ASSIGNMENT AGREEMENT
This Assignment Agreement ("Agreement") is made on 21 August~000, by and
between:
1. PT BANK PAR/BAS-BBD Indonesia, a limited liability company established
under the laws of the Republic of Indonesia, having its domicile at
Jakarta, Menara Mulia suite 1211, Jalan Gatot ▇▇▇▇▇▇▇ Kavling 9-11, in this
matter represented by Mr. ▇▇▇▇▇▇▇ Maveyraud, in his capacity as President
Director ("Assignor"); and
2. Everbloom International Technology, Pte Ltd. a company established under
the laws of Singapore, with its registered office at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
#▇▇-▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Science Park 1, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ("Assignee").
(The Assignor and the Assignee hereinafter referred to collectively as the
"Parties").
WHEREAS:
A. Pursuant to the Credit Agreement : Promissory Note Purchase Agreement and
Acknowledgement of Indebtedness Number 42 dated 25 August 1992 made before
Notary ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Sarjana Hukum, in Jakarta (further such
agreement,, together with any amendment, addendum, extension, renewal or
confirmation which maybe made thereto, shall be referred to as the "Credit
Agreement") between the Assignor as the Bank and PT. Randhoetatah Cemerlang
as the Bonrower, the Bank provided the Borrower with the following facility
- A Medium Term Loan in the principal amotmt of US$1,900,000.00 (United
States Dollars .: One million and nine hundred thousand);
B. The total outstanding of the Facility (calculated up to 31 July 2000) is as
follows: Principal " US$ 1,900,000.00 Overdue Interest - US$ 1,469,172.85
C. The Assignor has agreed to assign to and the Assignee has agreed to accept
an assignment of all ri~ts, rifles and interests of the Assignor under the
Transaction Documents (as defined below) all effective the Effective Date
(as defined below).
NOW THEREFORE, the Parties agree as follows:
1. Definitions and Interpretation
1.1. Definitions
In this Agreement unless the conext otherwise requires:
"Borrower" means PT Randhoetatah Cemerlang, a limited liability company
established under the laws of the Republic of Indonesia having its legal
domicile in Surabaya.
"Business Day" means a day other than a Saturday or Sunday on which banks are
open for general banking business in Jakarta; Surabaya for the purpose of
payment, Singapore and New York.
"Debt" means all amounts owing by the Borrower under or in connection with the
Transaction Documents including, without limitation, principal, interest fees,
expenses and other charges.
"Credit Agreement " means the Credit Agreement number 42 dated 25 August 1992
made before Notary ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Sarjana Hukum, in Jakarta (furffter such
agreement, together with any amendment, addendum, e~ension, renewal or
confirmation wtfich maybe made thereto).
"Effective Date"_means ninety (90) days after the date of this Agreement,
subject to the good funds received on the second payment as per Sale and
Purchase Agreement dated 21 August 2000.
"Insolvency Event"_in relation to a party means:
(a) except for the purposes of solvent reconstruction:
(i) an application being made or a valid resolution being passed tbr the
liquidation of the party or if a liquidator or provisional liquidator
is appointed in relation to the party; or
(ii) a receiver, receiver and manager, trustee or administrator or any
similar person is appointed in relation to the party or any of its
assets
(b) an application being made for the bankruptcy of a party or a party applying
for an order for suspension of its obligations to pay unsecured creditors
if that application is not withdrawn within 15 Business Days of the
application having been made; or
(c) anything analogous or having a substantially similar effi:ct to any of the
events described in paragraphs (a) and (b) occurs in relation to the party
or its assets.
"Security Documents" mean agreements and documents referred to in Annex A
attached hereto.
"Transaction Documents" mean the Assignment Agreement, the Credit Agreement ,
the Security Docmnents and all their amendments, renewals, extensions, and
supplements.
1.2. General Interpretation In this AgreemenL unless the context otherwise
requires:
(a) a reference to any legislation or legislative provision inchides any.
stattrtory modification or re-enactment o(pound) or legislative provision
substituted for, and any subordinate legislation under , that legislation
or legislative provision:
(b) the singular includes the plural and vice versa;
(c) a reference to an individual or person includes a corporation, firm,
partnership, joint venture, association, authority, mast, state or govern
and vice versa;
(d) a reference to recital or clause is to a r~ital or clause of-this
Agreement;
(e) a reference to any agreement or document is to that agreement or decrement
(and, where applicable, any of its provisions) as amended, novated,
restated or replaced from time to time;
(f) a reference to any party to this Agreement or any other document or
arrangement includes that party's executors, administrators, substitutes,
successors and permitted assigns;
(g) where an expression is defined, another part of speech or grammatical form
of that expression has a corresponding meaning; and
(h) a reference to 'US$ " is a reference to the lawful currency of the United
States of America; and
(i) a reference to time is to West Indonesian time.
1.3. Headings
In this Agreement headings are for convenience of reference only and do not
affect interpretation.
2. Assignment
With effect from the Effective Date the Assignor assigns and the Assignee
accepts an assignment of all fights, title and interests of the Assignor arising
under or in connection with the Transaction Documents. Notwithstanding, the
undertakings stipulated hereto; the assignment of all rights, title and
interests of the Assignor arising under or in connection wifla the Transaction
Documents shall be conditioned upon delivery of the Transaction Documents to the
Assignee.
3. Representations and Warranties
3.1. General representations and warranties
The Assignor and the Assignee each represents and warrants to the other that:
(a) (status) it is a company limited by shares incorporated, or taken to be
incorporated, and existing under the laws of the jurisdiction of its
incorporation;
(b) (power) it has full legal capacity, and power to enter into, exercise its
rights and performs its obligations under, this Agreement and that no Insolvency
Event has occurred in relation to it,
(c) (authorisation) all conditions mad things required by applicable law to be
fulfilled or done order:
(i) to enable it lawfully to enter into, under, this Agreement; and and
exercise its fights and perform its obligations
(ii) to make this Agreement admissible in evidence under the governing law
of this ,Agreement; have been fiflfilled or done;
(d) (obligations binding) this Agreement constitutes its valid and legaily
binding obligations, enforceable again~ it in accordance with its terms; and
(e)(no contravention) neither its execution of, nor its exercise of .its rights
or performance of its obligations under, this Agreement does or veil/contravene:
(i) any applicable law m which it or any of its property is subject or any
order of any government agency binding on it or any of its property;
(ii) any undertaking or instrument binding on it or any of its property;
(iii)or any provisions of its constituent documents.
3.2. Representations and warranties in relation to the Transaction Documents.
The Assignor represents and warrants to the Assignee that:
(a) it has not assigned all or part of its fights under the Transaction
Documents; and
(b) it has not other than as previously notified to the Assignee in writing:
(c) (i) made or consented to any amendment or variation to the Transaction
Documents;
(ii) waived or granted any time for performance by the Borrower of any term,
condition or covenant under the Transaction Documents; or
(iii)released, discharged, terminated or consented to the release, discharge or
termination of any of the obligations of the Borrower under the Transaction
Documents; and
(c) as of the Effective Date and by the assignment of the fights, title and
interests under the Transaction Documents to the Assignee the Assignor
shall have no further rights, title or interests, financial or otherwise
against the Borrower under or in connection with the Transaction Documents.
5.3. Continuing representations and warranties and effect of breach
The Assignor and the Assignee each represents and warrants to the other that
each of the representations and warranties made in clauses 3.1 and 3.2 is l~me
and accurate and not misleading at the date of this Agreement and will be true
and accurate and not misleading on each day after the date of this Agreement up
to and including the Effective Date. If in respect of either party (the
"Defaulting Party) any of the representations and warranties are not as at the
date of this Agreement or at any time betbre the Effective Date cease to be true
and accurate mid not misleading then the other party (the '~Non- defaulting
Party,") may by at least five Business Days written notice to the Defaulting
Party require the representation and warranty to be made true and accurate and
not misleading. If the Defaulting Party fails to make the representation and
warranty .true and accurate and not misleading within the time provided for in
the notice given by the Non-defitulting Party the Non-defaulting Party may by
written nhtice immediately terminate this Agreement in which case all
obligations of the Parties under this ,augreement (other than the obligation of
the Defaulting Party to pay any costs, losses, expenses and damages suffered or
incurred by the Non-defaulting Party as a result of the zennmation of this
Agreemerr 0 shall immediately cease. The', Parties hereby agree to waive the
application ~o this Agreement of article 1266 of the Indonesian Civil Code so
that this Agreement can be terminated without the need for judicial order.
4. Acknowledgements and Undertakings
4.1 Assignee's acknowledgement in relation to Credit Agreement
The Assignee acknowledges that the Borrower is in material -default of various
covenants under the Credit Agreement including, without limitation, the
obligation to make payments of principal and interest. The Assignee further
acknowledges that it is accepting the assignment of the rights, rifle and
interests under the Credit Agreement solely in reliam:e on its own
investigations of the creditworthiness of the Borrower and that the Assignor has
not made any representation or warranty regarding the current or fimtre ability
of the Borrower to comply with any payment or other obligations under the
Transaction Documents. In contemplation of the above the Assignee agrees that it
shall not be entitled to terminate this Agreement or othep,vise refuse to accept
assignment of the Transaction Documents on the Effective Date and make payment
for such assignment due to any or all of the fbllowing occurrences:
(a) the Assignee becoming aware of any information regarding the Borrower which
was previously unknown to the Assignee and which if it had been known would or
may have prevented the Assignee from agreeing to accept the assignment
contemplated by this Agreement;
(b) a deterioration in the financial capacity of the Borrower to make payment of
the Debt or its creditors in general;
(c) any change in the political, social or economic conditions existing in
Indonesia;
(d) an Insolvency Event or other litigation proceedings occumng in relation to
the Borrower;
(e) any change m the laws of Indonesia.
4.2. Assignor's acknowledgement in relation to Credit Agreement
The Assignor acknowledges and agrees that on the Effective Date, The Borrower
shall be automatically discharged and released from any and all o:f their
obligations thereunder to the Assignor. For the avoidance of doubt, obligations
of the Borrower to the Assignee under the Credit Agreement m conjunction
herewith shall not be discharged.
4.3. Undertakings of Assignor
The Assignor hereby undertakes and agrees with the Assignee that:
(a) before the Effective Date it shall not give notice declaring all outstanding
under the Credit Agreement to be immediately due and payable, commence or
initiate, individually or jointly with other party(ies~ any insolvency, or
bankruptcy or other litigmion proceedings against the Borrower in respect of the
Borrower's obligations to repay the Debt and shall therefbre continue to accrue
interest in respect of the Debt at the rate applicable under the Credit
Agreement as if all Faymenrs of the Debt had been made on their due date for
payment; and
(b) if as a result of an Insolvency Event occurring in respect of the Borrower
before the Effective Date a meeting of credkors of the Borrower is convened,
whether that me~'nmg is formal or informal, it shall consult with the Assignee
and act in good faith at the meeting of creditors in a manner that is consistent
with the spirit of this agreement; and
(c) provided that all payments due to the Assignor from the Assigmee under any
agreement between them have been made in full then after the Effective Date it
shall have no rights or claims whatsoever against the Assignee or the Borrower
under or m connection ▇▇▇▇ the Transaction Documents.
4.4 Undertakings of Assignee
The Assignee hereby undertakes and agrees with the Assignor that as soon as
possible after execution of this Agreement but in any event prior to the
Effective ]Date it shall procure execution by the Borrower and delivery to the
Assignor of the letter of acknowledgement, release and waiver m the form set out
in Recital I to this Agreement or in such other form as may be approved by the
Assignor.
5. Effective Date On the Effective Date, the following events shall occur.
(a) Both Assignor and Assignee shall submit to each other a statement
certifying, that all. representations and warranties and undertakings as
stated in 3 hereof are still applicable, true and complied with and that no
omission have been made to any facts which omission is made in order to
make the statement made herein not misleading;
(b) The Assignor shall deliver to the
Assignee all Transaction Documents.
6. Confidentiality
Each party, shall keep in confidence all information concerning-the other party,
including but not limited to information in connection with the Transaction
Documents and all other information obtained by it during the negotiation and
carryin g into effect of this Agreement and, except with the - prior written
consent of the other party., shall not disclose any of that information to any
person other than:
(a) as required by law or statute including reporting requirements to Bank
Indonesia or tax authority or by the order of a court having jurisdiction
over the party;
(b) to employees of the party, or a related corporation in order to facilitate
the transaction;
(c) to an independent adviser of the party to the extent required for the
adviser property to advise the party.;
(d) to a financial inspiration in connection with the application by the party
for financial accommodations relating to this Agreement;
(e) to an auditor of the party in order to make financial statement, balance
sheet and any other financial report of the party.;
(f) to any companies within the group of Paribas by the Seller.
And upon receiving such information eachparty shall -use its best endeavours to
ensure the confidentiality, provisions under this clause.
7. Notifications of Assignment
The Assignor hereby, however effective as of the Effective Date; authorises and
grants full powers to the Assignee, to give notice or to procure for the written
acknowledgement by the Borrower (among others, however not limited to, by
delivery of a notice in the form of Amaex B hereto) and any person as may" be
determined by the Assignee, with respect to this Assignment, and further to do
and perform all acts, deeds or things which are required or the Assignee may
consider necessary for or in relation to the making of such notification or the
procurement of such written acknowledgement.
8. Notices
Each notice, demand or other communications under this Agreement shall be in the
English language, shall be in writing and may be given by personal delivery, by
mail or by facsimile, effective upon receipt (if given by personal delivery.),
five days after mailing, first class postage pre-paid (if given mall), or one
Business Day at%er dispatch (if Nven by facsimile), addressed to the recipient
as follows or to such other address as the relevant party shall have advise, d
the other in writing:
If to PT BANK PARIBAS-BBD Indonesia Attention ' Mr. ▇▇▇▇▇▇▇
Maveyraud Address - Menara Mulia suite ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.▇-▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Facsimile - (021) 520 9878
If to Everbloom International
Technology, Pte Ltd Attention ' ▇▇. ▇▇▇▇▇▇ ▇▇▇▇ Address - ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
#▇▇-▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Facsimile - (65) 773
1766.
9. Governing Law and Jurisdiction
This Agreement is governed by and construed in accordance with the laws of the
Republic of Indonesia. The Parties submit to the non- exclusive jurisdiction of
the courts of South Jakarta and any courts that may hear appeals from those
courts in respect of any proceedings in connection with this Agreement.
10. General
10.1. Waiver
The non-exercising of or delay in exercising anypower or fight of a party does
not operate as a waiver of that power or right, nor does any sin~e exercise of a
power or fight preclude any other exercise of it or the exercise of any other
power or right. A power or rig;h~ may only be waived in wrkmg, signed by the
party to be bound by the waiver.
10.2. Amendment
This Agreement may only be amended or supplemented in wiring signed by all of
the Parties.
10.3. Counterparts
This Agreement may be executed in any number of counterparts and all of those
counterparts taken together constitute one and the same instrument.
10.4. No assignment
The rights and obligations of the Parties under this Agreement are not capable
of being assigned except with consent of both Parties.
10.5. Parties to be bound
This Agreement shall be valid and binding as of the date of signing by all the
Parties to this Agreement and shall not be terminated except as mutually agreed
by all Parties in writing or as otherwise stipulated in this Agreement.
IN WITNESS WHEREOF, the Parties have caused to be executed as of the date first
mention above.
PT BANK PARIBAS-BBD Indonesia
Name' Mr. ▇▇▇▇▇▇▇ Maveyraud
Title "President Director
Everbloom International
Technology Pte., Ltd.
Name -
Title "
Name 4 "
ANNEX. A
SECURITY DOCUMENTS
1. A Hak Tanggungan peringkat pertama (Right of Collateral of first rank) over
the Property described in Attachment A/1 pursuant to the Certificate of
Hypothec of first rank (currently called Certificate of Right of,Collateral
of first rank) number 89/1994 dated 20 June 1994, issued by the L~md
Registry Office (▇▇▇▇▇▇ Pertanahan) in Kabupaten Pasuruan, in conjunction
with the Deed of Hypothec of first rank (currently called a Deed of Right
of CoIlatera of first rank) dated 8 June 1994 number 298/Pws/1994 execute
ill the presence of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Hairul, ▇▇.▇▇., Land Deed Officer in
Pandaan, acting as Land Deed Officer (Pejabat Pembuat Akta Tanah) for all
kecamatan in Kabupate.n Pasuruan;
2. Continuing Personal Guarantee dated 25 August 1992 number 51 executed in
the present of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Sarjana Hukum, at that lime substitute of
▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Sarjana Hukum, Notary in Jakarta;
3. Fiduciary Transfer of Proprietary Rights for Security Purposes dated 25
August 1992 number 46 executed in the present of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Sarjana
Hukum, at that time substitute of ▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Sarjana Hukum,
Notary in Jakarta;
4. Fiduciary Transfer of Proprietary Rights for SecurityPurposes dated 25
August 1992 number 47 executed in the present of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Sarjana
Hukum, at that time substitute of ▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Sarjana Hukum,
Notary in Jakarta;
5. Assignment of Receivable dated 25 August 1992 number 48 executed in the
present of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Sarjana Hukum, at that time substitute of ▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Sarjana Hukum, Notary in Jakarta;
6. Surat Kuasa Unmk Menjual dated 25 August 1992: number 50 executed in the
present of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Sarjana Hukum, at that time substitute of ▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Sarjana Hukum, Notary in Jakarta;
Attachment 1
The Prooertv :
2. (two) plots of land Hak Guna Bangunan, located in Propinsi Jawa Timur,
Kabupaten Pasuruan, kecamatan Purwodadi, Desa Martopuro, each described in
-
(a) Certificate of Hak Guna Bang, arian Number 4/Desa Martopuro and Situation
Map Number 29 A/1991 dated 20 March 1991, comprising an area of 23.375 sqm.
(b) Certificate ofHak Guna Bangunan Number 5/Desa Mmrtopuro and Situation Map
Number 29 B/1991 dated 20 March 1991, comprising an area of 288.25 sqm.
Together with the buildings and its appartenances built and/or to be built on
said parcels of land, together also with all and anything which pursuaht to its
purpose, nature or the prevailing laws of the Republic of Indonesia shall be
deemed as inseparabe parts of said parcels of land or buildings (further shall
be referred to as the "Property").
ANNEX B
NOTICE OF ASSIGNMENT
To - PT. Randhoetatah Cemerlang
From - (1) Everbloom International Technology, Pte., Ltd (the Assignee) (2) PT.
BANK PARIBAS-BBD Indonesia (the Assignor)
Dear Sirs,
Credit Agreement Number 42 dated 25 August 1992, made before Notary ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, Sarjana Hukum, in Jakarta (further such agreement, together with any
amendment, addendum, extension, renewal or confirmation which maybe made
thereto, shall be referred to as the "Credit Agreement").
We refer to the Credit Agreement. Unless otherwise defined herein, terms used in
this notice shali have the same meaning as defined in the "Credit Agreement".
We hereby give you notice that, by an Assignment Agreement dated 21 August 2000,
the Assignor has assigned to the Assignee all its right% title, interest and
benefit as lender in and under the "Credit Agreement" in respect: of the advance
made by the Assignor under the Credit Agreement and also the security provided
under the Security Documents, in each case with effect on and from j, the
"Effective Date". (cent)
(cent)Z, _\ With effect from the Effective Date, all payments in respect
of principal, accrued ctQZ-r interest and all other sums payable to the Assignee
uncter the Credit Agreement and " the Security Documents shall be paid
directly to the Account number. Favouring with
We would appreciate if you could kindly execute and the attached form of
Acknowledgement and return to us within 5 (five) days after the date of receipt
of this Notice of Assignment.
Yours faithfully,
For and on behalf of
Everbloom International Technology Pte.,
Ltd.
(The Assignee) For and on behalf of PT. BANK PARIBAS-BBD Indonesia
(The Assign. Title: President Director
FORM OF ACKNOWLEDGEMENT
To - (I) Everbloom International Technology, Pte., Ltd.
Attention'▇▇. ▇▇▇▇▇▇ ▇▇▇▇.
(2) PT. BANK BARIBAS-BBD Indonesia
Attention 'Mr. ▇▇▇▇▇▇▇ Maveyraud.
We, PT. Randhoetatah Cemerlang, hereby acknowledge receipt of the Notice of
Assignment dated 21 August 2000 and agree to comply with the payment
instructions contained therein.
We confirm that the Credit Agreement and the Security Documents as supplemented
by the Assignment Agreement dated 21 August 2000 shall continue in,full force
and effect and remains our legal valid and binding obligations, enforceable
according to its terms.
We also confirm that PT. BANK PARIBAS-BBD Indonesia shall be released and
discharged from all its obligations as a lender under the Credit Agreement and
the Security Documents and that Everbloom International ,Technology, Pte.,Ltd
will assume such obligations as if it had originally been muned as a party to
the Credit Agreement and the Security Documents.
Capitalized terms not otherwise defined in this acknowledgement shall have the
same meaning as defined in the Assignment Agreement.
Yours faithfully,
For and on behalf of
By -
Title
Date
CEMERLANG