Exhibit 10.2
DATED THIS 30TH DAY OF SEPTEMBER 2004
BETWEEN
BUMIPUTRA-COMMERCE BANK BERHAD
(Company No.13491 P)
AND
XXXXXXX ZONE (M) SDN BHD
(Company No.498849 X}
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GENERAL FACILITY AGREEMENT
****************************
Amir Faezal Norzela & Chong
Advocates & Solicitors
Suite 2.01, 2nd Floor
No.87 & 89, Xxxxx Xxxxxx Xxxxx Xxxxxx
00000 Xxxxx Xxxxxx
Tel : 00000000/00000000
Fax : 00000000
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This GENERAL FACILITY AGREEMENT is made on the day and year stated in item 1 of
the Schedule 1 hereto.
BETWEEN:
(1) BUMIPUTRA-COMMERCE BANK BERHAD (13491-P), a company incorporated in Malaysia
with its registered office at Xx 0, XXXXX XXX XXXXX, 00000 XXXXX XXXXXX and
having a branch at the address as stated in item 2 of the Schedule 1 hereto as
the Bank of the one part.
AND
(2) The person(s) named in item 3 of the Schedule 1 hereto as Borrower of the
other part.
ARTICLE 1
DEFINITIONS AND INTERPRETATION
SECTION 1.01 DEFINITIONS
In this Agreement, unless the context otherwise requires, or unless it is
otherwise expressly provided, the following expressions shall have the meaning
respectively assigned to them hereunder:
"ABM" The Association of Banks in Malaysia.
"Act" Banking and Financial institutions Act, 1989 and
includes all rules made thereunder and amendments
as may be made at any time and from time to time.
"Additional The additional conditions precedent to be
Conditions satisfied by the Borrower and set out in Item 13
Precedent" of the Schedule 1 hereto.
"Address for Service" (a) Bank
the Address as stated in item 2 of the Schedule I
hereto.
(b) Borrower
the Address as stated in item 4 of the Schedule I
hereto.
"Advance" the principal sums of money disbursed to the
Borrower or such other party as may be directed by
the Borrower from time to time following Drawings
made on the Facilities or on any part thereof.
"Availability Period" subject to the terms and conditions herein
contained, the period as stated in item 15 of the
Schedule thereto and during such period the
Facilities or any part thereof shall be made
available by the Bank to the Borrower and shall be
deemed to include any extension or renewal thereof
made by the bank at its absolute discretion from
time to time and upon expiration of such period
the unutilized or withdrawn portion of the
Facilities shall be deemed to have been
automatically cancelled or withdrawn.
"BA" the Bankers' Acceptance facility granted to the
Borrower by the bank and includes any part thereof
pursuant to the terms herein and the General
Conditions set out in item 1 of the Schedule 2
hereto
"BANK" BUMIPUTRA-COMMERCE BANK BERHAD (Company No. 13491
P) a company incorporated in Malaysia and having
its registered office at XX.0
0
XXXXX XXX XXXXX, 00000 XXXXX XXXXXX and having a
branch at the address as stated in Item 2 of the
Schedule 1 hereto and includes persons deriving
title thereunder and its successors-in-title and
assigns.
"BD" the Bills Discounting facility granted to the
Borrower by the Bank and includes any part thereof
pursuant to the terms herein and the General
Conditions set out in Item 2 of the Schedule 2
hereto.
"BLR" the rate of interest from time to time stipulated
by the Bank as its Base Lending Rate in Malaysia
or if the term Base Lending Rate is no longer used
or applicable such rate of interest by whatsoever
name called as representing the rate of interest
quoted by the Bank from time to time which shall
be final and conclusive.
"BNM" Bank Negara Malaysia and includes any entities
assuming the role of the Central Bank of Malaysia.
"BPA" where applicable, the Bilateral Payment
Arrangement Scheme granted to the Borrower by the
Bank and include any part thereof pursuant to the
terms herein and set out in the Letter of Offer.
"Borrower" the person(s) named in Item 3 of the Schedule
thereto and includes persons deriving title
thereunder and its successors-in-title and
permitted assigns.
"Business Day" a day on which the Bank is open for business
"Calendar Month" that period of time commencing on the first (1st)
day of a Calendar Month and ending on the last day
of that same Calendar Month.
"Charge" the charge to be executed by the Borrower and/or
by the Security Party over the Property following
the provisions of the National Land Code, 1965 and
referred to in Section 5.01 hereof in favour of
the Bank upon terms and conditions contained
therein acceptable to the Bank.
"Corporate the Corporate Guarantee to be executed by the
Guarantee" Corporate Guarantor and referred to in Section
5.01 hereof in favour of the Bank in respect of
the Borrower's obligations herein upon such terms
and conditions contained therein acceptable to the
Banks.
"Corporate Guarantor" the company named in Item 10 of the Schedule
thereto and includes its successors-in-title and
assigns.
"COF" the Bank's effective cost of funds and is taken to
be the sum of the Kuala Lumpur Inter Bank Offered
Rate (KLIBOR) and the cost of maintaining the
Bank's liquidity reserves and is determined by
Bank on the Drawdown Date of the Advance(s) and
subsequent roll-over of the Facility. KLIBOR shall
be the rate of interest offered by the Bank to
prime banks in Kuala Lumpur Inter Bank Market at
10.00 am on the relevant prescribed lending rate
fixing day for Ringgit Malaysia deposits at least
equal to the amount of the Advance or roll-over.
"DBP" Where applicable, the Domestic Bills of Exchange
Purchased facility granted to the Borrower by the
Bank and includes any part thereof pursuant to the
terms herein and the General Conditions set out in
Item 3 of the Schedule 2 hereto.
"Debenture" the Debenture to be executed by the Borrower
and/or by the Security Party over its and/or their
assets and referred to in Section 5.01 hereof in
favor of the Bank upon such terms and conditions
contained therein acceptable to the Bank.
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"Deed of Assignment
of Benefits
of Contracts(s)" where applicable, the Deed of Assignment of
benefits of Contracts to be executed by the
Borrower and/or the Security Party assigning the
Benefits of Contract(s) described therein executed
between the Borrower and/or the Security Party and
the various parties named in the Contract(s)
together with all rights, interests and benefits
therein and referred to in Section 5.01 hereof in
favor of the Bank upon terms and conditions
therein acceptable to the Bank.
"Developer/Vendor" where applicable, the person(s) named in Item 7 of
the Schedule thereto and includes its
successors-in-title and assigns.
"Drawing" the principal amount of money which the Borrower
requests the Bank to disburse (whether in writing
or otherwise) from the proceeds of the Facilities.
"Drawdown Date" in relation to each Advance, each of the dates
falling on a Business Day on which a disbursement
is made from the proceeds of the Facilities.
"EBD" where applicable, the Export Bills Discounting
facility granted to the Borrower by the Bank and
includes any part thereof pursuant to the terms
herein and the General Condition set out in Item 4
of the Schedule 2 hereto.
"EBP" where applicable, the Export Bills of Exchange
Purchased facility granted to the Borrower by the
Bank and includes any part thereof pursuant to the
terms herein and the General Conditions set out in
Item 5 of the Schedule 2 hereto.
"ECR" where applicable, the Export Credit Refinancing
facility granted to the Borrower by the Bank and
includes any part thereof pursuant to the terms
herein and the General Condition set out in Item 6
of the Schedule 2 hereto.
"Events of Default" committal (whether by acts of commission or
omission) by the Borrower of any breach of the
terms of this Agreement including the happening of
any of the events specified in Article VIII.
"Facilities" refers collectively to or to anyone; of the credit
and banking facilities up to an aggregate
principal sum stated in Item 8 of the Schedule
thereto granted to the Borrower by the Bank
pursuant to the terms and conditions contained in
the Letter of Offer and herein and where the
context so requires, shall refer to any of the
Facilities and shall include any part thereof.
"FCL" where applicable, the Foreign Currency Loan
facility granted to the Borrower by the Bank and
includes any part thereof pursuant to the terms
herein and the General Conditions setout 1n Item 7
of the Schedule 2 hereto.
"FCTL" where applicable, the Foreign Currency Trade Loan
facility granted to the Borrower by the bank and
includes any part thereof pursuant to the terms
herein and the General Conditions set out in item
8 of the Schedule 2 hereto.
"FECL" the Foreign Exchange Contract Limit facility
granted to the Borrower by the Bank and includes
any part thereof pursuant to the terms herein and
the General Conditions set out in item 9 of the
Schedule 2 hereto.
"General Conditions" the general conditions with respect to the terms
of the Facilities more particularly set out in the
Schedule 2 hereto.
"General Security" Where applicable, the General Security Agreement
to be executed by the Borrower in relation to the
Trade Financing Facilities granted to the Borrower
by the Bank herein upon terms and conditions
contained therein acceptable to the Bank and
referred to in Section 5.01 hereof.
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"Guarantee" the Guarantee to be executed by the Personal
Guarantors in favour of the Bank in respect of the
Borrower's obligations herein upon such terms and
conditions contained therein acceptable to the
Bank.
"Indebtedness" the Facilities (remaining due and payable at any
time), together with accrued interest thereon at
the Prescribed Rate (including the Penalty Rate)
corresponding respectively thereto and all other
sums of money howsoever due to the Bank under the
terms of this Agreement and of the Security
Documents (as defined hereinafter) and which
expression shall where the context so requires,
include any part thereof.
"Interest Payment the last day of any Interest Period
Date"
"Interest Period" (a)(i) prior to full drawdown of the respective
TL, in relation to each period Advance,
first (1st) interest Period shall
commence on the Drawdown Date of the
Advance and end on the last day of the
calendar Month in which the Advance in
question is made (unless otherwise
stipulated by the Bank) and thereafter
each successive period of one(1) Month
each commencing from the date
immediately following the preceding
Interest Payment Date.
(a)(ii) upon All drawdown of the respective TL,
the interest period shall be a period of
one(1) month from the date of the full
drawdown (unless otherwise stipulated by
the Bank) and thereafter each successive
period of one (1) Month immediately
following the preceding Interest Period
relating thereto (unless otherwise
stipulated by the Bank).
(b)(i) prior to full drawdown of the OD, in
relation to each advance interest period
shall commence on the drawdown date of
the advance and end on the last day of
the calendar month in which the advance
in question is made (unless otherwise
stipulated by the Bank) and thereafter
each successive period of one (1) month
each commencing from the date
immediately following the preceding
interest payment date.
(b)(ii) upon full drawdown of the OD, the
interest period shall commence on the
date of the full drawdown and end on the
last day of the calendar month in which
the drawdown is made and thereafter at
the end of each calendar month (unless
otherwise stipulated by the Bank).
"Landowner" the register owner(s) of the land upon which the
Property is erected and where the context so
requires, any one of them and including their
respective heirs, executors, personal
administrators and successor-in-title.
"LC" the Letters of Credit facility granted to the
Borrower by the Bank and includes any part thereof
pursuant to the terms herein and the General
Conditions set out in Item 10 of the Schedule 2
hereto.
"Legal Process" pleadings, all forms of originating processes,
interlocutory applications of whatever nature,
affidavits, orders and such documents other than
the aforesaid which are required to be served
under the Rules of Court, notices required to be
given to the other under the Security Documents
and correspondence between the parties hereto,
notices under the Companies Act, 1965 and the
Bankruptcy Act, 1967 and the rules made
thereunder.
"LG" the Letters of Guarantee facility granted to the
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Borrower by the Bank pursuant to the terms herein
and the General Conditions set out in Item 11 of
the Schedule 2 hereto.
"Letter of Offer" the letter of offer issued by the Bank to the
Borrower which is dated the same date as in Item
14 of the Schedule 1 hereto and includes any
amendments and variations thereto.
"Memorandum of the Memorandum of Deposit of stocks, shares bonds,
Deposit of Stocks debentures, securities and other marketable
and Shares securities of any kind of any company listed on
the Kuala Lumpur Stock Exchange Whatsoever ("the
Securities") to be executed by the Borrower and/or
by the Security Party and referred in Section 5.01
hereof in favour of the Bank upon terms and
conditions therein acceptable to the Bank.
"Memorandum of where applicable, the Memorandum of Deposit of
Fixed Deposit fixed deposit receipts of Fixed Deposit executed
Receipt(s' by the Borrower and/or by the Security Party and
referred to in Section 5.01 hereof in favour of
the Bank upon terms and conditions therein
acceptable to the Bank.
"Month" that period of time which ends on the same date as
it commenced in the previous month but if there is
no numerically corresponding date in the following
month, then the period shall end on the last day
of that month.
"NPGS" where applicable, the New Principal Guarantee
Scheme granted to the Borrower by the Bank and
includes any part thereof pursuant to the terms
herein and set out in the Letter of Offer.
"OD" the Overdraft facility granted to the Borrower by
the Bank and includes any part thereof pursuant to
the terms herein and the General Conditions set
out in Item 12 of the Schedule 2 hereto.
"Penalty Rate" the rates of interest as set out in Schedule 2 to
the corresponding Facilities attached herewith or
such other rate(s) of interest over and above the
Prescribed Rate as may at any time and from time
to time be prescribed by the Bank at its sole
discretion with or without notice to the Borrower.
"Personal the person(s) named in item 11 of the Schedule 1
Guarantor(s)" hereto and includes his/their respective
representatives, heirs and executors and wherever
the context so requires any one of them.
"Prepayment a notice of a period of which is as stated in
Notice" schedule 2 hereto with respect to the
corresponding Facilities commencing from the date
the Prepayment Notice is received by the Bank and
wherein the Borrower gives the Bank notice of its
intention to pre-pay the Facilities or any one of
them or any part thereof.
"Prescribed Rate" the preferential rates of interest as set out in
the Schedule 2 hereto over and above the BLR or
the COF of the Bank to the corresponding
Facilities attached herewith or such other
rates(s) of interest as may at any time and from
time to time be prescribed by the bank at its sole
discretion with or without notice to be Borrower.
"Property" the property as described howsoever in Item 5 of
the Schedule 1 hereto and includes any part
thereof
"Propose" the purpose(s) as described in the Schedule 2
hereto to the corresponding Facilities attached
herewith.
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"RC" where applicable, the Revolving Credit facility
granted to the Borrower by the Bank and includes
any part thereof pursuant to the terms herein and
the General Conditions set out in Item 13 of the
Schedule 2 hereto.
"Ringgit Malaysia" the lawful currency of Malaysia
and the sign "RM"
"Rules of Court" the Rules of the High Court, 1980, the Subordinate
Courts Rules, 1980, whichever is applicable in the
circumstances including any amendments,
modifications or re-enactments.
"Sales and Purchase" the agreement made between the developer/vendor,
the Landowner (if applicable) and the Borrower
and/or the Security party (if applicable) on the
date stated in Item 6 of the Schedule 1 hereto
with regard to the sale and purchase of the
Property.
"Security Documents" includes the Corporate Guarantee, the Debenture,
the Deed of Assignment of Benefit Contract, the
Guarantee, the General Security Agreement, the
Memorandum of Deposit of Stocks and Shares, the
Memorandum of Deposit of Fixed Deposit Receipt(s)
where applicable and includes such other security
documents as stated specifically in Item 16 of the
Schedule 1 hereto executed hereunder now and also
includes such other security documents executed
hereafter.
"Security Party" includes the Corporate Guarantor, Personal
Guarantor and any person(s) providing any security
to the Bank to secure the repayment and payment by
the Borrower of all moneys, interests, costs,
charges and other moneys arising from or in
connection with the Facilities and described in
Item 9 of the Schedule 1 hereto.
"SG" where applicable, the Shipping Guarantee facility
granted by the Bank for the benefit of the
Borrower pursuant to the terms herein and the
General Conditions set out in Item 14 of the
Schedule 2 hereto.
"STA" where applicable, the Short Term Advances facility
granted to the Borrower by the Bank pursuant to
the terms herein and the General Conditions set
out in Item 15 of the Schedule 2 hereto.
"Supporting the documents stated in Item 12 of the Schedule 1
Documents" hereto as required by the Bank from the Borrower
and any Security Party in a form and substance
acceptable to the Bank.
"Tenor" the period(s) as set out in the Schedule 2 hereto
to the corresponding Facilities and on the expiry
thereof respectively the aggregate of all Advances
or the Facilities and all sums owing thereunder
and interest thereon (including interest at the
Penalty Rate) and all other sums howsoever due and
payable to the Bank must be fully repaid and paid
respectively to the Bank such that the
Indebtedness of the Borrower shall be fully
discharged and includes any renewal thereof.
"TL" the Term Loan 1, Term Loan 2 and Term Loan 3
facilities or any of them granted to the Borrower
by the Bank and includes any part thereof pursuant
to the terms herein and the General Conditions set
out in Item 16 of the Schedule 2 hereto.
"TR" the Trust Receipt facility granted to the Borrower
by the Bank and includes any part thereof pursuant
to the terms herein and the General Conditions set
out in Item 17 of the Schedule 2 hereto.
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"Trade Financing includes the Trade Financing Facilities such as
Facilities" BA, BD, DBP, EBD, EBP, ECR, FCL, FCTL, FECL, LC,
LO, SO, and TR which have been granted herein by
the Bank to the Borrower and where the context so
requires, shall refer to any one of them.
SECTION 1.02 INTERPRETATION
(a) Words importing the singular number include the plural and vice versa.
(b) Words importing the masculine gender includes the feminine and neuter
genders.
(c) The words "hereof", "herein", "hereon", "hereinafter", and hereunder, and
words of similar import, when used in this Agreement shall, where the
context requires or allows, refer to this Agreement as a whole and not to
any particular provision of this Agreement.
(d) Reference herein to Articles, Sections and Schedules is reference to
Articles, Sections and Schedules in this Agreement unless otherwise
specified. The Schedules shall be form an integral part of this Agreement.
(e) The headings and sub-headings in this Agreement are inserted for
convenience only and are to be ignored when construing the provisions of
this Agreement.
(f) Where an act is required to be done within a specified number after or from
a specified date, the period is inclusive of and begins to run from the
date so specified.
(g) A period of a month from the happening of an event or the doing of an act
or thing shall be deemed to be inclusive of the day on which the event
happens or the act or thing is done or is required to be done.
(h) Any references to statutes and the rules made thereunder include all
amendments which may be enacted from time to time.
(i) Any references made to any Item of the Schedules hereto which itself does
not contain any further and/or invalid references, dates, descriptions or
whatsoever shall be construed as having neuter effect and shall not render
the provision and any part thereof invalid but shall firstly be construed
liberally to encompass typographical errors and documentation misnomer
where the context so requires.
(j) Where the Borrower or the Security Party is a company, the provisions
contained herein which are primarily and literally applicable to the case
of natural persons, shall be construed and take effect as if the Borrower
or the Security Party is a natural person, and shall bind all of its
assigns and successors-in-title accordingly. Any references herein relating
to bankruptcy shall thereafter include references to the winding-up,
liquidation, amalgamation or reconstruction , as the case may be, of the
Borrower or the Security Party.
SECTION 2.01 APPLICATION FOR THE FACILITIES
(a) At the request of the Borrower and/or the Security Party (if any), the Bank
has agreed to grant and to make available the Facilities to the Borrower
upon the terms and conditions contained in the Letter of Offer and herein.
(b) In consideration of the Bank agreeing to grant the Facilities up to a
maximum principal limit as specified in item 8 of the Schedule 1 hereto to
the Borrower, the Borrower and/or the Security Party (if any) have agreed
to provide security for the Indebtedness in the manner as provide herein.
8
SECTION 2.02 PURPOSE OF THE FACILITIES
The proceeds of the Facilities or any part thereof shall be applied in
accordance with the Purpose only. In the event the Borrower requires or propose
or intends to use proceeds of the facilities or of any sum thereuder for any
other purpose, whether or not the said other purpose is incidental to the
Purpose, written consent from the bank must be first obtained by the Borower and
shall be applied as prescribed by the Bank at its absolute discretion.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to and undertakes with the Bank as
follows:
(a) That the Borrower and/or the Security Party (if any) have the power to
execute, deliver and perform the terms of the Security Documents and have
taken all necessary corporate and other action to authorize the execution,
delivery and performance of the Security Documents,
(b) That the Security Documents constitute the legal, valid and binding
obligations of the Borrower and/or the Security Party (if any) in
accordance with their respective terms;
(c) That the execution, delivery and performance of the Security Documents by
the Borrower and/or the Security Party (if any) will not exceed the power
granted to them by or violate the provisons of:
i) any law or regulation or any order or decree of any governmental
authority, agency or court to which they are subjected to; and
ii) the Memorandum and Articles of Association of the Borrower (if
applicable) and, or the Security Party (if any); and
iii) any mortgage, contract or other undertaking or instrument to which the
Borrower and/or the Security Party (if any) are parties or which is binding
upon them or any of their assets and will not result in the creation
imposition of, or any of obligation to createor impose, any mortgage, lien,
pledge or change on any of their assets or revenue pursuant to the
provisions of any such mortgage, contract or other undertaking or
instrument;
(d) That neither the Borrower nor any of the Security Party (if any) are in
default under any agreement to which they are parties or by which they may
be bound and no litigation, arbitration or administrative proceedings are
presently current or pending or threatened which default, litigation,
arbitration or administrative proceedings as the case may be, might impair
its ability to perform its respective obligations hereunder, or affect the
decision of the Bank to proceed with this Agreement or continue to make
available the Facilities;
(e) That the Borrower and/or the Security Party (if applicable) is the
registered owner of the Property and that the Property is free from all
encumbrances;
(f) That all consents, or licences, or approvals or authorizations, or orders
and exemptions of any Ministry, agency, department or authority in Malaysia
which are required or advisable to be obtained in connection with the
execution, delivery, performance, legality or enforceability of the
Security Documents or any of them have been obtained and are in full force
and effect and no further consent, licence, approval, authorization, order
or exemption is required therefor,
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(g) The information furnished by the Borrower in connection with the Facilities
doest not contain any untrue statement or omit to state any fact the
omission of which makes any statements made therein in the light of the
circumstances under which they are made, misleading;
(h) That no Event of Default has occurred or will occur as a result of the Bank
making available or continue to make available the Facilities.
(i) That the Borrower and/or the Security Party (if applicable) is not in
default of the Sale and Purchase Agreement;
(j) That no steps have been taken or are being taken to appoint a receiver,
receiver and manager, or liquidator to take over or to wind-up the Borrower
and/or the Security Party (if applicable); and
(k) That Section 62 of the Act is not applicable in the circumstances of the
Facilities;
SECTION 3.02 CONTINUING NATURE OF REPRESENTATIONS AND WARRANTIES
(a) The Borrower shall be deemed to represent and warrant to the Bank on each
of the dates on which it shall hereafter draw on the Facilities that:
i) the representations and warranties (up-dated mutatis mutandis) contained
in Section 3.01 hereof are true and accurate in all respects as if made on
such date; and
ii) no Event of Default contained in Section 8.01 hereof, and no event
which with the giving of notice or passing of time would constitude an
event of Default has occurred.
(b) Where any representation or warranty or any statement contained herein
proves to be misleading or incorrect, it shall be deemed to have been made
with the consent or connivance of or attributable to the neglect on the
part of any director, manager or secretary or other similar officer of the
Borrower purporting to act in such capacity.
ARTICLE IV
THE FACILITIES
SECTION 4.01 AGREEMENT FOR THE FACILITIES
The Bank relying upon each of the representations and warranties set out in
Section 3.01 hereof, hereby agrees with the Borrower and the Security Party(if
any) to make available to Borrower, throughout the Availability Period, the
Facilities and permit Drawings thereon for the various facilities granted
therein upon the terms and conditions hereinafter appearing.
SECTION 4.02 THE FACILITIES
The Borrower hereby further declares and confirms that the Facilities herein
granted by the Bank shall be up to the aggregate principal limits set out in
Item 8 of the Schedule 1 hereto together with the various rates interest also
set out in the attached corresponding Schedule 2 to the corresponding Facilities
hereto and the facilities shall be secured by this Agreement and the Security
Documents. The Borrower hereby futher agrees that the General Conditions with
respect to the Facilities or any one of them shall be governed by the Schedule 2
hereto corresponding to the respective Facilities and the Operation Conditions
of the Trade Financing Facilities shall be set out in and secured by the General
Security Agreement.
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SECTION 4.03 AVAILABILITY PERIOD OF THE FACILITIES
Without prejudice to the provisions contained herein for earlier termination and
subject to the terms hereof, the Facilities shall initially be available within
the Availbility Period. Without prejudice to the Bank's right to review the
Facilities periodically, the Facilities shall expire and may in the absolute
discretion of the Bank be renewed for such further period or periods, as the
Bank may prescribe and in the event of such renewal unless otherwise informed by
the Bank or otherwise; the terms of the Security Documents will continue to
apply save and except for the Tenor which shall be extended to the last day of
the renewed period.
SECTION 4.04 PURPOSE OF THE FACILITIES
The proceeds of the Facilities and of all Advances shall be applied by the
Borrower for the Purpose. In the event the Borrower requires or proposes or
intends to use the proceeds of the Facilities of any Advance for any other
purpose, written consent from the Bank must first be obtained by the Borrower.
SECTION 4.05 VARIATION OF INTEREST AND COMMISSION
(a) Notwithstanding the provisions relating to the rate of interest and
commission a herein provided, the Bank is entitled at any time and from
time to time to vary at its discretion such rate of interest (including
changing entirely the basis upon which the Prescribed Rate or the rate of
interest is arrived at) and commission and/or the mode of calculation
thereof and such amended rate(s) of interest and commission shall be
payable as from the date the variation took effect. The Bank shall give
notice of the change of the rate(s) interest or commission, or of the
Prescribed Rate to the Borrower and for the purpose of this Section,
failure the Bank to notify the Borrower of any variation shall not
prejudice or have the effect of invalidating any such variation. Notice by
the Bank may take any form and an advertisement in a daily newspaper
addressed to the general public is deemed sufficient notice to the
Borrower.
(b) If and whenever the rate of interest payable by the Borrower under this
Agreement shall be varied in the manner herein, the Bank may at its
absolute discretion make this necessary adjustment consequential to such
variation by :
i) varying the amount of any instalments; or
ii) varying the number of instalments; or
iii) both.
SECTION 4.06 CALCULATION OF INTEREST
All interest referred to herein shall be calculated monthly on the basis of a
365/366 day/year period as applicable.
SECTION 4.07 CAPITALISATION OF INTEREST
Subject always to Section 4.05, interest on any principal moneys for the time
being hereby secured (including capitalized interest) shall, at the end of each
month, be capitalised and added for all purposes to be principal sum then owing
and shall thenceforth bear interest at the Prescribed Rate or such other rate(s)
of interest set out in the Schedule 2 hereto and in this Agreement and be
secured and payable accordingly and all the covenants and conditions contained
in or implied by this Agreement and all powers and remedies conferred by law or
by this Agreement and all rules of law or equity in relation to the said
principal sum and interest shall equally apply to such capitalized arrears of
interest and to interest on such arrears.
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SECTION 4.08 ASCERTAINING LIMIT
For the purpose of ascertaining whether the limit of the principal intended to
be hereby secured has been exceeded or not all accumulated and capitalized
interest, fees and all other charges shall be deemed to be interest, commission,
fees or other charges and not principal sum.
SECTION 4.09 REVIEW OF ACCOUNT
The Bank hereby reserves to itself the absolute right to review the Borrower's
account with the Bank at half yearly intervals or at such other periods as the
Bank may deem necessary.
SECTION 4.10 VARIATION OF FACILITIES
Notwithstanding any provision herein contained the parties herein hereby agree
that the Bank may at any time hereafter at the request of the Borrower or at the
Bank's absolute discretion convey, vary or substitude the Facilities or any part
thereof into another banking facility or facilities Provided Always that the
said facility or facilities are within the limit of the aggregate principal sum
of the Facilities as stated in item 8 of the Schedule 1 hereto remaining
available for Drawing or in credit and in any such event the securities,
liabilities and obligations - created by this Agreement and the Security
Documents shall continue to be valid and binding for all purposes whatsoever
notwithstanding the change and/or variation aforsaid but subject to such
variations as shall be made known by the Bank to the Borrower.
SECTION 4.11 REPAYMENT OF FACILITIES
Without prejudice to Section 8.02, the Facilities so far as not otherwise repaid
or discharged under the provisions of this Agreement shall be repaid by the
Borrower on demand by the Bank and until such demand is made, the Borrower shall
repay the Facilities respectively together with interest thereon at the
Prescribed Rate in the manner provided in the Schedule 2 hereto corresponding to
the Facilities timeously without notice from the Bank, such that the
indebtedness of the Borrower shall have been fully discharged at latest on the
expiry of the Tenor of the Facilities.
SECTION 4.12 PREPAYMENT OF FACILITIES
It is hereby agreed that notwithstanding any provision for the repayment of the
Facilities and interest thereon hereinbefore contained, the Borrower may at any
time thereafter by giving the requisite Prepayment Notice as set out in the
Schedule 2 hereto to the corresponding Facilities (or by paying interest at the
Prescribed Rate for a similar period in lieu of such notice) repay the whole of
the Facilities or any part thereof then owing to the Bank as the Bank may in its
absolute discretion accept.
SECTION 4.13 VARIATION OF DATES FOR REPAYMENT OF FACILITIES
It is hereby expressly agreed and declared by the parties hereto that
notwithstanding the provisions of section 4.11 hereof, the dates and manner
therein provided for the repayment of the Facilities respectively may at any
time and from time to time be varied with the written consent of the Bank and
more particulary but not limited to, in the event wherein the rate of interest
payable by the Borrower under this Agreement shall be varied in accordance with
the provisions in Section 4.05 hereof and thereupon such variation in the manner
aforesaid shall be deemed to be effective and the respective date of payment of
the instalments and the Tenor shall be deemed to have been amended accordingly
and shall be read and construed as if such variation had been incorporated in
and forms part of this Agreement at the date of execution thereof .
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ARTICLE V
SECURITY
SECTION 5.01 SECURITY (IF APPLICABLE)
As security for the Facilities, interest thereon and all other moneys owing and
payable by the Borrower under the terms of this Agreement:
(a) The Borrower shall simultaneously with the execution of this Agreement
execute in favor of and deliver to the Bank, the Charge in accordance with
the provisions of the National Land Code in respect of the Property and the
Security Documents together with the relevant documents and/or document(s)
of title hereto free from all encumbrances and caveats of any nature upon
the terms and conditions contained therein as the Bank may require; and
(b) The Borrower shall cause the Security Party (if any) to execute and to
deliver in favor of the Bank, the Security Documents upon such terms and
conditions contained therein respectively together with all the necessary
documents as the Bank may require.
SECTION 5.02 OBLIGATIONS OF BORROWER
It is expressly agreed, however, that notwithstanding anything contained herein
to the contrary, the Borrower shall remain liable under the Sale and Purchase
Agreement (if applicable) observe and perform all of the conditions and
obligations therein provided to be observed and performed by him, and the Bank
shall have no obligation or liability under the Sale and Purchase Agreement by
the reason of or arising out of this Agreement and the Charge, nor shall the
Bank be required or obligated in any manner to observe or perform any of the
conditions or obligations of the Borrower under or pursuant to the Sale and
Purchase Agreement or to present or file any claim, or take any other action to
enforce the terms of the sale and Purchase Agreement.
SECTION 5.03 COVENANT TO PROVIDE FURTHER SECURITY
The Borrower shall at the request of the Bank charge to, or deposit with, the
Bank such documents of title to any or all immovable properties vested in the
Borrower for any tenure. Such charge or deposit may be by way of security for
the repayment of moneys hereby secured and may also or otherwise be for the
purpose of securing any other moneys owing to the Bank and not secured hereby.
SECTION 5.04 CONTINUING SECURITY
The security created by this Agreement is expressly intended to be and shall be
a continuing security for all moneys whatsoever now or hereafter from time to
time owing to the Bank 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 cease to be indebted to the Bank for any period or
periods and notwithstanding that the account or accounts of the Borrower with
the Bank may from any cause whatsoever cease.
SECTION 5.05 LIENS AND OTHER RIGHTS
Nothing herein contained shall prejudice or affect the rights and remedies to
which Bank shall be entitled to against the Borrower or the Bank to any other
securities which the Bank may at any time or from time to time hold for or on
account of the principal sums outstanding from time to time under the Facilities
or any moneys lent to or advanced for the benefit of the Borrower by the Bank,
interest thereon and all other moneys due and owing and remaining unpaid by the
Borrower to the Bank or shall anything therein prejudice or affect any bid,
note, guarantee, charge or other security which the Bank may for the time being
have or hold for the principal sum outstanding from time to time under the
13
Facilities interest thereon and other moneys aforesaid or any right or remedy of
the Bank under such xxxx, note, guarantee, charge or other security.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.01 CONDITIONS PRECEDENT
The following events are specified as conditions to the utilization of the
Facilities and the continued availability of the Facilities to the Borrower:
(a) This Agreement and the Security Documents shall have been duly executed by
the respective parties thereto and this Agreement and the Security
Documents have been stamped;
(b) There have been no material alterations or changes in the constitution,
condition, business, or other affairs of the Borrower which could or might
adversely affect the decision of the Bank to continue the Facilities;
(c) The certified true copy of the Memorandum and Articles of Association of
the Borrower and of the Security Party (wherever applicable) are in such
form and substance satisfactory to the Bank:
(d) The Bank shall have received the Suppor1ing Documents and such other
documents as may be required by the Bank in form and substance satisfactory
to it;
(e) The Bank shall have received (if applicable) a search report conducted at
the Registry of Companies confirming that there is no existing legal
encumbrances over the Property except as disclosed to the Bank by the
Borrower (if applicable) and/or of any Security Party (if applicable);
(f) The Bank shall have received certified true copies of the latest Forms 24
and 49 confirming the respective identities of the directors and
shareholders of the Borrower (if applicable) and/or the Security Party (if
applicable);
(g) The Bank shall have received certified true copies of Board Resolutions of
the Borrower (if applicable) setting out the persons authorized to accept
the offer, to operate the Facilities, to execute the Security Documents and
to furnish their specimen signatures (if applicable);
(h) the Bank shall have received such other documents, opinions, undertakings,
authorizations or assurances pertaining to the terms of this Agreement as
the Bank may reasonably request; and
(i) The Borrower shall have complied with and satisfied all additional
Conditions Precedent (if any) stipulated in Item 13 of the Schedule 1
hereto to the satisfaction of the Bank.
Pending fulfillment in a manner satisfactory to the Bank of the conditions
herein stipulated and such other conditions as the Bank may impose from time to
time, unless otherwise waived by the Bank, the Bank may at its absolute
discretion terminate the Facilities or suspend the disbursement of the
Facilities or part thereof And the Borrower hereby unconditionally and
irrevocably authorises the Bank to pay the proceeds to such parties and in
accordance with such undertakings which the Bank may give or to such parties as
the Bank may in its absolute discretion deem expedient. All moneys so paid shall
be deemed to form part of the Facilities and the acknowledgment or receipt of
such parties shall be deemed as if the same had been made or given by the
Borrower itself.
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SECTION 6.02 PERFORMANCE OF COVENANTS
The obligation of the Bank to continue to make available the Facilities shall
also be subject to the following conditions:
(a) the Bank is satisfied that no event has occurred so as to render the
Facilities to become immediately withdrawn under the provisions of any of
the Security Documents;
(b) there is no default by the Borrower and/or the Security Party or anyone of
them in the performance of any of the terms and conditions contained in any
of the Security Documents; and
(c) no extraordinary circumstances, or change of law, or other governmental
action, have occurred and which occurrence makes it improbable (in the
absolute opinion of the Bank) that the Borrower and for the Security Party
or any of them will be able to observe and perform the covenants and
obligations on their part to be performed under the Security Documents;
(d) no adverse change, howsoever brought about, has taken place in the
financial condition of the Borrower and or the Security Party or any of
them and which, in the sole and absolute opinion of the Bank, may
materially affect their ability to fulfill their obligations under the
Security Documents then or in the future.
ARTICLE VII
POSITIVE COVENANTS
SECTION 7.01 POSITIVE COVENANTS
The Borrower hereby expressly covenants with the Bank that the Borrower will at
all times during the continuance of this Agreement:
(a) keep all structures and fixtures now or at any time hereafter erected on or
affixed the property in tenantable repair and condition. In default whereof
it shall be lawful for but not obligatory upon the Bank to carry out such
repairs;
(b) permit the Bank and its agents and workmen at all reasonable times of the
day to enter upon the Property and have access to any fixture thereon and
to view and inspect the condition or repair thereof PROVIDED HOWEVER that
if the Bank shall enter and repair the same the Bank shall charge all costs
and expenses to the account of the Borrower which shall bear interest at
the rate of the BLR plus Four Per Centum Per Annum (4% P.A);
(c) comply with and observe all the conditions restrictions and category of
use, express or implied imposed upon, relating to, or affecting the
Property or to which the Property is subject as well as the provisions of
any Act of Parliament ordinance or enactment for the time being in force
and of any rule or order made thereunder affecting the same;
(d) pay the quit rent, assessment rates, taxes, service charges and all other
outgoings whatsoever payable from time to time in respect of the Property
as and when the same shall become due and payable. In default whereof it
shall be lawful for but not obligatory upon the Bank to pay the same or any
part thereof and upon such payments by the Bank all sums so paid shall be
for the account of the Borrower and shall bear interest at the rate of the
BLR plus Four Per Centum Per Annum (4% P.A.};
(e) inform the Bank of any application, demand, notice. order whatsoever or any
other notice. document or transaction in any way affecting, or concerning
the Property or any part thereof forthwith upon its issue, publication or
service (time being of the essence in respect hereof) and produce the same
to the Bank whether demanded or not AND the Borrower shall do all acts and
take all steps necessary or expedient to safeguard and preserve the
Property or any part thereof or the title or ownership thereto AND the Bank
may if it thinks fit and on behalf of or in the name and at the expense of
the Borrower do all such acts and employ all such
15
persons as the Bank shall deem fit for the purpose of or connected with
safeguarding and preserving the property.
(f) Pay all costs and expenses, legal or otherwise, including stamp duty (if
any) of or connected with :
i) the preparation and execution of this Agreement and Security
Documents;
ii) all legal fees as between Solicitor and Client and other costs and
disbursements incurred in connection with demanding and enforcing
payment of the moneys due hereunder or otherwise howsoever in
enforcing any of the terms conditions and stipulations hereof
contained;
(g) Give full particulars in writing within seven (7) days to the Bank upon
receipt of any notice or order or proposal therefor given issued or made to
the Borrower in respect of the Property by or on behalf of any planning,
local government, public health, sanitary housing or other authority and if
so required by the Bank, without delay and within the period prescribed by
such notice, take all reasonable or necessary steps to comply with the
provisions of such notice or order and also at the request of the Bank and
at the cost of the Borrower, make or join with the Bank in making such
objections or representations against or in respect of any such notice or
order or proposal therefor as the Bank may deem expedient;
(h) Observe and perform all the terms and conditions contained in this
Agreement and Charge and on the part of the Borrower to be observed and
performed and in addition thereto any condition and covenant binding upon
the Property and not do or omit to do any, act, matter or thing on or in
respect of the Property which shall contravene the provisions of this
Agreement or the Charge or of any act, ordinance, enactment, order, rule or
regulation now or hereafter affecting the same and at all times hereafter
indemnify and keep indemnified the Bank against all actions, proceedings,
costs, expenses, claims and demands in respect of such act matter or thing
done omitted or suffered to be done in contravention of the said
provisions;
(i) Observe and perform all the terms and conditions contained in Sale and
Purchase Agreement (where applicable);
(j) Carry out and operate its business and affairs with due diligence and
efficiency and in accordance with sound financial and industrial standards
(if applicable) and practices and in accordance with its Memorandum and
Articles of Association as amended from time to time (if applicable);
(k) Keep full and particular accounts of the carrying on of its business or
businesses and cause the same to be properly posted up-to-date and furnish
to the Bank within sixty(60) days from the end of each half year of each
financial year copies of complete financial statements of the Borrower
certified by an officer of the Borrower in such forms as the Bank may from
time to time determine, and further, as soon as available, but in any event
within one hundred and twenty(120) days after the end of each financial
year of the Borrower, forward to the Bank two copies of its balance sheet,
profit and loss account and report audited and certified by a qualified
independent auditor stating accurately, in accordance with generally
accepted accounting standards, the financial condition of the Borrower;
(l) Permit the Bank including its agents and servants at all times to inspect
the assets (including all documents and records relating thereto) hereby
charged and, for such purpose, to enter upon any land or premises upon
which the same may kept and to make inventories and records thereof and if
the Bank shall reasonably so desire, to have the same valued at the expense
of the Borrower by a valuer appointed by the Bank. Any such entry and
inspection shall be arranged in advance with the Borrower and shall not
unreasonably interfere with the operations of the Borrower's business;
(m) Maintain adequate records to monitor the progress of its business and to
reflect, in accordance with consistently maintained sound accounting
practices, the operations and
16
financial condition of the Borrower and allow the Bank or its respective agents
and servants to inspect all records at any office, branch or place of business
of the Borrower or elsewhere and all records kept by any other authorities or
persons so far as such records relate to or affect the Borrower's properties
assets and business and the Borrower hereby gives (without need for any further
act) to the Bank or any person authorised by the Bank access to and the right to
inspect such records as may be required to enable the Bank (if applicable) to
inspect the said records;
(n) keep and maintain its present paid up share capital and increases, if any
in respect thereof (if applicable);
(o) appoint from time to time only such auditor or firm of auditors to supply
the Bank with a certified copy each of any communication sent by such
auditor to the Borrower and further to communicate directly with the Bank
at any time in respect of any matter (if applicable) connected with the
accounts and operation of the Borrower;
(p) keep all its fixed and floating assets adequately (if applicable) insured
at all material times (if applicable);
(q) notify the Bank in writing or any changes in the composition of (if
applicable) its board of directors and shareholders (if applicable);
(r) notify the Bank of any legal proceedings, litigation and claims against the
Borrower and any of its subsidiaries and/or any Security Party (if
applicable);
(s) to pay all its Indebtedness under this Agreement when due and owing;
(t) subordinate to the Facilities set out herein all loans from the
Shareholders and directors of the Borrower (if applicable) or from
companies related to the Borrower;
(u) operate the Facilities actively and satisfactorily within the respective
limits set out herein;
(v) notify the Bank of any occurrence of any Event of Default or any other
occurrence of which the Borrower becomes aware of which in its reasonable
opinion might adversely affect its ability to fully comply with its
obligations under this Agreement; and
(w) carry on any business other than its existing business on the date it first
applied for the Facilities.
SECTION 7.02 NEGATIVE COVENANTS
Until the indebtedness is fully discharged and satisfied the Borrower hereby
covenants with the Bank that it will not without the consent of the Bank in
writing first had and obtained:
(a) where applicable, assign, transfer, sell, charge or otherwise howsoever
deal with the Borrower's rights, title and interest under the Sale and
Purchase Agreement or the Property or any part thereof or any interest
therein or any other material fixed assets, land or other investment or
make the same subject to any charge, encumbrance, liability or lien
whatsoever or rescind, remove or amend any condition or restriction
affecting the property without the written consent of the Bank first had
and obtained;
(b) lease, let out, or grant any licence or otherwise howsoever part with the
possession or make or accept the surrender of any lease whatsoever of or in
respect of the Property or any fixture, structure or any part thereof to
any person, firm or company without the consent in writing of the Bank
first had and obtained and which consent may be given or refused without
assigning any reason therefor either absolutely or on such terms and
conditions as the Bank deems fit and decision of the Bank shall be final
and conclusive;
17
(c) enter into any reconstruction, amalgamation, merger or consolidation or
sell or lease all or substantially all of its assets;
(d) incur, assume, guarantee or permit to exist any indebtedness except:
(i) the Facilities; and
(ii) short-term debts incurred in respect of money borrowed from licensed
banks or from other sources in the ordinary course of business;
For the purpose of this paragraph, any credit from a supplier of capital
goods, installment purchase or other similar arrangement is deemed to be
indebtedness and is not deemed to be permitted by Section 7.02(d) (ii)
hereof; and a short-term debt is deemed to be any debt payable on demand or
maturing by its terms within twelve (12) months after the date on which it
was originally incurred;
(e) create or permit to exist any lien or charge on or any assignment of any
assets (including choses in action) of the Borrower except :-
(i) those created under the Security Documents or any of them as the case
may be;
(ii) any tax or other statutory lien, provided that such lien shall be
discharge within thirty (30) days after final adjudication.
For the purpose of this paragraph, the expression aliens includes
mortgages, pledges, charges, privileges and priorities of any kind, and the
expression "assets" includes any revenue and property movable and immovable
of any kind;
(f) enter into any transaction with any person, firm or company except in the
ordinary course of business on ordinary commercial terms and on the basis
of arm's length arrangements, or establish any exclusive purchasing or sale
agency, or enter into any transaction whereby the Borrower might pay more
than the original commercial price for any purchase or might receive less
than the full ex-work commercial price (subject to normal trade discount)
for its products;
(g) subject to the provision of this Agreement and the Security Documents,
enter into any partnership, profit-sharing or royalty agreement or other
similar arrangement except in the ordinary course of business on ordinary
commercial terms and on the basis of arm's length arrangements whereby the
Borrower's income or profits are, or might be, shared with any other
person, firm or Borrower; or enter into any arrangement contract or similar
arrangement whereby the Borrower's business or operations are managed by
any other person, firm or Borrower;
2. have any subsidiary, or make, or permit to exist loans, or lend, or make
advances to others or make investments in other company or enterprises, or
guarantee arty person enterprise or company (other than normal trade credit
or trade guarantee or temporary loans to staff, customers, contractors or
suppliers in the ordinary course of business) PROVIDED that the Borrower
shall be at liberty to invest in short-term marketable securities acquired
solely so as to utilise such funds of the Borrower as are not immediately
required for the Borrower's business;
3. add to, delete, vary or amend its Memorandum and Articles of Association in
any manner which would be inconsistent with the provisions of this
Agreement or changes (if applicable) its financial year, or the nature of
its present (if applicable) business, or sell, transfer, lease or otherwise
dispose of all or a substantial part of its capital assets, or undertaking,
or permit any merger, consolidation (if applicable) or reorganization (if
applicable);
(j) decrease its authorized or issued capital (if applicable); and
18
(k) declare or pay any dividend, or bonus issue, or make any distribution of
share capital, but such consent of the Bank shall not be unreasonably
withheld (if applicable);
ARTICLE VIII
REMEDIES OF THE BANK
SECTION 8.01 EVENTS OF DEFAULT
The Bank may be written notice to the Borrower declare that the Facilities be
cancelled and declare all moneys payable under this Agreement and the Security
Documents to be forthwith due and payable and thereupon the same shall become so
payable to the Bank:
(a) if the Borrower or any Security Party fails or defaults under any
provisions of the Security Documents which is not capable of remedy or
which, being capable of remedy, is not remedied within seven (7) days after
notice to the Borrower or any Security Party from the Bank requesting
action to remedy the same; or
(b) if the Borrower and Security Party, or any of them, fail to comply with any
notice given under the Security Documents requiring them to remedy any
breach of the terms of the Security Documents, or any situation other than
a breach within the time stipulated therefor, or
(c) if any other indebtedness of the Borrower becomes, or becomes capable in
accordance with the relevant terms hereof being declared due prematurely by
reason of a default by the Borrower in its obligations under the Security
Documents with respect to the same or the Borrower fails to make any
payment in respect thereof on the due date for payment or upon the security
for any indebtedness becoming enforceable; or
(d) if any representation or warranty made by the Borrower or by any Security
Party in this Agreement or the Charge for the Security Documents or in the
Supporting Documents or implied or expressed in any notice, certificate,
letter or other documents made or delivered pursuant to the terms of this
Agreement is incorrect or misleading in a material particular as of the
date at which it was made or deemed to have (if applicable) been made or if
repeated at any time so long as the Facilities of the Borrower are
outstanding; or
(e) if the Borrower or any Security Party ceases or threatens to cease to carry
on their business; or
(f) if a petition shall be presented or award is made, or a resolution is
passed, for winding-up of the Borrower (if applicable) or any one of the
Security Party (if applicable) or for the bankruptcy of the Borrower or of
the Borrower's directors or the Security Party or any of them; or
(g) if a distress or execution or other process of a Court of competent
jurisdiction is levied upon or issued against any property of the Borrower
or Security Party and such distress execution or other process, as the case
may be, is not satisfied by the Borrower within seven (7) days from the
date thereof, or
(h) if a Receiver, or Manager, or both, is or are appointed over the Borrowers
or any one of the Security Party's undertaking or property or any part
thereof pursuant to any instrument (including the Companies Act 1965) other
than by the Bank under the provisions hereof; or
(i) if applicable, if the Borrower or any Security Party or any of them
commits, or threatens to commit a breach of any term, stipulation, covenant
or undertaking contained in the Sale and Purchase Agreement or the Security
Documents to which it is a party; or
19
(j) if the Borrower, or any Security Party or any one of them under the
Security Documents, commits a default of any provision of any agreement, or
Security Documents, or both (as the case may be) relating to other accounts
or loan facilities granted by the Bank to the Borrower or such Security
Party; or
(k) (if applicable), if, before the Property is fully and completely
constructed, a petition is presented for the winding-up of the
Developer/Vendor or the Landowner; or
(l) if, in the opinion of the Bank (which shall be final and binding) the
business and affairs of the Borrower is not being carried on or conducted
in accordance with sound financial and business standards and practices
generally applicable to the industry; or
(m) if the Security Documents shall be challenged as to their or its validity
by any person; or
(n) (if applicable) if the Developer/Vendor or landowner shall suspend or give
notice to any person of its intention to suspend construction of the
Property, or abandons construction; or
(o) if an event has, or event have, or a situation exists, which could or might
in the opinion of the Bank prejudice the ability of the Borrower and any
Security Party to perform their obligations under the Security Documents in
accordance with their respective terms; or
(p) if the Bank shall be of the opinion that any of the Security created
pursuant to the Security Documents is in jeopardy; or
(q) if the account of the Borrower is in the absolute discretion of the Bark
unsatisfactorily maintained or operated; or
(r) if the Borrower commits or threatens to commit a default or breach of any
term or condition of any other account maintained by the Borrower with the
bank now or hereafter; or
(s) if the Borrower commits or threatens to commit a default under any of its
contractual obligations with any other parties including the Bank with
regard to its borrowing howsoever, or
(t) if in the absolute opinion of the Bank, the Borrower's account(s) with the
Bank (including any other accounts the Borrower may have with the Bank is
or has not been operated satisfactorily; or
(u) if an event or events shall have occurred or a situation exists which could
or might, in the opinion of the Bank, prejudice the ability of the Borrower
and/or any Security Party or any one of them to perform their respective
obligations under the Security Documents in accordance with their
respective terms.
SECTION 8.02 RIGHT OF BANK ON BORROWER'S DEFAULT
(a) If the Borrower shall commit a default pursuant to Section 8.01 or if any
of the events stipulated in Section 8.01 hereof shall happen and which if
capable of remedy is not remedied within a period of seven (7) days from
the date of notice by the Bank requesting remedy of the same, or is not
remedied within the time specifically stipulated thereof (if any) in
respect of the event in question, the Facilities, interest thereon and all
other sums payable under this Agreement shall become and be deemed to be,
notwithstanding anything contained herein to the contrary, forthwith due
and payable and whereupon the Bank shall be entitle without further notice
to the Borrower institute such proceedings and take such steps *including
any proceedings for the realization of its security under any of the
Security Documents) as it may think fit to enforce payment of all amounts
due and payable pursuant to this Agreement and Security Documents;
20
(b) Notwithstanding anything contained in the Security Documents, the Bank is
free to exercise such rights as it may possess in the Security Documents
against the respective parties regardless of whether the Facilities have
been recalled or not and such exercise may be for the purpose of remedying
the breach in question.
AND the Borrower hereby expressly agrees covenants and undertakes to do and
executes all acts deeds instruments and things which the Bank may require or
stipulate for the purposes of effecting and or completing anything and or any
transaction mentioned in this Section.
SECTION 8.03 PROCEEDS OF SALE
All moneys received by the Bank from any proceeding instituted or steps taken
under any of the Security Documents shall, subject to statutory priorities (if
any), be applied by the Bank:
FIRSTLY in payment of all costs charges and expenses incurred and
payments made the Bank under the provisions of all or any of the
Security Documents.
SECONDLY in or towards payments to the Bank of all interest then accrued
and remaining unpaid in respect of the Facilities, or the balance
thereof for the time being owing.
THIRDLY in or towards payment to the Bank of the principal sum due and
remaining unpaid under the Facilities.
FOURTHLY in or towards payment to the Bank of all other moneys due and
remaining unpaid under any or all of the Security Documents.
FIFTHLY any surplus shall be paid to such persons entitled thereto.
PROVIDED ALWAYS THAT if the Bank shall be of the opinion that the security may
prove deficient payments may be made to the Bank on account of principal before
interest but such alteration in the order of payment shall not prejudice the
right of the Bank to receive the full amount to which it would have been entitle
if the primary order had been observed or any lesser amount which the sum
lllternately realised from the security may be sufficient to pay.
SECTION 8.04 DEFICIENCY IN PROCEEDS OF SALE
If the amount recovered or realised under this Agreement or any of the Security
Documents after deduction and payment, from the amount so recovered or realised,
if all fees, costs, expenses and other outgoing, is less than the amount due to
the Bank hereunder and under the Security Documents (if any) and whether in the
process of such recovery or realization the Bank has purchased any of the
properties and assets charged to the Bank or otherwise, the Borrower shall pay
to the Bank the difference between the amount so realised and until payment will
also pay interest on such balance at the Prescribed Rate and the penalty rate as
applicable corresponding to the facilities as set out in the General Conditions
in the Schedule 2 hereto or at such other rate(s) stipulated from time to time
by the Bank.
SECTION 8.05 DAMAGES
In addition and without prejudice to the power, rights and remedies by these
presents conferred, the Borrower shall indemnify the Bank against any loss or
expenses (including legal expenses on a Solicitor and Client and on a full
indemnity basis) which the Bank may sustain or incur as a consequence of any
default in payment by the Borrower of any sum due hereunder.
21
SECTION 8.06 RIGHT OF SET-OFF
In addition and without prejudice to the power rights and remedies by these
presents conferred, if any amount payable hereunder is not paid as and when due,
the Borrower authorizes the Bank to proceed without prior notice, by right of
set-off, banker's lien or counterclaim, against any assets of the Borrower in
any currency which may at any time be in the possession of the Bank or any of
its affiliates, at any branch or office, to the full extent of all amounts
payable to the Bank hereunder.
ARTICLE IX
TERMINATION
SECTION 9.01 FULL REPAYMENT OF THE MONEYS SECURED
Notwithstanding anything to the contrary contained herein, it is hereby agreed
that upon satisfaction or discharge by repayment or otherwise of the whole of
the Borrower's indebtedness herein, all the provisions herein contained shall
cease to be of effect but without prejudice to the Bank's right and remedies
against the Borrower in respect of any antecedent claim or breach of covenant.
SECTION 9.02 RECALL OF FACILITIES
Notwithstanding anything to the contrary contained herein, the Bank shall be
entitled as its absolute discretion to determine or recall the Facilities and
demand repayment of the principal balance outstanding, interest, costs and
expenses whatsoever provided herein at any time without having to justify or
give any reason for such determination or recall.
ARTICLE X
INSURANCE
(IF APPLICABLE)
SECTION 10.01 INSURANCE ON PROPERTY
The Borrower shall always or shall always cause to keep insured the property and
all fixtures hereafter erected thereon in the Prime of the Borrower and/or the
Security party (if applicable) against loss or damage by fire, lightning,
tempest, flood, riot, civil commotion, strike, malicious acts, natural disasters
and against such other risks as the Bank may from time to time think expedient
and keep the same so insured throughout the duration of this Agreement to its
full insurable value to the satisfaction of the Bank. In the event the Borrower
fails or fails to cause the Security Party (if applicable) to take up the
insurance pursuant to this Section herein, the Bank may do so on behalf of the
Borrower or on behalf of any Security Party (if applicable).
SECTION 10.02 RESTRICTION AGAINST ADDITIONAL INSURANCE
The Borrower shall not except at the request or with the consent in writing of
the Bank effect or cause to effect of keep on foot any insurance against any
risk in respect of the Property, which the Bank has effected or has kept on foot
such insurance.
22
SECTION 10.03 TERMS AND FORM OF INSURANCE
Insurance policies taken out or effected under this Agreement shall be generally
in form and upon terms acceptable to the Bank and, without limitation, shall be
subject to the following:
(a) Named insured
All insurance shall be taken out in the name of the Borrower and/or
Security Party (is applicable) and shall be expressly and specifically
assigned to and for the benefit of the Bank.
(b) Insurers and terms
The Borrower shall place or cause to be placed insurance policies in
companies approved and nominated by the Bank (which may be itself).
All insurance policies shall be valued policies and shall provide that
they are payable in Malaysian Ringgit.
(c) Notice of Lapse
Each policy shall provide that it may not lapse, be terminated,
cancelled or materially modified without fourteen (14) days' prior
notice to the Bank.
(d) Notice of Cancellation
The Borrower covenants that it shall cause the relevant insurers to
include the following notice of cancellation or a substantially
similar notice of cancellation acceptable to the Bank in each
insurance policy taken out:
"Underwriters (insurers) agree that the bank shall be given at least
fourteen (14) days' prior telegraphic notice of cancellation,
alteration, termination or expiry of this policy or any failure by the
Borrower to pay premiums as and when due. The Bank shall have no
obligation whatsoever to pay premiums or costs but shall have the
right to do so in the event of non-payment by the Borrower.
Underwriters (insurers) shall promptly advise the Bank of any act or
omission of which the Underwriters (insurers) are aware that might
void this policy or make the same invalid or unenforceable in whole or
in part."
(e) Mortgagee Clause
The Borrower covenants that it shall cause the relevant insurers the
following loss payable clause or a substantially similar loss payable
clause acceptable to the Bank in each insurance policy taken out:
"This insurance and the benefits thereof, including all claims of
whatsoever nature in respect of the Assets and each and every right
hereunder have been assigned to BUMIPUTRA-COMMERCE BANK BERHAD."
SECTION 10.04 ASSIGNMENT OF INSURANCE
The Borrower hereby assigns or shall cause to assign to the Bank all the
Borrower's and/or the Security Party's (if applicable) rights, title and
interest in, to and under all insurance policies including all proceeds and all
the benefits thereof and all claims of whatsoever nature thereunder and the
rights under such insurance policies.
SECTION 10.05 EVIDENCE OF INSURANCE
On the date of execution of this Agreement, the Borrower shall furnish the Bank
with the originals of all insurance policies assigned hereunder and all binders
and certified copies of cover notes or other
23
written evidence satisfactory to the bank showing that the required insurance of
each type has been placed. No change shall be made in any insurance policy
without the Bank's prior written consent. The Borrower shall promptly furnish
the Bank with the duplicate of all policies assigned hereunder, cover notes and
certificates and renewals thereof.
SECTION 10.06 BANK'S RIGHT TO COLLECT PROCEEDS AND INSURE
The bank is hereby authorised but not required, in its own name or in the name
of the Borrower and/or the Security Party (if applicable) to demand, collect,
give receipts for and prosecute all necessary actions in the courts to recover
any and all insurance moneys that may becomes due and payable under the
insurance policies. If the Borrower at any time fails to pay or cause to be paid
when due any insurance premiums, calls or other costs related to obtaining or
maintaining the insurance required hereunder, to obtain any required insurance
or to deliver to the Bank all policies, certificates, contracts of insurance,
binders and cover notes and all renewals thereof as required by the provisions
of this Agreement, the Bank may, but is not required to, procure such insurance
or pay unpaid premiums, or both, and other costs. All expenditure incurred
thereby shall be for the account of the Borrower and shall be deemed to be and
form part of the Indebtedness and until reimbursed, such sum shall carry
interest at the rate of the BLR plus FOUR Per Centum Per Annum (4%PA.) from the
date of payment by the Bank or such other rate as the Bank may charge.
SECTION 10.07 COMPLIANCE WITH INSURANCE TERMS, LAWS, REGULATIONS, ETC.
The Borrower shall not do any, act, allow or permit any act to be done (whether
by omission or commission), whereby the insurance policies may become void or
voidable, or may becomes a ground of repudiation by the insurers or allow the
Property to be used in any manner not permitted under the insurance policies.
SECTION 10.08 APPLICATION OF INSURANCE MONEY
The Bank may require any money received on any insurance relating to the
Property whether effected by the Bank or by the Borrower to be applied in or
towards making good the loss or damages in respect of which the money received
or receivable or in or towards the discharge of any principal money and interest
or any moneys secured hereby and the Borrower shall hold any money received on
such insurance in trust for the Bank and the Bank may receive and give a good
discharge for any such moneys.
SECTION 10.09 WORKMEN'S COMPENSATION INSURANCE
The Borrower (if applicable) shall take out and maintain for such amount and
with such insurance company as shall be approved by the Bank a policy of
insurance in respect of Workmen's Compensation for all employees, if any, of the
Borrower and or alternatively comply with any law for the time being relating to
the establishment of social security schemes or benefits for employees.
ARTICLE XI
TERMINATION AND VARIATION
SECTION 11.01 TIME FOR COMPLIANCE OF CONDITIONS
If the Borrower fails to perform and observe all or any of the covenants,
stipulations and condition(s) herein contained and on it's part to be performed
and observed the Bank may at any time thereafter at its option terminate the
Facilities. Upon such termination or rescission, the facilities and all interest
thereon must be discharged within seven (7) days of such termination or
rescission.
24
SECTION 11.02 DISCRETION OF BANK ON DISBURSEMENT
The Bank has the absolute right by notice in writing to the Borrower to rescind
the Facilities, or to refuse to pay out the Facilities if the principal sum or
any part thereof or any interest thereon are in arrears or shall become
immediately repayable under the provisions of the Security Documents or any of
them. Upon giving of such notice, any part of the Facilities not therefore
disbursed shall be cancelled, and any part of the Facilities already disbursed
shall become due and immediately repayable on demand notwithstanding anything
contained herein to the contrary.
SECTION 11.03 RIGHT OF BANK TO RECALL OR VARY
Notwithstanding anything to the contrary contained herein, the Bank shall be
entitled at its absolute discretion to terminate this Facilities and demand the
discharge by the Borrower of its Indebtedness at any time or to vary or amend
the terms of the Facilities granted herein or both in such manner and upon such
terms as the Bank may determine.
SECTION 12.01 TIME
Time shall be of the essence of this Agreement but no failure or delay on the
part of the Bank in exercising nor any omission to exercise any right, power,
privilege or remedy accruing to the Bank under this Agreement or any of the
Security Documents shall impair any such right, power, privilege, or remedy or
be construed as a waiver thereof or an acquiescence in such default; nor shall
any action by the Bank in respect of any default or any acquiescence in any such
default, affect or impair any right, power, privilege or remedy of the Bank in
respect of any other or subsequent default.
SECTION 12.02 RECONSTRUCTION OF File BANK OR THE BORROWER OR THE SECURITY PARTY
The security, liabilities and obligations created by this Agreement 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 Bank and Similarly the security, liabilities and obligations
created by this Agreement shall continue to be valid and binding for all
purposes whatsoever notwithstanding any change by amalgamation, reconstruction
or otherwise howsoever in the constitution of the Borrower or any Security Party
and it is expressly declared that no change whatsoever in relation to or
affecting the Borrower or any Security is Party shall in any way affect the
security, liabilities and obligations created hereunder in relation to any
transaction whatsoever whether past present or future.
SECTION 12.03 STAMP DUTIES
The Borrower shall, upon notice from the Bank, pay all stamp duties, fees or
other charges payable on or incidental to the execution, issue, delivery and
registration of all and any of the security Documents and any document related
thereto (including fines and penalties) and shall reimburse the Bank for such
duties, fees or other charges paid by the Bank;
SECTION 12.04 MODIFICATION AND INDULGENCE
The Bank may at any time and without in any way affecting the security hereby
created:
25
(a) determine, vary or increase any credit or other facility granted to the
Borrower and may open or continue any account or accounts (or both) with
the Borrower at any branch or branches of the Bank;
(b) grant to the Borrower, or any of the Security Party, or all, or any of
them, any time or indulgence or waiver or consent or release;
(c) deal with, exchange, release or modify or abstain from perfecting or
enforcing any security or other guarantee or right it may now or at any
time hereafter or from time to time have from or against the Borrower or
any other person;
(d) compound with the Borrower or any Security Party or any other person.
SECTION 12.05 COSTS AND FEES
The Borrower shall be liable to pay all fees including the commitment fees and
expenses in connection with or incidental to this Agreement including the Bank's
Solicitors'fee (on a Solicitor and Client basis) in connection with the
preparation and execution of this Agreement, the Security Documents and the
documents related thereto. If the Indebtedness or any part thereof shall be
required to be recovered through any process of law, or if the said money or any
part thereof shall be placed in the hands of solicitors for collection, the
Borrower shall pay (in addition to the moneys then due and payable hereunder)
the Bank's Solicitors'fees (on a Solicitor and Client Basis) and any other fees
and expenses incurred in respect of such collection.
SECTION 12.06 CUMULATIVE REMEDIES
The remedies provided herein are cumulative and are not exclusive of any other
remedies provided by law.
SECTION 12.07 SEVERABILITY
Any term, condition, stipulation, provision, covenant, or undertaking contained
herein 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, stipulation, provision,
covenant, or undertaking in any other jurisdiction.
SECTION 12.08 SUSPENSE ACCOUNT
Any money received hereunder may be placed and kept to the credit of a suspense
account for so long as the Bank thinks fit without any obligation in the
meantime to apply the same or any part thereof in or towards discharge of any
money or liability due or incurred by the Borrower to the Bank. Notwithstanding
any such payment, in the event of proceedings in or analogous to bankruptcy,
liquidation, composition or arrangement, the Bank may prove for and agree to
accept any dividend or composition in respect of the whole or any part of such
money and liability in the same manner as if this security had not been created.
SECTION 12.09 CENTRAL CREDIT UNIT
All information regarding the Facilities, if required, will be made known to
Central Credit Unit established by BNM for the purpose of collecting information
from financial institutions regarding credit facilities granted by them to their
customers.
26
SECTION 12.10 DISCLOSURE
The Borrower hereby agrees that as long as the Facilities continue and/or as
long as any moneys due thereunder remain outstanding, the Bank shall be entitled
to disclose information on its business (including its accounts and/or future
accounts) with the Bank to companies which are or which in future may be a
subsidiary of the Bank and that the subsidiaries of the Bank shall also be
entitled to make such disclosure to the Bank and/or to the other said
subsidiaries. PROVIDED that the Bank shall take all reasonable care to ensure
that such information shall remain confidential within the Bank's group of
subsidiaries.
SECTION 12.11 CONSOLIDATION
It is hereby expressly agreed and declared that unless the Bank otherwise
agrees, the Borrower shall not be entitled to redeem or the release or discharge
of any security given by the Borrower to the Bank hereunder whether given now or
hereafter except on payment by the Borrower of not only all moneys referred to
herein but also all moneys whatsoever and howsoever owing or payable or due from
the Borrower to the Bank under any other account or otherwise with the Bank. The
Bank further reserves the right at any time at its absolute discretion and
without notice to the Borrower to combine or consolidate all or any of its
accounts including accounts jointly with others (of any nature whatsoever
whether subject to notice or not) wheresoever situate with any liabilities and
obligations owed or incurred by the Borrower to the Bank and set-off or transfer
any sum standing to the credit of any one or more of such accounts in or towards
satisfaction of money obligations and liabilities due and payable to the Bank.
SECTION 12.12 CERTIFICATE OF INDEBTEDNESS
It is hereby agreed that any admission or acknowledgment in writing by the
Borrower or by any person authorised on behalf of the Borrower or a judgement
(by default or otherwise obtained against the Borrower) or a statement of
account in writing showing the indebtedness of the Borrower which is duly
certified by an officer of the Bank shall be binding and conclusive evidence
against the Borrower for whatever purpose including as being conclusive evidence
of indebtedness in a court of law.
SECTION 12.13 COVENANT ON INTEREST
The covenant by the Borrower herein to pay interest at the various Prescribed
Rate or the Penalty Rate or rates pursuant to this Agreement herein is an
independent covenant. It is hereby agreed that the covenant to pay such interest
as aforesaid continues after judgment as well and that in event of judgment,
this covenant shall not merge in such judgment, or with any rule, or law,
regulating the award of interest after judgment.
SECTION 12.14 EFFECTIVE DATE
The parties hereto agree that this Agreement shall come into force on the ate as
stated in item 1 of the Schedule 1 hereto irrespective of the diverse dates upon
which they may have each executed this Agreement respectively.
SECTION 12.15 DEBIT OF ACCOUNT
The Bank has the absolute right to debit the account of the Borrower at any time
and from time to time in respect of any interest, expenditure or other charges
which might be in incurred or owing by the Borrower.
27
SECTION 12.16 BANK'S RIGHTS TO SUBSIST
The of the Bank herein conferred to charge compound interest or interest with
periodic rests or "interest on interest" or any other interest of a like nature
howsoever described shall subsist and continue to subsist notwithstanding the
service by the Bank on the Borrower of any demand for payment of any sums
outstanding to the Bank or any part thereof or the cessation of the
banker-customer relationship for any reason or by any cause whatsoever.
SECTION 12.17 CONTEMPORANEITY
The Borrower unconditionally confirms and declares that the premises contained
herein have been made and given contemporaneously with, and in exchange for, the
promise of the Bank to grant the Facilities to the Borrower notwithstanding the
fact that the date of this Agreement is different with the date of any document
whatsoever which the Borrower might have signed with the Bank, if any and at
all.
SECTION 12.18 LATE PAYMENT
In the event the Borrower defaults in the payment of any sum herein covenanted
to be paid, the Borrower shall pay an additional interest to the Bank at the
Penalty Rate as Stated in the General Conditions in Schedule 2 hereto or such
other rate(s) with respect to the corresponding Facilities as may be fixed from
time to time at the absolute discretion of the Bank over and above the
Prescribed Rate on the sum in arrears calculated from the due date until the
date of payment by the Borrower.
SECTION 12.19 SECTION 62 OF THE ACT
The consent of the Bank to this Agreement including the consent of the Bank to
make, or continuing to make available, the Facilities is conditional upon, and
subject at all times to. The representation of the Borrower that the
restrictions contained in Section 62 of the Act are not applicable. If at any
time during the currency of this Agreement the Bank discovers that there had
been an infringement of the section, or that the continued performance of this
Agreement will be in violation of the section, the Bank is entitled forthwith to
exercise all of its rights contained in Section 8.02.
SECTION 12.20 CONCURRENT ACTION
Notwithstanding any provision hereof it is hereby expressly agreed that upon
default or breach by the Borrower of any term, covenant, stipulation and/or
undertaking herein provided and on the part of the Borrower to be observed and
performed, the Bank shall thereafter have the right to exercise all or any of
the remedies available whether by this Agreement or the Security Documents or by
statute or otherwise and shall be entitled to exercise such remedies
concurrently, including pursuing remedies of sale or possession pursuant to this
Agreement and the Security Documents and civil suit to recover all moneys due
and owing to the Bank.
SECTION 12.21 VALUATION OF PROPERTY
The Bank hereto expressly reserves the right to value the Property and any other
immovable property charged or assigned to the Bank at such intervals as the Bank
may in its absolute discretion deem fit and all costs and expenses in relation
thereto shall be for the account of the Borrower.
SECTION 12.22 EXTENT OF AGREEMENT
This Agreement binds the successors-in-title of the parties hereto.
28
SECTION 12.23 CROSS DEFAULT
Notwithstanding the provision relating to the repayment of monies advance as
hereinbefore provided, the Borrower hereby expressly agrees that if any sums
shall be due from the Borrower to the Bank from time to time or at any time or
if the Borrower may be or become liable to the Bank anywhere on banking account
or any other account current or otherwise in any manner whatsoever or if default
is made in any provisions of such accounts or in any other banking facilities
granted by the Bank to the Borrower or in any of the provisions herein, then and
in such event, the Facility and all the Advances herein together with all monies
payable under such account or other banking facilities aforesaid shall
immediately be enforceable.
SECTION 12.24 TRANSFER OF SECURITY
(a) The Bank may at any time transfer or assign all or any part of its rights,
benefits and obligations under the Agreement and/or securities by assigning
to any other person(s) all or any part of the Bank's rights and benefits
under this Agreement or any securities by notice to the Borrower and its
Bank may disclose to such potential assignee such information about the
Borrower and its financial condition as shall have been made available to
the Bank generally.
(b) All costs and expenses of the Bank and of the transferee of an incidental
to such transfer shall be payable by the Borrower and any statement or
recital in the documents of transfer of the amount then due to the Bank
under and by virtue of this Agreement shall be prima facie evidence that
such amount is in fact due and shall be conclusive and binding on the
Borrower.
(c) The Borrower shall not assign any of its rights or obligations hereunder.
ARTICLE XIII
LAW, LEGAL PROCESS AND STAMP DUTY
SECTION 13.01 LAW
The parties hereto agree that this Agreement shall be governed by the laws of
Malaysia and agree to submit to the jurisdiction of the respective Courts of the
States of Malaysia and further agree that service of any Legal Process may be
effected in the manner set out below.
SECTION 13.02 SERVICE OF LEGAL PROCESS
(a) The service of any Legal Process may be given by prepaid registered or
ordinary post sent to the respective Address for Service of the parties
hereto and such Legal Process shall be deemed to have been duly served
after the expiration of five (5) days from the date it is posted and if
delivered by hand, on the day it was delivered.
(b) No change in the Address for Service howsoever brought about shall be
effective or binding on either party unless that party has given to the
other actual notice of the change of Address for Service and nothing done
in reliance on Section 13.02(a) shall be affected or prejudiced by any
subsequent change in the Address for Service over which the other party has
no actual knowledge of at the time the act or thing was done or carried
out.
SECTION 13.03 CHANGES IN LAW
Notwithstanding any provision to the contrary herein, in the event that by
reason of the enactment of or the making of any change in any applicable law,
regulation or regulatory requirement or in
29
the interpretation or application thereof or the making of any request or
direction from or requirement of BNM or other fiscal or monetary authority
(whether or not having the force of law) the Bank shall be of the opinion that
it has or will become unlawful or its is otherwise prohibited or prevented for
it to maintain or give effect to all or any of its obligations as contemplated
by this Agreement then, notwithstanding any other provisions herein, therewith
be terminated and/or as the case may be, the Borrower shall on demand forthwith
repay the Facilities in full together with accrued interest thereon and any
other amount payable thereunder to the Bank.
SECTION 13.04 PRINCIPAL AND SECONDARY INSTRUMENTS
IT IS HEREBY AGREED AND DECLARD THAT this Agreement and the Security Documents
are instruments employed in one transaction to secure the Facilities and
interest thereon within the meaning of Section 4(3) of the Xxxxx Xxx 0000
(Revised 1989) of Malaysia, and for the purpose of the said Section this
Agreement is deemed to be the primary or principal instrument and the other
Security Documents the auxiliary or secondary instruments.
************************
IN WITNESS WHEREOF the respective hands of the attorneys of the Bank and the
Borrower were hereunto written respectively the day and year first as set out in
item 1 of the Schedule hereto.
BUMIPUTRA-COOMERCE BANK BERHAD
(Company No. 13491 P)
SIGNED by )
As Attorneys for BUMIPUTRA- ) By its Attorneys
COMMERCE BANK BERHAD )
In the presence of :- ) /s /
------------------
/s/ Ow Yeang Ying Ai
--------------------------------
OW YEANG YING AI
ADVOCATE & SOLICITOR
KUALA LUMPUR
The Common Seal of the )
Borrower )
XXXXXXX ZONE (M) SDN BHD )
Was duly hereunto affixed in the )
presence of :-
/s/ /s /
------------------ ---------------------
DIRECTOR DIRECTOR
30
THE SCHEDULE REFFERRED TO HEREIN
SCHEDULE 1
--------------------------------------------------------------------------------
ITEM PARTICULARS
--------------------------------------------------------------------------------
1. DATE OF THIS AGREEMENT
2. ADDRESS OF BANK BUMIPUTRA-COMMERCE BANK BERHAD
Business Centre KL 1 - Wisma Bandar
7th Floor, Wisma Bandar
Xxxxx Xxxxxx Xxxxx Xxxxxx
00000 Xxxxx Xxxxxx.
3. BORROWER XXXXXXX ZONE SDN BHD
(Company No.498849 X)
4. ADDRESS OF BORROWER Registered address at
00X, Xxxxx 00/00
00000 Xxxxxxxx Xxxx
Xxxxxxxx
And
Business address at
Xxx X000 & X000, 0xx Xxxxx
Xxx Xxxxxx Xxxxxxxx
Xxx Xxxxxx Xxxx
Lingkaran Xxxx Xxxxx
00000 Xxxxx Xxxxxx
5. PARTICULARS OF THE PROPERTY Not applicable.
(IF APPLICABLE)
6. DATE OF SALE AND Not applicable.
PURCHASE AGREEMENT
(IF APPLICABLE)
7. DEVELOPER/VENDOR Not applicable.
(IF APPLICABLE)
31
THE SCHEDULE REFERRED TO HEREIN
SCHEDULE 1
8. MAXIMUM AGGREGATE PRINCIPAL
SUM OF THE FACILITIES Ringgit Malaysia TWO MILLION
FIVE HUNDRED THOUSAND only
(RM2,500,000-00).
TYPE OF FACILITY LIMIT (RM)
---------------- ----------
Overdraft 300,000-00
Multi-Option Trade Facilities Comprising:
Letter of Credit (LC), Trust Receipt (TR),
Banker's Acceptance (BA), Bank Guarantee 2,000,000-00
(BG) and
Non-Revolving Short Term Advance (STA) Sublimit of RM400,000-00
Term Loan 200,000-00
9. SECURITY PARTY XXXXXXX ZONE (M) SDN BHD
(Company No. 498849 X)
10. CORPORATE GUARANTOR XXXXXXX IT HOLDINGS SDN BHD
(Company No. 504264 K
with its registered address at
00X, Xxxxx 00/00
00000 Xxxxxxxx Xxxx
Xxxxxxxx
11. PERSONAL GUARANTOR XXXX TWEE YOM
(NRIC No.651023-06-5405/A0236677)
of E-1628, Xx Xxxxx, Xxxxx Xxxxx,
00000 Xxxxxxx, Xxxxxx
And
NG SIEW CHOO
(NRIC No. 650220-06-5290/A0026251)
of B-1944, Taman Pasifik, Xxxxx Xxxx
Xxx Xxx Xxx, Xxxxxxx,
Xxxxxx
00. SUPPORTING DOCUMENTS NIL
13. ADDITIONAL CONDITIONS PRECEDENT Payment of Facility fee of RM6250-00
14. LETTER OF OFFER DATED 7th day of September 2004
15. AVAILABILITY PERIOD As stated in the Letter of Offer.
32
THE SCHEDULE REFERRED TO HEREIN
SCHEDULE 1
16. SECURITY DOCUMENTS 1. First Party Memorandum of Deposit of
fixed Deposit Receipt in respect of
fixed deposits to be held under lien by
the Bank in the amount of Ringgit
Malaysia Six Hundred and Twenty Five
Thousand (RM625,000-00) only together
with interests accrued thereon upon
renewal and the corresponding Letter of
Authorisation;
2. First Party Open Memorandum of Deposit
of Fixed Deposit Receipt(s) in respect
of a sinking fund of Ringgit Malaysia
Seven Thousand (RM7,000-00) only to be
deposited with the Bank per month by way
of fixed deposits to be held under lien
by the Bank until a principal sum of
Ringgit Malaysia One Hundred and Thirty
Thousand (RM130,000-00) only is reached
and the corresponding Letter of
Authorisation (Fixed Deposits created
from Marginal Depost(s)/ Sinking
Fund(s);
3. Corporate Guarantee by the Corporate
Guarantor in favour of the Bank for
Ringgit Malaysia Two Million Five
Hundred Thousand (RM2,500,000-00) only;
4. Joint and Several Guarantee by the
Guarantors in favour of the Bank for
Ringgit Malaysia Two Million Five
Hundred Thousand (RM2,500,000-00)
only;and
5. Negative Pledge over the present and
future assets of the Borrower.
33
THE SCHEDULE REFERRED TO HEREIN
SCHEDULE 2
ITEM 1 BA -
General Conditions
(i) Purpose: To finance imports and exports, sales and purchases by
the Borrower.
(ii) Nature: Revolving
(iii)Tenor: The maximum tenor for each BA is ONE HUNDRED TWENTY (120)
days.
(iv) Acceptance Commission
The Borrower shall pay to the Bank an acceptance commission at the
rate of ONE POINT FIVE ZERO per centum per annum (1.50% p.a)
calculated on the face value of each BA created and such rate shall be
subject to revision at the absolute discretion of the Bank from time
to time with or without notice to the Borrower.
(v) Discount Rate
The rate quoted by the Bank based on the prevailing money market rate
on the day the particular BA is to be discounted.
(vi) Penalty Rate
The Borrower shall pay to the Bank interest on the overdue BA at a
Penalty Rate calculated at the rate of ONE POINT ZERO per centum per
annum ( 1.0% p.a.) over and above the Prescribed Rate for TR or at
such other rate as the Bank may determine from time to time.
34
THE SCHEDULE REFERRED TO HEREIN
SCHEDULE 2
ITEM 2 BD - NOT APPLICABLE
General Conditions
(i) Purpose: To provide immediate credit pending receipt of sales
proceeds.
(ii) Nature: Revolving
(iii) Tenor: The maximum tenor for each BD is days.
(iv) Commission
The Borrower shall pay to the Bank a commission of 0.1% flat
calculated on the face value of the xxxx subject to a minimum of RM
______ and a maximum of RM _____ on bills denominated in RM each time.
(v) Discount Rate
The Borrower shall be charged upfront a discount rate of BLR plus per
centum per annum ( p.a.) for the period from the date of discounting
to the maturity date of the usance xxxx.
(vi) Penalty Rate
The Borrower shall pay to the Bank interest on the overdue BD at a
Penalty Rate calculated at the rate of one point zero per centum per
annum (1.0% p.a.) over and above the discount rate or at such other
rate as the Bank may determine from time to time.
ITEM 3 DBP - NOT APPLICABLE
General Conditions
(i) Purpose: To provide immediate credit pending receipt of sales
proceeds.
(ii) Nature: Revolving
(iii) Tenor: The maximum tenor for each DBP is days.
(iv) Commission
The Borrower shall pay to the Bank a commission of 0.1% flat
calculated on the face value of the xxxx subject to a minimum of RM
_____ and a maximum of RM _____ .
(v) Prescribed Rate
The Borrower shall be charged upfront a discount rate of BLR plus_____
per centum per annum ( % p.a.) and such rate shall be subject to
revision at the absolute discretion of the Bank from time to time
without notice to the Borrower.
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THE SCHEDULED REFERRED TO HEREIN
SCHEDULE 2
(iv) Penalty Rate
The Borrower shall pay to the Bank interest on the overdue DBP at a
Penalty Rate calculated at the rate of one point zero per centum per
annum ( 1.0% p.a.) over and above the Prescribed Rate or at such other
rate as the Bank may determine from time to time.
ITEM 4 EBD - NOT APPLICABLE
General Conditions
(i) Purpose: To provide immediate credit pending receipt of export
proceeds.
(ii) Nature: Revolving
(iii) Tenor: The maximum tenor for each EBD is days
(iv) Discount Rate
The Borrower shall be charged upfront a discount rate of BLR plus
_____ per centum per annum (% p.a.) for bills denominated in RM and
for bills denominated in other currencies the Borrower shall be
charged the rate prevailing at the centre native to the respective
currency (as advised by the Bank) for the period from the date of
discounting to the maturity date of the usance xxxx.
(v) Penalty Rate
The Borrower shall pay to the Bank interest on the overdue EBD at a
Penalty Rate calculated at the rate of one point zero per centum per
annum (1.0% p.a.) over and above the Discount Rate or at such other
rate as the Bank may determine from time to time.
ITEM 5 EBP - NOT APPLICABLE
General Condition
(i) Purpose: To provide immediate credit pending receipt of export
proceeds.
(ii) Nature: Revolving
(iii) Tenor: the maximum tenor for each EBD is
( ) days inclusive of a grace period of ( ) days.
(iv) Prescribed Rate
The Borrower shall pay to the Bank interest at the rate of per centum
per annum ( % p.a.) over and above the BLR for bills denominated in RM
and for bills denominated in other currencies the Borrower shall pay
to the Bank interest at the rate prevailing at the centre
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THE SCHEDULED REFERRED TO HEREIN
SCHEDULE 2
native to the respective currency (as advised by the Bank) and such
rate shall be subject to revision at the absolute discretion of the
Bank from time to time with or without notice to the Borrower.
(v) Penalty Rate
The Borrower shall pay to the Bank interest on the overdue EBP at a
penalty rate calculated at the rate of one point zero per centum per
annum (1.0% p.a.) over and above the Prescribed Rate as the Bank may
determine from time to time.
ITEM 6 ECR - NOT APPLICABLE
General Conditions
(i) Pre-Shipment
(a) Purpose: To finance the purchase of raw materials and production
overheads for the export sales of eligible goods.
(b) Nature: Revolving
(c) Tenor: The maximum tenure for this facility is ( ) days
(d) Prescribed Rate
The Borrower shall pay to the Bank interest at the rate of _____ per
centum per annum (% p.a.) over and above the rate quoted by BNM
(currently at ) and such rate shall be subject to revision at the
absolute discretion of the Bank from time to time with or without
notice to the Borrower.
(e) Penalty Rate
The Borrower shall pay to the Bank interest on the overdue ECR at a
Penalty Rate calculated at the rate of one point zero per centum per
annum (1.0% p.a.) over and above the Prescribed Rate for OD/TR or at
such other rate as the Bank may determine from time to time.
(ii) Post-Shipment
(a) Purpose: To finance export sales of eligible goods.
(b) Nature: Revolving
(c) Tenor: The maximum tenor for this facility is ( ) days
(d) Prescribed Rate
The Borrower shall be charged upfront a discount rate of_____ per
centum per annum ( %p.a.) over and above the rate quoted by BNM
(currently at ) and which rate shall be
37
THE SCHEDULED REFERRED TO HEREIN
SCHEDULE 2
subject to revision at the absolute discretion of the Bank from time
to time with or without notice to the Borrower.
(e) Penalty Rate
The Borrower shall pay to the Bank interest on the overdue ECR at a
Penalty Rate calculated at the rate of one point zero per centum per
annum (1.0% p.a.) over and above the Prescribed Rate for OD/TR or at
such other rate as the Bank may determine from time to time.
ITEM 7 FCL - NOT APPLICABLE
General Conditions
(i) Purpose: To provide immediate credit pending receipt of export
proceeds.
(ii) Nature: Revolving
(iii) Tenor: The maximum tenor for each FCL is ( )days
(iv) Prescribed Rate:
The Borrower shall pay to the Bank interest at the rate of the foreign
currency funding rate plus _____ per centum per annum ( %p.a.) and
such rate shall be subject to revision at the absolute discretion of
the Bank from time to time with or without notice to the Borrower.
(v) Penalty Rate
The Borrower shall pay to the Bank interest on the overdue KI, at a
penalty rate claculated at the rate of one point zero per centum per
annum (1.0% p.a.) over and above the Prescribed Rate or at such other
rate as the Bank may determine from time to time.
(vi) Roll-Over
FCL may be rolled over at the end of each tenor of the FCL, subject
always to interest being serviced by the Borrower as at such date and
that only the principal amount of the FCL, may be rolled over.
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THE SCHEDULED REFERRED TO HEREIN
SCHEDULE 2
ITEM 8(i) FCTL (Import) - NOT APPLICABLE
General Condition
(i) Purpose: To finance the Borrower's import xxxx obligations
denominated in a foreign currency approved by the Bank.
(ii) Nature: Revolving
(iii) Tenor: The maximum tenor for each FCTL is ( ) days
(iv) Prescribed Rate:
The Borrower shall pay to the Bank interest at the rate of the foreign
currency funding rate plus____ per centum per annum (% p.a.) and such
rate shall be subject to revision at the absolute discretion of the
Bank from time to time with or without notice to the Borrower.
(v) Penalty Rate
The Borrower shall pay to the Bank interest on the overdue FCTL at a
Penalty Rate calculated at the rate of one point zero per centum per
annum (1.0% p.a.) over and above the Prescribed Rate or at such other
rate as the Bank may determine from time to time.
(vi) Roll-Over
FCTL may be rolled over at the end of each tenor of the FCTL subject
always to interest being serviced by the Borrower as at which date and
that only the principal amount of the FCTL may be rolled over.
ITEM 8(ii)FCTL (Export) - NOT APPLICABLE
General Conditions
(i) Purpose: To finance the Borrower's export xxxx denominated in a
foreign currency approved by the Bank.
(ii) Nature: Revolving
(iii)Tenor: The maximum tenor for each FCTL is (180) days (subject to
BNM's approval if it exceeds 180 days)
(iv) Prescribed Rate
The Borrower shall pay to the Bank interest at the rate of foreign
currency funding rate plus per centum per annum (% p.a.) and such rate
shall be subject to revision at the absolute discretion of the Bank
from time to time with or without notice to the Borrower.
(v) Penalty Rate
The Borrower shall pay to the Bank interest on the overdue FCTL at a
Penalty Rate calculated at the rate of one point zero per centum per
annum (1.0% p.a.) over and
39
THE SCHEDULED REFERRED TO HEREIN
SCHEDULE 2
above the Prescribed Rate or at such other rate as the Bank may
determine from time to time.
(vi) Roll-Over
FCTL against sight xxxx only may be rolled over at the end of each
tenor of the FCTL, upto a maximum of 14 days subject always to
interest being serviced by the Borrower as at such date and that only
the principal amount of the FCTL may be rolled over.
ITEM 9 FECL - NOT APPLICABLE
General Conditions
(i) Purpose: For hedging against currency fluctuations for trade
related transactions.
(ii) Nature: Revolving
(iii)Tenor: The maximum tenor for FECL is ONE HUNDRED AND EIGHTY
(180) days each time.
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THE SCHEDULED REFERRED TO HEREIN
SCHEDULE 2
ITEM 10 LC -
General Conditions
(i) Purpose: To facilitate the Borrower's local purchases and
imports.
(ii) Nature: Revolving
(iii)Tenor: Sight/Usance - maximum of ONE HUNDRED AND TWENTY (120)
days
(iv) Commission
The Borrower shall pay to the Bank commission at the rate specified by
the Association of Banks Malaysia (ABM) which is presently ZERO POINT
ONE ZERO per centum per month (0.10% p.m.) subject to a minimum of
RM100-00 on the RM equivalent of the face value of the LC subject to
revision at the discretion of the Bank.
(v) Further Regulations
The LC is subject to the Uniform Customs and Practice for Documentary
Credit (1993 Revision), International Chamber of Commerce Publication
No 500 and such amendments thereto.
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THE SCHEDULED REFERRED TO HEREIN
SCHEDULE 2
ITEM 11 BG/LG
General Conditions
(i) Purpose: For the issuance of Tender Bonds, Security Deposits and
Guarantee Payment for import duties.
(ii) Nature: Revolving
(iii) Tenor: Renewable annually
(iv) Commission
The Borrower shall pay to the Bank a commission on the BG/LG at a rate
of ZERO POINT ONE THREE per centum per month (0.13% p.m.) payable
upfront upon issuance of the BG/LG subject to a minimum charge of
RM50-00 each time.
(v) Penalty Interest
In the event of a claim under the BG/LG, the Borrower shall promptly
and immediately indemnify and pay to the Bank all such amounts so
demanded as well as interest at the rate of THREE POINT FIVE ZERO per
centum (3.50%) per annum above the Bank's BLR or at such other rate as
the Bank may prescribe from time to time with or without notice to the
Borrower on the outstanding amount payable.
(vi) Penalty Commission
The Borrower shall as applicable continue to pay to the Bank the above
commission if each BG/LG is not returned to the Bank within the
stipulated period, until the BG/LG is returned for cancellation or
until the beneficiary of the said BG/LG furnishes a letter confirming
to the Bank that it has no further claim on the BG/LG.
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THE SCHEDULED REFERRED TO HEREIN
SCHEDULE 2
ITEM 12 OD -
General Conditions
(i) Purpose: To part finance the working capital requirements of the
Borrower.
(ii) Commitment Fee
The Borrower shall pay to the Bank a commitment fee at the rate of ONE
POINT ZERO per centum per annum (1.0% p.a.) calculated onsuch
unutilised portion of the OD at any time and from time to time and
such commitment fee is to be paid by direct debit to the Borrower's
account with the Bank at each month end or at such intervals as the
Bank may determine.
(iii)Tenor: Recallable on demand and subject to renewals upon
satisfactory reviews.
(iii) Prescribed Rate
The Borrower shall pay interest on the principal amount of the OD
outstanding at the rate of BLR plus ONE POINT FIVE ZERO per centum per
annum (1.50% p.a.) compounded on monthly rests or at such other
intervals as may be prescribed by the Bank calculated at the end of
the month and such interest is to be payable in arrears and debited
accordingly to the Borrower's account with the Bank. The Bank shall be
entitled at any time and from time to time to vary at the Bank's
absolute discretion and without prior notice, the BLR, currently SIX
POINT ZERO per centum (6.0%) per annum, the Prescribed Rate and/or the
basis of calculation of the Prescribed Rate as provided hereinabove.
(iv) Repayment
The Borrower hereby covenants and agrees with the Bank to pay on
demand all such sums of money which shall at any time hereafter be due
and owing by the Borrower to the Bank in respect of the OD.
(v) Payment of Interest
The Borrower shall pay interest on the principal amount of the OD at
the prescribed rate compounded on a daily rest basis such interest to
be paid monthly in arrears failing which, the Bank will debit the
interest to the Borrower's account with the Bank and the Bank may at
its discretion recall the facility/facilities.
(vi) Excess Utilisation and Late Repayment
In the event of the Bank in its absolute discretion at any time and
from time to time of allowing the Borrower to utilise the OD in excess
of the limit as stated in Item 8 of Schedule 1 above, the Borrower
shall pay interest at the Penalty Rate of BLR plus THREE POINT FIVE
ZERO per centum per annum (3.50% p.a.) on the excess amount from the
date the OD limit was exceeded up to the date of regularisation.
Similarly, the provision aforesaid shall apply mutatis mutandis to the
case where demand for repayment of the OD has been made but the
BORROWER had failed to make repayment as demanded by the Bank save
that the interest at the rate aforesaid shall be calculated from the
date repayment ought to have been made by the Borrower up until the
date of actual repayment.
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THE SCHEDULED REFERRED TO HEREIN
SCHEDULE 2
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44
THE SCHEDULED REFERRED TO HEREIN
SCHEDULE 2
ITEM 13 RC - NOT APPLICABLE
General Conditions
(i) Purpose:
(ii) Nature: Revolving
(iii) Tenor: Each drawdown or roll-over period is for____ or_____
months_____
(iv) Prescribed Rate
The Borrower shall pay interest at the rate of _____ plus _____ per
centum per annum ( % p.a.) on the principal amount of the RC and such
interest is payable in accordance with the corresponding drawdown or
roll-over period in arrears. The basis of computation of interest
shall be based on a three hundred and sixty five (365) day year or
three hundred and sixty-six (366) day year as applicable for the
actual number of days elapsed. The Bank shall be entitled at any time
and from time to time to vary at the Bank's absolute discretion the
BLR, COF, the basis of calculation of the Prescribed Rate and/or the
Prescribed Rate as provided hereinabove.
(v) Penalty Rate
In the event any Indebtedness under the RC is not paid to the Bank at
the end of the Tenor, the Borrower shall pay the cost of maintaining
the amount of the Indebtedness under the RC together with an
additional____ per centum per annum (% p.a.) over the Prescribed Rate
as provided hereinbefore or at a rate of per centum per annum ( %
p.a.) on monthly rests, whichever is higher, from the due date of the
RC until the date of actual payment of the outstanding sum to the Bank
or at such other rate as the Bank may determine from time to time.
(vi) Amount of Drawdown or Roll-Over
Each drawdown or roll-over of the RC shall be in integral multiples of
RM subject to a minimum of RM each time.
(vii) Roll-Over
The RC may be rolled over at the end of each Tenor of the RC subject
always to interest being serviced by the Borrower as at such date and
that only the principal amount of the RC may be rolled over.
(viii) Prepayment
The Borrower cannot prepay the RC unless prior written approval is
obtained from the Bank.
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THE SCHEDULED REFERRED TO HEREIN
SCHEDULE 2
ITEM 14 SG - NOT APPLICABLE
General Conditions
(i) Purpose: For issuance favouring a shipping company or its agent
pending the receipt of the original Xxxx of Lading.
(ii) Nature: Revolving
(iii) Commission
The Borrower shall pay to the Bank commission at the rate of zero
point one per centum (0.1%) flat on the invoice amount and the
commission is to be paid in advance or at the time the SG is issued.
(iv) Penalty Commission
The Borrower shall pay to the Bank a penalty commission of zero point
five per centum per annum (0.5% p.a.) for three (3) months upfront if
each SG is not returned within three (3) months from the date of
issuance of the respective SG and such commission shall continue to be
charged on a three monthly basis for the subsequent months thereafter
until the respective SG is returned to the Bank.
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THE SCHEDULED REFERRED TO HEREIN
SCHEDULE 2
ITEM 15 STA - Sublimit of RM400,000-00 of the BA outstanding amount with
Public Bank Berhad by the Borrower at the time of refinancing by the
Bank, whichever is lower.
General Conditions
(i) Purpose: To refinance the BA outstanding with Public Bank Berhad
by the Borrower.
(ii) Nature: Non-Revolving
(iii) Tenor: Six (6) months only
(iv) Prescribed Rate
The Borrower shall pay interest at the rate of the BLR plus ONE POINT
FIVE ZERO per centum per annum (1.50% p.a.) on the principal amount of
the STA and such interest is calculated on monthly rests and is
payable monthly in arrears, commencing one (1) month from the first
Drawdown Date. The computation of interest shall be based on a three
hundred and sixty-five (365) or three hundred and sixty-six (366) days
as applicable for actual number of days elapsed.
(v) Penalty Rate
The Borrower shall pay a Penalty Rate calculated at the Prescribed
Rate plus ONE POINT ZERO per centum per annum (1.0% p.a.) on all
overdue STA for the actual number of days in arrears or at such other
rate as the Bank may determine from time to time.
(vi) Repayment
The Borrower shall repay the STA within the Tenor, to commence one (1)
month from date of full drawdown.
(vii) Prepayment
The Borrower cannot prepay the STA unless prior written approval is
obtained from the Bank.
(viii) Conditions of Disbursement
The STA-NR is to be disbursed to Public Bank Berhad only.
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THE SCHEDULED REFERRED TO HEREIN
SCHEDULE 2
ITEM 16 TL - Limit of RM200,000-00
General Conditions
(i) Purpose: To finance the setting up of the Borrower's digital
boutique at "the Curve".
(ii) Nature: Non-Revolving
(iii)Tenor: The Tenor of the TL is FOUR (4) years inclusive of six(6)
months' grace period where only interest is to be serviced.
(iv) Availability Period: One (1) year from the date of the Letter of
Offer. Any undrawn portion of the TL after the expiry of the
Availability Period is automatically cancelled.
(v) Prescribed Rate
Where applicable, the Borrower covenants and agrees that until
commencement of the repayment of the TL as provided in Item 16 (vii)
below the Borrower shall without notice from the Bank to pay, pay the
Bank interest at the rate of bank's BLR (presently at SIX POINT ZERO
per centum (6.0%) per annum) plus TWO POINT ZERO per centum (2.0%)
p.a. on such amount of the TL as might have been disbursed on each
Interest Payment Date and mutatis mutandis upon full disbursement of
the TL calculated on monthly rests and payable monthly in arrears and
such rate shall be subject to revision at the absolute discretion of
the Bank from time without notice to the Borrower. If the Borrower
fails to pay interest as specified herein the Bank will debit the
interest to borrower's account with the Bank and the Bank may at its
discretion recall the facility/facilities.
(vi) Penalty Rate
If the Borrower fails to pay to the Bank on the due date any
instalment or any sum (whether principal, interest or otherwise) due
under the TL, the Borrower shall pay on demand interest on such
instalment or sum from that date up to the date of actual payment (
and shall include after as well as before any judgement) at the
penalty rate calculated at the rate of the Prescribed Rate plus ONE
POINT ZERO (1.0% p.a.) or such other rate as the Bank may at its
absolute discretion determine. The minimum interest charged on each
late payment is RM5-00 per month.
(vii) Prepayment
The Borrower may at any time after full disbursement of the TL or
during the tenor of the TL by giving the requisite Prepayment Notice
of one (1) month ( or paying interest at the Prescribed Rate
hereinabove provided for a similar period in lieu of such notice)
prepay the whole TL or any part thereof to the Bank as the Bank may in
its absolute discretion accept.
(viii) Repayment
The Borrower shall repay the TL in instalments of Ringgit Malaysia
FIVE THOUSAND FOUR HUNDRED AND SEVENTY FIVE AND SEN FORTY (RM5,475-40)
only each inclusive of interest, commencing after the expiry of the
grace period as stipulated by the Bank and thereafter on the last day
of every subsequent (1) month.
(ix) Conditions of Disbursement
The TL shall at the discretion of the Bank be released directly to the
vendors and/or contractors against their invoices and other documents
satisfactory to the Bank.
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THE SCHEDULED REFERRED TO HEREIN
SCHEDULE 2
ITEM 17 TR -
General Conditions
(i) Purpose: To finance the bills negotiated under the LC and
collection bills.
(ii) Nature: Revolving
(iii)Tenor: Sight/Usance: The maximum tenor for each TR is ONE
HUNDRED AND TWENTY (120) days.
(iv) Prescribed Rate
The Borrower shall pay to the Bank interest at a rate of ONE POINT
FIVE ZERO per centum per annum (1.50% p.a.) over and above the BLR and
such rate shall be subject to revision at the absolute discretion of
the Bank from time to time with or without notice to the Borrower.
(v) Penalty Rate
The Borrower shall pay to the Bank interest on any overdue TR at a
penalty rate calculated at the rate of ONE POINT ZERO per centum per
annum (1.0% p.a.) over and above the Prescribed Rate or such other
rate as the Bank may determine from time to time until the date of
effective payment.
