1.1 In this Agreement, unless the context requires otherwise:
(1) Aggregated Investment Amount means the amount of capital to be collected from a Client (or various Clients in aggregate) during the Collection Period before SV Capital will acquire Livestock;
(2) Agreement means this Livestock Investment Agency Agreement consisting of these terms and conditions as read together with the Application Form;
(3) Application Form means the application form as contained on the Website, setting out the contact details of the Client and the Investment Amount;
(4) Client means the Client as indicated on an Application Form;
(5) Client Participation Ratio means the percentage that a Client’s Investment Amount constitutes of a particular Aggregated Investment Amount;
(6) Collection Period means the period as indicated on the Website from time to time, during which SV Capital shall collect Investment Amounts for purposes of making up the Aggregated Investment Amount;
(7) Investment Amount means the amount to be invested by a Client as set out in the Application Form;
(8) Investment Application means the application by various Clients to invest individual Investment Amounts;
(9) Investment Date has the meaning as defined in clause 4.1(2);
(10) Investment Period means a period of 12 months as from the Investment Date, or as otherwise agreed between SV Capital and the Client;
(11) Livestock means the relevant livestock to be acquired with the Aggregated Investment Amount as requested in the Application Form;
(12) Livestock Seller means the person or entity from whom SV Capital shall acquire Livestock with the Aggregated Investment Amount and who will be mandated to perform the farming services described in clause 7.1;
(13) Mandated Services means those services to be performed by SV Capital as duly authorised agent of the Client for purposes of the Agreement, including, without limitation:
(a) to acquire and dispose of Livestock and to employ reasonable endeavours to obtain the best available market prices for these purposes;
(b) to receive Investment Amounts from a Client as collecting agent of such Client;
(c) to pay Investment Amounts on behalf of a Client as paying agent of such Client;
(d) enter into negotiations with the Livestock Seller and pay amounts owing to the Livestock Seller for purposes of clause 7; and
(e) all other services and functions as contemplated in this Agreement;
(14) Parties means SV Capital and the Client or either one of them as the context requires;
(15) SV Capital means SV Capital Proprietary Limited (Registration number 2017/194453/07), a company incorporated in accordance with the laws of South Africa;
(16) SV Capital Account means the SV Capital account into which a Client will pay the Investment Amount, the details of which will be informed to Clients from time to time;
(17) Threshold Return means a return equal to 20% (twenty percent) of the Investment Amount calculated over the Investment Period;
(18) Website means the internet site at the following URL address www.svcapital.co.za; and
2.1 The Parties wish to enter into this Agreement in terms of which SV Capital will be appointed and act as the duly authorised agent of the Client in performing the Mandated Services.
2.2 The Client agrees that the Mandated Services will be performed on the basis and subject to the conditions as set out in this Agreement.
3.1 Clients may access the Mandated Services through completing the required Application Form on the Website.
3.2 SV Capital may in its absolute discretion accept or reject a Client’s application. Should an application be accepted, these Terms and Conditions shall apply between the Parties.
4 Mandated Services
4.1 At the end of each Collection Period, SV Capital will perform the following as duly authorised agent of the Client:
(1) SV Capital will receive the Investment Amount into the SV Capital Account as collecting agent of the Client. SV Capital will receive such amount for on‑payment to the relevant Livestock Seller as consideration for the sale transaction described in 4.1(2) below and at no time will SV Capital become entitled to the Investment Amount for its own benefit;
(2) SV Capital will, as agent of the relevant Clients having contributed the Aggregated Investment Amount, acquire the Livestock (at the prevailing market prices at the time of purchase) as soon as reasonably practicable following receipt of the funds described in clause (1) above (Investment Date). SV Capital will use its best endeavours to acquire the Livestock at the best available market related prices, but will not be obliged to acquire Livestock at any particular price;
(3) upon the acquisition of Livestock as described in paragraph 4.1(2) above, each Client having contributed to an Aggregated Investment Amount will become co‑owners (in the Client Participation Ratio) of the relevant Livestock acquired. For the avoidance of doubt, it is confirmed that SV Capital is merely acting as facilitator and agent in respect of the acquisition and sale of Livestock and does not obtain any ownership interest in respect of the Livestock;
(4) at the end of each Investment Period, SV Capital is authorised to sell the relevant Livestock as agent of the Client at prevailing market prices. Upon such sale the Client will be entitled to such share of the sale proceeds as is equal to its Client Participation Ratio;
(5) a Client is not entitled to dispose of its interest in any Livestock acquired pursuant to clause 4.1(2) before the end of an Investment Period. The Client authorises SV Capital to enter into a reinvestment agreement (Reinvestment Agreement) with the Livestock Seller in terms of which the Livestock Seller will be permitted, as agent of the Client, to sell and reinvest the relevant Livestock (and Aggregate Investment Amount received pursuant to any such sale) quarterly during the Investment Period. Such reinvestment will entail the Livestock Seller selling the Livestock and reacquiring Livestock each quarter at prevailing market prices. The Reinvestment Agreement is designed to maximise investment returns for the Client during the annual Investment Period;
(6) any amounts received by SV Capital pursuant to any sale of Livestock on behalf of a Client at the end of the Investment Period will be received in the SV Capital Account as collecting agent of the Client and be on‑paid to the Client’s account as nominated in the Application Form (Client Account).
5 Capacity and rights of ownership
5.1 SV Capital is hereby authorised to perform all Mandated Services as duly authorised agent of the Client.
5.2 All Livestock acquired pursuant to the Mandated Services will become the property of the Client (on a joint ownership basis with all other Clients having contributed to a specific Aggregated Investment Amount in a percentage equal to the Client Participation Ratio).
5.3 SV Capital is only authorised to perform the Mandated Services as agent and will not obtain any proprietary interest in the Livestock.
6.1 SV Capital is entitled to be paid for the provision of the Mandated Services as follows:
(1) A service fee up to a maximum of 4.5% of the Investment Amount and must be paid at the end of each cycle of the annual Investment Period. The service fee applicable to any cycle will be disclosed to the Client in a report in accordance with clause 10 below. The amount of any service fee may vary depending on the investment return generated during such periods, the size of the relevant Investment Amount and the operating expenses applicable to that period (including marketing, legal, reporting and management costs). SV Capital will also charge a daily standing admin fee of R1 per animal per day.
(2) any interest earned on the Investment Amount while maintained in an SV Capital Account pursuant to providing the Mandated Services.
(3) A transaction fee of 3.0% will be levied per investment made through SV Capital’s platform. Payments are facilitated via a third-party payment gate.; Transaction fee is charged on the investor’s total investment value.
6.2 At the end of the Investment Period, SV Capital will be entitled to retain 20% of the investment return in excess of the Threshold Return (20% of which will be on paid to the Investment Partner). This means that at the end of the Investment Period, the Client will only receive 80% of any return above the Threshold Return.
6.3 The fees described under clause 6.1(1) must be paid at the end of each cycle of the Investment Period. For the avoidance of doubt it is confirmed and agreed that the payment of the fee described in this clause 6 will be deducted from amounts reinvested pursuant to the Reinvestment Agreement each quarter and from the sale proceeds of the Livestock payable to the Client at the end of the Investment Period as provided for in clause 4.1(4) above. By way of example (assuming SV Capital’s aggregate fee is R3), if the Client has R100 of investment return payable, SV Capital will first deduct its fee of R3 and then only R97 will be paid to Client at the end of the Investment Period.
7 Farming Services
7.1 As part of the Mandated Services, SV Capital is authorised to appoint the Livestock Seller to perform the following services for and on behalf of the Client:
(1) farm rental in historically productive livestock areas within South Africa, vaccinations, veterinarian services, fee, security, fencing, herdsmen and management;
(2) the maintenance of the Livestock in a good and healthy condition in a farm operated by the Livestock Seller;
(3) the branding of the Livestock, recording its possession to SV Capital;
(4) conducting an ongoing authenticity audit of ownership of the Livestock in favour of the Client by a reputable firm of auditors; and
(5) the provision of quarantine facilities when necessary, in the event that the Livestock fall ill.
7.2 The Client authorises SV Capital to pay the Livestock Seller market related fees for the services provided. The fees will be invoiced upon the initial acquisition of the Livestock pursuant to clause 4.1(2) above and will reduce the Investment Amount actually used by SV Capital to acquire Livestock and consequently the Client Participation Ratio.
8.1 The Client undertakes to not dispose of the Livestock or use the Livestock as any form of Collateral without first obtaining the prior written approval of SV Capital.
8.2 The Client undertakes that any action in relation to the Livestock will only be effected through the agency of SV Capital as part of the Mandated Services.
The Client will indemnify SV Capital against any loss, cost, damages, expense or liability arising from, or in connection with, the performance by SV Capital of its obligations under this Agreement unless caused by the gross negligence of SV Capital.
This clause means that the Client will have no claim against SV Capital for any losses caused by SV Capital unless SV Capital is grossly negligent. The Client is also responsible under this clause to pay for any third party’s losses arising out of SV Capital’s performance of its obligations under this Agreement on your behalf.
10.1 SV Capital will provide the Client with a report immediately following the initial acquisition of Livestock pursuant to clause 4.1(2) above, indicating:
(1) the Livestock acquired;
(2) the Client Participation Ratio applicable to the Client in respect of such investment; and
(3) the actual cost of the Livestock acquired in respect of the Client Participation Ratio
10.2 SV Capital will further provide the Client with quarterly reports during the Investment Period indicating:
(1) the investment performance during such quarter; and
(2) fees payable in respect of such quarter.
10.3 At the conclusion of the Investment Period, SV Capital will provide investors with a statement reflecting the Investment Amount, all investment returns, fees and the final investment return amount payable to the Client.
11.1 Should either Party (Defaulting Party) breach any of the provisions of this Agreement, then the other Party (Aggrieved Party) may give the Defaulting Party ten Business days’ written notice or such longer period of time as the Aggrieved Party may specify in the notice, to remedy the breach. If the Defaulting Party fails to comply with the notice, the Aggrieved Party may:
(1) claim immediate payment and/or performance by the Defaulting Party of all of the Defaulting Party’s obligations that are due for performance; or
(2) subject to clause 11.2, cancel this Agreement on written notice to the Defaulting Party where the breach constitutes a material breach,
in either event without prejudice to the Aggrieved Party’s right to claim damages or to exercise any other rights that the Aggrieved Party may have under this Agreement or in law.
11.2 Neither Party can cancel this Agreement subsequent to the Investment Date.
11.3 Any cancellation is without prejudice to any claim that a Party may have in respect of any breach of the terms and conditions of this Agreement by the other Party arising prior to the date of cancellation.
11.4 Should any cancellation occur prior to the end of an Investment Period, the provision of clause 4.1(5) shall apply.
12.1 This Agreement is the whole agreement between the Parties in regard to its subject matter.
12.2 No amendment, addition to or variation or consensual cancellation or termination of this Agreement, including this clause, has effect unless in writing and signed by the Parties.
12.3 No indulgence by a Party to another Party, or failure strictly to enforce the terms of this Agreement, will be interpreted as a waiver or be capable of founding an estoppel.
12.4 The Parties undertake to do everything reasonable in their power necessary for or incidental to the effectiveness and performance of this Agreement.
12.5 Neither Party is entitled to cede or transfer any of its rights or delegate or subcontract any of its obligations under this Agreement without the prior written consent of the other Party affected by the cession, delegation, subcontracting or transfer of the relevant rights and/or obligations.
12.6 Any illegal or unenforceable provision of this Agreement may be severed and the remaining provisions of this Agreement shall continue in force.
13 Notices and addresses
Any notice, consent, approval or other communication in connection with this Agreement (Notice) will be in writing in English.
(1) Each Party chooses the physical address, as set out in the Application Form.
(2) Either Party may by Notice to the other Party change its address and/or the person, if any, for whose attention any Notice must be marked in clause 13.2(1).
13.3 Effective on receipt
(1) Any Notice takes effect when received by the recipient (or on any later date specified in the Notice) and, unless the contrary is proved, is deemed to be received:
(a) on the day of delivery, if delivered by hand to a responsible person at the recipient’s physical address in clause 13.2. If delivery is not on a Business Day, or is after ordinary business hours (being 9am to 5pm Johannesburg time) on a Business Day, the Notice is deemed to be received on the Business Day after the date of delivery; and
(b) on the first Business Day after the date of transmission, if sent by email to the recipient’s email address in clause 13.2.
(2) Despite anything to the contrary in this Agreement, a Notice actually received by a Party is effective vis‑à‑vis that Party even though it was not sent, or delivered, or sent and delivered to its address in clause 13.2.
13.4 Service of legal process
(1) Each Party chooses its physical address referred to in clause 13.2(1) as its address at which legal process and other documents in legal proceedings in connection with this Agreement may be served (domicilium citandi et executandi).
(2) Any Party may by Notice to the other Party change its address at which legal process and other documents in legal proceedings in connection with this Agreement may be served to another physical address in South Africa.
14 Applicable law
This Agreement is governed by the laws of South Africa.
15.1 Each Party shall treat as strictly confidential all information received or obtained as a result of entering into or performing its obligations under this Agreement which relates to:
(1) the provisions of this Agreement;
(2) the negotiations relating to this Agreement;
(3) the subject matter of this Agreement; and/or
(4) the other Party,
(the Confidential Information).
15.2 A Party may disclose Confidential Information if and to the extent:
(1) required by law, regulation or statute or order of court or arbitral tribunal of competent jurisdiction;
(2) required by any securities exchange or regulatory or governmental body to which either Party is subject, wherever situated, whether or not the requirement for information has the force of law;
(3) required to vest the full benefit of this Agreement and in either Party;
(4) disclosed to the professional advisers, auditors and bankers of each Party;
(5) the information has come into the public domain through no fault of that Party; and/or
(6) the Party to whom the information relates has given prior written approval to the disclosure,
provided that any Confidential Information so disclosed shall be disclosed only after notification to the Party to whom the Confidential Information relates, save where such disclosure is precluded by applicable laws.
The Parties unconditionally consent and submit to the non-exclusive jurisdiction of the High Court of South Arica, Gauteng Local Division, Johannesburg in regard to all matters arising from this Agreement.
17.1 Each Party shall pay its own costs incurred by it for the preparation, signing and performance of this Agreement.
17.2 Any costs, including all legal costs on an attorney and own client basis and VAT, incurred by a Party arising out of or in connection with a breach by the other Party shall be borne by the Party in breach.
18 Binding effect
This Agreement will become binding between the Parties upon the Client executing (and SV Capital accepting) an Application Form.