|
|
|
|
|
|
|
| Exhibit 10.30 |
| |
|
Exchanged. . . . . . . . . . . . . .
.. . . . . . . . . .
a.m./p.m. |
| |
|
on |
| |
|
Law Society Formula |
| |
|
by |
| |
|
of
Xxxxx Day for the Seller |
| |
|
and |
| |
|
of |
| |
|
for the
Buyer |
|
|
|
|
|
|
|
|
| DATED |
|
2005 |
| (1) |
|
PILLAR PROPERTY
GROUP LIMITED |
| (2) |
|
XXXXXXXXX & CO.
INTERNATIONAL LLP |
| (3) |
|
XXXXXXXXX & CO.
INC |
| (4) |
|
UNION PROPERTY HOLDINGS (LONDON)
LIMITED |
|
AGREEMENT
for the sale of
0xx Xxxxx, Xxxxxxxxx
Xxxxx, Xxxxxxxx Xxxxxx, Xxxxxx X0
E-1
CONTENTS
|
|
|
|
|
|
|
|
|
|
|
| Clause |
|
Page |
| 1. |
|
INTERPRETATION |
|
|
3 |
|
| 2. |
|
AGREEMENT FOR SALE |
|
|
4 |
|
| 3. |
|
PAYMENTS |
|
|
4 |
|
| 4. |
|
COMPLETION |
|
|
5 |
|
| 5. |
|
MATTERS AFFECTING THE
PROPERTY |
|
|
6 |
|
| 6. |
|
TITLE AND
TITLE GUARANTEE |
|
|
7 |
|
| 7. |
|
REVERSIONER’S CONSENT |
|
|
7 |
|
| 8. |
|
STANDARD CONDITIONS |
|
|
8 |
|
| 9. |
|
APPORTIONMENT OF
RENT |
|
|
9 |
|
| 10. |
|
ARREARS |
|
|
10 |
|
| 11. |
|
INSURANCE |
|
|
11 |
|
| 12. |
|
MANAGEMENT UNTIL
COMPLETION |
|
|
11 |
|
| 13. |
|
LETTING DOCUMENTS SERVICE CHARGE |
|
|
12 |
|
| 14. |
|
HEADLEASES
SERVICE CHARGE |
|
|
12 |
|
| 15. |
|
WARRANTIES |
|
|
13 |
|
| 16. |
|
CAPITAL ALLOWANCES |
|
|
13 |
|
| 17. |
|
CONTRIBUTION
PAYMENT |
|
|
13 |
|
| 18. |
|
PERSONAL
AGREEMENT |
|
|
13 |
|
| 19. |
|
XXXXXX XXXXXX LEASE |
|
|
13 |
|
| 20. |
|
AGREEMENT BY
SELLER'S
XXXXXXXXX |
|
|
00 |
|
| 00. |
|
REPRESENTATIONS |
|
|
15 |
|
| 22. |
|
NOTICES |
|
|
15 |
|
| 23. |
|
SEVERANCE |
|
|
15 |
|
| 24. |
|
NON-MERGER |
|
|
15 |
|
| |
|
SCHEDULE 1 The
Property |
|
|
|
|
| |
|
SCHEDULE
2 The Headleases |
|
|
|
|
| |
|
SCHEDULE 3 The Letting Documents |
|
|
|
|
| |
|
SCHEDULE 4 The
Title Documents |
|
|
|
|
|
E-2
|
|
| (1) |
PILLAR
PROPERTY GROUP LIMITED (Company Number 02570618) whose registered
office is at 00 Xxxxxxxx Xxxxxxx, Xxxxxx'x Xxxx, Xxxxxx XX0 0XX
(the ‘‘Seller’’) |
|
|
| (2) |
XXXXXXXXX & CO. INTERNATIONAL
LLP (Company Number OC300796) whose registered office is at
Eversheds House, 00 Xxxxx Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx X0 0XX (the
‘‘Buyer’’) |
|
|
| (3) |
XXXXXXXXX & CO. INC
(Delaware Company Number 3775042) whose registered office is at 000
Xxxx Xxxxxx, 00 Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(‘‘Buyer's Guarantor’’) |
|
|
| (4) |
UNION PROPERTY HOLDINGS (LONDON)
LIMITED ] (Company Number 00423829) whose registered office is
at 00 Xxxxxxxx Xxxxxxx, Xxxxxx'x Xxxx, Xxxxxx XX0 0XX
(‘‘Seller's
Guarantor’’) |
OPERATIVE
PROVISIONS
|
|
| 1. |
INTERPRETATION |
|
|
| 1.1 |
In this agreement unless the context
otherwise requires: |
‘‘Actual
Completion Date’’ means the date on which the sale
and purchase hereby contemplated is actually completed.
‘‘Contract Rate’’
means the Law Society’s interest rate from time to time in
force.
‘‘Contribution
Payment’’ means the sum of five hundred and
nineteen thousand three hundred and twenty pounds (£519,320).
‘‘Completion Date’’
means 20 January 2005 or such other date as is provided by clause
7.3 (Reversioner's Consent).
‘‘Headleases’’ means
the leases and ancillary documents relating to the Property, brief
details of which are set out in Schedule 2.
‘‘Letting
Documents’’ means the lease, ancillary documents
recording the terms of the tenancy and affecting the Property brief
details of which are set out in Schedule 3 or which are entered into
after the date hereof in accordance with the terms of this agreement. A
reference to a Letting Document includes a reference to any statutory
continuation of a tenancy recorded by the Letting Document.
‘‘party’’ means a
party to this agreement.
‘‘Property’’ means
the property described in Schedule 1.
‘‘Purchase Price’’
means one pound (£1).
‘‘Seller's
Solicitors’’ means Messrs Xxxxx Day of 00 Xxxxx
Xxxxxx Xxxxxx XX0X 0XX (ref: AEM/JP004881).
‘‘Standard
Conditions’’ means the Standard Commercial Property
Conditions (1st Edition).
‘‘Tenant’’ means a
tenant or licensee under a Letting Document on whose term or licence
the Seller’s interest in the Property is immediately
expectant.
‘‘Title
Documents’’ means the documents or parts of
documents (other than the Letting Documents and the Charges) noted on
the registers of the title to the Property and the documents brief
details of which are set out in Schedule 4.
‘‘Transfer’’ means
the transfer, conveyance or assignment of the Property by the
Seller.
‘‘VAT’’ means
value added tax and any similar tax which is from time to time
introduced in substitution for or in addition to such tax.
E-3
‘‘VATA
1994’’ means Value Added Tax Xxx 0000.
|
|
| 1.2 |
In this agreement unless the context
otherwise requires: |
|
|
| 1.2.1 |
Any
reference to the Vendor or the Purchaser shall be treated as a
reference to the Seller or the Buyer respectively. |
|
|
| 1.2.2 |
Expressions defined in the Standard
Conditions bear the same meaning in this agreement. |
|
|
| 1.2.3 |
References to a clause or Schedule
or Annexure are respectively to a clause of or Schedule or Annexure to
this agreement. |
|
|
| 1.2.4 |
A reference to
any statute or statutory instrument is to that statute or statutory
instrument as consolidated, amended or re-enacted from time to time and
includes every instrument, order, direction, regulation, bye-law,
consent, permission, condition, scheme or subordinate legislation made
under it. |
|
|
| 1.3 |
Clause headings and the
index are for convenience only and shall not affect the interpretation
of this agreement. |
|
|
| 1.4 |
This agreement
including its Schedules and Annexures and documents referred to herein
and the Standard Conditions (as hereby varied) contains the whole
agreement between the parties relating to the sale and purchase hereby
contemplated and supersedes any previous agreements between them
relating thereto. |
|
|
| 1.5 |
The ejusdem
generis rule of construction shall not apply to this agreement and
accordingly general words shall not be given a restrictive meaning by
reason of their being preceded or followed by words indicating a
particular class or examples of acts matters or things. |
|
|
| 1.6 |
This agreement may only be varied in
writing. |
|
|
| 2. |
AGREEMENT FOR SALE |
|
|
| 2.1 |
The Seller shall sell and the Buyer
shall purchase the Property for the Purchase Price subject to and on
the terms of this agreement. |
|
|
| 2.2 |
Except as expressly provided in this
agreement, no chattels are included in the sale. |
|
|
| 3. |
PAYMENTS |
|
|
| 3.1 |
Deposit |
No
deposit is payable.
|
|
| 3.2 |
Value Added
Tax |
|
|
| 3.2.1 |
All sums payable under
this agreement are exclusive of VAT and wherever this agreement
provides for a sum to be paid in respect of a supply made under this
agreement the party responsible for making the payment shall pay in
addition and at the same time the VAT chargeable thereon but subject to
provision of a valid VAT invoice. |
|
|
| 3.2.2 |
Where under the terms of this
agreement a party (‘‘the indemnifying
party’’) is required to reimburse another party for, or
indemnify that other party against, costs or expenses of any supplies
made to that other party, the indemnifying party shall also reimburse
to that other party, or indemnify that other party against, all input
tax incurred by that other party in respect of such supplies save to
the extent that that other party is entitled to repayment or credit in
respect of such input tax. |
|
|
| 3.3 |
Interest |
If any
amount payable under this agreement is paid after the due date then the
party responsible for payment shall in addition pay interest thereon in
respect of the period from (and including) the due date for payment to
(but excluding) the date of payment calculated, after as well as before
judgment, at the Contract Rate and compounded quarterly on the usual
quarter days.
E-4
|
|
| 3.4 |
Time of
Payment |
A remittance sent by telegraphic or other
direct transfer shall be treated as being made on the date and at the
time when the particular branch of the bank to which it is sent
notifies the Seller’s Solicitors that it has been received.
|
|
| 4. |
COMPLETION |
|
|
| 4.1 |
Completion Date |
The sale and purchase shall be completed and payment by the
Buyer to the Seller of the Purchase Price shall take place on the
Completion Date.
|
|
| 4.2 |
Transfer |
|
|
| 4.2.1 |
The Transfer shall include: |
|
|
|
|
(a) |
Covenants by the Buyer and the
Buyer's Guarantor by way of indemnity only: |
|
|
|
|
(i) |
during the remainder of the term
granted by the Headleases and the period of any continuation or holding
over of such term, to pay the rents reserved by the Headleases and
comply with the conditions and tenant's obligations in the
Headleases; and |
|
|
|
|
(ii) |
to perform and
observe all the landlord’s obligations under the Letting
Documents and all obligations and matters (including personal covenants
and indemnity covenants) subject to which the Property is sold; |
and to indemnify the Seller against all actions, claims,
liabilities, losses, costs or expenses arising from any non-payment or
breach of such rents, conditions, obligations and matters;
|
|
|
|
(i) |
the Property is sold subject as
provided in this agreement; and |
|
|
|
|
(ii) |
the covenants implied by Sections 3
and 4 of the Law of Property (Miscellaneous Provisions) Xxx 0000 shall
not extend to any breach, or to the consequences of any breach, of the
tenant's obligations in the Headleases relating to the repair,
decoration, state and condition of the Property. |
|
|
| 4.2.2 |
The Buyer and the Buyer's
Guarantor shall on completion execute and deliver to the Seller a
duplicate of the Transfer. |
|
|
| 4.2.3 |
The
Buyer and the Buyer's Guarantor shall on completion deliver to the
Seller a legal opinion from a United States Attorney to be agreed and
in a form to be agreed by the Seller and the Buyer in respect of the
obligations of the Buyer's Guarantor contained in this Agreement
(both parties acting reasonably at all times). |
|
|
| 4.3 |
Late Completion |
|
|
| 4.3.1 |
If completion takes place on any day
other than a working day or after 1.00 p.m. on a working day then for
the purposes of making apportionments and payment of interest the
Actual Completion Date shall be deemed to be the next working day. |
|
|
| 4.3.2 |
If the Actual Completion Date is, or
is deemed to be, after the Completion Date then on completion the Buyer
will pay interest to the Seller on the Purchase Price (less any deposit
paid) in accordance with clause 3.3 (Interest) for the period from (and
including) the Completion Date to (but excluding) the Actual Completion
Date, but ignoring any period during which the delay was caused by a
default of the Seller. |
|
|
| 4.3.3 |
The
maximum aggregate liability of the Seller to the Buyer in respect of
any delay in completion shall not exceed a sum calculated at the
Contract Rate on the Purchase Price in respect of the period of
delay. |
E-5
|
|
| 4.4 |
Other
Completion Documents |
On Completion the Seller will
deliver to the Buyer the following documents:
|
|
| 4.4.1 |
A letter addressed to each Tenant
signed by the Seller or by the Seller's Solicitors authorising and
directing the Tenant to pay all future sums due under the relevant
Letting Document to the Buyer or as the Buyer may direct. |
|
|
| 4.4.2 |
The Health and Safety Files relating
to the Property, except those which relate to works carried out by
tenants, undertenants or licensees. |
|
|
| 4.5 |
Registration |
The Buyer will register the Transfer at The Land Registry
as soon as reasonably possible after the Actual Completion Date and
immediately upon being notified of completion of the registration will
supply to the Seller’s Solicitors an official copy (issued after
completion of the registration) of the register of the Buyer’s
title.
|
|
| 5. |
MATTERS AFFECTING THE
PROPERTY |
|
|
| 5.1 |
The Property is sold
subject to the rents, conditions and tenant's obligations
contained or referred to in the Headleases. |
|
|
| 5.2 |
The Property is sold subject to and
(so far as the Seller can assign them and subject to the provisions of
this agreement) with the benefit of the Letting Documents and interests
deriving from the Letting Documents, so far as they are still
subsisting on completion. |
|
|
| 5.3 |
The
Property is sold subject, so far as they are still subsisting on
completion, to all other matters referred to in the registers of the
title to the Property, the other Title Documents and any other matter
entered into in accordance with this agreement or with the written
consent of the Buyer. |
|
|
| 5.4 |
The Property
is also sold subject to: |
|
|
| 5.4.1 |
all
local land charges (whether registered or not before the date hereof)
and all matters capable of registration as local land charges. |
|
|
| 5.4.2 |
all notices charges orders
resolutions demands plans proposals requirements restrictions
agreements conditions directions or other matters whatsoever served or
made before or after the date hereof by any body acting on statutory
authority. |
|
|
| 5.4.3 |
all matters (except
for the Charges) referred to before the date of this agreement in any
public register. |
|
|
| 5.4.4 |
all notices
served by the owner or occupier of any adjoining or neighbouring
property. |
|
|
| 5.4.5 |
(whether or not the
title is registered at H.M. Land Registry) all such matters as are
referred to in Schedule 1 and/or Schedule 3 of the Land Registration
Act 2002 (as such Schedules take effect by virtue of the provisions of
sections 90(5) and 134 and Schedule 12 of that Act and the Land
Registration Xxx 0000 (Transitional Provisions) (No.2) Order 2003). |
|
|
| 5.5 |
The Buyer has investigated, and will
purchase the Property subject to, and will be deemed to have full
knowledge and notice of, and shall not be entitled to require any
information or to raise any requisitions in regard to (i) the present
use and the authorised use of the Property, (ii) any development,
operations or works which may have been carried out to or on the
Property, or (iii) any contravention of the Town and Country Planning
Xxx 0000, the Planning (Listed Buildings and Conservation Areas) Xxx
0000, the Planning Consequential Provisions) Xxx 0000, the Planning
(Hazardous Substances) Xxx 0000 and the Planning and Compensation Xxx
0000. |
E-6
|
|
| 6. |
TITLE AND TITLE
GUARANTEE |
|
|
| 6.1 |
The Seller’s
title to the Property has been deduced to the Buyer before the date of
this agreement, including copies of the registers and title plan of the
Property maintained at H.M. Land Registry, of the Headleases, of any
superior lease, of the Title Documents and of the Letting Documents.
The Buyer shall be deemed to purchase with full knowledge of the
Seller’s title, of the terms and contents of such documents and
of any matter referred to in them and will raise no requisition in
relation thereto. |
|
|
| 6.2 |
Subject as
provided in this agreement, the Seller shall transfer the Property with
full title guarantee. |
|
|
| 7. |
REVERSIONER’S CONSENT |
|
|
| 7.1 |
In this clause 7: |
‘‘Acceptable
Condition’’ means a requirement imposed by a
Reversioner in connection with, or as a condition of, the
Reversioner’s consent and which either:
|
|
|
|
(a) |
is lawfully or reasonably imposed
(but excluding any requirement for a rent deposit or a bank guarantee);
or |
|
|
|
|
(b) |
is not objected to by the
party by which it must be fulfilled, any such objection to be made in
writing within five working days of that party being notified of the
requirement. |
‘‘Court
Declaration’’ means a Judgment or Order of a
competent court that the Reversioner’s consent to the Transfer
is being unreasonably withheld or is being offered subject to
unreasonable conditions.
‘‘Pre-Completion
Time’’ means 9.30 a.m. on 20 January 2006
(disregarding clause 7.3).
‘‘Qualifying
Consent’’ means written consent of the Reversioner
which is or has become unconditional except for Acceptable
Conditions.
‘‘Rescission
Date’’ means 28 April 2006.
‘‘Reversioner’’
means the landlord(s) under the Headleases and includes any superior
landlord or other person whose consent is required to the Transfer.
|
|
| 7.2 |
If the consent of the Reversioner is
required to the Transfer, then completion of this agreement is
conditional upon Qualifying Consent to the Transfer or a Court
Declaration being first obtained. |
|
|
| 7.3 |
If Qualifying Consent to the Transfer
or a Court Declaration has not been obtained by the Pre-Completion
Time, then the Completion Date will be five working days after the date
when the Buyer (or, if later, the Seller) is notified of the grant of
Qualifying Consent to the Transfer or, if earlier, of the making of a
Court Declaration. |
|
|
| 7.4 |
The Buyer will
promptly: |
|
|
| 7.4.1 |
take reasonable steps
to assist the Seller in obtaining Qualifying Consent to the
Transfer; |
|
|
| 7.4.2 |
provide the Seller
with all references, information and accounts which the Reversioner
reasonably requires; |
|
|
| 7.4.3 |
provide
such guarantees from the Buyer's Guarantor as the Reversioner
requires along with a foreign legal opinion (if requested by the
Reversioner) and comply with any other Acceptable Conditions (not being
conditions to be complied with by the Seller); and |
|
|
| 7.4.4 |
enter into such covenants as the
Reversioner reasonably requires, including a covenant with the
Reversioner to observe and perform the tenant's covenants and
conditions of the Headleases. |
E-7
|
|
| 7.5 |
The Seller
will use its reasonable endeavours to obtain with all reasonable speed
Qualifying Consent to the Transfer, including paying the
Reversioner’s reasonable costs of the licence and related
documents and entering into an authorised guarantee agreement where
required to do so by the Reversioner in respect of a Headlease entered
into after 31 December 1995, but the Seller shall not be required
to issue proceedings for a Court Declaration. |
|
|
| 7.6 |
If Qualifying Consent to the Transfer
has not been obtained before the Rescission Date, then either the Buyer
or the Seller may, at any time on or after the Rescission Date (but
before Qualifying Consent to the Transfer or a Court Declaration is
obtained), rescind this agreement by giving written notice to the
other, except that no notice of rescission may be given by a party
which is in default of its obligations under this clause 7 for so long
as that default is a cause of Qualifying Consent being withheld. |
|
|
| 8. |
STANDARD CONDITIONS |
|
|
| 8.1 |
This agreement incorporates the
Standard Conditions as varied by this agreement. Where there is a
conflict between the Standard Conditions and this agreement this
agreement prevails. |
|
|
| 8.2 |
Standards
Conditions 3.3.3, 3.3.4, 3.3.5, 3.3.6, 4.1.1, 4.2.1, 4.3.2, 4.5.2,
4.5.5, 5.1.1(b), 5.2.2(d), 6.3.7, 6.3.8, 6.3.9, 7.3 and 8.3 do not
apply. |
|
|
| 8.3 |
Standard Condition 1.1.1(b)
is amended to read, ‘‘‘‘clearing
bank’’ means a corporate member of CHAPS Clearing Company
Limited’’. |
|
|
| 8.4 |
In Standard
Condition 1.1.1(b) the word ‘‘Company’’ shall
be inserted before the word ‘‘Limited’’ and at
the end of Standard Condition 1.1.1(e) the words ‘‘or at
the seller's solicitor's bank’’ shall be
inserted. |
|
|
| 8.5 |
Standard Condition 1.1.2
is amended to read, ‘‘When used in these conditions, the
term ‘‘absolute title’’ has the special meaning
given to it by the Land Registration Xxx 0000, and the term
‘‘office copies’’ means ‘‘official
copies’’ under that Act. |
|
|
| 8.6 |
In Standard Condition 1.3.2 the words
‘‘quoting any reference set out in this
agreement’’ shall be inserted after the words
‘‘to a party's solicitor’’. |
|
|
| 8.7 |
In Standard Condition 3.1.2(d) the
words ‘‘monetary charges or incumbrances’’
shall be deleted and shall be substituted by a reference to the
Charges. |
|
|
| 8.8 |
Standard Condition
5.2.2(f) shall be deleted and there shall be substituted the following:
‘‘The buyer is to comply with all statutory obligations
relating to the property and with all covenants and restrictions
affecting the property other than any covenant to pay
rent’’. |
|
|
| 8.9 |
In Standard
Condition 6.1.2 ‘‘1.00 p.m.’’ shall be
substituted for ‘‘2.00 p.m.’’ and the reference
to Condition 7.3 shall be substituted by a reference to clause 4.3 of
this agreement (Late Completion). |
|
|
| 8.10 |
In Standard Condition 6.3.1 the word
‘‘outgoings’’ includes estate service charges
and sums payable under contracts for services and maintenance. |
|
|
| 8.11 |
Standard Condition 6.3.2 shall be
deleted and apportionment under Standard Condition 6.3 is to be made
with effect from the Actual Completion Date. |
|
|
| 8.12 |
In Standard Condition 6.7 the words
‘‘from a solicitor's client account or from a bank
account held by and in the name of (i) a United Kingdom or European
Union financial or credit institution or (ii) a company listed on an
internationally recognised stock exchange’’ shall be
inserted after the words ‘‘direct credit’’. |
|
|
| 8.13 |
At the end of Standard Condition
6.8.2(b) the words ‘‘or if reasonable evidence is produced
to the Buyer that the property will on completion be released from all
such mortgages’’ shall be inserted. |
|
|
| 8.14 |
In Standard Condition 7.1.1 the words
‘‘any written reply made by the seller's solicitors in
answer to written preliminary enquiries submitted by the buyer's
solicitors’’ will be substituted for the words
‘‘the negotiations leading to it’’. |
E-8
|
|
| 8.15 |
In Standard
Condition 7.2(a) the words ‘‘unless the rescission is a
result of the buyer's breach’’ shall be substituted by
the words ‘‘unless the buyer is in breach of the
contract’’. |
|
|
| 8.16 |
In
Standard Condition 7.5.2(a)(i) the words ‘‘or other monies
paid under or in connection with the contract’’ shall be
inserted after the words ‘‘forfeit and keep any
deposit’’. |
|
|
| 9. |
APPORTIONMENT OF
RENT |
|
|
| 9.1 |
Apportionment of Rent
Under the Headleases |
|
|
| 9.1.1 |
The
rent due under the Headleases will be apportioned as at the Actual
Completion Date so that the Buyer pays to the Seller the amount
calculated as follows: |
A x B
365
Where:
|
|
|
|
A |
is the amount of annual rent reserved
under the Headleases at the rate applicable on the Actual Completion
Date; and |
|
|
|
|
B |
is the number of days
from, but excluding, the Actual Completion Date for which the Seller
has paid the rent in advance. |
|
|
| 9.1.2 |
If
any VAT charged on the rent due under the Headleases is irrecoverable
by the Seller by way of repayment or credit, such irrecoverable VAT
will be apportioned in the same way as the rent. |
|
|
| 9.1.3 |
The Seller and the Seller's
Guarantor agree with the Buyer that:- |
|
|
|
|
9.1.3.1 |
on the Actual Completion Date
the Buyer will not be required to make any payment to the Seller
pursuant to clause 9.1.1 hereto |
|
|
|
|
9.1.3.2 |
on the next rent quarter date
after completion pursuant to the Headleases (if that quarter rent is
demanded pursuant to the Headleases and evidence is provided to the
Seller) the Seller will pay to the Buyer the lesser of a (a)
£272,215.25 and (b) £453,593.75 less the amount of the
apportionment calculated under Clause 9.1.1 above and |
|
|
|
|
9.1.3.3 |
on the second rent quarter date
after completion (if that quarter rent is demanded pursuant to the
Headleases and evidence is provided to the Seller) the Seller will pay
to the Buyer the sum of £181,337.50 less the amount of the
apportionment calculated under clause 9.1.1 above but so that if the
product of such deduction is a negative figure then no sum shall be
payable. |
|
|
| 9.2 |
Apportionment of Rent
under the Letting Documents |
|
|
| 9.2.1 |
In this clause 9.2
‘‘Rent’’ means rent or licence
fee arising under a Letting Document but excluding service charges, VAT
and payments for insurance. |
|
|
| 9.2.2 |
Rent
shall be apportioned as at the Actual Completion Date so that in
respect of the Rent payable by each Tenant the Buyer shall be entitled
to the amount calculated as follows: |
A x
B
365
Where:
|
|
|
|
A |
is the annual Rent at the rate
applicable on the Actual Completion Date under the relevant Letting
Document and |
|
|
|
|
B |
is the number of days
from, but excluding, the Actual Completion Date to, but excluding, the
date when the next instalment of the Rent is due |
and
the Seller shall be entitled to the balance of the Rent received and
receivable prior to, and including, the Actual Completion Date.
E-9
|
|
| 9.2.3 |
On
completion there shall be allowed to the Buyer the amount calculated in
accordance with clause 9.2.2 of the Rents actually received and cleared
prior to the Actual Completion Date. |
|
|
| 10. |
ARREARS |
|
|
| 10.1 |
In this clause: |
‘‘Arrears’’ means
all amounts (whether in respect of rent, licence fee, service charge
(other than Advance Payments (as defined in clause 13 (Service
Charge)), insurance rent, interest, VAT or other sums of whatsoever
nature) receivable by the Seller under the Letting Documents and which
at the Actual Completion Date have fallen due but have not been
received and cleared.
‘‘Seller’s
Arrears’’ means the portion of the Arrears to which
the Seller is entitled pursuant to this agreement.
|
|
| 10.2 |
Neither the Buyer nor the Seller will
pay or allow to the other on completion any Arrears. |
|
|
| 10.3 |
Monies received under, or in
satisfaction of any amount due under, any Letting Document, whether or
not in respect of Arrears, will, as between the Seller and the Buyer,
be applied first in satisfaction of the Arrears under that Letting
Document in the order in which they became due. |
|
|
| 10.4 |
If one party receives any sum to which
(or to part of which) another party is entitled under clause 10.3 or
otherwise under this agreement, then the party which receives the sum
shall, within 5 working days of the sum having cleared, pay to the
other party the amount to which the other party is entitled. |
|
|
| 10.5 |
The Seller will, on completion, assign
to the Buyer the Seller’s rights of action to recover Arrears
which arose under new tenancies for the purposes of the Landlord and
Tenant (Covenants) Xxx 0000 and the Buyer will following completion use
reasonable endeavours to recover the Seller’s Arrears. |
|
|
| 10.6 |
If reasonably requested by the Seller,
the Buyer shall at the Seller’s cost institute and pursue legal
proceedings for the recovery of the Seller’s Arrears, but the
Buyer shall not be required to forfeit any lease or present any
petition for bankruptcy or winding up and the Buyer may, on reasonable
grounds, decline to serve a notice under Section 17 of the Landlord and
Tenant (Covenants) Xxx 0000 ("Section
17’’) and notwithstanding clause 10.3 the amounts so
recovered will be applied first in reimbursement of the costs of such
proceedings. |
|
|
| 10.7 |
The Buyer shall keep
the Seller fully informed of the progress made in the recovery of the
Seller’s Arrears, consult with the Seller as to proposed actions
and pay proper regard to any representations made by the Seller. |
|
|
| 10.8 |
If at any time after completion the
Seller by written notice to the Buyer so requires, the Buyer shall
assign to the Seller (in a form reasonably required by the Seller) the
right to demand and xxx for the whole or any part of the
Seller’s Arrears, but such assignment shall not entitle the
Seller to forfeit any lease, present any petition for bankruptcy or
winding up, nor (except with the Buyer’s prior written consent,
which shall not be unreasonably withheld) serve any notice under
Section 17. On completion of such assignment the obligations of the
Buyer under clause 10.6 shall cease in respect of the Seller’s
Arrears or the part of them to which the assignment relates, but the
Buyer shall not do anything which adversely affects the Seller’s
rights to, or prospects of recovery of, the Seller’s Arrears and
the Buyer shall at the Seller’s request and cost join in
proceedings to recover the Seller's Arrears. |
|
|
| 10.9 |
For the purpose of this clause 10, any
increase in rent pursuant to a rent review which has been agreed or
determined before the Actual Completion Date shall be deemed to have
fallen due on the respective rent payment dates on which it would have
fallen due if the reviewed rent had been determined before the relevant
review date. |
E-10
|
|
| 11. |
INSURANCE |
|
|
| 11.1 |
The risk of any damage to or
destruction of or affecting the Property passes to the Buyer on
exchange of this agreement and the Buyer shall not be entitled to delay
completion or refuse to complete by reason of it. |
|
|
| 11.2 |
The Seller will use reasonable
endeavours to ensure that the existing insurance relating to the
Property is maintained pursuant to the Headleases until the Actual
Completion Date, including renewing such insurance if it expires prior
to the Actual Completion Date, but the Seller will not be liable to the
Buyer if the insurance is or becomes void due to any reason other than
the act or default of the Seller. |
|
|
| 11.3 |
The Buyer has been supplied with a
copy of or details of the existing insurance policy relating to the
Property and the Seller gives no warranty as to the adequacy of the
sums insured, risks covered or other terms of its insurance. |
|
|
| 11.4 |
Standard Condition 6.3 shall not apply
to insurance premiums or insurance rent. |
|
|
| 12. |
MANAGEMENT UNTIL COMPLETION |
|
|
| 12.1 |
The Seller shall not in respect of the
Property or any part of it without the prior approval of the Buyer
(such approval not to be unreasonably withheld and to be deemed given
as mentioned in clause 12.2): |
|
|
| 12.1.1 |
grant or terminate any tenancy; |
|
|
| 12.1.2 |
give any licence, consent or
approval under or in relation to any Letting Document or vary any
Letting Document; |
|
|
| 12.1.3 |
agree to do
any of the foregoing; |
|
|
| 12.1.4 |
serve any
notice under any Letting Document; |
|
|
| 12.1.5 |
settle any rent review; |
|
|
| 12.1.6 |
take any step in any proceedings
under Part II of the Landlord and Xxxxxx Xxx 0000; |
|
|
| 12.1.7 |
employ any person in such manner
that the person’s contract of employment will automatically be
transferred to the Buyer on completion under the Transfer of
Undertakings (Protection of Employment) Regulations 1981; |
|
|
| 12.1.8 |
except as provided in this
agreement, create any legally binding obligations in relation to the
Property which will be binding on the Buyer; |
(each a
‘‘Management Matter’’).
|
|
| 12.2 |
The Buyer shall be deemed to have
given its approval to a Management Matter unless it notifies the Seller
of its objection and its reasons for objecting within 5 working days of
receipt by the Buyer or its solicitors of a written request for
approval, but the Buyer shall not object, and the Seller need not
comply with an objection, if compliance with such objection would
expose the Seller to any statutory, contractual or other liability. |
|
|
| 12.3 |
The Seller shall promptly send to the
Buyer a copy of any notice, application, registration or other written
communication which the Seller gives or receives under any Letting
Document. |
|
|
| 12.4 |
The Buyer shall
indemnify the Seller against all claims, proceedings, costs, expenses
and losses which the Seller incurs as a result of any failure by the
Buyer to join in, complete or perform any Management Matter approved or
deemed approved pursuant to this clause 12 or from compliance by the
Seller with any objection or request made by the Buyer in respect of
any Management Matter or from any delay by the Buyer in relation to any
Management Matter. |
|
|
| 12.5 |
To the extent
not completed before completion, the Buyer shall complete all leases,
licences and other documents required by the Letting Documents or
approved (or deemed approved) pursuant to this clause 12. |
E-11
|
|
| 13. |
LETTING
DOCUMENTS SERVICE CHARGE |
|
|
| 13.1 |
In this clause 13: |
‘‘Current Period’’
means any period for which final service charge accounts have not been
prepared in accordance with the Letting Documents prior to the Actual
Completion Date.
‘‘Advance
Payments’’ means all sums (excluding VAT on
supplies made by the Seller) paid to the Seller up to and including the
Actual Completion Date by Tenants by way of service charge payments
under the Letting Documents for the Current Period.
‘‘Expenditure’’
means all expenditure (excluding VAT for which the Seller is entitled
to repayment or credit) incurred by the Seller up to and including the
Actual Completion Date which is chargeable as service charge under the
Letting Documents during the Current Period.
|
|
| 13.2 |
The Seller shall prior to completion
prepare or procure that its managing agents prepare an account (the
"Estimated Account’’) showing their
best estimate of the Expenditure and of the Advance Payments. If such
account shows that the estimated Advance Payments exceed the estimated
Expenditure then the Seller shall pay or allow to the Buyer on
completion an amount equal to such excess. If such account shows that
the estimated Expenditure exceeds the estimated Advance Payments then
the amount of such excess shall be paid by the Buyer to the Seller on
completion. |
|
|
| 13.3 |
Within three months
after completion the Seller shall procure that an account of the
Expenditure and of the Advance Payments is prepared and provided to the
Buyer and to the Seller. If the Expenditure or the Advance Payments as
shown in such account differ from those shown in the Estimated Account,
then the Buyer will pay to the Seller or the Seller will pay to the
Buyer (as the case may require) within ten working days of production
of the account an amount such that, taking account of any payment made
under clause 13.2, if the Advance Payments exceed the Expenditure the
Seller has paid or allowed to the Buyer an amount equal to such excess
and if the Expenditure exceeds the Advance Payments the Buyer has paid
to the Seller the amount of such excess. |
|
|
| 13.4 |
The Buyer shall at its own cost
provide to Tenants any necessary information concerning service charge
but the Seller shall for a period of one year following completion give
the Buyer reasonable access to the vouchers and invoices in respect of
the Expenditure for inspection and copying at the Buyer’s
cost. |
|
|
| 13.5 |
Standard Condition 6.3
shall not apply to Expenditure and Advance Payments. |
|
|
| 14. |
HEADLEASES SERVICE
CHARGE |
|
|
| 14.1 |
In this
clause 13: |
‘‘Current
Period’’ means any period for which final service
charge accounts have not been prepared in accordance with the
Headleases prior to the Actual Completion Date.
‘‘Advance Payments’’
means all sums (excluding VAT on supplies made by the Seller) paid by
the Seller up to and including the Actual Completion Date by way of
service charge payments under the Headleases for the Current
Period.
‘‘Expenditure’’
means all expenditure (excluding VAT for which the Seller is entitled
to repayment or credit) incurred by the Landlord or the Superior
Landlord pursuant to the Headleases up to and including the Actual
Completion Date which is chargeable as service charge under the
Headleases during the Current Period.
|
|
| 14.2 |
The Seller shall prior to completion
prepare or procure that its managing agents prepare an account (the
"Estimated Account’’) showing their
best estimate of the Expenditure and of the Advance Payments. If such
account shows that the estimated Advance Payments exceed the estimated
Expenditure then the Seller shall pay or allow to the Buyer on
completion an amount equal to such excess. If such account shows that
the estimated Expenditure exceeds the estimated Advance Payments then
the amount of such excess shall be paid by the Buyer to the Seller on
completion. |
E-12
|
|
| 14.3 |
Within
three months after completion the Seller insofar as it is able, shall
procure that an account of the Expenditure and of the Advance Payments
is prepared and provided to the Buyer and to the Seller. If the
Expenditure or the Advance Payments as shown in such account differ
from those shown in the Estimated Account, then the Buyer will pay to
the Seller or the Seller will pay to the Buyer (as the case may
require) within ten working days of production of the account an amount
such that, taking account of any payment made under clause 13.2, if the
Advance Payments exceed the Expenditure the Seller has paid or allowed
to the Buyer an amount equal to such excess and if the Expenditure
exceeds the Advance Payments the Buyer has paid to the Seller the
amount of such excess. |
|
|
| 14.4 |
Standard
Condition 6.3 shall not apply to Expenditure and Advance Payments. |
|
|
| 15. |
WARRANTIES |
The Seller will
use reasonable endeavours to assign to the Buyer its interest in a
building contract dated 7 February 2005 made between (1) Xxxxxx
Xxxxxx Strategy Consultants Limited and (2) Bluu Solutions Limited
subject to receipt of a Certificate of Making Good Defects pursuant to
such contract and subject to any necessary consents and insofar as it
is able.
|
|
| 16. |
CAPITAL ALLOWANCES |
|
|
| 16.1 |
In this clause 15: |
‘‘CAA’’ means
Capital Allowances Xxx 0000.
‘‘Fixtures’’ means
all machinery and plant which immediately before completion (i) is a
fixture of the Property for the purposes of the CAA and (ii) is not,
for the purposes of the CAA, treated as belonging to any person other
than the Seller and (iii) has been the subject of a claim for machinery
and plant allowances by the Seller.
‘‘Disposal Value’’
means £1.
|
|
| 16.2 |
On or as soon as
practical after completion the Seller and the Buyer shall jointly sign
in duplicate an election under Section 198 CAA that the amount fixed as
the part of the Purchase Price to be treated as expenditure by the
Buyer on the Fixtures is the Disposal Value (together with Value Added
Tax if applicable) and each of the Seller and the Buyer will procure
that such election is submitted to the Inland Revenue within the time
limits prescribed by law. |
|
|
| 17. |
CONTRIBUTION
PAYMENT |
|
|
| 17.1 |
The Seller will pay to
the Buyer the Contribution Payment on Completion. |
|
|
| 17.2 |
The Contribution Payment shall be
applied by the Buyer to the costs of reinstating the Property to such
state as would be required by the tenant pursuant to the Headleases at
the end of the term of the Headleases and which the Seller would have
been responsible for at the end of the term of the Headleases had it
remained in occupation of the whole of the Property and remained as
tenant. |
|
|
| 18. |
PERSONAL AGREEMENT |
The Buyer shall not assign, charge or in any other way
dispose of the whole or any part of this agreement or the benefit it
and no obligation of the Seller under this Agreement shall be
enforceable by any person except for the Buyer.
|
|
| 19. |
XXXXXX XXXXXX
LEASE |
|
|
| 19.1 |
In this
clause:- |
‘‘Xxxxxx Xxxxxx
Space’’ means that part of the Property comprised
in the Lease.
E-13
‘‘Lease’’
means a sublease dated 4 April 2003 made between (1) the Seller
and (2) the Tenant.
‘‘Property
Costs’’ means all costs arising from the Xxxxxx
Xxxxxx Space including (without limitation) all sums payable under the
Headleases, rates, costs of repair and maintenance, and all costs of
reletting including reasonable and proper marketing costs, reasonable
and proper professional fees and incentives to new tenants (including
rent free periods) but net of any income received in respect of the
Xxxxxx Xxxxxx Space for the relevant period.
‘‘the Tenant’’ means
Xxxxxx Xxxxxx Strategy Consultants Limited (Company Number 02454242)
and its successors in title to the Lease.
|
|
| 19.2 |
In the event that either |
|
|
| 19.2.1 |
the Tenant exercises its rights to
terminate the Lease on 1 March 2009; or |
|
|
| 19.2.2 |
the Lease is disclaimed prior to 1
March 2009; or |
|
|
| 19.2.3 |
the Lease
is forfeited prior to 1 March 2009 |
then from 1
March 2009 the Seller and the Buyer shall share equally all
Property Costs accruing after 1 March 2009 until the later of (1)
the Premises are relet and producing income at the market rate and (2)
the end of the Term of the Lease.
|
|
| 19.3 |
On each of 14 January, 14 April, 14
July and 14 October or as soon thereafter as reasonably practicable the
Buyer will produce to the Landlord an account of the Property Costs
that it has paid or incurred since the previous such account was
submitted (or if earlier March 2009) and will let the Seller have
copies of such invoices and bills as it requests in respect of the
items appearing on such account. |
|
|
| 19.4 |
The Seller will within 14 days of the
receipt of such account and the appropriate VAT invoice pay to the
Buyer one half of the total of such account together with VAT
thereon. |
|
|
| 19.5 |
In the event that the
Buyer exercises its right to terminate the Lease the Seller shall not
be liable for any Property Costs. |
|
|
| 19.6 |
In the event that the Buyer
reoccupies all or any part of the Xxxxxx Xxxxxx Space then the Seller
shall not be liable for any Property Costs arising after the date of
such reoccupation. |
|
|
| 19.7 |
The Buyer
shall use reasonable endeavours to relet the Xxxxxx Xxxxxx Space as
soon as it reasonably can on terms reasonably acceptable to the Buyer
to a tenant that the Buyer shall reasonably consider to be of
acceptable financial status and shall do all things that it reasonably
considers necessary to achieve that. |
|
|
| 19.8 |
The Buyer will at all times consult
with the Seller in connection with its marketing strategy and will keep
the Seller fully informed as to the progress of the reletting. |
|
|
| 19.9 |
In the event that the Buyer is not
able to relet the Xxxxxx Xxxxxx Space within 6 months of it being
vacated by the Tenant and, in the reasonable opinion of the Seller, the
Buyer is not using reasonable endeavours to relet the Xxxxxx Xxxxxx
Space in accordance with clause 19.7, the Seller shall be permitted on
written notice to the Buyer to be responsible for finding a Tenant that
is acceptable to the Buyer and is approved as such (such approval not
to be unreasonably withheld). |
|
|
| 20. |
AGREEMENT BY SELLER'S
GUARANTOR |
This Agreement having been
entered into by the Buyer with the Seller at the request of the
Seller's Guarantor, the Seller’s Guarantor as primary
obligor hereby agrees with and guarantees to the Buyer that the Seller
will perform and observe all the covenants and stipulations on the
Seller's part contained in clauses 9.1.3 and 19 of this Agreement
and in default thereof the Seller's Guarantor shall perform and
observe such obligations and will indemnify the Buyer from and against
all demands proceedings damages losses costs claims and expenses
whatsoever arising from any such default.
E-14
|
|
| 21. |
REPRESENTATIONS |
The Buyer acknowledges that it has not entered into this
agreement in reliance (wholly or partly) on any statement or
representation made by or on behalf of the Seller, other than written
statements made by the Seller’s Solicitors in reply to written
enquiries made by or on behalf of the Buyer.
|
|
| 22. |
NOTICES |
|
|
| 22.1 |
Any notice under this agreement shall
be addressed to: |
Notices to the Seller
|
|
|
|
|
|
|
|
| Address: |
|
Xxxxx Day
00 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX |
|
For the attention
of: Xxxx Xxxxxx
Fax
number: 02070395999
Notices to the Buyer
|
|
|
|
|
|
|
|
| Address: |
|
Forsters
00 Xxxx Xxxxxx
Xxxxxx X0X 0XX |
|
For the attention
of: Xxx Xxxxxx
Fax
number: 02078638444
or to such other address or facsimile number as the
relevant party may by notice to the other parties require.
|
|
| 22.2 |
In proving service it is sufficient
to prove that an envelope addressed as stated in clause 22.1 and
containing such notice was delivered to that address, or duly stamped
and posted, or that the notice was transmitted by facsimile to the fax
number stated in clause 22.1. |
|
|
| 22.3 |
E-mail is not a valid method of
service of notices under this agreement. |
|
|
| 23. |
SEVERANCE |
If any term of
this agreement or part thereof or its application to any person or
circumstance is held void or unenforceable then such term or part
thereof or its application to such person or circumstance shall be
severed from this agreement and validity of the remainder of this
agreement and the application of such provision to other persons or
circumstances shall not be affected by such severance.
|
|
| 24. |
NON-MERGER |
Notwithstanding
completion of Transfer and of the separate documents contemplated by
this agreement, anything in this agreement which has not thereby been
given effect or which remains to be performed or observed will remain
in full force and effect.
SIGNED by the parties or their
duly authorised representatives on the date first before written.
|
|
|
| |
| Signed for and on behalf of the Buyer |
| |
| Signed for and on behalf of the Buyer's
Guarantor |
|
E-15
