Exhibit 10.10
Our Ref : BBLO/HSF/YPS/AA/MKM/2023WZ1079/04777
PRIVATE AND CONFIDENTIAL
Date : 5th April 2023 | Maybank Islamic Berhad (200701029411)
Jalan Tun Perak Business Centre
30th Floor, Menara Maybank,
100, Jalan Tun Perak,
50050 Kuala Lumpur, Malaysia
Telephone +603 2070 8833
Facsimile +603 2070 1880 |
MEGAN MEZANIN SDN. BHD.
B-15-07, Pandora Serviced Residence,
Tropicana Metropark,
Jalan MPI,
47500 Subang Jaya,
Selangor Darul Ehsan.
Dear Sir/Madam,
| RE | : | ISLAMIC BANKING FACILITIES (FACILITY) |
| | | Business Centre | : | Jalan Tun Perak |
| | | Branch | : | Taman Connaught |
We are pleased to advise you that the Bank has approved your application for the Facility under SME+ Property & Business Financing-i (SME+ PBF-i) package, subject to the following terms and conditions:-
| 1. | TYPE OF FACILITY | FACILITY AMOUNT (RM) |
| | | |
| | Commodity Murabahah Term Financing-i (CMTF-i) | 390,600-00 |
Total banking facility(ies) is RM390,600-00 (Ringgit Malaysia Three Hundred Ninety Thousand And Six Hundred Only).
To part finance the purchase of office lot known as B-01-07, Block B, Gateway Corporate Suites, Gateway Kiaramas, No. 1, Jalan Desa Kiara, Mont Kiara, 50480 Kuala Lumpur held under Geran Mukim 8971/M1A/2/20, Lot 66957, Mukim Batu, Daerah Kuala Lumpur, Negeri Wilayah Persekutuan Kuala Lumpur. [Property 1]
The Facility is to be utilised for purposes not contrary to Shariah principles.
RM650,156-86.
The Bank’s Sale Price is based on a Ceiling Profit Rate (“CPR”) of 10.40% per annum (p.a.).
Notwithstanding the CPR above, the payment of the Bank’s Sale Price is based on the Effective Profit Rate (“EPR”).
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MEGAN MEZANIN SDN. BHD. | Page 1 of 28 |  |
| 5. | PRICING (EFFECTIVE PROFIT RATE/COMMISSION/CHARGES) |
Base Financing Rate (BFR) - 2.00% per annum (p.a.) on monthly rest.
Subject to compliance with Shariah principles, if the Bank determines that BFR (“Benchmark Rate”) may be permanently or indefinitely discontinued, or otherwise no longer appropriate for the purpose of calculating the Effective Profit Rate, commission, bank charges and other charges for the Facility, the Bank reserves the right to vary, at its absolute discretion from time to time, such Effective Profit Rate, commission, bank charges and other charges, which variation may take place by varying or substituting the Benchmark Rate, or the margin or spread above the Benchmark Rate, or both, or the entire manner, method or mode of calculation and computation thereof, or in any other manner whatsoever, by giving due consideration to (including but not limited to): (i) any designation, nomination or recommendation by a relevant nominating or governmental body; and (ii) generally accepted market practice (“the Revised Rate”).
In the event the Bank revises such rate of Effective Profit Rate, commission, bank charges and other charges due to the change or discontinuation of the Benchmark Rate, the Bank will notify you of the effective date of the revision Revised Rate. If you do not object in writing to us within twenty one (21) days of receipt of the notification of the Revised Rate, you are deemed to have accepted the same. If we receive your written objection within the said period, you have the right to prepay the outstanding amount of the facility in full subject to the terms set out in this Letter of Offer. If upon the expiry of the 30 days from your written objection, no prepayment of the Facility in full has been exercised, then the Revised Rate shall apply.
For the avoidance of doubt, if the revision of Effective Profit Rate is not caused by the change in or discontinuance of the Benchmark Rate but due to the movement of the Benchmark Rate, the Bank shall be entitled to revise the Effective Profit Rate by notifying you the implementation date/effective date of the new Effective Profit Rate.
Any such revision of Effective Profit Rate in the case of Commodity Murabahah based product shall not exceed the Ceiling Profit Rate.
The above Effective Profit Rate may be varied at any time by the Bank giving at least twenty one (21) days written notice prior to the implementation date provided always that it shall not exceed the Ceiling Profit Rate. (Applicable for Commodity Murabahah based product only)
Currently, the Bank’s BFR is at 6.40% p.a.
For the purposes of this Letter of Offer:-
| a) | Base Financing Rate means the rate of profit per annum from time to time prescribed by the Bank (and as varied from time to time by the Bank, subject always to the Ceiling Profit Rate where applicable) as an indicator rate against which rates of profit for financings made in Ringgit Malaysia in Malaysia to customers of the Bank are determined by the addition or otherwise of margins which rate is presently called the Base Financing Rate and shall mean any such indicator rate by whatever other name called by the Bank from time to time. If that rate is less than zero, the Base Financing Rate shall be deemed to be zero. |
Up to ten (10) years from the date the Facility is made available by the Bank.
Notwithstanding any other provisions herein stated related to the availability of the Facility or any part thereof, the Bank reserves the right to cancel the Facility or any part thereof at any time it deems fit by giving twenty one (21) days notice in writing or the whole or any such part thereof shall be cancelled upon an event of default and the whole indebtedness or such part thereof shall be payable on demand.
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MEGAN MEZANIN SDN. BHD. | Page 2 of 28 | |
| a) | By 120 equal monthly instalments of RM4,030-00 inclusive of profit until full settlement of the Facility. |
| b) | First (1st) instalment to commence one (1) month after full drawdown or upon expiry of availability period, whichever is earlier. |
| c) | For CMTF-i under progressive release, profit is to be serviced monthly in arrears. |
| a) | Availability Period for Profit Rates |
| i) | The availability period for CMTF-i profit rates should not exceed six (6) months from the date of this Letter of Offer. |
| ii) | In the event the facility(ies) is not able to be disbursed within the availability period, the rates to be used will be the prevailing profit rates, if any, at the point of drawdown. |
| b) | Availability Period for Drawdown |
Subject to fulfillment of all Conditions Precedent, the Facility shall be available for six (6) months from the date of this Letter of Offer or such other extended period as may be determined by the Bank. Any amounts not disbursed at the end of the Availability Period shall be automatically cancelled thereafter.
In respect of the Commodity Murabahah transaction, you shall pay to the Bank a trading fee of RM15-00 per every RM1,000,000-00 of the Facility Amount or such other amount as may be determined by the Bank from time to time.
In addition, all legal and incidental fee or charges (including but not limited to stamp duty) incurred or to be incurred in the preparation of all documentation and perfection of the Security shall be borne by you.
In the event you, having accepted this Letter of Offer, fails for any reason to proceed with the Facility, all costs and expenses incurred by the Bank and any solicitors instructed by the Bank shall be borne by you.
You shall be liable to pay all fees and expenses (including but not limited to any solicitor’s fees (on a solicitor-client basis)) if any monies shall be required to be recovered by any process of law or by the solicitors.
| b) | Master Facility Agreement. |
| c) | Asset Sale Agreement for RM650, 156-86 over Shariah compliant commodities determined by the Bank as per the e-certificate or such other evidence of ownership maintained by the Bank for this Facility (attached herein). |
| d) | A first (1st) party registered charge over Property 1. |
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MEGAN MEZANIN SDN. BHD. | Page 3 of 28 | |
| e) | Finance Service Reserve Account (FSRA) which is in the form of upfront deposit in first (1st) party General Investment Account-i (GIA-i)/lslamic Fixed Deposit-i (IFD-i) for RM12,090-00 [equivalent to three (3) months instalments]. Profit is to be capitalised. |
For 1st party GIA-i/lFD-i:-
| i) | Letter of Set-Off (LOSO) to be stamped for RM10-00. |
| ii) | Memorandum of Deposit (MOD) to be stamped and registered with Companies Commission of Malaysia (CCM). |
| f) | Individual Guarantee for RM390,600-00 to be executed by Hoo Wei Sern (NRIC: 841103-14-6587). |
| g) | Assignment of Keyman Takaful/Insurance for at least RM300,000-00 to be taken up by Hoo Wei Sern (NRIC: 841103-14-6587). |
| h) | Letter of Undertaking to be executed by all the Directors to cover any shortfall in payment of your facilities with the Bank. |
and such other documents or security documents as the Bank or the Bank’s solicitors may advise from time to time.
All obligors shall hereinafter be collectively referred to as “Security Party”.
The Facility is granted to you subject to the fulfilment of the following Conditions Precedent:-
| a) | As indicated in the General Terms and Conditions in Annexure 2. |
| b) | Bank’s receipt of the original/certified true copies of your Board of Directors’ Resolution accepting the banking facilities and authorising the execution of the necessary security and other documents in connection therewith. |
| c) | Processing fee of RM977-00 is payable and will be debited from your current account upon acceptance of this Letter of Offer. |
| d) | An Islamic current account is to be opened by you with our Taman Connaught branch within seven (7) business days from the date of acceptance of this Letter of Offer (if not done so). |
| e) | A Variable Standing Instruction (VSI) to be executed by you for the payment of CMTF-i via Current Account. |
| f) | Submission of a valid and duly stamped Proclamation of Sale (POS) indicating a purchase price of not less than RM558,000-00. |
| g) | Submission of an unqualified valuation report from our panel valuer addressed to the Bank, and indicating the property’s Open Market Value (OMV) of not less than RM558,000-00 for the purpose of securing credit facilities. Notwithstanding the above, the Bank shall be entitled to request for another valuation report from other panel valuers or conduct its own internal valuation on the property’s OMV. In the event the property’s OMV in the valuation report by any one of the panel valuers or the Bank’s internal valuation of the property indicates that the OMV is less than RM558,000-00, the Bank shall be entitled to exercise its right to reduce the financing amount accordingly and/or impose such other terms and conditions as it deems fit or shall be entitled to exercise its rights to declare an event of default and exercise its rights hereof, as the case may be. |
| h) | Margin of Financing (MOF) is 70% against purchase price per POS or OMV per valuation report, or maximum financing limit of RM390,600-00, whichever is lower. |
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MEGAN MEZANIN SDN. BHD. | Page 4 of 28 | |
| i) | Release of the facility is subject to submission of documentary evidence that you have settled the differential sum between the POS and the Bank’s financing amount. This is to be confirmed by the Bank’s panel solicitor. |
| j) | You shall furnish to us a statutory declaration in form declaring that the proffered property will be occupied by you for own business use. |
| k) | Certificate of Completion and Compliance (CCC) on the proffered property to be obtained from the relevant authorities. |
| l) | Submission of your Audited Accounts for Financial Year End (FYE) 31/07/2022 indicating financial performance that is acceptable to the Bank. |
| m) | Fire takaful/insurance to be taken on the proffered property from the Bank’s approved takaful/insurance companies. The Bank is to be endorsed as chargee and the policy shall not be terminated without the Bank’s prior written consent. |
The first (1st) right of refusal is to be given to Etiqa General Takaful Berhad/ Etiqa General Insurance Berhad to insure the property.
| n) | Any further condition as advised by the Bank and/or solicitors of the Bank which may be necessary to perfect the security of the Bank or which a reasonable, prudent bank may require. |
| 12. | OTHER TERMS AND CONDITIONS |
| a) | Reimbursement to you is allowed up to six (6) months from date of POS or date of consent for transfer of lease (where applicable), whichever is earlier, subject to documentary evidence that payment has been made to the Vendor. This is to be confirmed by the Bank’s panel solicitor. |
| b) | You are encouraged to channel your business proceeds into your account maintained with the Bank. |
| c) | The upfront deposit in 1st party GIA-i/lFD-i is to be maintained throughout the tenure of the facility. The Bank has the right to liquidate the GIA-i/lFD-i from the FSRA to cover any arrears without prior notification from you and you are to replenish the GIA-i/lFD-i within one (1) month from the date the GIA-i/lFD-i is liquidated. |
In the event of you default on three (3) consecutive months in any due payment or your Cash Line-i account is in excess of the limit for three (3) consecutive months under the Facility, the Bank shall be entitled to increase the profit margin of the Effective Profit Rate to Base Financing Rate (BFR) + 2.50% p.a. or 1.0% p.a. above the Effective Profit Rate (if the Effective Profit Rate is BFR + 2.50% p.a. and above) (“the Default Rate”) to be charged on the amount outstanding, or such other profit rates as the Bank may at its sole and absolute discretion prescribe from time to time.
For term financing where the payment for the Facility is by monthly, quarterly, half-yearly, yearly or bullet payment, the Bank shall be entitled to increase the profit margin of the Effective Profit Rate to Default Rate to be charged on the amount outstanding, or such other profit rates as the Bank may at its sole and absolute discretion prescribe from time to time, if the payment is due and unpaid for three (3) months from the first day of default.
Provided always that such increase shall not cause the total payment amount to exceed the Bank’s Sale Price.
The Default Rate will be revised to the prevailing Effective Profit Rate upon full settlement of all your payment in arrears under the Facility.
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MEGAN MEZANIN SDN. BHD. | Page 5 of 28 | |
During the entire Facility Tenure, the Bank reserves the right to increase the prevailing Effective Profit Rate to at least BFR + 0.00% in the event the difference between BFR and Bank Negara Malaysia (BNM) Overnight Policy Rate (OPR) declines to below 2% or imposed such other reference rate as deemed appropriate by the Bank. Provided always that such increase shall not cause the total payment amount to exceed the Bank’s Sale Price.
The increased rate will revert to the prevailing rate in the event the difference between the BFR and OPR increases to 2% above.
The Facility is also subject to the terms and conditions as set out in Annexure 1 and Annexure 2 to this letter together with such other annexure(s) and attachment(s) (if any) which shall form an integral part of this Letter of Offer.
If the terms and conditions enclosed are acceptable to you, kindly signify your agreement by signing and returning to us the enclosed duplicate copy of this letter within fourteen (14) days from the date of this letter and or such other extended period as may be determined by the Bank. In the event that it is not duly accepted, signed and returned to us within the aforesaid period, the offer herein contained shall, unless so extended by the Bank, lapse and be of no further effect.
Upon receipt of your acceptance of this Letter of Offer, we shall, if so required advice the Bank’s solicitors to prepare the necessary documentation containing such terms as the Bank may advise, and to take the necessary steps to perfect the security in connection with the Facility. The Bank’s obligation to make available the Facility to you shall be subject to (among others) execution of such documentation and completion of such steps as may be advised by the Bank and/or solicitors of the Bank.
Documentation in respect of the Facility must be completed to the satisfaction of the Bank and forwarded to the Bank within three (3) months from the date of this Letter of Offer (“Completion Date”) or such extended period as the Bank may without further notice to you agree in writing, failing which the Bank reserves the right to cancel the Facility.
We thank you for giving us the opportunity to be of service to you and we look forward to your acceptance of this Letter of Offer.
Thank you.
Yours faithfully
for and on behalf of MAYBANK ISLAMIC BERHAD
| /s/ GOH PEI PEI |  | | /s/ HO SIE CHENG |
GOH PEI PEI Head
Jalan Tun Perak Business Centre
Business Banking
Community Financial Services | | | HO SIE CHENG
Relationship Manager |
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MEGAN MEZANIN SDN. BHD. | Page 6 of 28 | |
| a) | Subject to the terms and conditions of the legal documentation to be executed, I/we further agree that this letter embodies in writing all and the entire terms of our agreement and I/we hereby declare and confirm that no warranties, promises, representations, collateral agreements have been made to me/us and if, which is denied, that any such warranties, promises, representations or collateral agreements were made they have now lapsed and are superseded by this Letter of Offer and be of no effect whatsoever. |
| b) | I/We acknowledge that I/we have read and understood the contents of this Letter of Offer and I/we further warrant that I/we have been advised to sought independent legal advice and acknowledge the obligations arising there from. |
| c) | If I/we are external account holder(s) or a non-resident controlled company, my/our total borrowings/financing in Malaysia does/do not exceed the amount as specified by the Controller of Foreign Exchange) and undertake to inform you immediately should my/our borrowings/financing exceeds the amount as specified by the Controller of Foreign Exchange. |
| d) | I/We further agree and authorise the Bank to make the relevant credit references with any external parties including but not limited to CCRIS, FIS, CTOS and any other credit reference agencies and that in so doing the Bank shall be entitled to disclose such information as may be necessary in order for the external parties to provide the Bank with the references/confirmation sought. |
| e) | I/We also undertake to utilise the Facility for purposes not contrary to Shariah principles, failing which the Bank reserves the right to terminate the Facility. |
| /s/ Hoo Wei Sern |  | | |
| Authorised Signatories and Company Chop | | | |
| Name : | HOO WEI SERN | | | |
| NRIC : | 841103-14-6581 | | | |
| Date : | 11 APRIL 2023 | | | |
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MEGAN MEZANIN SDN. BHD. | Page 7 of 28 | |
ANNEXURE 1
SPECIFIC TERMS AND CONDITIONS
COMMODITY MURABAHAH TERM FINANCING-i (CMTF-i)
| 1. | Method of Financing | : | In accordance with the contract of Murabahah (Cost Plus Sale) and the Bank’s financing procedures, upon the acceptance of the Letter of Offer for the Facility, you will request the Bank to purchase the underlying Shariah compliant commodities acceptable to the Bank (Commodity) from such commodity trader acceptable to the Bank and undertake to purchase the Commodity from the Bank. Pursuant to the request, the Bank will purchase the Commodity from any commodity trader at the price equivalent to the Facility Amount |
Thereafter, the Bank shall sell to you the Commodity and you shall purchase the Commodity at the Bank’s Sale Price which shall constitute the Facility Amount and the Bank’s Profit on deferred payment basis.
You shall also appoint the Bank as your agent to sell the Commodity to any commodity trader or any third party at an amount which shall be equivalent to the Facility Amount.
The proceeds of the sale of the Commodity shall be emplaced in your designated current account maintained with the Bank (“the Designated Current Account”) for disbursement subject to the terms of the Facility and as may be determined by the Bank from time to time.
| 2. | Purchase Request and Undertaking | : | In accordance with the financing procedures of the Bank, you hereby requests the Bank to purchase the Commodity from any commodity trader at the Facility Amount which shall be payable in accordance to the terms of the Facility. |
You hereby promise and irrevocably undertake to purchase the Commodity from the Bank, at the Bank’s Sale Price.
You confirm that the undertaking herein is irrevocable (except with the prior written consent of the Bank) and binding on your estate, heirs, successors in title, permitted assigns and personal representatives.
You undertake to fully indemnify and keep the Bank indemnified from or against any expenses, loss, damages or liabilities resulting from any defect, malfunction and/or the lack of merchantable quality of the Commodity or lack of fitness for use of the Commodity or otherwise howsoever in connection with this Purchase Request and Undertaking including against any loss in any manner whatsoever which the Bank may suffer as a result of the Bank agreeing to participate in the commodity Murabahah transaction.
| 3. | Appointment of Agency | : | You hereby irrevocably appoint the Bank as your agent to the effect that the Bank may perform the following:- |
| i. | to purchase the commodity that the Bank deems fit and take possession (physical or constructive) of the Commodity; |
| ii. | sell the Commodity to any commodity trader or any third party at the price equivalent to the Facility Amount; |
| iii. | receive proceeds from the sale of the Commodity on your behalf; and |
| iv. | to deliver possession of and title in and to the Commodity to any purchaser of the Commodity. |
The Bank shall at all times act as your undisclosed agent and the Bank shall:-
| (a) | be authorised to sign and execute all documents and do all acts and observe and perform all obligations required to be done in connection with the appointment as agent, or imposed under any agreement of sale of the Commodity to any commodity trader or third party; and |
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MEGAN MEZANIN SDN. BHD. | Page 8 of 28 | |
| (b) | be authorised to delegate its rights and duties as an agent herein to any third party to do all acts necessary for the completion of the required transactions; and |
| (c) | be required to do all the administrative duties regarding the holding and the selling of the Commodity thereof. |
The appointment of the Bank as your agent shall cease upon termination or cancellation of the Facility. In addition, the Bank also reserves the right to terminate this appointment for any negligence or misconduct by you.
Bank as your agent to execute documents
In addition to the appointment of agency as stated above, you hereby appoint the Bank as your agent to perform the following for and on your behalf:-
| (i) | to act and/or execute the necessary documents under the commodity Murabahah transaction (including but not limited to the Asset Sale Agreement); and |
| (ii) | to act and/or execute the necessary documents under the commodity Murabahah transaction (including but not limited to the Asset Sale Agreement) for the renewal of the Facility, if applicable; |
Save for the purpose of this appointment, the appointment shall not create or be deemed to create a partnership or a joint venture between the parties, nor shall it establish a relationship of principal or agent in any other relationship between the Bank and you.
You hereby agree that you shall indemnify and keep the Bank indemnified from any losses, costs, expenses or damage that the Bank may suffered or incur as a result of fulfilling the Bank’s agency function as set above.
| 4. | Terms and conditions of Sale of Commodity | : | The sale of the Commodity by the Bank shall be governed by the terms and conditions of the Letter of Offer. The Customer shall obtain such title to the Commodity as the Bank receives from the commodity trader free from encumbrances. The Bank shall not be deemed to give any warranty or representation (express or implied) whatsoever, whether arising by law, by statute or otherwise and, without prejudice to the generality of the foregoing, any such warranty or representation by the Bank is hereby expressly excluded to the full extent permitted by any applicable law. |
The parties hereby agree that upon the sale of the Commodity by the Bank to the Customer, the Customer shall bear full ownership and responsibilities towards the Commodity.
The Customer agrees that in purchasing the Commodity from the Bank, it shall have accepted the Commodity on an ‘as is, where is’ basis.
The Customer hereby waives any claims which it may have against the Bank in respect of any loss or damage which he may suffer by reason of, or arising out of or in connection with the Letter of Offer or any other security documents or otherwise (howsoever arising) in connection with or arising from the purchase of the Commodity.
| 5. | MRTT / MRTA (If applicable) | : | (a) | Mortgage Reducing Term Takaful (“MRTT”) / Mortgage Reducing Term Assurance (MRTA) shall be taken-up from either the Bank’s panel takaful/insurance or such other takaful operators/insurance companies of your choice as the Bank may require (for non-panel takaful operators/insurance companies, subject to the approval of the Bank). |
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MEGAN MEZANIN SDN. BHD. | Page 9 of 28 | |
| (b) | The MRTT/MRTA coverage is to be taken prior to the release of the facility. Unless provided otherwise, the MRTT single contribution is to be incorporated into the facility amount. In the event the MRTT single contribution is not to be incorporated into the facility amount, you shall finance the contribution charged. In the event you opt for MRTA, you shall finance the premium charged. |
| (c) | In the event the MRTT/MRTA is deemed substandard, the Bank’s panel takaful operators/insurance companies or such other takaful operators/insurance companies of your choice may charge additional contribution/premium or health loading contribution/premium. Under such circumstances, you shall finance the additional contribution/premium charged. |
| (d) | In the event of the inability on your part to satisfy the requirements imposed by either the Bank’s takaful operators/insurance companies or such other takaful operators/insurance companies of your choice for the MRTT/MRTA coverage resulting in no MRTT/MRTA coverage in respect of the facility(s) offered by the takaful operators/insurance companies vide this letter of offer, you confirm that you fully understand the consequential effects that such absence of the MRTT/MRTA and therefore agree not to hold the Bank responsible. |
| (e) | In the event that you have requested the Bank for waiver of MRTT/MRTA coverage or in the event of the inability on your part to satisfy the requirements imposed by either the Bank’s panel takaful operators/insurance companies or such other takaful operators/insurance companies of your choice for the MRTT/MRTA coverage resulting in the MRTT/MRTA coverage in respect of the facility(s) offered by the takaful operators/insurance companies vide this letter of offer is not for the full facility amount and /or not for the full tenure of the facility(s), you confirm that you fully understand the consequential effects that such absence of the MRTT/MRTA and therefore agree not to hold the Bank responsible. |
| 6. | PRTT/PRTA (If applicable) | : | (a) | Personal Reducing Term Takaful (“PRTT”)/Personal Reducing Term Assurance (PRTA) shall be taken-up from either the Bank’s panel takaful operators/insurance companies or such other takaful operators/insurance companies of your choice, as the Bank may require (for non-panel takaful operators/insurance companies, subject to the approval of the Bank). |
| (b) | The PRTT/PRTA coverage is to be taken prior to the release of the facility(s). Unless provided otherwise, the PRTT contribution is to be paid from the facility amount. In the event the PRTT single contribution is not to be paid from the facility amount, you shall finance the contribution charged. In the event you opt for PRTA, you shall finance the premium charged. |
| (c) | In the event the PRTT/PRTA is deemed substandard, the Bank’s panel takaful operators/insurance companies or such other takaful operators/insurance companies of your choice may charge additional contribution/premium or health loading contribution/premium. Under such circumstances, you shall finance the additional contribution/premium charged. |
| (d) | In the event of the inability on your part to satisfy the requirements imposed by either the Bank’s panel takaful operators/insurance companies or such other takaful operators/insurance companies of your choice for the PRTT/PRTA coverage resulting in no PRTT/PRTA coverage in respect of the facility(s) offered by the takaful operator /insurance companies vide this letter of offer, you confirm that you fully understand the consequential effects that such absence of the PRTT/PRTA and therefore agree not to hold the Bank responsible. |
| (e) | In the event that you have requested the Bank for waiver of PRTT/PRTA coverage or in the event of the inability on your part to satisfy the requirements imposed by either the Bank’s panel takaful operators/insurance companies or such other takaful operators/insurance companies of your choice for the PRTT/PRTA coverage resulting in the PRTT/PRTA coverage in respect of the facility(s) offered by the takaful operator /insurance companies vide this letter of offer is not for the full facility amount and/or not for the full tenure of the facility(s), you confirm that you fully understand the consequential effects that such absence of the PRTT/PRTA and therefore agree not to hold the Bank responsible. |
[End of Annexure 1]
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MEGAN MEZANIN SDN. BHD. | Page 10 of 28 | |
ANNEXURE 2
GENERAL TERMS AND CONDITIONS
| 1. | Conditions Precedents | : | The obligation of the Bank to make any disbursement is subject to the fulfillment in the manner satisfactory to the Bank prior to the making of any disbursement, of the following Conditions Precedent (including but not limited to): |
| (a) | The Security Documents shall have been duly executed, stamped and presented for registration with such registries as the Bank may deem necessary or expedient. |
| (b) | Searches have been conducted by the solicitors on you and/or Security Party or your directors and/or directors of the Security Party at the Companies Commission of Malaysia (“CCM”) and Jabatan lnsolvensi Malaysia (“JIM”) (whichever applicable) confirming that you and/or Security Party have not been wound up or adjudicated bankrupt (whichever applicable). |
| (c) | That as from the date when you first applied for the Facility, there has been no material alterations or changes or event or events occurred which could or might materially or adversely affect your and/or Security Party’s financial condition or otherwise or your and/or Security Party’s ability to observe and perform their obligations under this Letter of Offer and other Security Documents which could or might adversely affect decision of the Bank to proceed with the granting of the Facility. |
| (d) | You and/or Security Party (where applicable) has disclosed to the Bank all material facts known to you/them relating to your/their financial conditions. |
| (e) | you and/or Security Party are not in default under any agreement to which you/they are party or by which you/they may be bound and no litigation arbitration or administrative proceedings are presently current or pending or threatened which default litigation arbitration or administrative proceedings as the case maybe might in the opinion of the Bank (which opinion shall not be questioned on any account whatsoever) materially affect your and/or Security Party’s solvency or might affect your and/or Security Party’s ability to observe and perform your/their obligations under this Letter of Offer and other Security Documents. |
| (f) | The Bank is satisfied that no event has occurred so as to render any indebtedness under the Facility to become immediately payable and no Event of Default under the Facility has occurred or is threatened. |
| (g) | Where applicable, the solicitors shall have certified that a search on the property at the relevant land registry or office showed that the property is free from any encumbrances whatsoever and, where applicable, there are no restrictions in interest affecting the property. In the event there is any restriction in interest, prior written consent should have been obtained from the relevant authority. |
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MEGAN MEZANIN SDN. BHD. | Page 11 of 28 | |
| (h) | For property held on land that is in the process of status conversion to “industrial or commercial”, disbursement of funds is subjected upon payment of premiums for the conversion of land. Otherwise the Bank reserves the rights to revise, vary, reduce or cancel the facility(s) offered as it deemed fit. |
| (i) | Letter of Undertaking from master chargee or any other chargee bank (if any) to exclude the property in the event of any foreclosure proceedings taken against the property and disclaiming all rights and interests over the property have been obtained. |
| (j) | Letter of Undertaking from vendor / developer to forward a copy of the individual title/strata title to the property upon issuance free from encumbrances and to further undertake to refund all monies released in the event that the transfer cannot be registered for whatsoever reasons. |
| (k) | There shall have been obtained all approvals, consents, authorizations and licenses, including but not limited to those which are corporate or which may be required from any governmental or statutory or regulatory authorities or creditors, which are necessary or expedient for the obtaining of the Facility from the Bank hereunder, the execution where appropriate, registration of the Security Documents in respect of the Facility, the carrying out of your business and/or affairs and for the transactions herein contemplated. |
| (l) | You and/or any other relevant party shall have fulfilled, in a manner satisfactory to the Bank, all other conditions precedent as set out in the Letter of Offer or any further conditions as advised by solicitors of the Bank or conditions which may subsequently be imposed by the Bank. |
| 2. | Execution of Security Documents | : | Notwithstanding anything to the contrary, the Facility is conditional upon the preparation, execution and perfection of the Security Documents as stated herein. If you do not fulfill such conditions within 30 days from the date of acceptance of this Letter of Offer (or such other extended time as may be permitted by us from time to time), the Bank reserves the right to vary or terminate the Facility at the Bank’s sole discretion. |
| 3. | Termination and Acceleration | : | Notwithstanding any other provisions herein stated relating to the payment and availability of the Facility, the Bank reserves the right in the event of default, to terminate and accelerate payment of the Bank’s Sale Price and/or other indebtedness at any time it deems fit by giving written notice of the same, whereupon the Facility or such part thereof shall be terminated and the whole indebtedness or such part thereof shall be payable upon demand. |
Without prejudice to the generality of the foregoing, the Bank reserves the right to terminate and accelerate payment of the Bank’s Sale Price and/or other indebtedness, if the Facility(s) is utilised for any purpose which is in contravention of the Shariah principles as determined by the Bank.
| 4. | Credit Bureau | : | Bank Negara Malaysia (BNM) has established the Credit Bureau, to collect information from banks regarding the credit facilities, which they grant to their customers. This is to enable participating banks that are approached for credit facilities by a customer to be informed by the Credit Bureau of the aggregate credit facilities granted to the customer by other banks. This information to be kept strictly confidential between the Credit Bureau and all other participating banks and it is a term of this Facility that information regarding it will be given to the Credit Bureau for the use of the Credit Bureau and the participating banks. |
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MEGAN MEZANIN SDN. BHD. | Page 12 of 28 | |
| 5. | Cost and Expenses | : | (a) | In the event the customer, having accepted this Letter of Offer, fails for any reason to proceed with the facility, all costs, fees and expenses whatsoever including but not limited to legal fees (on a solicitor and client basis), stamp duty, incidental fees or other charges incurred by the Bank in connection with or incidental to the Facility shall be borne by you. |
| (b) | In the event that the Facility is cancelled by you, the Bank reserves the right to recover from you all legal fees, stamp duty, disbursements, valuation fees and cost incurred or suffered by the Bank arising from or relating to this Facility (including those which the Bank had agreed to bear as aforesaid) by any method the Bank deems necessary without further notice, including, the right to debit any account maintained by you with the Bank. You shall be liable to pay all fees and expenses including the Bank’s legal fee, for any monies that shall be required to be recovered by any process of law or by the Bank’s solicitors or such other parties appointed by the Bank. |
| 6. | Late Payment Charges (LPC) | : | (a) | It is expressly agreed by the parties that the Bank shall have the right to be compensated on late instalment and/or default payment based on the following mechanism: |
| (i) | Overdue installment or Scheduled Payment |
For failure to pay any instalment or any payment due from the date of the first disbursement of the Facility until its expiry or maturity date, an LPC sum equivalent to one per cent (1%) per annum of the overdue instalments/payment or by any other method approved by Bank Negara Malaysia (BNM);
For failure to pay any instalments or any payment due and which failure continues beyond the expiry or maturity date of the Facility or upon judgment, whichever is earlier, at the LPC rate which shall be the prevailing daily overnight Islamic Interbank Money Market (IIMM) rate on the outstanding balance due and payable or any other method approved by Bank Negara Malaysia from time to time.
| (b) | Notwithstanding the amount of LPC charged, it is expressly acknowledged and agreed that the said amount of LPC shall not be further compounded. |
| (c) | The LPC shall be applied to the judgment sum and shall be payable from the date of the judgment is made until the date of actual payment. |
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| 7. | Rebate | : | The Bank shall grant rebate (lbra) to you for any sale based Facility on, but not limited to, the following events: |
| (a) | Early settlement or early redemption, including those arising from prepayments; |
| (b) | In the event of early commencement of Monthly Instalment prior to the expiry of grace profit period (for properties under construction); and |
| (c) | In the event the Effective Profit Rate is lower than the Ceiling Profit Rate. |
| (d) | In the event the actual disbursed amount is less than the Facility Amount. |
For avoidance of doubt, it is hereby acknowledged and agreed that the rebates referred to herein shall not be construed in any manner whatsoever as cash rebate payable to you, but shall be reflected as a reduction in the profit element of the Bank’s Sale Price. The rebate shall only be deemed granted upon receipt of the settlement/redemption sum as determined by the Bank based on the following formula:
| | Outstanding Bank’s
Sale Price | LESS | Outstanding Facility Amount | LESS | Other
Amount Due
to the Bank |
| 8. | Prepayment | : | Prepayment of the facility is allowed in full or in part without compensation, break funding cost, premium or compensation subject to the following: |
| (a) | you shall provide one month prior written notice to the Bank;\ |
| (b) | any amount prepaid shall not be available for refinanced; and |
| (c) | prepayments shall be made in the inverse order of maturity |
Failing which and as approved by the Bank’s Shariah Committee, actual cost incurred by the Bank shall be imposed. For avoidance of doubt, any prepayment on profit payment date shall not be subjected to break funding cost or other premium or compensation.
| 9. | Default/Funding Rate | : | (a) | Default Clause |
In the event of you default on three (3) consecutive months in any due payment or your Cash Line-i account is in excess of the limit for three (3) consecutive months under the Facility, the Bank shall be entitled to increase the profit margin of the Effective Profit Rate to Base Financing Rate (BFR) + 2.5% p.a. or 1.0% p.a. above the Effective Profit Rate (if the Effective Profit Rate is BFR + 2.5% p.a. and above) (“the Default Rate”) to be charged on the amount outstanding, or such other profit rates as the Bank may at its discretion prescribe from time to time.
For term financing where the payment for the Facility is by monthly, quarterly, half-yearly, yearly or bullet payment, the Bank shall be entitled to increase the profit margin of the Effective Profit Rate to Default Rate to be charged on the amount outstanding, or such other profit rates as the Bank may at its discretion prescribe from time to time, if the payment is due and unpaid for three (3) months from the first day of default.
Provided always that such increase shall not cause the total payment amount to exceed the Bank’s Sale Price.
The Default Rate will be revised to the prevailing Effective Profit Rate upon full settlement of all your payment in arrears under the Facility.
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During the entire Facility Tenure, the Bank reserves the right to increase the prevailing Effective Profit Rate to at least BFR + 0.00% in the event the difference between BFR and Bank Negara Malaysia (BNM) Overnight Policy Rate (OPR) declines to below 2% or at least up to Cost Of Fund (COF) + 1% in the event the Effective Profit Rate is lower than the prevailing COF (whichever applicable) or imposed such other reference rate as deemed appropriate by the Bank. Provided always that such increase shall not cause the total payment amount to exceed the Bank’s Sale Price.
| 10. | Consents, Undertaking and Caveat | : | You shall by signing and accepting this Letter of Offer, consent and authorize the Bank to lodge any caveat or to obtain all undertakings, disclaimers and consents to the satisfaction of the Bank which are necessary in the Bank’s view for release of the Facility. |
| 11. | Rights of Bank to Indebtedness | : | All indebtedness which may include the Bank’s Sale Price and/or other moneys due and payable under the Facility shall continue to be due and payable, notwithstanding any termination of the relationship of banker and customer or any judgment or order obtained by us until full payment is received by the Bank. |
| 12. | Exchange Control | : | You are responsible for obtaining any exchange control approvals which may be required. |
| 13. | Review | : | Notwithstanding and without prejudice to anything herein stated, the Bank may review the Facility from time to time at any time as the Bank may in its sole discretion deem fit including any time before the utilization of the Facility. |
The Bank shall allow utilization or disbursement of the Facility or any portion thereof subject only to the Bank being satisfied that the review exercise indicates there are no financial, market or business or environmental factors, material or otherwise that may affect you financially.
The Bank reserves the right upon review (with seven (7) days prior notification to you) to cancel, suspend, restructure, vary or amend the Facility and the operating account(s) for the Facility or any terms and conditions herein prior to any utilization or disbursement of the Facility or any portion thereof.
| 14. | Variation of the Facility | : | It is hereby expressly agreed and declared by the parties hereto that the Facility and/or the Security Documents may, subject to Shariah principle, be varied in the manner acceptable to the Bank and thereupon such amended details of the Facility and/or the Security Documents shall be deemed to become effective and shall be read and construed as if such amended details have been incorporated in and had formed part of the terms and conditions of the Letter of Offer. |
| 15. | Right to Withdraw / Cancel Facility Prior to / After Completion of Documentation | : | The Bank has the right upon an event of default to do the following at any time whatsoever whether or not the Facility herein have been disbursed or utilized:- |
| i. | At any one time hereafter and notwithstanding that the Security Documents has been completed, to withdraw or not make available the Facility or any part thereof upon the happening of any event which in the Bank’s opinion would affect in any way your financial position and/or hinder the carrying on your business affairs in accordance with sound financial, industrial or commercial standards and practices and/or would jeopardise the Bank’s security position and/or which is a default in respect of any of the requirements of the Bank whatsoever at any time and from time to time and the decision of the Bank shall be final and conclusive. The Bank has the absolute discretion to decide on the implementation of this condition (whenever deemed applicable). |
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| ii. | Notwithstanding that the Security Documents has been duly approved, accepted and/or completed, the Bank has the absolute right and discretion not to release or make available the Facility or any part thereof or to withdraw, terminate and/or terminate the Facility and the operating account(s) for the Facility therein granted to you immediately upon the Bank becoming aware that you and/or security party is/are or has/have been investigated or is/are alleged to be involved and/or had committed any illegal activities or criminal offences of any nature whatsoever or will be or have been allegedly subjected to any criminal prosecution and/or conviction and/or any security in respect of the Facility held by the Bank is subjected to or at risk of freezing, seizure and forfeiture by the Federal Government and/or other relevant authorities or regulatory bodies. In all events, the Bank’s decision shall be final and conclusive. |
| iii. | Where applicable, to withdraw this Letter of Offer in the event the terms and conditions of such other document required by the Bank are deemed to be unfavorable and not in the Bank’s interest. In the event such document has not been given to the Bank prior to issuance of this Letter of Offer, this Facility is subject to the Bank being satisfied with the terms of such document upon it being forwarded to the Bank. |
The Bank has the right to suspend / freeze the operating account for the Facility granted by giving written notice.
| 16. | Representations
and Warranties | : | 16.1 | You acknowledge that the Bank has entered into this Letter of Offer, in full reliance on your representations in the following terms:- |
| (a) | Powers and authorisation: you have the powers and legal authority to execute and deliver, and perform your obligations under this Letter of Offer and/or the Security Documents which constitutes your valid and binding obligations enforceable in accordance with its terms and has not been terminated; |
| (b) | Non-violation: neither the executionand delivery of this Letter of Offer and/or the Security Documents nor the performance of any of the transactions contemplated in such documents will contravene or constitute a default under any provision contained in any agreement, instrument, law, judgment, order, license, permit or consent by which you or any of your/its assets is bound or affected; |
| (c) | Consents: no authorisation, approval, consent, licence, exemption, registration, recording, filing or notarisation and no payment of any duty or tax and no other action whatsoever which has not been duly and unconditionally obtained, made or taken is necessary or desirable to ensure the validity, enforceability or priority of your liabilities and obligations and the rights of the Bank under the Security Documents; |
| (d) | No default: no event has occurred which constitutes, or which with the giving of notice and/or the lapse of time and/or a relevant determination would constitute, a contravention of, or default under, any agreement or instrument by which you or any of your assets is bound or affected; |
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| (e) | Litigation: no litigation, arbitration or administrative proceeding or claim that may have a Material Adverse Effect (as defined hereafter) which would by itself or together with any other such proceedings or claims have been made against you or the Security Party or against your or the Security Party’s assets; |
| (f) | Change in Customer: Since the date you applied for the Facility there has been no material alterations or changes which could or might adversely affect your ability to perform your obligations under the Security Documents; |
| (g) | Information: the information furnished or to be furnished by you in connection with the Facility does not contain any untrue statement or omit to state any fact the omission of which makes the statements therein, in the light of the circumstances under which they were made are misleading in any material respect and there is no material omission in respect thereof, and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by you; |
| (h) | Guidelines on Credit Transaction and Exposures with Connected Parties for Islamic Banks: None of the Security Party or the spouses, parents, children of such Security Party are directors, officers or in any way otherwise connected with the Bank within the meaning of the said Guidelines; |
| (i) | Where you are a company, you are duly incorporated and validly existing under the Companies Act, 2016 and the laws of Malaysia and has full power and authority to own assets, to apply and accept the Facility and carry on your business as it is now being carried out; |
| (j) | Event of Default: no event of default has occurred and/or is continuing. |
The representations and warranties set out herein shall survive the signing and delivery of this Letter of Offer and any utilisation of the Facility and until the full and final settlement of the Facility, as the case may be.
| 17. | Covenants | : | 17.1 | Affirmative Covenants |
By your acceptance of the Facility, you undertake that so long as the Facility or any part thereof or any profit or any other sum from time to time payable hereunder shall remain outstanding you shall:-
| (a) | at all times operate your account actively and satisfactorily and observe the approved limit of the Facility; |
| (b) | keep the Bank in close touch with the progress of your business and furnish the Bank with such information to such extent and in such form and detail as the Bank may from time to time reasonably require; |
| (c) | carry on and conduct your affairs and businesses with all due diligence and efficiency and in accordance with sound financial and business standards and practices; |
| (d) | keep full and particular accounts of the carrying on of your business or businesses and cause the same to be properly posted up to date and furnish the Bank with audited annual financial statements within six (6) months or such other period determined by the Bank of the close of each financial year; |
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| (e) | notify the Bank of the occurrence of any Event of Default or of any material adverse change in your condition (financial or otherwise) or of any other occurrence of which you become aware which in the Bank’s reasonable opinion might adversely affect your ability fully to perform its obligations under this Letter of Offer; |
| (f) | notify the Bank should any of your authorised signatories be no longer authorised to sign or otherwise to act on your behalf hereunder. |
| (g) | appoint from time to time such auditor or firm of auditors acceptable to the Bank and authorise such auditor or firm of auditors to supply the Bank with a certified copy of any communication sent by such auditor to you and further to communicate directly with the Bank at any time in respect of any matter connected with your accounts and operations subordinate all your existing and future shareholders and/or directors and /or related companies advances to the Bank. |
| (h) | notify the Bank in the event of any change in your residential status. |
| (i) | immediately notify the Bank in the event of change of nature of your business (if applicable). In the event such change results in a breach to the Shariah principles, the Bank reserves the right to terminate the Facility whereupon the indebtedness shall be payable on demand. |
You further undertakes by its acceptance of the Facility you will not without the Bank’s prior written consent:-
| (a) | incur assume guarantee or permit to exist any indebtedness except for the indebtedness under this Letter of Offer and any indebtedness which has been disclosed by you to the Bank prior to the date of this Letter of Offer. |
| (b) | create or permit to exist any lien on any of your assets except any tax or other statutory lien provided that such lien shall be discharged within thirty (30) days after final adjudication, “lien” being defined to include any assignment mortgage pledge charge privilege encumbrance and/or priority of any kind and “assets” being defined to include any right interest receivable revenue and/or property movable or immovable of any kind, present or future; |
| (c) | enter into any transaction with any person except in the ordinary course of business on ordinary commercial terms and on the basis of arm’s length arrangements or establish any exclusive purchasing or sales agency or enter into any transaction whereby you may pay more than the ordinary commercial price for any purchase or may receive less than the full ex-work commercial price (subject to normal trade discounts) for its products; |
| (d) | enter into any partnership profit-sharing or royalty agreement or other similar arrangement whereby your income or profits are or might be shared with any person firm or company or enter into any management contract or similar arrangement whereby your business or operations are managed by any other person firm or company; |
| (e) | make or have any subsidiary make or permit to give financing or lending or make advances to your holding company or any related corporation or to others including a director of any subsidiary or holding or any related corporation or make investments in other companies or enterprise or guarantee any person including a director of any subsidiary or holding or any related corporation enterprise or company (other than normal trade credit or trade guarantees or temporary financings to staff customers contractors or suppliers in the ordinary course of business) PROVIDED that you shall be at liberty to invest in short-term marketable securities acquired solely so as to utilize such funds as are not immediately required for its business; |
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| (f) | add to, delete, vary or amend your Memorandum and Articles of Association or constitution in any manner which would be inconsistent with the provisions of this Letter of Offer or the nature of your business, or sell, transfer, lease or otherwise dispose of all or a substantial part of your capital assets, or undertake or permit any merger, consolidation or reorganization if the result in so doing will materially and adversely affect your financial condition; |
| (g) | save in the normal course of business, dispose of any your assets or investments; |
| (h) | allow any court judgment entered against you to be unsatisfied for more than fourteen (14) days; |
| (i) | decrease or in any way alter your authorized or issued capital, whether by varying the amount structure or value thereof or the rights attached thereto or connected to any of its share capital into stock or by consolidating, dividing or subdividing all or any of its shares. |
| (j) | declare or pay dividends to your shareholders if there monies under this Facility due and payable; |
| (k) | undertake or permit any merger, consolidation or reorganization or amalgamation by way of a scheme of arrangement (voluntary or otherwise) or otherwise or approve, permit any transfer of any part of its issued capital; |
| (l) | make any prepayment of any advances or financing by your shareholders, directors or related companies. |
| 18. | Debit to
Account | : | Any monies due and payable to the Bank, or advanced by the Bank on your behalf may be debited to any account as the Bank deems fit and if debited to your current account, may be treated as an advance on an overdraft facility. Notification of at least twenty one (21) days will be given to you prior to the effective date of the implementation. |
| 19. | Evidence of
Indebtedness | : | In any legal action or proceedings relating to the Facility, a certificate of the Bank as to any amount due to it under the Facility shall, in the absence of manifest error, be conclusive evidence that such amount is in fact due and payable. |
| 20. | Events of
Default | : | Notwithstanding any other provision herein relating to any payment of Facility, the Facility or any part thereof may be terminated whereupon all indebtedness being outstanding and unpaid thereon and all other moneys owing to the Bank shall be payable on demand in the event:- |
| (a) | You and/or Security Party (i) defaults or fails to pay any amount due in respect of the Facility, or (ii) fails to pay on due date any monies payable by you, and/or Security Party under any agreement or arrangement to any other financier; |
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| (b) | You and/or Security Party dies, become insane or is adjudicated a bankrupt or is wound up or insolvent; |
| (c) | You and/or Security Party fails to observe or perform any of the agreements, covenants, stipulations, terms and conditions under herein to be observed or performed; |
| (d) | A distress or execution is levied or enforced upon any of your property or assets and/or Security Party’s property or assets and is not satisfied within seven (7) days from the date of commencement of such distress or execution; |
| (e) | Legal proceedings, suit or action of any kind is instituted against you and/or Security Party; |
| (f) | You and/or Security Party are unable to pay any debt or suspend payment thereof or enter into any arrangement or composition (voluntary or otherwise) in respect of the affairs of the company with your financiers/creditors or your guarantor or security party’s financier/creditor, or commit an act of bankruptcy or insolvency or passed or any application any resolution for the Customer and/or any Security Party to be placed under judicial management; |
| (g) | Any event occurs or circumstances arose including changes in the financial condition which in the opinion of the Bank would materially affect your ability and/or Security Party’s ability to perform or comply with your /its obligations to the Bank; |
| (h) | The Bank is in the opinion that the security in favour of the Bank is in jeopardy; |
| (i) | You have been listed with any adverse record in the Dishonoured Cheques Information System; |
| (j) | Any part of your and/or the Security Party or your or their subsidiarjes assets shall be acquired, seized or otherwise appropriated or nationalized by any person acting or purporting to act under the authority of the government, or you shall have been prevented from exercising your normal control and possession over such asset; |
| (k) | You enter into or propose to enter into or a declaration is made by any competent court or authority, a moratorium on the payment of indebtedness or other suspension of payments generally; |
| (l) | An event has occurred or a situation exists which may, in the Bank’s opinion cause the occurrence of a Material Adverse Effect; or |
| (m) | Such other events of defaults as may be advised by the Bank’s solicitors. |
then, at once or at any time thereafter, the Bank may, by notice to you declare the Facility to be immediately due and payable whereupon:
| (a) | the indebtedness shall become immediately due; and |
| (b) | no further utilization of the Facility shall be made and the Facility shall be cancelled. |
For the avoidance of doubt, the term “Material Adverse Effect” means a change in or a material adverse effect upon:-
| (a) | the business, operations or financial condition of you and or the Security Party; |
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| (b) | the ability of you and/or Security Party to perform its obligations under any of the Security Documents; and/or |
| (c) | the legality, validity or enforceability of any of the Security Documents. |
| 21. | Set Off | : | The Bank may with seven (7) calendar days’ notice to you, combine, consolidate or merge all or any of your accounts with the Bank and may set off or transfer any sum outstanding to the credit of any such accounts in or towards the satisfaction of any of your liabilities to the Bank under the Facility. |
The Bank may concurrently earmark the available funds in your accounts against the outstanding balance of the facility(s) upon the issuance of the notice to you.
| 22. | Cross Default | : | You hereby expressly agree that if any sums shall be due from you and/or Security Party to the Bank or any third party or parties under any agreement or instrument from time to time or at any time or if you and/or Security Party may be or become liable to the Bank or any third party or parties anywhere on banking account or any other account current or otherwise in any manner whatsoever or if default is made in any provisions of such account or in any other banking facilities granted by the Bank or any third party or parties to you and/or Security Party or in any of the provisions herein, then in any such event, upon notification by the Bank to you within seven (7) Business Days, the moneys hereby secured together with all moneys payable under such account or other banking facilities aforesaid shall immediately become due and payable and the security herein shall become immediately enforceable. |
| 23. | Indemnity | : | You shall fully indemnify the Bank against any loss or expenses (including legal fees on a solicitors and client basis) which the Bank may incur as a consequence of any default on your part in due performance of any of the obligations expressed to be assumed by you in relation to the Facility. |
| 24. | Increased
Costs/Capital
Adequacy | : | Where the Bank determines that the introduction or change in any law (or any change in the interpretation or application of any law), regulation, directive or request from any governmental or regulatory authority (whether or not having the force of law) imposes or modifies any capital adequacy or similar requirement (including, without limitation, a requirement, which affects the Bank’s allocation of capital resources to its obligations) and, as a result, increases the cost to the Bank of making or maintaining or of funding any amount paid out or contingently to be paid out under the Facility or obliges the Bank to make any payment or calculated by reference the amount of any sum received or receivable by the Bank, then:- |
| i) | the Bank shall notify you of such event upon its becoming aware of the same; |
| ii) | the Bank shall be entitled to vary the Effective Profit Rate on the Facility; |
| iii) | the Bank shall be entitled to review the Facility and take necessary action it deems fit including but not limited to discontinue further utilization or terminate the Facility. |
| 25. | Illegality | : | Where the Bank determines that the introduction, imposition or variation of any law, order, rule, regulation or official directive (whether or not having the force of law) or any change in the interpretation or application thereof or any compliance therewith makes it apparent to the Bank that it will be unlawful or impractical without breaching any such law, order, regulation or official directive (whether or not having the force of law) for the Bank to maintain, fund or give effect to its obligations herein:- |
| a) | the Bank’s obligations to fund any further utilization shall terminate and the Facility shall be cancelled to such extent; and |
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| b) | if any utilization has been made, you shall prepay the Facility without premium or penalty to the Bank as the Bank shall direct and certify to be necessary to comply with the relevant law. |
| 26. | Statement by Bank | : | A statement by a duly authorized officer of the Bank for the time being, as to any amount due and payable shall, saves for manifest error be conclusive evidence for all purposes. |
| 27. | Dissolution of
Wakalah | : | The appointment of the Bank as your agent shall cease upon termination or cancellation of the Facility. In addition, the Bank also reserves the right to terminate this appointment for any negligence or misconduct by you. |
| 28. | Guarantee | : | Notwithstanding anything herein contained the fact that one or more of the above named guarantors may not have executed a guarantee in form and substance acceptable to the Bank, the guarantee when executed shall be binding and enforceable against each guarantor who executes the same. |
| 29. | Change in Shareholding and/or Partnership | : | You shall not without first obtaining the prior written consent of the Bank, allow any change in your existing shareholders or their respective shareholdings or in your existing composition of partners, failing which, the Bank may declare the banking facilities to be cancelled and all indebtedness to be immediately due and payable. |
| 30. | Changes in
Circumstances | : | The obligation of the Bank to continue to make available to you the Facility shall, in addition to the terms and conditions herein and there being no default by you, be subject to there being no change in circumstances which may affect the ability of the Bank to grant the Facility or which may increase the cost to the Bank of doing so. |
| 31. | Notices | : | a) | Any notice or communication may be in writing and may be delivered personally, by post, telex, cable or facsimile to you at the address herein stated. Proof of posting or dispatch of any notice or communication to you shall be deemed to be proof of receipt:- |
| i) | if personally delivered, at the time of delivery; or |
| ii) | if posted, on the second business day after posting; or |
| iii) | in the case of telex or cable, on the business day immediately after transmission; or |
| iv) | in the case of a facsimile, on the business day immediately after transmission provided that the Bank has received an answer back confirmation. |
| b) | No change in your address herein stated howsoever brought about shall be effective or binding on the Bank unless actual notice of the change of address has been given to the Bank. |
| 32. | Service of Legal
Process | : | a) | The service of any legal process may be given by prepaid registered or ordinary post sent to you at the address herein stated and such legal process shall be deemed to have been duly served after the expiration of five (5) days from the date it is posted. |
| b) | No change in your address herein stated howsoever brought about shall be effective or binding on the Bank unless actual notice of the change of address has been given to the Bank. |
| 33. | Severability | : | Any term, condition, stipulation, provision, covenant or undertaking contained herein which is illegal, prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such illegality, prohibition or unenforceability without invalidating the remaining provisions hereof and any such illegality, 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. |
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| 34. | Waiver | : | No delay by the Bank in exercising nor any omission to exercise any right, power or remedy accruing to the Bank upon any default shall affect, impair or prejudice any right, power or remedy or be construed to be a waiver thereof or any acquiescence in such default, nor shall any action by the Bank in respect of any default, impair or prejudice any right, power or remedy of the Bank in respect of any subsequent default. |
| 35. | DCHEQS | : | In accordance with the prevailing DCHEQS guidelines, the Bank reserves the right with notice given to you at least twenty one (21) days to close your current account(s) whether held solely or jointly with others. |
| 36. | Guidelines on
Credit
Transactions
and Exposures
with Connected
Parties for
Islamic Banks by
Bank Negara
Malaysia (BNM) | : | In accordance with the Guidelines on Credit Transaction and Exposures with Connected Parties for Islamic Banks and/or of any replacement guidelines/specifications/circulars issued pursuant to the Islamic Financial Services Act 2013, the approval and the operation or utilization of such facility is strictly conditional that neither you or your partners or directors, shareholders, managers or agents of your firm or company or Security Party for the Facility is directly related to any director, officer or employee of the Bank currently or at any time in the future either as a parent, spouse or child. The Bank reserves the right to terminate the Facility and you hereby undertake to advise the Bank immediately if the above relationship is established or discovered at any time. |
| 37. | Time | : | Time shall be the essence of this Letter of Offer. |
| 38. | Successors
Bound | : | This Letter of Offer shall be binding upon your successors in title and on the successors in title and assigns of the Bank. |
| 39. | Assignment | : | The Bank may at any time without requiring your consent or concurrence assigns or transfers its rights, interest and obligations hereunder. You shall not assign or transfer your rights hereunder or any interest herein. All costs and expenses incidental to such assignment or transfer, shall be payable by you. |
| 40. | Market
Disruption | : | If a Market Disruption Event occurs in relation to the Facility for any profit period, the Effective Profit Rate payable on the Facility for that profit period shall be the rate per annum which is the sum of: |
| (b) | in any event before profit is due to be paid in respect of that profit period, (expressed as a percentage rate per annum) the cost of the Bank for funding the Facility from the source which it may select provided always that it should not exceed the Ceiling Profit Rate. |
“Market Disruption Event” means:
| (a) | At or about noon on the quotation day of the relevant profit period, the screen rate is not available or the screen rate is zero or negative during the relevant profit period; or |
| (b) | before the close of business of the next business day after the quotation day for the relevant profit period, the cost of obtaining matching deposits or investments by the Bank in the Kuala Lumpur Interbank Market is in excess of KLIBOR or such other interbank market in excess of its reference rate as may be prescribed by the Bank. |
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| 41. | Market Flex | : | The granting of and/or the continued availability of the Facility is subject to there being no extraordinary circumstances, change of law, other governmental action or adverse changes in the national, financial or economic conditions in Malaysia (or any other applicable jurisdiction), including but not limited to adversities in domestic money, capital or syndicated financing markets having occurred which may affect the ability of the Bank to grant or continue to avail the Facility or which may increase the cost to the Bank to do so, the above is also subject to the Bank policy and compliance to Shariah requirement. |
In the event any of the aforesaid circumstances arise at any time after the disbursement of the Facility, the Bank reserves the right to vary the effective profit rate, basis of funding, terms and/or structure of the Facility, provided that such variation shall not exceed the Bank’s Sale Price. In the event the Customer is not agreeable to the variation to the effective profit rate and/or basis of funding the Customer may by giving prior written notice prepay the all sums due and owing in respect of the Facility.
| 42. | Valuation | : | You hereby authorize the Bank to value the property or asset charged or assigned to the Bank as security for the facility(s) annually or at such interval as the Bank shall in its discretion decide by any valuer or any officer of the Bank or any person of the Bank’s choice from either the Bank’s panel valuer or such other valuer of your choice as the Bank may require (for non-panel valuer, subject to the approval of the Bank) at your sole cost and expense and in the event such valuation reveals that the forced sale value of the property is lower than that at the date hereof the Bank shall have the absolute discretion to require to you within fourteen (14) days from the date of the notice from the Bank to charge, pledge, mortgage or deposit with the Bank your stock’s and share, assets movable property and/or the issue document of title, if any, or all immovable properties vested in you of such value as the Bank may from time to time require or the payment of the total amount owing for the time being under the facility(s). |
In the event the final valuation differs from the preliminary estimate at the point of processing/approving the facility(s) inter alia due to fraud of the valuation report or any other reasons that will affect the value of the property, the Bank is entitled to terminate or cancel or reduce the amount of the facility(s) notwithstanding the security documentation have been completed.
| 43. | Takaful/
insurance | : | a) | All assets/[properties charged/assigned to the Bank as security shall be adequately covered/insured by takaful/insurance against all risks including but not limited against loss or damage through fire, earthquake, lighting, riot, strike or, malicious damage for their full value or replacement costs whichever is higher or as the Bank may require and shall be taken from either the Bank’s panel of takaful operators/insurance companies or such other takaful operators/insurance companies (subject to the approval of the Bank). In addition, to ensure the Bank to be stated as mortgagee/chargee in the takaful/insurance certificate and such takaful/insurance shall not be terminated without the Bank’s prior written consent. |
| b) | Fire Takaful/lnsurance/Contractors All Risk/Fire Takaful/lnsurance under Buildings In the Course of Construction (BICC) (“Takaful/lnsurance”) to be taken on the proffered property from the Bank’s approved takaful/insurance company. |
| c) | Fire Takaful/Insurance is to be taken on your company’s fixed and floating assets where the bank has taken a debenture on your company’s assets (where applicable). |
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| d) | In the event the property is already covered/insured under the Management Corporation’s Fire Takaful/lnsurance Certificate, you are to extend the said certificate/policy to the Bank, with the Bank to be stated as mortgagee/chargee with insertion of non-cancellation clause and the said takaful/insurance shall not be terminated without the Bank’s prior written consent (where applicable). |
| e) | All takaful plans/insurance policies will be taken up at your own costs and expenses and the Bank reserves the right to pay the contribution/premium for any takaful plan/insurance policy on your behalf and to debit your account with notice accordingly. |
| f) | The Bank will from time to time review the adequacy of the takaful/insurance coverage in ensuring that the property is sufficiently insured. The excess contribution/premium, if any, shall be advised accordingly in the yearly renewal notice. |
| 44. | Utilisation of
Facility | : | Any request for utilisation of any facility shall be in writing, given in accordance with the requirements as to form, timing and accompanying documents as may be specified by the Bank generally in accordance with the Bank’s standard terms and conditions applicable to the relevant facility 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 your financial condition after acceptance of the facility(s). |
| 45. | Governing Law | : | You agree that this Letter of Offer and all the documents executed or to be executed in connection herewith shall be governed by the Laws of Malaysia and you further agree to submit to the jurisdiction of the respective Courts of Malaysia. |
| 46. | Taxes | : | (i) | Any goods and services tax or levies now or hereafter imposed by law or required to be paid in respect of any monies payable to or to be received by the Bank on any expenses incurred or to be incurred by the Bank (except where prohibited by law) shall be borne by you. |
| (ii) | All other taxes, duties or government charges now or hereafter imposed or levied in connection with this Facility shall be borne by you. |
| (iii) | You hereby agree that the Bank reserves the right to debit any of your banking account(s) for such taxes or levies payable by you. In the event, such debiting causes your banking account(s) to be overdrawn and not regularised within the specific period determined by the Bank, late payment charges shall be imposed on the excess thereto. |
| 47. | Foreign Account
Tax Compliance
Act (“FATCA”) | : | You hereby consents that the Bank may:- |
| (a) | report your information to the relevant regulatory authorities in accordance with the requirements of the FATCA as may be stipulated by laws, regulations, agreements or regulatory guidelines or directives; |
| (b) | withhold from your account(s) such amounts in accordance with the requirements of FATCA as may be stipulated by applicable laws, regulations, agreement, or regulatory guidelines or directives; and |
| (c) | classify you as a recalcitrant account holder or non-participating foreign financial institution (“NFFI”) and/or suspend or terminate the account(s) granted to you, in the event that you fail to provide accurate and/or complete information and/or documentation as the Bank may require. |
In addition to the above, you hereby undertake to provide the Bank with written notice within thirty (30) calendar days, should there be any change in information provided to the Bank.
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| 48. | Privity to
Agreement | : | You hereby acknowledge, agree and confirm that regardless of anything contained in any agreement/contract including but not limited to a sale and purchase agreement for purchase of movable or immovable asset entered between you and the vendor or any third party where the Bank has no privity to the said agreement/contract and is under no obligation whatsoever to perform any term or condition of the said agreement/contract irrespective of whether or not the Bank has been notified of such term or condition, and the Bank shall not be liable in any manner whatsoever to you or any other party for the Bank’s refusal or failure to perform such term or condition. |
| 49. | Strategic Trade Act 2010 (If applicable) | : | You hereby agree covenant and undertake that the facility(s) herein shall not be utilised for transactions involving goods, items and services identified and/or classified as strategic items for the purposes of the Strategic Trade Act 2010 including the importation, exportation, transhipment, brokering, marketing, distribution or all other transactions not specifically stated herein involving such strategic items and/or in any way act in contravention of the Strategic Trade Act 2010 and you further agree and covenant that the Bank may at its absolute discretion and without assigning any reasons thereto decline to disburse the facility(s), allow further drawdowns, make payments or process the payment of the facility(s) herein or accept and negotiate any trade facilities granted to you or requested to be negotiated by you if such transaction relate to the said strategic items and the Bank further reserves its absolute right to declare an event of default and recall or cancel the facility(s) granted herein as a result of such transactions. You shall absolve the Bank from any liability arising from such transactions and shall further indemnify and keep the Bank indemnified on a full indemnity basis against any fines and/or penalties imposed on the Bank and against any penal sanctions imposed on the Bank or of the Bank as a result of any act or conduct or contravention by you of the Strategic Trade Act 2010 and/or causing the Bank to in any way contravene the Strategic Trade Act 2010. |
| 50. | Anti-Money Laundering and Anti-Terrorism Financing Act 2001 | : | During the tenure of the facility(s), you undertake that you shall not:- |
| (i) | Engage, directly or indirectly, in a transaction that involves proceeds of any unlawful activity; |
| (ii) | Acquire, receive, possess, disguise, transfer, convert, exchange, carry, dispose, use, remove from or bring into Malaysia proceeds of any unlawful activity; or |
| (iii) | Conceal, disguise or impede the establishment of the true nature, origin, location, movement, disposition, title of, rights with respect to, or ownership of, proceeds of any unlawful activity. |
| 51. | Disclosure of
Customer
Information and
Personal Data
under the
Islamic Financial
Services Act
2013 (“IFSA”)
and the
Personal Data
Protection Act
2010 (“PDPA”) | : | A) | If you are a company or incorporated entity, you hereby warrants and represents to the Bank that:- |
| (i) | You give your consent to the Bank to disclose information and/or documents supplied in connection or pertaining to the facility(s), your business and your banking account(s) with the Bank (including future accounts) to associate company or parent company of the Bank or Bank’s subsidiaries or any company which are or in the future may be a related company to the Bank, agent, auditors, legal counsels, professional advisors or representatives, the Credit Bureau or any other banking or regulatory authorities, any co-debtor, joint account holder, guarantor, chargor or surety, security party, party making a claim under any third party payment instrument or trade document, any other person who has undertaken liability for the facility(s)with the Bank or pursuant to any law or legal process or in connection with any action, suit or proceeding relating to the facility(s), any other person(s) or company(ies) to whom disclosure is contractually required to be made by the Bank including but not limited to in connection with any fund raising in relation to the facility(ies), any bank or financial institution in relation to the provision of financing in connection with the Bank or the Bank’s related companies’ products or services or otherwise and any person to whom disclosure is permitted or required by law, regulation or any governmental agency. |
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| (ii) | You also give your consent to the Bank to disclose any information pertaining to you and/or your account(s) to Etiqa Takaful Berhad/Etiqa Insurance Berhad (“Etiqa”) or other takaful operator or Insurance company (if required) in the event that any application for any takaful/insurance coverage is submitted by you to Etiqa or other takaful operator/insurance company and such information and/or verification on such information is required by Etiqa or other takaful operator/insurance company. |
| (iii) | You give your consent to the Bank to disclose such information about you as it may have in its possession to Credit Guarantee Corporation Malaysia Berhad (“CGC”) and/or its agents as the Bank may deem necessary in its absolute discretion. |
| (iv) | You agree and acknowledge that the Bank may request you from time to time to provide the personal data and information of your, your guarantor’s and/or any third party security providers’ (including but not limited to) directors, shareholders, employees, representatives and/or any other individual (“the Individual”) in the course of your contract and/or transactions with the Bank (“Personal Data”). |
| (v) | Maybank Group Privacy Statement in our website www.maybank2u.com.my outlines how the Maybank Group collects, uses, maintains, stores, discloses, secures and retains the Personal Data. You are to refer to the Maybank Group Privacy Statement and prior to providing us with the Individual’s Personal Data, you are to inform the Individual of the Maybank Group Privacy Statement. The Bank together with its related/associated companies are collectively referred to as “Maybank Group”. |
| (vi) | You hereby warrant that you have complied with the requirements of PDPA and have obtained the relevant consents from the Individual in relation to the processing and disclosure of their Personal Data. |
| B) | If you are an individual or unincorporated entity, you hereby warrants and represents to the Bank that:- |
| (i) | Subject to your instruction restricting disclosure (if any) for the purposes of marketing activities, you consent to and authorize the Bank to collect, process, disclose, transfer your personal data to other entities within Maybank Group including its branches in Malaysia and in other countries as well as is local and overseas subsidiaries and other external parties, including but not limited to the parties/bodies listed below for the maintenance, storage and retention of your personal data, within or outside of Malaysia, in order to process your application for products and services and subsequently to continue performing the contractual agreements entered between you and any entity within Maybank Group. |
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| (ii) | You consent and authorize the Bank to collect, process, disclose, transfer, maintain, store and retain your personal data to other entities within the Maybank Group including its branches in Malaysia and in other countries as well as local and overseas subsidiaries and other external authorised agents. |
| (iii) | You consent to the Bank conducting credit checks and verification of information given by you in your application for the financing facility or services with any credit bureaus or corporation set up for the purpose of collecting and providing credit or other information. You also consent to the Bank’s disclosure of your financial condition, details of accounts, account relationship with the Bank including credit balances to:- |
| (a) | government or regulatory authorities in Malaysia and elsewhere, including but not limited to Bank Negara Malaysia, Credit Bureau, Central Credit Reference Information System (“CCRIS”), Cagamas Berhad, Credit Guarantee Corporation Malaysia Berhad and Syarikat Jaminan Kredit Perumahan Berhad; |
| (b) | companies which are related to the Bank by virtue of Section 7 of the Companies Act 2016, or any associated company of the Bank or of its parent company (the Bank together with its related/associated companies are collectively referred to as “Maybank Group”); |
| (c) | party(s) providing services (including outsourcing vendors, lawyers, nominees, custodians, centralised securities depository or registrar, debt collection agents) to the Bank; |
| (d) | the Bank’s agents, consultants and professional advisers; |
| (e) | the Bank’s or any of the Maybank Group’s assignees; |
| (f) | the police or any investigating officer conducting any investigation; and |
| (g) | any person to whom disclosure is permitted or required by any law, regulation, governmental directive or request. |
| (iv) | The Bank may, subject to compliance with the applicable regulatory rules or guidelines, use or apply any information relating to you collected, compiled, or obtained by the Bank through or by whatever means and methods for such purposes as determined by the Bank. |
| (v) | Subject to your express consent, you hereby agree that the Bank’s employees, representatives and/or agents to contact you from time to time through personal visits or oral communication effected via any means of communication including but not limited to telephone calls regarding any products or services promotion unless objected to in writing by you. |
| (vi) | You also declare that all personal information and data set forth herein is/are all true, up to date and accurate and should there be any changes to any personal information or data set forth herein, you shall notify the Bank immediately. |
| (vii) | You do hereby acknowledge that the Bank may request you from time to time to provide the personal data and information of your personal guarantor’s and/or any third party security providers (“the Individual”) in the course of your financing contract and/or transactions with the Bank (“Third Party Personal Data”). |
| (viii) | You hereby agree to draw the Individual’s attention to the Maybank Group Privacy Statement which is posted in our website www.maybank2u.com.my and which outlines how the Maybank Group collects, uses, maintains, stores, discloses, secures and retains the Personal Data prior to providing the Bank with the Individual’s Personal Data. |
| (ix) | You hereby warrant that you have complied with the requirements of PDPA and have obtained the relevant consents from the Individual in relation to the processing and disclosure of their Personal Data. |
[End of Annexure 2]
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