Conditions of Sale of Agricultural Property
SALE AGREEMENT
Entered into by and between
LANDHOUSE (PROPRIETARY) LIMITED
(the “AGENT”)
And
ARBOR TRUCKING (PTY) LTD
(“Arbor”)
And
BLINKWATER 604 (PTY) LTD
(“Blinkwater”)
And
KWALATA WILDERNESS CC
(“Kwalata”)
And
THE ENTITY / PERSON WHOSE PARTICULARS APPEAR
IN SCHEDULE 1 TO THIS AGREEMENT
(the “PURCHASER”)
- RECITALS
1.1Arbor is the registered owner of the Arbor Properties.
1.2Blinkwater is the registered owner of the Blinkwater Property.
1.3Kwalata operates the Business and is the owner of the Kwalata Sale Assets.
1.4The Purchaser wishes to acquire the Business and the Properties in one indivisibly linked transaction.
1.5Accordingly the Parties have agreed to enter into this Agreement to record the terms of their agreement and to regulate the linkedsale transaction,as set forth hereunder.
2.DEFINITIONS AND INTERPRETATION
2.1The following terms shall, unless otherwise specified or the context clearly indicates a contrary intention, have the following meanings in this Agreement:
2.1.1“Auction” means any private treaty or auction sale at which a lot is offered for sale by the Agent, being open for acceptance by the Seller or by the Agent on behalf of the Seller until 18h00 on the date stipulated in Schedule “1” to this agreement (confirmation period).
2.1.2“Auctioneer” means the representative of the Agent, conducting an auction.
2.1.3“Prime Rate” means the prime bank overdraft rate of interest charged and calculated by First National Bank for the time being to its first class corporate customers in the private sector in respect of loan facilities, compounded monthly in arrears, as certified by any manager of such a bank, whose appointment and authority shall not be necessary to prove and which certificate shall be prima facie proof of such rate.
2.1.4“Private Treaty” means the sale of any lot other than by auction sale at a price privately agreed on by the Purchaser and the Seller.
2.1.5“Stock Schedule” means the stock listed in listed in Schedule “2” hereto.
2.1.6“Purchase Price” means the bid or offer made by the Purchaser for any lot (it being noted that the Sale Assets will be auctioned off as on lot) that is finally accepted by the Auctioneer (after determination by the Auctioneer of any dispute that may exist in respect thereof) at a sale of that lot, plus commission payable to the Agent and VAT / transfer duty (if any).The Purchase Price shall consequently be the amount as set out in Schedule “1” plus commission payable to the Agent and VAT / transfer duty (if any).
2.1.7“Purchaser” means the bidder who makes the bid or offer for any lot that is finally accepted by the Auctioneer (after determination by the Auctioneer of any dispute that may exist in respect thereof) at a sale of that lot and where the Purchaser is an agent acting on behalf of the Principal, the Purchaser and the Purchaser’s Principal jointly and severally. The Purchaser shall consequently be the person / entity, as described in Schedule “1”.
2.1.8“Sale” means the sale of any lot at an auction whether done by private treaty or auction sale, and “Sell” and “Sold” shall have corresponding meanings.
2.1.9“Vat” means value added tax levied in terms of the Value Added Tax Act 89 of 1991.
2.1.10“Arbor” means ARBOR TRUCKING (PTY) LTD (Registration Number: 1983/02069/07).
2.1.11“ArborProperties”: means –
Farm Akkervlyt 632;
Registration Division LR Province of Limpopo;
Measuring: 1545,8732 ha (One Five Four Five Comma Eight Seven Three Two) hectares in extent;
Held by Deed of Transfer No T61265/1989;
Together with all structures and buildings thereon and all fixed and other accessories of a permanent nature.
And
Farm Bouwland 603;
Registration Division LR Province of Limpopo;
Measuring: 1316,5597 ha (One Three One Six Comma Five Five Nine Seven) hectares in extent;
Held by Deed of Transfer No T61265/1989;
Together with all structures and buildings thereon and all fixed and other accessories of a permanent nature.
And
The Remaining Extent of Portion 7 of the Farm New Belgium 608;
Registration Division LR Province of Limpopo;
Measuring: 1208,0465 (One Two Zero Eight Comma Zero Four Six Five) hectares in extent;
Held by Deed of Transfer No T75553/1989;
Together with all structures and buildings thereon and all fixed and other accessories of a permanent nature.
2.1.12“Blinkwater” means BLINKWATER 604 (PTY) LTD (Registration Number: 1999/019658/07).
2.1.13“Blinkwater Property” means –
Farm Blinkwater 604;
Registration Division LR Province of Limpopo;
Measuring: 1750,8727 (One Seven Five Zero Comma Eight Seven Two Seven) hectares in extent;
Held by Deed of Transfer No T48813/1988;
Together with all structures and buildings thereon and all fixed and other accessories of a permanent nature.
2.1.14“Kwalata” means KWALATA WILDERNESS CC (Registration Number: 2004/061510/23).
2.1.15“Kwalata Business”means the business of a game lodge which the Seller conducts on the Properties under the name and style of Kwalata Wilderness, which includes the Kwalata Sale Assets.
2.1.16“Kwalata Sale Assets” means –
2.1.16.1the goodwill of the Business; and
2.1.16.2the trade name of the Business; and
2.1.16.3the website and logo of Kwalata;
2.1.16.4the Movable Assets; and
2.1.16.5the Stock-In-Trade; and
2.1.16.6the Existing Agreements; and
2.1.16.7the Lease; and
2.1.16.8 the Employees.
2.1.17“Sellers” means Arbor, Blinkwater and Kwalata collectively.
2.1.18“Existing Agreements” means the existing agreements entered into by Kwalata in relation to the operation of the Business.
2.1.19“Movable Assets” means all fixtures, fittings, furniture, equipment, machinery, assets and the like utilized by Kwalata in conducting the Business which is limited to the items listed in Schedule “7”.
2.1.20“Lease” means the lease entered into between the Lessors and the Seller, in terms of which Kwalata leases the Properties for purposes of conducting the Business
2.1.21“Stock-In-Trade” meansthe stock-in-trade of the Business, being game and Big 5 animals, listed in in the Stock Schedule.
2.1.22“Lessors” means Arbor and Blinkwater collectively.
2.1.23“Properties” means the Arbor Properties and the Blinkwater Property collectively.
2.1.24“Parties” means Arbor, Blinkwater, Kwalata and the Purchaser collectively and the term “Party” shall mean any one of them (as the context requires).
2.1.25“Agreement” means this linked sale agreement between the Parties and all annexures, schedules and addendums hereto.
2.1.26“Sale Assets” means the Kwalata Business and the Properties collectively.
2.1.27“Attorneys” means Delport van den Berg Inc. (012361 5001).
2.1.28“Signature Date” means the date on which the Sellers and / or the Agent (as the case may be) signs this Agreement as contemplated in clause 5.2 below.
2.1.29“Employees” means the employees, employed by Kwalata, in respect of the
Kwalata Business, listed in Schedule “8” hereto.
2.1.30“Transfer Date” means the date that coincides with registration of transfer of the Properties into the name of the Purchaser.
2.1.31“SARS” means the South African Revenue Service.
2.2If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the agreement.
2.3When any number of days is prescribed in this agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on Saturday, Sunday or public holiday, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday.
2.4The expiration or termination of this agreement shall not affect such of the provisions of this agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
2.5The interpretation of this agreement and the rights, duties and obligations of the parties shall be governed by and be construed in accordance with the laws of the Republic of South Africa, regardless of the place of execution or the performance of the parties’ respective obligations under this agreement or otherwise.
2.6Reference to a party includes that party’s successors-in-title and permitted assigns.
2.7In this agreement, unless the context clearly indicates another intention:
2.7.1reference to one gender includes all other genders;
2.7.2reference to the singular includes the plural and vice versa;
2.7.3reference to a clause, schedule or party is reference to a clause of or a schedule or party to this agreement;
2.7.4obligations undertaken by more than a single person or company are joint and several obligations;
2.7.5reference to a statutory provision is a reference to that provision as modified or re-enacted or both from time to time and to any subordinate legislation made under the statutory provision;
2.7.6reference to a document is a reference to that document as from time to time supplemented or varied;
2.7.7reference to writing includes fax, electronic mail and similar means of communication;
2.7.8any reference to a person includes natural persons and partnerships, firms and other incorporated bodies, corporate bodies and all other legal persons of whatever kind and however constituted.
2.8The rule of construction that this Agreement shall be interpreted against the Party responsible for the drafting or preparation of this Agreement, shall not apply.
2.9When any number of days is prescribed in this Agreement, same shall (unless otherwise stated) be reckoned exclusively of the first and inclusively of the last day, unless the last day falls on a day other than a Business Day (any day other than a Saturday, Sunday or public holiday in the Republic of South Africa), in which case the last day shall be the immediately following Business Day.
3.PURCHASE AND SALE
3.1The Sellers hereby, with effect from the Signature Date, sell to the Purchaser, who hereby purchases the Sale Assets in one indivisibly linked transaction. Accordingly, the Properties and the Kwalata Business is sold as one simultaneous linked transaction and cannot be sold or acquired separately.
3.2The Properties shall include:
3.2.1the Properties,together with all improvements thereon.
3.3The Business shall include:
3.3.1the Kwalata Sale Assets
3.4Transfer of the Sale Assets will, subject to acceptance in terms of clause 5.2, take place on the Transfer Date, from which date all risks and benefits attaching to the Sale Assets will pass to the Purchaser.
4.PURCHASE PRICE
4.1The Purchase Price for the Sale Assets, shall be the price as stipulated in Schedule “1” and is illustrated exclusive of Value-Added Tax ("VAT") and/or transfer duties (whichever is applicable), which further amounts will be payable by the Purchaser. The Purchaser Price will be allocated as follows –
4.1.132,73% (thirty two comma seventy three percent) of the Purchase Price will be allocated to the Kwalata Business, in the following proportions –
4.1.1.127,78% (twenty seven comma seventy eight percent) to the Movable Assets; and
4.1.1.172,22% (seventy two comma twenty two percent) to the Stock-In-Trade; and
4.1.267,27% (sixty seven comma twenty seven percent) of the Purchase Price will be allocated to the Properties, in the following proportions –
4.1.2.170% (seventy percent) to the Arbor Properties, in the following proportions –
4.1.2.1.137,99% (thirty seven comma ninety nine percent) for the Farm Akkervlyt 632; and
4.1.2.1.232,33% (thirty two comma thirty three percent) for the Farm Bouwland 603; and
4.1.2.1.329,68% (twenty nine comma sixty eight percent) for the Remaining Extent of Portion 7 of the Farm New Belgium 608.
4.1.2.230% (thirty percent) to the Blinkwater Property.
The Purchase Price shall be paid as follows:
4.2A deposit of 10% (ten percent) of the Purchase Price to the Attorneys (exclusive of VAT and/or transfer duty), by the Purchaser,immediately on the Signature Date.
4.3The Purchaser’s signature hereto shall constitute the Purchaser’s written consent to authorise the Attorneys to invest all amounts paid on account of the Purchase Price in an interest bearing account, in terms of section 78(2A) of the Attorneys Act 53 of 1979, with a bank of the Attorneys’ choice. The interest shall accrue to Purchaser.Should the Agreement become terminated for any reason whatsoever, then the Sellers’ will be entitled to deduct all their respective expenses, costs and damages from the deposit and retain the remaining balance as rouwkoop or as a genuine pre-estimate of damage suffered by the Sellers. The Purchaser irrevocably authorizes the Attorneys to release payment of the deposit, as provided for in this clause.
4.4The Sellers and/or the Agent will instruct the Attorneys to determine the VAT and transfer duty amounts payable to SARS in respect of the sale of the Sale Assets, and to notify the Purchaser thereof within 14 (fourteen) days of the Signature Date.
4.5The Purchaser will, within 45 (forty five) days of the Signature Date, pay the balance of the Purchase Price including the VAT and transfer duty provided for in clause 4.4 above, either by –
4.5.1paying the entire amount in cash to the Attorneys; or
4.5.2delivering, to the satisfaction of the Sellers, a written guarantee from a registered financial institution in the Republic of South Africa, payable free of exchange, against registration of transfer of the Properties into the Purchaser’s name.
4.6All monies due by the Purchaser in terms of this Agreement, and unpaid on due date, shall bear interest at the rate of 2% (two percentum) above the Prime Rate, per month, calculated from the due date of payment to the actual date of payment thereof, (both days inclusive).
5.ACCEPTANCE AND CONFIRMATION
5.1By signing this Agreement at the end thereof, the Purchaser offers to purchase the Sale Assets on the terms and conditions contained herein and the Purchaser’s offer shall remain open for acceptance by the Sellers or by the Agent on behalf of the Sellers, until 18H00 on the date specified in Schedule “1” (“Confirmation Period”). The Purchaser and the Agent acknowledge and agree that this provision is inserted and intended for the benefit of the Sellers.
5.2The Purchaser’s offer shall be deemed to have been accepted only when the Sellershave signed thisAgreement in the space provided at the end thereof and the Sellers shall notify the Purchaser of the acceptance or rejection of its offer within 48 (forty eight)hours after the Confirmation Period.
5.3Should the Sellers reject the Purchaser’s offer, the Agent and / or Attorneys (as the case may be) will repay to the Purchaser any deposit and commission paid to it in terms of this Agreement.
5.4In the event of the sale requiring the consent of any statutory authority or any court of law, then this sale is subject to the granting of such consent.
6.VALUE ADDED TAX
6.1The Purchase Price is exclusive of VAT or transfer duties.
6.2Subject to clause 4, VAT or transfer duties (whichever is applicable) being payable on the Purchase Price as a result of the sale of the Sale Assets, shall be paid by the Purchaser to the attorneys, nominated in the sale agreement immediately on demand.
6.3In the event of the rate at which VAT (or transfer duties) is chargeable, being amended after the date of signature hereof by the Purchaser and in circumstances in which the amended rate will apply to this transaction, then the amount due shall be adjusted accordingly, the intention being that the Sellers shall receive and retain the same amount after payment, regardless of the rate at which VAT (or transfer duties) is payable.
7.AGENT'S COMMISSION
7.1The Purchasershall be liable for and pay, in addition to the amounts payable in terms of clauses 4 and 6, Agent’s commission of 5% (fivepercent) of the Purchase Price, plus VAT thereon,(“Agent’s Commission”) which commission shall be deemed to have been earned and is payable immediately upon the Seller signing acceptance of the Purchaser’sOffer in terms hereof. Such commission, as aforesaid, is payable by the Purchaser.
7.2If commission is not paid by the Purchaser to the Agent in terms hereof for any reason whatsoever, then the Sale Assets will not be transferred to the Sellers until the commission has been paid to the Agent. Notwithstanding the aforementioned, should registration of the Properties and/or the transfer of the Kwalata Business not take place, for any reason whatsoever, then the Sellers will not be liable for payment of any commission to the Agent.
7.3The Purchaser shall be liable to pay to the Agent, upon demand, a fee equal to any bank charges that the Agent may become liable for upon payment of the Agent’s commission into the Agent’s chosen bank account.
7.4The provisions of this clause are inserted and intended for the benefit of the Agent who by his signature hereto, accepts such benefit.
8.OCCUPATION
8.1Occupation of the Properties will be given to the Purchaser on the Transfer Date (i.e. registration of transfer of the Properties into the name of the Purchaser), from such date all risk and benefit in respect of the Properties will pass to the Purchaser.
8.2Subject to the Parties agreeing so in writing, should the Purchaser take possession of the Properties prior to registration of transfer, the Purchaser shall pay occupational interest to Arbor and Blinkwater, as stipulated in Schedule “1”. Occupational interest is payable in advance on the first day of every month, from date of possession until date of transfer, both days inclusive, payable directly to the Attorneys (reduced pro rata for any period less than a month).
9.APPORTIONMENT / PREPAYMENT
9.1All periodical charges and outgoings relating to the Sale Assets, including, but not limited to rent, rates, taxes, gas, electricity, water, telephone charges, licence fees and all liabilities in relation to salaries, wages, leave pay, insurance contributions and all other payments to or in respect of the Sale Assets, shall be apportioned on a time basis so that such part of the relevant charges attributable to the period prior to the Transfer Date shall be borne by the Sellers and such part of the relevant charges to the period following the Transfer Date shall be borne by the Purchaser. Rent, license fees, royalties or any other similar sums receivable in respect of the Sale Assets, shall be apportioned between the Sellers and the Purchaser on like terms.
9.2A statement indicating the net amount (if any) payable by or to the Sellers under this clause, shall be agreed upon between the Parties within 5 (five) days after the Transfer Date and failing such agreement shall be ascertained and certified by an independent firm of chartered accountants, agreed upon between the parties or failing agreement, appointed by the Independent Regulatory Board for Auditors, South Africa.The costs of the independent accountant shall be borne equally by the Parties.