- 1.1 Whenever the Second Party desires to enter into a Purchase Transaction, the Second Party shall so request the First Party in writing or by telephone conversation or by fax, telex or any other agreed means of telecommunication in accordance with the form set out in Schedule 1 hereof. Such request shall not create any obligations or liabilities on any party thereto.
- 1.2 In the event that the First Party agrees to enter into the Purchase Transaction mentioned in 2.1 above, the First Party shall issue his Sale Offer to sell deliverable and identified Commodities owned by him in the form set out in Schedule 1 hereof. The First Party shall forward to the Second Party his written Sale Offer together with a copy of the Identification Documents of the Commodities. It is a requirement that the Second Party must receive the copy of the Identification Documents before issuing his Purchase Acceptance.
- 1.3 In the event that the Second Party accepts and receives the First Party’s Sale Offer and a copy of the commodities Identification Documents thereof, the Second Party shall issue his Purchase Acceptance in accordance with the form set out in Schedule 3 hereof to the First Party.
- 1.4 In the event that the Purchase Transaction is to be concluded, fully or partially, via telephone conversation, the following requirements shall be observed:-
- The telephone conversation must be recorded.
- The Commodities Identification Documents must be received by the Second Party prior to issuing his Purchase Acceptance;
- If the Sale Offer and/or the Purchase Acceptance is to be executed through telephone conversation, it must be in accordance with the form set out in Schedule 1 and 2 respectively;
- The concluded Purchase Transaction is to be confirmed, as soon as possible, by a Confirmation of Sale Offer to the Second Party if the First Party is the one who had made his offer via a telephone conversation and/or a Confirmation of Purchase Acceptance to the First Party if the Second Party is the one who had made his acceptance of the offer via the telephone conversation. The Parties must confirm the terms and conditions have been agreed upon during the telephone conversation.
- 1.5 Upon the Second Party issuance of his Purchase Acceptance to the First Party, the Purchase Transaction is deemed to be completed pursuant to the terms and conditions of this Agreement. The liabilities and ownership of the Commodities shall immediately pass to the Second Party.
- 1.6 Upon the completion of the Purchase Transaction, the Second Party shah have the right to keep the Commodities in the warehouse they are stored in, or alternatively have them delivered to him in accordance with the following requirements:
- The Second Party must indicate in his Purchase Acceptance his desire to keep the Commodities in the warehouse or have them delivered to him or any other person as directed by him;
- The First Party must deliver to the Second Party the original. Identification Documents;
- The First Party shall take the necessary procedures to enable the Second Party to take delivery of the Commodities in the form set out in Schedule 5.
- 1.7 The Second Party shall bear all costs and expenses of storage, insurance, and any other costs associated with the Commodities.
- 1.8 The Second Party shall pay the Sale Price in respect of such Purchase Transaction on the Spot Payment Date in accordance with the payment instructions contained in the Sale Offer.
- 1.9 For the avoidance of doubt, the commodities sale arrangement contained in this Agreement is of a non-committal in nature. Accordingly, notwithstanding any other provision hereof, there is no obligation on the part of either Party to enter into any Purchase Transaction.
2. Representations and Warranties
- 2.1 Each Party represents and warrants to and for the benefits of the other Party that:-
- Status that he is duly incorporated under the relevant laws or jurisdiction.
- Powers and Authorisations that he has obtained the necessary corporate powers to enter into this Agreement and/or, any Purchase Transaction.
- Validity that this Agreement and each Purchase Transaction entered into pursuant to this Agreement shall be binding and enforceable against him, and he will not violate the terms of any agreement to which he is a party of.
- Consents that he shall and will at all times maintain all authorisations, approvals, licences and consents required to enable him lawfully performing his obligations under this Agreement.
- Proceedings that there he shall not insolvent or enter into voluntary or compulsory liquidation or pass effective resolution for winding up or make an arrangement or composition with his creditors or if any receiver be appointed on behalf of the debenture holders or otherwise;
- 2.2 Representations and Warranties of the First Party
The First Party represents and wan-ants to and for the benefit of the Second Party:
- that the Commodities are as specified in accordance with the Identification Documents;
- that the First Party is the legal and beneficial owner f the Commodities and has title to the Commodities at the tine of the Sale Offer of any Purchase Transaction;
- that pending delivery of the Commodities to the Second Party, it will not trade or deal in the Commodities (other than upon the Second Party’s instruction) or create any charge or encumbrance thereon or grant any third party any right or interest in the Commodities;
- that the First Party shall be liable to and shall bear all costs, damages, and legal responsibilities of any consequences resulting from violating his representations and warranties above.
- 2.3 Continuing Nature of Representations and Warranties
The Parties shall be deemed to represent and warrant to the other Party on each of dates of a Purchase Transaction that the representations and warranties contained in Clause 3.1 and 3.2 hereof are true and accurate in all respects as if made on such date.
3. Events of Default
In the event an Event of Default occurs and the defaulted Party fails to remedy (if remedial) within the stipulated time stated herein, the non- defaulting Party may by written notice to the defaulting Party to terminate this Agreement and the Sale Price then owing shall become due and immediately payable. The following events shall constitute Events of Default:-
- if either Party fails or in breach of any provisions of this Agreement which is not capable of remedy or which being capable of remedy, is not remedied within five (5) Business Days after written notice to the defaulting Party from the non-defaulting Party requesting to remedy the same; or
- if any of the representatives and warranties as stated in Clause 3 herein is false or incorrect in any material respect; or
- if either Party becomes insolvent or enter into voluntary or compulsory liquidation or pass effective resolution for winding up or make an arrangement or composition with its creditors or if any receiver be appointed on behalf of the debenture holders or otherwise;
- 4.1 This Agreement shall be terminated in accordance with the following terms and conditions:
- if either Party fails or in breach of any provisions of this Agreement which is not capable of remedy or which being capable of remedy, is not remedied within five (5) Business Days after written notice to the defaulting Party from the non- defaulting Party requesting to remedy the same; or
- by mutual agreement of the Parties hereto; or
- if either Party becomes insolvent or enter into voluntary or compulsory liquidation or pass effective resolution for winding up or make an arrangement or composition with its creditors or if any receiver be appointed on behalf of the debenture holders or otherwise; or
- if the fulfillment of the terms and conditions of this Agreement is rendered impossible due to force majeure events of which such incapacitation continues for a period of fourteen (14) days from the date, of the first such force majeure event occurs. For avoidance of doubt, force majeure events shall include war or hostilities, any state of riots, civil commotion, earthquake, flood, fire, tempest and any other natural disaster or any event beyond the reasonable control of the Parties.
- 4.2 The termination of this Agreement shall not affect the rights and obligations of either Party hereunder in relation to any outstanding Purchase Transaction upon which the terms and conditions of this Agreement shall remain effective until the Purchase Transaction is completed.
- 4.3 The termination of this Agreement shall not affect any Purchase Transaction already completed.
5. Dispute Resolution
All disputes or differences whatsoever which shall at any time hereafter whether during the continuance in effect of this Agreement or upon or after its discharge or determination arise between the Parties hereto concerning this Agreement or its construction or effect or as to the rights, duties and liabilities of the Parties hereto concerning this Agreement or as to any other matter in any way connected or arising out or in relation to the subject matter of this Agreement shall be finally settled in accordance with the Rules for Arbitration of the Regional Centre of Arbitration at ICuala Lumpur so long as it complies with Shariah principles.
6. Payments and Expenses
- 6.1 When a Purchase Transaction is completed, all sums payable by the Second Party hereunder and under each Purchase Transaction shall be paid without set-off, withholding, counterclaim or deduction whatsoever and shall be free from any tax or other deductions whatsoever.
- 6.2 Where any payment hereunder and/or under a Purchase Transaction is due and payable on a day which is not a Business Day, the due date shall be the next following Business Day but the amount to be paid on such day shall remain the same.
- 6.3 The Second Party agrees to pay on demand all costs and expenses (including legal fees) incurred by the First Party in connection with the preservation and/or enforcement by action or otherwise of its rights under this Agreement or any Purchase Transaction, except where such costs and expenses were incurred as a consequence of the First Party’s misconduct or negligence, or a consequence of Force Majeure events.
7. No Waiver of Rights
|A failure or delay in exercising any right, power or privilege in respect of this Agreement will not be presumed to operate as a waiver and a single or partial exercise of any right, power or privilege will not be presumed to preclude any subsequent or further exercise of that right power or privilege or the exercise of any other right power or privilege.
8. Partial Invalidity
If at any time any provision hereof or of any Purchase Transaction becomes illegal, unlawful, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions hereof or thereof nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired thereby.
Neither Parties hereto shall be entitled to assign or transfer any of its rights, benefits or obligations under this Agreement or under any Purchase Transaction without the prior written consent of the other Party.
- 10.1 Any notice given hereunder shall be in writing using the communication details set out below or such other telex or facsimile number as either Party shall previously have notified to the other Party:
To: The First Party [•]
Al-Rajhi Banking & Investment Corporation (Malaysia) Berhad
Ground floor, East Block,
Wisma Selangor Dredging
142-B, Jalan .Ampang,
50450 Kuala Lumpur
- 10.2 Notice by telex or facsimile shall be deemed effective at the time of transmission of the telex or facsimile, provided that the appropriate answerback or confirmation of transmission receipt shall have been received.
This Agreement may be executed in two identical counterparts and both such counterparts taken together shall be deemed to constitute one and the same instrument.
12. Entire Agreement
This Agreement constitutes the entire agreement and understanding of the Parties with respect to its subject matter. Each of the Parties acknowledges that in entering into this Agreement it has not relied on any oral or written representation, warranty or other assurance and waives all rights and remedies which might otherwise be available to it in respect thereof, except that nothing in this Agreement will limit or exclude any liability of a party for fraud.
13. Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with Malaysian law and the Malaysian courts shall have exclusive jurisdiction so long as it complies with Shariah principles.
14. Stamp Duty
|The Second Party shall pay the Stamp Duty and other expenses in connection with this Agreement.