THIS AGREEMENT is made this day of 20
BETWEEN
[Name] (NRIC No. _________) of ___________________________ (hereinafter referred to as “the Proprietor”) of the one part;
AND
________________________ (Company No. __________________) a company incorporated in Malaysia and having its registered address at_____________________________________________ (hereinafter referred to as “the Developer”) of the other part.
WHEREAS:-
A. The Proprietor is the registered owner of all that parcel of freehold land held under ______________________________________________________________ measuring approximately ____________ square metres in land area (hereinafter referred to as “the said Land”). A copy of the document of title to the said Land is appended herein as Appendix “A”).
B. The Proprietor has invited for interested parties to submit their respective proposals to develop the said Land subject to such terms and conditions acceptable to the Proprietor.
C. Pursuant thereto and following the acceptance by the Proprietor of the Developer’s proposal, the Proprietor and the Developer are desirous to enter into a joint venture to develop the said Land into a residential development together with other necessary infrastructure, amenities and public utilities in accordance with the proposed development accepted by the Proprietor (hereinafter referred to as “the Project”) and as may be approved by the Relevant Authorities with or without any variation or amendments, and subject to such amendments as may be proposed by the Developer.
D. The Parties hereto hereby enter into this Agreement to regulate their relationship and respective roles on a joint venture basis in carrying out the Project on the said Land upon and subject to the terms and conditions set out herein.
NOW THIS AGREEMENT WITNESSETH AND IT IS HEREBY AGREED BY THE PARTIES HERETO as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless there is something in the subject or context inconsistent with such construction or rules it is otherwise expressly provided that the following terms shall have the following meanings:-
(a) “Approved Layout Plan” shall mean the layout plan as may be approved by the Relevant Authorities, pursuant to the Parties’ submission and/or applications, for the development of the Project together with any amendments and variations as may be approved by the Relevant Authorities;
(b) “Approved Plans” shall mean building plans, elevations, specifications, designs and such other plans which shall have been and/or shall be formally approved by the Relevant Authorities other than the Approved Layout Plan;
(c) “Business Day” shall mean a day (excluding Saturdays and Sundays) on which banks are open for business in Malaysia;
(d) “Certificate of Completion and Compliance” shall mean the certificate of compliance and compliance issued by the Relevant Authorities in respect of the buildings, structures and infrastructure erected within the Project;
(e) “Consultants” shall mean such duly qualified and registered person who shall be employed/appointed by the Developer to oversee the Project and other functions specified by the Developer including professionals vis-a-vis architect, engineers, draftsmen and any other person(s) the Developer shall deem fit;
(f) “Contractor” shall mean any construction company/firm or person appointed by the Developer for the works required for the whole or part of the Project and includes any contractor or sub-contractors and supplier of goods in connection with the construction works of the Project;
(g) “Completion” shall mean delivery of vacant possession of the Properties constructed in the Project by the Developer in accordance with the standard Sale and Purchase Agreement prescribed under Schedule G or Schedule H of the Housing Developers (Control & Licensing) Regulations 1989 or in the case of commercial, industrial and/or other properties not within the ambit of the Housing Developers Act, properties as per the terms and conditions of the Sale and Purchase Agreement specified by the Developer;
(h) “Consent to Charge” shall mean the consent to charge in relation to the said Land for a charge as security for the Project Financing in accordance to National Land Code (1965);
(i) “the Developer” shall mean ___________________ (Company No. _________) a company incorporated in Malaysia and having its registered address at _______________________________________________________ _________ and shall include its successors-in-title, nominee(s) and the assign(s) of the Developer;
(j) “Development Approval” shall mean:-
(a) the Approved Layout Plan; and
(b) the Approved Plans;
(k) “the Financier” shall mean any financial institution that grants a banking or loan facility to the Developer towards the purposes of the Project;
(l) “Housing Developers Act” shall mean the Housing Development (Control and Licensing) (Amendment) Act 2007 and shall include any amendments, modifications and re-enactments thereto;
(m) “Infrastructure” shall mean the roads and its related ancillary works, the side tables of the roads, the drains, the electrical cables, street lighting, water reticulation mains, telephone cables, sewer lines, man holes and man hole covers built constructed or laid upon the said Land, if any, or other related works in accordance with the Approved Layout Plan/Approved Plans and other specifications as approved thereof;
(m) “said Land” shall mean all that parcel of freehold land held under _____________ _________________________________________________________ measuring approximately ____________ square metres in land area;
(n) “Month” shall mean a Gregorian Calendar month;
(o) “Parties” shall mean the Proprietor and the Developer collectively and “Party” refers to either of them;
(p) “Practical Completion” shall mean the issuance of a Certificate of Completion and Compliance and shall include partial issuance of Certificate of Completion and Compliance for a distinct part of the Project including the issuance of a temporary/interim Certificate of Completion and Compliance thereof or such other certificates as may be issued by the Relevant Authorities at the time thereof signifying the completion of the Project and/or the respective Unit(s) or Parcel(s) comprised in the Project;
(q) “Project” shall mean the building construction and completion within the said Land of the buildings and structures and all works in line with the Development Approval in accordance with the Approved Layout Plan/Approved Plans including any subsequent variations or amendments as shall be formally approved by the Relevant Authorities including the sales, marketing, management and administration of the same;
(r) “Project Cost” shall mean, save as otherwise expressly provided, all monies and expenses in respect of the Project including but not limited to payment for premium and all fees payable to the Relevant Authorities and/or body to obtain the supply of utility to the Project, construction, building and infrastructure cost, consultants’ and other professional fees, taxes, levy, advertisement, marketing, promotion, discount or debit notes and all other monies payable in respect of the Project;
(s) “Properties” shall mean all residential, commercial, industrial and/or such other Properties comprised in the Project in accordance to the Approved Plans and/or the Development Approval as determined by the Developer and as approved by the Relevant Authorities;
(t) “Relevant Authorities” shall mean all Federal, State and local government, statutory and other authorities and bodies having jurisdiction from time to time and at any time over the said Land and/or the Project or any part or stage of it or whose approval or cooperation may be required for the successful completion of the Project or any part or stage thereon;
(u) “Ringgit and RM” shall mean the lawful currency of Malaysia;
(v) “Title” shall mean the original issue document of title or titles whether in the form of block and/or separate title(s) to the said Land;
(w) “Unit” and “Units” shall mean the individual unit and units of the Properties comprised in the Project.
1.2 The headings in this Agreement are inserted for convenience only and shall not be taken read or construed as an essential part of this Agreement.
1.3 Any reference to a Recital, Clause or Appendices (unless specifically provided) shall be to a recital, clause, appendices or schedule of this Agreement and shall be taken read and construed as an essential part of this Agreement.
1.4 All references in this Agreement to any statute, decree, law, statutory instrument or other regulation having the force of law shall be construed as including references to any statutory amendments modification consolidation or re-enactment (whether before or after the date of this Agreement) for the time being in force and any statutory instruments or orders made pursuant to a statutory provision.
1.5 Words denoting the singular shall include the plural and vice versa. Words denoting the neuter gender shall include the masculine and feminine genders and vice versa.
2. AGREEMENT TO JOINT VENTURE AND CONDITIONS PRECEDENT
2.1 In consideration of the anticipated mutual benefits to be derived hereunder, the Parties hereto agree to carry out the Project on a joint venture basis in the manner hereinafter set forth and subject to the terms and conditions hereinafter contained.
2.2 The joint venture shall be implemented by the combination of the respective resources of the Parties hereto and to this effect the Proprietor’s contribution to the joint venture will be the said Land with issue document of title to the same free from any encumbrance save and except those created by the Developer directly or indirectly with vacant possession and the Developer undertake the obligation to carry out the Project in accordance with the Project Cost. For avoidance of doubt, the Proprietor shall deliver the issue document of title of the said Land to the Developer free from any and all encumbrances and caveats as defined by the National Land Code, 1965 with vacant possession upon execution of this Agreement.
2.3 Notwithstanding anything to the contrary herein, this Agreement and the ensuing obligations of the Parties are conditional upon the following events:-
(a) The approval for conversion and zoning of the said Land for the development proposed by the Developer having been obtained from the Appropriate Authority, if applicable;
(b) The Approved Layout Plan and the Approved Plans having been obtained from the Relevant Authorities;
(c) The Advertising Permit and any other necessary approvals to be obtained by the Developer for the Project
by the Proprietor and at the Proprietor’s own costs and expenses within twelve (12) months from the date hereof (“the Compliance Period”) or such other extension as may be agreed in writing by the Parties hereto failing which this Agreement shall be deemed null and void and be of no further effect and save and except for antecedent breach, the Parties hereto shall have no claim whatsoever against the other.
2.4 The date upon which the conditions precedent having been fulfilled by the Proprietor shall be hereinafter referred to as “the Compliance Date”.
2.5 In the event that the Proprietor shall require the Developer’s assistance with regards to the compliance of the conditions precedent herein, all costs and expenses incurred by the Developer incidental to and resulting therefore shall be reimbursed by the Proprietor to the Developer and the same shall be deducted by the Developer from the Proprietor’s Entitlement enumerated hereunder.
3. THE PROPRIETOR’S ENTITLEMENT AND THE DEVELOPER’S ENTITLEMENT
3.1 In consideration of the Proprietor agreeing to develop the Project upon the terms and conditions herein, the Developer shall construct and deliver to the Proprietor as part of the Project, the following:-
to be developed and built on the said Land forming the Project.
3.2 The Proprietor shall NOT be entitled to any low cost Units to be constructed on the said Land forming part of the Project.
3.3 The legal and beneficial interest and rights in all the other Units and/or Properties comprised in the Project (hereinafter referred to as “the Developer’s Entitlement”) shall belong and vests to the Developer solely.
4. DEVELOPMENT OF THE PROJECT
4.1 The Developer shall within thirty six (36) months from the Compliance Date construct and complete the construction of the Properties in a workmanlike manner and in accordance with the Approved Plans and Approved Layout Plan or the amendments thereto (if any) and in compliance with all applicable laws, rules and regulations of the Relevant Authorities having jurisdiction over the Project and/or the said Land including but not limited to manage, market and sell the Properties.
4.2 In circumstances where the delay to the completion of the Project shall be attributable to such other causes which is duly certified by the Developer’s consultants, engineers and/or architects to be beyond the control of the Developer, an extension of time as certified by any of the aforementioned consultants, engineers and/or architects shall be deemed to have been granted by the Proprietor to the Developer for the completion of the Project and no penalty interest damages fines and/or charges shall be payable by the Developer to the Proprietor in respect of such extension.
4.3 Upon the execution of this Agreement, the Developer shall in its own name and at its own cost and as soon as practicable do or cause to be done the following:-
(a) appoint the necessary consultant(s) to draw and prepare all the relevant plans and documents to obtain the Development Approval or Building Approval;
(b) appoint the necessary consultant(s) to draw, design and finalise the layout plan for the Project and submit the same for approval by the Relevant Authorities;
(c) appoint the architect(s) to draw and design building plans for the Project and submit the same for approval by the Relevant Authorities;
(d) appoint the engineer(s), land surveyor(s) and all other related and necessary consultants or experts for the said Project;
(e) select and appoint the contractor(s) for the construction of the infrastructure, utilities, amenities, property products, buildings and/or the sub-divided lots of the Project;
(f) make all necessary applications to the Relevant Authorities for such approvals as may be necessary for the development of the Project; and/or
(g) the Developer shall develop and prepare working drawings, specifications, plans, designs, sketches, reports and setting out the dimensions as are necessary for the proper works of the Project.
4.4 The Developer shall, with due care and diligence, execute and complete the development of the Project in accordance with the provisions of this Agreement and shall comply with and fulfil all planning and building requirements imposed by the Relevant Authorities from time to time.
4.5 The Developer shall be responsible for the compliance with all acts, regulations and by-laws for the construction of the Project and the procurement of the Certificate of Completion and Compliance from time to time.
4.6 The Developer shall apply for the separate individual qualified title(s) or in the case of subdivided buildings, final title(s) in respect of each and every building lots or parcels and for the issuance of strata titles in respect the subdivided buildings of the Project as soon as the application can be made.
4.7 The Developer shall be responsible for all matters pertaining to the sale, marketing and administration of the Properties comprised in the Project including but not limited to the determination of the selling price of the Properties at its sole and absolute discretion.
4.8 The Developer shall carry out all administrative functions, accounting process, sales, marketing, promotion, management and coordination of the whole of the Project.
4.9 The Developer shall maintain and shall cause any contractor to maintain such insurance including without limitation a Contractor’s All Risks Policy:-
(a) such insurance as are necessary to cover the liability of the Developer or as the case may be, of such contractor, in respect of personal injuries or deaths arising out of or in the course of or caused by the carrying out of the Project; and
(b) such insurance as may be necessary to cover injury or damage to property real or personal arising out of or in the course of or by reason of the carrying out of the Project and caused by any negligence, omission or default of the Developer, his servants or agents or, as the case may be, of such contractor and/or its servants or agents;
4.10 The Project shall comprise of the design, construction and completion of all buildings and subdivision of the lots, in accordance with the Approved Layout Plan/Approved Plans together with individual and/or strata titles complete with infrastructure facilities and except in so far as this Agreement shall otherwise provide shall also include the provision of all professional personnel, labour, materials, construction plants, temporary works and all other things or matters related thereto whether of a temporary or permanent nature required for the design, construction and completion of the same so far as is necessary for providing the same as specified herein or as may reasonably be inferred from this Agreement.
4.11 The Parties hereto hereby agreed that the Developer shall be entitled upon the execution of this Agreement to lodge such private caveats against the said Land or any part thereof for the purposes herein and such private caveats shall remain in full force and effect until such time as the Proprietor shall have discharged all its obligations and liabilities to the Developer hereunder or until such time as the Developer shall deem expedient whereupon the Developer shall cause such private caveats to be removed at its own costs and expense.
4.12 In the event that the response to the Project as determined by the Developer at its sole discretion is poor at the time of its launch whereby the Properties are offered for sale to the public, the Developer hereby reserves the right to vary and/or amend all aspects of the development of the Project including but not limited to unit types, design and the quantity thereto.
5. PROPRIETOR’S DUTIES, WARRANTIES AND REPRESENTATIONS
5.1 The Proprietor hereby covenant and undertake as follows:-
(a) that they shall render every reasonable assistance and endeavour to the Developer to secure the necessary approvals from the Relevant Authorities for the commencement of works and the successful completion of the Project;
(b) that it shall deliver all original documents related to the said Land including but not limited to the current year quit rent and assessment receipt together with the issue document of title free from all encumbrances with vacant possession to the Developer upon the execution of this Agreement or in the event that the issue document of title is encumbered, the Proprietor shall have such encumbrances removed from the issue document of title and delivers the issue document of title free from all encumbrances with vacant possession to the Developer within fourteen (14) days from the date of this Agreement;
(c) to allow the Developer to charge, pledge and/or use the said Land as security in order to obtain a banking or loan facility with the Financier for the purposes of the Project;
(d) that they shall apply for and procure the Consent to Charge and execute all necessary documents or instrument, if required, within a reasonable time if so requested by the Developer;
(e) that if it is so requested by the Developer, to assist the Developer in procuring the approval to any plans necessary of deemed expedient by the Developer for the Project;
(f) if so requested by the Developer, it shall execute all necessary documents for the transfer of the said Land or the subdivided title or titles thereof as and when required, pursuant and incidental to this Agreement;
(g) that they shall execute, sign, seal and deliver a conveyance of the said Land or any part or parts thereof to the Developer or other person or persons for the time being entitled thereto and in particular the purchasers of the Properties of the Project within the said Land;
(h) to sign and execute all applications to the appropriate government departments and/or the Relevant Authorities for all or any licenses, permissions, approvals and consents as are required by or pursuant to any Acts, orders, statutory instruments, regulations, by-laws, restrictions-in-interest, imposition or otherwise in connection with the development, management and/or improvement of the Project;
(i) to enter into the sale and purchase agreement and execute the sale and purchase agreement, if so requested by the Developer, with the purchasers of the Properties developed by the Developer on the said Land in accordance with the Housing Developers Act or where the Housing Developers Act do not apply, such other sale and purchase agreement as may be determined by the Developer, with the purchasers of non-residential properties falling outside the purview of the said Act;
(j) to execute the prescribed sale and purchase agreement as a purchaser for the unit(s) comprised in the Proprietor’s Entitlement upon the Developer’s request;
(k) in the event that the purchasers of the Properties shall require financing from any financial institution to assist in the purchase of the same, the Proprietor shall execute and sign all relevant documents and to provide all necessary confirmations and undertakings as may be required and/or requested by such financial institution or institutions, as the case may be, in order to facilitate the release of the loan sum to the Developer;
(l) to execute and sign all relevant documents including but not limited to confirmations, undertakings and to provide all relevant documents and information so as to allow the Developer to raise the necessary financing to finance the development of the Project;
(m) that after execution of this Agreement, the Proprietor shall not encumber the said Land in any manner whatsoever; and
(n) shall not interfere with or object to any or all of the Developer’s decisions or choices in relation to the sales, marketing and administration of the said Project at all material time.
5.2 The Proprietor hereby represent and warrant to the Developer:-
(a) that they have not at any time prior to and up to the date hereof entered into any agreements or arrangements whether written or otherwise pertaining to the said Land of whatsoever nature to any person, firm, corporation, body corporate or unincorporated;
(b) that they have not at any time prior to and up to the date hereof executed any Power of Attorney or such other instruments having a similar effect in favour of any other party in relation to the said Land;
(c) that they have the power to enter into this Agreement and that the performance of their obligations herein will not contravene any law;
(d) that there are no litigation arbitration tax claim dispute or proceedings pending and/or threatened which will likely have an adverse effect on them performing their duties herein.
5.3 In amplification and NOT in derogation of the provisions herein, the Proprietor:-
(a) shall promptly and without any unreasonable delay sign and execute all such applications, plans, consents, instruments and documents whatsoever prepared by the Consultants of the Developer and/or as requested by the Developer which may be necessary or deemed expedient by the Developer for the development of the said Land and the Project and/or as may be required by the Relevant Authorities;
(b) shall promptly upon the said Land being sub-divided and the sub-divided titles to the Properties having been issued by the Relevant Authorities, save and except for the Entitlement, to execute and deliver or cause to be delivered to the Developer or to such persons as the Developer may direct all necessary and relevant documents whatsoever for the purposes of vesting the legal and beneficial ownership of the Properties in favour of the Developer and/or the respective purchasers of the Properties and/or any other person or persons nominated by the Developer together with the issue document of titles to the Properties and such other documents as may be necessary for effecting the registration thereof;
(c) during the continuation of this Agreement, shall not create (including the creation of any fixed and/or floating charge or debenture on/against the assets of the Proprietor), cause to be created and/or allow to be created any encumbrances or otherwise deal with the said Land or any part thereof in any manner whatsoever to any financial institutions persons bodies and/or corporations save and except in accordance with the provisions of this Agreement and with the written consent of the Developer first had and obtained;
(d) shall not interfere in any way whatsoever with the development of the Project whether such interference relates to works being carried on in the said Land or otherwise and/or in respect to the implementation of the Project;
(e) shall not carry out or cause to be carried out any variations alterations or additions to the building and/or any other plans and/or specifications to any of the Properties or cause any fixtures or fittings to be installed therein or allow any person or persons to enter into occupation thereof until the relevant Certificate of Completion and Compliance thereto shall have been issued by the relevant authority;
(f) shall not do or permit to be done any acts or things or cause to be suffered any omissions which may contravene or violate the provisions of any law, regulations, rules and/or directives (whether or not having the force of law) of the Relevant Authorities applicable to the said Land and the Project which may cause or result in any delay in the implementation and/or progress of the Project or render the Developer and/or any other person or persons under the employ direction and/or supervision of the Developer liable to any claims, demands, suits, proceedings, prosecutions, fines or damages which may at any time hereafter be instituted by any persons or the Relevant Authorities against the Developer and/or any other person or persons under the employ direction and/or supervision of the Developer;
(g) shall not commit a breach of any of the covenants stipulations and/or undertaking on its part to be observed and performed herein and to save harmless, indemnify and keep the Developer indemnified against any claim demand, proceedings, prosecutions, fines, loss, damages, costs and expenses which may at any time hereinafter be instituted against or suffered or otherwise incurred by the Developer and/or any other person or persons under the employ direction and/or supervision of the Developer by reason of or arising out of such breach on the part of the Proprietor;
(h) shall render all such assistance as may be required by the Developer in securing the early issuance of the sub-divided individual document of titles to the Properties and to deposit the same upon issuance thereof with the Developer or the Developer’s stakeholders for safekeeping or where required, for their further action.
6. DELIVERY OF VACANT AND SITE POSSESSION & APPORTIONMENT OF OUTGOINGS
6.1 Upon the execution of this Agreement, the Proprietor shall deliver or cause to be delivered to the Developer vacant and site possession of the said Land and the Developer, its servants, agents or contractors shall be entitled to enter upon the said Land for the purpose of undertaking survey or other related works without being liable for any damage to the said Land or any vegetation thereon.
6.2 The Developer shall be liable for all outgoings including quit rent, rates, taxes, assessment and other charges in respect of the said Land as from the date of the Development Approval having been obtained and the Developer shall continue to pay the same thereafter until the handing over of vacant possession of the Properties whereupon all outgoings in relation to the Entitlement shall be paid and borne by the Proprietor. Any quit rent, rates, taxes, assessment and other charges in respect of the said Land prior to the Development Approval having been obtained shall be the responsibility of the Proprietor whereby the Developer may, but not obliged to, settle the same on the Proprietor’s behalf and account and in the event that the Developer shall settle the same so as to facilitate the development of the Project under this Agreement, any payments made by the Developer pertaining thereto including any penalties, fines and additional imposition shall be forthwith set off against the Proprietor’s Entitlement provided that such penalties, fines and additional imposition is or are due to the fault of the Proprietor.
7. ILLEGAL OCCUPANTS
7.1 The Proprietor hereby further represents and warrants that there are no occupier(s) or squatter(s) on the said Land and that the same is vacant.
8. TAX RESPONSIBILITY
8.1 All taxes on profits/property gains made or secured by the Proprietor shall be the sole responsibility of the Proprietor respectively and shall be borne and paid by the Proprietor to the Inland Revenue within the prescribe time. All taxes on profit/income made or secured by the Developer shall be the sole responsibility of the Developer and shall be borne and paid by the Developer to the Inland Revenue within the prescribe time.
8.2 Each party shall be liable to pay for their own late payment penalty or fine (if any).
9. POWER OF ATTORNEY
9.1 Simultaneously with the execution of this Agreement, the Proprietor shall execute a Power of Attorney as prescribed by and in favour of the Developer in order to facilitate the smooth implementation and progress of the Project.
10. CHANGE IN THE COMPOSITION OF THE DEVELOPER
10.1 In the event that the Developer shall make any changes in its constitution by reconstruction, amalgamation or sale of a majority shareholding, the Developer shall prior to the same notify the Proprietor in writing.
10.2 The liabilities and/or obligations created by this Agreement shall continue to be valid and binding for all purpose whatsoever notwithstanding any change by amalgamation, change of directors, reconstruction or otherwise which may be made in the constitution of the Developer.
11. NO PARTNERSHIP
11.1 This Agreement shall not create any form of partnership whatsoever between the Parties hereto and nothing shall be construed as to make any party the representative or agent of the Proprietor and/or the Developer nor shall either Party be liable for or bound by any act or default of the other.
12. ARBITRATION
12.1 The parties hereto agree to use their best efforts to promptly and adequately resolve any dispute or difference which may arise with amicable consultations, conciliation and upon other agreed means and the Parties hereto shall give to each other thirty (30) days for a dispute or a difference to be resolved. Failing which any such dispute, controversy, claims arising out of or relating to this Agreement or the breach, termination or invalidity thereof, which cannot be settled within such time amicably, shall be settled by an Arbitration panel of Three (3) members all of whom shall be appointed by the Kuala Lumpur Regional Centre of Commercial Arbitration in accordance with the provisions of the Arbitration Act 2005 or any statutory modification or re-enactment thereof for the time being in force. It is hereby agreed that the place for arbitration shall be in Malaysia at the Kuala Lumpur Regional Centre for commercial arbitration.
12.2 In the event that either of the parties hereto shall elect to proceed with the enforcement of this Agreement through the civil courts of Malaysia, the aforementioned arbitration clause shall be deemed to have been waived by the parties hereto by mutual consent.
13. FORCE MAJEURE
13.1 The Parties hereto agree that no party shall be considered to be in default of the performance of its obligations under this Agreement if the performance is prevented or delayed because of any event or combination of events not reasonably foreseen and which is beyond the control of such party including without limitation any acts of God war riots acts of public enemy and inclement weather PROVIDED HOWEVER that there must be a direct causal relation between the prevention or delay and the event or events involved and that further the party affected by such event or events must have taken all action necessary and reasonable under the circumstances to remove the cause or causes of such prevention or delay and to proceed to perform its obligations hereunder. The provision of this Clause shall not be applicable to any obligations involving the payment of money and to any specified means currency or place of payment.
14. RIGHTS AND POWERS OF THE PROPRIETOR ON DEFAULT BY THE DEVELOPER
14.1. In the event that:-
(a) an order be made or a resolution be passed for the winding-up of the Developer and/or;
(b) the Developer shall fail, refuse, neglect or omit to pay or honour the Proprietor’s Entitlement or any part thereof together as and when the same is due and payable and in accordance with the times and in the manner determined and agreed by the parties hereto in Clause 3 within a period of thirty (30) calendar days from the date of a written demand/notice from the Proprietor served on the Developer stating that such sum has become due and payable but remains unpaid and requiring payment of such sum;
the Proprietor shall have the right and be entitled to, but not obligatory for it to do so, takeover the entire Project and/or appoint such other party to continue with the Project and in relation thereto the Developer shall hand over possession of the said Land or such part thereof remaining together with all documents including plans, approvals and titles pertaining to the Project and in furtherance thereto the Developer shall remove its contractors, servants, agents and workers from the site of the said Land.
14.2 Save and except for the default as stipulated in Clause 14.1(a) aforementioned, the Proprietor shall also have the right and be entitled to institute legal proceedings in Court for the specific performance of this Agreement in lieu of the rights in Clause 14.1(b).
15. RIGHTS AND POWERS OF THE DEVELOPER ON DEFAULT BY THE PROPRIETOR
15.1 In the event that the Proprietor shall commit a breach of any terms, stipulations, covenants or undertakings herein contained between the Proprietor and the Developer pursuant to or referred to in this Agreement, the Developer shall then give thirty (30) days written notice to the Proprietor to remedy such breach and if the Proprietor shall fail to remedy such breach within the said period, then and in such an event, the Developer shall be entitled at its option to:-
(a) institute legal proceedings against the Proprietor for specific performance of this Agreement; and/or
(b) proceed with the continuation of this Agreement and claim for any compensation for any loss or damage; and/or
(c) proceed with the continuation of this Agreement and set-off against the Proprietor’s Entitlement any loss or damage caused directly or indirectly by the Proprietor’s breach of the terms and conditions herein; or
(d) terminate this Agreement whereupon the Proprietor shall, within Fourteen (14) days of receipt of a termination notice from the Developer, refund reimburse and/or repay to the Developer all sums of monies expended by the Developer in the course of this Agreement (including the payment of the premium for the said Land, if any) together with liquidated ascertained damages of ten percentum (10%) per annum on such sums expended by the Developer, calculated on a daily basis from the date of the termination notice until the actual settlement and/or payment of the same and/or claim for any other compensation for any loss or damage including any consequential damages resulting from the Proprietor’s breach;
16. WAIVER OR INDULGENCE
16.1 Knowledge or acquiescence by a Party of any breach by the other of any of the conditions or covenants herein contained or any indulgence given by the aggrieved Party shall not operate as or be deemed to be a waiver of such conditions or covenants or any of them and notwithstanding such knowledge or acquiescence or indulgence given, either Party shall be entitled to exercise its rights under this Agreement and to require the strict performance by the other Party of the terms and conditions herein and neither shall the aggrieved Party be liable to the defaulting Party in any manner whatsoever for not enforcing any of the aggrieved Party’s rights hereunder.
17. SPECIFIC PERFORMANCE
17.1 Each party hereto shall be entitled to the remedy of the specific performance of this Agreement against the other Party for the purpose of enforcing their rights and liabilities under this Agreement.
18. LAND ACQUISITION
18.1 The Proprietor hereby represents and warrant that as at the date of this Agreement the said Land or any part thereof is not subjected to acquisition or intended acquisition by the Relevant Authorities.
18.2 In the event of the Government or any other competent authority having power in that behalf acquiring the said Land or any part or parts thereof for any purposes whatsoever between the date of this Agreement and prior to the approval of the Layout Plan and Approved Plans and the total area of the said Land so acquired shall be not less than thirty per cent (30%) of the total area of the said Land then the Developer shall have the option of either determining this Agreement or of completing the Project hereunder. In the event that the Developer elects to determine this Agreement as provided herein the Proprietor shall within three (3) months from the date of demand in writing made by refund reimburse and/or repay to the Developer all sums of monies expended by the Developer in the course of this Agreement (including the payment of the premium for the said Land, if any) under or pursuant to this Agreement and this Agreement shall thereafter be of no further force or effect whatsoever save and except for antecedent breaches, if any. In the event the Developer elects to complete the Project as aforesaid:-
(a) the Proprietor shall immediately:-
i. notify the Government or any acquiring authority of the Developer’s rights title and interest in and to the said Land and the terms of this Agreement; and
ii. notify the Developer of such proceedings whether pending or contemplated and do all documents acts and things so as to allow the Developer ample opportunities to contest such proceedings or any payment of compensation or to appeal from any decision made in respect thereof. If any request is made pursuant to this sub-clause 18.2(a)(i), the Developer hereby agrees to indemnify and keep indemnified the Proprietor against all cost, expenses, loss or damage which may be incurred or suffered by the Proprietor as a result of such request; and
(b) the Developer shall remain liable to complete the Project at the time and in the manner herein agreed to PROVIDED ALWAYS that all monies and or compensation, if any, paid or to be paid by the Government or other authority in of such acquisition shall belongs to the Developer absolutely.
18.3 Save and except as provided in Clause 18.2 hereof, no acquisition by the Government or any other authority having power in that behalf of the said Land or any part or parts thereof for any purposes whatsoever or howsoever at any time after the date of this Agreement shall nullify or terminate or rescind this Agreement and this Agreement shall subsist and continue in full force and effect and neither of the parties hereto shall be entitled or have the right to vary any of the terms and conditions herein contained PROVIDED ALWAYS that the provisions relating to all the monies and/or compensation paid in respect of such acquisition as stipulated in Clause 18.2(b) hereof shall apply mutatis mutandis to this Clause as to the said Clause 18.2(b).
19. COSTS
19.1 The stamp duty for this Agreement shall be borne by the Developer. Each Party shall bear its own Solicitors costs for the preparation of this Agreement.
20. BINDING EFFECT
20.1 This Agreement shall be binding upon the successors-in-title and permitted assigns of the Parties hereto.
21. GOVERNING LAW
21.1 This Agreement shall be governed by and construed in accordance with the laws of Malaysia for the time being in force and the Parties hereto agree to submit to the exclusive jurisdiction of the Courts of Malaya.
22. TIME IS OF ESSENCE
22.1 Any time, date or period mentioned in any provisions of this Agreement may be extended by mutual agreement between the Parties hereto in writing but as regards to any time, date or period originally fixed or any time, date or period so extended as aforesaid, time shall be the essence of this Agreement.
23. EFFECTIVE DATE OF THIS AGREEMENT
23.1 This Agreement shall come into force on the date first above written irrespective of the diverse dates on which the Parties hereto may have each executed this Agreement respectively.
24. SEVERABILITY
24.1 Any term, condition, stipulation, provision, covenant or undertaking in this instrument which is illegal, void, prohibited or unenforceable shall be ineffective to the extent of such unenforceability without invalidating the remaining provisions hereof and such illegality, voidness, prohibition or unenforceability shall not invalidate or render illegal, void or unenforceable any other term, condition, stipulation, provision, covenant or undertaking herein contained and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision has never comprised a part hereof and the remaining provisions shall remain in full force and effect and shall not be effected by the illegal, invalid or unenforceable provision or by its severance herefrom. In lieu of such illegal, invalid or unenforceable provision there shall be added automatically as part hereof a provision, as similar in terms to such illegal, invalid or unenforceable provision as may be possible that is legal, valid and enforceable so as to give effect to the intent of the Parties hereto.
25. NOTICES
25.1 Any notice, request or demand required to be served by either Party hereto on the other under any of the provisions hereof shall be in writing and shall be deemed to be sufficiently served or made as follows:-
(a) if sent by telex when it ought in the ordinary course to have been received by the Party to whom it is intended;
(b) if sent by facsimile when it ought in the ordinary course to have been received by the Party to whom it is intended;
(c) if sent by cable when it ought in the ordinary course to have been delivered to the Party to whom it is intended;
(d) if sent by post, seven (7) calendar days after it is posted;
(e) if delivered by hand to the Party to be served or his solicitors when the receipt of the same is acknowledged by the Party to be served or his solicitors on the duplicate of the same.
For the purposes herein any communication in the manner of Clause 25.1(a), (b), and (c) shall be followed by a copy of the same by post.
25.2 Any notice, request, consent, demand or other communication to be given to either Party shall, if the same is to be posted, be addressed to the Party to be served at its address mentioned in this Agreement or its registered address or its solicitors unless any Party hereto shall have previously notified the other in writing of any other postal address to which notices, requests, consents, demands or other communication are to be sent in which case the same shall be sent to that address.
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IN WITNESS WHEREOF the parties hereto has hereunto set their respective hands on the day and year first above written.
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SIGNED by the Proprietor in the presence of:- |
) ) ___________________________________
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The COMMON SEAL of the Developer was hereunto affixed in the presence of:- |
) ) ) |
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___________________________________ Director
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___________________________________ Director / Secretary
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APPENDIX “A”
[which must be taken read and construed as an essential part of this Agreement]
The issue document of title to the said Land
