CIMB ISLAMIC BANK BERHAD (Company No. 671380-H) GENERAL FACILITY AGREEMENT Revised on 1.9.17
THIS GENERAL FACILITY AGREEMENT is made on the day and year stated in Item 1 of the Schedule 1 hereto. BETWEEN (1) CIMB ISLAMIC BANK BERHAD (Company No. 671380-H) a company incorporated in Malaysia with its registered office at Level 13, Menara CIMB, Jalan Stesen Sentral 2, Kuala Lumpur Sentral, 50470 Kuala Lumpur and its, headquarter at Level 34, Menara Bumiputra-Commerce, No 11 Jalan Raja Laut, 50350 Kuala Lumpur, a branch office at the address as stated in Item 2 of the Schedule 1 hereto (hereinafter referred to as the Bank ) of the one part. AND (2) The person(s) named in Item 3 of the Schedule 1 hereto (hereinafter referred to as the Customer ) of the other part. ARTICLE I DEFINITIONS AND INTERPRETATION SECTION 1.01 DEFINITIONS In this Agreement, unless the context otherwise requires, or unless it is otherwise expressly provided, the following expressions shall have the meaning respectively assigned to them thereunder: Additional Conditions Precedent Address for Service The additional conditions precedent to be satisfied by the Customer as set out in Item 14 of the Schedule 1 hereto. (a) Bank The Address as stated in Item Schedule 1 hereto. 2 of the (b) Customer The Address as stated in Item Schedule 1 hereto. 4 of the 1
AIBIM Asset Authorised Signatory(ies) Bank Bank s Purchase Price Bank s Sale Price The Association of Islamic Banking Institutions Malaysia. The asset as described in Item 5 of the Schedule 1 hereto and includes any part thereof. Any person or persons authorised, whether alone or jointly by resolution or the extract minutes of meeting of the Board of Directors of the Customer from time to time to sign or certify any document on behalf of the Customer. CIMB ISLAMIC BANK BERHAD (Company No. 671380-H) and having its registered office at Level 13, Menara CIMB, Jalan Stesen Sentral 2, Kuala Lumpur Sentral, 50470 Kuala Lumpur, Malaysia and its headquarter at level 34, Menara Bumiputra-Commerce, No 11 Jalan Raja Laut, 50350 Kuala Lumpur and a branch office at the address stated in Item 2 of the Schedule 1 hereto and includes persons deriving title thereunder and its successors-in-title and assigns. In respect of the Tawarruq transaction, the price at which the Bank purchases the Commodity from the Commodity Supplier as specified in the Purchase Request and the Letter of Offer. In respect of the Tawarruq transaction, the price at which the Bank sells the Commodity to the Customer in accordance with the Tawarruq transaction as specified in the General Conditions. Bank's Shariah Committee BFR means the Shariah Committee of the Bank established in accordance with the requirements of the IFSA and the Bank's Article of Association. The base financing rate for the Facilities (wherever applicable) that is determined by the Bank for the time being and from time to time. 2
BNM Business Day Bank Negara Malaysia and includes any entities assuming the role of the Central Bank of Malaysia. A day on which the Bank is open for business in the state where the branch of the Bank as stated in Item 2 of Schedule 1 hereto situates. Calendar Month That period of time commencing on the first (1 st ) day of a Calendar Month and ending on the last day of that same Calendar Month. Charge COF Commission Commodity The charge to be executed by the Customer and/or by the Security Party over land(s) and/or landed property(ies), as the case may be, following the provisions of the National Land Code and includes any variation, amendments and instruments supplemental to or which is expressed to be collateral or entered into pursuant to or in accordance with the terms of the charge and referred to in Section 6.01 hereof in favour of the Bank upon terms and conditions contained therein acceptable to the Bank. The cost of fund of the Bank of obtaining Ringgit deposits from the Interbank Islamic Money Market to fund the Facilities plus the cost of maintaining statutory reserves and complying with the liquidity and other requirements imposed from time to time by any law or by BNM or any other relevant authority having jurisdiction over the Bank from time to time. The commission charged by the Bank to the Customer under the Facilities (where applicable) as setoutinthe Letter of Offer Any Shariah-compliant commodity other than ribawi items in the category of medium of exchange such as currencies, gold, silver and debt instruments to be endorsed by the Bank's Shariah Committee and Commodities shall be construed accordingly. 3
Commodity Broker Commodity Supplier Companies Act Conditions Precedent Corporate Guarantor CPR Current Account-i Customer Customer s Sale Price In respect of the Tawarruq transaction, the commodity broker to whom the Bank or a third party as the Customer s agent shall sell the Commodity, and such Commodity Broker shall be advised by the Bank. In respect of the Tawarruq transaction, the commodity supplier from whom the Bank shall purchase the Commodity, and such Commodity Supplier shall be advised by the Bank. The Companies Act, 2 016 including all rules made thereunder and any statutory amendment or re-enactment thereof as may be made at any time and from time to time. The conditions precedent to be satisfied by the Customer as set out in Section 7.01. The company named in Item 11 of the Schedule 1 hereto and includes its successors-in-title. The ceiling profit rate for the Facilities (where applicable) which is used to calculate the Bank s Sale Price. The Current Account-i opened or to be opened by the Customer with the Bank in relation to the Facilities subject to the terms of this Agreement. The person(s) named in Item 3 of the Schedule 1 hereto and includes persons deriving title thereunder and its successors-in-title and personal representatives as the case may be. In respect of the Tawarruq transaction, the price at which the Customer (via the Bank as the Customer s agent) sells the Commodity to the Commodity Supplier which is equivalent to the Bank s Purchase Price as specified in the General Conditions. 4
Deed of Assignment The Deed of Assignment to be executed by the Customer and/or the Security Party (if any) assigning its and/or their assets or the benefit of contract(s) described therein executed between the Customer and/or the Security Party and the various parties named in the contract(s) (if applicable) together with all rights, interests and benefits therein and referred to in Section 6.01 hereof in favour of the Bank upon terms and conditions therein acceptable to the Bank. Developer/Vendor The persons(s) named in Item 7 of the Schedule 1 hereto and include its successors-in-title. Disbursement Notice EPR Events of Default Expenses A notice of disbursement substantially in the form set out in Schedule 5 hereto to be completed and signed by the Customer. The effective profit rate for the Facilities (where applicable). Committal (whether by acts of commission or omission) by the Customer of any breach of the terms of this Agreement including the happening of any of the events specified in Article IX. All commission, fees and other legal costs charges and expenses which the Bank may charge or incur arising from or in relation to:- a) the Transaction Documents; b) the preparation, negotiation and creation of the Transaction Documents; c) any breach of any provision of, and the protection realisation or enforcement of the Transaction Documents. Facilities Refers collectively to or to any one (1) of the credit and banking facilities up to an aggregate principal sum stated in Item 9 of the Schedule 1 hereto granted to the Customer by the Bank pursuant to the terms and conditions contained in the Letter of Offer and where the context so 5
requires, shall refer to any of the Facilities and shall include any part thereof. Guarantee and Indemnity IFSA Indebtedness Indemnifying Party(ies) The Guarantee and Indemnity to be executed by the Corporate Guarantor and/or Personal Guarantors in favour of the Bank in respect of the Customer s obligations herein upon such terms and conditions contained therein acceptable to the Bank. Islamic Financial Services Act, 2013 including all rules made thereunder, any amendments, modifications and re-enactments thereof in force as may be made at any time and from time to time. All moneys, obligations and liabilities whatsoever whether for principal, profit or otherwise which may now or at any time in the future be due, owing or incurred by the Customer to the Bank including any amount outstanding under any other existing or future facilities granted by the Bank to the Customer whether present or future, actual or contingent and whether alone, severally or jointly as principal, guarantor, surety or otherwise and in whatever name or style and whether on any current or other account or in any other manner whatsoever and including but without limitation all moneys due under the Transaction Documents including the Bank s Sale Price and/or all expenses and Ta widh (compensation). The person(s) named in Item 20 of Schedule 1 hereto and includes his/their respective successorsin-title, representatives, heirs and executors, as the case may be, and wherever the context so requires any one (1) of them. 6
Landowner Letter of Indemnity Legal Process Letter of Offer The registered owner(s) of the land upon which the Asset is erected (if applicable) and where the context so require, any one (1) of them and including their respective heirs, executors, personal administrators and successor-in-title. The Letter of Indemnity to be executed by the Indemnifying Party(ies) in favour of the Bank in respect of the Customer s obligations herein upon such terms and conditions contained therein acceptable to the Bank. All forms of originating processes, interlocutory applications of whatever nature, affidavits, orders and such documents other than the aforesaid which are required to be served under the Rules of Court, notices required to be given to the other under the Security Documents and correspondence between the parties hereto, notices under the Companies Act and the Bankruptcy Act, 1967 and the rules made thereunder. The letter of offer issued by the Bank to the Customer which is dated the same date as in Item 17 of the Schedule 1 hereto and includes any amendments, variations, modifications and/or supplements made thereto relating to the offer of the Facilities to the Customer. Month Murabahah Sale Confirmation That period of time which ends on the same date as it commenced in the previous month but if there is no numerically corresponding date in the following month, then the period shall end on the last day of that month. A confirmation sent by the Bank to the Customer confirming and specifying the details of the Tawarruq transaction that has been entered into between the Bank as the seller of the Commodity and the Customer (via the Bank as the Customer s agent) as the buyer of the Commodity at the Bank s Sale Price in the form as set out in Schedule 3 of this Agreement. 7
National Land Code Outstanding Bank s Purchase Price Partial Settlement Amount Personal Guarantor Profit Portion The National Land Code, 1965 for land in West Malaysia, the Land Code (Cap 81) for land in Sarawak and/or Land Ordinance (Cap 68) for land in Sabah (whichever applicable) and includes any statutory amendment or reenactment thereof and all subsidiary legislation enacted thereunder. the Bank s Purchase Price (Principal) portion of the Bank s Sale Price which has not been paid by the Customer to the Bank. has the meaning as described in the Letter of Offer. The person(s) named in Item 12 of Schedule 1 hereto and includes his/their respective representatives, heirs and executors and wherever the context so requires any one (1) of them. the profit margin, based on the CPR, for each of the Facilities. Purchase Request The purchase request by the Customer in form as set out in Schedule 2 hereto. the Purpose Ringgit Malaysia and the sign RM Rules of Court Sale and Purchase Agreement The purpose(s) of the Facilities as described in the Letter of Offer. The lawful currency of Malaysia. The Rules of Court 2012 including any amendments, modifications or re-enactments made thereof. The agreement made amongst the Developer/Vendor, the Landowner (if applicable) and the Customer and/or the Security Party (if applicable) on the date stated in Item 6 of the Schedule 1 hereto with regard to the sale and purchase of the Asset (if applicable). 8
Security Documents Security Party Settlement Amount Solicitors Supporting Documents Takaful Tawarruq Tenure The security documents as stated specifically in Item 18 of the Schedule 1 hereto executed hereunder and also includes such other security documents executed hereafter. The person(s) providing any security to the Bank to secure the payment by the Customer of the Indebtedness and/or the Bank s Sale Price, as the case may be, and include all moneys, profit, commission, costs, charges and other moneys arising from or in connection with the Facilities and described in Item 10 of the Schedule 1 hereto. Has the meaning as described in the Letter of Offer. The person(s) named in Item 19 of the Schedule 1 hereto being the solicitors acting for the Bank. The documents stated in Item 13 of the Schedule 1 hereto as required by the Bank from the Customer and any Security Party in a form and substance acceptable to the Bank. A form of Islamic insurance based on the principle of ta awun or mutual assistance. An arrangement in which an asset is purchased with deferred price and then sold to a third party for a lower price with immediate payment. The purpose of the arrangement is to obtain cash. The period(s) as set out in the Letter of Offer to the corresponding Facilities and on the expiry thereof respectively the aggregate of the Facilities and all sums owing thereunder and profit or commission thereon (including ta widh (compensation)) and all other sums howsoever due and payable to the Bank must be fully paid respectively to the Bank such that the Indebtedness and/or the Bank s Sale Price of the Customer shall be fully discharged and includes any renewal thereof. 9
this Agreement Transaction Documents Vendor/Supplier This General Facility Agreement entered into between the Bank and the Customer and shall include any amendments, variations and/or supplemental made thereto from time to time. This Agreement and where applicable, the Letter of Offer and where applicable, the Purchase Request. The persons(s) named in Item 8 of the Schedule 1 hereto and include its successors-in-title. SECTION 1.02 INTERPRETATION (a) (b) (c) (d) (e) (f) (g) (h) (i) Words importing the singular number include the plural and vice versa. Words importing the masculine gender include the feminine and neuter genders. The words hereof, herein, hereon, hereinafter, and hereunder, and words of similar import, when used in this Agreement shall, where the context requires or allows, refer to this Agreement as a whole and not to any particular provision of this Agreement. Reference herein to Articles, Sections and Schedules is reference to Articles, Sections and Schedules in this Agreement unless otherwise specified. The Schedules shall form an integral part of this Agreement. The headings and sub-headings in this Agreement are inserted for convenience only and are to be ignored when construing the provisions of this Agreement. When an act is required to be done within a specified number of days after or from a specified date, the period is inclusive of and begins to run from the date specified. A period of a month from the happening of an event or the doing of an act or thing shall be deemed to be inclusive of the day on which the event happens or the act or thing is done or is required to be done. Any references to statutes and the rules made thereunder include all amendments which may be enacted from time to time. Any references made to any Item of the Schedules hereto which itself does not contain any further and/or invalid references, dates, descriptions or whatsoever shall be construed as having neuter effect and shall not render the provision and any part thereof invalid but shall firstly be construed liberally to encompass typographical errors and documentation misnomer where the context so requires. 10
(j) (k) (l) Where the Customer or the Security Party is a company, the provisions contained herein which are primarily and literally applicable to the case of natural persons, shall be construed and take effect as if the Customer or the Security Party is a natural person, and shall bind all its successors-in-title. Accordingly any references herein relating to bankruptcy shall thereafter include references to the winding-up, liquidation, amalgamation or reconstruction, as the case may be, of the Customer or the Security Party. Where there are two (2) or more persons comprised in the expression the Customer, agreements, covenants, terms, stipulations and undertakings expressed to be made by and on the part of the Customer shall be deemed to be made by and binding upon such persons jointly and severally. Any liberty or power or discretion to which may be exercised or any determination which may be made hereunder by the Bank may be exercised or made by the Bank in the Bank s absolute and unfettered discretion and the Bank shall not be under any obligation to assign any reasons therefore. ARTICLE II RECITALS SECTION 2.01 APPLICATION FOR THE FACILITIES (a) (b) At the request of the Customer and/or the Security Party (if any), the Bank has agreed to grant and to make available the Facilities to the Customer upon the terms and conditions contained herein and in the Letter of Offer. Inconsideration of the Bankagreeingto grantthe Facilities uptothe principal sum as specified in Item 9 of the Schedule 1 hereto to the Customer, the Customer and/or the Security Party (if any) has/have agreed to provide security to secure the Indebtedness and/or the Bank s Sale Price in the manner as provided herein. SECTION 2.02 PURPOSE OF THE FACILITIES The Facilities or any part thereof shall be applied in accordance with the Purpose only. In the event the Customer requires or proposes or intends to use the Facilities or of any sum thereunder for any other Purpose, written consent from the Bank must first be obtained by the Customer and shall be applied as prescribed by the Bank at its absolute discretion. 11
ARTICLE III REPRESENTATIONS AND WARRANTIES SECTION 3.01 REPRESENTATIONS AND WARRANTIES The Customer hereby represents and warrants to the Bank as follows: (a) (b) Valid and binding: that the Transaction Documents and/or the Security Documents constitute the legal, valid and binding obligations of the Customer and/or the Security Party (if any) in accordance with their respective terms and conditions; Non-violation: that the execution, delivery and performance of the Transaction Documents and/or the Security Documents by the Customer and/or the Security Party (if any): (i) (ii) (iii) will not violate the provisions of any law or regulation or any order or decree of any governmental authority, agency or Court to which the Customer and/or the Security Party (if any) is/are subject; will not violate the provisions of any mortgage, contract or other undertaking or instrument to which the Customer and/or the Security Party (if any) is/are party(ies) or which is/are binding upon the Customer and/or the Security Party (if any); will not result in the creation or imposition of any obligation to create or impose any mortgage, lien, pledge or charge on any of the Customer s and/or the Security Party s (if any) assets or revenues pursuant to the provisions of any such mortgage, contract or other undertaking or instrument; (c) (d) Consents: that all consents, approvals or authorisations of any relevant authority which are required on the part of the Customer and/or the Security Party (if any) or which are advisable for or in connection with the execution, delivery, performance, legality and enforceability of the Transaction Documents and/or the Security Documents have been obtained and are in full force and any conditions contained therein or otherwise applying therein have been complied with; No default: that the Customer and/or the Security Party (if any) is/are not in default under any agreement to which the Customer and/or the Security Party (if any) is/are a party or by which the Customer and/or the Security Party (if any) are bound and no bankruptcy or winding up proceedings are pending nor any litigation, arbitration or administrative proceedings are presently current or pending or threatened which default, bankruptcy, winding-up, arbitration or 12
administrative proceedings as the case may be might materially affect the solvency of the Customer and/or the Security Party (if any) and might impair the Customer s and/or the Security Party s (if any) ability to perform the Customer s and/or the Security Party s (if any) respective obligations under the Transaction Documents and/or the Security Documents; (e) (f) (g) (h) (i) (j) Power and authorisations: that the Customer and/or the Security Party (if any) has/have the full and absolute power, right and authority to execute the Transaction Documents and/or the Security Documents and that there is and shall be no person or party having priority over the Bank in respect of the Asset and/or the security provided to the Bank, save and except as the Bank may agree in writing in its absolute discretion; Payment of Outgoings: to pay all quit rents, rates, taxes, assessments and other charges imposed or to be imposed by the Government or any other competent authorities and other charges or levies and other outgoings in respect of its asset and the Asset (if applicable); Financial Statements: the audited financial statements (including the income and balance sheets) of the Customer for the financial year ended prior to the date of this Agreement have been prepared on a basis consistently applied in accordance with generally accepted accounting principles in Malaysia and gives a true and fair view of the results of its operations for that year and the state of its affairs at that date, and in particular accurately discloses or reserves against all the liabilities (actual or contingent) of the Customer as at such date and all material unrealised or anticipated losses from any commitment entered into by it and which existed on that date; Material change in financial condition: there has been no material adverse change in the financial condition or operations of the Customer since the date of the Letter of Offer; No security: none of the assets, properties and rights of the Customer is affected by any security interest and the Customer is not a party to, nor is it or any of its assets bound by, any order, agreement or instrument under which the Customer is, or in certain events may be, required to create, assume or permit to arise any security interest; Information: all information furnished by the Customer in connection with the Customer and to the best of its knowledge and belief, each Security Party (if any), do not contain any untrue statement or omit to state any fact the omission of which makes any statements made therein in the light of the circumstances under which they are made, misleading, and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful inquiry by the Customer and the Customer is not aware of any material facts or circumstances that have not been disclosed to the 13
Bank which might, if disclosed, adversely affect the decision of a person considering whether or not to provide finance to the Customer; (k) (l) Disclosure: the Customer has fully disclosed in writing to the Bank all facts relating to the Customer and/or the Security Party (if any) which the Customer knows or should reasonably know and which are material for disclosure to the Bank in the context of the Facilities; Asset: subject to the Transaction Documents and/or the Security Documents, it: (i) (ii) is the legal and beneficial owner of the Asset (if applicable) and all its assets; and on acquiring any property forming part of the security given by it, is the legal and beneficial owner of that property, and no person other than the Bank holds or is entitled to hold an interest in the property mentioned in Section 3.01(l)(i) and (ii) other than under a Transaction Document and/or Security Document; (m) (n) (o) (p) Event of Default: no Event of Default has occurred and/or is continuing; Dissolution: no step, application, petition, legal proceeding or order has been taken by the Customer, any Security Party (if any), its/their shareholders nor have any legal proceedings been started or threatened for the dissolution of the Customer or any Security Party (if any) or for the appointment of any nominee, trustee, supervisor, judicial manager, manager, administrator, receiver, receiver and manager, liquidator or similar officer of the Customer or any Security Party (if any), its/their assets or any of them; No Immunity: the Customer and/or each Security Party (if any) is/are subject to civil and commercial law with regard to its obligations under the Transaction Documents and/or the Security Documents and the execution, delivery and performance of Transaction Documents and/or the Security Documents constitute private and commercial acts rather than governmental or public acts and neither the Customer, the Security Party (if any) nor any of its/their properties enjoy any immunity on the grounds of sovereignty or otherwise in respect of its/their obligations under the Transaction Documents and/or the Security Documents; Conduct of Business: the Customer is conducting its business and operations in compliance with all applicable laws and regulations and all directives of governmental authorities having the force of law; (q) IFSA: there is no violation of any provisions contained in the IFSA or any prevailing laws or regulatory requirements or directives or guidelines issued or which may from time to time be issued or amended by Bank Negara Malaysia pertaining to the grant of facilities generally or to persons connected with the Bank ( Laws or Guidelines ) 14
(r) (s) (t) (u) Sections 366, 370, 396 and 404 of the Companies Act: no step, application, petition, legal proceeding or order to institute any voluntary arrangement, judicial management, scheme of compromise, arrangement reorganisation, reconstruction or amalgamation has been started, taken or threatened under the Companies Act by the Customer or any Security Party (if any), its/their creditors or any of its/their shareholders or any other person in its/their behalf; Takaful: no event or circumstance has occurred, nor has there been any omission to disclose a fact which, in any such case, to the best of the Customer s knowledge and belief after due enquiry would entitle any insurer to avoid or reduce its liability under any of the Takaful and all Takaful required to be effected by the Customer have been so effected and are valid and binding and in full force and effect and all contribution due have been paid; Dishonoured Cheques Information System (DCHEQS) Guidelines: that the Customer and/or any Security Party (if any) or the Customer s and/or any Security Party s (if any) account is not listed under the DCHEQS guidelines or otherwise for that matter designated as special under such guidelines; Corporation: if the Customer and/or any of the other Security Party (if any) is/are a corporation: (i) the Customer and/or the other Security Party (if any) is/are duly incorporated under the relevant law; (ii) (iii) all requisite corporate shareholders or other approvals for the execution of the Transaction Documents and/or the Security Documents have been obtained; where the Customer and/or the Security has a written Constitution, the Customer and/or the Security Party (if any) is/are empowered to execute the Transaction Documents and/or the Security Documents under their respective Constitution of the Customer and/or the Security Party (if any)); (v) (w) Exclusive Purpose: that the Facilities shall be exclusively applied towards the Purpose stated in this Agreement and shall at all times be used for halal purposes and will not be used in any manner which is in contravention with the religion of Islam; Approval of the Bank s Shariah Committee: that the Customer understands that the Facilities have been endorsed by the Bank s Shariah Committee appointed by the Bank and hereby agrees and undertakes that the approval is final, conclusive and binding upon the Customer; and (x) Material Change in Constitution: Since the date the Customer applied for the Facilities there has been no material alterations or changes in the constitution, condition and business or other affairs of the Customer which could or might adversely 15
affect the ability of the Customer to perform their obligations under the Transaction Documents and/or the Security Documents to which it is a party. 16
SECTION 3.02 TRUTH AND CORRECTNESS OF REPRESENTATIONS AND WARRANTIES (a) (b) The Customer acknowledges that the Bank has agreed to grant the Facilities to the Customer on the basis of and in full reliance upon, the aforesaid representations and warranties, which will be correct and complied with in all material respects so long as the Transaction Documents and/or the Security Documents shall remain in force and each of the above representations and warranties will be correct and complied with in all material respects so long as the Facilities shall remain available. The truth and correctness of all the matters stated in the representations and warranties under Section 3.01 above shall form the basis of the Bank s commitment to make available or continue to make available the Facilities to the Customer. If any such representations and/or warranties made shall at any time hereafter be found to have been incorrect in any material respect then and in such event and notwithstanding anything to the contrary hereunder the Bank shall have the right at its absolute discretion but subject to the Shariah requirement, to review, suspend, recall or terminate the Facilities or any part thereof. SECTION 3.03 CONTINUING NATURE OF REPRESENTATIONS AND WARRANTIES (a) The Customer shall be deemed to represent and warrant to the Bank each of the dates on which it shall hereafter utilize the Facilities that: (i) (ii) the representations and warranties (up-dated mutatis mutandis) contained in Section 3.01 hereof are true and accurate in all respects as if made on such date; and no Event of Default contained in Section 9.01 or any statement contained herein proves to be misleading or incorrect, it shall be deemed to have been made with the consent or connivance of or attributable to the neglect on the part of any director, manager or secretary or other similar officer of the Customer purporting to act in such capacity. 17
ARTICLE IV TRANSACTION DOCUMENTS SECTION 4.01 EXECUTION OF TRANSACTION DOCUMENTS FOR THE TRANSACTIONS UNDER THE CONCEPTS OF TAWARRUQ In accordance with the concept as specified in the Letter of Offer and to give effect to the transactions under the Facilities, the Bank and the Customer shall enter into the agreements/arrangements as specified in the Letter of Offer. ARTICLE V THE FACILITIES SECTION 5.01 AGREEMENT FOR THE FACILITIES The Bank relying upon each of the representations and warranties set out in Section 3.01 hereof and the execution of the Transaction Documents (if applicable), hereby agrees with the Customer to make available to the Customer throughout the Tenure of the Facilities, the Facilities and permit disbursement thereon for the various Facilities granted herein upon the terms and conditions hereinafter appearing. SECTION 5.02 THE FACILITIES The Customer hereby further declares and confirms that the Facilities herein granted by the Bank shall be up to the aggregate principal sum or limits set out in Item 9 of the Schedule 1 hereto and the Facilities together with the various profit margin or commission also set out in the Letter of Offer SECTION 5.03 AVAILABILITY PERIOD The Facilities shall be made available to the Customer within the period and subject to the terms and conditions as stipulated in the Letter of Offer ( Availability Period ), failing which the Facilities shall be treated as terminated by the Bank at the Bank s absolute discretion. In the event that the relevant Transaction Documents have been executed by both parties, any undisbursed portion of the Facilities after the Availability Period shall be treated as prepayment of the Indebtedness and/or the Bank s Sale Price, unless an extension is granted by the Bank. 17
SECTION 5.04 PURPOSE OF THE FACILITIES The proceeds of the Facilities shall be applied by the Customer for the Purpose. In the event the Customer requires or proposes or intends to use the proceeds of the Facilities for any other purpose, written consent from the Bank must first be obtained by the Customer. The Bank is not bound to ensure that the Customer utilises the Facilities for the Purpose. SECTION 5.05 UTILIZATION OF THE FACILITIES Any request for the utilization of the Facilities shall be in writing giving in accordance with the requirements as may be specified by the Bank generally in accordance with the Bank s standard terms and conditions applicable to the Facilities and subject to the Bank being satisfied (and in this respect the Bank s decision shall be conclusive) that there are no material changes affecting the Customer s financial condition after the acceptance of the Facilities. Where applicable, the Facilities shall also be subject to the guidelines of BNM and/or other regulatory authority as such guidelines are revised from time to time. SECTION 5.06 VARIATION OF FACILITIES Notwithstanding any provision herein contained the parties herein hereby agree that the Bank may at any time hereafter at the request of the Customer or at the Bank s absolute discretion and subject to Shariah principles convert, vary or substitute the Facilities or any part thereof into another banking facility or facilities Provided Always that the said facility or facilities are within the limit of the aggregate principal sum/limits of the Facilities as stated in Item 9 of the Schedule 1 hereto remaining available for disbursement or in credit and in any such event the securities, liabilities and obligations created by the Transaction Documents and the Security Documents shall continue to be valid and binding for all purposes whatsoever notwithstanding the change and/or variation aforesaid but subject to such variations as shall be made known by the Bank to the Customer. SECTION 5.07 DISBURSEMENT The Bank shall disburse the Facilities in the amount as specified in the General Conditions provided that the transactions under Clause 4.01 have been duly completed. 18
SECTION 5.08 PAYMENTS (a) The Bank s Sale Price and/or the Indebtedness shall be payable as per the terms and conditions contained in the Letter of Offer. (c) (d) All payments to be made by the Customer for the account of the Bank, shall be made in Ringgit Malaysia in immediately available funds not later than 11.00 am on the relevant day to the Bank s account with BNM or such other bank and account as the Bank may have notified to the Customer. All payments by the Customer under this Agreement, whether in respect of principal, profit, commission, fees or any other amount, shall be made in full without any deduction or withholding (whether in respect of set-off, counterclaim, duties, taxes, charges or otherwise whatsoever) unless the deduction or withholding is required by law, in which event the Customer shall: (i) (ii) (iii) (iv) ensure that the deduction or withholding does not exceed the minimum amount legally required; 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; pay to the relevant taxation or other authorities within the period for payment permitted by the applicable law, the full amount of the deduction or withholding (including, but without prejudice to the generality of the foregoing, the full amount of any deduction or withholding from any additional amount paid pursuant to this Section); furnish to the Bank, within the period for payment permitted by the applicable law, either: (aa) an official receipt of the relevant taxation authorities in respect of all amounts so deducted or withheld as aforesaid; and (bb) if such receipt is not issued by the relevant taxation authorities on payments to them of amounts so deducted or withheld, a certificate of deduction or equivalent evidence of the relevant deduction or withholding; (v) if the Customer shall default in the payment of the Indebtedness and/or the Bank s Sale Price and/or other moneys owed on the respective due dates, as the case may be, or any other moneys herein covenanted to be paid from time to time, the Customer shall pay to the Bank ta widh (compensation) in accordance with section 12.22 hereof; and 19
(vi) if any payment would otherwise be due on a day which is not a Business Day, it shall be due on the next succeeding Business Day or, if that Business Day falls in the following month, the preceding Business Day. SECTION 5.9 EARLY SETTLEMENT AND PARTIAL SETTLEMENT OF BANK S SALE PRICE (IF APPLICABLE) (a) (b) The Customer shall be entitled to make partial settlement or early settlement of the Bank s Sale Price subject to the terms as set out in the Letter of Offer. The Bank shall have the right to charge the Early Settlement Charge to the Customer upon early settlement made by the Customer. The Early Settlement Charge shall be calculated in the manner as described in the Letter of Offer. SECTION 5.10 IBRA (REBATE) (IF APPLICABLE) (a) (b) The Bank shall grant to the Customer(s) an Ibra (rebate) of such amount of the Bank s Sale Price in accordance with methods and formula adopted by the Bank or such other methods and formula approved by BNM in the event of Early Settlement. The parties hereby agree that the Bank shall grant the Ibra in the circumstances as described in the Letter of Offer. 20
ARTICLE VI SECURITY SECTION 6.01 SECURITY (IF APPLICABLE) As continuing security for the due performance and observance by the Customer of all the terms and conditions and stipulations to be performed and observed on the part of the Customer under the Transaction Documents: (a) if applicable, the Customer shall simultaneously with the execution of the Transaction Documents execute in favour of and deliver to the Bank, in the event the individual document of title/separate strata title has been issued by the relevant authorities, the Charge (if applicable) in accordance with the provisions of the National Land Code in respect of the Asset (if applicable) and the Security Documents together with the relevant documents and/or document(s) of title thereto free from all encumbrances and caveats of any nature upon the terms and conditions contained therein as the Bank may require or the Deed of Assignment (if applicable): (i) (ii) in the event that the individual document of title/separate strata title to the Asset has not been issued by the relevant authorities, the Customer shall execute the Deed of Assignment in the form and substance acceptable to the Bank where the Customer absolutely assign to the Bank the Asset (if applicable) and the full and entire benefit of the Sale and Purchase Agreement together with all rights, title and interest of the Customer therein PROVIDED ALWAYS that notwithstanding the Deed of Assignment or any other provision of this Agreement, the Customer shall continue to observe and be bound by all whatsoever conditions, covenants and stipulations imposed therein on and to be performed by the Customer expressed and contained in the Sale and Purchase Agreement, as the case may be; upon issuance of the individual document of title/separate strata title as the case may be, to the Asset (if applicable), the Customer shall, at the Customer cost and expense immediately take a transfer of the Asset (if applicable) and execute the Charge in the Bank s standard form or such variation thereof as the Bank may require to secure the payment of the Indebtedness and/or Bank s Sale Price failing which the Bank shall be entitled to take such cause of action to protect the Bank s interest and all costs and expenses including solicitors costs (on a solicitor and own client basis) in connection with the preparation, execution and registration of the Charge shall be borne and paid by the Customer; 21
(iii) in addition to the Deed of Assignment, the Customer shall also execute and deliver or cause the execution and the delivery of the Power of Attorney to the Bank in the form and substance acceptable to the Bank where the Customer appoints the Bank or any persons authorised by the Bank for the time being as the attorney of the Customer upon the terms and subject to the conditions stipulated in the Power of Attorney; and/or (b) the Customer shall execute and deliver in favour of the Bank or cause the Security Party (if any) to execute and deliver in favour of the Bank, the Security Documents upon such terms and conditions contained therein respectively together with all the necessary documents as the Bank may require. SECTION 6.02 OBLIGATIONS OF THE CUSTOMER (IF APPLICABLE) It is expressly agreed, however, that notwithstanding anything contained herein to the contrary, the Customer shall remain liable under the Sale and Purchase Agreement or other documents in respect of the Asset (if applicable) to observe and perform all of the conditions and obligations therein provided to be observed and performed by the Customer, and the Bank shall have no obligation or liability under the Sale and Purchase Agreement or other documents by reason of or arising out of the Transaction Documents and the Charge/Deed of Assignment (if applicable), nor shall the Bank be required or obligated in any manner to observe or perform any of the conditions or obligations of the Customer under or pursuant to the Sale and Purchase Agreement or other documents or to present or file any claim, or to take any other action to enforce the terms of the Sale and Purchase Agreement or other documents. SECTION 6.03 COVENANT TO PROVIDE FURTHER SECURITY (a) (b) The Customer shall at the request of the Bank charges to, or deposit with the Bank such documents of title to any or all immovable properties vested in the Customer for any tenure. Such charge or deposit may be by way of security to secure the Indebtedness and/or the Bank s Sale Price. The Customer and/or the Security Party (if any) shall at all times and when required by the Bank execute in favour of the Bank or as the Bank shall direct such further legal or other mortgages, charges, debentures, assignments, transfers, agreements or other assurances as the Bank shall require of and on all the Customer s and/or Security Party s (if any) rights, title and interest in any land or assets or business now belonging to or which may hereafter be acquired by or belonging to the Customer and/or the Security Party (if any) (including any vendor s lien) and the benefit of all licences held in connection therewith to secure the Indebtedness and/or the Bank s Sale Price and such mortgages, charges, assignments, transfers, agreements or other assurances to be prepared by or on behalf of the Bank at the cost of the Customer and to contain all such 22
terms and conditions for the benefit of the Bank as the Bank may require or stipulate. (c) (d) The Customer and/or Security Party (if any) shall at any time if and when required by the Bank to do so deposit with the Bank the document of title of any or all immovable properties vested in the Customer and/or Security Party (if any) for any tenure and all or any debentures, Shariah approved shares, Shariah approved stocks or other Shariah approved investments or Shariah approved securities registered in the name of the Customer and/or Security Party (if any) or otherwise belonging to the Customer and/or Security Party (if any). Such deposit may be by way of collateral security for the Indebtedness and/or the Bank s Sale Price. The Bank shall have custody and possession of the issue document of title in respect of the Asset (if applicable). SECTION 6.04 CONTINUING SECURITY The security created by the Transaction Documents is expressly intended to be and shall be a continuing security for the Indebtedness and all moneys whatsoever now or hereafter from time to time owing to the Bank by the Customer until the Indebtedness and all moneys whatsoever now or hereafter from time to time owing to the Bank by the Customer shall have been paid in full to the Bank whether alone or jointly and severally with another or others and whether as principal or surety notwithstanding that the Customer may at any time cease to be indebted to the Bank for any period or periods and notwithstanding that the account or accounts of the Customer with the Bank may from any cause whatsoever cease. SECTION 6.05 LIEN AND OTHER RIGHTS Nothing herein shall prejudice or affect the rights and remedies to which the Bank shall be entitled to against the Customer or the Bank to any other securities which the Bank may at any time or from time to time hold for or on account of the Indebtedness and/or the Bank s Sale Price or shall anything herein prejudice or affect any bill, note, guarantee, charge or other security which the Bank may for the time being have or hold for the Indebtedness and/or the Bank s Sale Price or any right or remedy of the Bank under such bill, note, guarantee, charge or other security. 23
ARTICLE VII CONDITIONS PRECEDENT AND OTHER AND SPECIFIC TERMS AND CONDITIONS SECTION 7.01 CONDITIONS PRECEDENT The following events are specified as conditions to the utilization/disbursement of the Facilities or any part thereof and the continued availability of the Facilities or any part thereof: (a) (b) (c) (d) (e) (f) (g) ; the Customer has submitted the Letter of Offer duly accepted by its Authorised Signatories to the bank; the Transaction Documents and the Security Documents (if any) have been duly executed and have been stamped and registered with the High Court or presented for registration or filed at any relevant registry (where applicable); there have been no material alterations or changes in the constitution, condition, business, or other affairs of the Customer which could or might adversely affect the decision of the Bank to continue the Facilities; the certified true copy of the Certificate of Incorporation/Notice of Registration, Constitution/a written confirmation duly signed by a director confirming that the Customer and the Security Party (wherever applicable) do(es) not have a Constitution and Notice of Registration of New Name and of the Security Party (wherever applicable) are in such form and substance satisfactory to the Bank; the Bank shall have received the Supporting Documents and such other documents as may be required by the Bank in form and substance satisfactory to it; the Bank shall have received (if applicable) a search report conducted at the Companies Commission of Malaysia confirming that there is no existing debenture or other legal encumbrances over the Asset (if applicable) and the assets of the Customer except as disclosed to the Bank by the Customer (if applicable) and/or of any Security Party (if applicable); the Bank shall have received certified true copies of the latest Return of Allotment of Shares Form (previously known as Form 24), Notification for change in the Registered Address Form (previously known as Form 44), Notification of Change in the Register of Directors, Managers and Secretaries Form (previously known as Form 49) confirming the respective identities of the directors and shareholders of the Customer (if applicable) and/or the Security Party (if applicable) (h) the Bank shall have received certified true copies of the resolution of the 24
Board of Directors of the Customer or a power of attorney and/or deed of empowerment, as the case may be, issued by the Customer authorizing: (i) (ii) the acceptance of the Facilities; the list of persons authorised to sign on behalf of the Customer all relevant documents relating to the Facilities and to operate the Facilities 25
together with their full names, National Registration Identity Card numbers or passport numbers and specimen signatures authenticated by a director or secretary of the Customer; (iii) (iv) the execution of the Transaction Documents and the Security Documents (if applicable) by its Authorised Signatories or by affixing its common seal thereto in accordance with its Constitution; and the execution of all other documents required to be executed pursuant to the Transaction Documents and the Security Documents in form and substance acceptable to the Bank; (i) (j) (k) (l) (m) (n) (o) the Bank shall have received such other documents, opinions, undertakings, authorisations or assurances pertaining to the terms of the Transaction Documents and the Security Documents as the Bank may reasonably request; the Bank shall have received written confirmation from Jabatan Insolvensi Malaysia s Office confirming that no winding up order has been made against the Customer. Pending the result of such winding up search, the Customer has submitted to the Bank duly signed statutory declaration by two (2) of its directors confirming that the Customer is not wound up and there is no winding up petition pending in court against the Customer; the Bank shall have received written confirmation from Jabatan Insolvensi Malaysia s Office confirming that no bankruptcy action has been taken against any of the directors of the Customer. Pending the result of such bankruptcy searches, the Customer has submitted to the Bank duly signed statutory declaration by all of its directors confirming that each of them is not adjudged bankrupt and there is no bankruptcy petition pending in court against each of them; and the Solicitors shall have issued a written confirmation confirming that the execution of relevant Transaction Documents by the Customer has been made in proper sequence in compliance with the requirement of the Shariah. the Customer shall have complied with and satisfied all Additional Conditions Precedent (if any) stipulated in Item 14 of the Schedule 1 hereto to the satisfaction of the Bank. all the necessary approvals/consents (if applicable) from the relevant authorities and/or any financial institutions (including BNM) have been obtained and duly received by the Bank; relevant Form(s) prescribed by the Companies Act 2016, duly executed by the Customer and/or Security Party pertaining to the Security duly lodged at the Companies Commission of Malaysia; 26