EXHIBIT 10.17
ROYAL SOCIETY FOR THE
PREVENTION OF CRUELTY TO ANIMALS
(VICTORIA) INCORPORATED
BURGUNDY TWO PTY LTD
(ACN 071 195 429)
CONTRACT OF SALE OF REAL ESTATE
IMPORTANT NOTICE TO PURCHASERS
Cooling-off period Section 31 Sale of Land Act 1962
If none of the exceptions listed below applies to you, you may end this contract
within 3 clear business days of the day you sign the contract.
To end this contract within this time, you must either give the vendor or the
vendor's agent written notice that you are ending the contract or leave the
notice at the address of the vendor or the vendor's agent.
If you end the contract in this way, you are entitled to a refund of all the
money you paid EXCEPT for $100 or 0.2% of the purchase price (whichever is
more).
EXCEPTIONS -- The 3-day cooling-off period does not apply if --
- The price of the property (including chattels) exceeds
$250,000
- You bought the property at or within 3 clear business
days before or after a publicly advertised auction
- You received independent advice from a solicitor before
signing the contract
- The property is used mainly for industrial commercial
purposes
- The property is more than 20 hectares in size and is
used mainly for farming
- You previously signed a similar contract for the same
property
- You are an estate agent or a corporate body
The conditions of this contract are contained in the attached --
Particulars of Sale, and
Schedule, and
General Conditions, and
Special Conditions (if any).
The vendor sells and the purchaser buys both the property and the chattels for
the price and upon the conditions set out in this contract.
The Vendor's Statement required by section 32(1) of the Sale of Land Act 1962 is
attached to, and included in, this contract.
Where the signature of any party to this contract is secured by an agent, the
parties acknowledge being give a copy of this contract by the agent at the time
of signing.
(SEE ATTACHED)
__________________________________________________________Vendor
(SEE ATTACHED)
________________________________________________________Purchaser
GENERAL CONDITIONS ("GC")
Encumbrances
1.1 The purchaser buys the property and the chattels subject to
the encumbrances shown in Item 1 of the Schedule.
1.2 If the purchaser is taking over an existing mortgage--
(a) the purchaser assumes liability for the mortgage
(b) the price is satisfied to the extent of any mortgage
money owing at the settlement date, and
(c) the vendor must treat any payment made by the purchaser
under the mortgage as a payment made to the vendor
under this contract.
Loss or Damage Before Settlement
2.1 The vendor carries the risk of loss or damage to the
property and the chattels until settlement date, and
2.2 The vendor must deliver the property and the chattels to the
purchaser at settlement date in their present condition (fair
wear and tear excepted).
2.3 If any chattel is not in its present condition (fair wear and tear
excepted) at settlement, the purchaser is only entitled to compensation
from the vendor.
Finance
3 If a lender is nominated in the Particulars of Sale this contract is
subject to the lender approving the loan on the security of the
property by the approval date or any later approval date allowed by the
vendor. The purchaser may end the contract if the loan is not approved
by the approval date only if the purchaser --
(a) has made immediate application for the loans
(b) has done everything reasonably required to obtain
approval of the loan
(c) serves written notice ending the contract on the vendor
on or before 2 business days after the approval date,
and
(d) is not in default under any other conditions of this
contact when the notice is given
All moneys must be immediately refunded to the purchaser if the
contract is ended.
Terms Contract
4 If this is a "terms contract" as defined in section 2(1) of
the Sale of Land Act 1962, then --
(a) the vendor must arrange the discharge of any mortgage
affecting the land by the settlement date
(b) all money payable under the contract must be paid to a
duly qualified legal practitioner or a licensed estate
agent to be applied towards discharging the mortgage
(c) the purchaser must pay interest to the vendor from the
settlement date upon the balance outstanding at the
rate, on the days, and with the adjustments set out in
Item 2 of the Schedule
(d) the vendor must apply installments under this contract first
to pay interest and then to reduce the balance owing.
Nominee
5 If the contract says that the property is sold to a named purchaser
"and or nominee" (or similar words), the named purchaser may, at least
14 days before settlement date, nominate a substitute or additional
purchaser, but the named purchaser remains personally liable for the
due performance of all the purchaser's obligations under this contract.
Payment
6.1 The purchaser must pay all money (except the deposit) to the
vendor, the vendor's solicitor or at the direction of the
vendor/
6.2 The purchaser must pay the deposit--
(a) to the vendor's estate agent or, if there is no estate
agent, to the vendor's solicitor, or
(b) if the vendor directs, into a special purpose banking
account specified by the vendor in the joint names of
the purchaser and the vendor.
6.3 If the land sold is a lot on an unregistered plan of
subdivision then the deposit--
(a) must not exceed 10% of the price, and
(b) must be paid--
(i) to the vendor's solicitor or estate agent to be
held by the solicitor or estate agent on trust for
the purchaser, or
(ii) if the vendor directs, into a special purpose banking
account in Victoria specified by the vendor until the
registration of the plan.
Breach
7 A party who breaches this contract must pay to the other
party on demand --
(a) compensation for any reasonably foreseeable loss to the
other party resulting from the breach, and
(b) any interest due under this contract as a result of the
breach.
Time
8 If the time for performing any action expires on a Saturday, Sunday or
bank holiday, then time is extended until the next business day.
General Conditions in Legislation
9.1 The general conditions in Table A of the Seventh Schedule of the
Transfer of Land Act of 1958 apply if the land is under the operation
of that Act.
9.2 The general conditions in the Third Schedule of the Property
Law 1958 apply if the land is not under the operation of the
Transfer of Land Act 1958.
9.3 General Condition 9 in Table A or in the Third Schedule applies as if
its second last sentence ended with the additional words, "as a
resident Australian beneficial owner of the land".
Conflict Between Conditions
10 In case of a conflict between the conditions the order of
priority is--
(a) any special conditions in this contract
(b) general conditions in this contract
(c) general conditions in legislation
Conditions
11 These conditions prevail over the conditions in any earlier contract
and any requisitions and answers properly made and given under that
contract are deemed to be requisitions and answers properly made and
given under the contract.
Service
12 Any document served by post is deemed to be served on the next business
day after posting unless proved otherwise.
Transfer of Settlement
13.1 The purchaser must provide the instrument of transfer required by
General Condition 12 of Table A, or the assurance required by the Third
Schedule (as the case may be), to the vendor or the vendor's solicitor
at least 10 days prior to the settlement date.
13.2 The vendor must pay the bank fees on all bank cheques exceeding 3 that
are required by the vendor for settlement.
Law Institute of Victoria Property Law Dispute Resolution
Committee Guidelines
1 The Committee has been established to decide disputes relating to
property law matters. Where one party does not have a solicitor
representing them, the dispute cannot be heard until that party
instructs a solicitor.
2 An agreed Statement of Fact must be signed by all parties
and referring solicitors and must include:
2.1 A clear and concise statement of all the relevant agreed facts
upon which the dispute is based. The Committee is unable to
make any decision unless the facts are agreed between the
parties.
2.2 A copy of all relevant documents.
2.3 The issues, based on the agreed facts, to be decided by
Committee.
2.4 Applications for disputes to be decided by the Committee shall
include and agreement by the referring Solicitors and the
parties to be bound by the Committee's decision on any
question of law or practice.
3 Applications in the appropriate form must be lodged with the
Secretary of the Property Law Dispute Resolution Committee
of the Law Institute of Victoria. The form is set out in
the Conveyancing diary or may be obtained from the Property
Law Section of the Institute.
4 An administration fee of $50.00 for each referring solicitor must be
paid to the Institute when the application is lodged.
5 The Committee's decision will be based upon the material contained in
the Statement of Facts only. In making its decision the Committee shall
act as an expert panel and not as an arbitrator.
6 The Committee reserves the right--
(1) to call for further and better particulars in order to
make a decision
(ii) to refuse to decide any dispute, in which case any fees
will be refunded in full.
7 The Committee's written decision will be sent to the referring
solicitors within seven days of the dispute being decided.
CONTRACT OF SALE OF REAL ESTATE
EXECUTION
THE COMMON SEAL of THE ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS
(VICTORIA) INCORPORATED is affixed in accordance with its rules in the presence
of:
/s/ Onn Ben-David
_______________________________
Onn Ben-David (Vice President)
/s/ James T. Smith
______________________________
James T. Smith (Treasurer)
/s/ Peter J. Barter
______________________________
Peter J. Barter (Director)
THE COMMON SEAL of BURGUNDY TWO PTY LTD was hereunto affixed in accordance with
its articles of association in the presence of:
- - --------------------------------
Director
- - --------------------------------
Secretary
PARTICULARS OF SALE
VENDOR'S SOLICITOR: Corrs Chambers Westgarth
of Bourke Place, 600 Bourke Street,
Melbourne.
DX 336 Tel: 9672-3000 Ref: Peter Drake
PURCHASER'S SOLICITOR: Coltmans
of 15th Floor, 575 Bourke Street,
Melbourne
DX 510 Tel: 9615-2222 Ref: Des Dodds
VENDOR: ROYAL SOCIETY FOR THE PREVENTION
OF CRUELTY TO ANIMALS (VICTORIA)
of 3 Burwood Highway, Burwood East
Victoria
PURCHASER: BURGUNDY TWO PTY LTD
(ACN 071 195 429)
of Level 17, The Chifley Tower
2 Chifley Square, Sydney,
New South Wales
LAND: Lot 2 on Plan of Subdivision no PS347288N
being part of the land described in
the attached copy certificates of
title volume 9347 folios 628 and 629
and being
PROPERTY: the land together with any improvements
know as
ADDRESS: Part of 3 Burwood Highway, Burwood East
CHATTELS: NIL
PRICE: $3,465,000.00
DEPOSIT: An amount equal to ten percent (10%) of
the Price payable in full on the Day of
Sale.
INSTALLMENT: $787,500 being 15% of the Price
payable on or before the
20th day of December,
1995
RESIDUE: An amount equal to ninety per centum
(90%)of the Price.
PAYMENT OF RESIDUE: In full on the date which is the later
of:
(a) 14 days after the Vendor advises
the Purchaser of the registration
of the Plan of Subdivision; and
(b) the date which is the earlier of:
(i) 14 days after the Purchaser
obtains the Planning Permit in
accordance with special
condition 8; and
(ii) 150 days after the Day of
Sale.
SETTLEMENT DATE: is the date upon which vacant possession
of the Property shall be given, namely
upon acceptance of title and payment of
the whole Price.
PURCHASER'S FINANCE: NOT APPLICABLE
(General condition 3)
DAY OF SALE: is the date of this Contract, namely,
9th November, 1995
SCHEDULE
ITEM (1) (GC1) (1) All restrictions disclosed in the
Vendor's Statement.
(2) To the extent that they
affect the Property, the
registered easements to the
City of Nunawading and
melbourne & Metropolitan
Board of Works created by
Instrument B707893 and
C685307 respectively,
copies of which are
attached in the Vendor's
Statement.
(3) All easements created or to be
created as specified on the Plan of
Subdivision.
(4) Any other easements and
other restrictions which a
responsible authority
requires to be included on
the Plan of Subdivision as
a condition of approval of
the Plan of Subdivision.
ITEM (2) (GC4) NOT APPLICABLE
SPECIAL CONDITIONS
1. Interpretation
In this Contract, unless the context otherwise requires:
2. (a) Definitions:
"Annexure" or "Schedule" means an annexure or schedule to
this Contract;
"Carpark Plan" means that copy of the Plan of Subdivision which is
attached to this Contract and headed "Carpark Plan";
"Contract" means this Contract of Sale of Real Estate and, unless the
context otherwise requires, includes the Annexures and Schedules to
this Contract and the Vendor's Statement;
"Planning Permit" means any planning permit which must be obtained from
the City of Whitehorse for the use and development of the Property as a
cinema complex with associated entertainment and restaurant facilities;
"Plan of Subdivision" means plan of subdivision no PS347288N, a copy of
which is attached to this Contract, as amended from time to time in
accordance with this Contract;
"Purchaser" means the party named as the Purchaser and includes the
Purchaser's successors, assigns and tranferees.
"RSPCA Land" means lot 1 on the Plan of Subdivision;
"Special Condition" means a special conation of the
Contract;
"Vendor" means the party named as the Vendor and includes
the Vendor's successors, assigns and transferees;
"Vendor's Statement" means the Vendor's Statement to the Purchaser of
Real Estate pursuant to section 32 of the Sale of Land Act 1962 a copy
of which is annexed to and forms part of this Contract;
(b) Construction:
words importing the singular include the plural and vice
versa;
words importing any gender include the other genders;
references to a person includes a corporation and bodies
politic;
references to a person include the legal personal
representatives, successors and assigns of that person;
headings shall be ignored in construing this Contract;
an obligation of two or more parties shall bind them jointly
and each of them severally;
references in this Contract to Table A are references to Table A of the
Seventh Schedule to the Transfer of Land Act 1958 and references to the
Third Schedule are references to the Third Schedule of the Property Law
Act 1958; references to a person or body which has ceased to exist or
has been reconstituted, amalgamated, reconstructed or merged, or the
functions of which have become exercisable by any other person or body
in its place, shall be taken to refer to the person or body established
or constituted in its place or by which its functions have become
exercisable;
any party may, at its election, by written notice waive any and all of
the conditions to which its obligations under this Contract are subject
or conditions which are expressed for the benefit of that party and any
waiver may be made subject to any conditions the party making the
waiver stipulates in the notice and shall operate from the date of the
notice unless otherwise specified;
this Contract may not be amended, modified or supplemented except in
writing executed by persons duly authorised by each of the parties or
by a waiver in accordance with this Contract;
a reference in these Special Conditions to an Act of Parliment includes
a reference to that Act as amended, replace or consolidated for the
time being and all regulations made thereunder.
2 Condition of Property
The Purchaser acknowledges that:
(a) any improvements on the Property may be subject to or
require compliance with the Victoria Building Regulations,
municipal by-laws, relevant statutes and any regulations
thereunder or any repealed laws under which the improvements
were constructed. Any failure to comply with any one or
more of those laws shall not and shall be deemed not to
constitute a defect int he Vendor's title and the Purchaser
shall not make any requisition or claim any compensation
from the Vendor on that ground; and
(b) the Purchaser has purchased the Property as a result of the
Purchaser's own inspection or inquiries and in its present
condition and state of repair and subject to all faults and
defects both latent or patent and except to any extent expressly
provided in this Contract the Vendor has not and no person on the
Vendor's behalf has made any warranty or representation in relation to
those matters.
3 Acknowledgements
The purchaser acknowledges that prior to the payment of any part of the Deposit
or the execution of this Contract or any other contract agreement or document
whatever in relation to the purchase of the Property, the Purchaser received
from the Vendor:
(a) the Vendor's Statement executed by the Vendor, and
(b) a copy of this Contract.
4 Stamp Duty Indemnity
The purchaser shall keep the Vendor indemnified at all times against all
liabilities, claims proceedings and penalties whatever under the Stamp Act 1958
relating to this Contract, any substitute Contract of Sale and the instrument of
transfer or conveyance of the Property or any one or more of them.
5 Entire Understanding
(a) This Contract embodies the entire understanding and
agreement between the parties as to the subject matter of
this Contract.
(b) All previous negotiations, understandings, representations, warranties,
memoranda or commitments in relation to, or in any way affecting, the
subject matter of this Contract are merged in and superseded by this
contract and are of no force or effect whatever and no party is liable
to any other party in respect of those matters.
(c) No oral explanation or information provided by any party to
another:
(i) affects the meaning or interpretation of this
Contract, or
(ii) constitutes any collateral agreement, warranty or
understanding between any of the parties.
6 Interest Payable on Default
If the Purchaser defaults in payment of any money under this
Contract the Purchaser shall pay to the Vendor interest at the rate of 16% per
annum computed on the money overdue during the period of default without
limiting any other rights of the Vendor. Condition 4 of Table A and Condition 4
of the Third Schedule do not apply to this Contract.
7 Substituted Contract
(a) General Condition 5 does not apply to this Contract. If the Purchaser
is not in default under this Contract the Purchaser may prior to 14
days before the Settlement Date require the Vendor to enter into a
substituted Contract with a nominee of the Purchaser in accordance with
this Special Condition but the Purchaser shall remain liable to perform
and observe the covenants and conditions of this Contract.
(b) The cancellation and substitution can only be effected by
the Purchaser delivering to the Vendor:
(i) a substituted Contract which is to be identical to
this Contract save for:
(A) the deletion of the Special Condition;
(B) the name of the substituted purchaser as
Purchaser;
(C) the insertion of the following Special
Conditions:
*(a) The Purchaser acknowledges that the
Purchaser has accepted title to Property
and waives the right to deliver
requisitions on title or make any
objections to title.
(b) The parties agree that for the purposes of
Condition 15 of Table A and Third Schedule
the Day of Sale shall be [here insert the
Day of Sale in this Contract] and not the
Day of Sale of this Contract.
(D) the adjustments of dates (if necessary) for the
payment of moneys to coincide with this
Contract;
(E) if required by the Vendor, the Day of Sale under
the substituted Contract coinciding with the Day of
Sale under this Contract; and
(F) execution by the substituted purchaser, which
substituted Contract shall be prepared at the
cost of the Purchaser;
(ii) (A) an authority from the Purchaser addressed to
the person firm or corporation then holding the
Deposit ("stakeholder") authorising the stake-
holder to hold the Deposit and any other moneys
payable under this Contract as the Deposit and
other moneys payable under the substituted
Contract; or
(B) an acknowledgement by the substituted purchaser
that any authority given by the Purchaser to
enable release of the Deposit is binding on the
substituted purchaser;
(iii) a duly executed guarantee and indemnity in a form acceptable
to the Vendor's Solicitors by the Purchaser (and all the
directors of the substituted purchaser) of all the
obligations of the substituted purchaser under the
substituted Contract;
(iv) an acknowledgement by the Purchaser that the
Purchaser has delivered the original Vendor's
Statement to the substituted purchaser, together with
an indemnity by the Purchaser in favor of the Vendor
from and against all costs actions and damages which
the Vendor may sustain as a result of any failure by
the Purchaser to deliver the original Vendor's
Statement to the substituted purchaser;
(v) an acknowledgement by the substituted purchaser that
the original Vendor's Statement has been received
fromthe Purchaser; and
(vi) the part of this Contract which has been executed by
the Vendor.
(c) On delivery to the Vendor of the items referred to in paragraph (b) the
Vendor shall execute one part of the substituted Contract and on
delivery of that substituted Contract to the substituted purchaser this
Contract shall be and be deemed cancelled.
(d) For the purposes of any books of account of the Vendor the substituted
sale shall if required by the Vendor be deemed to have been made on the
date of this Contract and in that event a condition to that effect
shall be inserted in the substituted Contract.
8 Subject to grant of Planning Permit
(a) The Purchaser must at its expense:
(i) prepare with all due diligence an application to the
responsible authority for a Planning Permit
("Application");
(ii) produce the Application (including all plans and
supporting materials) to the Vendor for approval as
soon as reasonably possible after the Day of Sale;
(iii) lodge the Application with the responsible authority within
50 days after the Day of Sale (provided that it has first
been approved by the Vendor in writing);
(iv) not amend or withdraw the Application (but provided
that the Purchaser shall be entitled to make
amendments to the Application which do not materially
alter the nature of the development for which the
Application is made; the Purchaser shall give the
Vendor written notices of any such amendments as soon
as reasonably possible after those amendments are
made);
(v) keep the Vendor regularly advised of the progress of
Application; and
(vi) pursue the Application with due diligence and do everything
necessary to obtain a Planning Permit (including the
exercising of all rights of appeal and review) by the date
which is 140 days after the Day of Sale ("Approval Date").
(b) Subject to the Vendor being satisfied that the Application
is for a Planning Permit for a cinema complex with
associated entertainment and restaurant facilities and not
for any other purpose, the Vendor shall not unreasonably
withhold or delay approval of the Application and shall
execute all documents and provide all consents which are
reasonably required by the Purchaser in relation to the
Application.
(c) The Purchaser shall pay all fees, costs and charges and shall bear all
expenses associated with the Application and with the satisfaction of
the conditions of any planning permit which is granted.
(d) If a Planning Permit is not obtained by the Approval Date,
the Purchaser (if the Purchaser is not in default under this
Contract) may determine this Contract by giving notice in
writing to the Vendor at any time before the earlier of the
date being 150 days from the Day of Sale and the date that
the Planning Permit is granted, whereupon the Deposit
together with accrued interest shall be returned to the
Purchaser.
(e) If the Purchaser does not give written notice in accordance with
special condition 8(d) by the date specified in special condition 8(d)
then notwithstanding that the Planning Permit has not been granted this
Contract shall continue in full force and effect as if this special
condition 8 was not
included.
(f) (i) The Purchaser does not rely on any statement made by
the Vendor or anyone on the Vendor's behalf in
respect to the application.
(ii) The Vendor gives no warranty nor does the Purchaser rely on
any statement made by the Vendor nor anyone on the Vendor's
behalf about the use to which the Property may be put.
(iii) The Purchaser acquires the Property subject to any
prohibition or restriction on its use, development or
enjoyment under any act, ordinance, regulation or by-law and
subject to the conditions of any planning permit or
instrument applicable to the Property and must obtain at its
own expense any necessary consent of any authority to any
use of Property.
(g) This special condition 8 is for the benefit of the
Purchaser.
9 Use of Land
(a) The Purchaser acknowledges that it is essential to the
vendor that the Purchaser develop the Property as a cinema
complex with associated entertainment and restaurant
facilities ("Cinema Complex") and that the Vendor would not
have entered into this Contract except on the basis of the
Purchaser's agreement that the Purchaser would use its best
endeavors to ensure that a development of that kind would be
carried out.
(b) If the Purchaser settles on the Settlement date notwithstanding that
the Purchaser has not obtained a Planning Permit, the Purchaser shall
continue to use its best endeavors to obtain a Planning Permit
including exercising all reasonable rights of appeal and review.
(c) The Purchaser shall commence the development of Cinema Complex as soon
as reasonably possible after obtaining a Planning Permit and shall use
its best endeavours to complete that development within two years after
the Planning Permit is obtained.
(d) Whether or not the Purchaser obtains a Planning Permit, for so long as
the Purchaser or any related company of the Purchaser is the owner or
occupier of the Property the Purchaser shall not permit the Property to
be used or developed for any noxious use or any use which is likely to
significantly interfere with the operations of the Vendor on the RSPCA
Land.
(e) During the period of 18 months after the Day of Sale, the
Purchaser shall not sell, agree to sell, lease or otherwise
deal with the Property in any manner whatsoever (other than
by the granting of any mortgage reasonably required to
secure provision of fiance for the development of the
Property) without procuring the person acquiring an interest
in the Property from the Purchaser ("Acquiring Party") to
covenant with the Vendor that the Acquiring Party shall not
permit the Property to be used or developed for any noxious
use or any use which is likely to significantly interfere
with the operations of the Vendor on the RSPCa Land and that
the Acquiring Party will procure the same covenant from any
person acquiring an interest in the Property from the
Acquiring Party during the period of eighteen (18)months
after the Day of Sale in this Contract.
10 Foreign Investment
(a) This special condition applies to this Contract if the Purchaser is or
includes a person to whom the Foreign Acquisitions and Takeovers Act
1975 ("Act") applies in relation to the Property, but not otherwise.
(b) The Purchaser must:
(i) at its own expense prepare with all due diligence a notice
under section 26A of the Act and all additional material
required by the Foreign Acquisition and Takeovers (Notices)
Regulations ("Notice") stating the Processors intention to
acquire the Property;
(ii) furnish the Notice to the Treasurer of the
Commonwealth of Australia ("Treasurer") within 14
days after the Day of Sale (if not already
furnished);
(iii) confirm to the Vendor within 3 days after furnishing
the Notice to the Treasurer that the Notice has been
so furnished;
(iv) not withdraw, delay or cancel the Notice without the
written consent of the Vendor; and
(v) pursue the satisfaction of this special condition with due
diligence and do everything reasonably necessary to cause
this special condition to cease to apply to this Contract.
(c) This Contract is conditional on either:
(i) the Treasurer giving an advice that the Commonwealth
Government does not object to the Purchaser entering into
this Contract, being an advice that is not subject to
conditions which the Purchaser in its reasonable opinion
considers unacceptable ("Advice"), or
(ii) a period of 120 days expiring after the day on which the
Notice was received by the Treasurer without and order being
made by the Treasurer prohibiting the acquisition of the
Property of the Purchaser,
whichever first occurs. On satisfaction of either of the conditions referred to
above, this Contract will cease to be subject to this sepcial condition.
(d) Each party must pormptly provide information in relations to
the Property which is reasonably required to obtain the
Advice or to avoid an order prohibiting the acquisition of
the Property. The Purchaser must promptly provide to the
Vendor's solicitors a copy of all written correspondence
with the Treasurer or the Department of Treasury and also a
copy of accurate notes relating to non-written
communications with such persons or authorities.
(e) The Purchaser must immediately notify the Vendor's
solicitors as soon as the Advice has been obtained or an
order made by the Treasurer.
(f) If the Treasurer makes an order prohibiting the proposed acquisition of
the Property by the Purchaser within 120 days after the day on which
the Notice was received by the Treasurer, either the Vendor or the
Purchaser may at any time thereafter avoid this Contract by giving
written notice to the other. In that event the Deposit shall be
refunded by the Vendor to the Purchaser and this Contract shall come
to an end. The Purchaser shall not be entitled to exercise that right
of avoidance if the making of an order by the Treasurer is due to or
arises from the Purchaser's failure to comply with this special
condition or if the Purchaser is otherwise in default under this
Contract.
(g) The Purchaser shall not be entitled to avoid this Contract under this
special condition without first giving the Vendor a reasonable
opportunity to procure the Treasurer's approval of the acquisition.
(h) This special condition is for the benefit of the Purchaser
and the Vendor.
11 Subdivision
(a) The Vendor shall use its best endeavours to procure the registration of
the Plan of Subdivision. The Purchaser shall co-operate with the Vendor
to achieve the registration of the Plan of Subdivision including
without limitation by signing any consents or approvals and providing
any information which the Vendor reasonably requires.
(b) The Vendor may make amendments to Plan of Subdivision. The
Vendor must obtain the consent of the Purchaser to material
amendments, but no consent shall be required to amendments
which are of a minor nature and which are required by the
City of Whitehorse or the Registrar of Titles or because of
the need to have regard to the location of buildings and
other fixtures and services which are on the Property or the
RSPCA Land. Also, no consent shall be required to the
removal in part of easement "E2" on the Plan of Subdivision
to the extent that easement encumbers the RSPcA Land so long
as the remaining width of the easement is not less than 15
metres (including 2.5 metres on lot 2).
(c) Notwithstanding anything to the contrary contained in this
Contract, under no circumstances shall the Vendor be obliged
to make or accept any amendment to the plan of Subdivision
which involves the removal or alteration of the carriageway
easement marked "E2" on lot 2 of the Plan of Subdivision,
notwithstanding that such an amendment may be necessary to
enable the certification or registration of the Plan of
Subdivision.
(d) The Vendor and the Purchaser shall share equally the costs
of the surveyor and the prescribed fees payable to the City
of Whitehorse and to the Registrar of Titles for the
certification and registration of the Plan of Subdivision.
The Purchaser shall pay and hereby indemnifies the Vendor in
respect of all costs, fees, charges and expenses which are
incurred or required to be paid as a result of any
requirement imposed by any authority as a condition of the
certification of registration of the Plan of Subdivision or
in any planning permit in relation to the Plan of Subdivision including
without limitation the provision of any services to the Property or the
RSPCA Land or the payment of a public open space contribution,
development contribution or like fee.
12 Contract subject to registration of the Plan of Subdivision
(a) This contract is conditional upon the Plan of Subdivision being
registered by the Registrar of Titles within 95 days after the Day of
Sale.
(b) The Deposit and all other moneys payable by the Purchaser shall be paid
to Corrs Chambers Westgarth for the Vendor to be held in an interest
bearing trust account or an interest bearing trust account term deposit
with the Australia and New Zealand Banking Group Limited until the Plan
of Subdivision has been so registered.
(c) If the Plan of Subdivision is no so registered within 195
days after the Day of Sale, the Purchaser or the Vendor may,
at any time after expiration of that period of 195 days but
before the Plan of Subdivision is so registered, by notice
in writing to the other rescind this Contract in which event
the Purchaser shall be entitled to the immediate return of
the Deposit (including any interest from time to time
accruing in respect of such account); otherwise such
interest shall accrue for the benefit of and be paid to the
Vendor.
(d) General Condition 6.3 does not apply.
13 Car Park
(a) The Purchaser shall as soon as reasonably possible after
being requested by the Vendor to do so carry out all
necessary works on the land coloured red on the Carpark Plan
("Cinema Carpark") to construct a paved access road with
ancillary carparking and shall complete those works by not
later than six months after the date of the request. The
Purchaser's Application for a Planning Permit shall include
an application for any planning approval which is necessary
for the construction of this access road with ancillary car
parking. The Vendor shall not make a request in accordance
this special condition 13(a) until after the Settlement
Date, but after such a request has been made the Purchaser
shall obtain any permits necessary for the construction of
the Cinema Carpark and shall construct the Cinema Carpark
notwithstanding that the Purchaser may not have obtained a
Planning Permit.
(b) The Purchaser shall maintain the access road and ancillary carparking
referred to in special condition 13(a) in good condition at all times.
(c) The Purchaser shall as soon as reasonably possible after
being requested by the Vendor to do so construct a paved
carparking area on the land coloured blue on the Carpark
Plan ("RSPCA Carpark") and shall complete construction by
not later than six months after the date of that request.
The Vendor shall not make a request in accordance with this
special condition 13(c) until after the Settlement Date and
until after the Vendor has obtained all permits necessary
for the construction of the RSPCA Carpark. After completion
of construction the Vendor shall be responsible for the
maintenance of the RSPCA Carpark.
(d) (i) The Purchaser shall permit the Vendor and its employees
and invitees to have access to Cinema Carpark at all times
for the purpose of parking vehicles. Nothing in this special
condition 13(d)(i) shall limit the Vendor's right of
carriageway over the Cinema Carpark.
(ii) The Vendor shall permit the Purchaser and its
employees and invitees to have access to the RSPCA
Carpark daily after 6:00 p.m. for the purposes of
parking vehicles.
(e) (i) The exercise by the Vendor and its employees and
invitees of their rights under special condition
13(d)(i) shall be at the risk of the Vendor entirely
and the Vendor indemnifies and shall keep the
Purchaser indemnified from and against all claims,
demands, actions, costs, losses, damages and expenses
which the Purchaser may incur or for which the
Purchaser may become liable as a result of or arising
from the exercise by the Vendor or its employees or
invitees of the rights granted by the special
condition 13(d)(i).
(ii) The exercise by the Purchaser and its employees and
invitees of their rights under special condition
13(d)(ii) shall be at the risk of the Purchaser
entirely and the Purchaser indemnifies and shall keep
the Vendor indemnified from and against all claims,
demands, actions, costs, losses, damages and expenses
which the Vendor may incur or for which the Vendor
may become liable as a result of or arising from the
exercise by the Purchaser or its employees or
invitees of the rights granted by special condition
13(d)(ii).
(iii) The Vendor and the Purchaser shall each maintain public
liability insurance for an amount of not less than five
million dollars ($5,000,000.00) in respect of any single
accident or event which shall include coverage in relation
to the use by the Vendor of the Cinema Carpark and the use
by the Purchaser of the
RSPCA Carpark respectively.
(f) If after the Day of Sale the Vendor or the Purchase sells,
transfers, grants any lease in respect of or otherwise
disposes of or deals with in any manner whatsoever the land
on which the RSPCA Carpark and the Cinema Carpark
respectively are located the party so dealing with the land
("Disposing Party") shall procure the purchaser, transferee,
lessees, mortgagee or other person acquiring this interest
in that land ("Acquiring Party") to covenant with the other
party to this Contract ("Remaining Party") acknowledging the
rights of the Remaining Party as specified in this special
condition 13 and the Remaining Party acknowledging that the
Acquiring Party shall have the benefit of the rights
specified in this special condition 13.
14. Disclosure of Works
Pursuant to section 9AB(1) of the Sale of Land Act 1962, the Vendor discloses
that the Vendor proposes to carry out works on the RSPCA Land which may affect
the natural surface level of the RSPCA Land being the development referred to in
special condition 19.
15. Identity
The Purchaser admits that the Land as offered for sale and inspected by the
Purchaser is identical with the relevant lot or lots on the Plan of Subdivision.
The Purchaser shall not make any requisition or claim any compensation or
purport to rescind this Contrac or to avoid any of its obligations under this
Contract by reason of:
(a) any alleged misdescription on the Plan of Subdivision;
(b) any deficiency in the area or measurements of the Property
or
(c) any amendment to the Plan of Subdivision:
(i) which does not materially affect the Property and is
erquired by the Registrar of Titles or requested by
the Vendor; or
(ii) which restricts or limits the use of the Property and
which:
(A) results from any recommendation of a public
authority or government department; or
(B) is in respect of the final location of an
easement shown on the Plan of Subdivision
Condition 3 of Table A shall not apply to this Contract.
16 Adjustment on Area Basis
If there are no separate assessments of rates or land tax for the Property then
the Property shall be deemed to contribute that percentage of the total rates
and land tax as the area of the Property bears to the whole of the area assessed
and adjustments shall be calculated accordingly.
17 Back Rates
As between the Vendor and the Purchaser, the Purchaser shall be responsible for
the payment of all back rates (whenever assessed) in respect of the Property
under section 174 of the Local Government Act 1989 and under any other relevant
Act and all special land tax (whenever assessed) in respect of the Property
under section 10 of the Land Tax Act 1958 which are assessed as a consequence of
the sale of the Property under this Contract and the Purchaser shall indemnify
the Vendor against any payment which the Vendor may be required to make in
respect of back rates or in respect of special land tax.
18 Expenses
In addition to the other payments required by the Purchaser under this Contract,
the Purchaser shall pay the Vendor on the Day of Sale an amount of $5,000.00 to
reimburse the Vendor for its expenses associated with the preparation of this
Contract.
19 Development of RSPCA Land
The Purchaser agrees that it shall not object to the use and development of the
RSPCA Land and any other adjoining land owned by the vendor for an
administration centre and animal welfare centre or to the construction of other
facilities required to be constructed or relocated as a consequence of those
development or as a consequence of sale of the Property. The Purchaser
acknowledges that the Vendor may wish to re-zone the RSPCA Land and adjoning
land to enable its use and development as aforesaid and the Purchaser shall not
object to any such re-zoning. The Purchaser shall sign any consents and other
documents that the Vendor shall reasonably require in relation to the use and
development of the RSPCA Land for these purposes.
20 Old Burwood Road Reserve
(a) In this special condition the term "Old Burwood Road Reserve" means the
land coloured red on the plan annexed to this contract headed "Road
Reserve Plan".
(b) The Purchaser shall on behalf of itself and the Vendor and in
consultation with the Vendor approach the relevant State Government
Departments as soon as resonably possible after the Day of Sale and use
its best endeavours to obtain:
(i) the transfer to the Purchaser and the Vendor respectively of
those portions of the Old Burwood Road Reserve which are
adjacent to the Property and the RSPCA Land respectively for
prices which are agreed by the Purchaser and the Vendor
respectively; and
(ii) in the interim, a lease from the Crown to the Purchaser and
the Vendor respectively of those parts of the Old Burwood
Road Reserve which are adjacent to the Property and the
RSPCA Land respectively,
but provided that prior to the Settlement Date any transfer or lease
shall be solely to the Vendor and the Vendor's rights shall be
transferred or assigned to the Purchaser on settlement insofar as they
relate to that part of the Old Burwood Road Reserve adjacent to the
Property.
(c) As soon as reasonably possible after the Purchaser has acquired that
part of the Old Burwood Road Reserve which is adjacent to the Property,
the Purchaser shall grant the Vendor an easement of carriageway which
extends the easement of carriageway shown on the Plan of Subdivision in
a direct line through the Old Burwood Road Reserve to its northern
boundary.
(d) The Vendor shall be entitled to negotiate on its own behalf with the
relevant State Government Departments to obtain a transfer or a lease
as specified in special condition 20(b).
(e) The Purchaser shall procure any person or persons acquiring the
Property or the land behind the Property known as "the Brick and Pipe
land" from the Purchaser prior to the completion of the transfers
contemplated by special condition 20(b) to covenant with the Vendor on
the same terms as this special condition including this special
condition 20(e).
21 Right of First Refusal
(a) During the period of eighteen (18) months from the Day of Sale the
Vendor shall not sell or agree to sell the RSPCS Land to any person
other than the Purchaser unless:
(i) the Vendor has first offered in writing to sell the RSPCA
Land to the Purchaser at a price not greater than the price
at which the RSPCA Land is actually sold or agreed to be
sold and on terms as to payment and otherwise not less
favourable to the Purchaser than the terms on which the
RSPCA Land is actually sold or agreed to be sold; and
(ii) the Purchaser has not accepted the offer referred to
in special condition 21(a)(i) within ten (10) days after
receipt of that offer from the Vendor by the Purchaser.
(b) Special condition 21(a) shall not apply:
(i) in the event of the Vendor selling the RSPCA Land at any
normally advertised public auction sale or within a period
of two (2) months thereafter or by public tender; or
(ii) where the purchaser of the RSPCA Land is an entity with
similar purposes to the purposes of the Vendor and the sale
occurs as a result of the reorganization of the Vendor or of
the activities conducted under the auspices of RSPCA
Australia Incorporated.
(c) Nothing in this special condition 21 shall be construed as prohibiting
the Vendor from selling the RSPCA Land to any person conditionally on
the Purchaser's rejection of non-acceptance of an offer of sale of the
RSPCA Land made in accordance with this special condition 21.
22 Non-Merger of Obligations on Completion
To the extent that this Contract includes obligations which continue to arise
after the Settlement Date, this Contract remains in full force and effect
irrespective of settlement. The provisions of this Contract do not merge with
any conveyance, transfer or assignment or registration of any of these.
23 Governing Law and Jurisdiction
(a) This Contract is governed by, and must be construed in
accordance with, the laws of the State of Victoria.
(b) The parties irrevocably and unconditionally submit to the non-exclusive
jurisdiction of the State of Victoria and any courts which have
jurisdiction to hear appeals from any of those courts. The parties
waive any rights to object to any proceedings being brought in those
courts.
Exhibits to the Document have been excluded from this filing; they are available
upon request to the Company.