: R. : 2 December 2005 / Singapore. : Non-resident controlled company.

Transcription

1 1. BACKGROUND INFORMATION (a) Issuer (i) Name : Bumitama Agri Ltd. ( Bumitama or the Issuer ). (ii) Address : Registered Office 10 Anson Road, #11-19, International Plaza, Singapore, Principal Place of Business Jl. Melawai Raya No. 10, Kebayoran Baru, Jakarta 12160, Indonesia. (iii) Business registration number (iv) Date and place of incorporation : R. : 2 December 2005 / Singapore. (v) (vi) Date of listing, where applicable Status on residence, i.e. whether it is a resident controlled company or non-resident controlled company : Listed on the Singapore Exchange Securities Trading Limited (Mainboard) since 12 April : Non-resident controlled company. (vii) Principal activities : The principal activity of Bumitama is that of an investment holding company. The principal activities of the Subsidiaries (as defined in Item 2(y)(vii) below) consist of investment holding, operating oil palm plantations and palm oil mills, wholesaling of oil palm products and the production and trading of crude palm oil and related oil palm products such as palm kernel. (viii) Board of directors : The board of directors of Bumitama as at 31 October 2013 are as follows: 1. Lim Gunawan Hariyanto 2. Gunardi Hariyanto Lim 3. Dato Lee Yeow Chor 4. Tan Boon Hoo 5. Christopher Chua Chun Guan 6. Ong Chan Hwa * With effect from 21 November 2013, Mr. Gunardi Page 1 of 34

2 Hariyanto Lim has resigned as Director and Deputy Chief Executive Officer of Bumitama. (ix) Structure of shareholdings and names of shareholders or, in the case of a public company, names of all substantial shareholders : The structure of shareholdings and names of shareholders as at 31 October 2013 are as follows: Name of Substantial Shareholders Direct Interest No. shares held of % Deemed Interest No. shares held of % Wellpoint Pacific Holdings Ltd (1) Dr Lim Hariyanto Wijaya Sarwono (1) 895,157, ,157, 774 Lim Gunawan ,157, Hariyonto (1) Fortune Corp ,157, Limited (1) Fortune Holdings Limited (1) Oakridge Investment Pte. Ltd. (2) ,157, ,050, IOI Corporation Berhad (2) ,556, Vertical Capacity Sdn Bhd (2) ,556, Progressive Holdings Sdn Bhd (2) ,556, Puan Sri Datin Hoong May Kuan (2) ,556, Lee Yeow ,556, Seng (2) Page 2 of 34

3 Tan Sri Dato Lee Shin Cheng (2) ,556, Dato Lee ,556, Yeow Chor (2) (2) (1) Each of Dr Lim Hariyanto Wijaya Sarwono and Mr Lim Gunawan Hariyanto is deemed to be interested in the shares held by Wellpoint Pacific Holdings Ltd ( Wellpoint ), a wholly owned subsidiary of Fortune Holdings Limited, by virtue of Section 7 of the Singapore Companies Act, Cap. 50 (the Singapore Companies Act ) arising from his joint interest in Fortune Holdings Limited and in Fortune Corp Limited, the fund management company that manages Fortune Holdings Limited. Dr Lim Hariyanto Wijaya Sarwono and Mr Lim Gunawan Hariyanto are the only directors of Fortune Corp Limited. Under the discretionary fund management mandate, Fortune Corp Limited is vested with the power to manage the voting rights of Fortune Holdings Limited. Fortune Holdings Limited is in turn deemed to be interested in the shares held by Wellpoint by virtue of Section 7 of the Singapore Companies Act arising from its 100% shareholding interest in Wellpoint. Tan Sri Dato Lee Shin Cheng, Puan Sri Datin Hoong May Kuan, Dato Lee Yeow Chor and Lee Yeow Seng are immediate family members and are deemed to be interested in the 535,050,070 shares held by Oakridge Investments Pte. Ltd. ( Oakridge ) and the 13,506,000 shares held by Lynwood Capital Resources Pte. Ltd. ( Lynwood ), both of which are wholly-owned subsidiaries of IOI Corporation Berhad ( IOI Corporation ), by virtue of Section 7 of the Singapore Companies Act arising from their collective 100% shareholding interest in Progressive Holdings Sdn Bhd. Progressive Holdings Sdn Bhd is deemed to be interested in the shares held by Oakridge and Lynwood by virtue of Section 7 of the Singapore Companies Act arising from its 100% shareholding interest in Vertical Capacity Sdn Bhd. Vertical Capacity Sdn Bhd is deemed to be interested in the shares held by Oakridge and Lynwood by virtue of Section 7 of the Singapore Companies Act arising from its shareholding interest in IOI Corporation. IOI Corporation is in turn deemed to be interested in the shares held by Oakridge and Lynwood by virtue of Section 7 of the Singapore Companies Act arising from its 100% shareholding interest in Oakridge and Lynwood. Page 3 of 34

4 (x) Authorised, issued and paid-up capital : Authorised, issued and paid-up capital as at 31 October 2013: Authorised capital: Not Applicable. In accordance with the Companies (Amendment) Act 2005 of Singapore, the concepts of par value and authorised capital were abolished on 30 January Issued and paid-up capital: SGD 255,242, (xi) Disclosure on the following If the Issuer or its board members have been convicted or charged with any offence under the securities laws, corporation laws or other laws involving fraud or dishonesty in a court of law, for the past five years prior to the date of application; and If the Issuer has been subjected to any action by the stock exchange for any breach of the listing requirements or rules issued by the stock exchange, for the past five years prior to the date of application. : None. Page 4 of 34

5 2. PRINCIPAL TERMS AND CONDITIONS (a) Names of parties involved in the proposal, where applicable (i) Principal adviser : Maybank Investment Bank Berhad ( Maybank IB ) and United Overseas Bank (Malaysia) Bhd ( UOB ) as the Joint Principal Advisers ( JPAs ). (ii) Lead arranger : Maybank IB and UOB as the Joint Lead Arrangers ( JLAs ). (iii) Co-arranger : Not applicable. (iv) Solicitors : Legal Counsel to the JPAs/JLAs in Relation to Malaysian Law Messrs. Adnan Sundra & Low ( ASL ) Legal Counsel to the Issuer in Relation to Malaysian Law Messrs. Christopher & Lee Ong (v) Financial adviser : Not applicable. (vi) Technical adviser : Not applicable. (vii) Sukuk trustee : Malaysian Trustees Berhad. (viii) Shariah adviser : Maybank Islamic Berhad ( MIB ). (ix) Guarantor : Not applicable. (x) Valuer : Not applicable. (xi) Facility agent : Maybank IB. (xii) (xiii) Primary subscriber (under a bought-deal arrangement) and amount subscribed Underwriter and amount underwritten : The primary subscriber under a bought-deal arrangement (if any) for any issuances will be determined prior to issuance. : Not applicable. (xiv) Central depository : Bank Negara Malaysia ( BNM ). (xv) Paying agent : BNM. (xvi) Reporting accountant : Not applicable. Page 5 of 34

6 (xvii) Calculation agent : Not applicable. (xviii) Others (please specify) : Joint Lead Managers ( JLMs ) Maybank IB and UOB. (b) Islamic principles used : Musharakah The Sukuk Musharakah (as defined in Item 2(c) below) shall be based on the Shariah principle of Musharakah which is one of the Shariah principles and concepts approved by the Securities Commission s ( SC ) Shariah Advisory Council ( SAC ). Musharakah is a form of partnership arrangement between two or more parties to undertake a business venture whereby all parties contribute capital either in the form of cash or in kind for the purpose of investment in the business venture. Any profit derived from the venture will be distributed based on a pre-agreed profit sharing ratio, but any loss will be shared on the basis of capital contribution. (c) Facility description : An Islamic medium term notes ( Sukuk Musharakah ) programme of up to RM2.0 billion in nominal value based on the Shariah principle of Musharakah ( Sukuk Programme ). The investors of the Sukuk Musharakah ( Sukukholders ) shall from time to time, form a Musharakah with the Issuer, which is a partnership to invest directly into the Business (as defined in Item 2(d) below) (the Musharakah Venture ) via subscription of the Sukuk Musharakah to be issued by the Issuer (the Musharakah Arrangement ) and enter into a Musharakah Agreement as partners (each a Partner and collectively the Musharakah Partners ). A Musharakah shall be formed for each tranche of the Sukuk Musharakah having the same Issue Date (as defined below) and Maturity Date (as defined below). The Issuer will from time to time within the tenure of the Sukuk Programme (as described in Item 2(g) below) issue Sukuk Musharakah up to the Sukuk Programme Size (as described in Item 2(f) below) to the Sukukholders. Each Sukuk Musharakah will represent the respective Sukukholder s undivided proportionate interest in the Musharakah Venture. Proceeds paid by the Sukukholders for subscription of the Sukuk Musharakah will be used as capital contribution of the Sukukholders to invest in the Musharakah Venture (the Musharakah Capital ) while the Issuer will contribute the Business as capital-in-kind into the Musharakah Venture and the value of such Business will be ascertained prior to the establishment of each Musharakah Venture. Simultaneously, with the Page 6 of 34

7 issuance of the Sukuk Musharakah, the Issuer will make a declaration that it holds on trust a percentage of its interest in the Business for the benefit of the Musharakah Partners pursuant to the Musharakah Venture. The Issuer shall be appointed as the manager ( Manager ) to manage the Musharakah Venture based on the terms and conditions of a management agreement to be entered into between the Issuer and the Sukuk Trustee (on behalf of the Sukukholders) ( Management Agreement ). The expected return to the Sukukholders under the Musharakah Venture shall be the expected yield for the Sukuk Musharakah calculated up to the (i) Maturity Date of the relevant Sukuk Musharakah or (ii) date of declaration of any Dissolution Event (as defined in Item 2(v) below) or (iii) date of Early Redemption (as defined in Item 2(x) below), whichever is the earliest ( Expected Return ). Any profit derived from the Musharakah Venture will be distributed based on a pre-agreed profit sharing ratio which will be determined prior to issuance of the Sukuk Musharakah from time to time. Any losses derived from the Musharakah Venture shall be borne by each Partner in proportion to each Partner s respective capital contribution in the Musharakah Venture. In respect of Sukuk Musharakah with periodic distributions, income from the Musharakah Venture of up to an amount calculated at the Periodic Distribution Rate (as defined in Item 2(i) below) on the face value of the Sukuk Musharakah, calculated on the basis of the actual number of days in the relevant period ( Expected Periodic Distribution Amount ) shall be distributed semi-annually, or such other period to be agreed between the Issuer and the JLAs in the form of periodic distribution ( Periodic Distribution ). In respect of Sukuk Musharakah without periodic distribution, income from the Musharakah Venture of up to the Expected Return shall be distributed on a one-off basis ( One-off Distribution ) to the Sukukholders on the Maturity Date of the Sukuk Musharakah or the date of Early Redemption or the Dissolution Date (as defined below), whichever is the earliest. Any shortfall between the Expected Periodic Distribution Amount (in the case of Sukuk Musharakah with Periodic Distributions) or the Expected Return (in the case of Sukuk Musharakah without Periodic Distributions) and the actual income generated for such relevant period shall be paid by the Issuer, in its capacity as the Manager, as top-up payment ( Top-up Payments ). For the avoidance of doubt, the Top-up Payments will be set off against the Exercise Price (as defined below) under the Sale Agreement (as defined below) pursuant to the Page 7 of 34

8 exercise of the Purchase Undertaking (as defined below) or Sale Undertaking (as defined below), as the case may be. In the event that the Sukukholders entitlement to distributable income generated from the Musharakah Venture is greater than the Expected Return, the Sukukholders shall agree that the excess distributable income generated from the Musharakah Venture shall be retained by the Manager as incentive fee. The Issuer (in its capacity as an Obligor ) shall declare and issue a purchase undertaking ( Purchase Undertaking ) to the Sukuk Trustee for and on behalf of the Sukukholders, wherein the Issuer undertakes to purchase the Sukukholders undivided proportionate interest in the Musharakah Venture at the relevant Exercise Price upon declaration of any Dissolution Event (as set out in Item 2(v) below) or the respective maturity date of the relevant Sukuk Musharakah by entering into a sale agreement ( Sale Agreement ). Pursuant to a sale undertaking ( Sale Undertaking ) declared and issued by the Sukuk Trustee for and on behalf of the Sukukholders, to the Issuer, the Sukuk Trustee for and on behalf of the Sukukholders undertakes to sell the Sukukholders undivided proportionate interest in the Musharakah Venture to the Issuer at the relevant Exercise Price upon any early redemption of the Sukuk Musharakah pursuant to the terms and conditions of the Sukuk Musharakah, by entering into the Sale Agreement. The transaction structure is illustrated in Annexure 1. Purchase Undertaking In relation to the Purchase Undertaking, the Exercise Price for purchase of the Sukukholders undivided proportionate interest in the Musharakah Venture under the relevant Sukuk Musharakah shall be determined based on the following formula: Exercise Price = Musharakah Capital plus Expected Return less aggregate Periodic Distribution made and received from the Musharakah Venture. For avoidance of doubt, the Expected Return and the Periodic Distribution shall be calculated up to the Maturity Date of the relevant Sukuk Musharakah or Dissolution Date, as the case may be. Sale Undertaking In relation to the Sale Undertaking, the Exercise Price for purchase of the Sukukholders undivided proportionate interest in the Musharakah Venture under the relevant Sukuk Musharakah pursuant to Early Redemption, shall be mutually agreed between the Page 8 of 34

9 Issuer and the Sukukholders by an extraordinary resolution. On any payment of the Exercise Price under the Sale Agreement pursuant to the exercise of the Purchase Undertaking or the Sale Undertaking (as the case may be), the Issuer will be entitled to set off any Top-up Payments made by the Issuer from the Exercise Price. Maturity Date The date specified as the maturity date on the relevant global certificate or definitive certificate (as the case may be) of the Sukuk Musharakah for payment of the nominal value of the Sukuk Musharakah, provided that it is construed in accordance with MyClear Procedures and/or MyClear Rules (as defined under Item 2(p) herein). Dissolution Date In relation to any Sukuk Musharakah, the date of declaration of a Dissolution Event. Issue Date In relation to any Sukuk Musharakah, the date on which such Sukuk Musharakah is issued. (d) Identified Assets : The Shariah-compliant general business of the Issuer, approved by the Shariah Adviser for the purpose of the Sukuk Musharakah ( Business ). (e) Purchase and selling price/rental (where applicable) : Not Applicable. (f) Issue/sukuk programme size : The aggregate nominal value of outstanding Sukuk Musharakah issued under the Sukuk Programme shall not exceed RM2.0 billion in nominal value. (g) Tenure of issue/sukuk programme : Sukuk Programme Tenure The Sukuk Programme shall have a tenure of up to fifteen (15) years from the date of issuance of the first tranche of Sukuk Musharakah under the Sukuk Programme. Issue Tenure The tenure of the Sukuk Musharakah shall be more than one (1) year and up to fifteen (15) years as the Issuer may determine, provided always that the maturity of the Sukuk Musharakah shall not exceed the Sukuk Programme Tenure. (h) Availability period of sukuk programme : Upon completion of all documentation and, unless waived by the Joint Lead Arrangers, compliance of all conditions precedent therein and all other applicable conditions to the satisfaction of the Joint Lead Page 9 of 34

10 Arrangers, the Sukuk Musharakah may be issued at any time during the tenure of the Sukuk Programme, provided that the Sukuk Musharakah mature on or prior to the expiry of the Sukuk Programme. The first issuance under the Sukuk Programme shall be within two (2) years from the date of the approval by the Securities Commission Malaysia ( SC ). (i) Profit/coupon/rental rate : For Sukuk Musharakah with periodic distributions, the Sukuk Musharakah will bear Periodic Distributions at the expected rate as may be agreed between the Issuer and the relevant Lead Manager(s). The distribution rate ( Periodic Distribution Rate ) shall be determined prior to the issuance of such Sukuk Musharakah. Not applicable for Sukuk Musharakah without periodic distributions. (j) (k) Profit/coupon/rental payment frequency Profit/coupon/rental payment basis : For Sukuk Musharakah with Periodic distributions, the Periodic distributions frequency shall be semi-annually or such other period to be agreed between the Issuer and the relevant JLM(s) prior to the issuance of such Sukuk Musharakah. Not applicable for Sukuk Musharakah without periodic distributions. : For Sukuk Musharakah with Periodic distributions, the Periodic distributions of the Sukuk Musharakah shall be calculated on the basis of the actual number of days in the relevant period divided by 365 (actual/365 days) and in any event, in accordance with the MyClear Rules and Procedures (as defined in Item 2(p) below). Not applicable for Sukuk Musharakah without periodic distributions. (l) Security/collateral, where applicable (m) Details on utilisation of proceeds by issuer/obligor and originator (in the case of ABS). If proceeds are to be utilised for project or capital expenditure, description of the project or capital expenditure, where applicable : Clean. : The proceeds from the issuance of the Sukuk Musharakah shall be advanced by the Issuer to the Subsidiaries within the Bumitama Group (as defined below) for capital expenditure, working capital, investments, refinancing existing debt and general corporate purposes, all of which shall be Shariahcompliant. The capital expenditure envisaged includes but is not limited to the following: (i) (ii) the maintenance of the Subsidiaries existing immature oil palm plantations; the planting of oil palm trees, the construction of oil palm mills, plants and refineries as well as the building of the required infrastructure by the Page 10 of 34

11 (n) Sinking fund and designated accounts, where applicable (iii) Subsidiaries which includes but is not limited to roads, bridges, and drainage and water systems; the potential acquisition of new land and other palm oil company(ies). Bumitama Group means Bumitama and its Subsidiaries from time to time. : None (o) Rating: Credit ratings assigned and whether the rating is final or indicative. In the case of a sukuk programme where the credit rating is not assigned for the full amount, disclosures set out in paragraph 9.04 of these guidelines must be made. Name of credit rating agencies : : The Sukuk Programme has been accorded an initial long term rating of AA3. RAM Rating Services Berhad ( RAM ). (p) Mode of issue : The Sukuk Musharakah may be issued through any of the following modes, on a best effort basis, to be determined by the Issuer and the JLMs: (i) (ii) (iii) by private placement; on bought deal basis; and/or through book running or a book building process. Issuance of the Sukuk Musharakah under the Sukuk Programme shall be in accordance with: (i) the Participation and Operation Rules for Payments and Securities Services issued by Malaysian Electronic Clearing Corporation Sdn Bhd ( MyClear ) ( MyClear Rules ); and (ii) the Operational Procedures for Securities Services and Operational Procedures for Malaysian Ringgit (MYR) Settlement in RENTAS both issued by MyClear ( MyClear Procedures ) or their replacement thereof (collectively MyClear Rules and MyClear Procedures ) applicable from time to time. Page 11 of 34

12 (q) Selling restriction, including tradability, i.e. whether tradable or non-tradable : At issuance of the Sukuk Musharakah The Sukuk Musharakah shall not be offered, sold, transferred or otherwise disposed, directly or indirectly other than to persons falling within any of the categories of persons or in the circumstances specified under: (a) (b) Schedule 6 (or Section 229(1)(b)); and Schedule 7 (or Section 230(1)(b)), read together with Schedule 9 (or Section 257(3)) of the Capital Markets and Services Act, 2007 as amended from time to time ( CMSA ). Thereafter The Sukuk Musharakah may only be offered, sold, transferred or otherwise disposed directly or indirectly to persons to whom an offer or invitation to purchase the Sukuk Musharakah would fall within Schedule 6 (or Section 229(1)(b)) read together with Schedule 9 (or Section 257(3)) of the CMSA. (r) Listing status and types of listing, where applicable Tradability Subject to the Selling Restriction, the Sukuk Musharakah shall be tradable in the secondary market on a willing-buyer willing-seller basis under the scripless book-entry securities settlement and funds transfer system known as the Real Time Electronic Transfer of Funds and Securities System ( RENTAS ). : The Sukuk Musharakah will not be listed on any exchange. (s) Other regulatory approvals required in relation to the issue, offer or invitation to subscribe or purchase sukuk and whether or not obtained : The Issuer has obtained BNM s approval on the Sukuk Programme via BNM s letter dated 18 November (t) Conditions precedent : Issuance of the Sukuk Musharakah is subject to compliance of conditions precedent including but not limited to the following (in the form and substance acceptable to the JPAs/JLAs and the Facility Agent): For the first issuance (i) a certificate signed by a duly authorised officer of the Issuer that there is: (a) no adverse change in the condition (financial or otherwise) of the Issuer since the date of its latest audited accounts which would have a Material Adverse Effect (as defined in Item 2(y)(vii) below); Page 12 of 34

13 (ii) (iii) (iv) (v) (vi) (vii) (viii) (b) no event rendering untrue or incorrect to a material extent any of the representations and warranties; (c) no material breach of any of the undertakings by the Issuer; and (d) no Dissolution Event or an event, which with the giving of notice or passage of time or both, would be a Dissolution Event, would have occurred and is continuing under the Transaction Documents (as defined in Item 2(y)(vi) below); the Transaction Documents (all in the form and substance acceptable to the JPAs/JLAs) shall have been duly executed by the parties thereto and stamped or endorsed as exempted from stamp duty; all required regulatory and other approvals, where applicable, for the establishment of the Sukuk Programme, including the relevant approvals from the SC and BNM, have been obtained for the establishment of the Sukuk Programme; written evidence that the structure, mechanism and Transaction Documents of the Sukuk Programme have received the approval and endorsement from the Shariah Adviser; copies of all resolutions, authorisations and consents required in connection with the establishment of the Sukuk Programme, the execution of the Transaction Documents and the issuance and sale of the Sukuk Musharakah having been obtained and delivered to the JPAs/JLAs; the Sukuk Programme shall have been accorded a minimum rating of AA3; a written opinion from ASL on, inter alia, the validity, legality and enforceability of the Sukuk Musharakah and the Transaction Documents and a confirmation that all conditions precedent have been fulfilled or waived, as the case may be; a written opinion from a Singaporean legal counsel in relation to the laws of Singapore, in the form and substance acceptable to the JPAs/JLAs, opining on the capacity and authority of the Issuer to enter into the Transaction Documents and the enforceability against the Issuer of any court judgement procured against it and to confirm the legality, validity and enforceability of the Transaction Documents from Page 13 of 34

14 (ix) (x) (xi) the perspective of the laws of Singapore; a written confirmation to the JPAs/JLAs from the Issuer that the payment date(s) of the relevant swap arrangements entered into by the Issuer, in relation to any of the Sukuk Musharakah, with the relevant hedging counterparty(ies) is set at the latest one (1) business day prior to the corresponding payment dates for each profit payment date and maturity date under the relevant Sukuk Musharakah; a letter in the form and substance acceptable to the JPAs/JLAs addressed to the Issuer and the JPAs/JLAs from Ernst & Young (Singapore) as the independent auditors of the Issuer; confirmation from the Sukuk Trustee that the Sukuk Trustee s Reimbursement Account (as defined in Item 2(y)(v) below) has been opened; and such other conditions precedent customary for a transaction of this nature, as may be advised by ASL and are mutually agreed to by the Issuer. (u) Representations and warranties For subsequent issuance (other than the first issuance) (i) (ii) (iii) the Sukuk Programme shall have maintained a rating of at least AA3; copies of all resolutions, authorisations and consents, if any, required by the Issuer in connection with the issuance and sale of the Sukuk Musharakah having been obtained or otherwise delivered to the JPAs/JLAs; and such other conditions precedent customary for a transaction of this nature, as may be advised by ASL and are mutually agreed to by the Issuer. : Representation and warranties typical and customary for a transaction of this nature in Malaysia, which shall include but are not limited to the following: (i) (ii) the Issuer is duly incorporated under the laws of Singapore and has legal right to own its property, to conduct its business as currently conducted and has full power and capacity to execute the Transaction Documents and to undertake and perform the obligations expressed to be assumed by it herein and therein and the Issuer has taken all necessary action to approve and authorise the same; the execution of the Transaction Documents and the undertaking and performance by the Issuer of the obligations expressed to be assumed by it herein and therein will not conflict with, or result Page 14 of 34

15 (iii) (iv) (v) (vi) in a breach of or default under, the laws of Singapore or the constitutive documents, rules and regulations of the Issuer or any agreement or instrument to which it is a party or by which it is bound or in respect of indebtedness in relation to which it is a surety; the Transaction Documents are or will be when executed and/or issued, as the case may be, in full force and effect and constitute legal, valid and binding obligations of the Issuer; all authorisations, consents and approvals required by the Issuer for or in connection with the execution of the Transaction Documents and the performance by the Issuer of the obligations expressed to be undertaken by it herein and therein have been obtained and are in full force and effect; the Transaction Documents have been duly executed and delivered by the Issuer and constitutes a legal, valid and binding obligation of the Issuer enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium and similar laws affecting creditors rights generally, and subject, as to enforceability, (a) (b) to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law); with respect to the enforceability of a judgment whether there is a federal law or a treaty in force relating to the mutual recognition of foreign judgments; and (c) to the fact that certain gross-up provisions may not be enforceable under the Singaporean law; the execution, delivery and performance of the Transaction Documents by the Issuer will not conflict with or result in any breach or violation of: (a) (b) (c) any law or regulation or any order of any governmental, judicial or public body or authority in Singapore; the constitutive documents, rules and regulations of the Issuer; or any agreement or other undertaking or instrument to which the Issuer is a party or which is binding upon the Issuer or any of its assets, nor result in the creation or imposition of any Encumbrance (as defined in Item 2(y)(vii) Page 15 of 34

16 below) on any of its assets pursuant to the provisions of any such agreement or other undertaking or instrument; (vii) all necessary consents, authorisations or approvals of, or filings with, any governmental, judicial or public bodies or authorities of Singapore required by the Issuer in connection with the execution, delivery, performance, legality, validity, enforceability, and, subject to Singaporean legal requirements, admissibility in evidence of the Transaction Documents have been obtained or effected and are in full force and effect; (viii) to the best of the knowledge and belief of the Issuer, having made due enquiries, no event has occurred that constitutes, or that, with the giving of notice or the lapse of time, or both, would constitute, a Dissolution Event or a default under any agreement or instrument evidencing any Financial Indebtedness (as defined in Item 2(y)(vii) below) of the Issuer; (ix) except as disclosed in the information memorandum (as amended or supplemented from time to time) issued in connection with the Sukuk Programme ( Information Memorandum ), there are no judicial, arbitral or administrative actions, proceedings or claims (which could have a Material Adverse Effect) pending or, to the knowledge of the Issuer, threatened against the Issuer or any of its Subsidiaries; (x) (xi) other than Encumbrances disclosed in the Information Memorandum and/or pricing supplement, if any, the Issuer and each of its Subsidiaries has the right of ownership (as that expression is defined under the laws of Singapore or the laws of the jurisdiction of such Subsidiaries) to its property free and clear of all Encumbrances. The Sukuk Musharakah will rank at least pari passu with all its other (subject to Item 2(w)(iv)(viii) below) unsecured and unsubordinated Financial Indebtedness (apart from any obligations mandatorily preferred by law); the audited consolidated financial statements (including the income statement and balance sheet) of the Issuer have been prepared on a basis consistently applied and in accordance with the Singapore Financial Reporting Standards ( SFRS ) and give a true and fair view of the results of their operations and the state of their affairs and in particular disclose all material liabilities (actual or contingent) of the Page 16 of 34

17 Issuer; (xii) except as disclosed in the Information Memorandum, there has been no material adverse change since the date of its last consolidated audited financial statements of the Issuer in the financial conditions, results of business operations or prospects of the Issuer or its Subsidiaries taken as a whole; (xiii) (xiv) neither the Issuer nor its property has any right of immunity from suit, execution, attachment or other legal process on the grounds of sovereignty or otherwise in respect of any action or proceeding relating in any way to the Transaction Documents; the Issuer is in compliance in all material respects with all applicable provisions of Singaporean, Indonesian and Malaysian law; (xv) save as disclosed in the Information Memorandum, neither the Issuer nor any of its Subsidiaries has taken any corporate action nor, to the best of the knowledge and belief of the Issuer, have any other steps been taken or legal proceedings started or threatened in writing against the Issuer or any of its Subsidiaries for its or their bankruptcy, winding-up, dissolution, external administration or reorganisation (save for any internal corporate reorganisation of the Bumitama Group undertaken in the normal course of business) (whether by voluntary arrangement, scheme of arrangement or otherwise) or for the appointment of a receiver, administrator, administrative receiver, conservator, custodian, trustee or similar officer of it or of any or all of its or their assets or revenues; (xvi) (xvii) there are no strikes or other employment disputes (which could have a Material Adverse Effect) against the Issuer which are pending or, to the management board of the Issuer s knowledge, threatened in writing; the Issuer s execution of the Transaction Documents will constitute, and its exercise of its rights and performance of its obligations thereunder will constitute, private and commercial acts done and performed for private and commercial purposes; the Issuer has no material overdue tax liabilities other than those (a) which it has disclosed in the Information Memorandum prior to the date of the Transaction Documents or (b) which it is contesting in good faith; (xviii) all licences, consents, examinations, clearances, Page 17 of 34

18 (v) Events of default, dissolution event and enforcement event, where applicable (xix) (xx) filings, registrations and authorisations which are necessary to enable the Issuer and any of its Subsidiaries to own its assets and carry on its business are in full force and effect; the Information Memorandum (a) does not contain any statements or information which are false or misleading or from which there is a material omission and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful inquiry by the Issuer; and (b) contains all information that an investor would reasonably expect to find in the Information Memorandum; and such other representations and warranties customary for a transaction of this nature, as may be advised by ASL and are mutually agreed to by the Issuer. : The dissolution events (the Dissolution Events ) to include but not limited to the following: (i) (ii) (iii) (iv) the Issuer fails and/or is unable to (i) distribute Periodic Distributions; and/or (ii) pay the Exercise Price and/or any amount falling due under any of the Sukuk Musharakah or the Transaction Documents; or the Issuer fails to perform or observe any of its obligations or terms and conditions (other than payment obligation) under any of the Transaction Documents and the Sukuk Musharakah, and (except for such default which in the opinion of the Sukuk Trustee is not capable of remedy, then no such notice shall be required), such default shall continue for fortyfive (45) days after written notice requiring such default to be remedied shall have been given to the Issuer by the Sukuk Trustee; or an encumbrancer takes possession of, or a trustee, receiver, receiver and manager or similar officer is appointed in respect of the whole or substantial part of the business or assets of the Issuer or any of its Subsidiaries, or distress, legal process, sequestration or any form of execution is levied or enforced or sued out against the Issuer or any of its Subsidiaries or any security interest which may for the time being affect any of its assets becomes enforceable; or the Issuer or any of its Subsidiaries fails to satisfy any judgement (which could have a Material Adverse Effect) passed against it by any court of competent jurisdiction and no Page 18 of 34

19 (v) (vi) (vii) (viii) (ix) appeal against such judgement or no application for a stay of execution has been made to any appropriate appellate court within the time prescribed by law or such appeal or application for a stay of execution has been dismissed; or a resolution is passed or an order of a court of competent jurisdiction is made that the Issuer or any of its Subsidiaries be wound up or dissolved, otherwise than to dissolve or wind up a Subsidiary which is dormant or whereby the undertaking and assets of such Subsidiary are transferred to or otherwise vested in the Issuer or any of its Subsidiaries or for the purposes of or pursuant to and followed by a consolidation, amalgamation, merger or reconstruction, the terms of which shall have previously been approved in writing by an extraordinary resolution of a meeting of the Sukukholders; or the Issuer or any of its Subsidiaries is deemed unable to pay any of its debts as they fall due or suspend or threaten to suspend making payments with respect to all or any class of its debts unless the neglect or failure to pay is due to a bona fide dispute, which dispute has not been resolved or discharged within six (6) months from the commencement of the dispute; or where any other indebtedness of the Issuer or any of its Subsidiaries having a total aggregate value in excess of United States Dollar Seventy Five Million (USD75,000,000.00) becomes due and payable prior to its stated maturity by reason of any actual or potential default, event of default or the like (howsoever described) or where the security created for any other indebtedness becomes enforceable; or where there is a revocation, withholding or modification of any licence, authorisation or approval that could have a Material Adverse Effect; or where a scheme of arrangement under Section 176 of the Companies Act 1965 (or the equivalent legislation of Section 176 of the Companies Act 1965 in the jurisdiction of incorporation of the Issuer) has been instituted against the Issuer or any of its Subsidiaries; or any step is taken for the winding up, dissolution or liquidation of the Issuer or any of its Subsidiaries or a petition for winding up is presented against the Issuer or any of its Subsidiaries and the Issuer or any of its Subsidiaries has not taken any action in good faith to procure the withdrawal of, or to set aside or terminate such step or petition within forty-five Page 19 of 34

20 (x) (45) days from the date of commencement of such step or the service of such winding up petition or a winding up order has been made against the Issuer or any of its Subsidiaries and has not been set aside within forty-five (45) days from the date of such order; or all or a substantial portion any of the assets, undertakings, rights or revenue of the Issuer are seized, nationalised, expropriated or compulsorily acquired by or under the authority of any governmental body. For the purpose of this paragraph, references to substantial shall mean such value equivalent to or more than United States Dollar Seventy Five Million (USD75,000,000.00) (or its equivalent in any other currency or currencies); or such other Dissolution Event as advised by ASL and mutually agreed to by the Issuer. Upon the occurrence of a Dissolution Event, the Sukuk Trustee may, at its sole and absolute discretion, and shall, if so directed by an extraordinary resolution of the Sukukholders, declare (by giving notice in writing to the Issuer) that a Dissolution Event has occurred and that the Sukuk Trustee (i) is entitled to exercise the Purchase Undertaking and require the Obligor to purchase the Sukukholders undivided proportionate interest in the Musharakah Venture at the Exercise Price by executing the Sale Agreement whereupon the Exercise Price under the Sale Agreement is immediately due and payable in full in accordance with the terms of the Transaction Documents; (ii) declare that all amounts under the Sukuk Musharakah then outstanding be immediately due and payable; and (iii) the Musharakah Venture will be dissolved upon the exercise of the Purchase Undertaking and the Sukukholders shall not have any further rights or interests in the Musharakah Venture, save for entitlement for payment of the Exercise Price in full from the Obligor. (w) Covenants (i) Financial Covenants : The Issuer shall maintain the following financial covenants throughout the tenure of the Sukuk Programme: Finance to Equity Ratio ( F:E Ratio ) of not more than 1.75 times; The F:E Ratio is the ratio of indebtedness of Bumitama represented by: (i) all principal amounts outstanding under the Sukuk Musharakah; and Page 20 of 34

21 (ii) all other Financial Indebtedness; to the consolidated shareholders funds of Bumitama including, if any, preference equity, subordinated shareholders advances/ loans, non-controlling interests of Bumitama (if any), irredeemable convertible unsecured loan stocks of the Bumitama (if any) and retained earnings/ losses. The F:E Ratio shall exclude any unrealized gains or losses (either expensed or capitalized) in respect of foreign currency translation in Rupiah financial reporting and unrealized gains or losses from derivative transaction entered into in connection with protection against or benefit from fluctuation in any currency exchange rate, as stated in the Issuer s audited financial statements and provided always that if such unrealised gains or losses are included in the calculation of the F:E Ratio, the breach of the F:E Ratio would not adversely affect the Issuer s ability to repay the Sukuk Musharakah. The F:E Ratio shall be calculated and certified by the Issuer for each financial year during the tenure of the Sukuk Programme based on the latest audited consolidated accounts of Bumitama. For the avoidance of doubt, any double counting shall be disregarded. (ii) Information Covenants : The Issuer shall comply with all such applicable information covenants as may be agreed upon, including but not limited to the following: (i) (ii) (iii) (iv) deliver to the Sukuk Trustee as soon as they become available (and in any event within one hundred eighty (180) days of the end of each financial year) its audited financial statements and within ninety (90) days of the expiration of each half year period its unaudited financial statements for that period; deliver to the Sukuk Trustee any information which the Sukuk Trustee may reasonably require in order to discharge its duties and obligations under the applicable Transaction Documents relating to the Issuer s affairs to the extent permitted by law; deliver to the Sukuk Trustee any other accounts, report, notice, statement or circular issued to shareholders which the Sukuk Trustee shall at its discretion circulate the accounts, report, notice, statement or circular to the registered Sukukholders who fall within Schedules 6 and 7 of the CMSA; deliver to the Sukuk Trustee at least annually a certificate that the Issuer has complied with its obligations under the Transaction Documents and the terms and conditions of the Sukuk Page 21 of 34

22 (v) Programme and that there did not exist or had not existed, from the date the Sukuk Musharakah was first issued or date of the previous certificate as the case may be, any Dissolution Event or enforcement, where applicable and if such is not the case, to specify the same; the Issuer shall immediately inform the Sukuk Trustee in the event that the Issuer becomes aware of the following: (a) (b) (c) (d) (e) (f) any Dissolution Event or the happening of any event that has caused or could cause, one or more of the following: (i) any amount secured or payable under the Sukuk Musharakah to become immediately payable; (ii) the Sukuk Musharakah to become immediately enforceable; or (iii) any other right or remedy under the terms, provisions and covenants of the Transaction Documents have become immediately enforceable; any circumstance that has occurred that would materially prejudice the Issuer; any substantial change in the nature of the business of the Issuer; any change in withholding tax position or taxing jurisdiction of the Issuer; any change in the utilisation of proceeds of the Sukuk Musharakah; any other matter that may materially prejudice the interests of the Sukukholders; such other information covenants as may be advised by ASL and are mutually agreed to by the Issuer. (iii) Positive Covenants : The Issuer shall comply with all such applicable positive covenants as may be agreed upon, including but not limited to the following: (i) (ii) perform all its obligations and promptly comply with all applicable provisions of the Transaction Documents and terms and conditions of the Sukuk Programme; redeem in full all outstanding Sukuk Musharakah in accordance with the terms and conditions of the Transaction Documents (including but not Page 22 of 34

23 limited to redeeming the Sukuk Musharakah on the relevant Maturity Date(s) or any other date on which the Sukuk Musharakah are due and payable); (iii) (iv) (v) (vi) (vii) (viii) the Issuer shall at all times on reasonable request of the Sukuk Trustee execute all such further documents (in such form and substance to be mutually agreed) and do all such further acts reasonably necessary at any time or times solely to give full effect to the terms and conditions of the Transaction Documents. shall exercise reasonable diligence in carrying out its business in a proper and efficient manner which should ensure, among others, that all necessary approvals or relevant licenses are obtained; the Issuer shall promptly comply with all applicable laws in relation to the Transaction Documents including the provisions of the CMSA and/or the notes, circulars, conditions or guidelines issued by SC from time to time; at all times maintain a paying agent in Malaysia, and the Issuer shall cause and procure such paying agent to notify the Sukuk Trustee (through a facility agent) in the event the paying agent does not receive payment from the Issuer on the due dates as required under the Sukuk Musharakah; obtain, preserve, keep in force and effect and promptly renew from time to time all licences, rights, authorisations, approvals, consents and exemptions, registrations, recordings, filings or notarisations which are required under the applicable law or regulation including those necessary for the Issuer to own its assets, the carrying out of the businesses of the Issuer or to ensure the validity, enforceability or priority of its liabilities and obligations or the rights of the Sukuk Trustee, the Sukukholders or any other party under the Transaction Documents and shall comply with the terms and conditions of the same; at all times keep and maintain proper financial books and accounts in accordance with the relevant laws and to provide the Sukuk Trustee and any person appointed by it (e.g. auditors) access to such books and accounts within normal business hours, to the extent permitted by law upon no less than three (3) business days prior written notice from the Sukuk Trustee Page 23 of 34

24 requesting the same provided always that the Sukuk Trustee undertakes to keep such information to which it has access on a confidential basis; (ix) (x) (xi) (xii) utilise the issue proceeds from the Sukuk Musharakah for the purpose as represented herein and in the Information Memorandum; ensure that the terms in any of the applicable Transaction Documents do not contain any matter which is inconsistent with the provisions of the Information Memorandum; shall maintain an effective shareholding of at least 51% of PT. Bumitama Gunajaya Agro, PT. Bumitama Sawit Lestari, PT Bumitama Gunajaya Abadi, PT Windu Nabatindo Lestari, PT Windu Nabatindo Abadi and PT Karya Makmur Bahagia, and ensure that the said companies are at all times Subsidiaries of the Issuer during the tenure of the Sukuk Programme; and such other positive covenants as may be advised by ASL and are mutually agreed to by the Issuer. (iv) Negative Covenants : The Issuer shall not unless with the consent of the Sukuk Trustee: (i) (ii) (iii) (iv) cancel, surrender, transfer, assign, relinquish or otherwise dispose of any of its rights and interest under the Transaction Documents (except as permitted under the Transaction Documents); substantially change or cause or permit a substantial change to the nature or scope of its existing business or operations or suspend its existing business operations; add to, delete, vary, amend or substitute its memorandum and articles of association in any manner which may be materially prejudicial to the interests of the Sukukholders or could have a Material Adverse Effect; enter into a transaction (which for the avoidance of doubt does not include any transactions entered into pursuant to the Transaction Documents), whether directly or indirectly with interested persons unless: (a) such transaction shall be on terms that are no less favourable to the Issuer than those which could have been obtained in a comparable transaction from persons Page 24 of 34

25 (v) (vi) (vii) (b) who are not interested persons; and in respect of a transaction involving an aggregate payment or value equal to or greater than United States Dollar Seventy Five Million (USD75,000,000.00), the Issuer obtains certification from an independent adviser that the transaction is carried out on fair and reasonable terms; and PROVIDED that the Issuer certifies to the Sukuk Trustee (1) that the transaction complies with paragraph (a); (2) that the Issuer has received the certification referred to in paragraph(b) above; and (3) that the transaction has been approved by the majority of the board of directors or shareholders in a general meeting as the case may require; and (c) with respect to transactions constituting a recurrent related-party transaction of a revenue or trading nature ( RRPT ) or the like (howsoever described) which are provided for and permitted under the SGX listing rules; and PROVIDED that the Issuer certifies to the Sukuk Trustee (1) that the transaction complies with paragraph (a); (2) that the Issuer has obtained or renewed, where applicable, the shareholders mandate in accordance with the SGX listing rules; and (3) that the Issuer furnishes at least one (1) certificate to the Sukuk Trustee in respect of the RRPT contemplated under one shareholders mandate; without prior written consent of the Sukuk Trustee agree to any amendments to or any modification or waiver of, authorise any breach or proposed breach of, the terms of the Transaction Documents and will act at all times in accordance with any instructions of the Sukuk Trustee from time to time with respect to the Transaction Documents. Any such amendment, modification, waiver or authorisation made with the consent of the Sukuk Trustee shall be binding on the Sukukholders and, unless the Sukuk Trustee agrees otherwise, any such amendment or modification shall be notified by the Issuer to the Sukukholders; the Issuer shall not obtain or permit to exist any loans or advances from its shareholders or associated companies unless these loans and advances are subordinated to the Sukuk Musharakah; change the utilisation of proceeds from the issuance of the Sukuk Musharakah in any Page 25 of 34