edward nathan sonnenbergs johannesburg cape town durban 1 north wharf square loop street foreshore cape town 8001 p o box 2293 cape town south africa 8000 docex 14 cape town tel +2721 410 2500 fax +2721 410 2555 info@problemsolved.co.za www.problemsolved.co.za SHARE AND LOAN CLAIM SALE AGREEMENT entered into between THE SELLER (Any Name Property 5010 (Pty) Ltd) and THE PURCHASER IN RE SHARE AND LOAN ACCOUNT IN THE HOTEL SCHEME DEVELOPMENT KNOWN AS EMERALD POINT BOUTIQUE HOTEL SECTION NO.. PARKING BAY NO(S).
The Seller hereby sells to the Purchaser who hereby purchases the Shares on the terms and conditions set out in the Schedules hereto. 2 The Seller hereby agrees to sell, cede, assign and delegate to the Purchaser, who hereby agrees to purchase and take cession, assignment and delegation of that portion of the Loan Claims referred to in clause 6 of Schedule 1. The parties record and agree that the Schedules detailed below form an integral part of this Agreement and agree that they are bound by the provisions thereof, as fully and effectually as if they had signed each one. For THE SELLER (Any Name Property 5010 (Pty) Ltd) Signature: who warrants that he / she is duly authorised thereto Name: Date: Place: Witness: For THE PURCHASER Signature: who warrants that he / she is duly authorised thereto Name: Date: Place: Witness: SCHEDULES Schedule 1 Schedule 2 Information Schedule Terms and Conditions Schedule 3 Draft Disclosure Schedule in terms of Section 17(1) of Act 59 of 1980 Schedule 4 Schedule 5 Schedule 6 Shareholders Agreement Use Agreement Rental Pool Agreement
3 SCHEDULE 1 INFORMATION SCHEDULE 1 SELLER Full name ANY NAME PROPERTY 5010 (PTY) LTD Registration Number 2007/008738/07 Domicilium Address 5 TH FLOOR, LETTERSTEDT HOUSE, NEWLANDS-ON-MAIN, MAIN ROAD, NEWLANDS, CAPE TOWN, 7700 Postal Address P.O. BOX 23677, CLAREMONT, CAPE TOWN, 7735 Telephone No(s) +27 21 671 4454 Fax No(s) +27 21 671 4453 Email Address Represented by SEAN@SKA.CO.ZA SEAN BRIAN VAUGHAN KENEALY 2 PURCHASER Full name ID No / Date of birth / Registration Number Domicilium Address Postal Address Telephone No(s) Home Work Fax No(s) Home Work Email Address Represented by Marital Status Full name of spouse Identity Number of spouse 3 COMPANY Full name EMERALD POINT SHAREBLOCK (PTY) LTD Registration Number Domicilium Address 5 TH FLOOR LETTERSTEDT HOUSE, NEWLANDS ON MAIN MAIN ROAD, CLAREMONT, 7708 Postal Address P O BOX 23677, CLAREMONT, 7735 Telephone No(s) 021 671 4454 Fax No(s) 021 671 4453 Email Address Represented by sean@ska.co.za SEAN BRIAN VAUGHAN KENEALY 4 MANCO
4 Full name EMERALD HOTELS (PTY) LTD Registration Number 2007/030655/07 Domicilium Address 5 TH FLOOR LETTERSTEDT HOUSE, NEWLANDS ON MAIN MAIN ROAD, CLAREMONT, 7708 Postal Address P O BOX 23677, CLAREMONT, 7735 Telephone No(s) 021 671 4454 Fax No(s) 021 671 4453 Email Address Represented by sean@ska.co.za SEAN BRIAN VAUGHAN KENEALY 5 OPERATOR Full name THREE CITIES GROU P LIMITED Registration Number 1964/010152/06 Domicilium Address 22 GARDINER STREET, DURBAN, 4001 Postal Address P O BOX 5478, DURBAN, 4000 Telephone No(s) 031 328 8019 Fax No(s) 031 328 8122 Email Address Represented by 6.1 NUMBER OF SHARES SOLD IN TERMS HEREOF (Each Share will entitle Shareholder to use of the Section and Parking Bay(s) in terms of the provisions of the Rental Pool Agreement and Use Agreement) 6.2 VALUE OF LOAN ACCOUNT SOLD IN TERMS HEREOF mike@hotelinvestments.co.za MICHAEL LAMBERT SHARE NO R 7 AGENT PACE PROPERTY GROUP (PTY) LTD 8 SECTION Section No in the Hotel Scheme Development known as Emerald Point Boutique Hotel Approximate Extent m² 9 PARKING BAY(S) Parking Bay No(s) Approximate Extent m² 10 PRICE OF SUBJECT MATTER
5 10.1 SHARES Purchase Price R 1.00 (excluding/including VAT ) 10.2 PRICE OF LOAN CLAIM R (excluding/including VAT ) 10.3 PAYMENT TERMS Deposit (payable to the Attorneys on the Signature Date) Balance Price (payable to the Attorneys on the Effective Date/Guarantee to be furnished to Attorneys 30 days from Signature Date) 11 EFFECTIVE DATE OF SHARE SALE AND CESSION OF LOAN CLAIMS R25 000,00 (twenty five thousand rand) R Occupation Date 12 ATTORNEYS NEGOTA SCHWELLNUS SPIES HAASBROEK (GAUTENG) INC 13 COMPANY S AUDITORS HOBBS DAVIDS INCORPORATED 14 OCCUPATION DATE Estimated date : 31 DECEMBER 2008 15 TRANSFER DATE Estimated date : 01 FEBRUARY 2009 Delete whichever is inapplicable Delete whichever is inapplicable
6 SCHEDULE 2 TERMS AND CONDITIONS 1. INTRODUCTION 1.1 The Company is the registered owner of or has concluded the Deed of Sale in terms of which it will take transfer of the Section and Parking Bay(s), subject to fulfilment of certain suspensive conditions contained therein. 1.2 The Company is a share block company, operates a Share Block Scheme in respect of the Section and Parking Bay(s) and has or is about to conclude a Rental Pool Agreement in terms of which the Section and Parking Bay(s) will be used to run a hotel operation. 1.3 The Seller has agreed to sell Shares to the Purchaser and to sell, cede, assign and delegate the Loan Claims, which Shares the Purchaser wishes to Purchaser and cession, assignment and delegation the Purchaser wishes to accept. 1.4 The parties agree on the terms and conditions set out in this Agreement. 2. DEFINITIONS In the Agreements, the following words and expressions shall have the meanings assigned to them in Schedule 1 and hereunder, with cognate words and expressions having corresponding meanings, unless the context clearly requires or indicates to the contrary :- 2.1 Act means the Share Blocks Control Act No 59 of 1980, as amended; 2.2 Agreement means this Share Sale Agreement; 2.3 Articles means the Memorandum and Articles of Association of the Company, and available to the Purchaser on request; 2.4 Board means the board of directors of the Company; 2.5 Business Day means any day other than a Saturday, Sunday or public holiday; 2.6 Deed of Sale means the agreement of sale in terms of which the Company has acquired the Section and Parking Bay(s), subject to fulfilment of certain suspensive conditions; 2.7 Developer means the developer and/or the seller as detailed in the Deed of Sale; 2.8 FICA means the Financial Intelligence Centre Act No. 38 of 2001, as amended;
7 2.9 Hotel Scheme means the proposed hotel Sectional Title Scheme to be registered in terms of the Sectional Titles Act No 95 of 1986, as amended, situate at 36 and 38 Bay Road, Mouille Point, Cape Town, and to be known as Emerald Point Boutique Hotel; 2.10 Linked Loan means the Seller s claims against the Company on loan account and being that portion of the Company s loan obligation which is allocated in terms of Section 14(2) of the Act; 2.11 Loan Claims means that portion of the debit loan account in the books of the Company, being proportionate to the shareholding acquired in terms of this Agreement in the amount recorded in Schedule 1, and being the purchase price and other amounts due by the Company to the Developer in terms of the provisions of the Deed of Sale; 2.12 Parking Bay(s) means the Parking Bay(s) described in Schedule 1 and the Deed of Sale, and in respect of which the Company intends to operate a Share Block Scheme, and which will form part of the rental pool in terms of the Rental Pool Agreement; 2.13 Prime Rate means the publicly quoted prime rate of interest charged by First National Bank of Southern Africa Limited, a division of First Rand Bank Limited, from time to time on an unsecured basis, capitalised and compounded monthly in arrear on the first day of each month. In the event of a dispute between the parties as to such rate a certificate by a director or manager of the said bank, whose appointment need not be proved, shall be final and binding on the parties; 2.14 Rental Pool Agreement means the agreement to be concluded between the Company, the Purchaser, Manco and the Operator and which is binding on the Purchaser and all the Shareholders; 2.15 Section means the Section described in Schedule 1 and the Deed of Sale, and in respect of which Section the Company intends to operate a Share Block Scheme, and which will form part of the rental pool in terms of the Rental Pool Agreement; 2.16 Share Block Scheme means the share block scheme as defined in the Act and conducted by the Company on the Section; 2.17 Share(s) means the share(s) as specified in Schedule 1 and shall include the Linked Loan; 2.18 Shareholders means all shareholders of the Company; 2.19 Shareholders Agreement: means the agreement entered into between all Shareholders of the Company, and which is binding on the Purchaser; 2.20 Signature Date means the date on which this Agreement is signed by the last party who signs; and 2.21 Subject Matter means the Shares and Loan Claims;
8 2.22 Use Agreement means the agreement entered into between the Company and the Shareholders governing the use of the Section and Parking Bay(s) and which agreement is effective and binding on the Purchaser and all the Shareholders. 3. ACQUISITION OF THE SECTION AND DEVELOPMENT OF THE SECTION 3.1 The Deed of Sale has been concluded by the Company for the acquisition of the Section and Parking Bay(s), alternatively, the Company already owns the Section and Parking Bay(s). 3.2 If it has not already done so, it is anticipated that the Company will take transfer of the Section and Parking Bay(s), subject to fulfilment of all suspensive conditions referred to in clause 5 below. 4. SHARE CAPITAL It is recorded that the authorised share capital of the Company will be R13,00 (thirteen rand) divided into 13 (thirteen) ordinary shares of R1,00 (one rand) each, ranking pari passu. The issued share capital shall be R13,00 (thirteen rand) divided into 13 (thirteen) ordinary par shares. 5. SUSPENSIVE CONDITIONS 5.1 This agreement is conditional upon fulfilment of the following suspensive conditions, failing which this agreement shall terminate and be of no further force and effect :- 5.1.1 the Deed of Sale becoming unconditional; and 5.1.2 if not the owner of the Section and Parking Bay(s), the Company taking transfer of the Section and Parking Bay(s); and 5.1.3 such minimum shares in the Company, and in respect of the entire Hotel Scheme as the Seller and the Developer deem necessary for viability of the Hotel Scheme, being sold on terms and at prices acceptable to them in their sole discretion. 5.2 These suspensive conditions shall be fulfilled within 180 (one hundred and eighty) days of the Signature Date, or within such extended period as the Seller may notify the Purchaser in writing, provided that :- 5.2.1 notice of any extension is furnished to the Purchaser in writing at least 30 (thirty) days prior to the termination of the 180-day period referred to above; and 5.2.2 the extended period shall not exceed 180 (one hundred and eighty) days failing which this agreement shall lapse and be of no further force and effect, neither party having a claim against the other. 5.3 These suspensive conditions are inserted for the benefit of the Seller who may at any time, in writing, waive fulfilment thereof.
9 6. SALE OF SUBJECT MATTER 6.1 The Seller hereby sells and the Purchaser hereby purchases the Subject Matter on the terms and conditions set out in this Agreement and all Schedules relating hereto. 6.2 The sale as aforesaid shall come into effect on the Effective Date, notwithstanding the Signature Date, on which date the Shares will be transferred and Linked Loan and Loan Claims, if any, ceded, assigned and delegated by the Seller to the Purchaser. 7. PURCHASE PRICE 7.1 The price payable for the Subject Matter is the amount specified in Schedule 1 ( the price ) and shall be paid by the Purchaser in the manner and within the time limits specified therein. 7.2 The Purchaser shall pay the deposit amount, or full purchase price, as the case may be, to the Attorneys on the Signature Date, without deduction or set-off, to be invested by them in trust in an interest-bearing trust account with a registered financial institution, until the Effective Date. 7.3 Interest earned from the investment of any portion of the price shall accrue to the Purchaser and the capital shall be paid to the Seller on the Effective Date. 7.4 The Purchaser shall by no later than 30 (thirty) days after the Signature Date deliver to the Attorneys a payment undertaking by a registered financial institution, in a form reasonably acceptable to the Attorneys, to make the payment of the balance of the price on the date due in terms of Schedule 1. 7.5 The Purchaser will be required to comply with the FICA Act and consequently :- 7.5.1 acknowledges that any monies paid by him in terms of this Agreement cannot be invested and accordingly, interest cannot accrue thereon, until such time as the said requirements have been met; and 7.5.2 hereby renounces any claim for interest, where the claim arises from the Attorneys being unable to invest the deposit or any other monies as a result of the Purchaser not having properly complied with FICA. 8. EFFECTIVE DATE AND DATE OF OCCUPATION 8.1 Notwithstanding the Signature Date or the date on which the Shares are transferred and Loan Claims ceded, assigned and delegated to the Purchaser, the Purchaser shall acquire the Subject Matter with effect from the Effective Date. 8.2 The Purchaser and any other Shareholders shall have the use, occupation and enjoyment of the Section and Parking Bay(s), subject to the provisions of the Use Agreement, Shareholders Agreement and Rental Pool Agreement, with effect from the Occupation Date, which agreements the Purchaser shall be obliged, and hereby agrees, to sign simultaneously herewith.
10 8.3 The Seller shall give to the Purchaser not less than 30 (thirty) days notice in writing of the Occupation Date, such notice to be followed as soon as possible thereafter by a practical completion certificate furnished by the Developer s architect, and such certificate shall be binding upon the Purchaser. 8.4 The failure on the part of the Company to take physical occupation (whether personally or by an agent) shall not affect the Occupation Date. 8.5 Should the Company, for whatever reason, not be given occupation of the Section and Parking Bay(s) on the estimated Occupation Date, the Purchaser shall accept occupation of the Section and Parking Bay(s) on any subsequent date upon which the Seller notifies the Purchaser that the Section and Parking Bay(s) are ready for occupation and such date will be deemed for all purposes to be the Occupation Date. It shall not be necessary for the Seller to give to the Purchaser any formal notice of a delayed Occupation Date and the Purchaser undertakes to accept a written notice given by the Seller for this purpose, provided that the practical completion certificate shall be furnished as soon as possible after such written notice is furnished. 8.6 The Purchaser will have no claim whatsoever against the Company or the Seller, should the Company for whatever reason fail to give or be given occupation on the estimated Occupation Date recorded in Schedule 1. 8.7 Until the Occupation Date, the Purchaser shall not sell, encumber, or in any other manner dispose of or part with the Subject Matter or any of his rights herein without the Seller s written consent first being had and obtained. When granting consent, the Seller shall be entitled to impose such conditions as it deems necessary. 9. DELIVERY As soon as possible after the Effective Date and against payment by the Purchaser of the price due in terms of clause 7, the Seller shall deliver to the Purchaser :- 9.1 the share certificates in respect of the Shares in the name of the Purchaser or his nominee; 9.2 a certified copy of the resolution of the directors of the Company, if applicable, approving the sale of the Shares to the Purchaser; 9.3 an Auditor s certificate confirming the face value of the Linked Loan, if applicable, and Loan Claims; 9.4 final disclosure schedule in terms of the provisions of Section 17 of the Act; 9.5 written cession, assignment and delegation of the Linked Loan and Loan Claims to the Purchaser. 10. RISK AND BENEFIT All risk and benefit in the Subject Matter shall pass to the Purchaser on the Effective Date.
11 11. LEVIES 11.1 The Purchaser records that he is aware of the provisions of the Use Agreement, Shareholders Agreement, Rental Pool Agreement and Articles relating to his liability to pay levies. 11.2 With effect from the Effective Date and as and when called upon to do so, the Purchaser undertakes and agrees to pay such levies as may from time to time be imposed by the Board and/or the Body Corporate and/or Manco pursuant to the relevant provisions of the Use Agreement, Shareholders Agreement, Rental Pool Agreement and the Articles. 12. ACKNOWLEDGEMENTS BY FIRST SHAREHOLDER The Purchaser acknowledges that :- 12.1 he is aware that the Section and Parking Bay(s) may be used by him only in terms of the provisions of the Use Agreement, Shareholders Agreement and Rental Pool Agreement and hereby agrees to abide by and adhere to the provisions thereof; 12.2 he will be bound by the provisions of the Articles; 12.3 he shall not be entitled for whatever reason to withhold, set off or retain any amounts owing by him to the Seller nor shall he be entitled to withhold or abate payment of any amount due to the Seller in terms of this Agreement by reason of any breach of the Seller s obligations or for any other reason whatsoever; 12.4 he shall have no claim against the Seller in respect of defects, whether latent, patent or otherwise in the Section and Parking Bay(s), it being recorded that any such claim will be by the Company against the Developer; and 12.5 all artistic, architectural, photographic and other visual presentation material including but not limited to models, brochures and pamphlets, used by the Seller and/or the Company and/or the Developer or its agents in marketing the Subject Matter and Hotel Scheme and rental pool to him and inducing him to enter into this agreement, have been prepared and distributed as advertising material only, and that the Company, the Seller and the Developer shall not be bound thereby 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 Company, the Seller or the Developer, and that the parties shall be bound by the terms contained in this Agreement only. 13. WARRANTIES 13.1 The Seller gives the Purchaser the warranties and undertakings set forth in Annexure A hereto, which shall be regarded as herein inserted and repeated. 13.2 The Purchaser agrees, warrants and acknowledges that :- 13.2.1 he has read the Schedules, including all the documents attached thereto which constitute an integral part of this Agreement; and
12 13.2.2 he will be bound by and will duly observe the contents and provisions of each of the aforesaid Schedules, as fully and effectually as if he had signed each one. 14. VOETSTOOTS Save as specifically set out in this agreement, the Company, the Seller and the Developer have made no representations and given no warranties or indemnities in respect of the Subject Matter and/or the Section and Parking Bay(s) and/or Hotel Scheme and/or rental pool in respect of anything relating thereto and the Shares sold and purchased and Loan Claims ceded, assigned and delegated, and de facto ownership of the Section and Parking Bay(s), are transferred on a voetstoots basis, and the Company, the Seller and the Developer, shall not be liable for any defects in the Section and Parking Bay(s) or the Subject Matter or in respect of anything relating thereto whether patent or latent. In any event, it is agreed that the practical completion certificate furnished by the Developer s architect shall be final and binding on the parties and conclusive proof that the Section and Parking Bay(s) are completed substantially in accordance with the specifications detailed in the Deed of Sale. 15. VIABILITY 15.1 Notwithstanding any provision to the contrary contained herein, at any time prior to 30 April 2008, the Seller, in its sole discretion, shall have the right to resile from this Agreement, should it be of the opinion that it has not achieved a sufficient velocity of sales to proceed with the Hotel Scheme. 15.2 Should the Seller elect to resile from this Agreement, it shall give notice to the Purchaser to that effect, which notice shall be dispatched prior to 31 May 2008, in which event this Agreement shall lapse and become null and void, and all amounts paid by the Purchaser together with interest earned thereon shall be refunded to the Purchaser. 15.3 Notwithstanding anything to the contrary contained herein, it is specifically recorded that :- 15.3.1 in the event of an objection/s to the Hotel Scheme or delay in obtaining requisite approvals serving to delay its commencement and/or completion and which delay, in the Seller s sole discretion will be for a period longer than 3 (three) months, then and in such event, the Seller shall be entitled to an election of which 7 (seven) days written notice has been given to that effect, to either : 15.3.1.1 cancel this Agreement as concluded by the Purchaser whereupon any funds held by the Attorneys together with interest accrued thereon shall be refunded to the Purchaser; or 15.3.1.2 inform the Purchaser that the purchase price has been adjusted in consultation with the Seller s quantity surveyor taking the estimated delay of such completion into account provided that
13 in these circumstances, the Purchaser shall thereupon himself have the right within 48 (forty eight) hours of receipt of the Seller s notice as referred to herein to agree to remain bound by the provisions of this Agreement but at the adjusted purchase price, failing which this Agreement shall be cancelled. 16. BROKERAGE 16.1 The Seller shall pay the Agents' commission attributable to the transaction recorded in this Agreement. 16.2 In the event of the cancellation of this Agreement as a result of default on the part of the Purchaser, the Purchaser hereby indemnifies and holds the Seller free and harmless against any claim which the Agent or any other agent may claim in respect of commission earned out of the transaction recorded herein. 17. INDEMNITY 17.1 Notwithstanding anything to the contrary in this Agreement, neither the Company, the Seller nor the Developer shall be responsible for any loss or damage to property or any injury to or death of any person being sustained in or about the Section or Hotel Scheme which the Purchaser or any member of the Purchaser s family, invitees, employees, representatives or agents may suffer arising from any act or omission whatsoever or neglect on the part of the Company, the Seller or the Developer, their servants, employees or agents. 17.2 The Purchaser or any other person shall not be entitled for any of the said reasons in clause 17.1 or for any other reason whatsoever, to withhold payment of any monies due to the Seller, the Body Corporate or Manco in terms hereof, and the Purchaser hereby indemnifies the Seller accordingly. 18. MANAGEMENT 18.1 It is recorded and agreed that the management of the Company will be undertaken on such basis as the Board may from time to time determine. It is recorded that that the Company has appointed Manco to administer its affairs. 18.2 Monies relating to the management and control of the Section and Parking Bay(s) will be entrusted to the Board. 18.3 The Board and Manco shall be entitled to formulate reasonable management rules from time to time which shall be binding on the Purchaser, subject to such rules not being in conflict with this Agreement, the Use Agreement, Shareholders Agreement or Rental Pool Agreement. 19. BREACH 19.1 In the event of the Purchaser committing a breach of any of the terms of this agreement and remaining in default for a period of 5 (five) Business Days after delivery
14 to him of a notice calling upon him to remedy such breach, then, in addition to and without prejudice to any other rights which the Seller may have at law or in terms of this agreement, the Seller shall be entitled either: 19.1.1 to declare the whole balance of the price owing by the Purchaser to the Seller in terms of this Agreement, inclusive of any interest to date of payment, to be forthwith due, owing and payable and to enforce the relevant provisions of this Agreement; or 19.1.2 to cancel this Agreement. 19.2 In the event of the cancellation of this Agreement in terms of clause 19.1.2, the Seller shall be entitled to retain as agreed liquidated damages all payments made by the Purchaser under this agreement. 19.3 In the event of it becoming necessary for the Seller to take any action against the Purchaser as contemplated herein, the Purchaser agrees to pay to the Seller all the costs and expenses incurred by it as between attorney and own client. In the event of this Agreement being cancelled by the Seller and the Purchaser having taken transfer of the Shares, the Purchaser hereby nominates and appoints the Seller irrevocably and in rem suam as his authorised attorney and agent and on behalf of the Purchaser to take all steps that may be necessary or requisite to sell, realise, cede or otherwise deal with the Subject Matter, the Linked Loan, Use Agreement, Shareholders Agreement and Rental Pool Agreement and on behalf of the Purchaser to sign whatever documents may be necessary or requisite to effect transfer of the Subject Matter and the Linked Loan and his rights in and to the Use Agreement, Rental Pool Agreement and Shareholders Agreement to the ultimate purchaser or transferee thereof. 20. JOINT AND SEVERAL LIABILITY In the event of there being two or more Purchasers under this agreement, they shall be jointly and severally liable in solidum for their obligations hereunder. 21. AGENT OR TRUSTEE In the event of this agreement being signed by any person: 21.1 on behalf of the Purchaser, then the person so signing, by his signature hereto, hereby binds himself as surety and co-principal debtor jointly and severally to the Seller for the due performance by the Purchaser of all his obligations in terms of, or in connection with or in any way whatever arising out of this agreement (or any amendment or cancellation thereof) under renunciation of the benefits of excussion, division and cession of action, with which he acknowledges himself to be fully acquainted; 21.2 as agent or trustee for a close corporation or company to be formed, in addition to being bound as surety and co-principal debtor in terms of clause 21.1 above, the person so signing shall, in the event of the said close corporation or company not being formed within 14 (fourteen) days of the Signature Date or being so formed failing
15 to validly adopt and ratify this Agreement, be bound personally as a party to this Agreement and shall be obliged to take transfer of the shares into his own name. 22. ASSISTANCE In the event of the Purchaser being a person who requires the consent of his spouse in terms of the provisions of the Matrimonial Property Act, then the Purchaser undertakes to procure such consent within 48 (forty eight) hours of the signature of this Agreement by the Purchaser. 23. CO-OPERATION Each of the parties hereby undertakes to :- 23.1 sign and/or execute all such documents; 23.2 do and to procure the doing by other persons, and to refrain and procure that other persons will refrain from doing, all such acts; and 23.3 pass, and to procure the passing of all resolutions of any company and/or close corporation; to the extent that the same may lie with such party s power and may be required to give effect to the import or intent of this Agreement, or any contract concluded pursuant to the provisions of this Agreement. 24. GENERAL PROVISIONS 24.1 No alteration, cancellation, variation of, or addition hereto shall be of any force or effect unless reduced to writing and signed by all parties to this Agreement or their duly authorised representatives. 24.2 This Agreement and the Schedules contain the entire agreement between all the parties and no party shall be bound by any undertakings, representations, warranties, promises or the like not recorded therein. 24.3 No indulgence, leniency or extension of time which any party may grant or show to any other party, shall in any way prejudice such party or preclude it from exercising any of its rights in the future. 24.4 All or any payments to be made under this Agreement shall be made by the Purchaser to the Attorneys free of exchange at Cape Town and without deduction or set off. 24.5 All monies payable by the Purchaser in terms of this Agreement but which remain unpaid on due date shall bear interest at the Prime Rate plus 2% for the period of delay. 24.6 Each payment made by the Purchaser shall be allocated first to the payment of interest and then to the payment of any other monies due and thereafter to the reduction of the price.
16 25. NOTICES AND DOMICILIA 25.1 Each of the parties chooses domicilium citandi et executandi ( domicilium ) for the purposes of the giving of any notice, the serving of any process and for any other purposes arising from this Agreement at their respective addresses set forth in Schedule 1. 25.2 Each of the parties shall be entitled from time to time, by written notice to the other, to vary its domicilium to any other address within the Republic of South Africa which is not a post office box or poste restante. 25.3 Any notice given and any payment made by a party to any of the others ( the addressee ) which :- 25.3.1 is delivered by hand during the normal business hours of the addressee at the addressee s domicilium for the time being shall be presumed, unless the contrary is proved by the addressee, to have been received by the addressee at the time of delivery; 25.3.2 is posted by prepaid registered post from an address within the Republic of South Africa to the addressee at the addressee s domicilium for the time being shall be presumed, unless the contrary is proved by the addressee, to have been received by the addressee on the fourth day after the date of posting; 25.3.3 is transmitted by telefax during normal business hours of the addressee shall be presumed, unless the contrary is proved by the addressee, to have been received by the addressee within one hour after receipt of transmission. 25.4 Notwithstanding the provisions of clauses 25.1 to 25.3, in the event that a written notice or any process is actually received by a party, such receipt shall be valid for all purposes under this Agreement notwithstanding that it was not received at a party s chosen domicilium. 26. DISPUTE RESOLUTION 26.1 Should any dispute, disagreement or claim arise between the parties (called hereafter the dispute ) concerning this Agreement, the parties shall endeavour to resolve the dispute by negotiation. 26.2 This entails one of the parties inviting the other or others in writing to meet and to attempt to resolve the dispute within 14 (fourteen) days from date of written invitation. 26.3 If the dispute has not been resolved by such negotiation within 14 (fourteen) days of the commencement thereof by agreement between the parties, then the parties shall :- 26.3.1 submit the dispute to mediation to be administered by the Arbitration Foundation of Southern Africa ( AFSA ), upon such terms as agreed between the parties and the secretariat of the AFSA; and
17 26.3.2 failing agreement as aforesaid within 14 (fourteen) days of the dispute being submitted to mediation, the parties shall refer the dispute to arbitration as provided in clause 26.5. 26.4 The decision of the Mediator shall become final and binding within 14 (fourteen) days of delivery thereof to the parties, unless one or either of the parties disputes the Mediator s decision by written notice to the other party within the aforesaid 14 (fourteen) day period, in which event the dispute shall be referred to arbitration in accordance with the provisions of clause 26.5. 26.5 Failing agreement as referred to in clause 26.3.2 above or in the event of any of the parties furnishing its notice of dispute within 14 (fourteen) days of the Mediator s decision as envisaged in terms of clause 26.3 above, the dispute shall be submitted to arbitration for final resolution in accordance with the rules of AFSA by an arbitrator or arbitrators appointed by AFSA. 26.6 The parties agree in terms of the rules of AFSA that the initial award of an arbitrator shall be subject to a right of appeal in terms of those rules. 26.7 This clause 26 shall not preclude any party from obtaining interim relief on an urgent basis from a court of competent jurisdiction. 26.8 Unless otherwise agreed in writing by all the parties, any such negotiation, mediation or arbitration shall be held in Cape Town. 27. COSTS 27.1 The Seller shall pay all costs of the Attorneys of and incidental to the drafting of this agreement. 27.2 The Seller shall pay all costs incurred in the implementation of this Agreement as well as the stamp duty, VAT or transfer duty calculated thereon and on the purchase price and attributable to this transaction. 28. INTERPRETATION Unless the context indicates otherwise, in this Agreement :- 28.1 the head notes to the paragraphs are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate; 28.2 words importing the singular shall include the plural and vice versa and words importing the masculine gender shall include females and words importing persons shall include partnerships and bodies corporate and vice versa; 28.3 if any provision in the preamble to this Agreement is a substantive provision conferring rights or imposing obligations on any party, then notwithstanding that such provision is contained in the preamble, as the case may be, effect shall be given thereto as if such provision were a substantive provision in the body of this Agreement, as the context may determine;
18 28.4 when any number of days is prescribed, same shall be reckoned exclusively of the first and inclusively of the last day, unless the last day falls on a Saturday, Sunday or public holiday, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday; 28.5 the rule of interpretation that an agreement will be interpreted against the party responsible for the drafting and any similar rules of interpretation shall not apply to this Agreement and the parties waive any rights they have to rely on such rules; 28.6 this Agreement shall be binding on the estates, heirs, executors, administrators, liquidators, trustees or assigns of the parties as fully and effectually as if they had signed this Agreement in the first instance and reference to any party shall be deemed to include such party s estate, heirs, executors, administrators, trustees, assigns or liquidators, as the case may be; 28.7 any provisions of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement shall survive any termination or expiration of this Agreement and continue in full force and effect; 28.8 this Agreement shall be governed by and interpreted in accordance with the laws of the Republic of South Africa; 28.9 the parties agree that each clause of this Agreement is separate and severable from the remaining provisions thereof and if any provision of this Agreement is or is retrospectively found to be defective or rendered unenforceable then only that provision shall be deemed to be modified to the extent and in the manner necessary to render it consistent with the enactment rendering it unlawful, or if such modification is impossible to be pro non scripto. The remaining clauses shall continue to be of full force and effect; 28.10 where figures are referred to in words and in numerals, if there is any conflict between the two, the words shall prevail; and 28.11 unless otherwise stated, all amounts referred to in this Agreement are exclusive of VAT and insofar as any VAT is payable on any such amounts, it shall be paid by the party making the payment in question.
19 Annexure A Warranties Defined terms (connoted with capital letters) shall have the respective meanings ascribed thereto in the agreement to which this Annexure A is attached, unless the context clearly indicates to the contrary. The Seller hereby warrants and undertakes in favour of the Purchaser, as at the Signature Date and the Effective Date (unless the context otherwise indicates) that :- General 1. the books and records of the Company will continue correctly to reflect all its transactions, income and liabilities, if any; 2. no resolutions will be passed by the members or directors of the Company, save for such resolutions as may be necessary in order to give effect to the provisions of this Agreement; 3. none of the assets of the Company will be sold or otherwise disposed of; 4. no dividend will be declared or paid by the Company; Incorporation and Share Capital 5. the Company shall be a Share Block Company as envisaged in the Act; 6. the authorised share capital of the Company shall be the sum of R13,00 (thirteen rand) divided into 13 (thirteen) ordinary par value shares of R1,00 (one rand), each ranking pari passu in all respects and each entitled to equal voting rights; 7. As at the Effective Date, the issued share capital of the Company shall be 13 (thirteen) shares, which issued shares shall be fully paid up and validly issued; 8. the Company shall be under no obligation to increase its authorised share capital and/or issue further shares; 9. the Company will not have varied or amended its memorandum and articles of association other than as is required to convert the Company to a share block company; Administration 10. the books and records of the Company will have been properly maintained according to law and shall be capable of being written up within a reasonable time so as to record: 10.1 all transactions entered into by it or to which it may have been a party; 10.2 all its income and expenditure;
20 11. the Company will not have any promissory notes, bills of exchange, bills of sale or other securities issued or negotiated by it outstanding other than in respect of accounts payable in the ordinary, normal and regular course of business; 12. all resolutions passed by the shareholders and directors of the Company will have been recorded in the minute books of the Company; The Section and Parking Bay(s) 13. as at the transfer date referred to in the Deed of Sale, the Company will be the registered and beneficial owner of the Section and Parking Bay(s); 14. save as is contained in the title deeds in respect of the Section and Parking Bay(s), the Section and Parking Bay(s) are not subject to any servitude or any other rights whatsoever and no agreements or arrangements exist in terms of which any person has any claim to any servitude over the Section and Parking Bay(s) or any part thereof; 15. no person has been called upon by any competent authority and the Company will not be under any obligation to make any alterations, repairs or additions to the Section and Parking Bay(s); 16. the Company and the Seller have given no option or right to any person, firm or company, to purchase, rent and/or acquire the Section and Parking Bay(s), other than in terms of the Rental Pool Agreement; Liabilities 17. insofar as the income tax returns and income tax assessments of the Company are concerned: 17.1 all returns shall be up to date; 17.2 there shall be no outstanding disputes with the South African Revenue Services; 17.3 no dispute with the South African Revenue Services will have been intimated or threatened; 17.4 all income tax assessments will have been paid and will be up to date; 17.5 all provisional tax payments will have been paid and will be up to date.