Contract For Sale Of Business - AUQLDRECM026

Removed

Restraint Period (Months after the settlement date)

Restraint Area (Kilometre radius from the Premises)

1.

2.

3.

(1)

Assets: the assets of the Business agreed to be sold as listed hereunder:

(a)

Freehold Premises (Item 15)

Goodwill (Item 178): all goodwill of the Business including the benefit of all current contracts, engagements and orders of the Seller in connection with the Business, together with the exclusive right for the Buyer to represent itself as carrying on the business in succession to the Seller.

(b)

Intellectual Property (Item 134): all intellectual property and proprietary rights (whether registered or unregistered) owned or used by the Seller for the conduct of the Business including the Business Name (referred to in Item 10), trade mark, emblem, design, patent, brand name, database or other intellectual, industrial or commercial property or right used in connection with the said Business.

(c)

Leased Plant and Equipment (Item 12): the Sellers interest in plant and equipment, machinery, motor vehicles, furniture, fixtures, fittings and such other items as may be owned, leased and or rented by the Seller used in the conduct of the Business as set out in schedules to Items 12(2) and (3).

Leasehold Premises: right to occupy any premises leased, as described in Item 234 for the conduct of the Business.

(e)

Plant and Equipment (Item 12): the Sellers interest in plant and equipment, machinery, motor vehicles, furniture, fixtures, fittings and such other items owned leased and or rented by the Seller used in the conduct of the Business in connection with the Business as described set out in the schedule to Item 11.

(2)

Balance Purchase Price: monies payable, by the Buyer, on Settlement after deducting the Deposit, if paid, from the Purchase Price and allowing for Adjustments as provided in this Contract.

Bank: a business carrying on a bank business as defined in section 5 of the Banking Act 1959 (CTH), the Reserve Bank or Bank constituted under State law.

means an authorised deposit-taking institution granted the authority to carry on a banking business in Australia within the meaning given to that term in the Banking Act 1959 (Cth).

(3)

Bank Bond Guarantee/Deposit Bond: means an irrevocable Deposit Bond or Bank Guarantee issued by a Bank or insurance company to secure the deposit in accordance with clause 4.4 of this Contract.Bond or guarantee issued by a Bank to secure the Deposit in accordance with Clause 4.3 of this Contract.

(6)

Business Day: Any day other than a Saturday, Sunday or public holiday in the State of Queensland and excluding the period from 27th December to 31st December inclusive (unless otherwise agreed between the parties).

(8)

Confidential Information means any Information

(a)

regarding the Business or business affairs of either party to this Contract;

(b)

regarding the terms of this Contract or any commercial arrangements between the parties,

(c)

disclosed in accordance with ,or as a result of, the parties entering into this Contract which:

(i)

is by its nature confidential;

(ii)

is designated as confidential by either party;

(iii)

is provided in accordance with Clause 7;

(iv)

either party knows, or ought to know, is confidential or

(v)

is the Sellers date of birth where provided in accordance with Clause 23.1

(10)

Data Collection Agency: means an agency or organisation that collects real estate and Business sales data  to provide information to the real estate, finance and property valuation industries to enable data analysis.

(13)

Encumbrance: means matters affecting title to the Assets, both registered and un-registered, including (but not limited to) security interests as defined in Section 12 of the Personal Property Securities Act 2009 and registered on the Personal Property Security Register.

(14)

employee entitlements under a relevant Industrial Instrument or order including, without limitation, annual leave, personal leave and long service leave.

means all accrued entitlements of the Transferring Employees under any relevant Industrial Instrument, employee contract of employment or order including, without limitation, annual leave (including any loadings), personal leave, long service leave and superannuation

(16)

Explanatory Notes: means the notes following Clause 52 of the Terms and Conditions in this Contract.

(17)

Financial Institution: means Bank, building society or credit union.

(21)

Item: means an items detailed in the Item Schedule of this Contract.

(22)

Licence Agreement: any agreement between the Seller and the Lessor of the Existing Lease granting use of an area exclusive of the Leasehold Premises.

(39)

Transfer Employee: an employee detailed in Item 267 who, in accordance with this Contract, is to cease employment with the former employer (the Seller) and become employed by the new employer (the Buyer) whose employment for the purposes of this Contract will be considered continuing service as provided in Section 22(5) of the Fair Work Act 2009 (Cth).

2.1

In this Contract, unless the contrary intention appears:

(1)

the singular includes the plural and vice versa and a gender includes other genders words in the masculine or neuter gender shall include the feminine and vice versa;

(4)

(e)

for the purpose of Interpretation headings do not form part of this Contract and are for descriptive purposes only;

(f)

a reference to writing includes all modes of representing or reproducing words in a legible, permanent and visible form.

(5)

the Item Schedule and any attached addendum pages and annexures shall form part of this Contract. Clause headings are for descriptive purposes only.

(6)

where a day upon which an event is to occur is to be calculated as a period of days from, after or before a specific date, the specific date is not to be included in the period.

2.2

This Contract (including the Item Schedule, Terms and Conditions, and any Annexure hereto) constitutes the sole and entire agreement between the parties and no warranties, representations, guarantees or other terms or conditions of whatsoever nature not contained and recorded herein shall be of any force or effect. Any amendments, additions or deletions to this Contract must be in writing and executed by all parties.

4.1

The Buyer must pay the Deposit to the Deposit Holder as sStakeholder in the amount and at the times required in Item 167.

4.2

Failure to pay any monies on time (except as provided by Clause 4.3) or by cheque, which is not honoured on presentation, will be an act of default by the Buyer in which case the Seller may (without being required to serve a notice of breach in accordance with Clause 10) terminate or affirm this Contract and thereafter, act otherwise act in accordance with either Clause 11.2 or 11.3 of this Contract.

4.3

Where the Purchaser pays all or part of the Deposit monies via an electronic funds transfer, full details of such payment must be provided in writing to the Deposit Holder when the payment is made and provided the monies are credited to the Deposit Holder’s account not later than midnight on the date which is 2 Business Days after the date for payment as specified in Item 16, the Purchaser will not be in default.

4.4

The Buyer may pay the Deposit (in whole or in part) by Bank Deposit Bond/Bank Guarantee ( Item 18) in a form and on terms acceptable to the Seller, in which case on receipt of the Deposit Bond/Bank Guarantee Bank Bond the Buyer's obligation to pay the Deposit shall have been satisfied to the extent of the Deposit Bond/Bank Guarantee Bank Bond.

4.5

The Deposit is payable to the Seller to be retained by the Deposit Holder and paid, in accordance with this Clause to  either:

(1)

the Seller (or to the Seller’s Agent as provided in the Seller’s Agency Appointment)

(a)

on Settlement; or

(b)

in case of te Buyer's Default on default.

or

(2)

the Buyer, sShould this Contract be properly terminated by the Buyer, the Deposit will be refunded to the Buyer in which case the Buyer shall have no further claim under this Contract unless there has been a breach of the provisions of this Contract by the Seller, giving rise to a claim for damages.

4.6

Should, by notice in writing, the Seller claim:

(1)

forfeiture of the Deposit under Clause 4.5(1)(b) or

(2)

the Buyer require the Deposit returned to the Buyer under Clause 4.5(2),

the Deposit Holder will, after the expiration of 5 Business Days (or such sooner time as the parties may agree) from service of the notice and receipt of confirmation that a copy of the notice has been served on the other party (or its Agent ), comply with the notice unless an objection in writing has been made by the other party on whom the copy notice has been served.

4.7

Investment of Deposit: (Note: see Section 17 of the Agents Financial Administration Act 2014).

Where the Deposit Holder is instructed by the parties to invest the Deposit then, subject to legislative requirements, (except in the case of Deposit Bond/Bank Guarantee Bank Bond):

(4)

subject to subclause (5) hereof, the interest on the Deposit will be paid to the party who becomes, and is, entitled to the Deposit in accordance with Clause 4.5 at Settlement and such party will be solely responsible for any tax liability on such monies;

(7)

a Deposit Holder Stakeholder, being a licensed Agent, may shall not be required to invest the Deposit if the sale is to be completed on a contractually ascertainable day less than 60 days after the Deposit is received.

4.10

(1) Provided however, should Where the Deposit monies paid to the Deposit Holder are not be sufficient to pay the whole of the Commission due to the Agent, each of them, the Buyer and the Seller agree, and in the case of the Seller authorise and directs the Buyer, to pay to the Agent the outstanding Commission due.

4.11

(2) The Agent, as beneficiary, accepts as is evidenced by the signing of this Contract, the benefit of the provisions of Clause 4.9 in accordance with Section 55 of the Property Law Act 1974.

5.1

This Contract is subject to and conditional upon the Lender approving a loan to the Buyer in the Finance Amount, by the Finance Date (or such extended date as may be agreed), on terms and conditions satisfactory to the Buyer for the purchase of the Business, by the Finance Date (or such extended date as may be agreed).

5.2

For the purposes of Clause 5.1, the Lender does not need to be the lender nominated in Item 21 but if not, must be a Financial Institution.

5.3

The Buyer must cause notice to be given to the Seller in accordance with Clause 48 without delay, upon being advised by the Lender of approval/rejection of Finance.

In complyingiance with this Clause the Buyer will promptly, after the signing of this Contract by the Seller, make application to the Lender for the loan and take all reasonable steps to obtain the Finance approval by the Finance Date.

5.4

Once notice of approval is given as required by Clause 5.3 the Buyer will be deemed to have approval in accordance with Clause 5.1.

The Buyer must give notice to the Seller no later than 5:00pm AEST on the Finance Date that:

(1)

the Finance condition has been satisfied; or

(2)

Finance approval in accordance with Clause 5.1 has not been obtained and the Contract is terminated; or

(3)

Finance approval in accordance with Clause 5.1 has not been obtained and the Buyer waives the benefit of this condition.

5.5

If the Buyer, through no default on the Buyer’s part, has not obtained the Finance approval in accordance with Clause 5.1 by the Finance Date then the Buyer may by notice to the Seller:

(1)

terminate this Contract; or

(2)

prior to termination, waive the benefit of this condition.

Should the Buyer not give notice to the Seller in accordance with Clause 5.4 (1) or (2) by 5:00 p.m. AEST on the Finance Date the Seller may, by notice, terminate this Contract.

5.6

The Buyer will, if required by the Seller, provide details of compliance with Clause 5.2 and/or written proof detailing that the provisions of Clause 5.1 have not been satisfied.

5.7

This Contract is not terminated until notice is given.

It is a condition precedent to termination under Clause 5.3(2) taking effect that the Buyer provide written evidence, if so required by the Seller, under Clause 5.5.

5.8

Should the Buyer not obtain Finance Approval by the Finance Date and not give notice in accordance with Clause 5.3 and then subsequently obtains Finance Approval and notifies the Seller prior to the Seller giving notice to terminate this Contract in accordance with Clause 5.5, then the Buyer will have complied with the requirement to obtain a loan in the Finance Amount and this Contract will be in full force and effect.

5.9

All monies paid by way of Deposit will be forthwith refunded to the Buyer once this Contract is terminated in accordance with this Clause.

Once this Contract is terminated in accordance with this Clause:

(1)

the Vendor will cause all monies paid by way of Deposit to be forthwith refunded to the Buyer once this Contract is terminated in accordance with this Clause; and

(2)

each party will do all such things as are reasonably necessary to restore the other to its position prior to entering into the Contract.

7.1

The Seller will, within the time prescribed in Item 278.3, make available to the Buyer ,or the Buyer’s Accountant or other authorised representative at the Seller’s premises, unless otherwise agreed, current, true and correct written records of:

(2)

copies of all Encumbrances, chattel leases, hire agreements, service agreements, warranties, Personal Property Security Interests, loan agreements and such other information as the Buyer may reasonably request with respect to Plant and Equipment as per Item 11 and Stock-In-Trade; and

7.3(3)

If the Buyer is not able to confirm the records in accordance with Clauses 7.3(1)(a) and 7.3(1)(b) the Buyer may in addition to the requirements of accordance with Clause 7.3(2), by notice to the Seller, terminate this Contract and the provisions of Clause 4.5 shall apply.

7.4

In exercise of the rights granted under Clause   7.1, the Purchaser may consult with the Vendor's auditor or accountant and, subject to the prior consent of the Vendor (which may not be unreasonably withheld), consult with Employees.

9.1

Unless requested or otherwise agreed by the Seller the Bbalance Ppurchase moniesPrice shall be paid by Bank Cheque (subject to compliance with Clause 8) on the Settlement Date.

9.2

Where the balance purchase monies are paid by electronic transfer such payment must be made by cleared funds and full details must be provided to, or as directed by,the Seller when payment is made.

9.3

Where monies paid by electronic transfer have been paid to an incorrect account the parties must take all reasonable steps to recover such monies for payment to the intended recipient.

9.5

On payment of the Bbalance Ppurchase monies Price, adjusted as provided in this Contract, by Bank Cheque/s (as directed by the Seller or its Solicitor in writing) and compliance by the Buyer with the conditions of this Contract the Seller must deliver to the Buyer (or the Buyer’s solicitor):

(6)

title to and possession of the Business and Assets free from encumbrances (subject to the provisions of Clause 2) but including warranties and documentation relating thereto to which the Buyer may be reasonably entitled;

(12)

all login details and passwords required to access and operate computer systems, social media accounts and software (including on-line services) necessary for the operation of the Business.

(16)

full contact details (including names, addresses, phone numbers and email addresses) of all persons and businesses that the Business relies upon for the operation of the Business.

9.7

The Buyer shall be required to bear the cost of no more than four Bank Cheques in payment of the bBalance pPurchase monies Price.

10.1

A right of termination or forfeiture under this Contract arising as a result of a breach of warranty, obligation or condition by a party shall not entitle the other party to exercise such rights unless and until the other party serves on the party in breach a notice:

(1)

specifying the particular breach;

(2)

requiring the breach to be remedied within 7 Business Days of service of the notice but not less then 2 Business Days prior to Settlement, whichever first occurs, or such other time as the parties may agree; and

(3)

stating this Contract may or will be terminated if the party served fails to remedy the breach.

10.2

Clause 10.1 does not apply

(1)

in the case of repudiation, by either party, of this Contract; or

(2)

where a Dispute Notice is served in accordance with Clause 28.

11.1

If the Buyer does not pay any monies due or is otherwise in default then, providing the Seller is not in default, the Seller may, in addition to and without limiting other remedies, including action for damages and/or specific performance, terminate or affirm this Contract.

In the case of:

(1)

a repudiation by the Buyer, or

(2)

the Seller having given notice in accordance with Clause 10.1 and the default not having been rectified within the time specified,

the Seller may, in addition to and without limiting other remedies, including action for damages and/or specific performance, by notice in writing to the Buyer specifying the default:

(a)

terminate this Contract; or

(b)

affirm this Contract.

11.2

(3)

may retain the Business and sue the Buyer for damages for breach of this Contract;

(6)

claim any reasonably incurred costs arising from the Purchaser’s default.

11.3

Should the Seller affirm this Contract, in accordance with either Clause 4.2 or 11.1(2)(b), the Seller may, without prejudice to any other rights:

11.4

(2)

legal costs on an indemnity basis.

12.1

If the Seller is in default under this Contract then, providing the Buyer is not in default, the Buyer may, in addition to and without limiting other remedies, including action for damages and/or specific performance, by notice in writing to the Seller specifying the default, terminate or affirm this Contract.

In the case of:

(1)

a repudiation by the Seller, or

(2)

the Buyer having given notice in accordance with Clause 10.1 and the default not having been rectified within the time specified,

the Buyer may in addition to and without limiting other remedies, including action for damages and/or specific performance, by notice in writing to the Seller specifying the default:

(a)

terminate this Contract; or

(b)

affirm this Contract.

12.3

(1)

recover in addition to from the Seller/Deposit Holder Stakeholder the Deposit and any other monies paid by the Buyer under the Contract;

(2)

the Buyer will be entitled to any interest earned on a Deposit invested in accordance with Clause 4.6;

the Buyer, in addition is be entitled to claim interest on any monies paid by the Buyer under the Contract (less interest received in accordance with Clause 4.7(4)17.3(2))other than the Deposit) at the rate prescribed in Item 323 to be calculated from and including the date of payment by the Buyer up to, but excluding the date on which the money is repaid; and

13.1

The Seller warrants, unless otherwise disclosed in this Contract, that at the Date of this Contract:

(1)

it is the sole owner of the Business and has full authority to enter into this Contract;

(2)

the Seller has full authority to enter into this Contract and if a corporation, is duly incorporated under the Corporations Act 2001 (CTH) where the Seller is a trustee;

(3)

where the Seller is acting in the capacity of a  trustee it has the authority under the trust deed to enter into this contract and in doing  is entitled to be indemnified from the assets of the trust

(13)

the Seller has not:

(a)

granted any Encumbrances to third parties apart from those disclosed in Item 15.1; or

(b)

entered into any contracts, agreements or obligations with third parties (Third Party Agreements) apart from those disclosed in Item 15.2 with or which would:

(iii)

be terminated by any other party by reason of this contract or a change in ownership of the Business

13.3

(1)

no notices have been received by the Seller with respect to such agreements with which at Settlement the Seller has not or will not have complied with;

(5)

no event that has occurred that may lead to termination of any of the agreements; and

13.5

Notice of breach of warranty must be given no later than the time specified in Item 26.2.

(4)

it is not required to obtain consent to this purchase under the Foreign Acquisitions and Takeovers Act 1975 (CTH); or

(5)

it has, if necessary, obtained any and all consents under the Foreign Acquisitions and Takeovers Act 1975 (CTH) to this purchase.

15.1

The Stocktake will be performed at the time specified in Item 20.1(b) and each party shall be notified of the outcome forthwith upon completion.

Where the Business is not purchased on a Walk-In, Walk-out basis (Item 20), at the Settlement Date the Buyer must:

(1)

take over Trading Stock-In-Trade up to the Maximum Value as detailed in Item 20.1(c) provided however, if there is no Trading Stock-In-Trade maximum Value as specified in Item 20(c) the Buyer must buy all the Trading Stock-In-Trade; or and

(2)

in addition to the Purchase Price specified in Item 19, pay the Seller for the Trading Stock-In-Trade, at Settlement or on completion of the Stocktake, if the time specified in Item 20.1(b) is subsequent to Settlement.

15.2

For the purposes of Clause 15.1, the value of the Trading Stock-In-Trade shall be as mutually agreed between the parties and failing agreement, as follows:

(1)

an independent Stocktaker will be appointed, by agreement between the parties; and

(2)

failing agreement, between the parties either party may apply to the appointed by the National President, for the time being, of the Australian Property Institute Stocktakers Institute of Australia to appoint a Stock Valuer who will then determine the value of the Stock-In-Trade;

(3)

the Stocktake shall be conducted on the Stocktake date specified in Item 20.1(b) and each party shall be notified of the outcome forthwith upon completion.

15.3

If the value exceeds the Stock-In-Trade  Maximum Value the parties will agree on what stock is to be taken by the Buyer, and failing agreement, the determination will be made by the Stock Valuer.

(3)

if the value exceeds the Trading Stock Maximum Value the parties will agree on what stock is to be taken by the Buyer, and failing agreement, the determination will be made by the Stocktaker;

(4)

the Stocktaker’s decision will be final and binding; and

(5)

the Stocktaker’s costs will be paid equally by the parties.

15.4

Where a Stock Valuer is appointed, their decision will be final and binding.

15.5

Where a Stock Valuer is appointed, their costs will be paid equally by the parties.

15.6

Subject to the provisions of this Contract, stock orders placed by the Seller prior to Settlement must only be made in the normal and ordinary course of the Business and if delivered after Settlement (Outstanding Stock Orders) will be paid for by the Buyer.

16.1

Where the Business is not sold on a Walk-In Walk-Out basis (Item 19), the value of Work in Progress shall be determined as mutually agreed between the parties in accordance with Item 20.2 or failing agreement by the Valuation Date, determined by an Accountant appointed by the President of the Institute of Chartered Accountants.

16.2

The valuation shall be determined as at the Valuation Date in Item 20.2(b)(ii).

Where Item 20.2(b)(i) applies and the parties fail to agree on a value within the specified time frame or where Item 20.2(b)(ii) applies, the value of Work in Progress shall be determined not later than 2 Business Days prior to the Settlement Date (or another date as mutually agreed by the Parties), by an Accountant appointed by agreement between the Parties, or failing agreement, by the President of the Chartered Accountants Australia and New Zealand.

16.3

The value of the Work in Progress is to be added to the Balance Purchase Price balance purchases monies and paid by the Buyer to the Seller on Settlement.

Subject to clause 16.4, the value of the Work in Progress determined in accordance with clause 16.1 or clause 16.2, is to be added to the balance purchase monies and paid by the Purchaser to the Vendor on Settlement.

16.4

(1)

Where an Accountant has been appointed and the Accountant’s valuation of the Work in Progress has not been provided prior to Settlement, a sum equal to the Seller’s Estimated Value (Item 20.2(a)) will be added to the balance purchase monies and such additional sum is to be paid into the Purchaser’s Solicitor’s trust account, and,

(2)

upon receipt of the valuation from the Accountant:

(a)

Where the Accountant’s valuation of the Work in Progress is greater than the Seller’s Estimated Value, the Purchaser will, within 2 Business Days of receipt of the valuation from the Accountant, pay into the trust account, any additional funds required to make up the difference between the Seller’s Estimated Value and the Accountant’s valuation of the Work in Progress , and instruct its Solicitor to forthwith release such monies to the Vendor; or

(b)

where the Accountant’s valuation of the Work in Progress is less than the Seller’s Estimated Value, the balance purchase monies will be adjusted accordingly, and the Purchaser’s Solicitor will, after payment of the balance purchase monies to the Vendor, release the remaining funds to the Purchaser.

(iii)

be terminated by any other party by reason of this contract or a change in ownership of the Business

16.5

The Stocktaker’s Accountants costs will be paid equally by the parties.

16.6

The Stocktaker’s Accountants decision is final and binding on both parties.

17.1

Where Item 27 is not completed at the Date of Contract or should there be changes to the employees named therein subsequent to the Date of Contract, notice must be given to the Seller of all Transfer Employees in writing not less than 14 days prior to Settlement.

Details of employees who may become Transferring Employee are as set out in Item 26. The Seller will notify the Buyer of any changes to such details not less than 10 Business 4  Days before Settlement.

17.2

The Buyer will, not less than 5 Business Days prior to Settlement, notify the Seller in writing of all employees to whom the Buyer intends to offer employment,(Transferring Employee).

17.3

Subsequent to giving notice in accordance with Clause 17.2 the Buyer will offer employment to the employee’s named in such notice upon terms and conditions no less favourable then those existing under their current employment with such offer being subject only to the completion of this Contract.

17.4

The Seller will terminate in compliance with the provisions of the Fair Work Act 2009 (Cth) the employment of any Transferring Employees who accept the Buyer’s offer of employment such that the Transferring Employees are able to commence employment with the Buyer on the Settlement Date.

17.6

The Seller will allow a deduction from the Purchase Price, by way of an adjustment at Settlement, of an amount equal to 70% of all Entitlements payable or owing to the Transfer Employees calculated up to the date of Settlement. [See Explanatory Note 5]

17.9

At Settlement the Vendor must allow an adjustment in favour of the Purchaser of an amount calculated in accordance with the formula set out below and the Purchaser must, with effect from the Settlement Date, assume responsibility for the Transferring Employee Entitlements.

A = E x CT

where:

A is the amount of the adjustment;

E is the amount of the Entitlements as at the Settlement Date; and

CT is the income or company tax rate applicable to the Vendor as at the date of this contract.

[See Additional Explanatory Note 5]

19.3

(1)

Subject to either party requesting an extension in accordance with Clause 19.3(2) hereof, if completed assignment and/or consent is not obtained on or before the Settlement Date, the Buyer may, by giving written notice to the Seller, terminate this Contract and all monies paid to the Seller from the Buyer shall be refunded to the Buyer without deduction.

(2)

Provided however, in the event Clause 19.3(1) is not satisfied by the Settlement Date, the Settlement Date shall may, at the request of either party, be extended by up to 10 Business Days.

19.4

All costs in relation to obtaining the Lessor’s consent or any Mortgagee (if applicable) including the cost of any deed of covenant required by the Lessor shall be payable by the Seller.

19.5

The costs of any mortgagee’s consent with respect to the assigning of the Existing Lease will be payable by the Buyer.

20.1

This Clause applies if Schedule Item 24 is complete, in which case whereby this Contract will be conditional upon:

20.3

(1)

Subject to either party requesting an extension in accordance with Clause 20.3(2) hereof, if a New Lease is not granted or written agreement to enter into the New Lease is not obtained from the Lessor by the Settlement Date, the Buyer may, by giving written notice to the Seller, terminate this Contract and all monies paid to the Buyer from the Seller shall be refunded to the Buyer without deduction.

(2)

Provided however, in the event Clause 20.3 (1) is not satisfied by the Settlement Date, the Settlement Date may, at the request of either party, be extended by up to 10 Business Days.

20.5

The costs of a deed of surrender relating to an Existing Lease (if any) or any mortgagee’s consent with respect to the granting of the New Lease shall be met by the Buyer Seller.

20.6

The costs of any mortgagee’s consent with respect to the granting of the New Lease will be payable by the Buyer.

21.1

The Seller has provided to the Buyer full and complete details of all Service Contracts (Item 25) existing at the date of Contract.

21.2

Subject to the consent of the Service Provider, the Seller assigns from the Settlement Date, the benefits and obligations of such Service Contracts and the Buyer accepts such assignment.

21.2

If a warranty set out in Clause 20.1 is breached by the Seller, the Buyer may in addition to and without limiting other remedies, including action for damages and/ or specific performance:

(1)

by notice given to the Seller in writing prior to Settlement, rescind this Contract and claim damages for any resultant loss; or

(2)

should the Buyer not give notice under Clause 20.2 (1) the Contract will remain in force provided however the Buyer may, where a warranty is breached, in addition to other remedies, claim damages for any resultant loss in respect of such breach.

21.3

(5)

it has will not entered into any new Service Contract with respect to the Business or agreed to alterations, additions or variations to any Service Contract prior to completion of this Contract without the Buyer’s written consent which consent will not be unreasonably withheld.

(2)

Provided however, in the event Clause 20.3 (1) is not satisfied by the Settlement Date, the Settlement Date may, at the request of either party, be extended by up to 10 Business Days.

21.4

If a warranty set out in Clause 21.3 is breached by the Seller the Buyer may must before rescinding or terminating this Contract give notice requiring rectification in accordance with Clause 10.1 provided however unless and until if such notice is not given the Contract will remain in force and the Buyer may, in addition to other remedies, claim damages for any resultant loss in respect of such breach.

21.7

notwithstanding the provisions of Clause 20.6, if:

(1)

the Seller is unable to procure the assignment of a Service Contract; and

(2)

the Service Contract is material to the operation of the Business; and

(3)

the Buyer has complied with Clause 21.5,

the Buyer may at its absolute discretion  terminate this contract by notice in writing to the Seller.

22.1

The Seller has set out in schedules to Items 11(2) and 11(3) provided to the Buyer, full and complete details of all Leased/Rented Plant and Equipment (and agreements in relation thereto) used in relation to the Business. including and where applicable, in addition to those set out in schedules to Items 12(2) and 12(3).

22.5

(2)

where the Leased/Rented Plant and Equipment is not removed or the agreements are neither assigned or removed, relating thereto are not assigned, the Buyer may elect to become responsible for carrying out the terms of the agreement relating to such Leased/Rented Plant and Equipment in which case the Buyer will indemnify the Seller in respect of any liability arising subsequent to Settlement under any agreement with relation to the Leased/Rented Plant and Equipment provided, should the consent of the owner not have been obtained, such arrangement does not result in a breach of the agreement.

Should any of the Assets, being personal property, be subject to a security interest to which the Personal Property Securities Act 2009 (Cth) applies:

(1)

The Seller will provide to the Buyer all information necessary (including where appropriate birth dates) to enable the Buyer to carry out a search of the Personal Property Security Register and where applicable, authorise the Buyer to obtain from the Secured Party all relevant information relating to the Security Interest;

(2)

The  Buyer must provide to the Seller copies of release documents;

(3)

Where required to perfect the release of the security interest the Seller will ensure that prior to Settlement the Buyer receives from the secured party a written undertaking to register a financing change statement with respect to the personal property the subject of the security interest.

(4)

Words and phrases which are defined in the Personal Property Securities Act 2009 (Cth) have the same meaning in Clause 24 unless the context requires otherwise.

36.1

From the Date of Contract as per Item 1 until Settlement, the Seller shall continue to fulfill all its obligations as owner of the Business including:

(4)

ensuring that the Business is conducted in accordance with normal and prudent practice (having regard to the nature of the Business) and shall use its best endeavours to maintain the profitability and value of the Business and in so doing will not offer Trading Stock-In-Trade for sale at less than its normal price; and

39.1

All information of a Cconfidential Information nature disclosed or exchanged between the parties (including their agents, legal, financial and other advisors) in relation to this contract, its creation or performance may not be disclosed to any other party during prior or subsequent to the completion or termination of this Contract.

39.4

This does not Nothing in this clause prevents any party making a disclosure required by law and does not include   information normally in the public domain.

42.1(1)

the Seller supplies to the Buyer and the Buyer acquires from the Seller, upon Settlement, the Business and all of the things that are necessary for the continued operation of the Business and agrees and undertakes to carry on the Business until the day of the supply as per Section 38-325 of the GST Act;

42.3

If at any time the supply or supplies under this contract do not constitute a supply of a going concern, the Purchaser must (except in the case of a breach by the Seller of the undertaking contained in Clause 42.1(1)) pay to the Seller as supplier an amount equal to the GST payable on the supply together with any general interest charge or penalties imposed by the Commissioner of Taxation. Such monies to be paid promptly on receipt of the Commissioners assessment and delivery of a   compliant tax invoice.

42.3

The Buyer must pay to the Seller, and indemnifies the Seller in respect of such payment, the amount of GST payable on the supply of the Business if:

(1)

Clause 40.1(2) is not correct at the time of Settlement; or

(2)

the supply is no longer a Supply of a Going Concern due to circumstances not relating to a breach by either party; or

(3)

in the event that the supply is assessed not to be a Supply of a Going Concern, the relevant GST assessed together with any fines, penalties or interest determined by the Commissioner will be payable by that party who failed to perform their obligations under the Going Concern provisions of the GST Act. Such monies to be paid promptly on receipt of the Commissioners assessment and delivery of a GST compliant invoice.

42.1

If the Buyer becomes aware that the Seller has not complied with the requirements of Clause 40.1 (depending on the option chosen by the Seller) of this Contract:

(1)

the Buyer is, at the time of Settlement, entitled to claim compensation from the Seller and/or without limiting other remedies, including action for damages and/or specific performance, terminate this Contract; or

(2)

after the Settlement Date, the Buyer may claim compensation from the Seller for any loss or damage incurred. The Buyer must however pay to the Seller, once received, any monies reimbursed to the Buyer as an Input Tax Credit for GST; or

(3)

the Buyer’s rights under this Clause are in addition to and not in limitation of any other rights which may be available to the Buyer either at law or at equity.

42.2

If the Buyer does not exercise the right to terminate this Contract in accordance with Clause 42.1(1) when the Supply of a Going Concern option is selected in accordance with Item 34, then the provisions of Clause 40.3 will apply.

49.1

By signing this Contract, the parties acknowledge:

(1)

having received a copy for perusal prior to signing; and

(2)

being provided with the opportunity to obtain independent legal advice.

49.1

The Agent for either party to this Contract must comply with the provisions of the Australian Privacy Principles (Privacy Act 1988 (CTH)) and where required maintain a Privacy Policy.

49.2

The Privacy Policy outlines how Agents collect and use Personal Information provided by you (all parties) as a party to this Contract, or obtained by other means, to provide the services required by you or on your behalf.

49.3

You as a party to this Contract agree Agents may, subject to the Privacy Act 1988 (CTH) (where applicable), collect, use and disclose such information to third parties as may be required by the Agent for the purposes of facilitating electronic conveyancing, marketing, sales promotion and administration relating to the use of the Agent’s products and services, but must do so in compliance with legislative and regulatory requirements.

49.4

Without provision of certain information your Agent may not be able to act effectively or at all on your behalf.

49.5

You as party to this Contract have the right to access such Personal Information and may require correction or amendment of any inaccurate, incomplete, out of date or irrelevant information.

49.6

An Agent will provide (where applicable), on request, a copy of its Privacy Policy.

(2)

copies of all chattel leases, hire agreements, service agreements, warranties, Personal Property Security Interests bills of sale, loan agreements and such other information as the Buyer may reasonably request with respect to Plant and Equipment as per Item 12; and

Should the Seller terminate this Contract the Seller may, without prejudice to any other rights:

(1)

claim forfeiture of the Deposit; and/or

(2)

resell the Business and provided such resale is completed within 12 months any deficiency, including the expense of such resale, shall be recoverable by the Seller from the Buyer as liquidated damages.;

(3)

may retain the Business and sue the Buyer for damages for breach of this Contract;

(4)

claim any Deposit monies that are in arrears as a liquidated debt.; and

11.1

If the Seller is in default under this Contract then, providing the Buyer is not in default, the Buyer may, in addition to and without limiting other remedies, including action for damages and/or specific performance, by notice in writing to the Seller specifying the default, terminate or affirm this Contract.

11.2

Should the Buyer affirm this Contract the Buyer may, without prejudice to any other rights, sue the Seller for specific performance of the Contract and/or damages for breach as well as, or in lieu of, specific performance of the Contract.

11.3

Should the Buyer terminate this Contract the Buyer may, without prejudice to any other rights:

(1)

recover from the Seller/Stakeholder the Deposit and any other monies paid by the Buyer under the Contract;

(2)

the Buyer will be entitled to any interest earned on a Deposit invested in accordance with Clause 4.6;

(3)

the Buyer, in addition is entitled to claim interest on any monies paid by the Buyer under the Contract (other than the Deposit) at the rate prescribed in Item 33 to be calculated from and including the date of payment by the Buyer up to, but excluding the date on which the money is repaid; and

(4)

sue the Seller for damages.

11.4

Damages will include:

(1)

professional fees and costs incurred to satisfy the terms of this Contract; and

(2)

legal costs on an indemnity basis.

•

The company tax rate for a Base Rate Entity is currently set at 25% or otherwise set at 30% for Non-Base Rate Entities.

Note: A Base Rate Entity is a company with an aggregate annual turnover less than $50 million.

•

The corporate tax rate is currently set at 30%.  Should there be any alteration to that rate, this Clause may need to be adjusted.

50.1

Where a party to this Contract (Relevant Party) is unable to reasonably carry out an Essential Obligation due to a Materially Adverse Event (MAE) then for the Relevant Period of the MAE the parties agree time will cease to be of the essence and a failure by a party to perform its obligations during the Relevant Period will not be a breach of the Contract.

50.2

The Relevant Party must:

(1)

promptly when able notify the other party of the MAE and how it prevents performance of a particular Essential Obligation;

(2)

take reasonable steps to mitigate the effect of the MAE with respect to its obligations; and

(3)

as soon as possible, give notice advising when it is no longer prevented from carrying out the Essential Obligation. Such notice may also include the matters detailed in Clause 50.3.

50.3

At the end of the Relevant Period, or where a notice served in accordance with Clause 50.2(3) does not contain the matters set out in paragraphs (1) to (4) of this sub-clause, either party may serve notice on the other party:

(1)

advising that the Relevant Period/MAE is over;

(2)

requiring performance of or compliance with the Essential Obligation;

(3)

giving a specific time and date for the performance or compliance being not less than 7 days and not more than 14 days from the date of delivery of the notice; and

(4)

advising that, on delivery of the notice, time is again of the essence,

such notice will be a settlement notice where the particular Essential Obligation notified in accordance with Clause 50.2(1) relates to settlement.

50.4

The times and dates for compliance with other contractual obligations where time is of the essence shall be extended to correspond with the extension of time to the Essential Obligation originally notified.

50.5

For the purposes of this Clause 50:

(1)

Essential Obligation means any one of the obligations set out in clauses 4.1, 5, 7.1, 8, 9.1 and 13.1;

(2)

Materially Adverse Event or MAE means:

(a)

an event as defined in section 16(1)(a) of the Disaster Management Act 2003 (QLD); or

(b)

an order or lawful direction of a Government authority, Federal, State or Local;

(3)

Relevant Party means a party to this Contract prevented from carrying out an Essential Obligation as the direct result of a Materially Adverse Event for the Relevant Period; and

(4)

Relevant Period means the time during which a Relevant Party is unable to carry out an Essential Obligation as a consequence of a Materially Adverse Event.

48.1

The Agent for either party to this Contract must comply with the provisions of the Australian Privacy Principles (Privacy Act 1988 (CTH)) and where required maintain a Privacy Policy.

48.2

The Privacy Policy outlines how Agents collect and use Personal Information provided by you (all parties) as a party to this Contract, or obtained by other means, to provide the services required by you or on your behalf.

48.3

You as a party to this Contract agree Agents may, subject to the Privacy Act 1988 (CTH) (where applicable), collect, use and disclose such information to third parties as may be required by the Agent for the purposes of facilitating electronic conveyancing, marketing, sales promotion and administration relating to the use of the Agent’s products and services, but must do so in compliance with legislative and regulatory requirements.

48.4

Without provision of certain information your Agent may not be able to act effectively or at all on your behalf.

48.5

You as party to this Contract have the right to access such Personal Information and may require correction or amendment of any inaccurate, incomplete, out of date or irrelevant information.

48.6

An Agent will provide (where applicable), on request, a copy of its Privacy Policy.

(3)

Bank: a business carrying on a bank business as defined in section 5 of the Banking Act 1959 (CTH), the Reserve Bank or Bank constituted under State law.

A Bank as defined in the Banking Act 1959 (CTH), the Reserve Bank or Bank constituted under State Law.

(8)

Buyer: The Buyer named in Item 6, including any nominee or additional Buyers named listed in an attached annexure Special Conditions, Item (35).

(9)

Contract: means this Contract including Item Schedule, Terms and Conditions, Special Conditions and attached annexures or documents referred to in the Item Schedule.

(11)

Electronic Document: means any electronic communication (including Notices) as defined in the Electronic Transactions (Queensland) Act 2001 including any electronically generated document situated on an external server readily accessible via a link within an electronic communication or other electronically generated document.

(29)

Related Document: means any written communication (including Notices) with regard to this matter between the parties, including any Electronic Document.

(30)

Seller: The Seller named in Item 3, including any additional Sellers listed in an attached annexure named in Special Conditions, Item (35).

37.1

Any notice or information required to be given to or be served on a party under this Contract shall be in writing and may be served on that party:

(a)

by delivering the notice to the party personally; or

(b)

by leaving it for the party at the party’s address as stated in Items (3) or (6); or

(c)

by posting it to the party, by registered mail as a letter addressed to the party at the address as stated in Item (3) or (6); or

(d)

by a sender’s cleared facsimile transmission to the party's facsimile number in Item (3) or (6); or

(e)

if both parties agree and it is lawful, by electronic transmission to the party at the email address shown for that party in the Item Schedule. (Refer to Items (2) to (9) of this Contract); or

(f)

by delivery to the party’s solicitor’s office by any of the methods outlined in Clauses 37.1 (a) to 37.1 (e) above.

37.2

A notice posted shall be deemed to have been served, unless the contrary is shown, at the time when, by the ordinary course of post, the notice would be delivered.

37.3

A notice sent by electronic transmission will be deemed to have been received in accordance with Section 24 of the Electronic Transactions (Queensland) Act 2001.

37.4

Notices given by a party's solicitor will be deemed to have been given by and with the authority of the party.

37.5

A Seller’s Agent shall, for the purpose of this Clause, be recognised as a party and may receive notices to the address set out in Item (2) in accordance with Clause 37.1 on the Seller’s behalf if authorised by the Seller.

37.6

Notices must be served before 5pm on a Business Day, failing which, such Notice will be deemed to have been served on the next Business Day.

46.1

This Contract may be executed in any number of counterparts. Together all counterparts make up one instrument.

46.2

This Contract may be entered into by and becomes binding on the parties by one party signing the Contract that has been signed by the other (or a copy of that Contract) and transmitting a copy of it to the other or to the other party's Agent or Solicitor.

47.1

The parties agree and confirm any documents and communications in relation to this Contract may be forwarded electronically and where this document has been forwarded electronically (either for signing or otherwise) the party receiving the document confirms having consented to the delivery of the document (and any other materials) by way of the electronic means of delivery before receiving the documentation.

47.2

A Related Document to be served on any party under this Contract shall be in writing and may be served on that party:

(1)

by delivering it to the party personally; or

(2)

by leaving it for the party at that party’s address as stated in this Contract; or

(3)

by posting it to the party by ordinary mail or security mail as a letter addressed to the party at the address as stated in this Contract; or

(4)

by electronic communication to the party at the appropriate electronic address as stated in this Contract; or

(5)

by delivery to the other party’s solicitor’s office; or

(6)

by delivery to an alternative address, provided in writing by the party, by any of the methods outlined in Clauses 47.2(1) to (5) above.

47.3

A document posted shall be deemed to have been served, unless the contrary is shown, at the time when, by the ordinary course of post, the document would be delivered.

47.4

A document sent by electronic communication will be deemed to have been received in accordance with Section 24 of the Electronic Transactions (Queensland) Act 2001.

47.5

Documents given by a party's solicitor will be deemed to have been given by and with the authority of the party.

47.6

Documents must be served before 5pm on a Business Day, failing which, such document will be deemed to have been served on the next Business Day.

47.7

The parties acknowledge and agree an Electronic Document readily accessible via a link within a Related Document is received when the Related Document is served and will be opened when the Related Document is opened.

47.8

The parties agree to execution, delivery and service of documents electronically by a method provided by DocuSign or such other agreed electronic signature service provider.

48.1

The parties acknowledge (subject to Clause 48.2) where the Purchase Price (plus applicable GST less any input tax credit) of the Business is two million dollars ($2,000,000) or more, the Buyer will on or before Settlement, in compliance with the foreign resident capital gains withholding payments provisions of Schedule 1 of the Taxation Administration Act 1953 (Cth) (Schedule 1) be required to:

(1)

withhold from the purchase monies a sum equal to 10% of the Purchase Price or such lesser sum as determined in a notice of variation provided in accordance with section 14-235 of Schedule 1; and

(2)

pay the withheld monies to the Australian Taxation Office (ATO) in accordance with Schedule 1 and, in addition,

(3)

promptly provide evidence of payment made in accordance with Clause 48.1(2) to the Seller

48.2

Where the Seller has, not less than 3 Business Days (or such shorter time as the parties may agree) prior to Settlement, provided a clearance certificate from the ATO in accordance with Schedule 1, valid at the time of Settlement, the Buyer’s obligation under Clause 48.1 will not apply.

48.3

Payment made in accordance with Clause 48.1 will, for Settlement be treated as an adjustment (Clause 9.3).

48.1

The parties acknowledge (subject to Clause 48.2) where the Purchase Price (plus less any applicable GST less any input tax credit) of the Asset Business is two million dollars ($2,000,000) or more, the Buyer will on or before Settlement, in compliance with the foreign resident capital gains withholding payments provisions of Schedule 1 of the Taxation Administration Act 1953 (Cth) (Schedule 1) be required to:

48.2

Where the Seller has, not less than 3 Business Days (or such shorter time as the parties may agree) prior to Settlement, provided a clearance certificate from the ATO in accordance with Schedule 1, valid at the time of Settlement, the Buyer’s obligation under Clause 48.1 will not apply.

The Buyer’s obligation under Clause 48.1 will not apply.

48.3

Payment made in accordance with Clause 48.1 will, for Settlement be treated as an adjustment (Clause 9.3).

48.1

The parties acknowledge (subject to Clause 48.2) where the Purchase Price (less any GST) of the Asset is two million dollars ($2,000,000) or more, the Buyer will on or before Settlement, in compliance with the foreign resident capital gains withholding payments provisions of Schedule 1 of the Taxation Administration Act 1953 (Cth) (Schedule 1) be required to:

48.2

Where:

The Buyer’s obligation under Clause 48.1 will not apply.

48.3

Payment made in accordance with Clause 48.1 will, for Settlement be treated as an adjustment (Clause 9.3).

48.1

In respect of any liquor license included in the sale of the Business the Seller warrants that:

48.2

This Contract is subject to and conditional upon:

48.3

The Buyer, at the Buyer’s cost and expense, will apply promptly to the Licensing Authority for approval to the transfer of the License and will act promptly and efficiently in pursuing the application, including in furnishing the required evidence of the Buyer’s, and if it is a company, the Buyer’s directors, character, fitness and financial status.

48.4

The Seller will execute the required documents, applications or consents to enable the application for approval to be lodged and processed and will promptly furnish the information and render such assistance as may be reasonably necessary to obtain approval of the application including obtaining the consent of the owner of the Premises to the transfer (if applicable).

(1)

all superannuation Entitlements are paid up to the date of Settlement for the Transfer Employees.

(2)

all information provided in accordance with Clause 15.3 is true and correct and indemnifies the Buyer against all claims made by any Transfer Employee in respect of superannuation contributions the responsibility of the Seller.

(1)

Provided however, should the Deposit monies paid to the Deposit Holder not be sufficient to pay the whole of the Commission due to the Agent, each of them, the Buyer and the Seller agree, and in the case of the Seller, authorise and directs the Buyer to pay to the Agent the outstanding Commission due.

(2)

The Agent, as beneficiary, accepts as is evidenced by the signing of this Contract, the benefit of the provisions of Clause 4.9(1) in accordance with Section 55 of the Property Law Act 1974.

(a)

the Vendor will cause all monies paid by way of Deposit to will be forthwith refunded to the Buyer once this Contract is terminated in accordance with this Clause.

(b)

each party will do all such things as are reasonably necessary to restore the other to its position prior to entering into the Contract.

(a)

in the case of substantial or material error or misdescription agree to rescind this Contract; or

(b)

in any other case, or failing agreement to rescind, the Buyer will be entitled to, by notice given before Settlement, claim compensation; or

(c)

if the parties do not resolve the matter in accordance with Clause 24(a) or 24(b) hereof, deal with the matter under Clause 25 hereof.

(a)

the Buyer is, at the time of Settlement, entitled then the Buyer is permitted to claim compensation from the Seller and/or without limiting other remedies, including action for damages and/or specific performance, terminate this Contract; or

(b)

after the Settlement Date, then the Buyer may is permitted to claim compensation from the Seller for any loss or damage incurred. The Buyer must however pay to the Seller, once received, any monies the amount the Buyer will be reimbursed to the Buyer as an Input Tax Credit for G.S.T.

(c)

the Buyer’s rights under this Clause are in addition to and not in limitation of any other rights which may be available to the Buyer either at law or at equity.

(a)

the Seller:

(a)

on Settlement; or

(b)

in case of the Buyer’s Default on default; or

(1)

the Deposit Holder will invest the Deposit funds paid with in its name as trustee for the Buyer and Seller in an interest bearing account with a Bank, Building Society or Credit Union until the Settlement Date or as otherwise instructed by the parties. in an interest bearing account at the risk of the party who becomes entitled to the Deposit.

(2)

the parties will supply to the Deposit Holder, prior to the investment of the Deposit, their tax file numbers and acknowledge that if the tax file numbers are not provided then they accept that the interest earned on the Deposit may be taxed at the highest rate allowable. the interest on the Deposit will be paid to the party who becomes, and is entitled, to the Deposit.

(3)

the Deposit and the interest are at the risk of the party who is ultimately entitled to the Deposit.

(4)

subject to subclause (5) hereof, the interest on the Deposit will be paid to the party who becomes, and is, entitled to the Deposit at Settlement and such party will be solely responsible for any tax liability on such monies.

(3)

the party who becomes entitled to the income from the invested Deposit will be solely responsible for any tax liabilities on such income. Tax in this context includes Income Tax and GST.

(4)

the parties will supply the Deposit Holder with their tax file numbers in order to assist with the investing of the Deposit.

(5)

If Settlement of the Contract does not occur, the interest earned on the Deposit will be paid to:

(a) the Seller, if Settlement did not occur due to breaches of the Contract by the Buyer; or

(b) the Buyer, if it was for any other reason.

(6)

all costs in relation to this investment will be borne by the party referred to in Clause 4.6(3).

(7)

a Stakeholder, being a licensed Agent, may not invest the Deposit if the sale is to be completed on a contractually ascertainable day less than 60 days after the Deposit is received.

(a)

terminate this Contract; or

(b)

prior to termination, waive the benefit of this condition