Table 1 : Malakoff SPA and Bebar SPA
Salient Terms / Malakoff SPA / Bebar SPA(i)Vendors / Rimba Nilai / BHB
(ii)Purchase consideration / RM100,500,000 only, to be satisfied by way of cash consideration of RM7,000,000 and the issuance of 85,000,000 Consideration Units.
The cash consideration shall be paid and the Consideration Units shall be issued to Rimba Nilai within one (1) month from the date of execution of the Malakoff SPA or such other date as may be mutually agreed by Rimba Nilai and the Trustee. / RM88,300,000 only, to be fully satisfied by way of cash consideration.
The cash consideration shall be paid to BHB within one (1) month from the date of execution of the Bebar SPA or such other date as may be mutually agreed by BHB and the Trustee.
(iii)Vendors’ undertaking / Rimba Nilai undertakes with the Trustee that it shall, within fourteen (14) days from the date of the Malakoff SPA, apply to the relevant state authority (if required) and the Estate Land Board for their respective approval(s) for the sale and transfer of the Malakoff Estate in favour of the Trustee (as Purchaser). / BHB undertakes with the Trustee that it shall, within fourteen (14) days from the date of the Bebar SPA, procure that Eldred as the registered owner of the Bebar Estate, apply to the relevant state authority and the Estate Land Board for their respective approvals for the sale and transfer of the Bebar Estate in favour of the Trustee (as Purchaser).
Rimba Nilai further and without prejudice to the undertaking above, undertakes that it shall on or before the expiry of twenty-four (24) months from the completion date of the Malakoff SPA or such other date as may be agreed by Rimba Nilai and the Trustee in writing (“Subsequent Approval Date”), obtain the approval(s) of the Estate Land Board and the relevant state authority (if required) and effect the presentation of the transfer of the Malakoff Estate in favour of the Trustee. / BHB further and without prejudice to the undertaking above, undertakes that it shall on or before the expiry of twenty-four (24) months from the completion date of the Bebar SPA or such other date as may be agreed by BHB and the Trustee in writing (“Subsequent Approval Date”), obtain the approvals of the Estate Land Board and the relevant state authority and effect the presentation of the transfer of the Bebar Estate in favour of the Trustee.
Salient Terms / Malakoff SPA / Bebar SPA
(iv)Replacement of Affected Property / In the event that;
(i)the approval of the Estate Land Board (and if required, the relevant state authority) is not obtained by the Subsequent Approval Date; and/or
(ii)the presentation for the registration of the transfer is not made by the Subsequent Approval Date; and/or
(iii)the registration of the transfer of the Malakoff Estate is not effected within six (6) months from the Subsequent Approval Date or such other period as may be agreed by Rimba Nilai and the Trustee in writing (“Stipulated Date”);
Rimba Nilai shall forthwith, within one (1) month from the Subsequent Approval Date (in the case of items (i) or (ii) hereinabove) or the Stipulated Date (in the case of item (iii) hereinabove) or such other period as may be agreed in writing, substitute or procure the substitution of the affected property within the Malakoff Estate (“Affected Property”) with replacement assets comprising plantation land(s) owned by Rimba Nilai and/or BHB Group (“Replacement Property”), cash and/or other authorised investments permitted under the Securities Commission’s Guidelines on Real Estate Investment Trust (“REIT Guidelines”), subject always to the investment committee of the Fund being satisfied that the value of the said replacement assets (which in the case of any Replacement Property shall take into account any discount to the market value given by Rimba Nilai in respect of the Affected Property) shall not be less than the market value of the Affected Property as at the date of the valuation report which shall, at the costs and expenses of Rimba Nilai, be determined by Azmi & Co Sdn Bhd based on the calculation and assumptions in the valuation report. / In the event that:
(i)the approvals of the Estate Land Board and state authority are not obtained by the Subsequent Approval Date; and/or
(ii)the presentation for the registration of the transfer is not made by the Subsequent Approval Date; and/or
(iii)the registration of the transfer of the Bebar Estate is not effected within six (6) months from the Subsequent Approval Date or such other period as may be agreed by BHB and the Trustee in writing (“Stipulated Date”);
BHB shall forthwith, within one (1) month from the Subsequent Approval Date (in the case of items (i) or (ii) hereinabove) or the Stipulated Date (in the case of item (iii) hereinabove) or such other period as may be agreed in writing, substitute or procure the substitution of the affected property within the Bebar Estate (“Affected Property”) with replacement assets comprising plantation land(s) owned by the BHB Group (“Replacement Property”), cash and/or other authorised investments permitted under the Securities Commission’s Guidelines on Real Estate Investment Trust (“REIT Guidelines”), subject always to the investment committee of the Fund being satisfied that the value of the said replacement assets (which in the case of any Replacement Property shall take into account any discount to the market value given by BHB in respect of the Affected Property) shall not be less than the market value of the Affected Property as at the date of the valuation report which shall, at the costs and expenses of BHB, be determined by Azmi & Co Sdn Bhd based on the calculation and assumptions in the valuation report.
Salient Terms / Malakoff SPA / Bebar SPA
Upon the occurrence of any of the events referred to in the above, the agreement in relation to the sale and transfer of the Affected Property as envisaged under the Malakoff SPA (but not the other unaffected property or properties within the Malakoff Estate) shall forthwith be terminated. / Upon the occurrence of any of the events referred to in the above, the agreement in relation to the sale and transfer of the Affected Property as envisaged under the Bebar SPA (but not the other unaffected property or properties within the Bebar Estate) shall forthwith be terminated.
Table 2 : Ijarah Agreement
Salient Terms(i)Tenant / BPB
(ii)Tenure / The tenancy for the Plantation Assets shall be for an initial term commencing from 1 January 2009 or such other date as may be agreed in writing between the Trustee and BPB (“Commencement Date”) and expiring on 31 December 2009 (“Initial Term”) subject to any renewal or extension thereof on terms and conditions set out in the Ijarah Agreement unless terminated or otherwise determined upon the terms and conditions set out in the Ijarah Agreement (“Term”).
If the Trustee (“Landlord”) is satisfied that there is no existing breach or non-observance of any of the covenants on the part of BPB under the Ijarah Agreementor if there is such a breach or non-observance, the breach or non-observance of which is not, in the opinion of the Landlord, material, the Ijarah Agreement shall upon the expiry of the Initial Term of the respective Plantation Assets be automatically renewed for an additional term of three (3) years on such terms and conditions as may be mutually agreed upon between the parties and which are not less favourable to the Landlord (“First Extended Term”) and subsequent renewals(s) for up to three (3) additional terms of three (3) years each (“Extended Term(s)”) and thereafter, at the option of BPB (exercisable by BPB by notice in writing to the Landlord at least three (3) months prior to the expiry of the last Extended Term), to renew for a further five (5) additional terms of not more than three (3) years each at the rent and on such terms and conditions as may be mutually agreed upon between the parties. The Landlord (at the recommendation of Boustead REIT Managers) and BPB shall within three (3) months prior to the expiry of the relevant Term of the respective Plantation Assets, discuss and agree on the revised rent for the respective Plantation Assets for the next term of three (3) years which shall be determined based on the formula stipulated under the Ijarah Agreement.
(iii)Consideration / BPB shall pay to the Landlord:-
(a) a fixed monthly rental ("Fixed Rent") for the respective Plantation Assets which shall be payable in arrears on a two-monthly basis and on the last market day of every two (2) calendar months. The first payment of the Fixed Rent shall be due and payable immediately on the last market day of the second calendar month from the Commencement Date and thereafter on the last market day of every two (2) months; and
Salient Terms
(iii)Consideration (Continued) / (b) a yearly performance-based profit sharing for the respective Plantation Assets calculated in accordance with the formula set out in Section 3(ii) of Schedule I of the Ijarah Agreement, as reproduced below, (“Performance-Based Profit Sharing”) which is payable no later than the expiry of two (2) months from the last market day of each financial year of the Fund. The first payment of the Performance-Based Profit Sharing shall be due and payable not later than the expiry of two (2) months after the last market day of the financial year of the Fund during which the Commencement Date occurs.
50% x [ [A x (B C) ] D]
Where:-
A / = / Actual estate production MT of FFB and of CPO
B / = / Weighted average CPO price and weighted average FFB price realised during the financial year of the Fund
C / = / Reference price of CPO price of RM2,000.00 (“Reference Price”) or such other CPO price agreed for the subsequent additional tenancy terms per Metric Tonne as the Reference Price
D / = / Selling commission, capital expenditure (not borne by the Landlord) and other direct costs (including but not limited to windfall tax)
(iv)Sale of the Plantation Assets / In the event that the Landlord shall, at any time during the continuance of the Term, desire to sell the Bebar Estate and/or the Malakoff Estate in whole or in part (“Offer Property”), the Landlord shall give to BPB or any company within the BHB Group the first right of refusal to purchase the Offer Property at the prevailing market price and upon such other terms and conditions as may be mutually agreed between the parties. If BPB or the relevant company within the BHB Group does not make an offer to purchase the Offer Property within fourteen (14) days of receipt of such notice, the Landlord shall be free to sell the Offer Property to any third party at any price subject to the applicable REIT Guidelines or where the first right of refusal is not exercised due to the Landlord not accepting the price offered, at the price not lower than the price offered by BPB or the relevant company within the BHB Group to the Landlord.
(v)Termination / BPB shall not be entitled to terminate the tenancy during the Term unless the Landlord is in breach of any material terms of the Ijarah Agreement.