Agreement for Sale of Property
paDATED 2019 _
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SUPPLEMENTARY AGREEMENT FOR SALE OF THREE GODOWNS
SITUATED ON LAND REFERENCE NUMBER XXX
AGREEMENT FOR SALE
THIS AGREEMENT is made the day of 2019 .
(1) SELLER of Post Office Box Number XXX Nairobi (hereinafter referred to as “the Vendor” which expression shall where the context so admits include her personal representatives and assigns) of the one part; and
(2) PURCHASER a Limited Liability Company incorporated in Kenya aforesaid and having its registered offices at Nairobi and of Post Office Box Number XXX Nairobi, (hereinafter referred to as the “the Purchaser” which expression shall where the context so admits include its successors in title and assigns) of the other part.
By virtue of the Agreement of Sale dated 29th March 2017, the parties hereto agreed interalia that the Vendor shall sell to the Purchaser a sub-divided portion of the Vendor’s property known as Land Reference Number XXX.
The Vendor being registered as the proprietor as Lessee from the Government of the Republic of Kenya of ALL THAT piece of land situate in the City of Nairobi in the Nairobi Area of the said Republic containing by measurement nought two nought nought nought (0.2000) of a hectares or thereabouts that is to say Land Reference Number XXX which said piece of land with the dimensions, abuttals and boundaries thereof is delineated on Land Survey Plan Number XXX attached to the Grant registered in the Land Titles Registry at Nairobi as Number I.R XXX and deposited in the Survey Records Office at Nairobi and being the premises comprised in the said Grant (“hereinafter called “the property) for the term of ninety nine years (99) years from the First day of March, One Thousand Nine Hundred and Seventy Eight subject to such charges and encumbrances as are notified by the Memorandum and to the payment of a revisable annual rent of Kenya Shillings Nineteen Thousand Five Hundred (Kshs. 19,500/=). Agrees to sell and the purchaser agrees to purchase the property upon following terms.
The above said Property is a sub-division of L.R No. XXX
D. The transfer of the property from the Vendor to the Purchaser is in consideration of the payment of the Purchase Price.
E. The Purchaser agrees that the existing gate serving to the original property shall belong to and be used solely by the Vendor, the purchaser and their successors in title and assigns, tenants, lawful visitors and that on the completion date, the Purchaser shall erect at his own costs a separate gate for access to and from the property, agreed to be sold and the present gate shall fall in the other sub-division retained by the Vendor for her sole use.
NOW THIS AGREEMENT WITNESSETH:-
1. DEFINITIONS AND INTERPRETATIONS
1.1. In this Agreement the following words and expressions (save where the context requires otherwise) bear the following meanings:-
“Completion Date” means the date provided for under Clause 4.1 of this Agreement
“Completion Documents” means the documents listed in Clause 4.4;
“Deposit” Means the deposit paid under the Agreement dated 29th March, 2017 being Kshs. 5 Million which said deposit shall be transferred and amalgamated with a further Kshs. 5 Million to make the total deposit paid to Kshs. 10 Million. The said deposit shall be interest free.
“Financier” means a reputable Bank acceptable to the vendor
“Interest Rate” means the interest rate set out in the Banking Amendment Act no. 25 of 2016 or such other law amending or repealing it;
“Purchase Price” means Kenya Shillings One Hundred and Forty Nine Million (Kshs. 149,000,000/=) and payable pursuant to the provisions of clause 3;
“Purchaser’s Advocates” means XXX
“Vendors’ Advocates” means YYY
“Transfer” means the transfer of the title to the property to the Purchaser.
1.2 In this Agreement where the context so admits:
a) The expressions “the Vendors” and “the Purchasers” includes the respective successors, personal representatives and permitted assigns of the Vendors and the Purchasers.
b) References to a clause or a Schedule are (unless the context otherwise requires) to a clause or Schedule respectively of this Agreement and references to a paragraph are (unless the context otherwise requires) to a paragraph of a Schedule to this Agreement.
c) Words importing the singular meaning where the context so admits include the plural meaning and vice versa.
d) Words of the neuter gender include the feminine and masculine genders and words denoting natural persons include corporations and firms and all such words shall be construed interchangeably in that manner.
e) References to a statute or a provision of a statute include any statute or provision of a statute amending consolidating or replacing it for the time being in force.
f) The clause and paragraph headings are for reference purposes only and shall not affect the construction of this Agreement.
In consideration of the payment by the Purchasers of the Purchase Price in the manner set out herein and further, in consideration of the Purchaser agreeing to fulfil the Purchaser’s covenants and undertakings as set out in this Agreement, the Vendors agree to sell, and the Purchasers agree to purchase, the property for the purchase price upon the following terms:-
1. The Vendor is selling the property as the sole legal owner and the sale of the property does not include any moveables;
2. The Purchaser shall be responsible for payment of Land rents and Land Rates commencing from the 26th day of February, 2019.
3. The Purchaser is already in possession of all three go downs with offices situate in the property and is paying rent and all outgoings including electricity and water in respect thereof as agreed between him and the Vendor.
4. The Purchaser being in possession of the three go downs shall continue to be liable for all consumables/services e.g. Utility bills, garbage collection in addition to payment of rates and Land rent and taxes e.t.c.
5. Until the date of registration, the Purchaser shall not impede other users and lawful visitors from free access to the forecourt facing the three go downs and shall not store timber.
6. In the event the purchaser breaches any of the terms of this Agreement then the Vendor shall be entitled to rescind the agreement.
3. PAYMENT OF DEPOSIT AND PURCHASE PRICE AND COMPLETION
3.1 The Vendor’s Advocate already holds Kenya Shillings Five Million (Kshs. 5,000,000/=) as per clause 3 (3.1) of the Agreement dated 29th March, 2019 entered between the parties and is hereby authorised that the said sum be amalgamated with a further sum of Kenya Shillings Five Million (Kshs. 5,000,000.00) to be paid by the Purchaser to the Vendors Advocate on the signing hereof making the deposit paid on the signing of this Agreement as Kenya Shillings Ten Million(Kshs 10,000,000.00)
3.2 The balance of the Purchase Price shall be paid by the Purchaser at least two Business Days before the Completion Date to the Vendors’ Advocates and shall be held by the Vendors’ Advocates subject to the provisions of clause 3.3. below.
3.3 All payments under this Agreement will be held by the Vendor’s Advocates as stakeholders and shall be made by way of RTGS to the following account:
3.4 The Purchasers shall, immediately upon effecting any payment in the manner set out above, deliver to the Vendor or the Vendor’s Advocates proof of such payment as the Vendor or the Vendor’s Advocates may reasonably require (such as, without limitation, a remittance advice slip issued by the Purchaser’s bankers).
3.5 The Purchase Price shall be paid in Kenya shillings (KES).
3.6 If the Purchaser fails to honour its obligations under clause 3 on the due date:
i. The Purchaser shall pay interest at the Interest Rate on the outstanding monies due payable from the date they are due until payment in full; and
ii. The Vendor may, if payment in cleared funds shall not have been effected within seven (7) days of the due date for payment, elect to treat such non-payment as a fundamental breach of the Purchaser’s obligations under this Agreement and the provisions of clause 7 shall apply.
4.1 The Completion Date shall be two (2) years from 24/02/2019.
4.2 Upon the Completion Date, and upon receipt by the Vendors’ Advocates of the full Purchase Price, the Vendor’s Advocates shall deliver to the Purchaser’s Advocates all the Documents listed under clause 4.4(a to h).
4.3 Completion shall take place at the offices of the Vendor’s Advocates.
4.4 On or before the Completion Date, the Purchaser’s Advocates shall inspect the following documents at the Vendor's Advocates offices:-
(a) The Original Title;
(b) Transfer (in triplicate)
(c) Valid Rent Clearance Certificate
(d) Valid Rates clearance certificate
(e) Consent to Transfer
(f) Copy of the stamp duty valuation form duly executed by the Vendor’s Advocates;
(g) Copy of Land Rent and Land Rates receipts 2018,2019 and 2020;
(h) Capital Gains Tax payment receipt or A Certificate of Exemption from payment of Capital Gains Tax;
(i) Transfer of Accounts in respect of utility meters (Accounts from the Vendor to the Purchaser)
The documents listed in clause 4.4 (a) to (h) are hereinafter referred to as the “Completion Documents”.
4.5 If the Transfer is not registered within 30 days of the Completion Date, the Purchaser hereby agrees that the Vendors’ Advocates may unconditionally release the Purchase Price to the Vendor.
The Purchaser being in possession of three go downs erected on the property shall be liable to take out adequate insurance covering all risks and shall place a copy of the policy with the Vendor.
6.1 The Purchaser shall continue to pay monthly rent for the three go downs until the date of completion/ registration of the property in its favour.
7. BREACH OF AGREEMENT BY THE PARTIES
7.1 If the Purchaser shall fail to comply with any of the conditions hereof or of the condition subject to which this sale is made including the condition relating to the completion of the sale the Vendor may give to the Purchaser at least Twenty One (21) calendar days' notice in writing confirming the Vendor’s readiness to complete the sale in all respects and specifying the default and requiring the Purchaser to remedy the same before the expiration of such notice AND if the Purchaser shall fail to comply with such notice the Vendor notwithstanding any other remedies available to her shall at the Vendor’s sole option be entitled to do any of the following:
a to rescind this Agreement, forfeit the sum of Kenya shillings Five Million out of the deposit together with any interest accrued (if any) held in the Vendors’ Advocates client account) as liquidated damages and the Vendor shall refund to the Purchaser the sum of Kenya Shillings Five Million (Kshs. 5,000,000.00) and other moneys paid by the Purchaser under this Agreement and deal with the property at her sole discretion without being liable or accountable to the Purchaser in any way.
7.2 If the Vendor shall fail to comply with any of the conditions hereof or of the condition subject to which this sale is made including the condition relating to the completion of the sale the Purchaser may give to the Vendor Twenty One (21) calendar days' notice in writing confirming the Purchaser’s readiness to complete the sale in all respects and specifying the default and requiring the Vendor to remedy the same before the expiration of such notice AND if the Vendor shall fail to comply with such notice the Purchaser shall at the Purchaser’s sole option be entitled to do any of the following as its sole remedy:
i. Rescind this Agreement and be entitled to a refund of Kenya shilling Ten Million (Kshs. 10,000,000.00) together with any other sums paid to the Vendor or Vendor’s advocate.
All sums due from the Purchaser to the Vendors under this Agreement shall bear interest from the date such sum or sums fall due until the date of actual payment at the Interest Rate set out in the Banking Amendment Act no. 25 of 2016 or such other Act amending or replacing the same but such rate shall not be less than the prevalent lending rate of the Investments and Mortgages Bank Limited.
9. LAW SOCIETY CONDITIONS OF SALE
The Law Society Conditions of Sale (2015 Edition) so far as they are not specifically excluded or varied by or inconsistent with the conditions herein are deemed to be incorporated in this Agreement.
Each party shall bear their own Advocates legal costs and the Purchasers shall pay stamp duty on the Transfer of the Vendor’s interest in the Title registration fees on the Transfer; and shall be liable for all Stamp duties, additional stamp duties and costs related to registration.
11.1 No failure or delay to exercise any power, right or remedy shall operate as a waiver of that right, power or remedy and no single or partial exercise of any right, power or remedy shall preclude its further exercise or the exercise of any other right, power or remedy.
11.2 The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
11.3 If any term or condition of this Agreement shall to any extent be found or held to be invalid or unenforceable, the parties shall negotiate in good faith to amend such term and condition so as to be valid and enforceable failing which;
11.4 If any term or condition of this Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement shall not be affected and the other term and conditions shall be valid and enforceable to the full extent permitted by law.
11.5 Notwithstanding the Transfer of the property to the Purchaser this Agreement shall remain in force with regard to anything remaining to be done performed or observed hereunder and not provided for in the said Transfer.
11.6 Notwithstanding completion all the provisions of this Agreement shall continue to have full force and effect to the extent that any of them remain to be implemented or performed.
11.7 The Agreement dated 29th March, 2017 is hereby superseded by this Agreement and shall not be open to any party to rely on the same.
Any notice required to be given hereunder shall be sufficiently served on the Purchasers if forwarded to the Purchasers or the Purchasers’ Advocates by registered post to their last known postal address in Kenya and shall be sufficiently served on the Vendors if delivered to the Vendors or the Vendors’ Advocates last known postal address in Kenya by registered post. A notice given by post shall be deemed to have been served seven (7) days after the date of posting.
This Agreement shall be interpreted according to the laws of Kenya and the parties hereby submit to the jurisdiction of the Courts of Kenya.
14. LAW OF CONTRACT ACT
Each of the parties hereby agrees and confirms for the purposes of the Law of Contract Act (Chapter 23, Laws of Kenya) that it has executed this Agreement with the intention to bind itself to the contents hereof.
IN WITNESS whereof this Agreement has been duly executed by the parties hereto on the day and the year first hereinabove written.
SIGNED by the VENDOR the said )
In the presence of: )
Advocate/Notary Public )
I CERTIFY that SELLER the Purchaser herein appeared before me on the ……………. day of …………………… 20.............. and (being known to me/being identified by ………………………………………….) acknowledged the above signatures or marks to be hers and that she had freely and voluntarily executed this instrument and understood its contents.
SEALED with the Common Seal of the PURCHASER )
in the presence of: )
I.D /PP. NO………………………………… )
PIN NO……………………………………. )
I.D NO…………………………….. )
PIN NO…………………………… )
“I certify that I was present and witnessed the affixing of the Seal by the directors of PURCHASER who are the holders of the above written I.D/PP and P.I.N Numbers and that the photographs affixed above are the true likenesses of the Directors/Secretary named above and that they signed this Lease in my presence”.
This document is not to be taken as legal advice. Its purpose is to display a sample of such documentation.
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