CIMB BANK BERHAD (13491-P)

Transcription

1 Dated [ ] Between CIMB BANK BERHAD (13491-P) and [Name Of Party] FACILITY AGREEMENT CIMB Revised Date: 23rd January 2019_v1.3

2 FACILITY AGREEMENT Date : PARTIES 1. The Bank : CIMB Bank Berhad (13491-P) of Level 13, Menara CIMB, Jalan Stesen Sentral 2, Kuala Lumpur Sentral, Kuala Lumpur. 2. The Borrower : The Party(ies) whose name(s) and description(s) is/are as stated in Section 1 of Schedule 1. WHEREAS The Bank has pursuant to the Letter Of Offer (defined in Clause 1.1 below) agreed to make or continue to make available to the Borrower the Facility upon the terms and conditions hereinafter contained. IT IS HEREBY AGREED AS FOLLOWS: - 1 INTERPRETATIONS 1.1 In this Agreement the following words have the following meaning:- AMLA Advance(s) Availability Period Base Rate (BR) Charge Deed of Assignment Default Rate The Anti Money Laundering, Anti Terrorism Financing and Proceeds of Unlawful Activities Act 2001 including any related ancillary or subsidiary legislation made thereunder; The principal sums of money disbursed to the Borrower or to such other party(ies) from time to time following drawings made on the Facility; The period within which full disbursement of the Facility is to be made as stated in the Letter Of Offer or any extended period as may be agreed by the Bank by written notice; The rate of interest prescribed by the Bank from time to time as an indicator rate against which the rates of interest for facilities (including the Facility) or any Advance(s) are computed and include such indicator rate by whatever name called by the Bank; The Charge under the National Land Code 1965 or Sabah Land Ordinance (Cap 68) or the Sarawak Land Code (Cap. 81) as originally enacted and as may be amended from time to time including related ancillary or subsidiary legislation made thereunder which shall be in form and content acceptable to the Bank; The assignment to be executed by the Borrower or the Security Party assigning all rights, title interests and/or benefits in and under the Property and of the Sale and Purchase Agreement to the Bank which Deed of Assignment shall be in form and content acceptable to the Bank; The default interest rate as stated in the Letter Of Offer or such other default rate of interest as the Bank may stipulate from time to time; 1

3 FSA Facility Facility Account Indebtedness The Financial Services Act, 2013 as originally enacted and as may be amended from time to time including any related ancillary or subsidiary legislation made thereunder; The facility granted or made available or agreed to be granted or made available and/or to be continued to be made available by the Bank to the Borrower now or hereafter or from time to time under the Letter Of Offer and this Agreement and includes any part thereof inclusive of interest accrued and accruing thereon. In the case where only the OD or the Term Loan is granted to the Borrower, the expression Facility shall refer to either the OD or the Term Loan, as the case may be; The Borrower s account(s) maintained with the Bank which shall include the OD Account to reflect the Indebtedness due and owing to the Bank by the Borrower under this Agreement; The aggregate of the following in respect of or arising from the Facility, the Advance(s) and the Security Documents:- all monies whatsoever (including but not limited to principal, interest (including default interest), commission, charges, fees, costs and expenses), whether present, future, actual or contingent, outstanding or payable or agreed to be paid by the Borrower or any other Security Party to the Bank from time to time; and/or all liabilities and obligations whether present, future, actual or contingent: (i) (ii) for the repayment or payment of any monies by the Borrower or any other Security Party from time to time to the Bank; and/or which the Bank may from time to time incur (including but not limited to disbursements and/or legal fees on a full indemnity basis and any liability or obligation arising from or incurred under any guarantee, indemnity, undertaking or other agreement or instrument created pursuant to this Agreement); Laws and Guidelines Letter Of Offer Monthly Instalment any prevailing laws including but not limited to the FSA and/or regulatory requirements or terms and conditions or provisions prescribed by or stipulated in the directives or guidelines that are or may from time to time be issued by Bank Negara Malaysia and/or any other person or body having authority or jurisdiction over the Bank; The letter of offer as attached in Schedule 2 and any subsequent letter(s) of offer issued by the Bank to the Borrower relating to the Facility and this Agreement and accepted by the Borrower including any variation, amendment, extension or supplemental thereto from time to time; The amount as stated in the Letter Of Offer to be the monthly instalment payable in respect of the Facility or such other amount as the Bank may stipulate in writing from time to time in accordance with the terms hereof; 2

4 OD OD Account OFAC Prevailing Interest Rate Property Repayment Date Restricted Party Sale and Purchase Agreement Sanctions Sanctions Authorities Sanctions List Security Documents Any part or portion of the Facility made available by the Bank to the Borrower for the Borrower to utilise in the form of an overdraft facility; The account maintained by the Borrower with the Bank to reflect the Indebtedness due and owing to the Bank under the OD and/or the current account opened and maintained by the Borrower with the Bank for utilisation of the OD; The Office of Foreign Assets Control of the Department of Treasury, US; The prevailing interest rate as stated in the Letter Of Offer or such other interest rate as the Bank may stipulate from time to time; The property to be provided as security for repayment of the Indebtedness which is described in Section 2 of Schedule 1, the particulars of which are subject to the Bank s right of amendment or correction; The first (1 st ) day of the month or such other date(s) as the Bank may in its discretion stipulate from time to time, as notified by the Bank to the Borrower; A person that is: (i) listed on or owned or controlled by a person listed on or acting on behalf of a person listed on, any Sanctions List; (ii) located in, incorporated under the laws of, or owned or (directly or indirectly) controlled by, or acting on behalf of, a person located in or organized under the laws of a country or territory that is the target of country-wide or territory-wide Sanctions; or (iii) otherwise a target of Sanctions ( target of Sanctions signifying a person with whom a US person or other national of a Sanctions Authorities would be prohibited or restricted by law from engaging in trade, business or other activities); The sale and purchase agreement and/or the construction agreement or any other form of acquisition agreement including without limitation a proclamation of sale relating to the purchase and acquisition of all rights title and interest in and to the Property; The economic sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by any Sanctions Authorities; (i) the US Government; (ii) the United Nations; (iii) the European Union (iv) the United Kingdom; or (v) the respective governmental institutions and agencies of any of the foregoing, including without limitation OFAC, the United States Department of State and Her Majesty s Treasury; The Specially Designated Nationals and Blocked Persons list maintained by OFAC, the Consolidated List of Financial Sanctions Targets and the Investment Ban List maintained by Her Majesty's Treasury, or any similar list maintained by, or public announcement of Sanctions designation made by, any of the Sanctions Authorities; The security documents as stated in the Letter Of Offer and any other documents for the time being constituting security for the Indebtedness all of which shall be in form and content acceptable to the Bank; 3

5 Security Interest Security Party Tenure Term Loan Such security as stated in the Letter Of Offer which is or are to be provided by the Borrower and/or the Security Party as security for repayment of the Indebtedness including such additional or other security as may be provided by the Borrower and/or the Security Party in favour of the Bank from time to time, whether comprising a mortgage, charge, pledge, lien, assignment, transfer, agreement, trust, hypothecation, documents of title of immovable properties, debentures, shares, stocks, investments, and other present or future indebtedness owing by the Borrower to the Bank and/or any other security interest of any kind securing any obligation of any person or any other agreement or arrangement having a similar effect; The party(ies) as stated in Section 3 of Schedule 1 and any other person providing any security (including but not limited to any guarantee or indemnity) for the payment of the Indebtedness and any party (other than the Bank) to the Security Documents; The period as stated in the Letter Of Offer and includes such other period as the Bank may stipulate in writing from time to time; Any part or portion of the Facility made available by the Bank to the Borrower for the Borrower to utilise in the form of a term loan. 1.2 Reference to the masculine gender includes the feminine and neuter genders and vice versa and references to the singular number include the plural and vice versa. 1.3 There two or more persons or parties are included or comprised in any expressions contained in agreements, covenants, terms, stipulations and undertakings expressed to be made to such persons or parties the same shall be enforceable by or against them jointly and severally and where agreements, covenants, terms, stipulations and undertakings are expressed to be made by or on the part of such persons or parties, the same shall be deemed to be made by and binding upon such person or parties jointly and severally. 1.4 Words applicable to natural persons shall include any body of persons, company, corporation, firm or partnership, corporate or incorporated, joint venture, individual or any state or any agency of a state whether or not a separate legal entity and vice versa, i.e the main items in the preceding statement shall apply the other way round. 1.5 Section headings are inserted for convenience only and shall not in any way affect the interpretation thereof. 1.6 References to a document include the same as from time to time varied and any document from time to time issued or executed supplemental, in addition or in substitution to or for it. 1.7 References to the Facility include the same as may from time to time be constituted or varied. 1.8 References to any statute, law, enactment, guidelines, rule or regulation include the statute, law, enactment, guidelines, rule or regulation as re-enacted, amended or extended from time to time. 1.9 Any right, entitlement, discretion, liberty or power which may be exercised or any determination which may be made under this Agreement by the Bank may be exercised or made in the Bank's sole, absolute and unfettered discretion and the Bank shall not be obliged, whether at law or in equity, to give any reasons therefore References to any Schedule, Clauses and sub-clauses are references to the Schedules, Clauses and sub-clauses of this Agreement All Schedules to this Agreement shall be taken, read and construed as essential part of this Agreement. 4

6 1.12 Words denoting an obligation on a person or party to do any act matter or thing include an obligation to procure that it be done and words placing a person or party under a restriction include an obligation not to permit infringement of that restriction References to "law" include by laws, common or customary law and any constitution, decree, judgment, legislation, order, ordinance, regulation, statute, treaty or other legislative measure in any jurisdiction or any present or future directive, regulation, request or requirement (in each case, whether or not having the force of law but, if not having the force law, the compliance with which is in accordance with the general practice of persons to whom the directive, regulation, request or requirement is addressed). 2 AMOUNT, PURPOSE AND TENURE 2.1 Amount The Bank s obligation under this Agreement shall not exceed the Facility amount as stated in the Letter Of Offer. If so stated in the Letter Of Offer, the Bank may reduce the limit of the OD in the manner as stated in the Letter Of Offer. 2.2 Purpose 2.3 Tenure The Borrower shall utilise the Facility solely for the purpose as stated in the Letter Of Offer. The Bank is not bound to ensure that the Borrower uses the Facility for the purpose so stated. The Tenure of the Facility is as stated in the Letter Of Offer. Notwithstanding the Tenure stated in the Letter Of Offer and any other provision in this Agreement to the contrary or that no event of default or potential event of default stated herein has occurred or is continuing, the Borrower hereby covenants and agrees with the Bank that the Bank shall have an unqualified and absolute right to suspend, cancel, recall or terminate the Facility at any time. 3 CONDITIONS PRECEDENT AND DISBURSEMENT 3.1 Conditions Precedent To Disbursement (c) The Borrower shall comply with the conditions precedent to disbursement set out in Schedule 3 within one hundred and eighty (180) days from the date of the Letter Of Offer or any date extended by the Bank by written notice, failing which the Bank reserves the right to withdraw or cancel the Facility. Disbursement or utilisation of the Facility will be made only after all conditions precedent to disbursement have been fulfilled within the period stipulated above. Where the Facility comprises OD and Term Loan, the Bank will allow utilisation of the OD only after the Term Loan has been fully disbursed. 3.2 Waiver and Acquiescence The Bank may at its sole and absolute discretion waive or agree to an extension of time for the fulfillment of any condition precedent without prejudicing the Bank's right of recovery of the Facility. Failure or delay on the part of the Bank in exercising or any omission to exercise any right power, privilege or remedy accruing 5

7 to the Bank under this Agreement upon any default on the part of the Borrower shall not impair any such right, power, privilege or remedy or be construed as a waiver or any acquiescence in such default, nor shall any action by the Bank in respect of any default or any acquiescence in any such default, affect or impair any right, power, privilege or remedy of the Bank in respect of any other or subsequent default. 3.3 Disbursement and Use (c) (d) (e) (f) The Borrower authorises the Bank to pay any amount in such manner and upon such terms and conditions as the Bank deems fit, to any financial institution, firm of solicitors, developer, vendor, court, builder, contractor, architect or such other person responsible for or concerned with the sale of the Property or the construction of the Property, at such times, in such manner, in such amounts, and upon such contingencies and conditions as the Bank may in its absolute discretion decide, and/or by progressive releases or otherwise in accordance with the schedule of payments or such variation as the Bank may deem fit. An acknowledgement from the recipient shall be deemed as if the same had been made or given by the Borrower personally. The Borrower acknowledges and agrees that the Bank is unable to defer or stop disbursement of any amounts under the Facility if the Bank has already given an undertaking to disburse the Facility. The Borrower authorises the Bank to withhold the disbursement of the Facility if the developer, vendor, builder or contractor fails to honour its obligation under any relevant contract and/or undertaking or if in the Bank s opinion the developer, vendor, builder or contractor or the Security Party is/are in breach of the Sale and Purchase Agreement in relation to the Security Interest. The Bank is not obliged either in law or in equity to make or continue to make any disbursement if an event of default or potential event of default had occurred or is about to occur and if capable of being remedied is not remedied within seven (7) days after written notice by the Bank to the Borrower and/or Security Party. In consideration of the Bank agreeing to provide undertaking(s) including to any financial institution or developer or vendor or any of their respective solicitors, the Borrower hereby undertakes to indemnify the Bank for all costs, expenses, claims and demand made on the Bank in connection with or howsoever arising from issuance of such undertaking(s). The Borrower undertakes that it shall not and it shall ensure that the Security Party shall not permit or authorise any other person to directly or indirectly use, lend, make payments of, contribute or otherwise make available all or any part of the proceeds of the Facility and/or Advance(s) granted to the Borrower under this Agreement to fund any trade, business or other activities: involving or for the benefit of any Restricted Party, or in any other manner that would reasonably be expected to result in the Borrower or the Security Party being in breach of any Sanctions (if to the extent applicable to either of them) or becoming a Restricted Party. 3.4 Drawdown Expiry Date No disbursement shall be made after the expiry of the Availability Period, unless otherwise agreed by the Bank. 4 INTEREST 4.1 Prevailing Interest Rate on Partial Disbursement of Facility Upon the first disbursement of the Facility, interest is charged at the Prevailing Interest Rate on a daily debit balance basis in relation to the daily outstanding balance of the Facility Account/ OD Account and shall be debited to the Facility Account/ OD Account on the last day of each calendar month. 6

8 The Borrower shall pay the interest at the Prevailing Interest Rate following the first disbursement of the Facility on the first day of the next calendar month (unless otherwise notified by the Bank to the Borrower), failing which: (i) (ii) (iii) the amount of overdue interest shall attract default interest at the Default Interest Rate; the overdue interest as referred to in Clause 4.1 (i) above, shall form part of the balance outstanding under the Facility Account and shall be chargeable with interest at the Prevailing Interest Rate; the Bank reserves the right to reject any request for further disbursement without being liable for any consequential loss. 4.2 Prevailing Interest Rate on Full Disbursement of Facility Interest shall be charged to the Facility Account/ OD Account on daily balance basis at the Prevailing Interest Rate and debited to the Facility Account/ OD Account on the last day of each calendar month and on the day when the full Indebtedness for the Facility is finally paid. The calculation and posting of interest shall occur at midnight irrespective of whether the interest computation date or the last day of the calendar month falls on a weekend or a public or a banking holiday. 4.3 Recalculation Upon Variation of Interest Rate Where the rate of interest for the Facility is varied from a certain date other than the month end, then interest shall be charged as follows: - The interest rate prior to the variation shall continue to apply until the date of the variation; and For the remainder of that month, the varied interest rate shall be calculated again on the sum standing to the debit of the Facility Account/ OD Account on the next month end and posted monthly to the Facility Account/ OD Account in the same manner as hereinbefore provided. 4.4 Interest for Part of The Month Where interest needs to be calculated on a number of days, which is less than one month, then interest, shall be calculated on the actual number of days found in that particular month. 4.5 Capitalisation of Interest The interest on the Facility including capitalised interest shall at the end of each calendar month be capitalised and added to the principal sum then owing and shall thereafter bear interest at the Prevailing Interest Rate notwithstanding that the relationship of financier- borrower has ceased. Notwithstanding any capitalisation of interest, the Borrower shall service the interest monthly. This total sum shall be secured and payable accordingly, whether before or after court judgment or demand for payment has been made on the Borrower. For the purpose of ascertaining whether the limit of the principal Facility has been exceeded or not, all accumulated and capitalised interest are deemed to be interest and not principal sum. 4.6 Default Rate Default interest at the Default Rate shall be chargeable under the circumstances as stated in the Letter Of Offer, before as well as after judgment, and such default interest shall be payable by the Borrower as of right within the meaning of Section 11 of the Civil Law Act 1956, and shall constitute the rate otherwise agreed within the meaning of Section 16 (i) of the Courts of Judicature Act

9 The default interest shall be in addition and without prejudice to the power, rights and remedies available to the Bank and is to be charged from the date it become due to the date of actual payment (both before and after court judgment). Notwithstanding the above, the Bank reserves the right to vary the default interest in accordance with the terms of this Agreement. A computer generated statement as to the rate and/or amount of default interest payable shall, save for manifest error, be conclusive evidence of the rate and/or amount of default interest payable by the Borrower. 4.7 Variation of Interest Rate and Other Charges The Bank shall be entitled to vary the Prevailing Interest Rate and/or other bank charges in the following manner:- (i) Variation of BR By displaying at the premises of the Bank, a general notice or in the Bank s website and such notice shall be deemed to have been communicated on the date of first display with such variation to take effect on the date as stated in such notice; and/or (ii) Variation of Spread or Margin Above BR and/or Other Bank Charges By issuing a notice in writing and such notice shall be served by post and deemed received on the second (2nd) day after posting. The variation shall take effect from the date as stated in the notice. Such notice may alternatively be in the form of a computer generated statement; OR By way of an insertion on or an attachment to the Bank s statement of account to the Borrower stating such change and its effective date of change and such statement of account or noticed (in the event that the notice is not inserted in the statement of account but is enclosed therewith or attached thereto) may be in the form of a computer generated statement or notice and such notice shall be served by post and deemed received on the second (2nd) day after posting; OR By displaying at the Bank s branches and website a general notice and the variation shall take effect from the date as stated in the notice. (c) (d) If and whenever there is a variation to the Prevailing Interest Rate and/or other bank charges, the Bank may make the necessary adjustment consequential to such variation either by varying the amount of any Monthly Instalment and/or varying the number of Monthly Instalments or both and shall provide the Borrower with the revised particulars of the Monthly Instalment amount or Tenure after each interest rate adjustment. Notwithstanding, the Bank may, at its discretion, allow the Borrower to retain the amount of Monthly Instalment upon the Borrower s specific request. This will result in an extension of the Tenure and may include new terms and additional cost of borrowing as shall be disclosed by the Bank to the Borrower. The Bank shall give notice of variation of interest rate and/or bank charges but failure by the Bank to give notice shall not prejudice or have the effect of invalidating any such variation and the Borrower shall not be relieved from payment of the new Prevailing Interest Rate and/or bank charges. The decision of the Bank as to the Prevailing Interest Rate and/or bank charges, shall save for manifest error, be final and conclusive Section 8(2A) of the Insolvency Act 1967 The Borrower and the Security Party agree to pay the Prevailing Interest Rate and/or Default Rate even in the event that the Bank does not realise its Security Interest within twelve (12) months from the date of the bankruptcy order adjudicating the Borrower to be a bankrupt. 8

10 4.9. Commitment Fee on OD If required by the Bank under the Letter Of Offer, the Borrower shall pay a commitment fee of one percent (1%) per annum on the amount unutilised under OD calculated on a daily basis. The commitment fee shall be debited to the OD Account at the end of each month. A statement in writing signed by an officer of the Bank as to the amount of commitment fee payable shall be conclusive evidence of the amount payable by the Borrower. Such statement may alternatively be in the form of a computer generated statement. 5 REPAYMENT 5.1 The Borrower shall repay the Facility by instalment as per the amount of the Monthly Instalment on or before the Repayment Date. This clause does not apply for the early settlement and prepayment referred to in Appendix 1 of the Letter Of Offer. 5.2 The Bank shall be entitled to vary the Monthly Instalment at any time and from time to time due to any reason including without limitation a change in the Prevailing Interest Rate or in any other reference rate used in the Letter Of Offer or any other rate of interest specified by the Bank to ensure that the amount outstanding is paid in full by the final Repayment Date (a day which shall be notified later by the Bank as the day when the total sum outstanding under the Facility shall be satisfied by the final instalment as required and made pursuant to this clause). 5.3 The Bank may extend the Tenure to a further term on such terms and conditions as determined by the Bank. 5.4 Notwithstanding the above, full payment must be made on receipt of a demand by the Bank including but not limited to upon the happening of an event of default. 5.5 Where the Facility comprises the OD and the Term Loan, in respect of the OD, the Borrower shall repay the amount outstanding in the OD Account upon expiry of the Tenure, upon termination of the Term Loan and/or OD or upon demand by the Bank, whichever is earlier. 6 PAYMENTS 6.1 All payments under this Agreement shall be made on or before the Repayment Date. 6.2 Any payments made will be applied towards the Borrower's repayment obligation in direct order of maturity (i.e the amount paid will first be used to pay any outstanding amount due and thereafter every successive Monthly Instalment that is due) unless otherwise stated in the Letter Of Offer. 6.3 All payments to be made shall in Malaysian Ringgit and in immediately available funds. 6.4 All payments shall be made without set-off, counter claim and any deduction or withholding whatsoever. The Borrower shall forthwith pay to the Bank such additional amount so that the net amount received by the Bank will equal the full amount which would have been received by it had no such deduction or withholding been made. 6.5 Any money received under this Agreement may be placed and kept to the credit of a suspense account for so long as the Bank thinks fit without any obligation in the meantime to apply the same or any part thereof in or towards discharge of any money or liability due or incurred by the Borrower to the Bank. Notwithstanding any such payment, in the event of proceedings in or analogous to bankruptcy, liquidation, composition or arrangement, the Bank may prove for and agree to accept any divided or composition in respect of the whole or any part of such money and liability in the same manner as if this security had not been created. 9

11 6.6 In addition to the foregoing provisions and notwithstanding the other express provisions of this Agreement, the Borrower hereby irrevocably disables himself when making any payments to the Bank from appropriating such payments toward the Facility or any of the general banking facilities given by the Bank to the Borrower or any of the Facilities given by the Bank to the Borrower and hereby further waives the effect of the provision of Section 60 of the Contracts Act 1950 and unreservedly give the right of appropriation of all payments made by him at all times to the Bank under this Agreement. 7 REPRESENTATIONS AND WARRANTIES 7.1 The Borrower represents and warrants to the Bank that:- (c) (d) (e) (f) (g) (h) the Borrower and/or the Security Party have full power and capacity to execute deliver and perform their obligations under this Agreement; the acceptance of the Facility shall not constitute an event of default or potential event of default under any of the Borrower's agreements with any third party or contravene any law or regulation or order to which the Borrower is a party; there are no legal proceedings and/or bankruptcy or winding up or insolvency proceedings threatened or pending against the Borrower and/or the Security Party or the Borrower and/or the Security Party are not an undischarged bankrupt or wound up or insolvent or the Borrower or the Security Party has not violated any court order or judgment or the Borrower or the Security Party has not entered into or proposed to enter into any voluntary arrangement with their respective creditor(s) or there is no receiver and/or manager appointed to take over the Borrower s and/or the Security Party s assets and/or business or there is no application made or pending by any person for an order for the Borrower and/or the Security Party to be placed under judicial management and for the appointment of a judicial manager or there is no form of arrangement or composition (voluntary or otherwise) entered or proposed to be entered into by the Borrower and/or the Security Party with their respective creditor(s); all information furnished or declaration made to the Bank by the Borrower and/or the Security Party are true and do not omit any facts which would otherwise affect the Bank's decision to grant this Facility; there is no contravention or breach of the Laws and Guidelines by the Borrower and/or the Security Party. The Laws and Guidelines to which the Facility is subject shall include but are not limited to (i) all prevailing provisions of the and all prevailing Bank Negara Malaysia s guidelines and directives issued in respect thereof; and (ii) any lending limits or restrictions that may be imposed upon the Bank from time to time by Bank Negara Malaysia or any other governmental authority; the Borrower and/or the Security Party is/are the beneficial owner(s) of the Property; that at the date of this Agreement, there is no encumbrance on the Property except the Security Interest created or to be created in favour of the Bank; that the Borrower and/or the Security Party and/or any of their respective directors, officers or employees or any persons acting on any of their behalf: (i) (ii) is/are not a Restricted Party; and has not received notice of or is/are aware of any claim, action, suit, proceeding or investigation against it with respect to Sanctions by any Sanctions Authorities; and (i) that no authorisation, approval, consent, license, exemption, registration, recording, filing or notarisation whether from or of any governmental, regulatory or administrative authority or body or otherwise and no payment of any duty or tax and no other corporate or relevant action whatsoever is necessary or desirable to ensure the legality, validity, enforceability or priority of the liabilities and obligations of the Borrower and/or 10

12 the Security Party, or the rights of the Bank, under the Security Documents except, to the extent it is required, it has been duly obtained and is in full force and effect and/or paid, as the case may be. 7.2 Each of the above representations and warranties shall constitute continuing representations and warranties throughout this Agreement. 8 BORROWER S COVENANTS The Borrower hereby expressly covenants with the Bank that the Borrower shall ensure to or where applicable, cause the Security Party to ensure to at all times during the continuance of this Agreement:- (c) (d) promptly obtain, maintain, renew from time to time and deliver to the Bank certified copies of any authorisation, approval, consent, licence, exemption, registration, recording, filing or notarisation as may be necessary or desirable to ensure the legality, validity, enforceability or priority of their liabilities and obligations or the rights of the Bank under the Security Documents and to comply with the terms and/or conditions of the same; to forthwith notify the Bank when there is an occurrence of an event of default or potential event of default and provide the Bank with full details of any steps which it is taking, or is considering taking, in order to remedy or mitigate the effect of the event of default or the potential event of default or the delay or suspension or otherwise in connection therewith; by written notice inform the Bank forthwith upon becoming aware of it or close relatives i.e. any parents, spouses, dependents of the spouses, brothers, sisters, children (including step children and adopted children) and any other dependents and persons who may influence or be influenced by them becoming a director, officer or employee of the Bank or CIMB Islamic Bank Berhad or CIMB Investment Bank Berhad or other subsidiaries or companies controlled by the aforesaid respective banking institutions falling within the Guidelines on Credit Transactions and Exposures with Connected Parties issued by Bank Negara Malaysia;. by written notice inform the Bank of:- (i) (ii) any dispute between them and any Government or statutory body in respect of the Property, Security Interest or any of their lands and other assets; and/or any other matter which adversely affects or may adversely affect their ability to fulfil their obligation under the Security Documents, their financial position or their ability to repay the Facility; (e) (f) (g) (h) to observe and perform all the terms and conditions as stated in the Security Documents and/or in any agreements which may constitute or form the basis of any Security Interest to be provided by them to the Bank under the Security Documents; to promptly notify the Bank in the event of any change in their respective residential status; not to carry out any acts which will or could have an adverse effect to their business, operations, property, condition (financial or otherwise) or prospects thereof or their ability to perform any of their obligations under the Security Documents or the validity or enforceability of any of the Security Documents or the rights or remedies of the Bank under the Security Documents and will promptly notify the Bank of any adverse change in their business operations, property, condition (financial or otherwise) or prospects and of any litigation or other proceedings of any nature whatsoever being threatened or initiated against them before any court, authority, tribunal or administrative agency, which may adversely affect their business or condition (financial or otherwise) or their ability to fulfil their respective obligations as stated in the Security Documents and the amount of any contingent liability if such amount is ascertainable; to at all times on demand execute all such further documents and do all such further acts reasonably necessary at any time or times to give further effect to the terms and conditions of the Security Documents; and 11

13 (i) to ensure that it has the ability to pay all its indebtedness when due and payable. 9. EVENTS OF DEFAULT 9.1 Each of the following events shall be an event of default: - (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) failure by the Borrower to pay the Monthly Instalment; failure by the Borrower and/or the Security Party to meet the Bank's demand within the time stipulated in the demand; if the Borrower and/or the Security Party suspends or threatens to suspend making payments (whether of principal or interest or any other payments) with respect to all or any class of their debts; if any of the parties to the Sale and Purchase Agreement commits or threatens to commit a breach of any term stipulation, covenant or undertaking contained in the Sale and Purchase Agreement entitling either party to the Sale and Purchase Agreement to repudiate the Sale and Purchase Agreement or if the Sale and Purchase Agreement is terminated; in the event of a breach or contravention of any Laws and Guidelines by the Borrower and/or the Security Party; if at any time, by reason of the enactment of or the making of any law or change in any applicable law, regulation or regulatory requirement (whether or not having the force of law) or in the interpretation or application thereof, the Bank is of the opinion that it has or will become unlawful or it is otherwise prohibited or prevented for the Borrower and/or the Security Party to perform or comply with any one or more of their respective obligations under the Security Documents; if at any time, by reason of the enactment of or the making of any law or change in any applicable law, regulation or regulatory requirement (whether or not having the force of law), or Bank policy or in the interpretation or application thereof the Bank is of the opinion that it has or will become unlawful or it is otherwise prohibited or prevented for the Bank to maintain or give effect to all or any of the Bank s obligations as contemplated by this Agreement or as a result of the Borrower s or the Security Party s domicile, nationality, residency status, tax status, or any other relevant status, the provision or continue provision of the Facility made available by the Bank from time to time, would or might in the Bank s opinion constitute a breach of the Bank s internal requirement, policies or is not in accordance with the Bank s usual business practice and procedure; if the Borrower and/or the Security Party is subject to any Sanctions; if the Borrower and/or the Security Party default in affecting, maintaining or renewing any insurance required to be effected, maintained or renewed by the Borrower or the Security Party; if the Borrower refuses, fails and/or omits to deposit such additional collateral and/or to execute and/or perfect all relevant Security Documents in the format prescribed by the Bank to give effect to such additional collateral up to the Bank s full satisfaction upon request by the Bank; if the Borrower and/or the Security Party creates or permits to subsist any mortgage, pledge, charge, encumbrance, lien or any other security interest in the asset offered as security under the Security Documents without the prior written consent from the Bank; if a notice or proposal for compulsory acquisition of the Property shall be issued or made under or by virtue of any act of parliament or other statutory provision; 12

14 (m) (n) (o) (p) (q) (r) (s) (t) (u) (v) (w) if the Borrower and/or the Security Party and/or any other party applies to court or any other authority to restrain the Bank and/or any of its other creditors or any of them from proceeding in any manner whatsoever to enforce whether in court of law or otherwise any of their rights or securities including guarantees under any agreement or the Security Document; failure by the Borrower and/or Security Party to comply with the provisions of other facilities granted by the Bank or by a third party to the Borrower and/or the Security Party; the Security Interest is in jeopardy or is not be capable of being perfected; if any legal proceedings, suit or action shall be commenced, instituted, taken or threatened against the Borrower and/or the Security Party and the Bank in its sole opinion is of the view that this will adversely affect the Borrower s or the Security Party's ability to observe or perform their respective obligations under the Security Documents; any steps and/or proceedings are taken for bankruptcy or winding up or insolvency of the vendor/developer/proprietor/contractor, or any proposal for voluntary arrangement is entered into by the vendor/developer/proprietor/contractor and their creditor(s) or a receiver and/or manager is appointed to take over the vendor s/developer s/proprietor s/contractor s assets and/or business or any application is made by any person for an order for the vendor/developer/proprietor/contractor to be placed under judicial management and for the appointment of a judicial manager or the vendor/developer/proprietor/contractor enter into any form of arrangement or composition (voluntary or otherwise) with their creditor(s); if a situation shall occur which in the sole opinion of the Bank may imperil, delay or prevent the Borrower or the Security Party from performing its obligation under any of the Security Documents, including if any person related or connected to the Security Party is subject to any Sanctions and/or is involved in any investigation, disciplinary action or criminal proceedings by any regulatory or statutory or other body whatsoever (whether or not having the force of law) which would or could, in the sole opinion of the Bank affect the Borrower's and/or the Security Party's ability to perform his obligations under any of the Security Documents; if the Borrower and/or the Security Party is subject to or is involved in any investigation, disciplinary action or criminal proceedings by any regulatory or statutory or other body whatsoever (whether or not having the force of law); if any sum shall be due from the Borrower and/ or the Security Party to the Bank and or any other third party from time to time or at any time or if any of the Borrower and/or Security Party may be or become liable to the Bank anywhere on any banking, loan, any other credit facilities or any other account current or otherwise ( the Account(s) ) or in any other manner whatsoever including but not limited to liability of any of the Borrower and/or Security Party incurred to the Bank as surety(ies) or guarantor(s) or if default is made in relation to any provisions governing the Account(s); if the Property or any part thereof is not utilised for its intended purpose; if the Borrower permits or authorises any other person to, directly or indirectly, use, lend, make payments of, contribute or otherwise make available, all or any part of the proceeds of the Facility and/or any other facilities granted to the Borrower to fund any trade, business or other activities: involving or for the benefit of any Restricted Party, or in any other manner that would reasonably be expected to result in the Borrower or the Security Party being in breach of any Sanctions (if to the extent applicable to either of them) or becoming a Restricted Party; if the Borrower and/or the Security Party shall fail to satisfy any judgement passed against the Borrower and/or the Security Party by any court of competent jurisdiction and no appeal against such judgement has been made to any appropriate appellate court within the time prescribed by law or such appeal has been dismissed and in the case of any judgement obtained in default of appearance no application has been made 13

15 to set such judgement aside within one (1) month of the Borrower and/or the Security Party becoming aware of the judgement; (x) (y) (z) (aa) (ab) (ac) (ad) if any part of the Property, or land or any structures thereon is damaged or destroyed and the result, whether by reason of the insurance over the Property or structure proving to be invalid or unenforceable or otherwise not in full force and effect or for any other reason is, in the determination of the Bank adversely to affect the business or condition (financial or otherwise) of the Borrower and/or the Security Party or their respective ability to observe or perform its obligations under any of the Security Documents; if any of the Security Documents become invalid or unenforceable or shall be challenged by any of the Security Party as to its validity or enforceability or any license, authorisation, approval, consent, order, exemption, registration, filing or notarisation as stated in the Security Documents is revoked or withheld or modified or is otherwise not granted or fails to remain in full force and effect and any of the foregoing may lead to the suspension or cessation of the Borrower s and/ or the Security Party's business and operation or the Borrower s and/or the Security Party s authority or ability to conduct its business and operation and/or the Borrower s or the Security Party s business may be wholly or substantially curtailed; if all or any part of the property, assets, rights, undertakings and/or income of the Borrower and/or the Security Party shall be condemned, seized or otherwise appropriated, compulsorily acquired or nationalised, or custody and/or control of such property and/or assets shall be assumed and retained by any person acting or purporting to act under the authority of the Government or any governmental or statutory body, or the Borrower and/or the Security Party shall have been prevented from exercising normal managerial control over all or any part of their property and/or assets; if the Borrower or the Security Party enters into or proposes to enter into or there is declared by any competent court and/or authority, a moratorium on the payment of all or any part of its indebtedness or other suspension of payments generally; if the Bank determines that any security provided by the Borrower and/or the Security Party is different from that which was agreed to be provided; if the Security Party withdraws from any security under any of the Security Documents or gives notice to the Bank of discontinuance of its obligations and liabilities under the security as to future transaction; and if anything analogous to any of the events stated in the event of default clause occurs under the laws of any applicable jurisdiction. 9.2 Consequences Upon the occurrence of any events of default, the Bank reserves the right to recall, withdraw and/or suspend the Facility and the Bank shall not be obliged to further disburse the Facility, whereupon the Borrower shall repay all amounts outstanding under the Facility, and the Bank may exercise all its rights and remedies at law and in equity. Without prejudice to any other remedies available to the Bank under any of the other Security Documents and notwithstanding Clause 9.2above, the Bank reserves the right to vary the Prevailing Interest Rate as stated in the Letter Of Offer to such other rate as the Bank may in its discretion stipulate from time to time if the Borrower fails to pay the Monthly Instalment, interest, capitalised interest, default interest and other charges. 9.3 Remedies Exercised Concurrently The Bank shall have the right to exercise its remedies concurrently, including pursuing all remedies of sale or realisation of security and civil suit to recover the amount outstanding. The exercise of the above rights would not subject the Bank to any claim for involuntary loss. 14

16 (c) The Borrower shall pay the Bank the difference between the Indebtedness and the net proceeds of the sale of the Property. 9.4 Proceeds of Sale All monies received by the Bank from any proceedings instituted or steps taken under any of the Security Documents shall be applied by the Bank: - (c) (d) (e) (f) FIRSTLY to pay for all relevant fees, costs, charges and expenses incurred and payments made by the Bank under the provisions of this Agreement or any other Security Documents (if any) and any other taxes payable under any written law for the time being in force on the disposal of the Property or in the enforcement of the Security Documents or any part thereof (including court costs and solicitors fees, costs, charges and expenses). SECONDLY to pay to the Bank all interest then accrued and remaining unpaid in respect of the Facility or the balance thereof for the time being owing. THIRDLY to pay to the Bank the principal sum due and remaining unpaid under the Facility. FOURTHLY to pay to the Bank all other monies due and remaining unpaid under this Agreement or any other Security Documents (if any). FIFTHLY to pay the repayment or payment of all amounts due and payable under any other facility granted by the Bank to the Borrower. SIXTHLY to pay to such persons entitled thereto the surplus, if any PROVIDED ALWAYS THAT if the Bank shall be of the opinion that the security may prove deficient payments may be made to the Bank on account of principal before interest but such alteration in the order of payment shall not prejudice the right of the Bank to receive the full amount to which it would have been entitled if the primary order had been observed or any lesser amount which the sum ultimately realised from the security may be sufficient to pay. 10 SECURITY 10.1 The Borrower shall provide, or shall ensure that each Security Party creates the Security Interest in favour of the Bank or any other person authorised by the Bank and a power of attorney appointing the Bank as attorney of the Borrower and/or Security Party and in the Borrower's and/or Security Party s name and on their behalf, to deal with the Property, by executing the Security Documents in form and substance acceptable to the Bank The Borrower shall ensure and the Borrower shall cause to ensure the Security Party to at any time if and when required by the Bank to do so provide and/or execute in favour of the Bank or as the Bank shall direct any further Security Interest as the Bank shall require as substitution of the Security Interest or additional security to secure the Indebtedness. Such Security Interest to be prepared by or on behalf of the Bank at the cost of the Borrower and/or the Security Party and to contain all such terms and conditions for the benefit of the Bank as the Bank may require and the Borrower shall comply and the Borrower shall cause the Security Party to comply with such request in a timely manner The Security Interest created in favour of the Bank shall be continuing security for the existing Indebtedness and all future Indebtedness of the Borrower with the Bank and all additional security created pursuant to Clause 10.2 above may be by way of collateral security for the Indebtedness and may also or otherwise be for the purpose of securing any other moneys owing to the Bank by the Borrower and not secured hereunder. 15