Sale and Purchase Agreement - Afasia Knitting Factory (Malaysia) Sdn Bhd and ASE Electronics (M) Sdn Bhd
DATED THE 24TH DAY OF FEBRUARY 1997
BETWEEN
AFASIA KNITTING FACTORY (MALAYSIA) SDN BHD
(Company No. 16748-H)
-AND-
ASE ELECTRONICS (M) SDN BHD
(Company No. 212592-H)
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SALE AND PURCHASE AGREEMENT
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MESSRS GHAZI & LIM
ADVOCATES & SOLICITORS
19TH FLOOR PLAZA MWE
NO 8 LEBUH FARQUHAR
10200 PENANG
(FILE REP: A66/96/TSS/tph)
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SALE AND PURCHASE AGREEMENT
AN AGREEMENT made this 24th day of February 1997 BETWEEN: -
1. PARTIES
1.1 Afasia Knitting Factory (Malaysia) Sdn Bhd (Company No. 16748-H), a
company incorporated in Malaysia and having its registered office at
Suite 123-K, 2nd Floor, Wisma Lister Garden, Macalister Road, 10400
Penang (hereinafter referred to as "the Vendor").
1.2 ASE Electronics (M) Sdn Bhd (Company No. 212592-H), a Company
incorporated in Malaysia and having its registered office at 11th
Floor, Bangunan FOP, Jalan Anson, 10400 Penang (hereinafter referred
to as "the Purchaser").
2. RECITALS
2.1 The Vendor is the registered proprietor of all that piece of land
known as No. P.T. 1707, Mukim 12, Daerah Barat Daya, Pulau Pinang
comprised in Suratan Hakmilik Sementara No. HS(D) 7817 together with
any buildings erected thereon (hereinafter referred to as "the said
Property").
2.2 The said Property is subject to the following conditions of title and
restrictions in interest: -
SYARAT-SYARAT NYATA
"Pemilik yang berdaftar selepas Perbadanan Pembangunan Pulau Pinang
hendaklah: -
(i) Dalam tempoh masa 2 tahun dari tarikh pindah milik yang pertama
didaftarkan atau dalam jangka masa yang ditetapkan yang
diluluskan oleh Pihak Berkuasa Negeri, mendirikan bangunan
kilang atau bangunan kilang-kilang di atas tanah yang diberi
milik itu mengikut pelan yang diluluskan oleh Pihak Berkuasa
Tempatan dan hendaklah memelihara bangunan atau
bangunan-bangunan yang telah didirikan itu dengan memuaskan
Pihak Berkuasa Tempatan.
(ii) Membersihkan, melupuskan atau menyebabhan berlakunya pembersihan
dan perlupusan 'efluents' perdagangan dalam bentuk atau cara
yang memuaskan pihak-pihak berkuasa yang berkenaan.
(iii)Membayar dan menjelaskan semua cukai, kadar-kadar bayaran hasil
dan lain-lain bayaran yang dinilaikan pada masa itu terhadap
tanah yang diberi milik tersebut atau mana-mana bahagian yang
berkenaan yang dikenakan oleh Majlis Perbandaran Pulau Pinang.
(iv) Mempastikan bahawa 30% daripada pekerja-pekerja yang diambil
dalam perniagaan untuk tanah yang diberi milik itu hendaklah
terdiri dari kaum Bumiputra.
SEKATAN-SEKATAN KEPENTINGAN
(i) Tanah yang diberimilik ini tidak boleh dipindah milik, cagar,
pajak atau pajakan kecil tampa kebenaran bertulis daripada Pihak
Berkuasa Negeri.
(ii) Tanah yang diberimilik ini tidak boleh dipecah sempadan atau
dipecah bahagian.
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2.3 The Land is free from encumbrances.
2.4 The Vendor has agreed to sell to the Purchaser and the Purchaser has
agreed to purchase the said Property free from all encumbrances and
with vacant possession but subject to all implied or express terms
conditions and restrictions in interest affecting the title subject
to and on the terms and conditions hereinafter agreed.
3. DEFINITIONS
In this agreement, where the context shall otherwise require, the
following expressions shall have the following meanings: -
3.1 "Acquisition Notice": a notice published in the Government Gazette,
pursuant to Section 4 of the Land Acquisition Act, 1960.
3.2 "Balance": the sum of Ringgit Malaysia Three Million Fifty Five
Thousand One Hundred Sixty Three and Cents Nine (RM3,055,163.09)
only comprising the RPGT Sum and the Final Balance.
3.3 "Buildings on the Land": all those structures and Buildings erected
on the Land.
3.4 "Completion": Payment of the Balance on the Completion Date pursuant
to Clause 9 herein.
3.5 "Completion Date": the date of full payment of the Balance which is
to be within forty five (45) days from the date of receipt by the
Purchaser's Solicitors of the State Authority Consent as defined
herein (and not PDC consent or any other consent from any other
competent authorities to the sale and purchase of the said
Property).
3.6 "Declaration": declaration published in the Government Gazette,
pursuant to Section 8 of the Land Acquisition Act, 1960.
3.7 "Deposit": the sum of Ringgit Malaysia Three Hundred Thirty Nine
Thousand Four Hundred Sixty Two and Cents Fifty Seven (RM339,452.57)
only being 10% of the Purchase Price.
3.8 "Development": the meaning given by Section 2(1) of the Town and
Country Planning Act, 1976.
3.9 "Final Balance": the Balance less the RPGT Sum.
3.10 "Holiday": any day other than a Working Day.
3.11 "Land": all that piece of land known as No. P.T. 1707, Mukim 12,
Daerah Barat Daya, Pulau Pinang comprised in Suratan Hakmilik
Samentara No. HS(D) 7817.
3.12 "Permitted Use": industry.
3.13 "the said Property": all of the Land including the Buildings on the
Land (if any).
3.14 "PDC": the Penang Development Corporation.
3.15 "Purchase Price": the sum of Ringgit Malaysia Three Million Three
Hundred Ninety Four Thousand Six Hundred Twenty Five and Cents Sixty
Six (RM3,394,625.66) only, which is derived from the price of
RM16.70 per square foot of the Land.
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3.16 "Purchaser's Solicitors": Messrs Ghazi & Lim, 19th Floor, Plaza MWE,
No. 8, Lebuh Farquhar, 10200 Penang.
3.17 "RPGT Sum": the sum of Ringgit Malaysia One Hundred Sixty Nine
Thousand Seven Hundred Thirty One and Cents Twenty Eight
(RM169,731.28) only to be placed in an interest bearing account by
the Vendor's Solicitors as stakeholder for payment of any Real
Property Gains Tax in accordance with the Real Property Gain Tax Act
1976.
3.18 "State Authority": person or body exercising powers under statute or
any other written law within the State of Penang.
3.19 "State Authority Consent": the approval and written consent from the
State Authority permitting the sale and transfer of the said
Property by the Vendor to the Purchaser. If the consent of the State
Authority shall be conditional, the consent of the State Authority
shall be deemed not obtained until the fulfilment of all the
conditions therein contained.
3.20 "Vendor's Solicitors": Messrs Peter Huang & Richard, 368-3-1,
Belissa Row, Jalan Burmah, 10350 Penang.
3.21 "Working Day": any day from Monday to Saturday, except for public
holidays in the State of Penang.
4. INTERPRETATION
4.1 The expression "Vendor" and "Purchaser" includes their nominees,
persons deriving title under them respectively, personal
representatives permitted successors-in-title and assigns of the
said Vendor and the said Purchaser, as the case may be.
4.2 Where the Vendor or the Purchaser are two or more persons,
warranties, representations, agreements, covenants and obligations
expressed or implied to be made by or with such party are deemed to
be made by or with such persons, jointly and severally.
4.3 Words importing one gender include all other genders and words
importing the singular include the plural and vice versa.
4.4 The expression "month" means calendar month.
4.5 The expression "person" or "persons" means natural persons, any body
of persons, company, corporation, firm or partnership, corporate or
incorporate.
4.6 The expression "party" or "parties" means the said Vendor or said
Purchaser or the said Vendor and said Purchaser respectively.
4.7 References to "notices" or "notice" means a notice in writing signed
by or on behalf of the person making or giving the notice.
4.8 References to "statute" or "statutes" means and includes any Act of
Parliament, Ordinance, Enactment or any other written law and
includes any statutory extension or modification, amendment or
re-enactment of such statute and any regulation, orders or bye-laws
made under such statute or statutes.
4.9 Any obligation by a party not to do an act or thing shall be deemed
to include an obligation to use all reasonable endeavours not to
permit or suffer such act or thing to be done by another person.
<PAGE>
5. NOW IT IS HEREBY AGREED as follows:-
5.1 AGREEMENT TO SELL AND TO PURCHASE
The Vendor shall sell and the Purchaser shall purchase the
said Property free from all encumbrances and with vacant
possession at the Purchase Price subject to and upon the
terms and conditions hereinafter appearing.
5.2 CONDITION PRECEDENT
The sale and purchase of the said Property under this
Agreement shall be conditional upon the following conditions
being fulfilled before the Completion Date: -
(a) the Vendor having a good registrable and marketable title
to the said Property;
(b) the said Property being free from all encumbrances
whatsoever as at the Completion Date but subject to all
conditions of title and restrictions in interest contained
in the document of title;
(c) the production and delivery by the Vendor to the Purchaser
of the issue document of title pertaining to the said
Property at the Completion Date;
(d) vacant possession to the said Property being delivered at
the Completion Date;
(e) the written sanction of the State Authority for the
transfer of the said Property by the Vendor to the
Purchaser being obtained pursuant to clause 13 of this
Agreement; and
(f) the rectification and perfection of any defect in the
document of title of the said Property which shall be at
the expense of the Vendor.
5.3 The Purchaser shall be entitled, at its own discretion, to waive any
of the conditions precedents set out in Clause 5.2 above.
6. PURCHASER'S OBLIGATIONS
6.1 The Purchase Price
The Purchase Price shall be paid by the Purchaser in the following
manner: -
6.1:1 upon the execution of this Agreement the Purchaser shall pay
the Deposit to the Vendor (the receipt whereof the Vendor
hereby acknowledges).
6.1:2 on or before the Completion Date the Purchaser shall pay the
Balance in the following manner: -
6.1:2.1 the RPGT Sum, to the Vendor's Solicitors, as
stakeholders in accordance with Clause 8; and
6.1:2.2 the Final Balance, to the Purchaser's Solicitors as
stakeholders pursuant to clause 9.2:2.
6.2 Loan
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6.2:1 Notwithstanding clause 9.2 in the event that the Purchaser
intends to obtain a loan from a bank or financial institution
(such bank or financial institution to be hereinafter referred
to as "the Financier") to finance the purchase of the said
Property (hereinafter referred to as "the Loan"), then subject
to the Purchaser having fully paid to the Vendor or the
Vendor's Solicitors, the sum representing the difference
between the Balance and the amount of the Loan granted by the
Financier on the Balance, if any; the Vendor shall, upon
request by the Purchaser or the Purchaser's Solicitors,
deliver or cause to be delivered to the Purchaser's Solicitors
the following documents:-
(a) the issue document of title to the said Property;
(b) all other necessary documents to effect the
registration of the Memorandum of Transfer in favour
of the Purchaser or its nominee(s) or assignee(s) in
respect of the said Property free from encumbrances
(including any Withdrawal of Private Caveat and the
letter acknowledging receipt by the Director- General
of Inland Revenue of the submission of Form CKHT 1 by
the Vendor in respect of the sale of the said
Property).
The Purchaser's Solicitors are hereby authorised to present
the Memorandum of Transfer together with the aforesaid
documents to effect such registration of the Memorandum of
Transfer. After fourteen (14) days from the presentation of
the Memorandum of Transfer for registration and subject to the
Vendor furnishing a written undertaking in favour of the
Financier to refund the Loan in the event the Memorandum of
Transfer or the Charge of the said Property in favour of the
Financier cannot be registered, the Purchaser shall cause the
solicitors acting for the Financier to remit to the Vendor or
the Vendor's Solicitors, the amount of the Loan being the
remainder of the Purchase Price.
6.2:2 If the said Property is subject to a Charge, the Purchaser
shall cause the Financier to release such portion of the Loan
(the Redemption Sum) as may be necessary to secure the
discharge of charge and the Vendor shall deliver or cause to
be delivered to the Purchaser the issue document of title and
all other documents as may be necessary to effect the
registration of the Memorandum of Transfer in favour of the
said Purchaser or its nominees/assignees. After fourteen (14)
days from the presentation of the Memorandum of Transfer for
registration and subject to the Vendor and the earlier chargee
furnishing a written undertaking in favour of the Financier to
refund the Loan in the event the Memorandum of Transfer or the
Charge of the said Property in favour of the Financier cannot
be registered, the Purchaser shall cause the balance amount of
the Loan being the remainder of the Purchase Price to be
remitted to the Vendor or the Vendor's Solicitors.
6.3 Outgoings
The Purchaser shall be liable to pay any and all such
increases in outgoings or impositions including quit rent,
rates and assessments payable in respect of the said Property
from the Completion Date.
7. THE VENDOR'S OBLIGATIONS
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7.1 Delivery of Documents
7.1:1 The Vendor shall, upon execution hereof, deliver to the
Purchaser's Solicitors the following documents:-
(a) certified true copy of the Issue Document of Title to the
said Property, the quit rent and assessment receipt of the
said Property for the current year;
(b) a valid and registrable Memorandum of Transfer of the said
Property duly executed by the Vendor in favour of the
Purchaser or its nominee(s) or assignee(s);
(c) six (6) duly executed Stamp Duty Information Forms (Form
PDS-15) in respect of the said Property;
(d) certified true copies of the Memorandum and Articles of
Association of the Vendor and the Vendor's Form 24, 44 and
49 and Annual Return;
(e) two (2) certified true copies of th resolutions of the
Directors and shareholders of the Vendor at a Director's
meeting and at a general meeting which are in full force
and effect authorising the sale of the said Property by
the Vendor to the Purchaser on the terms and conditions of
this Agreement.
PROVIDED ALWAYS THAT the Purchaser's Solicitors shall not part deal
or transact with the Memorandum of Transfer in any manner whatsoever
or present the same for registration save for submitting the same
for stamp duty adjudication and stamping and/or to obtain release of
the Loan.
7.2 The Vendor warrants and undertakes as follows: -
(a) that it has not done and shall not do in or near the said
Property any act or thing by reason of which the Purchaser
may under any statute incur have imposed upon it or become
liable to pay any penalty damages compensation costs
charges or expenses;
(b) that all rates, taxes, assessments, duties, charges,
impositions and other outgoings charged, assessed or
imposed on the said Property or upon the owner or occupier
of the said Property have been paid up to date;
(c) that there are no outstanding professional or consultancy
fees, charges, disbursements and costs whatsoever due to
consultants in respect of the said Property and jointly
and severally undertake to indemnify the Purchaser against
all claims, damages, losses, actions, demands and
proceedings whatsoever in respect of the same;
(d) before Completion Date, the Vendor shall discharge all
consultants (if any) employed by it in respect of the said
Property and shall procure letters of release from the
said consultants;
<PAGE>
(e) that the Vendor has not made any planning permission
application and/or submitted any building plans in respect
of the development of the said property;
(f) that the said Property may be lawfully used under the Town
and Country Planning Act 1976 and is not within any
conservation area nor subject to any conservation
guidelines issued by a competent authority exercising
powers under statute or any other written law;
(g) that as at the date of this Agreement until payment of the
Balance Purchase Price there does not exist any party with
any interest in the said Property save for the Vendor;
(h) during the continuance of this Agreement and before the
completion of the sale and purchase herein, the Vendor
shall not sell transfer assign dispose of or otherwise
deal with the said Property or create any charge or
encumbrance or let or lease the said Property or otherwise
part with possession of the said Property or any part
thereof;
(i) that the State Authority has sanctioned the said Property
for the Permitted User;
(j) that the Vendor is not in breach of any of the terms of
the Sale and Purchase Agreement dated 17th July 1991
between the Penang Development Corporation ("PDC") and the
Vendor in respect of the said Property and the Vendor has
not received any notices from PDC or any other authorities
in respect of any breach of the said Sale and Purchase
Agreement or otherwise.
8. REAL PROPERTY GAINS TAX
8.1 The parties hereto shall duly submit to the Director General of
Inland Revenue, West Malaysia, the notification forms prescribed
under Real Property Gains Tax Act 1976 within the prescribed time in
respect of the sale and purchase of the said Property and furnish
all such information, particulars and documents as may be required
by the Director General in connection therewith. The Vendor shall
forward a copy of acknowledgment of such submission to the
Purchaser's Solicitors forthwith upon receipt.
8.2 The Vendor's Solicitors are hereby authorised to pay the whole or
part of the RPGT Sum to the Director - General of Inland Revenue
towards payment of any tax payable by the Vendor under the Real
Property Gains Tax Act 1976 in respect of the sale of the Property
by the Vendor to the Purchaser hereunder.
8.3 After the Certificate of Clearance issued by the Director - General
of Inland Revenue in respect of the sale of the said Property by the
Vendor to the Purchaser shall have been received by the Vendor's
Solicitors, the RPGT Sum or such part thereof (if any) as shall
remain after deduction of any payment made to the said Director -
General pursuant to clause 8.2 shall be released and paid over by
the Vendor's Solicitors to the Vendor.
8.4 The Vendor shall indemnify and keep the Purchaser indemnified
against all and any claims that may be made in respect of the Real
Property Gain Tax Act 1976 concerning the sale of the said Property
from the Vendor to the Purchaser. In the event the Vendor fails or
delays in submitting the Form CKHT 1 in respect of the Real Property
Gains Tax Act 1976 resulting in a penalty being imposed on the late
stamping of the Memorandum of Transfer, the Vendor shall be liable
for any penalty incurred.
<PAGE>
9. COMPLETION
9.1 It is hereby agreed that the Completion Date shall be the date of
full payment of the Balance which is to be within forty five (45)
days from the date of receipt by the Purchaser's Solicitors of the
State Authority Consent.
9.2 Completion shall take place at the office of the Purchaser on the
Completion Date, where and when the following shall be delivered and
accomplished: -
9.2:1 the Vendor shall cause to be delivered to the Purchaser's
Solicitors the issue document of title to the said Property as
well as all other documents necessary to enable the Purchaser
to register the transfer of the said Property (including any
withdrawal of Private Caveat and the letter acknowledging
receipt by the Director - General of Inland Revenue of the
submission of Form CKHT 1 by the Vendor in respect of the sale
of the said Property);
9.2:2 the Purchaser shall pay the Final Balance to the Purchaser's
Solicitors as stakeholders to be released to the Vendor after
seven (7) days of obtaining the documents referred to in
clause 9.2:1;
9.2:3 the Purchaser shall pay the RPGT Sum to the Vendor's
Solicitors as stakeholders in accordance with clause 8.
10. POSSESSION
Vacant possession of the said Property shall be delivered to the
Purchaser on the Completion Date.
11. RIGHTS OF RESCISSION AND TERMINATION
11.1 The Vendor may by service of a notice on the Purchaser rescind this
Agreement if the Purchaser fails to pay the Balance in the manner
and within the time stipulated in this Agreement.
11.2 At any time before the registration of the Purchaser as the
registered proprietor of the said Property and without prejudice to
any other rights and remedies of the Purchaser, the Purchaser may by
service of a notice on the Vendor rescind this Agreement in the
event: -
(a) a statutory provision prohibits, restricts or imposes adverse
conditions upon the use of the said Property;
(b) if all or any of the searches and supplementary enquiries
submitted to the Majlis Perbandaran and/or the Land
Office/Registry reveal matters adverse to the said Property,
then in such an event, the Purchaser shall serve a notice
stating matters adverse to the said Property;
(c) the Vendor enters into any composition or arrangement with its
creditors or enter into liquidation whether compulsory or
voluntary or if any distress or execution be levied upon the
Vendor or the Vendor's goods or in the event a petition for
winding-up is presented or a winding-up order is made against
the Vendor;
(d) the Vendor breaches any provisions under this Agreement and/or
if the recitals to this Agreement are untrue or incorrect;
<PAGE>
(e) pursuant to clause 13.4 herein, the State Authority Approval
is not obtained or fulfilled or considered not to have been
obtained or fulfilled within six (6) months from the date of
this Agreement;
whereupon service of such notice by the Vendor/Purchaser (as the case
may be), this Agreement shall be determined, terminated or rescinded
and the provisions of clause 12 shall apply.
12. RESCISSION AND TERMINATION CONSEQUENCES
12.1 In the event this Agreement is terminated: -
(a) pursuant to clause 11.1, the Vendor shall be entitled to
rescind or terminate this Agreement and the Deposit shall be
forfeited absolutely;
(b) pursuant to clause 11.2:
(aa) the Purchaser shall be entitled to rescind or terminate
this Agreement and to a refund of any part of the Purchase
Price paid to the Vendor;
(bb) the Vendor shall within seven (7) working days of such
rescission or termination taking effect refund the
Purchaser (and the Financier, and the case may be) any
part of the Purchase Price paid to the Vendor, otherwise
the Vendor shall pay interest to the Purchaser at the rate
of ten per centum (10%) per annum on the said sum from the
said seventh day until the date of actual payment.
12.2 Subject to clause 12.1(b)(bb) being complied with by the Vendor and
further to clause 12.1, the Purchaser or the Purchaser's Solicitors
shall return to the Vendor the Memorandum of Transfer and the issue
documents of title to the said Property and any other documents
forwarded to the Purchaser/Purchaser's Solicitors as requested back
by the Vendor.
12.3 Subject to clause 12.1 and 12.2, this Agreement is cancelled and
shall be of no further effect, and neither party shall have any
claim against the other whether arising out of this Agreement or
otherwise.
13. APPROVAL OF STATE AUTHORITY
13.1 The Purchaser shall apply for the approval of the State Authority
for the sale and purchase herein (hereinafter referred to as "the
State Authority Application") and the Purchaser shall use its best
endeavour to obtain the aforesaid approval from the State Authority.
13.2 The Vendor shall at the request of the Purchaser within five (5)
days supply to the Purchaser all documents and information that may
be required for the State Authority Application.
13.3 It is hereby agreed between the parties that if the State Authority
Application is approved subject to any conditions, modifications
and/or variations of any nature whatsoever (hereinafter referred to
as "the Approval Conditions") which may be materially adversed to
the Purchaser, the Purchaser shall within fourteen (14) days of
being notified of the Approval Conditions give written notice to the
Vendor of its objections to the same. The Purchaser shall be
entitled to appeal to the State Authority within twenty-one (21)
days of being notified of the Approval Conditions. In the event that
the appeal to the State Authority is rejected or should the
application be re-approved with amended conditions (hereinafter
referred to as "the
<PAGE>
Amended Conditions") which are not acceptable to the Purchaser, the
Purchaser shall within fourteen (14) days of being notified of the
Amended Conditions give written notice to the Vendor of its
objections to the same, then the Purchaser shall be entitled to
rescind or terminate this Agreement and to a refund of the Deposit
less half of all fees and expenses paid to the PDC and the State
Authority relating to the State Authority Application. The Vendor
shall accordingly furnish to the Purchaser, satisfactory receipts
and documentation for the said fees and expenses.
13.4 In the event that the State Authority Approval is not obtained or
fulfilled or considered not to have been obtained or fulfilled,
other than in accordance with clause 13.3, then this Agreement shall
be rendered null and void and neither party herein shall
thereinafter have any further claims or rights hereinunder and the
provisions of clause 11.2(e) and 12 herein shall apply.
14. APPORTIONMENT OF OUTGOINGS
All quit rent and rates and assessments and other outgoings (if any)
in respect of the said Property shall be apportioned between the
parties hereto from the Completion Date and any sum or sums due by
virtue of such apportionment shall be paid or allowed as the case may
be PROVIDED ALWAYS that the Vendor shall indemnify the Purchaser in
respect of any loss or penalty imposed by reason of any late or non
payment of such outgoings for any period prior to the Completion Date.
15. NOTICES
Notices to the Vendor and the Purchaser as the case may be shall
(without prejudice to any other means of service) be deemed served on
the Vendor or the Purchaser, if delivered or sent by hand or prepaid
A.R. Registered Post to the address stated to be the Vendor's or the
Purchaser's in Clause 1. Notices by facsimile transmission shall be
deemed served upon receipt of acknowledgment by the recipient.
16. WAIVER
16.1 No right under this Agreement shall be deemed waived, unless made or
confirmed in writing and signed by or on behalf of the party waiving
such right.
16.2 A waiver by a party shall be without prejudice to its rights or
remedies in respect of any other breach of this Agreement by either
of the parties.
16.3 Any failure by a party to enforce any of the provisions of this
Agreement or any forbearance, delay or indulgence granted by that
party to the other party shall not be construed as a waiver of that
party's rights under this Agreement.
17. SEVERANCE
If any provision of this Agreement is declared by any judicial or
other competent authority to be void voidable illegal or otherwise
unenforceable, the remaining provisions of this Agreement shall remain
in full force and effect.
18. FORCE MAJEURE
In the event of national emergency war prohibitive governmental
regulation or if any other cause beyond the reasonable control of the
parties hereto or either of them renders the performance of this
Agreement impossible the Purchaser shall be entitled at any time
before the Completion Date to terminate this Agreement by giving
notice in writing to the Vendor and upon the service of such notice on
the Vendor this Agreement shall be terminated and the Deposit shall
forthwith and in any
<PAGE>
case within seven (7) days after the service of such notice be
refunded to the Purchaser but without any interest costs or
compensation unless the Vendor shall fail to refund the Deposit within
the said period of seven (7) days in which event the Deposit shall be
refunded with interest thereon at the rate of ten (10) per centum per
annum calculated from the date of the service of such notice up to the
date of actual repayment and the Memorandum of Transfer shall be
cancelled and declared null and void and save for the refund the
Deposit and interest (if any) and the cancellation of the Memorandum
of Transfer neither of the parties hereto shall have any claim against
the other under or in respect of this Agreement or otherwise howsoever
(save the removal or withdrawal of any Private Caveat lodged by the
Purchaser).
19. COSTS AND STAMP DUTIES
Each party shall pay its own solicitors' and disbursements fees of and
incidental to the negotiation, preparation and completion of this
Agreement. The Purchaser shall pay the stamp duty adjudication fees
(where applicable) on the original and three (3) counterparts and
registration fees with respect to this Agreement and the transfer of
the said Property to the Purchaser. The Vendor agrees to pay the State
Authority Consent fees, any charges/fees/levy and all other forms of
payment imposed by PDC or any other competent authorities pertaining
to the sale and purchase of the said Property herein, as well as any
additional stamp duty and/or penalty that may be imposed by the
Collector of Stamp Duty or such other competent authority in respect
of this Agreement and/or the Memorandum of Transfer if such
duty/penalty is payable due to the Vendor's default.
20. PRIVATE CAVEAT
Upon the execution of this Agreement, the Purchaser shall be entitled
to file a private caveat against the said 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 1965 which Notice shall be deposited with the Purchaser's
Solicitors for safekeeping. In the event this Agreement is terminated
for any reasons whatsoever the Purchaser's Solicitors are hereby
authorised to forthwith present such Notice at the relevant Land
Registry/Office to effect the Withdrawal of the Private Caveat.
21. GOVERNMENT ACQUISITION
21.1 The Vendor hereby warrants and undertakes to the Purchaser that as
at the date of execution of this Agreement the Vendor has no
knowledge nor any reason to believe that the said Property or any
part thereof has been acquired or is subject to acquisition or
intended acquisition by any governmental statutory urban municipal
or other authority or that any advertisement in the Government
Gazette of such intention has been published pursuant to either
Section 4 or Section 8 of the Land Acquisition Act, 1960.
21.2 In the event that the said Property or any part thereof shall be
subject to acquisition under Sections 4 or 8 of the Land Acquisition
Act, 1960 or other legislation in Malaysia, before the presentation
of the Memorandum of Transfer to the relevant authority for
registration, the Vendor shall immediately give notice thereof to
the Purchaser of the Vendor's receipt thereof.
21.3 The Purchaser shall within seven (7) days after the receipt of the
notice from the Vendor, but in any event before the presentation of
the Memorandum of Transfer to the relevant authority for
registration, notify the Vendor in writing of the Purchaser's
decision whether to determine this Agreement, or to proceed with the
purchase herein subject to a mutually agreed adjustment in the
Purchase Price.
21.4 If the Purchaser decides to proceed with the purchase, the Vendor
shall give notice to the acquiring authority of the Purchaser's
interest in the said Property and the Purchaser shall be
<PAGE>
entitled to all compensation payable in respect of such acquisition
and PROVIDED ALWAYS THAT the Purchaser shall have paid the adjusted
Purchase Price to the Vendor. The Purchaser shall be entitled to
appear and to attend to enquiries or hearings or appeals or
negotiations or in making claims in respect of the said compensation
either in the name of the Vendor or the Purchaser or to join in with
the Vendor and all compensation monies received by the Vendor shall
be held in trust for the Purchaser and shall be paid over to the
Purchaser forthwith upon demand being made by the Purchaser.
21.5 If the Purchaser decides not to proceed with the purchase the Vendor
shall refund the Deposit and all monies paid to account of the
Purchase Price within seven (7) days without interests, costs,
damages or whatsoever compensation otherwise the Vendor shall pay
interest to the Purchaser at the rate of ten per centum (10%) per
annum on the said sum from the eighth (8th) day until the date
actual payment.
22. DEVELOPMENT AREA
If the said Property or any part or parts thereof shall be within an
area declared (whether before, on or after the date of this Agreement)
by the proper local planning authority to be a development area
pursuant to Section 38 of the Town and Country Planning Act, 1976 the
Purchaser may by notice in writing served on the Vendor or the
Vendor's Solicitors at any time prior to the payment of the Balance
rescind the sale and purchase of the said Property and upon the
service of such notice the contract for the sale and purchase of the
said Property hereby made shall be rescinded accordingly and the
Deposit shall forthwith and in any case within seven (7) days after
the service of such notice be refunded to the Purchaser but without
any interest costs or compensation unless the Vendor shall fail to
refund the Deposit within the said period of seven (7) days in which
event the Deposit shall be refunded with interest thereon at the rate
of ten (10) per centum per annum calculated from the date of the
service of such notice up to the date of actual repayment and the
Memorandum of Transfer shall be cancelled and declared null and void
and the Private Caveat (if any) lodged by the Purchaser shall
forthwith be withdrawn by the Purchaser at its own cost and expense
whereupon this Agreement shall become null and void and save for the
refund of the Deposit and interest (if any) and the cancellation of
the Memorandum of Transfer neither of the parties hereto shall have
any claim against the other under or in respect of this Agreement or
otherwise howsoever.
23. TRANSFER REJECTED FROM REGISTRATION
Further to clauses 6.2 and 9.2, in the event that the adjudicated and
stamped Memorandum of Transfer of the said Property together with the
issue documents of title of the said Property shall be rejected from
registration by the registering authority for reasons not attributable
to the Purchaser or due to any defect in the title the Vendor shall
within seven (7) days of such rejection refund to the Purchaser and
the Financier accordingly all sums of money paid over an account of
the Purchase Price ("the Sums Paid Over") (including the RPGT Sum if
the same shall have been paid to the Director - General of Inland
Revenue). If the Sums Paid Over is not refunded within the said seven
(7) days, the Vendor shall pay interest to the Purchaser at the rate
of ten per centum (10%) per annum on the Sums Paid Over from the
eighth (8th) day until the date of actual payment. Upon receipt of the
Sums Paid Over, by the Purchaser and the Financier the Purchaser shall
withdraw the private caveat lodged by the Purchaser (if any) and
forward to the Vendor's Solicitors the issue document of title to the
said Property after its return by the relevant land office registry,
and thereupon this Agreement shall terminate and become null and void.
24. MISCELLANEOUS
24.1 Time
Time shall be of the essence in this Agreement.
<PAGE>
24.2 Supersedes Prior Agreements
This Agreement supersedes any prior agreements between the
parties, whether written or oral, and any such prior agreements
are cancelled as at the date of this Agreement but without
prejudice to any rights which have already accrued to either of
the parties.
24.3 Change of Address
Each party shall serve notice on the other of the change or
acquisition of any address and of any telephone, telex,
facsimile, electronic mail or similar number at the earliest
possible opportunity but in any event within forty eight (48)
hours of such change or acquisition.
24.4 Rights Cumulative
All rights granted to either of the parties shall be cumulative
and no exercise by either of the parties of any right under this
Agreement shall restrict or prejudice the exercise of any other
right granted by this Agreement or otherwise available to it.
24.5 Headings
The headings used in this Agreement are for convenience only and
shall not affect the construction of this Agreement.
24.6 Binding Effect of Agreement
This Agreement shall be binding upon the parties hereto, their
respective heirs personal representatives successors in title
liquidators and assigns.
24.7 Specific Performance
The parties hereto shall be entitled to specific performance of
this Agreement Provided that they have respectively complied
with all the terms and conditions and obligations herein
contained.
24.8 Schedules
The Schedules referred to in this Agreement shall form part of
this Agreement.
24.9 Written Communications
The Vendor shall within two (2) working days of the receipt of a
written communication relating to the said Property from a
competent authority exercising powers under statute or any other
written law, or before registration of the Memorandum of
Transfer in favor of the Purchaser or its nominee(s)/assignee(s)
in respect of the said Property (whichever is the earlier)
deliver to the Purchaser a photocopy of such communication.
24.10 License To Enter The Said Property
As from the date of this Agreement, the Vendor shall permit the
Purchaser or its contractors surveyors architects workmen or
agents to enter upon the said Property to carry out survey, take
measurements, plant pegs and boundary stones and such other work
as the Purchaser shall consider to be necessary for or in
connection with the
<PAGE>
Purchaser's proposed development of the said Property PROVIDED
THAT the Purchaser shall indemnify and keep the Vendor fully
indemnified against all actions and proceedings for personal
injury, death or damages to property arising from the negligence
of the Purchaser or its contractors, surveyors, architects,
workmen, agents or duly authorised representatives.
24.11 Execution of Plans
The Vendor shall within fourteen (14) days of the request of the
Purchaser, execute all such plans and documents as may be
reasonable and necessary to enable the Purchaser to apply for
planning permission and building plans in respect of the
development of the said Property Provided that all costs fees
disbursements premiums and expenses whatsoever in connection
with the application for the planning permission and the
building plans shall be borne fully by the Purchaser and the
Purchaser hereby undertakes to compensate and indemnify and keep
the Vendor fully indemnified against all claims, demands,
actions, proceedings, penalties, increased rates and
assessments, premiums, losses and damages whatsoever arising out
of the execution of the plans and documents by the Vendor.
24.12 Assignment
This Agreement and all rights in it may be assigned or
transferred by the Purchaser and the Purchaser or its assignee
or transferee or nominee shall be entitled to specific
performance of this Agreement.
24.13 Working Day
Where the last day for doing any act or thing or taking any step
would but for this provision be a Sunday or a Holiday, such last
day shall instead be the next following working day.
24.14 Misdescription of Property
(a) The parties hereto mutually agree that the said
Property comprise of an area of 4.66646 acres and if upon
survey whether before or after Completion, the said area
shall be different from the agreed area herein, the
Purchase Price shall be recalculated and readjusted as
follows: -
(no. of acres X 43560 X RM16.70)
(b) Any payments/refunds due from the calculations in clause
24.14(a) above shall be settled on the Completion Date or
within fourteen (14) days from the date of written notice
(whichever is later).
<PAGE>
IN WITNESS whereof the parties have on the date above referred to affixed their
respective Common Seals
The Common Seal of the Vendor is )
herein affixed in the presence )
of: - )
/s/ Chang Chuen Kwan /s/ Chow Ching Hua
---------------------- ---------------------
Director Secretary
Chang Chuen Kwan Chow Ching Hua (LS 003227)
The Common Seal of the Purchaser )
is herein affixed in the )
presence of: - )
/s/ Walter Davis Delauder /s/ Hsiang De-Way
------------------------- --------------------
Director Director/Secretary
Walter Davis Delauder Hsiang De-Way