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8.
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SECURITY
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The Banking Facility interest commissions and banking and/or
other charges and expenses payable thereon or in connection
therewith are to be secured by:
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8.1
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Against the existing 1 st legal charge over
industrial property held under H. S. (D) Ka 1376/75, Lot 70808 and
H.S. (D) Ka 1377/75. Lot 70809, both in Mukim of Ulu Kinta District
of Kinta, Perak.
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8.2
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Against the existing debenture over the fixed and floating
assets of the company, both present and future.
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8.3
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Against the existing Letter of Awareness from Megamin Venture
Sdn Bhd, formerly Syarikat Megawati Sdn Bhd).
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8.4
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Against the existing Letter of Support from Hiltox Corporation
of America, U.S.
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9.
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CONDITIONS FOR DRAWDOWN/UTILIZATION
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9.1
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In addition to the conditions precedent for drawdown as
stipulated in the General Terms and Conditions annexed hereto, you
shall also fulfill the following conditions precedent before you
are allowed to drawdown on the Banking Facility:
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Nil
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10.
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OTHER TERMS AND CONDITIONS
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10.1
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You are to instruct the valuer, Henry Butcher, Lim & Long
Sdn Bhd to extend its professional indemnity to the Bank for the
valuation report done on September 8, 2003 on the Land and
Buildings together with plant and machinery on Lots 70808 and
70809, Mukim of Ulu Kinta, District of Kinta, Perak currently
charged to the Bank.
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10.2
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Dato- Lim Keng Kay's indirect shareholding in TOR Minerals (M)
Sdn Bhd is to remain intact throughout the tenure of the Banking
Facility.
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11.
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INFORMATION DISCLOSURE
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The Bank shall have the right to provide any information on you
and the Banking Facility to:-
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11.1
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Bank Negara Malaysia, Cagamas Bhd and such other authorities as
may be authorized by law to obtain such information;
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11.2
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companies which are now or in future may be within the RHB
Capital Berhad Group of Companies;
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11.3
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any Security Party;
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11.4
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solicitors and/or other agents in connection with the
preparation of any facility or security documents hereunder or any
action or proceeding for the recovery of monies due and payable
hereunder;
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11.5
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any potential assignee or other person proposing to enter into
any contractual arrangement which requires the disclosure of such
information; and
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11.6
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companies which are or which in the future may be subsidiaries
of the Bank PROVIDED that the Bank shall take all reasonable care
to ensure that such information shall remain confidential within
the Bank's group of subsidiaries.
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12.
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AMENDEMENT AND/OR ADDITIONAL TERMS AND
CONDITIONS
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12.1
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The Bank may at any time hereafter at your request or at the
Bank's absolute discretion grant additional banking facilities to
you and/or convert and/or vary and/or substitute all or any of the
Banking Facility hereby granted into another banking facility or
facilities and, in any such event, the securities liabilities and
/or obligations created pursuant to and by this Letter of Offer
shall continue to be valid and binding for all purpose whatsoever
up to the limit of the total banking facilities advanced to you
notwithstanding such addition or change before mentioned but
subject to such variations as shall be made known by the Bank to
you and or implied by law or trade usage governing or applicable to
the addition and/or changes aforesaid.
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12.2
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Notwithstanding any provisions to the contrary, the terms of the
Letter of Offer may, at any time and from time to time, be varied
or amended by the Bank at its absolute discretion with or without
notice to you and thereupon such amendments and variations shall be
deemed to become effective and the relevant provisions of this
Letter of Offer shall be deemed to have been amended or varied
accordingly and shall be read and construed as if such amendments
and variations had been incorporated in and had formed part of this
instrument at the time of execution hereof.
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13.
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ANNEXURES
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The terms and conditions set out in the Annexures I, IA, II, III
and IV hereto form an integral part of this Letter of Offer and in
the event of any conflict or discrepancy between the terms and
conditions in this Letter of Offer and the terms and conditions in
the Annexures, the terms and conditions in this Letter of Offer
shall prevail.
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Except as specifically amended and/or varied hereby all terms
and conditions in our previous letter of offer dated 26
th April 2000 and security documents to secure the
Banking Facility as amended and/or varied herein shall remain in
full force and effect and the letter of offer dated 26
th April 2000 and the security documents, as amended
and/or varied by this letter shall from and after the date hereof
be read as a single integrated document incorporating the
amendments effected hereby.
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Please indicate your acceptance of the Banking Facility upon the
terms and conditions herein by signing the duplicate of this letter
and returning the same to the Bank within thirty (30) days from the
date hereof. In addition, you are required to execute such
loan/security documents which the Bank's solicitors shall advise
are necessary for the protection of the Bank's interest.
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If this Letter of Offer is issued for the purpose of the renewal
or extension of the Banking Facility, the continued utilization of
the Banking Facility shall be deemed to be an acceptance of and
subject to the terms and conditions of the Letter of Offer
notwithstanding your failure to acknowledge receipt or acceptance
of the Letter of Offer in writing.
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We thank you for giving us the opportunity to be of service to
you.
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2.
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CONDITIONS PRECEDENT
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2.1
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The Banking Facility will be made available for the Borrower's
utilization upon the fulfillment of the following conditions
precedent:-
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(i)
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the Bank shall have received the Borrower's acceptance of this
Letter of Offer within the time prescribed;
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(ii)
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all loan/security documents which are required herein and/or
such other documents as may be required by the Bank and/or its
solicitors shall have been executed by the Borrower and/or the
relevant security parties, duly stamped and registered at such
registries as the Bank may deem necessary or expedient within
thirty (30) days from the date of the acceptance of the Letter of
Offer or such other time as may be stipulated by the Bank;
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(iii)
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the Bank shall have received copies of the following documents
certified as true and correct by the Borrower's secretary or
director:-
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(a)
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all authorizations, licenses, approvals and consents which are
necessary for the financing by the Bank hereunder, the carrying on
of the Borrower's business and the execution of the security
documents (if any);
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(b)
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the Borrower's Board of Directors' Resolution authorizing the
acceptance and the borrowing of the Banking Facility and/or the
execution of the loan/security documents (if any);
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(c)
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a copy each of the Borrower's (if applicable) certificate of
incorporation and the Memorandum and Articles of Association and
the Forms 24, 44 and 49 of the Companies Act 1965;
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(d)
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specimen signatures, authenticated in such manner as the Bank
may require, of the persons authorized to act on the Borrower's
behalf in respect of the transactions hereunder.
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(iv)
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the Borrower shall have paid all fees or charges payable or
agreed to be paid by the Borrower to the Bank for or in connection
with the Banking Facility including the preparation and perfection
of the loan/security documents;
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(v)
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no Event of Default (as hereinafter stated) or no event which
with the giving of notice or lapse of time or both would constitute
and Event of Default shall have occurred or be continuing;
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(vi)
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no extraordinary circumstances or change of law or other
governmental action shall have occurred which makes it improbable
that the Borrower will be able to observe or perform the covenants
and obligations herein; and
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(vii)
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the Bank's solicitors shall have made a search on the Borrower
at the Companies Commission of Malaysia and the Director-General of
Insolvency's Office and the results thereof shall have been
satisfactory to the Bank.
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2.2
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In the case where guarantee(s) and/or other security ("the
Security Document") is/are required by the Bank from third
party(ies) ("the Security Party"), the utilization of the Banking
Facility shall also be subject to the fulfillment of the following
additional conditions precedent:-
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(i)
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the Security Document shall have been duly perfected and
forwarded to the Bank;
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(ii)
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where the Security Party is a body corporate, such Security
Party shall have forwarded to the Bank copies of the following
documents:-
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(a)
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its Board of Directors' Resolution authorizing the execution of
the Security Document;
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(b)
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a certified copy of its certificate of incorporation and
Memorandum and Articles of Association and the forms 24, 44, and 49
of the Companies Act 1965;
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(iii)
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the Bank's solicitors shall have made a search on the Security
Party at the Companies Commission of Malaysia and/or the
Director-General of Insolvency's Office and the results thereof
shall have been satisfactory to the Bank;
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(iv)
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all authorizations, approvals and consents which are necessary
for the creation and delivery of the Security Document tot the Bank
hereunder, shall have been obtained and delivered to the Bank;
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3.
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AFFIRMATIVE COVENANTS
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During the tenure of the Banking Facility the Borrower
shall:-
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(i)
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carry out the Borrower's business diligently and efficiently and
in accordance with sound financial practices;
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(ii)
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furnish to the Bank all information reasonably required by the
Bank in relation to the Borrower's business and financial
position;
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(iii)
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keep full, proper and up to date accounts and furnish to the
Bank within on hundred and eighty (180) days from the end of each
of the borrower's financial year copies of the Borrower's annual
report together with the balance sheet and profit and loss account
duly audited and certified by a qualified independent auditor;
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(iv)
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keep and maintain the Borrower's present paid up share capital
and any increases thereof;
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(v)
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punctually pay and/or cause to be paid all rents rates taxes and
all other outgoings payable in respect of the premises at which the
Borrower carry on business and properties which are security for
the repayment of the Banking Facility;
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(vi)
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appoint from time to time only such auditor or firm of auditors
acceptable to the Bank;
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(vii)
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notify the Bank of the occurrence of an Event of Default
stipulated hereunder or of any event which would constitute an even
of default in relation to any of the borrower's other indebtedness;
and
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(viii)
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notify the Bank of any change in the borrower's Board of
Directors or its management or its major or controlling
shareholders or partners.
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4.
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RESTRICTIVE COVENANTS
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During the tenure of the Banking Facility the Borrower shall
not, without the prior written consent of the Bank:-
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(i)
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add to, delete, vary or amend the borrower's Memorandum and
Articles of Association in any manner which would be inconsistent
with the terms of the Letter of Offer;
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(ii)
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change the Borrower's financial year or the nature of the
borrower's business;
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(iii)
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Sell, transfer, lease or otherwise dispose of a substantial part
of the Borrower's capital assets or undertake or permit any merger,
consolidation or reorganization;
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(iv)
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enter into any transaction with any person firm or company
except in the ordinary course of business and at arm's length
commercial terms;
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(v)
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decrease or alter the Borrower's authorized or issued capital or
alter the structure thereof or the rights attached thereto; and
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(vi)
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Change the Borrower's major or controlling shareholding or
partnership structure.
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5.
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VARIATION OF INTEREST RATES
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5.1
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The Bank shall be entitled at its sole and absolute discretion,
without notice to the Borrower, vary at any time and from time to
time the Base Lending Rate of the Bank and/or Cost of Funds and/or
the margin of interest imposed above the Base Lending Rate and/or
Cost of Funds of the Bank and/or commissions or other rates of
interest chargeable PROVIDED THAT the Bank will endeavor to provide
notice of such variation(s) in the following manner:
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(a)
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in respect of the Base Lending Rate of the Bank by displaying at
the premises of the Bank a general notice of the change of the Base
Lending rate of the Bank addressed to the public generally and such
display shall be deemed sufficient notice to the Borrower or by
including a notice in the periodic statement of accounts sent to
the Borrower or by any other modes deemed fit and proper by the
Bank; and
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(b)
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in respect of the margin of interest imposed above the Base
Lending Rate and/or Cost of Funds of the Bank and/or commissions by
serving a notice in writing (which notice may be included in the
periodic statements of account sent to the Borrower) on the
borrower of the change in the margin of interest imposed above the
Base Lending Rate and/or cost of funds of the Bank and/or in the
commissions and such notice shall be deemed to have been
sufficiently served on the borrower if sent by ordinary mail to the
Borrower's usual last known place of residence/business or to the
address above stated;
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PROVIDED ALWAYS that the effective date of the change of the
Base Lending Rate and/or margin of interest imposed above the Base
Lending Rate and/or Cost of Funds and/or in the commissions or the
other rates of interest chargeable shall be the date stipulated by
the Bank at its sole absolute discretion. And notwithstanding
anything hereinbefore contained, and delay or failure on the part
of the Bank to give notice in accordance with the provisions herein
contained shall not absolve the borrower from its obligation to pay
the rate of interest and/or commissions determined by the Bank and
such rate of interest so determined by the bank shall be payable
from such date as the Bank shall in its sole and absolute
discretion stipulate.
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5.2
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The bank shall be entitled at any time at its sole and absolute
discretion with or without notice to the borrower and without
assigning any reason to change the fundamental basis of calculation
of the Prescribed Rate (whether it be the Base Lending Rate, Cost
of Funds or any other basis by whatsoever named called).
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6.
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CAPITALIZATION OF INTEREST
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Interest commission and fees remaining unpaid at the time when
it shall become due and payable and all costs charges expenses and
other moneys due and payable shall be added to the principal amount
advanced under the Banking Facility and thereafter be treated as
principal and be chargeable with interest at such rate at which
interest shall from time to time and at any time be payable under
this Letter of Offer. For the purpose of ascertaining whether the
limit of the Banking Facility intended to be advanced or secured
has been exceeded or not, all accumulated and capitalized interest,
commission, fees, costs, charges, expenses and such other moneys
shall be deemed to be interest and not principal.
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7.
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INTEREST AFTER DEMAND OR JUDGMENT
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Notwithstanding the exercise by the Bank of any of its rights
provided for hereunder or any other statutory or other rights or
the making of any demand, interest chargeable on the Banking
Facility shall continue to be chargeable on any sum of money which
remains due and unpaid hereunder after the exercise of any of these
rights and if not duly paid such interest will continue to be
capitalized as provided herein notwithstanding that the
banker-customer relationship may have ceased for any reason
whatsoever; AND in the event that judgment is obtained in relation
to any sum of money owing hereunder, wherein it is adjudged that
any sum of money be paid to the Bank, interest shall be payable on
such sum of money so adjudged to be payable to the Bank at the rate
of interest chargeable hereunder from the date of such judgment
until the date of full payment
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8.
|
EVENTS OF DEFAULT
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All monies outstanding under the Banking Facility together with
interest thereon and all other monies relating thereto shall become
immediately repayable by the borrower upon demand being made by the
bank or upon the occurrence of any of the following events:-
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(a)
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the Borrower defaults in the payment of any money payable to the
Bank after the same shall have become due whether formally demanded
or not;
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(b)
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the Borrower defaults under any other provision herein which is
not capable of remedy or which, being capable of remedy, is no
remedied within fourteen (14) days after being required to do so by
the Bank;
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(c)
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any representation, warranty or condition made or implied by the
Borrower herein is incorrect or misleading in any material
respect;
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(d)
|
any license, authorization, approval, consent or permit which is
required for the Borrower's business or the performance of the
Borrower's obligations hereunder is revoked or withheld or modified
or is otherwise not granted or fails to remain in full force and
effect;
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(e)
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any of the Borrower's indebtedness or the indebtedness of any of
the Security Party or their respective affiliate(s) or related
corporation(s) becomes capable, in accordance with the relevant
terms thereof, of being declared due prematurely by reason of
default by the Borrower or such Security Party or affiliate(s) or
related corporation(s) of the respective obligations in respect of
the same or the Borrower or any of the Security Party or
affiliate(s) or related corporation(s) fail to make payment in
respect thereof ton the due date for such payment or if due on
demand when demanded or the security for any such indebtedness
becomes enforceable;
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(f)
|
a petition be presented or an order be made or a resolution be
passed for the Borrower's winding-up or the winding up of any of
the Borrower's affiliate(s) or related corporation(s) or Security
Party which is a body corporate;
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(g)
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a receiver and/or manager or liquidator is appointed to take
possession of the Borrower's or related corporation(s) or Security
party which is a body corporate;
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(h)
|
the Borrower or any of the borrower's affiliate(s) or related
corporation(s) or Security Party which is a body corporate ceases
to threatens to cease to carry on all or a substantial part of the
borrower's business or the borrower's affiliate(s) - or related
corporation(s) -or the Security party's business;
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(i)
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any judgment is obtained against the Borrower or any of the
Borrower's affiliate(s) or related corporation(s) or Security
Party;
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(j)
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the Borrower or any of the Borrower's affiliate(s) or related
corporation(s) or Security party enters into any composition or
arrangement with or for the benefit of their respective
creditors;
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(k)
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any other event or series of events whether related or not has
or have occurred which in the opinion of the Bank (which opinion
shall be final and binding) could or might affect or prejudice the
borrower's ability or willingness to comply with all or any of the
Borrower's obligations hereunder;
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(l)
|
the Borrower or any of the Security Party who is an individual
person commits any act of bankruptcy or becomes bankrupt or shall
die or become insane;
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(m)
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any of the Security Document given to the Bank is or becomes for
any reason whatsoever invalid or unenforceable;
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(n)
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if the Bank shall in its sole discretion consider that the
Banking Facility or any of its security or its security position in
relation to the repayment of the Banking Facility to be in
jeopardy.
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(The expression "affiliate" means in relation to any one
corporation, any corporation directly or indirectly controlling,
controlled by or under direct or indirect common control, in each
case whether in law or in fact with such corporation and the
expression "related corporation" shall be construed in accordance
with the companies Act, 1965).
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9.
|
BANK'S RIGHT TO COMMENCE FORECLOSURE AND LEGAL PROCEEDING
CONCURRENTLY
|
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Upon default or breach by the Borrower of any term covenant,
stipulation and/or undertaking herein provided and on the part of
the Borrower to be observed and performed, the Bank shall
thereafter have the right to exercise all or any of the remedies
available whether by this Letter of Offer or Security Document or
by statute or otherwise and shall be entitled to exercise such
remedies concurrently, including pursuing all remedies of sale or
possession and civil suit to recover all moneys due and owing to
the Bank.
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10.
|
ILLEGALITY
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If the Bank determines that the introduction or variation of any
law, regulation or official directive (whether or not having the
force of law) or any change in the interpretation or application
thereof makes it unlawful for the Bank to maintain, fund or give
effect to its obligations hereunder, the Bank shall forthwith give
notice of such determination to the Borrower whereupon the Banking
Facility to such extent shall be cancelled and the Borrower will
forthwith upon notice from the Bank repay all monies outstanding
under the Banking Facility together with interest thereon and all
other monies agreed to be paid by the Borrower hereunder.
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11.
|
INCREASED COSTS
|
|
Where the Bank determines that, as a result of the introduction
or variation of any law, order, regulation or official directive
whether or not having the force of law), or any change in the
interpretation or application thereof by any competent authority ,
or compliance with any request (whether or not having the force of
law) from Bank Negara Malaysia or other fiscal, monetary or other
authority, the cost to the Bank of making available or continuing
to make available the Banking Facility is increased or the amount
of any sum received or receivable by the Bank in respect of the
Bank making or continuing to make available the Banking Facility or
the effective return to the Bank under the Banking Facility is
reduced or the Bank is obliged to make any payment (expect in
respect of tax on the Bank's overall net income) or forego any
interest or other return on, or calculated by reference to, the
amount of any sum received or receivable by the Bank from the
Borrower under the Banking Facility, the Bank shall notify the
Borrower of the circumstances leading to the Bank's determination
and:-
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(i)
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the Borrower shall on demand pay to the Bank such reasonable
amounts as the Bank may from time to time and at any time notify
the Borrower to be necessary to compensate the Bank for such
additional cost, reduction, payment or foregone interest or return
provided that nothing herein contained shall prevent the Borrower
from taking all necessary steps to mitigate the effect of such
increased cost; and
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(ii)
|
at any time thereafter, so long as the circumstances giving rise
to the obligation to make the compensating payment continue, the
borrower may upon giving the Bank not less than thirty (30) days'
notice, cancel the Banking Facility.
|
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12.
|
MARKET DISRUPTION
|
|
If in the opinion of the Bank, there has, since the date of the
offer, been a change in national or international monetary,
financial, economic or political conditions or currency exchange
rates or exchange control which would render the Banking Facility
temporarily or permanently commercially impracticable or
impossible, the Bank shall notify the Borrower thereof, and:-
|
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(i)
|
whilst such circumstances exist, no utilization of the Banking
Facility will be allowed;
|
|
(ii)
|
the Bank shall negotiate in good faith for an alternative basis
acceptable to the Bank fir continuing the Banking Facility; and
|
|
(iii)
|
unless within thirty (30) days after the giving of such notice
such circumstances cease to exist or an alternative basis
acceptable to the Bank is arrived at, the Banking Facility shall be
cancelled.
|
|
13.
|
LEGAL AND INCIDENTAL EXPENSES
|
|
The Borrower shall pay all legal fees and incidental expenses in
connection with the preparation, stamping and registration of any
security documents required by the Bank hereunder even though the
said documents are not executed by the Borrower for any reason
whatsoever. If any money payable under the Banking Facility is
required to be recovered through any process of law, the Borrower
shall be liable to pay the Bank's solicitors' fees (on a solicitor
and client basis) and any other fees and expenses incurred in
respect of such recovery.
|
|
14.
|
WAIVER AND INDULGENCE
|
|
The terms and conditions herein may be waived by the Bank in
whole or in part with or without conditions at the discretion of
the Bank without prejudicing the rights of the Bank hereunder and
any failure by the Bank to enforce any of the provisions hereunder
or any forbearance delay or indulgence grated by the Bank to the
borrower shall not be construed as a waiver of the Bank's rights
hereunder.
|
|
15.
|
BANKING AND FINANCIAL INSTITUTIONS ACT, 1989
|
|
The approval of the Banking Facility to the Borrower shall be
upon the condition that the Bank will not breach or contravene any
law legislation or regulation including, with
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