MALAYSIAN RESOURCES CORPORATION BERHAD ( MRCB OR THE COMPANY )

Transcription

1 MALAYSIAN RESOURCES CORPORATION BERHAD ( MRCB OR THE COMPANY ) MANAGEMENT CONTRACT BETWEEN KWASA UTAMA SDN BHD ( KUSB ) AND MRCB FOR THE APPOINTMENT OF MRCB AS THE MANAGEMENT CONTRACTOR IN CONNECTION WITH THE DEVELOPMENT AND CONSTRUCTION OF A COMMERCIAL DEVELOPMENT NAMED KWASA UTAMA ON A PIECE OF LAND OWNED BY KUSB MEASURING ACRES KNOWN AS PLOT C8 (PART OF LOT 85112) KWASA DAMANSARA, MUKIM SUNGAI BULOH, DAERAH PETALING, SEKSYEN U4, SHAH ALAM, SELANGOR DARUL EHSAN FOR A PROVISIONAL TOTAL CONTRACT SUM OF RM3,145,493,294 ( PROPOSED CONSTRUCTION ) We refer to the announcements dated 28 October 2015 and 21 December 2015 as well as the Circular to Shareholders dated 4 December 2015 ( Circular ) in relation to the Proposed Construction. Unless otherwise stated, the terms used herein shall have the same meaning as defined in the said announcements and Circular in relation to the Proposed Construction. On behalf of the Board, RHB Investment Bank wishes to announce that:- MRCB had on 9 December 2016 entered into a supplemental agreement to the Management Contract ( Supplemental Agreement ) with KUSB to amend certain terms and conditions of the Management Contract; and MRCB had on 9 December 2016 entered into a novation agreement ( Novation Agreement ) with MRCB Land Sdn Bhd, a wholly-owned subsidiary of MRCB ( MRCB Land ), and KUSB for MRCB to transfer and novate to MRCB Land all its rights, liabilities, benefits, interests, duties and obligations of the Management Contract. For information purposes, the provisions under the Management Contract allow MRCB to novate the Management Contract to any of its wholly-owned subsidiaries without the prior written consent of KUSB. The salient terms of the Supplemental Agreement and Novation Agreement are set out in the ensuing sections. SALIENT TERMS OF THE SUPPLEMENTAL AGREEMENT The salient terms of the Supplemental Agreement include, amongst others, the following:- 1. LIMITED NOTICE TO PROCEED FOR EARLY WORKS 1.1 Notwithstanding the provisions of the Management Contract and the standard terms for the EPCC Services applicable to all Plots ( EPCC Standard Terms ), and notwithstanding that NTP1 and/ or NTP2 may have yet to be issued for a particular Plot, the Parties agree that the Employer shall within 30 days of fulfillment of all of the following conditions:- MRCB s submission to KUSB for their review, a written proposal to carry out certain specifically agreed early works that can legally proceed prior to obtaining of building plan approvals or other approvals for the Works (to mitigate delays while awaiting receipt of such approvals) which may include but not limited to earthworks, clearing of site and/ or hoarding subject to the relevant authorities approval ( Early Works ) for that Plot ( Early Works Proposal ), which shall include:- the relevant specifications, bills of quantities, plans and drawings, where applicable, for the Early Works ( Early Works Plans and Specifications ); the proposed time for commencement and completion of the Early Works, subject to changes upon obtaining the relevant authority and statutory approvals and/ or KUSB s board of directors approval for the Early Works, where applicable; 1

2 (iii) (iv) (v) the proposed costs and expenses payable for the Early Works ( Early Works Price ), which shall consist of part of the TCC and Professional Fees, plus GST; EPCC Services fees of 5% payable on the proposed Early Works Price, plus GST; and the list of authority and statutory approvals required for the Early Works, where applicable, and an indication as to which of such approvals have been obtained or otherwise the estimated time required to obtain such approvals. KUSB s board of directors approval of the Early Works Proposal, or any modification thereof as agreed between the Parties. issue a Limited Notice to Proceed ( LNTP ) in the form set out in the Supplemental Agreement instructing MRCB to proceed with Early Works for that Plot. 1.2 For the avoidance of doubt:- separate LNTP for Early Works shall be issued for each individual Plot, where required, in accordance with Clause 1 of the Supplemental Agreement; notwithstanding an LNTP issued for Early Works for a Plot, the EPCC Contract for the EPCC Services for that Plot shall not be regarded as having been entered into between the Parties unless and until an NTP1 for that Plot has been issued; and unless and until an LNTP for Early Works has been issued for a Plot in accordance with Clause 1 of the Supplemental Agreement, the provisions of Clauses 2 and 3 of the Supplemental Agreement shall not apply to that Plot. 2. EXECUTION OF EARLY WORKS 2.1 The Early Works pursuant to an LNTP for a Plot shall:- (d) constitute part of the EPCC Services carried out in advance of an NTP1 and/ or NTP2, as the case may be; be excluded from the requirements of an NTP1 and/ or NTP2, as the case may be, although such Early Works and payments towards the Early Works Price and EPCC Services fees thereon shall be taken into account and reflected in any subsequent NTP1 and/ or NTP2 issued for that Plot; be carried out in accordance with the terms provided in the LNTP and the Early Works Plans and Specifications; and be subject to similar terms and conditions set out in the General Conditions ( General Conditions ) and Particular Conditions ( Particular Conditions ) of the EPCC Standard Terms (collectively, EPCC Conditions ), to be applied mutatis mutandis where relevant as the case may be only insofar as they are applicable to the Early Works portion of the Works, and unless otherwise provided in the Supplemental Agreement, the LNTP or the Early Works Plans and Specifications. For the purposes of this Section 2.1(d) in relation to the Early Works to be carried out pursuant to an LNTP for a Plot and no other, the following provisions in the EPCC Conditions, and the other provisions in relation thereto, shall not apply:- (iii) Sub-Clause 4.2 [Performance Security] of the General Conditions; Sub-Clause 8.7 [Delay Damages] of the General Conditions; and Clause 18 [Insurance] of the General Conditions. 2

3 2.2 In the event KUSB decides not to issue or is unable to issue an NTP1 or NTP2 for a particular Plot for which Early Works have been carried out pursuant to an LNTP but prior to issuance of the taking-over certificate for the Early Works, due to a KUSB Force Majeure or due to termination of the Management Contract:- MRCB shall take the measures as set out in sub-paragraphs to of Sub-Clause 16.3 [Cessation of Work and Removal of Contractor s Equipment] of the General Conditions, which shall apply mutatis mutandis where relevant as the case may be only insofar as they are applicable to the Early Works portion of the Works; and KUSB shall pay to MRCB the amounts as set out in sub-paragraphs to (e) of Sub- Clause 19.6 [Optional Termination, Payment and Release] of the General Conditions, which shall apply mutatis mutandis where relevant as the case may be only insofar as they are applicable to the Early Works portion of the Works, without prejudice to MRCB s other rights and entitlement under the Management Contract and its appendices. However, in the event the termination of the Management Contract is due to MRCB s breach, then sub-paragraph above shall not apply. 2.3 Notwithstanding anything to the contrary in the Management Contract and the EPCC Standard Terms, any Early Works carried out pursuant to an LNTP for a Plot shall be taken into account and reflected in any subsequent NTP1 and/ or NTP2 issued for that Plot. In this regard, where an LNTP for Early Works have been issued for a Plot, the term Contract as defined in the EPCC Conditions for that Plot shall include the said LNTP, including any annexures thereto. 3. PAYMENT OF EARLY WORKS PRICE AND EPCC SERVICES FEES 3.1 Notwithstanding that the EPCC Contract for a Plot shall only be entered into upon issuance of an NTP1 for that Plot, MRCB shall be paid the Early Works Price and EPCC Services fees thereon for Early Works carried out pursuant to an LNTP for that Plot subject to similar terms and conditions set out in Clause 14 [Contract Price and Payment] of the General Conditions read together with the other provisions of the Particular Conditions, to be applied mutatis mutandis where relevant as the case may be, unless otherwise provided in the Supplemental Agreement or the LNTP, and subject further to the following:- the first period of payment for the Early Works Price and EPCC Services fees shall be as stated in the LNTP and thereafter shall be monthly. the accumulated retention moneys which the Employer retains under Sub-Clause 14.3 [Application for Interim Payments] of the General Conditions and pays under Sub-Clause 14.9 [Payment of Retention Money] of the General Conditions ( Retention Money ), if any, on the Early Works Price and EPCC Services fees thereon shall be paid together with the Retention Money for the other Works to which the Early Works relate in accordance with Sub-Clause 14.9 [Payment of Retention Money] of the General Conditions. Clause 16.0 [Direct Payment to Consultants] of the Particular Conditions shall be deleted in its entirety. 3.2 The Contract Price to be confirmed in NTP2 for a Plot shall include the Early Works Price for that Plot, if applicable. 3.3 Notwithstanding anything to the contrary in the Management Contract and the EPCC Standard Terms, any payments made by KUSB towards the Early Works Price and EPCC Services fees thereon for a Plot in accordance with Section 3.1 above shall be taken into account and reflected in:- 3

4 any subsequent NTP1 and/ or NTP2 issued, including the amount of the Provisional Contract Price and/ or Contract Price respectively, for that Plot; and any statement by MRCB under Sub-Clause 14.3 [Application for Interim Payments] of the General Conditions for that Plot. 3.4 For the avoidance of doubt, in the event for whatever reason KUSB decides not to issue or is unable to issue an NTP1 or NTP2 for a particular Plot for which an LNTP have been issued, MRCB shall nevertheless be entitled to be paid the Early Works Price and EPCC Services fees thereon in accordance with Section 3.1 above, without prejudice to MRCB s other rights and entitlement under the Management Contract and its appendices. 4. DIRECT PAYMENT TO CONSULTANTS The Parties agree to delete Clause 16.0 [Direct Payment to Consultants] of the Particular Conditions in its entirety. Consequently, the Professional Fees portion of the Contract Price shall be paid by KUSB to MRCB in accordance with Clause 14 [Contract Price and Payment] of the General Conditions read together with the other provisions in the Particular Conditions. In addition, with regards to Clause 14 [Contract Price and Payment] of the General Conditions, MRCB agrees to indemnify KUSB in the event of non-payment and/ or late payment (unless otherwise agreed by both Parties) by MRCB to the respective parties. 5. ADDITIONAL PROVISION FOR WORKS NOT FULLY DEFINED IN NTP2 5.1 Notwithstanding anything to the contrary in the Management Contract and the EPCC Standard Terms, the Parties acknowledge that at the proposed time for issuance of NTP2 for a particular Plot, the Parties may have yet to confirm the detailed design, specifications, bill of quantities and/ or value for the sub-structure and superstructure works ( Substructure/ Superstructure Works ) and/ or interior design works ( ID Works ), which constitute part of the EPCC Services for that Plot. 5.2 In the event mentioned in Section 5.1 above, Parties agree that the NTP2 for that Plot may be issued upon agreement of both Parties, subject to the following:- the estimated value of the Substructure/ Superstructure Works and/ or ID Works, as the case may be, which shall consist of part of the TCC and Professional Fees, and EPCC Services fees of 5% thereon shall be reflected as an estimated sum in the NTP2 and the same shall be included as part of the Contract Price and the provisional EPCC Services fees respectively for that Plot. after issuance of the NTP2 and within a reasonable time to be mutually agreed, the Parties shall confirm and agree on:- the detailed design, specifications and/ or bill of quantities, where applicable, for the Substructure/ Superstructure Works and/ or ID Works, as the case may be, after which the same shall form part of the Contract for that Plot; the commencement date and time for completion of the Substructure/ Superstructure Works and/ or ID Works, as the case may be, unless the same is otherwise expressly provided for in NTP2. Provided always that, unless the Parties otherwise agree, KUSB shall give MRCB not less than 30 days notice of the commencement date for the Substructure/ Superstructure Works and/ or ID Works, as the case may be, failing which the provisions of Sub-Clause 8.1 [Commencement of Work] of the General Conditions shall apply mutatis mutandis; and 4

5 (iii) the value of the Substructure/ Superstructure Works and/ or ID Works, as the case may be, after which the Contract Price for that Plot shall be adjusted (increased or reduced) accordingly for all purposes of the EPCC Contract for that Plot, including but not limited to any adjustment of the amount of Performance Security and delay damages, and the EPCC Services fees of 5% thereon shall be fixed. For the avoidance of doubt, unless the Parties otherwise agree, the Substructure/ Superstructure Works and/ or ID Works, as the case may be, shall each constitute a Section for the purposes of the EPCC Contract for that Plot. In the event the Parties are unable to confirm and agree on the matters in subparagraph above within a reasonable time to be mutually agreed, then:- the Substructure/ Superstructure Works and/ or ID Works, as the case may be, shall be deemed omitted from the NTP2 for that Plot and the Contract Price stated in the NTP2 shall be reduced accordingly for all purposes for that Plot, including but not limited to any adjustment of the amount of Performance Security and delay damages; and KUSB shall thereafter issue separate notice(s) to proceed to MRCB specifically for the Substructure/ Superstructure Works and/ or ID Works, as the case may be. Such notice(s) to proceed shall be subject to similar provisions as applicable to NTP2 (including provisions as to the form, procedure and conditions for issuance of NTP2), which shall apply mutatis mutandis where relevant as the case may be insofar as they are applicable to the Substructure/ Superstructure Works and/ or ID Works, as the case may be. For the avoidance of doubt, the Substructure/ Superstructure Works and/ or ID Works, as the case may be, shall in such event be carried out under separate contract packages for that particular Plot and the same shall be subject to similar terms and conditions set out in the EPCC Conditions, to be applied mutatis mutandis where relevant as the case may be only insofar as they are applicable to the Substructure/ Superstructure Works and/ or ID Works, as the case may be. (d) (e) For the avoidance of doubt, should any Substructure/ Superstructure Works and/ or ID Works, as the case may be, as required to be carried out pursuant to subparagraphs or above require or involve any change, alteration, modification or removal of any other Works previously agreed between the Parties ( Pre-agreed Works ), whether or not such Pre-agreed Works have been carried out or completed, the same shall constitute a variation to such Pre-Agreed Works within the meaning of the EPCC Conditions (whether or not a separate instruction is issued by KUSB for such variation) and MRCB shall be entitled to an extension of time for any delay caused to the Works and additional costs incurred as provided in the EPCC Conditions. The aforesaid matters and any further details relating thereto as agreed between the Parties shall be provided for in the NTP2 for that Plot. The rest of this page has been intentionally left blank 5

6 SALIENT TERMS OF THE NOVATION AGREEMENT The salient terms of the Novation Agreement include, amongst others, the following:- 1. NOVATION 1.1 The Parties agree that with effect from 9 December 2016 ( Effective Date ), all of the rights, interests, benefits, obligations, duties and liabilities of MRCB in connection with the Management Contract shall be transferred and conveyed absolutely to, arise in favour of, bind and may be relied and acted upon by MRCB Land to the same extent as if MRCB Land had been originally a Party to, was originally the beneficiary or otherwise had the benefit of (whether expressly or impliedly) and/ or was the addressee or recipient of, all benefits and rights under the Management Contract and MRCB Land shall be responsible for securing all obligations of MRCB s which are or may be outstanding under the Management Contract as on the Effective Date. 1.2 MRCB shall be fully discharged and released from all of its obligations and liabilities in connection with the Management Contract so transferred by it to MRCB Land from the Effective Date. 1.3 With effect from the Effective Date, KUSB releases and discharges MRCB from all future claims and demands whatsoever under the Management Contract and confirms its acceptance of MRCB Land as the Management Contractor named in the Management Contract. 2. PASSING OF INTEREST MRCB expressly agrees and confirms that as at and from the Effective Date, MRCB shall have no right, interest or anything whatsoever in and to the Management Contract and shall make no claim whatsoever in respect thereof and MRCB together with KUSB expressly acknowledge that as from the Effective Date, MRCB Land is entitled to the legal and equitable right, interest and benefit in and to the Management Contract. 3. MUTUAL COVENANTS 3.1 MRCB Land agrees with KUSB, and KUSB agrees and accepts that on and from the Effective Date, MRCB Land shall be bound by the Management Contract and shall perform the obligations expressed to be novated to and/ or assumed by it under the Novation Agreement. 3.2 MRCB agrees and covenants with MRCB Land that MRCB will indemnify and keep MRCB Land fully indemnified at all times from and against any loss, damage, claim, suit, proceeding, costs and expenses incurred/ sustained or to be incurred/ sustained by MRCB Land in connection with or arising out of:- MRCB Land entering into the Novation Agreement; and any failure on the part of MRCB to perform and/ or observe its obligations under the Management Contract prior to the Effective Date. The Supplemental Agreement and Novation Agreement will be made available for inspection at the registered office of the Company at Level 33A, Menara NU 2, No. 203, Jalan Tun Sambanthan, Kuala Lumpur Sentral, 50470, Kuala Lumpur, Malaysia during normal business hours (except public holidays) for a period of three (3) months from the date of this Announcement. This Announcement is dated 9 December