Entered
into between
AMANZI
YACHTS
and
1
_______________________
2
_______________________
3
_______________________
4
_______________________
1
Introduction
The parties are desirous to enter into an
agreement for the acquisition and management of a
sailing yacht upon the terms and conditions set out
herein.
2
Interpretation
In this Agreement:-
2.1
clause headings are for reference purposes
only and shall not affect its interpretation;
2.2
references to the singular shall include the
plural, reference to a gender shall include all
genders, and vice versa;
2.3
all schedules hereto shall be deemed to be
incorporated herein and shall form an integral part
hereof;
2.4 unless inconsistent
with or otherwise indicated by the context, the
following expressions shall bear the meanings
assigned to them hereunder:-
2.4.1
Amanzi
means Amanzi Yachts Limited, Registration No.
IBC 495594 a company with limited liability
incorporated in the British Virgin Islands and
registered in the Republic of South Africa as an
external company in terms of the Companies Act,
1973, with its principal place of business in South
Africa at
21 Lourensriver Estate, Bixweni
Road, Somerset West 7130.
2.4.2
Co-Owner
means any one or more of:
a)
.. of
..; and
b)
.. of
..; and
c)
.. of
..; and
d)
.. of
2.4.3
Yacht
means the
sailing catamaran named
.
and registered by S A Sailing under
registration no.
.
2.4.4
Company
means the private company with limited
liability to be established and registered in South
Africa under the name of
............................ or such other name as the Registrar of Companies
may allow, and of which the entire issued shares
will be owned equally by the Co-owners.
2.4.5
Maintenance
means arranging and maintaining normal
insurance cover for the replacement value of the
yacht, dockage, routine inspections of the yacht
including all of its systems and equipment,
repairing or replacing parts and equipment that is
worn or broken through normal wear and tear, annual
haul-out and inspection of the hulls and renewal of
anti-fouling as and when required, routine
maintenance and repair of engines, rigging and
mechanical and/or electrical equipment, routine
replacement of paper products, propane, cleaning
supplies, and occasional replacement of bedding,
pillows, linens, towels, galley supplies and other
miscellaneous items which wear out over time.
2.4.6
Effective Date
means
.
3
Co-Owner Contributions
3.1
Each Co-Owner shall make an initial
contribution to the capital of the Company in the
sum of R___________
( _____________ Rand).
The said initial contribution shall be used
for the purchase of the Yacht and to pay the
establishment costs of the Company.
3.2
Co-Owners shall during the term of this
agreement contribute monthly installments to
cover overhead expenses of the yacht,
including Maintenance as defined and yacht
management fees of Amanzi. The monthly installment
in respect of each Co-Owner shall be the sum of
R______ ( ____________ Rand).
3.3
Monthly installments shall be payable on the
first day of each month and shall be deposited into
a bank account established in the companys name
with a commercial bank in South Africa.
3.4 Upon the unanimous
vote of the Co-Owners, special assessments may be
made equally against each Co-Owner for such purpose,
as the Co-Owners jointly may determine.
3.5
If a Co-Owner is more than thirty days in
arrears with the payment of the monthly contribution
or special assessments, such Co-Owner shall lose the
right to use of the vessel and he shall be liable to
pay interest on the arrear amount calculated at 3%
above the prime overdraft lending rate from time to
time, until the arrears have been paid in full.
3.6
Persistent arrears by a Co-owner may lead to
the provisions of clause 4 being invoked.
4
Directors
The Co-owners shall be entitled to be
appointed as directors of the Company. An authorised
representative of Amanzi shall be appointed as
chairman of the board of directors
for the duration of this Agreement.
5
Capital Accounts
An individual capital account shall be maintained for
each Co-Owner. The capital account shall consist of
his or her initial capital contribution: increased
or decreased (as the case may be) for any increase
or decrease in the net value of the Co-Owner 's
assets. The net value of the Co-Owner 's assets
shall be determined as of 1st March of
each year, such date to be known as the valuation
date. Adjustments to the capital account of each
Co-Owner shall be made regularly on each valuation
date on the basis on the ratios of the respective
capital accounts on that date.
6 Books and
record Keeping
Adequate accounting records of all Company
business shall be kept and shall be open to
inspection by any of the Co-Owners at all reasonable
times. Audited financial statements will be provided
to each Co-Owner within ninety days of the end of
the financial year of the Company.
7 Custody of
Documents
Log of books, title or registration copies,
bill of sales and/or any other documents evidencing
ownership of property held by the Company and either
registered or recorded in such name, shall be and
remain in the custody of Amanzi and may be inspected
at all reasonable times by Co-Owners.
8 Restriction
on Company Assets
A Co-Owner shall not
without the consent of a majority of all
Co-Owners sell, assign, create a security interest
in, or pledge his or her interest in the Company or
its assets, except in accordance with clause 10 or
borrow or lend money on behalf of the Company;
9 Withdrawal
Any Co-Owner may withdraw from the Company upon giving
written notice to all other Co-Owners, but such
withdrawal shall not be effective until thirty (30)
days after notice is given wherein a special
valuation date is established, unless an earlier
effective date is established by agreement between
the Co-Owners. The withdrawing Co-Owner 's interest
shall be liquidated according to the procedures set
forth in clause 10 of this agreement.
10 RIGHT OF
FIRST REFUSAL
No Member shall sell his interest in the Company
except upon the following terms:
10.1 The selling Co-Owner shall first offer
his interest to the remaining Co-Owners upon the
same price, terms and conditions of sale as offered
in writing by r any financially capable, bona fide
purchaser.
10.2 If the remaining Co-Owners do not
choose to purchase the capital account of the
withdrawing Co-Owner, then in such an event, any one
(1) other Co-Owner on his own behalf may purchase
the withdrawing Co-Owners capital account upon
the same terms.
10.3 If none of the remaining
Co-Owners exercise the option to purchase herein
created, the withdrawing Co-Owner shall be free to
sell his or her interest only to the named offeror
or upon the same price, terms, and conditions of
sale as shall reduce the proceeds of the selling
Co-Owners capital account by that amount.
10.4 Amanzi may act as selling broker,
for any Co-Owner wishing to sell his shares in the
Company upon such terms as they may agree.
11 Use Of The
Yacht
Use of the yacht shall be subject to the following
provisions and such other rules as Amanzi may from
time to time advise by written notice to Co-Owners
11.1 Except as agreed upon by the
Co-Owners, no Co-Owner shall reserve and use the
yacht a disproportionate amount of time so as to
restrict the availability of the yacht to other
Co-Owners.
11.2 Each 1/12 fractional share owned by
a Co-Owner, entitles such Co-Owner to a maximum of
4 weeks use of the yacht per year.
11.3 Reservations for use of the yacht shall
be made in accordance with the terms contained in
Schedule I hereto under the heading
Reservations.
11.4 The master calendar for the
vessel will be maintained by Amanzi on their
computerized reservation system. Co-Owners may check
availability of the yacht either by phoning the
reservations office or on-line via a password.
11.5 The yacht may only be used by a
Co-Owner and his invited guests. The yacht may only
be sailed under the control of a competent and
qualified skipper. In the event that the Co-Owner is
not so qualified, then he shall be obliged to use
the services of a skipper and/or crew appointed by
Amanzi at the expense of the Co-Owner.
11.6 The yacht may not be loaned or
leased to anyone.
11.7 Each Co-Owner is responsible for the cost of
any fuel, including dinghy fuel, consumed during his
use of the yacht and shall either fill the fuel
tanks upon return of the yacht, or promptly
reimburse Amanzi for the cost of such fuel and
service charge invoiced to the Co-Owner.
11.8 Each Co-Owner shall record in the
yacht's maintenance log any mechanical malfunctions, unusual events or
damage to the vessel.
11.9 Each Co-Owner is responsible for
the reasonable cleanliness of the interior of the
yacht and to remove from it any personal
belongings at the end of a use period, unless other
arrangements had been made with Amanzi prior to
commencement of the use period.
12
Term of Agreement
This
Agreement shall commence on the Effective Date and
shall endure for a period of four years thereafter. At the end of the term of the Agreement, the yacht and any
other movable assets of the Company that are
integral to the yacht shall be sold by Amanzi at
market price and the net proceeds of the sale after
payment of all expenses relating to the sale, shall
be divided between the Co-Owners in proportion to
their fractional share holding in the Company.
The provisions contained in this clause may
be varied by unanimous agreement of all the parties.
13
Yacht Management
Amanzi undertakes and agrees for the duration
of this Agreement, to arrange for the Maintenance
(as defined) of the yacht and for the implementation
of the terms of this Agreement.
14
General
14.1 This
document embodies the entire agreement between the
parties relating to the matters dealt with herein
and no representation, warranty or undertaking was
made except as incorporated herein.
14.2 Save
as may be contained herein, this agreement is not
subject to any suspensive conditions either
preventing or postponing the coming into operation
hereof.
14.3 None
of the terms and conditions of this agreement is
capable of being waived, amended or deleted, unless
such waiver, amendment or deletion is reduced to
writing and signed by the parties hereto.
14.4 No
indulgence on the part of any party in exercising
any right conferred upon such party in terms of this
agreement shall constitute a waiver or novation of
any such right, nor shall any partial exercise of
any right preclude any other or future exercise
thereof or the exercise of any other right under
this agreement.
SIGNED at
this .........
day of
.
. 200
________________________
SCHEDULE
I
Reservation Policy
1
General
1.1
All reservations are conditional upon yacht
availability.
1.2
Reservations will only be honored provided
the Co- Owner account is in good standing with
Amanzi.
2
Time Allotment
2.1.
Each 1/12 share shall entitle the Co- Owner to
4weeks per year including a guarantee of
one week in the peak season.
3
Reservation Periods
3.1.
All reservations shall be a minimum of one
week and a maximum of two weeks continuous use.
3.2
All reservations shall have a restriction
that no Co- Owner shall be allowed to reserve more
than two weeks in any 30 day period.
The exception to this policy shall allow a Co- Owner
to book an additional week/s with no limitations if the
desired block period remains open two weeks prior
to the first day of the desired reservation. This
restriction is exempt from the Peak Season block.
3.3
A weekly reservation commences at 15:00 on a
Friday and
terminates at 08:00 the following Friday.
3.4
Interior cleaning responsibilities must be
completed by 08:00 on the return date to ensure the
yacht is available for preparation of subsequent
reservations.
4
Reservation Process
4.1
Only one individual reservation per Co- Owner
will be accepted in any 30 day period.
4.2
Reservations may be cancelled at any time
on-line or by telephoning the reservations office.
4.3
Co- Owners may exchange block reservations
belonging to other Co- Owners at their discretion.
Amanzi must be notified of any changes agreed upon
by both parties. This process may be facilitated by
Amanzi or by the individuals directly at their
discretion. The Manager of Amanzi shall be the final
authority for the change.
5
Peak Season
Peak Season is defined as the 12 week period
comprising the Western Cape provincial school
holidays for December/January of each year together
with an equal number of weeks on either side of the
school holidays, so as to make up 12 weeks.
5.2
The Peak Season bidding process will commence
on 1st April
and shall be completed no later than 30th April each year.
5.3
For the purposes of the bidding process the
number of weeks making up Peak Season will be divided
into blocks of equal periods amongst the number of
shares existing within the yacht.
5.4
The bidding process for Peak Season shall be
determined by a draw. All Co- Owners shall
participate in a draw proportionate to the number of
shares existing within the yacht. For example, 12
shares in a vessel, numbers 1-12 will be drawn. The
recipient of number 1 shall have first bid and
number 12 shall have the last bid in the process.
5.5
The Peak Season draw will apply for two
consecutive years. In the second year the numbered
order shall be reversed. For example, Co-Owner
drawing number 1 bid in first year becomes number 12
bid in second year. Co-Owner who drew number 2 bid
in first year will become number 11 bid in second
year. The person who drew number 3 becomes number 10 for second year
and so on. In the third year a new draw will
take place.
6
Amendments
6.1
The rules within this policy may be amended
by Amanzi at its discretion.
6.2
The rules within this policy may be amended
and initiated by a Co- Owner with the agreement of
all Co- Owners of a specific yacht. The final
authority of the change will rely on the approval of
Amanzi.
It is the intention of this document
to best accommodate and allot usage, to all Co-
Owners in a fair and equal manner.
SCHEDULE
II
GENERAL
RULES
The
following set of rules are necessary and beneficial
to all for the smooth operation of the Company.
Changes may be necessary from time to time, due to
the variable aspect of Co-Owners, their use of the
vessel and rules they would like to see adopted.
Also, Company operations will vary according to the
different types of equipment, needs, abilities and
desires of the respective Co-Owners.
1.
Co-Owners shall observe all existing
statutory and local laws and all provisions of this
Agreement.
2.
The vessel shall not be started up or depart
the slip without a competent operator at the
controls.
3.
The Co-Owner shall not leave the designated
navigational limits specified in the insurance
policy (if any).
4.
Use of the vessel for commercial purposes is
prohibited.
5.
A sailing plan must be filed for every outing
beyond 10 nautical miles from base and given to the
Amanzi office with emergency contact information
provided.
6.
Any Co-Owner whose account is in arrears 30
days or more shall be prohibited from use of the
vessel until the outstanding bill is paid in full.
7.
Any Member involved in an
"in-motion" type accident, collision, or
cited for "boating under the influence" of
alcohol or drugs shall be immediately suspended from
any additional cruises pending a hearing by the
majority of the remaining Co-Owners and Amanzi.
8.
The vessel shall be operated under the
manufacturer's guidelines as per the Owner's Manual.
In the event of an engine or generator overheating
or loss of oil pressure problem, the engine will
immediately be shut down.
9.
It is the responsibility of the Co-Owner
using the vessel to make
pre-check safety inspection of the vessel prior to
each use, provide proof of re-fueling receipt and
report any malfunctions in the vessel's maintenance
log. The vessel must be secured properly in its slip
to prevent damage and the vessel locked.
10.
Every Co-Owner shall leave the vessel in a
reasonably clean condition, including removal of all
food and trash. No smoking is allowed inside the
vessel.
11.
It is the Co-Owners responsibility to notify
Amanzi in the event of an unexpected delay in
itinerary.
12.
The Co-Owner will arrange the safe
re-delivery of the vessel to it's designated home
port in the event that bad weather or mechanical
malfunction requires it to be left elsewhere than
its home port.
13.
Upon withdrawal from the Company, all keys to
the vessel must be returned immediately.
14.
A violation of any of these rules by a
Co-Owner renders him liable to either a temporary
suspension of use, monetary damages, or any or all
of the above.
15.
Each Co-Owner will be issued a key to the
vessel and a key to the marina gate. The cost of
replacing any lost keys shall be borne by the
Co-Owner losing the key.
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