Exhibit 10.9
Your Bank. Malaysia’s Bank. AmBank.TM
Date : 16-01-2020
Ref No. : AFSB/006147/19-12/CT2
KAINAN SDN BHD [COMPANY NO: 776506W]
NO. 20-2F,U13/BF,
JALAN SETIA PERDANA BF,
BANDAR SETIA ALAM, SEKSYEN U13,
40170 SHAH ALAM, SELANGOR.
PRIVATE & CONFIDENTIAL
Dear Sirs,
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Re: |
BANKING FACILITIES OF RM2,000,000.00 |
AmBank **(M) **Berhad **(‘Bank’) **is pleased to offer the below-mentioned banking facilities **(‘Facility’) **to **KAINAN SDN BHD (‘Borrower’) **on the following terms and conditions:
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1.0 |
Types of Facilities and Limits |
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| Facilities |
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Limits (RM) |
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| Term Loan (TL) |
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2,000,000.00 |
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| Total |
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2,000,000.00 |
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2.0 |
Purpose of Facilities |
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| Facilities |
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Purpose |
| TL |
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Working Capital |
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3.0 |
Tenure and Repayment of Facilities |
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| Facilities |
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Tenure |
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Repayment |
| TL |
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7 Years |
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● 84 equal monthly repayments of RM32,894.00 (principal + interest) until full settlement of the Facility |
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● The 1st instalment to commence on the 5th of the month after full disbursement |
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4.0 |
Interest Rate / Fees / Commission |
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| Facilities |
** ** |
Facilities Interest Rate / Fees / Commission |
| TL |
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● Interest rate at **3.00% **per annum above the Bank’s Base Lending Rate (“BLR”) on Monthly rests. |
Note:
BLR is currently at **6.70% **per annum.
AmBank (M) Berhad (8515-D)
A member of the AmBank Group
SME Banking: Level 33, Menara AmBank, No. 8, Jalan Yap Kwan Seng, 50450 Kuala Lumpur, Malaysia.
T: +603 21 67 3000 F: 603 2780 0020
W: ambankgroup.com
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| KAINAN SDN BHD [COMPANY NO: 776506W] |
PAGE 2 |
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5.0 |
Security and Security Documents |
Open All Monies Facility Agreement to be entered into between the Borrower and the Bank together with interest, commission and all other bank charges.
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5.2 |
Subsidiary Instrument |
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5.2.1 |
Syarikat Jaminan Pembiayaan Perniagaan Berhad (“SJPP”) Guarantee |
Subject to approval, SJPP will guarantee up to **RM1,400,000.00 (70%) **of the Facility Limit.
Open All Monies Personal Guarantee by the following individual: -
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| Name of Guarantor |
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NRIC No / MyKad No |
| WHITNEY TAN ANN NEE |
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791114-08-5780 |
The individuals or the Company referred to in Clause 6.0 above shall hereinafter be collectively referred to as “Guarantor(s)”
The Borrower agrees that in the event that the facility is cancelled or fully settle by the Borrower after acceptance/execution by Borrower of the Letter of Offer, the Bank reserves the right to recover the one (1) year guarantee fee amounting 1.0% per annum of the Facility amount/ Facility outstanding paid by the Bank to SJPP under the guarantee scheme and the Bank is hereby authorized to debit any account maintained by the Borrower with the Bank by giving the borrower notice if at least twenty one (21) days prior to the effective date of the contractual right of set-off.
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8.0 |
Availability of the Facility |
Up to twelve (12) months from the date of the Bank’s notification that the TL is available for utilisation.
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9.0 |
Condition Precedent to Disbursement |
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9.1 |
In addition to the Conditions Precedent to Disbursement as contained in the attached Annexure, the disbursement of the Facilities is further subjected to the following additional conditions: |
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(a) |
Evidence that the Statement of Particulars To Be Lodged With Charge form pursuant to section 352 (1), 354 and 356 (1) as prescribed under the Companies Act 2016 of Malaysia (equivalent to form 34 pursuant to the Companies Act 1965) in respect of the relevant documents required under this Facility **(“Financing Documents, **have been duly executed by a Director and/or Company secretary of the Borrower and/or Security Party (if a body Corporate) and duly lodge with Companies Commission of Malaysia and that CCM search conducted prior to such lodgment, revealed that there are no other charges or any interest that have been registered with the CCM which would adversely affect the interest of the Bank under the Financing Documents. (if applicable) |
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(b) |
The Borrower’s Board of Directors’ Resolution authorising the acceptance of the Facility and where applicable, the corporate guarantor’s and/or the security party’s Board of Directors’ Resolution authorising the provision of security (to secure the Borrower’s payment obligations under the Facility), and the execution of all documents in accordance with the Borrower’s, the corporate guarantor’s and/or the security party’s Constitution in compliance to the terms and conditions herein; |
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(c) |
Specimen signatures of the Borrower’s, the corporate guarantor’s and/or the security party’s authorised signatories; |
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| KAINAN SDN BHD [COMPANY NO: 776506W] |
PAGE 3 |
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(d) |
Receipt of duly executed and stamped Open All Monies Personal Guarantee. |
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(e) |
To deposit **RM15,000.00 **into the said Current Account / Current Account-i for the purpose of payment towards the costs of preparation of documentation relating to this Facility and stamping fees. |
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(f) |
Receipt of the Letter of Guarantee in terms acceptable to the Bank from Syarikat Jaminan Pembiayaan Perniagaan Berhad (SJPP). |
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(g) |
Irrevocable standing instruction from the Borrower to debit its current account with the Bank for the repayment of the facility. |
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(h) |
The Borrower shall have opened a Current Account / Current Account-i with the Bank to facilitate the monthly payment. |
And such other documents or security documents as the Bank or the Bank’s solicitors may advise from time to time.
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(a) |
The Borrower shall execute all security documents within three (3) months from the date of this Letter of Offer; failing which, the Bank reserves the right to cancel the Facility. |
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(b) |
The Bank reserves the right to cancel the Facility if there is no utilization within three (3) months from the date of execution of all security documents. |
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(c) |
The Borrower shall make available a protection plan to cover the life of the Borrower’s key persons / officers (collectively referred to as ‘Key Persons’). The premium payable, which can be utilized from the disbursement of the loan amount, shall be based on the eligibility of the borrower according to the insurance plan, i.e. Wealth Secure Max Plan 1000 of Ringgit Malaysia (RM80,000.00) annual premium and shall be subject to confirmation by the insurer pursuant to the insurer’s underwriting guidelines and requirements. |
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(d) |
On best-effort basis, the Borrower shall credit minimum of **30% **from the sale proceed on monthly basis to the Borrower’s current account with the Bank. |
All stamp duty payable on this instrument shall be borne by you and may be deducted and paid from the Facility.
Unless expressly stated otherwise in this Letter of Offer, the parties agree that any charges, commissions, fees, expenses or similar amount to be used in the calculation of such charges, commissions, fees, expenses (“Charges”) is exclusive of Taxes and such Taxes shall be borne by the Borrower.
If any supply made under or in connection with this Letter of Offer is subject to Taxes, the Bank may increase the consideration provided for by the amount of the Taxes and recover that additional amount from the Borrower in addition to the Charge.
For the avoidance of doubt, the term “Taxes” means any taxes, including but not limited to, goods and services tax, value added tax, consumption tax, consumer tax, indirect tax, service tax, duties, levies and other taxes which may now be or hereafter imposed by the Government of Malaysia.
The Borrower shall promptly on demand pay to the Bank all costs and expenses (including legal fees) incurred by the Bank in connection with any enforcement of or preservation of any rights of the Bank under this Letter of Offer, and the Bank is hereby authorized to debit the Borrower’s account in respect of such costs and expenses.
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| KAINAN SDN BHD [COMPANY NO: 776506W] |
PAGE 4 |
The Borrower is encouraged to subscribe to AmBank’s payroll services to facilitate the Borrower’s employees’ payroll with the Bank. Upon opening of the employees’ account for payroll, the Borrower is encouraged to use the payroll services to credit the employees’ monthly salary, via the Borrower’s company current account with AmBank, into the employees’ payroll account. For the avoidance of doubt, the Borrower is not under any compulsion to subscribe to AmBank’s payroll services.
It is hereby expressly agreed and declared by the parties hereto that, the provisions of this Letter of Offer may at any time and from time to time, be varied and/or amended by the Bank with prior written notice of twenty one (21) calendar days (as the case may be) to the Borrower. Such amendments and variations are to be read and construed as if such amendments and variations had been incorporated into and had formed part of this Letter of Offer at the point of execution of this Letter of Offer.
Please signify your acceptance of the terms and conditions stated herein by signing and returning the enclosed duplicate copy of this Letter of Offer not later than fourteen (14) calendar days from the date hereof, failing which, this Letter of Offer shall lapse.
Thank you, for banking with AmBank
Yours faithfully,
for AmBank (M) Berhad
** **
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| /s/ SEN CHEE SYUANG SEAN |
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/s/ TAM WEI SHIN |
| SEN CHEE SYUANG SEAN |
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TAM WEI SHIN |
| SME Segment Manager |
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SME Relationship Manager |
| SME Banking |
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SME Banking |
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ACKNOWLEDGEMENT AND ACCEPTANCE BY BORROWER
*I/We acknowledge receipt of this letter of offer and annexure and hereby confirm the acceptance of the terms and conditions set out in this letter and further confirm that (i) the granting of this Facility by **AmBank (M) Berhad (8515-D) (“the Bank”) **would not be deemed as a related party transaction under the Financial Services Act 2013. *I/We also confirm that *my/our Declaration dated 29.01.2020 remains valid and *I/we shall immediately inform the Bank in writing should the circumstances change.
REMINDER: The Borrower is hereby reminded to seek, obtain and rely on its own independent legal advice and to read and understand the terms and conditions of this Letter of Offer and the Annexure before signing below. In the event there are any terms and/conditions in this Letter of Offer and the Annexure that the Borrower do not understand, the Borrower is hereby advised to discuss further with the Bank’s staff, representative or agent before signing below.
*For and on behalf of
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| /s/ WHITNEY TAN ANN NEE |
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| (Authorised signatories and company official rubberstamp) |
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| Name : |
WHITNEY TAN ANN NEE |
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| Designation : |
DIRECTOR |
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| MyKad No./Passport No. : |
791114 - 08 - 5780 |
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| Date : |
29/01/2020 |
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Sha/rose
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| KAINAN SDN BHD [COMPANY NO: 776506W] |
PAGE 5 |
ACKNOWLEDGEMENT AND ACCEPTANCE BY GUARANTOR
*I/We acknowledge receipt of this letter of offer and annexure and hereby confirm the acceptance of the terms and conditions set out in this letter and further confirm that (i) the granting of this Facility by AmBank (M) Berhad (8515-D) (“the Bank”) would not be deemed as a related party transaction under the Financial Services Act 2013. *I/We also confirm that *my/our Declaration dated 29/01/2020 remains valid and *I/we shall immediately inform the Bank in writing should the circumstances change.
REMINDER: The Guarantor is hereby reminded to seek, obtain and rely on its own independent legal advice and to read and understand the terms and conditions of this Letter of Offer and the Annexure before signing below. In the event there are any terms and conditions in this Letter of Offer and the Annexure that the Guarantor do not understand, the Guarantor is hereby advised to discuss further with the Bank’s staff, representative or agent before signing below.
*For and on behalf of
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| /s/ WHITNEY TAN ANN NEE |
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| (Authorised signatories and company official rubberstamp) |
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| Name : |
WHITNEY TAN ANN NEE |
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| Designation : |
DIRECTOR |
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| MyKad No./Passport No. : |
791114-08-5780 |
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| Date : |
29/01/2020 |
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ANNEXURE I (SME TL/(SJPP)
STANDARD TERMS AND CONDITIONS
(WHERE APPLICABLE)
On demand by the Bank, the Borrower shall immediately make payment of all moneys due and owing by the Borrower in respect of this Facility or other facilities made available by the Bank, (whether actual or contingent, solely or jointly, as principal or surety and in whatever style, name or form) together with interest, expenses, commissions, fees and other charges incurred by the Bank including legal and other costs and expenses (on a full indemnity basis) at such rates and upon such terms and conditions as may be applicable from time to time.
The Borrower shall pay all interest, fees and charges at such rates in accordance with this Letter of Offer. Interest shall be payable on the cleared daily balance of the amount due and owing by the Borrower to the Bank which is charged to the Borrower’s account monthly in arrears. Without prejudice to the rights of the Bank to require payment of such interest and in the event of such interest not being punctually paid, interest shall be compounded with monthly rests. The daily accruing interest, fees and charges will be calculated on the basis of the actual number of days elapsed (which is a 365 day year or such other period as may be appropriate having regard to the currency (or currencies) in which the Facility is made available) and the Borrower hereby authorised the Bank to debit the Borrower’s accounts such interest, fees or charges as may be incurred from time to time.
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2.2 |
Variation of Interest |
The Bank is entitled from time to time to vary its rate of margin, base lending rate **(“BLR”), **cost of fund, rate of interest, default interest rate, commission, fees, charges and/or the provisions relating to interest by giving prior written notice of at least twenty-one (21) calendar days (save and except for any variation to the Bank’s BLR which may be communicated by the Bank by placing in one of a daily newspaper of the Bank’s choice, a general notice of change of the Bank’s BLR to the public generally or by serving a twenty one (21) calendar days’ notice in writing on the Borrower).,
Such amendment and variation shall be applicable as from the date specified in such notice and service of the written notice on the Borrower shall be effected in accordance with Clauses 22 and 31.
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a. |
In the event of a default in the repayment or payment, the Borrower shall pay to the Bank damages by way of interest at the rate of 1.0 % per annum (‘default interest rate’) on any outstanding instalment, interest or any other sums in arrears which shall be calculated daily from the due date until the date of receipt of full payment as well as before or after any court order or judgment. |
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b. |
Notwithstanding the above, the Bank is entitled to vary the default interest rate by serving prior written notice of twenty-one (21) calendar days to the Borrower. The amended default interest rate shall be applicable as from the date specified in such notice and service of the written notice on the Borrower shall be effected in accordance with Clauses 22 and 31. |
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c. |
The rights of the Bank to charge default interest at the rate and in the manner of computation as conferred on the Bank by the Financing Documents shall subsist and continue to subsist notwithstanding the issuance of a demand for payment by the Bank on the Borrower and/or the cessation of the relationship of banker and customer between the parties. |
The Facility is subject to periodic review by the Bank at any time whether or not an event of default has occurred. The Bank shall not be under any obligation to make or continue to make available the Facility to the Borrower. Where the Facility is terminated pursuant to such review, all principal money, profit, late payment charges, fees and other money due and outstanding under the Facility shall be repaid immediately on demand. Prior to any such demand, the Borrower shall continue to repay the Facility in the number of instalments and tenure as set out in this Letter of Offer..
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a. |
The Bank may at its discretion at any time without in any way affecting any of the Financing Documents:- |
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(i) |
determine, cancel, restructure, earmark, reduce or increase the amount of the Facilities in accordance with the provisions in Clause 31 (where applicable) and may open and/or continue any account current or otherwise with the Borrower at any branch of the Bank; |
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(ii) |
convert the Facilities or any balance outstanding to another facility; |
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(iii) |
grant to the Borrower and/or to any Security Party or any other surety or guarantor any time indulgence or waiver or consent or release; |
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(iv) |
renew any bills, notes or other negotiable securities; |
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(v) |
deal with, exchange, release, modify or abstain from perfecting or enforcing any securities or other guarantees or rights it may now or at any time after the date of this Letter of Offer have from or against the Borrower, any Security Party and/or any other persons; |
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(vi) |
compound with the Borrower and/or any Security Party or any other person or guarantor; and/or |
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(vii) |
vary any of the terms and conditions of the Facilities in accordance with the provisions in Clause 31 below. |
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b. |
It is hereby expressly acknowledged and declared that any condition precedents contained herein are inserted for the benefit of the Bank and may be waived, suspended or deferred by the Bank at its discretion (in whole or in parts). Notwithstanding if the Bank may grant such a waiver, the Bank shall not be prevented from requiring such condition precedent to be complied with at a subsequent time. |
AmBank reserves the right to recall the loan at any time if one or more of the following events should occur:-
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a. |
if the Borrower/Guarantor (whichever is applicable) fails to pay any installment or other sum of money when they fall due in accordance with the terms and conditions of this Letter of Offer, |
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b. |
if the Borrower/Guarantor (whichever is applicable) is unable to pay its debts as they become due, or commit an act of bankruptcy or insolvency or if judgment is obtained against the Borrower/Guarantor (whichever is applicable) by any third party, |
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c. |
if any receiver or trustee or bailiff is appointed to take possession of the Borrower/ Guarantor’s (whichever is applicable) properties, or if execution of any form of actions is levied or taken against any of the Borrower/Guarantor’s (whichever is applicable) properties, |
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d. |
if any default occurs under any other agreement involving the borrowing of monies or the advance of credit to the Borrower which gives the creditor concerned (including the Bank) the right to recall the loan or to accelerate payment or withdraw the advance of credit, |
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e. |
if any of the terms and conditions of the Bank’s security documents are breached or become ineffective. |
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(i-i) |
any indebtedness of the Borrower and/or Guarantor and/or any Security Party, whether to the Bank or any company within the AmBank Group, or to any other creditor, is not paid when due, becomes due or capable of being declared due before its stated maturity; |
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(i-ii) |
any guarantee of the Borrower and/or Guarantor and/or any Security Party is not discharged at maturity or when called; or |
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(i-iii) |
the Borrower and/or Guarantor and/or any Security Party goes into default under, or commits a breach of, any instrument or agreement relating to any such indebtedness or guarantee or the security for any such indebtedness becomes enforceable; and |
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| 10.2 |
(i) |
The Borrower is hereby reminded to read and understand before agreeing to be bound by the Privacy Notice of AmBank Group (which is available at www.ambankgroup .com) and the clauses herein, as may relate to the processing of the Borrower’s personal information. For the avoidance of doubt, the Borrower agrees that the said Privacy Notice shall be deemed to be incorporated by reference into the Letter of Offer and this Annexure. |
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(ii) |
In the event the Borrower provides personal and/or financial information relating to third parties, including but not limited to information relating to the Borrower’s next-of-kin, dependents, authorized signatories, directors, shareholders, officers, Guarantors and Security Parties for the purpose of the Letter of Offer and Annexure, the Borrower: |
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(ii-i) |
confirm that the Borrower has obtained their consent or are otherwise entitled to provide the information to the Bank and for the Bank to use it in accordance with this Letter of Offer and Annexure and any other documents in relation to the Facility and to provide information on the Bank’s products, services and/or offers (inclusive of the products, services and offers of the other entities within AmBank Group) which the Bank and AmBank Group believe may be of interest and/or beneficial to them; |
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(ii-ii) |
agree to ensure that the personal and financial information of the said third parties is accurate; |
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(ii-iii) |
agree to update the Bank in writing in the event of any material change to the said personal and financial information; and |
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(ii-iv) |
agree to the Bank’s right to terminate the Facility should such consent be withdrawn by any of the said third parties |
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(iii) |
Where the Borrower instructs the Bank to effect any sort of cross-border transaction (including to make or receive payments), the details relevant to the cross-border transaction (including information relating to those involved in the said transaction) may be received from or sent abroad, where it could be accessible (whether directly or indirectly) by the Bank’s agents abroad, overseas regulators and/or authorities in connection with their legitimate duties (e.g. the prevention of crime). In instructing the Bank and/or the Bank’s agents to enter into any cross-border transaction on the Borrower’s behalf, the Borrower agrees to the above said disclosures on behalf of the Borrower and others involved in the said cross-border transaction. |
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(iv) |
Subject always to any laws (including regulations, guidelines and/or obligations) applicable to the Bank (whether in or outside Malaysia), the Borrower agrees that other companies in AmBank Group, their merchants and strategic partners may contact the Borrower about products, services and offers, which the Bank and AmBank Group believe may be of interest or beneficial to the Borrower. |
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(v) |
The Bank and AmBank Group may communicate with the Borrower through various channels, including telephone, e-mail, electronic / mobile messaging, facsimile or post, using the contact information the Borrower has provided. |
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(vi) |
The Borrower may inform the Bank at any time if the Borrower does not wish to receive marketing communications from the Bank, AmBank Group and/or their merchants and business partners, by contacting the Bank at the various channels given below: |
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Customer Service Officer |
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Phone: |
(603) 2178 3188 |
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E-mail: |
customercare@ambank group.com |
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Post: |
Privacy, AmBank Contact Centre, P.O. Box No. 12617, |
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50784 Kuala Lumpur |
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(vii) |
The Borrower’s latest written instructions to the Bank will prevail. The Borrower acknowledges that certain communications AmBank Group’s websites may contain standard information regarding other products and services of the Bank and AmBank Group that cannot be removed without affecting the delivery/operation provision of the Facility and/or without additional costs to the Borrower. |
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(c) |
In addition to the above rights, the Bank has the discretion to suspend and/or prohibit withdrawal from any accounts of the Borrower, with prior notice to the Borrower. |
The Bank is entitled to assume that any instructions received by the Bank, whether verbal (either in person or through the telephone) or written (in any form, including but not limited to facsimile and electronic transmissions) are genuine and are duly given or relayed to the Bank by the Borrower or person(s) duly authorised by the Borrower and the Bank shall be further authorised to act in accordance to such instructions. The Bank is isunder no duty to make enquiries to ensure that such instructions are in fact genuine or authorised and any drawdown pursuant to such instructions is deemed to be a drawdown under the Facility. Furthermore, the Borrower shall indemnify the Bank against any and all losses, liabilities, expenses and costs however incurred by the Bank as a result from acting on such instructions received by the Bank save and except where such losses, liabilities, expenses and costs were directly attributable by the Bank’s gross negligence, wilful default and fraud.
Notwithstanding the above and should the Bank have reasonable doubts, the Bank retains the full right at its discretion to delay in acting on any instructions received by the Bank from the Borrower or on the Borrower’s behalf and/or insist on the production of the original drawdown notice(s) in writing from the Borrower. The Bank will not be responsible or liable for any loss or damage sustained by the Borrower by reason of such failure or delay.
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14. |
SJPP GUARANTEE SCHEME |
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a. |
The Borrower acknowledges that the :- |
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i) |
SJPP Guarantee Scheme (hereinafter referred to as **“Scheme”) **is established by SJPP and the Bank to assist small medium enterprises in obtaining financing to support their businesses; |
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ii) |
Its participation in the Scheme is in accordance with the terms and conditions of the Scheme whereby SJPP shall provide guarantee cover (certain percentage) on the credit financing made available by the Bank under the Scheme subject always to the terms and conditions of the Scheme; and |
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iii) |
There is to be no refund of the guarantee fee paid to SJPP by the Bank in the event of early settlement of the Facility. |
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a. |
In the event of default, SJPP is allowed to substitute all rights of the Bank against the Borrower in respect of the amount paid by SJPP in accordance to the Scheme. The Bank shall not be liable to the Borrower and/or the Guarantor(s) and/or the Security Party in any way in respect of anything required to be done by Bank under or pursuant to the provisions of the Scheme including the disclosure from time to time of information, affidavits or other documents concerning or relating to the Borrower and/or the Guarantor(s) and/or the Security Party to SJPP. |
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b. |
The cessation, invalidity or unenforceability of the Guarantee Cover under the Scheme due to any reason including the Bank’s failure or omission to comply with any of the provisions of the Scheme shall not in any way affect or diminish the Borrower’s liability under this Letter of Offer and/or the Guarantor(s)’s and/or the Security Party’s liability to repay the Bank the Facility and/or any other sums whatsoever due and payable hereunder. |
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15. |
RECONSTRUCTION OF THE BANK, BORROWER, GUARANTOR AND/OR SECURED PARTY |
The security, liabilities and/or obligations created under this Letter of Offer shall continue to be valid and binding for all purposes notwithstanding any change by amalgamation, consolidation, merger, acquisition, restructuring, take-over, dissolution, revocation, reconstruction or otherwise which may be made in the constitution of the Bank, the Borrower and/or the Security Party.
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16. |
FURTHER REPRESENTATION AND DECLARATION BY BORROWER ON CONNECTED PARTIES |
The Borrower and its Directors hereby represent and declare to the best of their knowledge that:
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1) |
They do not have control6 over the Bank’s Directors2, controlling shareholders3, executive officers4 and credit officers5 and their close relatives1. |
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(i) |
the Borrower shall disclose and furnish to the Bank any information required or deemed necessary and to the satisfaction of the Bank in a timely manner within the period specified by the Bank; |
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(ii) |
pending receipt of information by the Bank from the Borrower and until received and verified to the satisfaction of the Bank and or the relevant authorities, the Bank shall neither be obliged to proceed with any transactions or disbursements nor accept any monies, funds or collateral **(“Assets”). **In relation to Assets already in the possession of the Bank, the Bank shall be entitled (and authorised) if so required by the relevant authorities to retain the Assets for the time being; any Assets requested to be returned to the Borrower shall be returned to the Borrower after the Bank receives satisfactory clearance from the relevant authorities; |
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(iii) |
the Borrower will ensure that it does not use the Facilities for money laundering offence or violate any laws relating to money laundering offence under the AMLATFA or in contravention of the Strategic Trade Act 2010; and |
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(iv) |
in no event shall the Bank or companies within the AmBank Group be liable for any direct, indirect, consequential or any losses whatsoever or howsoever arising or by reason of the Bank’s exercise of its duties under the laws for the time being in force, in particular but not limited to its statutory duties under the AMLATFA. |
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(c) |
In the event the payment or repayment of the Facilities and all other monies due and payable or any part of it by the Borrower is at any time or from time to time after the release and discharge of the Borrower’s obligations under the Financing Documents by the Bank, found to be from an unlawful source of activity or instrumentalities of an offence under the AMLATFA, the Borrower agrees and acknowledges that:- |
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(i) |
the release and the discharge of the Borrower’s obligations under the Financing Documents shall be automatically deemed to be invalid from the date it is established that the source of payment or repayment of the Facilities and all other monies due and payable or any part of it falls within the ambit of the AMLATFA and the Borrower shall continue to be liable to the Bank under the terms of the Financing Documents notwithstanding any document issued and/or executed by the Bank to release and discharge the Borrower; and |
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(ii) |
the Borrower shall indemnify the Bank for any losses, damages, costs, fees and charges incurred by the Bank as a result of contravention by the Borrower of the provisions of the AMLATFA and/or Strategic Trade Act 2010. |
The Borrower shall fully indemnify the Bank from and against any and all claims, proceedings, expenses, losses, damages and/or liabilities (as to the amount of which the certificate of the Bank is, in the absence of an error that is obvious and indisputable, be conclusive and binding on the Borrower) which the Bank may incur or suffer:-
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(a) |
as a consequence of the occurrence of any Event of Default or otherwise; and |
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(b) |
in connection with or incidental to the Financing Documents or otherwise or to the grant of the Facility by the Bank to the Borrower, |
save and except where such claims, proceedings, expenses, losses, damages and/or liabilities were directly attributable by the Bank’s gross negligence, wilful default and fraud.
The foregoing indemnity shall extend to any interest, fees or other amounts whatsoever paid or payable on account of any funds borrowed in order to carry any unpaid amount and to any loss (including loss of profit), premium, penalty or expense which may be incurred in liquidating or employing deposits from third parties acquired to make, maintain or fund the Facility or any other amount due or to become due under the Financing Documents.
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19. |
RIGHTS, CUMULATIVE AND WAIVERS |
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(a) |
The rights and remedies of the Bank in the Financing Documents are cumulative and are in addition to any rights and remedies provided by law. |
In the event complaint by the Borrower is unresolved by the Bank or the Borrower is unsatisfied with the Bank’ decision in respect of the complaint, the Borrower may refer the matter to:
(i) BNMLINK
Laman Informasi Nasihat dan Khidmat (LINK)
Jalan Dato’ Onn
50480 Kuala Lumpur
Tel: 1-300-88-5465
Email: bnmtelelink@bnm.gov
(ii) Association of Banks in Malaysia
34th Floor, UBN Tower
10, Jalan P.Ramlee
50250 Kuala Lumpur
Tel: 1-300-88-9980
Email: banks@abm.org.my
(iii) Ombudsman for Financial Services
Level 14, Main Block
Menara Takaful Malaysia
No 4 Jalan Sultan Sulaiman
50000 Kuala Lumpur
Tel: 03-22722811
Email: enquiry@ofs.org.my
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22. |
GOVERNING LAW & JURISDICTION |
This Letter of Offer and Annexure and the Financing Documents and all contracts or other transactions arising out of this Letter of Offer shall (unless otherwise expressly provided in such contracts or transactions) be governed by and interpreted in accordance with the laws of Malaysia. In relation of any legal action or proceedings arising out or in connection with this Facility, the Borrower irrevocable submits to the exclusive jurisdiction of the Court of Malaysia.
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23. |
ENTIRE AGREEMENT; INCONSISTENCIES |
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(a) |
The Letters of Offer and any documents or instruments attached to the Letter of Offer integrate all the terms and conditions of the Facility and shall form and be construed as part of this Letter of Offer and Annexure; |
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(b) |
All the provisions contained in the Letter of Offer, shall unless inconsistent with any of the provisions contained in this Annexure, be read as forming part of and shall be applicable with full force and effect as if the same were set out in this Annexure. In the event of any inconsistency between the provisions of the relevant Letter of Offer and this Annexure, the provisions of the relevant Letter of Offer shall prevail for the purpose of interpretation and application of the terms of this Annexure. |
The Bank shall not be liable to the Borrower for any failure in performing any of its obligations or in respect of or arising from the Facility or any claim in respect of any unforeseen loss, damages or injury to earnings or profit or goodwill or business beyond the reasonable control of the Bank, including but not limited to, any fire, earthquake, flood, epidemic, accident, explosion, casualty, lock-out, riot, civil disturbance, act of public enemy, natural catastrophe, embargo, war, act of God and/or any mechanical, electronic or communications failure.
The Financing Documents shall be binding on the Borrower and/or the Guarantor and/or Security Party and its successors in title, permitted assignees or upon the heirs and personal representatives of the Borrower and/or the Borrower and/or Security Party notwithstanding the invalidity, defect or irregularity of the powers to borrow or create securities or incur liabilities under the Financing Documents of the Borrower or any director, attorney, agent or other person purporting to borrow or to create securities or act on behalf of the Borrower and/or the Guarantor and/or Security Party.
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32. |
DEFINITIONS AND CONSTRUCTIONS |
In this Letter of Offer and Annexure, each of the following expressions has, except where the context otherwise requires, the meaning respectively assigned to them :-
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| AmBank Group |
all the related corporations of the Bank incorporated inside or outside of Malaysia; |
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| Authorisations |
any consent, permission, approval (including but not limited to, any approvals from BNM pursuant to the Financial Services Act 2013), authorisations, order, license, exemptions, registration, recording, filing or notarization, payment of duty or tax;. |
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| Base Lending Rate |
the rate (by whatever name called) that is from time to time quoted by the Bank as its base lending rate); |
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| Business Day |
a day (other than Saturday, Sunday or a public holidays) on which financial institutions licensed under the Financial Services Act 2013 are open in the state where the place of business of the Bank is located; |
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| Financing Documents |
collectively the Letter of Offer, this Annexure, Joint and Several Guarantee, Corporate Guarantee, all other documents in connection to this Facility (including but not limited to those documents constituting security for payment of repayment of the Facility) as at the date of the Letter of Offer and from time to time and references to “Financing Document” means each or any of them. |
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| Security Parties |
collectively, all the parties that provide security to the Bank from time to time for the payment or repayment of the Facility and references to “Security Party’ means each or any of them; |
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33. |
UPLIFTMENT OF FIXED DEPOSIT BEFORE MATURITY |
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a. |
Where a fixed deposit is uplifted before maturity, no interest is to be paid on any month deposit that has not run the full period. |
Unless expressly stated otherwise in this Letter of Offer, the parties agree that fees and other monies payable under this Letter of Offer by the Borrower are exclusive of Taxes and such Taxes shall be additionally borne by the Borrower.
If any supply made under or in connection with this Letter of Offer is subject to Taxes, the Bank may increase the consideration provided for by the amount of the Taxes and recover that additional amount from the Borrower in addition to the Fee.
(End of Annexure)
