PRINCIPAL TERMS AND CONDITIONS OF THE MTN PROGRAMME

Transcription

1 PRINCIPAL TERMS AND CONDITIONS OF THE MTN PROGRAMME All the terms used herein shall have the meanings as set out in the Definition Schedule attached, save as otherwise defined herein or unless the context otherwise requires. BACKGROUND INFORMATION 1 Issuer Name Address Business Registration No. Date/place of Incorporation Date of Listing (in case of a public listed company) : MISC Berhad : Level 25, Menara Dayabumi, Jalan Sultan Hishamuddin, Kuala Lumpur. : Company Number: 8178-H : Date of Incorporation: 6 November 1968 Place of Incorporation: Malaysia : 23 February 1987 Status : Resident/nonresident controlled company Bumiputera/non- Bumiputera controlled company Principal Activities Board of Directors Resident controlled company Bumiputera controlled company : The principal activities of the Issuer consist of shipowning, ship operating, other activities related to shipping services and owning and operating offshore floating services. : The board of directors of the Issuer as at 29 June 2007 are as follows: Tan Sri Dato Sri Mohd Hassan bin Marican; Dato Shamsul Azhar bin Abbas; Dato Sri Liang Kim Bang; Harry K. Menon; Dato Halipah binti Esa; 1

2 Datuk Nasarudin bin Md Idris Dato Kalsom binti Abd Rahman; Dato Dr. Wan Abdul Aziz bin Wan Abdullah; and Dato Ibrahim Mahaludin bin Puteh (Alternate to Dato Dr. Wan Abdul Aziz bin Wan Abdullah). 2

3 Structure of shareholdings and names of shareholders or, in the case of a public company, names of all substantial shareholders (as at 29 June 2007) : Substantial Shareholders Cartaban Nominees (Tempatan) Sdn Bhd Petroliam Nasional Berhad Shareholding No. of shares Direct (%) held in the Issuer 2,322,512, Employees Provident Fund Board (inclusive of shares held through various nominees) 354,768, RHB Nominees (Tempatan) Sdn Bhd RHB Asset Management Sdn Bhd for Kumpulan Wang Simpanan Pekerja Alliancegroup Nominees (Tempatan) Sdn Bhd PHEIM Asset Management Sdn Bhd for Employees Provident Fund AM Nominees (Tempatan) Sdn Bhd Employees Provident Fund Board (A/C1) HSBC Nominees (Tempatan) Sdn Bhd Fraser & Neave Ltd for Malaysian Employees Provident Fund 3

4 Substantial Shareholders HSBC Nominees (Tempatan) Sdn Bhd Nomura Asset Management Malaysia for Employees Provident Fund SBB Nominees (Tempatan) Sdn Bhd Employees Provident Fund Board Alliancegroup Nominees (Tempatan) Sdn Bhd Alliance Investment Management Berhad for Employees Provident Fund Cartaban Nominees (Tempatan) Sdn Bhd MIDF Amanah Asset Nominees (Tempatan) Sdn Bhd for Employees Provident Fund Board (JF404) Mayban Nominees (Tempatan) Sdn Bhd Hwang-DBS Investment Management Bhd for Employees Provident Fund (230571) Mayban Nominees (Tempatan) Sdn Bhd Amanahraya-JMF Asset Management Sdn Bhd for Kumpulan Wang Simpanan Pekerja (C423-Ekuiti) Mayban Nominees (Tempatan) Sdn Bhd Mayban Investment Management Sdn Bhd for Kumpulan Wang Simpanan Pekerja (N ) Shareholding No. of Direct (%) shares held in the Issuer 4

5 Authorised and paidup capital (as at 29 June 2007) : Share capital Authorised Amount (RM) 5,000,000,000 ordinary shares of RM1 each and 1 preference share of RM1 each 5,000,000,001 Issued and fully paidup 3,719,827,586 ordinary shares of RM1 each and 1 preference share of RM1 each 3,719,827,587 PRINCIPAL TERMS AND CONDITIONS 2. Names of parties involved in the proposed transaction (where applicable) i. Joint Principal Adviser(s) / Joint Lead Arranger(s) : AmInvestment Bank Berhad (formerly known as AmMerchant Bank Berhad)( AmInvestment ), CIMB Investment Bank Berhad (formerly known as Commerce International Merchant Bankers Berhad)( CIMB ), HSBC Bank Malaysia Berhad ( HSBC ) ii Arranger(s) : Not applicable. iii Valuers : None iv Solicitors : Azmi & Associates, counsel for the JLAs/JLMs v vi Financial Adviser Technical Adviser : None : None vii Guarantor : None viii Trustee : CIMB Trustee Berhad (formerly known as Bumiputra- Commerce Trustee Berhad) ix Facility Agent : CIMB 5

6 x xi Primary Subscriber(s) and Amount subscribed (where applicable) Underwriter(s) and amount underwritten : The Primary Subscribers (if any) will be determined prior to the issuance of the MTNs : None xii Syariah Adviser : CIMB Islamic Shariah Committee, Dr. Mohd Daud Bakar and HSBC Bank Malaysia Berhad Shariah Committee (collectively referred to as Syariah Advisers ) xiii Central Depository : Bank Negara Malaysia ( BNM ) xiv Paying Agent : BNM xv xvi Reporting Accountant Others (please specify) : Not applicable : Joint Lead Manager(s): AmInvestment, CIMB, HSBC 3. Islamic Principle Used : Murabahah 4. Facility Description : Islamic Medium Term Notes ( MTN ) Programme of up to RM2.5 billion based on the Syariah principles of Murabahah ( MTN Programme ). The MTNs shall be issued under the financing principle of Murabahah, wherein the Issuer and the Facility Agent (acting on behalf of holders of the MTNs ( MTNholders )) shall execute purchase agreements under which the Issuer will, from time to time, sell certain identified assets ( the Assets ) to the Facility Agent. Thereafter, the Facility Agent (acting on behalf of the MTNholders), will sell the Assets back to the Issuer, via the execution of Murabahah sale agreements. The obligation of the Issuer to pay the Murabahah sale price for the Assets will be evidenced by the issuance of the MTNs which will represent the aggregate of the principal and where applicable, the profit (as described below). The transaction structure of the MTN Programme is illustrated in Appendix 1 of this Principal Terms and Conditions of the MTN Programme. 5. Issue Size (RM) : The aggregate outstanding nominal value of the MTNs issued under the MTN Programme at any point in time shall 6

7 not exceed RM2.5 billion. 6. Issue Price (RM) : MTNs may be issued at par, a discount or a premium to the face value. For each issuance, the issue price shall be in compliance with the Securities Commission s ( SC ) Shariah Advisory Council Pricing Guidelines (i.e. Garis Panduan Penetapan Harga Aset Dalam Penerbitan Bon Islam) issued on 31 December 2003 and 30 April 2004, as may be replaced, substituted, amended or revised from time to time ( SAC Pricing Guidelines ). 7. Tenor of the facility/issue : Programme Tenor Fifteen (15) years from the date of the first issue of the MTNs under the MTN Programme. To the extent required by the Securities Commission s Guidelines on the Offerings of Islamic Securities, the first issue of the MTNs shall be made within 2 years from the date of the SC s approval. Issue Tenor Each issue of MTNs may be for any period above one (1) year and up to fifteen (15) years as the Issuer may select, provided that no MTNs mature after the expiry of the Programme Tenor. 8. Coupon/profit or equivalent rate (%) 9. Coupon/ profit payment frequency and basis : The MTNs may be issued on a zero profit basis or with profits. For MTNs issued with profits, the profit rate will be determined and agreed prior to each issuance of MTNs. : For MTNs issued with profits, such profits shall be payable semi-annually in arrears. The profit payments shall be calculated based on the actual number of days elapsed and the actual number of days basis (actual/actual). 10. Yield to Maturity (%) : The yield to maturity will be determined at the point of issuance. 11. Security/Collateral (if any) 12. Details on utilisation of proceeds : None : Proceeds from the MTN Programme shall be utilised by the Issuer for Syariah-compliant purposes as follows:- 7

8 Purpose (i) To finance MISC group s Syariahcompliant capital expenditure and working capital requirements; and (ii) To finance the professional fees and other related expenses in relation to the establishment of the MTN Programme and issuances thereunder Total Amount (RM million) Up to 2, Up to 0.65 Up to 2, Sinking fund (if any) : Not applicable. Following the maturity of MTNs under the MTN Programme, proceeds from any subsequent reissuance of the MTNs may also be utilised to redeem any maturing MTNs under the MTN Programme. 14. Rating - Credit rating assigned : AAA ID (Indicative) - Name of rating agency - Minimum rating : : Malaysian Rating Corporation Berhad ( MARC ) (i) (ii) For the 1 st issuance under the MTN Programme, the rating for the MTNs shall be AAA ID (or its equivalent) at point of issuance; and Thereafter until the expiry of the MTN Programme, the rating for the MTNs shall be at least BBB- ID (or its equivalent) on their respective issue dates. 15. Form and Denomination : The MTNs shall be issued in accordance with (1) the Code of Conduct and Market Practices for the Malaysian Corporate Bond Market issued by the Institut Peniaga Bon Malaysia and approved by BNM ( IPBM Code ) and (2) the Rules on the Scripless Securities under the Real Time Electronic Transfer of Funds and Securities ( Rentas ) system issued by BNM ( Rentas Rules ) and (3) the Rules on Fully Automated System for Issuing/Tendering ("FAST") issued by BNM ( FAST Rules ), or their replacement thereof 8

9 (collectively the Codes of Conduct ) applicable from time to time. The Rentas Rules shall prevail to the extent of any inconsistency between the Rentas Rules and the IPBM Code. Each issue of the MTNs shall be represented by a global certificate to be deposited with BNM, and is exchanged for definitive bearer form only in certain limited circumstances. The MTNs shall be issued in denominations of RM1,000,000 or in multiples of RM1,000, Mode of Issue : Private placement via bought deal or book building basis, all without prospectus (to be agreed between the Issuer and the JLAs/JLMs) or competitive tender by the TPMs. 17. Selling Restriction : Selling Restriction at Issuance The MTNs may not be offered, sold, transferred or otherwise disposed directly or indirectly, nor may any document or other material in connection therewith be distributed in Malaysia, other than to categories of persons falling within: (a) (b) (c) Schedule 2 or Section 38(1)(b); and Schedule 3 or Section 39(1)(b); and Schedule 5 or Section 66(3) of the Securities Commission Act, as amended from time to time ( SCA ). Selling Restriction Thereafter The MTNs may not be offered, sold, transferred or otherwise disposed directly or indirectly, nor may any document or other material in connection therewith be distributed in Malaysia, other than to categories of persons falling within: (a) (b) Schedule 2 or Section 38(1)(b); and Schedule 5 or Section 66(3) of the SCA. 18. Listing Status : The MTNs will not be listed on any exchange. 19. Minimum Level of Subscription (RM or %) : The minimum level of subscription for each issue that is not issued on a bought deal basis under the MTN Programme shall be five percent (5%) of the nominal value of a particular issue. 20. Other regulatory approvals required in relation to the issue, offer or invitation and : None 9

10 whether or not obtained 21. Identified Assets : See Assets in the Definition Schedule (attached herein). 22. Purchase and selling price/rental (where applicable) : The Purchase Price shall at all times be in compliance with the SAC Pricing Guidelines. The Sale Price can only be calculated once the profit rate, yield to maturity and tenor of the MTNs to be issued have been determined. The profit rate, yield to maturity and tenor of the MTNs to be issued shall be determined prior to each issuance of the MTNs. 23. Conditions Precedent : Conditions precedent for this MTN Programme shall include the following: (a) execution of all Transaction Documents and other necessary documentation; (b) confirmation and delivery of all required corporate, governmental and other approvals, including but not limited to the approvals of the SC and the Syariah Advisers; (c) satisfactory due diligence as required under the SC s Guidelines on the Offering of Islamic Securities in respect of the submission to the SC and the establishment of the MTN Programme (including the preparation of the Information Memorandum), which is acceptable to the JLAs/JLMs and the Solicitors; (d) receipt of legal opinions from the Solicitors, if any, in form and substance acceptable to the JLAs/JLMs; (e) evidence that the rating of the MTN Programme is not below the ratings stated in Ratings clause above; and (f) such other conditions precedent as stipulated in the Transaction Documents. 24. Representations and Warranties : Representations and warranties for this MTN Programme shall include the following: (a) (b) the Issuer is a company duly established and existing under Malaysian law and it has the power and authority to enter into the business in which it is engaged; the Issuer has the power to enter into, exercise its rights under and perform its obligations under the Transaction Documents; 10

11 (c) (d) (e) (f) (g) (h) all necessary actions, authorisations and consents required by that date under the Transaction Documents have been taken, fulfilled and obtained and remain in full force and effect; the Issuer s entry into, exercise of its rights under and performance of the Transaction Documents do not and will not violate any existing law or documents to which it is a party; the Transaction Documents create valid and binding obligations which are enforceable on and against the Issuer; the Issuer s audited accounts are prepared in accordance with generally accepted accounting principles and standards. The audited accounts fairly represent the Issuer s financial position as at the date of the audited accounts; to the best of the Issuer s knowledge, no litigation or arbitration is current or threatened, which if adversely determined would have a Material Adverse Effect on the ability of the Issuer to comply with the Transaction Documents; and any other representations and warranties to comply with the SC s Guidelines on Minimum Contents Requirements for Trust Deeds, which shall be stipulated in the Transaction Documents. 25. Events of Default : The events of default for this Programme shall include, but are not limited to breach of material obligations by the Issuer which remains unremedied after thirty (30) business days following receipt of Trustee s written notice of default; nonpayment of any indebtedness due under the MTNs; illegality; breach or misrepresentations of material representations and warranties; execution proceedings; cross default; any event occurs which in the opinion of the MTNholders has or could have a Material Adverse Effect on the Issuer and in the case of the occurrence of such event which in the opinion of the MTNholders is capable of being remedied, has not been remedied within 30 days after receipt by the Issuer of a written notification from the Trustee (on behalf of the MTNholders) of the event or circumstance; insolvency; winding-up; dissolution; and such other events stipulated in the Transaction Documents. The opinion of the MTNholders referred to above may be formed either (i) in writing by MTNholders of not less than 25% in aggregate of the Primary MTNs then outstanding, or (ii) by 11

12 an Extraordinary Resolution. Upon the occurrence of an Event of Default, the Trustee may or shall (if directed to do so (i) in writing by the holders of not less than 25% in aggregate of the Primary MTNs then outstanding, or (ii) by an Extraordinary Resolution) declare that the MTNs are immediately due and repayable. Thereafter, the Trustee may take proceedings against the Issuer as it may think fit to enforce immediate repayment of the MTNs. 26. Principal Terms and Conditions for Warrants (where applicable) 27 Other Principal Terms and Conditions for the Issue : Not applicable : Negative Pledge The Issuer shall not, and shall procure that none of the Specified Subsidiary shall, create or permit to subsist any Security Interest over the whole or any part of its business or assets, present or future, to secure any borrowings or indebtedness with the exception of (i) liens arising by operation of law and in the ordinary course of operations; (ii) pledges created in relation to documentary credits opened in the ordinary course of operations; (iii) any existing security interest as disclosed in the programme agreement; (iv) any security interest on any property or asset securing indebtedness incurred or assumed for the purpose of financing the purchase price thereof or the cost of construction, improvement or repair of all or any part thereof, provided that such security interest attaches to such property concurrently with or within twelve (12) months after the acquisition thereof or completion of construction, improvement or repair thereof; (v) any security interest securing indebtedness owing to or held by the Issuer or any Specified Subsidiary, as the case may be; and (vi) any security interest arising out of refinancing, extension, renewal or refunding of any indebtedness secured by any security interest permitted by any of the foregoing exceptions, provided that such indebtedness is not increased and is not secured by any additional property or assets. In addition to the above, the Negative Pledge herein provided shall also not be applicable to security interest created to secure indebtedness outside the ambit of (i) to (vi) above, so long as the aggregate outstanding principal amount of all such secured indebtedness does not exceed ten per centum (10%) of the Issuer s consolidated net tangible assets (as disclosed in its latest consolidated audited financial statements). 12

13 Security Interest shall mean any encumbrance, mortgage, pledge, lien, caveat, right of set off, sale with the right of retention, charge (whether legal or equitable, fixed or floating), assignment or other security interest of any kind or any other arrangement having substantially the same legal or economic effect as any of the foregoing. Specified Subsidiary shall mean AET Holdings (L) Pte Ltd., AET Inc. Ltd. and PETRONAS Tankers Sdn. Bhd. and each of their respective direct and indirect subsidiaries; Other covenants Other positive and negative covenants as agreed between the Issuer and the JLAs/JLMs and such other covenants as may be required by the SC s Guidelines on the Minimum Contents Requirements for Trust Deeds will be stipulated in the Transaction Documents. Mandatory Redemption Events Mandatory Redemption Events shall include: 1. nationalisation by or under the authority of any government: (i) the management of the Issuer is wholly or substantially displaced or the authority of the Issuer in the conduct of its business is wholly or substantially curtailed; or (ii) all or a majority of the registered capital of the Issuer or the whole or a substantial part of its revenues or assets is seized, nationalised, expropriated or compulsorily acquired; 2. revocation or withholding of licences: which would in the opinion of the MTNholders materially impair or prejudice the Issuer s ability to comply with the terms and conditions of the MTNs or any of the Transaction Documents or be prejudicial to the interests of the MTNholders; and 3. Petroliam Nasional Berhad shall cease to be the single largest controlling shareholder of the Issuer, which would in the opinion of the MTNholders impair or prejudice the Issuer s ability to comply with the terms and conditions of the MTNs or any of the Issue Documents or is prejudicial to the interests of the MTNholders. The opinion of the MTNholders referred to in paragraphs 2 and 3 above may be formed either (i) in writing by MTNholders of not less than 25% in aggregate of the Primary MTNs then outstanding, or (ii) by an Extraordinary Resolution. 13

14 If any of the above occurs, the Trustee may or shall (if directed to do so (i) in writing by the holders of not less than 25% in aggregate of the Primary MTNs then outstanding, or (ii) by an Extraordinary Resolution) declare that the outstanding Primary MTNs with all matured but unpaid Secondary MTNs (if applicable) are immediately due and repayable, whereupon such Primary MTNs and Secondary MTNs (if applicable) shall become immediately due and repayable. Compensation ( Ta widh ) In the event of any overdue and defaulted payments or amounts whatsoever under the MTN Programme, the Issuer shall pay compensation on such overdue payments or amounts at the rate and in the manner prescribed by the SC s Shariah Advisory Council or any other relevant authority as approved from time to time. Redemption/Repurchase and Cancellation Unless previously purchased and cancelled, the Issuer shall redeem the MTNs at their face value on the relevant maturity date. The Issuer or its related corporations may, at any time, purchase the MTNs on the open market or by private treaty at any price. Such MTNs will not entitle the Issuer or its related corporations to vote at any meetings of the MTNholders and will not be deemed to be outstanding for the purpose of determining the total votes exercisable by the MTNholders whenever such determination is required under the Transaction Documents. Status of the MTNs The MTNs to be issued under the MTN Programme shall constitute direct, unconditional, unsecured and unsubordinated obligations of the Issuer ranking at all times at least pari passu without any preference amongst themselves and with all other direct, unconditional, unsecured and unsubordinated liabilities of the Issuer, present or future, other than liabilities preferred by law. Taxation All payments by the Issuer shall be made without withholding or deductions for or on account of any present or future tax, duty or charge of whatsoever nature imposed or levied by or on behalf of Malaysia, or any authority thereof or therein having power to tax, unless such withholding or deduction is required by law whereby the Issuer shall not be required to gross up for any such deductions or withholdings. 14

15 Governing Laws The laws of Malaysia. 15

16 Definition Schedule The following terms used in the Principal Terms and Conditions of the MTN Programme shall have the meanings set out below: Assets : Means a pool of Syariah-compliant assets based on the SC's Syariah Advisory Council criteria identified and provided by the Issuer for the purpose of the transaction. The assets shall be endorsed by the Syariah Adviser. The identified assets can be released and/ or substituted from time to time subsequent to the initial issuance date so long as the nature/ type and value being ascribed to the Assets or part or portion thereof be sold by the Issuer in pursuance to the Murabahah transactions are acceptable and approved by the Syariah Adviser. Extraordinary Resolution : Means the extraordinary resolution of the MTNholders passed in accordance with the Transaction Documents JLAs/JLMs : Means collectively AmInvestment Bank Berhad (formerly known as AmMerchant Bank Berhad), CIMB Investment Bank Berhad (formerly known as Commerce International Merchant Bankers Berhad) and HSBC Bank Malaysia Berhad, the Joint Lead Arrangers and Joint Lead Managers Material Effect Adverse : Means the following: (a) Any material adverse effect on the business or condition (financial or otherwise) or results of the operations of the Issuer; or (b) Any material adverse effect on the ability of the Issuer to perform any of its obligations under any of the Transaction Document TPMs : Means Tender Panel Members, persons to whom an issue of, or an offer or an invitation to subscribe, the Notes would fall within: (a) (b) (c) Schedule 2 or Section 38(1)(b); Schedule 3 or Section 39(1)(b); and Schedule 5 of Section 66(3) of the SCA. Transaction Documents : Means the documents executed pursuant to the MTN Programme which shall include:- (a) (b) (c) Asset Purchase Agreement(s); Asset Sale Agreement(s); Subscription Agreement(s); 16

17 (d) (e) (f) Trust Deed; Programme Agreement; and Depository and Paying Agency Agreement. 17

18 Appendix 1 Re-purchase Assets 2 MISC Sell Assets 1 1 Purchase Price Facility Agent 2 Sale Price on deferred terms 1 Proceeds Issue Islamic MTN 2 Investors Note: Purchase Price shall be in compliance with the SAC PricingGuidelines issued on 31 st December 2003 and 30 th April 2004 Step 1 Step 2 MISC and Facility Agent (acting on behalf of the Investors) shall execute an Asset Purchase Agreement ( APA ) under which MISC shall sell certain identified assets (the Asset ) to the Investors for a Purchase Price payable on spot, which represent an amount to be disbursed under a respective Islamic Medium Term Notes ( MTN ) issue. Facility Agent shall immediately sell the Asset back to MISC evidenced by an Asset Sale Agreement ( ASA ) for a Sale Price, equivalent to the Purchase Price and a mark-up (profit) to be settled on deferred payment basis. MISC shall issue Islamic MTN to Investors to evidence its obligation to settle the Sale Price to Investors. 18