DEED OF SALE - ERF 1 MEMORANDUM OF AGREEMENT MADE AND ENTERED INTO BY AND BETWEEN VOGELSANG MOSSELBAAI (PTY) LTD REGISTRATION NUMBER: 2015/377627/07 (hereinafter referred to as the "SELLER") AND (hereinafter referred to as the "PURCHASER")
2 1. DEFINITIONS In this agreement, unless the context otherwise indicates, the following words will have the meanings assigned to each AGREEMENT means this Agreement of Sale and any annexures hereto; ANNEXURE A means a site layout plan which indicates the proposed ERF described in the SCHEDULE; ANNEXURE B means the design guidelines in respect of the DEVELOPMENT; ANNEXURE C means the written Constitution of the HOA; ATTORNEYS means Le Roux van der Merwe INC. Montagu Building, Springstreet, Mossel Bay, 6500 Tel: (044) 691 2460 CONTRACTOR means Mussulo CC t/a Esterhuizen Construction; CONSTITUTION means the written Constitution of the HOA; DESIGN GUIDELINES means the design guidelines in respect of the DEVELOPMENT; DEVELOPMENT means VOGELSANG PARK, DEVELOPMENT ERF means the erf as described in the SCHEDULE and indicated on ANNEXURE A; ESTIMATED TRANSFER DATE means the date to be notified in writing by the SELLER or ATTORNEYS; HOA means VOGELSANG PARK, HOME OWNERS PURCHASE PRICE means the amount recorded in item 3.7 of the SCHEDULE; PURCHASER means the purchaser as described in the SCHEDULE; SALE DATE means the date of signature of this AGREEMENT by the SELLER; SCHEDULE means clause 3 hereof;
SELLER means VOGELSANG PARK MOSSELBAAI (PTY) LTD Registration Number: 2015/377627/07 3 TRANSFER DATE means the date of registration of transfer of the ERF into the name of the PURCHASER. 2. INTERPRETATION 2.1 The clause headings are for convenience and shall be disregarded in interpreting this agreement. 2.2 Unless the context clearly indicates a contrary intention: 2.2.1 words importing: 2.2.1.1 the singular shall include the plural and vice versa; and 2.2.1.2 any one gender shall include the other genders; 2.2.2 reference to natural persons includes created entities (corporate or non-corporate) and vice versa; 2.2.3 words and expressions defined in any sub-clause shall, for the purposes of the clause of which that sub-clause forms part and its subsequent clauses, bear the meaning assigned to such words and expressions in that sub-clause; 2.2.4 words and expressions defined in this agreement shall bear the same meanings in schedules or annexures to this agreement which do not themselves contain their own definitions; 2.2.5 if any provision in a definition in this agreement is a substantive provision conferring rights or imposing obligations on any of the parties hereto then, notwithstanding that it is only in the definition clause of this agreement, effect shall be given to it as if it was a substantive provision in the body of this agreement; 2.2.6 any reference to an enactment is to that enactment as at the date of signature hereof and as amended or re-enacted from time to time; 2.2.7 if any provision of this agreement is in conflict or inconsistent with any law, the invalidity of any such provision shall not affect the validity of the remainder of the provisions hereof; 2.2.8 where figures are referred to in words and in numerals, if there is any conflict between the two, the words shall prevail;
4 2.2.9 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; 2.2.10 the annexures to this agreement shall be deemed to be incorporated in and form part of this agreement; 2.2.11 the 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; 2.2.12 this agreement shall be of force and effect upon signature hereof by the parties hereto. 3. SCHEDULE 3.1 Full Name of PURCHASER: Name of contact person: 3.2 PURCHASER's Identity No or Company / CC / Trust Registration No: Passport Number (if not South African): 3.3 Physical Address: 3.4 Postal Address: 3.5 Telephone Number: (Home) (Cell) (Work) Facsimile Number: E-mail: 3.6 Full Name and Identity Number of Spouse: 3.7 Total PURCHASE PRICE (including Value-Added Tax): R400 000 (FOUR HUNDRED THOUSAND RAND).
5 3.8 10% deposit due on signature by PURCHASER: Payable into the trust account of the ATTORNEYS at NEDBANK, MOSSEL BAY, ACCOUNT NUMBER: 162 603 0049, ACB CODE: 198765 3.9 Balance of PURCHASE PRICE payable within 14 days after being requested to do so by the Transfer Attorneys, to be paid into their Trust account. This request will only be made by the Transfer Attorneys, once all the suspensive conditions have been met and the Development conditions have been fulfilled. The Balance Purchase Price: R ( ) 3.10 ERF: 3.11 Area of ERF: ( ) square metres 3.12 Address of SELLER: 3.13 Telephone Number: 3.14 Facsimile Number: 3.15 E-Mail address :
4. RECORDAL 6 The SELLER is the developer of the DEVELOPMENT 5. OFFER The PURCHASER shall regard this agreement, once signed by the PURCHASER, as an irrevocable offer and open for acceptance by the SELLER for a period of 30 (thirty) days from the date of signature by the PURCHASER. Provided acceptance is within the stipulated time period, this offer shall become a binding Sale Agreement. The Purchaser acknowledge that this Development is in a early stage and it may take 18 months to proceed with only thereafter Transfer may be given. 6. SALE The SELLER hereby sells to the PURCHASER, who hereby purchases the ERF, subject to and upon the terms and conditions contained in this agreement. 7. PURCHASE PRICE AND PAYMENT 7.1 The PURCHASE PRICE is the amount recorded in item 3.7 of the SCHEDULE. 7.2 The PURCHASE PRICE shall be payable by the PURCHASER to the SELLER in cash by way of a deposit and the outstanding balance in the amount as indicated in the SCHEDULE. 7.3 The PURCHASE PRICE includes Value-Added Tax at the rate of 14 (FOURTEEN) percent. Should the rate of Value-Added Tax be amended prior to the TRANSFER DATE, then the PURCHASE PRICE shall be adjusted accordingly. 7.4 All monies shall be paid, free of bank charges, without deduction or set-off, into the Trust Account of the ATTORNEYS and shall be retained and invested by the ATTORNEYS in an interest bearing account for the benefit of the PURCHASER until the TRANSFER DATE. 7.5 The PURCHASER irrevocably authorises the ATTORNEYS to invest the deposit and any other amounts paid by the PURCHASER in an interest bearing account with a bank or other financial institution, which the ATTORNEYS may choose at their discretion. The interest will be for the benefit of the PURCHASER. 7.6 Should this agreement be cancelled by the SELLER as a result of a breach by the PURCHASER, the ATTORNEYS are irrevocably authorised to deal with the deposit, interest
7 thereon, and any other amounts paid by the PURCHASER in accordance with the "Default" clause hereof. 7.7 The PURCHASER shall deliver, within 14 (fourteen) days of a written request by the SELLER or ATTORNEYS, an unconditional South African bank guarantee acceptable to the SELLER for payment on the TRANSFER DATE, of all amounts due in accordance with this agreement. Such guarantee shall not be required more than 3 (three) months prior to the ESTIMATED TRANSFER DATE. 8. REGISTRATION OF TRANSFER 8.1 Transfer of the ERF shall be passed by the ATTORNEYS and shall be given and taken as soon as practically possible and provided the PURCHASER has complied with all his obligations in terms hereof. This date is the ESTIMATED TRANSFER DATE. The Purchaser acknowledge that this Development is still in an early stage and it may take up to 18 months to fulfill the Development conditions. 8.2 The PURCHASER undertakes on demand made by the SELLER and/or the ATTORNEYS to do all things that may be necessary to enable this agreement to be fulfilled without delay. Failure by the PURCHASER to comply with this provision shall constitute a material breach of this agreement. 8.3 The SELLER shall pay to the ATTORNEYS all costs relating to the registration of transfer and incidental disbursements, together with Value-Added Tax thereon, upon request. 9. POSSESSION AND OCCUPATION 9.1 Possession and occupation of the ERF shall be given to and accepted by the PURCHASER on the TRANSFER DATE. 9.2 The PURCHASER shall pay a pro rata share of the rates, service charges and levies in respect of the ERF from the TRANSFER DATE. 10. CONDITIONS 10.1 The ERF is sold voetstoots. 10.2 The ERF is sold subject to all and any conditions and/or servitudes attaching to the ERF or mentioned in the title deed of prior deeds, or contained in the township conditions imposed by every lawful authority in approving the DEVELOPMENT.
8 10.3 The ERF is zoned Single Residential. Only one house may be constructed on the ERF for residential purposes. No rezoning to another use will be permitted. 10.4 The ERF is sold subject to the provisions of the CONSTITUTION. 10.5 The SELLER shall not be responsible for any deficiency in the extent of the ERF which may be revealed by any survey or re-survey. The SELLER shall not be obliged to point out any beacons. 10.6 The parties hereto acknowledge that this AGREEMENT contains the entire agreement between them and that no other conditions, stipulations, warranties and/or representations whatsoever have been made by either party or their agent other than as set forth in this AGREEMENT. 10.7 The ERF may not be subdivided. The ERF shall not be consolidated with an adjoining erf or erven without the prior written consent of the SELLER or the HOA. 11. APPROVED CONTRACTOR The CONTRACTOR OR ITS NOMINEE will be the only contractor to construct or alter the house and related structures, if any, to be erected on the ERF. 12. HOMEOWNERS' ASSOCIATION A title deed condition in respect of the ERF shall be registered in a form acceptable to the SELLER and the Registrar of Deeds in terms whereby: 12.1 the PURCHASER and his successors-in-title shall become members of the HOA and shall be entitled to the rights and subject to the obligations and restrictions set out in the CONSTITUTION; 12.2 the ERF shall not be alienated or transferred for any reason, including compulsory sale, without the written consent of the SELLER, or should the SELLER so elect, the HOA, which consent shall not be unreasonably withheld or delayed. 13. RESTRICTION ON ALIENATION Prior to the completion of the building works in terms of the building contract, to be concluded in terms of clause 25 of this contract, the PURCHASER shall not alienate the ERF and cede his rights in terms of the building contract without the SELLER s prior written consent.
9 14. PHASE DEVELOPMENT 14.1 The PURCHASER acknowledges that the DEVELOPMENT comprises various phases and that the SELLER is entitled to develop further phases as, when and in such manner as it deems fit. 14.2 The PURCHASER acknowledges further that inconvenience due to building operations may be experienced from time to time subsequent to the TRANSFER DATE. 15. DEFAULT In the event that the PURCHASER fails to fulfill by due date any of his obligations in terms hereof, the SELLER, or the ATTORNEYS, shall be entitled, after having given the PURCHASER 7 (seven) days written notice to remedy same and the PURCHASER having failed so to remedy, to either 15.1 cancel this agreement, whereupon the SELLER shall be entitled to obtain immediate repossession of the ERF and shall have the election at the time of cancellation or at any time thereafter either 15.1.1 to claim damages; or 15.1.2 to claim forfeiture of and retain amounts paid by the PURCHASER, including interest thereon, to the SELLER or the ATTORNEYS pursuant to this agreement; or 15.1.3 claim immediate fulfillment of all the terms and conditions of this agreement and claim damages. 16. CHOICE OF DOMICILIUM 16.1 The SELLER and the PURCHASER hereby choose domicilium citandi et executandi for all purposes under this agreement whether in respect of court process, notices or other communications, at the physical address and facsimile number indicated in the SCHEDULE. 16.2 Any notices to be given by either party to the other shall be in writing but it shall be sufficient to give such notice by facsimile.
10 16.3 Notices shall be deemed to have been delivered on the date of signed receipt of delivery, if delivered by hand, or on the 4th (fourth) day after the date of posting, if sent by pre-paid courier mail within South Africa, to the domicilium aforesaid, or, if successfully transmitted by facsimile or e-mail, be deemed to have been received by the addressee on the first day after the day of successful transmission. 17. VARIATIONS No variation of this agreement shall be valid unless in writing and signed by both parties. 18. COMPANY / CLOSE CORPORATION / TRUST In the event of the PURCHASER being a company or a close corporation or the trustees for the time being of a trust, the signatory for the PURCHASER by his signature hereto binds himself to the SELLER as surety and co-principal debtor in solidum for the PURCHASER under renunciation of the benefits of excussion and division for the performance by the PURCHASER of all the PURCHASER's obligations in terms of this agreement. 19. INDEMNITY The SELLER shall not be responsible for any loss of damage which the PURCHASER, his servant, employees, agents or invitees may suffer, arising from the use of the ERF or the DEVELOPMENT, and the PURCHASER hereby indemnifies the SELLER against any claim arising from the aforegoing. 20. INDULGENCES No extension of time or indulgence granted by the SELLER to the PURCHASER shall be deemed in any way to affect, prejudice or derogate from the rights of the SELLER in any respect under this AGREEMENT, nor shall it in any way be regarded as a waiver of any rights hereunder, or a novation of this AGREEMENT. 21. JOINT PURCHASERS Insofar as there may be more than one PURCHASER in terms of this AGREEMENT, the liability of each of such PURCHASER s shall be joint and several and in solidum.
11 22. ANNEXURE A - SITE LAYOUT PLAN The PURCHASER agrees to abide by the designated buildable areas produced by the SELLER for the buildings to be erected on the ERF as shown on ANNEXURE A. No deviation to the designated buildable area will be permitted. 23. MORTGAGE FINANCE LOAN 23.1 A Mortgage Finance loan is required by the PURCHASER for an amount of R ( ) or lesser amount as agreed by the SELLER and the PURCHASER in writing. 23.2 This AGREEMENT is subject to the PURCHASER'S application for a loan as recorded in clause 23.1 above, being approved in principal upon the security of a Mortgage Bond over the ERF by a Financial Institution acceptable to the PURCHASER within 30 (thirty) days from the SALE DATE. Such Bond shall be applied for immediately and the application confirmed in writing by the financial Institution within 14 (fourteen) days of the SALE DATE. 23.3 Should the PURCHASER be unable to obtain such loan within the stipulated period, then the SELLER shall be entitled, in its sole and absolute discretion, to extend such period by up to 30 (thirty) calendar days, and obtain such loan on the PURCHASER'S behalf. The PURCHASER hereby irrevocably appoints the SELLER, or his AGENT, for this purpose and the PURCHASER undertakes, on request, to supply all the information and to sign all documentation required therefore. 23.4 In consenting to the SELLER acting as his agent as aforesaid, the PURCHASER acknowledges that the SELLER will endeavour to raise the necessary loan from a recognized Financial Institution at the relevant rate applicable at the time for a person/legal person such as the PURCHASER who/which is trying to raise a loan upon the security of a Mortgage Bond over immovable property. The PURCHASER hereby appoint Oosthuizen Marais & Pretorius Attorneys, Urban Attic Building, Sioux street 4, Mossel Bay, 6500 to attend to the registration of the Mortgage Bond. 23.5 Should the PURCHASER'S application not be confirmed within the provisions of clause 23.2 and the SELLER not exercise its exclusive option to secure such loan on the PURCHASER'S behalf, or should the SELLER exercise such option and not secure such loan within the 30 (thirty) additional days, then this condition shall irrevocably be deemed not to have been fulfilled, and the sale shall lapse, and be of no further force nor effect, and all monies paid on account of the PURCHASE PRICE plus interest accrued thereon, shall be refunded to the PURCHASER.
24. NOMINATION 12 24.1 The PURCHASER shall be entitled to nominate a third party, acceptable to the SELLER, to be the PURCHASER in terms of this agreement provided that such nomination is made no later than 1 (one) day from the SALE DATE, and is made by written notice delivered to the SELLER and signed by the nominee in acceptance and in a form to the satisfaction of the SELLER. 24.2 Should the PURCHASER validly nominate a nominee in terms of the aforegoing, then all reference to the PURCHASER in this agreement shall be deemed to be a reference to such nominee, save that: 24.2.1 there shall be no further right of nomination; 24.2.2 all rights of the original PURCHASER (the signatory to this agreement as PURCHASER) in and to any monies paid in terms hereof shall be deemed to be ceded to the nominee; and 24.2.3 the original PURCHASER shall be liable in solidum with the new PURCHASER (his nominee) as surety and co-principal debtor, under renunciation of the benefits of excussion and division, for all the obligations of the PURCHASER (the nominee) to the SELLER arising out of or in connection with this agreement. 24.3 Should the PURCHASER fail to nominate a nominee in terms of the aforegoing, he shall not thereafter be entitled to nominate a nominee but shall be bound to perform all the obligations of the PURCHASER in terms hereof. 25. SUSPENSIVE CONDITIONS 25.1 This sale is subject to the conclusion of a Building Contract by the PURCHASER for the erection of a house on the erf with the CONTRACTOR within 14 (fourteen) days from the SALE DATE. This period may be extended by the CONTRACTOR in its sole discretion. 25.2 This sale is subject thereto that all development conditions are fulfilled by the Developer within 18 months from date of signature hereof.
13 26. INTEREST ON ARREAR PAYMENTS 26.1 All moneys payable by the PURCHASER(s) in terms hereof and unpaid on due date and any amounts secured by guarantee which is not provided on due date shall bear interest at 2% (TWO PERCENT) above the prime bank lending rate charged by the SELLER's bankers from time to time. In the event of a dispute arising as to the rate payable, the rate shall be certified by any Manager or Assistant Manager of any branch of the SELLER's bank whose decision will be final and binding on the parties. 26.2 Interest as aforesaid will be calculated from due date to actual date of payment and in the case of guarantees to be presented from the due date thereof until date of presentation and will be payable without demand having to be made therefore. 26.3 Each payment made by the PURCHASER(s) shall be allocated first to the payment of interest and then to the payment of any other moneys due in terms of this contract and thereafter to the reduction of the purchase price. 27. ACKNOWLEDGEMENT The Purchaser acknowledge that this contract was explained to him in a language he understood and that he binds himself thereto. 28. AGENTS COMMISSION The SELLER shall be liable to pay the AGENT S brokerage fee, being R40 000.00 (FOURTY THOUSAND RAND) Vat inclusive, to which brokerage fee shall be deemed to have been earned on acceptance of this offer and fulfillment of the suspensive conditions contained herein, if any, and shall be payable on date of registration of this transaction.
14 THE NEXT PAGE IS THE SIGNATURE PAGE SIGNED AT this day of As Witness: PURCHASER PURCHASER SIGNED AT MOSSEL BAY this day of As Witness: SELLER