Malaysia legislation
Section 23
Section 23
(a)
at the end of a period not exceeding three months ending on a day, such day being the later of the date of the relevant prospectus, if applicable, or the date on which the debenture is issued pursuant to the trust deed, which the trustee for the holders of debentures of the borrowing company is required to notify to the borrowing company in writing; and
(b)
at the end of each succeeding period thereafter, being a period of three months or such shorter time as the trustee may, in any special circumstances, allow, prepare a report that relates to that period and complies with the requirements of subsection (2) and, within thirty days after the end of each such period, lodge a copy of the report relating to that period with the Authority and with the trustee.
(2)
The report referred to in subsection (1) shall be signed by not less than two of the directors on behalf of all of them and shall set out in detail any matter adversely affecting the security or the interests of the holders of the debentures and, without affecting the generality of the foregoing, shall state—
(a)
whether or not the limitations on the amount that the borrowing company may borrow have been exceeded;
(b)
whether or not the borrowing company and each of its guarantor companies have observed and performed all the provisions and covenants binding upon them respectively by or pursuant to the debentures or any trust deed;
(c)
whether or not any event has happened which has caused or could cause the debentures or any provisions of the relevant trust deed to become enforceable and, if so, particulars of that event;
(d)
whether or not any circumstances affecting the borrowing company, its subsidiaries or its guarantor companies or any of them have occurred which materially affect any security or charge created by the debentures or any trust deed and, if so, particulars of those circumstances;
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(e)
whether or not there has been any substantial change in the nature of the business of the borrowing company or any of its subsidiaries or any of its guarantor companies since the debentures were first issued under subsection 8(1) which has not previously been reported upon as required by this section and, if so, particulars of that change; and
(f)
where the borrowing company has deposited money with, or lent money to, or assumed any liability of, a corporation which pursuant to section 4 of the Labuan
Companies 1990 is deemed to be related to the borrowing company, particulars of—
(i)
the total amount so deposited or lent and the extent of any liabilities so assumed during the period covered by the report; and
(ii)
the total amount owing to the borrowing company in respect of money so deposited or lent and the extent of any liabilities so assumed as at the end of the period covered by the report, distinguishing between deposits, loans and assumptions of liability which are secured and those which are unsecured, but not including any deposit with or loan to or any liability assumed on behalf of a corporation if that corporation has guaranteed the re payment of the debentures of the borrowing company and has secured the guarantee by a charge over its assets in favour of the trustee for the holders of the debentures of the borrowing company.
(3)
Where there is a trustee for the holders of any debentures issued by a borrowing company, the borrowing company and each guarantor company which has guaranteed the repayment of the monies raised by the issue of those debentures shall, within twenty-one days after the creation of the charge, furnish the trustee on behalf of the holders of the debentures, whether or not any demand therefor by it has been made, with particulars in writing of any charge created by the corporation or the guarantor company, as the case may require, and when the amount to be
Act 704
advanced upon the security of the charge is indeterminate within seven days after the advance with particulars of the amount or amounts in fact advanced, but where any such advances are merged in a current account with bankers or trade creditors, it shall be sufficient for particulars of the net amount outstanding in respect of any such advances to be furnished every three months.
(4)
The directors of every borrowing company which has issued debentures under subsection 8(1), not including those excluded under subsection 8(5), and of every guarantor company which has guaranteed the repayment of the monies raised by the issue of such debentures shall, at some date not later than nine months after the expiration of each financial year of the borrowing company or the guarantor company, cause to be made out and lodged with the Authority and with the trustee a profit and loss account together with a detailed statement of outstanding liability under such debentures for the period from the end of that financial year until the expiration of six months after the end of that financial year and a balance sheet as at the end of the period to which the profit and loss account relates.
(5)
Where any guarantor company, being a company which is incorporated in any state or territory nominated for the purposes of this section by the Minister, has lodged with the appropriate authority in any such nominated state or territory a profit and loss account and balance sheet for the relevant period, that shall be sufficient compliance with the requirements of subsection (4) if, with the consent of the trustee, there is lodged with the Authority and the trustee certified copies of the profit and loss account and balance sheet so lodged.
(6)
Where the directors of a borrowing company do not lodge with the trustee a report as required under subsection (1), or where the directors of a borrowing company or of its guarantor companies do not lodge with the Authority and the trustee the profit and loss account, detailed statement and balance sheet as required under subsection (4) within the time specified, the trustee shall, as soon as possible, lodge notice of that fact with the Authority.
(7)
Any person who contravenes subsection (1) or (4) commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit.
(8)
This section shall not apply to an offer or invitation of securities under subsection 8(5).
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Obligation of guarantor company to furnish information