FACILITIES AGREEMENT
(Banking Facilities of ………
DATE: The day of 200….
PARTIES:
I. ……………………. (the BORROWER).
II. ………….. (the LENDER).
RECITALS:
A. The BORROWER is a company incorporated under the laws of Malaysia with limited liability and an authorised share capital of divided into ordinary shares of RM1.00 each, of which as at the date of this Agreement, shares of RM1.00 each have been issued and are fully paid-up or credited as fully paid-up.
B. The BORROWER has requested and the LENDER has agreed by way of a letter of offer dated …… (LETTER OF OFFER), to grant and make available to the BORROWER the following banking facilities (collectively referred to as the FACILITIES) upon the securities referred to and on the terms and subject to the conditions as set out in this Agreement:-
Banking Facilities Maximum aggregate amount
Term Loan (the TL) ………….
C. The BORROWER has on ……accepted the FACILITIES upon the terms and conditions of the LETTER OF OFFER.
D. By the LETTER OF ALIENATION (as herein defined) dated the………….., the State Government of Selangor Darul Ehsan has alienated the LAND (as herein defined) to the BORROWER upon the terms and conditions therein contained.
E. The consent of the Pihak Berkuasa Negeri is required for the creation and registration of the CHARGE (as herein defined) over the LAND by the BORROWER in favour of the LENDER.
OPERATIVE PROVISIONS:
Clause 1
Interpretation & Definitions
1.1 Definitions
For the purposes of this Agreement the following words and phrases shall, where they appear in capital letters, have the following meaning:-
AUTHORISED SIGNATORIES
means in relation to the BORROWER, any person(s) who is duly empowered to bind the BORROWER and to give, make or issue any notices or other communications under or in connection with this Agreement and whose authority is evidenced by a resolution of the Board of Directors of the BORROWER.
ASSIGNMENT OF LETTER OFALIENATION
means the assignment in form and substance acceptable to the LENDER to be executed between the BORROWER and the LENDER in respect of an absolute assignment by the BORROWER in favour of the LENDER or its nominee(s) of the full and entire rights and benefits of the LETTER OF ALIENATION together with all the rights, title and interest of the BORROWER in and to the LETTER OF ALIENATION as security for the FACILITIES .
AVAILABILITY PERIOD
means within twelve (12) months from the date of this letter of offer.
BLR
means the rate of interest as conclusively determined by the LENDER as the LENDER’s base lending rate (……….per annum as at the date of the LETTER OF OFFER) and which rate may be varied by the LENDER from time to time or at any time at its absolute discretion in exercise of its powers under provisions of this Agreement or if permitted by any relevant monetary authority.
BORROWER means ………a company incorporated in and under the laws of Malaysia, and having its registered office at ….. and a place of business at ……… and includes its successors in title and permitted assigns.
TERM LOAN means the term loan of up to the limit of RINGGIT MALAYSIA …… (RM…..) only to be made available by the LENDER to the BORROWER under this Agreement and, where the context so permits, includes the aggregate principal amount advanced by the LENDER under this Agreement and for the time being outstanding under this Agreement and such other facilities as the LENDER may from time to time grant to the BORROWER and evidenced by the ad-valorem stamp duty paid and endorsed on the original of this Agreement from time to time extends to secure.
CHARGE means a NLC first fixed legal charge over the LAND, in form and substance acceptable to the LENDER to be created by the BORROWER in favour of the LENDER to secure the payment of the INDEBTEDNESS.
DEFAULT RATE means the rate of one point zero per centum (1.0%) above the PRESCRIBED RATE for the TERM LOAN.
DRAWDOWN means an advance made or to be made by the LENDER under the TERM LOAN.
DRAWDOWN DATE means each of the dates on which a DRAWDOWN is made.
DRAWDOWN NOTICE means a notice requesting for a DRAWDOWN substantially in the form and substance as set out in Schedule 1 or such other form acceptable to the LENDER duly completed and signed by the AUTHORISED SIGNATORIES.
EFFECTIVE COST OF FUNDS means the cost of deposits of such period to coincide with the interest period offered to the LENDER by the Kuala Lumpur Interbank Money Market plus the cost of maintaining statutory reserves and liquidity requirements and/or such further requirements imposed upon the LENDER by Bank Negara Malaysia or any other appropriate authorities in Malaysia having a jurisdiction over the LENDER, whether or not having the force of law.
ENCUMBRANCE means any mortgage, charge, pledge, lien, assignment, hypothecation, security interest, title retention, preferential right or trust arrangement or other security arrangement or agreement or any right conferring a priority of payment.
EVENT OF DEFAULT means any one of the events or circumstances specified in Clause 13 as constituting an EVENT OF DEFAULT or other event or circumstance which, with the giving of notice or lapse of time, or both, would constitute an EVENT OF DEFAULT.
FACILITIES means TERM LOAN the aggregate amount of which is Ringgit Malaysia …. (RM…….. only and shall where the context permits, include:-
(i) any part or portion thereof and such other facilities as the LENDER may from time to time grant to the BORROWER and evidenced by the ad valorem stamp duty paid and endorsed on the original of this Agreement from time to time extends to secure; and
(ii) all or any one or more of the aforesaid facilities.
GUARANTEE means the joint and several personal guarantee and indemnity in form and substance acceptable to the LENDER to be executed by the INDIVIDUAL GUARANTORS in favour of the LENDER to secure the payment of the INDEBTEDNESS and the due observance and performance by the SECURITY PARTIES of all agreements, terms, conditions, covenants, stipulations and undertakings on the part of the SECURITY PARTIES to be observed and performed as contained in this Agreement and the SECURITY DOCUMENTS.
INDEBTEDNESS means the aggregate of all moneys whatsoever including but not limited to principal, interest, commission, commitment fee, charges, costs or expenses outstanding or payable by the SECURITY PARTIES to the LENDER pursuant to the SECURITY DOCUMENTS.
LAND means all that plot of leasehold land held under …… measuring approximately …….. acres in area, the particulars of which are set out in Schedule 3, including all buildings and fixtures now or hereafter erected thereon or affixed thereto.
LENDER means Bumiputra Commerce Bank Berhad (13491-P), a company incorporated in and under the laws of Malaysia and having its registered office at ….. and a place of business at ……… and includes persons deriving title thereunder and its successors in title and assigns and any branch office(s) of the LENDER.
LETTER OF ALIENATION means the letter of alienation issued by the ……. dated the ….. with reference to ………, a copy of which is annexed hereto in Schedule 4;
LETTER OF OFFER means the letter dated …. issued by the LENDER to the BORROWER in respect of the FACILITIES and includes any other correspondence or documents which may issued by the LENDER to the BORROWER in substitution thereof or in addition or amendment or variation thereto.
MARGIN means the rate of one point seven five per centum (1.75%)per annum or such other rate(s) as may be prescribed by the LENDER at its absolute discretion in exercise of its powers under the provisions of this Agreement.
NLC means National Land Code, 1965 (Act 56 of 1965).
POWER OF ATTORNEY means the power of attorney in form and substance acceptable to the LENDER to be executed by the BORROWER and appointing the LENDER as the Attorney to, inter alia, deal with the LAND and to do whatever acts to complete the PROJECT as fully and effectually as the BORROWER could do themselves in any manner whatsoever.
POTENTIAL DEFAULT means any event which, with the giving of notice or any certificate or the lapse of time or the making of any determination or the satisfaction of any other condition (or any combination thereof), might or would constitute an EVENT OF DEFAULT.
PRESCRIBED RATE means the aggregate of the MARGIN and the BLR or such other rate(s) as may be prescribed by the LENDER at its absolute discretion in exercise of its powers under the provisions of this Agreement.
PURPOSE means:-
(i) ………………
SECURITY DOCUMENTS means:-
(i) this Agreement
(ii) the LETTER OF OFFER;
(iii) the DEED OF ASSIGNMENT;
(vi) the POWER OF ATTORNEY;
(vii) the LETTER OF GUARANTEE;
(viii) the LETTER OF UNDERTAKING FOR RENTAL PROCEED;
(ix) and any other security documents executed or created or which may hereafter be executed or created to secure the payment of the INDEBTEDNESS;
and shall where the context so permits, include all or any one or more of the aforesaid security documents.
SECURITY PARTIES means :-
(i) the BORROWER;
(ii) the INDIVIDUAL GUARANTORS; and
(iii) any other party giving or providing security for the payment of the INDEBTEDNESS;
and shall where the context so permits, include all or any one or more of the aforesaid SECURITY PARTIES.
TERM LOAN means the term loan of up to the limit of RINGGIT MALAYSIA ………. (RM……) only to be made available by the LENDER to the BORROWER under this Agreement and, where the context so permits, includes the aggregate principal amount advanced by the LENDER under this Agreement and for the time being outstanding under this Agreement and such other facilities as the LENDER may from time to time grant to the BORROWER and evidenced by the ad-valorem stamp duty paid and endorsed on the original of this Agreement from time to time extends to secure.
1.2 Interpretations
In this Agreement, unless there is something in the subject or context inconsistent with such construction or unless it is otherwise expressly provided: –
1.2.1 words denoting one gender include all other genders and words denoting the singular include the plural and vice versa;
1.2.2 words denoting persons include corporations, and vice versa, and also include their respective heirs, personal representatives, successors in title or permitted assigns, as the case may be;
1.2.3 words and phrases, definitions of which are given in the Companies Act 1965or the National Land Code, 1965 (Act 56 of 1965), shall be construed as having the meaning thereby attributed to them, but excluding any statutory modification thereof not in force at the date of this Agreement;
1.2.4 where a word or phrase is given a defined meaning in this Agreement any other part of speech or other grammatical form in respect of such word or phrase has a corresponding meaning;
1.2.5 any reference to a sub-paragraph, paragraph, sub-clause, clause, schedule or party is to the relevant sub-paragraph, paragraph, sub-clause, clause, schedule or party of and to this Agreement and any reference to this Agreement or any of the provisions hereof includes all amendments and modifications made to this Agreement from time to time in force;
1.2.6 any reference to a statutory provision includes any modification, consolidation or re-enactment thereof for the time being in force, and all statutory instruments or orders made pursuant thereto;
1.2.7 any reference to “pay”, or cognate expressions, includes payments made in cash or by way of bank drafts (drawn on a bank licensed to carry on banking business under the provisions of the Banking and Financial Institutions Act 1989) or effected through inter-bank transfers to the account of the payee, giving the payee immediate access to available funds and the words “Ringgit Malaysia” and the abbreviation “RM” mean the lawful currency of Malaysia;
1.2.9 any reference to “writing”, or cognate expressions, includes any communication effected by telex, cable, facsimile transmission or other comparable means;
1.2.10 any reference to a “business day” is to a day on which banks, licensed to carry on banking business under the provisions of the Banking and Financial Institutions Act 1989, are open for business in Kuala Lumpur and on which dealings in Ringgit deposits may be carried out in the Kuala Lumpur Interbank Money Market and any reference to a “day”, “week”, “month” or “year” is to that day, week, month or year in accordance with the Gregorian calendar; and
1.2.11 if any period of time is specified from a given day, or the day of a given act or event, it is to be calculated exclusive of that day and if any period of time falls on a day, which is not a business day, then that period is to be deemed to only expire on the next business day.
1.3 Conflict with security documents
In the event of any conflict or discrepancy between the contents of this Agreement and the contents of any of the other SECURITY DOCUMENTS, the contents of this Agreement shall prevail.
1.4 Headings
The headings and sub-headings in this Agreement are inserted merely for convenience of reference and shall be ignored in the interpretation and construction of any of the provision herein contained.
1.5 Recitals and Schedules
The Recitals and Schedules to this Agreement shall have effect and be construed as an integral part of this Agreement, but in the event of any conflict or discrepancy between any of the provisions of this Agreement such conflict or discrepancy shall, for the purposes of the interpretation and enforcement of this Agreement, be resolved by:-
1.5.1 giving the provisions contained in the clauses of this Agreement priority and precedence over the provisions contained in the Recitals and Schedules of and to this Agreement; and
1.5.2 giving the provisions contained in the Schedules of this Agreement priority and precedence over the provisions contained in the Recitals to this Agreement.
1.6 Table of contents
The table of contents in this Agreement is inserted merely for convenience of reference and shall be ignored in the interpretation and construction of any of the provision herein contained.
Clause 2
The FACILITIES
2.1 The FACILITIES
Subject to the compliance by the BORROWER of the conditions precedent contained in clause 4 and of the other terms and conditions of this Agreement the LENDER shall make available to the BORROWER during the AVAILABILITY PERIOD the TERM LOAN, in the maximum aggregate principal amount of RINGGIT MALAYSIA …….. (RM…..) only.
And in the event that the FACILITIES or part of it for whatever reason be unutilised after the expiration of the AVAILABILITY PERIOD, the LENDER shall be at liberty at its absolute discretion to withdraw the FACILITIES in which event the BORROWER shall reimburse all costs, fees and expenses including legal fees incurred by the LENDER or to vary the terms of the FACILITIES. Any portion of the FACILITIES unutilised or undrawn after the AVAILABILITY PERIOD shall forthwith be cancelled and shall not be available for utilisation or drawing. Notwithstanding anything herein contained in this Agreement, the FACILITIES and all interest, costs, fees and charges thereon shall be payable on demand.
2.2 Bank’s obligation
Nothing herein contained shall be deemed to render it obligatory upon the LENDER, either at law or in equity, to grant and make available to or continue to grant and make available to, or for the benefit of the BORROWER the FACILITIES or any other advances or to afford any other accommodation or facility whatsoever.
Clause 3 Purpose
3.1 The Purpose
The FACILITIES shall be used for the PURPOSE. The BORROWER shall not use the FACILITIES or any part thereof, for any purposes other than the PURPOSE. In the event that the BORROWER requires the use of the FACILITIES or any part thereof for any other purpose, the BORROWER shall obtain the prior written consent of the LENDER.
Clause 4 Conditions Precedent
4.1. Conditions Precedent for utilisation of the FACILITIES
The LENDER shall not be obliged to grant and make available or continue to grant and make available the FACILITIES or any part thereof to the BORROWER until all the following conditions precedent have been fulfilled to the satisfaction of the LENDER :
4.1.1 Upon submission of the duplicate copy of this Letter of Offer having been duly accepted and returned to the Bank accompanied by the Borrowre’s Board of Directors’ Resolution authorizing acceptance of the Banking Facility together with the trms and conditions and stating the person or person(s) authorized to sign the Letter of Offer and other related documents and to operate the facility from time to time together with their specimen signature(s);
4.1.2 all the SECURITY DOCUMENTS, in form and substance satisfactory to the LENDER have been duly executed, stamped, registered (where registration is necessary for the perfection of the security thereby created) and the original stamped copies thereof (save and except for the original stamped copy of the instrument of CHARGE, which will be in the possession of the appropriate land registry) shall have been deposited with the LENDER;
4.1.3 the LENDER has received, in form and substance satisfactory to the LENDER and its legal advisers, copies (in as many numbers as may be requested by the LENDER) of the following documents, certified as true by a director or the secretary of the BORROWER:
(i) the resolution of the Board of Directors of the BORROWER, authorising:
(a) the BORROWER’S acceptance of the FACILITIES on the terms of the LETTER OF OFFER and this Agreement and the provision by the BORROWER of the relevant security on the terms of the SECURITY DOCUMENTS;
(b) the AUTHORISED SIGNATORIES to sign, accept and deliver the LETTER OF OFFER and all notices, letters, documents and other communications to be given or made by or on behalf of the BORROWER under this Agreement and the SECURITY DOCUMENTS and otherwise to act on the BORROWER’s behalf in respect of the FACILITIES and in respect of the SECURITY DOCUMENTS; and
(c) the execution of this Agreement, the SECURITY DOCUMENTS the relevant statutory forms under the NLC and any other relevant documents by affixing the common seal of the BORROWER thereto in accordance with the Articles of Association of the BORROWER;
(ii) the Certificate of Incorporation, Memorandum and Articles of Association of the BORROWER;
(iii) the latest Forms 24, 44 and 49 of the BORROWER; and
(iv) specimen signatures, full names and national identity card numbers of the AUTHORISED SIGNATORIES;
Clause 5 Disbursement and utilisation
5.1 Subject to the compliance by the BORROWER and/or the SECURITY PARTIES of the conditions precedent contained in Clause 4 hereof, the BORROWER may from time to time, during the AVAILABILITY PERIOD, draw on and utilise the TERM LOAN in the manner stipulated in this Clause 5 subject always to the limits and sub-limits imposed by the LENDER on the TERM LOAN.
5.2.5 Where applicable and without prejudice to the LENDER’s powers and rights herein conferred it is expressly agreed between the parties hereto that in the event of any default on the part of the person(s) responsible for or concerned with the PURPOSE and/or the PROJECT in honouring their obligations to any financial institution or in the opinion of the LENDER the person(s) responsible for or concerned with the PURPOSE and/or the PROJECT and/or the BORROWER is in breach of their obligations in respect of the PURPOSE and/or the PROJECT, the LENDER shall be at liberty to withhold the disbursement of the TERM LOAN or any part or such parts thereof.
5.2.6 Notwithstanding any provision to the contrary in this Agreement, the BORROWER hereby authorizes the LENDER to disburse the TERM LOAN or such part or parts thereof to any architect, engineer, quantity surveyor contractor, workman, builder, professional or consultant or any other person, company or body responsible or involved in the PROJECT and/or the PURPOSE at such times in such manner by such amounts and upon such contingencies and conditions as the LENDER may in its absolute discretion decide and/or by progressive releases as the LENDER may in its absolute discretion deem fit and the BORROWER hereby irrevocably and unconditionally agrees and confirms that the BORROWER is deemed to have issued a DRAWDOWN NOTICE for any such payment made by the LENDER.
5.2.7 It is hereby declared that the authorization set out in sub-clause 5.2.7 shall be irrevocable and it is hereby expressly acknowledged, agreed and confirmed by the BORROWER that all advances and payments to the party(ies) set out in sub-clause 5.2.7 shall for all purposes whatsoever be deemed to be and form part of the moneys secured by and owing under this Agreement and the acknowledgement of receipt by the aforesaid party(ies) shall be as good and sufficient and effective as if the same had been made or given by the BORROWER personally and it is hereby further irrevocably agreed and confirmed by the BORROWER that the BORROWER shall not be entitled to object to or to restrain such payment by the LENDER.
Clause 6 Repayment and Prepayment
6.1 The FACILITIES
Notwithstanding any other provisions of this Agreement, the BORROWER shall forthwith repay to the LENDER the amount outstanding under the FACILITIES together with all interest, commission fees and any other charges accruing thereon upon demand by the LENDER for the same. Upon demand by the LENDER as aforesaid, the obligation of the LENDER to make available or continue to make available the FACILITIES shall forthwith be terminated or cancelled.
6.2 Repayment of the TERM LOAN
6.2 Unless demand is made pursuant to sub-clause 6.3, the BORROWER shall repay to the LENDER the amount outstanding on the TERM LOAN together with all interest accruing thereon at the PRESCRIBED RATE as stipulated in sub-clause 7.1 in the following manner:-
6.2.1 the principal sum of the TERM LOAN shall be repaid in full by way of …. equal quarterly instalments of Ringgit Malaysia …and (RM….) each, the first of the instalments to be paid on the first day of the nineteenth (19th) month from the date of the first DRAWDOWN of the TERM LOAN and the subsequent instalments to be paid at regular successive intervals of three (3) months or paying the REDEMPTION SUM for the redemption of units in the PROJECT, whichever is earlier, until the principal sum of the TERM LOAN and the accrued interest have been fully paid.
6.2.2 Interest accruing on the TERM LOAN shall be payable monthly in arrears, the first of which payments shall be made on the first day of the month following next after the date on which the TERM LOAN or any part thereof shall first be released or disbursed on behalf of or for the benefit of the BORROWER (or such other date as the LENDER may from time to time stipulate) and thereafter on or before the first day of each and every succeeding month.
6.3 Demand
Any demand for repayment of the monies intended to be hereby secured may be made by a notice in writing requiring payment within seven (7) days from the date of such notice or in such forms as may be prescribed by or under the applicable Acts and may be signed on behalf of the LENDER by any general manager, manager, assistant manager or any other duly authorised officer of the LENDER or by any solicitor or firm of solicitors purporting to act for the LENDER and such notice shall be deemed to have been sufficiently served on the BORROWER if it is left at the address of the BORROWER stated in sub-clause 16.1 or at the usual or last known place of business of the BORROWER or sent by registered letter or ordinary mail to any of such addresses and in the last mentioned case the service shall be deemed to be made within five (5) days of posting.
6.4 Prepayment of the TERM LOAN
6.4.1 Subject to the payment of all interest accruing on the TERM LOAN, the BORROWER may prepay to the LENDER the whole or any part of the TERM LOAN by giving to the LENDER not less than one (1) months’ prior written notice specifying the date of prepayment (which said period shall be calculated from the date of the LENDER’s actual receipt of the said notice) or in lieu thereof a penalty fee of one (1) months’ interest at the PRESCRIBED RATE shall be chargeable by the LENDER.
6.4.2 The BORROWER may prepay to the LENDER such part of the TERM LOAN provided always that the amount prepayable shall be in integral multiples of Ringgit Malaysia One Hundred Thousand (RM100,000.00) subject to the minimum sum of Ringgit Malaysia One Hundred Thousand (RM100,000.00) which shall be applied in the inverse order of maturity and shall not be available for redrawing.
6.4.3 Any notice of intended prepayment once given by the BORROWER pursuant to Clause 6.4 shall be irrevocable and shall make it obligatory upon the BORROWER to make the prepayment in accordance with the terms of such notice. In the event of the BORROWER defaulting in the prepayment of the moneys in accordance with the terms of such notice, the LENDER shall be entitled to charge an additional three (3) months’ interest on such amount not prepaid and such interest shall for all purposes, whatsoever be deemed to be and form part of the monies secured by and owing under this Agreement and the SECURITY DOCUMENTS.
Clause 7 Interest, fees, commission and charges
7.1 Interest and commission
The BORROWER shall pay interest on all or any part of the TERM LOAN outstanding from time to time, at the rate of one point seven five per centum (1.75%) per annum above the BLR (currently at eight point zero five per centum (8.05%) per annum as at the date of the LETTER OF OFFER) (the PRESCRIBED RATE) on monthly rests and commission at the rate of zero point one per centum (0.1%) per mensem on the amount of BG, subject to a minimum of RINGGIT MALAYSIA FIFTY (RM50.00) per BG issued under the BG FACILITY.
7.1 Calculation where interest is on monthly rests
The interest chargeable at the PRESCRIBED RATE as stipulated in sub-clause 7.1 shall be calculated on the full amount of the TERM LOAN and all other sums then payable by the BORROWER as from the date of release till the end of the month of such release. In and for each succeeding month thereafter, interest at the PRESCRIBED RATE as stipulated in sub-clause 7.1 shall be chargeable on the sum owing as at the last day of the preceding month and shall be due and payable on the first day of the following month.
7.4. Interest on Late Payment
7.4.1 In the event that the BORROWER defaults, neglects or refuses to pay any amount due and payable by it under the provisions of this Agreement (the “Amount Overdue”) on the relevant due date, interest on the Amount Overdue shall on demand be payable by the BORROWER at the DEFAULT RATE from the due date for such payment until the date of actual payment (as well after as before judgement).
7.4.2 Interest payable under sub-clause 7.4.1 shall accrue daily and shall be paid by the BORROWER at the end of each month. So long as the default under sub-clause 7.4.1 subsists, the rate of interest referred to in that sub-clause 7.4.1 shall be calculated on a similar basis at the end of each month and interest payable under sub-clause 7.4.1 which is unpaid at the end of each month shall thereafter itself bear interest at that rate.
7.5 Variation
7.5.1 Notwithstanding the provisions relating to the amount or rate of interest, commission or charges in this Agreement, the LENDER reserves the right at any time and from time to time hereafter without notice to the BORROWER to vary the amount, rate, mode or method of calculation of interest or commission or charges in respect of the any of the FACILITIES or any part thereof.
7.5.2 Without prejudice to the generality of the foregoing and notwithstanding the provisions relating to the BLR and/or the EFFECTIVE COST OF FUNDS and/or the MARGIN and/or the DEFAULT RATE and/or any other interest rate, commission or charges as hereinstated, the LENDER reserves the right at any time and from time to time hereafter with notice to the BORROWER to vary the rate, mode or method of calculation of interest including without limitation the BLR and/or the EFFECTIVE COST OF FUNDS and/or the MARGIN and/or the DEFAULT RATE and/or any other interest rate, commission or charges as herein stated and/or the applicable rest period, in the manner hereinafter set out:-
(i) in respect of the BLR, by placing in one issue of a daily national newspaper or by any other modes deemed fit and proper by the LENDER, a general notice of change of the BLR addressed to the public generally;
(ii) in respect of the EFFECTIVE COST OF FUNDS and/or the MARGIN and/or the DEFAULT RATE and/or any other interest, commissions or charges as herein stated and/or the applicable rest period, the LENDER has the discretion to vary such rates in the same manner set out in sub-clause 7.5.2(i) or by serving a notice in writing on the BORROWER, which written notice may be incorporated into the LENDER’s bank statements forwarded to the BORROWER periodically;
Provided always that the effective date of the change of the BLR and/or the EFFECTIVE COST OF FUNDS and/or the MARGIN and/or the DEFAULT RATE and/or any other interest rate, commissions or charges as herein stated and/or the applicable rest period shall be the date specified in the advertisement or in the notice, and if notice be given in the LENDER’s bank statement, the date specified in the bank statement, notwithstanding that such specified date from which the new BLR and/or the EFFECTIVE COST OF FUNDS and/or the MARGIN and/or the DEFAULT RATE and/or any other interest rate, commissions or charges as herein stated and/or the applicable rest period are payable or applicable shall be earlier than the date of the advertisement or notice, as the case may be. Notwithstanding anything herein contained any failure of or a delay on the part of the LENDER to place the advertisement or to give the notice shall not release exonerate discharge the BORROWER from its obligations and liabilities to pay the interest at the new rates from the specified date. The decision of the LENDER as to what at any time is the BLR and/or the EFFECTIVE COST OF FUNDS and/or the MARGIN and/or the DEFAULT RATE and/or any other interest rate commissions or charges as herein stated and/or the applicable rest period and the date(s) from which such amendments shall take effect, shall be final and conclusive and shall not be questioned on any account whatsoever.
7.6 Ascertaining limit
For the purpose of ascertaining whether the limit of the principal sum hereby or intended to be hereby secured has been exceeded or not all accumulated and compounded interest shall be deemed to be interest and not principal sums.
7.7 Capitalisation
Subject always to the provisions of this Agreement, if any interest, commission, discount, charges or other charges remains unpaid after the day on which the same ought to have been paid, then in every such case the interest, commission, discount, charges or other charges in arrears shall at the expiration of the day on which the same ought to be paid be capitalised and added for all purposes to the principal sum of the FACILITIES then owing and shall thenceforth bear interest (both before demand and after judgement and irrespective of whether the banker customer relationship subsists) at the DEFAULT RATE or such other default rate(s) as may be stipulated by the LENDER at its sole and absolute discretion and all covenants and provisions and all powers and remedies conferred in this Agreement in relation to principal sums, interest, commission or charges shall equally apply to such capitalised arrears and to interest on such arrears.
7.8 Determination Conclusive
Any notification, certification or determination by the LENDER of any amount or rate of interest, commission or other charges payable under the terms of this Agreement shall be conclusive and binding on the BORROWER save for manifest error.
7.12 Basic of Calculation
All interest, fees and commission and other payments of an annual nature under this Agreement shall accrue from day to day and be calculated on the basis of a year of three hundred and sixty five (365) days for the actual number of days elapsed and shall exclude the date on which interest is paid.
Clause 8 Expenses
8.1 Expenses
The BORROWER shall pay, on demand and on a full indemnity basis, to the LENDER the full amount of all costs and expenses (including legal fees on a solicitor client basis and out of pocket expenses and any service tax or similar tax payable thereon) which the LENDER incurs:-
8.1.1 in connection with the preparation, negotiation, execution and delivery of the SECURITY DOCUMENTS;
8.1.2 in connection with any actual or proposed amendment, waiver or consent under the SECURITY DOCUMENTS; or
8.1.3 in contemplation of or otherwise in connection with the enforcement (or attempted enforcement of or preservation or attempted preservation) of any rights under any SECURITY DOCUMENTS or otherwise in respect of the INDEBTEDNESS;
notwithstanding that the FACILITIES may be cancelled prior to utilisation.
8.2 Duties
The BORROWER shall pay all stamp, registration or other similar duties, taxes, fees and expenses (including any payable by the LENDER) in connection with or incidental to the SECURITY DOCUMENTS and any other document referred to in this Agreement and shall indemnify the LENDER against any liability arising by reason of any delay or omission by the BORROWER to pay such stamp, registration or other similar duties, taxes, fees and expenses.
8.3 Payment by deduction
The LENDER shall be entitled to effect payment (to the extent not already discharged) of all expenses, duties and other sums due and payable by the BORROWER under this Clause 8 out of and by deduction from the FACILITIES and/or the accounts of the BORROWER with the LENDER and the BORROWER irrevocably agrees that, without prejudice to any other rights and remedies of the LENDER, the LENDER shall be entitled (but not obligated), at any time and from time to time, without prior notice, to debit the BORROWER’s account or other account(s) maintained with the LENDER and/or to debit any unpaid advances or part thereof being principal and interest as they fall due, the costs and expenses and other moneys undertaken to be paid under the SECURITY DOCUMENTS provided that no such debiting shall be deemed to be payment of the amount due (except to the extent of any amount in credit in the BORROWER’s current or other accounts) or a waiver of any EVENT OF DEFAULT under this Agreement or any other SECURITY DOCUMENTS or any other agreement relating to the FACILITIES.
Clause 9 Payments
9.1 No deductions
All payments to be made by the BORROWER under this Agreement shall be made in full, without any counterclaim whatsoever and free and clear of any deductions or withholdings, in immediately available, freely transferable, cleared funds not later than 3.00 p.m. on the due date to the account of the LENDER. If at any time the BORROWER is required to make any such deduction from any such payment, any sum due from the BORROWER in respect of such payment shall be increased to the extent necessary to ensure that after the making of such deduction the LENDER receive a net sum equal to the sum it would have received had no such deduction been required to be made. Whenever such deduction is made by the BORROWER, the BORROWER shall, as promptly thereafter or reasonably practicable send to the LENDER the official receipt, if available, showing payment thereof or such other documentary evidence as from time to time required by the LENDER.
9.2 Payment due on a day which is not a business day
Where any payment is due on a day which is not a business day, the due date for that payment shall be extended to the next business day unless such business day falls in the next calendar month, in which case payment shall be made on the immediately preceding business day.
9.3 Appropriation
9.3.1 In the case of partial payment by the BORROWER, the LENDER may appropriate such payment towards such of the obligations of the BORROWER under this Agreement as the LENDER may decide, notwithstanding any purported appropriation by the BORROWER in respect of such payment.
9.3.2 In addition to sub-clause 9.3.1 and notwithstanding any other provisions in the SECURITY DOCUMENTS, the BORROWER hereby irrevocably disables itself when making payments to the LENDER from appropriating such payment towards the FACILITIES or any part thereof and further waives the effect of the provisions of Section 60 of the Contracts Act, 1950 and unreservedly gives to the LENDER the right of appropriation of all payments made by the BORROWER under the SECURITY DOCUMENTS.
9.4 Conclusive Evidence
9.4.1 Accounts maintained by the LENDER in connection with the FACILITIES and any statement signed by an officer of the LENDER shall (save for manifest error) be conclusive evidence of the amounts from time to time owing by the BORROWER to the LENDER under or in connection with this Agreement.
9.4.2 Any admission or acknowledgement by the BORROWER or any person authorised on behalf of the BORROWER or a judgement (be it in default or otherwise obtained against the BORROWER) shall be conclusive evidence against the BORROWER for whatever purpose including as conclusive evidence of the amounts from time to time owing by the BORROWER to the LENDER.
Clause 10 Securities
10.1 Securities
For the purpose of securing the payment of the INDEBTEDNESS to the LENDER, the BORROWER shall simultaneously with the execution of this Agreement,
10.1.1 execute the FACILITIES AGREEMENT;
10.1.2 execute the DEED OF ASSIGNMENT;
10.1.3 execute the POWER OF ATTORNEY;
10.1.4 cause the INDIVIDUAL GUARANTORS to execute the PERSONAL GUARANTEE;
10.1.5 execute the LETTER OF UNDERTAKING OF RENTAL PROCEED; and
10.1.6 cause any other SECURITY PARTIES (if any) to execute the relevant SECURITY DOCUMENTS.
10.2 Restriction against other Charges
The BORROWER shall not, during the subsistence of the FACILITIES cause or permit to arise or subsist any ENCUMBRANCE over any of its assets or any part thereof without the prior written consent of the LENDER (save and except for any lien arising by operation of law in the ordinary course of business of the BORROWER) and until the full amount owing by the BORROWER to the LENDER shall have been paid or satisfied in full, the BORROWER hereby agrees that the LENDER shall have a lien on all property and assets of the BORROWER from time to time in the possession of and a charge over all stocks, including shares and marketable and other securities from time to time required in the name of the LENDER or its nominee(s) whether the same be held for safe custody or otherwise.
10.3 Other security
This Agreement shall be without prejudice to any security already given by any SECURITY PARTIES to the LENDER or any security which may hereafter be given to the LENDER whether the same be for securing payment of the INDEBTEDNESS or any part thereof or any other moneys and whether such security is taken as additional or collateral security or otherwise howsoever.
10.4 Covenant to provide further Security
10.4.1 The BORROWER shall at the request of the LENDER and at the cost and expense of the BORROWER charge and/or deposit with the LENDER all documents of title of any or all immovable properties vested in the BORROWER for any tenure and such charge and/or deposit may be by way of security for the payment of the INDEBTEDNESS and/or for the purpose of securing any other moneys owing to the LENDER and not secured by the SECURITY DOCUMENTS.
10.4.2 In addition, the BORROWER shall at the request of the LENDER and at the cost and expense of the BORROWER execute in favour of the LENDER or its nominee(s) such agreements or mortgages, charges, caveats, pledges, assignments, transfers, liens or other security interests as the LENDER may require of and on all or any part of the BORROWER’s estate, right, title and interest in any property, assets, stocks or shares now belonging to or which may hereafter be acquired by or belong to the BORROWER (including any Vendor’s lien) and the benefit of all licences held in connection therewith to additionally secure the payment of the INDEBTEDNESS or as substituted security.
10.5 Continuing Security
The security created by the SECURITY DOCUMENTS is and shall be a continuing security for all moneys whatsoever now or hereafter from time to time owing to the LENDER by the BORROWER whether alone or jointly and severally with another or others and whether as principal or surety notwithstanding that the BORROWER may at any time or times cease to be indebted to the LENDER for any period or periods and notwithstanding that the account or accounts of the BORROWER with the LENDER may from any cause whatsoever cease to be a current account or accounts and notwithstanding any settlement of account or accounts or otherwise.
10.6 Liens and other securities not affected
Nothing herein contained shall prejudice or affect any lien to which the LENDER is entitled or any the securities which the LENDER may at any time or from time to time hold for or on account of the INDEBTEDNESS nor shall anything herein contained operate so as to merge or otherwise prejudice or affect any bill note guarantee mortgage or other security which the LENDER may for the time being have for any money intended to be hereby or otherwise secured or any right or remedy of the LENDER thereunder.
10.7 Revaluation of securities
The BORROWER hereby authorises the LENDER to the LAND and any or all the securities held by the LENDER at every such intervals as the LENDER shall in its absolute discretion decide by any valuer acceptable to the LENDER or any officer of the LENDER or any person of the LENDER’s choice at the BORROWER’s own costs and expense and in the event such valuation reveals that the forced sale value of the securities held by the LENDER is lower than that at the date hereof, the LENDER may at its absolute discretion require the BORROWER within seven (7) days from the date of notice from the LENDER to charge, pledge, mortgage or deposit with the LENDER the BORROWER’s stocks and shares, assets, movable properties and the issue document of title of any or all immovable properties vested in the BORROWER of such value as the LENDER may from time to time stipulate and for such tenure as the LENDER so requires by way of further or additional security for the repayment of the total amount owing for the time being under this Agreement.
10.8 Further Assurance
The BORROWER shall, at any time and from time to time, whether before or after any security under the SECURITY DOCUMENTS shall have become enforceable, at the cost and expense of the BORROWER, execute all such transfers, assignments, assurances and do such acts and things as the LENDER may reasonably require for perfecting the security intended to be created or agreed to be created in favour of the LENDER and the exercise by the LENDER of all the powers, authorities, discretion conferred on the LENDER and the BORROWER shall also give all notices, orders and discretion which the LENDER may think expedient. For such purposes, a certificate in writing issued by the LENDER to the effect that a particular transfer, assignment, assurance, act or thing required by it is reasonably required by it shall be conclusive evidence of that fact.
Clause 11 Representations and Warranties
11.1 Representations and warranties
The BORROWER represents and warrants to the LENDER that: –
11.1.1 the BORROWER is a private company duly incorporated with limited liability under the Companies Act 1965 and validly existing under the laws of Malaysia as a separate legal entity and has full powers to own assets and carry on its existing business;
11.1.2 the BORROWER has full legal right, authority and power to borrow the FACILITIES and to enter into this Agreement and the other SECURITY DOCUMENTS and to exercise its rights and perform its obligations under this Agreement and the other SECURITY DOCUMENTS and that all appropriate and necessary action has been taken to authorise the execution and delivery of this Agreement and the other SECURITY DOCUMENTS and the exercise by the BORROWER of its rights and the performance by the BORROWER of its obligations under this Agreement and the other SECURITY DOCUMENTS (if any) and the execution and delivery thereof does not exceed the power and authority of the officers executing the same;
11.1.3 this Agreement and the other SECURITY DOCUMENTS constitute the legal, valid and binding obligation of the BORROWER enforceable in accordance with its terms and that the obligation of the BORROWER under this Agreement and the other SECURITY DOCUMENTS in respect of the payment of principal, interest, fees and other expenses and charges does not contravene any exchange control or other legislation or regulation binding on the BORROWER;
11.1.4 the relevant SECURITY DOCUMENTS constitute the legal, valid and binding obligation of the respective SECURITY PARTIES enforceable in accordance with their terms;
11.1.5 the execution of each of the SECURITY DOCUMENTS and delivery and performance thereof by the SECURITY PARTIES and the utilisation of the FACILITIES do not and will not:-
11.1.5.1 exceed the power granted to the SECURITY PARTIES by or violate the provisions of any law or regulation or any order or decree of any governmental authority, agency or court to which the SECURITY PARTIES are subject;
11.1.5.2 result in any actual or potential default under any existing mortgage debenture contract or agreement binding on that SECURITY PARTIES or to which they are subject;
11.1.5.3 where the SECURITY PARTIES are corporations, contravene any of the provisions of their Memorandum and Articles of Association; or
11.1.5.4 result in any limitation upon the SECURITY PARTIES’ powers to borrow or create any imposition of or oblige it to create any encumbrance over any of its undertaking or any of its assets, rights or revenues other than pursuant to the provisions of the SECURITY DOCUMENTS;
11.1.6 no lawsuit or investigation by any government agency or other regulatory authority is pending or to be instituted or threatened against the SECURITY PARTIES;
11.1.7 no violation of any provisions of legislation court orders judgement and others has been committed by the SECURITY PARTIES;
11.1.8 there are no winding-up proceedings against the BORROWER and the SECURITY PARTIES which are corporations and the shareholders of the BORROWER and the relevant SECURITY PARTIES have not commenced any action for voluntary winding-up;
11.1.9 there are no bankruptcy proceedings pending or threatened against the INDIVIDUAL GUARANTORS;
11.1.10 any consent license approval or authorisation of any governmental authority in Malaysia which is required in connection with the PROJECT and/or the execution performance validity enforceability of this Agreement and the SECURITY DOCUMENTS have been obtained prior to execution of this Agreement and the SECURITY DOCUMENTS;
11.1.11 the SECURITY PARTIES have not defaulted in any existing loan agreement or security documents;
11.1.12 the BORROWER’s accounts as delivered to the LENDER: –
(i) were prepared in accordance with accounting principles and practices generally accepted in Malaysia and consistently applied and have been prepared, examined, reported on and approved in accordance with all procedures required by law and the respective Memorandum and Articles of Association of the BORROWER;
(ii) together with the notes thereto, give a true and fair view of the financial condition and operations of the BORROWER as at the date of such accounts and for the period then ended; and
(iii) together with the notes thereto, disclose or reserve against the respective liabilities (contingent or otherwise) of the BORROWER as at the date of its said accounts and all material unrealised or anticipated losses from any commitment entered into by it and which existed on such date;
11.1.13 there has been no material adverse change in the financial condition or operations of the SECURITY PARTIES since the BORROWER first applied for the FACILITIES;
11.1.14 the information furnished by the BORROWER in connection with the FACILITIES and any information furnished by the SECURITY PARTIES in connection with the SECURITY DOCUMENTS do not contain any untrue statement or omit to state any fact the omission which makes any statement made therein in the light of the circumstances under which they are made, misleading, and all expressions of expectation, intention, belief and opinion and all projections contained therein were honestly made on reasonable grounds after due and careful inquiry by the BORROWER and the SECURITY PARTIES;
11.1.15 none of the directors, managers, agents or guarantors of the BORROWER nor any of their respective spouses, parents or children are in the employment of the LENDER so as to result in LENDER’s agreement to make available the FACILITIES to the BORROWER hereunder contravening Section 62 of the Banking and Financial Institutions Act, 1989; and
11.1.16 the BORROWER and the SECURITY PARTIES have obtained and maintained all such insurance policies as would be maintained by prudent companies carrying on business of the type carried on by the BORROWER and the SECURITY PARTIES at all relevant times and has complied in all material respects with the terms and conditions of such policies.
11.2 Repetition
The BORROWER shall be deemed to represent and warrant to the LENDER on each DRAWDOWN DATE or date of utilisation of the FACILITIES that :
11.2.1 the representations and warranties contained in sub-clause 11.1 are true and accurate in all respects as if made on each such DRAWDOWN DATE or date of utilisation of the FACILITIES; and
11.2.2 no EVENT OF DEFAULT or POTENTIAL DEFAULT has occurred or is threatened.
11.3. Effect of investigation
The rights and remedies of the LENDER in respect of any misrepresentation or breach of warranty on the part of the BORROWER shall not be prejudiced or affected by any investigation of the BORROWER or any other person by or on behalf of the LENDER or without limitation any other act or matter which, but for this provision, would or might prejudice or affect any such rights or remedies.
11.4 Correctness of representations and warranties
The truth and correctness of all matters stated in the representations and warranties under sub-clause 11.1 shall form the basis of the LENDER’s commitment to make available or continue to make available the FACILITIES to the BORROWER. If any such representations and warranties made shall at any time hereafter be found to have been incorrect or misleading in any respect then in such event and notwithstanding anything to the contrary hereunder the LENDER shall have the right at its absolute discretion to review, suspend, recall or terminate the FACILITIES or any part thereof.
Clause 12 Undertakings
12.1 Undertakings
The BORROWER undertakes and covenants with the LENDER that it will at all times during the continuance of the SECURITY DOCUMENTS and so long as any moneys payable under the SECURITY DOCUMENTS remain unpaid:-
12.1.1 punctually pay all its INDEBTEDNESS under this Agreement and the SECURITY DOCUMENTS when due and owing and punctually pay all its indebtedness to all relevant authorities;
12.1.2 perform all its other obligations under this Agreement and the SECURITY DOCUMENTS and procure that the SECURITY PARTIES perform all their obligations under the relevant SECURITY DOCUMENTS;
12.1.3 promptly furnish or obtain any governmental approval, authorisation license or permit of any nature whatsoever which may now or hereafter be required under any law, decree or regulation relating to the performance of its obligations under this Agreement and the relevant SECURITY DOCUMENTS and the performance of the obligations of the SECURITY PARTIES under the relevant SECURITY DOCUMENTS;
12.1.4 operate its business and affairs with due diligence and efficiency and in accordance with sound financial and commercial standards and practices and in accordance with its Memorandum and Articles of Association and procure that the SECURITY PARTIES being a corporation operate their businesses and affairs with due diligence and efficiency and in accordance with sound financial and commercial standards and practices and in accordance with their Memorandum and Articles of Association;
12.1.5 furnish to the LENDER all such information as the LENDER requests concerning the use of the FACILITIES or any part thereof and on any factors materially affecting its business and its operations and financial condition including but not limited to the provision of the monthly schedule listing of all sales achieved to date detailing names of purchasers, units purchased, purchase price and all payments received;
12.1.6 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 LENDER all such information as the LENDER request concerning its operations that are deemed by the LENDER in its absolute discretion to be relevant to the status of the FACILITIES;
12.1.7 maintain and preserve its corporate existence and all rights, privileges and licence now enjoyed and keep all its properties and assets in good working order and condition;
12.1.8 as soon as practicable but in any event within sixty (60) days after the end of each half financial year of the BORROWER, forward to the LENDER a copy of its balance sheet, profit and loss account, management account and reports prepared in accordance with generally accepted accounting standards stating accurately the financial condition of the BORROWER, and a consolidated balance sheet, profit and loss account showing the results of the operations and state of affairs of the BORROWER and its subsidiaries (if any);
12.1.9 as soon as practicable but in any event within one hundred and eighty (180) days after the end of each financial year of the BORROWER, forward to the LENDER a copy of its balance sheet, profit and loss account, management account and reports duly audited and certified by a qualified independent auditor stating accurately in accordance with generally accepted accounting standards the financial condition of the BORROWER, and a consolidated balance sheet, profit and loss account showing the results of the operations and state of affairs of the BORROWER and its subsidiaries (if any);
12.1.10 ensure that all audited financial statements prepared by it and delivered pursuant to this Agreement shall be prepared in accordance with accounting principles and practices generally accepted in Malaysia consistently applied in respect of each financial period on an individual and if applicable consolidated basis and that such financial statements shall contain a balancesheet giving a true and fair view of the state of affairs of the BORROWER as at the end of the period to which they relate and a profit and loss account giving a true and fair view of its profit or loss for such period;
12.1.11 subordinate any existing and future loans including but not limited to all shareholders and directors advances to the repayment of the whole of the moneys payable under this Agreement and the SECURITY DOCUMENTS;
12.1.12 maintain records adequate to reflect in accordance with consistently maintained and sound accounting practices the operating and financial condition of the BORROWER and allow the LENDER or its 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 properties, assets and business and the BORROWER and give to the LENDER (or any person authorised by the LENDER to inspect such records) such written authorisations if any be required;
12.1.13 immediately inform and keep informed the LENDER of any creation of any form of assignment, mortgage, charge, pledge, lien or encumbrance or any other security interest in respect of its assets or any part thereof and of any legal proceedings or claims involving the BORROWER or any SECURITY PARTIES;
12.1.14 immediately notify the LENDER of the occurrence of: –
(a) any EVENT OF DEFAULT or POTENTIAL DEFAULT; or
(b) any change in its shareholders and/or directors or the nature of the business carried on by the BORROWER or the issued and paid-up capital of the BORROWER or the substantial shareholders of the BORROWER; or
(c) any event of default in relation to other indebtedness of the BORROWER or the SECURITY PARTIES which in its reasonable opinion may adversely affect the SECURITY PARTIES’ ability to comply with their obligations under the SECURITY DOCUMENTS;
12.1.15 maintain an active and satisfactory account with the LENDER and observe the approved limit and sub-limits of the FACILITIES;
12.1.16 observe and perform all the terms and conditions of any license, approval or authorisation granted to the BORROWER for the operation of its business;
12.1.17 disclose any substantial and material changes in the name of the BORROWER, contracts executed by the BORROWER or of any substantial undertakings by the BORROWER which may affect the BORROWER in its ability to service its debts or its assets or changes in the capital structure or reconstruction or merger of the BORROWER;
12.1.18 perform such other acts or execute such other documents from time to time upon request by the LENDER for the purpose of effectively carrying out the provisions and intent of this Agreement;
12.1.19 pay all rents rates taxes and outgoings payable in respect of the LAND and the premises at which it carries on business and obtain all necessary licenses and comply with all regulations relating to the LAND and the carrying on of its business on such business premises and furnish the original assessments with the payment duly endorsed thereon and photocopy of other relevant receipts to the LENDER;
12.1.20 within thirty (30) days of the passing of any resolution in respect of any of the following matters, submit to the LENDER extracts of the minutes of its directors’ circular resolution or directors meeting, as the case may be :-
(a) a significant change in its business direction;
(b) a change in its key management personnel;
(c) acquisition of future land and building;
(d) loans obtained from directors of the BORROWER or other third parties;
(e) any intention to obtain additional credit facility from any financial institution;
12.1.21 ensure a continuity in its control and ownership;
12.1.22 deposit with or provide to and/or procure the deposition and provision by not later than 10.00 a.m. on the seventh (7th) business day following the date of notification of requirement by the LENDER to the BORROWER any additional securities of such value as the LENDER may in its absolute discretion stipulate and execute and deliver and/or procure the execution and delivery to the LENDER such documents in such form and on such terms as the LENDER may require or other form of security over any other assets of the BORROWER and/or any SECURITY PARTIES, in the event that the actual security value of the LAND as determined by the LENDER in its absolute discretion to the FACILITIES shall fall below such minimum value as determined by the LENDER at its sole and absolute discretion;
12.1.23 at all times comply with, or cause to be complied with all laws, statutes, rules, regulations, orders and directions of any governmental authority having jurisdiction over the BORROWER or its business or the PROJECT;
12.1.24 promptly inform the LENDER of the appointment of any receiver or manager or receiver(s) and manager(s) in respect of any its assets or undertakings and of any winding-up proceedings being commenced against any of the SECURITY PARTIES which is a body corporate;
12.1.25 promptly inform the LENDER of the bankruptcy of the INDIVIDUAL GUARANTORS;
12.1.26 obtain the respective consents of each and every one of the purchasers of the units of the PROJECT to the creation of the CHARGE, in the event the Sale and Purchase Agreements of the said units have been executed prior to the creation of the CHARGE;
12.1.27 ensure that in all the Sale and Purchase Agreements of the units of the PROJECT which are executed after the creation of the CHARGE, it is recited that the LAND have been charged to the LENDER as security for the FACILITIES;
12.1.28 submit to the LENDER quarterly progress reports on the PROJECT prepared and certified by the engineer and/or quantity surveyor for the PROJECT;
12.1.29 carry out and implement the PROJECT in accordance with sound commercial standards and practices and do whatever acts necessary to cause the shareholders of the BORROWER to provide additional funds to meet any cost overrun and shortfall in the PROJECT cash flow;
12.1.30 promptly inform the LENDER of any change of the AUTHORISED SIGNATORIES;
12.1.31 promptly inform the LENDER of the legal proceedings or claims involving any SECURITY PARTIES;
12.1.32 allow the LENDER, its agent(s) or servant(s) the rights to inspect the PROJECT at anytime including site visits, plans, and specifications, contract documents and all books of accounts relating to the PROJECT;
12.1.33 refer all end-financing requirement of purchaser to the LENDER and/or Hong Leong Finance who shall be given the first opportunity to provide the said end-financing subject to satisfactory credit evaluation on the respective purchasers;
12.1.34 meet all cost overruns in respect of the PROJECT and all other temporary deficits;
12.1.35 obtain the document of title in respect of the LAND within Six (6) months from the date of LETTER OF OFFER.
12.1.36 if the LENDER so requires, give to the LENDER evidence sufficient to satisfy it that the provisions of sub-clause 12.1, 12.2 and 12.3 have been complied with.
12.2 Insurance
12.2.1 The BORROWER further undertakes and covenants with the LENDER that it will at all times during the continuance of the SECURITY DOCUMENTS and so long as any moneys payable under the SECURITY DOCUMENTS remain unpaid, save as provided in sub-clause 12.2.4, insure or procure the insurance and keep insured, with such reputable and responsible insurers approved by the LENDER the PROJECT, the LAND and the assets of the BORROWER which are charged to the LENDER under the SECURITY DOCUMENTS and which are of an insurable nature against loss or damage (including loss of rent and profit) by fire storm lightning earthquake explosion riot civil commotion malicious damage impact flood burst pipe terrorism aircraft and other aerial devices or articles dropped therefrom public liability and other risks usually insured against by prudent companies carrying on businesses similar to those of the BORROWER and such other risks and upon such terms as the LENDER may from time to time require to the full reinstatement or replacement cost thereof (including architects’ and surveyors’ fees and demolition costs and costs of shoring up) to the satisfaction of the LENDER with the LENDER named as a co-insured and loss payee and shall duly and promptly pay all premiums and other moneys necessary for effecting and maintaining such insurance and produce to the LENDER the receipts for the current premiums within fourteen (14) days after their becoming due;
12.2.2 In addition to the insurance effected pursuant to sub-clause 12.2.1, the BORROWER further undertakes to maintain or procure the maintenance of such other insurance as the LENDER determines are normally maintained by prudent companies carrying on similar businesses including insurance against loss of records and liability to third parties and employees keyman or similar insurance and insurance in respect of the liabilities referred to in sub-clause 11.1.16 and duly pay all necessary premiums and other moneys necessary for effecting and keeping up such insurance and produce to the LENDER the receipts for the current premiums within fourteen (14) days after their becoming due.
12.2.3 The BORROWER shall comply or procure the compliance with the terms and conditions of the above insurance policies including without limitation any stipulations or restrictions as to use or operation of any asset and not to do or (insofar as within its power to prevent the same) permit anything to be done which may make void or voidable any insurance effected or maintained pursuant to the SECURITY DOCUMENTS.
12.2.4 In the case of any immovable property which the BORROWER holds as a tenant or lessee which is required by virtue of the tenancy agreement or lease under which such property is held either to insure or to reimburse the landlord any insurance premium or premiums paid by such landlord, then due compliance with such insurance obligations or prompt reimbursement of such premiums to the landlord (as the case may be) shall be good compliance by the BORROWER with its obligations under the foregoing provisions of this sub-clause 12.2 so far as regards that property, but without prejudice to the right of the LENDER :-
12.2.4.1 to call upon the BORROWER to produce satisfactory evidence that the BORROWER has complied with such obligations or reimbursed such premiums as aforesaid; and
12.2.4.2. to call upon the BORROWER to insure against such other risks: –
(a) which are not required by the applicable tenancy agreement or lease to be insured by the BORROWER; or
(b) which are not required by such tenancy agreement or lease to be insured by the landlord; or
(c) against which the landlord is enabled by the applicable tenancy agreement or lease to insure and recover the premiums from the BORROWER but does not so insure and recover.
12.2.5 All moneys which may be received by virtue of any such policy shall either be applied to make good the loss or damage in respect of which the same mayhave been recovered or (at the option of the LENDER and without prejudice to any obligations in the policy of insurance or to any obligations having priority to the obligations imposed by this Agreement) be applied in or towards the discharge or reduction of the INDEBTEDNESS. The BORROWER shall hold all moneys so received on such insurance in trust for the LENDER and the LENDER may receive and give a good discharge of all such moneys.
12.2.6 If default is made in effecting maintaining or renewing any insurance in accordance with the foregoing provisions of this sub-clause 12.2, it shall be lawful for but not obligatory upon the LENDER to insure and keep insured the same and all moneys so expended shall be repaid by the BORROWER forthwith on demand and until payment shall be debited to the BORROWER’s accounts or to a disbursement/suspense account to be opened by the LENDER for the purpose and shall be secured by all assets charged to the LENDER in addition to the moneys hereby covenanted with the same priority and with interest at the relevant rate to be decided by the LENDER at its absolute discretion.
12.2.7 The BORROWER shall not, except at the request of the LENDER, keep on foot any insurance against any risk in respect of any assets charged to the LENDER where the LENDER has effected or kept on foot such insurance.
12.3 Negative Covenants
The BORROWER undertakes and covenants with the LENDER that it will not, without the consent of the LENDER in writing first had and obtained, at any time during the continuance of the SECURITY DOCUMENTS and so long as any moneys payable under the SECURITY DOCUMENTS remain unpaid :-
12.3.1 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 and/or the SECURITY DOCUMENTS;
Clause 13 Default
13.1 There shall be an EVENT OF DEFAULT if :-
13.1.1 the BORROWER defaults in the payment to the LENDER of any amount due under the FACILITIES or any part thereof or interest or any other moneys to be paid under the SECURITY DOCUMENTS after the same have become due by the BORROWER to the LENDER whether formally demanded or not;
13.1.2 the BORROWER commits or threatens to commit a breach of any term, stipulation, covenant or undertaking contained in this Agreement and on its part to be observed and performed;
13.1.3 any SECURITY PARTIES commits or threatens to commit a breach of any term, stipulation, covenant or undertaking contained in the SECURITY DOCUMENTS and on its part to be observed and performed;
13.1.4 any representation or warranty made in connection with the execution and delivery of this Agreement and the SECURITY DOCUMENTS or in any respect thereof shall be found to have been incorrect or misleading in any respect;
13.1.5 any security given in respect of the FACILITIES is, in the opinion of the LENDER, in jeopardy;
13.1.6 any license, authorisation, approval, consent, order or exemption or filing with any governmental authority with respect to this Agreement and the SECURITY DOCUMENTS or any in respect thereof ceases to be in full force and effect;
13.1.7 the BORROWER or any of the SECURITY PARTIES ceases or threatens to cease to carry on its business or the PROJECT;
13.1.8 a petition is presented or an order is made or an effective resolution is passed or a meeting is convened to consider the passing of a resolution for the winding up of the BORROWER or any SECURITY PARTIES;
13.1.9 any INDIVIDUAL GUARANTORS commit an act of bankruptcy or serves a custodial sentence or becomes insane or dies;
13.1.10 a receiver of the property assets or undertakings of any SECURITY PARTIES, or any part thereof, is appointed;
13.1.11 a distress or execution or other process of a court of competent jurisdiction is levied or issued against any of the properties of any SECURITY PARTIES;
13.1.12 any SECURITY PARTIES or any of the directors of any SECURITY PARTIES commits an act of bankruptcy or becomes insolvent or enters into any composition or arrangement with or for the benefit of creditors of that SECURITY PARTIES or allows any legal suit or any judgement against that SECURITY PARTIES to remain unsatisfied or outstanding for a period of more than seven (7) days;
13.1.13 any event or events occur or a situation exist which could or might, in the sole opinion of the LENDER prejudice the ability of any SECURITY PARTIES to perform its obligations under the relevant SECURITY DOCUMENTS or any part in respect thereof;
13.1.14 any indebtedness of any SECURITY PARTIES becomes capable, in accordance with the relevant terms thereof; of being declared due prematurely by reason of a default by that SECURITY PARTIES in its obligations in respect of the same, or a SECURITY PARTIES defaults in the performance of any term applicable to such indebtedness or the security for such indebtedness becomes enforceable;
13.1.15 any material license authorisation approval or consent required by the BORROWER to carry on its business or the PROJECT is revoked or withheld or modified or is otherwise not granted or fails to remain in full force and effect;
13.1.16 an event of default as provided in any other agreements entered into by a SECURITY PARTIES with any other party or parties occurs;
13.1.17 the CHARGE is not registered in favour of the LENDER for any reason whatsoever;
13.1.18 any of the SECURITY DOCUMENTS is terminated or becomes invalid or unenforceable or cannot be registered, where registration is necessary for the perfection of the security thereby created, for any reason whatsoever;
13.1.19 the BORROWER fails to pay on demand being made by the LENDER;
13.1.20 in the absolute opinion of the LENDER (which shall be final and binding), the business and affairs of the BORROWER are not being carried on or conducted in accordance with sound financial and business standards and practices generally applicable to the industry;
13.1.21 in the absolute opinion of the LENDER, the BORROWER’s account(s) with the LENDER (including any other account(s) the BORROWER may have with the LENDER) is or has not been operated satisfactorily; or
13.1.22 the BORROWER is blacklisted by the Biro Maklumat Cek at any time and for any reason and whether within or beyond the control of the BORROWER.
13.2 If an EVENT OF DEFAULT occurs or at any time thereafter while such EVENT OF DEFAULT is continuing the entire principal amount of the FACILITIES then outstanding including the interest thereon and all other sums or moneys (whether principal, interest, fee, commission or otherwise) for the time being owing under this Agreement and the SECURITY DOCUMENTS shall become due and immediately repayable on demand and the LENDER shall forthwith become entitled to recover the same with interest thereon at the DEFAULT RATE and/or such other default rate(s) as may be stipulated by the LENDER at its sole and absolute discretion on daily rests and to exercise the rights and powers upon default provided for in this Agreement and the SECURITY DOCUMENTS and by law without any previous notice to or concurrence on the part of the BORROWER and any SECURITY PARTIES.
13.3 A demand for repayment of the principal moneys interest and all other sums or moneys due under the provisions of sub-clause 13.2 may be made by a notice in writing from the LENDER demanding payment of the same within seven (7) days from the date of such notice.
13.4 In addition to and without prejudice to other powers, rights and remedies conferred on the LENDER herein, the BORROWER shall indemnify the LENDER against any loss or expenses (including but not limited to legal costs on a solicitor and client basis) which the LENDER may sustain or incur as a consequence of any default in the payment by the BORROWER of any sum due hereunder, including but not limited to any interest or fees payable on account of or in respect of any funds borrowed or deposits from third parties in order to maintain the amount in default or in liquidating or re-employing such funds or deposits.
Clause 14 Remedies
14.1 Notice
In the event of the BORROWER failing to comply with a demand made by the LENDER pursuant to sub-clause 13.2 the LENDER shall be entitled forthwith to institute such proceedings and take such steps as it may think fit to enforce payment of all amounts due and payable pursuant to the SECURITY DOCUMENTS without further notice to the BORROWER and any SECURITY PARTIES.
14.2 Concurrent Action
Notwithstanding any provision herein contained. upon default or breach by the BORROWER of any term, covenant, stipulation or undertaking herein provided and on the part of the BORROWER to be observed and performed, the LENDER shall thereafter have the right to exercise all or any of the rights or remedies available whether under the SECURITY DOCUMENTS or by statute or otherwise and shall be entitled to exercise such rights or remedies concurrently, including pursuing all rights of set off, to collect the proceeds of all assignments and to give good and valid discharge therefor and to institute legal proceedings by way of civil suit or otherwise against the BORROWER to recover all moneys due and owing to the LENDER.
14.6 Deficiency in moneys realised
If the amount realised pursuant to the exercise of the powers or rights conferred by the SECURITY DOCUMENTS on the LENDER, after deduction and payment of all fees dues and costs, is less than the amount due to the LENDER and whether at such realisation the LENDER is the purchaser of the assets or otherwise the BORROWER shall pay to the LENDER the difference between the amount due and the amount so realised and until payment will also pay interest on the same (both before as well as after demand or judgement and irrespective of whether the banker and customer relationship has been terminated) at the DEFAULT RATE and/or such other default rate(s) as may be stipulated by the LENDER at its sole and absolute discretion on daily rests.
14.7 Cumulative rights and remedies
The rights and remedies of the LENDER provided in this Agreement and the SECURITY DOCUMENTS are cumulative and are not exclusive of any rights or remedies of the LENDER provided at law.
Clause 15 Miscellaneous rights of bank
15.1 Changes in Circumstances
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 the interpretation or application thereof or the making of any request or direction from or requirement of Bank Negara Malaysia or other fiscal or monetary authority (whether or not having the force of law) the LENDER shall be of the opinion that it has or will become unlawful or it is otherwise prohibited or prevented for it to maintain or give effect to all or any of its obligations as contemplated by this Agreement and/or the SECURITY DOCUMENTS then, the LENDER may at its sole discretion and without prejudice to its rights and powers hereunder and under the SECURITY DOCUMENTS, upon giving the BORROWER prior written notice, cancel the FACILITIES in whole or in part, and upon the giving of such notice to the BORROWER the unutilised portion of the FACILITIES, if any shall forthwith lapse and any part of the FACILITIES cancelled pursuant to the notice together with all other moneys due and owing to the LENDER shall be repaid in full to the LENDER at the expiry of the period stipulated in such notice and failing such repayment the BORROWER shall pay to the LENDER interest on all outstanding sum(s) at the DEFAULT RATE. The BORROWER shall indemnify the LENDER on demand against all loss or expense including legal expenses the LENDER may incur or sustain in connection with enforcing or preserving its rights hereunder and under the SECURITY DOCUMENTS.
15.2 Capital adequacy
If the introduction of or change in any law, regulation, directive or request from any governmental or regulatory authority (whether or not having the force of law) imposes or modifies any capital adequacy or similar requirement (including, without limitation, a requirement which affects the LENDER’s allocation of capital resources to its obligations) and, as a result, the cost to the LENDER of making or maintaining amounts available under this Agreement and/or the SECURITY DOCUMENTS is increased or the LENDER is, in its sole opinion, unable to obtain the rate of return on its capital that it would have been able to achieve but for its obligations hereunder and/or their performance, then the LENDER shall be entitled to vary the interest rates and/or the rate or amount of commission and/or fee and/or other charges on the FACILITIES and/or the BORROWER shall pay to the LENDER on demand such additional amount which will, in the sole opinion of the LENDER, compensate the LENDER in this respect. The LENDER will endeavour to mitigate the effects of such event. A certificate of the LENDER specifying the rate varied and/or amount of such compensation shall, in the absence of manifest error, be conclusive.
15.3 Modification and Indulgence
The LENDER may at any time and without in any way affecting any security created by the SECURITY DOCUMENTS:-
15.3.1 determine vary or increase the FACILITIES granted to the BORROWER and/or the sublimits of the FACILITIES and may open and/or continue any account or accounts current or otherwise with the BORROWER at any branch or branches of the LENDER;
15.3.2 grant to the BORROWER or any SECURITY PARTIES or to any other surety or guarantor any time or indulgence;
15.3.3 deal with exchange release or modify or abstain from perfecting or enforcing any securities or other guarantees or rights it may now or at any time hereafter or from time to time have from or against the BORROWER or any SECURITY PARTIES or any other person;
15.3.4 compound with the BORROWER or any SECURITY PARTIES or any other person or guarantor;
15.3.5 accept payment of the moneys due or becoming due hereunder by any such increased or decreased instalments as shall from time to time be agreed to by the LENDER or to agree to suspend payments under any SECURITY DOCUMENTS in reduction of the principal or to give time for the payment of the moneys due or becoming due under any SECURITY DOCUMENTS or to grant such indulgence from time to time in the absolute discretion of the LENDER;
15.3.6 open, whether before or after the recall or termination of the FACILITIES, a new account or accounts for the payment of moneys received from the BORROWER or any SECURITY PARTIES or any third party or parties for any purpose whatsoever and to allow the BORROWER to operate such account(s) for so long as the LENDER thinks fit without any obligation on the part of the LENDER to apply moneys held on the new account or accounts towards reduction of the BORROWER’s liabilities to the LENDER;
15.3.7 vary cancel change split consolidate or merge the form of the FACILITIES so as to convert the FACILITIES or cancel one or two of them or create different facilities Provided always that in respect of the different facilities the LENDER may arrange at any time or from time to time to charge a different interest rate for each facility other than the prevailing rate applicable to the existing facilities and the covenant as to the rate of interest (including the additional interest rate) and its computation and variation shall be construed and shall be applied to accommodate the different interest rates and additional interest rates chargeable to each kind of facility loan given to the BORROWER by the LENDER and secured by the SECURITY DOCUMENTS;
15.3.8 vary the PRESCRIBED RATE (including the DEFAULT RATE), the interest rates and/or commissions of the FACILITIES without variance of the form of the FACILITIES;
15.3.9 vary exchange or lease the LAND and any other securities held or to be held by the LENDER for or on account of the INDEBTEDNESS or any part thereof;
15.3.10 renew bills promissory notes or other negotiable securities in any manner and to compound with give time for payment to accept compositions from or grant any other indulgence to or make any other arrangements with the BORROWER or any person liable on bills notes guarantees or other securities held or to be held by the LENDER for or on behalf of the BORROWER;
15.3.11 give time for payment of any bills of exchange promissory notes or other securities which may have been discounted for or received on account from the BORROWER by the LENDER or on which the BORROWER shall or may be liable as drawer or endorser or otherwise to any parties liable thereon or thereto as the LENDER shall in its discretion think fit; or
15.3.12 to release and deliver to the BORROWER any goods or documents of title to or representing or relating to goods against trust receipts or otherwise.
15.4 Notice of Further Charge
If the LENDER shall receive notice, either actual or constructive, that the BORROWER and/or any SECURITY PARTIES shall have executed or created any further or subsequent Charge, lien or other encumbrance fixed or otherwise over the LAND and/or the PROJECT and/or the assets charged under the SECURITY DOCUMENTS in favour of any other person, the LENDER shall be entitled to close any account or accounts of the BORROWER and to open a new or separate account with the BORROWER in the books of the LENDER and if the LENDER does not in fact open such new or separate account the LENDER shall nevertheless be deemed to have done so at the time when the LENDER received or was deemed to have received such notice (hereinafter called ‘the time of notice’) and as from and after the time of notice all payments made by the BORROWER or by or on behalf of the BORROWER to the LENDER shall (notwithstanding any legal or equitable rule of presumption to the contrary) be placed or deemed to have been placed to the credit of the new or separate account so opened or deemed to have been opened as aforesaid and shall not be appropriated towards or have the effect of discharging or be in reduction of amounts owing or incurred by the BORROWER to the LENDER on any earlier or closed account at the time of notice.
15.5 No admission or waiver
Nothing in sub-clause 15.4 contained shall prejudice the security which the LENDER otherwise would have had under this Agreement for the payment of the moneys costs charges and expenses herein referred to notwithstanding that the same may become due or owing or be incurred after the time of notice or be construed as an admission by the LENDER that the said subsequent mortgage charge lien or encumbrance is valid and affecting this security or be deemed to be a waiver of the LENDER’s rights against the BORROWER for breach of the covenant not to execute or create or to ensure that no SECURITY PARTIES will execute or create any further mortgage charge pledge, lien or other encumbrance without the prior written consent of the LENDER.
15.6 Suspense Account
Any money received by the LENDER under the SECURITY DOCUMENTS may be placed and kept to the credit of a non-interest bearing suspense account for so long as the LENDER thinks fit without any obligation in the meantime to apply the same or any part thereof in or towards discharge of the INDEBTEDNESS or any part thereof. Notwithstanding any such payment in the event of any proceedings in or analogous to bankruptcy liquidation composition or arrangement the LENDER may prove for and agree to accept any dividend or composition in respect of the whole or any part of such money and liabilities in the same manner as if this security had not been created.
15.7 Disclosure
The BORROWER irrevocably authorises and permits the LENDER to disclose and furnish all information concerning the FACILITIES and this Agreement and the SECURITY DOCUMENTS and any other matters relating to the BORROWER or its business and operations to other financial institutions granting or intending to grant any credit facilities to the BORROWER, the Central Credit Unit of Bank Negara Malaysia, any other relevant authority as established by Bank Negara Malaysia, any agency established by the Association of Banks of Malaysia, the other SECURITY PARTIES and such other persons that the LENDER in its absolute discretion may deem necessary.
15.8 Payment in gross
Any money received by the LENDER from the BORROWER capable of being applied in reduction of the INDEBTEDNESS shall be regarded for all purposes as payment in gross and if a receiving or any other order shall be made against the BORROWER or an order be made or an effective resolution be passed for the winding up of the BORROWER, the LENDER may prove for the whole of the moneys then owing and no moneys received under such proof shall be considered as received in respect of the SECURITY DOCUMENTS and the full amount owing shall be payable until the LENDER has received from all sources One Hundred Sen in the Ringgit Malaysia and if the amount ultimately received by the LENDER exceeds the balance owing to the LENDER the excess over such balance shall be repaid to the BORROWER on whose account the same shall have been received by the LENDER.
15.9 Government Acquisition
15.9.1 In the event that the LAND or any part thereof or any other immovable property or any part thereof shall at any time become the subject matter of or be included in any notice notification or declaration concerning or relating to acquisition by government or governmental authority or any enquiry or proceedings in respect thereof or if any government or governmental authority shall condemn, nationalise, seize or otherwise appropriate all or any part of the property or other assets of the BORROWER or any SECURITY PARTIES or shall have assumed custody or control of such property or other assets, BORROWER shall forthwith inform the LENDER of the same and shall forward to the LENDER a copy or copies of such notice notification or declaration as soon as the same shall be delivered to or served on the BORROWER but in any event not more than three (3) days of receiving such notification or declaration.
15.9.2 The LENDER shall be entitled to engage advisers and agents (including solicitors and valuers) as it may think fit for the purpose of appearing or attending at or advising upon any enquiry or proceedings affecting concerning or relating to any such acquisition, expropriation or any of the matters referred to in sub-clause 15.9.1 hereof at the cost and expense of the BORROWER.
15.9.3 All moneys received as or by way of compensation in respect of any of the matters referred to in sub-clause 15.9.1 hereof shall be applied in or towards discharge or repayment of any moneys or liability secured by this Agreement and the SECURITY DOCUMENTS and the BORROWER shall, and hereby declares that it will hold or procure that the SECURITY PARTIES hold all such moneys so received in trust for the LENDER and the BORROWER agrees and confirms that the LENDER may receive and give a good discharge for all such moneys.
15.9.4 Upon the happening of any of the events specified in sub-clause 15.9.1 hereof the entire principal amount of the FACILITIES then outstanding including interest thereon and all other sums or moneys (whether principal or interest) for the time being owing under this Agreement and the SECURITY DOCUMENTS shall become due and immediately repayable on demand.
Clause 16 Communications
16.1 Notices
Any notice or other document to be given under this Agreement and all other communications between the parties with respect to this Agreement shall be in writing and in the case of the LENDER shall be under the hand of any general manager, manager, assistant manager or any other duly authorised officer of the LENDER or by any solicitor or firm of solicitors purporting to act for the LENDER and may be given or sent by: –
16.1.1 hand;
16.1.2 registered post; first class post or express or air mail or other fast postal service; or
16.1.3 telex, facsimile or other electronic media,
to the other party at the addresses or facsimile transmission numbers set out below or such other person, addresses or facsimile transmission numbers as either party may give notice of to the other:-
For the LENDER
Address
Facsimile No
For the BORROWER
Address
Facsimile No
16.2 Language
All such notices and documents shall be in the English language or in the Malay language.
16.3 Time of service
Any notice or other document shall be deemed to have been duly served upon and received by the addressee:-
16.3.1 if delivered by hand, at the time of delivery;
16.3.2 if sent by registered post, first class post or express or air mail or other fast postal service, within five (5) days of despatch; and
16.3.3 if transmitted by way of telex or facsimile transmission or other electronic media, at the time of transmission.
16.4 Proof of service
In proving the giving of a notice or any other document under or in respect of this Agreement it shall be sufficient to show –
16.4.1 in the case of registered post, first class post or express or air mail or other fast postal service, that the notice or other document was contained in an envelope which was duly addressed and posted; or
16.4.2 in the case of facsimile transmission or telex or other electronic media was duly transmitted from the despatching terminal as evidenced by a transmission report generated by the despatching terminal.
16.5 Service of legal process
The service of any writ of summons or any legal process in respect of or arising out of the SECURITY DOCUMENTS may be effected on the BORROWER and the SECURITY PARTIES by forwarding a copy of the writ of summons, statement of claim or other legal process by prepaid registered post to its address stated in Clause 16 or registered office or last known address.
16.6 Change of address
For the purpose of service of legal process, no change in the address of the parties as specified in this Clause 16 howsoever brought about shall be effective or binding on either party unless that party has given to the other actual notices of such change of address and nothing done in reliance of sub-clause 16.5 shall be affected or prejudiced by any subsequent change in the address of one party which the other party has no knowledge of at the time the act or thing was done or carried out.
Clause 17 Reconstruction
The security liabilities and/or obligations created by the SECURITY DOCUMENTS 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 LENDER or of any company by which the business of the LENDER may for the time being be carried on and shall be available to the company carrying on that business for the time being and similarly the security liabilities and/or obligations created by this Agreement and the SECURITY DOCUMENTS shall continue to be valid and binding for all purposes whatsoever notwithstanding any change in the constitution of the BORROWER and/or any SECURITY PARTIES, and it is expressly declared that no change of any sort whatsoever in relation to or affecting the BORROWER and/or any SECURITY PARTIES shall in any way affect the security liabilities and or obligations created hereunder in relation to any transaction whatsoever whether past present or future.
Clause 18 Successors and assigns
18.1 Successors and assigns bound
This Agreement shall be binding upon and inure for the benefit of the respective permitted assigns and successors-in-title of the parties.
18.2 Assignment by Bank
The LENDER may assign or transfer all or any part of its rights under this Agreement.
18.3 Assignment by Borrower
The BORROWER shall not assign or transfer all or any part of its rights under this Agreement or delegate its performance under this Agreement without the prior written approval of the LENDER, and any assignment, transfer or delegation which is made without such prior written approval shall constitute a breach of this Agreement.
Clause 19 Nature of Agreement
19.1. Entire agreement
Subject to sub-clause 19.2, this Agreement :-
19.1.1 constitutes the entire agreement and understanding between the parties with respect to the matters dealt with in this Agreement;
19.1.2 supersedes any other agreement, letters, correspondence (oral or written or expressed or implied) entered into prior to this Agreement in respect of the matters dealt with in this Agreement; and
19.1.3 was not entered into by the parties in reliance of any agreement, understanding, warranty or representation of any party not expressly contained or referred to in this Agreement.
19.2 Letter of offer
The LETTER OF OFFER shall form and be construed as part of this Agreement but in the event of any conflict or discrepancies with the provisions of this Agreement, the provisions of this Agreement shall prevail.
19.3 Execution
The execution of this Agreement by or on behalf of a party shall constitute an authority to the solicitors acting for that party in connection with this Agreement to deliver and date it on behalf of that party.
19.4 Effective date
This Agreement shall take effect from the date first herein above entered, irrespective of the diverse dates upon which the respective parties may have executed this Agreement.
19.5 Counterparts
This Agreement may be executed in any number of counterparts –
19.5.1 each of which shall be deemed to constitute an original;
19.5.2 all of which, taken together, shall constitute one and the same instrument; and
19.5.3 the execution by a party of any of which shall constitute execution by that party of all such counterparts.
19.6 Further assurance
Each party has entered in to this Agreement in good faith and shall give all such assistance and information to the other party and execute and do and procure all other necessary person or companies, if any, to execute and do all such further acts, deeds, assurance and things as may be reasonably required so that full effect may be given to the terms and conditions of this Agreement.
19.7 Invalidity and severability
If any provision of this Agreement is or may become under any written law, or is found by any court or administrative body or competent jurisdiction to be, illegal, void, invalid, prohibited or unenforceable then :-
19.7.1 such provision shall be ineffective to the extent of such illegality, voidness, invalidity, prohibition or unenforceability;
19.7.2 the remaining provisions of this Agreement shall remain in full force and effect; and
19.7.3 the parties shall use their respective best endeavours to negotiate and agree a substitute provision which is valid and enforceable and achieves to the greatest extent possible the economic, legal and commercial objectives of such illegal, void, invalid, prohibited or unenforceable term, condition, stipulation, provision, covenant or undertaking.
19.8 Time of the essence
Time wherever mentioned shall be of the essence of this Agreement, both as regards the dates and periods specifically mentioned and as to any dates and periods which may be agreed in writing between the parties be substituted for them.
19.9 Knowledge and acquiescence
Knowledge or acquiescence by any party of, or in, any breach of any of the provisions of this Agreement and the SECURITY DOCUMENTS shall not operate as, or be deemed to be, a waiver of such provisions and, notwithstanding such knowledge or acquiescence, such party shall remain entitled to exercise its rights and remedies under this Agreement and the SECURITY DOCUMENTS, and at law, and to require strict performance of all of the provisions of this Agreement and the SECURITY DOCUMENTS and no failure or delay on the part of the LENDER in exercising nor any omission to exercise any right, power, privilege or remedy accruing to the LENDER under this Agreement and the SECURITY DOCUMENTS upon any default on the part of the BORROWER or any SECURITY PARTIES shall impair any such right, power, privilege or remedy or be construed as a waiver thereof or any acquiescence in such default, nor shall any action by the LENDER in respect of any default or any acquiescence in any such default, affect or impair any right, power, privilege or remedy of the LENDER in respect of any other or subsequent default.
Clause 23 Amendment of Terms
The LENDER reserves the right at any time to add, modify, alter, and/or amend any of the terms and conditions of this Agreement by giving notice in writing to the BORROWER and any such modification, alteration, and/or amendment shall take effect from the date specified in the notice.
Clause 24 Periodic Review
Notwithstanding any other provision to the contrary in this Agreement, it is hereby expressly agreed and declared that the FACILITIES may be reviewed from time to time and at any time by the LENDER irrespective of whether or not an EVENT OF DEFAULT has occurred and nothing contained in this Agreement shall be deemed to impose on the LENDER any obligation either at law or in equity to make or continue to make available the FACILITIES to the BORROWER.
Clause 25 Infringement of Section 62 of the Banking and Financial Institutions Act 1989
The BORROWER hereby declares that the BORROWER has had notice of Section 62 of the Banking and Financial Institutions Act 1989 and confirms that the said section has not been infringed and hereby undertakes to advise the LENDER if any of the relationships set out in the said section is established or discovered at any time, the LENDER reserves the right to recall the FACILITIES in the event of any infringement of the said section.
Clause 26 Law and jurisdiction
26.1 This Agreement shall be governed by, and construed in accordance with, the laws of Malaysia.
26.2 The BORROWER –
26.2.1 irrevocably submits to the non-exclusive jurisdictions of the Courts of Malaysia;
26.2.2 waives any objection on the grounds of venue or forum of convenience or any similar grounds; and
26.2.3 consent to service of legal process in respect of arising out of this Agreement by forwarding a copy of such legal process by prepaid registered post to their last known address or in any other manner permitted by the relevant law.
Clause 27 Stamp duty declaration
27.1 This Agreement and the other SECURITY DOCUMENTS are all instruments employed in one transaction to secure the aggregate principal sum of the FACILITIES in the sum of Ringgit Malaysia ….. (RM…) only and all interest, fees, commission and charges thereon within the meaning of Section 4(3) of the Stamp Act 1949 (Consolidated and Revised 1989), and for the purpose of that section this Agreement shall deemed be the Principal Instrument and the other SECURITY DOCUMENTS shall be Subsidiary Instruments.
27.2 In the event that the total moneys and liabilities due, owing or incurred by or from the BORROWER to the LENDER in respect of the FACILITIES, including all unpaid interest which has accrued hereunder, banker’s charges, legal and other cost charges and expenses, at any time exceed the limit from time to time stipulated by the LENDER and for which this Agreement is for the time being stamped to secure the FACILITIES, the LENDER shall have the right at any time without prior notice to, or prior consent from, the BORROWER to up stamp this Agreement to secure such excess moneys and liabilities, and all moneys paid or expended by the LENDER in the up stamping aforesaid shall be repayable by the BORROWER to the LENDER immediately and shall bear interest thereon at the DEFAULT RATE and/or such other interest rate(s) as may be stipulated by the LENDER at its sole and absolute discretion from the date of the same having been paid or expended by the LENDER and such moneys and interest shall on demand be paid to the LENDER by the BORROWER and until payment shall be secured in addition to the moneys secured or intended so to be pursuant to this Agreement.
IN WITNESS HEREOF the parties have hereunto set their hands and affixed their seals.
SIGNED by )
)
as Attorney for ) )
in the presence of:- )
The Common Seal of )
)
)
was hereunto affixed )
in the presence of :- )
Director *Director /Secretary
SCHEDULE 1
Particulars of the LAND
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Title No. |
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Lot. No. |
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Mukim |
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Daerah |
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Negeri |
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Tenure |
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Area |
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Registered proprietor |
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