Agreement for the disposal of the property described as
(the “Property”)
entered into between
(Registration number :)
(the “Seller")
and
PUTPROP LIMITEDRegistration number: 1988/001085/06
(the“Purchaser")
TABLE OF CONTENTS
Clause Index Page No.
____________
1.Parties
2.Interpretation and preliminary
3.Introduction
4.Conditions precedent
5.Due Diligence
6.The sale
7.The purchase price
8.Delay in Transfer
9.VAT/Liability for VAT
10.Risk, Benefits and Delivery
11.Interim Period
12.Transfer and costs
13.Contracts
14.Warranties and undertakings
15.Municipal Credit
16.Adjustment Account
17.Certificates of compliance
18.Insolvency Act notice
19.Liabilities and Indemnities
20.Employees
21.Domicilium citandi et executandi
22.Agent’s commission
23.Consumer Protection Act
24.Breach
25.Expert Determination
26.Arbitration
27.Loss or Destruction
28.General
Annexure 1
- Parties
- The Parties to this Agreement are-
- PUTPROP LIMITED
- Interpretation and preliminary
The headings of the clauses in this Agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of this Agreement and they neither modify nor amplify the terms of or any clause of this Agreement. Unless a contrary intention clearly appears:
2.1.words importing:
2.1.1.any one gender include the other two genders;
2.1.2.the singular include the plural and vice versa; and
2.1.3.natural persons include created entities (corporate or un-incorporate) and vice versa;
2.2.the following terms shall have the meanings assigned to them in terms of this clause and cognate expressions shall have a corresponding meaning, namely:
2.2.1."AFSA” means the Arbitration Foundation of South Africa;
2.2.2.“Adjustment Account” means the adjustment account to be prepared by the Seller as at the Date of Transfer in accordance with clause 15(Municipal Credit);
2.2.3.“Agreement" means this agreement together with any schedules and annexuresto this Agreement;
2.2.4."Buildings" means the building and other improvements on the Property, including all Fixed Assets, (excluding any fixtures and fittings belonging to any tenant of a Building);
2.2.5."Business Day" means any day other than a Saturday, Sunday or gazetted national public holiday in the Republic of South Africa;
2.2.6.“Commitment Fee”means a commitment, reservation or holding fee as agreed to by the Parties payable by the Purchaser to the Seller or Conveyancer in cash in the amount of [NIL………] by no later than The Commitment Fee Payment Date. The Commitment Fee is a non- refundable fee payable by the Purchaser to the Seller in respect of consideration for the Seller holding/reserving the Property for the Purchaser pending Transfer. The Parties record as follows in respect of the Commitment Fee:
2.2.6.1.The Purchaser shall simultaneously with payment of the Commitment Fee furnish to the Conveyancer an instruction in terms whereof the Conveyancer will be authorised to :
2.2.6.1.1.invest the Commitment Fee in terms of the provisions of Section 78 (2) (A) of the Attorneys Act 53 of 1979;
2.2.6.1.2.make payment of the Commitment Fee, together with any interest accrued thereon, to the Seller in the event that transfer is not effected in accordance with the provisions of the Agreement for any reason whatsoever.
2.2.6.2.The Seller shall be entitled to retain the Commitment Fee the event that Transfer is not effected in accordance with the provisions of this Agreement, provided that such failure of Transfer is not occasioned by any negligent or wilful breach of this Agreement by the Seller.
2.2.6.3.Should Transfer be effected in accordance with the provisions of the Agreement, the Commitment Fee, together with interest accrued thereon, will be deducted from monies owing by the Purchaser to the Seller or Conveyancer as at the Date of Transfer.
2.2.7.“Commitment Fee Payment Date” means 24 (twenty four) hours from the fulfilment or waiver of the Condition Precedent contained in clause 4.1.1;
2.2.8.“Companies Act” means the Companies Act 71 of 2008, as amended;
2.2.9."Competition Act" means the Competition Act, No 89 of 1998;
2.2.10."Competition Authorities" means the commission established pursuant to Chapter 4, Part A of the Competition Act or the tribunal established pursuant to Chapter 4, Part B of the Competition Act or the appeal court established pursuant to Chapter 4, Part C of the Competition Act, as the case may be;
2.2.11.“Conditions Precedent” means the condition precedent set out in clause 4;
2.2.12.“Contracts"means, collectively, the agreements, if any, entered into by the Seller and/or its predecessors in title and third parties in respect of the Property including, but not limited to contracts in respect of cleaning, security, lift maintenance, garden maintenance, hygiene equipment,air conditioning, any management and administration agreements in respect of the Property and having full regard to the provisions of section 197 of the LRA;
2.2.13."Conveyancer"means Mrs. Erasmus of Couzyns Incorporated, address: 1st Floor, Rosebank Corner, 191 Jan Smuts Avenue, Rosebank, telephone number (011) 788-0188, who shall attend to the Transfer of the Property in accordance with this Agreement;
2.2.14.“Conveyancers Trust Account" means:
Cheque Account:
Institution
Branch: Account no.: Branch code.
2.2.15.“Council” means any relevant town, municipal, local or other authority or body which has jurisdiction over the Property;
2.2.16.“Date of Signature"or “Signature Date” means, when this Agreement has been signed by each Party (whether or not in counterpart) the latest of the date on which this Agreement (or any counterpart) was signed by any Party;
2.2.17."Date of Transfer"means the date of registration of transfer in respect of the Propertyinto the name of the Purchaser in accordance with the provisions of this Agreement and in terms of the relevant legislation and regulations and the practice and rules of the Deeds Office concerned, subject to the provisions of clause 4;(Conditions Precedent)
2.2.18."Deeds Office” means the relevant office of the Registrar of Deeds;
2.2.19.“Disposal" means the disposal that is the subject matter of this agreement;
2.2.20."Effective Date" means the first Business Day after the fulfilment or waiver (as the case may be) of the ConditionsPrecedent;
2.2.21.“Electrical Machine Regulations” means the Electrical Machinery Regulations, 2011 promulgated in terms of the Occupational Health and Safety Act No 85 of 1993;
2.2.22.“Employees” means employees of the Seller who are at the Date of Transfer employed in respect of the Enterprise and who will be transfer with the Enterprise in respect of the provisions of Section 197 of the Labour Relations Act; Purchaser
2.2.23.“Enterprise” means the letting enterprise conducted by the Seller in respect of the immovable Property as at the Date of transfer and which comprises of the immovable Property, the Buildings, the Fixed Assets, the Lease Agreements, movable Assets, the Contracts and specifically excludes the Liabilities of the Seller;
2.2.24.“Enterprise Assets” means all the assets owned by the Seller and used in or in connection with the Enterprise, including the Property, the Fixed Assets; the movable assets (excluding any movable assets belonging to a tenant of the Building or a financier of the tenant under a credit sale or similar agreement; and the Contracts);
2.2.25.““FICA” means the Financial Intelligence Centre Act 38 of 2001;
2.2.26.“Fixed Assets” means all/any fixed assets which are used in connection with or comprise part of the Enterprise as at the Date of Transfer, including all generators, access control systems (including any booms, if any), security systems (including cameras if any), air-conditioning units and garbage compaction units situated on the Property (other than those fixed assets which are in the possession and under the control of the tenants or specifically excluded from this Agreement in terms of Annexure hereto );
2.2.27.“Interim Period” means the period commencing on the Effective Date and terminating on the Date of Transfer;
2.2.28.“Lease Agreements” means the lease agreements in full force and effect on the Date of Transfer concluded between the Seller (or its predecessors in title) as landlord and the tenants of the Leased Premises;
2.2.29.“Leased Premises” means the various shops, showrooms, offices and other lettable areas in the Building, including parking areas;
2.2.30.“Longstop Date” means180(one hundred eighty)days from the date of signature;
2.2.31.“LRA” means the Labour Relations Act 66 of 1995 as amended from time to time;
2.2.32."Ordinary Course of Business" means any transaction involving the Enterprise, in the ordinary course of business, as conducted by the Seller in accordance with past practice and undertaken by the Seller in good faith and which does not impair the value of the enterprise;
2.2.33.“Parties" means the Purchaser and the Seller, and the word "party" shall refer to either one of them as the context requires;
2.2.34."Prime Interest Rate"means the rate of interest which the Standard Bank of South Africa from time to time quotes as being its prime rate (expressed as a nominal annual compounded monthly in arrear rate), calculated daily on the basis of a 365-day year factor, irrespective of whether or not the year is a leap year or not, as certified (save for manifest error) by any manager of such bank, whose appointment or authority need not be proved;
2.2.35."Property” means the immovable property/each of the immovable properties owned by the Seller, and all improvements thereof, on which the Enterprises are conducted, which Properties are described and designated in the Schedule, and where more than one Property is so referred to and should the context so require, it shall constitute a reference to each of such properties, and “Property” refers to any one of them
2.2.36.“Provisional Site Valuation Roll” means a legal document which consists of property information of all rateable properties within the boundaries of the municipality in question;
2.2.37.“Purchase Price"means the purchase price payable for the Property as set out in clause 7(Purchase Price)
2.2.38.“Purchase Price Adjustment Account” means the adjustment account pertaining to the Purchase Price as at the Date of Transfer to be prepared by the Conveyancer in terms of clause 7.26.3;
2.2.39.“Purchaser” means[PUTPROP LIMITED……………………………….], Registration number [1988/001085/06………………………]a [LISTED PROPERTY ENTITY……………]duly registered in accordance with the Company laws of the Republic of South Africa, having its principal registered office at[91 PROTEA ROAD CHISLEHURSTON SANDTON 2196………………………….];
2.2.40.“Schedule” means the schedule contained in Annexure 1
2.2.41.“Seller”means FirstRand Bank Limited (acting through its First National Bank Division) with registration number 1929/001225/06 in its capacity as Trustee for the Fountainhead Property Trust Scheme, a Collective Investment Scheme in property;
2.2.42.“Surviving Provisions” notwithstanding4(Conditions precedent), the provisions of clauses 2 (Interpretation and Preliminary);21(Domicilium citandi et executandi);22(Agent’s Commission);24(Breach);26 (Arbitration);27 (Loss or Destruction) ;28 (General) and any other provisions of this Agreement which are expressed to continue in force after termination or which by necessary implication must continue after termination shall come into force and effect on the Date of Signature and shall bind the Parties. The remainder of this Agreement shall come into force and effect on the Effective Date;
2.2.43.“Transaction” means the purchase of the Property/Propertiesby the Purchaser from the Seller on the basis set out in this Agreement;
2.2.44.“Transfer” means registration of transfer of the Property into the name of the Purchaser;
2.2.45.“Valuation Board Hearings” means the hearings conducted by a board consisting of municipal valuers to consider objections received in respect of the valuation roll;
2.2.46.“VAT"means value-added tax levied in terms of the VAT Act; and
2.2.47."VAT Act" means the Value-added Tax Act 89 of 1991.
2.3.Any reference to-
2.3.1.the singular includes the plural and vice versa;
2.3.2.natural persons include juristic persons and vice versa;
2.3.3.any one sex or gender includes the other sexes or genders, as the case may be;
2.3.4.any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, order or any other enactment or legislative measure of government (including local or provincial government) statutory or regulatory body which has the force of law means the relevant enactment or legislative measure as at the signature date and as amended or re-enacted from time to time;
2.3.5.a party includes a reference to that party’s estate, successors in title and assigns allowed at law; and
2.3.6."business day" means any day other than a Saturday, Sunday or South African public holiday;
2.3.7."calendar month" means one of the 12 months of the year from the 1st to the last day of such month;
2.3.8."day" means a calendar day;
2.3.9."month" means a month calculated from a particular day in one month to the day before the day numerically corresponding to it in the following month;
2.3.10."year" means a year calculated from a particular day in one year to the day before the day numerically corresponding to it in the following year;
2.4.whenever any number of days is prescribed, it excludes the first and includes the last day unless the last day falls on a Saturday, Sunday or South African public holiday in which case the last day will be the next succeeding business day.
2.5.the words “shall” and “will” and “must” used in the context of any obligation or restriction imposed on a party have the same meaning.
2.6.the clause headings in this agreement have been inserted for convenience only and shall not be taken into account in its interpretation.
2.7.Words and expressions defined in any sub-clause shall, for the purpose of the clause of which that sub-clause forms part, bear the meaning assigned to such words and expressions in that sub-clause.
2.8.“law” shall mean any law (including common law or customary law) or statute, constitution, decree, judgement, ruling, treaty, regulation, rule, directive, by-law, order or any other legislative measure of any government, supranational, local government, statutory or regulatory body or court to which the parties, the property, the transaction or this agreement are subject.
2.9.if any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, effect shall be given to that provision as if it were a substantive clause in the body of the agreement, notwithstanding that it is only contained in the interpretation clause.
2.10.“material” and “materially” shall mean, when used as an adjective in conjunction with an event, condition, circumstance, effect, or other item, that there is a substantial likelihood that a reasonable expert would attach importance to the event, condition, circumstance, effect or item in evaluating the party to which it relates and the transaction.
2.11.if any period is referred to in this agreement by way of a reference to a number of days or weeks or months or other intervals, the period shall be reckoned exclusively of the 1st day and inclusively of the last day of the relevant interval, unless the last day falls on a day which is not a business day, in which case the last day shall be the next succeeding business day.
2.12.if the due date for performance of any obligation in terms of this agreement is a day which is not a business day then (unless otherwise stipulated) the due date for performance of the relevant obligation shall be the immediately succeeding business day.
2.13.if any obligation or act is required to be performed on a particular day it shall be performed (unless otherwise stipulated) by 23h55 (local time at the place where the obligation or act is required to be performed) on that day.
2.14.this agreement shall be governed, interpreted and enforced in accordance with the laws of the Republic Of South Africa from time to time.
2.15.no provision of this agreement shall (unless otherwise stipulated) constitute a stipulation for the benefit of any person (stipulatio alteri) who is not a party to this agreement.
2.16.the rule of construction that this agreement shall be interpreted against the party responsible for the drafting of this agreement, shall not apply.
2.17.the terms defined in this agreement shall bear the same meanings in any annexures hereto.
- Introduction
- The Seller is the owner of the Property.
- The Purchaseris willing to acquire the Property from the Seller and the Selleris willingto sell the Property to the Purchaser.
- The Agreement between the Parties is recorded in this document.
- Conditions precedent
- This Agreement, save for the provisions of this clause and the Surviving Provisions which shall be of immediate effect, is subject to and conditional upon the fulfilment (or waiver, where appropriate) of the following conditions precedent namely:
- by no later than 8 August 2014the Purchaser shall furnish the Seller with written proof of finance approval in respect of the Purchase Price. Such finance approval shall be obtained from a bank or financial institute approved by the Seller and on terms and conditions reasonably acceptable to the Seller;
- the Seller shall furnish the Purchaser with written notice of the securing of the approval of the Seller’s Board, to the conclusion and implementation of this Agreement within 14 (ten) days of the fulfilment of the Condition Precedent contained in clause 4.1.1 above;
- the procurement of letters from First Rand Bank in its capacity as trustee of the Seller recording the approval of the execution and performance by the Purchaser of this Agreement and all transaction contemplated herein within 7(seven) days of the fulfilment or waiver of conditions precedent contained in clause 4.1.3 above, and
- The Purchaser shall, within 5 (five) business days of fulfilment of the provision of clause 4.1.1 furnish to the Seller a
- resolution confirming its authority to enter into this Transaction and
- any such other resolutions as may be required under its memorandum of incorporation or any other constitutional document of the Purchaser
- to the extent required, unconditional approval (or approval on conditions reasonably acceptable to the seller and the purchaser, provided that if the approval is given subject to conditions imposed on either of the seller or the purchaser, this condition shall be deemed to not have been fulfilled unless and until the party against which such conditions are imposed has given written notice to the other parties of its acceptance of such conditions within a period of 7 (seven) days immediately after receipt of such conditional approval from the Competition Authorities) of the Competition Authorities to the purchaser’s acquisition of the seller's ownership interest within 90 (ninety) days of the date of signature, provided that the period for fulfilment of this condition shall be automatically extended by up to 30 (thirty) days if a delay in obtaining the approval arises through no fault of the parties
- The Parties may agree, jointly and in writing, to extend the dates by which a Condition Precedent is to be fulfilled or waived in accordance with this Agreement;
- If the Conditions Precedent havenot been fulfilled or waived (as the case may be) on or before the dates specified in clause 4.1. above or any extended period in terms of clause 3.2 above, then:-
- this Agreement, other than the Surviving Provisions, shall be of no further force or effect; and
- no Party shall have any claim against the other Party arising out of or in connection with this Agreement and the Surviving Provisions and to the extent that this Agreement can be partially implemented, the Parties shall be restored to their status quo ante.
- Due Diligence
5.1The purchaser has conducted and has completed a due diligence investigation of the enterprise and hereby records its satisfaction with the outcome of the said due diligence investigation.