This Draft SPA have incorporated all terms needed for SPA with and without title.
That means the only additions and/or amendments needed when it comes to an actual case will be the followings:
(i) To amend the recital clause as there may be more than one sub sale.
(ii) To amend the RPGT clause as the act has been abolished since [Insert Date].
AN AGREEMENT made the day and year set out in Section 1 of the First Schedule hereto BETWEEN the party whose name and description are set out in Section 2 of the First Schedule hereto (hereinafter called “the Vendor”) of the one part and the party whose name and description are set out in Section 3 of the First Schedule hereto (hereinafter called “the Purchaser”) of the other part.
WHEREAS: –
1. By an Agreement of Sale and a Deed of Mutual Covenants / Supplemental Agreement made the day and year stated in Section 4 of the First Schedule hereto (hereinafter collectively called “the Principal Sale Agreement”) BETWEEN
i) The party whose name and description are set out in Section 5 of the First Schedule hereto (hereinafter called “the Developer”) of the one part AND
ii) The Vendor of the other part;
the Developer sold and the Vendor purchased a Property with vacant possession distinguished as the Property described in Section 6 of the First Schedule measuring approximately the area as stated in Section 7 of the First Schedule hereto and erected on part of the land as described in Section 8 of the First Schedule (hereinafter called “the Property”) for the purchase price therein stated and subject to the terms and conditions contained in the Principal Sale Agreement.
2. The Vendor has paid the purchase price of the Property in full to the Developer.
3. By an Assignment/Loan Agreement cum Assignment and/or Charge made between the party whose name and description are set out in Section 9 of the First Schedule hereto (hereinafter called “the Chargee”) of the one part and the Vendor of the other part, the Vendor assigned absolutely all his rights title and interest of the Property and all benefit of the Principal Sale Agreement as security for a banking facility.
4. The Certificate of Fitness for Occupation in respect of the Property has/has not been issued by the Appropriate Authorities and the address of the Property is described in Section 10 of the First Schedule hereto.
5. The relevant authorities has/has not issued a separate document of title to the Property at the date hereof.
NOW THIS AGREEMENT WITNESSETH as follows: –
1. AGREEMENT TO SELL AND PURCHASE
In consideration of the sum specified in Section 1 of the Second Schedule hereto now paid by the Purchaser to the Vendor as deposit and part payment towards the purchase price (the receipt whereof the Vendor hereby acknowledges), the Vendor hereby agrees to sell and the Purchaser hereby agrees to purchase the Property free from all encumbrances but otherwise subject to all conditions and restrictions whether expressed or implied contained in the document of title to the Property at the total purchase price specified in Section 2 of the Second Schedule hereto upon the terms and subject to the conditions hereinafter appearing.
2. MANNER OF PAYMENT
(a) The balance purchase price of the sum specified in Section 3 of the Second Schedule hereto (hereinafter referred to as “the Balance Purchase Price”) shall be paid in full by the Purchaser to the Vendor on or before the time and in the manner specified in Section 4 of the Second Schedule hereto.
(b) The date on which the Balance Purchase Price is paid shall hereinafter be referred to as “the Completion Date”.
(c) The Balance Purchase Price shall first be applied towards payment of the redemption moneys due or owing by the Vendor in respect of any charge or encumbrance over the Property. Before payment over to the Vendor such redemption moneys may at the discretion of the Purchaser be paid directly to the charger or body or person concerned with such encumbrance. Provided that if the Balance Purchase Price is insufficient to secure a full discharge of such charge or encumbrance the Vendor shall furnish forthwith such additional sum as is necessary to secure the full discharge of such charge or encumbrance.
3. CONDITION OF SALE
The sale of the Property shall be subject to the following terms and conditions: –
(a) the Vendor deducing a good, registrable and marketable title to the Property;
(b) the Property being free from all encumbrances, trusts, caveat and any other liability capable of being attached to the Property but otherwise subject to all conditions and restrictions whether express or implied contained in the master document of title to the Property;
(c) the original copy of the Principal Sale Agreement in respect of the Property shall be produced and delivered to the Purchaser;
(d) any defect in the right, interest and title in relation to the Property shall be rectified and perfected by the Vendor at his own cost and expense; and
(e) all the stipulation as contained in the Principal Sale Agreement.
4. CONDITION PRECEDENT
4.1 This Agreement is subject to and conditional upon the Vendor having applied for and obtained the approval and consent from the following parties :-
(a) from the State Authority to transfer the said Property to the Purchaser OR the letter of undertaking from the Developer to obtain the consent of the State Authority to transfer the said Property to the Purchaser; AND
(b) from the Developer, at the Vendor’s sole costs and expenses, for the Developer’s and consent for the sale, transfer and/or assignment of the said Property in writing to the Purchaser
on or before four (4) months from the date of this Agreement or such time period as mutually agreed by both parties (hereinafter referred to as “the said Period”).
4.2 The Vendor shall within one (1) month from the date of this Agreement make the necessary application to the State Authority and/or Developer to obtain the said approval and consent as stated in clause 4.1 above. The Purchaser shall provide the information required to be submitted with the Vendor application to the State Authority and/or the Developer.
4.3 The Vendor hereby agrees, covenants and undertakes not later than one (1) month after the receipt of the Developer’s consent, to comply with, perform and observe all terms and conditions on the part to be complied with, performed and observed by the Vendor pursuant to the Developer’s consent and shall not do and execute all things or documents as the Developer may require to effect the assignment, including but in any way not limited to the payment of any surcharge or administrative fee in connection therewith.
4.4 In the event of any delay or default in compliance, performance and observance of the conditions imposed by the Developer, the time of such delay or default will not be considered in the computation of the Completion Date.
4.5 In the event the approval and consent of the State Authority AND/OR the Developer is refused or in the event of the State Authority refusing to modify and/or withdraw any of such terms and conditions requested by the party affected, or in the event of any appeal pursuant to Clause 4.3 hereof is not completed within the said Period, either party may terminate this Agreement by notice in writing to the other whereupon the Vendor shall forthwith refund to the Purchaser the Deposit within fourteen (14) days of the said notice. In the event that the Vendor fails to refund the Deposit to the Purchaser within fourteen (14) days, the Vendor shall pay the Purchaser interest at the rate of ten (10%) per centum per annum on the Deposit on daily basis from the day following the fourteenth day until date of actual refund of the Deposit and thereafter this Agreement shall be terminated and shall be of no further force and effect save and except for any antecedent breach.
4.6 This Agreement shall become unconditional on the unconditional approval of the State Authority and the Developer being obtained or if conditions are imposed, such conditions are acceptable to the party affected and the party affected has notified the other party in accordance with Clause 4 hereof (hereinafter referred to as “the Unconditonal Date”).
5. EXECUTION OF DEED OF ASSIGNMENT
5.1 The Vendor shall simultaneously with the execution of this Agreement execute a Deed of Assignment assigning all the Vendor’s right, title and interest in and to the said Property and under or arising out of the Sale Agreement to the Purchaser and deliver and deposit the same with the Vendor’s Solicitors who are hereby authorised by both parties hereto to forward to the Developer for endorsement within fourteen (14) days from the date the Vendor observed, complied and performed all conditions pursuant to the Developer’s consent and thereafter, the Vendor’s Solicitors shall forward the duly endorsed Deed of Assignment to the Purchaser’s Solicitors, upon the differential sum between the Loan Sum and the Balance Purchase Price is deposited with the Vendor’s Solicitors for adjudication purposes at the relevant authority.
5.2 For avoidance of doubt, any delay by the Vendor in forwarding the said Deed of Assignment to the Developer for endorsement for more than fourteen (14) days shall not be considered in the computation of the Completion Date of this Agreement.
6. MEMORANDUM OF TRANSFER
(a) The Vendor shall execute a valid registrable Transfer of the Property (hereinafter referred to as the “Transfer”) in favour of the Purchaseror his nominee or nominees at the time in the manner and upon the terms and conditions stipulated at clause 2 of the Third Schedule.
(b) The parties hereby expressly confirm that notwithstanding the execution of Transfer and the acknowledgement of receipt of the consideration stated therein, it shall not be construed as payment in full of the purchase price and the Property shall not be deemed to be transferred to the Purchaser by the Vendor until the full purchase price has been paid by the Purchaser to the Vendor.
7. CONSENT OF DEVELOPER
(a) Upon execution of this Agreement the Vendor and Purchaser hereby expressly authorise and direct the Vendor’s solicitors or if the Vendor is unrepresented, the Purchaser’s Solicitors, as the case may be to apply at the Vendor’s cost to the Developer for written consent to the sale of the Property by the Vendor to the Purchaser. The Vendor shall pay any charges, fees or expenses, which the Developer may impose or levy for such consent.
(b) In the event that the Vendor is unable to obtain the written consent from the Developer for the sale of the Property to the Purchaser, either party may by service of a notice on the other party rescind this Agreement and on the happening of such event the deposit paid by the Purchaser to the Vendor under Clause 1 hereof shall be refunded by the Vendor to the Purchaser without interest and upon such refund being made this Agreement shall come to an end and become null and void and of no further effect and neither of the parties hereto shall have any claim against the other in respect of this Agreement.
8. CONDITIONS OF FOREIGN PURCHASERS
8.1 Where the Purchaser is not a Malaysian citizen or is a foreign company (hereinafter referred to as “the Foreign Purchaser”) the sale and purchase of the said Parcel is condition subsequent upon:
(a) the approval and written consent of the Foreign Investment Committee (hereinafter referred to as “the FIC Approval”) for the transfer/assignment of the said Parcel; and
(b) the approval and written consent of the State Authority permitting the transfer/assignment of the said Parcel by the Vendor to the Purchaser (hereinafter referred to as “hereinafter referred to as “the State Consent”)
8.2 Notwithstanding the conditions pursuant to Clause 8.1 above, the Foreign Purchaser shall be bound by the terms and conditions of this Agreement and shall pay to the Vendor any sum or sums as required therein, particularly the Purchase Price at the times and in the manner prescribed in Section 2, 3 and 4 of the Second Schedule annexed to this Agreement.
8.3 The Foreign Purchaser shall within fourteen (14) days upon the execution of this Agreement use all endeavours and shall take all necessary steps to apply for the FIC approval and State Consent referred to in clause 8.1 hereof and to do all things necessary to obtain the same. In the event the Foreign Purchaser fails to or neglect to apply for the FIC approval and State Consent within the said period of 14 days, the Vendor shall be entitled to terminate this Agreement and forfeit the 10% deposit paid by the Foreign Purchaser to the Vendor under this Agreement and upon such forfeiture this Agreement shall be terminated and neither party shall have any rights or claim against the other under this Agreement or otherwise howsoever.
8.4 Upon the FIC Approval or the State Consent being given or obtained the Foreign Purchaser shall immediately notify the Vendor in writing and shall forward to the Vendor a copy of such consent.
8.5 In the event of the FIC Approval and/or State Consent not being obtained within six (6) months from the date of execution of this Deed not due to the default or delay of the Foreign Purchaser, the Vendor shall at its absolute discretion give such extension of time as it may deem fit to the Foreign Purchaser for the purpose of obtaining such consent as may be required by giving a notice in writing to the Foreign Purchaser within fourteen (14) days from the Foreign Purchaser’s written notification that consent is yet to be obtained otherwise this Agreement shall be null and void and the following consequences shall ensue that is to say;
(a) any sum of monies paid under this Agreement by the Foreign Purchaser to the Vendor shall be refunded in full by the Vendor to the Foreign Purchaser free of interest within fourteen (14) days from the expiry of the six (6) months period hereinbefore mentioned or such extension period as may be granted by the Vendor.
(b) Subject thereto, each party hereto shall have no claim whatsoever against the other in any matter in respect of or arising out of this Agreement.
8.6 In the event of the FIC Approval/or State Consent having been obtained but has attached to it any conditions to be complied with by the Foreign Purchaser, the Foreign Purchaser shall use all endeavours and shall take all necessary steps to comply with any such conditions. Non-compliance by the Foreign Purchaser shall render this Agreement null and void and the following consequences shall ensue that is to say:
(i) The Vendor shall be entitled to deal with or otherwise dispose of the said Parcel in such manner as the Vendor shall see fit as if this Agreement has not been entered into;
(ii) The instalments previously paid by the Foreign Purchaser to the Vendor, excluding any interest paid, shall be dealt with and disposed of as follows:
(a) Firstly, an amount to be forfeited by the Vendor as follows:
(i) Where up to fifty per centum (50%) of the Purchase Price has been paid, an amount equal to ten per centum (10%) of the Purchase Price;
(ii) Where more than fifty per centum (50%) of the Purchaser Price has been paid, any amount equal to twenty per centum (20%) of the Purchase Price.
(b) Secondly, the residue thereof shall be refunded to the Foreign Purchaser.
(iii) Neither party hereto shall have any further claim against the other for costs, damages, compensation or otherwise hereunder; and
(iv) Each party hereto shall pay its own in the matter.
8.7 In the event that the FIC Approval and/or State Consent is rejected or shall not be obtained for any reason not due to the default of the Foreign Purchaser within the said period of six months or any extended period referred to in Clause 7.5, the Vendor may by notice in writing to the Foreign Purchaser rescind this Agreement and this Agreement shall be rescinded accordingly and the Vendor shall refund to the Foreign Purchaser the instalments towards the purchase price paid by the Foreign Purchaser to the Vendor without any interest costs or compensation and neither party shall have any claim against the other under or in respect of this Agreement or otherwise howsoever.
8.8 In the event the FIC Approval and/or State Consent is rejected or not approved due to the default of the Foreign Purchaser the Vendor shall be entitled to terminate this Agreement and upon such termination, the provisions of Clause 8.6(i), (ii), (iii) and (iv) shall take effect.
9. PURCHASER’S DEFAULT
If the Purchaser fails to pay the balance purchase price or any part thereof within the time frame as stipulated in Section 4 of the Second Schedule hereof or if the Purchaser neglects or fails to perform any of the terms conditions and stipulations on the Purchaser’s part to be performed under this Agreement, the Vendor shall be at liberty to terminate this Agreement and forfeit the 10% purchase price paid by the Purchaser under Clause 1 hereof as agreed liquidated damages and not as penalty but the Vendor shall forthwith upon such failure refund or cause to be refunded to the Purchaser free of any interest any other sum(s) paid in excess thereof by the Purchaser to the Vendor pursuant to this Agreement. Thereafter this Agreement shall become null and void and of no further effect and neither party hereto shall have any claim against the other under or in respect of this Agreement (save the return of any documents belonging to the Vendor and the withdrawal of any Private Caveat lodged by the Purchaser) and the Vendor shall have the absolute right to resell the Property to such person or persons in such manner and on such terms as the Vendor shall deem fit and the Purchaser shall have no right to any of the purchase money thereby arising. Provided always that if possession of the Property has already been delivered to the Purchaser, the Purchaser shall forthwith return possession of the Property to the Vendor.
10. VENDOR’S DEFAULT / SPECIFIC PERFORMANCE
The Purchaser shall on performing all the terms and conditions and stipulations herein contained on the Purchaser’s part to be performed be entitled either to the remedy at law for specific performance against the Vendor and to all relief flowing therefrom or to terminate this Agreement and claim damages and all costs and expenses incurred in exercising such right shall be borne and paid by the Vendor.
11. DELIVERY OF DOCUMENTS
The Vendor shall, upon execution of this Agreement hereof, deliver or cause to be delivered to the Purchaser’s solicitors the following documents with or without notice failing which the completion date will be extended accordingly without interest: –
(a) photocopies of quit rent and/or assessment and/or sewerage receipts of the Property for the current year and/or original title (whichever is relevant);
(b) a valid Assignment and/or Memorandum of Transfer or any proper document assigning and/or transferring all the Vendor’s rights title and interest in the Principal Sale Agreement and in the Property to the Purchaser and/or his nominee or nominees;
(c) the duly executed Stamp Proforma under Section 5 of the Stamp Act 1949 in respect of the Property;
(d) all other necessary documents to assign the right and interest over the Property in favour of the Purchaser or his nominee(s) or assignee(s) free from all encumbrances;
(e) such undertakings or documents as may be required by the Financier as defined in Clause 14 hereto in order to grant the Purchaser a loan or release the loan.
PROVIDED ALWAYS THAT the Purchaser’s solicitors shall not deal or stamp the Deed of Assignment and/or Memorandum of Transfer except for submitting the same for stamp duty adjudication only unless as otherwise agreed herein. NOTWITHSTANDING the execution of the Deed of Assignment and/or Memorandum of Transfer and the acknowledgement of receipt of the consideration stated therein, the parties hereby expressly confirm that the Deed of Assignment and/or Memorandum of Transfer shall not be construed as payment in full of the consideration and the Property shall not be deemed to be assigned and/or transferred to the Purchaser by the Vendor until the full purchase price has been paid by the Purchaser to the Vendor.
12. GOVERNMENT AND LOCAL AUTHORITY REQUIREMENTS
(a) The Property is open to inspection and the Purchaser shall be held to have had notice of all notices reservations road widening schemes and requirements of the Government and the local authority and all such notices reservations schemes and requirements shall be complied with by and at the expense of the Purchaser.
(b) The Property is likewise sold subject to road deviation or widening drainage or improvements or other schemes or matters affecting the Property and the Purchaser shall be deemed to have had full knowledge of the nature and effect thereof and shall make no objection or requisition in respect thereof.
13. REAL PROPERTY GAINS TAX
(a) The Vendor shall pay all tax payable under the Real Property Gains Tax Act, 1976 in respect of the sale of the Property to the Purchaser.
(b) The Vendor and Purchaser hereby expressly agree covenant and undertake with each other that they shall within the prescribed period as stated in the Real Property Gains Tax Act, 1976 submit to the Inland Revenue Department the notification forms prescribed under the Real Property Gains Tax Act 1976 in respect of the sale and purchase of the Property hereunder and furnish all such information, particulars and documents as may be required in connection therewith. The Vendor shall provide evidence of such submission to the Purchaser as soon as possible.
(c) It is hereby agreed between the parties hereto that the balance purchase price shall not be released to the Vendor until the Vendor has furnished evidence of submission of the requisite notification form and in the event of any penalty being incurred for late stamping due to the default on the part of the Vendor to do the same the Vendor shall be liable for all such penalty.
(d) The Vendor and the Purchaser hereby agree that the Vendor’s solicitors (or the Purchaser’s solicitor if the Vendor is unrepresented) retain a sum of money out of the balance purchase price as stated in Section 5 of the Second Schedule (hereinafter referred to as “the Retention Sum”) for the payment of such tax and upon it being determined that the sale of the Property is liable to tax the Retention Sum shall be utilised by the solicitors to pay such tax. If no tax is payable the Retention Sum shall be refunded to the Vendor forthwith. The Vendor further agrees and covenants that if the Retention Sum is not sufficient to pay the tax the Vendor undertakes to pay such additional sum or sums to the relevant authorities.
(e) The Vendor shall at all times indemnify and keep the Purchaser indemnified against all liability, losses, damages, costs and expenses by reason of or in connection with any late or non payment of the tax payable by the Vendor under the Real Property Gains Tax Act, 1976 or non submission of the forms in respect of the sale of the Property to the Purchaser.
14. LOAN
In the event the Purchaser is obtaining a loan (hereinafter called “the Loan”) from a financier (hereinafter called “the Financier”) to finance the purchase, the following shall be the arrangement for completion: –
(a) if the Property is not assigned by the Vendor to any Financier , upon approval of the Loan from the Financier, the Vendor’s solicitors shall forward the Principal Sale Agreement to the Purchaser’s solicitors or the Financier’s solicitors, if different from the Purchaser’s solicitors, subject to the Purchaser or Purchaser’s solicitors producing and confirming the following: –
(i) a letter of undertaking from the Financier to release the Loan on or before the time period as stipulated in Section 4 of the Second Schedule hereof; and
(ii) the difference between the purchase price and the Loan has been paid to the Vendor or the Vendor’s solicitors,
(b) if the Property has been assigned by the Vendor to a Financier, upon confirmation of item (i) and (ii) in clause 14(a) above, the Purchaser shall cause the Financier to release such portion of the Loan as may be necessary to secure the reassignment of the Property upon such release: –
(i) the Vendor shall, within fourteen (14) days after the Purchaser or the Financier releases the redemption sum to the existing financier, deliver or cause to be delivered to the Purchaser the original copy of the Principal Sale Agreement, the Deed of Reassignment and all other necessary documents failing which the time period as stipulated in Section 4 of the Second Schedule hereof shall be extended in accordance with the number of days delayed in securing the Deed of Reassignment and the relevant documents. If interest is payable by the Purchaser to the Vendor during this delayed period, the interest chargeable shall be waived by the Vendor in accordance with the total number of days delayed.
(ii) Upon receipt of the Deed of Reassignment and other relevant documents, the Purchaser shall cause the balance loan to be remitted to the Vendor or his solicitors. In any event the balance loan shall be remitted to the Vendor or his solicitors on or before the time period as stipulated in Section 4 of the Second Schedule hereof.
(c) that the Vendor shall as and when requested by the Financier’s Solicitors or the Purchaser’s Solicitors, as the case may be, execute and deliver an undertaking in writing addressed to the Financier to refund the Loan in the event that the assignment of the said Property pursuant to the said Deed hereof in favour of the Purchaser shall not be perfected free due to no fault or default of the Vendor (the “Vendor’s Undertaking”) within fourteen (14) days from the date of the said request, failing which any days in excess of fourteen (14) days shall not be taken into account in computing the period for the Completion Date.
(d) In the event the Vendor is found by the Purchaser and/or Purchaser’s Financier to have been blacklisted due to some previous debts due and owing by the Vendor to any third party, such matter which may resulted in the delay in the release of the balance of the purchase price will result in the completion date be extended accordingly without interest and the Vendor has to settle all outstanding arrears and requirements as required by Purchaser and/or Purchaser’s Financier whereby the Purchaser has the right to terminate this Agreement if the Vendor failed to remedy the situation therein and all monies payable inclusive of the deposit shall be returned to the Purchaser without interest within fouteen (14) days from the day of written notice given by the Purchaser.
15. COMPULSORY ACQUISITION
(a) The Vendor hereby declares that as at the date hereof the Property is not subject to acquisition under the Land Acquisition Act, 1960 or any other legislation.
(b) If the Property or any part thereof shall be or become affected by any notice of acquisition under the Land Acquisition Act, 1960 or any other legislation on or before the Completion Date the Vendor shall give notice thereof to the Purchaser within seven (7) days of receipt thereof. The Purchaser shall be entitled to determine this Agreement if he does not intend to proceed with the purchase of the Property.
(c) The Purchaser shall as soon as possible but in any event not later than fourteen (14) days after receipt of the notice notify the Vendor of his decision in writing.
(d) If the Purchaser intends to proceed with the purchase, the Vendor shall give notice to the acquisition authority of the Purchaser’s interest in the Property and all compensation payable in respect of such acquisition shall belong to the Purchaser but only upon completion of the sale and purchase of the Property and after the Vendor has received he full purchase price under this Agreement.
(e) If the Purchaser decides not to proceed with the purchase, all monies paid hereunder shall be refunded forthwith to the Purchaser free of interest and the Purchaser shall simultaneously return all documents inclusive of the Deed of Assignment and all other relevant documents belonging to the Vendor whereupon this Agreement shall determine and neither party shall have any further claim against the other.
(f) For the avoidance of doubt, it is expressly agreed that in the event of any acquisition under the Land Acquisition Act 1960 or any other legislation after the Completion Date, this Agreement shall not be terminated and the Purchaser shall continue to be bound by this Agreement.
16. REPRESENTATIONS AND WARRANTIES
The Vendor hereby represents and warrants to the Purchaser that: –
(a) the Vendor is the beneficial owner of the Property pursuant to the Principal Sale Agreement;
(b) the Vendor has the power and capacity to execute this Agreement and to perform the terms herein;
(c) that no petition for bankruptcy has been presented against nor receiving or adjudication order in bankruptcy has been made in respect of the Vendor;
(d) the execution and performance of this Agreement will not violate the provisions of any law;
(e) the Vendor has not at any time prior to the date hereof entered into any agreements or arrangements for the sale of the Property to any person nor granted any option or right of first refusal in favour of any person in respect of the Property;
(f) there is no litigation, arbitration or administrative proceedings presently current or pending or threatened against the Vendor which might affect the Vendor’s ability to perform this Agreement or frustrate the completion of the transaction hereunder.
The Vendor acknowledges that the Purchaser has entered into this Agreement on the basis of and in full reliance of the aforesaid representations and warranties.
17. VACANT POSSESSION, OUTGOING, DEPOSIT, SINKING FUND
(a) The Purchaser shall be entitled to vacant possession of the Property upon full payment of Balance Purchase Price together with late payment interest (if any) and the receipt of the rents and profits of the Property as from the Completion Date and shall from such date be liable to all outgoing (including quit rent, assessments, service charges, etc.) in respect of the Property, such rents profits and outgoing to be apportioned if necessary and provided that the Vendor shall indemnify the Purchaser in respect of any loss or penalty imposed by reason of any late payment by the Vendor of such outgoing for any period prior to the Completion Date. Upon delivery of vacant possession of the Property by the Vendor to the Purchaser, it is agreed by the parties herein that the Vendor shall forward the original receipt of the sinking fund and service/maintenance charge deposit to the Purchaser upon receipt of the refunded sum from the Purchaser. In the event that the Vendor fails to deliver vacant possession of the said Property within the stipulated period, the Vendor shall pay the Purchaser an interest at the rate of ten (10%) per centum per annum on the full Purchase Price on daily basis until the date of handling over vacant possession to the Purchaser.
(c) The Vendor shall keep the said Property in the same condition and state as it is at the date hereof (save for fair wear and tear) until the date of delivery of vacant possession of the said Property to the Purchaser PROVIDED ALWAYS that in the event of any substantial and material change in the said Property between the date of this Agreement and the date of delivery of vacant possession, the Vendor shall upon notification by the Purchaser forthwith make good the same within fourteen (14) days from the date of receipt of the Purchaser’s notification of the same at the Vendor’s own cost and expense.
18. CAVEAT
Upon execution of this Agreement, the Purchaser is entitled at his own cost and expense to lodge a private caveat against the Property PROVIDED THAT the Purchaser shall at the same time execute in escrow the Notice of Withdrawal of Private Caveat in the form prescribed by the National Land Code which the Notice of Withdrawal of Private Caveat shall be deposited together with the requisite registration fees with the solicitors for safe keeping. In the event the Purchaser fails to pay the balance purchase price in accordance with Section 4 of the Second Schedule, this Agreement shall become null and void and thereafter the solicitors are hereby authorised to forthwith present such Notice of Withdrawal of Private Caveat at the relevant Land Office/Registry to effect the withdrawal of the private caveat at the cost and expense of the Purchaser.
19. RESTRAINTS OF DEALING
During the continuance of this Agreement, the Vendor shall not sell assign dispose of or otherwise deal with the Property or create any charge encumbrance over the Property or otherwise part with the possession of the Property.
20. ERROR OR MISDESCRIPTION
The description of the Property is believed and deemed to be correct and no error omission or misstatement shall invalidate the sale or be made the subject of any claim for compensation by either party.
21. INSPECTION
The Purchaser shall be deemed to have inspected the Property and to have notice of the actual state and condition of the Property and the Property is sold in the existing state and condition in which they are as on the date of execution of this Agreement.
22. DAMAGE TO THE PROPERTY
(a) Notwithstanding anything contained in this Agreement or any risk of law of equity to the contrary, the Property shall be at the sole risk of the Vendor as regards to all loss or damage by fire or other courses until the date of delivery of vacant possession of the Property to the Purchaser.
(b) In the event the Property or any part thereof shall at any time before the Completion Date be damaged or destroyed by fire or any other causes, the Purchaser shall be entitled to terminate this Agreement by giving notice in writing to that effect to the Vendor and upon such termination, the Vendor shall refund to the Purchaser within ten (10) days from the date of the notice of termination, the sum paid by the Purchaser under Clause 1 hereof and all other moneys paid by the Purchaser to and on behalf of the Vendor hereunder and upon such refund, this Agreement shall thereafter become null and void.
23. RENTS AND PROFITS
As from the Completion Date the Purchaser shall be entitled to the rents and profits of the Property.
24. PRINCIPAL SALE AGREEMENT
The Vendor hereby covenants and undertakes to indemnify and keep the Purchaser indemnified against all actions proceedings claims demands and expenses in respect of any breach or non-observance of the covenants stipulations terms and conditions of the Principal Sale Agreement by the Vendor prior to the completion date of this Agreement.
25. APPOINTMENT OF SOLICITORS
(a) The parties hereto hereby respectively appoint the firm of solicitors more particularly described in Section 12 of the First Schedule to act on their behalf in respect of this Agreement as well as in the transfer of the Property from the Vendor to the Purchaser.
(b) In the event the Vendor elects not to be represented by any solicitors in the sale of the Property, any reference to the Vendor’s solicitors herein shall be deemed to refer to the Purchaser’s solicitors.
26. COMPLETION OF SALE
(a) Completion of the sale and purchase shall take place at the office of the Vendor’s solicitors (or at the office of the Purchaser’s solicitors if the Vendor is unrepresented) on the Completion Date.
(b) Completion of the sale and purchase shall means upon receipt by the Vendor’s solicitor (or Purchaser’s solicitor if the Vendor is unrepresented) of the full purchase price.
27. TIME
Time whenever mentioned shall be of the essence of this Agreement.
28. COSTS
Each party shall bear their own solicitors’ costs and expenses of and incidental to the preparation and execution of this Agreement and the Transfer of the Property. However all the stamp duty and registration fees thereon shall be paid by the Purchaser. The Purchaser further agrees to pay as and when required any additional or excess stamp duty and/or any penalty that may be imposed by the Collector of Stamp Duties or such other competent authority in respect of this Agreement and/or the Transfer of the Property.
29. NOTICE
Any notice to be given under this Agreement shall be in writing and shall be deemed to be sufficiently served: –
(a) if it is sent by prepaid registered post addressed to the other party at the address hereinbefore mentioned or to his solicitors and in such a case it shall be deemed (whether it is actually delivered or not) to have been received at the time when such registered letter would in the ordinary course be delivered; or
(b) if it is despatched by hand to the solicitors for the other party.
30. LAST DAY FOR COMPLETION
When the last day for doing any act or thing or taking step hereunder would but for this provision is a Sunday or a holiday such last day shall instead be the following working day.
31. SEVERANCE
Any term, condition, stipulation, provision, covenant or undertaking in this Agreement which is illegal, void, prohibited or unenforceable shall be ineffective to the extent of such illegality, voidness, prohibition or unenforceability without invalidating or rendering illegal, void or unenforceable the remaining terms, conditions, stipulations, provisions, covenants or undertakings herein contained.
32. FORCE MAJEURE
The parties shall be released from their respective obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the reasonable control of the parties or any of them renders the performance of this Agreement impossible where upon this Agreement shall terminate and all monies paid hereunder shall be refunded forthwith to the Purchaser free of interest and the Purchaser shall simultaneously return all documents inclusive of the unpresented Memorandum of Transfer and the original issued document of titles belonging to the Vendor whereupon this Agreement shall determine and neither party shall have any further claim against the other provided that this clause shall have effect only if either party serves a notice on the other that it will have effect.
33. SCHEDULES
The First, Second, Third and Fourth Schedules hereto shall be taken read and construed as an essential parts of this Agreement and the special conditions, if any, set out in the Third Schedule hereto shall prevail if there is any conflict, discrepancy or variance between the special conditions as set out in the Third Schedule hereto and any other terms or conditions of this Agreement.
34. KNOWLEDGE OR ACQUIESCENCE
Knowledge or acquiescence by either party hereto of or any breach of any of the conditions or covenants herein contained shall not operate as or be deemed to be waiver of such conditions or covenants or any of them and notwithstanding such knowledge or acquiescence each party hereto shall be entitled to exercise their respective rights under this Agreement and to require strict performance by the other of the terms and conditions herein.
35. SUCCESSORS BOUND
This Agreement shall bind the personal representatives heirs successors-in-title and assigns of the Vendor and Purchaser respectively.
36. INTERPRETATION
(a) In this Agreement where the context so admits the term “the Vendor” or “the Purchaser” shall include their respective heirs successors personal representative and permitted assigns and when there are two or more persons included in the term “the Vendor” or “the Purchaser” their liabilities under this Agreement shall be joint and several.
(b) Words importing the masculine gender shall be deemed and taken to include the feminine and neuter genders and the singular to include the plural and vice versa.
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THE FIRST SCHEDULE
(which is to be taken, read and construed as an essential part of this Agreement)
Section Item Particulars
1.
The date of this Agreement
2.
Name and description of the Vendor
3.
Name and description of the Purchaser
4
The date of the Principal Sale Agreement
5.
Name and description of the Developer
6.
Description of the Property
7.
Area of the Property
8.
Description of the Land
9.
Name and description of the Bank
NIL
10.
Address of the Property
.
11.
The Vendor’s solicitors
The Purchaser’s solicitors
Unpresented.
[Name of Solicitors]
Advocates & Solicitors
[Address]
THE SECOND SCHEDULE (which is to be taken, read and construed as an essential part of this Agreement)
Section Item Particulars
1.
The amount of deposit of this Agreement
Ringgit Malaysia [Insert Amount].
2.
The purchase price of the Property
Ringgit Malaysia [Insert Amount].
3.
The amount of balance purchase price
Ringgit Malaysia [Insert Amount].
4.
Time and manner of payment of the balance
purchase price
The balance purchase price of [Insert Amount] shall be paid within three (3) months from the date of the Vendor obtaining the developer consent and/or the Vendor having obtain the relevant redemption statement to the Purchaser’s solicitor for the purpose of advising the Purchaser’s financial institution to release part of the balance purchase price and/or upon receipt of the adjudication of transfer and/or Developer providing the Quit Rent receipt for year 2005 and/or receipt from the Vendor end financier or Vendor’s Letter of Undertaking and/or approval from FIC/State Consent and/or upon receipt of R&R/Dicharge of Charge whichever is later, with an extension of one (1) month to pay subject to the Purchaser paying interest at 6% per annum to be calculated on a daily basis for the extended period (hereinafter referred to as “The Completion Date”)
5.
The Retention sum
A sufficient sum.
THE THIRD SCHEDULE
(which is to be taken, read and construed as an essential part of this Agreement)
(1) The Vendor shall endeavour to obtain a valid and registrable Memorandum of Transfer and/or the Deed of Assignment of the Property duly executed by the Developer and/or Vendor in favour of the Purchaser or his nominee(s) and deliver the same to the Purchaser’s solicitors who are hereby authorised to forward such Memorandum of Transfer and/or Deed of Assignment to the relevant authority for the purpose of stamp duty adjudication only.
(2) The Vendor shall deliver vacant possession of the said Property to the Purchaser upon full payment of the Balance Purchase Price together with any accrued interest thereon.
IN WITNESS WHEREOF the Vendor and the Purchaser have set their hands the day and year set out in Section 1 of the First Schedule of this Agreement.
The Vendor
Signed by )
for and on behalf of )
in the presence of:- )
) ———————————————-
[NAME]
———————————————-
[NAME]
The Purchaser
Signed by )
for and on behalf of )
in the presence of:- )
) ——————————————–
[NAME]
——————————————–
[NAME]
