JUSTICE TRAINING CENTER Practical Legal Training COMMERCIAL TRANSACTIONS PART 2: 2011 | Drafting of Contracts Enterprises KAUATA KANGUEEHISYLLABUS ~ DRAFTING OF CONTRACTS JUSTICE TRAINING. A. TEXBOOKS ON SUBSTAITIE LAW... : : 8. UTIESOF AN ATTORNEY DRAFTING ACONTARACT. G_DRAFTING A PRACTICAL CONTRACT ‘GENERAL GUIDELINES. DEGREE OF PARTICULAR. [CONTENTS OF PARTICULAR CONTRACTS ncn BA SALEOFLAND 52 SALEOFA BUSSINESS AS A GOING CONCERN 33° SALEOFSHARES I ACOMPART. - 34 LEASE OF BUSINESS PEMISES, 35. SURETYSHIP AGREEMENT. a - 2 EMPLOYMENT co 7 2.8 PARTNERSHIP CONTRACT 29° ceSSION.... {AL Uattty for and payment ef VAT nnn 42 UaTImpbeatons of vaoss contract. 43° VATand dating of greementsDRAFTING OF CONTRACTS |A. TEXBOOKS ON SUBSTANTIVE LAW Toeara how to drat diferent kinds of contracts, a candidate or practioner must have 2 good understanding of both the general principles of contract and the principles ‘relating tothe various special contracts sale, ease, et.) Those who wish to reve the substantive legal prineples may abtain asitance from ane af or more of the following textbooks, ‘GENERAL PRINCIPLES OF CONTRACT RH CHRISTE Law of Coxtrat in South Area 3ed (1996) JC DE WET AND AH VAN WYK De Wet en Yeats: Die Suid-Arkzanse Kntraktereg en Handelsreg vl Se (1992) DI JOUBERT General Principles of the Law of Contract (2978) [AJ KERR The Principles ofthe Law of Contracted (1989) ' VAN DER MERWE fetal} Contract General Principles (2993) [ADI VAN RENSBERG “Contact” in LAWSA vol 5 SALE {GIR WACKWILL Mackeu'tan's Sale of Goods in South Afia Sed (1984) [AJKERR AND JM OTTO “Sale and Consumer Credit” in LAWSA vol 24 DF MOSTERT etal Die Koopkontrak (1972) Lease \WE COOPER The South afrian Law of Landlord and Tenant (2994)4 LOTZ"Lease” In AWSAVOL18 [AI KERR et al The Law of Sale and Lease (CREDIT AGREEMENTS. [MA DIEMONT AND Pi ARONSTAM The Law of Creit Agreements and Hie Purchase in South Aria Sed (1982) 108N ‘DS SOUBERT “Loan” in LAWSA vol 15, EMPLOYMENT ‘9M BRASSY et al The New Labour Law (1987), '5M BRASSY Labour Relations under the New South Arean Constitution (1994) CAMERON et al The New Labour Relations Act (1989) JV DU PLESSIS A Practical Guide to Labour Law (2594) {IRIEKERT Base Employment Law (2987) [A RYCROFT AND 8 JORDAAN A Guide to South African Labour law 2ed (1992) (CTHOMPSON De Koc’sindustral Law of South Africa (revision service) MANDATE HO VAN HEERDEN “Bulding Contract Architects, Engineers and Quantty Surveyors in WAWSA vol2 DH VAN 2% “Mandate nd Hegotiorum Gesti" in LAWSA vol 19PARTNERSHIP 'B BAMFORD The Law of Partnership and Voluntary Associaton in South Africa 3ed (2982) I FIENNING AND 10 DELPORT "Partnership" in LAWSA vol 19, secuairy UR CANEY Caney’s The Law of Suretyship in South Afica 4ed by CF Forsyth and JT Pretorius JGLOTE “Suretyship" LAWSA vol 26 GF LUBBE "Mortgage snd Pledge” In LAWSA vol 17 Insowvency SHARROCK et a “Hockey's Insolvency Law Ged (1996) (CSMITH The Law of Isolvency2ed (1982)B. DUTIES OF AN ATTORNEY DRAFTING A CONTARACT ‘There are basic duties which you, a6 an attorney, must full when drafting a contact Fest, you must ensure that all relevant common law and statutory requirements oF resttions are observe, i. those rues ané provisions which must be complied with for the agreement to be binding and for the parties to be free of any criminal prosecution. Secondly, you must produce a contract which is practical, Le. one which, Inter alia, gves expresson to the intention of the parties, secures performance, and averts disputes and Itigtion. Thirdly, you must give the partes 3 memorial of the \uansactons which tay can read and understand without difcuty and which does not require interpretation by the court. “These notes set out szestions and guidelines regarding what you should do (or not a} to fulfil these urls. Part O ofthe nates suggests what must be done to comply with varius legal rues and provisions governing the formation of contracts, Obviously i is ‘not possible to deal with ll the relevant law and only certain aspects are covered. Part CCalscusses what clause: should go into a contract to make it practlal and relevant to the partes needs In Port E, the rules of erating, per se, re examined. Par F deals with the terms inserted in most commercial contracts, |Atthis point it maybe useful to dispel certain misconceptions about drafting |. The fist is thatitis easy. The lay person tends to look upon drafting a¢ 9 matter of extracting causes from precedents. Presented with a document that says ‘what he wants and looks transparently simple, he assumes that it was easy 9 prepare, Lawyers themselves sometimes fel that drafting requires no special Skil, To some extend crafting entalis copying the work of others, but good drafting has @ daceotve simplicity. It requires a fundamental grasp of contract low A substantive analysis and separation of concept, insight as to what should bbe Included in the document to make it practical and effective and an arrangement of -he mater included so that the legal concepts flow easy. ‘Above allt requres an understanding ofthe use of grammar and an silty to ‘write simply and to the point. None of these sklls are necessarly acquired ‘thou effort and appicatio,‘A second misconception is that good drafting Is qulck or instant drafting, There should, of course, ahways be a premium on speed of production, but generally 00d crating requires research, planning, and carefol thoueht before ‘committing ink to paper. In general, there isan inverse relationship between speed of production and quality [A third misconception is that ll lawyers are ited drafter. infact, there i often much room for Improvement in their techniques. Lawyers fee! bound by tradition andere often hesitant to cull detects in thei precedents or adopt new ‘rating ideas. Thy frequently make the fale assumption that if something i of Jong standing tis good. "Lawyers have two commen failings. One that they do ‘not write wel and the others that they think they do” (1987 De Rebus 63) “The fourth misconceptions that drafting sa sl or at which cannot be learned, No doubt, the ality to draft ike any ther intellectual sil related in part to ‘one's level of intelligence, education, background, etc. But there are ground! rules and guidelines thet can be folowed to enhance drafting proticency practice, One may also derive some comfort from a certain humore’s remark that took he fifteen years to elscover that he ha no talent for writing, but by then he could not give I up because he was alracy famous!(G. DRAFTING A PRACTICAL CONTRACT 41 GENERAL GUIDELINES. ‘The question of what acontract should contains detated, not only by te aw, but azo by practical considerations applicable to the particular crcumstances of the care. Various additonal provisions must be inserted in the contact if it to realize the objectives of the parties and be of practical use to them, Tere is no precise formula for deciding what should go ito a contract over and above the particulars ofthe partis and the essentiolio of she contract. The folowing guidelines may asst io reaching a decision, 111 Provide for any contingency which may be the subject of cspute between parties. Have regar, inter ala, to important issue arising from the essential elements of the contract and common points of contention in the type of transaction In question, ‘Bear in mind also the social and financial standing of the partis, ther relationship with each other, ad the sprit and atmosphere in which the transaction is being concluded. 112 Exclude oF modify unwanted common law consequences. A good example of a consequence which parties normally do not want f the rule that the risk in things sole passes on conchsion of the contract 1.3 Include, whenever feasble and desired, provisions encouraging performance and ‘minimizing the rik taken by either parties. The partes expect you to drat them a “watertight” agreement ith no pitfalls or loopholes. The idea Is thatthe contract should un smoothly and that both parties should get what they have bargained for without having to resort to litigation. There are various devices which may be used to protect a party's interests: eg A suspensive or resolute condition, 3 warranty, the irevocable appsintment of one party asthe agent forthe other to do certain 2ets, an exclusion cause, mortgage oF notarial bond, pledge, cession as security, suretyship undertaking, banker’ guarantee, post dated cheques, pre-payment intotrust, right to withheld counter-performance, reservations of ownership, ‘acceleration of payments on breach, penalty for breach (eg forfetture of payments ‘made}, and invalieation of any informal relaxation or variation of the contrac. “La Make use of a condition, or a warranty ony if you are sure that is legal effect corresponds to what the parties want 415 Keep in mind thraughput the respective income tax positions of the partes. The Inclusion of a parteulae phrase or provsion may bring tx el or, conversely, may result in ality 70 tax. Consider alsa the impact of VAT on the transaction ang ensure thatthe parties have allowed for any VAT payable. 1L6 Provide for the worst case stensrio: in particular remedies on breach, include also Causes dealing with jurisdiction, addresses for service of notices and court processes, and sbitration (where appllation). if litigation or resolution is ‘unavoidable it should be made ease. 1.7 Make fll provsion forthe payment ofthe costs of drawing the agreement, stamp uty, anyother charges, nd VAT on these costs and charges 4.8 Remember the parol evidence rule which states that where parties reduce their contract to writing tis thenceforth regarded as the exclusive memorial of the transaction and, except to estelish a claim for recifcation, no evidence may be ven for orl tems agreed upon earlier which are inconsistent with the writen terms, So if matter expeesly agreed upon is not provided for Inthe contact, it ‘may not be pessble to prove it ate. Remember also the effect of the “curious bystander” test which must be satisfied before a tacit tem wil be read into the contract. DEGREE OF PARTICULARITY ‘As a rule the contrast should be as specific as possible on every matter, Provisions lacking in particularity may, for instance, allow loopholes to acecaleltant party oF may be uitficult to enforce specifically. But remember that there are certain pital involved In atterpting to cove’ every contingency.4 20 ‘There may be an expres desire onthe part ofthe cient not to provide for some matter, since to do so may impel the whole contact. The cient may prefer to take a calculated riskagainst a contingeney occurring rather than jeopardise the whole contract ‘The client might dislike being given a long and detailed document when what he ‘envisaged is essentially in his eyes, 2 simpler matter. layperson is often septial, or even iitated, whem his lawyer tries to go beyond his immeslate purpose. Achieving a bier eve of certainty may ental losing te clients confidence or busines Exhaustive detail make the contract (or a particular clause} incomprehensible to everyone but the draftperson. In the words of Lord Denning: “Lawyers try to cover ‘every contingency but inso doing they get lst in obscurity” tis une to baffle all for the sake of covering 2 contingency whch sto remote to be of practical slfcence, CONTENTS OF PARTICULAR CONTRACTS. The matters which generly shouldbe provided form the agreements to be considered inthis course ae set out below. It must be stressed tha the lists given are by ne means Uefitive or exhaustive further matters have to be dealt with depending on the perticuar circumstances of the case. Moreover, the order in which the matters are Usted are not necessari a reflection of the sequence which the causes dealing with ‘these matters should flaw in ech cas, 3.1SALEOF LAND The essentioli of anysale, vi, the fat that the seller agrees to sel tothe buyer, the property, and the purchase price Various matters relating to transfer ofthe property ~ time when (or within which) transfor must be given; identity ef the eonveyancer; lability fr the cost of transfer. ‘The giving of possessions of the property to the buyer ~ When this must take place and the interest payable (f any) for eecupatin peor to payment fr payment pice ‘topayment} ‘The passing ofthe ish and beneft inthe propertyLatent defects undisclosed servitudes, and deficiencies (or excesses n extent. The mode of payrrent ofthe pie. How payment ofthe prices tobe secured ‘Suspension of the buyers lability to pay the price until he has obtained financial ‘ssstance (where applicable}. clusion of relance by either potty on anterior statements and misinterpretations and subsequent informa vaatons/termination of the contrac Cancellation fr breach, service of notices and court process, consent to ursction of the magistrates court, and recovery of attorney and cient costs inthe event of proceedings beinginsttutes, LUabilty for agents commission (where applicable} and the cost of preparing the agreement including VAT}1 AGREEMENT OF SALE OF PROPERTY (LAND) INTEPRETATION: In ths agreement unless inconsistent with or otherwise indicated bythe context: 11 sale: mens PIERRE STRYDOM; 112 purchaser” mzans JOHN GEYSER; 113 “property” sans ERF SO PIONEERSPARK, WINDHOEK, 36 more fully Described inthe seller's ttle deed No T 774/2004, together with allimprovements thereon; 1.4 “Occupation ate” means date of registration of transfer. 415 words importing the sigulor shall include the plural and vice versa and words importing one gender shal inde the other genders; 16 Headings to clauses are for reference purposes ony and are not to be taken into ‘account in the interpretation thereof SALE ‘The seller hereby sells to the purchaser who hereby purchases the property upon the terms and conditions of his agreement PURCHASE PRICE AND PAYMENT 3.1 The purchase price will be NS700 000,00 (SEVEN HUNDRED THOUSAND NAMIBIA DOLLARS) and shall be paid by the purchaser on the date of regstration of the ‘transfer ofthe property inthe name of the purchaser.3 3.2 The purchase price shall be secured by the purchaser delivering to the seller's conveyancers acceptable bank guarantees in favour of the seller and/ or his ‘nominees, forthe purchase price, which guarantees shall be delivered within 7 {SEVEN days from the day of fulfiment ofthe suspensive conditions referred to In this agreement. POSSESSION AND OCCUPATION Possession and occupation of the property shall be given to the purchaser upon the occupation date risks 5.1 On transfer all sets and benefits of ownership shall pass tothe purchaser and fom such dates the purchaser shall be entitled to all nome from and be lable for a expenses and chages in respect ofthe property '5.2The purchaser shall not make any alterations or ations of whatsoever nature to the property or irproverents thereon prior tothe date of transfer. ‘TRansre, 6.1 Transfer of the property shall be effected by LAWYERS AND ASSOCIATES ("the conveyancers") a soon as possible after the purchaser has complied with its obligations in ters hereot. {6.2 The purchaser shall sign all documents and pay all costs, fees, charges an ditles| Including stamp dite, in connection withthe transfer ofthe property upon request thereof bythe conveyances AGENT'S COMMISSION 7. The SELLER agrees that agent's commission of NS45 000,00 inclusive of VAT shal be payable to SAUL 2EAL ESTATE in respect ofthis transaction, which amount shal bea aid to the agents or the date of registration of transfer ofthe property inthe name ofthe purchaser by te seller's conveyancers 72 Agent’s commission shall be deemed to be eamed on signature hereof and futment ofthe suspensive conditions contained in tis agreement 8. contract 18.1 The property is sold yoetstoots without any warrenty whatsoever '8.2 The parties acknowlaige thatthe provisions ofthis agreement constute the entire contact between tem and that no undertakings, promises, warranties or representations have been made by either party to the other save as Is set out in ‘his agreement. No ateration, addon or amendment to, or consensual cancellation Of, this agreement stall be of any force or effect unless reduced to writing and signed by or on behalf of both partes 9. BREACH ‘Should any party breach any term of this contract and fll to remedy such breach within 7 ISEVEN) days of receigt of notice reauiting such breach ta be remedied, the other Party shall be entitled, without prejudice to anyother right valle to itin lw ‘9.1 To cancel this contract, coim immediate electment ofthe purchaser (in the event ‘thatthe purchasers the defaulting party) and to claim such damages as It may have sustained by reason of such breach; or 9.2 To aim specific perfermance. 120. GENERAL ‘The purchaser undertakes to vacate the property immediately on termination, t being ‘agreed that no tenancy sereated herein, 12, bomen,wv. 2. oat PLACE 6 411.1 The partes hereto respectively choose domicium cltandl et execvtanl fr all purposes af and in connection wit this agreement as follows: ‘The purchaser: £362 Sam Nujoma Drive, Kein Windhoek ‘The salir the property. 1.2 Any party hereto shal be entitled to change its domicliom fram time to time, provide that any naw domicilum isan address within Nambia and such change ‘will only be elective upon receipt ofa notice to that effect. 31.3 All notices given in terms of this agreement shall be given In wrtng ard shal tether be seat by prepa registered postin which eventitsalbe deemed to be received five days after sting or shal be delivered in which event it shall be deemed to have heen received when so delivered. costs The cost of and inedental to the negotiations, preparation and execution of this agreement, ineludig stamp duty thereon shal be borne and paid by the purchaser, SUSPENSIVE CONDITIONS “This agreement ssuspensive on condition thatthe purchaser applies for and be granted loan forthe ful purchase price from FIRST NATIONAL BANK OF NAMIBIA LIMITED, or any other registered institution, which loan sto be granted to the purchaser within 14 (FOURTEEN) days from the date of accaptance of this agreement by the seller, fallure “hich this contract shal lapse and be ved ab nto. uly, 2081 WINDHOEK Witness, PURCHASER16 wrruess SELLER 3.2 SALE OF A BUSSINESS (AS A GOING CONCERN} ‘The essentialo ofthe contrac, vi, the fact that the sellers sling to the buyer, the assets comprising the subject matter of the agreement, and the purchase price (incuding, where applicable, the manner in which any untied portion Is to be determined), ‘The mode of payment Security fr paymen: Passing of ownecship and contrl of business “Tile of the seller, validity of existing licences, authentiely and correctness of nancial statements Preseration of assets prior to delivery Obtaining of necessary licences, assgznments, consents, etc if applicable, suspension tay unt obtaned Lsbilty for esting debts of the business, including stock orders and employees’ wages o salaries Preservation of goodwill and other assets and reservation of ownership until full payments received where aplicadle)” ‘Acceleration of payments on efaut (where applicable) Protection of goodwill after sale: restraint of trade, passing of, access of buyer to business prior to dlivery, perusal of eustomer information tc. ‘Delusion of reliance by ether party on anteror statements and misinterpetations and subsequent invormal variations /terminaton of the contact Cencallation for breach, service of notices and court process, consent to jursction ofthe magistrates court, and recovery of attorney and client costs inthe event of proceedings beinginstituted, LUsbilty for agents commission (where applicable) and the cost of preparing the agreement (includhg VAT)[MEMORANDUM OF AGREEMENT OF SALE OF BUSINESS WHEREBY TIS AGREED AS FOLLOWS: 1. INTERETAION Inthis agreement, unless inconsistent with or otherwise indleated by the context 411 Seller” means 1.2 "Purchaser" means 113 "The business" ‘means the business known as Die VllsParadys ‘conducted by the seller from the premises, including the ‘good and the assets; La "The assets" means the assets of the business comprising the items ‘sted In schedule “A” hereto, 115 Goodwill” —__mansthe goodwill ofthe business an includes the name "Cie Vii Parad"; 16 "Theetfecive date” means 20 uly 2014; 17 "The premises” ‘means plot 12118 Kooloul, Okahandla, 1.8 Words importing one gender shal include the other gender and words importing the singular shal include the plural and vice versa, 41.9 Headings to causes n tis agreement ae fr reference purposes only and shall not bbe used in the interpretation thereof 2, SALEOF BUSINESS19 2.1 The Seller hereby slls to the Purchaser who hereby purchases, as one indivisible ‘transaction, the bisiness as @ going concern, subject tothe terms and conitions of this agreement. 2.2 Notwithstanding the date of signature ofthis agreement ths transaction shall be deemed to have taken effect onthe effective date. PURCHASE PRICE AND PAYMENT 3. The purchase pree of the business shall be NS_S0 000,00 {FIFTY THOUSAND NAMIBIAN DOLLARS), 13.2 The purchase price shall be pai tothe seller n cash a5 fellows 3.2 NS 40.00000 upon dat of signature of this agreement; 322. N§ 20 00000 In ine equal monthly instalments of NS1 110,00 each payable ‘on the first day of each sveceeding month hereater, fre of any deductions ‘or commisions whatsoever to the Seller at Ws address. £33 The Purchaser wil pay interest on the balance ofthe purchase price which becomes ‘overdue at a rateof 25% [TWENTY FIVE PERCENT] per annum. Such Interest shal be ‘aeulated monthy on the outstanding balance ofthe purchase pice on the first day ‘oF each month ard shal be paid monthly in arrears on the as day of each month £24 Notwithstanding she provisions hereof the Purchaser shall be entitled at al times to ‘make additional gaymentsin eduction ofthe purchase price. 235 In the event of the Purchaser falling to make payment of any instalment hereunder, the Seer shall have the right, without prejudice to any other rights it may have and rotwithstanding sy prior waiver, to declare the ful balance of the purchase price ‘then owing to beimmeditely due and payable, together with interest thereon, “SUSPENSIVE CONDITIONS “This agreement is conitional upon20 4.1 Te Purchaser or the Seller on the Purchaser's behalf, being able to secure a lease between the Purchaser and the Town Council on or before 2 August 2021 upon conditions no more onerous as to obligations. of the Parchaser than the Seller resentiy enjoys and fora minimum peros of 5 years 442 The provisions ofthis clause ae forthe sole benefit of the Purchaser who may waive such provisions by ging unto the Sller writen natice of such waver. 4.3 Should ths condition not be full then, unless otherwise agreed in writing by the parties, this agreement shall automatically lapse and be af no further forca or eect and the parties shall he restored to the status quo ante. DELIVERY, OWNERSHIP AND Rsk 5.1 Ownership of and the risk in the business shall be deemed to have passe to the Purchaser on the effective date from which date the business shall be deemed to have been delivered io the Purchaser and tobe Inits possesion and control By is signature to this agreement the Sellar shall be deemed to have ceded its rights and delegated any obligctions in respect of the business and equipment, azets or ‘tures tothe Purchaer 5.2 The Purchaser accepts such cessions and delegation and undertakes to discharge any future lables as and when they fll due. The Purchaser hereby Indemifies the Seller against any loss or damage the later may sustain as a result of the Purchaser's failure to scharge the liabilities 5.3 The Seller hereby war-ant that 53.1 IIs the owner of the assets comprised in the busines free from any encumbrances 5.3.2 No other person has any rights ln respect ofthe assets and in particular the right to claim celvery or transfer thereof; 533 The assets are fully paid for; ‘5.8 On the signature here the Purchaser shall procure that any Local Authority service 1nd NAMPOWER or other electrical supply is wransferred from the Seller ta thea Purchaser. The Salle shall on demand by the Purchaser or his duly authorized representatives do all things and sign all documents as may be necessary to give fect to these abiigations, Should the Seller fal to do anything or sian any ‘documents pursuant hereto within 7 (SEVEN days af being called upon to do so, it shal be deemed 7a have authorized the Purchaser lrevocably and in sem suam to ‘acton hls behafe 55 The Seller shal effect payment of all ables incurred by the business prior tothe elective date. ‘5,6 Save as contained in this agreement the Seller gives no warranties of any nature ther tre business or any ofthe asets comprised therein all of which are ‘deemed tohave Eeen sold to voetstots 6. PREMISES 16.1 The Purchaser hereby undertakes that he shall either procure the cession and sslgnment ofthe lease in respect of the premises fo the Purchaser or failure that shall procure a sublease of the premises to the Purchaser, on condition that the Seller shall not be required to bind itself to the Landlowd in respect of the Purchaser's oblgations under the lease {62.The costs of and incidental to the registration, preparation and execution of any lease of other azements, contemplated herein, including stamp duty, shall be boxne bythe Purchase. 7. EMPOYEES. 7.4. permanent enployees ofthe business shall be deemed to have been employed by the Purchaser as fully and effectually as if ths sale and transaction had not ‘cccurred, They stl be employed by the Purchaser on precisely the same tems and conditions as they enjoyed with the Sli. 72 Each such employee shall have credited to his ordinary and sik leave accounts any entitlement de to him by Sellr as at the effective date |B. INSOLVENCY ACT 240F 1936n The Purchaser shal at hs own expense advertise this sale in terms of section 24 of Act 24 of 1956 9. UNDERTAKINGS By PURCHASER ‘9.1 Uni the purchase price and all interest thereon have been paid, ownership in and to the business shall remain vested with the Seller. The Purchaser shall not be entitled to espose of, alienate and or dea! with business save and except with Selle’swritton consent fst had and obtained. 9.2 The Purchaser undertakes 9.24 Tokeep the business and, to the best ofits ability, maintain the goodwill and reputation of the business; 92.2 Comply with the lease in respect of the premises and the terms of any ‘essions and assignments thereof or any subsiease conducted pursuant to clause 7.3; 92.3 To incur credit only inthe ordinary course of business and pay all accounts punctualy 9.2.4 Atits expense to apply for the issuing or renewal of any licence in respect of the business which Is necessary for the carrying an of the business in terms ofthis agreements 9.25 At ts expense, attend to the transfer and reparation into its name of all ‘movable assets which require formal transfer and egstration 20. BREACH ‘Should either party commit a breach of any term to. this agreement, save for the ‘obligations set forth n 3.6 above, and fall to remedy such breach within? (SEVEN) days Of the receipt of writter notification requesting it to remedy such 2 breach, the aggrieved party shal, without prejudice tothe rights avaliable tot in aw, be entitled2 30.1 To cancel the agreement, claim restitution and such damages as it may have sustained by reason of such breach; or 102 Toclalm specif performance. 41. RESTRAINTS L1_ The Seller hereby undertakes that for @ period of 5 (FIVE) years from the effective date It shall not, ia any manner whatsoever, either personally or through or on behalf of any third party, be directly or indirect Involved In any ‘capacity _ whatsoever with any frm, company of business whieh competes withthe business within 10 kllometre radius of the premises, 112 The Seller ackrowledges thatthe aforegoing are reasonable and necessary for the protection ofthe proprietary interests ofthe Purchaser, 11.3 In the event th Purchaser has defaulted Ia payment of the purchase price on ‘any manner breacved or deemed to have breached the terme of this agreement, ‘then this restraint sallipso facto lapse and become unenforceable ab iio, 12, GENERAL 4121 This agreement constitutes the entire agreement between the parties. No alteration or adgiton to or consensual cancellation ofthe terms ofthis agreement shall be of any free or effect unless reduced to writing an signed by or on bebalfofthe parties. 12.2 Any latitude or extension of time which may be allowed to either arty shall not in any circumstances constitute or be deemed to constitute a waiver ofthe iahts (ofthe other partyin terms, 13, boMICLIUM 13.1 The parties heraby choose domicitum citand et executanl for all purposes in termshereof atthe addresses set out below sa. seuer 4Park Vil, Parkrand, Ofahand, 13.12 PURCHASER at the Premises43.2 The parties may change their domicitactandi et executand on 14 (FOURTEEN) ays written notice to the other partes provided that such new domicum isin the Republic of Namibia 413.3 _Allntices to begiven in terms ofthis agreement shall be given tothe parties at their chosen domi, THUS DONE and SIGNED at WINDHOEK on day of JULY 2011. 23.3 SALE OF SHARES IN ACOMPANY ‘The essentaio of te contact, |. that Sller i selling tothe buyer, the shares and any other property comprising the subject matter of the agreement, and the purchase rie ‘The mode of payment Security for payment ‘The date of transterof shares Delivery of share cetifeates and other documents Warranty by the Seler regarding matters such as the Seller’s title to dispose of the shares; waiver of ary right of pre-emption; capital of company nat tobe increased roe to transfer of shates the assets and lables of the company: the books of account forthe company Replacement of directors, officers and auditors (where applicable) Acceleration of payments on default (where applicable)as Exclusion of reliance by either party on anterior statements and misinterpretations and subsequent formal variaton/terminatin of the contract Cancellation for beach, service of notices and court process, consent to jursetion ofthe magistrates court, and recovery of attorney and client costs inthe event of proceedings being instituted. [MEMORANDUM OF AGREEMENT SALE 05 COMPANY OWNING OPERATING BUSINESS ~ SUPERMARKET Between and and [WHEREBY ITIS AGREED AS FOLLOWS: 4 IVTEPRETAION, In this agreement unkess inconsistent with or therwise indieated by the conten 114 "The Selers mean toeseesteesenneas 112 "The Purchaser” means, or ny of therm; 13 "The Company” means **+4steeseee¥eee9¥(pty) Ltd, fag. No, se4esese26 414 "The Shares’ means the shares constituting the entre issued share captal of the company; 45 7The Claims” means, subject to 7.3, ll and any claims of whatsoever nature and howsoever arising ofthe Sellers against the company as tthe effective date; 1L6 "The Business” mears the supermarket business conducted by the company at the premises including its name, gooduil, fixtures and fittings and stock but exclding Itseash on hand; 4L7 "Fetares and Fittings” means those items set out inthe schedule annesed marked “* 11.8 "Stock" means the sleable stock of the business determined in acordance with 7.4 119 "The premises” mears the premises from which the company operates the business; 4.10 “Tre Landlord” means Smartact investments (Pty) Ltd: 412 “The effective date” means 1° July 1990; 112 "Theattorneys" 113 "Theaueltors” 4114 Words importing one gender shal include the ther gender and words importing ‘the singular shall nce the plural and vice versa 4115 Headings to clauses in this agreement ae for reference purposes any and shall not be used inthe Interpretation thereof. 2. SALE OF SHARES AND CLAIMS ‘The sellers hereby sel to the purchasers who hereby purchase as one indivisible transaction the shares athe claims with effect from the elective dat, 23, PURCHASE PRICE‘The purchase price peyable by the purchasers to the sllrsin terms hereof shal be the aggregate of NS 1 4C0 000,00 {ONE MILLION FOUR HUNDRED THOUSAND NAMIBIAN DOLLARS) and the value of stock on hand as at the effective date determined in accordance with the provisions of clause 7. The purchase price shal be allocated in the fist Instance tothe eins at par value and thereafter tothe shaves PAYMENT OF PURCHASE PRICE Peyment ofthe purchase price shal be made by the purchasers tothe sellers as follows 4.1 depost of W600 00,00 (Sik HUNDRED THOUSAND NAWABIAN DOLLARS) shall be paid tothe seller onthe effective date either in cash or by way ofzsutable bank fuaranteed cheque expressed to be payable in favour of the sellers or their nominees on the fest business day aftr the effective date; 428s to the amount of N§ 400 000,00 (FOUR HUNDRED THOUSAND DOLLARS) the purchasers shall gay to the sellers twenty monthly instalments of NS 20 000,00, (IWENTY THOUSAND NAMIBIAN DOLLARS, the fst of whch shall be payable on or before the 21° Juy 1990 and the balance on or before the last day of the nineteen succeeding months; 430s to the Bolanes of the purchase price it shall be pad in twenty-eight equal ‘monty instalments the fst of which shall e payable on or before the ast day of ‘he month following the month In which the payments contemplated In 4.2 are completed and therester on or belore the last day ofeach and every succeeding mont CONDITIONS OF PAYMENT 5.1 Should the purchasers fal to pay any instalments in respect ofthe purchase price timeously on or before the due date then the selers shall be entitle, without Dreludice to anyother right avaliable to ther elther in terms ofthis agreement or ‘common law, to ecover interest in respect of any such arear instalments a arate ‘equivalent to the prime lending. rate from time to time of the Standard Bank Namibia Listed calelated from the due date of such payment tothe actual date of such payment.28 5.2 The sellers shall be entitled in their sole and absolute discretion to allocate any ‘amounts received from or forthe account of the purchasers tothe payment of any ‘debtor amount owing by the purchasers tothe sellers in terms hereo. If the sllers {ail to make any such allocation, al amounts pad shall be deemed to have been allocated firstly to the payment of any interest which may be due and then to the payment ofthe balarce ofthe purchase price, 5.3 All payments due in erms hereof shall be made fre of bank exchange, commission and ll other deductions tothe sellers atthe sellers address orto such ather person lr such other addresses as the sellers or thei attorneys may from time to time not the purchasers, 5.4 The purchasers shall ot have the ight to defer, adjust or withhold any payment de ‘tothe sellers in terms hereot. beuverr 6.1 Within 3 (THREE) days of the effective date the partes (or their representatives) shall meet atthe offices ofthe attorneys ofthe sellers and the sellers shall, provided ‘the purchasers shall have complied with ther obligations in terms hereo, delve to the purchasers the fallowing 64.1 The share cetifcates in respect ofthe shares together with share transfer {forms duly signed by sellers but lank a tothe transferee; 5.12 Witten cession of the clams in favour ofthe purchasers or thelr nominees; 6.13. The written resignation of each ofthe sellers as 9 director ofthe company cifectve from the effective date; 64.4 Acertitied copy ofthe resotuton ofthe ca 6.1.4.1 Appointing the purchasers or thelr nominees as directors of the company; (6.1.42 Accepting the resignations ofthe persons referred ton 6.1.3 above:3 6.143 Approving the transfer ofthe shares and noting the cessons ofthe claims pursuant to the provisions of tis agreement; 6.415 Awetten indertakng by the auditors to resign immediatly ater completing the agjustment account, which ceslgnation wil become effective retrospectively as rom the effective dete; 6.4.6 A written auditor's certieate 35 to the value of the stock at the effective ate; 6.4.7 Such of the books, accounts, documents and records ofthe company a5 re rot requird by the auctor forthe purpose of completing the adjustment ‘account, Inluding the memorandum and articles of association of the ‘company, It cetieate to commence business and the caricate of Incorporaton. {6.2 Notwithstanding anything to the contrary herein contained the share certieates in respect ofthe shires together withthe accompanying share transfer forms shall be retained by the atorneys in pledge on behalf ofthe sellers as securty for the due payment of the balance of the purchase price. Upon payment in full the attorneys shall elease the si share cetMeates and share transfer forms tothe purchasers, 7, STOCK TAKING AND CASH 7.2.0n the effective ate ata time mutually convenient to the parties they shall met at the premises forthe purposes of taking Stock. The sllers on the one hand and the purchasers on the other shall each be entitled to be represented by an auditor at such stcktake stould they deem fit. The stock shall be valued at selling priceless 20% except for cigarettes which shal be valued at cost and t shall bea condition of this agreement that the purchasers shall only be obliged to accept the saleable stock. Inthe evert of any dispute a5 to what constitutes saleable stoc, such cispute shal be referred to the aualters, acting 25 experts and not as arbirators, whose ection shal be final and binding on the partes. 172 Upon completion ofthe stock-take the autos shall erty the value ofthe stock and such valuation shall thereupon be final and binding upon the partes.6 16. GENERAL 16.1 This agreement contains al the tems and conditions ofthe agreement between the sels and the purchasers. No variation or consensual cancellation of this egreement and no wsiver by the seles of any of thelr rights hereunder shall be of any force or effect unless reduced to writing and signed by the sellers and purchasers or anther behal. 16.2 No relaxation or indulgence which the sellers may allow the purchasers at any time in regard to carrying out thelr obligations in terms of ths agreement shall prejudice or constitute a novation or awalver ar abandonment of ny ofthe seller’ Fightin terms ofthis agreement, a7, cession For so long as any amount Is due by the purchasers tothe sellers in tems hereof the purchasers shall not cele, transfer, alienate or otherwise dispose of the shares or procure that the company shall cede, transfer, alienate or otherwise dispose of the business or any part thereof without any prior written consent of the sellers, which consent shall not unreasonably be withheld It shall be a canltion of any consent as “aforesad that any amount due by the purchaser to the sles atthe tie of granting of such consent shal frthuith be due ane payable 18. AGENTS COMMISION The purchasers hereby warrant to the sellers that they were not introduced to the sellers or to the company or to the business by any person who would be entitled to ‘aim commission in respect of the sale. The purchasers hereby indemnity the selers ‘against any claim for commission which may be made against them arising out ofthis 19.JOINT AND SEVERAL UABLITY ‘The iabilt of the purchasers to the sellers in terms ofthis agreement hal be Joint and several 20.costsPuce a” ‘he costs of the inddental to the preparation, negotiation and execution of this greement including eny stamp duty Shall be borne by the purchasers. The purchasers shall ikewise be lable fo the costs ofthe preparation of the adjustment account and of cffectng transfer ofthe shares and claims (incuding any stamp duty) ito the names of the purchasers.28 [3.4 LEASE OF BUSINESS FRENISES ‘The essentila ofthe contract, Le the fact thet he lessor agrees tolet to esse, the Property le, and the rent. ‘The period of ease ‘Tre mennerin which how, when, where, et) the rentals to be paid ‘The purpose of the lease: in ther words the uses} to which the lessee may put to the premises Pacing the premisesin a condition fit for the purpose ofthe lease ~ egg, Exlision ofthe lessor’ commen law liability to make necessary repalts/changes, ably for ‘work required by the eal authority, ete ‘Maintenance ofthe gremiss during the lease improvements: lesse's right to make, compensation and removal, te Lnbities for charges in respect of the premises/the lessee’s user. In particular, responsibilty fr rates and charges for services suchas electricity, refuse remnova, sewerage, and water Insurance against loses arising out of the lessee's use and occupation of the premises “The right i any ofthe lessee to sublet, ete Damage or destruction resuiting from vie moor LUnblty of the fessor for loss suffered by the lessee arising out of his use of the premisesRenewal ofthe lease (applicable) Return ofthe premises on the termination of the lease clusion of reliance by either party on anterior statements and misinterpretations and subsequent eformal vriatlon/terminaton of the contract Remedies fo breach, service of notices and court process, consent to jurisetion of the magstrate's court, and recovery of attorney and dient costs i the event of proceedings being instituted. LUsbilty Fr the eas of preparing the agreement (including VAT]AGREEMENT OF LEASE Between PROPERTY INVESTMENS Cc “The Lesion And FERBET nd VERONIKA STRAUCH Joint and several, the one paying the other to be absolved “The Lessee” Is agReED 4. terms The Lessor hereby lets to the Lessee who hereby hites the PROPERTY, ERF 100 WINDHOEK situated at 100 INDEPENDENCE AVENUE, WINDHOEK together with the imorovements in respect thereof ("the premises") upon the terms and coftions bers, 2. DURATION 2.1 Notwithstanding the date of signature ofthis agreement, the lease commences on the 1 APRIL 2005 from which dete the Lesse is entitled tothe exclusive use and ‘occupation ofthe premises. 2.2 Ths lease shall be for an lial period of 4 (FOUR) years up to and inelucing 28 FEBRUARY 2009 and shal thereafter continue indefinitely on a monthly bass with ‘one month’ written ratice to the other 3. RENTAL AND DEPOSIT 3.1 The monthly renal forthe premises shal bea 4.4.1 N$ 13 50000 or the fist 12 months ofthe lease; 2:12 Thereafter the rentl shall escalate annually on the anniversary date ofthe commencement of this agreement at arate of 7.59% (SEVEN COMMA FIVE PER CENTUM) per annum. 13.2 The intial rental forthe frst period of sx months shall be paid by the Lessee to the Lessor six nonthivin advance, and 13. Thereafter the rental shall be pald tothe lessor monthyin advance on or before the 4° day of each and every succeeding month; 34 The Lessor shall be entitled to appropriate any amounts received from the Lessee ‘awards the payment of any amounts due by the Lessee arising out of this lease; 35 The Lesree shall pay to the Lessor an amount NS 13 500,00 as a depost, which account i to be held in trust, In an interest bearing eal acount for the benefit of the Lessee, by the Leszor and inthe event of a dispute between the Lessor ané the Lessee as to the amount to be reps in térms of paragraph 3.5, then the deposit shall be held bythe Lessor until the matter I esclved 36 The deposit shalbe repaid to the Lessee after the premises have been vacated by ‘the Lessee and upon termination of ths agreement, always subject to deductions by the Lessor for any defects and/or damages sufered by the Lessor in respect ofthe premises. ELECTRICITY AND OTHER MUNICIPAL CHARGES 14. The Lesene shall be lable for and shall on demand pay tothe leal authority = 4.1 Any charges oring dleety or indirectly out of the use of electric current, water and gsi respect ofthe premises; 44.2. Any charges due in respect of the premises for other municipal purposes such as rubbish removal, and related services.a 44.2 The Lessor shall on demand by the Lessor furnish proof of payment of all amounts | ue by iin terms hereof; 443 Should the Lessee fil to pay any amount due in terms hereof on/or before the due date for payment, te Lessor shal be entitle, without prejudice to any other rights valle to it, to pay such amount on behalf of the Lessee and ta recover same from the Lesse, USE OF PREMISES ‘The Lesice shall be entiled to use the premises for residents purposes for him or her and his or her immeetate family and fr no other purposes ‘COMPLIANCE WITH LAWS AND TITLE DEEDS The Lesse shall not contravene or permit the contravention of any ofthe conditions of the ttle under which the premises ae held bythe Lessor r any ofthe provisions of the ‘own planing scheme eppicable tothe premises nor do or cause or permit tobe done in oF about the premises anything which may be or cause a nuisance or disturbance to the neighbours. ALTERATIONS AND ADDITIONS 7.1. The Lessee shall not make any alterations oF additions tothe premises without the Lessor’ prior written consent. f any alterations ar adltions are made by the Lessee ic shal, on the expiry ofthe lease unless Lessor otherwise agrees in writing remove ‘them and reinstate the premises to the condition in which they were before ‘additions and alterations were effected. The Lessee shall under no circumstances have any claim for compensation for any uch alterations, additions or renovations ‘whether or not they are removed and the premises reinstated 7.2 The Lessee may at any time install any fixtures and fitings inthe premises for reasonable purposes of residing on the premises wit the written consent of the Lessor, which shall net be unreasonably withhelé and shall, prior to the termination ff this lease remove any such fitures and fittings, provided the Lessee shall repair ‘any damage caused by the installation o removal thereof the Lessee does not ‘remove such fitures and fittings on vacating the premises these will become the property of the Lesser andthe Lessee shall have na claim whatsoever in respect of3 the compensation for any fitures and fitings not so removed. The lessees ‘obligation to restore and return the leased premises in good order and condition {eubject to fair wear and tea) shall be consonant with the age and use of the remiss 4, INSURABLE LOSS OR DAMAGE 8.1 The Lessor shall Insure the building for an amount determined by the Lessor's ‘mortgagee agninst the risk of fire, lightning, explosion, storm, flood, earthquake, Flts, strikes and malicious éamage and for any ather risks selacted by the Lessor \wbich ae freely insurable inthe local insurance market. ‘8.2 Te Lasse shll be obliged to effect adequate insurance cover in respect of is wn ‘00ds and pestessons stored on the premises, it being agreed thatthe Lessor shall Under no crcunstances be lable to the Lessee for any lss of or damage to property 9, DAMAGE OR DESTRUCTION OF PREMISES 9.1 Should the preméas be completely destroyed or be so damaged as to render ther reasonably unterantable then either party shall be enttled to declare this lease ‘cancelled by writen note. If no such notice is given then this lease shall ot be ‘terminated and the Lessor shal be obliged to proceed expeditiously with the work of rebuilding the aemises and during the period thatthe premises are untenantable ‘the Lessee shal rot be lable forthe payment of any rental Smit, nthe event of the lease being cancelled by notice given as above, the Lesse shall not be lable for payment of any rental after the date of destruction of the premises. 9.2 n the event ofthe premises being damaged in sucha manner that they nevertheless remain tenantable, then this agreement shall not be cancelled but the rental payable by the Lessee shall be abated uatl the damage has been repaired having regard tothe exent to which and perlod for which the Lessee is deprived ofthe ‘beneficial occupation ofthe premises. Should any dispute arise between the Lessor and the Lessee in regard te the amount or extent of the abatement In rental to ‘which the Lesseeshall be entitled, a certificate signed by an state Agent selected bya the parties mutually stating the extent to which the Lessee is deprived of beneficial ‘ccupation of the pemises shal be final ang binding onthe parties hereto and the rental shallbe abated accordingly, 20. WAWVER. ‘The Lessee, its servants, Its quests, invitees or agents shall not have 2 claim of whatsoever nature against the Lessor for any loss or damage howsoever caused, ‘whether direct or indirect, sustained by such person in or about the pms. u Nomice oF berecrs the Lessee, upon ccupaton of the premises finds that any Keys, locks, windows, ‘ures, tings or any exher installations contained in or which shouldbe contained in the premises are defective or missing or not in a reasonable working order and condition, the Lessee shall within fourteen (FOURTEEN) daye after taking occupation, notify the Lessor n writing of such defects, with ull particulars and ifthe Lessee fls to to so within that peri fori the Lessee does give a writen notice, then after the ‘matters specified in the notice have rectified), the Lessee shall be deemed to have ‘acknowledged that nether the premises nor any af such keys, locks, windows, fintues, fitngs, wash-basins, iets and other installations are defective or ising and that the premises have been delvered tothe Lessee complete in all respects and suitable inal respects forthe purposes for which they ar let Inthe event that any ather defect, not ‘easonably capable of detection within the stated period, becomes manifest, the Lessee shall notify the Lesor, ruta mutandis in accordance herewith 1 LESSEE'S OBUGATIONS ‘The Lessee shal 32.1. eep and maintsin in good order and condition the interior of the premises including al fixtures and fittings, including the alarm sytem, al locks and Keys and ‘on termination of ths lease shall deliver the same to the Lessor in such good order and condition, fal wear and teat only excepted; 122 _Keep and maintain the garden and exterior of the premises in good order and condition4s 123 Use ts best efforts to prevent blockage of sewerage or water pipes or drains in ‘or used in connedtion with the premises and shall remove it at its cost any ‘obstruction oF blockage In any sewer, water pipes or drains serving the premises arising out ofthe Lessee’s occupation a the premises; 224 Pay forall uorescant bubs, starters, ballasts and incandescent bulls used inthe premises and to mintsin all the lights in the leased premises lathe proper order and clean condor; 125 it dees or permits to be driven into the walls or celngs of the leased ‘premises and/or the building any nals, screws or other instruments or artes to ‘ectily such work and einstate and repair such par of the premises as are affected 12.6 Not do 0 permit anything to be done which in the reasonable opinion of the Lessor, detracts fram the appearance of the premises, the bulding or the property; 32.7 Not permit the accumulation of refuse In or ousie the premises save in reuse bins provided forthe purpose, 13. LESSOR'S RIGHTS AND OBLIGATIONS 23.4. The Lessor sal maintain the outside walls and the roof of the bulng in good ‘concton, fair wear and tear excepted. Upon receipt by the Lessor fom the Lessee ‘of advice in writing of any damage to the outside walls or roof of the bullings Feauiring tepal, the Lessor shall effect the repairs necessary a5 soon as may be reasonably pracisbe. The Lesse shall nat under any circumstances have any aim for damages, nar salt be entitled to withhold or defer payment of rent by reason ‘of the premises of any part thereof being In a defective condtion or fling into disrepair or any particular repalts not effected by the Lessor unless the Lessor shall have unveasonably failed or refused to effect such repair 432. The Lessor shal be entitle to any and at all tlmes during the currency ofthis lease to effect any such repairs, alterations, improvements andor additions tothe premises or the bulding as it may reasonably require to cay out 13.3 The Lessor and the Lessr’s agents shall be entitled at all reasonable times to ‘such rights of acess to the premises as may reasonably be necessary having regard46 to the Lessor’ rgh's and obligations in terms of ths lease, and to inspect the premises, tures and tings therein, 14, LEGAL COSTS AND OUTSTANDING PAYIMENTS Should the Lessor instruct its attorneys andor Insitute legal proceedings against the Lessee pursuant to the breach by the Lessee of the lease, then without prejudice to any other rights which the Lessor may have, the Lessor shall be entitled to recover ll legal costs incurred by it, eluding attorney and client charges, tracing fees and such collection commission asthe Lessor is oblige to pay to its attorneys from the Lessee 415. CESSION AND SUBLETTING 15.4 The Lessee shall aot 15.1.1 Cede, asin, transfer, allenate or otherwise dispose of any of is rights and/or obligeons in terms of this lease; 15.1.2 Sublet the premises orany part thereof; 15.13 Give up occupation or possession of the premises or any part thereof to any person without the prior written consent ofthe Lesor, which consent shall rat be unreasonably withheld 16. BREACH 364 the Lessee; 26.1.1 Falls to pay on due date any rental, commit any other brezch ofthis lease or falls pay othe: amounts due and fits to recite with 7 (SEVEN) daysatter recspt of witen notice requiring compliance; 415.12 Consistenty breaches any of the terms and conditions of this lease in a ‘manner which is inconsistent withthe intention or ability ofthe Lesce to comply with the provision ofthe lease;‘The Lessor shall be enfiled to cancel this leae in addition to and without prejudice to any other remedies it might have, whether under this lease or at 16.2 Should the Lasor cancel this lease and the Lessee dispute the Lessor’ right to ‘do 20 and remair in occupation of the leased premises pending determination of ‘that alspute, then: 16.2. The Lessee shall continue to pay all amounts due by itn terms ofthis lease con due dae; 36.2.2 The Lessor shall be entitled to recover and accept those payments; 362 The acceptance by the lessor of those payments shal be without prejudice to ‘and shall not in any manner whatever affect the Lessor’s claim to ‘cancelation ofthis ease oof anyother nature whatsoever 27, DOMICIIUM AND NOTICES 1574 The partes choose a ther respective demic cand et executandl for the fective service ofall notices and legal processes flowing from this agreement, the following addresses: 7.14 TheLessor __362.Sam Nujoma Dive Klein Windhoek. 17.4.2 The Lessee at the premises during the currency ofthe esse 72 The parties syll be entitled to change thelr domitium citandi et executandi from time to time by giving writen notice effective upon receipt of such natice of the change by the addresse. 172 Ai potices rived to be gen in terms ofthis agreement shall be writing, and shall ether be deivered by hand or be forwarded by prepald registered post 38, c0sTS8 ‘he Lessee shall bear she costs Incidental to the negotiation and execution of this !agreementin the amount of NS 450,00, as well as stamp duty payable in respect ofthis lease. 19. WHOLE AGREEMENT ‘This lease constitutes the whole agreement between the partes and no warranties or representations, whether express or implied, not stated herein shall be binding on the partes. No agreement zt variance with the terms and conditions ofthis lease shall be binding on the partes urles reduced toa witten agreement signed by or on behalf of the partes. 20. INDULGENCE No relaxation or indulgence which the Lessor may extend tothe Lessee shal in any way Prejudiee the Lessor’ rights hereunder and, in particular, no acceptance by the Lessor ofthe rentals or any otver sums after due sate (whether on ane or more occasions) shall preclde or stop it rom exercising any rights enjoyed by thereunder by reason of any subsequent payment ot being mad on due date, 21. SPECIAL CONDITIONS. 21 The Lessor shall replace, maintain, repair and substitute the tems listed in annexure “A” attached to thi lease as Soon a s possible andin any event prior to the Lessee taking occupation ofthe premises. 212 _itisafurtherconcition ofthis agreement thatthe Lessee has been transfered to ‘Namibia by appointing and in a consulting capacity. & may transpire thatthe Lessee isto be transferred fom Namibia prior te the date of termination ofthis lease, in hich case the Lessee shall give the Lessor three months written notice of this termination ofthis lease. n no other circumstances wil the Lessee be entitled to lve notice of termination prior tothe end of February 2008. PLACE: sna are: coat“ ERBERT STRAUCH ‘VERONICA STRAUCH wanes PROPERTY INVESTMENTS CC 2.5 SURETYSHIP AGREEMENT ‘The essential of the transaction, Le, the undertaking to be lable for due performance bythe debtor ofthe principal debt ‘The need [if any for excusion ofthe principal debtor ‘Te avaliabilty to co-surety ofthe benefit of dhvsion where apphicable) ‘The eect if any of variation of the principal debt, Indulgence given by the creditor to the principal debtor, ete Enforcement of suretship: in particular, the need (if any) for prior notice to the surety and proof ofthe amount ofthe principal debtors abilty clusion of rearce on anterior statements and misinterpretations and subsequent informal varationstermination ofthe contract Service of notices and court process, consent to jurisdiction of the magistrate’s ‘court, and recovery of attorney and clent costs in the event of proceedings being instituted Laity forthe cos of preparing the agreement including VAT]so SURENSHIP | the undersigned, WILLEM SCIOLTZ, do hereby bind myself to FOODS NAMIBIA (PTY) LTD and Its successors and assigns (heen after referred to as “he Creditor") jointly and severally a5 surety for and covprincipal debtoc in soliduen with RESTAURANT POPPIES CC (hereinafter referred as “the Debtors" fr the due and punctual flilment an performance by the Debtor ‘of all obligations which the Debter may naw have or have incurred and from time to time hereinafter have or incur to the Creditor from whatsoever eause arising including, without erogating from the generality ofthe aforegoing, obligations tothe Creditor ae cessionsry or the holder of lastuments of debt and whether such indebtedness be incured by the Debtor selely or jointly orin partnersha with anyother partes, subject tothe following arovisions 1. gFiNITiONs: In this suretyship, unless inconsistent with the contest 11 “Soretes ‘means WILLEM SCHOLTZ” 42 "Debtors" means RESTAURANT POPPIES Cc, Reg No C¢/2000/0578 413 "Crediters’ means FOODS NAMIBIA (PTY) LTD Lords importing the masculine gender shall include the feminine and neuter senders and vice versa and words importing the plural shal include the singular and 2. RENUNCIATION OF BENEFITS ‘he Sureties hereby renounce the benefits of excussion and division and of the exceptions de duobus ve pluribus ris debend and non numerataepecuniae insofar as each may be applicable othe ekeumstances, 2. NON-WaIvER.st 13.1 The Crecitor shall beat iberty, without affecting ts rights hereunder, to release any securities of part thereof and to give time to or compound or make any other ‘arrangements wits the Debtor. Any faliure by the Creditor to exercise any ofits Fights against the Debtor or any other surety shall not operate as 2 waiver or abandonment bythe Creltor of any ofits rights hereunder. 3.2 The Credtor may, at its absolste dseretion, give time to release, discharge or compound or mate any other arrangements with any one or more ofthe Suretes any other guarantor ofthe debts ofthe Debtors ta the Creditor without In any way prejudeing ts rlghts in terms ofthis suretyship against the Sureties or remaining Sureties. The Crestor shall further be entitled, in is absolute discretion, to substitute any other surety fr any of one the Surties without prejuicng is rights hereunder against the remaining Suet. 4 CANCELLATION OF SURETYSHIP Notwithstanding the fact that from time to time ne amount may be secured in terms hereof, this suretytip shall nevertheless remain of full force and effect unt tis canceled or withdrawn in terms hereof. The Sursties shall not be entitled to withdraw lorcancel this sretyship unless and until all indebtedness, commitments and ablations of the Debtor to the Creditor shall have been fully lscharged and then only on the ‘eopiy ofthe 14 (FOURTEEN) days notice in writing to the Creditor. 5. CERTIFICATE OF BALANCE ‘The Sureties agree that a certificate signed by the Ceedtor or any director of the ‘Creditor showing the amount ofthe Suretes’ Indebtedness to the Creditor in terms of ‘this suretyship shall be sufficient and satisfactory proof of the amount of indebtedness ‘ofthe Sureties forall purposes including insolvency, quidation, and egal proceedings and obtaining udgeerent or provisional sentence under this suretyshi, 6, JURISDICTION. 6.1 Any proceedings at law which the Creeltor may desire to institute against the Sureties in terms hereof may at the option the Creditor be instituted in the Magistrates Cour for any dstct having jursletion in respect of the Sueties by virtue of Seetion 286 1) of Act 32 of 1944, tothe jurisciction of which Court the Suretes hereby consent it3 terms of Section 45 ofthe aforesaid Act or the relevant Section of any amending or substituted enactment. {62 The proper law of tis surtyship shal be the law of the Republic of Namibia, The Suretes hereby agree that any action which may be instituted aginst them, or ether of them, bythe Credltors pursuant hereto may be brousht within any South _Altican court of competent jurisdiction, costs ‘The Suretes shal pay al costs and charges incurred by the Creditor Including ettorney and cent (or owa client charges and collection commission incurted bythe Creditor in recovering any amount due in terms of this suretyship and in proving its claim in the event of death or insolvency of the Sureties or any of them and taking steps to protect Insinterest in terms hereof bomiciuium 8.1 For the purpose for this suretyship and of any proceeding which may be instituted in terms hereof and of the service of any notice, the Sureties hereby choase ‘domiciium canal et executanl at 758 Seewierstraet, Narrville, Wahis Bay 8.2 Any notice given in terms hereof shall either be sent by prepa post, n which event It shall be deemed tohave been received on the fith day ater posting, or delivered by hand, In which event it shall be deemed to have been recelved when so delivered, GENERAL 9.1 This suretyship i ven in adition to and not in substitution for anyother guarantee ‘oF suretyship now hed by the Creditor or hereafter to be given to the Creditrs by the Suretes, any of heen or any other arty. 9.2 There are no conditions precedent to the coming into full force and effect of this ‘deed, nether are there any conditions suspensive or resolutve attaching hereto ‘Motwithstanding the form ofthis suretyship and notwithstanding the fact that one3 ‘or some of the other guarantors have not or do not sgn this suretyship, each ofthe Suretes who have signed this suretyship is bound hareby. ‘2.3 The terms and conditions set out herein constitute the entire agreement between the Sureties and th Creditors and no variation of whatsoever nature ofthe terms hereot shall be binding on them uniess reduced to writing and signed by them, Signed &t WINDHOEK on Jly 6 2005, wiruess atten SCHOLTE wrmessst 310mm ‘The essntatia ofa oan, ie. the money tobe lent and rep ‘The intrest tobe charge the rate and how its caleulated ‘The mode of repayment, how, when, where, and to whom Early repayment the provisions requiredin terms ofthe Usury At, 1968 [Authority to recover aditionsl charges, egg insurance premiums (as quired by the Usury Ac, 1968) Acceleration of payments on default Proot of talance oustanding forthe purpose of enforcing contract {clusion of rellance on anterior statements and misinterpretatons and subsequent Informa variationstermination of the contract Service of notices and court process, consent to lursdction of the magistrate's court, and recovery of attorney and client costs Inthe event of proceedings being inatitted Lility fo the cos:of preparing the agreement (ineluing VAT)PENSION FUND-GUARANTEED HOUSING LOAN AGREEMENT By and between [NEDPERM BANK UMITED (No. $2/00008/06) ‘Represented herein by its PERM division ("he Perm") and FEDERKLE GROUP PENSION FUND ("the Guarantor) and FEDERALE VOLKSAELEGINGS BPX ("The Company") 4 DEFINTIONS inthis agreement unless inconsistent with or otherwise Indlcated bythe cntext 113 “caeulation date” means the 15° ay ofthe month; 112 “designated loan’ means a mortgage loan of 9 miro-oan granted to an employee bythe Perm on the request of the Company, the repayment of which loans ‘guaranteed in whole or part to the Pert bythe Guarantor in termshereof; 113 “mortgage loan” means 2 loan which the Perm grants toa patlipant in terms of this agreement agains the security of first mortgage ofthe partipants property; 114 mierolaan* meéns 2 loan of R30000.00 (Ten Thousand Rand) or less wich the Perm grants to asartcipant fr housing purposes in tems of this agreement which is secured only bya suretyship fom the Guarantor; 115 “employee” means ary person in the employ of the Company who is a member of ‘the Federale Group pension Fund;86 1.0”*artcipant” means any person Inthe employ ofthe Company has submited a loan pplication intermsof 21; 17 the Company’ means Federale Volksbelegeing Utd and includes any of ‘ts subsielries; 1L8°the Perms lending limit? means in relation to a morteage loan the amount which the Perm is prepare to lend to any participat In terms hereof without collateral security, baing 80% [Eighty Percent) ofthe Perms valustion of partilpant property; 1.9 The Perms valuation” means the volustion made by the Perm of any property as at the date of grantng the loan secured by that property or any subsequent revaluation ofthe property in terms 63; 4110. “propery” means the immovable property which is or will be bonded by a Participant to the Perm to secure a mortgage loan; LAT “Designated bond” means a frst mortgage bond in favour of the Perm over |immovable property owned by an employee or which the Company designated as such in zerms of 9 112 Reference to the singular shall include the plural and vice vers and reference to ‘one gender shall be Seemed to include the other genders; 143 Any expression cognate with any defined expression above shall bear the corresponding meanings and 414 the heading of Jauses in this agreement and for reference purpose only and shall not taken into account in interpreting the content hereof. [APPLICATIONS FOR LOAKS AND DESIGNATED HUNDS 2.1 From the date ofthis agreement, whenever the Company wishes the Perm to grant 2 designated loan toa participant to be secured under this agreemert, the Company will submit the aporopriate application duly completed to the Perm, on the appropriate standaré application form used by the Perm together with a letter of Introduction from tie Company substantially in the form of the draft annexed rmarked"8"”7 2.2 The Perm shall rant or decline any application In terms of 2.4 In terms of this agreement in accordance with ts then current customary and normal procedure but fon the bass that: 2.2.1 New designates loans will only be granted under the scheme when the erm has funds available to allocate for this purpose, and 2.22. Designated loans secured under this agreement shall bear Interest at the Perms general lending rate from time to time for mortgage loans or micro loans, 25 the case maybe, ofthe nature, terms and amount concerned SURETYSHIP AND CONDITIONS 13.1 The Guarantor heey binds ist as surety for and co-principal debtor in soidum with each partiipant forthe due repayment by him of the ameunt owing by the Participant tothe Perm in terms of 3 designated loan which amount the Guarantor has consented in witng shall be covered by the suretyship given in terms hereo. 3.2 When submitting an application in terms of 2.1 the Guarantor shall eoesent in writing to be bound to the Perm In terms hereof for the de and punctual repayment by thepartclpant named inthe application of ~ 3.2. Inthe cae or a mortgage loa, such potion ofthe loan tobe granted tothe partcpan’ as exceeds the Perms lending iit 3.22. Inthe cas of microloan, the full amount of such loan. 12.3 Such consent sha be in the form of Annexure “A” hereto. Until the Guarantor Is released from ably in respect of such participant in terms hereof, the Guarantor shall continue to remain lable forthe fll amount of thelist so accepted. 3.4The Guarantor hereby renounces the benefits of excussion and division with the ‘meaning and effetive of which it declares itself to be fully acquainted. 35 The Perm shall be entitled at any time in ts sole discretion to grant time and/or other indulgences to any participant, to defer the date of repayment or vary the terms of any desgnated loan In such a manner as it may deem fit, ané any suchsa fection by the Perm shall in no way alec, limit o prejudice the Guarantors Habilty In terms ofthis agreement. Where any such Indulgence or variation f ven or made by the Perm, the Perm wil endeavour to notify the Guarantor thereof but the ‘Guarantor lobilty sal be unaffected if such notlcation snot given, 36 he Guarantor agrees and dedares that all admissions and acknowledgements of Indebtedness by any ofthe participants shall be binding on it. The Per shall be at bert, without affecting its rights hereunder, to give tine to or compound or make ‘ny other arrangements with any one of Such participants 5370 the event of the insolvency of any such participants, or in any event of the {assignment or comyrise by any ofthe participants the Petm shall not be obliged to file any claim agains: any such insolvent estate and na dividend or payments which the Porm may recave from or on behalf of any of such partiipants shall prejudice ‘the Perms rights to recover from the Guarantor tothe ful extent of ts obligations to the Perm in ters hereof, any sum which after receipt of such elugends or payments, may remiin owing to the Perm. 38 The Guarantor hereby agrees that inthe event ofthe amount outstanding in terms ‘of any designated loan becoming due and payable, whether by reason of any default ‘on the part ofthe participant, or by reason of termination for whatever reason of the participant's employment bythe Company, twill, on demand, pay tothe Perms the amount outstanding, 3.9 Should the Guaranter so request, the Perm will against payment to the Guarantor 25 envisaged in 3.8 zbove, cade its right of action against the defaulting participant ‘othe Guarantor so as to enable the Guarantor to prosecute legal proceedings in ks ‘own name against the participant ofthe amount paid by the Guarantor te the Perm interms of 3.8 above, The Guarantor shal be released from lability in terms of any suretyship furnished by it ‘on behalf ofa paticiart as and when the relevant partiipan’s total indebtedness to the Perm = 4.1 nthe case ofa mortgage loa, is equal oor less than the Perms lending limi inthe respect of such partikipant’s property; oF8 42 Inthe case of a mloiean, has been psd in ful 5. DESIGNATED LOANS 5.1 A mortgage loan sal be secured by a fist mortgage of the patpant’s property Which shall be upon the same terms and coneitions, mutatis mutandis, as other ‘mortgage bonds gassed In favour ofthe Perm from time to time, provided however that if collateral curity is furnished bythe Guarantor in espectof any designated bonalin terms of 3: hereof, such bond shal incude te following provision: “if at any tie *#2t¢P==¢¢4=+ (the Company") notifies the Perm that the Federale Group Fund requires Perm to release it rom guarantees furnished by it ta the Perm in respect of the mortgagor's indebtedness in terms hereot, the eam may, naithstanding. anything to the contrary herein continued require the mortgagor immediately to make arrangements satisfactory tothe Perm for the release of such guarantee andfor securty and falling such arrangements ‘being made within 90 (NINETY } days of such notice then the full amount owing by the mortgigor to the Perm shall become due and elsimable forthwith and without further demand and all relevant provisions of this bond upon the ful amount secured hereunder becoming due and clsimable shal be operative.” 5.2A micra-loan shal be upon the some terms and conditions mutatis mutandis, 3s those contained in the specimen loan agreement annexed hereto marked". 6, RELEASE OF GUARANTEES AND SECURITY 6643 portant ceases to be an employee of the Company whilst the Guarantor Is still bound on his behalf the Guarantor may request the erm to release it from any _arantee furnished by it la respect ofthe indebtedness of such participant. {6.2 Such celease will only be granted ifthe participant reduces the balance owing in terms of his desizated loan to below the Perms lending limit (i the case of 2 ‘micro-oan) in reipect of his property or makes arrangements satisfactory to the Perm for the provision ofthe alternative collateral security, fling which the Perm shal be entitled ta enforce the rights conferred in 5.1163 1 the opinion ofthe Guarantor, the value of any suretship furrished in terms hereo! exceeds the amount of the suretyship which the Guarantor is obliged In terms of this agreement to furnish, it may request ts release from such excess suarantee amount provided that- 53.1. the Perm sal be entitled, atthe expense ofthe Guarantor, to conduct fresh Valuations of any of the properties hypothecated under the relevant esignated bonds and the amount of the suretyship required shall be calculated wit reference to such fresh valuations; 63.2. the Guaranter may not make such requests more than once per calendar year and the first such request shall not be made before the third anniversary otis agreement. {64 Save es set out In and the preceding provisions of this clause, the guarantor shall have no right to be released from any suretyship provided in terms of this agreement. PAYMENTS: 7.40n or belore the calclation date, the Company shal pay ta the Perr the aggregate of allinstalments due in terms of all Sesignated loan, anc shall deliver to the perm simultaneously with such payment, a lst ofthe employees in respect of whom such payment is made, andthe amount ald in respect ofeach employee. Such ist may be provided inthe form of a typed ‘OF printed fist, oF In the form ofa magnetic tape, orn such ether form as the Perm may in writing agree. 7.21 recorded that the obligations of a Company In tents of 7.1, are administrative ‘only and do not make any principal bllty on the part of the Company to make payment. READVANCES, ‘The Perm shall not readvance any oan or portion ofa desgnated loan which has been ‘aid bya participant tothe Perm without the Guarantors weitten consent thereto first having been obtained. Notwithstanding the aforegoing, the Petm may in its discretion, withoue such consent, make any payment authorised under the designated bond for the protection, preservation or realisation of the martgage property or the recovery of any amount owing to the Perm, including insurance premiums, rates and taxes, the Installation of sewerage, recessary repairs and legal costs.o 19, INCLUSION OF OTHER BONDS. 9.11f any employee has hypothecated property tothe Petr under the existing bond and the Company wishes that employee to become a participant and that bond to ‘become a designated bond, the Company may nay the Perm to that effec stating 4 future which shall be a cleuation date, on which date such employee shall ‘become a partcpant and such bond a designated bond, subject te compliance with the procedure set out in 22. 19.2 anyemplayee has hypathecated property to anyone other than the Perm under an ‘fisting first mortage bond and the Company wishes that employee to come 3 participant and that bond to become a designated end It may request the Perm to tke over the mortgage bond. The Perm shall consider the request on the basis sot fut in 2.2 hereof and may, at its dscretion, subject to agreement being reached between the Perm and the Guarantor regarding laity forthe cost of such tke- ‘over and subject always to the Deeds Registries Act, 47 of 2937, elther take cession ‘of such mortgage bond or alteroatively elect to treat such request as an application In terms of 2.1 and otherwise on the terms of ths agreement. the Perm elects to take cession of the mortgage bond it shall become a designated bond upon reglstration ofthe cession 10, NOTIFICATION OF TERMINATION 30.1 Ether party to this agreement may at any time terminate this agreement on ving the other 3 [THREE] month's written nosce of tsintention to do so. 30.2 Upon termination of this agreement, every loan shall exase tobe a designated and every employee shall ease tobe partiipant. 30.3 Mo termination of this agreement shall in any way affect any suretyship oF cllateral securty provided or procured by the Guarantor, nor shall it any way affect any liablityf the Guarantor, contingent or atu, in terms ofthis agreement hich arose or relates to any time prorto suck termination. 41, DOMMICILIUM CITANDLET EXECUTANDL8 14.1 Doric citarei et executandl is hereby chosen by the partes atthe following addresses ALLA The Perm: 11.12 The Company 411.23 The Guarantor 11.2 Any notice gher in terms ofthis agreement shal he in writing and shall he sent by prepaid registered post in which event it shall be deerme to have been recelved 7 (SEVEN) days ater posting 12, MISCELLANEOUS 32.1 No addtion to and no amendment, varaton or consensual cancelation of hs agreement and no waver of any party of any of rights hereunder shall be of any force o effect unless reauced to writing and signed by all parties 12.2 Wo relaxation or indulgence on the part of either partyin exercising any right conferred upon such party in terms of this agreement shall constitute a waiver of novation of any suc ight, nor shall any single or partial exerlse of any such right preclude any other a fture exercise thereof or the exercise of any other rights in terms ofthis agreement, 323 ach party shall ear its own costs ofan Ineldent tothe negotiations and drafting ‘ofthis agreement. Samp duty on ths agresment shall be Borne and paid by the Guarantora 3.7 EMPLOYMENT ‘The essentiois ol the contract, Le. what personal services are to be rendered {ostonfeapacty, place, ete} and what salaryfwage i to be paid (including annual bon) The commencement date and duration ofthe employment (including any renewal) Hours of work andovertime Confidentiality cause ‘The manner of paynert of salary and overtime remuneration Important features of the employee's obligation to serve in good faith, obey Instructions and refrain from misconduct ‘Authority of the employee to conclude juritic acts on behalf f the employer Return of employer's expenses Vacation and sick eave Medica id penscn, and insurance benefits Use of company cx Restraint of trade6 “erminaton ofthe contract by notice of summary elsmissa Disciptine and grievance procedures Exclusion of reliance by either party on anterior statements and misinterpretatons and subsequent informal variation/termination ofthe contract Service of notices and court process, consent to jurisdiction of the magistrate’s court, and recovery of attorney and clent cost inthe event of proceedings being instituted Laity forthe castf preparing the agreement (including VAT) Fringe benefits, egguse of vehicles6 LETTER OF APPOINTMENT Between INTERCONTINENTAL FREIGHT FORWARDERS CC (Te Firm") and (The Employee") ‘This letters to contiem your appointment asa diver from 3 June 1997 ‘The fallowing conditions shal apply and be agreed upon: 4. capaci ‘The frm employs the Employee, inthe capacity and subject tothe terms and conditions ‘ofthis agreement together with annexure "A" hereto. 2. DUTIES AND OBLIGA7ONS OF EMPOLYEE ‘The employee shal: 2.1 Devote himself exclusively tothe business ofthe Fm during normal business hours 22 Not undertake any work for nor act a5 agent or representative of any other Firm, business or undertaking: 2.3 Not undertake any business actiities whieh would In any way impinge on his ‘obligations in terms of 2.2 without the writen consent of the Fim fist had and ‘obtained 2.4 Carryout and perfor such instructions and duties, i addin to normal duties as employed for, as may be given to him from time to time by the Firm;25 Use his best endeaveurs to protect and promote the business and interests ofthe Firm ang to preserve and expands reputation and gooewil; 2.6 Ensure that he remains abreast of all developments in thase areas of busines which ‘are undertaken inthe narmal course by the Fie; 2.7 The Employee shal confarm to codes, procedures, cules and regulation which may ‘be promulgate by the Firm as may be necessary fram time to time, to ensure the effective operation ard continuance ofthe Firm, REMUNERATION AN BENEFITS 3.1 The Firm shall pay to the Employee, in respect ofthe services to be performed by him in terms hereof: se Annexure “A for deta 3:2 Such remuneration sal be reviewed bythe Fim from time to time atthe discretion ofthe Firm. 3.3 The Firm at its sole diaetion shal consider an annul bonus UAV 4.1 The employee shall be entitled to 18 working days ordinary leave per annum, peo ‘ata for the period worked, be taken within the calendar year relative to the effective date and at such times as may be mtualy convenient to the employee at the Fim, 442 Ordinary leave shall be eamed in calendar year eyces and must be taken within 1 veer of its foling, due faling which such leave shall be forfated without ‘compensation. Leave s thus non-cumulative 443 The employee shall be entitled to 10 (FEN) working days sick leave per annum Drove thatthe Frm may, in Its absolute dlseration, extend such period. In any case in which the emsloyee is absent from employment for more than £2 hours, a doctor's certificate shal be provided,44 Pregnant female employees shall be ented to 4 (FOUR) weeks unpaid maternity leave prior to gvng birth to the cild and 8 EIGHT) weeks unpaid leave after birth, In bath cass to be supported bya doctors cetifeate 5, CONFIDENTIALITY 5.1 The employee acknowledges that he wll during the currency of his appointment vith the Fem acquice from the Fm certzn know-how, trade secrets, information and knowledge of clients, markets and marketing techniques, ineluding but without etratng fram the generality of the aforegoing 54.1 Thenamesof the Firm's associates; 5.12 The contractual arrangements and deta of financial relationships between the Firm and its cients 5.1.3 Knowledge of the form and content of the Fem’ standard terms and condition ofthe contact, as walla its ubsldare, assigns and successors ‘nile; 5.4 Detallsofthe Firm's charges for services in force frm te to time; 5.1.5. Numerous other matters relating to the business of the Firm in respect of Which information is not really available in the ordinary course of the business to any competitor ofthe Fim; 5.6 The products ofthe Fitm Its research data base, knowledge ofits services and aceessto the content of is manuals and client support materials; 5.1.7 The employee hereby undertakes that he shall not during the currency of this agreement of fora period of 36 months thereafter use, whether for his benefit oF the benefit of any other person, dsclase or in any way make linowmn any of the matters eefervd to nS. other than in is capacty 35 an ‘employeeat the Frm and duly authorise. 6, RESTRAINTS6 6.1 The employee hereby undertakes tha fr the duration of his employment with the Frm and for a period of 36 (THIRTY SUK) months calculated from the date of termination of his eployment withthe Firm foc whatsoever reason he shall nat, in ‘any manner whatsoever, ether personally or through or on behalf of any thied party: 6.11. Persuade, induce, encourage or procure any employee employed by the Fim to become cirectiy or indirectly emploved by or intrested in any business Airectly or inrectiy in competition with the busines erred on bythe Firm orto termincte his employment with the Firm: 6.4.2 Be directly or indirect interested in any capacty whatzaever in any fim, oF business which competes diectly with the Firm 6.4.3 Approach an lent ofthe Frm, whether, as principle, agent, employee, sub Contractor, rominee oF representative to offer to undertake any business activity curently or at any time during his employment undertaken by the Firm, 6.2 The employee hereky acknowledges that the aforeyoing restraints ate furnished in ‘consideration for hls employment and for the benefits to be received by him in terms of this agreement and further acknowledges the restraints to be reasonable and necessary both as to duation and extent in order to protect the business and 0odwil ofthe Frm, 663 Each restraint shall be separate and divisible and if ny such restraint is or becomes unenforceable fr any reason whatsoever then that restrain shall be severable and shall not affect the validity of any other restraint contained in this agreement, EMPLOYEE'S AUTHORITY 7..The employee shall not bind the Firm in respect to any contract or lability \hatsoever without the written consent af the Firm, seve where such authority has previously and specfcally been delegated tothe emloyee. 7.2 The employee hereby indermifies the Firm against any loss that & may sustaln as 2 result ofthe breach ofthe aforgoing restrictions.° 18. BREACH AND TERMINATION 8.1 The Frm shall be enti to terminate the appointment ofthe employee in terms of this agreement forthwith if 8.11 He is gully of conduct which at commen law would justly his summery ismissal 184.2 He breaches any term of this agreement and fall to remedy such bresch within 4 (FOUR) days ofthe receipt af notice requitng him to remedy such bese ‘8.2 This agreement stall otherwise be terminated by ether party on 1 (ONE calendar ‘month's written notice tothe ther, except during probationary perio (se 8.3) 83 Al new employees are employed under 23 (THREE) months probationary period. ‘Thereafter, the Firm in its soe dsretio shall be entitled to exten its probationary period fr further seriods of 3 (THREE) months uni the frm shall have advised that the employee Is appointed to its permanent staf. During this period, notice from ‘ether party of 24 (TWENTY FOUR} hous is applicable. £84. any casein which an employee is unable to eary out his duties fora period af 120, ays in aggregate in any consecatve 9 (NINE) month period, the employee wil be Irrdbutabiy presumed incapable of performing his duties and this contract my be summarily terminated by the Fem, 9. GENERAL 9.1No amendment oor addition to his agreement or any consensual cancelation ‘thereof or any part thereof shall be binding on the parties unless reduced to a witen document ang signed by them, 9.2 No celaxation or Indulgence which the Firm may show to the employee shall in any Prejudice or be deemed to be waiver of its rights hereunder nor shall such indulgence or relatation preclude or stop the Frm from exercising Is rights in terms ‘ofthis agreement in respect of any other further breach,7 9.3 This agreement corstiutes the whole agreement between the partes and no warranties or represantations whether express or implied have been glen or made bythe Firm to the enployee. 934 Any terms of this agreement wich conflict with the provisions af any agreement oF any applicable law stall be treated pro non scrpto and shall be severe from the balance ofthe agreement, wich shall continue tobe of fl force and effect, 9.5 This Contract supersedes any previous letter of appointment or employment contracts verbal or writen, agreed upon or signed respectively by the Employee withthe Firm BGAnnexure “A’ is attached to this document, detailed salarywages and job Aeserintion ofthe Employee and forms a portion of this agreement 9-7 Al books, records, correspondence and materials of whatever nature and in any ‘media whatever shal always remain the property of the Frm and shall forthwith be returned tothe Firmby the Employee upon request. Signed by Parties at WINDHOEK on June 2005 WrNess wires,{3.8 PARTNERSHIP COMTRACT “The essentita of the contrat. the joint enterprise tobe carried on (name, place, purpose and duration), the contributions of each party (what isto be given to the partnership and its value) and the partis’ respective shares of profits and losses “The drawing of profits: opening of current and capital acounts in the partnership books, entitlement to draw a monthly amount, distribution ofthe balance Various matters retaining to the financial administration: the hooks of account to be kept and finarcil statements to bo prepared, inspection of books by partners, the financial year ofthe partnership, andthe opening and operation ofa partnership bank account [Management of the business: who Isto have a say and how decisions are to be taken ‘Authority of partners to perform juste acts on behalf ofthe partnership: seling and buying, lending money, encumbering property, comaromisng debts tc. Matters arising oxt ofthe fiduciary relationship between the partners: devoting fll time to partnershp, showing good faith, esclosing relevant Information, account for Income received, refraining from exposing partnership to risks such as attachment and malpractice sits ete Grounds on whic the contrct wil terminate “aking over iquldstion ofthe partnership assets on terminationAGREEMENT. Entered into between ‘and “the partner" is GREED: 4 INTERPRETATION AND PRELIMINARY ‘The headings to the clauses are forthe purpose of convenience and reference any and shall ‘ot be used inthe interpretation of tis agreement nor any clause. In this agreement, unless the context deat otherwise incicates, words importing any one gender shall incude the ather ‘wo genders and the singular includes the plural and vice versa 2. NAME AND BUSINESS ‘The partnership shall rade under the name of 40" and shall eaxey onthe business of @ 3. DURATION ‘The partnership shall commence on "*****" and shall cntinue for an indef terminated as provided herein te period unt 4. conTaouTIONS ‘The partaers shall contribute tothe partnership their services, for which they shall be pad salaries in such amounts and in such manner as may be agreed upon from time tote.5. SHARING OF PROFIT AND LOSS 5.1 The partners shll share al profits of the partnership in equal shares and shall bear is losses In equa shares ‘5.2 Prfit shall be ditributedin uch manner and at such times asthe partners may agree upon from tne tote 6, FINANCIAL ADMINISTRATON ‘6. The portnership shall maintain » current bank account under its name with *7*" atthe bank's **** Branch, 6.2 Allincome of the partnership shall be deposited forthwith tothe crest of the above bank 6.3 All payments made an achalf ofthe partnership, except those af a petty cash nature, shall bbe made by cheques drawn onthe aforesaid bank account 6.4 The partners shall ensure that proper books of account are kept to record every transaction ofthe partershio, 7. MANAGEMENT “7.2.€ach of the partners shal have an equal sayin the conduct ofthe partnership and ll matters afecting the business policy of the partnership or ang In connection with the ‘management ofits busines or its finances. 7.2 Alldecisonsin the above regard shal be taken by majority vote and each partner shall have 8. DUTIES OF PARTNERS ach of the partners shall tal times ~ 18.1 daplay the utmost goed faith tveerds the other partners in all mat partnership o the business ating tothe 8.2 avoid a conflict between the interests of the partnership and his own Interasts, which shall tall times be sebserient to those of the partnership; 83 make afl dsclosure of information relating tothe afors ofthe partnership business and/or of the business to his partners;84 35, as ” tse his best endeavours to ensure the conduct of the partnership business to the greatest benefit ofthe partnership; refrain from any act and avoid any proceedings which may lead to the attachment of his Interest the partnership; forthwith deposit in the bank account any amounts, negotiable instruments or other documents of payment received by him fr the partnership. 9. LIMITATIONS OF PARTNERS No partner shall without the per consent ofthe other partners — oa 92 93 oa be alec or indirectly connected with or interested in any business other than that of ‘the partnership: ‘door knowingly permit anything tobe done whereby the property ofthe partnership or any portion thereof may 2 attached or taken in execution; cede or in any way dispose of or encumber his rights or any portion thereof, in the partnershi tse the property of the partnership or bind or render the partnership lable in any ‘manner, except inthe ordinary course ofthe partnership business 10. TERMINATION 104 102 ‘The partnership shall terminate automatically upon — 20.1.1 the death or egal ncapacty ofa partner; or 10.1.2 the surrender or saquestration of a partners estate ach partner shall be entitled to terminate the partnership by giving to the other partners ~ 30.2.1 2 (ewo) calendar months written notice of his intention ta terminate; 10.2.2 witten notice of te termination ofthe partnership in the event of - 1022.1 abreach ofa materia term ofthis agreement by ane ofthe other pariers; 1022.2 misconduct of one of the other partners which offends the highest degree of good faith between the partners;303 8 2022.2 amy other matter arising which constitutes = just cause for terminating the partnership. 10.23 The partners may at any time terminate the partnership by agreement In the event ofthe partnership being terminated at anytime by virtue ofthe desth legal incapacity, notice, misconduct or breach of any of or by any one of the partners (the dispose) the remaining partners sll have the option of suceeding to his share ‘ofthe assets and lables ofthe partnership on the following terms: 10.3.4 The above opton shall commence onthe date of termination ofthe partnership and shal be capable of being exercised within 2 period of 30 (thirty) days after the purchase rice is aread upon or determined, asthe case may be. 103.2 The option shall be exercised by notice In writing to the disooser or his legal representative within the aforesaid period of 30 thirty day. 10.33 The purchase rice ofthe dispose’ share nthe partnership, shal be the fair net value thereo! which shall be determined by agreement, of, failing such agreement within 14 (fourteen) days of the date of termination of the partners, by an independent auditor appointed mutatis mutandts in accordance with the provisions hereof. 10.34 The remaining partners shall be deemed to have taken delivery ofthe dispaser's share ofthe partnership assets and to have assumed liabltyfor his share of the partnership Uabities with effect from the date of termination of the partnership. 10.35 if the sale requires the consent of the Master of the Mig Coutt or any other ficial or autor, the partners shall use their best endeavours ta procure all such consents 1036 The purchase price of the dsposer’s interest shall be palé in equal monthly instalments, the frst of wien shat be paid on the fist ay of the Calendar morth following that in which the purchase price Is agreed upon oF Getermined, a6 the case may be. Subsequent instalments shall be paid on the fist day ofeach and every succeeding calendar month. 1033.7 ‘The remaining partners sal be entitled to antipate payment of the purchase price in whole - in part. 11, UaUIDATION16 In the event of termination of the partnership and in the absence, for whatsoever reason, of any succession in terms of clause 10 ar any agreement to the contrary, the fers of the partnership shal be liquidated according tothe following provisions ‘114.1 The liquidator cf the partnership shall be an auditor appointed by agreement between the partners o, fling uch agreement, appointed by the President for ‘the time being of the Institute of Chartered Accountant of Naribia 31.12 The liquidator shal collect all debts due to, and realize all the assets of the Partnership in whatever manner he deems ft, to the extent that he in his absolute discretion deems necessary to 3112.1 pay the creitors of the partnership 1112.2 poy the espenses of such realization andthe liquidation 31.12.3 —settle any aims between the partners arising. from the partnerships and 4112.4 fect, In equal shares, a dlstibution of the remaining assets or the proceeds therefrom amanget the partner. 41.13 Inthe event ofthe proceeds ofthe realization of the partnership assets proving insufficient to mest the Habities ofthe partnership, the lluidator shall levy a contribution upon the partners to contribute to that deft in equi shares 11.1. The partners undertake to grant the liquidator any authority or power of ‘attomey he may require in order to give effect to the provisions ofthis clause. 12. oispuTes pa m2 In the event of any dispute arising out of oF in connection with this agreement ois implementation, such dspute shall be referred to an independent auditor (“the auditor’) appointed by agreement between the partners or, fling such agreement appointed hy the President for the time being ofthe Institute of Chartered Accouiais of Nomibia, ‘The auditor, who shall at as an expert and not as an arbitrator, shall determine the ispute In such manner, and by adopting such principles and procedures as he in is absolute dlseretion deem ‘The aucitor shall determine the abty for his charges, which shall be pad accordingly.324 The auditor's determination shale final an binding on all partes affected thereby 23. Nonces 13.1 _The parties choose as thelr domicilacltana et executandl for all purpases under this agreement, the fllowing addesses— maser mage 132 Any notice peemitted or required to be given in terms of this agreement shall be vali and elective onl ifin writing 383 Any notice toa party sontained in a correctly addressed envelope and — 13..1 sent by prepa eystered mal tit as ts domi chosen above; or 13.3.2 delivered by hand to a responsible person at its chosen domicitum shall be deemed to have been received, in the case of posting, on the 5” business day ater posting and, in the case of delivery on the dat of delivery 14, GENERAL 41 Thisagreement constitutes the whole agreement between the parties 142. No consensual cancelation, vsration or amendment of any ofthe terms and cantons hereof shal be binding uness reduced to writing and signed by the partners 143 No delayin enforcing any rights hereunder shal be deemed tobe waiver of such rights by the party entitled to enfore same, nor shall any act or omission by it preclude oF lestop It from thereater exercising or enforcing any right which fe may have in terme hereof, strictly n accordance wit ths agreement PLACE: ‘Wane:wanes 39 cession OUTAND-OUTCESSION The essentials ofthe agreement, le. a description of the rights) in question, the act of transfer by the cedent, acceptance by the cessionary, and the causa (unverying reason) fr the transer Delivery of documents evidencing the rights ceded, Notice tothe debtor. Warranty by the cedent egarding his title to cede and the vlc of the rights ceded, ‘Assumption of lability by the cedent (where applicable) for costs incurred by ‘essionary in attempting to enforce the rights ceded and damage surtained by ‘cesslonary a a rest ofthe rights proving unenforceable Undertaking by cent (Inthe case ofa cession of future hook debs) to deliver ‘or make available tothe cessionary partculats of, and documents relating to, any future debts. CCESSION As SECURITY ‘The essentials ofthe agreement, Le. a description ofthe right(s); the pledge or cession as securty by the cedent; acceptance by the cessionary: and the obligation secured by the cession. Duration ofthe cession,9 Delivery of dauments evidencing the rights ceded Notice to the debtor. Warranty by tre cedent regarding his title to eede andthe vay of the rights ceded, Assumption o! liability by the cedent {where applicable for costs incurred by cessinary in attempting to enforce the eights ceded and damage sustained by cessionary as «result of the rights proving unenforceable. Cedent’s undertaking (where sharas are ceded) that no further shares will be Issued before expiry ofthe cession eden’ powers on the cessonarys default,Cession of chim oright of ston MEMORANDUM OF AGREEMENT Entered into between: {oame of eden thereinater called “the cede”) And {oame of esionary) (Pereinater called "the cesionary") [WHEREAS the cedent has a aim against name of debtor) of address for NS..() arising out ‘of money lent and advanced far asthe ease may be) (hereinafter referred toas “the said aim’) [ANID WHEREAS the cedont has sld (or donated or exchanged or asthe case may be) othe cessionary the cedent’ right, tie and interest nando the sed clei [NOW THEREFORE ITIS AGREED a follows: 4. Cession in execution of the atovernentioned contract of al or donation or exchange or ‘asthe case may be] the cedent hereby cede, transfers and makes over tothe cessonary the cedents right ttle and intrest in and to the said claim, 2 Authority the cedent hereby authorizes the cessionary to notify the debtor (name and address of debtor) of this esion 2. Warranty and abiltyfor damage It isuinderstood and agleed ha te bebity of ne cedent does not warrant thevaliity ofthe sal claim and shal not be lable for damages to the cessionary in respect of any fees, costs or charges that may be incurred in prosecuting ‘the said claim or for any damage that maybe sustained by the ceslonary in the event of ‘the said claim proving irrecoverable for any reason whatsoever. 4 Recoptance: The cesslonary hereby accepts the said cession upon and subject ‘tothe terms and conditions ofthis agreement‘SIGNED at (lace) on this de, month yer. witnesses de 2a. - (Signatures of witnesses} (Sionature of cedent) ‘SIGNED at (lace on this ee, month years. witnesses 1 2 {signatures of witnesses) (Sianature of cessionary)2 4. VALUE-ADDED TAK 4. Lalit for and payment of VAT VAT is @ technical and complicated subject and only a brief (ond somewhat ‘implfied) explanation is given here, Students are advised to vis the Value-Added Tax Ae, 2000 for more deta Whois laity for VAT? ‘Anyone who is @ “vendor” for purposes of the Act oF who imports goods inte the republic or supplies imported services A “vendor” is @ person who is, or who is ‘required tobe, registered in terms ofthe Act. This means, broadly, any person who ‘aries on an enterprise and whose annual taxable supplies exceed, or are expected In the next 12 months to exceed NS2000 000 {section 15). A "taxable supply" Is defined so 2s to include a supply which szerorated fr tax purposes. Whats subject to VATand how is tealeulated? \VAT is essentially a tax on transactions? The act § 3(2) (2) deals with VAT on the supply of goods and services, in terms ofthis section, VAT must be levied and pad ‘on the supply of goots an services by any vendor in the course of furtherance of Ne ‘enterprise. "Goods" here means (subject to exceptions} corporate movable things, fixed property, ond any real right in such things or property (5 1). “Enterprise” basicaly embraces any activty regularly or continuously carried on In the Republic (see 52 for Ue fal detirton), VATIs levied onthe “value” of te supply calculated In terms ofs 10. In most cases, this isthe value ofthe consideration forthe supply less So much ofthat olueas represents tax ( 3(1 (3). It will be observed that the ambit of 53(1() Is very wide and affects most agreements drafted by attorneys.a 'A number of supplies, athough subject to VAT, are zerovated (see $9 and Part 2 of Schedule | Inluded inthis stare: ‘A supply of goods where the suplier has entered the goods fr export pursuant tothe Customs and Excise Act and the goods have been exported from Namibia bythe supplier; a supaly of goods where the Commissioneris satisfied that the goods have been exported from Namba by the supplier; a supoly of goods where the goods are not stuated in Namibia atthe time of supalyand are not tobe enteredinto Namibia for home consumption pursuant tothe Customsand Excise Act, bythe suplier ofthe goods; 8 supoly of eoods under a rental agreement, charter party or agreement For charter were the goods are wed exclusively nan export country, 8 supoly of goods inthe course of repairing, renovating, maifying or weating any goods to which sutparagraps Gi oF (v) applies, and the goods supplied (i) srewrought into affixed to, attached to, or otherwise form pat of those other goods (i) being consumable goods, become unusable or worthless a. drect result of being Used in that repair, renovation, mosificaton or treatment process; ‘a supoly of goods or sarvices referred ta in section 3(11) ofthis Act by 2 registered person where the branch or main busines i situated in an export country a supaly of goods or sarvices to an export processing zone enterprise ofa person or an export processing zone management company for use by the enterprise or company in an export processing one; 1 cupaly of international transport services; 2 supa of services deetly in connection with land, ar any improvement theret, situated outside Nambia; a supoly of services directly in respect of © movable property skuated outside Namibia at the time the services are rendered: or ‘©. gods temporsily imparted into Namibia under rebate item 470.03, 47002, £470.03, 480.0¢ or 490.00 of Part 3 of Schedule 4 othe Customs and Excise Act; ‘© asupoly of goods referred toin paragraph () or (c) ofthe definition of "exported from Namibia in section 1 ofthis Act; or ‘9. the repair, maintenance, cleaning or reconditioning of aforign-going aircrat or foreign-going sip: