AGREED FORM
DATED 1999
[RELEVANT GLYNWED COMPANY] LIMITED
and
GLYNWED PROPERTIES LIMITED
and
NIAGARA LASALLE (UK) LIMITED
and
NIAGARA CORPORATION
________________________________
OPTION AGREEMENT
relating to [freehold][leasehold]
property at
________________________________
XXXXX & XXXXX
London
PY:296092.4
CONTENTS
CLAUSE PAGE
1. INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. OPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. EXERCISE OF THE OPTION . . . . . . . . . . . . . . . . . . . . . . 4
4. REGISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6. THE PARTIES' SOLICITORS . . . . . . . . . . . . . . . . . . . . . 6
7. ANNOUNCEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 6
8. VAT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
9. GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
10. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
11. GOVERNING LAW AND JURISDICTION . . . . . . . . . . . . . . . . . . 9
SCHEDULES
1. The Property . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Purchase Document . . . . . . . . . . . . . . . . . . . . . . . . .
3. Terms of the sale . . . . . . . . . . . . . . . . . . . . . . . . .
THIS AGREEMENT is made on , 1999
BETWEEN:
(1) [RELEVANT GLYNWED COMPANY] LIMITED (registered number [ ])
whose registered office is at Headland House, New Coventry Road,
Xxxxxxx, Birmingham (the "Seller");
(2) GLYNWED PROPERTIES LIMITED (registered number 254047) whose registered
office is at Headland House, New Coventry Road, Xxxxxxx, Birmingham
("Glynwed"); and
(3) NIAGARA LASALLE (UK) LIMITED (registered number 3725308) whose
registered office is at 1st Floor, Bouverie House, 000 Xxxxx Xxxxxx,
Xxxxxx, XX0X 0XX (the "Buyer"); and
(4) NIAGARA CORPORATION a corporation organised and existing under the
laws of the State of Delaware whose principal office is at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, 00000, XXX (the "GUARANTOR").
IT IS AGREED as follows:
2. INTERPRETATION
(1) In this agreement:-
"AGREED FORM" means, in relation to any document, the form of that
document which has been initialed for the purpose of identification by
the Seller's solicitors and the Buyer's solicitors with such changes
as the Seller and the Buyer may agree in writing before completion;
"BUSINESS DAY" means a day (other than a Saturday or a Sunday) on
which banks are generally open in London for normal business;
"BUYER" means the Buyer and its successors in title;
"BUYER'S GROUP" means the Buyer and its subsidiaries at the relevant
time;
"BUYER'S SOLICITORS" means Paisner & Co of Bouverie House, 000 Xxxxx
Xxxxxx, Xxxxxx XX0X 0XX;
"CLEARING BANK" means a bank which is a member of CHAPS Clearing
Company Limited;
"CONSENT" means in relation to each Leasehold Part (if any) the
consent of the Landlord and any superior landlord to the assignment or
transfer of the Leasehold Part to the Buyer;
"COVENANTS" means the covenants affecting and binding the Property,
including, without limitation, all covenants referred to the property
register and the charges register of the title to the Property where
the Property is registered (excluding financial charges) and (where
there are Leasehold Parts) the Leasehold Obligations;
[Paynes Lane only - "DEED OF GRANT" means in relation to the Red Land
the deed of grant annexed to this agreement marked "A" and in relation
to the Green Land the deed of grant annexed to this agreement marked
"B" and "DEEDS OF GRANT" means both of them;]
[Paynes Lane only - "GREEN LAND" means the part of the Property at
Paynes Lane, Rugby shown edged green on the plan attached to the Deeds
of Grant;]
"LANDLORD" means, in relation to each Leasehold Part (if any), the
person entitled to the reversion immediately expectant on the
determination of the term granted by the relevant Superior Lease;
"LEASE" means the lease of the Property of even date herewith and made
between the same parties as to this Agreement;
"LEASEHOLD OBLIGATIONS" means in relation to the Leasehold Parts (if
any), the covenants by the tenant and the conditions contained in the
Superior Leases;
"LEASEHOLD PARTS" means the leasehold parts of the Property specified
in Part 2 of Schedule 1 (if any) and "LEASEHOLD PART" means any of
them;
"LEASE RENEWAL DEED" means the deed in respect of the Property of even
date herewith and made between the same parties as to this Agreement;
"OPTION" means the option granted by the Seller to the Buyer in clause
2;
"PROPERTY" means the property specified in Part 1 and [(where
relevant) Part 2 of Schedule 1];
"PROPERTY AGREEMENT" means the agreement dated , 1999
between Glynwed Property Management Limited (1) Glynwed Properties
Limited (2) Niagara LaSalle (UK) Limited (3) Niagara Corporation (4)
and Glynwed International plc (5);
"PURCHASE DOCUMENT" means the document headed "Purchase Document"
signed by or on behalf of the Seller on the date of this agreement
which is in the form specified in Schedule 2;
[Paynes Lane only - "RED LAND" means the part of the Property at
Paynes Lane, Rugby shown edged red on the plan attached to the Deeds
of Grant;]
"RENTS" means, in relation to the Leasehold Parts, the rents
(including further or additional rents) reserved by the Superior
Leases;
"RIGHTS" means the rights of third parties affecting and binding the
Property, excluding financial charges but including, without
limitation, the rights specified in the property register and the
charges register of the title to the Property, where the title is
registered;
"SALE OF BUSINESS AGREEMENT" means the agreement dated
1999 between Glynwed Steels Limited (1)
Glynwed International plc (2) Niagara LaSalle (UK) Limited (3) and
Niagara Corporation (4);
"SELLER" means the Seller and its successors in title to the Property;
"SELLER'S GROUP" means Glynwed International plc and its subsidiaries
at the relevant time;
"SELLER'S SOLICITORS" means Xxxxx & Xxxxx or, on service of notice
under clause 5, the solicitor or firm of solicitors named in that
notice;
"SELLER'S SOLICITORS' ADDRESS" means Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
or, on service of notice under clause 5, the address specified in that
notice;
"the SIDE DEED" means a deed in respect of the Property of even date
herewith and made between the same parties as to this Agreement;
"SUPERIOR LEASES" means in relation to the Leasehold Parts (if any),
the lease or leases under which it or they is or are held (as more
particularly described in Part 2 of Schedule 1) and includes every
deed varying the lease or leases and every licence granted under the
lease or leases and "Superior Lease" means any of them;
"VAT" means value added tax.
(2) In this agreement:
(a) references to a person include a body corporate and an
unincorporated association of persons;
(b) references to a natural person include his estate and personal
representatives; and
(3) Any reference, express or implied, to an enactment includes references
to:
(a) that enactment as amended, extended or applied by or under any
other enactment (before or after the signature of this
agreement);
(b) any enactment which that enactment re-enacts (with or without
modification); and
(c) any subordinate legislation made (before or after the signature
of this agreement) under that enactment, as amended, extended or
applied as described in paragraph (a) above or under any
enactment referred to in paragraph (b) above.
(4) Sub-clauses (1) to (3) above apply unless the contrary intention
appears.
(5) The headings in this agreement do not affect its interpretation.
3. OPTION
(1) In consideration of the Buyer today entering into the Lease the Seller
grants and Xxxxxxx confirms its consent to the grant to the Buyer of
the option of purchasing the Property subject to the matters referred
to in paragraph 5 of Schedule 3 at a price of [SELLING PRICE FROM THE
PROPERTY AGREEMENT].
(2) The Option shall not be exercisable after the termination or after any
renewal of the Lease.
4. EXERCISE OF THE OPTION
(1) On the date of this agreement the Seller has signed the Purchase
Document and delivered it to the Buyer with the part of this agreement
signed by the Seller.
(2) The Buyer may exercise the Option by completing and signing the
Purchase Document and delivering it to the Seller's solicitors
accompanied by a bank draft issued by a Clearing Bank or a telegraphic
transfer in favour of the Seller's solicitors for the deposit of [10%
OF SELLING PRICE] so as to be received by the Seller's solicitors at
the Seller's solicitors' address not later than 2 p.m. on the date
which is three months before the date on which the term of the Lease
expires (such deposit to be held by the Seller's solicitors as
stakeholders).
(3) If the Option is exercised the Seller shall sell and the Buyer shall
purchase the Property at the price of [SELLING PRICE] and on the terms
specified in Schedule 3.
(4) Time shall be of the essence of the contract in respect of the periods
of time mentioned in sub-clause (2).
[(5) Paynes Lane, Rugby only - if the Option is exercised then the Seller
and the Buyer shall also complete the appropriate Deed of Grant in
respect of either the Red Land or the Green Land on the Completion
Date provided that no Deed of Grant shall be completed if the Buyer
exercises its option to purchase both the Red Land and the Green Land
on the same date]
[(6) Victoria Steel Works, Bull Lane, Xxxxxx only - the transfer of the
Property shall contain the following provision:
"The Transferor hereby assigns to the Transferee absolutely the
benefit of the option to acquire the freehold reversion to the
Leasehold Part as is contained in the lease, particulars of which are
set out in Part 2 of Schedule 1 of this agreement]
5. REGISTRATION
(1) The Buyer shall submit a valid application for registration of this
Option against the Seller's title to the Property within ten days of
completion of this Option and will use all reasonable endeavours to
achieve such registration and will keep the Seller's solicitors
informed of progress on a regular basis and will send the Seller's
solicitors evidence of completion of the registration provided that if
such application for registration has not been submitted within six
months of the date of completion the Seller's solicitors may submit
the application, at the cost of the Buyer.
[(2) Blackbrook Road Dudley only.
In relation to the part of the Property registered under title number
WM159185 for which the Seller will apply for a replacement land
certificate, the provisions of sub-clause (1) above shall only apply
once the Seller or the Seller's solicitors have notified the Buyer's
solicitors of the replacement title number.]
(3) The Seller consents to the Buyer noting this agreement against title
number [ ] being the registered title to the
Property and shall forthwith lodge the Land Certificate relating to
the Property at the Land Registry to enable this to be done.
(4) If the Option is not exercised within the time period referred to in
clause 3 the Buyer shall procure forthwith the cancellation of any
registration at the Land Registry or the Land Charges Registry made by
or on behalf of the Buyer to protect the Option. The Buyer
irrevocably and by way of security appoints the Seller to be its
attorney to apply for and procure the cancellation but only in the
circumstances where the Buyer must cancel the registration under this
sub-clause and has failed to do so within one month of the date by
which it is obliged to do so.
6. GUARANTEE
In consideration of the Seller entering into this Agreement at the
Guarantor's request, the Guarantor guarantees to the Seller the
obligations and liabilities of the Buyer under this Agreement the
guarantee to be in the form of clause 8 of the Property Agreement with
the amendments necessary to ensure that the guarantee applies to this
Agreement.
7. THE PARTIES' SOLICITORS
At any time and from time to time either party may serve notice on the
other that:
(a) the party's solicitors' address has changed to another address in
England or Wales as specified in the notice; or
(b) the identity of the party's solicitors has changed to another
solicitor or firm of solicitors (not being an officer or employee
of the Seller or the Buyer or the Guarantor) with an address in
England or Wales both as specified in the notice.
8. ANNOUNCEMENTS
No party shall make, or permit any member of the Seller's Group or the
Buyer's Group (as the case may be) to make, any announcement
concerning the subject matter of this agreement or any ancillary
matter before, on or after exercise or expiry of the Option except:
(1) as required by law or by any regulatory body including in the
case of the Guarantor, the United States Securities and Exchange
Commission or the NASDAQ Stock Market and in the case of the
Seller, the London Stock Exchange; or
(2) without the written approval of the other party, such approval
not to be unreasonably withheld or delayed.
9. VAT
(1) If any VAT is chargeable in respect of any supply made by the Seller
under or pursuant to this agreement, the Buyer shall pay the amount of
that VAT to the Seller by way of additional consideration on
completion against issue of a proper VAT invoice by the Seller.
(2) Without limiting sub-clause (1) above, each amount stated as payable
by the Buyer under or pursuant to this agreement is exclusive of VAT
(if any) and is to be construed as a reference to that amount plus any
VAT in respect of it.
(3) For the avoidance of doubt, any VAT payable on the deposit shall be
paid by the Buyer to the Seller when the deposit is paid.
10. GENERAL
(1) Each of the obligations undertaken by any party under this agreement
(excluding any obligation fully performed on exercise or expiry of the
Option) shall continue in force after exercise or expiry of the
Option.
(2) The rights and obligations of the Buyer under this agreement may be
assigned to a permitted assignee of the Lease at the same time as a
permitted assignment of the Lease.
(3) Where the Buyer or the Seller or the Guarantor is more than one
person:
(a) those persons shall be jointly and severally responsible in
respect of every obligation undertaken by them under this
agreement; and
(b) the Seller may release or compromise the liability of any of
those persons under this agreement or grant any time or other
indulgence without affecting the liability of any other of them.
(4) This agreement may be executed in any number of counterparts, all of
which, taken together, shall constitute one and the same agreement,
and any party may enter into this agreement by executing a
counterpart.
(5) This agreement, the Lease, the Renewal Deed, the Side Deed and the
Property Agreement and any documents referred to in them contain the
whole agreement between the parties relating to the transaction
contemplated by this agreement and supersede all previous agreements
between the parties relating to this transaction.
(6) The Buyer acknowledges that in agreeing to enter into this agreement
the Buyer has not relied on any representation, warranty, or other
assurance except those set out in this agreement and relevant
warranties, representations or assurances contained or referred to in
the main Sale of Business Agreement and the Seller's solicitors'
written replies to the Buyer's solicitors' written enquiries before
contract but nothing in this sub-clause shall limit or exclude any
liability for fraud.
11. NOTICES
Where the Buyer is Niagara Lasalle (UK) Limited the notice provisions
set out in sub-paragraph A below shall apply to any notice served
under this Agreement, such notice provisions being personal to Niagara
Lasalle (UK) Limited. At any other time the notice provisions set out
in sub-paragraph B below shall apply.
A. (1) Any notice or other document to be served under this agreement
may be delivered or sent by post to the party to be served as
follows:
(a) to the Seller at the address set out in this Agreement
marked for the attention of the Company Secretary;
(b) to the Buyer at
Victoria Steel Works
Bull Xxxx
Xxxxxx
Wednesbury
West Midlands WS10 8RS
marked for the attention of Xxxx Xxxxxxx;
(c) to the Guarantor at:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, 00000
XXX
or at such other address as it may have notified to the other
party in accordance with this clause. Any notice or other
document sent by post shall be sent by prepaid first class
recorded delivery post (if within the United Kingdom) or by
prepaid registered airmail (if elsewhere).
(2) Any notice or other communication shall be deemed to have been
duly given:
(a) if delivered personally, when left at the address referred
to in subclause (1); or
(b) if sent by recorded mail other than airmail, two days after
posting it; or
(c) if sent by registered airmail, six days after posting it,
provided always that a notice given in accordance with the above
but received on a day which is not a Business Day or after
business hours on a Business Day in the place of receipt will
only be deemed to be given on the next Business Day in that
place.
B(1) Any notice or document to be served under this agreement shall be in
writing and may be delivered or sent by post or facsimile process to
the party to be served at its address appearing in this agreement or
at such other address or facsimile number as it may have notified to
the other parties in accordance with this clause. Any notice or other
document sent by post shall be sent by prepaid first class recorded
delivery post (if within the United Kingdom) or by prepaid airmail (if
elsewhere).
(2) Any notice or document (other than the Purchase Document) shall be
deemed to have been served:
(a) if delivered, at the time of delivery; or
(b) if posted, at 10.00 am on the second working day after it was put
into the post, if sent within the United Kingdom, or at 10.00 am
(local time at the place of destination) on the fifth working day
after it was put into the post, if sent by airmail; or
(c) if sent by facsimile process, at the end of two hours after the
time of despatch, if despatched before 3.00 pm (local time at the
place of destination) on any working day, and in any other case
at 10.00 am (local time at the place of destination) on the next
working day after the date of despatch.
(3) In proving service of a notice or document (other than the Purchase
Document) it shall be enough to prove that delivery was made, or that
the envelope containing the notice or document was properly addressed
and posted as a prepaid first class recorded delivery letter or that
the facsimile message was properly addressed and despatched, as the
case may be.
12. GOVERNING LAW AND JURISDICTION
(1) This agreement is governed by and shall be construed in accordance
with English law.
(2) The Guarantor submits to the jurisdiction of the English courts for
all purposes relating to this agreement and appoints the Buyer's
solicitors, Paisner & Co of Bouverie House, 000 Xxxxx Xxxxxx, Xxxxxx
XX0X 0XX (or such other solicitors as shall subsequently be notified
in writing to the Seller) as its agent for service of process with
respect thereto.
AS WITNESS the hands of duly authorized representatives of the parties on
the date which appears first on page 1.
SCHEDULE 1
THE PROPERTY
PART 1 - FREEHOLD
[RELEVANT DESCRIPTION TO BE INSERTED FOR EACH PROPERTY]
PART 2 - LEASEHOLD
[RELEVANT DESCRIPTION TO BE INSERTED FOR EACH PROPERTY]
SCHEDULE 2
PURCHASE DOCUMENT
By this document [RELEVANT GLYNWED COMPANY] LIMITED (registered number [
]) whose registered office is at Headland House, New Coventry
Road, Xxxxxxx, Birmingham (the "SELLER") irrevocably binds itself to sell
the property (the "PROPERTY") described in Schedule 1 of an option
agreement (the "AGREEMENT") made on 1999 between the
Seller, Niagara LaSalle (UK) Limited (registered number 3725308) whose
registered office is at [ ] (the "BUYER") and
Niagara Corporation a corporation organised and existing under the laws of
the State of Delaware whose principal office is at 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, 00000, XXX (the "GUARANTOR") at the price specified in clause 2 of
the Agreement and on the terms specified in Schedule 3 of the Agreement
which are incorporated in this document provided that the Buyer exercises
the option to buy the Property granted by clause 2 of the Agreement
strictly in accordance with clause 3(2) of the Agreement.
Dated 1999
______________________________
Director duly authorised for
and on behalf of the Seller
Limited (registered number ) whose registered
office is at (being the person presently entitled to the benefit of the
option granted by clause 2 of the Agreement) gives notice of its exercise
of the option and agrees to buy the Property at the price and on the terms
set out above.
Dated 19
____________________________
Duly authorized for and
on behalf of the Buyer
SCHEDULE 3
TERMS OF THE SALE
1. INTERPRETATION AND SALE
(1) The terms of clause 1 of this Agreement are incorporated into this
schedule to the same effect as if set out in full.
(2) The Seller agrees to sell and the Buyer agrees to buy the Property at
the price specified in clause 2 of the Agreement.
(3) The Seller shall transfer the Property with full title guarantee.
(4) The transfer shall state that it is subject to every matter subject to
which the Property is sold by virtue of this agreement.
2. SUB-SALES
The Seller shall not be obliged to transfer the Property or any part
of it to any person other than the Buyer or a member of the Buyer's
Group, or an assignee of this Agreement or at a price divided between
different parts of the Property or in more than one parcel or by more
than one transfer.
3. TITLE
The Seller's title is registered with [ ] title under
title number [ ] in the [ ] District
Land Registry.
[OR]
Title shall be deduced and shall commence with a [conveyance on sale]
dated [ ] 19[ ] between [ ].
4. COVENANTS AND RIGHTS
The Property is sold subject to the Covenants and the Rights. The
Leasehold Parts are sold subject to the Rents and the Leasehold
Obligations. The Buyer shall not raise any enquiry, objection or
requisition in respect of the Covenants, the Rights, the Rents or the
Leasehold Obligations (save in respect of matters arising between the
date of this Agreement and the date of completion of the sale
contemplated by this Agreement).
5. VACANT POSSESSION
The Property is sold subject to the Lease and any other interest in
the Property created by the Buyer.
6. LICENCE TO ASSIGN
(1) This clause applies to each Leasehold Part in relation to which the
Consent must be obtained in order that it may be effectually and
lawfully assigned or transferred to the Buyer.
(2) The Seller and the Buyer shall each use reasonable endeavours to
obtain the Consent as soon as possible, but the Seller may not be
required to make any payment, charge any assets, enter into any
commitment, give any guarantee or provide any security. If the
Consent is not granted within three months of the application for
Consent being made, the Seller will at the reasonable request and at
the joint equal cost of the Buyer and the Seller commence proceedings,
including (without limitation), proceedings for a declaration that the
Consent is being unreasonably withheld provided that the Buyer shall
provide reasonable security for its share of the costs prior to
commencement of proceedings if reasonably required by the Seller.
(3) The Buyer shall:
(a) supply promptly to the Seller such information, including
accounts for the last three years and references, as may
reasonably be required by the Landlord or any superior landlord
in connection with the application for the Consent;
(b) comply with all reasonable requirements which, by the terms of
the Superior Lease or any superior lease, the Landlord or any
superior landlord is entitled to impose on a prospective assignee
of the Superior Lease as a condition of granting the Consent;
(c) if reasonably required by the Landlord or by any superior
landlord as a condition of granting the Consent, covenant
directly with the Landlord to pay the Rents and to observe and
perform the Lease Obligations and with each superior landlord to
observe and perform the covenants on the part of the tenant
(other than the covenant to pay rent) and the conditions
contained in the relevant superior lease;
(d) if reasonably required by the Landlord as a condition of granting
the Consent, provide such reasonable security for payment of the
Rents and observance and performance of the Lease Obligations as
the Landlord may reasonably require (including, without
limitation reasonable, guarantees and rent deposits).
(4) If the Consent has not been obtained by twelve months from the
Completion Date notwithstanding that the Buyer has taken all
reasonable steps to obtain the Consent, including court proceedings,
at any time after that date the Buyer shall have the right, at its
option, to either:
(a) simultaneously complete the purchase of the part of the Property
which is freehold and take an assignment of the Lease of the
Leasehold Part of the Property; or
(b) request the Seller to apply for the landlord of the Superior
Lease's consent to the grant of an underlease of the Leasehold
Part of the Property such underlease to be on the same terms as
the Superior Lease in all respects (excluding the duration of the
term and with the addition of guarantee provisions to be agreed
between the parties, acting reasonably) for the residue of the
term under the Superior Lease less one day, such underlease to be
granted to the Buyer as tenant and to be guaranteed by the
Guarantor. The provisions of sub-clauses (2) and (3) above shall
apply to any such application for consent and upon the grant of
such consent the Seller and Buyer shall simultaneously complete
the purchase of the freehold part of the Property and the
underlease of the Leasehold Part of the Property.
(5) If the Consent or the consent to underlet has not been obtained by the
end of the term under the Lease (howsoever determined) the Buyer shall
on that date have the right, at its option, to simultaneously complete
the purchase of the freehold part of the Property and either the
assignment of the Lease of the Leasehold Part of the Property or an
underlease of the Leasehold Part of the Property such underlease to be
on the same terms as set out in clause (4) above, but if the transfer
and either the assignment or underlease are not completed on that date
the Option will expire and the Buyer will lose its right to purchase
the Property and the Landlord shall not be obliged to continue its
application for the landlord's consent to the assignment or underlease
of the Leasehold Part of the Property and the Buyer shall vacate the
Property forthwith.
(6) The reasonable costs and expenses of the Landlord, any superior
landlord and the mortgagees of any of them (including VAT) in
connection with the application for the Consent (including the cost of
any court proceedings shall be borne equally by the Seller and the
Buyer, whether or not the Consent is granted.
7. TRANSFER
(1) The transfer to the Buyer shall be executed in duplicate. The
original and the duplicate of the transfer shall be stamped and the
duplicate denoted against the original by the Buyer's solicitors at
the expense of the Buyer. After stamping the Buyer's solicitors shall
forthwith return the duplicate to the Seller's solicitors.
(2) The transfer shall contain a covenant by the Buyer by way of indemnity
only and not further or otherwise with the Seller that the Buyer and
the persons deriving title under the Buyer will:
(a) observe and perform the Covenants and keep the Seller indemnified
from all proceedings, costs, claims and expenses on account of
any breach of any of the Covenants;
(b) in relation to the Leasehold Parts, a covenant that the Seller
shall not be liable under any of the covenants set out in section
3 or section 4 of the Law of Property (Miscellaneous Provisions)
Act 1994 for the consequences of any breach of the terms of the
Superior Leases concerning the condition of the Property; and
(c) henceforth pay the Rents and all amounts becoming due (whether
under the Superior Leases or by statute) in respect of value
added tax on the Rents and observe and perform the Lease
Obligations and keep the Seller indemnified from all proceedings,
proper costs, claims and expenses on account of any omission to
pay the Rents or the amounts in respect of value added tax on
them or any breach of any of the Lease Obligations.
(3) If on the date of the exercise of the Option the Buyer is Niagara
Lasalle (UK) Limited the Guarantor must be a party to the transfer as
Guarantor and the transfer will contain a guarantee by the Guarantor
with the Seller that the Buyer will perform its obligations under the
transfer, the guarantee to be in the form of clause 8 of the Property
Agreement with the amendments necessary for it to refer to those
obligations.
(4) The transfer shall state that it is subject to every matter subject to
which the Property is sold by virtue of this agreement.
8. COMPLETION
The sale shall be completed at or before 1.00 pm on the date which is
three months after the date the Option has been exercised (the
"Completion Date") at the offices of the Seller's solicitors or as
they may require. The Seller shall not be bound to complete otherwise
than on a working day and otherwise than between 9.30 am and 5.30 pm.
9. STANDARD CONDITIONS OF SALE
(1) Subject to the variations mentioned in sub-clause (2), the Standard
Conditions of Sale (Third Edition) (excluding Conditions
1.1.1(a)(ii), 1.2, 1.3, 1.4, 3.2.2, 3.2.3, , 5.1.1, 5.1.2, 5.2., 8.1.3
and 8.3) are incorporated in this agreement so far as they:
(a) apply to a sale by private treaty;
(b) relate to freehold or leasehold property as appropriate; and
(c) are not inconsistent with the other clauses of this agreement.
(2) The Standard Conditions of Sale (Third Edition) shall be varied as
follows:
(a) add at the end of condition 2.2.1:
"or by a direct credit to a bank account nominated by the
seller's solicitor. The deposit shall be paid by a method which
gives immediately available funds";
(b) in condition 3.1.2(d) replace "except those maintained by
H.M. Land Registry or its Land Charges Department or by Companies
House" by "except, first, mortgages and, secondly, any entries on
the register maintained by H.M. Land Registry not disclosed by
office copy entries supplied before the date of the Option by
the seller or his solicitors to the buyer or his solicitors";
(c) at the end of condition 3.1.2 add new paragraphs (f) and (g) as
follows:
"(f) overriding interests as defined in Land Registration Act
1925 Section 70(1) or (where the title to the Property is
not registered) matters which would be overriding interests
if the title were registered other than (in respect of those
parts of the property sold with vacant possession) those
referred to in Section 70(1)(g) of that Act;
(g) all matters disclosed or reasonably to be expected to be
disclosed by searches or as the result of enquiries, formal
or informal, and whether made in person, by writing or
orally by or for the buyer or which a prudent buyer ought to
make";
(d) delete the second part of condition 3.3.2(b);
(e) replace condition 3.4.2 by the following:
"The buyer will have no right of light or air over the retained
land, and the seller shall have the rights over the property
which a buyer of the retained land would have had if the seller
had sold the retained land to that buyer at the same time as he
sold the property to the buyer";
(f) in conditions 6.1.2 and 6.1.3 replace "2.00 pm" by "1.00 pm";
(g) replace condition 6.7 by the following:
"The money due on completion shall be paid by a method which
gives immediately available funds. If it is not so paid,
completion is to be treated, for the purposes only of conditions
6.3 and 7.3, as taking place on the first working day after the
date of payment when the money due on completion is immediately
available funds in the hands of the seller";
(h) add the following at the end of condition 6.8.2(b):
"or if the mortgagee has agreed to release the property from the
mortgage on completion";
(i) in condition 7.1.1 replace "or in the negotiations leading to it"
by "or in the seller's solicitors' written replies to the buyer's
solicitors' written pre-contract enquiries prior to the date of
the Option Agreement";
10. ANNOUNCEMENTS
No party shall make, or permit any member of the Seller's Group or the
Buyer's Group (as the case may be) to make, any announcement
concerning the subject matter of this agreement or any ancillary
matter before, on or after exercise or expiry of the Option except:
(1) as required by law or by any regulatory body including in the
case of the Guarantor, the United States Securities and Exchange
Commission or the NASDAQ Stock Market and in the case of the
Seller, the London Stock Exchange; or
(2) without the written approval of the other party, such approval
not to be unreasonably withheld or delayed.
11. VAT
(1) If any VAT is chargeable in respect of any supply made by the Seller
under or pursuant to this agreement, the Buyer shall pay the amount of
that VAT to the Seller by way of additional consideration on
completion against issue of a proper VAT invoice by the Seller.
(2) Without limiting sub-clause (1) above, each amount stated as payable
by the Buyer under or pursuant to this agreement is exclusive of VAT
(if any) and is to be construed as a reference to that amount plus any
VAT in respect of it.
(3) For the avoidance of doubt, any VAT payable on the deposit shall be
paid by the Buyer to the Seller when the deposit is paid.
12. GENERAL
(1) Each of the obligations undertaken by any party under this schedule to
the agreement (excluding any obligation fully performed on exercise or
expiry of the option) shall continue in force after exercise or expiry
of the option.
(2) The rights and obligations of the Buyer and the Guarantor under this
agreement may not be assigned without the prior written consent of the
Seller.
(3) Where the Buyer is more than one person:
(a) those persons shall be jointly and severally responsible in
respect of every obligation undertaken by them under this
agreement; and
(b) the Seller may release or compromise the liability of any of
those persons under this agreement or grant any time or other
indulgence without affecting the liability of any other of them.
(4) This agreement may be executed in any number of counterparts, all of
which, taken together, shall constitute one and the same agreement,
and any party may enter into this agreement by executing a
counterpart.
(5) This agreement and the documents referred to in it contain the whole
agreement between the parties relating to the transaction contemplated
by this agreement and supersede all previous agreements between the
parties relating to this transaction.
(6) The Buyer acknowledges that in agreeing to enter into this agreement
the Buyer has not relied on any representation, warranty, collateral
contract or other assurance except those set out in this agreement and
the Seller's solicitors' written replies to the Buyer's solicitors'
preliminary enquiries. The Buyer waives all rights and remedies
which, but for this sub-clause, might otherwise be available to it in
respect of any such representation, warranty, collateral contract or
other assurance, but nothing in this sub-clause shall limit or exclude
any liability for fraud.
13. NOTICES
Where the Buyer is Niagara LaSalle (UK) Limited and the Guarantor is
Niagara Corporation the notice provisions set out in sub-paragraph A
below shall apply to any notice served under this agreement, such
notice provisions being personal to Niagara Lasalle (UK) Limited and
Niagara Corporation. At any other time the notice provisions set out
in sub-paragraph B below shall apply.
A. (1) Any notice or other document to be served under this agreement
may be delivered or sent by post or facsimile process to the
party to be served as follows:
(a) to the Seller at the address set out in this Agreement
marked for the attention of the Company Secretary;
(b) to the Buyer at
Victoria Steel Works
Bull Xxxx
Xxxxxx
Wednesbury
West Midlands WS10 8RS
marked for the attention of Xxxx Xxxxxxx;
(c) to the Guarantor at:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, 00000
XXX
or at such other address as it may have notified to the other
party in accordance with this clause. Any notice or other
document sent by post shall be sent by prepaid first class
recorded delivery post (if within the United Kingdom) or by
prepaid registered airmail (if elsewhere).
(2) Any notice or other communication shall be deemed to have been
duly given:
(a) if delivered personally, when left at the address referred
to in subclause (1); or
(b) if sent by recorded mail other than airmail, two days after
posting it; or
(c) if sent by registered airmail, six days after posting it,
provided always that a notice given in accordance with the above
but received on a day which is not a Business Day or after
business hours on a Business Day in the place of receipt will
only be deemed to be given on the next Business Day in that
place.
B(1) Any notice or document to be served under this agreement (other than
the Purchase Document) shall be in writing and may be delivered or
sent by post or facsimile process to the party to be served at its
address appearing in this agreement or at such other address or
facsimile number as it may have notified to the other parties in
accordance with this clause. Any notice or other document sent by
post shall be sent by prepaid first class recorded delivery post (if
within the United Kingdom) or by prepaid airmail (if elsewhere).
(2) Any notice or document (other than the Purchase Document) shall be
deemed to have been served:
(a) if delivered, at the time of delivery; or
(b) if posted, at 10.00 am on the second working day after it was put
into the post, if sent within the United Kingdom, or at 10.00 am
(local time at the place of destination) on the fifth working day
after it was put into the post, if sent by airmail; or
(c) if sent by facsimile process, at the end of two hours after the
time of despatch, if despatched before 3.00 pm (local time at the
place of destination) on any working day, and in any other case
at 10.00 am (local time at the place of destination) on the next
working day after the date of despatch.
(3) In proving service of a notice or document (other than the Purchase
Document) it shall be enough to prove that delivery was made, or that
the envelope containing the notice or document was properly addressed
and posted as a prepaid first class recorded delivery letter or that
the facsimile message was properly addressed and despatched, as the
case may be.
14. GOVERNING LAW AND JURISDICTION
(1) This agreement is governed by and shall be construed in accordance
with English law.
(2) The Guarantor submits to the jurisdiction of the English courts for
all purposes relating to this agreement and appoints the Buyer's
solicitors (or such other solicitors as shall subsequently be notified
in writing to the Seller) as its agent for service of process with
respect thereto.
Signed by [ )
for] the Seller in the )
presence of:- )
Signed by [ )
for] the Buyer in the )
presence of:- )
Signed by [ )
for] the Guarantor in the )
presence of: )
