MEMORANDUM OF AGREEMENT OF SALE

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					MEMORANDUM OF AGREEMENT OF SALE

Made and entered into by and between

THE SELLER

And

THE PURCHASER

1.

DEFINITIONS AND INTERPRETATIONS

1.1

Captions have been inserted for the purposes of convenience only, do not form part of this agreement, and are to be entirely disregarded in the interpretation thereof.

1.2

In this agreement, unless the context otherwise requires, expressions denoting any genders shall include the other genders, the singular shall include the plural and vice versa, a natural person shall include an artificial person and vice versa.

1.3

The following terms and expressions shall have the meanings set out respectively hereunder and cognate expressions shall bear corresponding meanings :

1.3.1

The SELLER means HENEB FINANCE (PTY) LTD, A COMPANY DULY INCORPORATED WITH LIMITED LIABILITY, HAVING REGISTRATION

NUMBER 1993/000143/07 AND HEREINAFTER REPRESENTED BY ERASMUS ALBERTUS ROOS DULY AUTHORISED HERETO BY RESOLUTION. OF 6 FRANGI PANI, VREY STREET, BEYERSPARK, BOKSBURG.

1.3.2

The PURCHASER means NAME: __________________________________________________ IDENTITY NUMBER: ________________________________________ REGISTRATION NUMBER: __________________________________ OF (ADDRESS) ____________________________________________ TELEPHONE NUMBERS (BUSINESS) ___________________________ (HOME) __________________________________________________ (FAX) _____________________________________________________ MARRIED/SINGLE/ (In/Out Community of Property)

1.3.3

The PROPERTY means The unimproved immovable property being Erf _______ in the TOWNSHIP MEASURING _______ square meters in extent;

1.3.4 TOWNSHIP

The

TOWNSHIP

means

LAKEFIELD

EXTENSION

58

also known as CHAMPS DU LAC;

1.3.5

The

PRICE

shall

mean

the

sum

of

R____________

(words____________________________________________________) inclusive of Value Added Tax ;

1.3.6

The ACT shall mean the alienation of Land Act No 68 of 1981 (as amended);

1.3.7

INITIAL

DEPOSIT

shall

mean

the

sum

of

R_____________

(words____________________________________________________);

1.3.8

The PARTIES means the PURCHASER and the SELLER.

1.3.9

The CONTRACTOR means RAZZ CONSTRUCTION PROJECTS (PTY) LTD t/a RAZZ PROJECTS, REGISTRATION 2005/024096/07;

1.3.10 The CONVEYANCER means SHERYL DE KLERK, ATTORNEY, NOTARY AND CONVEYANCER, 2 VAAL ROAD, FARRARMERE, BENONI, TELEPHONE 011 849-8345, FAX 011 425-2044, EMAIL sdeklerk@legalcom.co.za;

1.3.11 The AGENT means ___________________________________ ;

1.3.12 COMMISSION means R_________________ (inclusive of VAT);

1.3.13 THE LOAN means a loan by a registered Bank or other approved Financial Institution to be secured by a mortgage bond to be registered over the property in an sum of

R_______________________________.

2.

SALE

2.1

The SELLER hereby sells to the PURCHASER who hereby purchases from the SELLER, the PROPERTY, for the PRICE and upon the terms and conditions herein set out.

2.2

The PRICE shall be paid as follows:

2.2.1

In cash upon signature hereof the INITIAL DEPOSIT, to the CONVEYANCER who shall hold same in an interest bearing account for the benefit of the PURCHASER;

-

as a stakeholder for the benefit of the SELLER or PURCHASER dependent on whichever of the two becomes entitled thereto, but as agent for neither, for the release to the SELLER’S order, upon the property becoming registrable as contemplated in Section 26 of the ACT or upon cancellation in terms of this Agreement, by reason of the PURCHASER’S default.

-

The PARTIES hereby grant to the CONVEYANCER the authority to invest the initial DEPOSIT with a registered bank or financial institution in terms of Section 78(2)(A) of the Attorneys Act No 53 of 1979 (as amended), in a special savings account, on call.

2.2.2

The PURCHASER shall furnish a guarantee for payment of the balance of the PRICE within 15 (FIFTEEN) days of the official granting of a bond as contemplated in Clause 6.1.2, or in the event of a bond not being required, within 30 (THIRTY) days of signature of this agreement.

2.3

The PROPERTY is sold VOETSTOOTS and subject to the conditions and servitudes mentioned or referred to in the current and prior title deeds of the property, of which this property forms part, or any township or town planning or zoning conditions relating thereto and to such conditions of establishment and to all such other conditions and servitudes as may exist or be stipulated by the competent authorities in regard thereto.

3.

POSSESSION AND OCCUPATION

Possession and occupation of the property shall be given to the PURCHASER on registration of transfer thereof into the name of the PURCHASER. From such date all benefits and risks of ownership in respect of the property shall pass to the

PURCHASER, including the right to collect rentals accruing and the liability for any rates and taxes, levies and any other imposts levied thereupon.

4.

HOMEOWNERS ASSOCIATION

4.1

The SELLER shall cause to be constituted the HOMEOWNERS ASSOCIATION upon such terms and conditions as the SELLER may deem fit for the purpose of:

4.1.1

The control and maintenance of areas of common concern in the TOWNSHIP;

4.1.2

The enforcement of rules regulating the architectural theme and aesthetic requirements of the TOWNSHIP;

and to achieve such purposes, the HOMEOWNERS ASSOCIATION shall be entitled and empowered to inter alia levy charges upon its members in order to achieve such purposes.

4.2

The PURCHASER shall be obliged and hereby undertakes to subscribe to membership of the HOMEOWNERS ASSOCIATION upon demand and upon such terms as the SELLER may direct, and agrees to sign all such documents and do all such things as may be necessary, with due expedition, in order to fulfill the PURCHASER’S obligations in terms hereof.

4.3

The PURCHASER further acknowledges that:

4.3.1 neither the PURCHASER nor the PURCHASER’S successors in title, or assigns, shall have the right to take transfer of the PROPERTY without first having become a member of the HOMEOWNERS ASSOCIATION ;

4.3.2

neither the PURCHASER nor the PURCHASER’S successors in title will have the right to transfer the PROPERTY to any other party until or unless all amounts then due and payable to the HOMEOWNERS

ASSOCIATION have been paid in full and the HOMEOWNERS ASSOCIATION has issued a CLEARANCE CERTIFICATE to that effect.

4.4

The SELLER shall be entitled to cause the conditions referred to above, or such similar conditions as the SELLER may deem fit, to be included into the title deed of the PROPERTY by way of insertion into the relevant Power of Attorney to pass transfer or by Notarial deed or in such other manner as may be consistent with law.

5.

ARCHITECTURAL THEME AND AESTHETICS

5.1

The SELLER has determined the architectural theme and aesthetic design parameters of the development and the PURCHASER and the PURCHASER’S successors in title shall be obliged to construct improvements on the PROPERTY in accordance with such architectural theme and aesthetic design, and shall not be entitled to alter or make additions to the improvements on the PROPERTY in contravention of such theme and design without the approval of the HOMEOWNERS ASSOCIATION.

5.2

Any plans prepared by or on behalf of the PURCHASER in respect of any improvements to be affected on the PROPERTY shall be approved by the SELLER, and after its constitution, the HOMEOWNERS ASSOCIATION, in its sole and absolute discretion and the PURCHASER shall not be entitled to commence with any building operation, or alteration until such time as the plan has been so approved in writing, and the relative local authority has also done so.

6.

CONDITIONS PRECEDENT

6.1

This agreement is subject to the following conditions:

6.1.1

BUILDING CONTRACT

6.1.1.1

That the PURCHASER enter into a building contract with the CONTRACTOR for the erection of a dwelling on the PROPERTY in accordance with the prescribed

architectural theme aesthetics, no less than 200 square metres in extent, within 90 (NINETY) days from the date of signature of this agreement. This contract will be at market related price and construction of the dwelling must commence within ………. Months of signature of this contract.

6.1.1.2

Should the building contract, entered into between the PURCHASER and the CONTRACTOR, be subject to any conditions, and which conditions are subsequently not fulfilled, (including, but not limited to the PURCHASER obtaining a bond or other suitable finance for the erection of the dwelling contemplated therein), and the said building contract lapsing, or being cancelled, then the condition contemplated in this Clause, shall be deemed to be unfulfilled.

6.1.2

OBTAINING A MORTGAGE BOND

6.1.2.1

That the PURCHASER (or the SELLER or agent on behalf of the PURCHASER), obtain approval by no later than 30 (THIRTY) days after signature hereof, of THE LOAN by a registered bank or other approved financial institution upon the security of a first MORTGAGE BOND to be

registered over the PROPERTY at such rates of interest and on such conditions as are stipulated by the bank or financial institution to which such application for the loan is made. The PURCHASER undertakes to sign all documents and to furnish all documents and/or information which the bank or financial institution may require in order to obtain the mortgage bond.

6.1.2.2

This suspensive condition shall be deemed to have been fulfilled in the event of such loan being approved subject to the PURCHASER’S spouse (or any of the directors and/or shareholders and/or members of the PURCHASER as the case may be), interposing him/herself as surety for and co-principle debtor in solidum with the PURCHASER for the fulfillment of all of the PURCHASER’S obligations under and in terms of the mortgage bond.

6.1.3

SALE OF PURCHASER’S PROPERTY

6.1.3.1

That

the

PURCHASER’S

property

known

as

___________________________________________________and/or situate at_________________________________________________ be sold within a period of 60 (SIXTY) days from date of signature of this Agreement.

6.1.3.2 The SELLER shall be entitled to give the PURCHASER notice at any time to either fulfill the aforesaid condition, or alternatively waive the benefit thereof, within a period of 72 (SEVENTY TWO) hours after receipt of such notice, failing which the SELLER shall be entitled to resile from this agreement.

6.2

GENERAL TO CONDITIONS PRECEDENT

6.2.1

The PURCHASER may at any time prior to the fulfillment of the above suspensive conditions, advise the SELLER in writing that the

PURCHASER waives the benefit of such conditions, in which event this agreement will no longer be subject to such conditions.

6.2.2

Should any of the suspensive conditions not be fulfilled within the periods contemplated therein, either party shall be entitled to resile from this agreement by giving the other party written notice to that effect.

7.

RE-SALE OF PROPERTY BY PURCHASER

7.1

In the event that the PURCHASER, after having taken transfer of the PROPERTY as contemplated herein, wishes to sell the PROPERTY to a third party, prior to the final completion of the building contract, and the fulfillment of all the obligations of both the PURCHASER and the CONTRACTOR in accordance therewith, the prospective PURCHASER of the PROPERTY shall be obliged to take over all the terms and conditions of the building contract and shall further be obliged to satisfy the CONTRACTOR that such prospective PURCHASER shall be competent and able to fulfill same.

7.2

Until such time as sub clause 7.1 has been fulfilled, the PURCHASER shall not be entitled to dispose of the PROPERTY without the express written consent of the SELLER first being had and obtained, and the SELLER may, be entitled to prevent the PURCHASER from disposing of the PROPERTY until such time as sub clause 7.1 above has been fulfilled.

8.

TRANSFER

8.1

Transfer of the PROPERTY shall be affected by the Conveyancers within a reasonable time after the PURCHASER has complied with the Provisions of Clause 2.2.

8.2

All costs relating to the registration of the transfer of the PROPERTY, and, where appropriate, the registration of the mortgage bond to be registered over the PROPERTY in order to secure payment of the sums due in terms of this agreement shall be paid by the PURCHASER who shall deposit same with the Conveyancers by no later than the date upon which the PURCHASER is obliged to secure payment of the PRICE in terms of this agreement.

9.

BREACH

9.1

Should the PURCHASER fail to pay the amount referred to in Clause 2.2.1, or to furnish the guarantees referred to in Clause 2.2.2 above by the dates mentioned therein, or fail to comply with any other obligation in terms of this contract, within 10 (TEN) days of the date of dispatch by prepaid registered post, or the date of transmission by facsimile, or the date of hand delivery of written notice requiring the PURCHASER to carry out the obligations in question, then and in such event, the SELLER shall be entitled, without prejudice to any other rights which the SELLER may have available at law, to :

9.1.1

Terminate this agreement, and withdraw therefrom and claim and recover from the PURCHASER such damages as the SELLER may have sustained as a result of the PURCHASER’S breach of contract, in which event the SELLER shall be entitled to cause all amounts previously paid by the PURCHASER in terms of the agreement to be retained in Trust by the CONVEYANCER until such time as the SELLER’S damages have been determined and thereupon to set off such damages as against the aforesaid amounts retained in Trust. OR

9.1.2

Enforce specific performance of the terms hereof, including without derogating from the generality thereof, full payment of the balance

of the PRICE and all other amounts payable in terms of this agreement by the PURCHASER, then outstanding against tender by the SELLER to also perform in terms of this agreement.

9.2

In the event of the Purchaser re-selling the Property or selling a controlling interest in the Property within a 24 (twenty four) months after the conclusion of this agreement, or before all erven in Lakefield Extension 58 Township have been developed, whichever is the later, the Seller shall have the exclusive right to market and introduce a buyer for the Property, in which event, the Seller shall be entitled to an Agent’s commission equal to 7.5% of the selling price of the Property, excluding Value Added tax.

10.

AGENT

10.1

The PARTIES record that they were introduced by the AGENT, who was the effective cause of this agreement of sale.

10.2

COMMISSION shall be paid by the SELLER to the Agent on registration of the transfer of the PROPERTY into the PURCHASER’S name upon which date the AGENT shall be deemed to have earned the COMMISSION.

10.3

In the event of the agreement being cancelled at any time for any reason whatsoever, or in the event of transfer not being effected, the AGENT shall not be entitled to claim COMMISSION from the SELLER, but in the event that the cancellation was effected as a result of the PURCHASER’S breach of contract, the AGENT will in that event, be entitled to claim COMMISSION in the amount aforestipulated from the PURCHASER.

11.

DOMICILIUM CITANDI ET EXECUTANDI

11.1

For all purposes arising out of this contract, the parties hereby select as their respective domicilium citandi et executandi, for the delivery of all notices and/or processes in terms hereof the addresses allocated to the SELLER and PURCHASER respectively under Clause 1 hereof.

11.2

All notices dispatched by pre-paid registered post to the domicilium citandi et executandi shall be deemed to have received 4 (FOUR) days from the date of posting thereof.

11.3

Any notice dispatched by facsimile transmission shall be deemed to have been received by the party to whom it is transmitted, on the day following the transmission thereof.

11.4

Any notice delivered by hand shall be deemed to have been received on the date of delivery thereof.

11.5

Either party may from time to time change their domicilium citandi et executandi to another address within the Republic of South Africa by delivery of written notice to the other party to that effect.

13.

CONSENT TO JURISDICTION

13.1

The parties hereby consent to the jurisdiction of the Magistrate’s Court in respect of any action or proceedings which may be instituted by either one against the other arising out of or in connection with this agreement.

13.2

This consent shall be deemed to be written consent by both parties as contemplated in terms of Section 45 of Act No 32 of 1944 (as amended).

14.

GENERAL

14.1

This agreement of sale constitutes the entire contract between the parties and no other condition, stipulation, warranty or representation whatsoever shall be of any force or effect other than are included herein.

14.2

No alteration, variation or novation of this agreement, or any alleged cancellation by mutual consent, shall be of any force or effect unless reduced to writing and signed by both parties.

14.3

Any relaxation which the SELLER may give at any time or any extension of time which the SELLER may grant to the PURCHASER, shall not prejudice any of the SELLER’S rights under and in terms of this agreement in any manner whatsoever nor shall it be regarded as a waiver or novation of any of the SELLER’S rights in terms hereof.

THUS DONE and SIGNED at ____________________________ on this the ____________ day of ___________________ 2006.

AS WITNESSES :

1.

________________________

2.

________________________

______________________________ PURCHASER

THUS DONE and SIGNED at _____________________________ on this the __________ day of _____________________ 2006.

AS WITNESSES :

1.

________________________

2.

________________________

_____________________________ SELLER

THUS DONE and SIGNED at ______________________________ on this the ___________ day of _______________________ 2006.

AS WITNESSES:

1.

________________________

2.

________________________

________________________________ SELLER

THUS DONE and SIGNED at ______________________________ on this the ___________ day of _______________________ 2006.

AS WITNESSES:

1.

________________________

2.

________________________

________________________________ AGENT


				
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Description: MEMORANDUM OF AGREEMENT OF SALE