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Sale and Purchase Agreement Real Estate New Zealand

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Sale and Purchase Agreement Real Estate New Zealand document sample

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									    AGREEMENT FOR SALE AND PURCHASE OF INTEREST IN PROPORTIONATE OWNERSHIP SCHEME


AGREEMENT dated                                                                                                    2006

PARTIES

Vendor:


Purchaser:




PARTICULARS AND CONDITIONS OF SALE:

Property:

Scheme:                            The proportionate ownership scheme in respect of the Property known as

Interest being Sold:                              Interest(s) being an undivided                 /                    share in the
                                   Property and numbered
Interest subject to:

Nominee:

Manager:

Proportionate   Ownership
Deed:
Purchase Price:

Deposit (if any):

Settlement Date:

Default Interest Rate:             12% per annum.

AGREEMENT

1         SALE AND PURCHASE

1.1       The Vendor agrees to sell and the Purchaser agrees to purchase the Vendor’s Interest(s) in the
          Property for the Purchase Price and on the terms set out above and otherwise as set out in this
          agreement.

1.2       The Purchaser acknowledges that the Property is part of the Scheme and that the Purchaser is
          required to sign a deed of covenant binding the Purchaser to the Scheme and a power of attorney
          appointing the Manager as its attorney for the purposes of the Scheme.

2         TITLE

2.1       The Purchaser is deemed to have accepted the Vendor’s title to the Interest in all respects. Except as
          otherwise expressly set forth in this agreement, no error, omission or misdescription of the Interest or
          the Property or the titles thereto shall annul the sale and no compensation shall be payable.


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      ______________________________________________________________________________ 2

3           CASH RETURNS

3.1         The parties agree that the Vendor shall be entitled to all cash returns from the Interest(s) in the
            Scheme up to and including the Settlement Date. If any cash returns are distributed subsequent to
            settlement but apply to a period up to and including the Settlement Date then the Purchaser will
            immediately account to the Vendor for the proportion of the cash return that applies to the period up to
            and including the Settlement Date.

4           PROFITS AND LOSSES

4.1         The parties acknowledge that the Purchaser shall be entitled to receive the benefit of all profits and
            entitlements (both capital and income) and shall bear any losses (both capital and income) deriving
            from the Interest in the Property after the Settlement Date.

4.2         The parties further acknowledge that they are each responsible for their own respective taxation
            liabilities arising out of the transaction evidenced by this agreement.

5           SETTLEMENT OBLIGATIONS

5.1         On the Settlement Date:
            (a)          The Purchaser shall concurrently:
                         (i)          Pay to the Vendor by bank cheque or electronic transfer in cleared funds the full
                                      Purchase Price, default interest and any other money due (if any);

                         (ii)         Provide the Manager with a fully executed original Deed of Covenant in the form
                                      attached in Schedule 1;

                         (iii)        Provide the Manager with a fully executed original Power of Attorney in the form
                                      attached in Schedule 2;

            (b)          The Vendor shall concurrently hand to the Purchaser:

                         (i)          a fully executed Transfer Instrument of the Interest in the form attached in Schedule
                                      3,

            all the obligations in clauses 5.1(a) and 5.1(b) being interdependent.

6           FAILURE TO SETTLE

6.1         If the Vendor is not in default and if the Purchase Price is not paid upon the relevant date for payment
            the Purchaser shall pay to the Vendor interest at the Default Interest Rate on the portion of the
            Purchase Price so unpaid for the period from the due date for payment until payment but nevertheless
            this stipulation is without prejudice to any of the Vendor’s rights or remedies including any right to claim
            for additional expenses and damages.

6.2         If any of the documents required to be delivered, or matters required to be attended to, on or before
            the Settlement Date as specified in clause 5.1 are not forthcoming or attended to for any reason, or if
            in any other respect the provisions of that clause are not fully complied with, either party shall be
            entitled, without prejudice to any of its other rights or remedies, to elect to:

            (a)          take proceedings for specific performance of the agreement; or

            (b)          cancel this agreement and sue for damages; or

___________________________________________________________________________________________________________________________________________________________________

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            (c)          effect settlement so far as practicable having regard to the defaults which have occurred
                         without releasing the other party from liability to comply as soon as possible with its
                         obligations under that clause; or

            (d)          fix a new date for settlement which shall thereafter be treated for all purposes as the
                         Settlement Date provided such new date is reasonably proximate in time to the original
                         settlement date.

7           WARRANTIES AND CONDITIONS

7.1         The Vendor warrants to the Purchaser:

            (a)          The Vendor has paid all money outstanding in relation to the Scheme; and

            (b)          The Vendor is not in breach of the Property Ownership Deed, or has remedied any breach of
                         the Property Ownership Deed to the reasonable satisfaction of the Manager.

7.2         This agreement is conditional upon the Vendor obtaining the Manager’s approval to the transfer of the
            Property to the Purchaser. The Vendor will request the Manager’s approval promptly upon this
            agreement being fully executed. If the Manager’s approval is not obtained this agreement is at an end
            and any money paid shall be refunded in full to the Purchaser.

7.3         The Purchaser warrants that it is not a builder, land developer or land dealer or an associated person
            as defined in the Income Tax Act 2004.

8           ADDITIONAL TERMS

8.1         The following provisions set out as General Terms of Sale contained in the Agreement for Sale and
            Purchase of Real Estate approved by the Real Estate Institute of New Zealand and by the Auckland
            district law Society Seventh Edition (2) July 1999 shall apply to this agreement:

            (a)          Clause 1.2 (Notices) except that notices may not be served by email;
            (b)          Clause 1.3(1) and (2) (Interpretation);
            (c)          Clause 2.1, 2.2 and 2.3 (Deposit).

9           GENERAL

9.1         Costs: The Vendor agrees to pay to the Manager, on the Settlement Date, the costs of the Scheme’s
            solicitors in relation to the transfer of the Interest and preparation and completion of this agreement,
            the Deed of Covenant, the Power of Attorney and the Transfer Instrument.

9.2         Agency: The sale and purchase of the Interest evidenced by this agreement is made through Bayleys
            Real Estate Limited whom the Vendor appoints as the Vendor’s agent to effect the sale. The Vendor
            will pay to Bayleys Real Estate Limited, on the Settlement Date, agent’s charges of 3% plus GST of
            the Purchase Price for effecting such sale.

9.3         No representations: The Purchaser acknowledges that the Vendor has not made any warranties or
            representations to the Purchaser in respect of the Interest and the Purchaser is entering into this
            agreement in reliance on its own judgement.

9.4         Lowest Price: The Purchase Price is the lowest price that the parties would have agreed upon for the
            Interest at the date this agreement is entered into under the rules relating to the accrual treatment of
            income and expenditure in the Income Tax Act 1994 and on that basis no income or expenditure arises
            in respect of the sale and purchase of the Interest under those rules.


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9.5          No Merger: The agreements, conditions and warranties expressed or implied in this agreement
             between the parties shall not merge on the Settlement Date but shall remain in full force and effect for
             the benefit of the parties to give full effect to their terms.

This is a binding contract. If either party has any doubts professional advice should be sought BEFORE
SIGNING.

EXECUTION




Signature of Vendor                                                                     Signature of Purchaser

                                                                 Details of Purchaser

Legal Name of Purchaser:
(If trust, all trustee names must be listed)


Occupation:

IRD Number:

Resident Withholding Tax:                           19.5% or 33% or 39% or Exempt and copy of Exemption
                                                    Certificate attached       Please Circle One
Postal Address:



Contact Numbers:                                    Ph Hm:
                                                    Ph Wk:
                                                    Fax:
Email Address:

Bank Account Details into
which Returns to be paid:
                                                    Bank – Branch – Account Number – Suffix


                                                    Account Name




___________________________________________________________________________________________________________________________________________________________________

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SCHEDULE 1 – Deed of Covenant




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                                 DEED OF COVENANT
                        in respect of [                         ] Scheme

DEED dated the                              day of                                                                         2006

PARTIES

(1)    [                 ] (the Manager)

(2)    [                 ] (the Nominee)

(3)    [                 ] (the Holding Company)

(4)    [                 ] (the New Investor)

(5)    THE INVESTORS (the Investors)


INTRODUCTION

A      Pursuant to the Property Ownership Deed, the Manager, the Nominee, the Holding
       Company and the Investors agreed to be bound by the terms and conditions set out in
       the Property Ownership Deed in respect of the acquisition, management and future
       disposal of the Property.

B      One of the Investors has decided to sell and transfer all or part of its interest in the
       Property to the New Investor.

C      The Property Ownership Deed requires the New Investor to enter a deed of covenant
       agreeing to be bound by the provisions of the Property Ownership Deed.

1     INTERPRETATION
_____________________________________________________________________________

1.1   Definitions
       In this deed, unless inconsistent with the context, the following definitions apply:
       Investors means all of the original and existing investors in the Property;

       Property means the property comprising [         ] as comprised in certificates of title [
       and         ] ([          ] Land Registry) and as more fully described in the Property
       Ownership Deed; and

       Property Ownership Deed means the [management agreement and ownership deed]
       dated [          ] between the Manager, the Nominee, [the Holding Company] and the
       Investors in respect of the Property;




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2     COVENANT
_____________________________________________________________________________

2.1     The New Investor acknowledges that it has received a copy of the Property Ownership
        Deed.

2.2     As from and including the date of this deed, the New Investor:

        (a)     covenants to comply with, and be bound by, all of the covenants, obligations and
                provisions of the Property Ownership Deed including the power of attorney
                clauses in the Property Ownership Deed; and

        (b)     irrevocably and unconditionally ratifies and confirms all acts done by or on behalf
                of the Scheme by the Manager or Nominee, whether before or after the date of
                this deed.


EXECUTED AS A DEED

SIGNED for and on behalf of
the New Investor by:


Witness to signature:                                         ___________________________
                                                              [               ]


___________________________________                           _________________________________
Signature of witness                                          [         ]

___________________________________
Name of witness

___________________________________
Occupation

___________________________________
City/town of residence




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SCHEDULE 2 – Power of Attorney




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THIS IS A POWER OF ATTORNEY by way of deed signed by me/us [                                                               ] of
[        ], on this                                day of                                                                            2006


INTRODUCTION

I/We wish to appoint [             ] to act for me/us in relation to the management of the [         ]
Scheme as established by the [Property Ownership Deed] dated [              ] (the Property Ownership
Deed).


OPERATIVE PROVISIONS

1.    I/We irrevocably appoint [           ] to be my/our attorney (Attorney) for the purposes of doing all
      things and acts as shall be necessary to give effect to the terms of the Property Ownership Deed
      and [               ] shall have sole discretion as to decision making with respect to this power of
      attorney in accordance with clause [ ] of the Property Ownership Deed.

2.    I/We declare and agree to ratify and confirm whatever my/our Attorney may lawfully do or cause to
      be done by virtue of this Power of Attorney.

3.    I/We agree to indemnify and keep the Attorney indemnified against all or any loss incurred or
      sustained by the Attorney resulting from any act, matter or thing done or carried out by the Attorney
      in exercise of its powers and authority hereby granted.

4.    I/We declare that any person or persons dealing with the Attorney shall not be concerned to see or
      enquire as to the propriety or expedience of any act, deed or matter which the Attorney may do,
      undertake or sign in my name or otherwise by virtue of this Power of Attorney.

THIS POWER OF ATTORNEY shall be construed in accordance with and governed by the laws of New
Zealand.

SIGNED AS A DEED


SIGNED by [              ] in the presence of:
                                                      Signature of [                 ]
Witness to signature:


Signature of witness


Name of witness


Occupation


City/town of residence




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                                                                                       2
SCHEDULE 3 – Transfer Instrument




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                                                                                                                                   3

                                          TRANSFER INSTRUMENT

In accordance with the agreement for sale and purchase dated [              ], the Transferor hereby transfers
to the Transferee the Interest in the Property specified below subject to the conditions on which the
Interest is held by the Transferor and the Transferee hereby accepts the Interest subject to those
conditions.

Property:
Scheme:
Interest(s) being sold:                                 [ ] Interest(s) being an undivided / share in
                                                        the Property and numbered [ ]
Interest subject to:
TRANSFER FROM:
Transferor(s) Name
Occupation
Full Postal Address
Purchase Price
TRANSFER TO:
Transferee(s) Name
Occupation
Full Postal Address

This Transfer Instrument is dated the             day of                                                 2006

Signed by the Transferor in the presence of:


______________________________________                ________________________________________
Signature of Witness                                  Signature of Transferor


______________________________________
Name of Witness
                                                      ________________________________________
                                                      Signature of Transferor

______________________________________
Occupation


______________________________________
Street Address


Signed by the Transferee in the presence of:

                                                      ________________________________________
_______________________________________
                                                      Signature of Transferee
Signature of Witness


_______________________________________
Name of Witness
                                                      ________________________________________
_______________________________________               Signature of Transferee
Occupation


_______________________________________
Street Address




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