Exhibit 10.16
DATED 15 March 2002
NIAGARA LASALLE (UK) LIMITED
XXXXXX XXXXXX MIDLAND LIMITED
AGREEMENT
relating to the sale and purchase of freehold property at
Xxxxx Xxxxxx Xxxx
Xxxxxx Xxxx Xxxxxxxx
DATED 15 March 2002
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 XXXXXX XXXXXX MIDLAND LIMITED (company no
2788679) whose registered office is at Xx
Xxxxx'x Xxxxx, Xxxxx Xxxxxx, Xxxxxxxxxxxxx,
Xxxx Xxxxxxxx XX0 0XX
OPERATIVE PROVISIONS
1 Definitions and interpretation
1.1 Unless the contrary intention appears, the following definitions apply:
Additional Land shall mean the freehold reversion to the land
comprised in a lease dated 29 June 1981 and
made between (1) The Borough Council of
Sandwell and (2) The Xxxxxx Port Rolling
Xxxxx;
Buyer Xxxxxx Xxxxxx Midland Limited;
Buyer's Solicitors X.X. Xxxxx Xxxxxx Xxxxxx UK Limited of Xx
Xxxxx'x Xxxxx, Xxxxx Xxxxxx, Xxxxxxxxxxxxx,
Xxxx Xxxxxxxx, XX0 0XX;
Completion Date the later of the date five Working Days after
the date on which the Seller completes its
acquisition of the Property pursuant to the
Options and the date 5 working days after the
conditions is satisfied;
Conditions the condition specified in clause 2.1;
Deposit (pound)190,036;
General Conditions the Standard Conditions of Sale (Third Edition);
Long Stop Date the date 2 years from the date of this Agreement;
Options 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 and an option agreement to be
entered into by the same parties each in
respect of part of the Property;
Property the freehold property known as land at Lower
Church Xxxx Xxxxxx comprising
(a) freehold land registered at HM Land
Registry with Title Absolute under
numbers WM347680, WM380217 and WM511318;
(b) the freehold land transferred to the
Seller by a transfer dated 8 February
2002 made between British Waterways
Board (1) and the Seller (2) subject to
the incumbrances detailed therein;
Purchase Price (pound)3,600,000 plus Value Added Tax;
Seller Niagara Lasalle (UK) Limited;
Seller's Solicitors Xxxxxx Xxxxxxxx Xxxxxxx of Xxxxxxxx Xxxxx, Xxxxxx
Xxxxxx, Xxxxxx, XX0X 0XX; and
Yellow Land the land shown coloured yellow on the plan
attached to this Agreement.
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 Conditions
2.1 This Agreement is conditional upon the satisfaction of the
Condition set out in paragraph 2 of the Schedule 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 Contract shall immediately determine
without prejudice to the rights and remedies of each party against
the other in respect of any prior breach of this Contract 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
the 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 referred to in clause 2 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 exercise its right to purchase the Property
pursuant to the Options 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 On the Completion Date the Seller shall also transfer to the Buyer
such right title and interest as it has in the yellow land.
4 Deposit
4.1 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.
4.2 If the Deposit is less than 10% of the Purchase Price the
shortfall between the Deposit and 10% of the Purchase Price shall
be a debt due to the Seller from the Buyer payable on the
Completion Date and if this Agreement should be rescinded through
no fault of the Seller the shortfall shall be payable by the Buyer
to the Seller immediately on such rescission (without prejudice to
any other rights or remedies of the Seller).
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 At completion the Seller will supply the Buyer with the original
statutory declaration of Xxxx Xxxxxxx dated 20 April 1999.
6 Capacity
The Seller sells with full title guarantee.
7 Title
7.1 Title to the Property having been deduced in accordance with
Section 110 of the Land Registration Act 1925 with office copy
entries dated 21 January 2002 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.
7.2 Title to the Additional Property having been deduced in accordance
with Section 110 of the Land Registration Act 1925 with office
copy entries dated 11 February 2002 the Buyer shall be deemed to
purchase with full knowledge of the matters contained or referred
to in the title to the Additional Property and shall not raise any
objections or requisitions in relation to them save in respect of
financial charges or other financial matters.
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 WM347680, WM380217 and WM511318;
8.1.2 the transfer dated 8 February 2002 between British
Waterways Board (1) and the Seller (2);
8.1.3 the covenants and conditions contained in the conveyance
dated 15 August 1845 made between the persons legally and
beneficially entitled in the Estates of Amphlett and
Bedford (1) and the Company of Proprietors of the
Birmingham Canal Navigations (2);
8.1.4 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.
8.3 The Transfer shall contain a covenant by the Buyer in the
following form:
"The Transferee covenants with the Transferor that it and its
successors in title will observe and perform the stipulations
covenants and provisions referred to in:
(a) the registers of title of title numbers WM347680,
WM380217 and WM511318;
(b) the obligations in the transfer dated 8 February 2002
between British Waterways Board (1) and the Seller (2).
(c) the covenants and conditions contained in the conveyance
dated 15 August 1845 made between the persons legally and
beneficially entitled in the Estates of Amphlett and
Bedford (1) and the Company of Proprietors of the
Birmingham Canal Navigations (2);
so far as the same are subsisting and capable of being enforced
and relate to the Property will fully and effectually indemnify
and keep indemnified the Transferor against all actions claims and
liability arising out of any breach non observance or non
performance of 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 Contract;
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 The Additional Land
10.1 The Seller shall use all reasonable endeavours to negotiate to
purchase the Additional Land from the present owner of the
Additional Land the Borough Council of Sandwell.
10.2 In the event that the Seller has entered into a binding Agreement
with the said Borough Council of Sandwell to purchase the
Additional Land by a date not later than the Long Stop Date the
Buyer shall complete the purchase of the Additional Land from the
Seller by a date no later than 20 working days after the Long Stop
Date upon the terms and conditions contained in this Agreement
save that the purchase price for the Additional Land shall be:
(i) (pound)200,000.00 plus VAT; and
(ii) 50% of the total consideration paid for the Additional Land plus
50% of the costs incurred by the Seller in the acquisition of the
Additional Land up to a maximum of (pound)150,000 plus VAT (for
the avoidance of doubt so that the Buyer's contribution shall not
exceed (pound)75,000 plus VAT).
10.3 Completion of the sale and purchase of the Additional Land shall
take place on the date for completion specified in the Agreement
for the sale and purchase of the Additional Land between (1)
Borough Council of Sandwell and (2) the Seller.
10.4 The Buyer shall not enter into any negotiations with the Borough
Council of Sandwell concerning the Additional Land without the
prior written approval of the Seller and may not itself enter into
any agreement to purchase the Additional Land until the Long Stop
Date arises.
10.5 The Seller shall sell the Additional Land with Limited Title
guarantee.
11 Condition of Property
11.1 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.
11.2 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.
11.3.1 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;
11.3.2 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;
11.3.3 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 the agreement pursuant to the draft
statutory guidance issued under Part 11A of the
Environmental Protection Act 1990 and to any final
guidance to the like effect and pursuant to 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.
12 Non-Assignability
This Agreement is personal to the Buyer and may not be assigned by
it save to a subsidiary or associated company with the prior
written consent of the Seller (which shall not be unreasonably
withheld or delayed but which may be withheld unless the Buyer
enters into a deed of guarantee with the Seller in respect of the
Buyer's obligations in this Agreement and the covenants and
indemnities in the Transfer of the Property) and the Seller shall
not be obliged to complete the Sale of the Property other than by
means of a single transfer to the Buyer or such subsidiary or
associated company.
13 Possession
The Property is sold with vacant possession on completion.
14 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).
15 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.
16 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.
17 Interest
If the Seller is entitled to interest or any other sums in
addition to the Purchase Price under any provision of this
Contract the Seller will be entitled to retain the title deeds for
the Property until payment is received in full.
18 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 Contract and forfeit
the deposit.
19 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.
20 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 1
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 drawing numbered DJA February
2002 002 a copy of which is annexed
hereto;
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);
Longstop Date 15 September 2002
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 210 residences to the design shown in the
Drawings for use as private residences.
3.1 If the Condition is not discharged in accordance with the
provisions of this Schedule by the Longstop Date either the Seller
or the Buyer may 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 observed and performed the obligations on its part contained
in this Schedule up to the date of the giving of such notice.
4.1 The Buyer will at its own expense apply to the Local Planning
Authority for Planning Permission either before or within 2 weeks
after the date of this Agreement and will prosecute the same with
all reasonable speed and diligence and supply the Seller with a
copy of its planning application forthwith 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
in any such case with the prior written approval of the Seller
which is not to be unreasonably withheld or delayed.
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 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 In the event that the local planning authority require a condition
in the planning permission or in a planning agreement providing
for any item of planning gain other then the contribution to
off-site public open space of not more then the (pound)176,000
allowed for in the Buyer's viability, the parties shall endeavour
to negotiate an adjustment to the purchase price to reflect the
cost of complying with such a condition.
5.4 The Buyer shall use all reasonable endeavours in its negotiations
with the Planning Authority to keep all such items of planning
gain to a minimum.
5.5 In the event that an item of planning gain is required the Buyer
shall use all reasonable endeavours to minimise the financial
impact to the Seller.
5.6 At all times during its negotiations with the local planning
authority the Buyer shall keep the Seller and Niagara Corporation
advised of any such matters and the Seller will be entitled to
participate in any such planning negotiations or pursue
negotiations solely with the local planning authority should it so
desire.
6 The Condition will be discharged upon the grant of Planning
Permission by the Local Planning Authority.
7.1 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 4.
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 five
working days of the receiving the same.
9 Any notification required to be given under the provisions of this
Schedule shall be in writing.
Signed by ) /s/ Xxxxxxx Xxxx Xxxxxxxx
for and on behalf of ) --------------------------
the Seller ) Xxxxxxx Xxxx Xxxxxxxx
Signed by ) /s/ Xxxx Xxxxxxx
for and on behalf of ) ---------------------------
the Buyer ) Xxxx Xxxxxxx
