Asset Purchase Agreement

 

DATED THIS DAY OF

9 MAR

Between

MEDINI ISKANDAR MALAYSIA SDN BIB) (Company No. 782021-V)

(the Issuer )

AND

CIMB ISLAMIC BANK BERHAD (Company No. 671380-H)

(the Primary Subscriber )

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

ASSET PURCHASE AGREEMENT * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

ADNAN SUNDRA LOW ADVOCATES SOLICITORS KUALA LUMPUR

013

 

T

BLE OF CONTENTS

CLAUSE Nos

1

DEFINITIONS/INTERPRETATION

2

PURCHASE OF ASSET AND PASSING OF TITLE

3

ASSET PURCHASE PRICE

4

REPRESENTATIONS AND WARRANTIES

5

TIME

6

DUTIES AND TAXES

7

COSTS AND EXPENSES

8

WAIVER

9

NO ASSIGNMENT BY ISSUER

10

SEVERABILITY

11

VARIATIONS AND AMENDMENTS

12

NOTICES

13

GOVERNING LAW

14

STAMP DUTY

AGE Nos

 

 

Terkecuali daripada Duti Setem/ D u t i S e b a n y a k R M ..... ....diremitkan

&

V

 

Tcrkecuali daripada daripada duti setem dibawah Seksyen 80 1) Ordinan Setem 1949 PU A) NO: 241/2000 Pcrintah Duti Sewn Pengecualian) No: 23) 2000.

  1) .

J 11 .. --ASSET PURCHASE AGREEMENT Timb. Pemungu uti Setem Chem LHDNIW.01/34142/68.

13TE NOOK SHAHID 1 1 C/ W 3 24) ADVOCATE soucrroR KUALA LUMPUR

T r 4 1 1 7  1 1

THIS ASSET PURCHASE AGREEMENT is made on 29 March 2013.

BY:

(1)

MEDINI ISKANDAR MALAYSIA SDN BHD Company No. 782021-V), a company incorporated in Malaysia with its registered office at G-12, Bl Blok ok 8, Danga Bay, Jalan Skudai, 80200 Johor Bahru, Johor (the Issuer );

AND

(2)

CIMB ISLAMIC BANK BERHAD Company No. 671380-H), a company

incorporated in Malaysia and having its registered office at 5   Floor, Bangunan CIMB, Jalan Semantan, Damansara Heights, 50490 Kuala Lumpur (the Primary Subscriber Subscribe r ). ).

WHEREAS:

(A)

The Issuer wishes to raise funds by the issuance of up to Ringgit One Billion

and (RM1,000,000,000.00) nominal value Islamic medium term notes ( MTN ) based on the Islamic principle of Bai' Bithaman Ajil Ajil under a medium term notes programme (the MTN Programme ) in a manner more particularly described in the programme agreement dated 19 September 2008 (the (the Origi Original nal Progr Programme amme Agreement ) and as amended by the supplemental Programme Programme Agreement ( Supplemental Programme Programme Agreement ) and by the second supplemental programme agreement dated 26 March 2013 ( Second Supplemental Programme Agreement ) made between (1) the Issuer; (2) CIMB INVESTMENT BANK BERHAD Company No. 18417-M), (as Lead Arranger ); (3) CIMB INVESTMENT BANK BERHAD Company No. 18 18417-M), 417-M), (as Facility Agent ); and 4) CIMB ISLAMIC BANK BERHAD Company No. 671 671380-H) 380-H) (as Primary Subscriber ).

(B)

Pursuant to the MTN Programme, the Issuer proposes from time to time to issue the MTNs upon the terms and subject to the conditions set out in the Original Programme Agreement, the Supplemental Programme Agreement and the Second Supplemental Programme Agreement (collectively, the Programme Agreement ).

(C)

It is a term of the Programm e Agreement that the Issuer shall execute this Asset Purchase Agreement at the time stipulated.

(D)

The Issuer has agreed to sell and the Primary Subscriber has agreed to purchase the Assets (as hereinafter defined) at the Asset Purchase Price (as

 

2

hereinafter defined) upon the terms and subject to the conditions agreed upon between the parties hereto. NOW THIS AGREEMENT WITNESSES AND IT IS HEREBY AGREED AND DECLARED

1

1

as follows:-

EFINITIONS/INTERPRETATION 1

(a)

n this Asset Purchase Agreement (including the recitals):-

words and expressions defined and the rules of construction and interpretation set out in the deed of definit definitions ions dated 19 September 2008 ( Original Deed of Definitions ) and as amended by the supplemental deed of defin definitions itions dated 21 September 2011 ( Supplemental Deed of Defi Definitions nitions ) and by the second supplemental deed of definitions dated 26 March 2013 ( Second Supplem Supplemental ental Deed of Definitions ) (collectively, the Deed of Definitions ) entered into between the Issuer, the Lead Arranger, the Facility Agent and the Primary Subscriber, as such definitions and rules may be amended from time to time shall, unless otherwise provided herein or the context otherwise requires, have

the same meanings herein save that, in the event that there is a conflict between a definition in the Deed of Definitions and in this Asset Purchase Agreement, the definition in this Asset Purchase Agreement shall prevail; and

(b)

1.2

except so far as the context otherwise requires, these presents means this Asset Purchase Agreement as the same may be amended or supplemented from time to time. urther Definitions

In this Asset Purchase Agreement, unless the context otherwise requires, the following words and expressions shall have the following meanings:-

1.2

Assets

eans the asset as described in Appendix 1 of this Asset Purchase Agreement; and

Asset Purchase Price

eans the price for the purchase of the Asset payable by the Primary Subscriber as stipulated in Clause 3.1 hereof;

Construction

The provisions of clause 2 of the Deed of Definitions shall apply to this Asset Purchase Agreement as if the same were expressly set out herein.

2

2.1

URCHASE OF ASSET AND PASSING OF TITLE

he Issuer hereby sells the Assets and the Primary Subscriber (who has agreed or has committed itself to become primary subscriber of the MTNs) hereby

 

3

purchases the Assets from the Issuer on an as in where is basis , free of recourse or any warranties, in consideration of the payment of the Asset Purchase Price to be paid in accordance with Clause 3 below upon the terms and conditions contained herein. 2.2

he Asset Purchase Price shall remain a debt due and payable to the Issuer in accordance accordan ce with Clause 3 below.

2 3

or the avoidance of doubt, notwithstanding that the Asset Purchase Price remains outstanding and no physical delivery of the Assets has been effected, all rights, entitlements and benefits of the Issuer in and to the Assets shall pass to and the beneficial ownership of the Assets shall immediately vest in the Primary Subscriber conclusively and for and on behalf of the investors referred to in Clause 2.1 absolutely, upon the execution of this Asset Purchase Agreement.

2.4

he execution of this Asset Purchase Agreement Agreement shall, as between the Issuer and the Primary Subscriber, evidence the delivery and receipt and constitute final and irrevocable acceptance of the Assets for all purposes hereof and irrevocably confirm that the same is satisfactory in all respects and complies with the requiremen req uirements ts of this Agreement.

3.

ASSET PURCHASE PRICE

3 1

he Asset Purchase Price of the Assets shall be the amount of Ringgit Malaysia One Hundred and Eighteen Million, Three Hundred and Eighty Two Thousand, Seven Hundred and Two and Sen Sixteen (RM118,382,702.16).

3 2

he mode and manner of payment of the Asset Purchase Price to the Issuer shall be in accordance with the terms of the Programme Agreement.

4.

REPRESENTATIONS AND WARRANTIES

4 1

he Issuer hereby represents and warrants to the Primary Subscriber that:

(a)

it is the owner of the Assets;

(b)

it has the power and authority to sell the Assets pursuant to the terms and conditions herein;

(c)

the execution, delivery and performance of this Asset Purchase Agreement by the Issuer do not and will not violate the provisions of:-

(i)

any law or regulation or any order or decree of any Governmental Governme ntal authority, agency or Court to which it is subject; or

(ii)

its Memorandum and Articles of Association;

 

4

d)

he execution, delivery and performa performance nce of this Asset Purchase Agreement do not and will not:-

i)

contravene the provisions of any other contract or undertaking or instrument to which the Issuer is a party or which is binding upon it or any of its assets; or

ii)

result in the creation or imposition of, or any obligation to create or impose, any mortgage, lien, pledge, charge or other security interest on any of its respective assets pursuant to the provisions of any other contract, undertaking or instrument.

5.

TIME Time whenever mentioned herein shall be of essence.

6.

UTIES AND TAXES The Issuer shall pay any stamp duty, registration and other taxes to which the sale of the Assets by the Issuer may be subject to.

7.

COSTS AND EXPENSES The Issuer shall on demand pay all reasonable reasonable costs and expenses including legal fees) incurred by the Primary Subscriber in the preparation of this Asset Purchase Agreement and/or in connection with the preservation of its rights hereunder.

8.

WAIVER

No relaxation, forbearance, indulgence, failure or delay on the part of the Primary Subscriber in exercising nor any omissions to exercise any rights, power, privilege or remedy accruing to the Primary Subscriber, shall impair any such rights, power, privilege or remedy of the Primary Subscriber in respect of any other or subsequent default.

9.

NO ASSIGNMENT BY ISSUER The Issuer shall not assign, novate or purport to assign or novate this Asset Purchase Agreement without the prior written consent of the Primary Subscriber

 

 

10.

SEVERABILITY Any term, condition, stipulation, provision, covenant or undertaking of this Asset Purchase Agreement which is illegal, void, prohibited or unenforceable in any jurisdiction shall as to such jurisdiction juri sdiction be ineffective to the extent of such illegality, voidness, prohibition or unenforce unenforceability ability without invalidating i nvalidating the remaining provisions hereof and any such illegality, voidness, prohibition or unenforceability in any jurisdiction shall not invalidate or render illegal, void or unenforceable any such term, condition, stipulation, provision, covenant or undertaking in any other jurisdiction.

11.

VARIATIONS AND AMENDMENTS Unless otherwise specifically provided in this Asset Purchase Agreement, no variations and amendments to this Asset Purchase P urchase Agreement shall be made unless by mutual consent of the parties hereto in writing or such other means

as the parties may agree upon from time to time, and thereupon such amendments and variations shall be deemed to become effective and the relevant provisions of this Asset Purchase Agreement shall be deemed to have been amended or varied accordingly and shall be read and construed as if such amendments and variations have been incorporated in and had formed part of this Asset Purchase Agreement at the time ti me of execution hereof, PROVIDED ALWAYS that if such variations and amendments require consents from third parties, then prior written consent from such third parties shall be obtained before the aforesaid variations and amendm amendments ents shall be effected.

12.

NOTICES

12.1 12 .1 Notices to be given or served under the provisions of this Asset P urchase Agreement shall be deemed properly given or served if given in writing delivered personally or by post by prepaid letter or facsimile transmission addressed to the relevant party at its it s address stated above or to any facsimile number which is published as belonging to it or such other address or facsimile number as is notified by any party to the other party hereunder). Every notice or other communication shall be deemed to have been received in the case of a facsimile transmission the next working day after the date of despatch, and in the case of a letter the next working day after the date of delivery when delivered delivered personally or or forty-eight 48) hours after it has bee been n put into post. 12.2 12 .2 In proving the giving of a n notice otice hereunder it shall be sufficient to prove that the notice was left or that the envelope containing such notice was properly addressed and posted or that the facsimile transmiss transmission ion report bears the correct transmission receipt confirmation of the party to whom the notice was sent.

12.3 12 .3 No change in the address for service howsoever brought about shall be effective or binding on either party unless that party has given to the other actual notice of the change of address for service and nothing done in reliance

 

 

on this Clause 12 shall be affected or prejudiced by any subsequent change in the address for service over which the other party has no actual knowledge of at the time the act or thing was done or carried out.

13.

GOVERNING LAW

13.1 T This his Asset Purchase Agreement shall be governed by and construed in all respects in accordance with the laws of Malaysia but in enforcing this Asset Purchase Agreement, the Primary Subscriber shall be at liberty to initiate and take actions or proceedings or otherwise against the Issuer in Malaysia and/or elsewhere as the Primary Subscriber may deem fit and the Issuer hereby agree that where any actions or proceedings are initiated and taken in Malaysia the Issuer shall submit to the non-exclusive jurisdiction of the Courts of the States of Malaya as the case may be in all matters connected with the obligations and liabilities of the parties hereto under or arising out of this Asset Purchase Agreement.

14.

STAMP DUTY

14.1 The Issuer has obtained the approval of the SC on 15 September 2008 to the issuance of the MT MTNs Ns and for the purposes of the Stamp Duty (Exemption) (No. 23) Order 2000 ( Order ), IT IS H HEREBY EREBY DECLARED THAT this Asset Purchase Agreement constitutes one (1) of the several instruments relating to the issue of the MT MTNs Ns by the Issuer and is therefore exempted from stamp duty pursuant to the Order.

 

7

IN WITNESS WHEREOF the Parties hereto have hereunto caused this Asset Purchase Agreement to be executed. THE ISSUER The execution of this Asset Purchase Agreement by the Issuer, MEDINI ISKANDAR MALAYSIA SDN BHD Company No. 782021-V) is duly effected in a manner authorised by its constitution under the Seal of the Issuer which said Seal is

hereunto duly affixed on this day of LI th i CFI 2013 in the presence of:-

ti4

I •fitti

t

rt r t 

Director

C41 -11 9- 10-73,3

. Director/Secretary

Address

evel 23 Menara TM Jalan Pantai Baharu 50672 Kuala Lumpur

Facs acsimi imile le Contact person s)

03) 2246 0709 hief Executive Officer

 

8

THE PRIMARY SUBSCRIBER

SIGNED by as the Attorney for and on behalf of CIMB ISLAMIC BANK BERHAD Company No. 671380-H) on the

1,k day of

)

c 2 0 1 3 by ,

F e kd C he MO M Dector   Co rporate anking Malaysia

Address

Lower Level ,

Wisma Amanah Raya Berhad Jalan Semantan Damansara H eights 50490 Kuala Lumpur Facsimile Contact person s)

03) 2095 1303 ead of Corporate Banking

 

9

APPENDIX The A ssets

Description of Assets

Rentas Reference No./Contract ID

Asset Purchase Price RM)

Mudharabah Interbank Investment MID

11458738

118,382,702.16

Ascribed Value RM) 200 000 000.00