EXHIBIT 10.5
AGREEMENT
relating to Suite 1.4,
30 St James's Street,
London SW1
Dated 20 December 2005
Levco Europe, LLP(1)
BKF Capital Group, Inc.(2)
King Street European Advisors, Ltd.(3)
King Street Capital Management, L.L.C.(4)
TABLE OF CONTENTS
OPERATIVE PROVISIONS
1 Definitions 1
2 Interpretation 1
3 Sale 2
4 Landlord's Consent 3
5 Completion 3
6 Possession 4
7 Title 4
8 Matters affecting the Property 5
9 Representations and Indemnity 5
10 Standard Conditions 5
11 Transfer 6
12 Registration 7
13 Service of notices pending registration 7
14 VAT 7
15 Insurance 8
16 Equipment 8
17 Purchaser's Guarantor 8
18 Vendor's Guarantor 9
19 No sub-sale or assignment 11
20 Notices 11
21 Entire agreement 11
22 Governing law and jurisdiction 11
23 Contracts (Rights of Third Parties) Act of 1999 11
SCHEDULE 12
Part 1 - The Property 12
Part 2 - The Lease 12
Part 3 - The Ancillary Leasehold Documents 12
20 December 2005
DATE
PARTIES
(1) LEVCO EUROPE, LLP (company number OC308828) c/o Suite 1.4 29-30 St James's
Street London SW1 (the "Vendor");
(2) BKF CAPITAL GROUP, INC. of c/o John A. Levin & Co., Inc. of 1 Rockefeller
Plaza, New York, NY 10020 USA (the "Vendor's Guarantor");
(3) KING STREET EUROPEAN ADVISORS, LTD. (company number 5440189) whose
registered office is at Alder Castle, 10 Noble Street, London EC2V 7QJ (the
"Purchaser"); and
(4) KING STREET CAPITAL MANAGEMENT, L.L.C. of 65 East 55th Street, 30th Floor,
New York, New York 10022 USA (the "Purchaser's Guarantor").
OPERATIVE PROVISIONS
1 DEFINITIONS
In this agreement except where a different interpretation is necessary in
the context the words and expressions set out below shall have the
following meanings:
Actual Completion actual completion of the sale of the
Property pursuant to this agreement and
"Date of Actual Completion" will be
interpreted accordingly
Ancillary Leasehold Documents the documents listed in Part 3 of the
Schedule
Completion Date 20 February 2005 or, if later, five (5)
Working Days after the date on which
Landlord's Consent is obtained
Equipment means the furniture and equipment set
out on the list attached to this
agreement
Equipment Price means one hundred and fifty thousand
US dollars ($150,000)
Insurance Policy a policy of insurance relating to the
Property
Interest Rate 4 per cent per annum above the base rate
from time to time of Barclays Bank plc
Landlord the landlord for the time being of the
Lease (including any superior landlord)
Landlord's Consent the written consent of the Landlord to
the assignment of the Lease to the
Purchaser in such form as the Landlord
shall reasonably require
Landlord's Consent Costs the reasonable and proper professional cost/fees
(plus (to the extent that the Landlord will not
recover the same and the Landlord agrees not to
require payment of such VAT) any VAT on those
costs) properly incurred by the Landlord in
connection with the application of the Vendor to
the Landlord for consent to assign the Lease to
the Purchaser which the Landlord is entitled to
recover under the terms of the Lease from its
tenant and which for the avoidance of doubt and
without prejudice to the generality of the
foregoing shall not include any incentive or other
fee (if any) paid by the Vendor to the Landlord
for such consent
Lease the underlease described in more detail in Part 2
of the Schedule including the Ancillary Leasehold
Documents
Official Copies official copies of the Registered Title as at 9
November 2005
Price one pound (L1)
Property the leasehold property known as Suite 1.4, 30 St
James's Street, London SW1 and described in more
detail in Part 1 of the Schedule
Purchaser's Solicitors Brookstreet Des Roches Solicitors, 1 Des Roches
Square, Witney, Oxon OXON OX28 4LF
Registered Title the leasehold interest registered at HM Land
Registry under Title Number NGL846294
Rent Deposit Deed the rent deposit deed entered into by Benchmark
Group Limited (1) and the Vendor (2) and dated 14
February 2005
Standard Conditions the Standard Commercial Property Conditions (First
Edition)
Tenant's Obligations the obligations in the Lease to be observed and
performed by the tenant for the time being
VAT Value Added Tax as defined in the VAT Act 1994, as
amended
Vendor's Solicitors SJ Berwin LLP of 222 Gray's Inn Road London WC1X
8XF (ref: 128/J13950.8)
Vendor's Solicitor's Bank the Vendor's Solicitor's bank account at Barclays
Account Bank Plc 8/9 Hanover Square London W1A 4ZW Account
No: 10644994 Sort Code: 20-36-47
Vendor's Solicitors' Replies the written replies given by the Vendor's
Solicitors to the pre-contract enquiries raised by
the Purchaser's Solicitors
Working Day has the meaning given to that expression in the
Standard Conditions
2 INTERPRETATION
2.1 The clause, paragraph, Schedule and Annexure headings and the table of
contents used in this agreement are inserted for ease of reference only and
shall not affect construction.
2.2 The Schedules and Annexures to this agreement are incorporated into this
agreement. References in this agreement and the Schedules to the parties,
Schedules, Annexures and
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clauses are references respectively to the parties, Schedules and Annexures
to and clauses of this agreement.
2.3 References to persons shall include bodies corporate, unincorporated
associations and partnerships, in each case whether or not having a
separate legal personality.
2.4 Except where the context specifically requires otherwise, words importing
one gender shall be treated as importing any gender, words importing
individuals shall be treated as importing corporations and vice versa,
words importing the singular shall be treated as importing the plural and
vice versa, and words importing the whole shall be treated as including a
reference to any part of the whole.
2.5 If any condition or covenant contained in this agreement requires a party
to it not to do an act or thing it shall be a breach of any such condition
or covenant to permit or suffer such act or thing to be done.
2.6 Where a party consists of more than one person covenants and obligations of
that party shall be deemed to be made jointly and severally.
2.7 References to statutory provisions, enactments or EC Directives shall
include references to any amendment, modification, extension,
consolidation, replacement or re-enactment of any such provision,
enactment or EC Directive (whether before or after the date of this
agreement), to any previous enactment which has been replaced or amended
and to any regulation, instrument or order or other subordinate legislation
made under such provision, enactment or EC Directive, except where
expressly stated to the contrary.
2.8 If any provision of this agreement is held to be invalid or unenforceable
by any judicial or other competent authority, all other provisions of this
agreement will remain in full force and effect and will not in any way be
impaired.
2.9 This agreement does not confer any rights on any person or party other than
the parties to this agreement pursuant to the Contracts (Rights of Third
Parties) Act 1999.
3 SALE
The Vendor agrees to sell and the Purchaser agrees to purchase the Property
at the Price on the terms set out in this agreement.
4 LANDLORD'S CONSENT
4.1 Completion of the sale and purchase of the Property is conditional on the
Vendor obtaining the Landlord's Consent and the provisions of Standard
Condition 8.3 (as amended by this agreement) will apply.
4.2 Subject to the provisions of clause 4.3 of this agreement, if the
Landlord's Consent has not been obtained by 31 January 2006 then either the
Purchaser or the Vendor may at any time after that date by notice in
writing to the other forthwith terminate this agreement and Standard
Condition 7.2 will apply but without prejudice to any claim in respect of
any prior breach of the obligations contained in this agreement.
4.3 A party to this agreement may not terminate this agreement if Landlord's
Consent has not been obtained due to that party's failure to comply with
its obligations under clause 8.3 of the Standard Conditions (as amended by
clause 10 of this agreement and subject to clause 4.6).
4.4 The Landlord's Consent Costs will be payable by the Vendor to the Landlord
on the Date of Actual Completion and on the same date the Purchaser shall
reimburse the Vendor 50% of the Landlord's Consent Costs provided that the
Purchaser shall also reimburse such 50% share in the event that this
Agreement is terminated by either party pursuant to clause 4.2.
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4.5 The Purchaser will on the Date of Actual Completion enter into a rent
deposit deed with the Landlord in the sum of L69,960 plus VAT and otherwise
in such form as the Landlord reasonably requires.
4.6 Notwithstanding the terms of the Lease and this agreement the Vendor shall
not be required in relation to obtaining the Landlord's consent to provide
or procure any authorised guarantee agreement for the benefit of the
Landlord nor provide or procure any personal guarantees or payment or other
inducement.
5 COMPLETION
5.1 Completion will take place at the office of the Vendor's Solicitors or such
other place as they will direct on or before 1.00 pm on the Completion
Date.
5.2 If completion takes place after 1:00 pm it will be deemed to have taken
place on the following Working Day.
5.3 The Purchaser will pay all monies due on completion by telegraphic transfer
to the Vendor's Solicitors' Bank Account or otherwise as the Vendor's
Solicitors direct.
5.4 In the event that Landlord's Consent is not obtained by 23 December 2005
(but is subsequently obtained and the assignment of the Lease completes)
and if the Purchaser shall not have terminated its existing arrangements to
occupy for office accommodation at 53 Davies Street, Mayfair, London (such
arrangements are in this clause called the "License") so that they end on
1st March 2006, then:
(a) subject to the proviso below the Vendor shall contribute to the
Purchaser 50% of the monthly rent of L5,500 inclusive of VAT payable
by the Purchaser under the Licence for the period from and including 1
March 2006 until the earlier of 31 May 2006 and any prior date on
which the Purchaser manages to terminate the Licence such contribution
to be payable monthly in advance and where necessary apportioned on a
daily basis (so that the Purchaser shall promptly refund any payment
which relates to a period beyond any such termination date);
(b) the Purchaser shall use all reasonable endeavours (but for the
avoidance of doubt excluding the payment of any surrender premium or
giving of any other incentive whether financial or otherwise) to
terminate the Licence as soon as possible after 1 March 2006; and
(c) subject to the proviso below without prejudice to the wording in
brackets in clause 5.4(b), the Vendor shall pay to the Purchaser
within five Working Days of written demand (with proof of payment to
the relevant landlord) 50% of any amount that the Purchaser has paid
to the landlord of the premises at 53 Davies Street, Mayfair, London
to secure termination of the Licence prior to 31 May;
Provided that the maximum aggregate liability of the Vendor under clauses
5.4(a) and (c) is the sum of L8,250 inclusive of VAT.
6 POSSESSION
Vacant possession of the Property will be given on the Date of Actual
Completion.
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7 TITLE
The Purchaser has investigated and accepts the Vendor's title to the
Property and will not make any objections or requisitions with regard to it
save for requisitions relating to:
(a) previously undisclosed matters registered after the date of this
agreement and revealed by the usual pre-completion searches at HM Land
Registry against the Registered Title from the date of the Official
Copies; and
(b) the discharge of any financial charges.
8 MATTERS AFFECTING THE PROPERTY
8.1 The Property is sold subject to and (where applicable and where the Vendor
can lawfully grant the same) with the benefit of:
(a) the entries in the property register of the Registered Title as set
out in the Official Copies;
(b) the Lease and the Tenant's Obligations;
(c) all local Land Charges (whether registered or not at the date of this
agreement) and all matters capable of registration as local Land
Charges;
(d) all notices demands proposals and requirements served or made by any
local or other public authority (whether before or after the date of
this agreement);
(e) all notices demands proposals and requirements served or made under
the Town & Country Planning Act 1990 the Planning (Listed Buildings
and Conservation Areas) Act 1990 the Planning (Consequential
Provisions) Act 1990 the Planning Compensation Act 1991 and any
subsequent legislation of a similar nature or any highways
legislation;
(f) all matters referred to in Schedule 3 Land Registration Act 2002 and
any matters which were overriding interests as defined in section
70(1) Land Registration Act 1925 and which continue in effect under
Schedule 12 Land Registration Act 2002;
(g) all rights of way water light air and other rights easements
quasi-easements liabilities and public rights whatsoever and any
liability to repair or to contribute towards the cost of repair of
roads passages sewers drains fences or other items.
8.2 The Official Copies and a copy of the Lease have been produced to the
Purchaser and the Purchaser purchases with full knowledge of them and will
not raise any requisition on or objection to them save in respect of any
matters arising between the date of this agreement and the Date of Actual
Completion.
9 REPRESENTATIONS AND INDEMNITY
9.1 The Purchaser acknowledges that it has not entered into this agreement in
reliance wholly or partly on any statement or representation made by or on
behalf of the Vendor except in so far as any such statement or
representation is expressly set out in this agreement or in the Vendor's
Solicitors' Replies or in correspondence between the Vendor's Solicitors
and Purchaser's Solicitors.
9.2 The Vendor's Solicitors' Replies do not obviate the need for the Purchaser
to make the appropriate searches and enquiries and to inspect and survey
the Property in contemplation of the Purchaser's expected use.
9.3 The Vendor warrants that it has disclosed all breaches of the Tenant's
Obligations (other than breaches of any obligations which relate to the
state of repair and condition of the Property).
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9.4 The Purchaser having inspected the Premises on 23 November 2005, the
Vendor shall on the Date of Actual Completion procure that the
Premises are delivered up in no materially worse state of repair and
condition (save and to the extent due to any damage by any Insured
Risk (as the term is defined in the Lease)) and indemnifies the
Purchaser against all loss damages claims costs and liabilities
whatsoever suffered by the Purchaser as a result whether directly or
indirectly (and without prejudice to any other remedies of the
Purchaser under this agreement, including without prejudice to the
generality of the foregoing rescission) of any breach of the Vendor's
obligations in this clause 9.4.
9.5 In the event that at any time prior to the Completion Date the
Property and/or the building of which the Property forms part is/are
damaged by an Insured Risk or Terrorism so that the Property or part
of it is unfit for occupation or use the Vendor shall serve written
notice on the Purchaser forthwith of any such damage and the Purchaser
shall have the option at any time prior to the expiry of 10 working
days from the date of service of such notice to terminate this
Agreement by service of written notice on the Vendor and on service of
any such notice this Agreement shall cease and determine and Standard
Condition 7.2 will apply.
9.6 For the avoidance of doubt, the Purchaser shall not be obliged to give
the Vendor an indemnity in respect of the performance of the Tenant's
Obligations and to the extent that any such indemnity could be implied
the Purchaser and the Vendor agree that the Purchaser shall have no
such obligation to indemnify the Vendor.
10 STANDARD CONDITIONS
The Standard Conditions will be deemed to be incorporated in this
agreement so far as they are not varied by or inconsistent with the
specific provisions of this agreement (and in which case those
specific provisions shall prevail) and with the following variations
and additions:
(a) in Condition 1.1.1(m) the words "and such working day will
expire at 5.30 pm" will be added;
(b) Condition 2.2 will not apply;
(c) Condition 3.1.3 will not apply in respect of public
requirements;
(d) Condition 3.3.3 shall not apply;
(e) Condition 4.3.2 will not apply;
(f) Condition 4.5.2 will not apply;
(g) in Condition 4.5.5 after the word "completion" the words "and
which is not a matter of public record" will be added;
(h) Conditions 5.1.2, 5.1.3 and 5.1.4 will not apply;
(i) Condition 5.2 will not apply;
(j) in Condition 6.1.2 1.00 pm will be substituted for 2.00 pm;
(k) in Condition 6.3.2 the words "or the seller exercises his
option in Condition 7.3.4" will be deleted and the following
substituted: "or the buyer holds the property as tenant of the
seller or the seller is entitled to compensation under
Condition 7.3";
(l) in Condition 6.8.2(b) the following words will be added after
the words "freed of all mortgages": "or if reasonable evidence
is produced that the property would be released from all
mortgages" and the words "in each case" will be added after
the word "except";
(m) in Condition 7.1.1 the words "in the negotiations leading to
it" will be deleted and the following substituted: "any
written statement made by or on behalf of the seller to the
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buyer or his agents or advisers in answer to formal preliminary
enquiries before the date of the contract or in correspondence
between the Vendor's Solicitors and the Purchaser's Solicitors";
(n) at the end of Condition 7.5.2(a) the following words will be
added: "and section 49(2) Law of Property Act 1925 will not
apply";
(o) the following will be added as a new Condition 7.7:
"7.7 INSOLVENCY
If the buyer passes a resolution to wind up, is served with
a petition for winding-up or bankruptcy or applies for an
administration order or an order under section 253
Insolvency Act 1986 or if a receiver or an administrative
receiver is appointed in respect of any of the assets of
the buyer the seller may serve written notice upon the
buyer withdrawing from the contract and condition 7.2 then
applies with such event being treated as a breach of
contract by the buyer.";
(p) In Condition 8.3.2(a) the words "as expeditiously as possible and
in the process shall keep the Purchaser informed of material
progress" shall be added at the end, in Condition 8.3.2(b) the
words "in writing" will be inserted after the word "notice" and
in condition 8.3.3(a) the words "reasonably required" shall be
added at the end of the clause;
(q) Conditions 8.3.3(c), 8.3.4, 8.3.5, 8.3.6, 8.3.7 and 8.3.8 will
not apply;
(r) the word "buyer" will be read as "Purchaser" and the word
"seller" as "Vendor".
11 TRANSFER
The transfer of the Property will be in the form annexed.
12 REGISTRATION
The Purchaser will use all reasonable endeavours to procure that it is
registered as proprietor of the Registered Title within three months
after the Date of Actual Completion and provide to the Vendor as soon
as they are available official copies of the registered title to the
Registered Title showing the Purchaser as registered proprietor.
13 SERVICE OF NOTICES PENDING REGISTRATION
With effect from the Date of Actual Completion:
(a) any notice or proceedings to be served upon the tenant under the
Lease shall be effectively served if served upon the Purchaser
alone notwithstanding that the legal estate in the Property may
not be vested in the Purchaser;
(b) the Vendor authorises the Purchaser to receive service of any
notice or proceedings to be served upon the tenant under the
Lease whether that notice is or those proceedings are addressed
to the Purchaser the Vendor or both of them;
(c) any notice or proceedings to be served by the tenant under the
Lease shall be effectively served if served by the Purchaser
alone notwithstanding that the legal estate in the Property may
not then be vested in the Purchaser.
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14 VAT
All payments made pursuant to this agreement will (unless it is
specifically provided otherwise) be exclusive of VAT and any VAT
chargeable on such payments will be paid in addition to the payment in
question.
15 INSURANCE
15.1 The Vendor will not be obliged to maintain in force any Insurance
Policy after the date of this agreement.
15.2 The Vendor will not be obliged to obtain or consent to an endorsement
of notice of the Purchaser's interest on any Insurance Policy.
15.3 The Vendor will have no liability to the Purchaser if the amounts of
cover or the insured risks are insufficient.
16 EQUIPMENT
16.1 On the Completion Date the Purchaser shall purchase the Equipment
from the Vendor and the Vendor shall sell the Equipment to the
Purchaser for the Equipment Price.
16.2 Any parts of the Equipment that are a fixture at the Property shall be
sold as part of the Property under clause 3 save that the warranties
and representations in the remainder of this clause 16 shall still
apply to any such parts of the Equipment.
16.3 The Vendor warrants and represents to the Purchaser that:
(a) the Equipment is in the Vendor's possession and control and is
its absolute property;
(b) the Vendor has not entered into any contract or option to sell,
mortgage, or encumber the Equipment save for this agreement;
(c) the Equipment is not subject to any option, charge, lien,
mortgage, restriction, debt, claims and/or other encumbrance;
(d) to the best of the Vendor's knowledge and belief the Equipment
has during the Vendor's ownership of the Property worked properly
and has been properly maintained to the extent reasonably
necessary;
(e) there is no pending or threatened action, suit, claim, inquiry,
investigation, hearing, audit, examination, or proceeding, to
which Vendor is named as a party or to which the Equipment is or
may be subject and to the best of the Vendor's knowledge and
belief no basis therefore;
(f) the Vendor has paid any and all taxes, license fees, or other
charges levied, assessed, or imposed upon the Equipment;
(g) the information contained in the list of Equipment attached to
this agreement is true, complete and correct including without
limitation the actual original out-of-pocket costs paid by the
Vendor for the Equipment;
(h) insofar as it is able, the Vendor hereby assigns to the Purchaser
with the Equipment the benefit of all rights and warranties that
it has in respect thereof;
on or after the Date of Actual Completion the Vendor shall, at the
request of the Purchaser, furnish execute and deliver such documents
and instruments as the Purchaser shall reasonably require as necessary
or desirable to carry out the transfer of the Equipment as
contemplated by this clause 16.2 including without prejudice to the
generality of the foregoing the transferring of and confirming title
to the Equipment
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16.4 The Vendor warrants that in the event and to the extent that any of the
above statements cease to be accurate in respect of any items of the
Equipment prior to the Date of Actual Completion it will disclose the
same as soon as practicable to the Purchaser following which the
Purchaser may elect not to purchase any such part of the Equipment and
a fair and appropriate adjustment will be made to the Equipment Price
(and each party shall act reasonably and expeditiously in agreeing such
price adjustment)
16.5 The Purchaser will pay to the Vendor any VAT payable (subject to
receipt of a valid VAT invoice addressed to the Purchaser) chargeable
on the sale of the Equipment to the Purchaser
16.6 On completion the Vendor shall deliver to the Purchaser the surplus
existing carpet tiles for the Property and shall leave at the Property
the kitchen equipment (including refrigerator) and all other Landlord's
fixtures and fittings forming part of the Property when the Lease was
granted (or replacements thereof).
17 PURCHASER'S GUARANTOR
17.1 In consideration of the Vendor and the Vendor's Guarantor entering into
this agreement, the Purchaser's Guarantor unconditionally and
irrevocably guarantees, as a primary obligation to the Vendor, the
performance of the Purchaser's obligations under this agreement.
17.2 If the Purchaser defaults on the payment when due of any amount payable
to the Vendor under this agreement or arising from its termination,
the Purchaser's Guarantor shall immediately on demand by the Vendor pay
that amount to the Vendor in the manner prescribed in this agreement as
if it were the Purchaser.
17.3 This guarantee shall not be affected by any change in the constitution,
structure or powers of the Purchaser's Guarantor the Vendor's Guarantor
the Purchaser or the Vendor or the administration, winding up,
liquidation or bankruptcy of any of them or any act, omission, matter
or thing which, but for this clause 17.3, would reduce, release or
prejudice any of the Purchaser's Guarantor's obligations under this
Clause 17 (without limitation and whether or not known to it or the
Vendor).
17.4 If any payment by the Purchaser, or any discharge given by the Vendor,
is avoided or reduced as a result of insolvency or any similar event,
the liability of the Purchaser and Purchaser's Guarantor shall continue
as if the payment, discharge, avoidance or reduction had not occurred
and the Vendor shall be entitled to recover the value or amount of that
security or payment. The Purchaser's Guarantor waives any right it may
have of first requiring the Vendor (or any trustee or agent on its
behalf) to proceed against or enforce any other rights or security or
claim payment from any person before claiming from the Purchaser's
Guarantor under this clause 17.
17.5 Until all amounts which may be or become payable by the Purchaser under
or in connection with this agreement have been irrevocably paid in
full, the Vendor (or any trustee or agent on its behalf) may hold in an
interest-bearing suspense account any moneys received from the
Purchaser's Guarantor, or on account of the Purchaser's Guarantor's
liability under this clause 17, and may apply, or not, as it sees fit
any other moneys, securities or rights in respect of those amounts.
17.6 The obligations of the Purchaser's Guarantor shall be in addition to
and independent of all other security which the Vendor may at any time
hold in respect of any of the obligations of the Vendor under this
agreement.
17.7 As an independent and primary obligation, without prejudice to clause
17.1, the Purchaser's Guarantor unconditionally and irrevocably agrees
to indemnify and keep indemnified the Vendor from and against all and
any losses, costs, claims, liabilities, damages, demands and expenses
suffered or incurred by the Vendor and arising from failure of the
Purchaser to comply with any of its obligations, or discharge any of
its liabilities, under this agreement or through any of the guaranteed
obligations becoming unenforceable, invalid or illegal (on any grounds
whether known
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to it or the Vendor or not) PROVIDED THAT the Vendor shall notify the
Purchaser's Guarantor immediately on becoming aware of any claim of
potential claim under this indemnity and shall mitigate as far as
reasonably practicable any such losses, costs, claims, liabilities,
damages, demands and expenses suffered or incurred by the Vendor
18 VENDOR'S GUARANTOR
18.1 In consideration of the Purchaser and the Purchaser's Guarantor entering
into this agreement, the Vendor's Guarantor unconditionally and
irrevocably guarantees, as a primary obligation to the Purchaser, the
performance of the Vendor's obligations under this agreement.
18.2 If the Vendor defaults on the payment when due of any amount payable to
the Purchaser under this agreement or arising from its termination, the
Vendor's Guarantor shall immediately on demand by the Purchaser pay that
amount to the Purchaser in the manner prescribed in this agreement as if
it were the Vendor.
18.3 This guarantee shall not be affected by any change in the constitution,
structure or powers of the Vendor's Guarantor the Purchaser's Guarantor,
the Vendor or the Purchaser or the administration, liquidation or
bankruptcy of any of them or any act, omission, matter or thing which,
but for this clause 18.3, would reduce, release or prejudice any of the
Vendor's Guarantor's obligations under this clause 18 (without
limitation and whether or not known to it or the Purchaser).
18.4 If any payment by the Vendor, or any discharge given by the Purchaser,
is avoided or reduced as a result of insolvency or any similar event,
the liability of the Vendor and Vendor's Guarantor shall continue as if
the payment, discharge, avoidance or reduction had not occurred and the
Purchaser shall be entitled to recover the value or amount of that
security or payment. The Vendor's Guarantor waives any right it may have
of first requiring the Purchaser (or any trustee or agent on its behalf)
to proceed against or enforce any other rights or security or claim
payment from any person before claiming from the Vendor's Guarantor
under this clause 18.
18.5 Until all amounts which may be or become payable by the Vendor under or
in connection with this agreement have been irrevocably paid in full,
the Purchaser (or any trustee or agent on its behalf) may hold in an
interest-bearing suspense account any moneys received from the Vendor's
Guarantor, or on account of the Vendor's Guarantor's liability under
this clause 18, and may apply, or not, as it sees fit any other moneys,
securities or rights in respect of those amounts.
18.6 The obligations of the Vendor's Guarantor shall be in addition to and
independent of all other security which the Purchaser may at any time
hold in respect of any of the obligations of the Vendor under this
agreement.
18.7 As an independent and primary obligation, without prejudice to clause
18.1, the Vendor's Guarantor unconditionally and irrevocably agrees to
indemnify and keep indemnified the Purchaser from and against all and
any losses, costs, claims, liabilities, damages, demands and expenses
suffered or incurred by the Purchaser and arising from failure of the
Vendor to comply with any of its obligations, or discharge any of its
liabilities, under this agreement or through any of the guaranteed
obligations becoming unenforceable, invalid or illegal (on any grounds
whether known to it or the Purchaser or not) provided that the Purchaser
shall notify the Vendor's Guarantor immediately on becoming aware of any
claim of potential claim under this indemnity and shall mitigate as far
as reasonably practicable any such losses, costs, claims, liabilities,
damages, demands and expenses suffered or incurred by the Purchaser.
18.8 If and to the extent that the landlord of the Lease takes action against
the Purchaser in respect of any sums due to the Landlord under the Lease
attributable to the period during which the Lease was vested in the
Vendor, the Vendor's Guarantor will procure that such sums are paid to
the landlord of the Lease.
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19 NO SUB-SALE OR ASSIGNMENT
This agreement is personal to the Purchaser and the Purchaser will not
be entitled to require the Vendor to transfer or assign the Property
to any person other than the Purchaser.
20 NOTICES
20.1 Any notice to be given under this agreement must be in writing and
signed by the person giving it or some person authorised by them and
will be duly served 48 hours after being sent by registered or
recorded delivery post to the recipient at its address set out in this
agreement or notified in writing to the other party from time to time
or (if earlier) when delivered to the recipient.
20.2 Notices may also be served by facsimile and service is deemed to be
effected when the sender has finished transmitting the notice unless:
(a) the sender knows or ought reasonably to know that the
transmission has failed or is incomplete in which case service
is not effected until the notice has been duly transmitted; or
(b) transmission takes place outside normal business hours (which
for this purpose are 9.30 am to 5.30 pm on a Working Day) in
which case the notice is deemed to be served when normal
business hours next commence.
20.3 Notices may not be served by electronic mail.
21 ENTIRE AGREEMENT
There will be deemed to be incorporated into this agreement the
contents of any side letter supplemental or ancillary to this
agreement as if they had been set out expressly in this agreement and
the Vendor and the Purchaser each acknowledge that the terms and
conditions set out and incorporated in this agreement constitute the
entire contract and arrangement between them.
22 GOVERNING LAW AND JURISDICTION
This agreement is governed by and is to be construed in accordance
with English law. The parties irrevocably agree that the courts of
England and Wales shall have exclusive jurisdiction to settle any
dispute arising out of or in connection with this agreement.
23 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this agreement has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of
this agreement.
This agreement is entered into by the parties on the date at the
beginning of this agreement.
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SCHEDULE
PART 1
THE PROPERTY
The leasehold property known as Suite 1.4, 30 St James's Street, London SW1 as
the same is registered at HM Land Registry under Title Number NGL846294 and
shown edged red on the plan annexed to the Lease and which for the avoidance of
doubt includes the works carried out by the Vendor under the License to Make
Alterations referred to in part 3 of this Schedule
PART 2
THE LEASE
DATE DOCUMENT PARTIES
14 February 2005 Underlease Benchmark Group Limited (1)
Levco Group, LLP (2)
PART 3
THE ANCILLARY LEASEHOLD DOCUMENTS
DATE DOCUMENT PARTIES
14 February 2005 Licence to Make Benchmark Group Limited (1)
Alterations Levco Group, LLP (2)
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Signed by:
/s/ Glenn A. Aigen
- -------------------------
[signature]
Glenn A. Aigen
LEVCO Europe Holding, LTD
As Managing Advisor
- --------------------------
[print name of signatory]
on behalf of LEVCO EUROPE, LLP
Signed by:
- -------------------------
[signature]
- --------------------------
Brian J. Higgins
on behalf of KING STREET EUROPEAN ADVISORS, LTD.
Signed by:
- -------------------------
[signature]
- --------------------------
[print name of signatory]
on behalf of KING STREET CAPITAL MANAGEMENT, L.L.C.
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Signed by:
/s/ Norris Nissin
-----------------------------------
[signature]
NORRIS NISSIN
-----------------------------------
[print name of signatory]
on behalf of BKF CAPITAL GROUP, INC
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