ISSUANCE OF UP TO RM MILLION NOMINAL VALUE MEDIUM-TERM NOTE ( MTN ) PROGRAMME ( MTN PROGRAMME )

Transcription

1 ISSUANCE OF UP TO RM MILLION NOMINAL VALUE MEDIUM-TERM NOTE ( MTN ) PROGRAMME ( MTN PROGRAMME ) PRINCIPAL TERMS AND CONDITIONS 1. BACKGROUND INFORMATION 1.1 ISSUER (i) Name : Sunway Iskandar Sdn Bhd ( SISB or Issuer ) (formerly known as Semerah Cahaya Sdn Bhd). (ii) Address : Registered Office: Level 16, Menara Sunway, Jalan Lagoon Timur, Bandar Sunway, Petaling Jaya, Selangor Darul Ehsan. Correspondence Address: Level 16, Menara Sunway, Jalan Lagoon Timur, Bandar Sunway, Petaling Jaya, Selangor Darul Ehsan. (iii) Business registration no. : A. (iv) Date/place of incorporation : Incorporated in Malaysia on 17 October (v) Date of listing : Not applicable. (vi) Status on residence : Resident controlled company. (vii) Principal activities : The business of property development and property investment. (viii) Board of Directors (as at 31/12/2012) : Name Tan Sri Dato Seri Dr. Jeffrey Cheah Fook Ling, AO Chong Chang Choong (Alternate to Tan Sri Dato Seri Dr. Jeffrey Cheah Fook Ling, AO) Resident Status I/C No. Resident Resident

2 1. BACKGROUND INFORMATION 1.1 ISSUER Name Resident Status I/C No. Ho Hon Sang Resident Selvendran Katheerayson Resident Mohamad Hishammudin Bin Hamdan Resident (ix) Structure of shareholdings and names of shareholders or in the case of public company, names of all substantial shareholders (as at 31/12/2012) : Name Sunway City Sdn Bhd Dayang Bunting Ventures Sdn Bhd Name Sunway City Sdn Bhd Dayang Bunting Ventures Sdn Bhd No. of ordinary shares held % 1,368, ,232, No. of preference % shares held 135,432, ,968, (x) Authorised share capital, issued share capital and paid-up share capital (as at 31/12/2012) : Authorised: RM12,000,000 divided into: (a) 6,000,000 ordinary shares of RM1.00 each; and (b) 600,000,000 non-convertible non-cumulative redeemable preference shares of RM0.01 each. Issued and fully paid-up: RM7,164,000 divided into: (a) 3,600,000 ordinary shares of RM1.00 each; and (b) 356,400,000 non-convertible non-cumulative preference shares of RM0.01 each

3 1. BACKGROUND INFORMATION 1.1 ISSUER (xi) Disclosure of the following: if the Issuer or its board members have been convicted or charged with any offence under the securities laws, corporation laws or other laws involving fraud or dishonesty in a court of law, for the past five years prior to the date of application; and if the Issuer has been subjected to any action by the stock exchange for any breach of the listing requirements or rules issued by the stock exchange, for the past five years prior to the date of application. : (a) The Issuer or its board members have not been convicted or charged with any offence under the securities laws, corporation laws or other laws involving fraud or dishonesty in a court of law, for the past five years prior to the date of the application to the SC. 1.2 Originator (in the case of asset-backed securities) Not applicable. (b) The securities of the Issuer is not listed on any stock exchange and hence no action has been taken against the Issuer by any stock exchange

4 (a) Names of parties involved in the proposed transaction (i) Principal Adviser : Public Investment Bank Berhad (20027-W) ( PIVB ). (ii) Lead arranger : PIVB. (iii) Co-arranger(s) : Not applicable. (iv) Solicitors : Messrs Albar & Partners. (v) Financial Adviser : Not applicable. (vi) Technical Adviser : Not applicable. (vii) Bond Trustee : Not applicable. (viii) Guarantor : Sunway Berhad ( D) ( SB ) upon the Issuer becoming a subsidiary of Sunway City Sdn Bhd. Prior to the corporate guarantee to be provided by SB, there will not be any other guarantor. (ix) Valuer : Not applicable. (x) Facility Agent : PIVB. (xi) (xii) Primary subscriber(s) and amount subscribed (where applicable) Underwriter(s) and amount underwritten : Not applicable. : Not applicable. (xiii) Central Depository : Bank Negara Malaysia ( BNM ) (xiv) Paying Agent : BNM. (xv) Reporting Accountants : Not applicable. (xvi) Calculation Agent : Not applicable. (xvii) Others (1) Security Agent : PIVB. (2) Sole Investor : Public Bank Berhad (6463-H) ( PBB )

5 (b) Facility description : Issuance of MTN of up to RM675,000,000 in nominal value pursuant to MTN Programme. The MTN may be issued in one or more series. Each issuance of the MTN under the MTN Programme may be issued in one or more series. (c) Issue/ debt programme size : Up to RM675,000,000 in nominal value. (d) (e) Tenure of the MTN programme Availability period of debt programme (or facility) The aggregate nominal value of outstanding MTN issued under the MTN Programme shall not exceed RM675,000,000 at any point in time. The first issuance of the MTN shall be made within three (3) months from the date of the Securities Commission Malaysia s ( SC ) approval of the MTN Programme. : MTN Programme Up to ten (10) years commencing on the date of first issuance of the MTN. Each MTN Each series shall be issued for tenures of more than one (1) year up to ten (10) years from the respective issue dates provided always that the MTN mature on or prior to the expiry of the MTN Programme. : The MTN Programme is available upon compliance of all the conditions precedent for the first issuance of MTN until the date falling three (3) years from the date of the first issuance under the MTN Programme. (f) Interest/Coupon rate : The coupon rates for the MTN shall be determined prior to or at the point of each issuance. (g) (h) Interest/Coupon payment frequency Interest/Coupon payment basis : Semi-annually in arrears from the relevant issue date of the MTN. : Actual number of days elapsed based upon a 365-day year

6 (i) Security/Collateral, where applicable : The MTN shall be secured against the following securities to be created in favour of the Security Agent: (i) First legal charge under the provisions of the National Land Code over the lease ( Lease ) registered vide Presentation Number 72179/2012 in respect of one (1) piece of freehold land held under issue document of title HS(D) PTD No , Mukim Pulai, Daerah Johor Bahru, Johor ( Land ) by the Issuer; (ii) First party debenture creating first fixed and floating charges over the Issuer s assets, both present and future which debenture shall rank pari passu in point of priority and security with the debenture created to secure the bridging loan facility of RM20 million (whereby the aggregate drawings and the subsequent redrawing shall not exceed RM190 Million) granted by the Sole Investor to the Issuer ( Bridging Loan Facility ); (iii) Assignment and charge over Designated Accounts (as set out in paragraph 2 (k) below) (for the avoidance of doubt, in the case of the Housing Development Account, to the extent permitted by law); (iv) A letter of undertaking ( Letter of Undertaking ) in form and substance satisfactory to the Sole Investor duly executed by SB in favour of the Sole Investor whereby SB undertakes: (a) to remain as single shareholder (and the holding company) of Sunway City Sdn Bhd; (b) to cause Sunway City Sdn Bhd NOT to reduce or dilute its present shareholdings of 38% of the issued and paid up share capital in the Issuer without consent of the Sole Investor and to cause Sunway City Sdn Bhd to own and to continue to own (legally and beneficially) at least 51% of the issued and paid up capital in the Issuer on, and subsequent to 5 September 2015, being the date (which - 6 -

7 date is known as Cut Off Date ) falling 36 months from 5 September 2012, (being the date of first (1st) drawdown from the Term Loan Facility (as defined herein)); and (c) to execute a corporate guarantee in form and substance prescribed by Sole Investor in favour of the Security Agent upon the Issuer becoming a subsidiary of Sunway City Sdn Bhd whereby SB shall guarantee the redemption of the MTN of up to an amount proportionate to Sunway City Sdn Bhd s shareholdings in the Issuer; (v) Upon the Issuer becoming a subsidiary of Sunway City Sdn Bhd, corporate guarantee from SB guaranteeing the redemption of the MTN of up to an amount proportionate to Sunway City Sdn Bhd s shareholdings in the Issuer. Prior to the corporate guarantee to be provided by SB, there will not be any other guarantor. (j) Details on utilisation of proceeds by issuer and originator (in the case of ABS). If proceeds are to be utilized for project or capital expenditure, description of the project or capital expenditure, where applicable. : Proceeds raised from the issuance of MTN shall be utilised by the Issuer for the following purposes: (i) Firstly, the proceeds from the first series are to be utilised towards refinancing the principal amount outstanding under the term loan facility of RM million ( Term Loan Facility ) granted by the Sole Investor to the Issuer to part finance the purchase of the Lease and to finance the payment of premium for the extension of the Lease for a further period of thirty (30) years; and (ii) Secondly, the proceeds from subsequent issuances of the series are to be utilised towards repayment of the principal amount outstanding under the Bridging Loan Facility at any time and from time to time

8 (k) Sinking fund and designated accounts, where applicable : The Issuer shall open and maintain the following Designated Accounts with a licensed financial institution which is acceptable to the Security Agent, as follows: (i) Proceeds Account The Proceeds Account is to capture the following: (1) the redemption sum (as shall be agreed between the Issuer and the Sole Investor) from the sale and/or disposal by the Issuer of the properties erected or to be erected on part of the Land and undeveloped portions of the Land; and (2) proceeds of insurance/takaful claims and/or any claims received in respect of third party performance bonds and/or guarantees or any other compensation received in relation to the Land. The Proceeds Account is to be solely operated by the Security Agent. Monies in Proceeds Account shall be withdrawn and used for the following purposes: (A) to the extent monies standing to the Proceeds Account under paragraph (1) above, for the redemption of the principal outstanding of the MTN falling due and payable; and (B) to the extent monies standing to the Proceeds Account under paragraph (2) above, for funding the construction works of the properties to be erected on the Land, to make good the damage or loss or disrepair to the buildings together with all fixtures thereon erected on the Land or to pay the compensation due to the purchasers to whom the Issuer has sold and/or disposed properties erected or to be erected on part of the Land Provided That: - 8 -

9 such withdrawal must be accompanied by relevant supporting documents evidencing the amount payable to make good the works on the properties erected on the Land or such damage or loss or disrepair caused by the insured events furnished by the Issuer; no Event of Default has occurred under the MTN Programme and is subsisting at the time such withdrawal is made or would, following such withdrawal, occur. (ii) Housing Development Account ( HDA ) The HDA is to capture the remaining proceeds from the sale and/or disposal of the residential units to be developed on the Land after the deduction of the redemption sum. The HDA is to be solely operated by the Issuer. Monies in the HDA shall be used towards financing of development costs, payment of interest/coupon of the MTN falling due and payable, finance costs and other permitted costs in accordance with the provisions under the Housing Development (Control and Licensing) Act 1966 ( Housing Development Act ) and the Housing Development (Housing Development Account) Regulations 1991 ( HDA Regulations ). For the avoidance of doubt, if an Event of Default has been declared, withdrawal of monies standing to the credit of the HDA shall, to the extent permitted by law, be subject to the Sole Investor s consent. The HDA is to be opened at the time the same shall be required to be opened in accordance with the requirements under the Housing Development Act

10 Funds held in the Designated Accounts may be utilised to fund Permitted Investments (as defined in Paragraph 2(v)(vii) below), provided always that such Permitted Investments shall mature and the proceeds be remitted into the Designated Accounts no later than five (5) business days before any payment obligations become due and payable. (l) Rating : Not applicable as the MTN will not be rated. The provisions relating to non-rated issue as stated under Paragraph 4.11 of the Private Debt Securities Guidelines issued by the SC shall be complied with. (m) Mode of issue : Private placement without prospectus. The issuance of the MTNs shall be in accordance with: (i) the Participation and Operation Rules for Payments and Securities Services issued by Malaysian Electronic Clearing Corporation Sdn Bhd ( MyClear ) ( MyClear Rules ); and (n) Selling restriction, including tradability (i.e. tradable or non-tradable) (ii) the Operational Procedures for Securities Services issued by MyClear ( MyClear Procedures ) or their replacement thereof (collectively MyClear Rules and MyClear Procedures ) available from time to time. : Selling Restriction At Issuance: The MTN shall not constitute an offer to the public within the meaning of section 4(6) of the Companies Act 1965 and shall not be offered, sold or delivered, directly or indirectly, nor may any document or other material in connection therewith be distributed in Malaysia, other than to persons falling within Schedule 6 (or Section 229(1)(b)) or Schedule 7 (or Section 230(1)(b)), read together with Schedule 9 or section 257(3) of the CMSA. Further, the MTN are debentures which by their terms shall only be held by a single holder, and accordingly the MTN fall within Paragraph 4 Schedule 8 of the CMSA. Selling Restriction Thereafter: The MTN are non-transferable and non-tradable

11 (o) (p) Listing status and type of listing Other regulatory approvals required in relation to the issue, offer or invitation and whether or not obtained : The MTN will not be listed on any stock exchange. : Not applicable. (q) Conditions precedent : Conditions Precedent to the first issuance Conditions precedent to the first issuance of the MTN shall include conditions precedent customary for transactions of this nature, including, but not limited to, the following: (i) All relevant Financing Documents (as defined in Paragraph 2 (v) below) shall have been executed and duly endorsed as exempted under the Stamp Duty Exemption (No 23) Order 2000 and where relevant, presented for registration; (ii) Certified true copies of the Certificate of Incorporation and the Memorandum and Articles of Association of each of the Issuer and SB; (iii) Certified true copies of the latest Forms 24, 44 and 49 of each of the Issuer and SB; (iv) (v) (vi) (vii) A certified true copy of a board resolution of the Issuer authorising, among others, the execution of the Financing Documents; A certified true copy of a board resolution of SB authorising, among others, the execution of the Letter of Undertaking (as referred to in paragraph 2 (i) above); A list of the Issuer s authorised signatories and their respective specimen signatures; A report of the relevant company search of the Issuer and SB conducted by the Solicitors; (viii) A report of the relevant winding up search conducted by the Solicitors on the Issuer and SB or the relevant statutory declaration of the Issuer and SB;

12 (ix) (x) (xi) (xii) (xiii) Evidence of approval from the SC shall have been obtained and the Issuer s compliance with all conditions of such approval and, where applicable, all other regulatory authorities for the proposed MTN Programme; Confirmation that the Designated Accounts shall have been duly opened and charged in favour of the Security Agent provided that in the case of the HDA, the HDA is to be opened only at the time the same shall be required to be opened in accordance with the requirement for the same under the Housing Development Act; Representations and warranties of the Issuer remain true and correct in all material respects and no Event of Default or potential Event of Default has occurred and is continuing; The Lead Arranger has received a legal opinion from the Solicitors advising with respect to the legality, validity and enforceability of the Financing Documents and the fulfilment of all the conditions precedent; Payment or arrangement for payment of all relevant fees and amounts due by the Issuer in connection with the MTN Programme; (xiv) For purposes of the issuance of the first series of MTN, the redemption statement from PBB in respect of the amount owing under the Term Loan Facility granted by PBB to the Issuer for purpose of refinancing has been obtained; (xv) First legal charge under the provisions of the National Land Code over the Lease shall have been presented for registration at the relevant land office and the result of the land search conducted on the Land reveals that there is no encumbrance created over the Lease other than private caveats lodged by the Sole Investor for purposes of the Term Loan Facility and the Bridging Loan Facility;

13 (xvi) Such other terms as may be required by the Lead Arranger and/or advised by the Solicitors and agreed with the Issuer. (r) Representations and warranties : To include but not limited to the following: (i) Status: (a) (b) Each of the Issuer, SB and the Security Party (Security Party refers to SB (in the case where the corporate guarantee has been executed) and any other party from time to time providing security for the payment and repayment of the MTNs and references to "Security Party" include references to any of them) is a company duly incorporated and validly existing under the laws of Malaysia; Each of the Issuer, SB and the Security Party has the power to own its assets and carry on its business as it is being conducted; (ii) Non-Violation: The entry into and performance by the Issuer, SB and the Security Party (which is a body corporate) of, and the transactions contemplated by, the Financing Documents do not and will not conflict with: (a) (b) (c) their constitutional documents; any law or regulation applicable to them; or any agreement or instrument binding upon them or any of their assets; (iii) Power and Authority: Each of the Issuer, SB and the Security Party has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Financing Documents to which it is a party and the transactions contemplated by those Financing Documents;

14 (iv) (v) Authorisation: All authorisations, consents, approvals, filings or registration required or desirable: (a) (b) (c) to enable the Issuer, SB and the Security Party to lawfully enter into, exercise their rights and comply with their respective obligations in the Financing Documents to which any of them is a party; to make the Financing Documents to which the Issuer and/or SB and/or the Security Party is or are party admissible in evidence in its or their jurisdiction of incorporation; for each of the Issuer, SB and the Security Party to carry on its business, and which are material; have been obtained or affected and are in full force and effect; No Proceedings Pending Or Threatened: No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency have been started or, to the best of its knowledge and belief after due and careful enquiry threatened against the Issuer or SB or the Security Party save and except for such litigation, arbitration or administrative proceedings in respect of which the Issuer or SB or the Security Party has entered its defence with regard to such proceedings within thirty (30) days from the date of commencement of such proceedings; (vi) Appointment of Receiver, Legal Process: No step has been taken by the Issuer or SB or the Security Party nor any legal proceeding been started or, to the best of its knowledge and belief after due and careful enquiry, threatened for the dissolution, liquidation or winding up of the Issuer or SB or the Security Party or for the appointment of a receiver or similar officer in respect of all or any part of the business or assets of the Issuer or SB or the Security Party and no demand under Section 218 (2) of the Companies Act 1965 has been received by the Issuer or SB or the Security Party;

15 (vii) Binding Obligations: The obligations expressed to be assumed by each of the Issuer, SB and the Security Party in each Financing Document to which any of them is a party are, subject to any general principles of law limiting its obligations, legal, valid, binding and enforceable; (viii) No default: (a) No Event of Default or potential event of default is continuing or might reasonably be expected to result from the issuance of the MTN; (b) No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on the Issuer or to which the Issuer s assets are subject and which has a Material Adverse Effect; (ix) Accounts: The Issuer s financial statements have been prepared on a basis consistently applied in accordance with the generally accepted accounting principles and standards in Malaysia and give a true and fair view of the results of its operations for that year and the state of its financial affairs at that date, and in particular disclose or reserve against such liabilities (actual or contingent) of the Issuer; (x) No misleading information: (a) Any factual information provided by the Issuer to and/or for the benefit of the Sole Investor in writing in connection with or as required under the Financing Documents was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated and is not misleading in any respect. (b) Any financial projections provided by the Issuer to and/or for the benefit of the Sole Investor have been prepared on the basis of recent historical information and on the basis of reasonable assumptions;

16 (xi) (xii) Changes: No event or series of events has occurred (including, without limitation, the revocation or non-renewal of any authorisations, consents, approvals, filings or registration) which would have a Material Adverse Effect; and Such other representations and warranties as may be required by the Lead Arranger and/or advised by the Legal Counsel. Material Adverse Effect means, in relation to the Issuer or SB or any Security Party, any event which may have any material adverse effect on the financial condition or results of the operations of the Issuer or SB or such Security Party or any event, the occurrence of which may materially and adversely affect the ability of the Issuer or SB or such Security Party to perform any of its obligations under any of the Financing Documents. (s) Event of default (or enforcement of event, where applicable) : To include but not limited to the following events of default ( Event of Default ): (i) Payment Defaults: At any time, the Issuer fails to pay any amount due from it under any MTN and/or any other amounts due from it under any of the Financing Documents on the due date or, if so payable, on demand. (ii) Breach of Obligations: The Issuer or SB or the Security Party does not comply with any provision of the Financing Documents or under any undertaking or arrangement entered into in connection therewith (other than a payment obligation referred under Payment Defaults above) which have a Material Adverse Effect and, in the case of a failure capable of being remedied, such failure has not been remedied within fourteen (14) days or such other longer period as may be agreed by the Sole Investor after the Issuer or SB or such Security Party becomes aware of or having been notified of the failure, whichever is the earlier, to the satisfaction of the Sole Investor;

17 (iii) Misrepresentation: Any representation or statement made or deemed to be made by the Issuer or SB or the Security Party in the Financing Documents or any other document delivered by or on behalf of the Issuer or SB or the Security Party under or in connection with any Financing Document is or proves to have been incorrect or misleading in any material respect when made or deemed to be made which have a Material Adverse Effect and in the case where remedy is possible, the incorrect representation or statement remains uncured for fourteen (14) days or such other period as may be agreed by the Sole Investor after the Issuer becomes aware of or having been notified of the failure, whichever is the earlier; (iv) Cross Default: Any indebtedness of the Issuer or SB or the Security Party becomes due and is not paid when due and payable (after the expiry of any originally applicable grace period) or is capable of being declared due prematurely by reason of a default or an event of default (however described). No Event of Default will occur under this subparagraph (iv) if the aggregate amount of indebtedness is less than RM500,000.00; (v) Appointment of Receiver: An encumbrancer takes possession of or a trustee or administrator or a receiver, or liquidator or officer similar to any of the foregoing is appointed in respect of all or any part of the assets of the Issuer or SB or the Security Party or distress or any form of execution is levied or enforced upon or sued out against any such assets and is not discharged within thirty (30) days after being levied, enforced or sued out or any security interest which may for the time being affect any of the assets of the Issuer or SB or the Security Party;

18 (vi) Winding Up: The Issuer or SB or the Security Party convenes a meeting of its creditors or proposes or makes any arrangement (including a scheme of arrangement under Section 176 of the Companies Act, 1965) or composition with, or any assignment for the benefit of, its creditors or a petition is presented or a meeting is convened for the purposes of considering a resolution for the winding-up of the Issuer or SB or the Security Party or a winding-up order is made against the Issuer or SB or the Security Party or any event occurs by virtue of which the Issuer or SB or the Security Party may be dissolved pursuant to the documents which establish the constitution of the Issuer or SB or the Security Party or pursuant to which the courts of Malaysia or any other competent court would be entitled to order the dissolution of the Issuer or SB or the Security Party or a moratorium is agreed or declared in respect of or affecting all or a material part of or a particular type of the indebtedness of the Issuer or SB or the Security Party; (vii) Material Adverse Change: Any event or series of event has occurred or which might occur and which, in the opinion of the Sole Investor will result in the occurrence of an Event of Default or which would have a Material Adverse Effect and in the case of an occurrence of such event or situation which in the opinion of the Sole Investor is capable of being remedied, the Issuer or SB or the Security Party does not remedy it within a period of thirty (30) days after the Issuer or SB or the Security Party becomes aware or having been notified by the Sole Investor of the event or situation or such other remedy period as may be allowed under the Financing Documents for the relevant event or situation;

19 (viii) Invalidity or Illegality: Any provision of the Financing Documents is or becomes or is alleged by or on behalf of the Issuer or SB or the Security Party to be, for any reason, invalid, unenforceable or unlawful and in the case of such invalidity or unenforceability or unlawfulness capable of being avoided or remedied as allowed under the law, such invalidity or unenforceability or unlawfulness has not been avoided or remedied within fourteen (14) days or such other longer period as may be agreed by the Sole Investor after the Issuer or SB or such Security Party becomes aware of or having been notified of the invalidity or unenforceability or unlawfulness, whichever is earlier, to the satisfaction of the Sole Investor; (ix) Legal Proceedings: Any legal proceeding, suit or action involving a monetary claim in excess of Ringgit Malaysia One Million (RM1,000,000.00) is instituted against the Issuer or SB or the Security Party by any third parties PROVIDED THAT this event shall not constitute as an Event of Default if the Issuer or SB or the Security Party: (1) has filed its defence in respect of such legal proceeding, suit or action within thirty (30) days from the date of commencement of the same; and (2) has caused such legal proceeding, suit or action to be withdrawn, struck out or ceased within ninety (90) days or such other extended period as may be agreed by the Sole Investor from the date of the commencement of the same; (x) Licence: There is a revocation, withholding or modification of a licence, authorisation or approval that impairs or prejudices the Issuer s or SB s or the Security Party s ability to comply with the terms and conditions of the Financing Documents or the MTN or any other document relating to the issue offer or invitation in respect of the MTN;

20 (t) Covenants : Positive Covenants (xi) Lease: The Lease is lawfully terminated or forfeited for any reason whatsoever; (xii) Shareholders Agreement: Any variation in the Shareholders Agreement dated 19 December 2011 and made between Sunway City Sdn Bhd, Dayang Bunting Venture Sdn Bhd and the Issuer which results or which would, in the opinion of the Sole Investor, result in the Issuer not being a subsidiary of Sunway City Sdn Bhd effected without the Sole Investor s consent; (xiii) Repudiation: the Issuer or SB or the Security Party purports to repudiate any provision of the Financing Documents (xiv) such other events of default as may be required by the Lead Arranger and/or as may be advised by the Legal Counsel and agreed by the Issuer. Consequences of an occurrence of an Event of Default: Upon the occurrence of any of the Events of Default the Sole Investor may declare that such Event of Default has occurred in respect of all the MTN, and that notwithstanding the stated maturity of all the MTN then outstanding, all MTN then outstanding and the interest accruing thereunder up to the date of the said declaration shall become immediately due and payable whereupon the Sole Investor shall be entitled to take and/or cause to take such proceedings against the Issuer and/or SB and/or the Security Party as it may think fit and take and/or cause to take such other steps to enforce the repayment of the MTN and the provisions of the Financing Documents and its rights thereunder. To include but not limited to the following: (i) Conduct of Business: The Issuer shall exercise reasonable diligence in carrying out its business and affairs in a proper and efficient manner and in accordance with sound financial and commercial standards and practices and will ensure that all necessary approvals and licences required for it to carry out its business are obtained;

21 (ii) Financial Information: The Issuer shall no later than one hundred and eighty (180) days after the end of its financial year, furnish to the Sole Investor and the Facility Agent, one (1) copy of its annual audited financial statements (including statement of financial position, statement of comprehensive income and statement of cash flows), and any other accounts, report, notice, circular, statement or other document issued by the Issuer to its members (in their capacity as such); (iii) Other Information: The Issuer shall promptly provide to the Sole Investor and the Facility Agent any information relating to its affairs, as the Sole Investor and the Facility Agent may from time to time reasonably require; (iv) Compliance Certificate: The Issuer shall no later than one hundred and eighty (180) days after the end of its financial year provide to the Sole Investor and the Facility Agent a certificate signed by an authorised signatory of the Issuer relating to the financial year prior to the relevant date, which certificate shall state the following matters: (a) whether or not the Issuer has observed and performed all its obligations, covenants, terms and conditions and all other provisions under or pursuant to the MTN or the Financing Documents; (b) whether or not any Event of Default has happened, existed or exists, from the date the MTN were first issued and if in the affirmative to specify the details of such Event of Default; (v) Preparation of Accounts: it shall keep proper books and accounts at all times on a basis consistently applied in accordance with the laws of Malaysia and generally accepted accounting principles and standards in Malaysia, and will provide the Sole Investor, the Facility Agent and any person appointed by it (e.g. auditors) access to such book and accounts subject to prior written notice and during normal business hours;

22 (vi) Paying Agent: The Issuer shall at all times maintain a Paying Agent with a specified office in Malaysia; (vii) Compliance with Financing Documents: The Issuer shall promptly comply with the terms and perform and carry out all its obligations under the MTN and the Financing Documents (including but not limited to redeeming the MTN on the relevant maturity dates or any other date on which the MTN are due and payable) and ensure that it shall immediately notify the Sole Investor and the Facility Agent in the event the Issuer is unable to fulfil or comply with any of the provisions of the Financing Documents; (viii) Immediate Notification: The Issuer shall upon becoming aware, immediately notify the Sole Investor and the Facility Agent of the following: (a) any change in the utilisation of proceeds from the MTN from that set out in the Financing Documents; (b) any substantial change in the nature of its business; (c) any change in its withholding tax position or taxing jurisdiction; (d) any circumstances that has occurred that would have a Material Adverse Effect on the Issuer or any security created for the MTN; and (e) any other matter that would have a Material Adverse Effect; (ix) Notification by Facility Agent: The Issuer shall procure that the Facility Agent notifies the Sole Investor in the event that the Facility Agent does not receive, in the manner provided by the Financing Documents, the monies payable on the due date for payment in respect of the MTN or any of them;

23 (x) Events of Default: The Issuer shall promptly give notice to the Sole Investor and the Facility Agent of the occurrence of any Event of Default or of such other right or remedy under the terms, provisions and covenants of the MTN and the Financing Documents which shall have become enforceable or of any potential Event of Default forthwith upon becoming aware thereof, and it shall take all reasonable steps and/or such other steps as may be reasonably requested by the Sole Investor or the Facility Agent to remedy and/or mitigate the effect(s) of the Event of Default or the potential Event of Default; (xi) Authorisations: The Issuer shall promptly: (a) obtain, comply with and do all that is necessary to maintain in full force and effect; and (b) supply certified copies to the Sole Investor and the Facility Agent of, any authorisations, consents, approvals, filings or registrations required to enable it to perform its obligations under the Financing Documents and to ensure the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation; (xii) Compliance with laws: The Issuer shall comply in all respects with all laws to which it may be subject, if failure so to comply would have a Material Adverse Effect; (xiii) Legal Existence: The Issuer shall do all things necessary to preserve, renew and keep in full force and effect its legal existence and the authorisations, consents and licences which are material to the conduct of its business; (xiv) Insurance: The Issuer shall: (a) maintain and/or cause to be maintained such insurances in respect of its assets and businesses against such risks (including but not limited to third party risks and workmen s compensation) which a prudent company carrying on a business similar to that of the Issuer would normally insure;

24 (b) ensure that the Security Agent s name is endorsed as loss-payee and beneficiary in respect of the insurances mentioned in paragraph (i) above; (xv) Change of Business: The Issuer shall ensure and shall procure that no substantial change is made to the general nature of the business of the Issuer from that carried on at the date of the Subscription Agreement; (xvi) Auditors: The Issuer shall appoint from time to time such auditor or firm of auditors acceptable to the Sole Investor or the Facility Agent and authorise such auditor or firm of auditors to supply the Sole Investor or the Facility Agent with a certified copy of any communication sent by such auditor to the Issuer and further to communicate directly with the Sole Investor or the Facility Agent at any time in respect of any matter connected with the accounts and operations of the Issuer; (xvii) Designated Accounts: The Issuer shall open and maintain the Designated Accounts (as defined herein) provided in the case of the HDA, the same shall be opened in accordance with the requirement for the same under the provisions of the Housing Development Act and the HDA Regulations at the relevant time and the Issuer shall comply with the provisions in respect of each of the Designated Accounts; (xviii) Capital Markets & Services Act 2007 ( CMSA ) and the SC: The Issuer shall comply with all applicable laws including the provisions of the CMSA and/or the directive, written notices, circulars or guidelines issued by the SC from time to time affecting the MTN; and

25 (xix) Valuation: the Issuer shall procure a valuation of the Land to be conducted by an independent certified professional valuer (within the panel of valuers approved by the Bank) in accordance with the standards and practices for the time being accepted in the relevant industry and with such other requirements as the Sole Investor may stipulate once every three (3) years (with the first valuation being a full valuation and subsequent valuations may be an updated desktop valuation) and submit the valuation report prepared for the benefit of the Sole Investor to the Facility Agent and the Sole Investor. Negative Covenants: The Issuer shall not undertake the following without prior written consent of the Sole Investor: (i) Constitutional Documents: The Issuer shall not change its memorandum and articles of association in a manner which would be inconsistent with the provisions of the Financing Documents or in a manner which would result in a Material Adverse Effect; (ii) Merger: The Issuer shall not consolidate or amalgamate with, or merge with or into or transfer all or substantially all its assets to another entity, or enter into any demerger, reconstruction or winding up of itself; (iii) Invest, Acquire Shares or Debentures: The Issuer shall not invest, acquire shares or debentures in or with any company or person (including the creation of any subsidiary) nor acquire or purchase assets save and except for such investment, acquisition or loan made in the ordinary course of business on ordinary commercial terms and on the basis of arm s length transaction and in the absence of the occurrence of any Event of Default;

26 (iv) Alteration of Paid Up Capital: The Issuer shall not decrease or in any way whatsoever alter (other than by way of increase) the authorised or issued capital of the Issuer whether by varying the amount, structure or value thereof or the rights attached to thereto or convert any of its share capital into stock or by consolidation dividing or sub-dividing all or any of its shares; (v) Negative Pledge: Save and except for the Security/Collateral referred to in paragraph 2(i) above, the security/collateral created in favour of the Sole Investor to secure the Term Loan Facility and the Bridging Loan Facility, liens arising in the ordinary course of operations and by the operation of law and not by way of contract and any netting or set arrangement entered into in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances, the Issuer shall not create or permit to create or to subsist any security interest over all or any part of the assets (be it present or future) belonging to itself; (vi) Restriction on Transactions: The Issuer shall not enter into any transaction with person, firm or company or establish any exclusive purchasing or sales agency, or enter into any transaction whereby the Issuer might pay more than the ordinary commercial price for any purchase or might receive less than the full commercial price (subject to normal trade discounts) for its products; (vii) Surrender rights: The Issuer shall not surrender, transfer, assign, relinquish or otherwise dispose of any of its rights and interest under the Lease, the Financing Documents or any of them; (viii) Utilisation of Proceeds: The Issuer shall not use the proceeds of the MTN for any purpose other than for the purpose set out in paragraph 2(j) above;

27 (ix) Incur Liability: The Issuer is not allowed to incur additional indebtedness without the Sole Investor s prior written consent save and except for the Term Loan Facility and the Bridging Loan Facility; (x) Payment or Repayment of Advances: The Issuer shall not make payments and/or repayment (whether in relation to principal, interest or otherwise) to its directors or its shareholders in connection with loans or financing or advances from its directors and/or shareholders other than repayment for cash management purposes, normal trade credit or trade guarantees or temporary loan to customers, contractors or suppliers which are related companies in the ordinary course of business; (u) Provisions on buy-back and early redemption (xi) Dividends and Distributions: The Issuer shall not declare or pay any dividends or make any distribution whether income or capital if an Event of Default has been declared, is continuing and has not been waived, or if following such declaration, payment or distribution, an Event of Default would occur; (xii) Inter-Company Loans: The Issuer shall not grant any inter-company loan that are without fixed repayment terms; and (xiii) such other covenants as may be required by the Lead Arranger and/or as may be advised by the Legal Counsel and agreed by the Issuer. : Buy-back The MTN shall not be transferable and tradable in the secondary market and as such, none of the MTN can be purchased by the Issuer or any its subsidiaries or agent(s) of the Issuer in the open market or by way of private treaty

28 Early redemption The Issuer may, at its option, redeem each issuance of the MTN partially/ in full of the outstanding MTN together with the accrued interest on any coupon payment dates occurring during the tenure of the selected MTN by giving the Sole Investor and the Facility Agent not less than thirty (30) days prior written notice. The MTN that are redeemed shall forthwith be cancelled or treated as cancelled and accordingly shall not be re-sold or re-issued and the limit of the Programme shall be reduced accordingly. (v) Other principal terms and conditions for the MTN (i) Form and denomination (ii) Status (iii) Default interest (iv) Redemption : Form Each series shall be represented by a Global Certificate to be deposited with BNM and shall be in bearer form. No physical delivery of the MTN is permitted. Denomination The MTN shall be in denominations of RM500,000 or in multiples of RM500,000. : The MTN shall constitute direct, unsubordinated, secured and unconditional obligation of the Issuer ranking pari passu in all respect without preference or priority among themselves. : Up to 3.5% above the prevailing Base Lending Rate of the Sole Investor as shall be determined by the Sole Investor in its sole discretion. For the purpose of this paragraph 2(v)(iii), Base Lending Rate shall mean the rate of interest per annum which is from time to time quoted by the Sole Investor as its Base Lending Rate or if the Base Lending Rate is no longer applicable, such other similar or equivalent rate of interest by whatsoever name called or quoted by the Sole Investor. : Unless previously redeemed and cancelled, the MTN will be redeemed by the Issuer at 100% of their nominal value on their respective maturity dates

29 (v) Taxation (vi) Financing Documents (vii) Permitted Investments : 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 the Government of Malaysia, or any authority thereof or therein having power to tax unless such withholding or deduction is required by law. In the event that such withholding or deduction is required by law, the Issuer shall be obliged to gross up for such withholdings or deductions. For the avoidance of doubt, the Issuer s obligations to gross up does not apply to tax on the general income of the Sole Investor. : The Subscription Agreement, the Letter of Undertaking and the security documents constituting the Security/Collateral (as referred to in paragraph 2(i) above) : Permitted Investments shall mean: (a) deposits in income bearing accounts and negotiable certificates of deposits issued by licensed financial institutions (as defined in the Banking And Financial Institutions Act, BAFIA ) with a minimum rating of A3/P1 or AA-/MARC-1 as determined by RAM Rating Services Berhad or Malaysian Rating Corporation Berhad respectively (which does not result in the Issuer incurring any penalty on the principal portion of the Permitted Investment for any withdrawal prior to maturity); (b) medium term notes, treasury bills or financial instruments issued by the Government of Malaysia; (c) Other debt or capital market instruments of private entities having a long term rating of at least AAA and short term rating of P1 as determined by RAM Rating Services Berhad or its equivalent by Malaysian Rating Corporation Berhad; and/or

30 (d) Investment in money market instruments where there is the flexibility of early withdrawal without incurring any penalty such as bankers acceptance or promissory notes or certificates of deposit issued by any bank licensed pursuant to the BAFIA and having a minimum long term rating of A1 and short term rating of P1 or its equivalent; and (e) Such other investments approved by the Sole Investor. Upon maturity of the Permitted Investments and whenever funds are required to repay amount that are due and payable under the MTN Programme, the proceeds (which shall mean the principal plus interest) shall be remitted back to the same Designated Accounts from where it originated. (viii) Governing Laws (ix) Jurisdiction : The Laws of Malaysia. : The parties shall unconditionally and irrevocably submit to the non-exclusion jurisdiction of the Courts of Malaysia