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APPENDIX A
INDEX OF DEFINED TERMS
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Except where the context requires otherwise, the following capitalised terms used in this Offering
Circular have the meanings set out below:
"Acquired Shares" means the shares in the Acquiree Companies acquired by Guthrie pursuant to the
Acquisition SPAs;
"Acquiree Companies" means, collectively, PT Anugerah Sumbermakmur, PT Minamas Gemilang,
PT Salim Sawitindo and PT Bhaskaramulti Permata, each a holding company incorporated in
Indonesia;
"Acquisition Escrow Account" means a bank account with ABN AMRO Bank, Jakarta Branch in
which the Share Vendors deposited U.S.$18 million for the benefit of the Share Purchasers in respect
of the Acquisition Escrow Representations;
"Acquisition Escrow Representations" means certain representations of the Share Vendors in the
Acquisition SPAs for which the Share Purchasers' remedies for a breach thereof consists of payment
out of the monies deposited in the Acquisition Escrow Account;
"Acquisition Termination Date" means the date upon which the monies in the Acquisition Escrow
Account will be released to the Share Vendors;
"Acquisition Facility" means the RM1.5 billion Islamic Al-Ijarah Al-Muntahiyah Bit-Tamlik
syndicated financial facility entered into by Guthrie to finance the Share Acquisition;
"Acquisition Facility Financiers" means the financial institutions which provided financing to
Guthrie under the Acquisition Facility;
"Acquisition Purchase Price" means the total purchase consideration of U.S.$368 million paid by
Guthrie to the Share Vendors for the Acquired Shares;
"Acquisition Recission Representations" means certain representations of the Share Vendors in the
Acquisition SPAs for which the Share Purchasers' remedies for a breach thereof consists of a recission
of the Acquisition SPAs;
"Acquisition SPAs" means the two sale and purchase agreements, the Group A SPA and the Group B
Acquisition SPA, dated 27th November, 2000 among Guthrie on the one hand and the Share Vendors
and IBRA on the other hand setting out the terms on which the Acquired Shares were sold to Guthrie;
"Adverse Claim" means a Lien, security interest, charge or encumbrance, or other right or claim in,
of or on any Person's assets or properties in favour of any other Person;
"Al-Ijarah Al-Muntahiyah Bit-Tamlik" means a lease over land which provides, in accordance with
certain Shariah principles, for the lessee to purchase the land from the lessor at the end of the lease
term;
"ASB" means Sekim Amanah Saham Bumiputera;
"Bank Negara Malaysia" means Bank Negara Malaysia, a body corporate established under the
Central Bank of Malaysia Act, 1958 of Jalan Dato’ Onn, 50480 Kuala Lumpur;
"Business Day" means a day (other than Saturday or Sunday) on which commercial banks and foreign
exchange markets are open for business and settle payments in Labuan, Kuala Lumpur, Singapore,
London and New York City;
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"Call Option" has the meaning set forth in Condition 7(1)(a);
"Capital Expenditure" means any repair, replacement, upgrading and other expenditure which could
be regarded capital expenditure under Malaysian GAAP;
"Certificate Purchase Agreement" means the purchase agreement dated 14th December, 2001
among Guthrie, the SPV, the Trustee and the Initial Purchasers pursuant to which the Trustee agrees
on behalf of the Trust to issue and sell and the Initial Purchasers agree to purchase the Certificates
upon the terms therein;
"Certificateholders" means collectively the Series A Certificateholders and the Series B
Certificateholders and "Certificateholder" means any one of them, as the context requires;
"Certificates" or "Sukuk" means collectively the Series A Certificates and the Series B Certificates
and "Certificate" or "Suk'kun" means any one of them, as the context requires, and any reference to
a "Series" of Certificates shall be deemed to be a reference to either the Series A Certificates or the
Series B Certificates, as the context requires;
"Closing Date" means 24th December, 2001 or such other date on which the Certificates are issued;
"Collections" means, for each Profit Accumulation Period, all moneys collected or received from
Guthrie in respect of its obligation to make payments under the Lease Agreement during such Profit
Accumulation Period and all proceeds therefrom;
"Conditions" means the terms and conditions applicable to the Certificates, in the form set out in the
section headed "Conditions of the Certificates", as the same may, from time to time, be modified in
accordance with the Trust Agreement and any reference to a particular numbered Condition shall be
construed accordingly;
"CWSS" means Citibank Worldwide Securities Services;
"DxP" means a type of oil palm seed produced by crossing Dura (female inflorescence) with Pisifera
(male pollen) as opposed to seeds which are cloned;
"Debt Service Coverage Ratio" is the ratio of (a) the Sum of the Operational Cashflow, Cashflow
From Investments and Cashflow From Financing plus the cashflow balance as reflected in the second
most recent half-yearly and year-end consolidated financial statements of the Group, divided by (b)
the Total Outflow from Financing, in each case calculated based on the most recent half-yearly and
year-end consolidated financial statements of the Group available on the date of determination;
"Definitive Certificates" means collectively the Series A Definitive Certificates and the Series B
Definitive Certificates;
"Deposit Date" means the date falling one month prior to each Periodic Distribution Date or, if such
day not a Business Day, the following Business Day;
"Depository" means Labuan International Financial Exchange Inc, in its capacity as the custodian and
clearing system for the Certificates;
"Deposits, Bank Balances and Cash" means the value reflected under the Deposits, Bank Balances
and Cash line item in the most recent audited consolidated balance sheet of the Group;
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"Dissolution Date" means a Scheduled Dissolution Date or an Unscheduled Dissolution Date, as the
context requires;
"Dissolution Distribution Amount" has the meaning set forth in Condition 7(1);
"Dissolution Events" has the meaning set forth in Condition 10;
"Eligible Investments" means Islamic time deposits (denominated in U.S. dollars) of depository
institutions approved by the Trustee (which may include the Trustee);
"Event of Bankruptcy" means, with respect to any Person,
(a)
that such Person or any subsidiary of such Person:
(i)
shall generally not pay its debts as such debts become due; or
(ii)
shall admit in writing its inability to pay its debts generally; or
(iii)
shall make a general assignment for the benefit of creditors;
(b)
any proceeding shall be instituted by or against such Person or any subsidiary of such Person
seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation, winding up,
reorganisation, arrangement, adjustment, protection, relief or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganisation or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver, trustee or other
similar official for it or any substantial part of its property under any bankruptcy, insolvency,
reorganisation or similar law; or
(c)
such Person shall take any corporate, partnership or other similar appropriate action to
authorise any of the actions set forth in the preceding clauses (a) or (b);
"Extraordinary Resolution" has the meaning set forth in paragraph 18 of the Fourth Schedule to the
Trust Agreements;
"FX Controller" means Malaysian Controller of Foreign Exchange;
"GCE" means Guthrie Corridor Expressway Sdn. Berhad, a wholly-owned Malaysian subsidiary of
Guthrie;
"GCPC" means the Guthrie Corridor Planned Communities;
"Gearing Ratio" is the ratio of (a) Indebtedness for Borrowed Money minus the sum of Deposits,
Bank Balances and Cash, divided by (b) Shareholders' Funds, in each case calculated based on the
most recent half-yearly and year-end consolidated financial statements of the Group available on the
date of determination;
"Global Certificates" means collectively the Series A Global Certificate and the Series B Global
Certificate and "Global Certificate" means either one of them, as the context requires;
"GFSB" means Guthrie Furniture Sdn. Bhd., a wholly-owned Malaysian subsidiary of Guthrie;
"Government" means the government of Malaysia;
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"GPAS" means Guthrie Plantation & Agricultural Services Sdn. Berhad, a wholly-owned Malaysian
subsidiary of Guthrie;
"GPDH" means Guthrie Property Development Holding Sdn Berhad, a Malaysian subsidiary of
Guthrie;
"Group" means, collectively, Guthrie, it subsidiaries and its associated companies;
"Group A Acquisition SPA" means the Acquisition SPA pursuant to which Guthrie obtained an
interest in the Group A Companies;
"Group A Companies" means a group of Indonesian companies involved in the oil palm business and
as to which PT Salim Sawitindo and PT Bhaskaramulti Permata are parent companies;
"Group B Acquisition SPA" means the Acquisition SPA pursuant to which Guthrie obtained an
interest in the Group B Companies;
"Group B Companies" means a group of Indonesian companies involved in the oil palm business and
as to which PT Anugerah Sumbermakmur and PT Minamas Gemilang are parent companies;
"Guthrie" means Kumpulan Guthrie Berhad, a company incorporated in Malaysia;
"Guthrie Corridor Expressway" means the 25 km tolled expressway to be built and operated by
Guthrie Corridor Expressway Sdn. Berhad, a wholly-owned Malaysian subsidiary of Guthrie linking
Shah Alam to Kuang, Selangor;
"ha" means hectare or hectares, as the context requires;
"HRU" means HRU Sdn. Berhad., a Malaysian subsidiary of Guthrie;
"IBRA" means the Indonesian Bank Restructuring Agency, an agency of the Indonesian Government
established at the beginning of 1998 as the primary agency to oversee the rehabilitation of the
financial sector in Indonesia;
"Ijarah" means the Shariah principle of Al-Ijarah Al-Muntahiyah Bit-Tamlik;
"Indebtedness for Borrowed Money" means any indebtedness (whether present or future or secured
or unsecured) of the Group for or in respect of any of the following:
(a)
monies borrowed from any person and debit balances at any bank or any other financial
institution;
(b)
amounts raised by acceptance under any acceptance credit facility;
(c)
the amount of any liability evidenced by bonds, debentures, notes, loan stock, commercial
paper or similar debt instruments;
(d)
rental payments due under any lease entered into primarily for the purpose of raising or
obtaining finance which are, in accordance with accepted accounting principles, classified as
capital or finance leases; and
(e)
all deferred obligations to reimburse any lender(s) in respect of amounts paid or advanced
under any letter of credit or similar instrument issued not in the ordinary course of trade.
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but excluding any such indebtedness from one member of the Group to another;
"Initial Purchasers" means Bank Islam (L) Ltd, Maybank International (L) Ltd, Shamil Bank of
Bahrain E.C., Bumiputra Commerce Bank (L) Ltd, AMMB International (L) Ltd, ABN AMRO Bank
N.V., Labuan Branch, Bank Muamalat Malaysia Berhad, Labuan Offshore Branch, and RHB Bank (L)
Limited as initial purchasers of the Certificates under the Certificate Purchase Agreement;
"Insurance Policies" means collectively the Series A Insurance Policies and/or the Series B Insurance
Policies, as the context requires;
"Investment Company Act" means the United States Investment Company Act of 1940, as amended;
"KLSE" means Kuala Lumpur Stock Exchange;
"km" means kilometre or kilometres, as the context requires;
"Labuan" means the Federal Territory of Labuan, Malaysia;
"Land Parcels" means collectively the Series A Land Parcels and/or the Series B Land Parcels, as the
context requires;
"Law" means any law (including common law), constitution, statute, ordinance, treaty, regulation,
rule, guidelines, directives, practice notes, order, injunction, writ, decree, judgement or award of any
Official Body;
"Lease Agreements" means collectively the Series A Lease Agreement and the Series B Lease
Agreement, and "Lease Agreement" means either one of them, as the context requires;
"Lease Payments" means collectively the Series A Lease Payments and/or the Series B Lease
Payments, as the context requires;
"LFX" means Labuan International Financial Exchange Inc, on which the Certificates will be listed;
"LIBOR" means the London inter-bank offered rate for U.S. dollar deposits;
"Lien" means any interest in property securing an obligation owed to, or a claim by, any Person other
than the owner of the property, whether such interest is based on Law or contract, whether or not such
interest is recorded or perfected and whether or not such interest is contingent upon the occurrence of
some future event or events or the existence of some future circumstance or circumstances, and
includes any mortgage, charge, pledge, lien, security interest or other similar encumbrance;
"Malaysian GAAP" means generally accepted accounting principles in effect from time to time in
Malaysia as approved by the Malaysian Accounting Standards Board under the Financial Reporting
Act 1997;
"Malaysian Ringgit", "Ringgit", "RM" and "sen" each means the lawful currency for the time being
of Malaysia;
"manday" means the amount of work done by one man working for one day;
"MARC" means MARC International Ltd, a Labuan-based international rating agency, and its
successors and assigns;
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"Official Body" means any government or any agency, authority, bureau, central bank, commission,
department or instrumentality of any such government or political subdivision, or any court, arbitrator,
regulatory body, administrative agency or other tribunal having or purporting to have jurisdiction over
a Person;
"Operating Expenses" means all actual costs incurred by the Group, including without limitation, all
(i) costs of plantation raw materials, (ii) costs of plantation labour, (iii) payments in the nature of
indemnities, increased costs, disbursements and fees (iv) fees, royalties, and similar amounts payable
by the Group for technical assistance and the use of technical processes, (v) salaries and other
employment costs, (vi) administrative, marketing and overhead expenses, (vii) insurance premiums
payable under insurance policies, (viii) expenses for the maintenance, repair or replacment of assets
(other than expenses which constitute Capital Expenditure), (ix) all management, consultancy,
advisory, legal, secretarial, tax or similar fees payable to any person and (x) other liabilities and
expenses of revenue incurred in the ordinary course of the Group's business or under any contract or
agreement;
"outstanding" means in relation to the Certificates of each Series all the Certificates of such Series
issued other than:
(a)
those Certificates which have been redeemed;
(b)
those Certificates in respect of which the date for redemption has occurred and the redemption
moneys have been duly paid to the Trustee or to the Transaction Administrator (and where
appropriate notice to that effect has been given to the Certificateholders) and remain available
for payment on the relevant Certificates;
(c)
those Certificates which have been purchased and cancelled;
(d)
those Certificates which have become void;
(e)
those mutilated or defaced Certificates which have been surrendered and cancelled and in
respect of which replacements have been issued;
(f)
(for the purpose only of ascertaining the principal amount of the Certificates outstanding and
without prejudice to the status for any other purpose of the relevant Certificates) those
Certificates which are alleged to have been lost, stolen or destroyed and in respect of which
replacements have been issued; and
(g)
the Global Certificate representing the Certificates of such Series to the extent that it shall
have been exchanged for such Certificates in definitive form pursuant to its provisions;
PROVIDED THAT for each of the following purposes, namely:
(i)
the right to attend and vote at any meeting of the Certificateholders or any of them;
(ii)
the determination of how many and which Certificates are for the time being outstanding for
the purposes of Conditions 10 and 11 and paragraphs 2 and 5 of the Fourth Schedule to the
Trust Agreement relating to such Series;
(iii)
any discretion, power or authority which the Trustee is required, expressly or impliedly, to
exercise in or by reference to the interests of the Certificateholders or any of them; and
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(iv)
the determination by the Trustee whether any event, circumstance, matter or thing is, in its
opinion, materially prejudicial to the interests of the Certificateholders or any of them,
those Certificates (if any) which are for the time being held by, for the benefit of, or on behalf of,
Guthrie or any other member of the Group shall (unless and until ceasing to be so held) be deemed not
to remain outstanding;
"Partial Deposit Dates" means any or all of the Series A Partial Deposit Date and the Series B Partial
Deposit Date, as the context requires;
"Periodic Distribution Amount" has the meaning set forth in Condition 5;
"Periodic Distribution Date" has the meaning set forth in Condition 5;
"Person" means an individual, partnership, limited liability company, corporation, joint stock
company, trust (including a business trust), unincorporated association, joint venture, firm, enterprise,
Official Body or any other entity;
"PNB" means Permodalan Nasional Bhd;
"Potential Dissolution Event" means an event which, with the giving of notice, lapse of time,
determination of materiality or fulfilment of any other applicable condition (or any combination of the
foregoing), would constitute a Dissolution Event;
"Profit Accumulation Period" has the meaning set forth in Condition 5;
"Purchase Agreements" means collectively the Series A Purchase Agreement and the Series B
Purchase Agreements, and "Purchase Agreement" means either one of them, as the context requires;
"Put Option" has the meaning set forth in Condition 7(1)(a);
"Regulation S" means Regulation S under the Securities Act;
"Representatives" means Bank Islam (L) Ltd and ABN AMRO Bank N.V., Labuan Branch as
representatives of the initial purchasers under the Certificate Purchase Agreement;
"Reserve Accounts" means collectively the Series A Reserve Account and the Series B Reserve
Account, and "Reserve Account" means either one of them, as the context requires;
"Rp" and "Rupiah" each means the lawful currency for the time being of Indonesia;
"Scheduled Dissolution" has the meaning set forth in Condition 7(1);
"Scheduled Dissolution Dates" means collectively the Series A Scheduled Dissolution Date and the
Series B Scheduled Dissolution Date, and "Scheduled Dissolution Date" means either one of them,
as the context requires;
"Securities Act" means the U.S. Securities Act of 1933, as amended;
"Security Interest" means any mortgage, pledge, lien, charge, assignment, hypothecation or security
interest or any other agreement or arrangement having the effect of conferring security;
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"Sellers" means collectively the Series A Seller and the Series B Sellers and "Seller" means any one
of them, as the context requires;
"Series A Certificateholders" or "Series A Sukukholders" means the several persons who are for
the time being holders of the Series A Certificates (being, if and to the extent that the Series A
Certificates are in definitive form, the bearers thereof and, if and to the extent that the Series A
Certificates are represented by the Series A Global Certificate, the persons for the time being shown
in the records of the Depository as being holders of the Series A Certificates) in which regard any
certificate or other document issued by the Depository as to the outstanding principal amount of
Series A Certificates standing to the account of any person shall be conclusive and binding for all
purposes (other than for the purposes of payments in respect thereof the right to which shall be vested,
as against the Trustee, solely in the bearer of the Series A Global Certificate in accordance with and
subject to their respective terms and the terms of the Series A Trust Agreement, the Conditions and
the Global Certificate) and for which purpose "Series A Certificateholders" means the bearer of the
Series A Global Certificate; and the words "holder" and "holders" and related expressions shall
(where appropriate) be construed accordingly;
"Series A Certificates" means the U.S.$50,000,000 Trust Certificates due 2004, Series A to be issued
by the Trust on the Closing Date and constituted by the Trust Agreement or the outstanding balance or
outstanding principal thereof for the time being or a specific portion thereof and includes any
replacement for Series A Certificates issued pursuant to Condition 12 being in definitive or global
form, as the context may require;
"Series A Definitive Certificates" means the bearer certificates in definitive form to be issued in
respect of the Series A Certificates pursuant to, and in circumstances specified in, the provisions of
the Series A Trust Agreement and includes any replacements for Series A Definitive Certificates
issued pursuant to Condition 12;
"Series A Global Certificate" means the global certificate in respect of the Series A Certificates to be
issued by the Trust pursuant to the provisions of the Series A Trust Agreement in the form or
substantially in the form set out in the First Schedule to the Series A Trust Agreement and includes
any replacements for the Series A Global Certificate issued pursuant to Condition 12;
"Series A Insurance Policies" means the customary insurance policies required to be maintained by
Guthrie as Service Agent in respect of the Series A Land Parcels pursuant to the Series A Service
Agency Agreement;
"Series A Land Parcels" means the Sungai Dingin estate located in the State of Kedah, Malaysia
with an area of approximately 4,266 ha and a current market value of approximately RM123,710,000
(approximately U.S.$32,555,263) and the Simpang Rengam Estate located in the State of Johor,
Malaysia with an area of approximately 1,170 ha and a current market value of approximately
RM76,000,000 (approximately U.S.$20,000,000.00), each owned by Kumpulan Jerai Sdn Bhd;
"Series A Lease Agreement" means collectively (i) the lease agreement dated 19th December, 2001
between the SPV and Guthrie pursuant to which the SPV and Guthrie have agreed to enter into
several six-month leases, with the first such lease beginning on the Closing Date and the last such
lease terminating on the Series A Scheduled Dissolution Date and (ii) each such six-month lease,
under which the Series A Land Parcels are leased to Guthrie, and "term" of lease shall refer to the
period from the commencement of the first such six-month lease to the termination of the last such
six-month lease;
"Series A Lease Payments" means the payments which Guthrie is obliged to make to the SPV
pursuant to the Series A Lease Agreement in respect of the lease of the Series A Land Parcels between
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the Closing Date and the Series A Scheduled Dissolution Date and the purchase of the Series A Land
Parcels on the Dissolution Date in respect of the Series A Certificates, all as described in the Series A
Lease Agreement;
"Series A Partial Deposit Dates" means the dates falling five, four, three, two and one month prior to
the Series A Scheduled Dissolution Date (or, if any such date is not a Business Day, the following
Business Day) and "Series A Partial Deposit Date" means any one of such dates, as the context
requires;
"Series A Purchase Agreement" means the Purchase Agreement dated 19th December, 2001
between the SPV and the Series A Seller pursuant to which the SPV purchased the Series A Land
Parcels from the Series A Seller;
"Series A Reserve Account" means the U.S. dollar account with ABN AMRO Bank N.V., Labuan
Branch maintained and operated by the Transaction Administrator on behalf of the Trustee and into
which at all times shall be deposited an amount equal to the amount payable on the Series A
Certificates on the next Periodic Distribution Date;
"Series A Scheduled Dissolution Date" means the Periodic Distribution Date falling in December,
2004;
"Series A Seller" means Kumpulan Jerai Sdn Bhd, a company incorporated in Malaysia;
"Series A Service Agency Agreement" means the Series A Service Agency Agreement, dated 19 th
December, 2001, among the SPV, Guthrie, the Trustee and the Transaction Administrator;
"Series A Transaction Account" means the U.S. dollar account with ABN AMRO Bank N.V.,
Labuan Branch maintained and operated by the Transaction Administrator on behalf of the Trustee
and into which Guthrie shall remit the payments due under the Series A Lease Agreement;
"Series A Trust" means the trust created by the Trustee over the Series A Trust Assets in favour of
the Series A Certificateholders pursuant to the Series A Trust Agreement;
"Series A Trust Agreement" means the Series A Trust Agreement dated 19th December, 2001 made
between, among others, the SPV and the Trustee and pursuant to which the Certificates are
constituted;
"Series A Trust Assets" means collectively the SPV's rights, title, interest and benefit, present and
future, in respect of the Series A Land Parcels, Series A Lease Agreement, Series A Lease Payments,
Series A Insurance Policies, Series A Reserve Account, Series A Service Agency Agreement and
Series A Transaction Account and proceeds of the foregoing or any part thereof, as the context
requires;
"Series B Certificateholders" or "Series B Sukukholders" means the several persons who are for
the time being holders of the Series B Certificates (being, if and to the extent that the Series B
Certificates are in definitive form, the bearers thereof and, if and to the extent that the Series B
Certificates are represented by the Series B Global Certificate, the persons for the time being shown in
the records of the Depository as being holders of the Series B Certificates) in which regard any
certificate or other document issued by the Depository as to the outstanding principal amount of
Series B Certificates standing to the account of any person shall be conclusive and binding for all
purposes (other than for the purposes of payments in respect thereof the right to which shall be vested,
as against the Trustee, solely in the bearer of the Series B Global Certificate in accordance with and
subject to their respective terms and the terms of the Series B Trust Agreement, the Conditions and
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the Global Certificate) and for which purpose "Series B Certificateholders" means the bearer of the
Series B Global Certificate; and the words "holder" and "holders" and related expressions shall
(where appropriate) be construed accordingly;
"Series B Certificates" means the U.S.$100,000,000 Trust Certificates due 2006, Series B to be
issued by the Trust on the Closing Date and constituted by the Trust Agreement or the outstanding
balance or outstanding principal thereof for the time being or a specific portion thereof and includes
any replacement for Series B Certificates issued pursuant to Condition 12 being in definitive or global
form, as the context may require;
"Series B Definitive Certificates" means the bearer certificates in definitive form to be issued in
respect of the Series B Certificates pursuant to, and in circumstances specified in, the provisions of
the Series B Trust Agreement and includes any replacements for Series B Definitive Certificates
issued pursuant to Condition 12;
"Series B Global Certificate" means the global certificate in respect of the Series B Certificates to be
issued by the Trust pursuant to the provisions of the Series B Trust Agreement in the form or
substantially in the form set out in the First Schedule to the Series B Trust Agreement and includes
any replacements for the Series B Global Certificate issued pursuant to Condition 12;
"Series B Insurance Policies" means the customary insurance policies required to be maintained by
Guthrie as Service Agent in respect of the Series B Land Parcels pursuant to the Series B Service
Agency Agreement;
"Series B Land Parcels" means the (i) Bukit Badak estate located in the State of Johor, Malaysia,
owned by Kumpulan Linggi Sdn Bhd, with an area of approximately 3,245 ha and a current market
value of approximately RM120,000,000 (approximately U.S.$31,578,947), (ii) Yong Peng estate
located in the State of Johor, Malaysia, owned by Kumpulan Kamuning Sdn Bhd, with an area of
approximately 3,386 ha and a current market value of approximately RM169,100,000 (approximately
U.S.$44,473,684) and (iii) the Padang Buluh Estate located in the State of Kedah, Malaysia, owned by
Kumpulan Jerai Sdn Bhd, with an area of approximately 2,035.32 ha and a current market value of
approximately RM91,590,000 (approximately U.S.$24,102,631);
"Series B Lease Agreement" means collectively (i) the lease agreement dated 19th December, 2001
between the SPV and Guthrie pursuant to which the SPV and Guthrie have agreed to enter into
several six-month leases, with the first such lease beginning on the Closing Date and the last such
lease terminating on the Series B Scheduled Dissolution Date and (ii) each such six-month lease,
under which the Series B Land Parcels are leased to Guthrie, and "term" of lease shall refer to the
period from the commencement of the first such six-month lease to the termination of the last such
six-month lease;
"Series B Lease Payments" means the payments which Guthrie is obliged to make to the SPV
pursuant to the Series B Lease Agreement in respect of the lease of the Series B Land Parcels between
the Closing Date and the Series B Scheduled Dissolution Date and the purchase of the Series B Land
Parcels on the Dissolution Date in respect of the Series B Certificates, all as described in the Series B
Lease Agreement;
"Series B Partial Deposit Dates" means the dates falling five, four, three, two and one month prior to
the Series B Scheduled Dissolution Date (or, if any such date is not a Business Day, the following
Business Day) and "Series B Partial Deposit Date" means any one of such dates, as the context
requires;
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"Series B Purchase Agreements" means the three Purchase Agreements dated 19th December, 2001
between the SPV and each of the Series B Sellers pursuant to which the SPV purchased the Series B
Land Parcels from the Series B Sellers;
"Series B Reserve Account" means the U.S. dollar account with ABN AMRO Bank N.V., Labuan
Branch maintained and operated by the Transaction Administrator on behalf of the Trustee and into
which at all times shall be deposited an amount equal to the amount payable on the Series B
Certificates on the next Periodic Distribution Date;
"Series B Scheduled Dissolution Date" means the Periodic Distribution Date falling in December,
2006;
"Series B Sellers" means collectively Kumpulan Jerai Sdn Bhd, Kumpulan Linggi Sdn Bhd and
Kumpulan Kamuning Sdn Bhd, each a company incorporated in Malaysia;
"Series B Service Agency Agreement" means the Series B Service Agency Agreement, dated 19 th
December, 2001, among the SPV, Guthrie, the Trustee and the Transaction Administrator;
"Series B Transaction Account" means the U.S. dollar account with ABN AMRO Bank N.V.,
Labuan Branch maintained and operated by the Transaction Administrator on behalf of the Trustee
and into which Guthrie shall remit the payments due under the Series B Lease Agreement;
"Series B Trust" means the trust created by the Trustee over the Series B Trust Assets in favour of
the Series B Certificateholders pursuant to the Series B Trust Agreement;
"Series B Trust Agreement" means the Series B Trust Agreement dated 19th December, 2001 made
between, among others, the SPV and the Trustee and pursuant to which the Certificates are
constituted;
"Series B Trust Assets" means collectively the SPV's rights, title, interest and benefit, present and
future, in respect of the Series B Land Parcels, Series B Lease Agreement, Series B Lease Payments,
Series B Insurance Policies, Series B Reserve Account, Series B Service Agency Agreement and
Series B Transaction Account and proceeds of the foregoing or any part thereof, as the context
requires;
"Service Agency Agreements" means the Series A Service Agency Agreement and the Series B
Service Agency Agreement;
"Service Agent" means Guthrie in its capacity as Service Agent under the Service Agency
Agreements;
"Share Acquisition" means the acquisition of the Acquired Shares by Guthrie from the Share
Vendors in accordance with the Acquisition SPAs;
"Share Purchasers" means collectively Guthrie International Investments (L) Limited and Laverton
Holdings (Mauritius) Limited, each a company incorporated in Malaysia;
"Share Reserve Account" means the distributable amounts under the share reserve accounts as
reflected in the most recent half-yearly and year-end consolidated financial statements of the Group;
"Share Vendors" means PT Holdiko Perkasa and PT Gemahripah Pertiwi, each a special purpose
vehicle set up by IBRA to manage and dispose of interests in certain Indonesian companies and to
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settle the loan obligations of the Salim group of companies, one of the largest conglomerates in
Indonesia, to the Indonesian government;
"Shareholders' Funds" means the value reflected under the Shareholders' Funds line item in the most
recent audited consolidated balance sheet of the Group;
"SPV" means First Global Sukuk Inc., a special purpose company incorporated in Labuan, Malaysia
under the Offshore Companies Act, 1990;
"SPV Administration Agreement" means the SPV Administration Agreement dated 19th December,
2001 made between the SPV and the SPV Administrator;
"SPV Administrator" means BIMB International Islamic Trust (Labuan) Sdn Bhd as SPV
Administrator under the SPV Administration Agreement;
"Sukuk" see "Certificates" above;
"Sukuk Proceeds Account" means the U.S. dollar account with ABN AMRO Bank N.V., Labuan
Branch maintained and operated by the Transaction Administrator on behalf of the Trustee and into
which the net proceeds from the issue of the Certificates will be deposited on the Closing Date;
"Sukukholders" means collectively the Series A Sukukholders and the Series B Sukukholders and
"Sukukholder" means any one of them, as the context requires;
"Sum of the Operational Cashflow, Cashflow From Investments and Cashflow From Financing"
means the cumulative cashflow available for debt service for the preceding 12 months, being the
aggregate of:
(a)
all income received by the Group and any other receipts of capital or revenue nature under any
contract or agreement in relation to the Group's business operations during such fiscal year;
(b)
returns on Eligible Investments received by the Group during such fiscal year;
(c)
all monies deposited in the Reserve Accounts and Transaction Accounts at the end of such
fiscal year;
(d)
proceeds of insurance claims received during such fiscal year less:
(i)
Operating Expenses;
(ii)
Capital Expenditure (unless fully funded by the Issuer's shareholders or the credit
balance in the Share Reserve Account); and
(iii)
tax paid by the Group during such fiscal year;
"Taxes" means any present or future taxes, levies, imports, duties, fees, assessments or other charges
of whatever nature, imposed by Labuan or by any department, agency or other political subdivision or
taxing authority thereof or therein, and all interest, penalties or similar liabilities with respect thereto;
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"Total Outflow from Financing" means the aggregate of:
(a)
all financing costs and fees; and
(b)
all debt service payments,
paid during each fiscal year;
"Trading Agent" means an entity or individual licensed by LFX to carry out LFX’s functions and
responsibilities for trading, who is well versed and experienced in the business of trading of securities
or financial instruments, and whose roles and responsibilities include, amongst others (i) conducting
trading on behalf of investors, (ii) ensuring that their client’s transaction is within their prescribed
trading limit, (iii) ensuring that all trades done are settled accordingly and (iv) providing investment
advice for new and current clients;
"Transaction Accounts" means collectively the Series A Transaction Account and the Series B
Transaction Account, and "Transaction Account" means either one of them, as the context requires;
"Transaction Administration Agreement" means the Transaction Administration Agreement dated
19th December, 2001 among Guthrie, the Trustee and the Transaction Administrator appointing the
Transaction Administrator as transaction administrator in respect of the Certificates;
"Transaction Administrator" means ABN AMRO Bank N.V., Labuan Branch in its capacity as
Transaction Administrator in respect of the Certificates under the Transaction Administration
Agreement;
"Transaction Documents" means the Purchase Agreements, the Lease Agreements, the Transaction
Administration Agreement, the Trust Agreements, the Certificate Purchase Agreement, the SPV
Administration Agreement, the Certificates and any other agreements and documents delivered or
executed in connection therewith;
"Trust Agreements" means collectively the Series A Trust Agreement and the Series B Trust
Agreement and "Trust Agreement" means either one of them, as the context requires;
"Trust Assets" means the Series A Trust Assets and/or the Series B Trust Assets, as the context
requires;
"Trustee" means Bank Islam (L) Ltd, in its capacity as Trustee on behalf of the Certificateholders in
respect of the Trusts;
"Trusts" means collectively the Series A Trust and the Series B Trust, and "Trust" means either one
of them, as the context requires;
"Unscheduled Dissolution" has the meaning set forth in Condition 7(1);
"Unscheduled Dissolution Date" has the meaning set forth in Condition 10;
"U.S. dollars", "U.S.$" and "cents" each means the lawful currency for the time being of the United
States of America; and
"YPB" means Yayasan Pelaburan Bumiputra, a company incorporated in Malaysia and limited by
guarantee.
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