Contract For Sale Of Business - AUQLDRECM026

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BLACK = Old Item/Clause  | RED = New Item/Clause | BLUE = Comments About Change (Not Part of Form) | STRIKEOUT = Wording Deleted

 

11 Sep 2018 v2.5

Additions / Changes:

 

All fax fields removed.

 

Item 36 Note

(*) Witness Signature is not required where a party signs electronically (refer Clause 47.9)

IMPORTANT NOTE:

All Parties should sign annexures, initial any alterations to the Contract and, except where the Contract is signed electronically, initial at the bottom of each page of the Contract (Failure to do so does not invalidate this Contract)

 

Clause 47.1

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

 

Clause 47.8

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

 

Clause 47.9

Where a party signs this Contract electronically that party’s signature is not required to be witnessed.

 

07 May 2018 v2.4

Additions / Changes:

 

Title

CONTRACT FOR SALE OF BUSINESS

(THIS CONTRACT CONSISTS OF PAGES 1 TO 21 AND ANY ATTACHMENTS)

The Seller and Buyer agree to be bound by this Contract.

(Note: Where there is insufficient space in any Item place details in an Annexure and refer to the Annexure in the Item - e.g. ‘Refer Additional Expenses Annexure’)

 

Item 2

Name:      …………………………………………………………………………………………………………

Address:   ……………………………………………………………………… ACN: …………………………

               ...…………………………………………………………………… ABN: …………………………

Phone:     (…)……………………… Fax: (…)……………………… Mobile: ……………………………….

Email:       …………………………………………………………………………………………. Notices*:__

Licence Number: ……………………………………………………………… Expiry Date: …… / …… / ……

Contact:     ………………………………………………… Salesperson licence/ certificate No.: ………………

 

Item 3

Name:       …………………………………………………………………………………………………………

               …………………………………………………………………………………………………………

Address:    ……………………………………………………………………… ACN: …………………………

                ……………………………………………………………………… ABN: …………………………

Phone:     (…)……………………… Fax: (…)……………………… Mobile: ………………………………..

Email:       ………………………………………………………… Contact: …………………… Notices*:__

 

Item 4

Solicitor/ Self Acting: …………………………………………………………………………………………..

Address:   ……………………………………………………………………… ACN: …………………………

               ...…………………………………………………………………… ABN: …………………………

Phone:     (…)……………………… Fax: (…)……………………… Mobile: ………………………………..

Email:       ………………………………………………………… Contact: …………………… Notices*:__

 

Item 5

Accountant: ………………………………………………………………………………………………………

Address:      ………………………………………………………………………………………………………

Phone:     (…)……………………… Fax: (…)……………………… Mobile: ………………………………..

Email:       ………………………………………………………… Contact: …………………… Notices*:__

 

Item 6

Name:       …………………………………………………………………………………………………………

Address:    ……………………………………………………………………… ACN: …………………………

                ……………………………………………………………………… ABN: …………………………

Phone:      (…)……………………… Fax: (…)……………………… Mobile: ………………………………..

Email:        ………………………………………………………… Contact: …………………… Notices*:__

 

Item 7

Solicitor/ Self Acting: …………………………………………………………………………………………..

Address:   ……………………………………………………………………… ACN: …………………………

               ...…………………………………………………………………… ABN: …………………………

Phone:     (…)……………………… Fax: (…)……………………… Mobile: ………………………………..

Email:       ………………………………………………………… Contact: …………………… Notices*:__

 

Item 8

Accountant: ………………………………………………………………………………………………………

Address:      ………………………………………………………………………………………………………

Phone:     (…)……………………… Fax: (…)……………………… Mobile: ………………………………..

Email:       ………………………………………………………… Contact: …………………… Notices*:__

 

Note bottom of page 1 and 2

*By checking the Notices box, that party agrees to receive Notices via email to the specified email address (Clause 37.1(e))

 

Item 10 Header

BUSINESS DETAILS   If insufficient space attach schedule

 

Item 14 Header

INTELLECTUAL PROPERTY   (if insufficient room attach schedules as required)

 

Item 26 Header

SERVICE CONTRACTS TO BE ASSIGNED   (if insufficient room or for further information, attach schedules as required)

 

Item 27 Header

TRANSFER EMPLOYEES   (if insufficient room attach schedule)

 

Item 29 Header

ORDERS/ NOTICES/ DEMANDS/ REQUISITIONS   (if insufficient space attach schedule)

 

Item 35 Header

SPECIAL CONDITIONS   (If insufficient space attach schedule)

 

Item 36 Note

IMPORTANT NOTE:

All Parties should sign annexures, initial any alterations to the Contract and initial at the bottom of each page of the Contract (Failure to do so does not invalidate this Contract)

 

Clause 1

Defined terms have the same meaning throughout this Contract.

In this Contract (which includes the Item Schedule) the following terms mean:

(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).

 

Clause 37

Notice

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.

 

Clause 46

Execution of Contract

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.

 

Clause 48

Provision of Documents

The parties agree and confirm this Contract may be forwarded electronically if the recipient has provided an email address or facsimile number in the Item Schedule to this Contract.

 

Clause 47

Related Documents / Notices / Electronic Communication

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.

 

01 Jul 2017 v2.3

Additions / Changes:

 

Clause 48

Withholding – Capital Gains

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).

 

27 Jul 2016 v2.2

Additions / Changes:

 

Clause 48

Withholding – Capital Gains

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:

(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.

(1)

the Asset is excluded under section 14-215 of Schedule 1 from the requirements of the withholding payment provisions; or

(2)

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).

 

01 Jul 2016 v2.1

Additions / Changes:

 

Clause 48

Withholding – Capital Gains

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:

(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:

(1)

the Asset is excluded under section 14-215 of Schedule 1 from the requirements of the withholding payment provisions; or

(2)

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).

 

11 Jun 2015 v2.0

Copyright statement updated.

 

01 Dec 2014 v1.9

Additions / Changes:


Item 1

DATE OF CONTRACT DATE


Item 36

Addition of column  for date signed


Clause 1(9)

Date of Contract: The date as set out in Item (1) of the Item Schedule unless specified or the date of the last party signing, whichever is the later.


Clause 1(24)

POA PAMDA: means the Property Occupations Act 2014 Agents and Motor Dealers Act 2000 and regulations thereto.


Clause 4.6

Investment of Deposit: (Note: see Section 17 380 of the Agents Financial Administration Act 2014 Property Agents and Motor Dealers Act 2000)


Clause 4.8

The Seller acknowledges and confirms having appointed the Agent in accordance with the POA PAMDA and in accordance with the terms of such appointment directs the Deposit Holder to retain from the deposit monies, sufficient funds to pay any Commissions payable to the Agent.


Clause 40.3(c)

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, or penalties or interest determined by the Commissioner levied under Section 40 and Schedule 1 of the Taxation Administration Act 2001 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.

 

30 Jan 2012 v1.8

Additions / Changes:


Item 12 Note

(serial numbers to be included)


Item 13 Note

Note: If Business is being sold as a Going Concern care must be taken in detailing excluded what assets are excluded.


Item 16

BILLS OF SALE / ENCUMBRANCES/ OUTSTANDING STOCK ORDERS


Item 16.1

Bills of Sale Encumbrances / Outstanding Stock Orders


Clause 1(10)

Encumbrance: means matters affecting title to the Assets, both registered and un-registered, including security interests as defined in Section 12 of the Personal Property Securities Act 2009 and registered on the Personal Property Security Register.


Clause 9.3(15)

where applicable, current Asbestos Register and Management Plan.


Clause 11.1(12)

the Seller has not entered into any contracts, agreements or obligations with or granted any Encumbrances to with third parties apart from those disclosed in Item (16.2) which would:

 

01 Jan 2012 v1.7

Additions / Changes:


Item 35 Note

The Special Conditions are inserted under instruction from a party to this Contract and where not prepared by that party, were prepared by an Australian Legal Practitioner and not the Agent. No legal advice has been given or warranty provided by the Agent. Legal advice should be sought.

Special Conditions:

(a)  Were inserted under instruction by a party to this Contract; and/or

(b)  Precedents used by the Agent as Special Conditions were prepared by an Australian Legal Practitioner, not by the Agent who gives no warranty in respect of same and in accordance with the warning in Item (36), legal advice should be sought as to the meaning and effect of such Special Conditions before signing.


Item 36

WARNING: By signing this Contract the parties confirm that no legal advice as to the conditions contained herein was provided by the Agent, who specifically drew the parties’ attention to the Warning at the commencement of the Item Schedule. The parties also agree that any Special Conditions or Clauses were inserted at the specific request of the parties and the Agent gave no legal advice about same.

The parties have been advised to seek legal advice with respect to this Contract, including Special Conditions


Clause 1(6)

Business: the said Business detailed in Item (10) of the Item Schedule together with all Assets sold or transferred with the Business.


Clause 1(15)

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


Clause 1(25)

Purchase Price: The sum referred to in Item (17) of the Item Schedule as apportioned in Item (18).


Clause 2(5)

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


Clause 3.1

This Contract is made on the day specified in Item (1) of the Item Schedule between the Seller (Item (3)) and the Buyer (Item (6)).


Clause 9.3(10)

Service Contracts as specified in Item (26) of the Item Schedule


Clause 11.1(10)

it has, where applicable, with respect to the Business Name, complied with the provisions of the Business Names Registration Act 2011(CTH) and in relation to Intellectual Property, has complied with the provisions of relevant Commonwealth legislation dealing with trademarks, copyright, designs and patents where applicable.


Clause 11.1(12)

the Seller has not entered into any contracts, agreements or obligations with third parties apart from those disclosed in Item (16.2) of the Item Schedule which would:


Clause 11.2(5)

the Seller will transfer ownership of the Business free from any encumbrances, security or third party interests other than as disclosed in the Item (16). Schedule.


Clause 11.3(6)

the Premises Existing Lease details set out in Item (24) of the Item Schedule are valid.


Clause 13.1

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


Clause 15.1

Where Item (27) of the Item Schedule 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.


Clause 20.2

Subject to the consent of the owner, the Seller assigns from the Settlement Date, the benefits and obligations of Leased/Rented Plant and Equipment agreements as set out in Items (12)(2) and (12)(3) of the Item Schedule and the Buyer accepts such assignment.


Clause 27.1

The Seller agrees it shall not carry on or be in any manner whatsoever either directly or indirectly involved, concerned, associated with or interested in a business (either alone or in partnership or as a manager, servant or agent of any personal corporation or as a shareholder or director of any corporation) of the same or similar nature within the geographic area and for the time period prescribed in Item (30) of the Item Schedule.


Clause 27.2

If the restrictions of Item (30) are held void or unenforceable by any court having jurisdiction on the basis that the restrictions are excessive, the Buyer may by notice in writing to the Seller specify a reduced area and or time period in which case the parties agree Item (30) of the Item Schedule shall be amended in accordance with the notice.


Clause 33.2

The Seller shall not employ or terminate employment of any Employees in the Business or alter the terms or conditions of employment of any of the Employees mentioned in Item (27) of the Item Schedule without the Buyer’s prior written consent, which consent will not, subject to the conditions of this Contract, be unreasonably refused.


Clause 34.2(1)

In the case of Item (31) (Business Trial), the Buyer (or its representative) shall, at no cost to the Seller, be permitted to trial the Business for the period specified in Item (31.1) of the Item Schedule to enable the Buyer to confirm that the actual normal Business trading performance level is not less than the Estimated Trading Performance Level as specified in Item (31.2).


Clause 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) of the Item Schedule in accordance with Clause 37.1 on the Seller’s behalf if authorised by the Seller.


Clause 38(2)

GST is included in the Purchase Price stated in Item (17) of the Item Schedule


Clause 39(1)

the Seller states that GST was not included in the Purchase Price stated in Item (17) of the Item Schedule.


Clause 43.1

Clause 43 applies if Item (9) of the Item Schedule has been completed by inserting details of the Guarantor.


Clause 47

The parties agree and confirm this Contract may be forwarded electronically if the recipient has provided an email address or facsimile number in the Item Schedule to this Contract.


Clause 48

48.1

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

(1)

the Seller has, and at the time of Settlement will have, sole and absolute title to the License.

(2)

the License is not, and at the time of Settlement will not be subject to any mortgage, charge, encumbrance or other secured liability which would attach to the License or bind the Buyer.

(3)

the Seller has legal power and capacity to sell the License and to vest title in the Buyer on Settlement.

(4)

the License will be subsisting at the date of Settlement.

(5)

the Seller is unaware of there being any breach of the conditions of the License or any unsatisfied notice or requirement by the Licensing Authority, at the date of the Agreement, or any pending or threatened prosecution, litigation or action relating to the License or to cancel, suspend, revoke or to impose further restrictions of conditions on the License.

48.2

This Contract is subject to and conditional upon:

(1)

The approval of the Licensing Authority to the transfer of the License to the Buyer.

(2)

Transfer of the License to the Buyer on Completion.

In the event, by the Settlement Date, Clause 48.2 (1) is not satisfied, the Settlement Date shall be extended by 10 Business Days.

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).


 

01 Jul 2010 v1.6

Additions / Changes:


Clause 1(10)

Entitlements: employee entitlements under a relevant Industrial Instrument award, designated award, industrial agreement or order including, without limitation, annual leave, personal leave and long service leave.


Clause 1(30)

Tax Invoice: a document that evidences a purchase / sale (supply) including G.S.T and complies with the requirements of subsection 2970 (1) and (if applicable) Section 5450 of the G.S.T Act.


Clause 15.3

The Seller will provide to the Buyer in writing, not less than 2 Business Days prior to Settlement, full details of all Entitlements payable, owing or accrued to the benefit of the Transfer Employee up to the date of Settlement and provide relevant records and information reasonably required by the Buyer with respect to such Entitlements.


Clause 15.7

The Seller warrants and indemnifies to the Buyer that:

(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.


Clause 47

By signing this Contract all parties agree to having given prior approval, in accordance with the Electronic Transactions (Queensland) Act 2001, for electronic transmission of this Contract and any other related documents contracts, for signing purposes or otherwise, by such means of communication as have been indicated in this document (ie. Facsimile numbers & email addresses).

 

14 Oct 2009 v1.5

Additions / Changes:


Clause 1(18)

Order: a decision made and issued by a court or judge or a competent authority command that is legally binding including an order as a charge on the Land as stated in Part 11 of the Property Law Act 1974.


Clause 1(22)

PAMDA: means the Property Agents and Motor Dealers Act 2000 and regulations thereto.


Clause 1(26)

Service Contract: is a Contract entered into between the Seller and a Service Provider capable of being transferred to the Buyer upon Settlement as more particularly detailed in Item (26).


Clause 1(29)

Stocktaker: a person employed to determine the value of the Trading Stock and Work in Progress on behalf of the parties hereto.


Clause 2.1(5)

notes in the Item Schedule or any supporting documents or annexures in relation to the Contract form part of this Contract. Clause headings are for descriptive purposes only.


Clause 4.6

Investment of Deposit: (Note: see Section 380 of the Property Agents and Motor Dealers Act 2000)

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


Clause 4.6(3)

the Deposit and the interest are at the risk of the party who is ultimately entitled to the Deposit and the Deposit Holder shall not be liable for any loss resultant upon the investment in accordance with Clause 4.6(1).


Clause 4.6(5)(a)

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


Clause 4.8

The Seller acknowledges and confirms having appointed the Agent in accordance with the PAMDA and in accordance with the terms of such appointment directs the Deposit Holder to retain from the deposit monies, sufficient funds to pay any Commissions payable to the Agent.


Clause 4.9

(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.


Clause 5.3

The Buyer must cause give notice to be given to the Seller in accordance with Clause 37 (Notice) without delay, immediately upon being advised by the Lender of approval/rejection of Finance. in accordance with Clause 37 (Notice).


Clause 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:


Clause 5.9

Once this Contract is terminated in accordance with this Clause:

(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.


Clause 11.4(a)

by notice given to the Seller in writing prior to Settlement, terminate rescind this Contract and claim damages for any resultant loss and the provisions of Clause 4.5 shall apply; or


Clause 12(8)

once executed by the parties, the provisions of this Contract are binding on and enforceable by the parties.


Clause 14.1

Subject to Item (21), Where the Business is not sold on a Walk-In Walk-Out basis, the value of Work in Progress shall be determined as mutually agreed between the parties in accordance with Item (20.2) or and failing agreement by the Valuation Date, determined by an Accountant Stocktaker appointed by the President of the Institute of Chartered Accountants. Stocktakers Institute of Australia.


Clause 19.4

The Seller will obtain the consent of Service Providers to the assignment of Service Contracts and both parties must do all acts and things and complete all documentation necessary to give affect to the assignments required such that at Settlement the obligations and benefits of such contracts will be assigned to the Buyer.


Clause 19.5

Service Contracts not able or required to be assigned to the Buyer shall:


Clause 20.1

The Seller has provided to the Buyer, full and complete details of all Leased/Rented Plant and Equipment 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).


Clause 24.1

The Seller believes the details of the Business and Assets and other matters set out in the schedules to this Contract to be correct. Should however, there be any error or misdescription with respect to those details the parties may:

(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.

If there is any dispute in relation to this Clause or any part or it, it shall be dealt with in accordance with Clause 25 hereof.


Clause 24.2

Any claim for compensation or reference to mediation in accordance with Clauses 24(b) and 24(c) shall not entitle the Buyer to delay Settlement.


Clause 25.9

Should a party fail to comply with Clause 25.3 any other party, (or in the case of Clause 25.6 (the mediation be at an end), any party) affected by the Dispute Notice may without further notice start legal proceedings or refer the dispute to arbitration.


Clause 26

Notwithstanding the sale has settled and registration of any transfer or assignment occurred, there shall be no merger of provisions and each party shall retain the benefit of any provisions of this Contract, which has not been satisfied which may require the other party to do something or take some action.


Clause 32.1

Pursuant to and in addition to Clause 11.1 (9), the Seller must, by Settlement, fully comply, in a proper and workmanlike manner, with any Orders, notices, demands or and requisitions issued by a court or other competent authority with respect to the Business made before Settlement and the Buyer shall comply with any Orders, notices, demands or requisitions issued subsequent to Settlement.


Clause 32.3

The cost of any Orders, notices, demands or requisitions complied with by one party which, under Clause 32.1, are is the responsibility of the other party shall be, to the extent of such cost, an adjustment to the Purchase Price in favour of the party who has incurred the cost.


Clause 34.3(1)

In the case of Item (32)(Buyer’s Training), the Seller (or a qualified representative of the Seller) will during normal business hours for the period specified in Item (32) provide, at no cost to the Buyer, such training, assistance and information (including introduction to staff, customers, clients and suppliers) as the Buyer or Buyer’s authorised representative may require in relation to the conduct of the Business.


Clause 36

All information of a confidential nature disclosed or exchanged between the parties (including their agents, legal, financial and other advisors) may not be disclosed to any other party during or subsequent to the completion or termination of this Contract.  All records of the Business, financial, intellectual or otherwise are confidential and must remain so.  If the Contract is not completed by the Buyer, all such records must forthwith be returned to the Seller.  This does not prevent any party making a disclosure required by law and does not include information normally in the public domain.


Clause 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) of the Item Schedule in accordance with Clause 37.1 on the Seller’s behalf if authorised by the Seller.


Clause 39(2)

the Buyer agrees to pay to the Seller in accordance with Clause 41, the amount due for G.S.T based on and in addition to the agreed Purchase Price.


Clause 40.3

The Buyer must pay to the Seller (as provided in Clause 39), and indemnifies the Seller in respect of such payment, of the amount of G.S.T payable on the supply of the Business if:


Clause 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:

(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.


Clause 47

By signing this Contract all parties agree to having given prior approval, in accordance with the Electronic Transactions (Queensland) Act 2001, for electronic transmission of this Contract and any other related contracts, for signing purposes or otherwise, by as far as such means of communication as have been indicated in this document (ie. Facsimile numbers & email addresses).


Clause 48

The Seller, in respect of this sale, acknowledges that they have agreed to pay the Agent’s Commission as per the signed PAMD 22a, 20a or 21a Form and the Buyer is hereby irrevocably directed, out of the balance of the Purchase Price, to pay any balance of commission owed at Settlement by way of a cheque payable to the Seller’s Agent (Item (2)).

 

16 July 2009 v1.4

Additions / Changes:


Item 27

Note: Section 311 of the Fair Work Act 2009 provides employees, even though not Transfer Employees at the Date of Settlement, who are employed by the Buyer within 2 months of Settlement, will become Transfer Employees as defined by the Fair Work Act 2009.


Clause 15.2(1)(2)

become the employer of the Transfer Employees subject to, where applicable, the Fair Work Act 2009 relating to the transfer of a Business.


Clause 15.2(2)

should the Buyer not become the employer of a Transfer Employee named in accordance with Clause 15.1 the Buyer will be bound by the Transfer Employee’s terms of employment whether by an industrial instrument or otherwise and shall be responsible for payment of redundancy entitlements arising from such employment terms for a period of 12 months following the date of Settlement should the Transfer Employee’s employment be terminated by the Seller. within that period.


Clause 15.5(2)

terms of employment offered to Transfer Employees shall be as determined by the Buyer but in compliance with, where applicable, the Fair Work Act 2009 and relevant state legislation.


Clause 15.9

The Entitlements of employees who would not be Transfer Employees, except for the provisions of Section 311 of the Fair Work Act 2009, are not Entitlements for the purposes of Clause 15.

 

22 Sept 2008 v1.3

Additions / Changes:


Item 35

Special Conditions:

(a)  Were inserted under instruction by a party to this Contract; and/or

(b)  Precedents used by the Agent as Special Conditions were prepared by an Australian Legal Practitioner, not by the Agent who gives no warranty in respect of same and in accordance with the warning in Item (36), legal advice should be sought as to the meaning and effect of such Special Conditions before signing.


Item 36

The parties have been advised to seek legal advice with respect to this Contract, including Special Conditions.

 

31 July 2008 v1.2

Additions / Changes:


Clause 1(1)(h)

Trading Stock (Item 20.1): all merchantable stock, to the stock value, as set out in Item (20.1) of the Item Schedule at the invoice landed value including stock to be used or sold in connection with carrying on the Business and does not include Work-in-Progress.


Clause 4.4

The Deposit is payable to the Seller:

(a)

the Seller:

(a)

on Settlement; or

(b)

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


Clause 4.6

Investment of Deposit: (Note: see Section 380 of the Property Agents and Motor Dealers Act 2000)

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

(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.


Clause 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.


Clause 5.5

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

(a)

terminate this Contract; or

(b)

prior to termination, waive the benefit of this condition


Clause 5.8

Should the Buyer not obtain Finance Approval by the Finance Date 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.


Clause 7.3(3)

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


Clause 15.1

Where Item (27) of the Item Schedule 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.


Clause 16.3

If the Existing Lease is not satisfactory to the Buyer, the Buyer may by notice to the Seller, given prior to 5pm on the last day for notification in accordance with Clause 16.2 hereof terminate this Contract and the provisions of Clause 4.5 (b) shall apply.


Clause 33.1(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 for sale at less than its normal price.


Clause 34.2(2)

If the trading figures for the Business Trial period are less than the Estimated Trading Level by more than the Permitted Variation (see Item 31.3), the Buyer may by notice served within 2 Business Days after the expiration of the Business Trial period, terminate the Contract in which case the provisions of Clause 4.5 (b) shall apply.  Should the Buyer not notify the Seller in accordance with this Clause the Buyer will be deemed to have accepted the actual trading figures.


Clause 35

Except Subject as otherwise provided herein each party will be liable for payment of its own costs and outlays in respect of the preparation, and execution and carrying into effect of this Contract provided however, the Buyer will be liable for payment of stamp duty and registration fees on this Contract or other documents created in respect of or pursuant to this Contract.

 

13 Feb 2008 v1.1

Additions / Changes:


Clause 17.4

All costs in relation to obtaining the Lessor’s consent shall be payable by the Seller. provided however, should the Lessor require the Buyer to enter into a deed of covenant the Buyer will pay the professional costs of preparing such deed.


Clause 19.1(3)

the Seller has not breached the terms and conditions of any Service Contract  and is not aware of any circumstances which may result in their termination.


Clause 19.1(4)

all Service Contract details provided are valid and subsisting.