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Memorandum of Agreement of Sale
MEMORANDUM OF AGREEMENT OF SALE
ENTERED INTO AND BETWEEN -
PURPLE RAIN PROPERTIES NO. 109 (PTY) LTD
(hereinafter referred to as the “Seller”)
of the first part
and
(hereinafter referred to as the “Purchaser”)
of the second part
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Memorandum of Agreement of Sale
WHEREBY THE PARTIES AGREE AS FOLLOWS –
1 INTERPRETATION
1.1 In this Agreement -
1.1.1 clause headings are for convenience only and are not to be
used in its interpretation;
1.1.2 an expression which denotes -
1.1.2.1 any gender includes the other genders;
1.1.2.2 a natural person includes a juristic person and vice
versa;
1.1.2.3 the singular includes the plural and vice versa;
1.2 In this Agreement, unless the context indicates a contrary intention, the
following words and expressions bear the meanings assigned to them
and cognate expressions bear corresponding meanings -
1.2.1 "Business Day" means a day other than a Saturday or a
Sunday or a day which from time to time is a proclaimed public
holiday in the Republic of South Africa;
1.2.2 "Parties" means the parties to this Agreement from time to time
and "Party" means any one of them;
1.2.3 “Property” means Remainder of Portion 17 of the Farm
Elandsjagt No. 585, In the Drakenstein Municipality, Division
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Memorandum of Agreement of Sale
Paarl, Province Western Cape, in extent 59,7014 (five nine
comma seven zero one four) hectares;
1.2.4 "Purchaser" means_________________________________,
Registration number _________________________________,
herein represented by ________________________________,
in his capacity as a duly authorized ____________________ of
__________________________________________________
__________________________________________________
__
Tel: ___________________________________
Fax: ___________________________________
E-mail: _________________________________;
1.2.5 "Seller" means Purple Rain Properties 109 (Pty) Ltd,
Registration number 1998/016180/07, herein represented by
Ivan Carl Smook, in his capacity as a duly authorized Director
of 10 L’Ideal Close, Paarl, 7646
Tel: 082 943 0688
E-mail: [email protected];
1.2.6 “Seller’s Conveyancers” means Basson Blackburn Inc, 371
Main Road, Paarl, 7646
Tel: (021) 871 1401
Fax: (021) 872 6189
E-mail: [email protected];
1.2.7 "Signature Date" means the date of signature of this
Agreement by the Party doing so last in time;
1.2.8 "VAT" means value-added tax at the applicable rate in terms of
the Value-Added Tax Act No. 89 of 1991 (or any statutory
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Memorandum of Agreement of Sale
modification or re-enactment thereof) and includes any
regulations made thereunder from time to time.
1.3 Any substantive provision conferring rights or imposing obligations on
any Party in the interpretation clause shall be given effect to as if it were
a substantive provision in the body of the Agreement.
1.4 Words and expressions defined in any clause shall, unless the
application of any such word or expression is specifically limited to that
clause, bear the meaning assigned to such word or expression
throughout this Agreement.
1.5 Reference to months or years shall be construed as calendar months or
years.
1.6 No provision herein shall be construed against or interpreted to the
disadvantage of any Party by reason of such Party having or being
deemed to have structured or drafted such provision.
1.7 The eiusdem generis rule shall not apply and whenever a term is
followed by the word "including" which is then followed by specific
examples, such examples shall not be construed so as to limit the
meaning of that term.
1.8 Unless specifically otherwise provided, any number of days prescribed
shall be determined by excluding the first and including the last day or,
where the last day falls on a Saturday, Sunday or public holiday, the
next succeeding business day.
1.9 A reference to any statutory enactment shall be construed as a
reference to that enactment as at the Signature Date and as amended
or re-enacted from time to time.
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1.10 This Agreement incorporates the annexure which annexure shall have
the same force and effect as if set out in the body of this Agreement. In
this Agreement the word "Agreement" refers to this Agreement and the
words "clause" or "clauses" refer to clauses of this Agreement.
2 INTRODUCTION
2.1 The Seller is the registered owner of the Property;
2.2 The Seller is desirous of selling the Property to the Purchaser, who is
desirous of purchasing same; and
2.3 The Parties wish to record the terms of their agreement in writing.
3 SALE
3.1 The Seller sells to the Purchaser, and the Purchaser purchases the
Property subject to all the conditions and servitudes mentioned or
referred to in the current, prior and/or new title deed/s of the Property
and to all such other conditions and servitudes as may exist in regard
thereto.
3.2 The Seller shall not be obliged to point out the survey beacons or
boundaries of the Property to the Purchaser.
4 PURCHASE PRICE
4.1 The purchase price payable by the Purchaser to the Seller in respect of
the Property shall be an amount of R 1 950 000.00 (One Million Nine Hundred and Fifty Thousand Rand) plus VAT, which amount will be
payable as follows:-
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4.1.1 The Purchaser shall on the Signature Date pay a deposit in the
amount of R195 000.00 (One Hundred and Ninety Five Thousand Rand) to the Seller’s Conveyancers. The Seller’s
Conveyancers shall invest the deposit in trust in an interest
bearing account and interest to accrue to the benefit of the
Purchaser. In this regard it is placed on record that the Seller’s
Conveyancers will only be in a position to invest the deposit as
aforesaid upon receipt of a written and signed instruction to invest
trust moneys and the required information and documentation in
terms of the Financial Intelligence Centre Act, No. 38 of 2001; and
4.1.2 The balance purchase price against registration of transfer of the
Property in name of the Purchaser.
4.3. The Purchaser will provide to the Seller's Conveyancers an irrevocable,
to the Seller acceptable, bank guarantee/s securing the balance
purchase price contemplated in clause 4.1.2 above, which guarantee/s
will be delivered to the Seller's Conveyancers by no later than 14
(fourteen) days from being requested to do so. It is recorded that the
Seller can only validly request such guarantee/s after fulfilment of the
suspensive condition contained in clause 5.
5 SUSPENSIVE CONDITION
5.1 This Agreement is subject to the suspensive condition that the
Purchaser obtain approval, by no later than 30 (thirty) days from the
Signature Date, of a loan by a financial institution of R______________
(__________________________________________________ Rand), against registration of a first mortgage bond over the Property at such
interest rates and on such conditions as stipulated by the financial
institution(s) to which application for the loan is made. In this regard it is
specifically agreed that the aforementioned condition precedent shall be
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Memorandum of Agreement of Sale
fulfilled as soon as a financial institution has issued the Purchaser with
a pre-agreement statement form as provided for in the National Credit
Act, and it is specifically recorded that the fulfilment of the conditions is
not dependant on acceptance of the quote by the Purchaser.
5.2 If the suspensive condition contained in clause 5.1 is not fulfilled within
the time period contemplated above (“the Specified Date”), then this
Agreement shall not automatically lapse and be of no further force and
effect, but any Party may after the Specified Date in question, on written
notice (“the Notice”) to the other Party, require that the suspensive
condition in question be fulfilled within 30 (thirty) days after the date of
the Notice and, failing fulfilment of the suspensive condition in question,
within the aforesaid 30 (thirty) day period, then this Agreement shall
cease to be of any force and effect and no Party shall have any claim
against the other of them as a result of the failure of the suspensive
condition.
5.3 The suspensive condition contained in clause 5.1 has been inserted for
the benefit of the Purchaser and fulfilment thereof shall only be capable
of being waived by means of written notice to the Seller in this regard.
5.4 Unless the above suspensive condition has been fulfilled or waived by
the date stipulated as the due date for fulfilment in respect thereof, the
provisions of this Agreement will fall away and will be of no further force
or effect and the status quo ante will be restored as near as may be.
None of the Parties shall have any claim against the other in terms of
arising from the failure of the suspensive condition not being timeously
fulfilled.
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6 POSSESSION AND RISK
6.1 Possession and occupation together with all benefits and risks, profits and losses in respect of the Property will be given to the Purchaser on the date of registration of transfer of the Property into the name of the Purchaser, from which date it will be at the sole risk, loss or profit of the Purchaser, and the Purchaser will from such date be liable for all rates, taxes and other charges in respect of the Property. If the Seller has paid any such rates, taxes or charges for any period subsequent to the date of possession, the Purchaser will refund to the Seller the charge or charges so paid in respect of any period subsequent to the date of registration of transfer.
6.2 The Seller does not furnish any explicit or tacit guarantees in regard to
the Property. The Purchaser acknowledges that he was not persuaded
into entering this Agreement by any representations made to him by the
Seller or any representative of the Seller, other than what is contained
in this Agreement.
6.3 The Seller shall be required to provide a detailed list of any defects and
damage to the Property, which the Purchaser shall be required to
inspect and agree by conducting an inspection of the Property and
signing such defects list prior to transfer of the Property.
6.4 If the Purchaser fails to attend to the inspection at the date and time
agreed upon, then the Property will be considered free from defects and
in good condition, fair wear and tear excepted, other than those
disclosed by the Seller.
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Memorandum of Agreement of Sale
6.5 The Purchaser should take note that in addition to the patent (visible)
defects in the Property, there may be latent (not visible) defects in the
Property.
6.6 The Property is offered for sale to the Purchaser in the specific
condition in which it stands.
6.7 In the event that the Consumer Protection Act 68 of 2008 does not
apply to the transaction between the Parties it is hereby recorded,
despite any other provision to the contrary, that clauses 6.3 to 6.6 will
not apply and that the Property is sold voetstoots to the Purchaser and
that the Purchaser shall have no claims of any nature against the Seller
for any defects in the Property.
7 TRANSFER AND COSTS
7.1 The Seller’s Conveyancers will attend to the registration of transfer.
7.2 Transfer of the Property will accordingly be given to the Purchaser as
soon as reasonably possible.
7.3 The Purchaser will -
7.3.1 on demand from the Seller’s Conveyancers, pay the transfer
fees as stipulated in the applicable tariff and other normal costs
incidental to registration of transfer, the costs of obtaining any
rates or other clearance certificate and the pro rata amount due
for rates and taxes plus attributable VAT on any of the aforesaid
amounts;
7.3.2 sign all documents required to be signed by the Seller's
Conveyancers in order that transfer may be effected.
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8 WARRANTIES BY PARTIES
Each Party warrants that –
8.1 it has the legal capacity and has taken all necessary corporate action required to empower and authorise it to enter into and implement this Agreement on the terms and conditions herein set out;
8.2 this Agreement constitutes an agreement valid and binding on it and enforceable against it in accordance with its terms.
9 WARRANTIES IN RESPECT OF THE PROPERTY
9.1 The Seller will on the Signature Date be the sole registered and
beneficial owner of the Property.
9.2 On date of transfer the Property will be unencumbered.
9.3 The Seller warrants that there is no pending claim in respect of the
Property in terms of the provisions of the Restitution of Land Rights Act,
No. 22 of 1994, the Land Reform (Labour Tenants) Act, No. 3 of 1996
and the Extension of Security of Tenure Act, No. 62 of 1997 and that to
the best of its knowledge and belief, nobody has a lawful claim in
respect of the Property or for any use of the Property in terms of the
aforementioned Acts or any other legislation.
10 ESTATE AGENTS' COMMISSION
The Parties agree and acknowledge that Anthony Joseph Smook is the
effective cause of this Agreement being concluded and further that the Seller
shall accordingly pay agents’ commission to the said Anthony Joseph Smook
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Memorandum of Agreement of Sale
calculated at 5% (five percent) of the purchase price excluding VAT of the
Property.
11 BREACH
11.1 Should either Party commit a breach of this Agreement, the aggrieved
Party would be entitled to give the defaulting Party notice in writing
calling upon the defaulting Party to remedy the breach. Should the
defaulting Party fail to comply with such notice within 7 (seven) days of
receipt of such notice then, without prejudice to any other rights the
aggrieved Party may have in law, the aggrieved Party is entitled –
11.1.1 to cancel this Agreement and thereupon recover such damages
as the aggrieved Party suffers; or
11.1.2 to enforce performance in terms of this Agreement without
prejudice to any right the aggrieved Party may have to claim
damages from the defaulting Party.
11.2 Should either of the Parties take steps against the other pursuant to a
breach by such Party of this Agreement, such Party shall, in addition to
the rights aforementioned, be entitled to recover from the defaulting
Party payment of all its legal costs incurred on the scale between
attorney and own client, including tracing fees and collection
commission.
12 NOTICES ANDDOMICILIUM
12.1 The Parties choose as their respective domicilium citandi et executandi
for the purpose of serving legal proceedings and for the purposes of
giving or sending any notice provided for or necessary in terms of this
Agreement, the following addresses:-
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Memorandum of Agreement of Sale
Seller10 L’Ideal Close
Paarl
7646
E-mail: [email protected]
Marked for the attention of Ivan Smook
Purchaser _________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
E-mail: _______________________________________________
Marked for the attention of _______________________________
provided that a Party may from time to time change any address to any
other physical address, postal address or email address within the
Republic of South Africa by written notice to the other Party to that
effect. Such change of address will be effective 7 (seven) days after
receipt of notice of the change of domicilium.
12.2 All notices to be given in terms of this Agreement will be in writing
and –
12.2.1 if delivered by hand during normal business hours, be
rebuttably presumed to have been received on the date of
delivery;
12.2.2 if sent by prepaid registered post from within the Republic of
South Africa be rebuttably presumed to have been received
within 7 (seven) business days of posting;
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12.2.3 if sent by e-mail before 16h30 on a Business Day is rebuttably
presumed to have been received on the date of successful
transmission of the e-mail. Any e-mail sent after 16h30 or on a
day, which is not a Business Day, will rebuttably be presumed
to have been received on the following Business Day.
12.3 Notwithstanding the above, any notice actually received by the Party to whom the notice is addressed will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with the provisions of this clause.
13 SEVERABILITY
Each provision of this Agreement is severable from the other provisions.
Should any provision be found by a Court of competent jurisdiction to be
invalid or unenforceable for any reason, the Parties will consult with one
another in good faith in order to agree, if possible, an alternative provision in
accordance with the intent and tenor of this Agreement. The remaining
provisions of this Agreement shall nevertheless remain binding and continue
with full force and effect.
14 GENERAL
14.1 This Agreement constitutes the whole of the agreement between the
Parties hereto relating to the matters dealt with in this Agreement and
save to the extent otherwise provided herein no undertaking,
representation, term or condition relating to the subject matter of this
Agreement not incorporated in this Agreement shall be binding on any
of the Parties.
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Memorandum of Agreement of Sale
14.2 No variation, addition, deletion, or agreed cancellation will be of any
force or effect unless in writing and signed by or on behalf of the Parties
hereto.
14.3 No waiver of any of the terms and conditions of this Agreement will be
binding or effectual for any purpose unless in writing and signed by or
on behalf of the Party giving the same. Any such waiver will be effective
only in the specific instance and for the purpose given. No failure or
delay on the part of any Party hereto in exercising any right, power or
privilege hereunder will constitute or be deemed to be a waiver thereof,
nor will any single or partial exercise of any right, power or privilege
preclude any other or further exercise thereof or the exercise of any
other right, power or privilege.
14.4 Save as otherwise herein provided, neither this Agreement nor any part, share or interest herein nor any rights or obligations hereunder may be ceded, assigned, or otherwise transferred without the prior written consent of the other Parties.
14.5 This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, and all of which together shall
constitute one and the same Agreement as at the date of signature of
the Party last signing one of the counterparts. The Parties undertake to
take whatever steps which may be necessary to ensure that all
counterparts are duly signed by all of them without delay.
15 BENEFIT OF THE AGREEMENT
This Agreement will inure for the benefit of and be binding upon the
successors and permitted assigns of the Parties hereto or either of them.
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16 PURCHASER’S COOLING-OFF RIGHT
16.1 In the event that this Agreement is subject to the Consumer Protection
Act 68 of 2008(“CPA”) and if the Agreement was concluded as a result
of direct marketing as defined in the CPA, then, in terms of section 16
read with section 32 of the CPA and Annexure C to the Regulations in
respect of the CPA, the Purchaser may rescind a transaction resulting
from any direct marketing without reason or penalty by notice to the
Seller in writing or another recorded manner and form, within 5 (five)
business days after the later of the date on which:-
16.1.1 the transaction or agreement was concluded; or
16.1.2 the goods that were the subject of the transaction was
delivered to the Purchaser.
16.2 Where the transaction is rescinded as in clause 16.1 the Seller shall
return any payment received from the Purchaser in terms of the
transaction within 15 (fifteen) business days after –
16.2.1 receiving notice of the rescission, if no goods have been
delivered to the Purchaser in terms of the transaction; or
16.2.2 receiving from the Purchaser any goods supplied in terms of
the transaction.
16.3 Any goods returnable in terms of the transaction rescinded in
accordance with clause 16.1 must be returned to the Seller at the
Purchaser’s risk and expense (which shall comprise all costs necessary
to restore possession of the goods to the Seller in the condition in which
the goods were when delivered to the Purchaser).
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17 VALUE ADDED TAX
17.1 The Seller warrants that it is and will at the relevant time be:-
17.1.1 a vendor as that term is defined in section 1 of the Value
Added Tax Act (the “Act”); and
17.1.2 registered as such in terms of section 23 of the Act.
17.2 The Purchaser warrants that it is and/or at the relevant time will be:-
17.2.1 a vendor as that term is defined in section 1 of the Act; and
17.2.2 registered as such in terms of section 23 of the Act.
17.3 The Parties record and agree that they are of the opinion that:-
17.3.1 the subject matter of this Agreement constitutes an
enterprise as defined in section 1 of the Act;
17.3.2 the supplier of the enterprise as contemplated herein is that
of a going concern and will be operated for a period of at
least 6 (six) months after transfer as such and shall
accordingly be chargeable with VAT at the rate of 0% (zero
percent) in terms of section 11(1)(e) of the Act;
17.3.3 the sale will be subject to a zero rate as provided for in
section 11(1)(e) of the Act and it being the intention of the
Parties to, at time of transfer, deliver an income generating
concern which concern contains such assets necessary to
continue the income generating business after date of
transfer.
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17.4 In the event of the Receiver of Revenue determining for any reason that
this transaction does not qualify for zero rating in terms of section 11(1)
(e) of the Act, then the purchase price set out in clause 4.1 above shall
be increased to cover the VAT payable, which amount shall be paid by
the Purchaser to the Seller on demand.
SIGNED at on this the day of 2012 in
the presence of the undersigned witnesses.
1.
2. ______________________ _________________________
For and on behalf of the Seller
SIGNED at on this the day of 2012 in
the presence of the undersigned witnesses.
1.
2. ______________________ __________________________
For and on behalf of the Purchaser
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