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EXHIBIT 10.5
DATED THIS 9TH DAY OF FEBRUARY 1996
***********************************
ZYCON CORPORATION
as Guarantor
in
favour of
BANK BUMIPUTRA MALAYSIA BERHAD
BBMB KEWANGAN BERHAD
as Lenders
- and -
BANK BUMIPUTRA MALAYSIA BERHAD
as Facility Agent
BANK BUMIPUTRA MALAYSIA BERHAD
as Security Agent
CORPORATE GUARANTEE
*****************
Prepared by:
SKRINE & CO.
ADVOCATES & SOLICITORS
STRAITS XXXXXXX XXXXXXXX
0 XXXXX XXXXX XXXXX
00000 XXXXX XXXXXX.
FILE NO. TC/PTW/151878.0/95
February 7, 1996-liu
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THIS GUARANTEE is issued on the 9th day of February 1996 by Zycon
Corporation, a corporation incorporated and existing under the laws of the State
of Delaware in the United States of America and having its registered office at
000 Xx Xxxxxx Xxxx, Xxxxx Xxxxx, Xxxxxxxxxx XX 00000-0000 (the "Guarantor",
which expression shall include the successors, if any, of the Guarantor) in
favour of: -
(1) BANK BUMIPUTRA MALAYSIA BERHAD and BBMB KEWANGAN BERHAD (the "Lenders",
which expression shall include their respective successors and
assigns); and
(2) BANK BUMIPUTRA MALAYSIA BERHAD, as facility agent for itself and the
other Lender (in such capacity, the "Facility Agent", which expression
shall include any of its successors in such capacity); and
(3) BANK BUMIPUTRA MALAYSIA BERHAD, as security agent for itself and the
other Lender (in such capacity, the "Security Agent", which expression
shall include any of its successors in such capacity).
WHEREAS
(a) By a Facilities Agreement (the "Facilities Agreement") dated the 9th of
February 1996 made between (1) ZYCON CORPORATION SDW. BHD. (the
"Borrower"), as Borrower, (2) BANK BUMIPUTRA MALAYSIA BERHAD, as
Arranger, (3) BANK BUMIPUTRA MALAYSIA BERHAD, as Working Capital
Lender, (4) BANK BUMIPUTRA MALAYSIA BERHAD and BBMB KEWANGAN BERHAD, as
Lending Banks, (5) BANK BUMIPUTRA MALAYSIA BERHAD, as Funding Lender,
(6) BANK BUMIPUTRA MALAYSIA BERHAD, as Facilities Agent and (7) BANK
BUMIPUTRA MALAYSIA BERHAD, as Security Agent, inter alia (a) the
Working Capital Lender agreed to grant to the Borrower the Working
Capital Facilities (as defined in the Facilities Agreement) upon the
terms and subject to the conditions of the Facilities Agreement, (b)
the Lending Banks agreed to grant to the Borrower the Ringgit Advances
Facility (as defined in the Facilities Agreement) upon the terms and
subject to the conditions of the Facilities Agreement and (c) the
Funding Lender agreed to grant to the Borrower the Dollar Advances
Facility and the Dollar RC Facility upon the terms and subject to the
conditions of the Facilities Agreement.
(B) As security for the repayment by the Borrower of the monies due and
payable or hereafter due and payable under the respective Facilities
(as defined in the Facilities Agreement), interest thereon and all
other monies agreed to be paid under the Facilities Agreement and the
other Securities Documents (as defined in the Facilities Agreement),
the Guarantor has agreed to issue this Guarantee in favour of the
Lenders, the Facility Agent and the Security Agent.
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(C) The Borrower may not make its request to the Working Capital Lender for
the utilization of the Working Capital Facilities, and may not make its
request for a Ringgit Advance (as defined in the Facilities Agreement),
and may not make its request for a Dollar Advance (as defined in the
Facilities Agreement) and may not make its request for a Dollar RC
Drawdown (as defined in the Facilities Agreement), unless and until,
inter alia, the Facility Agent has received this Guarantee duly
executed by the Guarantor and stamped.
NOW THEREFORE IT IS AGREED AS FOLLOW: -
1. DEFINITIONS AND INTERPRETATION
1.1 Terms defined in the Facilities Agreement and the Security
Agency Agreement
Except as otherwise provided in this Guarantee, all terms and
references which are defined or construed in the Facilities
Agreement and the Security Agency Agreement but are not
defined or construed in this Guarantee shall have the same
meaning and construction in this Guarantee. All references to
the Facilities Agreement are to the Facilities Agreement and
from time to time amended modified or supplemented and all
references to the Security Agency Agreement are to the
Security Agency Agreement as from time to time amended,
modified or supplemented.
1.2 Terms
In this Guarantee, except where the context otherwise
requires: -
"Borrower" means ZYCON CORPORATION SDW. BHD., a company
incorporated in Malaysia and having its registered offices at
11th Floor, Wisma Damansara, Xxxxx Xxxxxxxx, Xxxxxxxxx
Xxxxxxx, 00000 Xxxxx Xxxxx and includes its successor in
title;
"Dollar Advances Facility" means, in relation to the Funding
Lender, the USD term loan facility of up to the aggregate
principal amount of United States Dollars Four Million
(USD4,000,000.00) granted by the Funding Lender to the
Borrower upon the terms and subject to the conditions of the
Facilities Agreement;
"Facilities" means the facilities comprising of the Dollar
Advances Facility, the Dollar RC Facility, the TL AI Facility
and the Working Capital Facilities and the expression
"Facility" means any of these Facilities;
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"Guaranteed Indebtedness" means: -
(1) all sums (whether principal, interest, fee,
commission or otherwise) whatsoever which are or at
any time may be or becomes due from or owing by the
Borrower to BBMB, in its capacity as a Working
Capital Lender whether actually or contingently,
under or in connection with, or which the Borrower
has covenanted to pay or discharge to BBMB under or
pursuant to, the Facilities Agreement in connection
with the Working Capital Lender, whether actually or
Contingently, under or in connection with, or which
the Borrower has covenanted to pay or discharge to
BBM under or pursuant to, the Facilities Agreement in
connection with the Working Capital Facilities;
(2) all sums (whether principal, interest, fee,
commission or otherwise) whatsoever which are or at
any time may be or becomes due from or owing by the
Borrower to the Lending Banks, whether actually or
contingently, under or in connection with, or which
the Borrower has covenanted to pay or discharge to
the Lending Banks under or pursuant to, the
Facilities Agreement, in connection with the Ringgit
Advances Facilities;
(3) all sums (whether principal, interest, fee,
commission or otherwise) whatsoever which are or at
any time may be or becomes due from or owing by the
Borrower to the Funding Lender, whether actually or
contingently, under or in connection with, or which
the Borrower has covenanted to pay or discharge to
the Funding Lender under or pursuant to, the
Facilities Agreement, in connection with the Dollar
Advances Facility;
(4) all sums (whether principal, interest, fee,
commission or otherwise) whatsoever which are or at
any time may be or becomes due from or owing by the
Borrower to the Funding Lender whether actually or
contingently, under or in connection with, or which
the Borrower has covenanted to part or discharge to
the Funding Lender under or pursuant to, the
Facilities Agreement, in connection with the Dollar
RC Facility;
(5) all other sums (whether principal, interest, fee,
commission or otherwise) whatsoever which are or at
any time may be or becomes due form or owing by the
Borrower to the Lenders, whether actually or
contingently, under or in connection with, or which
the Borrower has covenanted to pay or discharge to
the Lenders under
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or pursuant to, the Facilities Agreement and the
other Security Documents to which the Borrower is a
party; and
(6) all other sums (whether principal, interest, fee,
commission or otherwise) whatsoever which are or at
any time may be or becomes due fro or owing by the
Borrower to the Agents, whether actually or
contingently, under or in connection with, or which
the Borrower has covenanted to pay or discharge to
the Agents under or pursuant to the Facilities
Agreement and the other Security Documents to which
the Borrower is a party.
1.3 Interpretation
In this Guarantee unless the context otherwise requires: -
1.3.1 references to persons include firms, companies,
corporations states and administrative and
governmental entities, associations and partnerships
(whether or not having separate legal personality);
1.3.2 references to the masculine gender includes the
feminine and neuter genders and vice versa and
references to the singular number include the plural
and vice versa;
1.3.3 references to Schedules, Clauses, sub-clauses,
paragraphs and sub-paragraphs are to the Schedules
and to the Clauses, sub-clauses, paragraphs and
sub-paragraphs of this Guarantee; and
1.3.4 the headings of clauses and the underlined
introductory words to sub-clauses are inserted for
ease of reference only and shall be ignored in
construing this Guarantee.
2. COVENANT TO PAY
2.1 Covenant to Pay
In consideration of the Working Capital Lender agreeing to
grant to the Borrower the Working Capital Facilities on the
terms and subject to the conditions contained in the
Facilities Agreement (a copy of which the Guarantor hereby
acknowledges having received) or the Lending Banks agreeing to
grant to the Borrower the Ringgit Advances Facility on the
terms and subject to the Conditions contained in the
Facilities Agreement or the Funding Lender agreeing to grant
to the Borrower the Dollar Advances Facility on the terms and
subject to the conditions contained in the Facilities
Agreement or the Funding Lender agreeing to grant to the
Borrower the Dollar RC Facility on the terms and subject to
the conditions
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contained in the Facilities Agreement or the Beneficiaries
otherwise acting under or in connection with the Facilities
Agreement, the Guarantor hereby unconditionally and
irrevocably guarantees, as a continuing guarantee, the due
punctual payment by the Borrower of the Guaranteed
Indebtedness, and conditionally and irrevocably undertakes and
agrees that, if for any reason the Borrower does not make
payment of any amount of the Guaranteed Indebtedness, by the
time, in the currency, on the date and otherwise if the manner
specified in (1) the Facilities Agreement in respect of that
part of the Guaranteed Indebtedness owing to BBMB as a Working
Capital Lender (whether on the normal due date, on
acceleration or otherwise), (2) the Facilities Agreement in
the respect of that part of the Guaranteed Indebtedness owing
to Lending Banks (whether on the normal due date, on
acceleration or otherwise), or (3) the Facilities Agreement in
respect of that part of the Guaranteed Indebtedness owing to
the Funding Lender (whether on the normal due date, on
acceleration or otherwise), the Guarantor will pay to the
Facility Agent on demand for its account or for the account or
for the account of the relevant Beneficiary such sum in the
currency and in the manner provided in the Facilities
Agreement.
2.2 Default of Borrower
In the event of the Borrower failing to observe and perform
any of the covenants, undertakings, stipulations or terms
contained in the Facilities Agreement and/or the other
Security Documents to which the Borrower is a party, the
Beneficiaries shall notwithstanding anything to the contrary
contained in the Facilities Agreement and/or the other
Security Documents be entitled to demand payment in full from
the Guarantor the whole of the Guaranteed Indebtedness or such
part thereof as may be outstanding.
2.3 Independent Action
2.3.1 The Guarantor waives all rights of subrogation and
contribution and any rights which it may have to
claim prior exhaustion of remedies by the
Beneficiaries and agrees that demands under this
Guarantee may be made from time to time irrespective
of whether any steps or proceedings are being taken
or have been taken against the Borrower and/or any
other person or are being taken or have been taken to
enforce any other security, guarantee or indemnity.
The Beneficiaries may proceed to exercise any right
or remedy which the Beneficiary may have under this
Guarantee without regard to any actions or omissions
of any other party or entity and the Beneficiaries
may exercise any such right or remedy independently
of each other and in separate actions or proceedings
and the Guarantor hereby so agrees and waives any
rights it has or
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may have to object to any such proceedings being
separately brought.
2.3.2 The amount at any time owing by the Guarantor to the
Beneficiaries under this Guarantee shall be a
separate and independent debt from the amount owing
to any other party. The Beneficiaries shall have the
right to protect and enforce their respective rights
arising out of this Guarantee and it shall not be
necessary for any other party to be joined as an
additional party in any proceeding for this purpose.
3. REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties
3.1.1 Status
The Guarantor is a corporation duly incorporated and
validly existing under the laws of the United States
of America and has the power and authority to own its
assets and to conduct the business which it conducts
and/or purposes to conduct.
3.1.2 Powers
The Guarantor has full power, authority and legal
right to enter into and perform and comply with its
obligations under this Guarantee.
3.1.3 Obligations Binding
The obligations of the Guarantor under this Guarantee
constitute the legal, valid and binding obligations
of the Guarantor, enforceable against the Guarantor
in accordance with its terms.
3.1.4 Authorizations and Consents
All actions, conditions and things required to be
taken, fulfilled and done (including the obtaining of
any necessary Consent) in order (a) to enable it to
lawfully enter into and perform and comply with its
obligations under this Guarantee, (b) to ensure that
those obligations are valid, legally binding and
enforceable, (c) to ensure that those obligations
rank and will at all times rank in accordance with
Clause 4.1.5 and (d) to make this Guarantee
admissible in evidence in the courts of Malaysia and
the United States of America have been taken,
fulfilled and done.
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3.1.5 Ranking of Obligations
Its payment obligators under this Guarantee rank and
will at all times rank at lease equally and ratably
in all respects with all its other unsecured
indebtedness except for such indebtedness as would,
by virtue only of the law in force in the United
States of America, be preferred in the event of its
winding-up.
3.1.6 Non-violation of Laws and/or Agreements
Neither the execution and delivery of this Guarantee
nor the performance or observance by the Guarantor of
any of its obligators or the exercise by the
Guarantor of any of its rights herder will: -
(i) contravene, conflict with or result in any
breach of any of the terms, conditions,
covenants, undertakings or other provisions
of, or constitute a default, event of
default or an event which with the giving of
notices and/or the lapse of time and/or the
fulfillment of any conditions would
constitute a default or an event of default
under any provision of any law or
regulation, order, franchise, concession,
license, permit or authority or any
agreement, undertaking, indenture, mortgage,
deed or other instrument, or any
arrangement, obligation or duty applicable
to, or which is binding upon or affects the
Guarantor or any of its assets or revenues,
(ii) violate or exceed any limitation on the
borrowing or any other powers of the
Guarantor (whether imposed by any law or
regulation, order agreement, instrument or
otherwise) or any other limitation affecting
the Guarantor, to be exceeded, or
(iii) result in, or oblige the Guarantor to create
any charge on the whole or any part of the
assets or revenues of the Guarantor, present
or future.
3.1.7 Litigation
No litigation, arbitration or administrative
proceedings before or of any court, tribunal or
regulatory authority is presently pending or, to the
knowledge of the Guarantor threatened against the
Guarantor or any of its assets or revenues which, if
determined adversely to
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the Guarantor might materially and adversely affect
its assets, liabilities or condition (financial or
otherwise) or its ability to perform its obligations
hereunder.
3.1.8 No Default
The Guarantor is not in breach of contravention of or
in default under any law or regulation, order,
franchise, concession, license, permit, authority,
agreement, undertaking, instrument, arrangement,
obligation or duty applicable to, or which is binding
upon or affect it or any of its assets or revenues,
(the consequences of which breach, contravention or
default, could materially and adversely affect the
Guarantor's assets, liabilities, or condition
(financial or otherwise) or its ability to perform
its obligation hereunder); no Event of Default or
Potential Event of Default has occurred or will occur
as a result of its entry into this Guarantee, and
neither it not any of its subsidiaries is in breach
of or in default of any agreement to an extent or in
a MANNER WHICH HAS OR COULD HAVE A MATERIAL effect on
it;
3.1.9 Winding-Up
N meeting has been convened for its winding-up or for
the appointment of a receiver, trustee, judicial
manager or similar officer of it, its assets or any
of them, no such step is intended by it and, so far
as it is aware, no petition, application or the like
is outstanding for its winding-up or for the
appointment of a receiver, trustee, judicial manager
or similar officer of it, its assets or any of them.
3.1.10 No Arrangements with Creditors
The Guarantor has not entered into any arrangement or
composition with its creditors.
3.1.11 No Immunity
Neither it not its assets is entitled to immunity
from suit, execution, attachment or other legal
process, and its entry into this Guarantee
constitutes, and the exercise of its rights and
performance of and compliance with its obligations
under this Guarantee will constitute, private and
commercial acts done and performed for private and
commercial purpose.
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3.1.12 No Misstatement
No information, exhibit or report furnished by it to
the Beneficiaries in connection with this Guarantee
contained any misstatement of fact as at the date of
such exhibit or report or as at the date when such
information was given which was material in the
context of this Guarantee or omitted to state a fact
as at such date which in any such case would be
materially adverse to the interests of the
Beneficiaries under this Guarantee.
3.2 Continuation of Representation and Warranties
Each of the representations and warranties set forth in Clause
4.1 above will be correct and complied with in all material
respects so long as any sum remains to be lent to or remains
payable by the Borrower under the Facilities Agreement as if
repeated then by reference to the then existing circumstances.
4. INDEPENDENT LIABILITY
As separate, independent and alternative stipulations, the Guarantor
unconditionally and irrevocably agrees: -
4.1 that any sum which, although expressed to be payable by the
Borrower under the Facilities Agreement, is for any reason
(whether or not now existing and whether or not now known or
becoming known to any party to this Guarantee) not recoverable
from the Guarantor on the basis of guarantee shall
nevertheless be recoverable by it as if it were the sole
principal debtor and shall be paid by it to the Facility Agent
on demand; and
4.2 as a primary obligation to indemnify each Beneficiary against
any loss suffered by it as a result of any sum expressed to be
payable by the Borrower under the Facilities Agreement not
being paid by the time, on the date and otherwise in the
manner specified in the Facilities Agreement or any payment
obligation of the Borrower under the facilities Agreement
being or becoming void, voidable or unenforceable for any
reasons (whether or not now existing and whether or not now
known or becoming known to the guarantor r any Beneficiary),
the amount of that loss being the amount expressed to be
payable by the Borrower in respect of the relevant sum.
5. INTEREST TO BE CAPITALIZED
The Guarantor hereby agrees that the capitalized rate of interest fixed
by each Beneficiary form time to time in respect of the Facilities
shall apply and have
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effect and be calculated on the amounts due to such Beneficiary
hereunder until that Beneficiary shall have received one hundred Sen in
every Ringgit outstanding, or as the case may be, one hundred cents in
every Dollar outstanding under the Facilities. For the avoidance of
doubt, it is hereby expressly provided that the capitalized rates of
interest shall be payable before and after judgment and notwithstanding
the termination of the banker and customer relationship between the
Lenders and the Borrower by reason of the termination of the Facilities
by recall or demand or by reason of the incapacity, winding-up, or
liquidation of any party or by frustration, force majeur, operation of
law, order or direction of any competent authority or otherwise
howsoever.
6. PRINCIPAL DEBTOR
As between the Guarantor and the Beneficiaries, the Guarantor shall be
liable under this Guarantee as if it were the sole principal debtor and
not merely a surety. Accordingly, it shall not be discharged, nor its
liability be affected nor shall this Guarantee be discharged or
diminished by reason of: -
6.1 any increase, decrease, extension, renewal or restructure of
the Facilities or any variation, cancellation, supplement,
substitution, or modifications of whatsoever nature being made
to any provision of the Facilities Agreement and/or the other
Security Documents, with or without the knowledge or consent
of the Guarantor; or
6.2 any irregularity, unenforceability, illegality, invalidity or
defect in the Security Documents or in relation to any
obligation of the Borrower thereunder to the intent to that
the Guarantor's obligations under this Guarantee shall remain
in full force and effect as if there were no such
irregularity, unenforceability, illegality, invalidity or
defect; or
6.3 any variations, exchange, renewal, release or discharge of any
security or the refusal or neglect by any Beneficiary to
complete or enforce any security or instrument and whether
satisfied by payment or not; or
6.4 any refusal by any Lender at any time or times with or without
notice to the Guarantor or the Borrower to advance the monies
or give further credit or accommodation to the Borrower
notwithstanding that the limit or amount of the Facilities
shall not have been reached; or
6.5 any other person or persons who is or was intended to
guarantee, indemnify, provide security or in any other manner
assume or undertake to be responsible for the obligation or
liability in respect of the Facilities or any part thereof or
other indebtedness of the Borrower shall fail to do so or
shall be discharged or released from doing so; or
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6.6 any present or future bill note guarantee indemnity mortgage
charge pledge lien debenture or other security or right or
remedy held by or available to any Beneficiary being or
becoming wholly or in part voidable or unenforceable on any
ground whatsoever or by any Beneficiary from time to time
dealing with exchanging varying releasing or failing to
perfect or enforce any of the same; or
6.7 any time indulgence concession waiver or consent at any time
given to the Borrower or any other persons, whether by any
Beneficiary or any other persons; or
6.8 the renewing determining varying or increasing any bill
promissory note or other negotiable instrument accommodation
facilities or transaction in any manner whatsoever or
concurring in accepting or varying any compromise arrangement
or settlement or omitting to claim or enforce payment form the
Borrower or any other person; or
6.9 any act or omission which would not have discharged or
affected the liability of the Guarantor had it been the
principal debtor instead of the guarantor or by anything done
or omitted which but for this provision might operate to
exonerate the Guarantor; or
6.10 the winding-up, insolvency, bankruptcy, amalgamation,
reconstruction or reorganization of the Borrower or any other
persons (or the commencement of any of the foregoing).
7. INDEMNITY
As a separate and independent obligation the Guarantor hereby agrees as
primary obligor to indemnify each Beneficiary on demand from and
against any claims, losses, funding or other costs, expenses or
otherwise incurred by that Beneficiary as a result of the terms of the
Facilities being or becoming void, voidable or unenforceable in any
manner or by reason of or consequent to any breach of warranties and/or
undertakings herein contained or any default on the part of the
Borrower in performing and observing the obligations to be performed
and observed by the Borrower or for any other reasons whatsoever,
whether or not known to that Beneficiary; the among of such claims,
losses, costs, expenses or otherwise being the amount which that
Beneficiary would have otherwise been entitled to recover from the
Borrower under the Security Documents.
8. CONTINUING SECURITY
The Guarantee is a continuing security and shall secure the ultimate
balance from time to time owing to each Beneficiary by the Borrower
under the Security Documents notwithstanding the liquidation winding-up
or other incapacity or any
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change in the constitution of the Borrower or other incapacity or any
change in the constitution of the Borrower or the liquidation
winding-up or other incapacity of the Guarantor or any other person or
any settlement of account or other matter whatsoever. This Guarantee
shall remain in full force and effect until all monies owing under the
Security Documents have been paid or satisfied in full and is in
addition to and not in substitution for any other rights or remedies
which the Beneficiaries may have under the Security Documents and may
be enforced without first having recourse to any such rights or
remedies and without taking any steps or proceedings against the
Borrower or any other persons.
9. LIABILITY OF GUARANTOR
9.1 Discharge Only By Performance
The obligations of the Guarantor shall not be discharged
except by performance and then only to the extent of such
performance. Such obligations shall not be subject to any
prior notice to or demand to the Guarantor with regard to any
default of the Borrower and shall not be impaired by any
extension of time forbearance or concession given to the
Borrower or any other person or any assertion of or failure to
assert any right or remedy against the Borrower or any other
persons or in respect to the Security Documents and/or any
modification or amplification of the provision thereof
contemplated by the terms thereof or any failure of the
Borrower to comply with any requirements of any law
regulations or order in Malaysia or of any political
sub-division or agency thereof.
9.2 Arrangements With Borrower
The Guarantor shall not be discharged or release from this
Guarantee by any arrangement entered into or any composition
accepted by any Beneficiary modifying its rights and remedies
whether with or without the assent of the Guarantor by any
alteration in the obligations terms stipulations covenants and
undertakings contained in the Security Documents or by any
forbearance whether as to pay time performance or otherwise.
9.3 Reconstruction
The liabilities and or obligations of the Guarantor created by
the is Guarantee 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 Beneficiaries of the Borrower and it
is hereby expressly declared that no change of any sort
whatsoever in relation to or affecting the Guarantor shall in
any way affect the
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liabilities and or obligations created hereunder in relation
to any transaction whatsoever whether past present or future.
9.4 Liquidation
In the event of the liquidation of the Borrower, each
Beneficiary (notwithstanding the payment by the Guarantor to
the Beneficiaries or any one of them of any part of the amount
hereby guaranteed) may rank as creditor and prove for such
amount remaining outstanding against the Borrower or agree to
accept any composition in respect of the same and such
Beneficiary may receive and retain the whole of the dividends
composition or other payments thereon. The Guarantor shall not
in such event prove against the Borrower or in any way compete
with the Beneficiaries so as to diminish any dividend or other
advantage that would or might come to the Beneficiaries until
the whole of each of the Beneficiary's claims against the
Borrower have been satisfied. Further for the purpose of
enabling any Beneficiary to maximize its recoveries in any
actual or potential winding-up, any amount received or
recovered by any Beneficiary (otherwise than as a result of a
payment by the Borrower to the Facility Agent) in respect of
any sum payable by the Borrower under the Facilities
Agreement, may be placed by the recipient in an interest
bearing suspense account. That amount may be kept there (with
any interest earned being credited to that account) unless and
until the recipient has irrevocably received or recovered its
share of all sums payable to it under the Facilities
Agreement.
9.5 Subordination
So long as any sum remains to be lent to or remains payable by
the Borrower under the Facilities Agreement: -
9.5.1 any right of the Guarantor, by reason of the
performance of any of its obligations under this
Guarantee, to be indemnified by the Borrower or to
take the benefit of or enforce any security,
guarantee or indemnity shall be exercised and
enforced only in such manner and on such terms as the
Facility Agent (acting on the instructions from the
Instruction Group) may require; and
9.5.2 any amount received or recovered by the Guarantor (a)
as a result of any exercise of any such right or (b)
in the winding-up of the Borrower shall be held in
trust for the Beneficiaries and immediately paid to
the Facility Agent.
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10. RECOVERY OF MONIES BY GUARANTOR
Until all monies and liabilities payable under the Facilities shall
have been fully paid and discharged the Guarantor shall not: -
(a) in respect of any monies which may have been paid by the
Guarantor to any Beneficiary, seek to enforce repayment or
payment or to exercise any other rights or remedies of
whatsoever kind which may accrue howsoever to the Guarantor in
respect of the amount so paid;
(b) prove in competition with any Beneficiary for any monies owing
by the Borrower to the Guarantor on any account whatsoever
and/or in respect of any monies due or owing from the Borrower
to such Beneficiary but will give to that Beneficiary the full
benefit of any proof which the Guarantor may be able to make
in the liquidation of the Borrower or in any arrangement or
composition with its creditors;
(c) take any steps to enforce any rights or remedies against the
Borrower or receive or claim or have the benefit of any
payment or distribution, from or an account of the Borrower or
exercise any right of set-off or counterclaim against the
Borrower;
(d) have any claim on or participate in the benefit of any claims
or security which may hereafter be provided by the Borrower;
and
(e) negotiate assign charge or otherwise dispose of any monies
obligations or liabilities now or hereafter due or owing to
the Guarantor from the Borrower or any co-guarantor or any
promissory note bill of exchange guarantee indemnity mortgage
charge or other security. Provided always that, on making a
claim against the Guarantor pursuant hereto, the Facility
Agent (actin on instruction form the Instruction Group) may
instruct the Guarantor to take any steps in connection with
any of the matters referred to in the e foregoing
sub-paragraphs and any monies or other benefit thereby
obtained by the Guarantor will thereafter be held by the
Guarantor in trust for the Beneficiaries and immediately paid
to the Facility Agent.
12. OTHER SECURITIES HELD BY THE BENEFICIARIES
This Guarantee shall be in addition to and shall not be in any way
prejudiced or affected by any collateral or other security now or
hereafter held by the Beneficiaries for all or any part of the monies
hereby guaranteed nor shall such collateral or other security or lien
to which the Beneficiaries may be otherwise entitled to or the
liability of any person or persons or corporation not parties hereto
for all or any part of the monies hereby secured be in any way
prejudiced or affected by this present Guarantee.
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13. PAYMENTS
13.1 Payments Without Set-Off, Counterclaim etc.
All payments to be made by the Guarantor to the Beneficiaries
hereunder shall be made in full and without any set-off,
counterclaim or merger or combination of accounts whatsoever.
13.2 Payments Without Deductions for Taxes
13.2.1 All payments to be made by the Guarantor under this
Guarantee shall be paid (1) free of any restrictions
or conditions, (2) free and clear or and (except to
the extent required by law) without any deduction or
withholding (except to the extent required by law) on
account of any other amount, whether by way of
set-off or otherwise.
13.2.2 If the guarantor or any other person (whether or not
a party to, or on behalf of a party to, this
Guarantee) must at any time deduct or withhold any
tax or other amount from any sum paid or payable by,
or received or receivable from, the Guarantor under
this Guarantee, the Guarantor shall pay such
additional amount as is necessary to ensure that the
Beneficiary to which that sum is due receives on the
due date and retains (free from any liability other
than tax on its own overall net income) a net sum
equal to what it would have received and so retained
had no such deduction or withholding been required or
made.
13.2.3 if the Borrower or any other person (whether or not a
party to, or on behalf of a party to, this Guarantee)
must at any time pay any tax or other amount, on or
calculated b reference to, any sum received or
receivable by, any Beneficiary under this Guarantee
(except for a payment by that Beneficiary of tax on
its own overall net income), the Guarantor shall pay
or procure the payment of that tax or other amount
before any interest or penalty becomes payable or, if
that tax or other amount is payable and paid by that
Beneficiary, shall reimburse it on demand for the
amount paid by it.
13.2.4 Within thirty (30) days after paying any sum from
which it is required by law to make any deduction or
withholding, and within thirty (30) days after the
due date of payment of any tax or other amount which
it is required by Clause 14.3 above to pay, the
Guarantor shall deliver to the Facility Agent
evidence satisfactory to the relevant Beneficiary of
that deduction, withholding or
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payment and (where remittance is required) of the
remittance thereof to the relevant taxing or other
authority.
13.2.5 As soon as the Guarantor is aware that any such
deduction, withholding or payment is required (or of
any change in any such requirement), it shall notify
the Facility Agent.
13.3 Currency of Payment
13.3.1 Any payment or payments made by the Guarantor to or
for the account of any Beneficiary in a currency (the
currency in which the relevant payment is made being
hereinafter referred to a the "Relevant Currency")
other than the currency in which such payment or
payments are expressed to be payable by the Guarantor
to it under this Guarantee (the currency in which the
relevant payment is expressed to be payable under
this Guarantee being hereinafter referred to as "the
Currency of Account") (whether as a result or, or of
the enforcement of, a judgment or order of a court of
any jurisdiction, in the winding-up of the Guarantor
to the extent of the Currency of Account which the
recipient is able, in accordance with its usual
practice, to purchase with the amount so received or
recovered in the Relevant Currency on the date of
that receipt or recovery (or, it if is not
practicable to make that purchase on that date, on
the first date on which it is practicable to do so).
If the amount of the Currency of Account is less than
the amount expressed to be due to the recipient under
this Guarantee, the Guarantor shall indemnify it
against any loss sustained by it as a result thereof.
In any event, the Guarantor shall indemnify the
recipient against the cost of making any such
purchase. For the purpose of this Clause, it will be
sufficient for the recipient to demonstrate that it
would have suffered a loss had an actual exchange or
purchase been made.
13.3.2 These indemnities constitute a separate and
independent obligation from the other obligations in
this Guarantee, shall give rise to a separate and
independent cause of action shall apply irrespective
or any indulgence granted by any Beneficiary and
shall continue in full force and effect despite any
judgment, order, claim or proof for a liquidated
amount in respect of any sum due under this Guarantee
or any other judgment or order.
13.4 Payments in Freely Transferable Funds
13.4.1 On each date on which any sum in Ringgit is due from
the Guarantor under this Guarantee, the Guarantor
shall make that sum
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available to the Facility Agent so as to be received
by the Facility Agent in Ringgit and in immediately
available and freely transferable funds before 11
a.m. (local time in Kuala Lumpur) to such account of
the Facility Agent with such bank in Kuala Lumpur as
the Facility Agent shall have designated to it for
that purpose.
13.4.2 On each date on which any sum in US Dollars is due
from the Guarantor under this Guarantee, the
Guarantor shall make that sum available to the
Facility Agent so as to be received by the Facility
Agent in US Dollars by 11 a.m. (local time in
Singapore) and in funds which are for same day
settlement in the [Singapore Clearing House Interback
Payments System] (or, if such funds cease to exist
or, in the Facility Agent's opinion, cease to be
customary for the settlement in Singapore of
international banking transactions in US Dollars,
such other US Dollars funds as the Facility Agent may
from time to time determine to be customary for that
purpose) to such account of the Facility Agent with
such bank in Singapore as the Facility Agent may from
time to time designate for that purpose.
14. APPROPRIATION OF PAYMENTS
14.1 All sums from time to time recovered or received by the
Facility Agent under or in connection with this Guarantee or
pursuant to the Enforcement of this Guarantee (hereinafter
referred to as "the Sums Recovered") shall be applied by the
Facility Agent in the following manner and order: -
14.1.1 first, in or towards payment to the Agents of any fee
and any costs, charges and expenses sustained or
incurred by the Agents, and any other sums then due
and payable to the Agents in their respective
capacities as such, under or in connection with the
Facilities Agreement;
14.1.2 secondly, in or towards payment to each of the
Lenders, of its respective Secured Proportion (as
defined in the Security Agency Agreement), at such
time, of the balance of the Sums Recovered; and
14.1.3 thirdly, in payment of any surplus to the Guarantor.
15. GUARANTEE ENFORCE
Each of the Beneficiary may enforce this Guarantee against the
Guarantor at any time in the manner as stipulated in Clause 1 hereof.
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16. GUARANTEE NOT REVOCABLE
This Guarantee shall not be determinable by the Guarantor except on the
terms of making full provision up to the limit of the Facilities
together with interest thereon and any other outstanding liabilities or
obligations (whether actual or contingent) on the part of the Borrower
and shall in all respects and for all purposes be binding and operative
until discharged by performance thereof.
17. WAIVER OF ALL RIGHTS AS SURETT
In order to give full effect to this Guarantee the Guarantor hereby
waives all rights and privileges which the Guarantor might otherwise as
a surety be entitled to claim.
18. REINSTATEMENT OF GUARANTEE
Any settlement or discharge between any of the Beneficiaries and the
Guarantor shall be conditional upon no security or payment to such
Beneficiary by the Borrower or any other person being avoided or
reduced by virtue of any provision or enactment relating to bankruptcy,
insolvency or dissolution for the time being in force or by virtue of
any obligation to give effect to any preference or priority and such
Beneficiary shall be entitled to recover the value amount of any such
security or payment from the Guarantor subsequently as if such
settlement or discharge had not occurred.
19. STATEMENT
A certificate by any Beneficiary as to any sum payable by the Guarantor
to it under this Guarantee, and any other certificate, determination,
notification or the like of any Beneficiary provided for in this
Guarantee, shall be conclusive save for manifest error.
20. MISCELLANEOUS
20.1 Severablity
In the event that any one or more provisions of this Guarantee
be determined to be illegal or unenforceable by any court of
law, such provision shall be ineffective to the extent of such
illegality or unenforceability, without invalidating the
remaining provisions hereof. The Guarantor agrees, upon
request by the Facility Agent (acting on instructions fro the
Instructing Group), to replace any provision of this
20
Guarantee which is so determined to be illegal or
unenforceable by a valid provision which has as nearly as
possible the same effect. The illegality, invalidity or
unenforceability of any provision of this Guarantee under the
law of any jurisdiction shall not affect its legality,
validity or enforceability under the law of any other
jurisdiction nor the illegality, validity or enforceability of
any of the provision.
20.2 Law
This Guarantee is governed by, and shall be construed in
accordance with, the laws of Malaysia
(i) The Guarantor irrevocably: -
(aa) submits to the non-exclusive jurisdiction of
the courts of Malaysia and United States;
(bb) waives any objections on the ground of venue
or forum non-convenience or any similar
grounds;
(cc) consents to service of process by mail or in
other manner permitted by the relevant law.
(ii) The Guarantor shall at all times maintain an agent
for service of process in Malaysia. Such agent shall
be: -
Name:
Address:
and the Guarantor undertakes not to revoke the
authority of the above agent and if, for any reasons,
which agent or any successor agent no longer serves
as agent of the Guarantor to receive service of
process, the Guarantor shall promptly appoint another
such agent and advise the Lender thereof.
20.3 Notices
20.3.1 Each communication to be made hereunder shall be made
in writing but, unless otherwise stated, may be made
by telex, facsimile or letter.
20.3.2 Any communication or document to be made or delivered
by one person to another pursuant to this Guarantee
shall (unless that other person has by fifteen (15)
days' written notice to be the Facility
21
Agent specified another address) be made or delivered
to that other person at the address identified
herein, or, in the case of a Transferee, at the end
of the Transfer Certificate to which it is a party as
Transferee.
20.3.3 Any communication or document made or delivered under
Clause 20.3.1 hereof shall be deemed to have been
made or delivered: -
(i) in the case of delivery in person, at the
time of delivery;
(ii) in the case of prepaid registered post, five
(5) days after the date of posting or where
posted to an address outside Malaysia, seven
(7) days after the date of posting;
(iii) in the case of telex on receipt by the
sender of the answer-back code of the
recipient at the end of the transmission;
and
(iv) in the case of telegram or facsimile, within
twenty-four (24) hours after the time of
transmission by the sender to be
authenticated by the receipt by the send of
a transmission controlled report appearing
on its fact to emanate from the sender's
machine showing the relevant number of
pages, the correct facsimile number of the
recipient and the result of the transmission
being described as "O.K." or any equivalent
description indicating that the
communication has been property transmitted.
The original of the notice, demand or
request so sent by facsimile shall be
forwarded to the receiving party by prepaid
registered post.
Provided that any communication or document to be
made or delivered to the Facility Agent shall be
effective only when received by the Facility Agent.
20.4 Waiver, Rights Cumulative
No failure on the part of any Beneficiary to
exercise, and no delay on its part in exercising, any
right or remedy under this Guarantee will operate as
a waiver thereof, nor will any single or partial
exercise of any right or remedy preclude any other or
further exercise thereof or the exercise of any other
right or remedy. The rights and remedies provided in
this Guarantee are cumulative and
22
not exclusive of any rights or remedies (whether
provided by law or otherwise).
20.5 Legal Costs
The Guarantor shall pay on demand all costs and
expenses (including legal fees) incurred by any of
the Beneficiaries in protecting or enforcing any
rights under this Guaranty.
20.6 Successors in Title
This Guarantee shall ensure to the benefit of each or
the Beneficiaries and their respective successors and
assigns, and the obligations of the Guarantor under
this Guarantee shall be binding on it and its
successors notwithstanding any change in the
constitution or status of it or any of its
successors.
20.7 No Assignment by Guarantor
The Guarantor may not assign its rights or transfer
its obligations under this Guarantee.
20.8 Agent for Service
The Guarantor irrevocably appoints
_____________________ to receive, for it and on its
behalf service of process in any Proceedings in
_______________________________-. Such service shall
be deemed completed on delivery to the process agent
(whether or not it is forwarded to and received by
the Guarantor). If for any reason the process agent
ceases to be able to act as such or no longer has an
address in _____________________________, the
Guarantor irrevocably agrees to appoint a substitute
process agent acceptable to the Facility Agent, and
to deliver to the Facility Agent a copy of the new
agent's acceptance of that appointment, within 30
days. Nothing shall affect the right to service
process in any other manner permitted by law.
20.9 Independent Legal Advice
The Guarantor hereby declares that it has sought
independent legal advice before executing this
Guarantee and that the contents of this Guarantee has
been explained to the Guarantor and the Guarantor has
perfectly understood the same before the signing it
voluntary with full knowledge of the Guarantor's
obligations.
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20.10 Principal & Subsidiary Instruments
It is hereby declared and agreed that: -
(a) the Facilities Agreement;
(b) the Debenture;
(c) the Assignment;
(d) the Charge;
(e) this Corporate Guarantee; and
(f) the Security Agency Agreement;
are instruments employed in one transaction
within the meaning of Section 4(3) of the
Xxxxx Xxx, 0000 (Consolidated and Revised
1989) to secure an aggregate principal sum
comprising: -
(i) TL I Facility of up to RM29,200,000.00;
(ii) Dollar Advances Facility of up to
USD4,000,000.00;
(iii) Dollar RC Facility or up to USD2,000,000.00;
(iv) Working Capital Facilities of up to
RN5,900,000.00
and respective interest thereon and for the
purpose of the said Section the Facilities
Agreement is deemed to be the Principal
Instrument and the other documents the
Subsidiary Instruments.
24
IN WITNESS WHEREOF the parties have hereunto set their respective hands
the day and year first abovewritten.
SIGNED by )
)
for and on behalf of )
ZYCON CORPORATION )
in the presence of: - )
SIGNED by )
)
for and on behalf of )
BANK BUMIPUTRA MALAYSIA )
BERHAD )
as Lender in the )
Presence of: )
SIGNED by )
)
for and on behalf of )
BBMB KEWANGAN BERHAD as )
as Lender in the presence of: - )
SIGNED by )
)
for and on behalf of )
BANK BUMIPUTRA MALAYSIA )
BERHAD as Facility Agent )
in the presence of: - )
SIGNED by )
)
for and on behalf of )
BANK BUMIPUTRA MALAYSIA )
BERHAD as Security Agent )
in the presence of: - )
