a company incorporated in
Malaysia and having its registered address at 2nd Floor, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ hereby agrees and
undertakes that the right of first refusal, shall be given to PERMATA MERCHANT
BANK BERHAD ("the Bank"), to act for us in respect of :
(a) any corporate exercises undertaken by us for the Listing or the Sale (as
defined in this Agreement; and
(b) any exercises undertaken by us for the raising of finance and/or the
corporate exercises undertaken by us for any form of capital raising.
Dated the 19th day of September, 1995.
SIGNED BY ▇▇▇▇▇▇ ▇▇▇▇▇ )
▇▇▇▇▇ a/▇ ▇▇▇▇▇▇▇▇▇▇ )
for and on behalf of ) /s/
SYARIKAT TELEFON )
WIRELESS (M) SDN. BHD. )
in the presence of:- )
/s/
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
ADVOCATE & SOLICITOR
KUALA LUMPUR
SCHEDULE I
(PART A)
[Letterhead of PERMATA MERCHANT BANK BERHAD]
To: [Name of Grantor]
RE: NOTICE OF EXERCISE OF CALL OPTION TO PURCHASE [ ] SHARES IN THE
CAPITAL OF SYARIKAT TELEFON WIRELESS (M) SDN. BHD. ("STW")
(i) We refer to the call option (the "Call Option") granted by you to us under
and pursuant to the agreement dated the day of , 1995
(the "Agreement") made between (1) you as grantor and (2) ourselves as
option holder. Terms defined in the Agreement shall have the same meanings
herein.
(ii) We hereby exercise our rights under the Call Option to purchase [specify
the number] shares in STW from you (the "Sale Shares").
(iii) Payment for the Sale Shares amounting to Ringgit Malaysia [____________
(RM___________)] shall be made by us to you at the office of [specify the
address] on the Completion Date in accordance with Clause 4.1 of the
Agreement.
Yours faithfully,
____________________________________
PERMATA MERCHANT BANK BERHAD
SCHEDULE I
(PART B)
[Letterhead of PERMATA MERCHANT BANK BERHAD]
To: [Name of Grantor]
RE: NOTICE OF EXERCISE OF CALL OPTION TO PURCHASE [ ] SHARES IN THE
CAPITAL OF SYARIKAT TELEFON WIRELESS (M) SDN. BHD. ("STW")
We refer to the call option (the "Call Option") granted by you to us under and
pursuant to the agreement dated the ________ day of ________, 1995 (the
"Agreement") made between (1) you as grantor and (2) ourselves as option holder.
Terms defined in the Agreement shall have the same meanings herein.
We hereby exercise our rights under the Call Option to purchase [specify the
number] shares in STW from you (the "Sale Shares").
Please be informed that we have or shall appoint [name of independent firm of
auditors or merchant bank] ("Our Appointee") to certify the fair value of the
Sale Shares. In the event that you do not appoint another independent firm of
auditors or merchant bank and inform us of such appointment within seven (7)
days from the date of this Notice, it shall be deemed that you have consented to
the appointment of Our Appointee for purposes of Clause 3.1(c) of the Agreement.
Payment for the Sale Shares determined in accordance with Clause 3.1(c) of the
Agreement shall be made by us to you at the office of [specify the address] on
the Completion Date in accordance with Clause 4.1 of the Agreement.
Yours faithfully
____________________________________
PERMATA MERCHANT BANK BERHAD
DATED THIS 2ND DAY OF OCTOBER, 1995
BETWEEN
INTERNATIONAL WIRELESS COMMUNICATIONS INC.
and
SHUBILA HOLDING SDN. BHD.
and
▇▇▇▇▇▇▇ SDN. BHD.
AND
SYARIKAT TELEFON WIRELESS (M) SDN. BHD.
AND
PERMATA MERCHANT BANK BERHAD
***********************
COLLATERAL AGREEMENT
***********************
▇▇▇▇▇ ▇▇▇▇▇▇ & LOW
ADVOCATES & SOLICITORS
KUALA LUMPUR
PMB/00503.95/JC/ek
[SEAL]
COLLATERAL AGREEMENT
THIS AGREEMENT is made the 2/nd/ day of October, 1995 BETWEEN:
(1) (a) INTERNATIONAL WIRELESS COMMUNICATIONS INC. ("IWC");
(b) SHUBILA HOLDING SDN. BHD. ("SHUBILA"); and
(c) ▇▇▇▇▇▇▇ SDN. BHD. ("▇▇▇▇▇▇▇"),
(collectively the "Shareholders");
(2) SYARIKAT TELEFON WIRELESS (M) SDN. BHD. (the "Borrower");
(3) PERMATA MERCHANT BANK BERHAD (the "Agent") as agent for the Beneficiaries
(as hereinafter defined).
WHEREAS:
(A) PERMATA MERCHANT BANK BERHAD AND PERWIRA AFFIN BANK BERHAD (the "Lenders")
have agreed at the request of the Borrower and the Shareholders to provide
a Ringgit Malaysia Ninety One Million (RM91,000,000) term loan facility
(the "Facility") to the Borrower upon the terms and conditions set out in a
loan agreement (the "Loan Agreement") to be entered into simultaneously
with this Agreement or shortly hereafter between (1) the Borrower as
borrower, (2) the Agent as arranger and agent and (3) the Lenders as
lenders.
(B) The Shareholders are shareholders of and lenders to the Borrower.
(C) It is a condition precedent to availability of the Facility that the
Shareholders and the Borrower execute this Agreement in favor of the Agent.
NOW THEREFORE IN CONSIDERATION of the above premises the parties hereto
agree as follows:
1. INTERPRETATION
In this Agreement terms defined in the Loan Agreement shall bear the same
meanings when used herein, unless otherwise defined herein, and in addition when
used herein:
(i) "BENEFICIARIES" means the Arranger, the Agent and the Lenders;
2
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(ii) "INDEBTEDNESS FOR BORROWED MONEY" means any indebtedness of the Borrower
owed to any Shareholder for or in respect of any monies borrowed by the
Borrower from any Shareholder or amounts raised under any other
transaction having the commercial effect of a borrowing by the Borrower
from any Shareholder;
(iii) "LOAN DOCUMENTS" means the Loan Agreement, the Security Documents and
this Agreement;
(iv) "MEMORANDUM OF DEPOSIT" means the memorandum of deposit to be executed by
each of the Shareholders pursuant to Clause 12.1 in favor of the Agent
creating a fixed charge over its portion of the Shares as security for the
Facility substantially in the form set out in Appendix B;
(v) "ORIGINAL FINANCIAL STATEMENTS" means:
(a) in relation to ▇▇▇▇▇▇▇, the audited consolidated financial statements
of SHUBILA for the financial year ended the 31st day of December,
1994; and
(b) in relation to ▇▇▇▇▇▇▇, the audited consolidated financial statements
of ▇▇▇▇▇▇▇ for the financial year ended the 28/th/ day of February,
1995;
(c) in relation to IWC, the audited consolidated financial statements of
IWC for the financial year ended the day of , 199
(vi) "SENIOR LIABILITIES" means the Loan, all interest thereon and all fees and
other amounts expressed to be payable to the Beneficiaries under the Loan
Documents;
(vi) "SHARES" all those shares in the Borrower which shall represent 100% of
the total issued paid up capital of the Borrower;
(vii) "SHAREHOLDERS" means the shareholders of the Borrower as specified in the
preamble of this Agreement and where the context so requires or admits,
references to Shareholders shall be construed as references to any of
them;
(viii)"SUBORDINATED LIABILITIES" means all monies, whether in the nature of
principal, interest or otherwise, from time to time due
3
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000, 000.00
and to become due to any Shareholder from the Borrower in respect of any:
(a) Indebtedness for Borrowed Money owed to any Shareholder by the
Borrower at any time; and
(b) any preference shares in the Borrower owned by any Shareholder,
and shall include additional loans granted to the Borrower and preference
shares in the Borrower subscribed for under Clause 5.1(ii) herein;
(ix) "STATE" means the State of Delaware in the United States of America.
2. REPRESENTATIONS
2.1 Each Shareholder represents that:
(i) SHUBILA and ▇▇▇▇▇▇▇ are corporations duly incorporated under the laws of
Malaysia and IWC is a corporation duly incorporated under the laws of the
State with power to enter into this Agreement and to exercise its rights
and perform its obligations thereunder and all corporate and other action
required to authorize its execution of this Agreement and its performance
of its obligations hereunder has been duly taken;
(ii) in any proceedings taken in Malaysia (or the State in respect of IMC) in
relation to this Agreement, it will not be entitled to claim for itself or
any of its assets immunity from suit, execution, attachment or other legal
process;
(iii) all acts, conditions and things required to be done, fulfilled and
performed in order (a) to enable it lawfully to enter into, exercise its
rights under and perform and comply with the obligations expressed to be
assumed by it in this Agreement, (b) to ensure that the obligations
expressed to be assumed by it in this Agreement are legal, valid and
binding and (c) to make this Agreement admissible in evidence have been
done, fulfilled and performed;
4
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000, 000.00
(iv) under the laws in force at the date hereof, it is not necessary that this
Agreement be filed, recorded or enrolled with any court or other
authority or that (save for stamp duty of a nominal amount) any stamp,
registration or similar tax be paid on or in relation to this Agreement;
and
(v) the obligations expressed to be assumed by it in this Agreement are legal
and valid obligations binding on it in accordance with the terms hereof;
(vi) it has not taken any corporate action nor have any other steps been taken
or legal proceedings been started or (to the best of its knowledge and
belief) threatened against it for its winding-up, dissolution,
administration or re-organization or for the appointment of a receiver,
administrator, administrative receiver, trustee or similar officer of it
or of any or all of its assets or revenues;
(vii) it is not in breach of or in default under any agreement to which it is a
party or which is binding on it or any of its assets to an extent or in a
manner which might have a material adverse effect on its business or
financial condition;
(viii) no action or administrative proceeding of or before any court or agency
which might have a material adverse effect on its business or financial
condition has been started or threatened;
(ix) all of the written information supplied by it to the Agent and the other
Beneficiaries in connection with this Agreement is true, complete and
accurate in all material respects and it is not aware of any material
facts or circumstances that have not been disclosed to the Agent and the
other Beneficiaries and which might, if disclosed, adversely affect the
decision of the Agent and the other Beneficiaries to enter into the Loan
Documents to which it is a party;
(x) the execution of this Agreement and its exercise of its rights and
performance of its obligations hereunder will not result in the existence
of nor oblige it to create any encumbrance over all or any of its present
or future revenues or assets;
(xi) the execution of this Agreement and its exercise of its rights and
performance of its obligations hereunder do not and will not:
5
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000, 000.00
(a) conflict with any agreement, mortgage, bond or other instrument or
treaty to which it is a party or which is binding upon it or any of
its assets;
(b) conflict with its constitutive documents and rules and regulations;
or
(c) conflict with any applicable law, regulation or official or judicial
order;
(xii) the execution of this Agreement constitutes, and its exercise of its
rights and performance of its obligations hereunder will constitute,
private and commercial acts done and performed for private and commercial
purposes; and
(xiii)SHUBILA and ▇▇▇▇▇▇▇ are exempt private companies and as such, Section 133A
of the Companies Act, 1965 is not in any way contravened.
2.2 Each of the Shareholders further represents that:
(i) its respective Original Financial Statements were prepared in accordance
with accounting principles generally accepted in Malaysia (and in the case
of IWC, the State) and consistently applied and give (in conjunction with
the notes thereto) a true and fair view of its financial condition as at
the date as of which they were prepared and the results of its operations
during the financial year ended on such date;
(ii) since publication of its respective Original Financial Statements there
has been no material adverse change in its respective business or
financial condition;
(iii) as at the date as of which its respective Original Financial Statements
were prepared, there were no liabilities (contingent or otherwise) which
were not disclosed thereby (or by the notes thereto) or reserved against
therein nor were there at that date any unrealized or anticipated losses
arising from its respective commitments entered into by it which were not
so disclosed or reserved against; and
(iv) as at the date hereof the only Indebtedness for Borrowed Money owed by the
Borrower to the various Shareholders are owed to the
6
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000, 000.00
Shareholders being of the nature described in item 1 of the First Schedule
hereto.
2.3 Each of the Shareholders hereby represents and warrants that it is the
beneficial owner of the Shares in such proportion as stated in item 2 of
the First Schedule hereto and such Shares are free from all claims,
charges, liens and any other encumbrances whatsoever.
3. SUBORDINATION
3.1 Each of the parties hereto agrees that the Senior Liabilities shall rank in
all respects in priority to the Subordinated Liabilities and that
accordingly all of the Subordinated Liabilities shall be fully subordinated
to the Senior Liabilities.
4. UNDERTAKINGS OF THE BORROWER
4.1 From and after the date hereof and so long as any of the Senior Liabilities
are outstanding the Borrower shall not without the prior written consent of
the Agent:
(i) pay, prepay or repay (or permit the payment prepayment or repayment
of) or make any distribution (or permit any distribution to be made)
in respect of any of the Subordinated Liabilities in cash or in kind;
(ii) discharge any of the Subordinated Liabilities by set off or any right
of combination of accounts;
(iii) waive or release any term of the Subordinated Liabilities; or
(iv) take or omit to take any action whereby the subordination of the
Subordinated Liabilities or any part thereof to the Senior
Liabilities might be terminated, impaired or adversely affected.
5. UNDERTAKINGS OF THE SHAREHOLDERS
5.1 From and after the date hereof and so long as any of the Senior Liabilities
are outstanding or in force, the Shareholders:
7
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000, 000.00
(i) shall not without the prior written consent of the Agent;
(aa) receive payment, prepayment or repayment of, or any
distribution in respect of (or on account of), any of the
Subordinated Liabilities in cash or in kind or apply any money
or property in discharge of any Subordinated Liabilities;
(bb) discharge the Subordinated Liabilities by set-off or any right
of combination of accounts; or
(cc) amend, vary, waive or release any term of the Subordinated
Liabilities;
(ii) shall ensure that the Borrower:
(aa) remains solvent and able to meet all its financial liabilities
as and when they fall due; and
(bb) will complete the Project timeously,
and to this end shall whenever necessary put the Borrower in funds
including funds to meet costs-overrun in respect of the Project,
whether by way of provision of additional loans or subscription for
additional preference shares, in each case ranking pari passu in
priority with then existing Subordinated Liabilities or by way of
subscription for additional equity in the Borrower;
(iii) shall ensure that each Shareholder namely SHUBILA and ▇▇▇▇▇▇▇ will
remain an exempt private company and in the event that any of them
shall cease to be an exempt private company, then that Shareholder
shall render such financial assistance to the Borrower by way of
equity or preference shares or in any other manner that is in
conformity to the laws of Malaysia.
5.2 From and after the date hereof and so long as any of the Senior Liabilities
are outstanding or in force, the Shareholders shall not reduce their
respective shareholdings in the Borrower without the prior written consent
of the Instructing Group save and except if the aggregate of all
reduction(s) is equal or less than seven point five per cent (7.5%) of the
total paid up capital of the Borrower.
8
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000, 000.00
6. SUBORDINAT10N PRIOR TO INSOLVENCY PROCEDURES
6.1 If in breach of Clause 5.1:
(i) any Shareholder receives a payment or distribution in cash or in kind of,
or on account of, any of the Subordinated Liabilities;
(ii) the Borrower makes any payment or distribution in cash or in kind on
account of the Subordinated Liabilities;
(iii) any of the Subordinated Liabilities are discharged by set-off or by
exercise of any right of combination of accounts; or
(iv) any Shareholder receives any other payment or value in respect of the
Subordinated Liabilities,
the Shareholder receiving or otherwise obtaining the benefit of such payment,
set-off or combination of accounts will hold in trust on behalf of the
Beneficiaries and forthwith pay an amount equal to the amount of the payment so
received by it to the Agent for application against or retention by the Agent on
account of the Senior Liabilities, which amount shall be treated, as between
such Shareholder, the Borrower and the Beneficiaries, as originally paid to the
Beneficiaries and not to such Shareholder.
7. SUBORDINATION ON INSOLVENCY
7.1 If:
(i) any resolution is passed or order made for the winding up,
liquidation, dissolution, or reorganization of the Borrower;
(ii) the Borrower becomes subject to any insolvency, bankruptcy,
reorganization, receivership, liquidation, dissolution or other
similar proceeding whether voluntary or involuntary (and whether or
not involving insolvency);
(iii) the Borrower assigns its assets for the benefit of its creditors or
enters into any agreement with its creditors generally; or
(iv) the Borrower becomes subject to any distribution of its assets, or
if any analogous event occurs anywhere,
9
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000, 000.00
then:
(a) the Agent and the other Beneficiaries may, (i) claim, enforce and
prove for the Subordinated Liabilities, (ii) file claims and proofs,
give receipts and take all such proceedings and do all such things as
it sees fit to recover the Subordinated Liabilities and (iii) receive
all distributions on the Subordinated Liabilities for application
towards the Senior Liabilities;
(b) if and to the extent that the other Beneficiaries are not entitled to
claim, enforce, prove, file claims or proofs, or take proceedings for
the Subordinated Liabilities, each Shareholder will do so in good time
as reasonably requested by the Agent and the other Beneficiaries;
(c) any payment or distribution of any kind or character, whether in cash,
securities, or other property which is payable or deliverable upon or
with respect to the Subordinated Liabilities or any part thereof to
any Shareholder by the Borrower shall be held in trust by such
Shareholder for the benefit of the other Beneficiaries and shall
forthwith be paid or delivered directly to the Agent for application
against the Senior Liabilities until the Senior Liabilities have been
fully paid and satisfied;
(d) if the trust in paragraph (c) above fails or cannot be given effect
to, such Shareholder (so as to bind any agent or trustee on its
behalf) will, upon demand, pay an amount equal to such payment or
distribution to the Agent for application towards the Senior
Liabilities until the Senior Liabilities have been fully paid and
satisfied; and
(e) the trustee, liquidator, assignee or other person distributing the
assets of the Borrower or their proceeds shall, and is hereby directed
to, pay distributions on the Subordinated Liabilities direct to the
Agent until the Senior Liabilities are irrevocably paid in full.
8. ENFORCEMENT BY THE SHAREHOLDERS
8.1 Unless the Instructing Group has previously consented thereto in writing no
Shareholder will:
10
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000, 000.00
(i) demand or accelerate any of the Subordinated Liabilities or otherwise
declare any of the Subordinated Liabilities prematurely payable for any
reason whatsoever;
(ii) enforce the Subordinated Liabilities by execution or otherwise;
(iii) petition for (or vote in favor of any resolution for) or initiate or
support or take any steps with a view to any insolvency, liquidation,
reorganization, administration or dissolution proceedings or any voluntary
arrangement or assignment for the benefit of creditors or any similar
proceedings involving the Borrower, whether by petition convening a
meeting, voting for a resolution or otherwise.
9. ASSIGNMENT OF CLAIM
9.1 No Shareholder will assign or transfer to any person the whole or any part
of the Subordinated Liabilities or any interest therein otherwise than to the
Beneficiaries in respect of the Loan Agreement.
10. CONTINUING AGREEMENT
10.1 The subordination effected by this Agreement shall continue to apply in
respect of the Subordinated Liabilities notwithstanding any intermediate payment
in whole or in part of the Senior Liabilities.
11. WAIVER OF DEFENSES
11.1 The subordination effected by this Agreement and the obligations of each
of the Borrower and the Shareholders hereunder shall remain in full force and
effect without regard to, and shall not be impaired or affected by:
(i) any time or indulgence granted to or composition with the Borrower, the
Shareholders or any other person; or
(ii) the taking, variation (no matter how fundamental or extensive),
compromise, renewal or release of, or refusal or neglect to perfect or
enforce, any rights, remedies or securities against or granted by the
Borrower, the Shareholders or any other person; or
(iii) any legal limitation, disability, incapacity or other circumstances
relating to the Borrower, the Shareholders or any
11
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000, 000.00
other person or, any amendment to or variation of the terms of any
document or security; or
(iv) any other act, omission or circumstances, whether or not the Borrower or
the Shareholders shall have notice or knowledge thereof.
12. CHARGING OF THE SHARES
12.1 In consideration of the Lenders at the request of the Shareholders making
and continue to make available the Facility to the Borrower each Shareholder
hereby irrevocably covenants and undertakes that upon written notification from
the Agent, it shall forthwith execute in favor of the Agent the Memorandum of
Deposit and such other relevant documents as the Agent may prescribe to enable
each of the Shareholders to create a fixed charge over their respective portion
of the Shares in favor of the Agent as trustee for the Beneficiaries as security
for the Facility and all expenses incurred in connection with the above shall be
borne solely by the Borrower.
12.2 In connection with the Shareholders' covenant and undertaking stipulated in
Clause 12.1 above, each Shareholder shall deposit the share certificates of
its/his portion of the Shares together with the corresponding duly executed
registrable transfer form thereof with the Agent who shall hold the same as
stakeholder.
13. COVENANTS
13.1 The Borrower and each Shareholder shall obtain, comply with the terms of
and do all that is necessary to maintain in full force and effect all
authorizations, approvals, licenses and consents required in or by the laws and
regulations of Malaysia to enable it lawfully to enter into and perform its
obligations under this Agreement or to ensure the legality, validity,
enforceability or admissibility in evidence in Malaysia.
14. NOTICES
14.1 Each communication to be made hereunder shall be made in writing but,
unless otherwise stated, may be made by telex, facsimile or letter.
14.2 Any communication or document to be made or delivered by one person to
another hereunder shall (unless such person has by fifteen
12
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000, 000.00
days' written notice to the Agent) specified another address, person or
department be made or delivered to such other person at the address and marked
for the attention of the person and/or the department identified with its
signature to the Loan Agreement or, in the case of a Shareholder, hereunder and
shall be deemed to have been delivered (i) in the case of any communication made
by telex, on the date of transmission with confirmed answerback, (ii) in the
case of any communication made by facsimile, when transmission thereof is
confirmed by an activity report stating the correct number of pages sent and
that such transmission is error free (or equivalent) or (iii) in the case of any
communication made by letter, when left at that address or (as the case may be)
five (5) days after the same has been deposited in the post first class postage
prepaid in an envelope addressed to it at that address Provided that any
communication or document to be made or delivered to the Agent shall be
effective only when received by the Agent.
15. ASSIGNMENT/TRANSFER
15.1 The Agent shall be at liberty to assign and transfer this Agreement and the
costs and expenses of the Agent and incidental to such assignment or transfer
shall be paid by the Borrower and any statement therein of the amount due to the
Agent under or by virtue of this Agreement shall be conclusive and binding for
all purposes against the Borrower save for manifest error.
15.2 The Shareholders and the Borrower shall not be entitled to assign or
transfer all or any of its rights, benefits and obligations hereunder without
the prior written consent of the Instructing Group obtained through the Agent.
15.3 Any Lender may, at any time, assign all or any of its rights and benefits
hereunder or transfer in accordance with Clause 15.5 all or any of its rights,
benefits and obligations hereunder to any financial institution provided that at
the same time it assigns or, as the case may be, transfers an equal portion of
its rights, benefits and obligations under the other Loan Documents to the same
financial institution.
15.4 If any Lender assigns all or any of its rights and benefits hereunder in
accordance with Clause 15.3, then, unless and until the assignee has agreed with
the Agent and the other 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,
13
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
the Agent and the other 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.
15.5 If any Lender wishes to transfer all or any of its rights, benefits and/or
obligations hereunder as contemplated in Clause 15.3, then such transfer may be
effected by the delivery to the Agent of a duly completed and duly executed
Transfer Certificate in which event, on the later of the Transfer Date specified
in such Transfer Certificate and the fifth business day after (or such earlier
business day endorsed by the Agent on such Transfer Certificate falling on or
after) the date of delivery of such Transfer Certificate to the Agent:
(i) to the extent that in such Transfer Certificate the Lender party thereto
seeks to transfer its rights, benefits and obligations hereunder, the
Shareholders, the Borrower and such Lender shall be released from further
obligations towards one another hereunder and their respective rights
against one another shall be cancelled (such rights, benefits and
obligations being referred to in this Clause 15.5 as "discharged rights
and obligations");
(ii) the Shareholders, the Borrower and the Transferee party thereto shall
assume obligations towards one another and/or acquire rights against one
another which differ from such discharged rights and obligations only
insofar as the Shareholders, the Borrower and such Transferee have assumed
and/or acquired the same in place of the Chargor and such Lender; and
(iii) the Agent such Transferee and the other Beneficiaries shall acquire the
same rights and benefits and assume the same obligations between
themselves as they would have acquired and assumed had such Transferee
been an original party hereto as a Lender with the rights, benefits and/or
obligations acquired or assumed by it as a result of such transfer.
16. DISCLOSURE
16.1 The Agent may disclose to any actual or potential assignee, to any person
who may otherwise enter into contractual relations with the Agent and the other
Beneficiaries in relation to this Agreement or to any governmental agency or
authority requiring the same such information about any Shareholder as the Agent
shall consider appropriate.
14
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
17. INDEMNITY
17.1 The Shareholders each hereby jointly and severally undertake to indemnify
the Agent and the other Beneficiaries from and against any loss or expense,
including legal
fees, which it may sustain as a consequence of any default by any Shareholder in
the performance of any of the obligations expressed to be assumed by it under
this Agreement.
18. GOVERNING LAW AND JURISDICTION
18.1 This Agreement shall be governed by and construed in accordance with the
laws of Malaysia.
18.2 The Borrower and each Shareholder irrevocably agrees that the Courts of
Malaysia shall have jurisdiction to hear and determine any suit, action or
proceedings and to settle any disputes, which may arise out of or in connection
with this Agreement and, for such purpose, irrevocably submits to the
jurisdiction of such courts.
18.3 IWC shall at all times maintain an agent for service of process in
Malaysia. Such agent shall be:
Name: M/S ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ASSOCIATES
Address: ▇▇. ▇▇-▇▇, ▇▇▇ Floor, Bangunan Ming
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
and IWC undertakes not to revoke the authority of the above agent and if, for
any reason, such agent or any successor agent no longer serves as agent of IWC
to receive service of process. IWC shall promptly appoint another such agent and
advise the thereof Agent.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed on the day and in the year first above written.
15
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000, 000.00
The execution of this Agreement by )
▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
as attorney (P.A. No. 45465/95) ) /s/
for and on behalf of )
INTERNATIONAL WIRELESS )
COMMUNICATIONS INC. )
as a Shareholder in the presence of:- )
/s/
LOO YEN NI
Advocate & Solicitor
Kuala Lumpur
Correspondence Particulars
Address : c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ASSOCIATES
▇▇. ▇▇-▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
16
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000, 000.00
The execution of this Agreement by )
SHUBILA HOLDINGS )
SDN. BHD. as a Shareholder is ) [SEAL]
duly effected in a manner )
authorised by its constitution under )
the Seal of SHUBILA HOLDINGS )
SDN. BHD. which said ▇▇▇▇ is )
hereunto duly affixed on this 19th )
day of September, 1995 )
in the presence of:- )
/s/ Director
------------------------------------
/s/ Director/Secretary
------------------------------------
Correspondence Particulars
Address : 2nd Floor, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
17
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000, 000.00
The execution of this Agreement by )
▇▇▇▇▇▇▇ SDN. BHD. )
as a Shareholder is duly effected in )
a manner authorized by its ) [SEAL]
constitution under the Seal of )
▇▇▇▇▇▇▇ SDN. BHD., which )
said ▇▇▇▇ is hereunto duly affixed )
affixed on this 19th day of September, )
1995 in the presence of:- )
/S/ Director
-------------------------------------
/s/ Director/Secretary
-------------------------------------
Correspondence Particulars
Address : 2nd Floor, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
18
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000, 000.00
The execution of this Agreement by )
the Borrower, SYARIKAT )
TELEFON WIRELESS (M) )
SND. BHD. is duly effected in a )
manner authorised by its constitution )
under the Seal of the Borrower, ) [SEAL]
SYARIKAT TELEFON )
WIRELESS (M) SDN. BHD. )
which said ▇▇▇▇ is hereunto duly )
affixed on this 19th day of )
September, 1995 )
in the presence of:- )
/s/ Director
------------------------------------
/s/ Director/Secretary
------------------------------------
19
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000, 000.00
THE AGENT
SIGNED BY )
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ )
TELEFON WIRELESS (M) )
for and on behalf of ) /s/
PERMATA MERCHANT BANK )
BERHAD as Agent on the 2nd )
day of October, 1995 )
/s/
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
ADVOCATE AND SOLICITOR
KUALA LUMPUR
20
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000, 000.00
APPENDIX A
DETAILS OF SUBORDINATED LIABILITIES
EXISTING AS AT THE DATE OF THIS AGREEMENT
ITEM 1
Subordinated Liabilities owed to the Shareholders:
NAME AMOUNT OF SUBORDINATED LIABILITIES
ITEM 2
Shareholdings of the Shareholders:
NAME SHAREHOLDINGS NO. OF SHARES
SHUBILA 57% 26,418,000
LARANDA 11% 5,000,000
IWC 32% 15,000,000
21
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000 000.00
APPENDIX B
MEMORANDUM OF DEPOSIT OF STOCK AND
NON-MARKETABLE SECURITIES
To: PERMATA MERCHANT BANK BERHAD
27th Floor, Menara Boustead
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I/We [ ] of [ ] refer to the loan agreement dated
the day of ,1995 (the "Loan Agreement") entered into between:
(1) SYARIKAT TELEFON WIRELESS (M) SDN. BHD. (the "Borrower");
(2) PERMATA MERCHANT BANK BERHAD (the "Agent");
(3) (i) [ ]; and
(ii) [ ],
(collectively the "Lenders"),
pursuant to which the Lenders have subject to the terms and conditions therein
contained granted and made available to the Borrower a term loan facility of
Ringgit Malaysia Ninety One Million (RM91,000,000) only (the "Facility").
I/We also refer to the shareholder's agreement dated the day of ,1995
(the "Shareholders' Agreement") entered into between (1) myself/ourselves and
the other shareholders of the Borrower (together the "Shareholders") (2) the
Borrower and (3) the Agent, wherein the Shareholders have agreed that in
consideration of the Lenders making available the Facility to the Borrower at
the Shareholders' request, each of the Shareholders shall upon written
notification from the Agent create a fixed charge over such shares in the
Borrower owed by each of the Shareholders respectively in favor of the Agent as
agent for the Beneficiaries (as hereinafter defined) as security for the
Facility.
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
In consideration of the above premises and [* further consideration to be
specified at the time of execution], the Chargor has executed this Memorandum of
Deposit in favor of the Agent as trustee for the Beneficiaries upon the
following terms and conditions.
1. DEFINITIONS
1.1 Words and expressions defined in the Loan Agreement bear, except where the
context otherwise requires or as otherwise specified, the same meanings
when used herein.
1.2 The following words and expressions, when used in this Memorandum bear the
meanings respectively set opposite them:
Additional Interest the additional interest payable by the Borrower
pursuant to Clause 12.5(a) of the Loan Agreement
due to failure to pay any Indebtedness when so
payable;
Actual Security Value the Total Value of the Mortgaged Securities, or,
where the Mortgaged Securities are denominated in
a currency other than Ringgit Malaysia, the
equivalent in Ringgit Malaysia for the time being
as determined by the Agent, of such Total Value;
Additional Security such further Qualifying Securities as are required
so that the Actual Security Value will, following
the making of the relative Advance, as the case
may be, equal or exceed the Required Security
Value and thereafter such Qualifying Securities
as, by virtue of Clause 6.1 below, are for the
time being subject to this Memorandum and includes
all and any securities, rights, moneys and
property whatsoever which may at any time after
the date hereof be derived from, accrued on or
offered in respect of any Additional Securities or
any other Qualifying Securities charged in
substitution therefor pursuant
_____________________
* [To be inserted]
23
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
then in existence, whether by way of redemption,
exchange, conversion, rights, bonus, capital
reorganization or otherwise howsoever;
Advance the amount of each drawdown made or to be made to
the Borrower pursuant to and under the Facility;
Beneficiaries the Arranger, the Agent and the Lenders;
Chargor [ ] of [
] and includes its representatives,
successors-in-title;
Event of Default any of the events or states of affairs specified
in clause 13.1 in the Loan Agreement;
Indebtedness at any time, the aggregate of all sums advanced
from time to time by the Lenders to the Borrower
together with interest thereon and all other
monies payable to the Beneficiaries or any of them
pursuant to, upon and under the Loan Documents
(whether in respect of principal, interest,
Additional Interest, fees, commission, costs,
expenses, indemnity or otherwise);
Loan Agreement the loan agreement dated the day of
, 1995 between (1) the Borrower; (2) the Agent;
and (3) the Lenders and includes any subsequent
renewals and variations thereof permitted by the
Agent and the Lenders;
Mortgaged Securities the Originally Charged Shares and the Additional
Security, as well as any other Qualifying
Securities which are charged in addition to or in
substitution for any Mortgaged Securities for the
time being pursuant hereto and includes all and
any securities rights moneys and property
whatsoever which may at any time after
24
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
the date hereof be derived from, accrued on or be
offered in respect of the Originally Charged
Shares and Additional Security so charged or any
other Mortgaged Securities then in existence,
whether by way of redemption, exchange,
conversion, rights, bonus, capital reorganization
or otherwise howsoever;
Originally Charged those Shares as are charged pursuant to this
Shares Memorandum which are more particularly described
in the Schedule hereto;
Power of Attorney the Power of Attorney granted by the Chargor to
the Agent pursuant to Clause 3 hereof;
Qualifying Securities securities acceptable to the Agent, which are in
the absolute beneficial ownership of the Chargor,
free from any Security Interest;
Required Security Value the required security value as may be determined
by the Lenders from time to time at their absolute
discretion;
Security Interest any mortgage, charge, pledge, lien, right of set-
off or any security interests howsoever created or
arising;
Total Value the total value of the Mortgaged Securities as
determined by an independent firm of auditors of
merchant bankers appointed by the Agent at their
absolute discretion from time to time.
1.3 The headings in this Memorandum are inserted for convenience only and shall
be ignored in construing the provisions of this Memorandum.
1.4 Words denoting the singular includes the plural number and vice versa.
25
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
1.5 If the name of the Chargor hereinbefore inserted is that of a limited
company or other corporation any of the provisions herein contained which
are primarily and literally applicable to the case of a single and
individual person only shall be construed and take effect so as to give the
Agent hereunder a security for the money owing from that limited company or
corporation as identical or analogous as may be with or to that which would
have been given for the money owing from a single individual if the Chargor
had been a single individual and any money shall be deemed to be so owing
notwithstanding any defect informality or insufficiency in the borrowing
powers of the Chargor or in the exercise thereof which might be defense as
between the Chargor and the Agent.
1.6 References to clauses, sub-clauses and paragraphs are to be construed as
references to clauses, sub-clauses and paragraphs of this Memorandum.
1.7 References to any statute or legislation includes any statutory amendment
or re-enactment thereof.
2. CHARGE
2.1 As a continuing security for the payment of the Indebtedness and the
performance by the Borrower of its obligations under the relevant Loan
Documents and the Chargor of its obligations under this Memorandum, the
Chargor as beneficial owner hereby charges by way of mortgage to the Agent
all its rights, title and interest in and to:-
(a) the Originally Charged Shares; and
(b) the Additional Security,
as well as any other Qualifying Securities from time to time charged in
addition to and or in substitution for any of the securities referred to in
(a) and (b) above.
2.2 The Chargor shall deliver or procure that there are delivered to or to
order of the Agent all certificates or other documents of title in relation
to the Mortgaged Securities together with duly executed blank transfers in
respect thereof.
26
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
2.3 The charge hereby created shall be in addition to, and shall not merge
with, or in any way prejudice, any other Security Interest or right which
the Agent and the other Beneficiaries may now, or at any time hereafter,
hold or have, as against the Chargor or any other person or property, in
respect of the Indebtedness, including, without limitation, any liens to
which the Agent may become entitled on the certificates or other documents
of title relating to any of the Mortgaged Securities.
3. POWER OF ATTORNEY
3.1 In consideration of the aforesaid premises the Chargor hereby irrevocably
and by way of security for the payment by the Chargor of the Indebtedness
and the performance by the Borrower of its obligations under the relevant
Loan Documents and the Chargor of its obligation under this Memorandum
appoints the Agent or any of its directors or any of its officers (from
time to time duly appointed or authorized in writing by the Agent for the
purposes herein and the certificate of the Agent of such appointment shall
be final and conclusive) to be the Chargor's attorney or attorneys
(hereinafter collectively called "the Attorney") for or in the name of the
Chargor or through the Chargor's nominee or otherwise in the name of the
Chargor to do and execute the following acts and deeds or any of them as
and when the Attorney shall think fit:
(a) to demand, sue for and receive from any person, registered company,
corporation, government or other body politic all dividends,
interests, bonuses or any other sums that may become due to the
Chargor in respect of any of the Mortgaged Securities and likewise any
capital sum represented by or complied in any of the Mortgaged
Securities as and when the same shall respectively be payable or
repayable;
(b) for any such purpose to sign, endorse and execute all receipts,
dividend and interest warrants, cheques, releases, discharges,
reconveyances, or other deeds or documents whatsoever that may be
necessary or usual in the circumstances;
(c) to attend, vote at and otherwise take part in all meetings held in
connection with any company or corporation in relation to any of the
Mortgaged Securities and to sign proxies for the purpose of voting
thereat or for any other
27
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
purpose connected therewith as freely as the Chargor could do;
(d) out of any of the money of the Chargor in the Attorney's hands or
under the control of the Attorney to pay all calls that may lawfully
be made upon the Chargor or other expenses that may be incurred in
relation to any of the Mortgaged Securities and to give security for
the payment of the same;
(e) to receive all notices, reports, accounts, circulars and other
documents which are sent to the registered holders of the Mortgaged
Securities;
(f) to receive or accept service of, or agree to waive, all or any notices
or to agree to accept short notice for and to attend all or any
meetings or class meetings of the registered holders of the Mortgaged
Securities and exercise all voting and other rights and powers which
may at any time be exercisable in respect thereof at any such
meetings;
(g) to transfer or procure the transfer of all or any of the Mortgaged
Securities into the name of the Attorney or its nominee or nominees or
the name of any purchaser of the Mortgaged Securities (and for such
purpose to complete, make and/or execute any form or forms of transfer
in respect of any thereof) and to execute and deliver all other deeds
or documents and to do all acts and things which the Attorney may
consider necessary or advisable to perfect or to give proper effect to
the intent and purpose of this Memorandum, or to procure the
registration of any transfer of the Mortgaged Securities in the name
of any such transferee;
(h) to sell, transfer, exchange or otherwise dispose of all or any part of
the title to and interest in and any rights attaching to all or any of
the Mortgaged Securities for such consideration (which may comprise or
include shares or debentures) and upon such terms and generally in
such manner as the Attorney may in its absolute discretion think fit
and for this purpose to enter into any contract for such sale or
disposition on such terms (including the giving of such warranties and
indemnities) and subject to such conditions as the Attorney shall in
its absolute discretion think fit;
28
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(i) to receive or authorize the receipt of the consideration for such
sale, transfer, exchange or disposition as is referred to in paragraph
(h) above and to apply any proceeds thereof in or towards the
discharge of the Indebtedness in the manner stipulated in this
Memorandum;
(j) to execute and deliver all and any other or further instruments of
charge and other documents that the Chargor is at any time and from
time to time obliged to execute pursuant to this Memorandum, and to
effect all such registrations and do all such other things as may be
necessary or as may seem to the Attorney advisable in order properly
to give effect thereto, and to execute all such documents and to do
all such other acts and things in relation to all or any stock or
shares the subject of any such further or other charges as the
Attorney is by this instrument entitled or empowered to execute or do
in relation to this Memorandum;
(k) to assent (if it seems to the Attorney necessary or desirable) to any
arrangement modifying the Chargor's rights;
(l) generally to exercise all rights and privileges and perform all duties
which now or hereafter may appertain to the Chargor in relation to any
of the Mortgaged Securities;
(m) to cause this Power of Attorney to be registered at the registry of
the High Court of Malaya and in the books of any company or
corporation or elsewhere as may be necessary or desirable;
(n) to disclose to any person or party who may be concerned with the
exercise of the powers hereby conferred, including any purchaser or
potential purchaser of any of the Mortgaged Securities the terms of
this Memorandum and such other documents or information as may be
related thereto or to the exercise of the Agent's powers hereunder or
to the Mortgaged Securities where such disclosure is deemed by the
Attorney to be necessary for or expedient to the exercise of the
powers hereunder;
(o) to appoint and at the Attorney's discretion to remove from time to
time any substitute for or agent under the Attorney
29
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
in connection with any of the purposes aforesaid upon such terms as
the Attorney shall think fit.
3.2 The Chargor hereby declares that this Power of Attorney shall be
irrevocable so long as this Memorandum shall remain in effect or so long as
the Borrower shall remain under any liability (contingent or otherwise)
under the Loan Documents and or in respect of the Facility.
3.3 The Chargor hereby further declares that the Attorney shall not be held
responsible or liable to the Chargor for any loss or damage howsoever and
whatsoever arising as a result of any act neglect omission of the Attorney
arising out of the exercise of the powers granted to the Attorney herein
(save and except for any loss or damage caused by the gross negligence of
the Attorney) and the Chargor shall keep the Attorney indemnified against
all costs expenses and charges which the Attorney may incur in the exercise
of the powers aforesaid and the provisions of this paragraph shall continue
in force notwithstanding the discharge by the Chargor of all its
obligations under this Memorandum.
3.4 The Chargor hereby further declares that all and every receipt(s), deed(s),
matter(s) and thing(s) which shall be by the Attorney given, made, executed
or done for the aforesaid purposes shall be as good, valid and effectual to
all intents and purposes whatsoever as if the same had been signed, sealed,
delivered, given or made or done by the Chargor itself.
3.5 The Chargor hereby undertakes at all times to ratify whatsoever the
Attorney shall lawfully do or cause to be done in or concerning the
premises by virtue of this Power of Attorney.
4. CALLS
The Chargor shall forthwith make payment of all calls or other amounts which may
be or become due in respect of the Mortgaged Securities whether or not the
Chargor is the registered holder. The Agent shall not under any circumstance be
liable for such calls or other payments whether or not the Agent or its nominee
is a registered holder of any or all of such Mortgaged Securities. If the
Chargor shall fail to make any such payment, the Agent may make payment of the
amounts of any such calls or other amounts on behalf of the Chargor or such
registered holder. In such event, the Chargor shall forthwith on
30
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
demand indemnify the Agent against each and every such payment, together with
interest thereon (as well after as before judgment) from the date of payment by
the Agent until the date of repayment by the Chargor under this indemnity at the
rate or rates specified in the Loan Agreement.
5. EXERCISE OF RIGHTS
5.1 Unless an Event of Default shall have occurred and be continuing, the
Chargor shall be entitled to receive all income derived from the Mortgaged
Securities and to exercise all rights attaching to any part thereof as he
may think fit, but shall deliver to the Agent forthwith upon receipt copies
of all notices, reports, accounts and circulars issued to the registered
holders of the Mortgaged Securities (unless the Agent or its nominee is the
registered holder).
5.2 The Chargor will procure that, following the occurrence of any Event of
Default and whilst any Event of Default is continuing, all income derived
from the Mortgaged Securities shall be paid to or to the order of the
Agent, (and if received by the Chargor, the Chargor shall forthwith pay the
same to the Agent) and any such income received by the Agent shall be
retained by the Agent in a cash collateral deposit account maintained for
that purpose until:
(a) the Event of Default shall have been remedied to the satisfaction of
the Agent whereupon any such income shall subject to no other Event of
Default having occurred and be continuing and if the Agent and the
Lenders so agrees, be released to the Chargor;
(b) payments in full by the Chargor of the Indebtedness; or
(c) recall and or termination of the Facility pursuant to the terms of the
Loan Documents.
5.3 The security constituted by this Memorandum and any further or other
security constituted pursuant hereto, shall become enforceable immediately
on the occurrence of any Event of Default, and the Agent shall be entitled
then, and at any time thereafter, and without prior notice to the Chargor
to sell or otherwise dispose of all the Chargor's title to and interest in
the Mortgaged Securities for such consideration (which may
31
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
comprise or include shares or debentures), upon such terms and generally in
such manner as the Agent may, in its absolute discretion think fit and so
that the Agent shall be entitled as against the Chargor, to retain and
apply the proceeds of any sale or disposal and all and any amounts then
standing to the credit of any cash collateral deposit account pursuant to
Clause 5.2 above, in or towards the discharge of the Indebtedness as the
same fall due, in such manner as the Agent may in its absolute discretion
think fit (and for that purpose to effect any currency conversion that the
Agent may consider appropriate) with any surplus being paid to the Chargor
or other person entitled thereto. The Agent shall not be liable for any
loss howsoever arising out of such sale.
5.4 The rights, powers and authorities of the Agent pursuant to the Power of
Attorney hereunder shall be in addition to, and shall not in any way
prejudice or affect the rights and powers of the Agent under this
Memorandum; notwithstanding any other provision herein contained the Agent
and or any substitute or agent of the Agent under the said Power of
Attorney may at any time prior to the discharge of all moneys hereby
secured without notice to the Chargor transfer the Mortgaged Securities
into the name of the Agent or its nominees and the Chargor shall upon
demand and at the Chargor's cost execute and do all such transfers acts
assurances or things as the Agent may require for assuring and vesting the
full legal title in the Mortgaged Securities or any of them to and in the
name(s) of the Agent or its nominees PROVIDED ALWAYS that save as aforesaid
and as is otherwise stated herein neither the Agent nor any of its
substitutes or agents under the Power of Attorney will exercise any of the
other rights, powers or authorities conferred by the said Power of Attorney
(other than powers of substitution and appointment of agents and the powers
conferred in paragraph (o) of Clause 3.1 of the said Power of Attorney)
unless and until an Event of Default has occurred, whereupon and whereafter
the Agent (or its substitute or agent) shall be entitled to exercise all
and any such rights, powers and authorities as it may in its absolute
discretion think fit.
6. FURTHER SECURITY
6.1 If at any time any Mortgaged Security shall cease to be a Qualifying
Security or the Agent shall determine the Actual Security Value is less
than the Required Security Value then the Agent may, at any time whilst
such circumstances are continuing,
32
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
require the Chargor to provide to the Agent further and other security in
the form of further Qualifying Securities, and to execute and deliver to
the Agent or procure the execution and delivery to the Agent by any nominee
of such instrument or instruments of charge in favor of the Agent in
relation thereto, in such form and on such terms, as the Agent may require,
so that such shares and securities become part of the Additional
Securities.
6.2 In the event of the Agent requiring further security pursuant to Clause 6.1
above, the Chargor will do all such acts and things, and execute all such
further or other documents, as may be necessary or as the Agent may require
in order to constitute, render enforceable or perfect such security and to
protect the rights of the Agent in relation thereto, and in particular
will, within fourteen (14) days of notice of such requirement, identify,
and offer to the Agent further Qualifying Securities as aforesaid to be
charged, having an aggregate Actual Security Value which is not less than
the difference between the Required Security Value and the Actual Security
Value of the existing Mortgaged Securities already charged and execute all
and any instruments of charge and other documents relating thereto as
required and forthwith upon being so requested by the Agent.
6.3 Any securities which cease for any reason to be acceptable to the Agent
shall cease to be Qualifying Securities.
6.4 Any determination of the Agent as to the Actual Security Value of, or
attributable to, all or any part of the Mortgaged Securities and any
further security provided (or proposed to be provided) pursuant to this
Clause 6 shall, in the absence of manifest error, be conclusive.
7. REASSIGNMENT
7.1 In the event of any Mortgaged Securities ceasing to be Qualifying
Securities (the "Disqualified Securities") the Agent shall, upon the
provision of other Qualifying Securities in accordance with Clause 6 having
in the aggregate an Actual Security Value not less than the value, so
assessed, of the Disqualified Securities on the last day on which they are
accepted by the Agent, release the Disqualified Securities from this
Memorandum.
33
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
7.2 Upon payment in full of the Indebtedness in accordance with the terms
hereof and of the Loan Documents and upon there being no further moneys to
be lent by the Lenders pursuant to the Loan Agreement the Agent will, at
the request and cost of the Chargor, release the Mortgaged Securities then
charged hereunder from the charge hereby created and transfer the same to
the Chargor or as the Chargor may direct in writing.
8. Rights to resort to Other Securities
The Agent shall at any time be at liberty (without being bound to do so) to
resort for the benefit of the Beneficiaries to any other means of payment at any
time and in any order as it may think fit without thereby diminishing the
Chargor's liability hereunder and the Agent may exercise its rights hereunder
for the payment of the amount hereby intended to be secured either after
resorting to other means of payment or at any time notwithstanding that other
means of payment have not been resorted to.
9. Representations and Warranties
9.1 The Chargor hereby represents and warrants to and undertakes with the Agent
follows:-
(a) the Chargor is duly incorporated and validly existing under the laws
of [* specify the country of incorporation];
(b) in the event the Chargor is a corporation incorporated in Malaysia,
the Chargor is an exempt private company and by virtue thereof, the
creation of this Memorandum has not contravened Section 133A of the
Companies Act, 1965 in any way;
(c) the documents which contain or establish the Chargor's constitution
incorporate provisions which authorize, and all necessary action has
been taken to authorize, and all authorizations of any governmental or
other authority have been duly and unconditionally obtained and are in
full force and effect which are required to authorize, the Chargor to
own the Mortgaged Securities, carry on its business as they are now
being conducted, and sign and deliver, and perform the transactions
contemplated in this Memorandum and the
___________________________
* [To be inserted]
34
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
Power of Attorney and to enable the Agent to exercise the rights,
powers and authorities hereby and thereby vested in the Agent;
(d) it is in the interest of the Chargor as a related company to assist
the Chargor in the manner herein provided;
(e) neither the signing and delivery of this Memorandum and the Power of
Attorney nor the performance of any of the transactions contemplated
in them will:
(i) contravene or constitute a default under any provision contained
in any agreement, instrument, law, judgment, order, license,
permit or consent by which the Chargor or any of its assets is
bound or affected; or
(ii) cause any limitation on its powers whether imposed by or
contained in any document which contains or establishes its
constitution or in any law, order, judgment, agreement,
instrument or otherwise, to be executed;
(iii)result in the creation or imposition of any obligation to
create or impose, any mortgage, lien, pledge or charge on any of
the Chargor's assets pursuant to the provisions of any mortgage,
contract or other undertaking or instrument;
(f) this Memorandum and the Power of Attorney when signed will constitute
the legal, valid and binding obligations of the Chargor in accordance
with their terms;
(g) the Chargor is the beneficial owner of and has title to the Mortgaged
Securities;
(h) the property and rights of the Chargor to the Mortgaged Securities is
not affected by any Security Interest, and the Chargor is not a party
to nor is it nor any of the property and rights hereby mortgaged bound
by, any order, agreement or instrument under which the Chargor is, or
in certain events may be, required to create, assume or permit to
arise any Security Interest;
35
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(i) no event has occurred which constitutes, or which with the giving of
notice and/or the lapse of time and/or a relevant determination would
constitute, a contravention of, or default under, any agreement or
instrument by which the Chargor or any of its assets is bound or
affected, being a contravention or default which might either have an
averse effect on the business, assets or condition of the Chargor or
adversely affect its ability to observe or perform its obligation
under this Memorandum and the Power of Attorney;
(j) no litigation, arbitration or administrative proceeding or claim which
might by itself or together with any other such proceedings or claims
either have an adverse effect on any of the Chargor's business, assets
or condition or adversely affect its ability to observe or perform its
obligations under this Memorandum and the Power of Attorney is
presently in progress or pending or, to the best of the knowledge,
information and belief of the Chargor, threatened against the Chargor
or any of its assets;
(k) no extraordinary circumstance or change of law or other government
action shall have occurred which shall make it improbable that the
business of the Chargor can be carried out or that the Chargor will be
able to observe and perform the covenants and obligations on its part
to be performed and observed under this Memorandum and the Power of
Attorney;
(l) no violation of any provisions of legislation, Court orders, judgment;
and others have been committed by the Chargor;
(m) no information furnished by the Chargor in connection with this
Memorandum contains any untrue statement or omits to state any fact
the omission of which makes the statements therein, in the light of
the circumstances under which they were made, misleading, and all
expressions of expectation, intention, belief and opinion contained
therein were honestly made on reasonable grounds after due and careful
inquiry by the Chargor;
(n) the Chargor has fully disclosed in writing to the Agent all facts
relating to the Chargor which the Chargor knows or should reasonably
know and which are material for disclosure
36
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
to the Agent in the context of this Memorandum and the Power of
Attorney.
9.2 The Chargor acknowledges that the Beneficiaries have, at the request of the
Chargor accepted this Memorandum and the Power of Attorney on the basis of,
and in full reliance on, the aforesaid representations and warranties,
which will be correct and complied with in all material respects so long
as, this Memorandum, the Power of Attorney and the other Loan Documents
shall remain in force.
10. Miscellaneous
10.1 No provision of any law restricting a mortgagee's or chargee's right of
consolidation of mortgages shall apply to this Memorandum or to any further
or other charge created pursuant hereto.
10.2 The Chargor shall and hereby undertakes to fully indemnify the Agent and
the other Beneficiaries from and against any expense, loss, damage or
liability (as to the amount of which the certificate of the Agent and the
other Beneficiaries shall, in the absence of manifest error, be conclusive)
which it may incur as the consequence of the occurrence of an Event of
Default or otherwise in connection with this Memorandum and/or other Loan
Documents. Without prejudice to its generality, the foregoing indemnity
shall extend to any interest, fees and other sums whatsoever paid or
payable on account of any funds borrowed in order to carry any unpaid
amount and to any loss (including loss of profit), premium, penalty or
expense which may be incurred in liquidating or employing deposits from
third parties including the expenses incurred by the Agent in the
appointment of the independent firm of auditors or merchants bankers to
determine the Total Value.
10.3 (a) Every notice or demand under this Memorandum shall be in writing but
may be given or made by telex, telegram, facsimile or cable.
(b) Any notice required to be given by the Chargor shall, if given by
telex, be subsequently confirmed by letter posted or delivered as soon
as practicable thereafter.
37
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
(c) Subject as aforesaid any notice or certificate required to be given by
the Chargor to the Agent hereunder shall be in writing and shall be
addressed to the Agent at 27th Floor, Menara Boustead, ▇▇. ▇▇, ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ or at such other address as may from
time to time be notified by the Agent to the Chargor for that purpose.
Any notice or certificate required to be given to the Chargor
hereunder shall be given by telex, facsimile, telegram, cable or
letter addressed to the Chargor at its address hereinbefore specified
or such other address as may from time to time be notified by the
Chargor to the Agent for the purpose.
(d) Any notice or certificate delivered personally shall be deemed to be
given at the time of such delivery. Any notice or certificate
dispatched by first class inland letter shall be deemed to have been
given 48 hours after posting. Any notice or certificate transmitted by
telex or facsimile shall be deemed to have been given at the time of
transmission and any notice or certificate sent by cable shall be
deemed to have been given 24 hours after dispatch. All notices or
certificates given hereunder by ▇▇▇▇▇, facsimile, telegram or cable
shall be subsequently confirmed by letter posted or delivered as soon
as practicable thereafter.
10.4 The security liabilities and or obligations under this Memorandum shall
continue to be valid and binding for all purposes whatsoever
notwithstanding any change by amalgamation reconstruction or otherwise
which may be made in the constitution of the Agent and it is expressly
declared that no change of any sort whatsoever in relation to or affecting
the Chargor shall in any way affect the security, liabilities and or
obligations created hereunder.
10.5 This Memorandum shall be governed by and construed in accordance with the
laws of Malaysia and the service of any writ or summons or any legal
process in respect of any such action or proceeding may be effected on the
Chargor by the Agent by forwarding a copy of the writ or summons statement
of claim or other legal process by prepaid registered post to its address
as indicated herein as the case may be.
10.6 Any term condition stipulation provision covenant or undertaking of this
instrument which is illegal, prohibited or unenforceable
38
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
in any jurisdiction shall as to such jurisdiction be ineffective to the
extent of such illegality, voidness, prohibition or unenforceability
without invalidating the remaining provisions hereof and any such
illegality, voidness, prohibition or unenforceability in any jurisdiction
shall not invalidate or render illegal, void or unenforceable any such term
condition stipulation provision covenant or undertaking in any other
jurisdiction.
10.7 This Memorandum is expressly intended to be and shall be a continuing
security for all moneys whatsoever now or from time to time owing by the
Chargor notwithstanding that the Chargor may at any time or times cease to
be indebted to the Agent and the other Beneficiaries for any period or
periods and notwithstanding any settlement of account or accounts.
10.8 No failure to exercise nor any delay in exercising on the part of the Agent
and the other Beneficiaries any right or remedy hereunder shall operate as
a waiver thereof nor shall any single or partial exercise of any right or
remedy prevent any further or other exercise hereof or the exercise of any
action right or remedy.
10.9 This Memorandum shall be binding on the representatives successors-in-title
of the Chargor and the successors-in-title and assigns of the Agent.
10.10The terms of the Loan Agreement shall where the context so permits and
unless repugnant to the context, apply to this Memorandum as if set out
herein.
11. Principal/Subsidiary Instruments
11.1 It is hereby agreed and declared that this Memorandum and the Loan
Agreement are instruments employed in one transaction namely to secure the
Indebtedness in an aggregate sum of Ringgit Malaysia Ninety One Million
(RM91,000,000) for principal only together with interest thereon and all other
monies payable under the Loan Agreement and the Security Documents to the Agent
and the Lenders and for the purpose of Section 4(3) of the Stamp Act 1949, the
Loan Agreement shall be deemed to be the principal instrument and this
Memorandum shall deemed to be the subsidiary instrument.
39
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
IN WITNESS WHEREOF the Chargor has executed this Memorandum this day
of , 1995.
The Common Seal of the above named )
▇▇▇▇▇▇▇, )
was hereunto duly affixed in )
accordance with its Constitution in )
the presence of: )
Director Director/Secretary
I, an Advocate and Solicitor of the High Court in
Malaya practicing at Kuala Lumpur hereby certify that on this day of
, 1995 the Common Seal of , was duly affixed to the above
written instrument in my presence in accordance with the regulations of the said
Company.
Witness my hand,
_________________________
40
Borrower : Syarikat Telefon Wireless (M) Sdn. Bhd.
Facility : Term Loan Facility of RM91,000,000.00
THE SCHEDULE HEREINBEFORE REFERRED TO
THE ORIGINALLY CHARGED SHARES
DESCRIPTION OF SHARE CERTIFICATE NO. NO. OF SHARES
SECURITY
AGREEMENT TO ALLOCATE RESPONSIBILITY
THIS AGREEMENT is made on November _________, 1996 between:
(1) INTERNATIONAL WIRELESS COMMUNICATIONS, INC. ("IWC");
(2) SHUBILA HOLDINGS SDN BHD ("Shubila"); and
(3) ▇▇▇▇▇▇▇ SDN BHD ("▇▇▇▇▇▇▇"),
(collectively, the "Shareholders").
WHEREAS :
(A) Each of the Shareholders is a party to the Collateral Agreement dated
_______, 1996 (the "Collateral Agreement") among the Shareholders, the
Borrower (as defined in the Collateral Agreement) and the Agent (as defined
in the Collateral Agreement).
(B) Clause 17.1 of the Collateral Agreement provides that the shareholders
shall jointly and severally indemnify the Agent and the other beneficiaries
(as defined in the Collateral Agreement) from and against any loss or
expense, including legal fees (collectively, "Liabilities"), suffered as a
result of the default by any Shareholder in performing its obligations
arising under the Collateral Agreement.
(C) The Shareholders now wish to allocate among themselves responsibility for
Liability resulting from defaults by Shareholders in performing their
obligations arising under the Collateral Agreement.
NOW THEREFORE IN CONSIDERATION of the above premises the parties hereto
agree as follows:
1. ALLOCATION OF RESPONSIBILITY
1.1 Each Shareholder shall be solely responsible for satisfying and Liability
resulting from (1) a breach by such Shareholder of any representation of
warranty by it in Clause 2.1, 2.2 or 2.3 of the Collateral Agreement or
(ii) any failure by such Shareholder to perform any obligation applicable
to it under Clause 5.1 (I), 5.1 (iii), 6.1, 7.1 (b), 7.1 (c), 8.1, 9.1,
12.1, 12.2, 13.1, 15.2 or 15.5 (ii).
1.2 If any Liability arises as a result of a breach of the obligations of the
Shareholders arising under Clause 5.2 (ii) of the Collateral Agreement:
(a) Any Shareholder that fails to provide its pro rata share of financial
assistance provided by Shareholders in order to comply with Clause 5.2 (ii)
of the Collateral Agreement shall first satisfy an amount of such Liability
equal to the difference between its pro rata share of such financial
assistance and the amount of any financial assistance actually provided by
such Shareholder.
(b) If any such Liability remains unsatisfied after the operation of Clause
1.2(a), each Shareholder shall satisfy its pro rata share of any such
remaining Liability.
For purposes of this Clause 1.2, a Shareholder"s pro rata share shall be
calculated based on the shares of capital stock of Borrower held by such
Shareholder pursuant to all form 24 of the Company and such pro rata share to be
calculated as the time of such breach.
2. INDEMNIFICATION
2.1 Each Shareholder shall indemnify the other Shareholders from any loss or
expense, including legal fees, which they may sustain as a result of any
default by such Shareholder in performing any of its obligations arising
under this Collateral Agreement.
3. OVERRIDE OF CLAUSE 17.1 OF COLLATERAL AGREEMENT
3.1 The obligations of the Shareholders arising under this Agreement shall
remain in full force and effect notwithstanding the obligations of the
Shareholders to jointly and severally indemnify the Agent and the other
Beneficiaries for Liabilities pursuant to Clause 17.1 of the Collateral
Agreement.
4. GOVERNING LAW AND JURISDICTION
4.1 This Agreement shall be governed by and construed in accordance with the
laws of Malaysia.
4.2 Each Shareholder irrevocably agrees that the courts of Malaysia shall have
jurisdiction to hear and determine any suit, action or proceedings and to
settle any disputes, which may arise out of or in connection with this
Agreement and for such purpose, irrevocably submits to the jurisdiction of
such courts save and except for IWC shall irrevocably submit to the non-
exclusive jurisdiction of the Courts of the State.
4.3 IWC shall at all times maintain an agent for service of process in
Malaysia. Such agent shall be:
Name :
Address :
and IWC undertakes not to revoke the authority of the above agent and if,
for any reason, such agent or any successor agent no longer serves as agent
of IWC to receive service of process. IWC shall promptly appoint another
such agent and advise the Agent thereof.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed on the day and in the year first above written.
The execution of this Agreement by )
▇▇▇ - ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ) /s/
as attorney (P.A. No. ) )
for and on behalf of )
INTERNATIONAL WIRELESS )
COMMUNICATIONS, INC. )
as a Shareholder in the presence of: )
Correspondence Particulars
Address:
Facsimile:
Attention:
The execution of this Agreement: )
SHUBILA HOLDINGS SDN BHD )
as a Shareholder is duly effected in )
manner authorized by its )
constitution under the Seal of )
SHUBILA HOLDINGS SDN BHD )
which said ▇▇▇▇ is hereunto duly )
affixed on this day of , )
in the presence of: )
/s/___________________ Director
/s/___________________ Director /
Correspondence Particulars
Address:
Facsimile:
Attention:
The execution of this Agreement: )
▇▇▇▇▇▇▇ SDN BHD )
as a Shareholder is duly effected in )
manner authorized by its )
constitution under the Seal of )
▇▇▇▇▇▇▇ SDN BHD )
which said ▇▇▇▇ is hereunto duly )
affixed on this day of , )
in the presence of: )
/s/___________________ Director
/s/___________________ Director /
Correspondence Particulars
Address:
Facsimile:
Attention:
