EXHIBIT 10.1
DATED 30 MAY 2003
NIAGARA LASALLE (UK) LIMITED
THAMESWAY PROPERTIES LIMITED
AGREEMENT
relating to the sale and purchase of freehold property at
XXXXXXXXXXX XXXXXXXXXX, XXXX XXXXXX
DARLASTON, WEDNESBURY
DATED 30 May 2003
PARTIES
1 Seller NIAGARA LASALLE (UK) LIMITED (company no 3725308) whose
registered office is at Victoria Steel Works Xxxx Xxxx Xxxxxx
Xxxxxxxxxx Xxxx Xxxxxxxx XX00 0XX
2 Buyer THAMESWAY PROPERTIES LIMITED (company no 2881185) whose
registered office is at 00 Xxxxxx Xxxxxx, Xxxxxxxxxxxxx,
Xxxxxxxxxxxxxx XX00 0XX
OPERATIVE PROVISIONS
1 DEFINITIONS AND INTERPRETATION
1.1 Unless the contrary intention appears, the following definitions apply:
Buyer Thamesway Properties Limited;
Buyer's Solicitors BPE Solicitors of Fifth Floor, Somerset
House, 00 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx
Xxxxxxxx, X0 0XX (Ref RH);
Completion Date the later of the date upon which the Seller
completes its acquisition of the Property
pursuant to the Option or is able to
procure the immediate transfer of the
Property to the Buyer pursuant to clause
3.2 of this Agreement and the date 5
working days after the Condition is
satisfied;
Condition the condition set out in paragraph 2 of the
Schedule;
Deposit (pound)92,500.00;
General Conditions the Standard Conditions of Sale (Third
Edition);
Long Stop Date the date six (6) months from the date of
this Agreement PROVIDED THAT if the Buyer
has submitted the application pursuant to
paragraph 4.1 of the Schedule to this
Agreement and the Local Planning Authority
has not made a decision upon such
application by the end of such six month
period then the date shall be extended to
the date 14 days after the Local Planning
Authority have made such a decision subject
to an absolute maximum period expiring on
the date 8 months from the date of this
Agreement;
Option an option agreement dated 21 May 1999 and
made between (1) Glynwed Property
Management Limited (2) Glynwed Properties
Limited (3) Niagara LaSalle (UK) Limited
and (4) Niagara Corporation in respect of
the Property;
Property the freehold property known as Springfield
Steelworks, Mill Street, Darlaston,
Wednesbury comprising all of the freehold
land registered at HM Land Registry with
Title Absolute under title number WM309546;
Purchase Price (pound)925,000 plus Value Added Tax;
Seller Niagara Lasalle (UK) Limited; and
Seller's Solicitors
Xxxxxx Xxxxxxxx Xxxxxxx of Xxxxxxxx Xxxxx,
Xxxxxx Xxxxxx, Xxxxxx, XX0X 0XX (Ref
MS/GPUR/1872.26).
1.2 If any party to this Agreement comprises more than one person the
obligations and liabilities of that party under this Agreement shall be
joint and several obligations and liabilities.
1.3 The headings of the Clauses shall not affect the construction of this
Agreement.
1.4 In this Agreement words importing one gender shall be construed as
importing any other gender and any reference to a Clause or Schedule
shall be construed as a reference to a Clause or Schedule of this
Agreement.
2 CONDITION
2.1 This Agreement is conditional upon the satisfaction of the Condition
within the time limits specified in the Schedule.
2.2 NOTICE OF RESCISSION
If a notice of rescission is served pursuant to the provisions of the
Schedule then this Agreement shall immediately determine without
prejudice to the rights and remedies of each party against the other in
respect of any prior breach of this Agreement save that the Deposit shall
be returned as soon as reasonably practicable to the Buyer but without
interest and the Buyer will procure cancellation of any registration at
HM Land Registry or HM Land Charges Department made on behalf of the
Buyer in respect of this Agreement.
2.3 OBLIGATION TO COMPLY WITH THE SCHEDULES
The Seller and the Buyer shall comply with their respective obligations
set out in the Schedule to this Agreement.
2.4 WAIVER OF CONDITIONS
The Buyer may waive the Condition at any time by serving written notice
upon the Seller to that effect and the Condition shall be deemed to have
been satisfied on the date of service of the notice.
2.5 EXERCISING OPTION AGREEMENTS
The Seller shall properly exercise its right to purchase the Property
pursuant to the Option as soon as practicable after the Condition is
satisfied and shall keep the Buyer informed of its progress in doing so.
3 SALE AND PURCHASE
3.1 Subject to clause 2 the Seller shall sell and the Buyer shall purchase
the Property at the Purchase Price.
3.2 The Buyer acknowledges and agrees that completion may take place by way
of at transfer at the request of the Seller direct to the Buyer by the
grantor under the Option (the "Grantor") following exercise of the Option
pursuant to clause 2.5 of this Agreement.
4 DEPOSIT
On or before the date of this Agreement the Buyer shall pay the Deposit
to the Seller's Solicitors as stakeholders in the form of a banker's
draft telegraphic transfer or a solicitor's client account cheque.
5 COMPLETION
5.1 Completion of the sale and purchase of the Property and payment of the
balance of the Purchase Price and any other sums payable under this
Agreement shall take place on the Completion Date at the offices of the
Seller's Solicitors or elsewhere in the UK as they may direct.
5.2 Where completion takes place by way of a transfer pursuant to clause 3.2
of this Agreement from the Grantor directly to the Buyer then completion
shall take place on the Completion Date at the offices of the Grantor's
solicitors or elsewhere in the UK as they or the Seller's solicitors may
direct.
6 CAPACITY
The Seller sells with full title guarantee.
7 TITLE
7.1 Title to the Property shall be deduced by way of:
7.1.1 a certified copy of the Option with financial details omitted;
7.1.2 a certified copy of the Purchase Document as that expression is
defined in the Option; and
7.1.3 office copy entries of title number WM309546 dated 1 May 2003
showing Glynwed Property Management Limited as the registered
proprietor.
7.2 Title to the Property having been deduced in accordance with clause 7.1
the Buyer shall be deemed to purchase with full knowledge of the matters
contained or referred to in the title to the Property and shall not raise
any objections or requisitions in relation to them save in respect of
financial charges or other financial matters or matters arising on the
title after the issue of the office copy entries referred to at clause
7.1.3 above.
7.3 Notwithstanding that the Seller is not the registered proprietor of the
Property and may not be so registered at the Completion Date the Buyer
shall not decline to complete in reliance on Section 110 of the Land
Registration Act 1925 and if at completion the Seller is not so
registered (and completion shall not take place by way of a sub sale)
then the following provisions shall have effect:
7.3.1 the Purchase Price shall be paid by the Buyer to the Seller as a
further payment by way of deposit but such sum together with the
Deposit to be held as agent;
7.3.2 the Seller shall hold the Property as bare trustee upon trust
for the sole and absolute benefit of the Buyer until actual
completion;
7.3.3 the Seller shall on the Completion Date release to the Buyer a
duly executed transfer of the Property either from the Seller or
pursuant to clause 3.2 from the Grantor; and
7.3.4 in the event of a transfer from the Seller to the Buyer
o a fully and validly completed Land Registry application form
o a fully completed form L(A)451
o (to the extent that the same is not dealt with by way of apportionment) a
cheque drawn on a solicitors' client account for the stamp duty and Land
Registry fees properly payable in relation to such transfer or a
solicitors' undertaking to properly and fully stamp such transfer and to
pay the necessary Land Registry Fees
o a solicitors' undertaking to use all reasonable endeavours to submit any
application with the relevant priority period and to promptly procure
registration of the Seller as registered proprietor of the Property at HM
Land Registry and to keep the Buyer fully informed of the progress of and
completion of its registration; and
7.3.5 in the event of a transfer pursuant to clause 3.2 of this
Agreement an undertaking from the Grantor's solicitors to
hand over the Land Certificate to title number WM309546
7.4 Upon completion the Seller will deliver to the Buyer a valid application
to cancel the registration referred to in entry 3 of the charges register
to title number WM309546
8 EXISTING MATTERS
8.1 The Property is sold subject to and (where appropriate) with the benefit
of the following matters:
8.1.1 matters contained or referred to in the registers of title of
title numbers WM309546;
8.1.2 all mineshafts (if any) upon or within the Property whether or
not the same have been disclosed to the Buyer and the rights of
the National Coal Board (or any successor authority or company
to that body) in respect of such mineshafts;
8.1.3 all other matters revealed in writing by the Seller's
solicitors.
8.2 The Buyer's Solicitors having been supplied with full details of such
matters before the date of this Agreement the Buyer shall be deemed to
purchase with full knowledge of these matters and shall not raise any
objections or requisitions in relation to them.
9 THE GENERAL CONDITIONS
9.1 This Agreement incorporates the General Conditions in so far as they are
applicable to a sale by private treaty and are not varied by or
inconsistent with the terms of this Agreement.
9.2 The incumbrances referred to in Condition 3.1.2(a) are:
9.2.1 all local land charges whenever registered and all other
matters capable of registration as local land charges (whether
or not actually registered);
9.2.2 all notices charges orders resolutions demands plans proposals
requirements restrictions agreements conditions directions and
other matters served or made by any local authority or tribunal
or other competent body prior to the date of actual completion;
9.2.3 any other matter which would or should be revealed by a search
and enquiries made with the local authority immediately prior
to the date of actual completion;
9.2.4 all easements profits a prendre licences privileges and
advantages affecting the Property;
9.2.5 all overriding interests affecting the Property;
9.2.6 the matters referred to in Clause 8 of this agreement;
in addition and without prejudice to the other incumbrances
specified in Condition 3.1.2(c).
9.3 The words "and could not" are omitted from Condition 3.1.2(c).
9.4 Condition 4.3.2 is omitted.
9.5 In Condition 6.1.2 the words (If for any reason (other than the wilful
default of the Seller) completion takes place after 1.30 pm" are
substituted for the words "If the money due on completion is received
after 2.00 pm".
9.6 Condition 6.7(a) is omitted.
9.7 The Contract rate shall be 4% above the base rate from time to time of
Barclays Bank Plc.
9.8 The words " or in the negotiations leading to it" are omitted from
condition 7.1.1.
9.9 At the end of Condition 7.3.2. there shall be added the words "and in
addition the party not in default shall without prejudice to any other
right or remedy be entitled to be reimbursed for any reasonable legal
fees disbursements or VAT incurred by reason of delayed completion".
10 CONDITION OF PROPERTY
10.1 The Buyer admits that it has inspected the Property and purchases it with
full knowledge of its actual size and condition and shall take the
Property as it stands.
10.2 No damage to or destruction of the Property or any part thereof occurring
after the date of this agreement however occasioned shall in any way
affect the obligations of the parties under this agreement.
10.3
10.3.1 The Buyer acknowledges that prior to the date of this agreement
it has been given permission and adequate opportunity to carry
out its own investigation into the physical condition of the
Property and the extent to which the Property is affected by
contaminating substances and has been provided with all
information necessary to assess the state and condition of the
Property and as such is deemed to purchase with full knowledge
thereof;
10.3.2 the parties also agree that in the event of any statutory
notice being served after completion which relates to
contaminating substances which are present in on or under the
Property and which require any form of investigation,
monitoring or remedial action with regard to such substances
then as between the parties the sole responsibility of
complying with that notice shall rest with the Buyer to the
exclusion of the Seller and the parties hereby covenant with
each other that in the event of any such statutory notice being
served or any enforcing authority wishing to recover such costs
from the parties will each as soon as reasonably practicable
confirm to the enforcing authority in writing that they are
content for this agreement to be applied by that enforcing
authority in determining liabilities as between the parties;
10.3.3 these agreements and covenants are made with the intention that
the enforcing authority serving the notice or (as the case may
be) seeking to recover its costs shall give effect to this
agreement pursuant to: (a) the draft statutory guidance issued
under Part 11A of the Environmental Protection Xxx 0000; (b)
any final guidance to the like effect; and (c) any similar
guidance (whether statutory or non-statutory), issued in
relation to other legislation under which similar
responsibilities may be imposed. It is also intended that in
the absence of such guidance this agreement shall be borne in
mind by enforcing authorities under any legislation under which
similar responsibilities may be imposed in considering how to
exercise any discretion available to them or how to make any
relevant determination.
10.4.1 In this clause the following definitions shall apply:
Historic Contamination any contamination or pollution or
other matter which is hazardous or
otherwise capable of causing harm to
human health or the environment which
is or was present in at on under or
about the Property on or before the
date of actual completion whether it
remains in at on under or about the
Property or emanates or has emanated
from the Property
Remedial Action preventing limiting removing
remedying monitoring cleaning up
abating or containing the presence or
effect of any Historic Contamination
including any reinstatement of the
environment and/or carrying out
investigative work including
monitoring and obtaining legal and
other professional advice in relation
to such action
10.4.2 Without limitation to clause 10.3 the Buyer shall covenant with
the Seller in the transfer of the Property to indemnify the
Seller and keep the Seller fully and effectually indemnified
from and against
(a) all losses damages claims costs expenses (including
reasonable costs in relation to legal and professional advice)
in taking Remedial Action; and
(b) statutory liability and/or penalties arising from Historic
Contamination
in both cases where such Remedial Action or statutory liability
and/or penalties (as the case may be) are imposed upon or are
the responsibility of the owner or previous owners of the
Property as land owners only and not in the capacity of an
employer
10.4.3 The Buyer's indemnity pursuant to clause 10.4.2 and obligations
under clause 10.3 shall be limited to taking Remedial Action or
complying with statutory requirements (including the payment of
penalties) in respect of any Historic Contamination which is or
was present in at on under or about the Property only and
(other than as set out in clause 10.4.4) shall not extend to
taking Remedial Action or complying with statutory requirements
(including the payment of penalties) in respect of any Historic
Contamination in at on under about or affecting any land air
watercourses or persons outside of the Property and which
originated from the Property
10.4.4 The Buyer's indemnity pursuant to clause 10.4.2 and obligations
under clause 10.3 shall include taking Remedial Action or
complying with statutory requirements (including the payment of
penalties) in respect of any Historic Contamination in at on
under about or affecting any land air watercourses or persons
outside of the Property and which originated from the Property
where the release of such Historic Contamination into land air
watercourses or so as to affect persons outside of the Property
is caused by the action or default of the Buyer following
actual completion of the sale and purchase of the Property
10.4.5 The Buyer shall procure that: (a) any environmental survey
audit study or appraisal of the Property is addressed jointly
to the Seller and the Buyer and that the parties carrying out
any works of remediation to the Property provide insurance
backed collateral warranties to the Seller in a form acceptable
to the Seller (acting reasonably); and (b) any works
implementing the development envisaged by this agreement shall
be carried out in a manner which minimises the likelihood of
Historic Contamination being released into land air
watercourses or so as to affect persons outside of the Property
11 NON-ASSIGNABILITY
This Agreement is personal to the Buyer and may not be assigned by it and
the Seller shall not be obliged to complete the sale of the Property
other than by means of a single transfer of the whole of the Property to
the Buyer at the Purchase Price.
12 POSSESSION
12.1 Subject to clauses 12.2 and 12.3 the Property is sold with vacant
possession on completion and the Seller will provide evidence reasonably
satisfactory to the Buyer's solicitors of the termination upon actual
completion of the lease of the Property dated 21 May 1999 and made
between Glynwed Property Management Limited (1) Glynwed Properties
Limited (2) Niagara LaSalle UK Limited (3) and Niagara Corporation (4)
12.2 The Seller may at any time before actual completion and entirely at its
own discretion remove from the Property plant machinery equipment
chattels (whether loose or fixed) fixtures fittings and any thing which
may have become part of the Property (whether by annexation affixation or
otherwise) ("Plant") without having to make good any damage to the
Property caused by such removal provided that in the removal of the Plant
the Seller will comply with all necessary statutory requirements and
quasi statutory guidance with respect to such removal
12.3 To the extent that the Seller does not remove any Plant then the Property
is sold subject to any Plant remaining at the Property at actual
completion and the Seller shall be under no obligation to the Buyer to
remove Plant
13 DISCLAIMER
The Buyer acknowledges that this Agreement has not been entered into
wholly or partly in reliance on any statement or representation made by
or on behalf of the Seller (other than the Seller's Solicitors' written
replies to any written enquiries raised by the Buyer's Solicitors).
14 ENTIRE AGREEMENT
This Agreement constitutes the entire contract between the parties and
may only be varied or modified in writing by the parties or their
authorised representatives specifically referring to this Clause and
stating that this Agreement is varied in the manner specified.
15 NON-MERGER
This Agreement shall remain in full force and effect as to any of its
stipulations obligations and conditions which shall not have been
performed and which shall remain to be performed notwithstanding the
completion of the Transfer of the Property to the Buyer.
16 INTEREST
If the Seller is entitled to interest or any other sums in addition to
the Purchase Price under any provision of this Agreement the Seller will
be entitled to retain the title deeds for the Property until payment is
received in full.
17 INSOLVENCY OF BUYER
If the Buyer enters into liquidation (other than a voluntary liquidation
for the purpose of amalgamation or reconstruction and with the prior
written consent of the Seller) or is made bankrupt or becomes the subject
to an Administration Order the Seller may immediately by notice in
writing rescind this Agreement and forfeit the Deposit.
18 VALUE ADDED TAX
All sums of money payable by the Buyer under the terms of this Agreement
are exclusive of any Value Added Tax properly chargeable thereon and the
Buyer shall pay in addition to such sums the Value Added Tax attributable
to them and the Seller will procure that there is provided to the Buyer a
duly valid VAT invoice in respect thereof.
19 NOTICES
The provisions of Section 196 of the Law of Property Act 1925 (as
amended) shall apply to any notice to be given under or in connection
with this Agreement.
SCHEDULE
PLANNING CONDITION
1.1 In this Schedule the following words and expressions shall unless the
context otherwise requires have the following meanings:-
Code the Code of Measuring Practice published by
the Royal Institution of Chartered
Surveyors and the Incorporated Society of
Valuers and Auctioneers (current edition);
Condition the condition precedent set out in
paragraph 2;
Drawings the drawings numbered D02 and D101, 102,
103, 104 and 106 copies of which are
annexed hereto;
Local Planning Authority Walsall Borough Council
Planning Permission the grant of the planning permission
(applied for under the provisions of this
Schedule) by the Local Planning Authority
which would discharge the Condition;
Planning Refusal a refusal of planning permission applied
for under the provisions of this Schedule
(but not a deemed refusal arising under
Section 79 of the Town & Country Planning
Act 1990);
Onerous Condition has the meaning given in paragraph 10 of
this Schedule.
1.2 References to the Town & Country Planning Act 1990 include any statute
amending consolidating or replacing it for the time being in force.
1.3 Words importing the singular meaning include (unless the context
otherwise requires) the plural and vice versa.
2 The Condition is the obtaining of a detailed planning permission for the
demolition of any existing buildings and the construction on the Property
of 69 residences to the design shown in the Drawings for use as private
residences.
3
3.1 If the Condition is not discharged in accordance with the provisions of
this Schedule (or waived by the Buyer in accordance with clause 2.4 of
this Agreement) by the Longstop Date either the Seller or the Buyer may
immediately rescind this Agreement by giving to the other written notice
to that effect
3.2 The party seeking to rescind this Agreement may do so only if it has
materially observed and performed the obligations on its part contained
in this Schedule up to the date of the giving of such notice.
4
4.1 The Buyer will at its own expense apply to the Local Planning Authority
for Planning Permission either before or within four (4) weeks after the
date of this Agreement and will prosecute the same with all necessary
speed and diligence and supply the Seller with a copy of its planning
application immediately on submitting the same.
4.2 The Buyer may as a result of any discussions or negotiations with the
Local Planning Authority and if it appears requisite or desirable in
order to obtain Planning Permission amend or withdraw and immediately
submit a fresh application for Planning Permission (but the Buyer will
not do so in the period between six months and eight months from the date
of this Agreement) in any such case with the prior written approval of
the Seller which is not to be unreasonably withheld or delayed.
5
5.1 The Seller and the Buyer will co-operate with one another and use all
reasonable endeavours to assist each other to discharge the Condition
(the Buyer bearing the reasonable costs incurred by the Seller in doing
so) but in so doing the Seller and the Buyer will not act independently
of each other.
5.2 The Seller will support the Buyer's application for Planning Permission
and will if so reasonably required by the Buyer enter into any agreements
required by the Local Planning Authority as a pre-condition to the
granting of Planning Permission provided that the Seller shall not be
obliged to enter into any such unless:
5.2.1 the Buyer first indemnifies the Seller against the cost of
entering into the same and enters into a covenant to indemnify
the Seller against any liability which may be incurred by the
Seller as a result of entering into any such;
5.2.2 without prejudice to sub-paragraph 5.2.1 above such agreement
provides that the Seller will cease to be liable under the
terms of the such agreement after it has parted with its
interest in the Property;
5.2.3 the substantive obligations contained in such agreement will
only be of effect if the Planning Permission to which it
relates is implemented.
5.3 At all times during its negotiations with the Local Planning Authority
the Buyer shall keep the Seller and Niagara Corporation promptly and
fully advised of any such matters but the Seller will not act
independently of the Buyer.
6 The Condition will be discharged upon the grant of Planning Permission
free from Onerous Conditions by the Local Planning Authority.
7 If the Condition in this Schedule shall not have been discharged by the
Longstop Date then the Buyer shall be treated as unable to discharge the
Condition and this Agreement will be capable of rescission under
paragraph 3.
8 The Buyer will supply the Seller with a copy of any planning decision it
receives resulting from any application for Planning Permission (whether
original amended or resubmitted) within two (2) working days of the
receiving the same.
9 Any notification required to be given under the provisions of this
Schedule shall be in writing.
10 An Onerous Condition is one or more of the following which:
10.1 requires the payment or expenditure of other money or other
valuable consideration or payment of compensation by way of
planning gain or the carrying out of work (in addition to works
necessarily arising from the Buyer's planning application) on
or away from the Property the cost of which
exceeds(pound)50,000
10.2 prevents the implementation and completion of the development
set out in paragraph 2 of this Schedule without the agreement
or co-operation of an independent third party which cannot be
obtained on terms or at a cost or within a time that is
reasonable in the circumstances
10.3 is temporary
10.4 limits the occupation and use of the whole or any material part
of the Property to any designated occupier or a class of
occupier whether by imposing a geographical qualification upon
proposed occupiers or otherwise
10.5 requires the provision and or disposal of any dwelling houses
amounting to in excess of 25% of the total number of dwelling
houses to be constructed on the Property as affordable housing
or social housing whether such disposal is to the local
authority and/or a housing association or any other party
Signed by ) /s/ Xxxxxxx Xxxxxx
for and on behalf of ) ------------------
the Seller ) Chairman
Signed by ) /s/ Xxxxxxxx Xxxxxxx
for and on behalf of ) --------------------
the Buyer ) Director
