1 1 Exclusive Use Areas/Parking Bays Floor Plans Elevations & Sections Finishes Schedule Body Corporate Conduct Rules See Annexure A1 See Annexure A2 See Annexure A3 See Annexure B See Annexure C AGREEMENT OF SALE SECTIONAL TITLE SCHEME 360 Degrees 1. THE SELLER Full Name The Seller hereby sells the property to the Purchaser who hereby purchases the property in accordance with the particulars and upon the terms and conditions contained in the schedule of particulars and the standard terms and conditions set out hereafter. Identity Number Marital status Physical address: Postal address: Telephone No: (w) Facsimile No: Cell No: Date and Country of Marriage Antenuptial contract No. Muslim Rites
2 2 LEGAL ENTITY Full Name of representative Reg No. Capacity Business address: Postal address: Telephone No: (w) Facsimile No: Cell No: 2. THE PURCHASER Full Name Identity Number Marital status Physical address: Postal address: Telephone No: (w) Facsimile No: Cell No: Date and Country of Marriage Antenuptial contract No. Muslim Rites LEGAL ENTITY Full Name of representative Reg No. Capacity Business address: Postal address:
3 3 Telephone No: (w) Facsimile No: Cell No: 3. OFFER TO PURCHASE THE PROPERTY The Seller sells and the Purchaser purchases the following property and exclusive use area(s) in the development which property is further identified in the plans annexed hereto. The Purchaser is aware of the fact that the Seller has purchased the property off plan from the Developer and the development is still to be completed. Flat/Unit Number Parking Bay number (Hereinafter referred together i.e. the Units/parking bay/s and exclusive use areas referred to as the Property ) 4. PURCHASE PRICE Total Purchase Price (inclusive of VAT if applicable) Less: 10% deposit Balance of Purchase Price R R R 5. THE DEVELOPER 5.1. The Developer is the owner of REMAINING EXTENT OF ERF CAPE TOWN, Situated at Bromwell Street, Cape Town (Hereinafter referred to as the land) 5.2. The Developer intends establishing a Sectional Title Scheme, which shall comprise of Residential Accommodation in respect of such land and buildings erected and to be extended on the land, consisting as follows: 1) ground floor and first floor consisting of parking bays and laundry facilities 2) second floor to the sixth floor consisting of 72 residential units. 3) Seventh floor / roof deck with a pool and other lifestyle amenities as more fully set out on the annexed plans attached hereto.
4 The Developer is proposing a development of the aforesaid Sectional Title Scheme substantially in accordance with the plans and specification schedules referred to in clause 5 ( hereinafter referred to as the Development ); 5.4. The Developer will commence with the construction of the building or buildings subsequent to compliance with the following conditions, namely: that the building plans are approved by the relevant local authority; that the sectional title plans are approved by the Surveyor General; that upon compliance of the aforesaid conditions, the Developer will continue to open the sectional title scheme in respect of the building or buildings and give transfer of the relevant units to the purchasers thereof; 1. DEFINITION AND INTERPRETATION For the purpose of this Agreement, unless the context indicates otherwise: The Act or Sectional Titles Act means the Sectional Titles Act No. 95 of 1986 or any amendments thereof, and regulations promulgated in terms thereof. Architect Metropolis Architects or such other architects as appointed by the Developer to act as such from time to time in respect of the development scheme or a member of a firm so appointed. Beneficial Occupation means the date upon which the unit is available for beneficial occupation. Body Corporate means a Body Corporate as defined in the Act, which, upon incorporation, will be the controlling body of the land and buildings in terms of the Act. Buildings means the buildings erected or to be erected on the land reflected on the annexures. Common Property means those portions of land not forming part of any section, (and/or exclusive use area) in the development and constituted as common property in terms of the Act. Conveyancers means Gunter & Associates, 45 Buitengragt Street, Cape Town, 8000: Contact Persons : Maree Littleford ( )Chrizenda
5 5 Gunter: fax: Exclusive Use Areas means that as defined in the Act. Land Surveyor Arvin Bhawan Surveyors appointed by the Developer, to act as such from time to time in respect of the development scheme or a member of a firm so appointed. The Land means the Remaining Extent of Erf Cape Town, In the City of Cape Town, Cape Division, Province of the Western Cape. the Occupation Date means the date upon which the Unit/or exclusive use area is available for beneficial occupation and in respect of which the PURCHASER is given notice. Participation Quota means in relation to a section, the decimal fraction allocated thereto in the Sectional Plan and which is calculated in terms of Section 32(1) of the Act. the Plans means Achitects/Designers Plans as annexed hereto. the Developer for the purposes of this agreement shall mean BEST VEST 153 (PROPRIETARY) LIMITED, its successors in title or assigns. the PURCHASER means the PURCHASER described in Clause 2 above and his successors in title, heirs, executors, administrators or assigns. Quantity Surveyor means L2K Quantity Surveyors appointed by the Developer, to act as such from time to time in respect of the development scheme or a member of a firm so appointed. Rules means the Conduct and Management Rules as prescribed by the said Act as may be amended by the developer. Scheme means the land and buildings forming part of the Sectional Title Scheme to be established on the land reflected in the annexures. Section or Unit means the meanings defined in the Act, and with particular reference to this Agreement shall mean that section forming part of that Unit (the Unit includes an undivided share in the common property) which is sold and is to be transferred in terms of this Agreement notwithstanding that the Sectional Plan relating thereto may not yet be approved or registered. Sectional Plan means a draft Sectional Plan and/or Sectional Plan approved by the Surveyor-General. the Seller means the SELLER described in clause 1 and its his successors in title, heirs, executors, administrators or assigns.
6 6 Words and expressions defined in the Act shall have the meanings therein defined and pending the registration of the Sectional Plan in respect of the SELLER S property, shall apply mutatis mutandis to the area of which the Unit comprises. Unless the context indicates otherwise, words in this Agreement importing any one gender shall include the other two, and words importing the singular shall include the plural and vice versa. The head notes to the clauses in this Agreement are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate. The provisions of the recordal and annexures to this Agreement shall be deemed to be incorporated in and form part of this Agreement. The Purchaser confirms that he has chosen English as the language of this Agreement. If any provision of this Agreement is in conflict or inconsistent with law, the invalidity of any such provision shall not affect the validity of the remainder of the provisions hereof. Where figures are referred to in words and in numerals, if there is any conflict between the two, the words shall prevail. When any number of days is prescribed in this Agreement, the same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or proclaimed public holiday in the Republic of South Africa, in which event the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday. 2. PURCHASE PRICE AND PAYMENT The Purchase price reflected in the schedule 4 above is payable as follows: 2.1. The PURCHASER shall pay R equal to 10% (ten percentum) of the purchase price. The deposit is payable within 3 (three) calendar days after signature of this agreement. In the event of the PURCHASER being a non-resident of the Republic of South Africa, such PURCHASER shall be obliged to pay a 20% (twenty percentum) deposit. The deposit will be paid into the trust account of the Conveyancers, the details of which are as follows: Bank: Standard Bank Account Name: GUNTER & ASSOCIATES Account Number: BRANCH CODE: reference: quote unit number)
7 Within twenty one (21) days of written request to the PURCHASER by the attorneys, the PURCHASER shall deliver to the attorneys a guarantee alternatively a written approval in terms acceptable to the SELLER provided by a registered South African Commercial Bank or other financial institution approved by the SELLER in its absolute discretion for payment of the balance of the purchase price against registration of transfer; provided that such request will only be made after the purchaser s bond is approved All payments to be effected to the attorneys unless otherwise required by the SELLER The Purchase price as payable per schedule 4 shall be paid in cash or bank guaranteed cheque and shall be held in trust by the SELLER S Conveyancers in an interest bearing account pending registration of transfer, for which investment this Agreement shall be sufficient authority. All interest earned on the deposit shall accrue to the PURCHASER. The deposit shall not be paid to the SELLER until registration of transfer, or until it shall become otherwise payable in terms hereof. It is recorded that payment of the deposit as aforementioned is a suspensive condition and that failure to pay the deposit within the said time period or within such extended period as the SELLER in its sole discretion may allow, the herein mentioned Agreement of Sale shall be null and void ab initio and of no force and effect whatsoever Withdrawal by a guarantor as aforesaid, for any reason whatsoever, shall constitute a breach by the PURCHASER of his obligation to deliver a guarantee in terms of this clause and in respect of which breach the SELLER shall not be required to give notice in terms of clause 17. The remedies as provided for in clause 15 shall be applicable. If the PURCHASER fails to effect payment of the purchase price against a tender of registration of transfer of the Unit and registration of cession of the exclusive use rights in his name (which payment shall be by way of a cheque negotiable upon presentation drawn by a South African commercial bank in favour of attorneys), the SELLER shall be entitled to either to terminate this Agreement or to require the PURCHASER to fulfil his obligations in terms of this Agreement The Conveyancers are irrevocably authorised to invest such deposit in an interest bearing account in terms of Section 78 (2) of the Attorneys Act No 53 of 1979, with a bank or other financial institution of their choice. All interest earned shall accrue to the PURCHASER pending registration of transfer. The PURCHASER hereby agrees to pay an administration fee levied by the said Conveyancers in respect of the said investment.
8 All payments shall be made to the Conveyancers and may be directly deposited into their Trust Account. In the event of such a direct deposit, confirmation thereof must be faxed to their offices. In the event of the PURCHASER failing to notify the Conveyancers of any deposit made, the Conveyancers shall not be liable to account for any loss in interest. 3. INTEREST 3.1. All monies payable by the PURCHASER in terms hereof which are unpaid on due date shall bear interest calculated from date to the actual date of payment at a rate of interest per annum equivalent to 3% (three percentum) above the prime rate on overdraft facilities being that rate charged by Standard Bank of South Africa Limited to its best customers in the private sector or unsecured loans from time to time. A certificate signed by the manager of any branch of the said bank shall be sufficient proof of the said prime rate charged from time to time All payments made by the PURCHASER shall be allocated first to the payment of interest, then to the payment of any other monies due in terms hereof and finally to the reduction of the purchase price. 4. COSTS The PURCHASER shall pay all transfer costs and costs incidental to transfer and bond registration (including VAT thereon), which amounts shall be paid immediately on request by the Conveyancers. 5. SECTIONAL PLAN 5.1. The PURCHASER acknowledges that the Sectional Plan has not yet been approved and that the exact boundaries of the section forming part of the Unit shall be those shown on the final approved Sectional Plan. The undivided share of the common property apportioned to the section shall be in accordance with the participation quota which is ultimately determined in terms of the Act upon approval and registration of the Sectional Plan The PURCHASER shall not be entitled to claim cancellation of this Agreement or any reduction in the purchase price by reason of any minor alteration to the number, size, location or participation quota of any section, or any increase in their number, to that shown on the plans annexed hereto. The PURCHASER undertakes to accept transfer of the Unit as may be re-defined and re-numbered in the Sectional Plan approved by the relevant local authority and the Surveyor-General. For purposes of clarity and good order, a minor alteration in size
9 9 shall be an increase or decrease in the area of the section or Unit not greater than 5% (five per centum) The Developer s land surveyor shall have the sole decision upon whether a deviation referred to in 5.2. above is minor and his decision shall be binding on all the parties The PURCHASER acknowledges that it may be necessary for the Developer to amend or change the design and/or layout of all or some of the Units. In the event of such changes being material, and the Architect in his sole discretion shall determine what is material, the PURCHASER shall be given 14(fourteen) days notice of such changes within which period he shall have the right to resile from the Agreement and the deposit refunded. Should such changes not be material, the PURCHASER acknowledges that he shall remain bound to the Agreement. 6. SECTIONAL TITLE/EXCLUSIVE USE AREAS 6.1. The PURCHASER acknowledges that it is not possible for the SELLER to effect transfer of the property until such time as the development is approved and the sectional title register opened. This sale is by sectional title and that the PURCHASER has satisfied his/her/itself regarding all rules, regulations, conditions and servitudes of whatever nature pertaining to the sale, ownership and use of the property The PURCHASER shall, subject to the rules of the scheme, be entitled to the exclusive use and enjoyment of the exclusive use areas, the rights to which are hereby sold and shall be ceded to the PURCHASER Units in the Sectional Title Scheme shall be sold and utilized for residential purposes only The Purchaser acknowledges that at the time of opening of the Sectional Title Register or transfer of the Unit into the name of the PURCHASER it may not be possible to simultaneously with transfer of the Unit cede all or any of the exclusive use areas purchased in terms hereof to the PURCHASER. Such exclusive use areas shall in such an event be ceded to the PURCHASER at a later date. 7. OCCUPATION/POSSESSION 7.1. The SELLER, shall upon receipt of notification from the Developer furnish the PURCHASER 30 (Thirty) working days written notice of the occupation date On or before the occupation date of which notice has been given to the PURCHASER, the Developer shall request the
10 10 architect to certify that the Unit is available for beneficial occupation. A certificate signed by the architect that the Unit is available for beneficial occupation shall be binding on both parties. Should the architect so certify prior to the occupation date of which the PURCHASER has been given notice, such occupation date of which notice has been given shall remain binding on the parties. Should the architect so certify on a date later than that of which notice has been given, such later date shall become the occupation date. The SELLER shall not be required to give a further 30(thirty) days notice of such later date; immediate notice to the PURCHASER shall be sufficient for such later date to become binding on the parties as to the occupation date The SELLER shall give, and the PURCHASER shall take vacant occupation on the occupation date. The failure on the part of the PURCHASER to take physical occupation (whether personally or by agent) or to accept the keys to the Unit shall not affect the occupation date, which shall remain as defined Occupation of the Unit and/or exclusive use area by the PURCHASER or anybody through the PURCHASER shall not create a tenancy, that is to say, in the event of this agreement being cancelled all rights to the occupation of the Unit and exclusive use areas shall lapse and the Unit and exclusive use areas shall be vacated forthwith Possession and therewith the risk and benefit of the Unit shall pass to the PURCHASER on occupation Occupation shall not be given to the PURCHASER in the event that he has not complied with all his obligations in terms of this Agreement. 8. BUILDINGS NOT YET ERECTED 8.1. It is recorded that the buildings have not yet been completed The PURCHASER acknowledges that the Developer has reserved the right to vary the details set out in the annexures hereto, to such extent as may be reasonably necessary to: meet any requirements of any competent authority meet any special features of the property meet any special impediments such as water, sewer or electrical lines either above or under ground or any rock or other soil condition.
11 give effect to any changes in materials, finishes or fittings which the Developer considers to be appropriate or which may not be readily available at the time due to shortage in supply of such materials, finishes or fittings, without however detracting from the quality of the buildings and/or Unit to obtain the approval of the sectional title development scheme and/or opening of the sectional title register. The Developer shall similarly be entitled to vary the number/s allocated to the section on the plan and the name of the development. In the event of a dispute arising in connection with any of the matters referred to in this clause 8.2. then the matter shall be referred to the architect for determination, whose determination shall be final and binding on the parties The PURCHASER acknowledges that, on the occupation date, the common property forming part of the buildings and the property, as well as other portions of the building may be incomplete and that occupants of the Unit may suffer inconvenience from the building operations and the PURCHASER further acknowledges that it shall have no claim whatsoever against the SELLER by reason of any such inconvenience. It is specifically recorded that the finishes to the Unit and the exclusive use areas are not necessarily the same as those of any show unit which has or may be erected or any other work of the SELLER which may contain decorations or non-standard items. 9. OCCUPATIONAL RENTAL From the occupation date until registration of transfer of the Unit and cession of the rights to any exclusive use areas where applicable, into the name of the PURCHASER, the first date inclusive, the second date exclusive, the PURCHASER shall pay occupational rental to the SELLER in the amount of 1% (one percentum) of the total purchase price as set out in clause 4 above. 11. LEVY/MANAGING AGENT From and including the date of occupation as aforesaid, the PURCHASER shall be liable to pay to the Body Corporate a monthly levy in advance (pro-rate in respect of any portion of a month) on the first day of each and every month, being a proportionate share of the total cost of managing, operating, administering, repairing, cleaning, securing and maintaining the
12 12 buildings and the property. The monthly levy shall be determined, initially by the Developer and thereafter by the Body Corporate on its establishment. Such monthly levy shall include, without limiting the following: Assessment Rates and Taxes, imposts and other charges payable to the local and other authorities; Deposits, consumption and other charges related to the supply of water, electrical power and other services to the Development by the relevant authorities and other service providers; Maintenance and upkeep of the Building, parking areas, perimeter walls, fencing, security system and other buildings, comprising the Development; Municipal services to the Development such as refuse removal, sewerage charges etc; Upkeep, maintenance and replacement of furniture and interior fittings of the buildings where such costs are related to normal wear and tear and cannot legally be recovered from the registered owners of the Units in the Development; Structural Insurance; Administration and management costs; Security; Clearing services; Salaries and wages; Office rentals, furniture, stationery and similar expenses incurred in respect of the functions, such as administrative, cleaning, security and garden services of all indoor plans and gardens Provision and maintenance of laundry facilities; The monthly levy shall be paid monthly in advance on the first day of each and every month and the PURCHASER shall be obliged to sign a debit order in favour of the Body Corporate when called upon to do so. 12. SPECIAL PROVISIONS PRIOR TO THE ESTABLISHMENT OF BODY CORPORATE AND/OR TRANSFER
13 13 It is recorded that the Body Corporate shall be deemed to be established on the registration of the first transfer in terms of Section 36 of the Sectional Titles Act No 95/1986. The PURCHASER agrees that: immediately on becoming the registered owner of the Property the PURCHASER will automatically become a member of the Body Corporate and will be and remain bound by its rules for so long as the PURCHASER is a registered owner should the PURCHASER sell the Property the PURCHASER will ensure that his/her/its PURCHASER is made fully aware of the existence of the Body Corporate and the fact that such successor PURCHASER will automatically become a member of the Body Corporate from the occupation date until the date of registration of transfer of the property into the name of the PURCHASER. The PURCHASER shall: keep the unit in good repair; permit the Developer or his agent at all reasonable times to enter and inspect the Unit; be responsible for all costs of electricity consumed in the Unit insofar as these may be separately metered; not make any alterations to the Unit, alter the colour scheme or redecorate, without the Developers s written consent first being had and obtained, which consent shall not be unreasonably withheld; Save insofar as may be inconsistent with the provisions of this Agreement, be responsible for all other obligations of an owner as set out in the Act Comply with all rules and regulations applicable to the property. 13. WARRANTIES AND CESSION The SELLER discloses the following to the PURCHASER, as agreed to between the SELLER and Developer, to which the PURCHASER shall be bound: Save as specifically set out in this agreement the SELLER has made no representations and given no warranties in respect of
14 14 this subject matter of this agreement or in respect of anything relating thereto Insofar as the SELLER has received warranties from the Developer/contractors/sub-contractors or suppliers, and a defect in the property manifests, the SELLER shall hereby cede its rights in such warranty to the PURCHASER to the extent that the terms of such warranty do not preclude such cession and upon acceptance of such cession by the Developer as aforementioned, the PURCHASER shall have no further claim against the SELLER arising from such defect All warranties and undertakings given by the SELLER to the PURCHASER in terms of this agreement are personal to the PURCHASER who cannot cede, assign or make-over his rights thereto The PURCHASER shall have no claims against the SELLER for any discrepancies of whatsoever nature between the building plans and specifications relating to the development and/or building and the completed development in respect of changes and variations contemplated with in terms of clauses 5 and TRANSFER Transfer shall not be passed to the PURCHASER, notwithstanding anything to the contrary herein contained, until such time as the total purchase price and all other amounts for which the PURCHASER may be liable in terms hereof to the date of transfer have been paid, and/or payment thereof has been secured as herein provided It is recorded that the transfer date shall be as close as possible to the occupation date as defined herein Transfer of Unit shall be effected by the SELLERS Conveyancers and all expenses of and incidental to the preparation and registration of the transfer and Conveyancer s fee in respect of such transfer and cession, shall be borne by the PURCHASER. The PURCHASER shall be liable for all expenses and legal costs incidental to the preparation and registration of any mortgage bond to finance the purchase price herein. The PURCHASES shall within 7 (seven) days of being so requested by the SELLER S Conveyancers, furnish the SELLER S Conveyancers with such signature and/or documentation as required and/or payment of costs referred to above In the event of the PURCHASER failing to comply within 7 (seven) days of being requested by the SELLER S Conveyancers, to furnish the said Conveyancers with signed documents or
15 15 documentation of whatever nature necessary for effecting transfer, or where applicable to ensure that the mortgage bond documentation or ancillary documentation is satisfactorily completed (and the widest possible interpretation shall be used in respect of the terms hereof), then ipso facto on the eight day after such request the obligation to pay occupational rental hall lapse and the PURCHASER shall pay the SELLER penalty interest, at the rate mentioned in clause 3 above, calculated from the said eight day until the date of transfer, both dates inclusive In the event of registration of transfer to the PURCHASER being delayed as a consequence of a default on the part of the PURCHASER, then similarly to the terms of the preceding clause, the obligation to pay occupational rental shall ipso facto lapse on the date transfer would, but for the default, have been registered, and the PURCHASER shall pay to the SELLER monthly in advance interest on the full purchase price, less any amount actually paid to the SELLER on account thereof, at the rate mentioned in clause 3 above calculated from the date transfer would have been possible had it not been for the default of the PURCHASER, until the date of actual transfer, both dates inclusive. The terms of this sub-clause shall not be applied in addition to the terms of above but as an alternative thereto as circumstances dictate The PURCHASER acknowledges and accepts that the PURCHASER has bought property in a development where a development mortgage bond is utlized by the SELLER; and thus transfer to the PURCHASER will be simultaneous with transfers to other Purchasers necessitated by the property sold having to be released from the operation of the mortgage bond. Accordingly the PURCHASER acknowledges and accepts that lodgment of the PURCHASER S transfer documents at the deeds office shall be entirely in the discretion of the SELLER S Conveyancers and the PURCHASER S obligation to pay occupational rental or interest, as the case may be, shall remain, and be unaffected by any delay occasioned by the above In the event that minor work and/or rectification still has to be done to the Unit, notwithstanding that the architect has certified in terms of clause 8 hereof that the Unit is ready for beneficial occupation, the PURCHASER hereby agrees to take transfer of the Unit and comply with all his obligations in terms of the Agreement Should the circumstances described in clause arise, the valuer of the applicable financial institution which granted the purchaser a loan, or any such valuer in the case of a cash PURCHASER shall make a determination of the value of the outstanding work or rectifications still to be done, and such
16 BREACH amount shall then be held by the applicable financial institution or in the case of a cash PURCHASER, the Conveyancers, as a retention pending completion of the outstanding work. As soon as all the outstanding work has been attended to and the PURCHASER and/or the applicable valuer has signified accordingly in writing, the retention held will be released to the SELLER. Interest on any monies retained by the transferring attorneys shall be for the account of the SELLER Should the PURCHASER fail to pay any amount, or fail to provide the guarantee(s) required in terms of this Agreement on due date, or should the PURCHASER commit a breach of any other of the terms and conditions of this Agreement and remain in default for 7 (seven) days (unless such breach occurs after the transfer documents have been lodged in the Deeds Office for registration, in which case the 7 (seven) day period may at the election of the SELLER be reduced to 48 (forty-eight) hours after dispatch of a written notice requiring payment and/or delivery of the guarantee(s) and/or requiring such breach to be remedied, the SELLER shall be entitled without prejudice to any other rights to the SELLER in law: to cancel the sale in which event the PURCHASER shall forfeit all monies paid to the SELLER and/or the SELLER S agents or Conveyancers in terms hereof, including monies paid as a deposit to such Conveyancers together with any interest earned thereon; and the SELLER S agents or Conveyancers shall be obliged to pay the deposit together with such interest to the SELLER. Such cancellation shall be without prejudice to the SELLER S other legal rights and remedies and the right to claim damages to claim immediate payment of the whole of the purchase price and the fulfillment of all the terms and conditions hereof In the event of the cancellation of this Agreement in terms of the previous paragraph, or the breach of any condition hereof that may result in this Agreement becoming null and void, or the SELLER resiling from this Agreement as provided herein, the PURCHASER shall not be entitled to claim any compensation in respect of any improvements and additions made to the property and the PURCHASER shall vacate the property and ensure that it is vacated by any persons occupying the property on the authority of the PURCHASER.
17 Occupancy of the property by the PURCHASER or persons on the authority of the PURCHASER shall not create a tenancy. 16. NOTICES AND DOMICILIA The parties to the Agreement choose the addresses set out in 1 and 2 above as their respective domicilia citandi et executandi for all purposes arising herein and at their respective addresses for the service of any notices required to be served upon them hereunder Any notice or communication required or permitted in terms of this Agreement shall be valid and effective only if in writing but it shall be competent to give such notice by telefax Either party may by notice to the other change the physical address chosen as its/his domicilium, or may advise a telefax number or change the telefax unber; provided that such change (s) shall only become effective on the sixth business day after the date of receipt, or deemed date of receipt, of such notice by the addressee Any notice to a party shall: If sent by pre-paid registered post, be deemed to have been received on the fourth business day after posting unless the contrary is proved If delivered by hand, shall be deemed to have been received on the day of delivery or on the next business day if the day of delivery is not a business day If sent by telefax, shall be deemed to have been received on the date of dispatch or on the next business day if the time of dispatch is not on a business day unless the contrary shall otherwise be proved Notwithstanding anything to the contrary herein contained, any written notice or communication actually received by a party to this Agreement shall be an adequate written notice or communication to it/him/her notwithstanding that it was not sent to or delivered at the chosen domicilium citandi et executandi or transmitted to such party s telefax number as stipulated herein. 17. SELLING AGENTS COMMISSION
18 It is recorded that the agents referred to below introduced the parties to each other and is the effective cause of the conclusion of this agreement between the parties: Name of agency Pam Golding Properties Tel: Fax: Name of Agent: BEV BLOCH The SELLER shall pay agent s commission, as the SELLER and the agent may agree, which commission shall be deemed to have been earned only if the PURCHASER takes transfer of the unit pursuant to this agreement, and shall be payable on date of registration of transfer of the unit into the name of the PURCHASER Should this agreement be cancelled, or transfer of the property not be effected into the name of the PURCHASER due to a default on the part of the PURCHASER to comply with his obligations in terms of this agreement, the PURCHASER shall be liable towards the abovementioned agent who introduced the unit to the PURCHASER for payment of the agent s commission and in which event further such agent shall have no claims against the SELLER. 18. JURISDICTION/COSTS The PURCHASER hereby consents in terms of Section 45 of the Magistrate s Court Act, No 32 of 1944, as amended, to the jurisdiction of any Magistrate s Court having jurisdiction over its person under Section 28 of that Act, notwithstanding that any action or proceeding arising out of this Agreement would otherwise be beyond the jurisdiction of such court. The SELLER shall, however, have the right to institute action in any other court of competent jurisdiction The PURCHASER agrees that, in the event of the SELLER instructing its attorneys and/or taking legal proceeds against the PURCHASER pursuant to a failure by the PURCHASER to fulfil any of its obligations in terms hereof, then the PURCHASER shall pay all legal costs plus VAT incurred by the SELLER in connection therewith as between attorney and own client, including collection commission laid down at the tariff rate applicable. 19. JOINT AND SEVERAL LIABILITY
19 19 Should this Agreement be signed by more than 1(one) persons as PURCHASER the obligations and liability of all the said signatories shall be joint and several. 20. TRUSTEE If this Agreement is entered into by the signatory for the PURCHASER in his capacity as trustee for a company or close corporation to be formed, then the said signatory, by his signature hereto, hereby binds himself in favour of the SELLER as surety and co-principal debtor, under renunciation of the benefits of division, excussion and cession of action, for the due performance of all the obligations of the said company or close corporation in terms of or arising out of this Agreement or any cancellation hereof, and; Without Prejudice to the provisions of 21.1, in the event of such company or close corporation not being formed within 30 (thirty) days after the date of signature of this Agreement by the PURCHASER, and/or failing to ratify and make the provisions of this Agreement binding upon itself, and/or failing within 7 (seven) days to deliver to the Conveyancers the originals or notarially certified copies of its certificate of incorporation, memorandum and articles of association, certificate to commence business and all necessary resolutions of shareholders and/or directors in respect of this sale, in the case of a company, or of its founding statement, any applicable association agreement (or ratification and adoption of this sale, in the case of a close corporation, then and in any such event, the said signatory shall be personally liable in terms hereof as if he had been contracted in his own personal capacity. 21. COMPANY/CLOSE CORPORATION/TRUST If this Agreement is signed as PURCHASER by a person purporting to act or and on behalf of a company, close corporation or trust (other than company, close corporation not yet formed), he shall be deemed to warrant that he is duly authorised so to sign this Agreement and shall by his signature hereto bind himself in favour of the SELLER as surety and co-principle debtor in solidum with such company, close corporation or trust under renunciation of the benefits of division, excussion and cession of action, for the due performance of all the obligations of the said company, close corporation or trust in terms of or arising out of this Agreement or any cancellation hereof. 22. PHASED DEVELOPMENT Notwithstanding anything to the contrary contained herein, the Developer has reserved the right to develop the common
20 RULES property as a phased development in terms of Section 25 of the Sectional Title s Act. Should, at any time before opening the sectional title register in the deeds office, it come to the attention to the Developer that such reservation is not necessary, the SELLER will not be bound to reserve this right as envisaged herein The Purchaser, by his signature hereto, consents to the Seller preparing and submitting in terms of Section 25 of the Act, a Scheme or Schemes to the relevant authorities for the approval to erect additional buildings and the creation of exclusive use areas on the Land and apply for registration and amending of Sectional Plan or Plans. The PURCHASER acknowledges that: The Management and Conduct Rules referred to in Section 35 of the Act and as amended by the developer shall be applicable to the scheme The developer reserves the right to make appropriate further adjustments to the draft Rules, not later than until the date of establishment of the scheme The Body Corporate for the scheme shall be established on passing of the first transfer of a unit in the scheme, and shall from that date be managed in terms of the Act and the said amended rules Rights of exclusive use of certain parts of the common property may be allocated to the owners of certain units in the Rules in terms of Section 27A of the Act. 25. OFFER ACCEPTANCE Inasmuch as this Agreement, signed by the PURCHASER and delivered to the SELLER, shall constitute an offer to purchase the Unit and the exclusive use rights, such offer shall not be capable of being withdrawn and shall remain open for acceptance by the SELLER signing same within 3 (three) days after the date of signature thereof by the PURCHASER. 26. SOLE CONTRACTUAL RELATIONSHIP The parties hereto acknowledge that this Agreement represents the entire Agreement between them and that no other
21 21 conditions, stipulations, warranties and/or representations whatsoever express or implied have been made by either party or their agents other than as set forth in this agreement No variation of this Agreement shall affect the terms hereof unless such variation shall be reduced to writing under the hands of the parties hereto No extension of time or indulgence granted by either party to the other shall be deemed in any way to affect, prejudice or derogate from the rights of such party in respect of this Agreement, nor shall it in any way be regarded as a waiver of any rights hereunder, or a novation of this Agreement The PURCHASER acknowledges that all artistic, architectural, photographic and in any way visual presentation material including but not limited to models, brochures and pamphlets, used by the SELLER or its agents in the marketing and selling of the Unit/s or exclusive use areas hereby purchased and sold, have been prepared and distributed as advertising material only; and that the SELLER shall in no way be bound and the PURCHASER shall have no claim in respect of any information stated therein or impression conveyed thereby; and that no representation is thereby made by the SELLER, and that the parties shall be bound by the terms contained in this agreement only. It is further recorded that all furniture and fittings shown on the attached plans are for illustration purposes only and that the finishing schedule shall sufficiently detail the schedule of finishes in the Unit or section. 27. MORTGAGE BOND This offer is subject to the approval of a bond by a financial institution for an amount of not less than R A Mortgage origination agent,., appointed by the SELLER shall contact the PURCHASER to obtain the necessary information required for the loan application and to this end, the PURCHASER irrevocably agrees to use..to procure the mortgage finance required as per clause 7 above of the schedule The PURCHASER authorises the agent to exploit all reasonable sources of bond financing on his behalf, and undertakes to furnish the agent with the necessary documentation to apply for the bond, within 2 (two) days after acceptance of this offer to purchase The bond approval must be given by no later than 30 (thirty) days of acceptance from the date of acceptance of this
22 22 agreement. The SELLER may extend this period of time in his sole discretion by giving notice to the PURCHASER. 28. VALUE ADDED TAX ( VAT ) 28.1 Unless otherwise stated all amounts payable by the PURCHASER in terms of this agreement are expressed exclusive of VAT. Accordingly in addition to the Purchase Price the PURCHASER shall pay VAT on such purchase price at the rate specified by the South African Revenue Services at the time of payout If the rate of VAT payable as at date of signature of this agreement is at any time varied, the amount of Vat payable shall be varied accordingly. 30. NOMINATION The PURCHASER shall be entitled to nominate a third party as the PURCHASER in terms of this agreement by giving written notice to the SELLER to that effect and delivering a new agreement on the same terms and conditions mutatis mutandis as are contained in this agreement to the SELLER by no later than midnight on the date of the last signature to this Agreement. If the right of nomination is not exercised as aforesaid, the person whose name appears in item 2 of the Schedule above shall be the Purchaser in his personal capacity and be bound by all the terms and conditions of this Agreement The right of nomination shall be exercised in the following manner, namely that within the period; the PURCHASER shall nominate his nominee(s) in writing: the nominee(s) shall accept such nomination (including, where applicable the passing of necessary resolutions) and shall agree to be bound by all the terms and conditions of this Agreement, in writing; the PURCHASER shall deliver the documents referred to in above to the Seller s Conveyancers. 31. DAMAGE OR DESTRUCTION In the event that, at any time prior to transfer, the Unit is destroyed or damaged to the extent that the PURCHASER is or would be deprived of beneficial occupation thereof, or the building is destroyed or damages to an extent that 50% (FIFTY PERCENTUM) or more of the building requires reconstruction as determined by the Architect, whose decision will be final and binding on all parties, then the SELLER shall give notice to the
23 ARBITRATION PURCHASER within 10 (TEN) business days of the occurrence of such an event of the Developer s decision either to: resile from the prior sale agreement Agreement, in which event; this Agreement shall cease to be of any further force and effect and the parties shall be restored to, as near as may be, the position in which they would have been had this Agreement not been entered into and no party shall have any claims against the other as a result thereof, save that the PURCHASER will be refunded the deposit (if paid in cash) and the balance of the total Purchase Price (if paid in cash) and accrued interest thereon, and; no party shall have any further rights against the other arising out of or in connection with this Agreement; or proceed with the reconstruction of the Unit and/or building utilising the proceeds of the insurance policy effected by or at the instance of the Developer, in which event: the parties shall continue to be bound by this Agreement; and the PURCHASER acknowledges that the anticipated date of occupation and transfer will be substantially delayed; and the PURCHASER shall not have any claim against the SELLER or the Developer, or its agents or employees, for, including but not limited to, any loss or damage suffered by the PURCHASER directly or indirectly as a result of the Developer s decisions to reconstruct the building Should any dispute arise out of or in connection with this Agreement, then any party shall have the right to declare a dispute and require that the dispute be referred to arbitration, in which event it shall be submitted to, and determine by arbitration in accordance with the rules of the Arbitration Foundation of South Africa ( AFSA ). The parties agree that any such arbitration proceeding is to be concluded in a summary manner with a view to it being completed as soon as possible.
24 The arbitrator shall be, if the matter in dispute is principally a legal matter, a practising Advocate or attorney of Cape Town of at least 15 (fifteen) years standing; an accounting matter, a practising chartered accountant of Cape Town of at least 15 (fifteen) years standing; any other matter, any independent person, agreed upon between the parties to the dispute The parties shall agree on the arbitrator failing which an arbitrator referred to in clauses to will be appointed by AFSA In the event that the parties, within 7 (seven) days after the dispute having been referred to arbitration, fail to agree as to whether the dispute is a dispute referred to in clauses to above, the matter shall be deemed to be a legal matter Each of the parties to the arbitration irrevocably agree that the decision of the arbitrator made at such arbitration proceeding shall be final and binding on each of them and shall be carried out effective immediately. The parties further agree that the arbitration award may at the instance of the parties be made an order of any court to whose jurisdiction the parties are subject Notwithstanding the provisions of this clause either party shall be entitled to institute proceedings by way of action, application or otherwise, in any court having jurisdiction, for the purposes of obtaining urgent relief. THUS DONE AND SIGNED BY THE PURCHASER AT on the day of 2008 in the presence of the undersigned witnesses. AS WITNESSES PURCHASER THUS DONE AND SIGNED BY THE SELLER AT on the day of 2008 in the presence of the undersigned witnesses.
25 25 AS WITNESSES For and on behalf of the SELLER ACCEPTANCE OF CESSION OF WARRANTY AND CONSENT TO SALE I, the undersigned, Duly authorised thereto by BEST VEST 153 (PROPRIETARY) LIMITED hereby : 1. Consent to the sale of the abovementioned property from the SELLER to the PURCHASER as contained in this agreement. 2. Accept the cession of warranty insofar as it refers to the obligation of the Developer. THUS DONE AND SIGNED BY THE DEVELOPER AT on the day of 2008 in the presence of the undersigned witnesses. AS WITNESSES For and on behalf of the Developer
26 26 THUS DONE AND SIGNED BY THE AGENT AT on the day of 2008 in the presence of the undersigned witnesses. AS WITNESSES For and on behalf of the Agent