AGREEMENT AND CONDITIONS OF SALE

IN RESPECT OF SHAREHOLDING

BETWEEN

 

THE BOARD OF DIRECTORSSHAREHOLDERS OF MEADOW STAR 28 (PTY) LTD (“MSI”), REPRESENTED BY THE BOARD OF DIRECTORS OF MSI, HAVING DELEGATED THOMAS HIPPELE AS ITS REPRESENTATIVE (MSI BEING THE SHAREHOLDERSSOLE SHAREHOLDER OF SANDFORD ESTATES (PTY) LTD, REGISTRATION NUMBER: 1991/006115/07), SAID SHAREHOLDERS BEING THE

 

(“SELLER)”

 

and

________________________________________________________________________________________________________________________________________________________________________________________________

 

“PURCHASER”

 

ASSET:

100% shareholding in SANDFORD ESTATESMEADOW STAR 28 (PTY) LTD

REGISTRATION NUMBER: 1991/006152002/003794/07

(herein referred as ASSETS)

 

 

 

Dated at ........................................................... on the ........ day of ..............................2020.

1.        RESERVE PRICE AND CONFIRMATION

1.1.1     The ASSETS will be sold to the highest bidding buyer (herein referred to as the   BUYER), but subject to confirmation by the SELLER, which confirmation may be given or refused by the SELLER without furnishing reasons therefore. This document constitutes an Offer to Purchase by the BUYER, and the BUYER is unconditionally and irrevocably bound to this Offer for a period of 14 calendar days (the calculation of which excludes the date of signature hereof by the BUYER) and the Offer is open for Acceptance by the SELLER at any time during this period. The onus will rest upon the BUYER to establish whether his bid was confirmed, or not.

1.2       The SELLER reserves the right to extend the confirmation period within reason.

1.3       If this contract is not confirmed, it shall be regarded as null and void and be of no force and effect, and all payments made by the BUYER, including commission, will be refunded without delay.

1.4       During the confirmation period above, the AUCTIONEER may continue to market the ASSETS in the normal cause of business as he may deem fit. He may receive and take in higher Offers to Purchase from prospective BUYERS. Any such higher offer should be made to the AUCTIONEER, subject to the same terms and conditions as the Offer to Purchase on the auction. After confirmation of acceptability  of the highest offer so received the original bidder at the auction shall have the right to equal such offer, which offer will be preferent to any other offers.

1.5       The AUCTIONEER shall advise the BUYER of the highest acceptable offer as contemplated above. The BUYER shall have the option to, within a period of 24 (twenty four) hours after being so notified (excluding weekends and public holidays), increase his offer in writing in terms of this agreement to an amount equal to the Purchase Price of such higher acceptable offer. If the BUYER elects to exercise this right, the BUYER shall amend his original Offer to Purchase or complete and sign a new Offer to Purchase reflecting such higher offer, and shall supplement the deposit and auctioneer’s commission required by Paragraph 8 and 9 below accordingly.

1.6       In the event of this agreement requiring the consent of the Master of the High Court in terms of any law or the consent of the Local Authority/Municipality to pass transfer, then this agreement is subject to such consent being obtained in writing as soon as possible and in the normal course of the transfer process.

1.7       The AUCTIONEER or his agent is entitled to bid up to the reserve price on behalf of the SELLER, but shall not be entitled to make a bid equal to or exceeding the reserve price.    

 

2.       DISPUTES

2.1       In the event of a dispute arising in regards to a bid made, the AUCTIONEER will have the discretion to put the assets up for auction again and his decision will be final. Should the AUCTIONEER and/or the SELLER commit any error in respect of the sale of the assets, such error shall not be binding upon the parties and shall be rectified.

2.2       Should the BUYER fail to conclude the transaction in all facets, the AUCTIONEER will be entitled to resell the assets by auction or private treaty.

2.3       Should the AUCTIONEER  have any reason to believe that a bidder is not able to pay the deposit or the purchase price, he is entitled to refuse a bid from such a bidder, or accept it provisionally, until he is satisfied that the bidder is able to pay aforesaid amount. Should a bid be rejected under these circumstances, the assets

may immediately be put up on auction again.

 

3.        SIGNATURE

3.1       The BUYER shall sign this agreement when called upon to do so by the AUCTIONEER.

3.2       Should the BUYER be married in community of property or bid on behalf of a third party, he guarantees that the necessary power of attorney to legally bind the joint estate and/or the third party has been obtained and that the transaction shall be concluded in all its facets. The said power of attorney must be submitted on request.

3.3       The person signing this contract will nevertheless be held personally liable for the fulfilment of all the terms hereof, even though he acts on behalf of a principal or spouse.

3.4       If the BIDDER acts without the abovementioned power of attorney and the said remedies are not available against the BUYER the BIDDER will be liable for Delictual Damages.

3.5       Should the BUYER be a company, close corporation or trust, the person signing this agreement on behalf of such BUYER, by his signature hereto interposes and binds himself as surety for and co-principal debtor with the BUYER for the due and proper discharge of all its obligations arising from this agreement.

 

4.        NON COMPLIANCE AND / OR BREACH

4.1       Should the BUYER fail to, or refuse to pay the deposit or purchase price on request of the AUCTIONEER as described above, the ASSETS can, at the AUCTIONEERS’ discretion, be sold de novo by virtue of an auction or private treaty, at the BIDDERS risk, who will be held responsible for any shortages and/or costs involved therein. Any increase in price will be to the benefit of the SELLER.

4.2       Should the BUYER violate any condition of this agreement and neglect to comply with a written notice from the SELLER or AUCTIONEER to rectify such breach within 7 (seven) days, the SELLER will be entitled to, without prejudice to any other rights:

4.2.1     Demand specific performance of the agreement with or without damages;

OR

4.2.2     Cancel the agreement, take possession of the ASSETS, and claim damages which will include any damages or costs involved in the resale of the same, either by public auction or private treaty.

4.3       In the event of cancellation of this agreement the BUYER shall forfeit all monies paid, including commission paid in terms of this agreement to the SELLER and/or the AUCTIONEER as liquidated damages.

4.4       The BUYER gives an irrevocable right to the SELLER to, in the event of lawful cancellation of this agreement, sign documents on behalf of the BUYER, which might be required to reinstate any ASSETS, license and/or leases into the name of the SELLER or any other persons, name.

 

5.         CONCEALED RIGHTS

5.1       The SELLER do not guarantee that the ASSETS are free of any debts, claims or notarial bonds or concealed rights such as retention rights and/or hypothecs and that unreserved ownership will be given to the BUYER provided that the BUYER have complied with all the provisions of this contract to the satisfaction of the SELLER.

 

6.        TRANSFER AND TRANSFER COSTS

6.1       The BUYER shall be liable for payment of all transfer costs to effect transfer of the ASSETS if any. The SELLER undertakes to give all reasonable assistance to the BUYER in doing so.

 

7.         VOETSTOOTS 

7.1       The ASSETS is sold VOETSTOOTS, and neither the AUCTIONEER nor the SELLER gives any guarantee as to patent or latent defects, the nature or the legality of any activities practiced therewith, and will not be held liable for any damages arising from same. The BUYER has acquainted himself with the condition defects and shortfalls of the ASSETS.

7.2      BIDDERS should refrain from either bidding at the auction or making an offer for the asset if they have not familiarised themselves with all of the clauses of this Conditions of Sale and the condition and status of the assets, and neither the SELLER nor the AUCTIONEER accepts any liability towards the BUYER in this regard. It is therefore acknowledged that if a BIDDER becomes the BUYER in this agreement he/she has not been induced or influenced to enter into this agreement by any warranties or representations or statements made or information given by either the SELLER(S) or the AUCTIONEER.

 

8.        PURCHASE PRICE

8.1       The purchase price of the asset is …………………………………………………………

            (……………………………………………………………………………………………….)

(excluding VAT) payable by the BUYER as follows:

8.1.1    10% of the full purchase price as a deposit to the AUCTIONEER, in bank guaranteed cheque or electronic transfer immediately after closure of the auction and upon signature hereof by the PURCHASER or as requested by the AUCTIONEER. The SELLER(S) and the PURCHASER authorises the AUCTIONEER, upon Acceptance of this Offer by the SELLER(S), to pay the remainder of the deposit to the Trust Account of the following Attorney for the benefit of the Seller:

FRIEDLAND HART SOLOMON & NICOLSON

4-301 Monument Office Park

79 Steenbok Ave

Monument Park

Pretoria

+27-12-424 0200

Attention: Mr Barry Lawrence Kraut, Attorney, Notary and Conveyancer

8.1.2    The balance of the purchase price shall be paid to the same Trust Account as stated in Paragraph 8.1.1 above or secured by means of a guarantee acceptable to the SELLER, within 15 (fifteen) days from date of confirmation, payable upon transfer of ownership.

8.2       The proceeds of the Purchase Price shall be applied by the Seller as follows:

8.2.1 The bond registered over the immovable property Portion 112 of the Farm Sandford 291 Registration Division KU Province Mpumalanga held by Deed of Transfer T10280/2008 will be settled.

8.2.2 All debts of the Sandford Estates (Pty) Ltd and the holding company as laid open in their books and reflected in the Annual Financial Statements including SARS (CGT from a disputed gain) and loans from shareholders will be settled.

8.2.3 For all debt paid, the Purchaser can obtain a cession and become the creditor in the total amount of debt paid.

8.3       The SELLER(S) and the PURCHASER hereby irrevocably instruct and authorize the Conveyancer to invest any amounts received by the Conveyancer in an Interest bearing account in terms of Section 86(4) of the Attorneys Act, 2014 (Act no. 28 of 2014) for the benefit of the SELLER.

8.4       The BUYER shall be responsible for payment of any and all Bank costs or fees.

8.5       The AUCTIONEER shall have the right to recover, commission and expenses regarding this sale from the purchase price (if applicable).

 

9.        AUCTIONEERS COMMISSION

9.1       The parties hereby agree that the AUCTIONEER is the effective cause of this transaction and that he is entitled to auctioneers’ commission upon confirmation, payable by the BUYER.

9.2        The BUYER will be liable for auctioneers’ commission of 6.5% of the purchase price (exclusive of VAT), which is not included in the purchase price, payable simultaneously with the deposit as per Clause 8.1.1 above and shall be in addition to the said deposit.

 

10.        VALUE ADDED TAX

The purchase price does not include VAT and VAT will be payable on top of the purchase price if applicable.

 

11.       POSSESSION AND OWNERSHIP

11.1     Possession of, control over and ownership of the ASSETS will not pass over to the BUYER until he has complied with all his obligations to the satisfaction of the SELLER in terms of this contract and the BUYER shall not have the right to sell, dispose of, alienate or trade with the ASSETS in any manner whatsoever prior to ownership.

11.2     The SELLER will sign the necessary transfer documents to affect the passing of ownership to the BUYER upon fulfillment of the obligations of the BUYER and acceptance thereof by the SELLER.

11.3     The SELLER will be responsible for the costs of transfer of the shares into the name of the BUYER or nominated person/entity.

 

12.      VALUE RECEIVED

12.1     The BUYER acknowledges and confirms that should he fail to comply with this obligations, the SELLER will have a liquidated claim for value received by the BUYER.

 

13.       JURISDICTION AND ADDRESS FOR DELIVERY OF DOCUMENTS

13.1     The parties hereto agree to the jurisdiction of the Lower Court in respect of any lawsuit rising from this agreement, or at the discretion of the SELLER, to the jurisdiction of the North Gauteng High Court Pretoria or South Gauteng High Court Johannesburg, and the parties choose the addresses as indicated herein as their domicilium citandi et executandi (address where they will receive all letters and processes) for the purposes of delivery of all notices and documents.

 

14.       FINANCIAL INTELLIGENCE CENTRE ACT (“FICA”)

14.1     It is acknowledged that the Conveyancer is designated as an “accountable institution” in terms of FICA.

14.2     Both the SELLER(S) and the BUYER agree to comply with all the FICA requirements of the AUCTIONEER and the Conveyancer and to supply the AUCTIONEER and the Conveyancer with all their respective FICA requirements within three days after demand therefore is made.

14.3     The SELLER(S) and the BUYER acknowledge that FICA prohibits the Conveyancer to invest and administer any deposits or any other monies paid in terms of this agreement, unless the SELLER(S) and the BUYER have provided the documentation and information as required by FICA legislation.

14.4     It is hereby agreed by both the SELLER(S) and the BUYER that neither the AUCTIONEER nor the Conveyancer shall be liable for any loss or damage suffered by either of them, as a result of either the SELLER(S) or the BUYER failing to comply with the provisions of this Clause 14.

 

15.       MATRIMONIAL PROPERTY ACT

To the extent that it is necessary, the BUYER hereby warrants that all written consents as required by the Matrimonial Property Act, No. 88 of 1984 in respect of this agreement or any matters arising therefrom or in terms hereof have been duly given as required.

 

16.       AMENDMENTS AND ADDITIONS

16.1     The terms and conditions of this agreement shall constitute the sole agreement between the parties concerned and no variation or amendment thereto shall be binding unless agreed upon in writing and signed by the SELLER and BUYER.

 

17.      WAIVER AND CONCESSION

18.1     Any waiver or concession made or allowed by the SELLER shall not constitute a waiver of his rights in terms of this agreement; and the SELLER shall at all times be entitled to enforce strict compliance hereof.

 

17.       SALE OBJECT

17.1     100% Shareholding in SANDFORD ESTATESMEADOW STAR 28 (PTY) LTD, REGISTRATION NUMBER: 1991/006152002/003794/07.