Islamic Business Agreement by wka21287

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									                                           ENGLISH TRANSLATION

       IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

                       (COMMERCIAL DIVISION)

          ORIGINATING SUMMONS NO: D4 - 22A - 151 - 2006

                                        In the matter of Section 50(1) of the
                                        Banking and Financial Institutions Act,
                                        1989;

                                        And

                                        In the matter of Banking And Financial
                                        Institutions (Exemption) Order 2005
                                        (read together with Section 49(9)(a) and
                                        Section 49(1)(b) of the Banking and
                                        Financial Institution Act, 1989);

                                        And

                                        In the matter of an agreement dated
                                        05.04.2006 between AmBank (M)
                                        Berhad (formerly known as AmFinance
                                        Berhad) (Company No. 8515-D) and
                                        AmIslamic Bank Berhad (formerly
                                        known as AMBB Capital Berhad and
                                        prior to that known as AmBank Berhad)
                                        (Company No. 295576-U).


1.   AmBank (M) Berhad                         )
     (formerly known as AmFinance Berhad)      )
     (Company No. 8515-D)                      )             Applicants
2.   AmIslamic Bank Berhad
     (formerly known as AMBB Capital Berhad )
      and prior to that known as AmBank Berhad))
     (Company No. 295576-U)                    )



BEFORE THE HONOURABLE JUSTICE DATUK ABDUL WAHAB BIN PATAIL

THIS 18TH DAY OF APRIL 2006                                   IN CHAMBERS
                                                                                  2


                               O R D E R


       UPON THE APPLICATION of the Applicants in this action AND UPON

READING the Ex-Parte Originating Summons dated the 6th day of April 2006,

the Affidavit of Mohamed Azmi Bin Mahmood affirmed on the 5th day of April

2006, the Affidavit of Cheah Tek Kuang affirmed on 5th day of April 2006, the

Supplemetary Affidavit of Mohamed Azmi Bin Mahmood affirmed on the 12th

day of April 2006, the Supplementary Affidavit of Cheah Tek Kuang affirmed on

the 12th day of April 2006, the 2nd Applicant’s Supplemental Affidavit (2) of

Mohamed Azmi Bin Mahmood affirmed on the 14th day of April 2006 and the 1st

Applicant’s Supplemental Affidavit (2) of Cheah Tek Kuang affirmed on the 14th

day of April 2006 all filed herein AND UPON HEARING Mr Chan Kok Keong,

of Counsel for the Applicants IT IS HEREBY ORDERED that:-



(1)     The Scheme for the transfer of the Islamic Banking Business of AmBank

(M) Berhad (formerly known as AmFinance Berhad) (Company No. 8515-D)

(“AmBank”) to AmIslamic Bank Berhad (formerly known as AMBB Capital Berhad

and prior to that known as AmBank Berhad) (Company No. 295576-U) (“AIB”) as

set out in the document entitled “The Scheme for the Transfer of the Islamic Banking

Business of AmBank (M) Berhad (formerly known as AmFinance Berhad) (Company

No. 8515-D) to AmIslamic Bank Berhad (formerly known as AMBB Capital Berhad

and prior to that known as AmBank Berhad) (Company No. 295576-U) pursuant to

Section 50 of the Banking and Financial Institutions Act 1989” (“the Scheme”) and

as annexed to the agreement dated 05.04.2006 between AmBank and AIB (“the
                                                                                3

Islamic Business Transfer Agreement”) be and is hereby given effect to with effect

from 01.05.2006 (“the Scheme Date”). All words and expressions defined in the

Scheme shall have the same meanings in this Order, i.e.:-



“AIB” means AmIslamic Bank Berhad (formerly known as AMBB Capital Berhad

and prior to that known as AmBank Berhad) (Company No. 295576-U), a company

incorporated in Malaysia with its registered office at 22nd Floor, Bangunan AmBank

Group, 55 Jalan Raja Chulan, 50200 Kuala Lumpur;



“AmBank” means AmBank (M) Berhad (formerly known as AmFinance Berhad)

(Company No. 8515-D), a company incorporated in Malaysia as Malaysia Borneo

Finance Corporation (M) Berhad on 25.03.1969 which changed its name to MBf

Finance Berhad on 19.12.1985 and into which the assets, liabilities, rights and

obligations of the business of Arab-Malaysian Finance Berhad (Company No. 5493-

X) were transferred pursuant to the Vesting Order under the Kuala Lumpur High

Court Originating Summons No. D8-24-111-2002 dated 21.05.2002 which

subsequently changed its name to AmFinance Berhad on 03.04.02 and assumed its

current name on 01.06.2005, with its registered office at 22nd Floor, Bangunan

AmBank Group, 55 Jalan Raja Chulan, 50200 Kuala Lumpur;



“Assets” means all assets including all such assets vested into AmBank by Bank of

America (Asia) Limited pursuant to the Vesting Order under Kuala Lumpur High

Court Ex-Parte Originating Summons No. D5-24-180-94 dated 19.07.94, all such

assets vested into AmFinance Berhad (now known as AmBank (M) Berhad) by
                                                                                   4

AmBank Berhad (now known as AmIslamic Bank Berhad) pursuant to the Vesting

Order under Kuala Lumpur High Court Ex-Parte Originating Summons No. D7-24-

162-05 dated 12.05.05 in relation to, or derived from, or utilised, or included in or

used in or for the purpose of the Islamic Banking Business of AmBank, and all rights,

entitlements, title, claims, choses in action, powers or privileges, whether present,

future, vested or contingent or which is otherwise of value, relating or attaching

thereto as at the Scheme Date or as at the day immediately preceding the Scheme

Date for the purpose of determining the Net Book Value, including:-



(a)       Bank Accounts;

(b)       Cash;

(c)       Commissions;

(d)       Instruments;

(e)       Money Instruments;

(f)       Receivables;

(g)       Securities; and

(h)       Other Assets;

taken and shown in the Books or relating to such assets but excluding the Excluded

Assets.



“Bank Accounts” means all monies held by AmBank in relation to the Islamic

Banking Business whether on current, savings, deposit or other form of accounts with

a bank or financial institution (including Bank Negara Malaysia) and includes any

income earned or accrued on any such account up to the Scheme Date;
                                                                                    5



“BAFIA” means TheBanking and Financial Institutions Act, 1989 of Malaysia;



“Books” means the books of AmBank kept in relation to the Islamic Banking

Business;



“Cash” means all cash in the form of banknotes, coins or other legal tender held by

AmBank on its own account in relation to the Islamic Banking Business on the

Scheme Date;



“Commissions” means all monies received by AmBank by way of commission,

income and other sources in relation to the Islamic Banking Business;



“Contracts” means any agreements, contracts, undertakings, deeds, indentures, deed

polls or instruments to which AmBank is or has ever been a party in relation to the

Islamic Banking Business including all contracts of employment but excluding the

Excluded Contracts;



“Custodial Assets” means any cash (which is deposited with AmBank in Malaysia in

accordance with an instruction or direction that it is to be retained by AmBank in the

manner or form so deposited with AmBank), articles, valuables, certificates in respect

of Securities or other documents, goods or things held by AmBank as custodian,

nominee, trustee, for safekeeping, in safe custody or otherwise in similar manner in

relation to the Islamic Banking Business;
                                                                                    6



“Custodial Liabilities” means the obligations or liabilities of AmBank in relation to

the Islamic Banking Business whether under any custodial or nominee agreement or

agreement for safekeeping or for safe custody or contract for bailment or otherwise in

respect of any Custodial Assets;



“Customers’ Accounts” means all accounts of customers with AmBank in relation to

the Islamic Banking Business including any current, savings, deposit or other

accounts;



“Instruments” means all deeds, indentures, deed polls, wills and other instruments

and any orders of any court under or by virtue of which any Asset has become vested

in and remains owned by AmBank or may at any time become vested in AmBank in

relation to the Islamic Banking Business, including any conveyance executed for

conveying, assigning, appointing, surrendering or otherwise transferring or disposing

of immovable property, of which AmBank is proprietor, possessed or entitled to a

contingent right, either for the whole entitlement or for any less entitlement.



“IBA” means the Islamic Banking Act, 1983 of Malaysia;



“Islamic Banking Business” means the Assets, Liabilities, Islamic banking activity,

undertaking and business carried on by AmBank pursuant to AmBank’s banking and

finance company business licences issued under BAFIA or which it is allowed to

carry on as the case may be (whose aims and operations do not involve any element
                                                                                         7

which is not approved by the Religion of Islam), and taken and shown in the Books

and all rights and entitlements relating or attaching thereto;



“Liabilities” means all debts, obligations and liabilities (actual, future or contingent)

owed or incurred by AmBank in relation to the Islamic Banking Business including

(without limitation) liabilities in respect of all Customers' Accounts, Custodial

Liabilities, liabilities under any Contract, liability under and or in respect of any past,

pending or future litigation and the liability to pay any tax in respect of the carrying

on of the Islamic Banking Business by AmBank up to the Scheme Date or the day

immediately preceding the Scheme Date for the purpose of determining the Net Book

Value;



“Money Instruments” means all cheques, bills of exchange, promissory notes,

i.o.u.’s, or cashier’s or banker’s orders or drafts or other negotiable instruments or

orders for the payment of money of which AmBank is the holder or, as the case may

be, the bearer or, otherwise as the case may be, the person entitled to the benefit in

relation to the Islamic Banking Business, or where the context so requires, of which

AmBank is the drawee, or the endorser, or the drawer, as the case may be;

“Net Book Value” means the sum equivalent to the total value of the Assets less the

total value of the Liabilities;



“Other Assets” means the benefit of any licences, consents or approvals held by

AmBank under the BAFIA and any other applicable laws or regulations of Malaysia

or elsewhere in relation to the Islamic Banking Business, the benefits of all Contracts,
                                                                                      8

Security and Instruments, the rights and benefits under and or in respect of any past,

pending or future litigation, any judgments or awards (of any arbitral or other tribunal

or other administrative body) obtained by AmBank which are not fully satisfied

before the Scheme Date and all other assets owned by AmBank in relation to the

Islamic Banking Business but shall exclude the Excluded Assets and those assets

which fall within paragraphs (a) to (h) of the definition of “Assets” set out in

Paragraph 1 hereof;



“Receivables” means all debts, loans and other liabilities and obligations whether

actual, future or contingent owed or which may be owed to AmBank or to two or

more persons, one of whom is AmBank, in relation to the Islamic Banking Business

(including, without limitation those purchased or otherwise acquired by AmBank

from third parties) together with all claims for damages and remedies for non-

payment which AmBank has or may have in relation thereto;



“Scheme Date” means 01.05.2006 or such other date as may be ordered by this Court

pursuant to the application made under Section 50 of the BAFIA which is the date on

which the Assets and Liabilities and rights and obligations in respect of the Islamic

Banking Business will, subject to the Islamic Banking Business Transfer Agreement

becoming unconditional in accordance with Section 3.01 of the Islamic Banking

Business Transfer Agreement, be effectively transferred from AmBank to AIB in

accordance with Section 4.01 of the Islamic Banking Business Transfer Agreement;
                                                                                          9

“Securities” means any shares, stocks, debentures, debenture stock, loan stocks,

funds, bonds, or notes of, or issued by, any body whether incorporated or

unincorporated, or of any government or government agency or authority, any interest

in any partnership agreement, any unit or interest in a unit trust and includes any

rights, options or interests in, or in respect of, any of the foregoing and any certificates

of interest or participation in, or temporary or interim certificates for, receipts for, or

warrants to subscribe to, or purchase, any of the foregoing or any other instruments

which are commonly known or regarded as securities in relation to the Islamic

Banking Business;



“Security” means any mortgage or charge, whether legal or equitable, debenture,

assignment, bill of exchange, letter of credit, standby letter of credit, promissory note,

guarantee, lien or pledge, whether actual or constructive, hypothecation, indemnity,

undertaking or other means of securing payment or discharge of a debt or liability,

whether present or future or whether vested or contingent, encumbrance or other form

of security which AmBank holds or has the benefit of in relation to any Receivables

or which, in relation to the Islamic Banking Business it holds or has the benefit of as

agent, trustee, nominee, beneficiary or representative in respect of any debts, loans or

other liabilities or obligations owed to any other person (including where it has or

holds the benefit of any such security in such a capacity in respect of any such debts,

loans or other liabilities or obligations owed to more than one person which may

include itself) any Security in relation to the Islamic Banking Business shared with

any person or shared with any other facility which shall be held on trust by AmBank

for AIB until such times that all obligations and liabilities in connection with or
                                                                                      10

arising from the facility is fully discharged, after which title to such Security shall be

transferred to AIB;



“Shared Security” means any Security held by AmBank which is jointly held or

shared in respect of a facility or facilities granted in connection with its conventional

banking facilities and its Islamic banking facilities.



2.     All Assets held by AmBank shall be vested in AIB on the Scheme Date, in the

same capacity, upon the same trusts, and with and subject to the same powers,

provisions and liabilities applicable to the Assets as so held by AmBank without any

further act or deed by any party, save and except for the filing or registration of a copy

of this Order with any registering authority as required under the BAFIA.



3.     Any Asset held by AmBank jointly with any other person shall be vested in

AIB on the Scheme Date jointly with such other person, in the same capacity, upon

the same trusts, and with and subject to the same powers, provisions and liabilities

applicable to the Asset as so held by AmBank without any further act or deed by any

party, save and except for the filing or registration of a copy of this Order with any

registering authority as required under the BAFIA.



4.     Any Instrument shall be construed and have effect as from the Scheme Date as

if for any reference therein to AmBank there was substituted a reference to AIB.
                                                                                      11

5.     Any Contract (to the extent that it is still in force or has any effect) shall have

effect as from the Scheme Date as if AIB had been a party thereto instead of

AmBank.



6.     Any Customers' Account shall become as from the Scheme Date an account

between AIB and the relevant customer, subject to the same terms and conditions as

were applicable between AmBank and such customer immediately prior to the

Scheme Date and any such Customers’ Account shall be deemed for all purposes to

be a single continuing account.



7.     Any existing instruction, order, direction, mandate, power of attorney,

authority, undertaking or consent whether or not in relation to any Customers'

Account, given to or by AmBank in relation to the Islamic Banking Business, either

alone or jointly with any other person, shall have effect from the Scheme Date, in

respect of anything due to be done, as if given to or by AIB either alone or, as the case

may be, jointly with such other person.



8.     Any Commission and income payable by any person to AmBank shall on and

from the Scheme Date be payable by such person to AIB.



9.     Any Money Instrument drawn on, or given to, accepted or endorsed by, or

endorsed in favour of, AmBank or payable at the place of business of AmBank,

whether so drawn, given, accepted or endorsed before, on, or after the Scheme Date,

shall have the same effect on and from the Scheme Date, as if it had been drawn on,
                                                                                      12

or given to, or drawn, accepted or endorsed by, or endorsed in favour of, AIB or were

payable at the place of business of AIB.



10.     The custody of any Custodial Assets held by AmBank as bailee immediately

before the Scheme Date and the rights pertaining thereto shall pass to AIB on the

Scheme Date and the Custodial Liabilities shall be transferred to AIB on the Scheme

Date.



11.     Any Security held immediately before the Scheme Date by AmBank, or by a

nominee of, or trustee for AmBank as security for the payment or discharge of any

liability of any person, shall, with effect from the Scheme Date, be held by AIB or, as

the case may be, shall be held by that nominee or trustee as the nominee of, or trustee

for AIB and, to the extent of those liabilities, shall be available to AIB as security for

the payment or discharge of those liabilities; and any such security which extends to

future advances or future liabilities shall be held by, or shall be available as aforesaid

to AIB as security for future advances by, and future liabilities to AIB in the same

manner in all respects as future advances by, or future liabilities to AmBank were

secured thereby immediately before the Scheme Date.



12.     Any Shared Security in relation to the Islamic Banking Business held by

AmBank, or by a nominee of, or as a trustee for AIB as security for the payment or

discharge of any liability of any person, shall, with effect from the Scheme Date,

continue to be held by AmBank or, as the case may be, shall be held by that nominee

or trustee as the nominee of, or trustee for AIB until such times that AmBank will
                                                                                           13

cease to hold the Shared Security in relation to the Islamic Banking Business as

trustee for AIB in the event the obligations and liabilities of the Islamic Banking

Business is discharged in full prior to the full discharge of the Conventional Banking

Facilities and, to the extent of those liabilities, shall be available to AmBank as

security for the payment or discharge of those liabilities; and any such security which

extends to future advances or future liabilities shall be held by, or shall be available as

aforesaid to AIB as security for future advances by, and future liabilities to AIB in the

same manner in all respects as future advances by, or future liabilities to AmBank

were secured thereby immediately before the Scheme Date.



13.     In respect of any right or liability of AmBank transferred to AIB pursuant to

this Order, AIB shall have the same rights, powers and remedies (and in particular the

same rights and powers as to taking or resisting legal proceedings or making or

resisting applications to any authority) for ascertaining, protecting or enforcing that

right or resisting that liability of AIB as if it had at all times been a right or liability of

AIB, including those rights or liabilities in respect of any legal proceedings or

applications to any authority pending immediately before the Scheme Date by or

against AmBank.



14.     Any judgment or award of any arbitral or other tribunal or administrative body

obtained by or against AmBank in relation to the Islamic Banking Business not fully

satisfied before the Scheme Date shall be enforceable by or, as the case may be,

against AIB.
                                                                                     14

15.     All legal, arbitration, tribunal and other proceedings in relation to the Islamic

Banking Business which are pending and in or to which AmBank is a party shall be

continued with effect from the Scheme Date as if AIB had been a party thereto instead

of AmBank.



16.     All Liabilities shall be transferred to and assumed by AIB on the Scheme Date

and AmBank shall cease to be liable in respect of all such Liabilities from the Scheme

Date.



17.     All existing applications, petitions and appeals made by AmBank to any

person or authority, all existing permits, permissions, approvals, licences, consents,

authorisations, sanctions, waivers, leave, dispensations, exemptions, of whatsoever

nature, and any renewals and extensions thereof, granted to or obtained by AmBank,

and all inclusions of AmBank in schedules and categorisations of persons, all of

which whether or not under any law or regulation and whether directly or indirectly in

connection with the Islamic Banking Business of AmBank, shall be construed and

shall have effect from the Scheme Date as if made by, granted to or obtained by AIB

and as if such inclusions were inclusions of AIB instead of AmBank.



18.     Any Asset or Liability which is by virtue of this Order transferred to or vested

in or assumed by AIB, either alone or jointly with such other person or persons, shall

be so transferred, vested or assumed without any assurance or conveyance and

without any further act or deed by any party, save and except for the filing or
                                                                                      15

registration of a copy of this Order with any registering authority as required under

the BAFIA.



19.    The transfer of the Islamic Banking Business and the Assets and the

assumption of the Liabilities pursuant to this Order and all matters stated in this Order

shall have effect according to its terms notwithstanding anything in any law or in any

rule of law without any further act or deed by any party, save and except for the filing

or registration of a copy of this Order with any registering authority as required under

the BAFIA, and shall be binding on any person thereby affected, regardless that the

person so affected is not a party to these or any other related proceedings, or had no

notice of the proceedings.



20.    The Applicants be and are at liberty to apply for such incidental, consequential

and supplemental orders as are necessary to secure that the terms of the Islamic

Banking Business Transfer Agreement and the Scheme shall be fully and effectively

carried out.



21.    The Order is to be published after the Order has been made, once each in the

New Straits Times newspaper and the Berita Harian newspaper respectively subject to

the approval of Bank Negara Malaysia or such other newspaper(s) as may be

approved by Bank Negara Malaysia.
                                                                                 16

22.    All such other incidental, consequential and supplemental orders as are

necessary to secure that the terms of the Islamic Banking Business Transfer

Agreement and the Scheme shall be fully and effectively carried out.


              Dated the 18th day of April 2006.




                                            ……………………………
                                                   Signed
                                            Senior Assistant Registrar,
                                            High Court, Kuala Lumpur.


This Order is filed by Messrs. Shook Lin & Bok, Solicitors for the Applicants herein
and whose address for service is at 20th Floor, Bangunan AmBank Group, No. 55,
Jalan Raja Chulan, 50200 Kuala Lumpur.
Tel No: 03-20311778                               Fax No: 03-20311775/8/9

[YSM/PSD/10642/05/AMBB/TIBB/01](YSM/C90)(1438629)

								
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