Complete Agreement excluding last page which is a plan and is included in the linked pdf version here. The text below can be used for copying into other documents eg Word, Emails. The pdf version is the best for reading.
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CONDITIONAL AGREEMENT FOR SALE (FREEHOLD)
DATED 19TH April 2005
PARTICIULARS & DEFINITIONS
l. SELLER LONDON BOROUGH OF CAMDEN care of the Seller's Solicitors
2. .BUYER TRAC Properties Limited care of the Buyer's Solicitors
3, PURCHASE PRICE £320,000.00
DEPOSIT f £32,000.00. BALANCE £288,000,00
SUBJECT TO ADJUSTMENT IN ACCORDANCE WITH CLAUSE 8.2 AND 17
4- PROPERTY
(l) The FREEHOLD PROPERTY adjoining Dalby Street in the London Borough of Camden forming part of the .property and registered at HM Land Registry under Title Number NGL224383 and shown edged red on the Plan (“The Registered Property); and
(2) The Unregistered Freehold Property now forming part of Dalby Street in the London Borough of, Camden shown edged blue on the PIan ("the Unregistered Property)
TOGETHER called "the Property"
5. OFFICIAL COPIES Entries or records made in registers maintained by HM Land Registry under title number:-NGL224383 as at 23.07.2004
.6. COMPLETION DATE See clause 4.2
7. TITLE GUARANTEE Full
8. CONTRACT RATE Law Society's Interest Rate
9. POSSESSION Vacant Possession
10, STANDARD CONDITIONS Standard Conditions of Sale (Fourth Edition)
[“Photo Copy. We hereby certify this to be a true coy of the original. Sgnd BEAUCHAMS”]
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11. BUYER'S SOLICITORS Beauchamps of 4th Floor, 111-113 Great Portland Streel, London WlW 6QQ (Ref: MSR/A2417)
12. CONDITIONS PRECEDENT The Buyer obtaining:-
(a) Satisfactory Planning Consent ("the Planning CP”)
(b) Vacant possession of the whole of the Property on terms acceptable to the Buyer; and
(c) Such rights of way and other rights from third parties as are required by the Buyer to enable it to carry out and use the Development; and
(d) The acquisition (whether by transfer surrender or otherwise) of such additional land (with vacant possession) as is required by the Buyer to facilitate the Development wholly or within the area of land identified on the Plan and edged green; and.
(e) The Buyer obtaining a Stopping Up Order in relation to the Unregistered Property in terms acceptable to the Buyer in its reasonable discretion ("the Stopping Up CP"); and
(f) The Registration (as defined in clause 14) with absolute freehold title either free from any entries on the Register or subject only to such entries as are acceptable to the Buyer in its reasonable discretion ("the Registration CP"); and
(g) Agreement with occupiers of the Registered Property to vacate the Registered Property
13. OVERAGE PAYMENT The payment referred to in clause 12
14. SATISFACTORY PLANNING CONSENT
Detailed and if applicable conservation area planning consent(s) (whether or not on appeal) for the Development on conditions acceptable to the Buyer and free from any Onerous Conditions
15, DEVELOPMENT
as detailed in the First Schedule or for a development comprising a greater (or in the absolute discretion of the Buyer a lesser) aggregate floor area than that specified in the First Schedule and which may (in the event of the Buyer failing to obtain a Satisfactory Planning Consent for the whole of the Property) be a development of part of the Property in the absolute discretion of the Buyer
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16. ONEROUS CONDITIONS One which:-
(a) requires the expenditure of money or other consideration by way of planning outside and not in the immediate vicinity of the Property
(b) limits the occupation and/or use of the whole or any material part of the Property to any designated occupier or class of occupier
(c) prevents development without the agreement or cooperation of an independent third party which cannot be obtained on terms at a cost or within a time that is reasonable in the circumstances
(d) requires the expenditure of money or the carrying out of work within the Property on matters which could not have been reasonably foreseen by the Buyer as part of the development costs and which a reasonably prudent developer would consider unreasonable and excessive in all of the circumstances
(e) it is such that a reasonably prudent developer would reasonably conclude that it would be unduly restrictive in all of the circumstances
17. PLAN the attached plan or plans
18. PLANNING ACT
the Town & Country Planning Act 1990 as amended by the Planning and Compensation Act 1991
19. PLANNING REFUSAL
a refusal of planning permission applied for under this Agreement (including a deemed refusal arising under section 78(2) of the Planning Act
20. SELLER'S SOLICITORS
Commercial Law Team, Borough Solicitors Branch, London Borough of Camden, Torlrn Hall, Judd Street, London, WCIH 9PL
21. WORKING DAYS
Excludes Saturdays, Sundays and English public holidays and also the period ftom24 December to the next working day immediately following 1 January (inclusive)
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22. RSL
means a registered social landlord registered as such by the Housing Corporation who has entered into . an agreement with the Seller to secure any affordable housing units created as part of the Development as accommodation for people nominated by the Seller through its social rented and shared ownership housing allocation schemes
23- SECTION 106 AGREEMENT
means an agreement or any subsequent validation thereof between the parties pursuant to Section 106 of the Town and Country Planning Act 1990 (as amended) either entered into prior to or on the date hereof or intended to be entered into relating to the Development
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TABLE OF CONTENTS
1 Sale and Purchase
2. Incorporation of Particular and Interpretation
3. Standard Conditions
4- Deposit and Completion
5. Risk in the Property
6- Possession
7. Title
8. Defining the Property
9. Amending the Development
10. Buyer's Warranty
11, Planning Application
12. Overage Payment
13. Planning Obligation on Both Parties
14. Soil investigation and survey
15- Stopping Up and Dedication
16- Sellers Obligations in relation to Vacant Possession
17. Adjustment of Purchase Price
18. Conflict of laws
19. Contacts (Rights of Third Parties) Act 1999
.20. Failure to Complete
21. Disputes
22. Approval
23. VAT
24. Non Merger
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25.Good Faith
26. Nomination Rights
THE FIRST SCHEDULE ("The Development”)
THE SECOND SCHEDULE ('The Overage")
THE THIRD SCHEDULE ('The Occupiers of the Property")
TIHE FOURTH SCHEDULE ("The Development Appraisal')
THE FIFTH SCHEDULE ("The Casey Agreement)
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1. Sale and Purchase
1.1. Subject to the terms of this Agreement the Seller will sell the Property with Full Title Guarantee and the Buyer will buy the Property for the Purchase Price upon the terms and conditions of this Agreement
1.2. If the Planning CP has not been satisfied or waived by the Buyer by the date 18 months after this Agreement then either party may at any time thereafter until the Planning CP has been satisfied or waived by the Buyer by written notice to the other party rescind this Agreement and the Deposit will immediately be refunded to the Buyer with all accrued interest Provided always that if at the date 18 months after this Agreement a planning appeal in respect of any planning application has been lodged (provided always that the Buyer shall not lodge an appeal unless counsel's opinion has been sought and ' counsel estimates that the chances of success of the appeal are 50% or greater) but not yet determined and/or the judicial review period in respect of a Satisfactory Planning Consent has not yet expired and/or an application for such judicial review has been made and has not yet been determined then such date shall be extended to the date 36 months after the date hereof or if earlier until the later of the following dates:-
1.2-1- the date on which such appeal is determined
1.2.2. the date fourteen days after the judicial review period has expired without any application for judicial review having been made
1.2.3 the date of determination of any such application for judicial review
1.3. If any of the other Conditions Precedent have not been satisfied or waived by the Buyer by whichever is the sooner of (a) the date 18 months after satisfaction of the Planning CP and (b) the date 36 months after the date hereof ("the Relevant Date”) then either party may at any time thereafter by written notice to the other party
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rescind this Agreement and the Deposit will immediately be refunded to the Buyer ' with all accrued interest.
1.4 The parties agree that the Conditions Precedent are for the sole benefit of the Buyer and can be wholly or partly waived in writing by the Buyer in its discretion at any time
2. Incorporation of Particulars and Interpretation
2.1. This Agreement incorporates the Particulars and the expressions set out in them have the meanings given to them in the Particulars
2.2. Reference in this Agreement to the Seller and the Buyer will include reference to their respective successors in title where the context so permits
2.3- Reference in this Agreement to the Property will include reference to the Property or any part or parts of the Property where the context so permits
3. Standard Conditions
3.1. The Property is sold subject to the Standard Conditions so far as they are not varied by or inconsistent with this Agreement and are applicable to a sale by private treaty
3 2. All references in the Standard Conditions to "the property" shall be deemed to be references to the Property
3-3. Standard Conditions 4.2,4,3.2, and 8.2 shall not apply to this Agreement
3.4. The Property is sold free from encumbrances (including any financial or other charges) other than:-
3.4.1. as disclosed in this Agreement the documents of title, written replies of the Sellers' solicitors to written enquiries of the Buyer's solicitors and in correspondence between the Seller's and Buyer's respective solicitors
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3..4.2. any matters contained or referred to in the Official Copies
3.4.3. any matters which the Seller does not and could not reasonably know about
3.4.4. any matters disclosed or which would have been disclosed by the searches and enquiries which a prudent buyer would have made before entering into this Agreement
3-4-5. public requirements as defined in the Standard Conditions
Provided always that the Seller has disclosed to the Buyer in writing prior to the date hereof all such mattets of which the Seller is aware
4. Deposit and Completion
4.1. The Buyer has on the signing of this Agreement paid the Deposit to the Seller's Solicitors as stakeholders provided that the Deposit shall in fact be held to the Seller's Solicitor's order by flre Buyer's Solicitors in a designated deposit account and all interest on this amount will accrue to the Buyer
4.2. Completion will take place fifteen Working Days after:-
(i) the date when all the Conditions Precedent have been satisfied or waived by the Buyer; and
(ii) the later of:-
(a) 14 days after expiry of the judicial review period in relation thereto without any application for judicial review having been made; or
(b) the determinalion of any such application for judicial review upholding the relevant Satisfactory Planning Consent without qualification
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and the Buyer will within five Working Days of such grant give written notice to the Seller's Solicitors that Satisfactory Planning Consent has been granted
Provided always that sub-clause 4.2(ii) shall not apply if the Buyer has waived the first Condition Precedent
5. Risk in the Property
The Risk in the Property remains with the Seller until the date of actual completion
6. Possession
The Property is sold with vacant possession on completion provided always that the Seller's obligation to secure vacant possession of the Registered Property shall be no greater than as set out in clause 16 hereof
7. Title
7.1 In respect of the Registered Property the Buyer acknowledges that it has received the evidence of title referred to in Standard Condition 4.2 and accepts that title and will not:
7.1.1 call for evidence of any earlier or other title or
7 .l..2 raise any requisition or objection to it
Save in respect of any matter not disclosed in writing to the Buyer or the Buyer's Solicitors pror to the date hereof in respect of which the Buyer shall have such rights
8. Defining the Property
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8.1. The Buyer accepts the description of the Property in this Agreement and the Transfer and is not entitled to call for any further evidence of identity or of any matter mentioned in the Standard Condition 4-3
8.2.In the event of the Buyer failing to obtain a Satisfactory Planning Consent in relation to the whole of the Property but obtaining a Satisfactory Planning Consent in relation to part of the Property then the Buyer shall be entitled (but not obliged) to elect to purchase only the relevant part of the Property by giving the Seller or its solicitors written notice to that effect accompanied by a plan clearly identifying the relevant part of the Property ("the Relevant Part of the Property") in which event:-
8.2.1 The Property shall thenceforth be deemed to be the Relevant Part of the Property instead of the Property; and
8.2.2 The provisions of this Agreement shall thenceforth take effect in all respects as if the Property arrd the Purchase Price had originally been specified as the Relevant Part of the Properly and the Purchase Price reduced in accordance with clause 19 respectively and
8,2.3 The Purchase Price shall be reduced in accordance with clause 17
8,2.4 In the event of the Buyer electing to purchase a Relevant Part of the Property then in such circumstances the Seller will report expeditiously to the Executive to ascertain whether the Executive will consent to the amended final terms of the scheme where they differ from that specified in the executive consent dated 14.01.2004 and 07.04.2004.
9. Amending the Development
If in the opinion of the Seller acting reasonably the Development materially alters from the Development described in the First Schedule then the Seller will expediously report to the Executive to ascertain whether the Executive will consent to the amended Development
10. Buyer's Warranty
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The Buyer confirms that:
10.1. it has inspected the Property or had it inspected on its behalf and that it is buying with fult knowledge of the design state and condition of all buildings fixtures and fittings on the Property and their respective materials of construction manufacture and installation
t0.2. it has obtained advice and information regarding the Property independently of the Seller
10.3. it has not been induced to enter in this Agreement by or in reliance on any statement ("a Strtement") either oral or in writing made by or on behalf of the Seller except for written replies by the Seller's Solicitors to written enquiries made by the Buyer's Solicitors (and that those replies are based on the Seller's actual knowledge) or other written information supplied by the Seller's Solicitors to the Buyer's Solicitors prior to the date hereof
11. Planning Application
11,1- The Buyer will be at liberty to make one or more applications for Satisfactory Planning Consent and in its discretion to appeal any refusal or condition
11.2. In the event of the Buyer determining that a Satisfactory Planning Consent will not be obtainable at all or within a reasonable period the Buyer shall also be entitled to make any other planning applications in its discretion in relation to the Property or part thereof
12. Overage Payment
The Buyer agrees to pay overage (if applicable) in accordance with the provisions contained in the Second Schedule
13, Planning Obligations on Both Parties
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13.1. In connection with the Buyer's application for Satisfactory Planning Consent (referred to in this clause as "any Planning Application') the Seller hereby covenants with the Buyer as follows:
13,1.1, To give all reasonable assistance as far as it is able to the Buyer in seeking to obtain the grant of any Planning Application provided that any planning application is in accordance with clause 11 and further provided that this shall not in any way limit the power and discretion of the Environment Department of the Seller to act as they reasonably see fit in accordance with any relevant legislation in the granting refusing or processing of any planning application and provided further that the Seller shall not be obliged to join with the Buyer in appealing any planning application
13.l-2. In the event that the planning authority or the Secretary of State indicates that any Planning Application would be granted if a Section 106 or other planning agreement ("a Planning Agreement') were to be entered into or in the event that any Planning Application is issued subject to a condition requiring the execution of a Planning Agreement to be entered into to enter into the relevant Planning Agreement if so required by the Buyer
PROVIDED THAT the seller shall not be obliged to enter into any Planning Agreement unless the Planning Agreement:;
(a) will not oblige the Seller to carry out works or make payments unless the Buyer first undertakes in a form acceptable to the Sellers (acting reasonably) to indemnify the seller from and against all such liability
(b) will be conditional upon the implementation of any Planning Application to which it relates and it will be incapable of coming into effect prior to such implementation (other than in relation to the payment of costs of the local authority where they are payable
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by the Buyer or reasonable security for them has been given to the Seller by the Buyer)
13.1,3, To permit the Buyer and all persons authorised by the Buyer to enter upon the Property on reasonable prior notice with all necessary equipment and ' professional advisers and contractors for the purposes set lout in clause 14 and for any other reasonable purpose in connection with the proposed development to which any Planning Application relates subject to the Buyer causing as little damage to the Property and as little disturbance and inconvenience to the Seller as reasonably practicable and as soon as reasonably practicable making good any physical damage caused by the exercise of such right
14. Soil investigations and survey
.14.1. Soil Surveys may be carried out prior to completion (for which the Buyer and its surveyors and other professionals shall have access on reasonable notice) upon the following conditions :-
14.1.1. the surveys will be carried out entirely at the Buyer's own risk and expense
14.1.2. any damage caused to the property or any neighbouring property in the exercise of such right will be made good as soon as reasonably practicable by the Buyer at its own expense to the reasonable satisfaction of the Seller's Agent
14-1.3. any artefacts discovered on the Property during the surveys before completion shall be handed to and shall (as between the parties) belong to the Sellers
14,2- Subject to and following completion of this Agreement The Purchaser will be responsible for dealing with any contamination in the site including any hazardous ground contamination which falls within the definition of contaminated land in the
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Environment Act 1995 or any subsequent amendment or re enactment thereto identified as a result of any soil and ground investigation undertaken at or after completion
15. Stopping Up and Dedication
15.1. the Seller shall do all such things as are reasonably required by the Buyer to assist the Buyer in obtaining a Stopping Up Order of the Unregistered Property and dedication of any roadways as are necessary to facilitate the Development including (without limitation) in relation to any part of the Unregistered property and will not make any objection to the same PROVIDED that this does not interfere with the Seller's statutory powers
15.2. Upon the Buyer obtaining a Stopping-Up Order in relation to the Unregistered Property the Seller shall forthwith at its own cost apply for registration with absolute freehold title to the Unregistered Property and will use all reasonable endeavours to procure such registration free from encumbrances as soon as reasonably possible ("the Registration")
15.3. The Seller shall keep the Buyer fully informed as to the progress of the Registration and upon obtaining the Registration shall forthwith supply official copy entries of the same to the Buyer
15.4. If the Seller fails to obtain the Registration in terms which satisfy the Registration CP then the Seller will if so required by the Buyer effect at the Seller's and Buyer's equal joint cost a single premium defective title indemnity policy with an insurer approved by the Buyer providing cover for the completed value of the Development as estimated by the Buyer such policy to be in terms acceptable to the Buyer in which event the issue of a policy in such terms (which has first been approved in writing by the Buyer) shall be deemed to satisfy the Registration CP
15.5. The Buyer shall to the extent necessary enter into an agreement in writing with Network Rail Infrastructure Limited in accordance with the Section 106 Agreement relating to the Development and the provision of public rights of way over Wilkins
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Street Mews in perpetuity (if such rights are necessary to proceed with the Development) such agreement to be enforceable by the Seller and to be provided to the Seller prior to the stopping up of Dalby Street
15.6. The Seller shall not following an order for stopping up be required to implement the same without the Buyer having first constructed a temporary access way as defined in the Section 106 Agreement
15.7. In the event of the Buyer having first constructed a temporary access way as referred to in clause 15.6 following completion of the Development the Buyer will substitute the temporary access way for a permanent access way as defined in the Section 106 Agreement
16. Sellers Obligations in relation to Vacant Possession
16.1. The Seller shall use reasonable endeavours to procure that prior to the Completion Date the occupier of part of the Property known as Mr Maloney one of the occupiers of the Property referred to at the Third Schedule vacates the Property by one or more of the following methods:-
16.1.(a) Firstly the Buyer shall use reasonable endeavours to procure that the Community Housing Association offers Mr Maloney suitable alternative accommodation
16.1.(b) Secondly the Seller shall offer Mr Maloney alternative accommodation outside the Property subject to and in accordance with the Seller's housing allocation policy PROVIDED ALWAYS that if Mr Maloney refuses to accept the Sellers accommodation then the Seller is under no further obligation to secure the vacation of Mr Maloney from the Property
16.1.(c) Thirdly the Buyer shall use reasonable endeavours to enter into an agreement with Mr Maloney on terms acceptable to the Buyer to vacate the property PROVIDED ALWAYS the Buyer shall first consult with the Seller as to the terms of any such agreement and where possible shall allow the Seller time to respond to the proposal
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and the Buyer will take into account any response from the Seller prior to concluding any agreement with Mr Maloney
16.2 The Buyer shall use reasonable endeavours to enter into an agreement on terms acceptable to the Buyer with the remaining Occupiers of the Property as referred to in the Third Schedule other than Mr Maloney for them to vacate the Property. The Buyer shall consult with the Seller if the terms of the agreement reached are materially different from that as set out in the Fifth Schedule. In procuring vacant possession of the Property while the Buyer is under no obligation the Buyer shall endeavour to procure that all of the Occupiers of the Property vacate the premises as closely together as possible taking into account the interests of both the Seller and the Buyer and the Buyer shall notify the Seller on or before 21 days of the vacation from the Property by one or more of the Occupiers of the Property
16.3.From the date hereof the Seller shall not allow any person to occupy any part of the Property (other than the existing occupiers listed in the Third Schedule of those parts of the Property listed against their names in the Third Schedule except where such existing occupiers have already vacated the Property)
16.4 Upon the Seller or the Buyer obtaining vacant possession from any of the said existing occupiers the Seller shall procure that the relevant parts of the .Property remain vacant and provided that the buyer has given notice in accordance with clause 16.2 above to the Seller the Seller shall forthwith decommission any utilities thereon and secure those relevant parts of the Property
17. Adjustment of Purchase Price
17.1.1 "the Initial Purchase Value" means the open market value of the Property as at the date when such open market value falls to be determined pursuant to clause 1?.5 with the benefit of a Satisfactory Planning Consent (not containing any unduly onerous or restrictive conditions) relating to the
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whole of the Property and permitting a development on the basis of the development appraisal set out in the Fourth Schedule
17.1.2 “The Revised Purchase Value" means (in the event of clause 8.2 or clause 17 applying) the open market value of the Property as at the date when such open market value falls to be determined pursuant to clause 17.5 of the Relevant Part of the Property with the benefit of the actual Satisfactory Planning Consent obtained for the Relevant Part of the Property
17.1.3. "the Differential Percentage" means the Revised Purchase Value as a percentage (which can be lower or higher than 100%) of the Initial Purchase Value
I7.2 The Purchase Price of £320,000 is based upon the Buyer obtaining a Satisfactory Planning Consent for the Development of the whole of the Property comprising the aggregate floor area set out in the First Schedule In the event of the Buyer obtaining either Satisfactory Planning Consent or some other planning consent in relation to the Property on the basis of which it decides to waive the first Condition Precedent permitting a development with an aggregate floor area differing (whether higher or lower) by more than 10 per cent from the aggregate floor area specified in the First Schedule and/or in the event of clause 8.2 applying then the Purchase Price shall be adjusted, (either upwards or downwards) in accordance with clause 17,4 PROVIDED ALWAYS that the Purchase Price shall not be less than £250,000
17.3 In the event of clause 8 applying the Purchase Price shall be reduced or increased by the Differential Percentage
17.4 In order to calculate the Differential Percentage the parties shall use their reasonable endeavours to agree the Initial Purchase Value and the Revised Purchase Value. In default of such agreement the matter shall be referred to an Expert in accordance with clause 21.
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I7-5 The provisions of clause l7.3 shall also apply in the event of any variation in the development necessitated by any third party intervention or other cause beyond the reasonable control of the parties that results in the area specified in the First Schedule reducing or increasing by 10% or more [above text in italics is in longhand in the document]
18. Conflict of Laws
The parties to this Agreement agree that tbis Agreement is to be construed in accordance with the laws of England and that the competent courts of England will have exclusive jurisdiction
19. Contracts (Rights of Third Parties) Act 1999
Unless it is expressly stated that the Contracts (Rights of Third Parties) Act 1999 is to apply nothing in this Agreement will create rights in favour of anyone other than the parties to this Agreement
20. Failure to Complete
If either party fails to complete by the Completion Date the party which fails to complete ("defaulting party") will also pay to the other party ("non-defaulting party") on actual completion (without prejudice and in addition to any right to compensation under the Standard Conditions) any additional sum which the non-defaulting party will have incurred or be liable to pay as a result of such delay for the reasonable fees plus VAT incurred by the non-defaulting party's solicitors in connection with the preparation and service of Notice to Complete and recalculation of the amount payable upon completion but not exceeding £250 plus VAT
21. Disputes
21-1 Any dispute or difference between the parties in connection with this Agreement will be refred to and settled by an impartial chartered surveyor ("the Expert") whose decision in relation to such matter is final and binding upon the parties
21.2 The Expert acts as an expert and not an arbitrator and the provisions of the Arbitration Act 1996 shall not apply to the Expert, his determination or the procedure by which he reaches his determination
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21.3 The party wishing to appoint the Expert will give notice in writing to that effect to the other parties together with details of the matter which he wishes to refer to the Expert
21.4 The identity of the Expert will be agreed by the parties in writing or, failing such agreement, the Expert will be appointed by the President for the time being of the Royal Institution of Chartered Surveyors ("the President” and "the Institution" respectively) on the application of any party. If the President is not for any reason available or is unable to make the appointment at the time of the application, the Expert will be appointed by the Vice President or next senior officer of the Institution then available and able to make ths appointment. Any reference to the President includes a reference to the Vice President or other officer of the Institution as appropriate. If no such officer of the Institution is available or able to make the appointment the Seller will designate an impartial chartered surveyor to be the Expert
21.5 A person can only be appointed to act as an Expert if at the time of the appointment he is not:
21.5.1 a director, office holder or employee of; or
21.5.2 directly or indirectly retained as a consultant or in any other professional capacity by; any party to this Agreement or any company or person associated with any such party.
2l-6 Within fourteen Working Days from his appointment he Expert will call the parties to a meeting at which he will give directions as to the future conduct of the matter and will from time to time give such further directions as he shall see fit, The Expert will allow the parties to make written representations and written counter-representations and will rely on his own judgement
21.7 The parties will give to the Expert such assistance as the Expert considers necessary to carry out his function
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21.8 The Expert will give notice in writing of his decision to the parties within four weeks of his appointment within such extended period as the parties may agree in writing
2l-9 The costs of the reference to the Expert will be borne as he directs and failing any such direction will be shared equally between the parties. If any party pays the whole or part of the Expert's fees the other party will upon demand repay to the paying party the whole or part of any fees so paid, insofar as the Expert awards such fees against the non paying party
21.10 If the Expert ("the Original Expert"):
21.10.1 fails to determine the matter referred to him;
21.t0.2 fails to give notice of his decision within the time and in the manner provided for in this clause;
21.10-3 relinquishes or does not accept his appointment;
21.10.4 dies; or
21.10-5 it becomes apparent for any reason that he is unable to complete the duties of his appointment;
any of the parties may apply to the President for a substitute to be appointed (but not after the Original Expert has given notice of his decision to the parties in dispute).ln such event the Original Expert is no longer the Expert, the provisions of this clause apply as if the Original Expert had not been appointed and will be repeated as many times as necessary. Any reference to the Expert in this clause is deemed to include any substitute appointed pursuant to this sub-clause 21.10
22 Approval
Excepting any consent or approval needed from the Seller's Executive or any statutory approvals shall not be delayed and any approval needed under this Agreement is required to be given in writing such approval not to be unreasonably withheld or delayed
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23 VAT
The Property is not elected to VAT and the Seller will not elect it to VAT prior to Completion and accordingly no VAT shall be payable on the Purchase Price
24 Non Merger
The provisions of this Agreement will not merge in the Transfer but will remain in full force and effect with regard to anything remaining to be done performed or observed under this Agreement
25 Good Faith
The Seller and the Buyer shall act in good faith and shall co-operate with each other to facilitate the discharge and performance of all obligations under the terms of this Agreement.
26. Nomination Rights
In so far as there will be any social rented housing units or shared ownership units on the property following its redevelopment by the Buyer the Buyer will enter into an agreement or agreements with the RSL or alternatively the Buyer will ensure that the RSL enters into an agreement or agreements directly with the Seller to give the Seller nomination rights over all of the said social rented housing units and the shared ownership units subject to the relevant nominations agreement as required
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THE FIRST SCHEDULE
The Development
To undertake a mixed use development, to include private and affordable housing substantially in the form approved by Planning Consent ref 2004/2689/P dated 23 December 2001 the affordable housing details of which are contained in the s106 Agreement between the developers and the Council as dated 23 December 2004, with the aim of providing 14 social rented and 4 shared ownership affordable housing units.
The aggregate gross internal floor area for the purposes of clause 17.2 is 5,186 sq m.
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2nd Schedule being Overage provisions
TIIE SECOND SCHEDULE
Overage Payment
1. In this Schedule the following expressions shall have the following meanings;
"Total Sales Value" means as at the Relevant Date the aggregate of the following in relation to all private residential parts of the Development (excluding all social or affordable housing):-
(1) the actual sale price achieved by the Buyer in relation to any sale at arm's length on the open market; and
(2) the open market value of all unsold private residential parts of the Development which are intended to and capable of separate occupation and use as agreed between the Seller and the Buyer or (in default of such agreement determined by the Expert in accordance with Clause 21 and in this context the Expert shall make his decision on the basis of normal valuation criteria for residential property being sold on a freehold or long leasehold basis (as appropriate to the type of property)
"the Relevant Date" means the later of:-
(1) Practical completion of the Development; and
(2) Completion of the sale or letting of each and every part of the Development intended for and capable of separate occupation; and
(3) First Occupation of all parts of the Development
Provided that if the Relevant Date has not been triggered on the date 12 months after the date of practical completion of the Development f”the Long Stop Date”) then the Long Stop Date shall become the Relevant Date
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"Net Profit" means the actual net profit realised from sales by the Buyer of all parts of the Development (for the avoidance of doubt to include private and affordable housing, car parking, A.3 and any other parts of the Development) received by the Buyer as at the Relevant Date together with the open market value of any unsold parts of the Development which are intended to and capable of separate occupation and use and capable of being valued as such as agreed between the Seller and the Buyer or in default of such agreement) determined by the Expert in accordance with clause 21 and in this context the Expert shall make his decision of the basis of normal valuation criteria for the appropriate part of the Development less all expenditure ("Expenditure") reasonably incurred of whatever nature paid or incurred by the Buyer directly or indirectly in connection with the Development including (without limitation) the Purchase Price and all:-
(l) construction and building costs
(2) professional and agents costs
(3) promotional and advertising costs
(4) interest and banking charges
(5) Project management
(6) Costs incurred in securing the Property and vacant possession of the Property
(7) associated costs reasonably incurred of whatever nature
"Total Sales Value Per Square Foot" means the Total Sales Value divided by the net square footage of all private residential parts of the Development which are intended for and capable of separate occupation and use
"Benchmark Sale Value Per Square Foot” means £4l5 per square foot
"Residential Elements Excess" means:
Page 26
(A-B)xC
where:-
A=Total Sales Value Per Square Foot
B=Benchmark Sales Value Per Square Foot
C=the total net internal square footage being the sum of all self contained private residential apartments comprising the Development which are intended for and capable of separate occupation and use
"Development Excess" means the amount (if any) by which Net Profit exceeds 25 per cent of Expenditure
"Overage" means 30 per cent of the of Development Excess
PROVIDED ALWAYS that "Overage" shall be nil if;-
(1) There is either no Residential Elements Excess or no Development Excess;
and/or
(2) Overage is £10,000 or less
If there is any Overage then it shall be paid by the Buyer to the Seller within 28 days after it has been agreed between the parties or (in default of agreement) determined by the Expert in accordance with clause 20
THE THIRD SCHEDULE
Page 27
The Occupiers of the Property
Thomas Maloney – Pitch 1
Michael Casey – Pitch 2
Norah Casey Pitch 3
Page 28 THE FOURTH SCHEDULE
The Development Appraisal
REVENUE File: Prince Of Wales Road NWI LBC Agreed
A3 Bar Restaurant 2,142.00 sq ft @ £I6.00 psf/ann 34,272
inv.Value-A Net annual income 34,272
Capitalised at 7.5% Yield 456,960
Less Unpaid Rent; 6 Months Income 17,136
Less Purchasers costs of 5.75% 24,847 414,977
Private Sector Residential 22583 units @ 1.00 sq-f @ 363.00 psf 8,197,629
Affordable Housing Purchase Price @ 3,256,000.00 ea. 3,256.000
Car Spaces 20 spaces @ 15,00 300,000
(inv sales 414,977) 12,168,606
COSTS
Site Value 320,000
Site Stamp Duty at 3.00% 9,600
Site Legal Fees at 1.00% 3,200
Site Agency Fees at 2.00% 6,400 Site Costs 339,200
Site Payment to LB Camden 320,000
Relocation of Travellers cost 200,000
Initial Payment 520,000
A3 Restaurant Bar Shell 199.00 sq m @ 650.00psm 129,350
Private Sector Residential 2,506.00 sq m @ 1,560psm 3,909,360
Affordable Housing 792.00 sq m @ 600.00psm 1,837,935
Cor Spaces 138.00 sq m @ 600.00psf 475,200
Plant And Refuse 138.00 sq ft @ 600 psf 82,800
External Works 643,500
Demolition and Site Security 55,040
Contingency at 5.00% 356,659
Project Management at 2.00% 142,664
Architect at 5.00% 356,659
Engineer at 2.00% 142,664
Quantity Surveyor at 2.00% 142,664
Planning Consultant 25,000
Landscape Architect 25,000
Traffic Engineers 15,000
Conservation Area Adviser 15,000
Fees To Date 25,000 Build Cost 8,379,495
Letting Agents Fee at 10.00% 3,427
Letting Legal Fees 1,500
Inv.sale Agents Fee at 1.50% 6,482
Inv.sale Legal Fees 5,000
Dir.sale Agents Fee at 2.00% 235,073
Dir.sale Legal Fees 45,000
Page 2
Disposal fees 296,481
Promotion 100,000
Legal Fees for Joint Venture 15,00 End Payments 115,000
INTEREST (See CASHFLOW) 531.250
6.25% pa on Debt charged Quarterly and compounded Quarterly
Site Costs Month 1 (March 20O5)
lnitial Payments Month 1 (March 2005)
Building Costs Month 6 to 19 {Sep 2005-Oct 2006}
End Payments Month 12 {March 2006}
Investment Sales Month 24 (March 2007)
Direct Sales Month 20 to 25 (December 2006 - April 2007
PROFIT 1,987,180 costs 10,181,426
PROFIT/SALE 16.33% PROFIT/COST 19,52%
IRR N/A
All figures are approximate and for information purposes,
No liability attaches to Third Parties
Floor areas based on architects scheduled areas
Gross commercial floor space = net + 20%
Gross residential floor space = net + 20%
Construction costs are taken from QSs cost budget prepared by Pierce Hill
Extent of ground conditions are not fully known at this stage
No allowances taken for VAT which is assumed fully reclaimable
E and OE
Not to be reproduced without expressed written consent
Copyright (c) SHAW CORPORATION 2005
Page 30
THE FIFTH SCHEDULE
The Casey Agreement
DATE _ -- -2005 –
and
and
TRAC PROPERTIES LIMITED)
AGREEMENT TO VACATE AND SURRENDER
BEACHAMPS
FOURTH FLOOR, 111-113 GREAT PORTLAND STREET
LONDON WIW 6QQ
Page 31
THIS AGREEMENT is made the day of 2005
BETWEEN
(1)] ("the Occupiers")
AND
(2) TRAC PROPERTIES LIMITED (Company Registration Number 3762881) whose registered office is at BSG Valentine, Lynton House, 7 - 12 Tavistock Square, London WCIH 9BQ ('the Company")
DEFINITIONS
In this Agreement:
"Company's Solicitors" means Beauchamps of Fourth Floor, l l l - 113 Great Portland Street, London V/lW 6QQ
"Completion" means actual completion of the obligations of the parties pursuant to this Agreement
"Completion Date" means the date of actual completion of the purchase of the Site together with other land by the Company pursuant to the Site Purchase Contract
"Condition" means the conditions to which the Completion by the Company of the Site Purchase Contract is subject to together with a further condition precedent that the Occupiers have performed their obligation under clause 3 of this Agreement
"Contractual Completion Date" means the contractual completion date for completion of the purchase of the Site together with other land by the Company pursuant to the Site Purchase Contract which shall be no earlier than [ ] days after the satisfaction of the Condition
"Deposit" means the sum of POUNDS (£5,000)
Page 32
"End Date" means the date seven years after this Agreement or such later date as the Occupiers and the Company in their discretion may agree in writing
"Licences" means the licences and/or documents of the pitches held by the Occupiers as described in the Schedule to this Agreement
"Payment" means the sum of POUNDS (£,) which sum is to be inclusive of any VAT that may be chargeable less the Deposit
"Site 'means the freehold land for the purpose of identification only shown edged red on the attatched plan which is registered at HM Land Registry under title number NGL2243383 lthe travellers' site]
"Site Owners" means the Mayor and Burgesses of the London Borough of Camden
"Site Purchase Contract" means the contract dated the day of 2005 between (1) the Mayor and Burgesses of the London Borough of Camden to purchase the Site together with other land
"Relevant Date" means the date by which the Condition shall have been satisfied
"Occupiers' Solicitors" means Comptons Solicitors 90-92 Parkway, London NWi 7AN
"VAT" means Value Added Tax or any tax replacing or supplementing the same or any tax on added value or turnover
2. INTERPRETATION
2.1. words importing one gender shall be construed as including or referring to any other gender
2.2. words importing the singular shall be construed as including or referring to the plural and vice versa
Page 33
2.3. Words importing persons shall be construed as including or referring to a corporate body an/or a partnership or vice versa
2.4. where any part comprises more than one person the obligations and liabilities of that party under this Agreement shall be joint and several obligations and liabilities of those persons
2.S. the clause headings do not form part of this Agreement and shall not be taken into account in its construction or interpretation
2.6. any reference to a clause or a paragraph or a schedule is to one in this Agreement so numbered
2.7. the obligation of the Occupiers to vacate their pitches at the Site and otherwise vacate the Site pursuant to clause 3.1 shall include (without limitation) the removal of their respective caravans, other belongings and any rubbish belonging to them from the Site [Note - Any speciJic requirements to be spelt out here as to what vacating the Site entails]
3. AGREEMENT TO VACATE AND SURRENDER
Subject to clause 6 and in consideration of the Company's obligations in this Agreement the Occupiers agree as follows:-
3.1. At least 5 days prior to the Contractual Completion Date to vacate their pitches at the Site and otherwise vacate the Site and not to return and/or to procure vacant possession of the Site;
3.2. On or before the Completion Date to surrender the Licences and all their estate interest and rights at the Site to the Site Owners by operation of law and to deliver to the Site Owner any keys and the Licences and the Site with vacant possession .
4. PAYMENT
Page 34
Subject to clause 6 and in consideration of the Occupiers having performed their obligations under this Agreement the Company agrees to pay to the Occupiers the Payment on the Completion Date by direct credit to a bank account nominated by the Occupiers' Solicitors
5. DEPOSTT
In consideration of the Occupiers entering into this Agreement the Company has on the date hereof paid the Deposit to the Occupiers receipt of which the Occupiers hereby acknowledge
6. CONDITIONALITY
6.1 Agreement to be condition
The parties' obligations pursuant to clauses 3 and 4 of this Agreement are conditional upon the occurrence of the Relevant Date on or before the End Date (time to be of the essence) and if the Relevant Date shall not have occurred on or before the End Date then this Agreement then automatically comes to an end together with all obligations under it except that this shall be without prejudice to any liability for earlier breach of obligation
6.2.Immediate effects of certain provisions in this Agreement
Notwithstanding the parties' obligations in clauses 3 and 4 of this Agreement are stated to be conditional the rights and obligations of the parties under clause 7 shall have immediate effect
6.3. Termination of the Site Purchase Contract
If the Site Purchase Contract shall determine for any reason whatsoever this Agreement shall automatically come to an end together with all obligations under it except that this shall be without prejudice to any liability for earlier breach of obligation
7. OBLIGATIONS OF THE PARTIES
7.1 Obligation of the Company
Page 35
7.1.1. The Company shall use reasonable endeavours to satisfy the conditions contained in the Site Purchase Contract but only to the extent that the Company has obligations to this effect under the Site Purchase Contract
7-I.2. The Company shall notify the Occupiers forthwith upon the satisfaction of the condition or conditions in the Site Purchase Contract so as to make the Site Purchase Contract unconditional
7.1.3- The Company shall procure that the Site Owners shall accept a surrender (to the extent required) of the Licences and vacant possession of the Site by the Occupiers in accordance with clause 3 of this Agreement
7-2. Obligation of the Occupiers
ln consideration of the Company entering into this Agreement and paying the Deposit the Occupiers covenant:-
(a) to co-operate with the Company and use all reasonable endeavours to assist the Company to discharge the Condition but in so doing the Occupier may not act independently of the Company; and
(b) to observe and perform the terms of the Licences or any other documents or agreements whether in writing or otherwise relating to their occupation of the Site and to pay the licence/occupation fee thereunder up to and including the Completion Date; and
(c) to use all reasonable endeavours to prevent any other party occupying the site during the continuance of this Agreement
4. RESTRICTION ON ASSIGNMENT AND SUB.SALE
This Agreement is personal to the Occupiers and is not capable of being assigned charged or mortgaged by the Occupiers
Page 36
Each party is responsible for its own professional costs relating to the preparation and implementation of this Agreement
10. C0NTRACTS (RTGHTS OF THIRD PARTIES) ACT 1999
Save as expressly provided none of the provisions of this Agreement are intended to or will operate to confer any benefit (pursuant to the Contracts (Rights of Third Parties) Act 1999 on a person who is not named as a party to this Agreement
11. CERTIFICATE OF'VALUE
It is certified that the transaction effected by this Agreement does not form part of a Iarger transaction or series of transactions in respect of which the amount or value or the aggregate amount or value of the consideration exceeds £250,000
SCHEDULE
Particulars of the Licences
Date Parties Pitch Demised
SIGNED by the parties or their duly authourised representatives of the parties at the date which appears at the head of this Agreement
[Executive Provision]
Page 37
Signed by [signature]
For and on behalf of the Seller
Signed by [no signature shown]
For and on behalf of the buyer
Page 38 is the Site Assessment Plan
END OF CONDITIONAL SALE AGREEMENT