DATED 2001
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(1) MERANT PLC
AND
MERANT INTERNATIONAL LIMITED
TO
(2) WB-HX (NEWBURY) NO.1 LTD
AND
WB-HX (NEWBURY) NO.2 LTD
AND
(3) KNIGHTS VALLEY LIMITED
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AGREEMENT
FOR THE SALE AND PURCHASE OF
LAND AT THE LAWN 22-30 OLD BATH ROAD NEWBURY BERKSHIRE
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XXXXXX XXXXXXX
00 XXXXXXXXXXX XXX
XXXXXX XX0X 0XX
TEL: 000 0000 0000
REF: TJK/DLR/MAB/174191V1
THIS AGREEMENT is made the day of 2001
BETWEEN:-
1. MERANT PLC (formerly Micro Focus Group Public Limited Company) whose
registered office is at The Lawn 00/00 Xxx Xxxx Xxxx Xxxxxxx Xxxxxxxxx
XX00 0XX (Company Registration Number 01709998) ("the First Seller") and
MERANT INTERNATIONAL LIMITED (formerly Micro Focus Limited) whose
registered office is at The Lawn 00/00 Xxx Xxxx Xxxx xxxxxxxxx (Company
Registration Number 01272886) ("the Second Seller") (jointly called "the
Seller")
2. WB-HX (NEWBURY) NO.1 LTD whose registered office is at 00 Xxxxxxxxx
Xxxxxx Xx Xxxxxx Xxxxxx XX0 0XX (Company Registration Number 80849)
("the First Buyer") and WB-HX (NEWBURY) NO.2 LTD whose registered office
is at 00 Xxxxxxxxx Xxxxxx Xx Xxxxxx Xxxxxx XX0 0XX (Company Registration
number 80848) ("the Second Buyer") (jointly called "the Buyer").
3. KNIGHTS VALLEY LIMITED whose registered office is at Toomers Wharf Canal
Walk Newbury Berkshire RG14 1DY(Company Registration Number 01731913)
("the Surety").
1. DEFINITIONS
In this Agreement unless the context otherwise indicates the following
expressions shall have the following meanings:
"ACTUAL COMPLETION" actual completion of the sale of the First
Property and the Second Property pursuant to
this Agreement and Date of Actual Completion
will be interpreted accordingly
"ARREARS" any rent service charge insurance premium or
other amounts which are due under the Leases but
remain unpaid at Actual Completion
"BUYER'S SOLICITORS" Shoosmiths of Lock House, Castle Meadow Road,
Nottingham NG2 1AG (Ref: DAM/MWK).
"COLLATERAL WARRANTIES" means the warranties and other documents listed
in
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Schedule 3 to this Agreement
"COMPLETION DATE" 12th October 2001
"COMPLETION MONEY" the Purchase Price (or the amount of it which is
outstanding) adjusted by such sums (including
any interest or other compensation payable by
the First Buyer and/or the Second Buyer (as the
case may be) under this Agreement) as may be due
between the Seller and the Buyer at the time
when this Agreement is completed
"DEPOSIT" Five Hundred and Forty Two Thousand Five Hundred
Pounds (Pound Sterling 542,500)
"FIRST INCUMBRANCES" the covenants restrictions stipulations leases
rights and other matters (other than mortgages
or financial charges) referred to in the entries
in the Property Registers and Charges Registers
of Title Numbers BK130768 BK307485 BK25069 and
BK100986 and the covenants on the part of the
Landlord contained in the First Property Leases
hereinafter appearing
"SECOND INCUMBRANCES" the covenants restrictions stipulations leases
rights and other matters (other than mortgages
or financial charges) referred to in the entries
in the Property Register and Charges Register of
Title Number BK339640 and the covenants on the
part of the Landlord contained in the Second
Property Leases hereinafter appearing.
"ELECTION" means an election to waive the exemption to tax
pursuant to paragraph 2 of Schedule 10 of the
Value Added Tax Act 1994 (as amended) or any
order or subordinate legislation made thereunder
"FIRST PROPERTY LEASES" a Lease to be granted pursuant to clause 21.3
between MERANT PLC (1) MICRO FOCUS LIMITED (2)
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MICRO FOCUS INTERNATIONAL HOLDINGS LIMITED (3)
being a Lease of the New Section The Lawn 00-00
Xxx Xxxx Xxxx Xxxxxxx Xxxxxxxxx
"SECOND PROPERTY LEASES" (1) a Lease dated 14 October 1996 and made
between Micro Focus Limited (1) and
Vodafone Limited (2) being a lease of
Speen Court Newbury
(2) a reversionary lease dated 17 August
2001 made between the Second Seller (1)
and Vodafone Limited (2) being a lease
of Speen Court Newbury
(3) a licence of part dated 1 July 1994 made
between Micro Focus Limited (1) and
Xxxxxxxxx Xxxxxx Xxxxx (2) and others
(3) relating to land forming part of
Speen Court used as a social club
"LEASES" means the First Property Leases and the Second
Property Leases
"FIRST PROPERTY" the freehold property known as The Lawn Newbury
Berkshire as the same is registered at H.M. Land
Registry with Title Absolute under Title Numbers
BK130768 BK307485 BK25069 and BK100986 as the
same is shown edged red for identification
purposes only on Plan 1
"PROPERTY" the First Property and the Second Property
"PLAN 1" means the plan annexed to this Agreement and
labelled Plan 1
"PLAN 2" means the plan annexed to this Agreement and
labelled Plan 2
"PURCHASE PRICE" TEN MILLION EIGHT HUNDRED AND FIFTY THOUSAND
POUNDS (Pound Sterling 10.85m)
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"SECOND PROPERTY" the freehold property known as Speen Court
Newbury Berkshire as the same is registered at
HM Land Registry with Title Absolute under title
number BK339640 as the same is shown edged blue
for identification purposes only on Plan 2
"SELLER'S SOLICITORS" Xxxxxx Xxxxxxx of 00 Xxxxxxxxxxx Xxx Xxxxxx
XX0X 0XX (Ref. TJK)
"STANDARD CONDITIONS" the Standard Commercial Property Conditions of
Sale (First Edition)
"VAT" Value Added Tax as referred to in the Value
Added Tax Act 1994 (or any tax of a similar
nature which may be substituted for or levied in
addition to it)
"1994 ACT" The Law of Property (Miscellaneous Provisions)
Act 1994
2. INTERPRETATION
2.1 In this Agreement unless inconsistent with the context words importing
the singular include the plural and vice versa and words importing one
gender include both other genders
2.2 Reference to clauses and Schedules are to clauses of and Schedules to
this Agreement and clause and Schedule headings shall not affect the
construction of this Agreement
2.3 Reference to a specific enactment includes every statutory modification
consolidation and re-enactment and statutory extension for the time
being in force
2.4 Where a party consists of more than one person covenants and obligations
of that party will be deemed to be made jointly and severally
2.5 Any reference to a statute or section of a statute includes any
statutory amendment modification or re-enactment of it for the time
being in force and
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every instrument order notice direction regulation bye-law permission or
condition being made or issued under it or deriving validity from it
from time to time
2.6 If any provision in this Agreement is held to be illegal void invalid or
unenforceable for any reason the legality validity and enforceability of
the remainder of this Agreement will not be affected
2.7 Unless expressly stated to the contrary nothing in this Agreement
confers on any one other than the parties to it any right pursuant to
the Contracts (Rights of Third Parties) Act 1999
2.8 "transfer" includes assign or an assignment as the case may be
2.9 Reference to the "Buyer" means either the First Buyer and the Second
Buyer or either of them as the context may require.
2.10 Reference to the "Seller" means either the First Seller and the Second
Seller or either of them as the context may require.
2.11 Reference to the Property means either the First Property and the Second
Property or either of them as the context may require
3. STANDARD CONDITIONS OF SALE
The Standard Conditions are incorporated in this Agreement insofar as
they are not inconsistent with this Agreement and are amended as
follows:-
3.1 In Standard Condition 1.1.1 "Contract Rate" means four per centum above
the base rate of Barclays Bank PLC for the time being in force
calculated on a daily basis
3.2 In Standard Condition 1.3.1 the following shall be added:
"and must be served on the relevant party (or its solicitors) at the
address given for that party or that party's solicitors in this
Agreement and in the case of service on a party's solicitors quoting
their reference specified in this Agreement"
3.3 In Standard Conditions 1.3.5 and 1.3.6 the references to 4 pm shall be
deemed
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to be 5 pm
3.4 In Standard Condition 1.3.6 the following shall be added:
(a) "by fax: on the day of transmission if sent before 5 pm
or otherwise on the next working day
(b) by hand: on delivery"
3.5 Standard Conditions 5.1.4 and 5.2 shall not apply
3.6 In Standard Condition 3.1.2 the following shall be added:
"if the title to the Property is registered overriding interests"
3.7 Standard Condition 6.3 shall not apply to uniform business rates council
tax or water rates
3.8 In Standard Condition 7.1.1 the words "in the negotiations leading to
it" shall be deleted and substituted by the words "a written reply from
the Sellers Solicitors to a written enquiry by the Buyers Solicitors"
3.9 In Standard Condition 7.1.2 "or value" shall be deleted
3.10 In Standard Condition 7.6.2 the remedies are concurrent and not mutually
exclusive
4. PURCHASE PRICE
4.1 The First Seller shall sell and the First Buyer shall buy the First
Property on the terms set out in this Agreement
4.2 The Second Seller shall sell and the Second Buyer shall buy the Second
Property on the terms set out in this Agreement
4.3 In further consideration for the Purchase Price the Seller shall
additionally transfer to the Second Buyer all right, title and interest
of the Seller in the land coloured orange on the Plan 2
4.4 The Purchase Price shall be apportioned as follows:-
First Property: Pound Sterling 5,850,000 (five million eight
hundred and fifty thousand
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pounds)
Second Property: Pound Sterling 5,000,000 (five million pounds)
5. PAYMENT
5.1 The Deposit shall be paid on or before the signing of this Agreement to
the Seller's Solicitors as stakeholders by a cheque drawn on a
solicitor's client account or by a direct credit to a bank account
nominated by the Seller's Solicitors and shall be held in an interest
bearing account
5.2 The Deposit shall be allocated as follows:-
First Property Pound Sterling 292,500 (two hundred and ninety
two thousand five hundred pounds)
Second Property Pound Sterling 250,000 (two hundred and fifty
thousand pounds)
5.3 The Buyer shall pay the Completion Money by a direct credit to the
Seller's Solicitors' client account or to such other English clearing
bank account as they may reasonably direct
5.4 The Seller confirms that no Election has been made by the Seller in
respect of any interest in the Property and further that no Election
will be made between exchange of contracts and completion and further
that accordingly no VAT will be charged on the Purchase Price.
6. SELLER'S CAPACITY
6.1 The First Seller shall transfer the First Property with full title
guarantee
6.2 The Second Seller shall transfer the Second Property with full title
guarantee
7. POSSESSION
7.1 The First Property is sold subject to and with the benefit of the First
Property Leases but otherwise with vacant possession at completion
7.2 The Second Property is sold subject to and with the benefit of the
Second Property Leases but otherwise with vacant possession at
completion
8. TITLE
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8.1 Title shall be deduced in accordance with section 110 of the Land
Registration Act 1925 (as amended)
8.2 The Property is sold and will be transferred subject to and where
appropriate with the benefit of:
8.2.1 the First Incumbrances in the case of the First Property only
8.2.2 the Second Incumbrances in the case of the Second Property only
8.2.3 all local land charges and other matters whensoever registered
or registrable (whether registered or not) by any local or other
authority
8.2.4 every charge notice direction order restriction agreement
resolution proposal condition and other matter of whatsoever
nature affecting the Property which would reasonably be expected
to be revealed by search a or enquiry of any local or other
authority or statutory undertaker which a prudent purchaser
ought to make and the Buyer shall be deemed to purchase with
full knowledge thereof whether or not any search or enquiry has
been made
8.2.5 any liability with respect to the repair or maintenance of any
road pavement path conducting media or party structure
8.2.6 all rights of way or light and any other rights easements or
quasi easements of whatever nature affecting the Property
9. DISCLOSURE AND INSPECTION
9.1 The Buyer is deemed to have inspected the Property whether or not the
Buyer has in fact done so and shall be taken to purchase with full
knowledge of the matters subject to which the Property is sold and shall
not make any requisition or claim in respect of any of them save in
relation to matters arising after the date hereof or revealed by the
Buyer's pre-completion searches.
9.2 The Buyer shall make no requisition or claim in respect of:-
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9.2.1 any matters contained or referred to in any document or extract
from a document where a copy has been supplied to the Buyer's
Solicitors prior to the date of this Agreement
9.2.2 the state of repair or condition of any part of the Property
10. COMPLETION ARRANGEMENTS
10.1 Completion shall take place before 3.00 pm on the Completion Date and
for the purposes of calculating any interest due where completion takes
place later than 3.00 pm on any day it shall be treated as having taken
place on the next working day
10.2 Where any payment due on completion is made by a direct credit to a bank
account nominated by the Seller's Solicitors the relevant Buyer's
obligation to make that payment shall be discharged when it is received
in the said account
11. ASSURANCE FURTHER MATTERS AND LEASEBACK
11.1 The Seller shall not be required to transfer the Property or any part of
it to any person other than the Buyer or any group company of the Buyer
nor other than at the Purchase Price as apportioned pursuant to Clause
4.4.
11.2 The transfer of the relevant part of the Property to the relevant Buyer
will contain the following covenants and declarations by the relevant
Buyer in favour of the relevant Seller:
(a) The Transferee for the purpose of affording to the Transferor a
full and sufficient indemnity but not further or otherwise
covenants with the Transferor that the Transferee and the
persons deriving title under the Transferee will:
(i) at all times from the date of this Transfer perform and
observe the covenants restrictions stipulations
conditions declarations exceptions reservations and
other matters subject to which the relevant part of the
Property is transferred to the extent that such matters
relate to the relevant part of the Property
(ii) unless lawfully released during the remainder of the
term granted by the First Property Leases or the Second
Property
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Leases (as the case may be) to observe and perform the
covenants in the First Property Leases or the Second
Property Leases (as the case may be) to be performed and
observed by the Landlord under them
and will indemnify and keep indemnified the Transferor from and against
all reasonable and properly incurred losses actions claims demands
expenses proceedings and liability in any way relating to any failure to
observe and perform such matters from the date of this Transfer
11.3 The transfer of each part of the First Property to the First Buyer will
contain the following indemnities from the First Seller:
"The Transferor hereby indemnifies the Transferee from and against all
losses costs claims demands expenses and liabilities arising by virtue
of the matters covenants and obligations within an agreement made
between Micro Focus Group (1) Barclays Bank Plc (2) and the County
Council of the Royal County of Berkshire (3) dated 14 October 1993 and
an agreement made between Micro Focus Group plc (1) Barclays Bank plc
(2) and Newbury District Council (3) (the "Second Agreement") insofar as
such matters covenants and obligations remain to be performed or in
respect of any past breach (except as regards the obligations to
maintain landscaping at paragraph (ii) of the Third Schedule to the
Second Agreement in respect of which this indemnity shall be limited to
past breaches occurring prior to the date of this Transfer)"
11.4 The relevant Buyer shall execute the transfer in duplicate and deliver
the duplicate of the transfer to the relevant Seller on completion and
all other documents (if any) to be entered into between the relevant
Seller and the relevant Buyer (with or without other parties) and in
which the relevant Buyer is to enter into covenants or obligations with
the relevant Seller shall be executed in duplicate and the duplicate
delivered to the relevant Seller
11.5 If required by the relevant Seller the relevant Buyer shall procure that
the duplicate transfer is denoted against the original and returned to
the Seller's Solicitors
11.6 Immediately following Actual Completion the First Buyer shall grant to
the First Seller a Lease of the Premises known as the Lawn, Old Section
forming
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part of the First Property described herein such lease to be in the form
annexed hereto at Annexure 1 PROVIDED THAT this obligation shall not
arise until such time as a court order (in the form attached to this
Agreement at Annexure 1) excluding the operation of s24-28 of the
Landlord and Tenant Act 1954 has been obtained in relation to such lease
and the First Buyer and the First Seller agree to use their respective
reasonable endeavours to procure the grant of such an order
11.7 The Seller shall on or before Actual Completion procure the making of
and hand over to the Second Buyer a statutory declaration by Xxxxxx
Xxxxxxxxxx relating to the Seller's title to the land coloured orange on
the Plan such statutory declaration to be in the form annexed hereto at
Schedule 2.
11.8
11.8.1 The Seller shall on the Completion Date procure the assignment
to the First Buyer of all the beneficiary's interest in the
Collateral Warranties such assignment in each case to be in a
form to be approved by the First Buyer such approval not to be
unreasonably withheld (provided that in any event the Seller
shall indemnify the Buyer in such assignment documentation in
relation to any outstanding obligations thereunder which remain
to be performed by the Buyer as assignee) and furthermore the
Seller shall procure where necessary the consent of any party
required to such assignments
11.8.2 Where any of the Collateral Warranties provide for the ability
of the beneficiary under the relevant Collateral Warranties to
require the party providing such warranty (the "Warrantor") to
provide a further warranty to any party the Seller shall procure
that such Warrantor provides such further warranty to the First
Buyer as soon as reasonably practicable after the date of this
Agreement
11.9 The Seller will forthwith procure at the Seller's cost the issue of new
fire certificates in accordance with the requirements of the fire
officer for the part of the Property known as The Lawn Old Bath Road
shown edged red on the Plan 1 such fire certificates to be issued
following completion of the works being carried out by the Seller to
separate the part of the land known as the
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"Old Section" from that part of the land known as the "New Section" and
to comprise two separate fire certificates relating to the Old Section
and the New Section respectively
11.10 The Seller will indemnify and keep the Buyer indemnified against all
costs claims expenses proceedings fines penalties damages losses and
other liability howsoever arising in relation to any breach or delay in
complying with the obligations of the Seller in clause 11.9 above or
arising directly or indirectly from the carrying out of the separation
works referred to in Clause 11.9
11.11 The First Buyer shall provide at the Seller's cost all reasonable
assistance to the Seller to enable the Seller to comply with its
obligations in Clause 11.9
11.12 As soon as reasonably practicable (and in any event within 5 working
days) following the date of this Agreement the Seller shall serve a
valid notice on the occupiers of the premises covered by the licence
referred to at paragraph (3) of the definition of "Second Property
Leases" terminating the licence in accordance with its terms 3 months
after the service of such notice and the Seller shall provide the Buyer
with a certified copy of such notice and confirmation of service within
5 working days thereafter.
12. ARREARS
12.1 All sums due from any tenant under the Leases shall be apportioned on
Actual Completion
12.2 If the relevant Buyer receives any Arrears after Actual Completion
relating to the period prior to Actual Completion it will pay them to
the relevant Seller as soon as reasonably practicable
12.3 If the relevant Seller receives any rent or other sum following Actual
Completion from any tenant relating to the period from Actual Completion
it will pay such sum to the relevant Buyer as soon as reasonably
practicable
12.4 If Arrears are due under the terms of the Leases as at the Completion
Date the relevant Seller will on Actual Completion at the request and
cost of the relevant Buyer execute a Deed of Assignment of the right to
sue for such Arrears in favour of the relevant Buyer such Deed of
Assignment to be executed and released to the Buyer on or before
Completion by the Seller in a
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form reasonably acceptable to the Buyer
13. INSURANCE
13.1 The Seller shall insure the Property until Actual Completion
13.2 The Seller shall immediately after Actual Completion cancel the
insurance cover relating to the Property and use its reasonable
endeavours to obtain an appropriate refund of the premium paid to the
insurers and in the event that such refund is received the Seller shall
pay such monies to the Buyer
14. PASSING OF RISK
The Property shall from the date of this Agreement be at the risk of the
relevant Buyer and save to the extent that the same is directly
attributable to the Seller's wilful acts or omissions after the date of
this Agreement no loss or damage occasioned to the Property nor any
deterioration in the state of repair or condition of the Property shall
be the responsibility of the Seller or annul the sale or give rise to
any claim to compensation or damages or entitle the relevant Buyer to
rescind
15. ENTIRE AGREEMENT AND REPRESENTATIONS
The Seller and the Buyer respectively acknowledge that this Agreement
constitutes the entire agreement between the Seller and the Buyer to the
exclusion of any antecedent statement or representation whether oral
written or implied or whether contained in any advertisement particulars
or other matters issued or in any correspondence entered into by the
Seller or its servants or agents and the Buyer hereby acknowledges that
it has not entered into this Agreement in reliance upon any such
statement or representation other than those which have been given by
the Seller's Solicitors in a written reply whether to an enquiry made by
the Buyer's or to any enquiry made by any other party where the replies
have been addressed to the Buyer or relied upon by the Buyer Solicitors
prior to the date of this Agreement
16. VALUE ADDED TAX
16.1 Subject to Clause 5.4 all payments made pursuant to this Agreement will
(unless it is specifically provided otherwise) be exclusive of VAT and
any
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VAT chargeable on such payments will be paid in addition to the payment
in question
17. CONFIDENTIALITY
Prior to Actual Completion no party (including its agents employees or
representatives) shall disclose or permit or suffer to be disclosed any
of the contents or the existence of this Agreement without the prior
written consent of the other (such consent not to be unreasonably
withheld or delayed) except and to the extent that disclosure may be
required to facilitate the performance by either party of its
obligations under this Agreement by law or by the requirements of The
International Stock Exchange of the United Kingdom and the Republic of
Ireland or be made by the Buyer to Discovery Properties Limited or its
agents employees or representatives
18. JURISDICTION
This Agreement shall be governed by and construed in accordance with the
law of England and the Buyer submits to the exclusive jurisdiction of
the English Courts in relation to any dispute arising under or
connection with this Agreement and any notices or proceedings given or
served in connection with this Agreement will be validly served on the
Buyer if served at the registered office of the Surety
19. NON MERGER
The provisions of this Agreement shall remain in full force and effect
notwithstanding completion so far as they remain to be observed and
performed
20. DISPUTES
20.1 If any dispute or difference shall arise between the parties hereto in
relation to any provision requiring an issue to be resolved such dispute
or difference may on the written notice given by either of them to the
other (the "Determination Notice") be referred to and determined by an
independent person (the "Independent Person") who shall have been
qualified in respect of the general subject matter of the dispute or
difference for not less than 10 years and who shall be a specialist in
relation to such subject matter
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20.2 The Independent Person shall be appointed by agreement between the
parties or (if within 10 working days after service of the Determination
Notice they have been unable to agree) on the application of either of
them by one of the following persons as they shall agree to be
appropriate having regard to the nature of the dispute or difference in
question
20.2.1 the President for the time being of the Royal Institution of
Chartered Surveyors; or
20.2.2 the President for the time being of the Law Society
20.3 If within 15 working days after service of the Determination Notice the
parties have been unable to agree which of the persons referred to in
clause 20.2 is appropriate to appoint the Independent Person then the
Independent Person shall be appointed on the application of either of
them by the President for the time being of the Law Society or his/her
duly appointed deputy or any other person authorised by him/her to make
appointments on his/her behalf
20.4 Except as mentioned in clause 20.5 any person appointed under this
clause shall act as an arbitrator in accordance with the provisions of
the Arbitration Act 1996.
20.5 Wherever the parties have agreed in writing prior to his/her appointment
that the Independent Person to be appointed under this clause shall act
as an expert or this Agreement expressly so provides then the following
provisions shall have effect:-
20.5.1 The Independent Person shall act as an expert and not as an
arbitrator and his/her decision shall be final and binding upon
the parties
20.5.2 The Independent Person shall consider (inter alia) any written
representations made on behalf of any party (if made reasonably
promptly) but shall not be bound by them
20.5.3 The parties hereto shall use all reasonable endeavours to
procure that the Independent Person shall give his/her decision
as speedily as possible
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20.5.4 The costs of appointing the Independent Person and his/her costs
and disbursements in connection with duties under this Agreement
shall be shared between the parties hereto in such proportions
as the Independent Person shall determine or in the absence of
such determination equally between them
20.5.5 If the Independent Person shall be or become unable or unwilling
to act then the procedure for the appointment of the expert may
be repeated as often as is necessary until a decision is
obtained
21. CONDITIONS PRECEDENT
21.1 This Agreement is conditional upon the satisfaction by the Seller of the
conditions set out in Clause 21.2 21.3 and 21.4 below.
21.2 Prior to the Completion Date the First Seller shall deliver to the
Buyer's solicitors a duly executed lease from the First Buyer to the
First Seller together with an issued Court Order (relating to the
exclusion of this lease from the provisions of sections 24 - 28 of the
Landlord and Tenant Act 1954) referred to at Clause 11.6 of this
Agreement such lease and the Court Order to be in the form set out in
Annexure 1 which document shall be released to the Buyer for completion
in escrow subject only to the completion of the purchase of the Property
by the Buyer
21.3 Prior to the Completion Date the Seller shall procure the grant of a
lease to Micro Focus Limited (guaranteed by Micro Focus International
Holdings Limited) in the form annexed at Annexure 2 and prior to the
grant of this lease the Seller shall obtain a Court Order excluding this
lease from the provisions of sections 24 - 28 of the Landlord and Tenant
Act 1954 (this lease and the Court Order to be in the form annexed
hereto at Annexure 2).
21.4
21.4.1 On or before the Completion Date the Seller will procure the
provision of a letter of credit from Bank of America and
addressed to the First Buyer such letter to be in the form
annexed at Annexure 3 ("the Letter of Credit")
21.4.2 Prior to the Completion Date the First Seller will execute a
deed
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(the "Supplemental Deed") in the form annexed at Annexure 4 and
shall deliver such Supplemental Deed to the First Buyer on the
Completion Date
21.5 If the conditions referred to above have not been satisfied by the
Completion Date the Buyer may at any time thereafter do any or all of
the following:-
21.5.1 Postpone the Completion Date until such time as the condition
has been satisfied; and/or
21.5.2 Specify a new Completion Date which shall become the Completion
Date for the purposes of the Agreement; and/or
21.5.3 Terminate this Agreement at any time notwithstanding the fact
that the Buyer may already have exercised any of its rights in
Clauses 21.5.1 or 21.5.2 above whereupon the Deposit shall be
returned immediately to the Buyer together with accrued interest
and this Agreement shall terminate but without prejudice to any
antecedent breach by either party
22. SURETY
In consideration of this Agreement having been entered into by the
Seller with the Buyer at the request of the Surety (as the Surety hereby
acknowledges) the Surety hereby agrees with the Seller as set out in
Schedule 1
23. REGISTRATION OF AGREEMENT
23.1 The First Seller and the First Buyer jointly apply to the Chief Land
Registrar (and if necessary to effect such registration will do so in
Form 75) for the registration of a restriction in the Proprietorship
Register of each title of the First Property in the following terms:
"Except under an order of the Registrar no transfer agreement to
transfer lease agreement to lease charge mortgage easement or
other dealing with or disposition of the land is to be
registered without the consent in writing of WB-HX (Newbury)
No.1 Limited"
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23.2 The First Seller undertakes to deposit and retain the First Seller's
Land/Charge Certificates in respect of the First Property at H M Land
Registry and do all things necessary to enable a notice under Land
Registration Act 1925 Section 49(1) to be registered
23.3 The Second Seller and the Second Buyer jointly apply to the Chief Land
Registrar (and if necessary to effect such registration will do so in
Form 75) for the registration of a restriction in the Proprietorship
Register of the title of the Second Property in the following terms:
"Except under an order of the Registrar no transfer agreement to
transfer lease agreement to lease charge mortgage easement or
other dealing with or disposition of the land is to be
registered without the consent in writing of WB-HX (Newbury)
No.2 Limited"
23.4 The Second Seller undertakes to deposit and retain the Second Seller's
Land/Charge Certificate in respect of the Second Property at H M Land
Registry and do all things necessary to enable a notice under Land
Registration Act 1925 Section 49(1) to be registered
24. CAPITAL ALLOWANCES
24.1 The Seller and the Buyer agree that the Seller shall be entitled to
claim capital allowances for any period up to the date of Actual
Completion. The Seller and the Buyer agree that at the Date of Actual
Completion they shall jointly make an election pursuant to Section 198
Capital Allowances Act 2001 ("CAA") that the proportion of the Purchase
Price which shall be treated as expenditure incurred by the Buyer on the
provision of any qualifying fixtures and fittings (for the purposes of
CAA) shall be fixed in an amount of Pound Sterling500,000 (five hundred
thousand pounds) ("the Amount") and that they shall give notice of such
election in the form or substantially in the form set out as annexed
hereto at the Sixth Schedule to this Agreement and thereupon the Seller
shall (with the authority of the Buyer which is hereby given by the
Buyer) submit such notice to the Seller's Inspector of Taxes.
24.2 The parties agree that in making the election referred to in the
provisions noted above they shall comply with all the requirements of
Section 201 CAA and other requirements of legislation and Inland Revenue
practice from time to
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time in force and shall comply with all relevant time limits. In
particular without prejudice to the generality of the foregoing the
Seller and the Buyer should each provide a notice of election to the
Inland Revenue as in the form required by Sections 198 and 201 CAA in
the agreed form and shall ensure that a copy of the notice shall
accompany its return for its "relevant period" for the purposes of
Section 201(4) CAA.
24.3 The Buyer agrees that it shall not under any circumstances claim capital
allowances in respect of expenditure incurred by it on any fixtures and
fittings (which are qualifying fixtures and fittings for the purposes of
the CAA) which are comprised in the Property except in respect of an
amount which does not exceed the Amount (as defined above).
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SCHEDULE 1
(COVENANTS AND AGREEMENTS BY THE SURETY)
1. The Surety hereby agrees with the Seller that:-
1.1 The Buyer or such group company (as referred to in Clause 11.1) or the
Surety shall duly perform and observe all of the terms of this Agreement
1.2 The Surety is jointly and severally liable with the Buyer for the
fulfilment of all the obligations of the Buyer under the terms of this
Agreement and agrees that the Seller in enforcement of its rights under
this Agreement may proceed against the Surety as if the Surety was named
as the Buyer and the Buyer had validly signed and entered into this
Agreement.
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SCHEDULE 2
Agreed Form Statutory Declaration
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SCHEDULE 3
COLLATERAL WARRANTIES
The Following documents:
1. Letter of Appointment dated 24th June 1996 and made between the Second
Seller (then known as Micro Focus Limited) (1) and Architectural
Partnership Plc (2)
2. Letter of Appointment dated 26th March 1996 and made between the Second
Seller (then known as Micro Focus Limited (1) and St Xxxxxxx (2)
3. Letter of Appointment dated 26th July 1995 and made between the Second
Seller (then known as Micro Focus Limited) (1) and Price and Xxxxxx (2)
4. Letter of Appointment dated 11th July 1995 and made between the Second
Seller (then known as Micro Focus Limited) (1) and Architectural
Partnerships Plc (2)
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SCHEDULE 4
(NOTICE OF ELECTION)
(Form of Joint Election)
To
HM Inspector of Taxes
[
]
Dear Sirs
SELLER: [ ] of [ ]
[TAX REFERENCE] AND
BUYER: [ ] of [ ]
[TAX REFERENCE]
We hereby give notice to the board of our joint election pursuant to Section 198
of the Capital Allowances Act 2001 for the portion of the Sale Price to be
brought into account for the purposes of Section 1982) of the Capital Allowances
Act 2001 as expenditure incurred by the Purchaser on the provision of the
Fixtures to be fixed at Pound Sterling 500,000 in relation to the Sale of the
Property (the expressions "SALE PRICE", "FIXTURES", "SALE" and "PROPERTY" all
being defined below).
For the purposes of this notice:
1. "FIXTURES" means all items of machinery and plant, expenditure in
respect of which qualifies or has qualified for capital allowances and
which are comprised in the Property which is the subject of the Sale (as
defined below) and details of which are as follows: [TO BE COMPLETED
PRIOR TO COMPLETION DATE].
2. The "PROPERTY" means [ ].
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3. The "SALE" means the sale of the Property by the Seller to the Buyer
pursuant to an Agreement dated [ ] 200[ ] and the sale is
the disposal in respect of which this election applies.
4. The "SALE PRICE" means Pound Sterling [ ]. The tax district
address and references of each of the Seller and the Buyer is as
follows:
[Seller] of [ ] [TAX REFERENCE]
and
[Buyer] of [ ] [TAX REFERENCE]
and
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SIGNED by )
for and on behalf of the First Seller )
SIGNED by )
for and on behalf of the Second Seller )
SIGNED by )
for and on behalf of the First Buyer )
SIGNED by )
for and on behalf of the Second Buyer )
SIGNED by )
for and on behalf of the Surety )
