|AGREEMENT FOR SALE|
|GENILAND SA (KISWISHI SEZ Phase 1)(as the “Vendor”)|
Relating to the sale and purchase of
|UNIT NUMBER [ ] MEASURING [ ] SQUARE METRES OR THEREABOUTS BEING A PORTION OF THE LAND PLOT WITH LAND REGISTRY NUMBER REFERRED TO AS “KIMIA AT PHASE 1 OF KIWISHI SEZ” AND COVERED BY THE REGISTRATION CERTIFICATE N° ID NAT 05-F4200-N77834X|
AGREEMENT FOR SALE
THIS AGREEMENT is made the day of Two Thousand and………..…….
- GENILAND SA a limited liability company incorporated under RCCM 14-B-1908 – NIF A1114437F – N° ID NAT 05-F4200-N77834X pursuant to the Laws of the DRC and whose head office is located at 12, Avenue des Cyprès, Commune Kampemba, Lubumbashi, Province du Haut-Katanga in the said DRC (hereinafter referred to as the ”Vendor” which expression shall include its successors and assigns) of the one part;
- [ ] of Post Office Box Number [ ], Lubumbashi in the DRC (hereinafter referred to as the “Purchaser” which expression shall where the context so admits include his/her personal representatives and assigns) of the other part.
- The Vendor is the holder of the rights of ownership of the land in accordance with the law of July 20, 1973 n° 73/021 concerning the general regime of property, the land, and real estate regime, and the regime of securities as amended and completed to date in the Land (hereinafter described), together with the infrastructure and improvements erected and being erected thereon.
- The Vendor is in the process of establishing a mixed-use development on the Land comprising residential developments, industrial developments, retail developments, commercial developments, tourism facilities, social facilities, and recreational facilities (hereinafter referred to as “Kiswishi SEZ” [Special Economic Zone]) in accordance with the overall project area Master Plan (hereinafter defined).
- The Vendor has caused the Land to be delineated into various Phases and Parcels (as hereinafter defined) and shall designate the permitted uses in relation to such Precincts and Parcels as well as impose development controls through restrictive covenants contained in the Declaration (hereinafter defined), covenants in the lease (Article 3 specially referring to “Precinct rules”) to the Property (hereinafter defined) as well as the rules of the Kiswishi SEZ Phase 1 Management Company (hereinafter referred to as “Phase 1 ManCo”) and the guidelines for construction and development as managed and controlled by the Development Control Committee (hereinafter referred to as “DCC” and later defined). The detailed rules and development controls are intended to ensure that the development retains its integrity and value for all investors in the project. For the avoidance of doubt, the provisions of the Declaration, the rules of the Management Company and the Development guidelines shall form part of this Agreement and shall be binding upon the Purchaser.
- The Vendor has caused or shall cause the Land to be demarcated into various Parcels as more particularly delineated (for identification purposes only) on the Phase 1 Kiswishi SEZ Phase Plan. The overall Master Plan (sometimes referred to as the Structure Plan) can be amended by the Vendor from time to time.
- The Vendor will sell and the Purchaser will purchase one such Parcel(s) known as unit number [ ] situate on Phase 1 of Kiswishi SEZ residential area known as ‘KIMIA’ (hereinafter referred to as the “Property”) which comprises part of the Land for the Purchase Price (hereinafter defined) and subject to the terms and conditions hereinafter provided. For the avoidance of doubt, the area is referred to as Phase 1 of KISWISHI SEZ.
- The transfer of the Property from the Vendor to the Purchaser is in consideration of the payment of the Purchase Price and shall be by way of the Land Lease Agreement (hereinafter defined).
- The Vendor shall cause the Declaration to be registered against the Land Title for Phase 1 of KISWISHI SEZ and the Declaration shall be binding upon all purchasers, occupiers, and visitors of Phase 1 of KISWISHI SEZ. Under Article 3 of the Land Lease Agreement, reference is made to Precinct Rules. The Declaration forms part of those rules.
- The Vendor has incorporated the Phase 1 ManCo which will own and control the Common Areas (hereinafter defined) in Phase 1 of KISWISHI SEZ, provide (through its agent) the services as more particularly hereinafter described, and with the mandate to preserve the values of Phase 1 of KISWISHI SEZ as more particularly hereinafter described. The Manco Rules form part of Article 3 of the Land Lease Agreement ‘Precinct Rules’.
- The Phase 1 Manco is to operate, administer, manage and provide services in the Common Areas within KISWISHI on behalf of the Vendor.
IT IS HEREBY AGREED as follows:
- DEFINITIONS AND INTERPRETATIONS
In this Agreement (including the recitals and Schedules hereto) except where the context
otherwise requires the following words and expressions shall have the following meanings: –
- “Agreed Interest Rate” means a 5% increase on a quarterly basis for missed
payments by the purchaser;
- “Balance” means the sum of [●] USD only exclusive of all taxes to be
paid by the Purchaser to the Vendor in accordance with this Agreement;
- “Buildings” shall include both the main portion of a structure and all
projections or extensions thereof, and shall include garages, outside platforms and docks, canopies, porches, outbuildings and any other structure, whether of a temporary or permanent nature and irrespective of the materials used in the erection thereof, erected or used for or in connection with the accommodation or convenience of human beings or animals; the manufacture, processing, storage, display or sale of any goods; the rendering of any service; the destruction or treatment of refuse or other waste materials; the cultivation or growing of any plant or crop; any wall, swimming bath, swimming pool, reservoir or bridge or any other structure connected therewith; any fuel pump or any tank used in connection therewith; any part of a building; any facilities or system, or part or portion thereof, within or outside but incidental to a building, for the provision of a water supply, drainage, sewerage, storm water disposal, electricity, gas supply or other similar service in respect of the building;
- “Building Plans” means detailed architectural layout and floor plans,
landscape architecture plans, and any engineering drawings of proposed improvements providing, among such other information as the DCC may from time to time require, detailed layout and floor plans, elevations, specifications and uses; landscape plans and specifications indicating plant species, locations, quantities, landscaped areas and irrigation plans and specifications; specifications for all exterior materials; drawings and specifications relating to all exterior signage; engineering drawings and specifications for civil, electrical, mechanical, structural and wet services; a detailed rational fire design specifications and report. Buildings Plans shall be prepared according to the requirements of, and submitted in the format required by, the DCC and the SEZ Authority;
- “Common Areas” shall refer to all real property, easements, and property
rights owned by the Vendor or assigned to the Phase 1 ManCo or, in respect of the Natural Open Spaces or any part thereof, such other entity as the Vendor in its sole discretion may deem appropriate, which has been approved by the Vendor for the common use of residents, property owners and/or the general public as well as to all areas and facilities of the Phase 1 of the KISWISHI SEZ designated for common use of the property owners in the Phase 1 of KISWISHI SEZ such as passages, fire escapes, waste collection and disposal areas, any common technical rooms, common parking areas, access roads located within the Phase 1 of the KISWISHI SEZ, internal roads, footpaths, forecasts, service yards, administrative buildings, landscaped areas and any other ancillary building such as water supply boreholes, water supply treatment plant and storage tanks, gate houses, sewage treatment plant, electrical substation, diesel generators etc. and other areas designated by the Vendor and/or the Phase 1 ManCo for use by more than one property owner and visitors;
- “Completion Date” means [depends on the payment plan] from the signing
date of the Terms Sheet. [Insert Date]
- “Declaration” means the master declaration of covenants, conditions and
restrictions made by the Vendor in respect of the Land and
registered or to be registered against the title to the Land;
- “Deposit” means the sum of [●] USD Only exclusive of all taxes to be
paid by the Purchaser to the Vendor in accordance with this Agreement;
- “Design(s)” means concept drawing(s) and/or concept layout(s)
of the housing units to be developed within Kiswishi.
- “Development Approval” means the final written approval of Phase 1
Kiswishi SEZ Development Control Committee of the development of the Property including, inter alia, all Buildings, structures, exterior aesthetics, exterior signage, lighting, and landscaping;
- “Development Control
Committee or DCC” means the design review panel of the Phase 1 ManCo as established and provided for in the Declaration;
- “DCC Design Guidelines” means the development standards and the design
guidelines of Kiswishi available for perusal at the Vendor’s site offices;
- “Disbursements” means the costs and expenses listed in the First
Schedule to this Agreement to be paid by the Purchaser;
- “Gross Buildable Area”
or “GBA” means the total sum square meters of the area covered by the Buildings at the floor level of each storey at each parcel, provided that roofs (unless they include a loft or similar occupiable space); eaves, sunscreens and other architectural features; uncovered internal courtyards and light wells; public arcades connecting public spaces; and uncovered areas for parking and loading; are excluded from the calculation of Gross Buildable Area;
- “Land” means ALL THAT parcel of land situate in
Lubumbashi-Est land Division Municipality in the of DRC containing by measurement One One Zero Decimal Five Zero (110.50) hectares or thereabouts being Land Reference Number PC 6353 being the premises comprised in a Grant registered at the Land Titles Registry at Lubumbashi-Est as Number 0416350 Volume L1/037 Folio 100 which said piece of land with the dimensions abuttals and boundaries thereof is delineated on the Plan annexed to the said Grant and more particularly on the measurement and beaconing Minutes Number 36748 deposited in the Survey Records Office of Lubumbashi-Est land department aforesaid and thereon bordered red AND HELD by the Vendor for a term of 25 years from 20th November, 2015
- “Phase 1 ManCo” means the Management Company appointed by the
Vendor according to the terms of the Declaration, for the purpose of enforcing the Declaration, managing the Common Areas within Phase 1 of KISWISHI SEZ, provision of services within Phase 1 of KISWISHI SEZ, collecting revenue and otherwise performing the duties and functions of the collecting of revenue, managing and/or regulating the management of, the infrastructure, and otherwise performing the duties and functions delegated to it by the Vendor;
- “Natural Open Spaces” means the network of rivers, riparian buffer zones,
Conservation areas and ecological corridors provided for in the Phase 1 Plan;
- “Parcel” means portion of the Phase 1 on which the Unit will be
- “Parcel Plan” means the approved Parcel Plan for the Parcel being purchased
that is annexed herewith;
- “Permitted Use” means the use of the Property for approved purposes;
- “Purchase Price” means the sum of [●] USD exclusive of all taxes;
- “Phase 1” means Phase 1 of Kiswishi SEZ as per the layout or parcel plan
for that Phase.
- “Phase Plan” means and refers to the binding general scheme of intended
use of the Phase included in the Project as may be amended by the Vendor from time-to-time which Phase Plan shall not be amended if such an amendment shall prejudice the Purchaser’s interest in the Property or its use and enjoyment thereof) and which is available for inspection at the Vendor’s site office;
- “Purchaser’s Advocates” means [●};
- “Registration Date” means the date the Parcel/Precinct is registered in the
- “Rules” mean the Phase 1 ManCo rules which have been promulgated
under one document referred to as the ‘Phase 1 ManCo Rules’;
- “Service Charge” means costs relating to assessments, common services,
utilities as well as property management fees in respect of the management and administration of Common Areas within Phase 1 of KISWISHI SEZ, payable by the Purchaser in accordance with clause 8 of this Agreement;
- “Master Plan” means to the general scheme of intended use of the Land
as may from time to time be amended by the Vendor a copy of which is available for inspection at the Vendor’s office;
- “Vendor’s Advocates” [insert]
- All references in this Agreement to a statutory provision shall be constructed as including references to:
- All statutory instruments or orders made pursuant to a statutory provision; and
- Any statutory provisions of which a statutory provision is a consolidation, re-enactment or modification.
- Clause headings in this Agreement are for ease of reference only and do not affect the construction of any provision herein.
- THE PROPERTY
- The Vendor will sell and the Purchaser will purchase the Property which comprises part of the Land for the Purchase Price and subject to the terms and conditions hereinafter provided.
- The Property sold is Unit Number [ ] situate on Phase 1 of Kiswishi SEZ residential area called ‘KIMIA’ (the “Property”) which comprises part of the Land and delineated on the Parcel Plan a copy of which is annexed herewith.
- The Property is sold and purchased, in its current state and as it stands, with all its defects (if any) whether patent or latent. Furthermore the Purchaser acknowledges that the Vendor through its contractors may be constructing roads, laying infrastructure, doing earthworks, and landscaping within the Project and on the Property and agrees that the Property will be transferred to the Purchaser as it shall stand as at the Completion Date. The Purchaser acknowledges that, the concurrent presence of multiple contractors, some constructing the infrastructure on behalf of the Vendor, and others employed by purchasers, may bring about scheduling conflicts, which could impact on the timelines of the various contracts. If the Purchaser takes possession of the Property before construction of the infrastructure is complete the Purchaser and their contractors will abide by the scheduling of the Project as directed by the project managers appointed by the Vendor to ensure that there are no conflicts.
- The Property is sold subject to all conditions and easements contained on the existing title document relating to the Property, the Declaration, the Phase 1 ManCo rules, the DCC Design Guidelines and any conditions and covenants that may be imposed by the relevant local or any other authority.
- The Purchaser acknowledges that the Purchaser has satisfied himself/herself/itself as to the nature, locality and extent of the Property and the Vendor shall not be liable for any deficiency in the extent thereof nor shall it benefit by any surplus.
- In no way does the Vendor warrant that the Property is suitable for the Purchaser’s proposed use thereof.
- PERMITTED USE
The permitted use of the Property is residential and change of user shall not be allowed.
- THE PURCHASE PRICE
- As consideration for sale of the Property to the Purchaser by the Vendor, the Purchaser shall pay the Purchase Price as follows:
- On or before the execution of the Letter of Offer between the Vendor and the Purchaser, the Purchaser shall pay to the Vendor the sum of USD ………………………………. (.……………………..) being ten per centum (10%) of the Purchase Price receipt whereof the Vendor hereby acknowledges; and
- Following the execution of this Agreement, the Purchaser shall pay the Balance to the Vendor in cleared funds at the latest on the Completion Date.
- The Purchaser agrees that payments due under clause 4.1 shall be paid by electronic transfer to the following account or to such other account as the Vendor shall in writing notify the Purchaser or in such other manner as the Vendor may from time to time reasonably require. Immediately upon the Purchaser effecting any payment pursuant to the terms of this Agreement, the Purchaser shall deliver to the Vendor proof of such payment (such as a confirmation of payment slip by the Purchaser’s banker), to enable the Vendor’s banker to track such payment:
BANK: ECOBANK DRC
BANK/BRANCH CODE: 000260-0001
NAME: GENILAND SA
CURRENCY: UNITED STATES DOLLARS
ACCOUNT NUMBER: 35080044181-93
SWIFT CODE: ECOCCDKI
- The Purchaser hereby authorizes the Vendor to utilize the Deposit and any part payments of the Purchase Price as the Vendor may deem fit for the construction and any business of GENILAND SA the owner of Kiswishi SEZ inclusive of all of its Phases.
- INTEREST ON LATE PAYMENT
- If the Purchaser fails to honour the Purchaser’s payment obligations under clause 4 above or under any other provision hereof on the due date or if any cheque or bank draft taken for or towards the satisfaction of the relevant payment obligation of the Purchaser is not honored upon first presentation:
- the Purchaser shall pay interest at the Agreed Rate of Interest on the amount due which interest is payable from the date the said payment is due for payment until payment (together with all accrued interest) in full, such interest to be computed on the basis of a 365 day year and compounded monthly; and
- the Vendor may (but without prejudice to any other available right or remedy) if payment (together with accrued interest thereon) in cleared funds shall not have been effected on or before the due date for payment elect to treat such non-payment as a fundamental breach of the Purchaser’s obligations under this Agreement and the provisions of Clause 15 shall apply.
- The Purchaser hereby agrees that the Agreed Rate of Interest payable on the Purchaser’s breach of this Agreement represents a fair and reasonable pre-estimate of the loss to be suffered by the Vendor resulting from the Purchaser’s breach.
- RIGHTS AND OBLIGATIONS IN RESPECT OF OCCUPATION
- Subject to the provisions of this Agreement, the Property is sold with vacant possession on the once the payment plan is complete as per this Sale Agreement.
- The Purchaser acknowledges that on the Registration Date, Phase 1 of Kiswishi SEZ may be incomplete and that the Purchaser and every person claiming occupation and use through the Purchaser may suffer inconvenience from building operations and from noise and dust resulting therefrom and the Purchaser shall have no claim whatsoever against the Vendor or its contractors by reason of any such inconvenience. Notwithstanding the foregoing the Vendor undertakes to use its best endeavours to keep the noise, disturbance and inconvenience to reasonably acceptable levels.
- From the Registration Date, the Purchaser:
- shall be entitled to beneficial occupation of the Property as if he was the owner thereof, and the Property shall be used only for the Permitted Use subject to compliance with the Declaration, the Phase 1 ManCo rules and the DCC Design Guidelines; and
- waives all claims against the Vendor for any loss or damage to Property or any injury to person which the Purchaser may sustain in or about the Property, or on any other part of Phase 1 of Kiswishi SEZ and indemnifies the Vendor against any such claim that may be made against the Vendor by tenants, nominees, invitees or any other persons who occupy the Property and/or go upon Phase 1 of Kiswishi SEZ by virtue of the Purchaser’s rights thereto, for any loss or damage to property or injury to persons suffered in or about the Property, or any other part of Phase 1 of Kiswishi SEZ howsoever such loss or damage to property or injury to person may be caused save for any claims for loss or damage arising out of the willful act or omission by the Vendor.
- SALE OF PROPERTY
- The interest sold in the Property is leasehold;
- The Property is sold subject to:
- The covenants, terms, conditions, stipulations, restrictions, and rights as provided and reserved in this agreement, the land lease agreement, and the Declaration;
‘.’ .. ,’
- All subsisting easements, quasi-easements, and rights of way (if any); and
- Any provisional liability or assessment for road or sewerage charges,
BUT otherwise, free from encumbrances.
- SERVICE CHARGE
- The Purchaser shall pay Service Charge in the amount of [●] USD per month from the date the Purchaser commences construction on the Property or twenty-four (24) months from the Registration Date whichever is earlier.
- The Purchaser agrees that the Purchaser shall have no right to reclaim from Vendor any amount lawfully due to and paid to the Vendor/ Phase 1 ManCo as Service Charge.
- The Purchaser acknowledges that the Vendor/ Phase 1 ManCo may amend the quantum of the Service Charge from time to time, acting reasonably and transparently.
- DEVELOPMENT CODE AND IMPROVEMENTS TO THE PROPERTY
- In order to maintain high standards and with a view to ensuring an attractive and harmonious development within Phase 1 of Kiswishi SEZ, the Purchaser and all purchasers of Parcels within Phase 1 of Kiswishi SEZ shall be required to adhere to the Declaration, the Physical Planning Standards, the DCC Design Guidelines and the Parcel Plan. Any improvements to the Property shall at all times, comply with the provisions of the aforesaid documents.
- The Purchaser shall submit his/her Design to the DCC for approval at least 6 months before starting the construction on Site and such approval shall not be unreasonably withheld, provided that the Purchaser complies with the DCC Design Guidelines.
- The Purchaser shall finish developing the Property in accordance with the Design chosen by the Purchaser and agreed by the Vendor as set out above no later than 31st December 2032.
- Should the Purchaser not have submitted a Design, commenced construction or completed construction of the Building(s) on the Property as aforesaid, or not obtained Development Approval in respect of same before the end of 2030, then in that event, the Vendor shall issue the Purchaser with a three (3) months’ notice to choose a Design, obtain the Development Approval and commence construction, and a twenty-four (24) months’ notice to complete construction within the Property.
- If the Purchaser sells the Property to a third party, then the party purchasing the Property shall complete construction and development of the Property within the timeframes and the terms set out in this clause 9.
- The sale of the Property or any portion thereof by the Purchaser shall require the written consent of the Vendor, comply with the conditions set by the Vendor and the transaction shall be undertaken by the Vendor’s Advocates and there will be a nominal fee charged to cover the expense of the administration of the re-sale by the Vendor.
- Notwithstanding anything to the contrary herein or elsewhere contained, any Building or other above and/or below the ground structure to be erected on the Property or any alterations or extensions to be effected to any existing Building or structure on the Property shall be erected strictly in accordance with the design review process as outlined in the DCC Design Guidelines and specifically in accordance with Building Plans which have been submitted to and approved of in writing by firstly the DCC and thereafter the SEZA and/or any other competent authority and no work whatsoever shall commence on the Property until such time as the relevant approvals have been obtained. The decision of the DCC in approving or not approving such Building Plans shall be final and binding on the Purchaser. It is recorded that Vendor/Phase 1 ManCo shall be entitled to charge the Purchaser a fee in respect of the submission of plans for approval to the DCC.
- Notwithstanding anything contained herein or elsewhere, no Building or other structure on the Property shall exceed the height restriction and/or any other prescribed for the Property as outlined in the DCC Design Guidelines hereto, without the prior written consent of the Vendor, which consent the Vendor may in its sole and absolute discretion grant or refuse.
- Vehicular access to the Property shall be limited to that provided for in terms of the DCC Design Guidelines and the Parcel Plan and only with prior DCC approval.
- All construction and related work on the Property shall be carried out in such a way as to comply with the construction controls contained in the Design Guidelines as provided for and managed by the DCC,
- The Purchaser agrees further that the DCC shall be entitled to oversee and enforce the implementation of the construction controls. The Vendor and the DCC shall have the right to appoint an independent engineer or such other consultant to verify the site designs and to further verify that the implementation controls are adhered to.
- Signage shall be permitted on the Property in accordance with the provisions of the DCC Design Guidelines and the Phase 1 ManCo rules.
- Notwithstanding anything contained herein or elsewhere, the Property shall not be developed or utilized in any manner whatsoever save in accordance with the provisions of the DCC Design Guidelines. In no way detracting from the generality of the aforesaid or any other provision of this Agreement, it is specifically recorded that the Purchaser its contractors, sub-contractors and agents, shall at all times comply with the provisions of DCC Design Guidelines. In the event of the Purchaser or any of its contractors, subcontractors or agents breaching the provisions of the DCC Design Guidelines, then in that event, the Vendor shall be entitled, without prejudice to any rights it may have in terms of this Agreement, claim from the Purchaser all damages, including any consequential damages, the Vendor may suffer as a result of the Purchaser’s breach of the provisions of the Environmental Management Plan. In addition, should the Purchaser, its contractors, employee or agent breach the provisions of the Contractors Code the Purchaser shall be liable for a fine imposed by the DCC and/or the Vendor/Phase 1 ManCo sole and absolute discretion. The fines are yet to be determined in the Contractors Code but are expected to be reasonable in relation to the particular infringement.
- Any material breach by the Purchaser of the terms and conditions of the Declaration, the Phase 1 ManCo rules, DCC Design Guidelines, the Phase Plan and the Parcel Plan shall be deemed to be a material breach of the terms and conditions of this Agreement.
- The Purchaser shall ensure that the Declaration, the Phase 1 ManCo rules, the DCC Design Guidelines, the Phase Plan and the Parcel Plan are brought to the attention of any tenant or occupier of the Property.
- MAINTENANCE OF THE PROPERTY
- The Purchaser shall at all times ensure that the Property is kept in a neat and tidy condition and that it is maintained in accordance with the provisions of the Lease and the Declaration; and
- The Purchaser shall at all times, in so far as it is within the Purchaser’s control, ensure that Phase 1 of Kiswishi SEZ is kept in a neat and tidy condition and that it is maintained in accordance with the provisions of the Lease and the Declaration.
- The Purchaser acknowledges that, subject to the provisions of this Agreement and the Declaration, the Phase 1 ManCo rules, the DCC Design Guidelines shall be entitled at all times to lay down rules in regard to:
- the preservation of the natural environment;
- vegetation, flora and fauna in Phase 1 of Kiswishi SEZ;
- the placing of movable objects upon or outside the Buildings included in Phase 1 of Kiswishi SEZ including the power to remove any such objects;
- the storing of flammable and other harmful substances;
- the conduct of any persons within Phase 1 of Kiswishi SEZ and the prevention of nuisance of any nature to any owner of immovable property in Phase 1 of Kiswishi SEZ;
- the use of land within Phase 1 of Kiswishi SEZ;
- the use of roads, pathways, sidewalks, and open spaces;
- the imposition of fines and other penalties to be paid
- the management, administration, and control of the Common Areas and open spaces;
- the design guidelines as set out in the DCC Design Guidelines for the erection of all Buildings and other structures, including service connections to Buildings;
- the procedure in having Building Plans approved of by the DCC and the relevant local authority;
- the design guidelines as set out in the DCC Design Guidelines for the establishment, installation and maintenance of gardens, both public and private;
- the use by owners and their tenants of Buildings and other structures and the upkeep, aesthetics and maintenance of such Buildings;
- the use of road frontages and parking areas;
- security; and any advertisement to be set up on the buildings or the road frontages; and
- generally in regard to any other matter which the Vendor/Management Company from time to time considers appropriate, and the Purchaser undertakes and shall be obliged, with effect from vacant possession following the completion of payments for the Property, to abide by such rules as if the Purchaser was the owner of the Property and to ensure that all tenants, nominees, invitees, and other persons who occupy the Property and/or go upon Phase 1 of Kiswishi SEZ by virtue of the Purchaser’s rights thereto, do likewise.
- The Purchaser shall be obliged to bring the Phase 1 ManCo Rules to the attention of any tenant or contractor and employees in writing, prior to such tenant or contractor obtaining access to the Property or any portion thereof.
- MANAGEMENT COMPANY
The Vendor shall incorporate the Phase 1 Management Company (Phase 1 ManCo) to manage Phase 1 of Kiswishi SEZ in accordance with the Phase 1 ManCo Rules and the Declaration.
- PURCHASER’S ACKNOWLEDGEMENTS
- The Purchaser acknowledges that he is aware of the intended future development of Phase 1 of Kiswishi SEZ by the Vendor. Such development is intended to involve the establishment of, inter alia, mixed use residential developments, retail, commercial, tourism, industrial, and social and recreational facilities. The Purchaser undertakes that the Purchaser will, at all times, co-operate with the Vendor in an endeavor to facilitate the success of the said developments. Also in this respect, the Purchaser undertakes that the Purchaser shall not interfere with any such proposed development nor lodge any objection with any competent authority in respect of any such development. But without derogating from the generality of the foregoing, the Purchaser agrees that he will not object to any application made by or on behalf of the Vendor, its nominee or agent for special usage consent, licenses for shopping, commercial, rezoning, removal of conditions of title or by way of any application to Court or to the SEZA, local authorities or other competent authorities in respect of any property within Phase 1 of Kiswishi SEZ. Again, in no way detracting from the generality of the aforesaid, the Purchaser specifically acknowledges that owners of land surrounding the Property will be erecting Buildings and other structures on the surrounding land which may block or otherwise interfere with the views from the Property. The Purchaser agrees that the Purchaser shall have no right to object to the construction of any Building or other structure on the land in Phase 1 of Kiswishi SEZ on the basis that such Building or other structure blocks or otherwise interferes with the views from the Property, nor will the Purchaser have any claim for any alleged diminishment in the value of the Property arising out of any interference with the views from the Property by reason of the construction of any such Building or other structure.
- The Purchaser acknowledges that no buildings or other structure may be erected on the Property and further, no alteration or extension may be made to any existing building or other structure, save in accordance with the design review process outlined in the DCC Design Guidelines and specifically with Building Plans that have been approved of firstly by the Phase 1 ManCo, acting through the DCC, and then by the relevant provincial Government or local authority. Furthermore, the Purchaser agrees that the Purchaser will have no claim whatsoever, arising out of whatever cause, against the Vendor/ Phase 1 ManCo, any members of the DCC, or the Vendor for any loss suffered by reason of the DCC refusing to approve or delaying the approval of any plans submitted by the Purchaser save where the Purchaser can prove bad faith on the part of the DCC.
- The Purchaser shall not be entitled to make application to rezone the Property or to change its use from that currently specified in this Agreement, the Declaration, the Phase 1 ManCo rules, DCC Design Guidelines, the Phase Plan and/or the Parcel Plan.
- The Purchaser acknowledges and agrees that:
- it is the Purchaser’s responsibility to investigate all matters affecting the Property;
- the Purchaser has inspected the Property and satisfied itself in regard to everything appertaining to the Property including, but in no way limited to, the extent and locality of the Property as well as the subsoil conditions prevailing upon the Property and the permitted use of the Property in terms of the zoning thereof under this Agreement, the Declaration, the Phase 1 ManCo rules, DCC Design Guidelines, the Phase Plan and the Parcel Plan and all other matters affecting the development thereof including satisfying itself that it can obtain the necessary consents or licences for the conduct of the Purchaser’s business, the Vendor and its agents being entirely free from all liability in respect of any such matters.
- the Purchaser is responsible for applying to the DCC and Phase 1 ManCo and the relevant body whether public or private for water and ICT connections to the Property and for submitting plans for approval in respect of any buildings or other structures to be erected on the Property (as provided for in the DCC Design Guidelines), the Vendor and its agents being entirely free from all liability in respect of such matters; the Purchaser shall be responsible for installing on site sewerage tank and an off grid power solution.
- the Purchaser acknowledges that the disposal of any industrial or other effluent from the Property will be in accordance with all the requirements of the DCC Design Guidelines or such other rules set by the Vendor.
- If the Purchaser:
- fails to pay any amount in terms of this Agreement, or
- commits any breach of the remaining conditions of this Agreement (except the breach contemplated by clause 10 above), the DCC Design Guidelines or of the Phase 1 ManCo Rules, and should the Purchaser fail to remedy such breach within fourteen (14) days of the date of delivery, if delivered by hand, or receipt if posted by prepaid registered post, of a written notice calling on the Purchaser to remedy such breach, then
- the Vendor shall be entitled, without prejudice to any other rights which may have at law or in terms hereof and at the Vendor’s election to:
- extend the time for the Purchaser to remedy the breach and in the event the Vendor shall extend the time for payment, the Purchaser shall pay the Vendor interest on any moneys due under this Agreement remaining unpaid at the Agreed Interest Rate specified herein computed from the date such payment is due until the date of payment in full both days inclusive;
- rescind this Agreement, and following such rescission the amounts paid to the Vendor or its advocates as provided herein below shall be forfeited to and retained by the Vendor with the following consequences:
- the Vendor shall thereupon be at liberty to proceed to negotiate with any other person or company and to require such other person to purchase the Property on such terms and conditions as may be agreed between the Vendor and such new purchaser and in the event that such other person shall enter into an agreement with the Vendor (hereinafter called the “New Agreement”);
- the Vendor shall be entitled to recover by action any amounts found to be due to the Vendor in the event of any deficiency; and
- claim immediate performance by the Purchaser of all his obligations in terms of this Agreement whether or not the due date for the performance shall otherwise have arrived.
- For the purposes of this Agreement, any act or omission on the part of any tenant, nominee or other person who occupies the Property or invitee of the Purchaser who goes upon the Property shall be deemed to be an act or omission of the Purchaser.
- Notwithstanding the foregoing, should the Vendor exercise any of his rights in terms hereof and should the Purchaser dispute the Vendor’s right to do so, then pending the determination of that dispute, the Purchaser shall continue to pay all amounts payable in terms of this Agreement on the due date thereof, and to comply with all the terms hereof, and the Vendor shall be entitled to recover and accept such payments and/or other performance without prejudice to the Vendor’s claim to have exercised its rights in terms hereof, and in the event of the Vendor succeeding in such dispute, the Vendor shall be entitled to retain such amounts received in the interim as payment for the occupational rights exercised and/or enjoyed by the Purchaser in the interim.
- SPECIAL CONDITIONS: purchaser’S BREACH OF THIS AGREEMENT
- Failure to Pay the Balance of the Purchase Price
- In the event that the Purchaser fails to honour his payment obligations on the due date and in terms of Clause 4 of the Sale Agreement (including its sub-clauses), strictly in the manner set out therein:
- the Purchaser shall, without prejudice to any other remedy available to the Vendor at law, equity or otherwise howsoever, pay interest on any outstanding portion of the Balance of Purchase Price at the Agreed Interest Rate;
- the Interest Rate shall be increased by five percent (5%) at the end of every three (3) months if the default continues; and
- the Purchaser hereby acknowledges and agrees that the Agreed Interest Rate represents a genuine, fair and reasonable pre-estimate of the loss suffered by the Vendor as a result of the Purchaser’s failure to honour its payment obligations in terms of clause 4 of the Sale Agreement (including its sub-clauses), strictly in the manner set out therein.
- If the Purchaser fails to honour his payment obligations on the due date and in terms of clause 4 of the Sale Agreement (including its sub-clauses), strictly in the manner set out therein, the Vendor shall at any time thereafter, have the right to treat this Agreement as having been repudiated by the Purchaser, and shall thereupon issue fifteen (15) calendar days’ written notice to the Purchaser notifying it that the Agreement has been immediately terminated and is null and void for all purposes and in such circumstances, the Purchaser shall forfeit Ten Percent (10%) of the Purchase price (the “Forfeiture Amount”) by way of agreed liquidated damages.
- The Purchaser acknowledges and accepts that forfeiture of the Forfeiture Amount is a genuine pre estimate of the loss to be suffered by the Vendor due to the Purchaser’s failure to honour its payment obligations under this Agreement. It is agreed and acknowledged by the parties that such forfeiture shall be without prejudice to the Vendor’s right to seek any remedy available to it at law or equity in connection with any antecedent rights and obligations that may have accrued prior to rescission of the Sale Agreement.
- The Parties agree that the Forfeiture Amount forfeited by the Purchaser as agreed liquidated damages, represents a genuine pre-estimate of the loss suffered by the Vendor, as a result of the Purchaser’s breach of terms of this Agreement.
- Breach in any other Circumstance
- If the Purchaser is in breach of any other provision of this Agreement, other than those that relate payment of the Purchase Price, then, without prejudice to any other rights or remedies available to the Vendor at law or equity, the Vendor shall formally communicate the proposed manner in which to remedy the breach and provide one calendar month in which the Purchaser can remedy such breach. Thereafter the arbitration clause would be referred to only if the Purchaser and the Vendor fail to agree on the manner in which to resolve the said breach.
- In the event this Agreement is terminated in the manner set out above, the Purchaser shall, without prejudice available to it under this Agreement, at law or equity, immediately and automatically, without the need for any further action or step being taken by any person, forfeit the Forfeiture Amount, in agreed liquidated damages, for the Vendor’s utilization. The Parties agree that in such circumstances, the Forfeiture Amount forfeited by the Purchaser as agreed liquidated damages, represents a genuine pre-estimate of the loss suffered by the Vendor, as a result of the Purchaser’s breach of terms of this Agreement.
- Refund of Monies Following Rescission by the Vendor
If the Vendor rescinds this Agreement due to breach by the Purchaser of any of his/her/its obligations under this Agreement, and following such rescission the Forfeiture Amount shall be unconditionally forfeited and retained by the Vendor for its sole use and utilization, and thereafter:
- the Vendor’s obligation to sell the Properties to the Purchaser and Purchaser’s obligation to purchase of the Properties shall be deemed to have immediately and automatically terminated without the need for any further step or action being taken by any party or Person whatsoever;
- the Vendor shall thereupon be at liberty to proceed to negotiate with any other Person and enter into an agreement with such other Person to purchase the Properties on such terms and conditions as may be agreed between the Vendor and such new purchaser and in the event that such other Person shall enter into an agreement with the Vendor (hereinafter referred to as the “New Agreement”);
- The Vendor shall refund all the monies paid towards the Purchase Price less the Forfeiture Amount which shall have been forfeited absolutely to the Purchaser’s designated bank account within ninety (90) days from the date of the New Agreement; and
- if the New Agreement realizes a profit this shall be retained by the Vendor.
- SPECIAL CONDITIONS: VENDOR’S BREACH OF THIS AGREEMENT
- Vendor’s Inability to Complete
- Subject to the Purchaser having paid the entire Purchase Price as provided in the Sale Agreement if: the Vendor is not ready, able or willing to complete this Agreement in accordance the Completion Conditions within the Sale Agreement, the Purchaser shall have the right to issue a notice to the Vendor, requiring the Vendor to complete the transaction contemplated in this Agreement and in the event the Vendor is unable to complete the transaction as aforesaid, this Agreement shall terminate, and thereafter:
- the Vendor shall reimburse any monies paid by the Purchaser, in full and cleared funds, within ninety (90) days from the date of rescission of this Agreement.
- the Purchaser shall return to the Vendor or the Vendor’s Advocates all documents that shall have been provided to the Purchaser or the Purchaser’s Advocates (where prior to or after execution of this Agreement) and shall not retain any copies thereof; and thereafter,
- neither Party shall have any claim whatsoever against the other and this Agreement shall be of no force or effect whatsoever.
- ENTIRE UNDERSTANDING
- This Agreement embodies the entire understanding of the parties and there are no other arrangements between the parties relating to the subject matter of this Agreement.
- No amendments or modification of this Agreement shall be valid or binding on any party unless the same:
- is made in writing;
- refers expressly to this Agreement; and
- is signed by the party concerned or its or his duly authorised representative
- Upon registration of the Land Lease Agreement if there shall be any inconsistency between the provisions of this Agreement and the provisions of the Land Lease Agreement, the provisions of this Agreement and the Declaration shall prevail.
The Purchaser acknowledges that, at the date of signing this Agreement, the beacons establishing the boundaries of the Property may not be in place. The Vendor or its agent shall, at the written request of the Purchaser; point out the beacons to the Purchaser once they are in place whereafter the Vendor shall have no further obligation to the Purchaser to either point out, or establish any beacons in relation to the boundaries of the Property.
- COMMUNICATION AND SECURITY EASEMENT
The Property is sold subject to a general communication and security easement in favour of the Vendor which shall grant the Vendor, inter alia, all such rights as the Phase 1 ManCo may require installing and maintaining an electronic surveillance security and data communications system in Phase 1 of Kiswishi SEZ (including the Property). The aforesaid easement shall also grant the Vendor the right to lay cables generally, to transmit data through such cables and the right to enter upon the Property to lay and maintain same.
- EXECUTORY AGREEMENT
- This Agreement is an executory agreement only and shall operate nor be deemed to operate as a Lease of the Property.
- The Purchaser shall not be entitled to occupation or possession of the Property until the entire Purchase Price has been paid.
- The Purchaser shall have the right to assign its rights under this Agreement in the following conditions first having been complied with, namely:
- the Purchaser having secured the payment of the total Purchase Price payable under this Agreement;
- the Purchaser having signed all transfer documentation and having paid the transfer costs (as envisaged in the First Schedule) of this Agreement;
- the Purchaser agreeing to include in any contract of sale, in terms of which it intends alienating such property to be erected on the Property, the following, namely:
- all the terms and conditions of this Agreement, insofar as applicable;
- a suspensive condition to the effect that such contract is subject to the Purchaser taking transfer of the Property.
- Such a transfer has been duly approved in writing by the Vendor’s legal representative.
- Time shall be deemed to be of the essence for all purposes of this Agreement.
- If any term or condition of this Agreement shall to any extent be found or held to be invalid or unenforceable, the parties shall negotiate in good faith to amend such term or condition of this agreement so as to be valid and enforceable.
- If any term or condition of this Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement shall not be affected and each other term and condition shall be valid and enforceable to the fullest extent permitted by law.
- Risk for the Property shall pass to the Purchaser on the date of handover of possession to the Purchaser by the Vendor.
- If any dispute, difference or questions shall arise whether during the continuance of this Agreement or upon or after its determination between the parties hereto touching or concerning this Agreement or as to any other matter in any way connected with or arising out of or in relation to the subject matter of this Agreement shall be definitively settled by arbitration under the rules then in existence of the Democratic Republic of Congo.
- This Agreement shall be governed by the Laws of DRC.
SCHEDULE OF PAYMENTS
IN WITNESS WHEREOF the parties hereto have hereunto set their respective hands the day and year first hereinbefore written:
SIGNED by Mr. CHRISTOPHER JOHN BARRON )
The duly appointed and authorized attorney of GENILAND SA )
SIGNED by [ ] )
in the presence of: )
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