COMMITMENT AGREEMENT FOR THE SALE OF A PERIODICAL HOUSING RIGHT TO AN IMMOVABLE PROPERTY UNDER CONSTRUCTION Entered into by and between The COMMITTED SELLER Barra Lodge Lda, a duly registered company in terms of the laws of the Republic of Mozambique at the Inhambane Commercial Registrar under registration number, herein represented by Dave Law, passport number dire number and The COMMITTED PURCHASER Full Names: Identity Numbers /Registration No : Full name of Representative : Marital Status: (if the COMMITTED PURCHASER is an individual) (* delete below which does not apply) In Community of Property / out of Community of Property / Other If other please specify : If married in community of property Full names of Spouse : Identity Number : Physical Address: Postal Code: Postal Address: Postal Code:
2 Tel. No.(h) (w) cell: Fax No: email: RECORDAL The Mozambique Government has enacted legislation inline with their vision for tourism in the country. In terms of the Regulations to the Right of Periodic Habitation decree no 39/2007 of 24 August, it is possible to purchase Periodical Property Rights to a house or unit. Such rights are established by public deed. The Committed Seller has agreed to sell to the Committed Purchaser who has agreed to purchase a periodical property right in the Holiday Unit at Barra Cabanas. The Committed Seller is and will at the effective date be the registered and beneficial owner of the entire Barra Cabanas development and all its buildings and is entitled and able to give to the Committed Purchaser, a free and unencumbered Periodical Property Right to the Holiday Unit subject to the terms of this agreement and its annexures. The parties wish to record their agreement as set out herein. The Parties agree as follows: 1 INTERPRETATION A Reference to one gender shall include the other genders, except where the context indicates otherwise. A reference to the singular shall include the plural and vice versa, except where the context indicates otherwise.
3 A reference to a person shall include a reference to a natural person and a legal person and a reference to a natural person shall include a legal person and vice versa, except where the context indicates otherwise. Where the day on or by which anything is to be done is not a business day, it shall be done on or by the first business day thereafter; For purposes of this agreement, a reference to business days shall mean the business days in Mozambique and South Africa. Public holidays in South Africa and Mozambique and well as Saturdays and Sundays shall not be deemed to be business days. When any number of days is prescribed in this agreement, 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; The head notes to the clauses in this agreement are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate. Reference to this agreement shall include this agreement and all annexures hereto. The following annexures form part of this agreement: Annexure A Floor Plan and Site Plan. Annexure B List of contents in the Holiday Unit. Annexure C Usage roster. Annexure D Management, Use and Regulatory Agreement. Annexure E Barra Cabanas Rules of Conduct. Annexure F Development information document.
4 2 SALE, CESSION AND ASSIGNMENT 2.1 The Committed Seller hereby commits, with effect from the effective date, to sell to the Committed Purchaser, who hereby commits to purchase a Periodical Property Right in the Holiday Unit. The Periodical Property Right is in respect of the Holiday Unit: Share Block Number: For: Cabana No: Annual Week Number/s:. 2.2 The Committed Seller commits, with effect from the effective date, to cede and assign its relevant right, title and interest in and to the Periodical Property Right in the Holiday Unit to the Purchaser, subject to the terms and conditions of this agreement and its annexures, and subject to the aforesaid, the Purchaser shall accept such cession and assignment. 3 PAYMENT OF THE PURCHASE PRICE 3.1 The payment terms of the purchase price of the Periodical Property Right in the Holiday Unit is as follows: First Payment A non-refundable deposit of 10% (Ten Percent) of the purchase price is due and payable within 10 (Ten) days of date of signature hereof:
5 R (Written in words: ) Second Payment 20% (Twenty Percent) of the purchase price is due and payable within 30 (Thirty) days of date of signature hereof: R (Written in words: ) Third Payment 50% (Fifty Percent) of the purchase price is due and payable within 90 (Ninety) days of date of signature hereof: R (Written in words: ) Fourth and Final Payment The remaining 20% (Twenty Percent) of the purchase price is due and payable upon the completion date of the Holiday Unit: R (Written in words: ) 3.2 All prices stated are payable in South African Rands (ZAR). 3.3 All payable monies are to be paid over to the Committed Seller s South African attorneys trust account. The Committed Seller s South African attorneys are Stokes Attorneys, Unit 1 Villa de la Rosa, Thelma Avenue, Clubview, Centurion, Gauteng All monies are to reflect in the trust account on the respective due date.
6 The banking details are as follows: Stokes Attorneys Trust Account Bank: First National Bank Account Number: 62237948156 Branch: Eldoraigne Branch Code: 251145 3.4 Upon payment of full purchase price, the Committed Seller s South African Auditors, Kruger & Co, Oakfin House, 1 st Floor, West Block, 367 Oak Avenue, Randburg, will apply, on behalf of the Committed Purchaser, for a South African Reserve Bank Foreign Exchange Clearance Certificate through a South African branch of First National Bank. 3.5 The issuing of a South African Reserve Bank Foreign Exchange Clearance Certificate is dependant upon the South African Revenue Service issuing a tax clearance certificate. 3.6 Once the Reserve Bank has issued the Foreign Exchange Clearance Certificate, First National Bank will be instructed to transfer the monies over to the Committed Seller s Mozambican bank account. 3.7 It is the duty of the Committed Purchaser to fully cooperate with all parties involved in order for the funds to be paid over to the Committed Seller s Mozambican bank account. 3.8 The Committed Purchaser is bound by all exchange controls of the relevant governments in effecting the cross border transfer of funds. 3.9 All costs and charges associated with the transfer of funds are to be borne by the Committed Purchaser.
7 4 NOTARIAL DEED OF SALE 4.1 The Notarial Deed of Sale shall not be signed before the Committed Seller has confirmation of receipt of the full purchase price in their Mozambican bank account. 4.2 The Committed Seller shall give 20 (twenty) days written notice, in terms of clause 9, to the Committed Purchaser of the date, time and place when and where the Notarial Deed of Sale will be signed. 4.3 The Committed Seller is obliged to sign the Notarial Deed of Sale and all other necessary documents once the full purchase price has been received. 4.4 Once the Notarial Deed of Sale is duly signed, the Committed Purchaser may then register the right, in the Real Property Registry, in his name or in the name of any other person or entity that he nominates. 4.5 The costs relating to the Notarial Deed of Sale and its registration shall be borne by the Committed Purchaser. These costs include but are not limited to, legal fees, stamp tax on the value of the transaction, registration costs and administrative costs. 5 RIGHTS AND DUTIES OF COMMITTED PURCHASER 5.1 The Committed Purchaser is entitled, upon the issuing of a Real Property Right Certificate: 5.1.1 to fully participate in the endeavours of the Home Owners Association in managing the development. 5.1.2 to take occupation of the relevant Holiday Unit, for the relevant period.
8 5.1.3 to the use and enjoyment of the common areas of the development. 5.2 The Committed Purchaser shall: 5.2.1 upon signature hereof, sign the Usage Agreement attached hereto as Annexure D. 5.2.2 be liable to pay a Daily Usage Levy of R27.75 (Twenty seven Rand seventy five cents) per person per day when the Holiday Unit is in use in terms of his Periodical Property Right. 5.2.2 comply with the rules and regulations of the Home Owners Association and the Management Company. 5.2.3 pay a Weekly Levy of R450 (Four hundred and fifty Rand) for each 7 (Seven) day week to which the Committed Purchaser has a Periodical Property Right over. 5.3 The Committed Purchaser acknowledges that after completion of construction of the Holiday Unit the Committed Seller and/or its agents, contractors and workmen may be engaged in erecting other buildings and other structures on the development and the Committed Purchaser agrees that the Committed Seller and/or its agents, contractors and workmen shall at all times have access to the development or Holiday Unit for the purposes of carrying out such work as may be necessary to enable the Committed Seller to procure the erection of the aforementioned. The Committed Purchaser shall have no claim whatsoever against the Committed Seller by reason of any inconvenience or interference with the Committed Purchaser s rights arising herefrom and the Committed Purchaser shall not, in any way whatsoever, interfere with the performance of the aforesaid work.
9 6 RIGHTS AND DUTIES OF COMMITTED SELLER 6.1 The Committed Seller is entitled to and shall: 6.1.1 upon signature hereof, sign the Usage Agreement attached hereto as Annexure D. 6.1.1 establish a rental pool. 6.1.2 appoint a management company to administer the rental pool and manage, maintain and market the Barra Cabanas development and the Holiday Units. 6.2 The anticipated completion date of the Holiday Unit is. 6.3 The Committed Seller shall ensure that the Holiday Unit is erected substantially in accordance with the plan and is sufficiently complete for beneficial occupation, by the anticipated completion date, provided the full purchase price has been paid over into the Committed Seller s Mozambican bank account. 6.4 Should the Committed Seller be of the opinion that the Holiday Unit will not be sufficiently completed for beneficial occupation by the anticipated completion date, the Committed Seller may, on written notice to the Committed Purchaser, extend the anticipated completion date for a further period or periods not exceeding 6 (six) months in total, in which case, the date given in such notice shall be deemed the anticipated completion date. The Committed Purchaser shall have no claim of whatsoever nature or howsoever arising against the Committed Seller for failing for any reason to complete the Holiday Unit before the anticipated completion date.
10 6.5 If there is any dispute between the Committed Purchaser and the Committed Seller as to whether the Holiday Unit has been constructed substantially in accordance with the plan or sufficiently complete for beneficial occupation and/or whether there are any defects in the Holiday Unit due to defective materials or workmanship, then such dispute shall be referred to the architect, being Riaan Beetge, who shall act as an expert and not as an arbitrator and whose decision shall be final and binding upon the parties. 7 BREACH 7.1 In the event that the monies are not paid on or before the relevant date referred to in 3.1, the Committed Seller retains the right to cancel the contract within 30 (thirty) days after the relevant payment is due and the Committed Seller shall retain the deposit paid in terms of 3.1, and have the right to sell to a third party. 7.2 Before cancelling the contract, the Committed Seller shall give the Committed Purchaser written notice of this breach and allow 7 (seven) days for the Committed Purchaser to rectify this breach. 7.3 In the event that the Notarial Deed of Sale is not signed on the date envisaged in 4.2 due to the fault of the Committed Seller, it will grant the Committed Purchaser the right to demand specific performance of this contract. 8 MOZAMBICAN LAW The parties specifically agree that the laws of the Republic of Mozambique shall be applicable to this agreement as regards the interpretation of this agreement and in any contractual disputes arising from the relationships, rights, duties, obligations and responsibilities created in this agreement irrespective of the nationality of the either of the Committed Seller or the Committed Purchaser.
11 9 NOTICES AND DOMICILIA Where in terms of this agreement any communication is required to be in writing, the terms writing shall include communications by email and telefax. Communications by email or telefax, as the case may be, shall, unless the contrary is proved by the addressee, be deemed to have been received by the addressee 24 hours after the time of transmission. 10 GENERAL PROVISIONS 10.1 No agreement or arrangement between the parties in terms of which: 10.1.1 any of the provisions hereof are cancelled, amended or added to; or 10.1.2 this agreement is cancelled in its entirety; shall be binding upon the parties or be of any force or effect unless such agreement or arrangement is reduced to writing and signed by the parties or by their duly authorised agents. 10.2 No indulgence, extension of time for any payment, latitude or concession in respect of the performance of any obligation hereunder, made, granted or allowed by the Committed Seller to a Committed Purchaser at any time, shall under any circumstances be deemed to be a waiver by the Seller of any of their rights against a Committed Purchaser arising here from, or to be a novation of any such obligation, or to create a precedent, and shall not in any way affect, diminish or prejudice any of the Committed Seller s rights against a Committed Purchaser and the Committed Seller shall be entitled at any time to demand strict and punctual fulfilment of all a Committed Purchaser s obligations hereunder, despite any latitude or concession.
12 11 COOLING OFF The Committed Purchaser has the right to cancel this agreement within ten (10) days of signature, provided that written notice is given to the Committed Seller as envisaged in Clause 9. THUS SIGNED AT ON THIS DAY OF 20 AS WITNESSES 1. 2. DAVE LAW ON BEHALF OF COMMITTED SELLER THUS SIGNED AT ON THIS DAY OF 20 AS WITNESSES 1. 2. COMMITTED PURCHASER