FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(Mark One)
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the quarter period ended June 3, 1999
OR
[ ] Transition Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the transition period from to
Commission File No. 333-50981
MCMS, INC.
(Exact name of registrant as specified in its charter)
Idaho 82-0480109
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or
organization)
16399 Franklin Road, Nampa, Idaho 83687
(Address of principal executive offices, Zip Code)
(208)898-2600
(Registrant's telephone number, including area code)
(Former name, former address and former fiscal year, if changed
since last report)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to filing
requirements for the past 90 days.
Yes X No
APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY
PROCEEDINGS DURING THE PRECEDING FIVE YEARS:
Indicate by check mark whether the registrant has filed all
documents and reports required to be filed by Sections 12, 13 or
15(d) of the Securities Exchange Act of 1934 subsequent to the
distribution of securities under a plan confirmed by a court.
Yes No
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Shares of Class A Common Stock outstanding at June 3, 1999: 3,282,427
Shares of Class B Common Stock outstanding at June 3, 1999: 863,823
Shares of Class C Common Stock outstanding at June 3, 1999: 874,999
<PAGE>
MCMS, INC.
INDEX
Part I. Page
Item 1 Financial Information
Unaudited Consolidated Balance Sheets -
June 3, 1999 and September 3, 1998 3
Unaudited Consolidated Statements of
Operations - Three and Nine Months Ended 4
June 3, 1999 and May 28, 1998
Unaudited Consolidated Statements of Cash
Flows - Nine Months Ended June 3, 1999
and May 28, 1998 5
Notes to Unaudited Consolidated Financial 6
Statements
Item 2 Management's Discussion and Analysis of
Financial Condition and Results of Operations 9
Certain Factors 14
Item 3 Quantitative and Qualitative Disclosures
about Market Risk 19
Part II. Other Information
Item 6 Exhibits 20
Signatures 21
2
<PAGE>
PART I FINANCIAL INFORMATION
- ----------------------------
ITEM 1. FINANCIAL STATEMENTS
<TABLE>
MCMS, INC.
CONSOLIDATED BALANCE SHEETS (UNAUDITED)
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS)
<CAPTION>
June 3, September 3,
As of 1999 1998
- -----------------------------------------------------------------------
ASSETS
<S>
Current Assets: <C> <C>
Cash and cash equivalents $ 1,530 $ 7,542
Trade account receivable, net of
allowances for doubtful accounts
of $323 and $97 42,831 34,231
Receivable from affiliates 1,424 2,096
Inventories 45,072 29,816
Deferred income taxes 705 1,255
Other current assets 920 356
------------ ------------
Total current assets 92,482 75,296
Property, plant and equipment, net 66,094 62,106
Other assets
7,070 7,650
------------ ------------
Total assets $ 165,646 $ 145,052
============ ============
LIABILITIES AND SHAREHOLDERS' DEFICIT
Current Liabilities:
Current portion of long-term debt $ 448 $ 420
Accounts payable and accrued expenses 55,025 44,433
Payable to affiliates 235 775
Interest payable 4,684 197
------------ ------------
Total current liabilities 60,392 45,825
Long-term debt, net of current portion 202,973 184,737
Deferred income taxes 18 1,286
Other liabilities 618 580
------------ ------------
Total liabilities 264,001 232,428
Redeemable preferred stock, no par value,
750,000 shares authorized; issued and
outstanding 292,060 and 266,313 shares,
respectively; mandatory redemption value
of $29.2 million and $26.6 million,
respectively 28,352 25,675
SHAREHOLDERS' DEFICIT
Series A convertible preferred stock,
par value $0.001 per share, 6,000,000
shares authorized; issued and
outstanding 3,261,177; aggregate
liquidation preference of $36,949,135 3 3
Series B convertible preferred stock,
par value $0.001 per share, 6,000,000
shares authorized; issued and
outstanding 863,823 shares; aggregate
liquidation preference of $9,787,115 1 1
Series C convertible preferred stock,
par value $0.001 per share, 1,000,000
shares authorized; issued and
outstanding 874,999 shares; aggregate
liquidation preference of $9,913,739 1 1
Class A common stock, par value $0.001
per share, 30,000,000 shares
authorized; issued and outstanding
3,282,427 and 3,261,177, respectively 3 3
Class B common stock, par value $0.001
per share, 12,000,000 shares
authorized; issued and outstanding
863,823 shares 1 1
Class C common stock, par value $0.001
per share, 2,000,000 shares authorized;
issued and outstanding 874,999 shares 1 1
Additional paid-in capital 60,689 63,318
Accumulated other comprehensive loss (2,144) (2,270)
Retained deficit (185,212) (174,109)
Less treasury stock at cost:
Series A convertible preferred stock,
3,676 shares outstanding (42) -
Class A common stock, 3,676 shares
outstanding (8) -
------------ ------------
Total shareholders' deficit (126,707) (113,051)
------------ ------------
Commitments and contingencies - -
Total liabilities and
shareholders' deficit $ 165,646 $ 145,052
============ ============
The accompanying notes are an integral part of the financial statement.
</TABLE>
3
<PAGE>
<TABLE>
MCMS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS)
<CAPTION>
Three months ended Nine months ended
--------------------- ---------------------
June 3, May 28, June 3, May 28,
1999 1999 1999 1998
<S> <C> <C> <C> <C>
Net sales $ 110,305 $ 88,565 $ 317,896 $ 234,246
Cost of goods sold 103,917 82,689 300,310 210,781
-------- --------- --------- ---------
Gross profit 6,388 5,876 17,586 23,465
Selling, general
and administrative 5,846 4,405 16,855 11,331
-------- --------- --------- ---------
Income from operations 542 1,471 731 12,134
Other expense:
Interest expense,net 5,023 4,418 14,669 4,088
Transaction expenses - 142 45 8,455
-------- --------- --------- ---------
Loss before taxes and
extraordinary item (4,481) (3,089) (13,983) (409)
Income tax provision (benefit) - (1,052) (3,497) 1,015
-------- --------- --------- ---------
Loss before extraordinary item (4,481) (2,037) (10,486) (1,424)
Extraordinary item-loss on early
extinguishment of debt, net of
tax benefit of $403 - - (617) -
-------- --------- --------- ---------
Net loss (4,481) (2,037) (11,103) (1,424)
Redeemable preferred stock
dividends and accretion of
preferred stock discount (945) (825) (2,678) (825)
-------- --------- --------- ---------
Net loss to common stockholders $ (5,426) $ (2,862) $ (13,781) $ (2,249)
======== ========= ========= =========
Net loss per common share -
basic and diluted:
Loss before extraordinary item$ (1.08) $ (0.57) $ (2.63) $ (1.35)
Extraordinary item - - (0.12) -
-------- --------- --------- ---------
Net loss per share $ (1.08) $ (0.57) $ (2.75) $ (1.35)
</TABLE> ======== ========= ========= =========
The accompanying notes are an integral part of the financial statements.
4
<PAGE>
MCMS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
Nine months ended
June 3, May 28,
1999 1998
--------------------------
CASH FLOWS FROM OPERATING ACTIVITIES
<S> <C> <C>
Net loss $ (11,103) $ (1,424)
Adjustments to reconcile net loss to net cash
provided by (used for) operating activities:
Loss on extinguishment of debt 617 -
Depreciation and amortization 11,609 9,026
Loss (gain) on sale of property, plant and equipment 15 (57)
Write-off of deferred loan costs - 206
Changes in operating assets and liabilities:
Receivables (8,195) (323)
Inventories (15,265) (17,831)
Other assets (1,077) (564)
Accounts payable and accrued expenses 10,477 17,460
Interest payable 4,487 4,211
Deferred income taxes (315) (662)
Other liabilities 22 248
--------- ---------
Net cash provided by (used for) operating activities (8,728) 10,290
--------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES
Expenditures for property, plant and equipment (13,913) (17,548)
Proceeds from sales of property, plant and equipment 11 376
--------- ---------
Net cash used for investing activities (13,902) (17,172)
--------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES
Capital contributions 48 1,786
Repurchase of common stock and recapitalization - (249,147)
Proceeds from issuance of common stock - 10,200
Proceeds from issuance of convertible preferred stock - 51,000
Proceeds from and issuance of redeemable preferred stock - 24,000
Proceeds from borrowings 27,897 175,000
Repayments of debt (10,009) (1,513)
Payment of deferred debt issuance costs (1,274) (7,809)
Purchase of treasury stock (50) -
--------- ---------
Net cash provided by financing activities 16,612 3,517
--------- ---------
Effect of exchange rate changes on cash and
cash equivalents 6 (221)
--------- ---------
Net decrease in cash and cash equivalents (6,012) (3,586)
Cash and cash equivalents at beginning of period 7,542 13,636
--------- ---------
Cash and cash equivalents at end of period $ 1,530 $ 10,050
========= =========
</TABLE>
The accompanying notes are an integral part of the financial statements.
5
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
(TABULAR DOLLAR AMOUNTS IN THOUSANDS)
1. General
The information included in the accompanying
consolidated interim financial statements is unaudited and
should be read in conjunction with the annual audited
financial statements and notes thereto contained in the
Company's Report on Form 10-K for the fiscal year ended
September 3, 1998. In the opinion of management, all
adjustments, consisting of normal recurring accruals,
necessary for a fair presentation of the results of
operations for the interim periods presented have been
reflected herein. The results of operations for the interim
periods presented are not necessarily indicative of the
results to be expected for the entire fiscal year.
2. Effect of Recently Issued Accounting Standards
During the first quarter of fiscal 1999, the Company
adopted Statement of Financial Accounting Standards ("SFAS")
No. 130, Reporting Comprehensive Income. SFAS No. 130
establishes standards for the presentation of comprehensive
income or loss in financial statements. Other comprehensive
income or loss includes income and loss components which are
otherwise recorded directly to shareholders' equity under
generally accepted accounting principles. The Company's
total comprehensive loss, which includes net loss plus other
comprehensive loss, for the third quarter and first nine
months of fiscal 1999 was $4,406,000 and $10,976,000,
respectively. The Company's comprehensive loss was
$1,907,000 and $3,177,000 for the corresponding periods of
fiscal 1998. The accumulated balance of foreign currency
translation adjustments, excluded from net income or loss, is
presented in the consolidated balance sheet as "Accumulated
other comprehensive loss."
In June 1997, the Financial Accounting Standards Board
issued SFAS No. 131, "Disclosures about Segments of an
Enterprise and Related Information." Under SFAS No. 131,
publicly held companies are required to report financial and
other information about key revenue-producing segments of the
entity for which such information is available and utilized
by the chief operating decision-maker. Specific information
to be reported for individual segments includes profit or
loss, certain revenue and expense items and total assets. A
reconciliation of segment financial information to amounts
reported in the financial statements must also be provided.
SFAS No. 131 is effective for the Company in fiscal 1999 and
the form of the presentation in the Company's financial
statements has not yet been determined.
In March 1998, the AICPA issued Statement of Position
("SOP") 98-1, "Accounting for the Costs of Computer Software
Developed or Obtained for Internal Use." Under SOP 98-1,
companies are required to capitalize certain costs of
computer software developed or obtained for internal use,
provided that those costs are not research and development.
The Company is required to implement SOP 98-1 in fiscal 2000
and adoption is not expected to have a material effect on the
Company's results of operations or financial position.
<TABLE>
3. Inventories
<CAPTION>
June 3, September 3,
1999 1998
----------- -----------
<S> <C> <C>
Raw materials and supplies $ 27,594 $ 18,126
Work in process 16,577 11,020
Finished goods 901 670
----------- -----------
$ 45,072 $ 29,816
=========== ===========
</TABLE>
<TABLE>
4. Accounts payable and accrued expenses
<CAPTION>
June 3, September 3,
1999 1998
----------- -----------
<S> <C> <C>
Trade accounts payable $ 48,879 $ 39,152
Short-term equipment contracts 868 543
Salaries, wages, and benefits 4,240 3,619
Other 1,038 1,119
----------- -----------
$ 55,025 $ 44,433
=========== ===========
</TABLE>
6
<PAGE>
<TABLE>
5. Long-term Debt
<CAPTION>
June 3, September 3,
1999 1998
----------- ------------
<s) <C> <C>
Revolving loan, principal payments at
the Company's option to February 26,
2003, interest due quarterly,
interest rates ranging from 8.38%
to 10.75% (8.38% at September 3, 1998) $ - $ 9,500
Senior credit facility, principal
payments at the Company's option to
February 26, 2004, interest due monthly,
interest rates ranging from 7.19% to
7.75% (7.32% weighted average as of
June 3, 1999) 26,057 -
Senior equipment loan facility, principal
payments at the Company's option to
February 26, 2004, interest due monthly,
8.00% weighted average interest at
June 3, 1999 1,828 -
Senior subordinated notes (the "Fixed
Rate Notes"), unsecured, interest at
9.75% due semiannually, mature on March
1, 2008 145,000 145,000
Floating interest rate subordinated term
securities, (the "Floating Rate Notes"),
unsecured, interest due semiannually,
mature on March 1, 2008, variable
interest rate equal to LIBOR plus 4.63%
(9.75% and 10.22% at June 3, 1999 and
September 3, 1998, respectively) 30,000 30,000
Note payable, matures on October 8, 1998,
interest due at maturity, weighted
average interest rate equal to interest
earned on the Company's cash investments
(5.24% at September 3, 1998) - 212
Note payable, quarterly installments
through October 1, 2000,
interest rate of 3.51% 283 445
Note payable, monthly installments
through December 26, 1999, interest rate
of 5.95% 253 -
---------- -----------
Total debt 203,421 185,157
Less current portion (448) (420)
---------- -----------
Long-term debt, net of current portion $ 202,973 $ 184,737
========== ===========
</TABLE>
On February 26, 1999, the Company entered into a $60 million Senior
Credit Facility which matures on February 26, 2004. The Senior Credit
Facility includes both a $10 million facility restricted to the purchase
of qualifying equipment and a $50 million revolving credit facility. Amounts
outstanding under the equipment loan facility bear interest at the lesser of
the applicable Alternate Base Rate plus 0.25% or the Eurodollar Rate plus
2.50%, as defined in the agreement, and borrowings are limited to the first
three loan years. Amounts outstanding under the revolving credit
facility bear interest at the lower of the applicable Alternate Base Rate or
Eurodollar Rate plus 2.25%. Amounts available to borrow under the revolving
credit facility vary depending on accounts receivable and inventory balances,
which serve as collateral along with substantially all of the other assets of
the Company. The Senior Credit Facility includes a quarterly commitment fee of
0.375% per annum based upon the average unused portion and contains customary
covenants such as restrictions on capital expenditures, additional indebtedness
and the payment of dividends. In particular, the Senior Credit Facility
contains a covenant requiring that the Company maintain a fixed charge ratio of
not less than 1.0 to 1.0, provided, however, that this fixed charge ratio
covenant will not be applied to any fiscal quarter during the term as long as
the Company maintains at all times undrawn availability of more than $10
million. In addition, if at any time undrawn availability is less than $10
million, the fixed charge ratio will be applied to the immediately preceding
month with respect to the twelve months then ended. The Senior Credit Facility
7
<PAGE>
also contains customary events of default. Any default under the Senior Credit
Facility could result in default of the Notes and Redeemable Preferred
Stock, as defined below. As of June 3, 1999, the Company had a $26.1 million
outstanding balance under the revolving credit facility and a $1.8 million
outstanding balance on the equipment loan facility.
On July 13, 1999, the Company amended the Senior Credit Facility (as
amended, the "Credit Facility"). The amendment adds existing equipment to the
borrowing base, modifies the advance rates and raises the maximum amount
available to borrow based on inventory collateral, and allows the full amount
of the credit facility to be drawn without triggering financial covenants if
adequate collateral is available. As of July 13, 1999, the Company had a
$20.2 million outstanding balance under the revolving credit facility and a
$2.1 million outstanding balance on the equipment loan facility. As of
July 13, 1999, the Company had approximately $21 million available to borrow
under the Credit Facility without triggering the fixed charge ratio covenant,
and $7.9 million available to borrow under the equipment loan facility,
respectively. As of July 13, 1999, had the Company consumed its adjusted
availability and been required to test the fixed charge ratio covenant, the
tested would not have been satisfied.
On February 26, 1998, the Company issued $25.0 million in 12-1/2%
Redeemable Preferred Stock due on March 1, 2010 with a liquidation preference
of $100 per share. Dividends are payable in cash or in-kind quarterly begin-
ning June 1, 1998 at a rate equal to 12-1/2% per annum. To date, the Company has
paid all dividends in-kind.
6. Net Loss Per Share
Basic earnings per share is computed using net loss increased by
dividends on the Redeemable Preferred Stock divided by the weighted average
number of common shares outstanding. Diluted earnings per share is computed
using the weighted average number of common and common stock equivalent
shares outstanding. Common stock equivalent shares include shares issuable
upon the exercise of outstanding stock options and shares issuable upon the
conversion of outstanding convertible securities, and affect earnings per
share only when they have a dilutive effect. Loss before extraordinary item
per share and net loss per share for the three and nine months ended
June 3, 1999 and May 28, 1998 is computed based on the weighted average number
of common shares outstanding during each period of 5,014,711, 5,004,903,
5,000,000 and 1,667,333, respectively. The Company's basic earnings per share
and its fully diluted earnings per share were the same for the three and nine
month periods ended June 3, 1999 and May 28, 1998 because of the antidilutive
effect of outstanding convertible securities and stock options.
7. Income Taxes
The effective rate of the tax benefit for the three and nine months
ended June 3, 1999 was none and 26.0%, respectively. The effective tax rate
for fiscal 1999 primarily reflects the statutory corporate income tax rate,
the net effect of state taxation, the effect of a tax holiday granted to the
Company's Malaysian operation and a reduction in the benefit from income taxes
due to the increase in the valuation allowance discussed below. The effective
rate for the corresponding three month period of fiscal 1998 was 34.1%. The
decrease in the effective rate of the tax benefit for the three month period
ended June 3, 1999 relative to the corresponding period of fiscal 1998 was
primarily due to the increase in the valuation allowance discussed below. For
the corresponding nine month period of fiscal 1998 the Company had an income tax
provision of $1.0 million and a pre tax loss of $0.4 million. The difference
between the income tax benefit for the nine months ended June 3, 1999 and the
income tax expense for the corresponding period of 1998 relates to
nondeductible transaction costs related to the Recapitalization, in fiscal
1998, offset in part by an increase in the valuation allowance established
during fiscal 1999. The Company does not provide for U.S. tax on the
earnings of some of its foreign subsidiaries and, therefore, the effective
rate may vary significantly from period to period.
During the three months ended June 3, 1999, the Company increased its
valuation allowance by $2.2 million to a balance of $2.7 million for the
amount of the deferred tax asset which may not be realizable through either
carrying back its net operating losses or through future income generated by
reversal of deferred tax liabilities during the loss carryforward period.
8. Recapitalization
On February 26, 1998 the Company completed a recapitalization (the
"Recapitalization"). Prior to the closing of the Recapitalization, the
Company was a wholly owned subsidiary of MEI California, Inc. ("MEIC"), a
wholly owned subsidiary of Micron Electronics, Inc. ("MEI"). Under the terms of
the amended and restated Recapitalization Agreement between the Company,
MEIC, MEI and certain other parties, pursuant to which the Company
effected the Recapitalization, certain unrelated investors (the "Investors")
acquired an equity interest in the Company. In order to complete the
Recapitalization, the Company arranged for additional financing in the form
of notes and redeemable preferred stock totaling $200.0 million. The Company
used the proceeds from the Investors' equity investment and the issuance of
the notes and redeemable preferred stock to redeem a portion of MEIC's
outstanding equity interest for approximately $249.2 million. MEIC continues
to hold a 10% equity interest in the Company.
8
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Statements contained in this Form 10-Q that are not purely historical
are forward-looking statements and are being provided in reliance upon the
"safe harbor" provisions of the Private Securities Litigation Reform Act of
1995. All forward-looking statements are made as of the date hereof and
are based on current management expectations and information available to the
Company as of such date. The Company assumes no obligation to update any
forward-looking statement. It is important to note that actual results could
differ materially from historical results or those contemplated in the
forward-looking statements. Forward-looking statements involve a number of
risks and uncertainties, and include trend information. Factors that could
cause actual results to differ materially include, but are not limited to,
those identified herein under "Certain Factors" and in other Company filings
with the Securities and Exchange Commission. All quarterly references are to
the Company's fiscal periods ended June 3, 1999, September 3, 1998 or
May 28, 1998, unless otherwise indicated.
MCMS, Inc. ("MCMS" or the "Company") is a leading electronics
manufacturing services ("EMS") provider serving original equipment
manufacturers ("OEMs") in the networking, telecommunications, computer systems
and other sectors of the electronics industry. The Company offers a broad
range of capabilities and manufacturing management services, including
product design and prototype manufacturing; materials procurement and inventory
management; manufacturing and testing of printed circuit board assemblies
("PCBAs"), memory modules and systems; quality assurance; and end-order
fulfillment.
MCMS provides services on both a turnkey and consignment basis. Under a
consignment arrangement, the OEM procures the components and the Company
assembles and tests them in exchange for a processing fee. Under a turnkey
arrangement, the Company assumes responsibility for both the procurement
of components and their assembly and test. Turnkey manufacturing generates
higher net sales than consignment manufacturing due to the generation of
revenue from materials as well as labor and manufacturing overhead, but also
typically results in lower gross margins than consignment manufacturing
because the Company generally realizes lower gross margins on material-based
revenue than on manufacturing-based revenue. The Company also provides
services on a partial consignment basis, whereby the OEM procures certain
materials and the Company procures the remaining materials. Consignment
revenues, excluding partial consignment revenues, accounted for 8.0% and 6.2%
of the Company's net sales for the three and nine months ended June 3, 1999,
respectively.
<TABLE>
Results of Operations
<CAPTION>
Three months ended Nine months ended
------------------ ------------------
June 3, May 28, June 3, May 28,
1999 1998 1999 1998
------- -------- --------- -------
<S> <C> <C> <C> <C>
Net sales 100.0% 100.0% 100.0% 100.0%
Costs of sales 94.2 93.4 94.5 90.0
------- ------- ------- -------
Gross margin 5.8 6.6 5.5 10.0
Selling, general and
administrative expenses 5.3 4.9 5.3 4.8
------- ------- ------- -------
Income from operations 0.5 1.7 0.2 5.2
Interest expense, net 4.6 5.0 4.6 1.8
Transaction expenses - 0.2 - 3.6
------- ------- ------- -------
Loss before taxes (4.1) (3.5) (4.4) (0.2)
Income tax provision (benefit) - (1.2) (1.1) 0.4
Extraordinary loss - - (0.2) -
------- ------- ------- -------
Net loss (4.1)% (2.3)% (3.5)% (0.6)%
======= ======= ======= =======
Depreciation and
amortization (1) 3.6% 4.0% 3.4% 3.9%
======= ======= ======= =======
</TABLE>
(1) For the three and nine months ended June 3, 1999, the depreciation
and amortization amount excludes $234,000 and $700,000, respectively,
of deferred loan amortization that was expensed as interest.
9
<PAGE>
Three Months Ended June 3, 1999 Compared to Three Months Ended May 28, 1998
Net Sales. Net sales for the three months ended June 3, 1999 increased
by $21.7 million, or 24.5%, to $110.3 million from $88.6 million for the
three months ended May 28, 1998. The increase in net sales is primarily the
result of higher volumes of PCBA and system level shipments to customers in
the networking and telecommunications industries. These increases were
partially offset by lower PCBA and system level prices, lower volumes and
prices on custom turnkey memory modules and lower prices on consigned memory
modules.
Net sales attributable to foreign subsidiaries totaled $8.4 million for
the three months ended June 3, 1999, compared to $6.0 million for the
corresponding period of fiscal 1998. The growth in foreign subsidiary net
sales is primarily the result of higher volumes of PCBA shipments in
both Malaysia and Belgium. This increase was negatively impacted by a shift
from a turnkey to consignment model with the Company's largest customer at the
Belgian facility early in the second quarter of fiscal 1999.
Gross Profit. Gross profit for the three months ended June 3, 1999
increased by $0.5 million, or 8.7%, to $6.4 million from $5.9 million for the
three months ended May 28, 1998. Gross margin for the three months ended
June 3, 1999 decreased to 5.8% of net sales from 6.6% for the comparable
period ended May 28, 1998. The increase in gross profit resulted primarily
from increased sales at the Nampa, Malaysian and Belgian facilities partially
offset by lower sales and increased demand volatility at the Durham facility.
The Company's gross margin declined due to an increase in volume of PCBA
sales accompanied by lower prices, lower prices on consigned memory modules and
increased system level shipments, which typically have lower margins.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses ("SG&A") for the three months ended June 3, 1999
increased by $1.4 million, or 32.7%, to $5.8 million from $4.4 million for the
three months ended May 28, 1998. This increase for the three months ended
June 3, 1999 was primarily the result of expenses associated with additional
senior management to support future growth, additional program management
personnel and additional expenses and headcount associated with the Company
operating as a stand alone entity following the Recapitalization. SG&A
expenses included a non-cash foreign currency expense of $0.4 million for the
three months ended June 3, 1999 primarily related to an intercompany loan
between the Company and its Belgian subsidiary.
Interest Expense. Interest expense for the three months ended
June 3, 1999 increased by $0.6 million, or 13.7%, to $5.0 million from
$4.4 million for the three months ended May 28, 1998 due principally to
additional borrowings on the Company's Credit Facility.
Provision for Income Taxes. There was no income tax expense or benefit
for the three months ended June 3, 1999 compared to a benefit of $1.1 million
for the three months ended May 28, 1998. There was no effective rate for the
three months ended June 3, 1999, as compared to 34.1% for the corresponding
period of fiscal 1998. The decrease in the effective rate of the tax benefit
during the three months ended June 3, 1999 relative to the corresponding
period of fiscal 1998 was primarily due to an increase in the valuation
allowance eliminating any income tax benefit for the three months ended
June 3, 1999. The Company does not provide for U.S. tax on the earnings of
its foreign subsidiaries and, therefore, the effective rate may vary
significantly from period to period.
Net Loss. For the reasons stated above, the net loss for the three
months ended June 3, 1999 increased by $2.4 million to $4.5 million from
$2.0 million for the three months ended May 28, 1998. As a percentage of
net sales, net loss for the three months ended June 3, 1999 was 4.1%
compared to 2.3% for the three months ended May 28, 1998.
Nine Months Ended June 3, 1999 Compared to Nine Months Ended May 28, 1998
Net Sales. Net sales for the nine months ended June 3, 1999 increased
by $83.7 million, or 35.7%, to $317.9 million from $234.2 million for the
nine months ended May 28, 1998. The increase in net sales is primarily the
result of higher volumes of PCBA and system level shipments to customers in
the networking and telecommunications industries. These increases were
partially offset by lower PCBA prices, lower volumes and prices of custom
turnkey memory modules, and lower prices on consigned memory modules.
Net sales attributable to foreign subsidiaries totaled $22.6 million for
the nine months ended June 3, 1999, compared to $15.1 million for the
corresponding period of fiscal 1998. The growth in foreign subsidiary net sales
is primarily the result of additional sales of PCBA shipments at the
Company's Malaysian operation. This increase was partially offset by lower
volumes of custom turnkey memory modules at the Malaysian facility and by a
shift from a turnkey to consignment model at the Belgian facility early in
the second quarter of fiscal 1999.
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Gross Profit. Gross profit for the nine months ended June 3, 1999
decreased by $5.9 million, or 25.1%, to $17.6 million from $23.5 million for
the nine months ended May 28, 1998. Gross margin for the nine months ended
June 3, 1999 decreased to 5.5% of net sales from 10.0% for the comparable
period ended May 28, 1998. The decrease in gross profit and margin resulted
primarily from increased demand volatility at the Durham facility and higher
volumes of PCBA sales with lower average selling prices, lower prices on
consigned memory modules, a decline in custom turnkey memory module sales
at the Nampa and Malaysian facilities and increased system level shipments,
which typically have lower margins.
Selling, General and Administrative Expenses. SG&A expenses for the
nine months ended June 3, 1999 increased by $5.5 million, or 48.8%, to
$16.9 million from $11.3 million for the nine months ended May 28, 1998.
This increase for the nine months ended June 3, 1999 was primarily the result
of additional senior management to support future growth and additional
expenses and headcount associated with operating the Company as a stand alone
entity following the Recapitalization. SG&A expenses included a non-cash
foreign currency expense of $0.7 million related to an intercompany loan
between the Company and its Belgian subsidiary
Interest Expense. Interest expense for the nine months ended
June 3, 1999 increased to $14.7 million due primarily to the addition of
$175 million in long-term debt issued or incurred in conjunction with the
Recapitalizaton.
Provision for Income Taxes. Income taxes for the nine months ended
June 3, 1999 decreased by $4.9 million to a benefit of $3.9 million from an
expense of $1.0 million for the nine months ended May 28, 1998. The Company's
effective income tax rate for its benefit for the first nine months of
fiscal 1999 was 26.0%. For the corresponding nine month period of fiscal 1998
the Company had an income tax provision of $1.0 million and a pre tax loss of
$.4 million. The difference between the income tax benefit for the nine months
ended June 3, 1999 and the income tax expense for the corresponding period of
1998 relates to nondeductible transaction costs related to the Recapitalization,
in fiscal 1998, offset in part by an increase in the valuation allowance
established during fiscal 1999.
During the nine months ended June 3, 1999, the Company set up a valuation
allowance of $2.7 million for the amount of the deferred tax asset which may
not be realizable through either carrying back its net operating losses or
through future income generated by reversal of deferred tax liabilities during
the loss carryforward period.
Extraordinary loss. The extraordinary after tax loss of the $0.6 million
for the nine months ended June 3, 1999 resulted from the write-off of deferred
financing costs related to the early retirement of the Company's Revolving
Credit Facility.
Net Loss. For the reasons stated above, net loss for the nine months
ended June 3, 1999 increased by $9.7 million to a loss of $11.1 million from a
loss of $1.4 million for the nine months ended May 28, 1998. As a percentage
of net sales, net loss for the nine months ended June 3, 1999 was 3.5%
compared to 0.6% for the nine months ended May 28, 1998.
Liquidity and Capital Resources
During the first nine months of fiscal 1999, the Company's cash and cash
equivalents decreased by $6.0 million. Net cash consumed by operating
activities was $8.7 million. Net cash used by investing activities was $13.9
million and net cash provided by financing activities was $16.6 million. Net
cash used by investing activities during the first nine months of fiscal 1999
primarily consisted of capital expenditures for additional manufacturing
capacity primarily in the U.S and implementation of the Company's new
enterprise resource planning ("ERP") system. Net cash generated from
financing activities principally resulted from net borrowings under the Credit
Facility.
The $8.7 million of cash consumed by operations was primarily due to an
increase in accounts receivable of $8.2 million and an increase in inventory of
$15.3 million during the nine months ended June 3, 1999. The growth in accounts
receivables related primarily to increased sales. The inventory increase
related to increased sales and, to a lessor extent, an end of quarter delay
related to supplier delivery of key components and the transition from legacy
material software to the new ERP software. The average collection period for
accounts receivable and the average inventory turns were 36.9 days and 9.9
turns, respectively, for the nine months ended June 3, 1999 compared to 43.6
days and 11.5 turns, respectively, for the corresponding period in fiscal
1998. The average collection period for accounts receivable and the average
inventory turns were 39.0 days and 10.0 turns, respectively, for the three
months ended June 3, 1999 compared to 35.6 days and 10.0 turns, respectively,
for the three months ended March 4, 1998. The average collection period and
average inventory turn levels vary, among other things, as a function of sales
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volume, sales volatility, product mix, payment terms with customers and
suppliers and the mix of consigned and turnkey business.
Capital expenditures during the first nine months of fiscal 1999 were
$13.9 million, including $9.8 million for additional manufacturing capacity
primarily in the U.S. and $4.1 million toward the implementation of the ERP
system. The Company anticipates additional capital expenditures of $0.9
million in fiscal 1999 to complete the ERP system implementation. See "Year 2000
Readiness Disclosure" and "Certain Factors-ERP System Implementation."
On February 26, 1999, the Company entered into a $60 million Senior Credit
Facility which matures on February 26, 2004. The Senior Credit Facility
includes both a $10 million facility restricted to the purchase of qualifying
equipment and a $50 million revolving credit facility. Amounts outstanding under
the equipment loan facility bear interest at the lesser of the applicable
Alternate Base Rate plus 0.25% or the Eurodollar Rate plus 2.50%, as defined in
the agreement, and borrowings are limited to the first three loan years.
Amounts outstanding under the revolving credit facility bear interest at the
lower of the applicable Alternate Base Rate or Eurodollar Rate plus 2.25%.
Amounts available to borrow under the revolving credit facility vary
depending on accounts receivable and inventory balances, which serve as
collateral along with substantially all of the other assets of the Company.
The Senior Credit Facility includes a quarterly commitment fee of 0.375% per
annum based upon the average unused portion and contains customary covenants
such as restrictions on capital expenditures, additional indebtedness and the
payment of dividends. In particular, the Senior Credit Facility contains a
covenant requiring that the Company maintain a fixed charge ratio of not less
than 1.0 to 1.0, provided, however, that this fixed charge ratio covenant will
not be applied to any fiscal quarter during the term as long as the Company
maintains at all times undrawn availability of more than $10 million.
In addition, if at any time undrawn availability is less than $10 million, the
fixed charge ratio will be applied to the immediately preceding month with
respect to the twelve months then ended. The Senior Credit Facility also
contains customary events of default. Any default under the Senior Credit
Facility could result in default of the Notes and Redeemable Preferred
Stock, as defined below. As of June 3, 1999, the Company had a $26.1 million
outstanding balance under the revolving credit facility and a $1.8 million
outstanding balance on the equipment loan facility.
On July 13, 1999, the Company amended the Senior Credit Facility
(as amended, the "Credit Facility"). The amendment adds existing equipment
to the borrowing base, modifies the advance rates and raises the maximum
amount available to borrow based on inventory collateral, and allows the full
amount of the credit facility to be drawn without triggering financial
covenants if adequate collateral is available. As of July 13, 1999, the
Company had a $20.2 million outstanding balance under the revolving credit
facility and a $2.1 million outstanding balance on the equipment loan facility.
As of July 13, 1999, the Company had approximately $21 million available to
borrow under the Credit Facility without triggering the fixed charge ratio
covenant, and $7.9 million available to borrow under the equipment loan
facility, respectively. As of July 13, 1999, had the Company consumed its
adjusted availability and been required to test the fixed charge ratio
covenant, the tested would not have been satisfied. See "Notes to Consolidated
Financial Statement--5. Long-term Debt" and "Certain Factors--Restrictions
Imposed by Terms of Indebtedness and Redeemable Preferred Stock".
The Company's principal sources of future liquidity are cash flows from
operating activities and borrowings under the Credit Facility. The Company is
highly leveraged and believes that these sources should provide sufficient
liquidity and capital resources to meet its current and future interest
payments, working capital and capital expenditures obligations. No assurance
can be given, however, that this will be the case. See "Certain Factors--High
Level of Indebtedness; Ability to Service Indebtedness and Satisfy Preferred
Stock Dividend Requirements."
Year 2000 Readiness Disclosure
State of Readiness
The Year 2000 presents many issues for the Company because many computer
hardware and software systems use only the last two digits to refer to a
calendar year. Consequently, these systems may fail to process dates
correctly after December 31, 1999, which may cause system failures. In October
1997, the Company established a cross-functional team chartered with the
specific task of evaluating all of the Company's software, equipment and
processes for Year 2000 compliance. This team determined that a substantial
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portion of the Company's systems, including its company-wide ERP system, were
not Year 2000 compliant and, therefore, developed a plan to resolve this
issue which includes, among other things, implementing a new ERP system. The
Company substantially completed implementation of this software in its US
facilities late in the third quarter of fiscal 1999 with completion scheduled
for the Company's Malaysian facility early in the fourth quarter of fiscal
1999 and the Belgian facility in late 1999. In addition, the Company retained
the services of outside consulting firms to review and assess the Company's
evaluation and implementation plan. The Company believes that the new ERP
system will make all "mission critical" company information and operational
systems Year 2000 compliant.
As part of the Company's Year 2000 compliance evaluation, the Company
began contacting key suppliers and significant customers to determine the extent
to which the Company is exposed to third party failure to remedy their
Year 2000 compliance issues. In order to assist in these efforts, the Company
joined a Year 2000 high tech consortium comprised of a number of companies in
the electronics industry. The mission of the consortium is to provide a
framework to facilitate the sharing of information and practices concerning the
Year 2000 readiness of suppliers as well as develop and utilize standardized
tools and methods to assess, mitigate and plan for potential Year 2000
disruptions. The Company believes that its efforts and membership in the high
tech consortium will significantly assist in the Year 2000 assessment of key
suppliers and customers. However, there can be no assurance that such
efforts and membership will adequately protect the Company from disruptions
caused by the failure of some or all of the Company's key suppliers and
customers to be Year 2000 compliant, which could have a material adverse effect
on the Company's business, financial condition and results of operations.
Costs
The total costs, whether capitalized or expensed, associated with
implementation and system modification relating to the Year 2000 problem is
anticipated to be approximately $11.4 million, excluding internal programming
time on existing systems. The total amount spent during the first nine months of
fiscal 1999 and since inception on this implementation was $4.4 million and
$10.2 million, respectively, with anticipated expenditures of approximately
$1.2 million during the remainder of fiscal 1999. This amount includes the
costs associated with new systems that will be Year 2000 compliant even though
such compliance was not the primary reason for installation.
Contingency Plan
Although the Company has no formal contingency plan related to the ERP
implementation at the present time, the implementation is on schedule with key
implementation dates established and completion is slated for late fiscal 1999.
If the ERP implementation is significantly delayed at any key implementation
date, the Company will develop appropriate contingency plans. However, there
can be no assurance that the Company will be able to develop contingency plans
on a timely basis, or at all, which could have a material adverse effect on the
Company's business, financial condition and results of operations.
The Company will be attempting to develop a contingency plan designed to
address other areas of the Company affected by the Year 2000 problem, including
problems which might arise from the failure of the Company's key suppliers and
customers to timely and adequately address Year 2000 issues. Contingency plans
with respect to supplier Year 2000 problems may include, among other things,
dual sourcing the supply of materials or changing suppliers.
Risks Associated with the Company's Year 2000 Issues
The Company presently believes that by modifying existing software and
converting to new software, such as the ERP system, the Year 2000 problem will
not pose significant operational problems for the Company's information systems.
While the Company believes the ERP implementation has been successful the
Company has encountered, and expects to continue to encounter, certain
operational issues, which it expects to resolve shortly. However, if such
modifications and conversions are not timely or properly implemented, the
Year 2000 problem could affect the ability of the Company, among other things,
to manufacture product, procure and manage materials, and administer functions
and processes, which could have a material adverse effect on the Company's
business, financial condition and results of operations. Additionally,
failure of third party suppliers to become Year 2000 compliant on a timely
basis could create a need for the Company to change suppliers and otherwise
impair the sourcing of components, raw materials or services to the
Company, or the functionality of such components or raw materials, any of
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which could have a material adverse effect on the Company's business,
financial condition and results of operations.
In addition, the Company's Year 2000 compliance efforts have caused
significant strain on the Company's information technology resources and, as
a result, could cause the deferral or cancellation of other important Company
projects. There can be no assurance that the delay or cancellation of
such projects will not have a material adverse effect on the Company's
business, financial condition and results of operations.
CERTAIN FACTORS
In addition to factors discussed elsewhere in this Form 10-Q and in
other Company filings with the Securities and Exchange Commission, the
following are important factors which could cause actual results or events to
differ materially from the historical results of the Company's operations or
those results or events contemplated in any forward-looking statements made by
or on behalf of the Company.
High Level of Indebtedness; Ability to Service Indebtedness and Satisfy
Preferred Stock Dividend Requirements
The Company is highly leveraged. At June 3, 1999, the Company had
approximately $203.4 million of total indebtedness outstanding, and Series B
12-1/2% Senior Preferred Stock (the "Redeemable Preferred Stock") outstanding
with an aggregate liquidation preference of $29.2 million. The Company may
incur additional indebtedness from time to time to provide for working
capital or capital expenditures or for other purposes, subject to certain
restrictions in (i) the Senior Credit Facility (ii) the Indenture (the
"Indenture") governing the Company's Series B 9-3/4% Senior Subordinated
Notes due 2008 and the Series B Floating Interest Rate Subordinated Term
Securities due 2008 (collectively, the "Notes"), (iii) the Certificate of
Designation relating to the Redeemable Preferred Stock (the "Certificate of
Designation") and (iv) the Indenture (the "Exchange Indenture") governing the
12-1/2% Subordinated Exchange Debentures (the "Exchange Debentures") due 2010
issuable in exchange for the Redeemable Preferred Stock.
The level of the Company's indebtedness could have important
consequences to the Company and the holders of the Company's securities,
including, but not limited to, the following: (i) a substantial portion of
the Company's cash flow from operations must be dedicated to debt service and
will not be available for other purposes; (ii) the Company's ability to
obtain additional financing in the future, as needed, may be limited; (iii)
the Company's leveraged position and covenants contained in the Indenture, the
Certificate of Designation, the Exchange Indenture and the Credit Facility
may limit its ability to grow and make capital improvements and acquisitions;
(iv) the Company's level of indebtedness may make it more vulnerable to economic
downturns; and (v) the Company may be at a competitive disadvantage because
some of the Company's competitors are less financially leveraged, resulting in
greater operational and financial flexibility for such competitors.
The ability of the Company to pay cash dividends on, and to satisfy the
redemption obligations in respect of, the Redeemable Preferred Stock and to
satisfy its debt obligations, including the Notes, will be primarily dependent
upon the future financial and operating performance of the Company. Such
performance is dependent upon the Company's rate of growth and profitability
and the ability of the Company to manage its working capital effectively,
including its inventory turns and accounts receivable collection period. The
Company may require additional equity or debt financing to meet its interest
payments, working capital requirements and capital equipment needs. There can
be no assurance that additional financing will be available when required or, if
available, will be on terms satisfactory to the Company. The Company's future
operating performance and ability to service or refinance the Notes and to
repay, extend or refinance the Credit Facility will be subject to future
economic conditions and to financial, business and other factors, many of
which are beyond the Company's control. If the Company is unable to generate
sufficient cash flow to meet its debt service obligations or provide adequate
long-term liquidity, it will have to pursue one or more alternatives, such as
reducing or delaying capital expenditures, refinancing debt, selling assets or
raising equity capital. There can be no assurance that such alternatives could
be accomplished on satisfactory terms, if at all, or in a timely manner.
Restrictions Imposed by Terms of Indebtedness and Redeemable Preferred Stock
The Indenture, the Certificate of Designation, the Exchange Indenture
and the Credit Facility contain certain covenants that restrict, among other
things, the ability of the Company and its subsidiaries to incur additional
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indebtedness, consummate certain assets sales and purchases, issue preferred
stock, incur liens, pay dividends or make certain other restricted payments,
enter into certain transactions with affiliates, merge or consolidate with any
other person or sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of the assets of the Company and its subsidiaries,
none of which impaired the Company's ability to conduct business in the first
nine months of fiscal 1999. A breach of any of these covenants could result in
a default under the Credit Facility, the Indenture and the Exchange Indenture
and would violate certain provisions of the Certificate of Designation. The
Credit Facility contains a covenant requiring that the Company maintain a fixed
charge ratio of not less than 1.0 to 1.0, provided, however, that this fixed
charge ratio covenant will not be applied to any fiscal quarter during the term
as long as the Company maintains at all times undrawn availability of more
than $10 million. As of July 13, 1999, had the Company consumed its adjusted
availability and been required to test the fixed charge ratio covenant, the
tested would not have been satisfied.
In the event the Company is unable to satisfy the requirements of this
fixed charge ratio, the availability of capital from bank borrowings,
including but not limited to the ability to access the Credit Facility, could
be adversely affected. The inability to borrow under the Credit Facility could
have a material adverse effect on the Company's business, financial condition
and results of operations.
Upon an event of default under the Credit Facility, the Indenture or the
Exchange Indenture, the lenders thereunder could elect to declare all amounts
outstanding thereunder, together with accrued interest, to be immediately due
and payable. In the case of the Credit Facility, if the Company were unable
to repay those amounts, the lenders thereunder could proceed against the
collateral granted to them to secure that indebtedness. Such collateral is
comprised of substantially all of the tangible and intangible assets of
the Company, including the capital stock and membership interests of its
subsidiary stock.
Customer Concentration; Dependence on Certain Industries
Certain customers account for significant portions of the Company's net
sales. For the first nine months of fiscal 1999 approximately 83.7% of net
sales were derived from networking and telecommunications customers. In
addition, for the third quarter and first nine months of fiscal 1999, the
Company's ten largest customers accounted for approximately 88.0% and 87.3%,
respectively, of net sales. The Company's top two customers accounted for
approximately 44.5% and 20.5%, respectively, of net sales in the first nine
months of fiscal 1999. In addition, the Company has another major customer
that operates under a consignment manufacturing model and, while sales are
less than 10% of total revenue, the customer makes an important contribution
to the Company's overall financial performance. Moreover, the Company has
significant customer concentration at a site level. Volatility in demand
from these customers may lead to reduced site capacity utilization and have a
negative effect on the Company's gross margin. Decreases in sales to or
margins with these or any other key customers could have a material adverse
effect on the Company's business, financial condition and results of opera-
tions. See "Management's Discussion and Analysis of Financial Condition and
Results of Operations--Results of Operations."
The Company expects to continue to depend upon a relatively small number
of customers for a significant percentage of its net sales. There can be no
assurance that the Company's principal customers will continue to purchase
services at current levels, if at all. The percentage of the Company's sales
to these customers may fluctuate from period-to-period. Significant reductions
in sales to any of the Company's major customers as well as period-to-period
fluctuations in sales and changes in product mix ordered by such customers
could have a material adverse effect on the Company's business, financial con-
dition and results of operations. In addition, in the event the Company were to
lose a key customer at a specific site, the Company may be forced to reduce its
workforce at such site, reallocate manufacturing demand or close the site,
any of which could have a material adverse effect on the Company's business,
financial condition and results of operations.
In addition, the Company is dependent upon the continued growth, viability
and financial stability of its OEM customers, which are in turn substantially
dependent on the growth of the networking, telecommunications, computer
systems and other industries. These industries are subject to rapid technologi-
cal change, product obsolescence and price competition. Many of the
Company's customers in these industries are affected by general economic
conditions. Currency devaluations and economic slowdowns in various Asian
and European economies may have an adverse effect on the results of operations
15
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of certain of the Company's OEM customers, and in turn, their orders from the
Company. These and other competitive factors affecting the networking,
telecommunications and computer system industries in general, and the
Company's OEM customers in particular, could have a material adverse effect
on the Company's business, financial condition and results of operations.
Moreover, any further volatility in the market for DRAM components caused by,
among other things, the turmoil in the Asian economies, could have
a material adverse effect on MTI, which has historically been one of the
Company's major customers, and consequently the Company's business, financial
condition and results of operations. See "Management's Discussion and Analysis
of Financial Condition and Results of Operations--Results of Operations."
Variability of Results of Operations
The Company's operations may be affected by a number of factors including
economic conditions, price competition, the level of volume and the timing of
customer orders, product mix, management of manufacturing processes, materials
procurement and inventory management, fixed asset and plant utilization,
foreign currency fluctuations, the level of experience in manufacturing a
particular product, customer product delivery requirements, availability and
pricing of components, availability of experienced labor and failure to
introduce, or lack of market acceptance, new processes, services,
technologies and products. In addition, the level of net sales and gross
margin can vary significantly based on whether certain projects are
contracted on a turnkey basis, where the Company purchases materials, versus
on a consignment basis, where materials are provided by the customer (turnkey
manufacturing tends to result in higher net sales and lower gross margins
than consignment manufacturing). An adverse change in one or more of these
factors could have a material adverse effect on the Company's business,
financial condition and results of operations.
In addition, customer orders can be canceled and volume levels can be
changed or delayed. From time to time, some of the Company's customers have
terminated their manufacturing arrangements with the Company, and other
customers have reduced or delayed the volume of design and manufacturing
services performed by the Company. Resolving customer obligations due to
program or relationship termination and the replacement of canceled, delayed
or reduced contracts with new business cannot be assured. Termination of a
manufacturing relationship or changes, reductions or delays in orders could
have a material adverse effect on the Company's business, financial condition
and results of operations.
Management of Growth
Expansion has caused, and is expected to cause, strain on the Company's
infrastructure, including its managerial, technical, financial, information
systems and other resources. To manage further growth, the Company must
continue to enhance financial and operational controls, develop or hire
additional executive officers and other qualified personnel. Continued growth
will also require increased investments to add manufacturing capacity and to
enhance management information systems. See "Certain Factors-ERP System
Implementation." There can be no assurance that the Company will be able to
scale its internal infrastructure and other resources to effectively manage
growth and the failure to do so could have a material adverse effect on the
Company's business, financial condition and results of operations.
The markets served by the Company are characterized by short product life
cycles and rapid technology changes. The Company's ability to successfully
support new product introductions is critical to the Company's customers. New
product introductions have caused, and are expected to continue to cause,
certain inefficiencies and strain on the Company's resources. Any such
inefficiencies could have a material adverse effect on the Company's business,
financial condition and results of operations.
New operations, whether foreign or domestic, can require significant
start-up costs and capital expenditures. In the event that the Company
continues to expand its domestic or international operations, there can be no
assurance that the Company will be successful in generating revenue to recover
start-up and operating costs. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations--Results of Operations."
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ERP System Implementation
In fiscal 1997, the Company finalized selection of a company-wide ERP
software solution to, among other things, accommodate the future growth and
requirements of the Company and, in early fiscal 1998, the Company began
implementation of the ERP system. The Company based its selection criteria
on a number of items it deemed critical, and included among other things,
multi-site and foreign currency capabilities, 7x24 hour system availability,
enhanced customer communications, end-order fulfillment and other mix mode
manufacturing support and year 2000 compliance. The Company substantially
completed implementation of this software in its US facilities late in the
third quarter of fiscal 1999 with completion scheduled for the Company's
Malaysian facility early in the fourth quarter of fiscal 1999 and the Belgian
facility in late 1999. While the Company believes the ERP implementation has
been successful the Company has encountered, and expects to continue to encoun-
ter, certain operational issues, which it expects to resolve shortly. There
can be no assurance that the Company will be successful and timely in its
implementation efforts and any delay of, or problems associated with, such
implementation could have a material adverse affect on the Company's business,
financial condition and results of operations.
Competition
The electronics manufacturing services industry is intensely competitive
and subject to rapid change, and includes numerous regional, national and
international companies, a number of which have achieved substantial market
share. The Company believes that the primary competitive factors in its target-
ed markets are manufacturing technology, product quality, responsiveness and
flexibility, consistency of performance, range of services provided, the
location of facilities and price. To be competitive, the Company must
provide technologically advanced manufacturing services, high quality products,
flexible production schedules and reliable delivery of finished products on a
timely and price competitive basis. Failure to satisfy any of the foregoing
requirements could materially and adversely affect the Company's competitive
position. The Company competes directly with a number of EMS firms, including
Celestica International Holdings Inc., Flextronics International, Ltd., Jabil
Circuits, Inc., SCI Systems, Inc., Sanmina Corporation and Solectron
Corporation. The Company also faces indirect competition from the captive
manufacturing operations of its current and prospective customers, which
continually evaluate the merits of manufacturing products internally rather than
using the services of EMS providers. Many of the Company's competitors have
more geographically diversified manufacturing facilities, international
procurement capabilities, research and development and capital and
marketing resources than the Company. In addition, the Company may be at a
competitive disadvantage because some of the Company's competitors are less
financially leveraged, resulting in, among other things, greater operational
and financial flexibility for such competitors. See "Certain Factors--High
Level of Indebtedness; Ability to Service Indebtedness and Satisfy Preferred
Stock Dividend Requirements." In recent years, the EMS industry has attracted
new entrants, including large OEMs with excess manufacturing capacity,
and many existing participants have substantially expanded their manufacturing
capacity by expanding their facilities through both internal expansion
and acquisitions. In the event of a decrease in overall demand for EMS
services, this increased capacity could result in substantial pricing
pressures, which could have a material adverse effect on the Company's
business, financial condition and results of operations.
Capital Requirements
The Company believes that, in order to achieve its long-term expansion
objectives and maintain and enhance its competitive position, it will need
significant financial resources over the next several years for capital
expenditures, including investments in manufacturing capabilities and manage-
ment information systems, working capital and debt service. The Company has
added significant manufacturing capacity and increased capital expenditures
since 1995. In April 1995, it opened its Durham, North Carolina facility. In
October 1996, it opened its first international facility in Penang, Malaysia
and moved from its former Boise, Idaho facility to a new facility in Nampa,
Idaho. In November 1997, it purchased its first European facility in
Colfontaine, Belgium from Alcatel. In June 1999, the Company announced that
it would move its Penang, Malaysia facility from the original 18,000 square foot
facility into an 118,000 square foot facility by September of 1999. The
precise amount and timing of the Company's future funding needs cannot be
determined at this time and will depend upon a number of factors, including
the demand for the Company's services and the Company's management of its
working capital. The Company may not be able to obtain additional financing on
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acceptable terms or at all. If the Company is unable to obtain sufficient
capital, it could be required to reduce or delay its capital expenditures and
facilities expansion, which could materially adversely affect the Company's
business, financial condition and results of operations. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations--
Liquidity and Capital Resources."
International Operations
The Company currently offers EMS capabilities in North America, Asia and
Europe. In the third quarter of fiscal 1999, net sales attributable to foreign
operations totaled $8.4 million or 7.6% of total net sales. The Company may be
affected by economic and political conditions in each of the countries in
which it operates and certain other risks of doing business abroad, including
fluctuations in the value of currencies, import duties, changes to import and
export regulations (including quotas), possible restrictions on the transfer
of funds, employee turnover, labor or civil unrest, inadequate law enforcement,
long payment cycles, greater difficulty in collecting accounts receivable, the
burdens, cost and risk of compliance with a variety of foreign laws,
and, in certain parts of the world, political and economic instability. In
addition, the attractiveness of the Company's services to its United States
customers is affected by United States trade policies, such as "most favored
nation" status and trade preferences, which are reviewed periodically by the
United States government. Changes in policies by the United States or foreign
governments could result in, for example, increased duties, higher taxation,
currency conversion limitations, hostility toward United States-owned
operations, limitations on imports or exports, or the expropriation of
private enterprises, any of which could have a material adverse effect on the
Company's business, financial condition or results of operations. The Company's
Belgian operations are subject to labor union agreements covering managerial,
supervisory and production employees, which set standards for, among other
things, the maximum number of working hours and minimum compensation levels. In
addition, economic considerations may make it difficult for the Company to
compete effectively compared to other lower cost European locations. The
Company's Malaysian operations and assets are subject to significant political,
economic, legal and other uncertainties customary for businesses located in
Southeast Asia.
The Company's international operations are based in Belgium and Malaysia.
The functional currencies of the Company's international operations are the
Belgian Franc and the Malaysian Ringgit. The Company's financial performance
may be adversely impacted by changes in exchange rates between these currencies
and the U.S. dollar. Fixed assets for the Belgian and Malaysian operations are
denominated in each entity's functional currency and translation gains or
losses will occur as the exchange rate between the local functional currency
and the U.S. dollar fluctuates on each balance sheet reporting date. The
Company's investments in fixed assets as of June 3, 1999 were $5.8 million
(8.7% of total fixed assets) and $4.6 million (7.0% of total fixed assets) in
Belgium and Malaysia, respectively. As of June 3, 1999, the Company's $2.1
million net cumulative translation loss was comprised of a $2.2 million
cumulative translation loss for the Malaysian operation offset by a $0.1
million cumulative translation gain for the Belgian operation. The Company's
equity investments in Belgium and Malaysia are long-term in nature and, there-
fore, the translation adjustments are shown as a separate component of
shareholders' equity and do not effect the Company's net income. An additional
risk is that certain working capital accounts such as accounts receivable and
accounts payable are denominated in currencies other than the functional
currency and may give rise to exchange gains or losses upon settlement
or at the end of any financial reporting period. Sales in currencies other
than the functional currency were approximately 1.0% and 6.0% of consolidated
sales for the quarter ended June 3, 1999 for Belgium and Malaysia, respective-
ly. During fiscal 1998, the exchange rate between the Malaysian Ringgit and
U.S. dollar was extremely volatile. In September 1998, the Malaysian government
imposed currency control measures which, among other things, fixed the
exchange rate between the United States dollar and the Malaysian Ringgit and
make it more difficult to repatriate the Company's investments. In January
1999, the Euro became the official currency of eleven countries, including
Belgium, and a fixed conversion rate between the Belgian Franc and the Euro was
established. For three years after the introduction of the Euro, the
participating countries can perform financial transactions in either the Euro
or their original local currencies. This will result in a fixed exchange rate
among the participating countries, whereas the Euro (and the participating
countries' currencies in tandem) will continue to float freely against the
U.S. dollar and other currencies of non-participating countries. The Company
is currently evaluating the timing of changing the functional currency of its
Belgian operation from the Belgian Franc to the Euro and is required to
18
<PAGE>
finalize this change no later than January 2002. The Company attempts to
minimize the impact of exchange rate volatility by entering into U.S. dollar
denominated transactions whenever possible for purchases of raw materials and
capital equipment and by keeping minimal cash balances of foreign currencies.
Direct labor, manufacturing overhead, and selling, general and administrative
costs of the international operations are also denominated in the local
currencies. Transaction losses are reflected in the Company's net income. As
exchange rates fluctuate, the Company will continue to experience translation
and transaction adjustments related to its investments in Belgium and Malaysia
which could have a material and adverse effect on the Company's business,
financial condition and results of operations.
Dependence on Key Personnel
The Company's continued success depends to a large extent upon the efforts
and abilities of key managerial and technical employees. The Company's business
will also depend upon its ability to continue to attract and retain qualified
employees. Although the Company has been successful in attracting and retaining
key managerial and technical employees to date, the loss of services of certain
key employees, in particular, any of its executive officers, or the Company's
failure to continue to attract and retain other key managerial and technical
employees could have a material adverse effect on the Company's business,
financial condition and results of operations.
Environmental Regulations
The Company is subject to a variety of environmental laws and regulations
governing, among other things, air emissions, waste water discharge, waste
storage, treatment and disposal, and remediation of releases of hazardous
materials. While the Company believes that it is currently in material
compliance with all such environmental requirements, any failure to comply
with present and future requirements could have a material adverse effect on
the Company's business, financial conditions and results of operations. Such
requirements could require the Company to acquire costly equipment or to
incur other significant expenses to comply with environmental regulations. The
imposition of additional or more stringent environmental requirements, the
results of future testing at the Company's facilities, or a determination that
the Company is potentially responsible for remediation at other sites where
problems are not presently known, could result in expenditures in excess of
amounts currently estimated to be required for such matters.
Concentration of Ownership
Cornerstone Equity Investors and certain other investors beneficially
own, in the aggregate, approximately 90.0% of the outstanding capital stock
(other than the Redeemable Preferred Stock) of the Company. As a result,
although no single investor has more than 49.0% of the voting power of the
Company's outstanding securities or the ability to appoint a majority of the
directors, the aggregate votes of these investors could determine the
composition of a majority of the board of directors and, therefore, influence
the management and policies of the Company.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company uses the U.S. dollar as its functional currency, except for
its operations in Belgium and Malaysia. The Company has evaluated the poten-
tial costs and benefits of hedging potential adverse changes in the exchange
rates between U.S. dollar, Belgian Franc and Malaysian Ringgit. Currently, the
Company does not enter into derivative financial instruments because a sub-
stantial portion of the Company's sales in these foreign operations are in
U.S. dollars. The assets and liabilities of these two operations are
translated into U.S. dollars at an exchange rates in effect at the period end
date. Income and expense items are translated at the year-to-date average
rate. Aggregate transaction losses included in net income for the third quar-
ter and first nine months of fiscal 1999 were $0.4 million and $0.7 million, re-
spectively, for the Belgian operation. There were no transaction losses for the
Malaysian operation in either period.
19
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PART II OTHER INFORMATION
- ---------------------------------
ITEM 6. EXHIBITS
(a) The following are filed as part of this report:
Exhibit Description
10.17(a) Lease, dated as of June 18, 1999, by and between MCMS, Sdn.
Bhd. and Klih Project Management, Sdn. Bhd.
10.4 (c) First Amendment, dated as of July 13, 1999,
to Credit Agreement, dated as of February 26, 1999,
among MCMS, Inc., PNC Bank, as agent, and various
lending institutions.
27 Financial Data Schedules.
(b) Reports on Form 8-K:
During the third quarter of Fiscal 1999, no reports on Form 8-K were
filed.
20
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed on behalf of the registrant by the following duly
authorized person.
MCMS, Inc.
(Registrant)
Date: July 16, 1999 /s/ Chris J. Anton
Vice President, Finance and Chief
Financial Officer (Principal Financial
Officer and Accounting Officer)
21
<PAGE>
DATED THIS 18TH DAY OF JUNE 1999
BETWEEN
KLIH PROJECT MANAGEMENT SDN. BHD.
(Company No.14962-D)
("LESSOR")
AND
MEC AUDIO VISUAL PRODUCTS SDN. BHD.
(Company No.170217-X)
("MEC")
AND
MCMS SDN. BHD.
(Company No.399136-M)
("LESSEE")
******************************************
AGREEMENT FOR A LEASE
******************************************
MESSRS GHAZI & LIM
ADVOCATES & SOLICITORS
19TH FLOOR, MWE PLAZA
NO.8 LEBUH FARQUHAR
10200 GEORGETOWN
PENANG, WEST MALAYSIA
TEL: (604)-2633688
FAX: (604)-2627433
E-MAIL: [email protected]
(OUR REF: M38/99/KBC/c)
Disk C8: M38-99LE.ASE
22
<PAGE>
THIS AGREEMENT FOR A LEASE is made the 18th day of June 1999
BETWEEN:
1. PARTIES
1.1 Lessor
KLIH PROJECT MANAGEMENT SDN. BHD. (Company No.14962-D), a
company incorporated in Malaysia and having its
registered office at 11th Floor, Wisma KLIH, No.126 Jalan
Bukit Bintang, 55100 Kuala Lumpur (hereinafter referred
to as "the Lessor") of the first part; AND
1.2 MEC
MEC AUDIO VISUAL PRODUCTS SDN. BHD. (Company No.170217-
X), a company incorporated in Malaysia and having its
registered office at 11th Floor, Wisma KLIH, No.126 Jalan
Bukit Bintang, 55100 Kuala Lumpur (hereinafter referred
to as "MEC") of the second part; AND
1.3 Lessee
MCMS SDN. BHD. (Company No.399136-M), a company
incorporated in Malaysia and having its registered office
at 7th Floor (Room 7-02) Wisma Penang Garden, No.42 Jalan
Sultan Ahmad Shah, 10050 Penang, Malaysia (hereinafter
referred to as "the Lessee") of the third part.
2. RECITALS
2.1 The Lessor is the registered proprietor of all those five
(5) pieces of land known as Lots No.P.T.1223, 1224, 1225
and 1226, Mukim 12, Daerah Barat Daya, Negeri Pulau
Pinang held under Suratan Hakmilik Sementara
No.H.S.(D)6941, 6942, 6943 AND 6944 and Lot No.8130,
Mukim 12, Daerah Barat Daya held under Pajakan Negeri
No.1765 together with the factory erected thereon
(hereinafter referred to as "the Factory") located at
Lorong Sg. Tiram, Bayan Lepas, FIZ II, 11900 Bayan Lepas,
Penang with a built up area of approximately 118,340.92
square feet made up as follows:
(a) production floor space 37,629 square feet;
(b) office space 17,500 square feet; and
(c) warehouse and other space 63,211.92
square feet
and the furnitures, air-conditioners, lighting and other
fittings as set out in the inventory list annexed hereto
as the First Schedule (hereinafter referred to as "the
Furniture and Fittings")(the abovementioned Land, the
Factory and the Furnitures and Fittings are hereinafter
collectively referred to as "the Demised Land")
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<PAGE>
2.2 The Lessor has charged the Demised Land to STANDARD
CHARTERED BANK MALAYSIA BERHAD (Company No.115793-P), a
company incorporated in Malaysia under the Companies Act,
1965 and having a place of business at No.2 Beach Street,
10300 Penang (hereinafter referred to as "the Chargee")
under Charge Presentation No.3571/98 Volume No.780 Folio
No.100 (hereinafter referred to as "the Charge") as
security for a loan granted by the Chargee to MEC.
2.3 By an agreement made the 22nd day of August 1996 between
the Lessor of the one part and MEC of the other part
(hereinafter referred to as "the Sale and Purchase
Agreement") the Lessor, with the consent of the Chargee
sold and MEC purchased the Demised Land for the
consideration and upon the terms and conditions more
fully set out in the Sale and Purchase Agreement.
2.4 MEC has paid the full purchase price of the Demised Land
and fully complied with the terms and conditions of the
Sale and Purchase Agreement as hereby irrevocably and
expressly acknowledged by the Lessor but the Demised Land
has yet to be transferred to MEC.
2.5 The Demised Land is subject to the following restrictions
in interest:-
2.5:1 The Demised Land shall not be
transferred, charged, leased, sub-leased or
otherwise in any manner dealt with or dispose
of without the written sanction of the State
Authority; and
2.5:2 The Demised Land shall not be sub-
divided.
2.6 MEC and the Lessor, with the consent of the Chargor has
agreed to let and the Lessee has agreed to take a lease
of the Demised Land for the duration and upon the terms
and conditions of this Agreement.
3. DEFINITIONS AND INTERPRETATIONS
3.1 Definitions
Unless the context shall otherwise require, the terms
defined in Clause 1 shall for all purpose of this
Agreement have the meaning specified.
Contractual : The period of three (3) years and three
Terms (3) months and includes the renewed term
if the Option to Renew specified in Clause 11 is
exercised
Chargee : STANDARD CHARTERED BANK
MALAYSIA BERHAD (Company No.115793-P)
24
<PAGE>
Demised Land : All those five (5) pieces of land known as
Lots No.P.T.1223, 1224, 1225 and 1226, Mukim 12,
Daerah Barat Daya, Negeri Pulau Pinang held under
Suratan Hakmilik Sementara No.H.S.(D)6941, 6942,
6943 AND 6944 respectively and Lot No.8130, Mukim 12,
Daerah Barat Daya held under Pajakan Negeri No.1765 as
stated in the Schedule above together with the
Factory erected thereon and the Furniture
and Fittings thereto
Factory : The factory erected on the Demised Land located at
Lorong Sg. Tiram, Bayan Lepas, FIZ II, 11900 Bayan Lepas,
Penang with a built up area of 118,340.92 square feet
made up as follows:
(a) production floor space 37,629 square feet
(b) office space 17,500 square feet
(c) warehouse and other space 63,211.92 square feet
Furniture : The Furniture and Fittings in the Factory
and Fittings as stated in the inventory list annexed hereto
as the First Schedule
Lease : The Lease of the Demised Land in Form 15A of the
National Land Code for a term of three (3) years and
three (3) months with an option to renew the Lease for
a further term of three (3) years and three (3) months
upon the same terms covenants and conditions contained
therein and includes any instrument supplemental to it
but at a revised rent as hereinafter provided and in
the event the Lease is converted into a tenancy
pursuant to Clause 6.4(b) the expression "the Lease"
shall include the converted tenancy
Lessor : KLIH PROJECT MANAGEMENT
SDN. BHD. (Company No.14962-D)
MEC : MEC AUDIO VISUAL PRODUCTS
SDN. BHD. (Company No.170217-X)
Option to : The option to renew the Lease for a further term of
Renew three (3) years and three (3) months as provided in
Clause 11
Parties/Party : It means the Lessor and/or the Lessee and/or MEC
25
<PAGE>
Renewed Term : The further period of three (3) years and three (3)
months renewed pursuant to Clause 11
Rent : The amount of rental payable for the entire duration
of the Lease and the renewed Lease which particulars
are as described in Clause 5 herein
Rent : The 1st day of September 1999
Commencement
Date
Sale and : The Agreement made the 22nd day of August 1996 between
Purchase the Lessor as vendor and MEC as purchaser in respect
Agreement of the Demised Land
Sub-Tenant : LEMTRONICS SDN. BHD. (Company No.167912-P), a company
incorporated in Malaysia and having its registered office at
Bayan Lepas, FIZ, Phase II, 11900 Bayan Lepas, Penang
Valuer : The valuer appointed pursuant to Clause 11.3(b)
3.2 Clauses and Clause Heading
The Clause and paragraph heading in this Agreement are
for the ease of reference only and shall not be taken
into account in the construction or interpretation of any
covenants conditions or proviso to which they refer.
3.3 Singular and Plural Meanings
Words in this Agreement importing singular meaning shall
where the context so admits include the plural meaning
and vice versa.
3.4 Acts, Statute and Statutory Instruments
References in this Agreement to any Acts, statutes or
statutory instrument shall include and refer to any Acts,
statute or statutory instrument amending consolidating or
replacing them respectively from time to time and for the
time being in force.
3.5 Gender
Words in this Agreement of the masculine gender shall
include the feminine and neuter gender and vice versa and
words denoting natural persons shall include corporations
and firms and all such words shall be construed
interchangeably in that manner.
26
<PAGE>
4. DEMISE
The Lessor with the consent of MEC hereby demises and the
Lessee hereby accepts a lease of the Demised Land
inclusive of the Factory and the Furniture and Fittings
TO HOLD the Demised Land to the Lessee for the
Contractual Term SUBJECT to all rights easements
privileges restrictions covenants and stipulations
appearing in the title to the Demised Land YIELDING AND
PAYING to the Lessor the Rent as stated and in the manner
set out in Clause 5.
5. RENT
5.1 The Lessee shall pay the Lessor a Rent of Ringgit
Malaysia One Hundred and Eighty Thousand (RM180,000.00)
only per month for the Contractual Term in the following
manner:-
(a) the Rent for the first three (3) months or the
first quarter of the Contractual Term shall be
payable monthly in advance, the first month's Rent
to be payable on the Rent Commencement Date and each
subsequent payment for the next two (2) months to be
made on or before the seventh (7th) day of each
succeeding month;
(b) the Rent for the rest of the Contractual Term
shall be payable quarterly in advance on or before
the seventh (7th) day of each succeding quarter.
5.2 There will be no increase in the Rent payable for the
initial Contractual Term.
5.3 The Rent payable for the Renewed Term (in the event that
the Lessee does exercise its option to renew) shall be
the sum as calculated in accordance with Clause 11.3(b).
6. STATE AUTHORITY CONSENT
6.1 This Agreement shall be conditional upon the approval of
the Penang State Authority without conditions or (if
conditional) upon terms and conditions acceptable to the
Lessee.
6.2 The Lessee's Solicitor shall apply for the consent of the
Penang State Authority but the application fees and the
consent fees (if any) imposed by the State Authority and
the Penang Development Corporation shall be borne by MEC
but payable by the Lessee and subsequently deducted from
future Rent payable to the Lessor under this Agreement.
27
<PAGE>
6.3 The Lessee may appeal against any of the conditions
imposed by the Penang State Authority.
6.4 In the event the approval of the Penang State Authority
cannot be obtained and/or the appeal against the
conditions imposed by the Penang State Authority is
rejected and/or the conditions imposed by the Penang
State Authority are not acceptable to the Lessee, the
Lessee shall by notice in writing to the Lessor, elect
either to:-
(a) terminate this Agreement whereupon the Lessee
shall deliver up possession of the Demised Land to
the Lessor and neither party shall have any further
claims whatsoever; or
(b) convert this Agreement into a tenancy exempt
from registration for three (3) years with an option
to renew for a further period of three (3) years but
otherwise upon the same terms and conditions as this
Agreement and the expressions "the Contractual Term"
and "the Renewed Term" shall wherever appearing
herein be construed accordingly and the parties
undertake to pay all such charges and consent fees
and do all acts and things and execute all such
documents as may be necessary or expedient to
perfect the tenancy of the Demised Land.
6.5 Notwithstanding anything to the contrary herein, the
Lessee shall pay and continue to pay the Rent herein
unless and until this Agreement is terminated pursuant to
Clause 6.4(a).
6.6 The Lessee shall inform the Lessor upon the acceptance of
the approval of the State Authority to the Lease and the
Parties shall within seven (7) days of the notice from
the Lessee's Solicitors execute the Lease in the form of
the Lease Annexure annexed hereto as the Second Schedule
and all other relevant documents and to as many copies
thereof as may be necessary.
7. LESSEE'S COVENANTS
The Lessee covenants with the Lessor and/or MEC as
follows:-
7.1 To pay the Rent on the days and in the manner
set out in this Agreement;
7.2 To pay all charges (if any) for removal of
refuse in connection with the occupation by the
Lessee of the Demised Land;
28
<PAGE>
7.3 To pay for all the water and electricity and
other charges consumed by the Lessee on the Demised
Land as from 1st July 1999 and the Lessee shall be
entitled to all income in respect of the Demised
Land from 1st July 1999;
7.4 To remove any unauthorised additions made to
the Demised Land at the expiration of the
Contractual Term unless agreed upon not to by the
Parties hereto and the Lessee shall make good any
part or parts of the Demised Land which may be
damaged by such removal;
7.5 To permit the Lessor or MEC and/or its
authorised servants or agents at reasonable times to
enter into and inspect and view the Demised Land and
examine their conditions after a seven (7) days
written notice is given to the Lessee Provided that
the Lessor/MEC and/or its authorised servants or
agents shall comply with all reasonable directions
of the Lessee with respect to security procedures to
be observed and protective gears and special
clothings to be worn by the Lessor's or MEC's
servants and agents during the inspection;
7.6 To comply with the requirements of any relevant
authorities relating to anything done upon the
Demised Land by the Lessee and to indemnify the
Lessor against all actions, proceedings, claims or
demands which may be brought or made by reason of
default in compliance with them;
7.7 To indemnify the Lessor or MEC against any
claims proceedings or demands and costs and expenses
so incurred which may be brought against the Lessor
or MEC by any employee workman agent or visitor of
the Lessee in respect of any accidental loss or
damage whatsoever to person or property on the
Demised Land due to the negligence or wilful act of
the Lessee;
7.8 To pay the Rent to the Chargee whose receipt
the Lessor and MEC hereby irrevocably acknowledge to
the valid and sufficient discharge to the Lessee and
to this end the Lessor and MEC undertake to execute
an Assignment of the Rent herein to the Chargee upon
such terms and conditions as the Chargee may
require;
7.9 Not to cause any land roads or pavements on the
Demised Land to be untidy or in a dirty condition
and in particular not to deposit on them refuse or
other materials;
7.10 Not to use the Demised Land for any illegal or
immoral activities or purpose or to keep any animals
or pets in it other than guard dogs;
29
<PAGE>
7.11 Not to do in or upon the Demised Land anything
which may be a nuisance annoyance disturbance
inconvenience or damage to the occupiers of
neighbouring factories;
7.12 Not without the prior written consent of the
Lessor or MEC to assign underlet, charge or part
with the possession of the Demised Land or any part
thereof save and except to the Sub-Tenant;
7.13 Not to commit any waste; and
7.14 Not to hold or permit or suffer to be held on
the Demised Land any sale by public auction.
8. YIELD UP
At the expiration of the Contractual Term or the sooner
termination of this Lease, the Lessee shall:
8.1 yield up the Demised Land in accordance with
the terms of this Lease;
8.2 remove all signs erected by the Lessee in upon
or near the Demised Land and immediately to make
good any damage caused by such removal.
9. LESSOR'S AND MEC'S COVENANTS
9.1 The Lessor and MEC jointly and severally covenant and
agree with the Lessee as follows:-
(a) that if the Lessee shall pay the Rent hereby
reserved and observe and perform the stipulations on
their part herein contained they shall peaceably
hold and enjoy the Demised Land during the
Contractual Term without any interruption by the
Lessor or any person rightly claiming under or in
trust for it;
(b) to grant the Option to Renew the Lease as
stated in Clause 11;
(c) to permit the Lessee to commence to fit out and
renovate the Factory for its manufacturing and
business activities forthwith upon execution of this
Agreement;
(d) to permit the Lessee to repair and make good
and any existing defects and damage to Factory at
the cost and expense of MEC provided always that the
costs of such repairs shall be evidenced by the
appropriate receipts shall not exceed the sum of
Ringgit Malaysia One Hundred and Six Thousand
(RM106,000.00) and provided further that the Lessee
30
<PAGE>
shall advance for the costs of such repair and
deduct such advances from the Rent payable under
this Agreement;
(e) to permit (but it shall not be obligatory upon)
the Lessee to execute such repairs or works as
verified by the Valuer or make such payments or
perform such obligations of the Lessor and/or MEC
herein including in particular MEC's covenants in
Clauses 9.1(g) and 9.2 at the cost and expenses of
MEC upon the failure or refusal of the Lessor and
MEC to forthwith execute the same and any costs and
expenses incurred shall be deducted or set off
against the Rent payable herein subject to a maximum
non-cumulative deduction equivalent to one (1)
month's Rent per annum;
(f) to permit the Lessee to sublet any part of the
Demised Land to the Sub-Tenant on such terms and
conditions as the Lessee may deem fit; and
(g) to insure and keep the Factory fully insured
for the full cost of rebuilding and reinstating the
same with a reputable insurance office in the joint
names of the Lessor and the Lessee against
destruction or damage by fire, lightning, explosion,
aircraft (including articles dropped from aircraft),
riot, civil commotion, malicious persons,
earthquake, storm, tempest, flood, bursting and
overflowing of water pipes, tanks and other
apparatus and impact by road vehicles and in case of
any such damage or destruction as aforesaid
happening to the Factory or any part thereof to
apply any money received by it in respect thereof
under any insurance in reinstating and restoring the
parts thereof so damaged or destroyed. Subject to
and without prejudice to this Clause, if the Factory
or any part thereof shall be rendered unfit for use
by reason of the damage or destruction as aforesaid,
the Rent or a fair proportion of the Rent according
to the nature and extent of the damage or
destruction sustained shall ceased to be payable
until the Factory or the affected part shall have
been rebuilt or reinstated so that the Factory or
the affected part are made fit for occupation or use
save and except that in the event that the Factory
cannot be rebuilt and reinstated or if the Tenant is
unable to await the rebuilding and reinstatement of
the Factory, the Lease shall absolutely determine.
9.2 MEC covenants and agrees with the Lessee as follows:-
(a) to pay all existing and future quit rents and
rates (assessment) and outgoings payable by law in
respect of the Demised Land which payments shall be
deducted from the Rent as provided for in clause
9.1(e) hereof;
31
<PAGE>
(b) to keep the roof, main structures, external
walls, main drains and pipes of the Factory in good
tenantable repair and condition including if
required by the relevant authorities, to repaint and
redecorate the external walls of the Factory;
(c) to indemnify and keep the Lessee fully
indemnified against all breaches by the Lessor and
MEC of its statutory duties or obligations including
environmental damage due to or arising from anything
done or carried out by the Lessor or MEC or its
authorised servants agents workmen on the Demised
Land.
10. LESSEE'S PROPERTY
In the event that any property of the Lessee shall remain
in or on the Demised Land after the Lessee has vacated
the Demised Land on the expiry of the Contractual Term
and the Lessee fails to remove it within fourteen (14)
days after being requested in writing by the Lessor or
MEC to do so or if after using its best endeavour the
Lessor is unable to locate the Lessee within fourteen
(14) days from the first attempt so made by the Lessor:-
10.1 The Lessor or MEC shall have the right to
remove the property and all costs and expenses
incurred for such removal and storage thereafter
shall be borne by the Lessee;
10.2 The Lessor or MEC shall not be responsible for
any actions damages claims proceedings costs
expenses and demands caused by or related to the
removal of the property;
10.3 The Lessor or MEC shall not be liable for any
loss or damages suffered on the Lessee's property as
a result of the removal and storage of the property.
11. OPTION TO RENEW
11.1 If the Lessee:-
(a) has paid the Rent regularly during the
Contractual Term;
(b) has reasonably performed and observed the
covenants contained in this Agreement;
(c) notifies the Lessor in accordance with Section
11.2 below;
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(d) then at the end of the initial Contractual Term
the Lessor and MEC shall grant and the Lessee shall
take a further lease for the Renewed Term of the
Demised Land in accordance with the provisions set
out in Section 11.3 below (hereinafter referred to
as "the Renewed Term").
11.2 A notice of exercise of option:-
(a) must state clearly that the Lessee wishes to
take a further lease of the Demised Land in
accordance with the option contained in this
Agreement; and
(b) must be served not later than three (3) months
before the end of the period of the initial
Contractual Term.
11.3 The provision for the further lease will be the same as
the provisions of this Agreement, with the following
exceptions:-
(a) the new lease will begin immediately after the
end of the period of the initial Contractual Term;
(b) the rent at the commencement of the new lease
will be as mutually agreed between the Lessor or MEC
and the Lessee and if the revised rent has not been
agreed by the parties within one (1) month of the
exercise of the Option to Renew, the same shall be
determined by MR KHOO TIANG HUAT or any valuer of
MESSRS C.H.WILLIAMS, TALHAR & WONG SDN. BHD.
(Company No.18149-U) of No.35 Green Hall, 10200
Penang or if MESSRS C.H.WILLIAMS, TALHAR & WONG SDN.
BHD. are no longer in property valuation practice,
any independent valuer nominated by the President or
its equivalent for the time being of the INSTITUTE
OF CHARTERED SURVEYORS OF MALAYSIA or its equivalent
(hereinafter referred to as "the Valuer") on the
application of the Lessee (acting as an expert and
not an arbitrator) and so that the revised rent to
be determined by the Valuer shall be such as the
Valuer shall decide is the monthly rent at which the
Demised Land might reasonably be expected to be let
at the date of the exercise of the Option to Renew
PROVIDED THAT the Valuer shall determine the revised
rent based upon the state and condition and
structure of the Demised Land as at the 14th day of
June 1999 evidenced by the Valuation Report on the
Demised Land by MESSRS C.H.WILLIAMS, TALHAR & WONG
SDN. BHD. dated the 14th day of June 1999 and
disregard any increase in the rental value of the
Demised Land attributable to the existence of any
alteration or improvement to the Demised Land and/or
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make a fair allowance to the Lessee in respect of
such alteration or improvement PROVIDED ALWAYS THAT
the revised rent shall under no circumstances be
more than or less than fifteen per centum (15%) of
the immediately preceding month's rent.
(c) For the avoidance of doubt it is hereby
expressly agreed and declared that in the event:-
(i) the rent determined by the Valuer
exceeds by more than fifteen per centum (15%)
the preceding month's rent at the date of the
exercise of the Option to Renew, the revised
rent shall be fixed at fifteen per centum (15%)
above the preceding month's rent;
(ii) the rent determined by the Valuer is
lower by fifteen per centum (15%) of the
preceding month's rent at the date of the
exercise of the option to renew, the revised
rent shall be fixed at fifteen per centum (15%)
below the preceding month's rent.
(d) The option for the Lessee to terminate the
renewed Lease under Clause 13 may be exercised at
any time during the Renewed Term.
12. OPTION TO PURCHASE
12.1 If the Lessee wishes to purchase the Demised Land
(hereinafter referred to as "the Option to Purchase") and
shall at any time during the initial Contractual Term or
the Renewed Term granted pursuant to Clause 11 give to
the Lessor or MEC not less than one (1) month's notice in
writing (hereinafter referred to as "the Lessee's
Notice"), the Lessor and MEC shall upon the expiration of
the Lessee's Notice and upon the payment of the sum
ascertained in accordance with the provisions of Clause
12.2 transfer the Demised Land to the Lessee free from
all encumbrances whatsoever subject to all conditions of
title whether express or implied in the documents of
title in respect of the Demised Land and to the terms and
conditions set out in the Second Schedule of the Lease
Annexure annexed hereto as the Second Schdule.
12.2 The Lessor or MEC and the Lessee shall attempt to reach
agreement on the value of the Demised Land in the open
market assuming vacant possession as at the date of the
exercise of the Option to Purchase as agreed between the
Lessor or MEC and the Lessee and if such agreement has
not been reached within four (4) weeks from the date of
service of the Lessee's Notice, then the Valuer shall be
appointed by either party to determine the market value
of the Demised Land as at the date of exercise of the
Option to Purchase PROVIDED THAT the Valuer shall
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determine the market value of the Demised Land based upon
the existing state and condition and structure of the
Demised Land as at the 14th day of June 1999 evidenced by
the Valuation Report on the Demised Land by MESSRS
C.H.WILLIAMS, TALHAR & WONG SDN. BHD. dated the 14th day
of June 1999 disregarding any increase in the market
value of the Demised Land attributable to the existence
of any alteration or improvement to the Demised Land
and/or making a fair allowance to the Lessee in respect
of such alteration or improvement provided that in the
event the Lessee is not agreeable to the value as
determined by the Valuer it may at its own costs and
expense appoint another valuer on the panel of valuers of
the Chargee to value the open market value of the Demised
Land disregarding any increase in the market value of the
Demised Land attributable to the existence of any
alteration or improvement to the Demised Land and/or
making a fair allowance to the Lessee in respect of such
alteration or improvement and the purchase price of the
Demised Land shall be the average of the two valuations
and in the event the Lessee fails to appoint the second
valuer within four (4) weeks of its notification to the
Lessor or MEC of its disagreeement as to the open market
value by the Valuer, the Option to Purchase shall lapse
and be of no further effect.
12.3 The determination as to the market value of the Demised
Land by the Valuer (who shall act as an expert and not as
an arbitrator) shall subject to Clause 12.2(b) be final
and binding on the Parties and his fees and expenses
shall be borne equally by them and if either party shall
pay the whole of such fees and expenses, it shall be
entitled to receive one half from the other.
12.4 The sale and purchase of the Demised Land shall be
subject to the additional terms and conditions set out in
the Second Schedule of the Lease Annexure annexed hereto.
12.5 Notwithstanding the exercise of the Option to Purchase,
the terms and provisions of this Agreement shall continue
to take effect until the completion of the sale and
purchase of the Demised Land and in particular this
Agreement shall continue even if the sale and purchase of
the Demised Land is not completed for any reasons
whatsoever unless this Agreement is determined in
accordance with the provisions herein.
13. OPTION TO TERMINATE
If the Lessee wishes to determine this Agreement at any
time after the expiry of the initial Contractual Term or
at any time during the Renewed Term, the Lessee shall
give the Lessor or MEC not less than three (3) months'
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notice in writing then upon the expiry of such notice,
the Contractual Term shall immediately cease and
determine but without prejudice to the respective rights
of either party in respect of any antecedent claim or
breach of covenant.
14. TERMINATION ON DEFAULT
14.1 The Lessor or MEC may terminate this Agreement in the
manner set out below in the following circumstances:
(a) if the Rent or any part of it and other moneys
owing to the Lessor under this Agreement is or are
in arrears for thirty (30) days;
(b) if the Lessee breaches a material provision of
this Agreement and fails to remedy the breach within
thirty (30) days from the date of service of Notice
by the Lessor to do so.
14.2 In the circumstances set out in Clause 14.1, the Lessor
or MEC may terminate this Agreement by:
(a) notifying the Lessee to that effect; or
(b) re-entering the Demised Land and repossessing
it; or
(c) doing both.
15. LAW
The Law of Malaysia shall apply for the purpose of
governing this Agreement and the Parties shall submit to
the jurisdiction of the Courts in Malaysia.
16. COSTS, FEES AND STAMP DUTIES
Each Party shall pay fees and disbursements of its own
agents accountants solicitors and all other costs and
expenses incurred by it in relation to the negotiation,
preparation execution and completion of this Agreement
and the Lessee shall pay the stamp duty in respect of
this Agreement and the stamp duty and registration fees
in respect of the Lease.
17. SERVICE OF DOCUMENT
17.1 Address for Service
In this clause:-
(a) "the Lessor's Address" means the following
address of the Lessor or such other address as the
Lessor may from time to time notify to the Lessee
and MEC as being its address for service for the
purpose of this Agreement:
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KLIH PROJECT MANAGEMENT SDN. BHD.
11th Floor, Wisma KLIH,
No.126 Jalan Bukit Bintang,
55100 Kuala Lumpur
(b) "the Lessee's Address" means the following
address of the Lessee or such other address as the
Lessee may from time to time notify to the Lessor
and MEC as being its address for service for the
purposes of this Agreement:
MCMS SDN. BHD.
Plots 12 & 13, Phase IV,
Free Industrial Zone,
Bayan Lepas,
11900 Penang
(c) "MEC's Address" means the following address of
MEC or such other address as MEC may from time to
time notify to the Lessor and the Lessee as being
its address for service for the purposes of this
Agreement:
MEC AUDIO VISUAL PRODUCTS SDN. BHD.
11th Floor, Wisma KLIH,
No.126 Jalan Bukit Bintang,
55100 Kuala Lumpur
17.2 Notice
Any notice or other communication given or made in
accordance with this Agreement shall be in writing and:-
(a) may (in addition to any other effective mode of
service) be sent by registered post;
(b) shall (in the case of a notice or other
communication to the Lessor but subject to Clause
17.3(a)) be served on the Lessor at the Lessor's
Address;
(c) shall (in the case of a notice or other
communication to the Lessee but subject to Clause
17.3(b)) be served on the Lessee at the Lessee's
Address; and
(d) shall (in the case of a notice or other
communication to MEC but subject to Clause 17.3(c))
be served on MEC at MEC's Address.
17.3 Any notice or other communication given or made in
accordance with this Agreement:
(a) by or to the Lessor may be given or made by or
to the Lessor's Solicitors on behalf of the Lessor;
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(b) by or to the Lessee may be given or made by or
to the Lessee's Solicitors on behalf of the Lessee;
(c) by or to MEC may be given or made by or to
MEC's Solicitors on behalf of MEC.
18. CHANGE OF ADDRESS
Any changes of address by either party must be
communicated to the other in writing.
19. SCHEDULE
The First Schedule and the Second Schedule shall form
part of this Agreement and shall be read, taken and
construed as an essential part of this Agreement.
20. BREACH BY THE LESSOR
20.1 In the event the Lessor and/or MEC is in breach of any of
the stipulations terms covenants and conditions contained
in this Agreement, the Lessor and MEC shall jointly and
severally indemnify and keep the Lessee fully indemnified
against or arising from all loss damage costs expenses
actions demands proceedings claim and liability
(including all legal fees on a solicitor and client
basis) made against or suffered or incurred by the
Lessee.
20.2 Without prejudice to Clause 20.1, the Lessee shall be
entitled to the remedy of specific performance in the
event the Lessor and/or MEC unlawfully or improperly
terminates this Agreement at any time before its
expiration.
21. WAIVER OR INDULGENCE
Knowledge or acquiescence by any Party of or in any
breach by the Lessor or the Lessee or MEC of any of the
terms and conditions herein contained or any indulgence
given by any Party to the others shall not operate as or
be deemed to be a waiver of such terms or conditions or
any of them and notwithstanding such knowledge or
acquiescence or indulgence, any Party shall be entitled
to exercise its rights and powers under this Agreement
and to require strict performance of the terms and
condition herein contained.
22. ENTIRE UNDERSTANDING
This Agreement embodies the entire understanding of the
Parties relating to the Demised Land and to all the
matters dealt with by any of the provisions of this
Agreement.
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23. PERSONS TO BE BOUND BY THIS AGREEMENT
This Agreement shall be binding upon the successors in
title and assigns of the Lessor and MEC and the
successors in title, nominee, transferee and assigns of
the Lessee.
24. SPECIFIC PERFORMANCE
The Lessor, the Lessee and MEC shall be entitled to
specific performance of this Agreement.
25. REPRESENTATION
The Lessor, MEC and the Lessee represent, declare and
undertake with each other that:-
25.1 It has the power to execute, deliver and perform the
terms of this Agreement and has taken all necessary
corporate and other action to authorise of the execution,
delivery and performance of this Agreement.
25.2 This Agreement constitutes the legal valid and binding
obligations of the Lessor, the Lessee and MEC in
accordance with the terms and conditions contained in
this Agreement.
25.3 All consents, approvals, authorisations, licences, orders
and exemptions of any ministry, governmental agency,
department or authority in Malaysia which are required on
the part of the Lessor, MEC and/or the Lessee or any of
them or which are advisable and the execution delivery
performance and legality or enforceability of this
Agreement have been or will be obtained and are in full
force and any conditions contained therein or otherwise
applying thereto have been or will be complied with.
39
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*************
THE FIRST SCHEDULE
CLAUSE 2.1
INVENTORY LIST OF FURNITURES AND FITTINGS
40
<PAGE>
THE SECOND SCHEDULE
CLAUSE 6.6
FORM OF LEASE ANNEXURE
We, KLIH PROJECT MANAGEMENT SDN. BHD. (Company No.14962-D), a
company incorporated in Malaysia and having its registered
office at 11th Floor, Wisma KLIH, No.126 Jalan Bukit Bintang,
55100 Kuala Lumpur (hereinafter referred to as "the Lessor"
which expression shall include its assigns or successors-in-
title) being the registered proprietor of all those pieces of
land described in the above Schedule together with the factory
erected thereon (hereinafter referred to as "the Factory")
known as located at Lorong Sg. Tiram, Bayan Lepas, FIZ II,
11900 Bayan Lepas, Penang with a built up area of
approximately 117,927 square feet made up as follows:
(a) production floor space 37,629 square feet;
(b) office space 17,500 square feet; and
(c) warehouse and other space 63,211.92 square feet
and the furnitures, air-conditioners, lighting and other
fittings as set out in the inventory list annexed hereto as
the First Schedule (hereinafter referred to as "the Furniture
and Fittings")(the abovementioned Land, the Factory and the
Furnitures and Fittings are hereinafter collectively referred
to as "the Demised Land") DO HEREBY LEASE the Demised Land to
MCMS SDN. BHD. (Company No.399136-M), a company incorporated
in Malaysia and having its registered office at 7th Floor(Room
7-02) Wisma Penang Garden, No.42 Jalan Sultan Ahmad Shah,
10050 Penang, Malaysia (hereinafter referred to as "the
Lessee" which expression shall include ITS assigns or
successors-in-title) in whom this Lease for the time being is
vested TO BE HELD by the Lessee for a term of five (5) years
with an option to renew for a further term of five (5) years
(hereinafter referred to as "the Option to Renew").
RECITALS
WHEREAS the Lessor is the registered proprietor of the Demised
Land.
AND WHEREAS the Lessor has charged the Demised Land to
STANDARD CHARTERED BANK MALAYSIA BERHAD (Company No.115793-P),
a company incorporated in Malaysia under the Companies Act,
1965 and having a place of business at No.2 Beach Street,
10300 Penang (hereinafter referred to as "the Chargee") under
Charge Presentation No.3571/98 Volume No.780 Folio No.100
41
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(hereinafter referred to as "the Charge") as security for a
loan granted by the Chargee to MEC AUDIO VISUAL PRODUCTS SDN.
BHD. (Company No.170217-X), a company incorporated in Malaysia
and having its registered office at 11th Floor, Wisma KLIH,
No.126 Jalan Bukit Bintang, 55100 Kuala Lumpur (hereinafter
referred to as "MEC").
AND WHEREAS by an agreement made the 22nd day of August 1996
between the Lessor of the one part and MEC of the other part
(hereinafter referred to as "the Sale and Purchase Agreement")
the Lessor, with the consent of the Chargee agreed to sell and
MEC agreed to purchase the Demised Land for the consideration
and upon the terms and conditions more fully set out in the
Sale and Purchase Agreement.
AND WHEREAS MEC has paid the full purchase price of the
Demised Land and fully complied with the terms and conditions
of the Sale and Purchase Agreement as hereby irrevocably and
expressly acknowledged by the Lessor but the Demised Land has
yet to be transferred to MEC.
AND WHEREAS MEC and the Lessor, with the consent of the
Chargee has agreed to let and the Lessee has agreed to take a
lease of the Demised Land for the duration and upon the terms
and conditions of this Lease.
1. DEFINITIONS AND INTERPRETATIONS
1.1 Definitions
Unless the context shall otherwise require, the terms
defined in Clause 1 shall for all purpose of this Lease
have the meaning specified.
Contractual : The period of three (3) years and three
Terms (3) months and includes the
renewed term if the Option to Renew
specified in Clause 9 is exercised
Chargee : STANDARD CHARTERED BANK
MALAYSIA BERHAD (Company No.115793-P)
Demised Land : All those five (5) pieces of land known as
Lots No.P.T.1223, 1224, 1225 and 1226, Mukim 12,
Daerah Barat Daya, Negeri Pulau Pinang held under
Suratan Hakmilik Sementara No.H.S.(D)6941,
6942, 6943 AND 6944 and Lot No.8130, Mukim
12, Daerah Barat Daya held under Pajakan
Negeri No.1765 as stated in the Schedule
above together with the Factory erected
thereon and the Furniture and Fittings
thereto
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Factory : The factory erected on the Demised Land located
at Lorong Sg. Tiram, Bayan Lepas, FIZ II, 11900 Bayan
Lepas, Penang with a built up area of 117,927
square feet made up as follows:-
(a) production floor
space 37,629 square feet
(b) office space
17,500 square feet
(c) warehouse and
other space 63,211.92 square feet
Furniture : The Furniture and Fittings in the
Factory and Fittings as stated in the inventory
list annexed hereto as the First Schedule
Lease : The Lease of the Demised Land in Form 15A of the
National Land Code for a term of three (3) years and
three (3) months with an option to renew the Lease for
a further term of three (3) years and three (3) months
upon the same terms covenants and conditions contained
herein and includes any instrument supplemental to it but
at a revised rent as hereinafter provided
Lessor : KLIH PROJECT MANAGEMENT
SDN. BHD. (Company No.14962-D)
MEC : MEC AUDIO VISUAL PRODUCTS
SDN. BHD. (Company No.170217-X)
Option to : The option to renew the Lease for a further
Renew term of three (3) years and three (3) months as provided
in Clause 9
Parties/Party: It means the Lessor and/or the Lessee
Renewed Term : The further period of three (3) years and three (3)
months renewed pursuant to Clause 9
Rent : The amount of rental payable for the entire duration
of the Lease and the renewed Lease which particulars are
as described in Clause 3 herein
Rent : The 1st day of September 1999
Commencement
Date
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Sale and : The Agreement made the 22nd day of August
Purchase 1996 between the Lessor as vendor and MEC as
Agreement purchaser in respect of the Demised Land
Sub-Tenant : LEMTRONICS SDN. BHD.
(Company No.167912-P), a company
incorporated in Malaysia and having its
registered office at Bayan Lepas, FIZ,
Phase II, 11900 Bayan Lepas, Penang
Valuer : The Valuer appointed pursuant to Clause 9.3(b)
1.2 Clauses and Clause Heading
The Clause and paragraph heading in this Lease are for
the ease of reference only and shall not be taken into
account in the construction or interpretation of any
covenants conditions or proviso to which they refer.
1.3 Singular and Plural Meanings
Words in this Lease importing singular meaning shall
where the context so admits include the plural meaning
and vice versa.
1.4 Acts, Statute and Statutory Instruments
References in this Lease to any Acts, statutes or
statutory instrument shall include and refer to any Acts,
statute or statutory instrument amending consolidating or
replacing them respectively from time to time and for the
time being in force.
1.5 Gender
Words in this Lease of the masculine gender shall include
the feminine and neuter gender and vice versa and words
denoting natural persons shall include corporations and
firms and all such words shall be construed interchangeably
in that manner.
2. DEMISE
The Lessor hereby demises and the Lessee hereby accepts a
lease of the Demised Land inclusive of the Factory and
the Furniture and Fittings TO HOLD the Demised Land to
the Lessee for the Contractual Term SUBJECT to all rights
easements privileges restrictions covenants and
stipulations appearing in the title to the Demised Land
YIELDING AND PAYING to the Lessor the Rent as stated and
in the manner set out in Clause 3.
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3. RENT
3.1 The Lessee shall pay the Lessor a Rent of Ringgit
Malaysia One Hundred and Eighty Thousand (RM180,000.00)
only per month for the Contractual Term in the following
manner:-
(a) the Rent for the first three (3) months or the
first quarter of the Contractual Term shall be
payable monthly in advance, the first month's Rent
to be payable on the Rent Commencement Date and each
subsequent payment for the next two (2) months to be
made on or before the seventh (7th) day of each
succeeding month;
(b) the Rent for the rest of the Contractual Term
shall be payable quarterly in advance on or before
the seventh (7th) day of each succeding quarter.
3.2 There will be no increase in the Rent payable for the
initial Contractual Term.
3.3 The Rent payable for the Renewed Term (in the event that
the Lessee does exercise its option to renew) shall be
the sum as calculated in accordance with Clause 9.3(b).
4. STATE AUTHORITY CONSENT
4.1 The Demised Land is subject to the following restrictions
interest:-
4.1:1 The Demised Land shall not be
transferred, charge, leased, sub-leased or
otherwise in any manner dealt with or dispose
of without the written sanction of the State
Authority; and
4.1:2 The Demised Land shall not be sub-
divided.
4.2 The State Authority has given its consent to the Lease
herein.
5. LESSEE'S COVENANTS
The Lessee covenants with the Lessor and/or its assigns
as follows:-
5.1 To pay the Rent on the days and in the manner
set out in this Lease;
5.2 To pay all charges (if any) for removal of
refuse in connection with the occupation by the
Lessee of the Demised Land;
5.3 To pay for all the water and electricity and
other charges consumed on the Demised Land by the
Lessee from 1st July 1999 and the Lessee shall be
entitled to all income in respect of the Demised
Land from 1st July 1999;
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5.4 To remove any unauthorised additions made to
the Demised Land at the expiration of the
Contractual Term unless agreed upon not to by the
Parties hereto and the Lessee shall make good any
part or parts of the Demised Land which may be
damaged by such removal;
5.5 To permit the Lessor and/or its authorised
servants or agents at reasonable times to enter into
and inspect and view the Demised Land and examine
their conditions after a seven (7) days written
notice is given to the Lessee Provided that the
Lessor and/or its authorised servants or agents
shall comply with all reasonable directions of the
Lessee with respect to security procedures to be
observed and protective gears and special clothings
to be worn by the Lessor's servants and agents
during the inspection;
5.6 To comply with the requirements of any relevant
authorities relating to anything done upon the
Demised Land by the Lessee and to indemnify the
Lessor against all actions, proceedings, claims or
demands which may be brought or made by reason of
default in compliance with them;
5.7 To indemnify the Lessor against any claims
proceedings or demands and costs and expenses so
incurred which may be brought against the Lessor by
any employees work people agents or visitors of the
Lessee in respect of any accident loss or damage
whatsoever to person or property on the Demised Land
due to the negligence or wilful act of the Lessee;
5.8 To pay the Rent to the Chargee whose receipt
the Lessor and MEC hereby irrevocably acknowledge to
the valid and sufficient discharge to the Lessee and
to this end the Lessor and MEC undertake to execute
an Assignment of the Rent herein to the Chargee upon
such terms and conditions as the Chargee may
require;
5.9 Not to cause any land roads or pavements on the
Demised Land to be untidy or in a dirty condition
and in particular not to deposit on them refuse or
other materials;
5.10 Not to use the Demised Land for any illegal or
immoral activities or purpose or to keep any animals
or pets in it other than guard dogs;
5.11 Not to do in or upon the Demised Land anything
which may be a nuisance annoyance disturbance
inconvenience or damage to the occupiers of
neighbouring factories;
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5.12 Not without the prior written consent of the
Lessor to assign underlet, charge or part with the
possession of the Demised Land or any part thereof
save and except to the Sub-Tenant;
5.13 Not to commit any waste; and
5.14 Not to hold or permit or suffer to be held on
the Demised Land any sale by public auction.
6. YIELD UP
At the expiration of the Contractual Term or the sooner
termination of this Lease, the Lessee shall:-
6.1 yield up the Demised Land in accordance with
the terms of this Lease;
6.2 remove all signs erected by the Lessee in upon
or near the Demised Land and immediately to make
good any damage caused by such removal.
7. LESSOR'S COVENANTS
The Lessor covenants and agrees with the Lessee as
follows:-
7.1 that if the Lessee shall pay the Rent hereby
reserved and observe and perform the stipulations on
their part herein contained they shall peaceably
hold and enjoy the Demised Land during the
Contractual Term without any interruption by the
Lessor or any person rightly claiming under or in
trust for it;
7.2 to grant the Option to Renew the Lease as
stated in Clause 9;
7.3 to procure MEC to pay all existing and future
quit rents and rates (assessment) and outgoings
payable by law in respect of the Demised Land which
payments shall be deducted from the Rent as provided
for in Clause 9.1(e) hereof;
7.4 to permit the Lessee to commence to fit out and
renovate the Factory for its manufacturing and
business activities forthwith upon execution of this
Lease;
7.5 to permit the Lessee to repair and make good
and any existing defects and damage to Factory at
the cost and expense of the Lessor provided always
that the costs of such repairs shall be evidenced by
the appropriate receipts shall not exceed the sum of
Ringgit Malaysia One Hundred and Six Thousand
(RM106,000.00) and provided further that the Lessee
shall advance for the costs of such repair and
deduct such advances from the Rent payable under
this Agreement;
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7.6 to procure MEC to keep the roof, main
structures, external walls, main drains and pipes of
the Factory in good tenantable repair and condition
including if required by the relevant authorities,
to repaint and redecorate the external walls of the
Factory;
7.7 to permit (but it shall not be obligatory upon)
the Lessee to execute such repairs or works as
verified by the Valuer or make such payments or
perform such obligations of the Lessor and/or MEC
herein including in particular MEC's covenants in
Clauses 7.1(g) and 7.2 at the cost and expenses of
MEC upon the failure or refusal of the Lessor and/or
MEC to forthwith execute the same and any costs and
expenses incurred shall be deducted or set off
against the Rent payable herein subject to a maximum
non-cumulative deduction equivalent to one (1)
month's Rent per annum;
7.8 to procure MEC to indemnify and keep the Lessee
fully indemnified against all breaches by the Lessor
of its statutory duties or obligations including
environmental damage due to or arising from anything
done or carried out by the Lessor or its authorised
servants agents workmen on the Demised Land;
7.9 to permit the Lessee to sublet any part of the
Demised Land to the Sub-Tenant on such terms and
conditions as the Lessee may deems fit; and
7.10 to insure and keep the Factory fully insured
for the full cost of rebuilding and reinstating the
same with a reputable insurance office in the joint
names of the Lessor and the Lessee against
destruction or damage by fire, lightning, explosion,
aircraft (including articles dropped from aircraft),
riot, civil commotion, malicious persons,
earthquake, storm, tempest, flood, bursting and
overflowing of water pipes, tanks and other
apparatus and impact by road vehicles and in case of
any such damage or destruction as aforesaid
happening to the Factory or any part thereof to
apply any money received by it in respect thereof
under any insurance in reinstating and restoring the
parts thereof so damaged or destroyed. Subject to
and without prejudice to this Clause, if the Factory
or any part thereof shall be rendered unfit for use
by reason of the damage or destruction as aforesaid,
the Rent or a fair proportion of the Rent according
to the nature and extent of the damage or
destruction sustained shall ceased to be payable
until the Factory or the affected part shall have
been rebuilt or reinstated so that the Factory or
the affected part are made fit for occupation or use
save and except that in the event that the Factory
cannot be rebuilt and reinstated or if the Tenant is
unable to await the rebuilding and reinstatement of
the Factory, the Lease shall absolutely determine.
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8. LESSEE'S PROPERTY
In the event that any property of the Lessee shall remain
in or on the Demised Land after the Lessee has vacated
the Demised Land on the expiry of the Contractual Term
and the Lessee fails to remove it within fourteen (14)
days after being requested in writing by the Lessor to do
so or if after using its best endeavour the Lessor is
unable to locate the Lessee within fourteen (14) days
from the first attempt so made by the Lessor:
8.1 The Lessor shall have the right to remove the
property and all costs and expenses incurred for
such removal and storage thereafter shall be borne
by the Lessee;
8.2 The Lessor shall not be responsible for any
actions damages claims proceedings costs expenses
and demands caused by or related to the removal of
the property;
8.3 The Lessor shall not be liable for any loss or
damages suffered on the Lessee's property as a
result of the removal and storage of the property.
9. OPTION TO RENEW
9.1 If the Lessee:
(a) has paid the Rent regularly during the
Contractual Term;
(b) has reasonably performed and observed the
covenants contained in this Lease;
(c) notifies the Lessor in accordance with Section
9.2 below;
(d) then at the end of the initial Contractual Term
the Lessor shall grant and the Lessee shall take a
further lease for the Renewed Term of the Demised
Land in accordance with the provisions set out in
Section 9.3 below (hereinafter referred to as "the
Renewed Term").
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9.2 A notice of exercise of option:
(a) must state clearly that the Lessee wishes to
take a further lease of the Demised Land in
accordance with the option contained in the Lease;
and
(b) must be served not later than three (3) months
before the end of the period of the initial
Contractual Term.
9.3 The provision for the further lease will be the same as
the provisions of this Lease, with the following
exceptions:
(a) the new lease will begin immediately after the
end of the period of the initial Contractual Term;
(b) the rent at the commencement of the new lease
will be as mutually agreed between the Lessor and
the Lessee and if the revised rent has not been
agreed by the parties within one (1) month of the
exercise of the Option to Renew, the same shall be
determined by MR KHOO TIANG HUAT or any valuer of
C.H.WILLIAMS, TALHAR & WONG SDN. BHD. (Company
No.18149-U) of No.35 Green Hall, 10200 Penang or if
MESSRS C.H.WILLIAMS, TALHAR & WONG SDN. BHD. are no
longer in property valuation practice, any
independent valuer nominated by the President or its
equivalent for the time being of the INSTITUTE OF
CHARTERED SURVEYORS OF MALAYSIA or its equivalent
(hereinafter referred to as "the Valuer") on the
application of the Lessee (acting as an expert and
not an arbitrator) and so that the revised rent to
be determined by the Valuer shall be such as the
Valuer shall decide is the monthly rent at which the
Demised Land might reasonably be expected to be let
at the date of the exercise of the Option to Renew
PROVIDED THAT the Valuer shall determine the revised
rent based upon the state and condition and
structure of the Demised Land as at the 14th day of
June 1999 evidenced by the Valuation Report on the
Demised Land by MESSRS C.H.WILLIAMS, TALHAR & WONG
SDN. BHD. dated the 14th day of June 1999 and
disregard any increase in the rental value of the
Demised Land attributable to the existence of any
alteration or improvement to the Demised Land and/or
make a fair allowance to the Lessee in respect of
such alteration or improvement AND PROVIDED ALWAYS
THAT the revised rent shall under no circumstances
be more than or less than fifteen per centum (15%)
of the immediately preceding month's rent.
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(c) For the avoidance of doubt it is hereby
expressly agreed and declared that in the event:
(i) the rent determined by the Valuer
exceeds by more than fifteen per centum (15%)
the preceding month's rent at the date of the
exercise of the Option to Renew, the revised
rent shall be fixed at fifteen per centum (15%)
above the preceding month's rent;
(ii) the rent determined by the Valuer is
lower by fifteen per centum (15%) of the
preceding month's rent at the date of the
exercise of the option to renew, the revised
rent shall be fixed at fifteen per centum (15%)
below the preceding month's rent.
(d) the option for the Lessee to terminate the
renewed Lease under Clause 13 may be exercised at
any time during the Renewed Term.
10. OPTION TO PURCHASE
10.1 If the Lessee wishes to purchase the Demised Land
(hereinafter referred to as "the Option to Purchase") and
shall at any time during the initial Contractual Term or
the Renewed Term granted pursuant to Clause 9 give to the
Lessor not less than one (1) month's notice in
writing(hereinafter referred to as "the Lessee's
Notice"), the Lessor shall upon the expiration of the
Lessee's Notice and upon the payment of the sum
ascertained in accordance with the provisions of Clause
10.2 transfer the Demised Land to the Lessee free from
all encumbrances whatsoever subject to all conditions of
title whether express or implied in the documents of
title in respect of the Demised Land and to the terms and
conditions set out in the Second Schedule.
10.2 The Lessor and the Lessee shall attempt to reach
agreement on the value of the Demised Land in the open
market assuming vacant possession as at the date of the
exercise of the Option to Renew as agreed between the
Lessor and the Lessee and if such agreement has not been
reached within four (4) weeks from the date of service of
the Lessee's Notice, then the Valuer shall be appointed
by either party to determine the market value of the
Demised Land as at the date of exercise of the Option to
Purchase PROVIDED THAT the Valuer shall determine the
market value of the Demised Land based upon the state and
condition and structure of the Demised Land as at the
14th day of June 1999 evidenced by the Valuation Report
on the Demised Land by Messrs CH Williams, Talhar & Wong
Sdn Bhd dated the 14th day of June 1999 disregarding any
increase in the market value of the Demised Land
attributable to the existence of any alteration or
improvement to the Demised Land and/or making a fair
allowance to the Lessee in respect of such alteration or
improvement provided that in the event the Lessee is not
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agreeable to the value as determined by the Valuer it may
at its own costs and expense appoint another valuer on
the panel of valuers of the Chargee to value the open
market value of the Demised Land disregarding any
increase in the market value of the Demised Land
attributable to the existence of any alteration or
improvement to the Demised Land and/or making a fair
allowance to the Lessee in respect of such alteration or
improvement and the purchase price of the Demised Land
shall be the average of the two valuations and in the
event the Lessee fails to appoint the second valuer
within four (4) weeks of its notification to the Lessor
of its disagreeement as to the open market value by the
Valuer, the Option to Purchase shall lapse and be of no
further effect.
10.3 The determination as to the market value of the Demised
Land by the Valuer (who shall act as an expert and not as
an arbitrator) shall subject to Clause 10.2(b) be final
and binding on the parties and his fees and expenses
shall be borne equally by them and if either party shall
pay the whole of such fees and expenses, it shall be
entitled to receive one half from the other.
10.4 The sale and purchase of the Demised Land shall be
subject to the additional terms and conditions set out in
the Second Schedule.
10.5 Notwithstanding the exercise of the Option to Purchase
the terms and provisions of this Lease shall continue to
take effect until the completion of the sale and purchase
of the Demised Land and in particular this Lease shall
continue even if the sale and purchase of the Demised
Land is not completed for any reasons whatsoever unless
this Lease is determined in accordance with the
provisions herein.
11. OPTION TO TERMINATE
If the Lessee wishes to determine this Lease at any time
after the expiry of the initial Contractual Term or at
any time during the Renewed Term and shall give the
Lessor not less than three (3) months' notice in writing
then upon the expiry of such notice, the Contractual Term
shall immediately cease and determine but without
prejudice to the respective rights of either party in
respect of any antecedent claim or breach of covenant.
12. TERMINATION ON DEFAULT
12.1 The Lessor may terminate the Lease in the manner set out
below in the following circumstances:
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(a) if the Rent or any part of it and other moneys
owing to the Lessor under the Lease is or are in
arrears for thirty (30) days;
(b) if the Lessee breaches a material provision of
this Lease and fails to remedy the breach within
thirty (30) days from the date of service of Notice
by the Lessor to do so.
12.2 In the circumstances set out in Clause 12.1, the Lessor may terminate
the Lease by:
(a) notifying the Lessee to that effect; or
(b) re-entering the Demised Land and repossessing it; or
(c) doing both.
13. LAW
The Law of Malaysia shall apply for the purpose of
governing this Lease and the Parties shall submit to the
jurisdiction of the Courts in Malaysia.
14. COSTS, FEES AND STAMP DUTIES
Each Party shall pay fees and disbursements of its own
agents accountants solicitors and all other costs and
expenses incurred by it in relation to the negotiation,
preparation execution and completion of this Lease and
the Lessee shall pay the stamp duty and registration fees
in respect of this Lease.
15. SERVICE OF DOCUMENT
15.1 Address for Service
In this clause:
(a) "the Lessor's Address" means the following
address of the Lessee or such other address as the
Lessor may from time to time notify to the Lessee as
being its address for service for the purpose of
this Lease:
KLIH PROJECT MANAGEMENT SDN. BHD.
11th Floor, Wisma KLIH,
No.126 Jalan Bukit Bintang,
55100 Kuala Lumpur
(b) "the Lessee's Address" means the following
address of the Lessee or such other address as the
Lessee may from time to time notify to the Lessee as
being its address for service for the purposes of
this Lease:
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MCMS SDN. BHD.
Plots 12 & 13, Phase IV,
Free Industrial Zone,
Bayan Lepas,
11900 Penang
15.2 Notice
Any notice or other communication given or made in
accordance with this Lease shall be in writing and:
(a) may (in addition to any other effective mode of
service) be sent by registered post;
(b) shall (in the case of a notice or other
communication to the Lessor but subject to Clause
15.3(a)) be served on the Lessor at the Lessor's
Address;
(c) shall (in the case of a notice or other
communication to the Lessee but subject to Clause
(b)) be served on the Lessee at the Lessee's
Address;
15.3 Any notice or other communication given or made in
accordance with this Agreement:
(a) by or to the Lessor may be given or made by or
to the Lessor's Solicitors on behalf of the Lessor;
(b) by or to the Lessee may be given or made by or
to the Lessee's Solicitors on behalf of the Lessee.
16. CHANGE OF ADDRESS
Any changes of address by either party must be
communicated to the other in writing.
17. SCHEDULE
The First Schedule, Second Schedule and Third Schedule
hereto shall form part of this Lease and shall be read,
taken and construed as an essential part of this Lease.
18. BREACH BY THE LESSOR
18.1 In the event the Lessor is in breach of any of the
stipulations terms covenants and conditions contained in
this Lease, the Lessor shall indemnify and keep the
Lessee indemnified against or arising from all loss
damage costs expenses actions demands proceedings claim
and liability (including all legal fees on a solicitor
and client basis) made against or suffered or incurred by
the Lessor.
18.2 Without prejudice to Clause 20.1, the Lessee shall be
entitled to the remedy of specific performance in the
event the Lessor unlawfully or improperly terminates this
Lease at any time before its expiration.
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19. WAIVER OR INDULGENCE
Knowledge or acquiescence by either Party of or in any
breach by the Lessor or the Lessee of any of the terms
and conditions herein contained or any indulgence given
by either Party to the other shall not operate as or be
deemed to be a waiver of such terms or conditions or any
of them and notwithstanding such knowledge or
acquiescence or indulgence, either Party shall be
entitled to exercise its rights and powers under this
Lease and to require strict performance of the terms and
condition herein contained.
20. ENTIRE UNDERSTANDING
This Lease embodies the entire understanding of the
Parties relating to the Demised Land and to all the
matters dealt with by any of the provisions of this
Lease.
21. PERSONS TO BE BOUND BY THIS LEASE
This Agreement shall be binding upon the successors in
title and assigns of the Lessor and the successors in
title, nominee, transferee and assigns of the Lessee.
22. SPECIFIC PERFORMANCE
The Lessor and the Lessee shall be entitled to specific
performance of this Agreement.
23. REPRESENTATION
The Lessor and the Lessee represent, declare and
undertake with each other that:
23.1 It has the power to execute, deliver and perform the
terms of this Lease and has taken all necessary corporate
and other action to authorise of the execution, delivery
and performance of this Lease.
23.2 This Lease constitute the legal valid and binding
obligation of the Lessor and the Lessee in accordance
with the terms and conditions contained in this Lease.
23.3 All consents, approvals, authorisations, licences, orders
and exemptions of any ministry, governmental agency,
department or authority in Malaysia which are required on
the part of the Lessor and/or the Lessee or any of them
or which are advisable and the execution delivery
performance and legality or enforceability of this Lease
have been or will be obtained and are in full force and
any conditions contained therein or otherwise applying
thereto have been or will be complied with.
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*************
THE FIRST SCHEDULE
INVENTORY LIST OF FURNITURES AND FITTINGS
56
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THE SECOND SCHEDULE
ADDITIONAL TERMS AND PROVISIONS OF THE
SALE AND PURCHASE OF THE DEMISED LAND
--------------------------------------
1. Purchase Price
The purchase price shall be as determined in accordance
with Clause 10.2.
2. Terms of Payment of Purchase Price
2.1 The purchase price shall be paid on or before the
completion date as defined in paragraph 3 below.
2.2 The Lessee is hereby irrevocably authorised to utilise
any or all of the purchase price to redeem the Charge
over the Demised Land. In the event the redemption sum in
respect of the Charge exceeds the purchase price, the
Lessor undertakes to forthwith pay to the Lessee the
difference between the redemption sum and the purchase
price.
2.3 The Lessee is further irrevocably authorised to retain a
sufficient sum of money from the purchase price towards
payment of Real Property Gains Tax under Section 21B of
the Real Property Gains Tax Act 1976.
3. Completion Date
Completion shall take place within one (1) month from the
date of the compliance of all the conditions precedent
stated in paragraph 4 below.
4. Conditions Precedent
4.1 The sale and purchase of the Demised Land is conditional
upon the approval of the Penang State Authority and the
Ministry of Trade and Industry or the Foreign Investment
Committee of the Government of Malaysia (as the case may
be) without condition or (if conditional) upon terms and
conditions acceptable to the Lessee within six (6) months
from the date of the exercise of the option or such
extended time as may be mutually agreed by the parties.
4.2 Notwithstanding anything to the contrary herein, the
Lessee shall be entitled to waive any of the conditions
precedent in paragraph 4.1.
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5. Conditions Affecting The Demised Land
The Demised Land is sold:
5.1 with vacant possession;
5.2 free from all encumbrances but subject to all
conditions of title whether express or implied
affecting the Demised Land.
6. Real Property Gains Tax
6.1 Each party shall file the necessary return under Section
13 of the Real Property Gains Tax Act 1976 within the
time prescribed in the section.
6.2 The Lessor undertakes to indemnify and keep the Lessee
fully indemnified against all Real Property Gains Tax
arising from the disposal of the Demised Land by the
Lessor to the Lessee.
7. Caveat
The Lessee shall be entitled at any time after the
exercise of the option to purchase to enter a Private
Caveat against the Demised Land.
8. Time
Time shall be of the essence of the contract.
9. Specific Performance
The Lessee shall be entitled to the specific performance
of the purchase of the Demised Land.
10. Sale and Purchase Agreement
Within fourteen (14) days of the exercise of the Option
to Purchase, the parties shall execute a Sale and
Purchase Agreement containing the above terms and
conditions and in the form of the Sale and Purchase
Agreement annexed hereto as the Third Schedule.
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THE THIRD SCHEDULE
FORM OF SALE AND PURCHASE AGREEMENT
THIS AGREEMENT is made the day of 1999
BETWEEN:-
1. PARTIES
1.1 The Vendor
1.1:1 KLIH PROJECT MANAGEMENT SDN. BHD.
(Company No.14962-D), a company incorporated in
Malaysia and having its registered office at
11th Floor, Wisma KLIH, No.126 Jalan Bukit
Bintang, 55100 Kuala Lumpur ("KLIH"); and
1.1:2 MEC AUDIO VISUAL PRODUCTS SDN. BHD.
(Company No.170217-X), a company incorporated
in Malaysia and having its registered office at
11th Floor, Wisma KLIH, No.126 Jalan Bukit
Bintang, 55100 Kuala Lumpur ("MEC").
KLIH and MEC are both hereinafter referred to as "the
Vendor".
1.2 Purchaser
MCMS SDN. BHD. (Company No.339136-M), a company
incorporated in Malaysia and having its registered office
at 7th Floor (Room 7-02) Wisma Penang Garden, No.42 Jalan
Sultan Ahmad Shah, 10050 Penang ("the Purchaser").
2. RECITALS
2.1 KLIH is the registered proprietor of all those five (5)
pieces of land described in the Schedule hereto and
measuring approximately 168,250 square feet (hereinafter
referred to as "the Land").
2.2 The Land is charged to STANDARD CHARTERED BANK MALAYSIA
BERHAD (Company No.115793-P), a company incorporated in
Malaysia under the Companies Act 1965 and having a place
of business at No.2 Beach Street, 10300 Penang
(hereinafter referred to as "the Chargee") under Charge
Presentation No.3571/98 Volume No.780 Folio No.100
hereinafter referred to as "the Charge" as security for a
loan granted by the Chargee to MEC.
2.3 By an agreement made the 22nd day of August 1996 between
KLIH of the one part and MEC of the other part
(hereinafter referred to as "the Sale and Purchase
Agreement") KLIH, with the consent of the Chargee sold
and MEC purchased the Land for the consideration and upon
the terms and conditions more fully set out in the Sale
and Purchase Agreement.
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2.4 MEC has paid the full purchase price of the Land and
fully complied with the terms and conditions of the Sale
and Purchase Agreement as hereby irrevocably and
expressly acknowledged by KLIH but the Land has yet to be
transferred to MEC.
2.5 The Land is subject to the following restrictions in
interest:-
2.5:1 The Land shall not be transferred,
charge, leased, sub-leased or otherwise in any
manner dealt with or dispose of without the
written sanction of the State Authority; and
2.5:2 The Land shall not be sub-divided.
2.6 The Vendor with the consent of the Chargee has agreed to
sell and the Purchaser has agreed to buy the Land on the
terms and conditions hereinafter contained in this
Agreement.
3. DEFINITIONS
The following terms have the following meanings:-
"1960 Act" : Land Acquisition
Act 1960
"1976 Act" : Real Property
Gains Tax Act 1976
"Acquisition : Notice published
Notice" in the Government
Gazette under Section 4 of the 1960
Act
"Agreement Date" : The date of this Agreement
"Assessment : the notice of assessment from the
Notice Director-General under Section 17 of
the 1976 Act in respect of the
disposal of the Land under this
Agreement
"the Certificate : the certificate of clearance issued
of Clearance" by the Director- General pursuant to the 1976 Act
in respect of the sale of the Land by
the Vendor to the Purchaser under
this Agreement
"Chargee" : STANDARD
CHARTERED BANK MALAYSIA BERHAD
(Company No.115793-P)
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"Charge" : the National Land
Code Charge Presentation No.3571/98
Volume No.780 Folio No.100 created
over the Land by KLIH
"Code" : National Land
Code 1965
"Competent : a person or body
exercising powers under Authority"
statute or any other written law
"Completion" : the payment of
the Price by the Purchaser in
accordance with the provisions of
this Agreement
"Completion Date" : the last day of
the period of one (1) month from the
date all of the conditions precedent
in Clause 5 is complied with
(provided always that the Purchaser
is entitled to waive any of the
conditions precedents) or three (3)
months from the Agreement Date,
whichever is the later
"Consultants" : the architect, the quantity surveyor, the
landscape consultants, engineers, interior
designers and any other Consultants
which the Vendors may have appointed
in respect of the Land
"Declaration" : declaration published in the Government Gazette
under Section 8 of the 1960 Act
"Director-General": Director-General
of Inland Revenue
"FIC/MITI : the approval of the FIC and/or MITI
Approval" (as the case may be)
to the sale and purchase of the Land
herein referred to in Clause 5.2
"FIC" : Foreign
Investment Committee of the
Government of Malaysia
"Final Balance" : the Price less
the Tax Retention and the Redemption
Sum
"Financier" : the financial
institution financing the purchase of
the Land herein by the Purchaser
"Holiday" : a day other than a Working Day
"MITI" : Ministry of International Trade and Industry of
the Government of Malaysia
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"Payment Period" : one of the periods for which a sum payable
periodically under Clause 8.17:4 is
payable whether or not such periods
are of equal length
"Price" : the sum of Ringgit Malaysia
(RM )
"the Land" : all those five (5) pieces of land more particularly
described in the Schedule hereto
"Purchaser's : the solicitors MESSRS GHAZI & LIM
Solicitors" whose office is at 19th Floor, MWE Plaza, No.8 Lebuh
Farquhar, 10200 Pulau Pinang.
Fax No: 04-2633188/04-2627433
"Redemption Sum" : a sum equal to the amount payable to the Chargee
before it will discharge the Charge
according to the Redemption Statement
referred to in Clause 6.2:4
"Vendor's : the solicitors MESSRS
Solicitors"
"Tax Retention" : the sum of Ringgit Malaysia
(RM )
only being the amount to be retained
by the Vendor's Solicitors as
stakeholders under Section 21B of the
1976 Act
"Working Day" : any day from
Monday to Saturday except for public
holidays gazetted in the Government
Gazette having effect in the State of
Penang
4. INTERPRETATION
4.1 The expression "Vendor" and "Purchaser" include the heirs
personal representatives and successors in title (as the
case may be) of the Vendor and the Purchaser. The
expression "the Purchaser" shall also include its nominee
and assigns.
4.2 Where the Vendor or the Purchaser are two or more persons
warranties representations agreements covenants and
obligations expressed or implied to be made by or with
such party are deemed to be made by or with such persons
jointly and severally.
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4.3 Words importing one gender include all other genders and
words importing the singular include the plural and vice
versa.
4.4 The expression "month" shall be construed as calendar
month.
4.5 The expression "person" and "persons" includes
corporations and natural persons.
4.6 Any obligations by a party not to do an act or thing
shall be deemed to include an obligation to use all
endeavours not to permit or suffer such act or thing to
be done by another person.
4.7 The term "the parties" means the Vendor and the
Purchaser.
4.8 The term "the party" means the Vendor or the Purchaser.
4.9 Reference to "notices" or "notice" mean a notice in
writing signed by or on behalf of the person making or
giving the notice.
4.10 Reference to "the Government Gazette" mean the Gazette of
the Government of Malaysia or the Gazette of the
Government of the State of Penang (as the case may be).
4.11 Any references to a specific statute include any
statutory extension or modification amendment or re-
enactment of such statute and any regulations or orders
made under such statute and any general reference to
"statute" or "statutes" or words to similar effect
includes any regulations or orders made under such
statute or statutes.
4.12 Reference in this Agreement to any clause or sub-clause
without further designation shall be construed as a
reference to the clause or sub-clause to this Agreement
so numbered.
4.13 The clause and paragraph heading do not form part of this
Agreement and shall not be taken into account in its
construction or interpretation.
4.14 Time wherever mentioned or referred to in this Agreement
shall be of the essence.
4.15 Any provision in this Agreement which expressly permits
or requires the Vendor's Solicitors or the Purchaser's
Solicitors to do or omit to do a thing shall be construed
as irrevocable authority given by the Vendor and the
Purchaser (as the case may be) to do or omit to do that
thing.
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5. AGREEMENT TO SELL AND PURCHASE AND CONDITIONS PRECEDENT
5.1 Agreement to Sell and Purchase
The Vendor shall sell and the Purchaser shall purchase
the Land free from all encumbrances and with vacant
possession for the Price subject to the following terms
and conditions.
5.2 FIC/MITI Approval
5.2:1 This Agreement is conditional upon
the Purchaser obtaining the approval of the FIC
and/or (as the case may be) MITI without
conditions or (if conditional) upon terms and
conditions acceptable to the Purchaser within
the period of six (6) months from the Agreement
Date or such further extended period as the
parties hereto may agree in writing
(hereinafter referred to as "the FIC/MITI
Approval").
5.2:2 The Purchaser shall at its own cost
and expense apply for the FIC/MITI Approval
within one (1) month from the Agreement Date
and furnish the Vendor with copies of such
application and the Vendor shall within ten
(10) days of the written request by the
Purchaser furnish the Purchaser with such
information and execute such documents as may
be required for the purposes of the application
for the FIC/MITI Approval.
5.2:3 In the event the FIC/MITI Approval is
not obtained or is granted subject to
conditions not acceptable to the Purchaser as
specified in Clause 5.2:1 within the said
period of six (6) months or the said extended
period, either party may terminate this
Agreement forthwith in writing and the
provisions of Clause 8.3 shall apply but such
rescission shall be without prejudice to the
rights or remedies of either party in respect
of any antecedent breach of this Agreement.
5.3 State Authority Consent
5.3:1 This Agreement is further conditional
upon the Purchaser obtaining the approval of
the Penang State Authority to the sale and
purchase of the Land herein by the Purchaser
without conditions or (if conditional) upon
terms and conditions acceptable to the
Purchaser within the period of six (6) months
from the Agreement Date or such further
extended period as the parties hereto may agree
in writing (hereinafter referred to as "the
State Authority Consent").
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5.3:2 The Purchaser shall at its own cost
and expense apply for the State Authority
Consent within one (1) month from the date of
the FIC/MITI Approval and furnish the Vendor
with copies of such application and the Vendor
shall within ten (10) days of the written
request by the Purchaser furnish the Purchaser
with such information and execute such
documents as may be required for the purposes
of the application for the State Authority
Consent.
5.3:3 In the event the State Authority
Consent is not obtained or is granted subject
to conditions not acceptable to the Purchaser
as specified in Clause 5.3:1 within the said
period of six (6) months or the said extended
period, either party may terminate this
Agreement forthwith in writing and the
provisions of Clause 8.3 shall apply but such
rescission shall be without prejudice to the
rights or remedies of either party in respect
of any antecedent breach of this Agreement.
6. THE VENDOR'S OBLIGATIONS
6.1 The Vendor's Returns
6.1:1 The Vendor shall:
6.1:1.1 within the time
provided in the 1976 Act; and
6.1:1.2 in accordance
with the provisions of the 1976 Act;
make the necessary returns to the
Director-General in respect of its sale of the
Land under this Agreement and furnish the
Purchaser or the Purchaser's Solicitors with
sufficient evidence of the compliance of the
provisions of the 1976 Act by the Vendor.
6.1:2 If the Vendor shall fail to notify
and submit the necessary returns to the
Director-General as required by Clause 6.1:1
and if as a result of such failure of the
Vendor the Purchaser is liable to pay a penalty
for the delay in paying the stamp duties or
late registration fee, if any, due on the
Transfer in respect of the Land, the Vendor
shall be jointly and severally responsible and
liable for the amount of the penalty on the
stamp duties and late registration fee.
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6.1:3 Notwithstanding anything to the
contrary, the Vendor undertakes to indemnify
the Purchaser and keep the Purchaser fully
indemnified against any liability, damage,
claim, proceedings, expense, loss and/or damage
in respect of real property gains tax under the
1976 Act or any other taxation or liabilities
of the Vendor arising from the disposal of the
Land by the Vendor.
6.2 Delivery of Documents
The Vendor shall deliver forthwith upon execution of this
Agreement (if he has not already done so) to the
Purchaser's Solicitors:
6.2:1 photocopies of the Documents of Title
in respect of the Land;
6.2:2 photocopies of the quit rent receipts
in respect of the Land for 1999;
6.2:3 photocopies of the current assessment
receipts (where applicable); and
6.2:4 a statement in writing from the
Chargee to the Purchaser stating the amount
payable to the Chargee before it will discharge
the Charges (hereinafter referred to as "the
Redemption Statement");
6.2:5 photocopies of any current insurance
policies taken out in respect of the Land
together with the insurers' receipt for the
last premiums due in respect of such policies;
and
6.2:6 two certified true copies each of the
Memorandum and Articles of Association, list of
shareholders and directors and the appropriate
resolution of the Vendor authorising the sale
of the Land herein.
6.3 Execution of Transfer
The Vendor shall immediately upon the execution of this
Agreement deliver to the Purchaser's Solicitors:-
6.3:1 valid and registrable Transfers of
the Land in duplicate in favour of the
Purchaser or its nominee duly executed by the
Vendor;
6.3:2 original and 4 copies of the Stamp
Duty Information Form (PDS 15) in respect of
such Transfers duly executed by the Vendor;
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who shall hold them as stakeholders in accordance with
the provisions of Clause 8.7:1.
6.4 Statutory Obligations
The Vendor warrants that it has not done and shall not do
in or near the Land any act or thing by reason of which
the Purchaser may under any statute incur have imposed
upon it or become liable to pay any penalty damages
compensation costs charges or expenses.
6.5 Written Communications
The Vendor shall within 5 Working Days of the receipt of
a written communication from a Competent Authority
relating to the Land or before the Completion Date
(whichever is the earlier) deliver to the Purchaser a
photocopy of such communication.
6.6 Outgoings
The Vendor warrants and represents that all rates, taxes,
assessments, duties, charges, impositions and other
outgoings charged, assessed or imposed upon the Land or
upon the owner or occupier of the Land have been paid up
to date and shall be apportioned as at Completion Date.
6.7 Discharge of Consultants
6.7:1 The Vendor warrants that there are no
outstanding professional or consultancy fees,
charges, disbursements and costs whatsoever due
to the Consultants and undertakes to indemnify
the Purchaser against all claims, damages,
losses, action, demands and proceedings
whatsoever in respect of the same.
6.7:2 The Vendor shall discharge all
Consultants (if any) employed by them in
respect of the Land and shall procure letters
of release from the Consultants in respect of
the Land.
6.8 Redemption Statement
Upon execution of this Agreement, the Vendor shall
procure from the Chargee a statement in writing addressed
to the Purchaser stating the amount payable to the
Chargee before it will discharge the Charges (hereinafter
referred to as "the Redemption Statement").
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6.9 Issue Document of Title
6.9:1 Notwithstanding anything stated
herein to the contrary upon:-
(i) the written notification by
the Purchaser's Solicitors that the
Purchaser's application for a loan from a
financial institution (hereinafter
referred to as "the Financier") has been
approved;
(ii) a letter of undertaking
from the Financier to the Vendor stating
to the effect that the Financier shall
release the loan amount to the Vendor upon
the presentation for the registration of
the Memorandum of Transfer in favour of
the Purchaser and the Charge in favour of
the Financier and/or the perfection of the
security documentation of the Financier;
(iii) the payment by the
Purchaser to the Vendor of the difference
between the Price and the loan amount;
the Vendor shall deliver or procured
to be delivered to the Purchaser or the
Purchaser's Solicitors the issue Document of
Title in respect of the Land together with all
other documents incumbent upon the Vendor to
furnish to the Purchaser to enable the Land to
be registered in the name of the Purchaser free
from all encumbrances (hereinafter referred to
as "the Documents").
6.9:2 The Vendor shall upon request by the
Purchaser deliver an undertaking to refund to
the Financier the loan amount or any part
released in the event that the Transfers cannot
be registered for any reasons whatsoever.
6.9:3 The Vendor shall forthwith upon
execution of this Agreement procure the Chargee
to deliver to the Financier a letter of
undertaking to deliver within seven (7) days of
the receipt of the Redemption Sum:-
6.9:3.1 the issue
documents of title to the Land;
6.9:3.2 the duplicate
Charge;
6.9:3.3 valid and
registrable discharge of the Charge;
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and to refund the Redemption Sum to
the Financier in the event the discharge of the
Charge cannot be registered for any reasons
whatsoever.
7. PURCHASER'S OBLIGATIONS
7.1 The Price
The Price of RM shall be paid by the
Purchaser on or before the Completion Date in the
following manner:-
7.1:1 to the Chargee the Redemption Sum to
secure the discharge of the Charge;
7.1:2 to the Vendor's Solicitors as
stakeholders in accordance with Clause 8.8 the
Tax Retention;
7.1:3 to the Vendor the Final Balance (if
any);
PROVIDED ALWAYS AND IT IS HEREBY EXPRESSLY AGREED that
notwithstanding anything to the contrary herein, in the
event the Purchaser is taking a loan to finance the
purchase of the Land, any payment or undertaking to pay
to the Vendor from the Purchaser's Financier shall be
valid and sufficient discharge of the Purchaser's
obligations in this Clause 7.1.
7.2 Purchaser's Returns
The Purchaser shall:-
7.2:1 within the time provided in the 1976
Act; and
7.2:2 in accordance with the provisions of
the 1976 Act;
make the necessary returns to the Director-General in
respect of its purchase of the Land under this Agreement.
8. GENERAL
8.1 Matters Affecting the Property
8.1.1 The Land is sold:-
8.1:1 with vacant possession;
8.1:2 free from all encumbrances
whatsoever;
8.1:3 subject to all conditions of title
whether express or implied affecting the Land
imposed by or under the Code unless provided
otherwise in this Agreement; and
8.1:4 subject to the Vendor's delivery to
the Purchaser good, marketable and registrable
titles to the Land.
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8.1.2 In the event that there is any defect in the titles
or
there are dealings or encumbrances affecting the Land,
the Vendor shall perfect the title or discharge all
encumbrances or dealings affecting the Land at the cost
and expense of the Vendor.
8.2 Rescission Rights
The Purchaser may by service of a notice on the Vendor or
the Vendor's Solicitor:-
8.2:1 at any time before Completion rescind
this Agreement (but without prejudice to any
other rights or remedies of the Purchaser):-
8.2:1.1 in the event the
Vendor breaches any of the provisions
of Clauses 6.3 to 6.9;
8.2:1.2 where subject to
Clause 8.2:1.3 a matter discovered by
either the Purchaser or the
Purchaser's Solicitors whether before
or after the Agreement Date is likely
to materially reduce the Price which
a willing Purchaser could otherwise
reasonably be expected to pay for the
Land in the open market on the
Agreement Date;
8.2:1.3 if all or any of
the area of the Land is affected by
any Acquisition Notice or Declaration
published in the Government Gazette
after the Agreement Date but on or
before the Completion Date;
8.2:1.4 in the event a
petition for winding-up is presented
against or a winding-up order is made
against the Vendor before Completion;
8.2:1.5 in the event the
Vendor enters into any arrangement or
compromise for the benefit of its
creditors before Completion;
8.2:2 before or after Completion (as the
case may be) rescind this Agreement (but
without prejudice to any other rights or
remedies of the Purchaser):-
8.2:2.1 in the event the
Transfers in respect of any of the
Land executed by the Vendor cannot be
registered after Completion;
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8.2:2.2 in the event the
Vendor is unable to give the
Purchaser good marketable or
registrable titles to any of the
Land;
8.2:2.3 all or any of the
searches and supplementary enquiries
submitted to the Majlis Perbandaran
Pulau Pinang and/or the relevant Land
Office or Land Registry (as the case
may be) reveal matters adverse to any
of the Land;
and upon the service of the notice
referred to in Clause 8.2:1 or 8.2:2 (as the
case may be) in accordance with the provisions
of Clause 8.2:1 or 8.2:2 (as the case may be)
this Agreement shall be rescinded and the
provisions of Clause 8.3 shall apply.
8.3 Rescission and Termination Consequences
In the event of the rescission or termination of this
Agreement in accordance with the provisions of Clauses
5.2:3, 5.3:3, 8.2:1, 8.2:2, 8.15 or 8.16 the following
shall take effect:-
8.3:1 the Vendor shall within seven (7)
Working Days of such rescission or termination
taking effect refund to the Purchaser any part
of the Price paid to them by the Purchaser or
the Purchaser's Solicitors;
8.3:2 subject to Clause 8.3:1 being
complied with by the Vendor, the Purchaser's
Solicitors shall:-
8.3:2.1 return to the
Vendor the Transfers and Stamp Duty
Information Form given by the Vendor
under the provisions of Clauses 6.3:1
and 6.3:2 unless the Purchaser's
Solicitors have already sent
delivered or presented such Transfer
or Stamp Duty Information Forms to
the Purchaser or the Competent
Authority following Completion (in
the event it has taken place); and
8.3:2.2 refund to
Purchaser any part of the Price held
by them under this Agreement and not
already paid to the Vendor;
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8.3:3 subject to Clause 8.3:1 being
complied with by the Vendor, the Purchaser
shall return to the Vendor the Transfer and
Stamp Duty Information Forms referred to in
Clause 8.3:2.1 sent or given to the Purchaser
by the Purchaser's Solicitors following
Completion; and
8.3:4 in the case of rescission or
termination under Clauses 8.15 or 8.16 no
interest cost or compensation shall be payable
by either party.
8.4 Default of the Purchaser
In the event the Purchaser fails to pay the Price in
accordance with the provisions of this Agreement and/or a
winding-up order is made against the Purchaser the Vendor
may by notice rescind this Agreement and upon service of
such notice:
8.4:1 the Purchaser's Solicitors shall
return to the Vendor the Transfer and Stamp
Duty Information Forms given by the Vendor
under the provision of Clauses 6.3:1 and 6.3:2;
8.4:2 subject to Clause 8.4:1 no interest
cost or compensation shall be payable by either
party; and
8.4:3 this Agreement shall become null and
void and of no further effect and neither party
shall have any claim against the other whether
arising out of this Agreement or otherwise.
8.5 Outgoings
The Purchaser shall be liable for all outgoings from the
Completion Date.
8.6 Private Caveat
The Purchaser may at any time after the execution of this
Agreement enter a Private Caveat against the title to the
Land to protect its rights and interests under this
Agreement.
8.7 The Purchaser's Solicitors Duties
The Purchaser's Solicitors:
8.7:1 shall in the event the Vendor deliver
the Transfers and Stamp Duty Information Form
referred to in Clause 6.3 in accordance with
the provisions of that clause not part
possession with such Transfers and Stamp Duty
Information Form until Completion except:-
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8.7:1.1 for the purpose
of Stamp Duty adjudication and/or
stamping of such Transfers;
8.7:1.2 to enable the
Purchaser to:-
(i) obtain
a loan from a financial
institution to finance (whether
wholly or partly) the purchase
of the Land by the Purchaser;
and
(ii) obtain
the release of such loan by such
financial institution to pay the
Price.
8.8 Real Property Gains Tax
8.8:1 The Vendor's Solicitors shall upon
payment to them of the Tax Retention in
accordance with the provisions of Clauses 7.1:2
hold the Tax Retention until the Vendor's
Solicitors have received a copy of the
Certificate of Clearance from the Director-
General or evidence of payment of the
Assessment Notice whereupon the Vendor's
Solicitors shall pay the Vendor the Tax
Retention or in the event the Vendor's
Solicitors have paid the Director-General in
accordance with the provisions of Clause 8.8:2,
such part of it remaining if any.
8.8:2 The Vendor's Solicitors shall in the
event:-
8.8:2.1 the Purchaser
receives from the Director-General
any requests made under Section 21B
of the 1976 Act requiring the
Purchaser to pay any sum of money in
respect of the sale of the Land by
the Vendor to the Purchaser under
this Agreement; and
8.8:2.2 the Purchaser
requires the Vendor's Solicitors to
pay the Director-General:-
(i) the
whole of the Tax Retention (in
the event the sum demanded under
such request is equal to or
exceeds the Tax Retention); or
(ii) such
part of the Tax Retention as may
be sufficient to pay the sum
demanded under such requests (in
the event such sum demanded is
less than the Tax Retention);
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comply with such requirement of the
Purchaser and the receipt of the Director-
General shall be sufficient discharge to the
Vendor's Solicitors to the extent of the amount
paid to and received by the Director-General.
8.9 Payments and the Solicitors
8.9:1 Payments of any moneys whether by or
to the Vendor or the Vendor's Solicitors or the
Purchaser or the Purchaser's Solicitors under
this Agreement shall be made either by:-
8.9:1.1 cheque drawn by
the Vendor's Solicitors;
8.9:1.2 cheque drawn by
the Purchaser or the Purchaser's
Solicitors;
8.9:1.3 Banker's Draft;
or
8.9:1.4 Banker's Cheque.
8.9:2 Any payments to be made by the Vendor
or the Purchaser (as the case may be) shall be
deemed made to the Purchaser or the Vendor if
paid to the Purchaser or the Vendor (as the
case may be) or the Purchaser's Solicitors or
the Vendor's Solicitors (as the case may be)
whose receipt shall be a good and sufficient
discharge to the Vendor or the Purchaser (as
the case may be).
8.10 Full Force And Effect Even After The Payment
All warranties representations agreements covenants and
obligations of whatever nature given made or undertaken
under or pursuant to this Agreement shall (except for any
obligations fully performed before or on Completion)
continue in full force and effect even after Completion.
8.11 The Purchaser's Right To Assign And To Specific Performance
8.11:1 This Agreement and all rights in it
may be assigned or transferred by the Purchaser
and the Purchaser shall be entitled to specific
performance of this Agreement.
8.11:2 This Agreement and all rights in it
shall not be assigned by the Vendor.
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8.12 Notices
8.12:1 Notices to the Vendor shall (without
prejudice to any other means of service)
subject to Clause 8.12:5 be deemed served on
the Vendor if delivered or sent by hand
A.R.Registered Post telex facsimile electronic
mail or any other means of electronic
transmission to the following address:-
KLIH PROJECT MANAGEMENT SDN. BHD.
(Company No.14962-D)
11th Floor, Wisma KLIH,
No.126 Jalan Bukit Bintang,
55100 Kuala Lumpur
FAX NO:
MEC AUDIO VISUAL PRODUCTS SDN. BHD.
(Company No.170217-X)
11th Floor, Wisma KLIH,
No.126 Jalan Bukit Bintang,
55100 Kuala Lumpur
FAX NO:
8.12:2 Notices to the Purchaser shall
(without prejudice to any other means of
service) subject to Clause 8.12:5 be deemed
served on the Purchaser if delivered or sent by
hand A.R.Registered Post telex facsimile
electronic mail or any other means of
electronic transmission to the following
address:-
MCMS SDN. BHD.
Plots 12 & 13, Phase IV,
Free Industrial Zone,
Bayan Lepas,
11900 Penang
FAX NO:
8.12:3 Notices to the Vendor's Solicitors
shall (without prejudice to any other means of
service) subject to Clause 8.12:5 be deemed
served on the Vendor's Solicitors if delivered
or sent by hand A.R.Registered Post telex
facsimile electronic mail or any other means of
electronic transmission to the Vendor's
Solicitors office at the address stated in
Clause 3.
8.12:4 Notices to the Purchaser's Solicitors
shall (without prejudice to any other means of
service) subject to Clause 8.12:5 be deemed
served on the Purchaser's Solicitors if
delivered or sent by hand A.R.Registered Post
telex facsimile electronic mail or any other
means of electronic transmission to the
Purchaser's Solicitors at the address stated in
Clause 3.
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8.12:5 Notices shall be deemed given:-
8.12:5.1 in the case of
hand delivery only upon written
acknowledgment of receipt by the
addressee or any partner or officer
or other employee agent or
representative of the addressee;
8.12:5.2 in the case of
A.R.Registered Post only upon written
acknowledgment of receipt on the
A.R.Card by the addressee or any
partner or officer or other employee
agent or representative of the
addressee;
8.12:5.3 in the case of
telex upon receipt of answerback;
8.12:5.4 in the case of
facsimile or electronic mail upon
receipt of transmission;
8.12:5.4 in the case of
any other means of electronic
transmission upon receipt of the
transmission;
8.13 Delivery of Items Other Than Notices
8.13:1 Items other than Notices to be
delivered to the Vendor shall (without
prejudice to any other means of delivery)
subject to Clause 8.13:5 be deemed delivered to
the Vendor if delivered by hand or sent by
A.R.Registered Post to the Vendor's address
stated in Clause 8.12:1.
8.13:2 Items other than Notices to be
delivered to the Purchaser shall (without
prejudice to any other means of delivery)
subject to Clause 8.13:5 be deemed delivered to
the Purchaser if delivered by hand or sent by
A.R.Registered Post to the Purchaser's address
stated in Clause 8.12:2.
8.13:3 Items other than Notices to be
delivered to the Vendor's Solicitors shall
(without prejudice to any other means of
delivery) subject to Clause 8.13:5 be deemed
delivered to the Vendor's Solicitors if
delivered by hand or sent by A.R.Registered
Post to the Vendor's Solicitors office at the
address stated in Clause 3.
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8.13:4 Items other than Notices to be
delivered to the Purchaser's Solicitors shall
(without prejudice to any other means of
delivery) subject to Clause 8.13:5 be deemed
delivered to the Purchaser's Solicitors if
delivered by hand or sent by A.R.Registered
Post to the Purchaser's Solicitors office at
the address stated in Clause 3.
8.13:5 Items other than Notices shall be
deemed delivered:-
8.13:5.1 in the case of
hand delivery only upon written
acknowledgment of receipt by the
addressee or any partner or officer
or other employee agent or
representative of the addressee;
8.13:5.2 in the case of
A.R.Registered Post only upon written
acknowledgment of receipt on the
A.R.Card by the addressee or any
partner or officer or other employee
agent or representative of the
addressee.
8.14 Waiver
8.14:1 No right under this Agreement shall
be deemed waived unless made or confirmed in
writing and signed by or on behalf of the party
waiving such right.
8.14:2 A waiver by a party shall be without
prejudice to its rights or remedies in respect
of any other breach of this Agreement by either
of the parties.
8.14:3 Subject to Clause 8.14:2 any failure
by a party to enforce any of the provisions of
this Agreement or any forebearance delay or
indulgence granted by that party to the other
party shall not be construed as a waiver of
that party's rights under this Agreement.
8.15 Severance
If any provision of this Agreement is declared by any
judicial or other competent authority to be void voidable
illegal or otherwise unenforceable the remaining
provisions of this Agreement shall remain in full force
and effect unless the Purchaser in its discretion decide
that the effect of such declaration defeats the original
intention of the parties in which even the Purchaser
shall be entitled to terminate this Agreement by 5
Working Days notice to the Vendor and the provisions of
Clause 8.3 will have effect.
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8.16 Force Majeure
The parties shall be released from their respective
obligations in the event of national emergency war
prohibitive governmental regulation or of any other cause
beyond the reasonable control of the parties or either of
them which renders the performance of this Agreement
impossible whereupon this Agreement shall terminate and
the provisions of Clause 8.3 shall have effect provided
that this clause shall have effect only if the Purchaser
serve a notice on the Vendor that it shall have effect.
8.17 Apportionments
8.17:1 On Completion the income and
outgoings of the Land shall subject to Clause
8.17:2 be apportioned as at the Completion
Date.
8.17:2 Clause 8.17 shall not apply to any
sum if:-
8.17:2.1 the Purchaser
cannot by reason only of becoming the
owner of the Land either enforce
payment of it or be obliged to pay
it; or
8.17:2.2 it is an outgoing
paid in advance unless the Vendor
cannot obtain repayment and the
Purchaser as a result benefit or is
given credit against a sum that would
otherwise be its liability.
8.17:3 For the purposes of apportionment
only it shall be assumed:-
8.17:3.1 until the end of
the Completion Date;
8.17:3.2 that the sum to
be apportioned:-
8.17:3.2:1 accrues from day to day;
8.17:3.2:2 is payable throughout the
relevant period at the
same rate as on the
Completion Date.
8.17:4 Sums payable periodically shall be
apportioned by charging or allowing:-
8.17:4.1 for any Payment
Period entirely attributable to one
party the whole of the instalment
payable for such Payment Period;
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8.17:4.2 for any part of a
Payment Period a proportion on an
annual basis.
8.17:5 In the event:-
8.17:5.1 any sum payable
in respect of any period fails wholly
or partly before the Completion Date;
and
8.17:5.2 the amount of
such sum is not notified to either
party before Completion;
a provisional apportionment shall be
made on the best estimate available and upon
the amount being notified a final apportionment
shall be made and one party shall then make to
the other the appropriate balancing payment.
8.18 Completion Date
8.18:1 Subject to Clauses 8.18:2 and 8.18:3
Completion shall take place on the last day of
the period of one (1) month from the date of
compliance of all the conditions precedent in
Clause 5 (provided always that the Purchaser
shall be entitled to waive any of the
conditions precedents) or three (3) months from
the Agreement Date, whichever is the later.
8.18:2 In the event the Purchaser wishes
Completion to take place earlier the Purchaser
shall give the Vendor notice of such wish and
the date on which it wishes Completion to take
place and the Completion Date shall then be
such date stated in such notice as the date on
which the Purchaser wishes the Completion Date
to be.
8.18:3 In the event the date fixed or
stipulated under the provisions of Clauses
8.18:1 and 8.18:2 for Completion to take place
is a Holiday then the date for Completion to
take place will be the next following Working
Day.
8.18:4 On Completion the Vendor shall
deliver or procure to be delivered to the
Purchaser the original issue documents of title
in respect of the Land and all other documents
incumbent upon the Vendor to deliver to the
Purchaser to enable the Purchaser to be
registered as proprietor of the Land free from
all encumbrances.
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8.19 Vendor's Undertaking
During the continuance of this Agreement the Vendor
hereby undertake with the Purchaser that the Vendor shall
not sell, transfer, dispose off, charge, lease, assign,
licence or part with the possession of the Land or deal
with the Land in any manner whatsoever without prior
written consent of the Purchaser and shall keep the Land
in the same condition as they are at the Agreement Date.
8.20 Supersedes Prior Agreements
This Agreement supersedes any prior agreements between
the parties whether written or oral and any such prior
agreements are cancelled as at the date of this Agreement
but without prejudice to any rights which have already
accrued to either of the parties.
8.21 Change of Address
Each party shall serve notice on the other of the change
or acquisition of any address and of any telephone telex
facsimile electronic mail or similar number at the
earliest possible opportunity but in any event within 48
hours of such change or acquisition.
8.22 Rights Cumulative
All rights granted to either of the parties shall be
cumulative and no exercise by either of the parties of
any right under this Agreement shall restrict or
prejudice the exercise of any other right granted by this
Agreement or otherwise available to it.
8.23 Costs and Stamp Duties
8.23:1 Subject to Clause 8.23:2 each party
shall pay the fees and disbursements of its own
agents accountants solicitors and all other
costs and expenses incurred by it in relation
to the negotiation preparation execution and
completion of this Agreement.
8.23:2 The Purchaser shall pay the stamp
duty on the original and 3 counterpart of this
Agreement and all the stamp duty and
registration fees in respect of the Transfer
executed by the Vendor under this Agreement.
80
<PAGE>
THE SCHEDULE ABOVE REFERRED TO
(Clause 2.1)
The Land
All those five (5) pieces of land situate in Mukim 12 Daerah
Barat Daya, Negeri Pulau Pinang described below:-
COLUMN 1 COLUMN 2 COLUMN 3
Lot No./
P.T.No. Title No. Area
1. 1223 H.S.(D)6941 37,910 square feet
2. 1224 H.S.(D)6942 4,532 square feet
3. 1225 H.S.(D)6943 5,554 square feet
4. 1226 H.S.(D)6944 2,615 square feet
5. 8130 Pajakan Negeri 10,929 square metres or
No.1765 117,639 square feet
-------------------
168,250 square feet
===================
81
<PAGE>
IN WITNESS WHEREOF the parties hereto have hereunto set their
hands and seals the day and year first above written.
The Common Seal of KLIH )
PROJECT MANAGEMENT SDN. )
BHD.(Company No.14962-D) )
was hereunto duly affixed)
in the presence of:- )
/s/ Anthony Chew /s/ Chong Fui Nyee
.................. ..................
Director Director/Secretary
The Common Seal of MEC )
AUDIO VISUAL PRODUCTS SDN.)
BHD. (Company No.170217-X))
was hereunto duly affixed )
in the presence of:- )
/s/ Terence Selvarajah /s/ Lim Tian Huat
...................... ..................
Director Director/Secretary
The Common Seal of )
MCMS SDN. BHD. (Company )
No. 399136-M) was duly )
affixed in the presence )
of:- )
/s/ Azliza Baizura Bt Azmel /s/ Ron Gines
........................... ..................
Director Director/Secretary
82
<PAGE>
ENDORSEMENT BY STANDARD CHARTERED BANK MALAYSIA BERHAD
------------------------------------------------------
We, STANDARD CHARTERED BANK MALAYSIA BERHAD(Company No.115793-
P), a company incorporated in Malaysia under the Companies
Act, 1965 and having a place of business at No.2 Beach Street,
10300 Penang, the Chargee hereinbefore mentioned hereby
acknowledge and grant our consent to the Lease, the Option to
Renew and the Option to Purchase herein.
Dated this 18th day of June 1999.
SIGNED for and on behalf of ) STANDARD CHARTERED BANK
STANDARD CHARTERED BANK ) MALAYSIA BERHAD
MALAYSIA BERHAD (Company No.) By Its Attorney(s)
115793-P) by its Attorney in)
the presence of:- )
/s/ Azliza Baizura Bt Azmel /s/ Richard Kong Mun Choy
............................ .........................
83
<PAGE>
ACKNOWLEDGEMENT AND ACCEPTANCE BY MEC
OF THE TERMS HEREINBEFORE MENTIONED
--------------------------------------
We, MEC AUDIO VISUAL PRODUCTS SDN. BHD. (Company No.170217-X),
a company incorporated in Malaysia and having its registered
office at 11th Floor, Wisma KLIH, No.126 Jalan Bukit Bintang,
55100 Kuala Lumpur, the beneficial owner of the Demised Land
hereinbefore mentioned, hereby agree and consent to the Lease,
the Option to Renew and the Option to Purchase herein and
acknowledge accept and undertake to abide by, discharge,
perform and observe all the terms and conditions stipulated
herein this Lease Annexure as though we are a party to this
Lease.
We hereby confirm and agree that the words "Lessor"
wheresoever appearing in the Lease shall be deemed to include
and bind us as though we are the Lessor.
This acknowledge, acceptance and confirmation shall be binding
upon our successors in title.
The Common Seal of MEC AUDIO)
VISUAL PRODUCTS SDN. BHD. )
(Company No. 170217-X) was )
hereunto affixed in the )
presence of:- )
/S/ Terence Selvarajah /s/ Lim Tian Huat
....................... ..................
Director Director/Secretary
84
<PAGE>
AMENDMENT NO. 1
TO
REVOLVING CREDIT, EQUIPMENT LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 ("Amendment") is entered into as of
July 13, 1999, by and among MCMS, INC., an Idaho corporation
("Borrower"), PNC BANK, NATIONAL ASSOCIATION ("PNC"), FLEET
CAPITAL CORPORATION ("Fleet"), IBJ WHITEHALL BUSINESS CREDIT
CORPORATION ("IBJ") and PNC as agent (in such capacity, "Agent")
for Lenders (as hereafter defined).
BACKGROUND
Borrower, Agent and various financial institutions (together
with PNC, Fleet and IBJ, collectively, the "Lenders") are parties
to a Revolving Credit, Equipment Loan and Security Agreement
dated as of February 26, 1999 (as amended, supplemented or
otherwise modified from time to time, the "Loan Agreement")
pursuant to which Agent and Lenders provide Borrower with certain
financial accommodations.
Borrower has requested that Agent and Lenders (a) increase
the inventory advance rates, (b) increase the inventory sublimit,
(c) make loans and advances to Borrower against machinery and
equipment and (d) modify the calculation of Undrawn Availability,
and Agent and Lenders are willing to do so on the terms and
conditions hereafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or
grant of credit heretofore or hereafter made to or for the
account of Borrower by Agent and by Lenders, and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. All capitalized terms not otherwise
defined herein shall have the meanings given to them in the Loan
Agreement.
2. Amendment to Loan Agreement. Subject to satisfaction
of the conditions precedent set forth in Section 3 below, the
Loan Agreement is hereby amended as follows:
(a) Section 1.2 of the Loan Agreement is amended as
follows:
(i) the following defined terms are added in
their appropriate alphabetical order:
"Amendment No. 1" shall mean Amendment No. 1
to Revolving Credit, Equipment Loan and Security
Agreement dated as of July 13, 1999 among Agent,
Lenders and Borrower.
85
<PAGE>
"Amendment No. 1 Effective Date" shall mean
the date when the conditions of effectiveness set forth
in Section 3 of Amendment No. 1 are met to Lenders'
satisfaction.
"Amortized Amount" shall mean, during any
month, an amount equal to $186,666.67.
"Amortizing Availability" shall mean an
amount equal to (i) (A) the lesser of (a) $11,200,000
or (b) up to seventy five percent (75%) subject to the
provisions of Section 2.1(b) hereof (the "Equipment
Advance Rate"), of the orderly liquidation value of the
Eligible Equipment, less (ii) on the first day of each
month during the Term commencing with the first full
month following the Amendment No. 1 Effective Date, the
Amortized Amount, less (iii) the orderly liquidation
value of any Equipment included in the calculation of
clause (i) of this definition which is sold,
transferred, scrapped, or otherwise disposed of by
Borrower or is transferred to any location other than
any of Borrower's locations listed on Schedule 4.5 to
this Agreement.
"Eligible Equipment" shall mean and include
the Equipment listed on the appraisal performed on
behalf of Agent, a copy of which is attached hereto as
Exhibit C.
"Equipment Advance Rate" shall have the
meaning set forth in the definition of Amortizing
Availability.
"Finished Goods Inventory Advance Rate" shall
have the meaning set forth in Section 2.1(b) hereof.
"WIP Inventory Advance Rate" shall have the
meaning set forth in Section 2.1(b) hereof.
(ii) the following defined term is hereby amended
in its entirety to provide as follows:
"Undrawn Availability" at a particular date shall
mean an amount equal to (a) the Formula Amount, minus
(b) the sum of (i) the outstanding amount of Revolving
Advances, plus (ii) all amounts due and owing to
Borrower's trade creditors which are outstanding more
than sixty (60) days beyond the due date thereof, plus
(iii) fees and expenses for which Borrower is liable
hereunder which are due and payable but which have not
been paid or charged to Borrower's Account.
(b) Section 2.1(a)(y) of the Loan Agreement is hereby
amended in its entirety to provide as follows:
(i) up to 85%, subject to the provisions of
Section 2.1(b) hereof ("Receivables Advance Rate"), of
Eligible Receivables, plus
86
<PAGE>
(ii) up to the lesser of (A)(i) 10%, subject
to the provisions of Section 2.1(b) hereof ("Raw
Material Inventory Advance Rate"), of the value of
Eligible Inventory consisting of raw materials plus
(ii) up to the lesser of (1) 70%, subject to the
provisions of Section 2.1(b) hereof ("Finished Goods
Inventory Advance Rate"), of the value of Eligible
Inventory consisting of finished goods and (2)
$1,000,000 plus (iii) 60%, subject to the provisions of
Section 2.1(b) hereof (the "WIP Inventory Advance
Rate"), of the value of Eligible Inventory consisting
of work-in-process (the Receivables Advance Rate, the
Raw Material Inventory Advance Rate, Finished Goods
Inventory Advance Rate, the WIP Inventory Advance Rate
and the Equipment Advance Rate shall be referred to
collectively, as the "Advance Rates") or (B) the lesser
of (i) $15,000,000 (the "Inventory Cap") or (ii) 50% of
the amount derived from the sum of Sections
2.1(a)(y)(i) and (ii)(A) or (B)(i), in the aggregate at
any one time, plus
(iii) Amortizing Availability, minus
(iv) such reserves as Agent may reasonably
deem proper and necessary from time to time.
The amount derived from the sum of (x) Sections
2.1(a)(y)(i), (ii) and (iii) minus (y) Section
2.1(a)(y)(iv) at any time and from time to time shall
be referred to as the "Formula Amount". The Revolving
Advances shall be evidenced by one or more secured
promissory notes (collectively, the "Revolving Credit
Note") substantially in the form attached hereto as
Exhibit 2.1(a).
(c) Section 15.2(b) of the Loan Agreement is hereby
amended as follows:
(i) clause (ii) is amended in its
entirety to provide as follows:
"extend the maturity of any Note or the due date
of any amount payable hereunder, or reduce the
principal amount of any scheduled installment payment
due hereunder, or decrease the rate of interest or
reduce any fee payable by Borrower to Lenders pursuant
to this Agreement."
(ii) a new clause (ix) is added to the
end thereof to provide as follows:
"decrease the amount of Undrawn Availability
Borrower is required to maintain pursuant to Section
6.5 hereof from the amount established as of the
Closing Date."
3. Conditions of Effectiveness. This Amendment shall
become effective upon satisfaction of the following conditions
precedent: Agent shall have received (i) six (6) copies of this
Amendment executed by Borrower and Lenders and consented and
agreed to by Guarantors, (ii) UCC-1 financing statements duly
executed by Borrower to be filed with the Secretary of State of
the State of California, the Secretary of the Commonwealth of
Massachusetts and the Town Clerk of Stowe, (iii) a letter
agreement duly executed by Borrower with respect to the patents
listed on Schedule A to this Amendment together with a Patent
Grant of Security related thereto duly executed by Borrower and
87
<PAGE>
Agent, and (iv) and such other certificates, instruments,
documents, agreements and opinions of counsel as may be required
by Agent or its counsel, each of which shall be in form and
substance satisfactory to Agent and its counsel.
4. Representations and Warranties. Borrower hereby
represents and warrants as follows:
(a) This Amendment and the Loan Agreement, as amended
hereby, constitute legal, valid and binding obligations of
Borrower and are enforceable against Borrower in accordance with
their respective terms.
(b) Upon the effectiveness of this Amendment, Borrower
hereby reaffirms all covenants, representations and warranties
made in the Loan Agreement to the extent the same are not amended
hereby and agree that all such covenants, representations and
warranties shall be deemed to have been remade as of the
effective date of this Amendment.
(c) No Event of Default or Default has occurred and is
continuing or would exist after giving effect to this Amendment.
(d) Borrower has no defense, counterclaim or offset
with respect to the Loan Agreement.
5. Effect on the Loan Agreement.
(a) Upon the effectiveness of Section 2 hereof, each
reference in the Loan Agreement to "this Agreement," "hereunder,"
"hereof," "herein" or words of like import shall mean and be a
reference to the Loan Agreement as amended hereby.
(b) Except as specifically amended herein, the Loan
Agreement, and all other documents, instruments and agreements
executed and/or delivered in connection therewith, shall remain
in full force and effect, and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, operate as a waiver of any right, power or
remedy of Agent or any Lender, nor constitute a waiver of any
provision of the Loan Agreement, or any other documents,
instruments or agreements executed and/or delivered under or in
connection therewith.
6. Governing Law. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their
respective successors and assigns and shall be governed by and
construed in accordance with the laws of the State of New York.
7. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose.
8. Counterparts. This Amendment may be executed by the
parties hereto in one or more counterparts, each of which shall
be deemed an original and all of which when taken together shall
constitute one and the same agreement.
88
<PAGE>
IN WITNESS WHEREOF, this Amendment has been duly executed as
of the day and year first written above.
MCMS, INC.
/s/ Chris J. Anton
Vice President Finance, CFO
PNC BANK, NATIONAL ASSOCIATION, as
Agent and a Lender
/s/ Ryan Peak
Vice President
Commitment Percentage: 41.7%
FLEET CAPITAL CORPORATION, as a
Lender
/s/ Carmen Caporrino
Vice President
Commitment Percentage: 37.5%
IBJ WHITEHALL BUSINESS CREDIT
CORPORATION, as a Lender
/s/ Bruce Kasper
Vice President
Commitment Percentage: 20.8%
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
89
<PAGE>
CONSENTED AND AGREED TO:
MCMS CUSTOMER SERVICES, INC.
/s/ Chris J. Anton
President
MCMS HOLDINGS, LLC
/s/ Chris J. Anton
President
90
<PAGE>
SCHEDULE A
New Patents/Patent Applications
Patent No. Country Title
5,874,323 US Improved Carrier Socket for Receiving a
Damaged IC
5,876,498 US Method and Apparatus for Preserving
Solder Paste in the Manufacturing of
Printed Circuit Board Assemblies
5,892,367 US Thermal Box for a Semiconductor Test
System
09/270,646 US Method of Utilizing a Plasma Gas Mixture
Containing Argon and CF4 to Clean and
Coat a Conductor
5,871,808 US Method for preserving Solder Paste in
the manufacturing of printed circuit
board assemblies.
5,899,446 US Universal fixture for holding printed
circuit boards during processing.
5,906,364 US Air bladder fixture tooling for
supporting circuit board assembly
processing.
5,910,024 US Carrier socket for receiving a damaged
IC.
91
<PAGE>
PATENT GRANT OF SECURITY
WHEREAS, MCMS, INC., a corporation formed under the
laws of the State of Idaho located at 16399 Franklin Road, Nampa,
Idaho 83687 ("Borrower"), owns the patents and patent
applications shown in the attached Schedule A (the "Patents"),
for which there are recordings or applications in the United
States Patent and Trademark Office under the numbers shown in the
attached Schedule A; and
WHEREAS, Borrower is obligated to PNC Bank, National
Association ("PNC"), the various other financial institutions
(together with PNC, collectively, the "Lenders") named in or
which hereafter become a party to the Loan Agreement (as
hereafter defined) and PNC as agent for Lenders (in such
capacity, "Agent"), pursuant to (i) a certain Revolving Credit,
Equipment Loan and Security Agreement, dated February 26, 1999
(as such agreement may be amended, restated, modified or
supplemented from time to time, the "Loan Agreement"), among
Agent, Lenders and Borrower; and (ii) a certain Patent Collateral
Security Agreement, dated February 26, 1999 (as such agreement
has been amended by that certain Letter Agreement dated the date
hereof and may be amended, modified, restated or supplemented
from time to time, the "Security Agreement" and together with the
Loan Agreement, the "Agreements") made by Borrower in favor of
Agent for its benefit and for the ratable benefit of Lenders; and
WHEREAS, pursuant to the Agreements, Borrower is
granting to Agent for its benefit and for the ratable benefit of
Lenders a security interest in the Patents, all proceeds thereof,
all rights corresponding thereto and all reissues, divisions,
continuations, renewals, extensions and continuations-in-part
thereof.
NOW, THEREFORE, for good and valuable consideration,
receipt of which is hereby acknowledged, Borrower does hereby
collaterally assign unto Agent and grant to Agent for its benefit
and for the ratable benefit of Lenders a security interest in and
to the Patents, which collateral assignment and security interest
shall secure all of the Obligations as defined in the Agreements
and in accordance with the terms and provisions thereof.
[SIGNATURE PAGE TO FOLLOW]
92
<PAGE>
Borrower expressly acknowledges and affirms that the
rights and remedies of Agent and Lenders with respect to the
collateral assignment and security interest granted hereby are
more fully set forth in the Agreements.
Dated: New York, New York
July 13, 1999
MCMS, INC.
Witness:
/s/ Cathy Brokaw /s/ Chis J. Anton
.................. ......................./
Name: Christian J. Anton
Title: Vice President, Finance
and Chief Financial Officer
PNC BANK, NATIONAL ASSOCIATION,
as Agent
Witness:
/s/ Josephine Griffin /s/ Ryan Peak
...................... .......................
Name: Ryan Peak
Title: Vice President
93
<PAGE>
STATE OF IDAHO )
ss.
COUNTY OF CANYON )
On this 13th day of July, 1999, before me personally
came Christian J. Anton, to me known, who, being by me duly
sworn, did depose and say that he is the Vice President, Finance
and Chief Financial Officer of MCMS, INC., the corporation
described in and which executed the foregoing instrument; and
that he signed his name thereto by order of the board of
directors of said corporation.
/s/ Cathy Brokaw
__________________________________
Notary Public
STATE OF NEW YORK )
ss.
COUNTY OF MIDDLESEX )
On this 13th day of July, 1999, before me personally
came Ryan Peak, to me known, who, being by me duly sworn, did
depose and say that he is the Vice President of PNC BANK,
NATIONAL ASSOCIATION, the association described in and which
executed the foregoing instrument; and that he was authorized to
sign his name thereto on behalf of said association.
/s/ Josephine Griffin
__________________________________
Notary Public
94
<PAGE>
SCHEDULE A
Schedule A to a Patent Grant of Security dated July 13, 1999, by
and between MCMS, INC. and PNC BANK, NATIONAL ASSOCIATION, as
Agent.
Patent No. Country Title
5,874,323 US Improved Carrier Socket for Receiving a
Damaged IC
5,876,498 US Method and Apparatus for Preserving
Solder Paste in the Manufacturing of
Printed Circuit Board Assemblies
5,892,367 US Thermal Box for a Semiconductor Test
System
09/270,646 US Method of Utilizing a Plasma Gas Mixture
Containing Argon and CF4 to Clean and
Coat a Conductor
5,871,808 US Method for preserving Solder Paste in
the manufacturing of printed circuit
board assemblies.
5,899,446 US Universal fixture for holding printed
circuit boards during processing.
5,906,364 US Air bladder fixture tooling for
supporting circuit board assembly
processing.
5,910,024 US Carrier socket for receiving a damaged
IC.
95
<PAGE>
PNC Bank, National Association
Two Tower Center
East Brunswick, New Jersey 08816
July 13, 1999
MCMS, Inc.
16399 Franklin Road
Nampa, Idaho 83687
Attention: Christian Anton
Dear Mr. Anton:
Reference is made to that certain (a) Revolving Credit,
Equipment Loan and Security Agreement dated February 26, 1999 (as
same may be amended, restated, modified or supplemented from time
to time, the "Loan Agreement") among MCMS, Inc. ("Borrower"), the
financial institutions which are now or hereafter become a party
thereto (collectively, the "Lenders") and PNC Bank, National
Association ("PNC"), as agent for Lenders (PNC in such capacity,
the "Agent") and (b) Patent Collateral Security Agreement dated
as of February 26, 1999 (as the same may be amended, restated,
modified or supplemented from time to time, the "Security
Agreement") between Borrower and Agent. Capitalized terms not
otherwise defined herein shall have the meanings ascribed to them
in the Loan Agreement.
Since the Closing Date, Borrower has acquired a number
of new patents (the "New Patents"). Borrower has granted a
security interest in the New Patents to Agent for its benefit and
for the ratable benefit of Lenders pursuant to the terms and
conditions of the Loan Agreement and Security Agreement.
To induce Agent and Lenders to continue to provide
financial accommodations to Borrower pursuant to the Loan
Agreement, this letter will confirm our agreement to amend in
their entirety Schedule A of the Security Agreement and Schedule
5.9 of the Loan Agreement and replace each of them with Schedule
A attached hereto.
To secure the prompt payment of your obligations under
the Loan Agreement and the Security Agreement, you hereby grant
to Agent for its benefit and for the ratable benefit of Lenders a
security interest in all of the "Collateral" under the Loan
Agreement and the Security Agreement as amended herein and you
hereby reaffirm, represent and agree that Agent has a first
priority security interest in all of the Collateral described on
Schedule A to this letter.
[SIGNATURE PAGE TO FOLLOW]
96
<PAGE>
Except as expressly specifically provided herein, all
of the representations, warranties, terms, covenants and
conditions of the Loan Agreement and the Security Agreement shall
continue to be and shall remain, in full force and effect in
accordance with their respective terms. The amendments set forth
herein shall be limited precisely as provided herein and shall
not be deemed an amendment of, consent to or modification of any
other term or provision of the Loan Agreement and the Security
Agreement or of any transaction or future action on your part
requiring our consent under the Loan Agreement and the Security
Agreement.
This letter may be executed by the parties hereto in
one or more counterparts, each of which shall be deemed an
original and all of which taken together shall constitute one and
the same agreement.
If you are in agreement with the foregoing, kindly
execute this letter in the space provided below and return same
to the undersigned. This letter shall become effective upon
receipt by Agent of six (6) copies of this letter executed by
Borrower.
Very truly yours,
PNC BANK, NATIONAL ASSOCIATION,
as Agent
/s/ Ryan Peak
____________________________
Title: Vice President
ACCEPTED AND AGREED TO:
MCMS, INC.
/s/ Chis J. Anton
__________________________
Title: Vice President, Finance
and Chief Financial Officer
97
<PAGE>
<TABLE> <S> <C>
<S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> SEP-2-1999
<PERIOD-END> JUN-3-1999
<CASH> 1,530
<SECURITIES> 0
<RECEIVABLES> 44,578
<ALLOWANCES> 323
<INVENTORY> 45,072
<CURRENT-ASSETS> 92,482
<PP&E> 106,310
<DEPRECIATION> 40,216
<TOTAL-ASSETS> 165,646
<CURRENT-LIABILITIES> 60,392
<BONDS> 0
28,352
5
<COMMON> 5
<OTHER-SE> (126,717)
<TOTAL-LIABILITY-AND-EQUITY> 165,646
<SALES> 317,896
<TOTAL-REVENUES> 317,896
<CGS> 300,310
<TOTAL-COSTS> 300,310
<OTHER-EXPENSES> 16,900
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 14,669
<INCOME-PRETAX> (13,983)
<INCOME-TAX> (3,497)
<INCOME-CONTINUING> (10,486)
<DISCONTINUED> 0
<EXTRAORDINARY> (617)
<CHANGES> 0
<NET-INCOME> (11,103)
<EPS-BASIC> (2.75)
<EPS-DILUTED> (2.75)
</TABLE>
