agreement of sale of immovable property auction - Pam Golding ...

Suite A101, Cape Quarter, 72 Waterkant Street, Green Point 8001, P.O. Box 2398, Cape Town 8000Telephone +27 (0) 21 417 7878 Facsimile +27 (0) 21 417 7879, capequartercommercial@pamgolding.co.zawww.pamgolding.co.za/commercialAGREEMENT OF SALE OF IMMOVABLE PROPERTYAUCTIONWHEREAS Pam Golding Commercial (Proprietary) Limited, Registration No.1995/008831/07 ("the auctioneer") duly instructed by___________________________, Identity/Registration No.______________________ ("the Seller") hereby offers for sale by public auction thefollowing immovable property:Erf no. ______________ in the City/Municipality of ________________________,Western Cape Province, in extent _________ m 2ORSection no. _________________ in the Sectional Title Scheme No. SS __________known as _____________________________ together with all exclusive use areaspertaining thereto (including/excluding parking bay no.'s_______________________) as well as an undivided share in the common propertytogether with all permanent improvements, as well as all fixtures and fittings (unlessexcluded in terms of annexure "B") thereon ("the property") subject to the terms andconditions contained herein.1. Offer and Acceptance1.1. This document constitutes an offer by the Purchaser to the Seller topurchase the property and such offer is subject to acceptance by theSeller until midnight on _______________________________.Pending such acceptance, the Purchaser shall not be entitled towithdraw this offer, which shall remain binding upon it.1.2. Should the Seller not accept the Purchaser's offer, the auctioneer shallrepay to the Purchaser any deposit and commission paid by it.

2. Sale of the Property2The Seller hereby sells to the Purchaser, who hereby purchases from theSeller the property subject to the terms and conditions set out herein.3. Purchase PriceThe purchase price of the property is the amount ofR____________________(___________________________________________ Rand) (plus Value-Added Tax ("VAT"), if applicable).4. Payment of the Purchase PriceThe purchase price (plus Value-Added Tax ("VAT"), if applicable) in respectof the property shall be paid as follows:-4.1. a cash deposit of 5% (five percent) of the purchase price shall be paidby the Purchaser to the auctioneer immediately on or before signaturehereof by the Purchaser;4.2. the balance of the purchase price shall be paid in cash againstregistration of transfer of the property into the name of the Purchaser("the transfer date");4.3. the Purchaser shall furnish the Seller's conveyancers within 14(fourteen) business days of signature hereof by the Seller ("thesignature date"), with a guarantee by a bank or financial institutionapproved by the Seller, payable free of exchange, for payment of thebalance of the purchase price on the transfer date.ORthe Purchaser shall furnish the Seller's conveyancers, within 7 (seven)business days of their request, with a guarantee by a bank or financialinstitution approved by the Seller, payable free of exchange, forpayment of the balance of the purchase price.ORthe Purchaser shall secure the balance of the purchase price, bypayment in cash to the Seller's conveyancers, within ____(___________) days of the signature date, which conveyancers shallhold same in trust, pending the transfer date.5. Transfer of the Property

35.1. Transfer of the property shall be passed by the Seller's conveyancersas soon as possible after the signature date.5.2. The Purchaser shall pay all transfer costs to enable registration oftransfer of the property into its name including transfer duty or VAT(whichever is applicable), transfer costs, survey costs and costs ofdiagrams and all other costs necessarily incurred, which amountsshall be paid by the Purchaser upon demand by the Seller'sconveyancers.6. Possession, Occupation and Risk6.1. Possession and occupation of the property shall be given by the Sellerto the Purchaser on the transfer date, from which date all risk in andbenefit to the property shall pass to the Purchaser.6.2. The Seller warrants that the property shall be maintained in the samecondition from the signature date to the transfer date, fair wear andtear excepted.7. Rates, Taxes and Sundry Charges7.1. Liability for all rates, municipal or otherwise, taxes, body corporatelevies and other proprietary charges payable in respect of the propertyshall be apportioned between the Seller and the Purchaser, the Sellerbeing responsible for a proportionate share for the period prior to thetransfer date and the Purchaser for a proportionate share thereafter.7.2. The Purchaser shall upon request of the Seller's conveyancersdischarge the sum so payable under clause 7.1.8. Warranties and Acknowledgements8.1. The Seller and the Purchaser ("the parties") each acknowledge thatthey have read and understood the conditions of auction ("theconditions of auction") of Pam Golding Commercial as were readand/or displayed at the auction and agree to be bound by suchconditions of auction.8.2. The parties agree and acknowledge herewith that no warranties orrepresentations were given or made by any of the parties, or theirrepresentatives that have not been embodied in this agreement ofsale as signed by the parties.

48.3. If there is more than one Purchaser, their liabilities hereunder shall bejoint and several.9. Voetstoots, Extent and Title Conditions9.1. The property is sold voetstoots, as it stands now and the Purchasershall be deemed, prior to the sale, to have made itself fully acquaintedwith the property and with all its defects, whether latent or patent, andto have purchased the property subject thereto.9.2. The Seller renounces all claims to any excess and neither the Sellernor the auctioneer will be answerable for any deficiency in thedeclared extent of the property and no warranties are given in respectof the boundaries of the property.9.3. The property is sold subject to the terms and conditions andservitudes mentioned or referred to in the current and/or prior titledeeds to the property.9.4. The Purchaser acknowledges that it has not been induced intoentering into this agreement by my express or implied information,statement, advertisement or representation made by the auctioneer orany other person, or by or on behalf of the Seller.10. Fixtures and FittingsThe property is sold with all fixtures and fittings of a permanent naturesituated thereon at the auction date, unless specifically excluded in annexure"B" hereto. Neither the Seller nor the auctioneer makes any warranties as tothe condition of the fixtures and fittings nor their suitability for the Purchaser'spurpose.11. Infestation/Electrical Certificate11.1. The Seller shall have the building on the property inspected by aGovernment approved inspector for infestation by wood destroyingorganisms and shall arrange, where necessary, for the treatment oftimbers so infested, or the replacement thereof by pre-treated timberdepending on the recommendations of the said inspector.11.2. The Seller shall have all electrical installations on the propertyinspected in terms of the Electrical Installations Regulations of 1992and shall arrange where necessary for the repair or replacementthereof in order to obtain such certificate and all costs thereof shall befor the account of the Seller.

12. Auctioneer and Auctioneer's Commission512.1. The Purchaser shall be liable for auctioneers commission of 10% (tenpercent) (plus VAT thereon) of the purchase price, which commissionshall be deemed to have been earned by and shall be payable to theauctioneer immediately upon conclusion of the auction.12.2. Without limiting any right granted to the auctioneer and/or the Seller interms hereof or in terms of any applicable law, should this agreementbe cancelled upon the Purchaser failing to comply with its obligationsherein, the commission shall be forfeited by the Purchaser, and shallnot be refunded to it.12.3. The auctioneer shall not be responsible in any way for any defects orother errors in the description of the property or for any other matterrelating to it.12.4. The auctioneer shall not be responsible in any way whatsoever for thecarrying out of the terms of this agreement by either partynotwithstanding that the auctioneer may assist one or both parties inthe completion of this transaction.13. Company or Close Corporation to be formed13.1. In the event of the Purchaser making this offer in its capacity astrustee for a company or close corporation to be formed and thePurchaser fails within 20 (twenty) days from the signature date, toregister such company or close corporation having as one of itsobjectives the ratification and adoption of this agreement, or suchcompany or close corporation fails to adopt or ratify this agreementwithin 7 (seven) days after date of its incorporation, then in such eventthe Purchaser shall be deemed to have entered into this agreement inits personal capacity and to have acquired all the rights andobligations of the Purchaser under this agreement.13.2. In the event of such company or close corporation being registeredand duly adopting or ratifying this agreement then the Purchaser by itssignature hereunder, shall be deemed to bind itself to the Seller assurety and co-principal debtor in solidum with such company or closecorporation for the due performance by it as Purchaser of the terms,conditions and obligations arising out of this agreement.14. Companies, Close Corporations or Trusts

6Should the Purchaser be a company, close corporation or trust, the personmaking this offer on behalf of such Purchaser, by his signature to thisagreement, interposes and binds himself as surety for and co-principal debtorwith the Purchaser for the due and proper discharge of all the Purchaser'sobligations arising from this agreement, including damages, underrenunciation of the benefits of division and excussion.15. Nomination15.1. The Purchaser shall be entitled, by notice in writing to that effectaddressed to the Seller, to nominate a nominee in its place asPurchaser, upon the following terms and conditions:15.1.1. the aforesaid notice shall be handed to the Seller by not laterthan close of business on the signature date;15.1.2. the notice shall set out the name and address of the nomineeso nominated as Purchaser;15.1.3. the notice shall be accompanied by the nominee's writtenacknowledgement:-15.1.3.1. that it is fully aware of all the terms and conditionsof this agreement of sale as if fully set out in suchwritten acknowledgement; and15.1.3.2. that it is bound by the provisions of this agreementof sale as the Purchaser.15.2. Should the Purchaser nominate a nominee in terms of this clause,then:-15.2.1. all reference to the Purchaser in terms of this agreement ofsale shall be deemed to be a reference to its nominee; and15.2.2. the Purchaser by its signature hereto, hereby interposes andbinds itself as surety or and co-principal debtor with thenominee for the due and proper discharge of all the nominee'sobligations arising from this agreement, including damages,under renunciation of the benefits of division and excussion.15.3. Should the Purchaser fail to nominate as nominee in terms of thisclause, then it shall be bound to perform all its obligations asPurchaser in terms hereof.

16. Sold Board7The auctioneer will have the right to erect and display a "Sold" board, or suchother boards as it may determine, at the property for a period of up to _____(______________) days from the signature date.17. Existing LeasesThe property is sold subject to all existing leases, if any, of which thePurchaser acknowledges that it is fully aware, including the terms andconditions thereof.18. Co-operationEach of the parties hereby undertakes to:18.1. sign and execute, on request by the Seller's conveyancers, all suchdocuments necessary to register transfer of the property including, butnot limited to, the execution of the necessary Power of Attorney andVAT/transfer duty declarations;18.2. pass and to procure the timeous passing of all such resolutions ofdirectors and shareholders of any company or members of any closecorporation or trustees of any trust;to the extent that the same lies within the power of such party and may berequired to give effect to the import or intent of this agreement, or anycontract concluded pursuant to the provisions of this agreement.19. Notices and Domicilia19.1. The Seller chooses its addresses set out in annexure "A" of thisagreement as its domicilium citandi et executandi for the service of allnotices.19.2. All notices in terms of this agreement may be delivered by hand at thedomicilium citandi et executandi of the Seller (in which case it will bedeemed to have been received when delivered) or by telefax or by e-mail (in which case it will be deemed to have been received on theday of dispatch by telefax or by e-mail). Such receipt is deemed tohave been received notwithstanding that the Seller nor any otherperson is present at any such address at the time.19.3. The Seller is entitled to change its domicilium citandi et executandi toanother street address within the Republic of South Africa or another

8telefax or e-mail address by written notice to Pam GoldingCommercial. Such change of domicilium citandi et executandi willtake effect on the 7 th (seventh) day after receipt by Pam GoldingCommercial of the notice referred to herein.19.4. Notwithstanding anything to the contrary contained herein, a writtennotice actually received by the Seller will be adequate written notice toit, notwithstanding that it was not delivered as envisaged herein.20. JurisdictionThe parties hereby consent to the jurisdiction of the Magistrate's Court havingjurisdiction in terms of Section 28 of the Magistrate's Court Act No. 32 of1944, for any proceedings arising herefrom irrespective of the monetary valueof the claim, and this clause will be deemed to constitute the required writtenconsent conferring jurisdiction upon the court pursuant to Section 45 of theaforesaid Act.21. ArbitrationIn the event of a dispute between the parties arising from or in connectionwith this agreement, such dispute may at the instance of the party wishing toinstitute action be resolved by an arbitrator in accordance with the provisionsof the rules of the Arbitration Foundation of Southern Africa, or failing suchrules or foundation, such dispute will be resolved in terms of the provisions ofthe Arbitration Act No 42 of 1965.22. Breach22.1. Subject to the provisions of clause 22.3 below, if the Purchasercommits a breach of this agreement and/or fails to comply with any ofthe provisions hereof, the Seller shall be entitled to give the Purchaser7 (seven) days notice in writing to remedy such breach and/or failureand if the Purchaser fails to comply with such notice or in the event ofthe Purchaser suffering the judgment of any competent Court of Lawto be taken against it and failing to settle same within 7 (seven) daysor application being made for the sequestration of the Purchaser'sestate as insolvent (or for its liquidation or judicial management in thecase of a body corporate) or if the Purchaser assigns or offers toassign its estate for the benefit of its creditors, then the Seller shallforthwith be entitled, but not obliged, without prejudice to any otherrights or remedies which the Seller may have in law, including the rightto claim damages to:-

922.1.1. to cancel this agreement, in which event the Seller, afterpayment of the commission due to Pam Golding Commercialin terms of clause 12.1, shall be entitled to retain all amountspaid to either of them or the Seller's attorneys under thisagreement, either as rouwkoop, or by way of penalty, or asliquidated damages; or22.1.2. to claim immediate performance and/or payment of all thePurchaser's obligations hereof.22.2. Notwithstanding the provisions of clause 22.1 above, if the Purchaserfails to make any payment due in terms of this agreement, the Sellershall forthwith be entitled but not obliged, in addition to and withoutprejudice to any other rights or remedies which the Seller may have inlaw or in terms of clause 22.1 above, including the right to claimdamages, to summarily cancel, by notice to the Purchaser, thisagreement of sale and put the property up again for sale by way ofpublic auction or private treaty.22.3. The Seller's right to claim damages in terms hereof shall include, butnot be limited to, all additional costs associated with the re-auctioningor re-selling of the property and any additional advertising costs.22.4. Without prejudice to any other rights or remedies of the Seller in law,should the Purchaser fail to pay any amount on due date in terms ofthis agreement, the Purchaser shall pay the Seller interest on suchamount at 2% (two percent) above the prime overdraft rate as chargedfrom time to time by the Standard Bank of South Africa Limited (or itssuccessor) calculated from the due date for payment of such amountuntil the actual date of payment thereof (both days inclusive).23. Legal CostsThe Purchaser shall be liable for all legal costs incurred by the Seller inenforcing the provisions of this agreement on an attorney and client scale,including collection commission.24. General Provisions24.1. This document, together with the conditions of auction, constitutes thewhole agreement of sale between the parties in regard to the mattersregulated by this agreement. No party will be bound by any expressor implied term, representation, warranty, promise or the like notrecorded herein.

1024.2. No addition to, variation of, or agreed cancellation of this agreement ofsale and/or the conditions of auction will be of any force or effectunless in writing and signed by or on behalf of the parties.24.3. No cession, delegation or assignment of any rights or obligations interms of this agreement of sale and/or the conditions of auction will beof any force or effect unless in writing and signed by or on behalf ofthe parties.24.4. No relaxation or indulgence which any party may grant to the other willconstitute a waiver of the rights of that party and will not preclude thatparty from exercising any rights which may have arisen in the past orwhich might arise in the future.24.5. Any provision of this agreement of sale or the conditions of auction,which contemplates performance or observance subsequent to anytermination or expiration of this agreement, will survive anytermination or expiration thereof and continue in full force and effect.24.6. Any term or provision of this agreement of sale or the conditions ofauction found by a court of competent jurisdiction to be invalid, illegalor otherwise unenforceable will not affect the other terms or provisionshereof or the whole of such document, but such term or provision willbe deemed modified to the extent necessary in the court's opinion torender such term or provision enforceable, and the rights andobligations of the parties will be construed and enforced accordingly,preserving to the fullest permissible extent the intent and theagreement of the parties.24.7. Each provision of this agreement of sale and/or the conditions ofauction is severable, the one from the other.24.8. This agreement of sale may be signed in as many counterparts asmay be needed, each of which together will constitute one and thesame agreement.24.9. Words importing the singular shall include the plural and vice versa,and words importing the masculine gender shall include females andwords importing persons shall include partnerships and bodiescorporate and vice versa.24.10. A reference to a business day is a reference to any day excludingSaturday, Sunday or a public holiday within the Republic of SouthAfrica.

1124.11. Any reference to an enactment is to that enactment as at the signaturedate and as amended or re-enacted from time to time.

12THIS AGREEMENT OF SALE HAVING BEEN PUBLICLY READ, THEPROPERTY WAS PUT UP FOR SALE BY PUBLIC AUCTION ON THE ______DAY OF ____________________________ 2007And sold to:MR/MRS/MS__________________________________________________________(herein referred to as the "Purchaser")MARITAL STATUS(In/Out of Community of Property)SPOUSE'S____________________________________________________NAMESPOUSE'S ID NO____________________________________________________DATED at _____________ on this ____ day of ________________________20_____.PURCHASER – For and on behalf of the Purchaser________________________________________(Identity Number: _________________________),who warrants that he is duly authorized theretoPURCHASER’s spouse(if married in community ofproperty)DATED at _____________ on this ____ day of ________________________20_____.SELLER – For and on behalf of the Seller________________________________________(Identity Number: _________________________),who warrants that he is duly authorised theretoSELLER’s spouse(if married in community ofproperty)The benefits of this contract are accepted for and on behalf of the auctioneer.For and on behalf of Pam Golding Commercial(Proprietary) Limited, who warrants that he is dulyauthorised thereto

13ANNEXURE "A"The following information is required for conveyancing purposes:PURCHASERFull Name(s):____________________________________________________Identity No.:____________________________________________________Date of Birth: ___________________ Place of Birth:_________________Marital Status: __________________ Place and_____________________________Country of Marriage:How married: __________________ Antenuptial Contract No.:________Full Name of Spouse:____________________________________________________Identity No. ofSpouse:____________________________________________________Present Residential Address:______________________________________________________________________________________________Postal Address:______________________________________________________________________________________________Telephone Numbers (home)_______________________________________________(cell)_______________________________________________(work)_______________________________________________

(Email)______________________________________________14(Fax)_______________________________________________Employer:____________________________________________________Reference:____________________________________________________Bond Application No.: ____________________________________________Branch:

SELLER15Full Name(s):____________________________________________________Identity No.:____________________________________________________Date of Birth: ___________________ Place of Birth:_________________Marital Status: __________________ Place and_____________________________Country of Marriage:How married: __________________ Antenuptial Contract No.:________Full Name of Spouse:____________________________________________________Identity No. ofSpouse:____________________________________________________Present Residential Address:______________________________________________________________________________________________Future Residential Address:______________________________________________________________________________________________Postal Address:______________________________________________________________________________________________Telephone Numbers (home)_______________________________________________(cell)_______________________________________________(work)_______________________________________________

(Email)______________________________________________16(Fax)_______________________________________________Employer:____________________________________________________Reference:____________________________________________________PresentBondholders:___________________________________________________Branch: _____________________ Account No.:_________________Conveyancer:____________________________________________________Contact person:____________________________________________________Address:________________________________________________________________________________________________________Telephone Number: ____________________ Fax Number:_________________

17ANNEXURE "B"The following list details the fixtures and fittings that are excluded from theoffer to sell.DESCRIPTION

18ANNEXURE "C"DEED OF SURETYSHIPI/We the undersigned,_________________________________hereby bind myself/ourselves as surety(ies) and co-principal debtor(s), jointly andseverally, in solidum for and on behalf of the aforegoing Purchaser to and in favour ofthe aforegoing Seller for all the obligations of the Purchaser under the Agreement ofSale aforegoing and in particular for all amounts of money that may be due, includingdamages, from whatsoever cause arising under renunciation of the benefits ofdivision and excussion.I/We do further acknowledge that I am/we are fully aware of all the terms andconditions of the Agreement of Sale as if fully set out herein.I/We accept domicilium citandi et executandi at my address hereinafter set out.SIGNED at ________________ on this _____ day of ______________________20___AS WITNESSES:1. ______________________________________________________SURETY – Duly authorised2. ______________________________________________________SPOUSE OF SURETY (Ifmarried in community ofproperty)PHYSICAL_______________________________________________ADDRESS:______________________________________________________________________________________________TELEPHONE_______________________________________________NUMBER: