EXHIBIT 10.12
FORM OF TENDER
CONDITIONS OF TENDER
CONDITIONS OF SALE
GENERAL CONDITIONS OF SALE
FOLIO 75716 F COUNTY CORK - PROPERTY AT LOUGH MAHON
TECHNOLOGY PARK, SKEHARD ROAD, BLACKROCK, CORK
FOR SALE BY TENDER
Tender Date: 30TH June 2004
Acceptance Date: 7th July 2004
VENDOR: SIFCO TURBINE COMPONENTS LIMITED
AGENTS: Lisney
South Mall
Cork
SOLICITORS: Arthur Cox
Earlsfort Centre
Earlsfort Terrace
Dublin 2
(Ref: DD/AL/DD6338)
1
FORM OF TENDER
Re: Folio 75716 F County Cork - Property at Lough Mahon Technology Park,
Skehard Road, Blackrock, Cork
TO: SIFCO TURBINE COMPONENTS LIMITED (THE "VENDOR")
1. TENDER
We
Name: John Cleary
Address: Coohowen, Blarney, County Cork
(the "Tenderer") HEREBY OFFER subject to the attached Conditions of
Tender (the "Tender Conditions") to purchase in accordance with the
attached Special Conditions and General Conditions of Sale the
property described in the attached Particulars for:
E 6,500,000 (Six Million Five Hundred Thousand Euro)
(the "Purchase Price").
2. DEPOSIT
We enclose bank draft for
E 325,000
made payable to Arthur Cox being 5% of the Purchase Price
3. NOMINATION OF PERSON TO RECEIVE DOCUMENTS
We nominate
Kieran Riordan & Co. Solicitors, 14 Princes St., Cork.
Solicitor (the "Tenderer's Solicitor")
As the person or firm:
(a) to whom an acceptance of this tender (if any) should be
delivered.
(b) the person to act as the Purchaser's solicitor if this tender is
accepted; and
(c) to whom the enclosed bank draft may be returned at our risk if
this tender is not accepted.
4. ACKNOWLEDGEMENT
We have read and agree to the Tender Conditions, and the attached
Special Conditions and General Conditions of Sale. In particular and
without limitation we acknowledge that:
(a) This offer remains open for acceptance in accordance with Tender
Conditions 3 and 4.
(b) In the event of our tender not being accepted, we understand
that our bank draft will be returned to the Tenderer's Solicitor
uncashed at our risk.
(c) We agree that in the event of this tender being accepted we
shall pay a further 10% of the Tender Price in accordance with
Tender Condition 4(c).
2
(d) Tender Condition 1(e)(ii) requires this tender to be accompanied
by satisfactory evidence of the availability of finance to
complete the purchase.
(e) The Purchase Price is exclusive of any Value Added Tax which may
be payable in accordance with the attached Special Conditions of
Sale.
5. EXECUTION BY THE TENDERER
SIGNED by or on behalf of the Tenderer John Cleary
(State capacity if appropriate -
director, secretary, authorised
signatory etc.) Authorised Signatory
Witness
Occupation Engineer
Address Summerville, Eglington Park
Douglas, Cork
3
ACCEPTANCE
The Vendor HERBY ACCEPTS the Tenderer's offer subject to the Tender Conditions
to purchase in accordance with the attached Special Conditions and General
Conditions of Sale the property described in the attached Particulars.
SIGNED by or on behalf of the Vendor Timothy V. Crean
(State capacity if appropriate - director,
secretary, authorised signatory, etc.) Authorised Signatory
Witness Deirdre Durcan
Occupation Solicitor
Address Earlsfort Terrace,
Dublin 2
4
DOCUMENTS SCHEDULE
1. Certified copy Folio and Land Registry Map 75716F County Cork.
2. Certificate of Compliance with Planning Permission of J. Martin Buckley
Engineer, 10th June 2004 with copy Planning Permission 21035/97 attached.
3. Opinion on compliance with Building Regulations J. Martin Buckley Engineer
dated 10th June 2004 with copy Fire Safety Certificates FSCA/876/97 and
Commencement Notice dated 16/6/97 attached.
4. Draft Licence Agreement.
5. Copy Memorandum & Articles of Association and Certificate of Incorporation
of SIFCO Turbine Components Limited.
6. Licence to Discharge Trade Effluent No. WP570/99 dated 6th October 1999.
SEARCHES SCHEDULE
None.
5
CONDITIONS OF TENDER
In consideration of the issue of these tender documents to the Tenderer by the
Vendor to the Tenderer (the receipt and sufficiency of which is herby
acknowledged by the Tenderer) the Tenderer agrees with the Vendor to be bound by
these conditions of tender:
1. LODGEMENT OF THE TENDER
Any person wishing to tender for the purchase of the subject property
shall;
(a) complete his name and address at paragraph 1 of the Form of Tender;
(b) complete the details of the deposit at paragraph 2 of the Form of
Tender;
(c) nominate a solicitor at paragraph 3 of the Form of Tender;
(d) sign the Form of Tender at paragraph 5 thereof; and
(e) deliver;
(i) the Form of Tender together with these Tender Conditions and
the attached Special Conditions and General Conditions of
Sale;
(ii) satisfactory evidence from a bank licensed to conduct business
in Ireland that the Tenderer has available to it sufficient
monies to complete the within purchase;
(iii) a bank draft for 5% of the Purchase Price made payable to
"Arthur Cox";
(iii) where the Tenderer is a company, a copy of its certificate of
incorporation and memorandum and articles of association and
evidence that the person signing the Form of Tender is duly
authorised by the Tenderer;
in a sealed envelope marked "Lough Mahon Tender" to Arthur Cox
(Reference DD/AL) at their office at Earlsfort Centre,
Earlsfort Terrace, Dublin 2 to reach their office before 12:00
noon on Wednesday, 30th June 2004 (the "Tender Date").
Responsibility for submission of tenders prior to the Tender
Date shall rest with the Tenderer.
2. CONSIDERATION OF TENDERS
(a) No tender expressed to be made "in trust" or "as agent" without
disclosing the name of the principal will be considered.
(b) No conditional tenders will be considered.
(c) No tenders where the Purchase Price is linked to or calculated by
reference to any other tender will be considered.
(d) The Vendor shall not be obliged to accept the highest or any tender.
(e) The Vendor shall be entitled to accept any tender prior to the
Acceptance Date.
(f) The Vendor may withdraw from the Tender process at any time prior to
giving a Notice of Acceptance in accordance with clause 4 hereof
without explanation or liability to any tendering party whatsoever.
(g) Any alterations made to the terms and conditions of the within
Tender shall at the option of the Vendor render such tender invalid.
6
(h) The Tenderer is not entitled to participate in or review or seek any
further information in relation to the Vendor's consideration of the
tenders.
3. WITHDRAWAL
(a) Each Tender will remain open for acceptance until such time as it
has been withdrawn.
(b) This Tender may not be withdrawn and may be accepted at any time
before 5:00 p.m. on Wednesday 7th July 2004 (the "Acceptance Date").
4. ACCEPTANCE
(a) Notice of acceptance of a tender (an "Acceptance Notice") shall be
delivered by post, hand or fax transmission to the successful
Tenderer's Solicitor's office at or before the Acceptance Date. On
such delivery a contract for the sale and purchase of the property
described in the attached Particulars subject to these Conditions of
Tender (the "Tender Conditions") and in accordance with the attached
Form of Tender, Special Conditions and General Conditions of Sale
shall exist between and bind the Vendor and successful Tenderer (the
"Purchaser").
(b) On conclusion of the contract referred to at Tender Condition 4(a)
above Arthur Cox shall cash the bank draft submitted with this
tender and hold such funds as stakeholders in accordance with the
attached Conditions of Sale.
(c) The Purchaser shall within 5 Working Days (as defined by the
attached General Conditions) after the date of delivery of an
Acceptance Notice pay to Arthur Cox by way of a bank draft a further
sum equal to 10% of the Purchase Price which sum together with the
bank draft submitted with this tender will be held by Arthur Cox as
stakeholders in accordance with the attached General Conditions of
Sale. Time shall be of the essence in this regard and the failure by
the Purchaser to comply with this Tender Condition 4(c) shall
constitute a failure to pay the full deposit within the meaning of
General Condition 31 of the attached General Conditions of Sale and
a failure to comply with the attached General Conditions of Sale for
the purposes of General Condition 41.
(d) In the event of the Vendor terminating the Sale for breach of Tender
Condition 4(c) the initial deposit of 5% shall be forfeited and the
provisions of General Condition 41 of the attached General
Conditions of Sale shall apply.
(e) For the purpose of the attached General Conditions of Sale:
(i) "Closing Date" means 30th September 2004;
(ii) "Date of Sale" means the date of delivery of a notice of
acceptance of a tender;
(iii) "Memorandum" means the transaction evidenced by the attached
Form of Tender, these Conditions of Tender and the attached
Special Conditions and General Conditions of Sale;
(iv) "Particulars" means the particulars and tenure attached
hereto;
(v) "Purchase Price" means the Purchase Price as set out in the
Form of Tender;
(vi) "Purchaser" means the Tenderer whose tender has been
accepted;
(vii) "Sale" means the transaction evidenced by the attached Form
of Tender, these Conditions of Tender and the attached
Special Conditions and General Conditions of Sale;
(viii) "Vendor" means the person named as Vendor in the Form of
Tender attached
7
5. UNACCEPTED TENDERS
Arthur Cox will return the uncashed bank drafts to the unsuccessful
tenderers (at the risk of the unsuccessful tenderers) by hand or
post as soon as the successful tender has been accepted or
immediately following the Acceptance Date, whichever is the earlier,
but without payment of interest, costs or compensation.
6. GENERALLY
(a) In no circumstances shall the Vendor, its advisers,
consultants, contractors, servants or agents incur any
liability to the Tenderer arising out of or in respect of this
Tender.
(b) Irish law is applicable to this tender and the Irish courts
shall have exclusive jurisdiction in relation to any disputes
arising from this tender.
(c) The caption headings used in the Tender Conditions, the
Particulars and the Special Conditions shall be disregarded in
the interpretation thereof.
8
PARTICULARS AND TENURE
ALL THAT AND THOSE the hereditaments and premises comprised in Folio 75716F
County Cork
HELD in fee simple.
9
SPECIAL CONDITIONS
1. Save where the context otherwise requires or implies or the text hereof
expresses to the contrary, the definitions and provisions as to
interpretation set forth in the within General Conditions shall be applied
for the purposes of these Special Conditions.
2. The said General Condition shall:
(a) apply to the sale insofar as the same are not hereby altered or
varied and these Special Conditions shall prevail in case of any
conflict between them and the General Conditions;
(b) be read and construed without regard to any amendment therein,
unless such amendment shall be referred to specifically in these
Special Conditions.
3. Value Added Tax
(a) In this Special Condition:
"VAT" means Value Added Tax;
"VAT Act" means the Value Added Tax Act 1972 (as amended) and
related VAT regulations;
"Interest" has the meaning attributed to an "interest" in Section
4(1)(b) of the VAT Act;
(b) Subject as may be provided in any other sub-clause of this Condition
3, the Purchaser shall pay to the Vendor the amount of any VAT as
shall be exigible in relation to the Sale, same to calculated in
accordance with the provisions of the VAT Act and the Purchaser
shall pay this amount to the Vendor on the later of the completion
of the Sale or where an invoice is required to be issued by the
Vendor in accordance with the provisions of the VAT Act on delivery
of such invoice to the Purchaser.
4. The title to the premises in sale shall be comprised in certified copy
Folio 75716F of the Register County Cork.
5. The Purchaser shall be furnished on closing with a certified copy of the
Land Registry Instrument D2000CK0151852, in respect of the ESB substation,
which has been erected on the site in sale. No objection shall be made or
requisition raised by the Purchaser in relation to the said ESB substation
or any matters pertaining thereto.
6. Omitted.
7. All lighting and heating / ventilation systems currently serving the main
factory floor are excluded from this sale and Vendor shall be entitled to
remove the same from the subject property when it vacates the property.
8. The Trade Effluent Discharge License referred to at No. 6 of the Documents
Schedule hereto, and all matters pertaining thereto is disclosed to the
purchaser. No objection shall be made or requisition raised by the
Purchaser in relation to the said Licence or any matters pertaining
thereto and the provisions of General Condition 15 and General Condition
17 are hereby amended accordingly.
9. The Purchaser herby agrees and accepts that no statement measurement,
calculation, account or description contained in any newspaper,
advertisement or any other document or video or contained in any brochure
handout or any other document in respect of the Property shall constitute
a representation inducing the Purchaser to enter into this sale or any
warranty forming part of this Agreement and that any statement,
description, calculation etc. contained in any such particulars or any
form are for illustration purposes only and not taken as matters of fact
and that any mis-statement, mis-description or incorrect statement,
measurement, calculation otherwise given verbally or in the form of any
printed particulars shall not give rise to any cause of action or claim
for compensation against the Vendor, its employees or agents nor to any
right of rescission under this Tender. This Agreement constitutes the
entire agreement between the parties and supercedes all prior
representations, communication, negotiations and understandings concerning
the subject matter of this Agreement and the parties hereto acknowledge
that they have not relied on any representation in respect of the subject
matter hereof except as expressly set out in the Agreement. General
Conditions 33(c) and (d) are deleted and shall not apply.
10
NOTE These General Conditions are not to be altered or deleted other than by
way of Special Condition. A Special Condition altering or deleting a
General Condition should give the reason for such variation, unless
manifestly evident.
Special Conditions should be utilised in instances where it is required to
adopt Recommendations or Advices of the Law Society or of any Committee
associated with it, where such Recommendations or Advices are at variance
with provisions expressed in the General Conditions.
GENERAL CONDITIONS OF SALE
DEFINITIONS
1. In these General Conditions:
"Conditions" means the attached Special Conditions and these General
Conditions
"Documents Schedule", "Searches Schedule" and "Special Conditions" mean
respectively the attached Documents Schedule, Searches Schedule and
Special Conditions.
"Memorandum" means the Memorandum of Agreement on Page 1 hereof
"Particulars" means the Particulars and Tenure on Page 2 hereof and any
extension of the same
"Purchaser" means the party identified as such in the Memorandum
"Sale" means the transaction evidenced by the Memorandum, the Particulars
and the Conditions
"Subject Property" means the property or interest in property which is the
subject of the Sale
"Vendor" means the party identified as such in the Memorandum.
2. In the Conditions save where the context otherwise requires or implies:
"Apportionment Date" means either (a) the later of (i) the Closing Date
(as defined hereunder) and (ii) such subsequent date from which delay in
completing the Sale shall cease to be attributable to default on the part
of the Vendor or (b) in the event of the Vendor exercising the right
referred to in Condition 25 (a)(ii) hereunder, the date of actual
completion of the Sale or (c) such other date as may be agreed by the
Vendor and the Purchaser to be the Apportionment Date for, the purpose of
this definition
"Assurance" means the document or documents whereby the Sale is to be
carried into effect
"Closing Date" means the date specified as such in the Memorandum, or, if
no date is specified, the first Working Day after the expiration of five
weeks computed from the Date of Sale
"Competent Authority" includes the State, any Minister thereof, Government
Department, State Authority, Local Authority, Planning Authority, Sanitary
Authority, Building Control Authority, Fire Authority, Statutory
Undertaker or any Department, Body or person by statutory provision or
order for the time being in force authorised directly or indirectly to
control, regulate, modify or restrict the development, use or servicing of
land or buildings, or empowered to acquire land by compulsory process
"Date of Sale" means the date of the auction when the Sale shall have been
by auction, and otherwise means the date upon which the contract for the
Sale shall have become binding on the Vendor and the Purchase
"Development" has the meaning ascribed to it by the Local Government
(Planning and Development Act) 1963 or by the Planning and Development
Act, 2000 which ever meaning shall be applicable to the circumstances
"Lease" includes (a) a fee farm grant and every contract (whether or not
in writing or howsoever effected, derived or evidenced) whereby the
relationship of Landlord and Tenant is or is intended to be created and
11
whether for any freehold or leasehold estate or interest and (b) licences
and agreements relating to the occupation and use of land, cognate words
being construed accordingly
"Non-Title Information Sheet" means the Non-Title Information sheet
attached hereto
"Planning Legislation" means the Local Government (Planning and
Development) Acts 1963 to 1999, the Planning and Development Act, 2000,
Building Bye Laws, the Building Control Act 1990, and all regulations made
under those Acts
"Purchased Chattels" means such chattels, fittings, tenant's fixtures and
other items as are included in the Sale
"Purchase Price" means the Purchase Price specified in the Memorandum
PROVIDED HOWEVER that, if the Sale provides for additional moneys to be
paid by the Purchaser for goodwill, crops or Purchased Chattels, the
expression "Purchase Price" shall be extended to include such additional
moneys
"Requisitions" include Requisitions on the title or titles as such of the
Subject Property and with regard to rents, outgoings, rights, covenants,
conditions, liabilities (actual or potential), planning and kindred
matters and taxation issues material to such property
"Stipulated Interest Rate" means the interest rate specified in the
Memorandum, or, if no rate is so specified, such rate as shall equate to 4
per centum per annum above the Court Rate obtaining pursuant to Section
22, Courts Act, 1981 and ruling at the date from which interest is to run
"Working Day" does not include any Saturday or Sunday or any Bank or
Public Holiday or any of the seven days immediately succeeding Christmas
Day.
INTERPRETATION
3. In the Conditions save where the context otherwise requires or implies:
Words importing the masculine gender only include the feminine, neuter and
common genders, and words importing the singular number only include the
plural number and vice versa
The words "Vendor" and "Purchaser" respectively include (where
appropriate) parties deriving title under them or either of them and shall
apply to any one or more of several Vendors and Purchasers as the case may
be and so that the stipulations in the Conditions contained shall be
capable of being enforced on a joint and several basis
Any condition (or, as the case may be, any part of any condition) herein
contained, not going to the root of the Contract, which shall be or become
void, illegal or invalid or shall contravene any legislation for the time
being in force, shall, while the same shall continue to be void, illegal,
invalid, or so in contravention be deemed to have been severed and omitted
from the Conditions PROVIDED HOWEVER that neither its inclusion in the
first instance nor its deemed severance and omission as aforesaid shall
prejudice the enforceability of the Conditions nor affect or curtail the
other stipulations and provisions herein set forth
Unless the contrary appears, any reference hereunder:
(a) to a particular Condition shall be to such of these General
Conditions of Sale as is identified by said reference
(b) to a Statute or Regulation or a combination of Statutes or
Regulatioris shall include any extension, amendment, modification or
re-enactment thereof, and any Rule, Regulation, Order or Instrument
made thereunder, and for the time being in force
Headings and marginal notes inserted in the Conditions shall not affect
the construction thereof nor shall the same have any contractual
significance.
12
AUCTION
4. Where the Sale is by auction, the following provisions shall apply:
(a) the Vendor may divide the property set forth in the Particulars into
lots and sub-divide, consolidate or alter the order of sale of any
lots
(b) there shall be a reserve price for the Subject Property whether the
same shall comprise the whole or any part of the property set forth
in the Particulars and the Auctioneer may refuse to accept any bid.
If any dispute shall arise as to any bidding the Auctioneer shall
(at his option) either determine the dispute or again put up the
property in question at the last undisputed bid. No person shall
advance at a bidding a sum less than that fixed by the Auctioneer,
and no accepted bid shall be retracted. Subject to the foregoing,
the highest accepted bidder shall be the Purchaser
(c) the Vendor may:
(i) bid himself, or by an agent, up to the reserve price
(ii) withdraw the whole of the property set forth in the
Particulars or, where such property has been divided into
lots, withdraw any one or more of such lots at any time before
the same has been sold without disclosing the reserve price
(d) the Purchaser shall forthwith pay to the Vendor's Solicitor as
stakeholder a deposit of ten per centum (10%) of the Purchase
Price in part payment thereof, and shall execute an agreement
in the form of the Memorandum to complete the purchase of the
Subject Property in accordance with the Conditions.
PRIVATE TREATY SALE
5. Where the sale is by private treaty, the following provisions shall apply:
(a) the Purchaser shall, on or before the Date of Sale, pay to the
Vendor's Solicitor a deposit of the amount stated in the Memorandum
in part payment of the Purchase Price, which deposit is, with effect
on and from the Date of Sale, to be held by the said Solicitor as
stakeholder
(b) if notwithstanding Condition 5(a) a part of such deposit has been or
is paid to any other person appointed or nominated by the Vendor,
that other person, with effect as from the Date of Sale, shall be
deemed to receive or to have received said part as stakeholder
(c) any moneys paid by way of deposit by or on behalf of the Purchaser
prior to the Date of Sale to the Vendor's Solicitor or to any such
other person as aforesaid shall, up to the Date of Sale, be held by
the recipient thereof as trustee for the Purchaser.
THE FOLLOWING CONDITIONS APPLY WHETHER THE SALE IS BY
AUCTION OR BY PRIVATE TREATY
PURCHASER ON NOTICE OF CERTAIN DOCUMENTS
6. The documents specified in the Documents Schedule or copies thereof have
been available for inspection by the Purchaser or his Solicitor prior to
the Date of Sale. If all or any of the Subject Property is stated in the
Particulars or in the Special Conditions to be held under a lease or to be
subject to any covenants, conditions, rights, liabilities or restrictions,
and the lease or other document containing the same is specified in the
Documents Schedule, the Purchaser, whether availing of such opportunity of
inspection or not, shall be deemed to have purchased with full knowledge
of the contents thereof, notwithstanding any partial statement of such
contents in the Particulars or in the Conditions.
13
DELIVERY OF TITLE
7. Within seven Working Days from the Date of Sale, the Vendor shall deliver
or send by post to the Purchaser or his Solicitor copies of the documents
necessary to vouch the. title to be shown in accordance with the
Conditions.
TITLE
8. (a) The Title to be shown to the Subject Property shall be such as is
set forth in the Special Conditions
(b) Where the title to be shown to the whole or any part of the Subject
Property is based on possession, the Vendor shall, in addition to
vouching that title and dealing with such further matters as are
required of him by the Conditions, furnish to the Purchaser on or
before completion of the Sale a certificate from the Revenue
Commissioners to the effect (i) that the Subject Property or (as the
case may be) such part of the same as aforesaid is not charged with
any of the taxes covered by the provisions of Section 146, Finance
Act, 1994 as amended by Section 128 Finance Act, 1996 or (ii) that
the Revenue Commissioners are satisfied that any such charge will be
discharged within a time considered by them to be reasonable
(c) Save as stipulated in the Special Conditions the Vendor shall, prior
to or at the completion of the Sale, discharge all mortgages and
charges for the payment of money (other than items apportionable
under Condition 27(b)) which affect the Subject Property.
FOREIGN VENDOR
9. Where the Vendor is a company, corporation, association or other similar
entity incorporated, formed or established outside the State, the Vendor
shall disclose this fact in the Special Conditions.
LEASEHOLD TITLE
10. (a) Where any of the Subject Property is held under a lease, the
Purchaser shall not call for or investigate the title of the grantor
or lessor to make the same, but shall conclusively assume that it
was well and validly made, and is a valid and subsisting lease.
(b) Where any of the Subject Property is stated to be held under a lease
or an agreement therefor then:
(i) no Objection or Requisition shall be made or indemnity
required on account of such lease or agreement being (if such
is the case) a sublease or agreement therefor, or on account
of any superior lease comprising other property apart from the
Subject Property or reserving a larger rent, or on the ground
of any superior owner not having concurred in any
apportionment or exclusive charge of rent
(ii) no Objection or Requisition shall be made by reason of any
discrepancy between the covenants, conditions and provisions
contained in any sublease and those in any superior lease,
unless such as could give rise to forfeiture or a right of
re-entry
(iii) the production of the receipt for the last gale of rent
reserved by the lease or agreement therefor, under which the
whole or any part of the Subject Property is held, (without
proof of the title or authority of the person giving such
receipt) shall (unless the contrary appears) be accepted as
conclusive evidence that all rent accrued due has been paid
and all covenants and conditions in such lease or agreement
and in every (if any) superior lease have been duly performed
and observed or any breaches thereof (past or continuing)
effectively waived or sanctioned up to the actual completion
of the Sale, whether or not it shall appear that the lessor or
reversioner was aware of such breaches. If the said rent (not
being a rack rent) shall not have been paid in circumstances
where the party entitled to receive the same is not known to
the Vendor, or if the Subject Property is indemnified against
payment of rent, the production of a
14
Statutory Declaration so stating shall (unless the contrary
appears) be accepted as such conclusive evidence, provided
that the Declaration further indicates that no notices or rent
demands have been served on or received by the Vendor under
the lease or agreement on foot of which the Subject Property
is held; that the Vendor has complied with all the covenants
(other than those in respect of payment of rent) on the part
of the lessee and the conditions contained in such lease or
agreement, and that he is not aware of any breaches thereof
either by himself or by any of his predecessors in title
(iv) if any of the Subject Property is held under a lease or
agreement for lease requiring consent to alienation, the
Vendor shall apply for and endeavour to obtain such consent,
and the Purchaser shall deal expeditiously and constructively
with and shall satisfy all reasonable requirements of the
lessor in relation to the application therefor, but the Vendor
shall not be required to institute legal proceedings to
enforce the issue of any such consent or otherwise as to the
withholding of the same. If such consent shall have been
refused or shall not have been procured and written evidence
of the same furnished to the Purchaser on or before the
Closing Date, or if any such consent is issued subject to a
condition, which the Purchaser on reasonable grounds refuses
to accept, either party may rescind the Sale by seven days
prior notice to the other.
PRIOR TITLE
11. (a) The title to the Subject Property prior to the date of the
instrument specified in the Special Conditions as the commencement
of title, whether or not appearing by recital, inference or
otherwise, shall not be required, objected to or investigated.
(b) In the case of registered freehold or leasehold land registered
under the Registration of Title Acts, 1891 to 1942 or the
Registration of Title Act, 1964 the provisions of subparagraph (a)
of this Condition shall apply without prejudice to Sections 52 and
115 of the last mentioned Act and shall not disentitle the Purchaser
from investigating the possibility of there having been a voluntary
disposition on the title within the period of twelve years
immediately preceding the Date of Sale or a disposition falling
within Section 121, Succession Act, 1965 as extended by Section 25
(5), Family Law Act, 1995 and the Vendor shall be required to deal
with all points properly taken in or arising out of such
investigation.
INTERMEDIATE TITLE
12. Where in the Special Conditions it is provided that the title is to
commence with a particular instrument and then to pass to a second
instrument or to a specified event, the title intervening between the
first instrument and the second instrument or the specified event,
'whether or not appearing by recital, inference or otherwise, shall not be
required, objected to or investigated.
REGISTERED LAND
13. Where all or any of the Subject Property consists of freehold or leasehold
registered land registered under the Registration of Title Acts, 1891 to
1942 ("the Acts of 1891 to 1942") or the Registration of Title Act, 1964
("the Act of 1964") then:
(a) if the registration is subject to equities under the Acts of 1891 to
1942, the Purchaser shall not require the equities to be discharged,
but the Vendor shall, with the copy documents to be delivered or
sent in accordance with Condition 7, furnish sufficient evidence of
title prior to first registration or otherwise to enable the
Purchaser to procure their discharge
(b) if the registration is with a possessory title under the Act of 1964
the Purchaser shall not require the Vendor to be registered with an
absolute title, but the Vendor shall, with the copy documents to be
delivered or sent in accordance with Condition 7, furnish sufficient
evidence of the title prior to such registration or otherwise to
enable the Purchaser to be registered with an absolute title
(c) the Vendor shall, with the copy documents to be delivered or sent in
accordance with Condition 7, furnish to the
15
Purchaser a copy of the Land Registry Folio or Folios relating to
the Subject Property written up-to-date (or as nearly as practicable
up-to-date), together with a copy of the relevant Land Registry map
or file plan
(d) the Vendor shall furnish a Statutory Declaration, by some person
competent to make it, confirming that there are not in. existence
any burdens which under the Act of 1964 affect registered land
without registration, save such (if any) as are specifically
mentioned in the Particulars or the Special Conditions
(e) if the Land Certificate has been issued to the Land Commission or if
no such Certificate has been issued, the Purchaser shall not be
entitled to require such Certificate to be produced, handed over on
completion or issued
(f) the Purchaser shall procure himself to be registered as owner of the
Subject Property at his own expense
(g) in the event of the Subject Property being subject to a Land
Purchase Annuity the Vendor shall, prior to completion, redeem the
same or (as the case may be) such proportion thereof as may be
allocated to the Subject Property
(h) where the Subject Property is part only of the lands in a Folio, the
Vendor shall (i) do everything within the reasonable power or
procurement of the Vendor to satisfy within a reasonable time any
Land Registry mapping queries arising on the registration of the
Assurance to the Purchaser so far as it affects that land, and (ii)
pay and discharge any outlay to the Land Registry which ought
properly to be paid by the Vendor, including additional fees
attributable to default on the part of the Vendor.
IDENTITY
14. The Purchaser shall accept such evidence of identity as may be gathered
from the descriptions in the documents of title plus (if circumstances
require) a statutory declaration to be made by a competent person, at the
Purchaser's expense, that the, Subject Property has been held and enjoyed
for at least twelve years in accordance with the title shown. The Vendor
shall be obliged to furnish such information as is in his possession
relative to the identity and extent of the Subject Property, but shall not
be required to define exact boundaries, fences, ditches, hedges or walls
or to specify which (if any) of the same are of a party nature, nor shall
the Vendor be required to identify parts of the Subject Property held
under different titles.
RIGHTS - LIABILITIES - CONDITION OF SUBTECT PROPERTY
15. The Vendor shall disclose before the Date of Sale, in the Particulars the
Special Conditions or otherwise, all easements, rights, reservations,
exceptions, privileges, covenants, restrictions, rents, taxes and other
liabilities (not already known to the Purchaser or apparent from
inspection) which are known by the Vendor to affect the Subject Property
and are, likely to affect it following completion of the Sale.
16. Subject to Condition 15, the Purchaser shall be deemed to buy:
(a) with full notice of the actual state and condition of the Subject
Property
and
(b) subject to (i) all leases (if any) mentioned in the Particulars or
in the Special Conditions and (ii) all easements, rights,
reservations, exceptions, privileges, covenants, restrictions,
rents, taxes, liabilities, outgoings and all incidents of tenure
affecting the Subject Property.
REQUISITIONS
17. The Purchaser shall, within fourteen Working Days after the later of (i)
the Date of Sale or (ii) the delivery of the copy documents of title in
accordance with Condition 7, send to the Vendor's Solicitor a written
statement of his Objections (if any) on the title and his Requisitions.
Any Objection or Requisition not made within the time aforesaid and not
going to the root of the title shall be deemed to have been waived. The
16
Vendor's Replies to any Objections or Requisitions shall be answered by
the. Purchaser in writing within seven Working Days after the delivery
thereof and so on toties quoties, and, if not so answered, shall be
considered to have been accepted as satisfactory. In all respects time
shall be deemed to be of the essence of this Condition.
If the Purchaser shall make and insist on any Objection or Requisition as
to the title, the Assurance to him or any other matter relating or
incidental to the Sale, which the Vendor shall, on the grounds of
unreasonable delay or expense or other reasonable ground, be unable or
unwilling to remove or comply with, the Vendor shall be at liberty
(notwithstanding any intermediate negotiation or litigation or attempts to
remove or comply with the same) by giving to the Purchaser or his
Solicitor not less than five Working Days notice to rescind the Sale. In
that case, unless the Objection or Requisition in question shall in the
meantime have been withdrawn, the Sale shall be rescinded at the
expiration of such notice.
SEARCHES
19. The Purchaser shall be furnished with the searches (if any) specified in
the Searches Schedule and any searches already in the Vendor's possession,
which are relevant to the title or titles on offer. Any other searches
required by the Purchaser must be obtained by him at his own expense.
Where the Special Conditions provide that the title shall commence with a
particular instrument and then pass to a second instrument or to a
specified event, the Vendor shall not be obliged to explain and discharge
any act which appears on a search covering the period between such
particular instrument and the date of the second instrument or specified
event, unless same goes to the root of the title. Subject as aforesaid the
Vendor shall explain and discharge any acts appearing on Searches covering
the period from the date stipulated or implied for the commencement of the
title to the date of actual completion.
ASSURANCE
20. (a) On payment of all moneys payable by him in respect of the Sale, and
subject to the provisions of Section 980, Taxes Consolidation Act,
1997, and (if relevant) to those contained in Section 107, Finance
Act, 1993 (in relation to Residential Property Tax), the Purchaser
shall be entitled to a proper Assurance of the Subject Property from
the Vendor and all other (if any) necessary parties, such Assurance
to be prepared by and at the expense of the Purchaser. The draft
thereof shall be submitted to the Vendor's Solicitor not less than
seven Working Days, and the engrossment not less than four Working
Days, before the Closing Date. The delivery of the said draft or
engrossment shall not prejudice any outstanding Objection or
Requisition validly made.
(b) If the Stamp Duty (Particulars to be Delivered) Regulations, 1995
apply to the Sale, the Vendor shall, on or before handing over the
Assurance, furnish to the Purchaser the Form referred to in such
Regulations duly completed in accordance therewith.
VACANT POSSESSION
21. Subject to any provision to the contrary in the Particulars or in the
Conditions or implied by the nature of the transaction, the Purchaser
shall be entitled to vacant possession of the Subject Property on
completion of the Sale.
LEASES
22. Where the Subject Property is sold subject to any lease, a copy of the
same (or, if the provisions thereof have not been reduced to writing, such
evidence of its nature and terms as the Vendor shall be able to supply)
together with copies of any notices in the Vendor's possession served by
or on the lessee (and of continuing and material relevance) shall, prior
to the Sale, be made available for inspection by the Purchaser or his
Solicitor.
17
23. Unless the Special Conditions, provide to the contrary, the Purchaser
shall be entitled to assume that, at the Date of Sale, the lessee named in
any such Lease (as is referred to in Condition 22) is still the lessee;
that there has been no variation in the terms and conditions of said Lease
(other than such as may be evident from an inspection of the Subject
Property or apparent from the Particulars or the documents furnished to
the Purchaser prior to the Sale), and that the said terms and conditions
(save those pertaining to the actual state and condition of the Subject
Property) have been complied with.
COMPLETION AND INTEREST
24. (a) The Sale shall be completed and the balance of the Purchase Price
paid by the Purchaser on or before the Closing Date.
(b) Completion shall take place at the Office of the Vendor's Solicitor.
25. (a) If by reason of any default on the part of the Purchaser, the
purchase shall not have been completed on or before the later of (a)
the Closing Date or (b) such subsequent date whereafter delay in
completing shall not be attributable to default on the part of the
Vendor
(i) the Purchaser shall pay interest to the Vendor on the balance
of the Purchase Price remaining unpaid at the Stipulated
Interest Rate for the period between the Closing Date (or as
the case may be such subsequent date as aforesaid) and the
date of actual completion of the Sale. Such interest shall
accrue from day to day and shall be payable before and after
any judgment and
(ii) the Vendor shall in addition to being entitled to receive such
interest, have the right to take the rents and profits less
the outgoings of the Subject Property up to the date of the
actual completion of the Sale
(b) If the Vendor by reason of his default shall not be able, ready and
willing to complete the Sale on the Closing Date he shall thereafter
give to the Purchaser at least five Working Days prior notice of a
date upon which he shall be so, able ready and willing and the
Purchaser shall not before the expiration of that notice be deemed
to be in default for the purpose of this Condition provided that no
such notice shall be required if the Vendor is prevented from being
able and ready to complete or to give said notice by reason of the
act or default of the Purchaser
(c) The Vendor shall not be entitled to delay completion solely because
of a dispute between the parties with regard to liability for such
interest or as to the amount of interest payable PROVIDED ALWAYS
that such completion and the delivery of any Assurance on foot of
these Conditions shall be had strictly without prejudice to the
right of the Vendor to pursue his claim for interest.
26. The submission of an Apportionment Account made up to a particular date or
other corresponding step taken in anticipation of completing the Sale
shall not per se preclude the Vendor from exercising his rights under the
provisions of Condition 25 and in the event of such exercise the said
Apportionment Account or the said other corresponding step shall (if
appropriate) be deemed not to have been furnished or taken, and the Vendor
shall be entitled to furnish a further Apportionment Account.
APPORTIONMENT AND POSSESSION
27. (a) Subject to the stipulations contained in the Conditions, the
Purchaser, on paying the Purchase Price shall be entitled to vacant
possession of the Subject Property or (as the case may be) the rents
and profits thereout with effect from the Apportionment Date
(b) All rents, profits, rates, outgoings and moneys (including rent,
outgoings and money payable in advance but not including impositions
derived from hypothecation) referable to the Subject Property shall
for the purpose of this Condition, be apportioned (whether
apportionable by law or not) on a day to day basis as at the
Apportionment Date, up to which the liability for or the entitlement
to the same shall (subject to apportionment as aforesaid to accord
with the position, obtaining as to moneys paid or due at such date)
be for the account of the Vendor and thereafter for that of the
Purchaser provided that if
18
completion shall have been delayed through the default of the Vendor
the Purchaser may opt for apportionment under this Condition as at
the Closing Date or at the date at which the Purchaser (if also in
default) shall have ceased to have been so in default whichever
shall be the later
(c) In the implementation of this Condition the Vendor shall be regarded
as being the owner of the Subject Property until midnight on such
date as is appropriate for apportionment purposes
(d) The balance of the Purchase Price shall (where appropriate) be
adjusted upwards or downwards to accommodate apportionments
calculated pursuant to this Condition and. the expression "balance
of the Purchase Price" where used in the Conditions shall be
construed accordingly
(e) To the extent that same shall be unknown at the Apportionment Date
(or shall not then be readily ascertainable) amounts to be
apportioned hereunder, including any amount apportionable pursuant
to Condition 27(f), shall be apportioned provisionally on a fair
estimate thereof, and, upon ascertainment of the actual figures, a
final apportionment shall be made, and the difference between it and
the provisional apportionment shall be refunded by the Vendor or the
Purchaser (as the case may be) to the other within ten Working Days
of the liable party becoming aware of the amount of such difference
(f) Excise and kindred duties payable in respect of the Subject Property
or any licence attached thereto shall be apportioned on a day to day
basis as at the Apportionment Date up to which the liability for the
same shall be for the account of the Vendor and thereafter for that
of the Purchaser and Condition 27 (c) shall apply for the purposes
of such apportionment.
SECTION 45, LAND ACT, 1965
28. Where Section 45, Land Act, 1965 applies, the Purchaser shall, at his own
expense, procure any such Certificate or Consent as may be necessary
thereunder for the vesting of the Subject Property in him or his nominee
and the Sale is not conditional upon such consent being obtained
COMPULSORY REGISTRATION
29. (a) If all or any of the Subject Property is unregistered land the
registration of which was compulsory prior to the Date of Sale the
Vendor shall be obliged to procure such registration prior to
completion of the Sale
(b) If all or any of the Subject Property is unregistered land, the
registration of which shall become compulsory at or subsequent to
the Date of Sale, the Vendor shall not be under any obligation to
procure such registration but shall at or prior to such completion
furnish to the Purchaser a Map of the Subject Property complying
with the requirements of the Land Registry as then recognised and
further the Vendor shall, if so requested within two years after
completion of the Sale, by and at the expense of the Purchaser,
supply any additional information, which he may reasonably be able
to supply, and produce and furnish any documents in his possession
that may be required to effect such registration.
SIGNING "IN TRUST' OR "AS AGENT"
30. A Purchaser who signs the Memorandum "in Trust", "as Trustee" or "as
Agent", or with any similar qualification or description without therein
specifying the identity of the principal or other party for whom he so
signs, shall be personally liable to complete the Sale, and to fulfil all
such further stipulations on the part of the Purchaser as are contained in
the Conditions, unless and until he shall have disclosed to the Vendor the
name of his principal or other such party.
19
FAILURE TO PAY DEPOSIT
31. The failure by the Purchaser to pay in full the deposit hereinbefore
specified as payable by him shall constitute a breach of condition
entitling the. Vendor to terminate the Sale or to sue the Purchaser for
damages or both but such entitlement shall be without prejudice to any
rights otherwise available to the Vendor.
32 In case a cheque taken for the deposit (having been presented and whether
or not it has been re-presented) shall not have been honoured, then and on
that account the Vendor may (without prejudice to any rights other-wise
available to him) elect either:
(a) to treat the Contract evidenced by the Memorandum, the Particulars
and the Conditions as having been discharged by breach thereof on
the Purchaser's part
or
(b) to enforce payment of the deposit as a deposit by suing on the
cheque or otherwise.
DIFFERENCES - ERRORS
33. (a) In this Condition "error" includes any omission, non-disclosure,
discrepancy, difference, inaccuracy, mis-statement or
mis-representation made in the Memorandum, the Particulars or the
Conditions or the Non-Title Information Sheet or in the course of
any representation, response or negotiations leading to the Sale,
and whether in respect of measurements, quantities, descriptions or
otherwise
(b) The Purchaser shall be entitled to be compensated by the Vendor for
any loss suffered by the Purchaser in his bargain relative to the
Sale as a result of an error made by or on behalf of the Vendor
provided however that no compensation shall be payable for loss of
trifling materiality unless attributable to recklessness or fraud on
the part of the Vendor nor in respect of any matter of which the
Purchaser shall be deemed to have had notice under Condition 16(a)
nor in relation to any error in a location or similar plan furnished
for identification only
(c) Nothing in the Memorandum, the Particulars or the Conditions shall:
(i) entitle the Vendor to require the Purchaser to accept property
which differs substantially from the property agreed to be
sold whether in quantity, quality, tenure or otherwise, if the
Purchaser would be prejudiced materially by reason of any such
difference
or
(ii) affect the right of the Purchaser to rescind or repudiate the
Sale where compensation for a claim attributable to a material
error made by or on behalf of the Vendor cannot be reasonably
assessed
(d) Save as aforesaid, no error shall annul the Sale or entitle the
Vendor or the Purchaser (as the case may be) to be discharged
therefrom.
DOCUMENTS OF TITLE RELATING TO OTHER PROPERTY
34. (a) Documents of title relating to other property as well as to the
Subject Property shall be retained by the Vendor or other person
entitled to the possession thereof
(b) where the property is sold in lots, all documents of title relating
to more than one lot shall be retained by the Vendor, until the
completion of the Sales of all the lots comprised in such documents,
and shall then (unless they also relate to any property retained by
the Vendor) be handed over to such of the Purchasers as the Vendor
shall consider best entitled thereto
20
(c) the Vendor shall give to the Purchaser (and where the property is
sold in lots, to the Purchaser of each lot) certified copies of all
documents retained under this Condition and pertinent to the title
to be furnished (other than documents of record, of which plain
copies only will be given)
(d) subject as hereinafter provided, the Vendor shall give the usual
statutory acknowledgement of the right of production and undertaking
for safe custody of all documents (other than documents of record)
retained by him under this Condition and pertinent to the title to
be furnished. Such acknowledgement and undertaking shall be prepared
by and at the expense of the Purchaser.
(e) if the Vendor is retaining any unregistered land held wholly or
partly under the same title as the Subject Property, the Assurance
shall be engrossed in duplicate by and at the expense of the
Purchaser, who shall deliver to the Vendor the Counterpart thereof,
same having been stamped and registered and (if appropriate)
executed by the Purchaser.
DISCLOSURE OF NOTICES
35. Where prior to the Date of Sale
(a) any closing, demolition or clearance order
or
(b) any notice for compulsory acquisition or any other notice (other
than such other notice, details of which are required to be entered
on the Planning Register pursuant to the requirements of Planning
Legislation)
made or issued by or at the behest of a Competent Authority in
respect of the Subject Property and affecting the same at the Date
of Sale has been notified or given to the Vendor (whether personally
or by advertisement or posting on the Subject Property or in any
other manner) or is otherwise known to the Vendor, or where the
Subject Property is, at the Date of Sale, affected by any award or
grant, which is or may be repayable by the Vendor's successor in
title, then if the Vendor fails to show
(i) that, before the Date of Sale, the Purchaser received notice
or was aware of the matter in question
or
(ii) that the matter in question was apparent from inspection of
the Development Plan or the current or published Draft
Development Plan for the area within which the Subject
Property is situate
or
(iii) that same is no longer applicable or material
or
(iv) that same does not prejudicially affect the value of the
Subject Property
or
(v) that the subject thereof can and will be dealt with fully in
the Apportionment Account the Purchaser may by notice given to
the Vendor rescind the Sale.
21
DEVELOPMENT
36. (a) Unless the Special Conditions contain a stipulation to the contrary,
the Vendor warrants:
(i) that there has been no Development of the Subject Property
since the 1st day of October, 1964, for which Planning
Permission or Building Bye-Law Approval was required by law
or
(ii) that all Planning Permissions and Building Bye-Law Approvals
required by law for the Development of the Subject Property as
at the Date of Sale were obtained (save in respect of matters
of trifling materiality), and that, where implemented, the
conditions thereof in relation to and specifically addressed
to such Development were complied with substantially
PROVIDED HOWEVER that the foregoing warranty shall not extend
to (and the Vendor shall not be required to establish) the
obtaining of approvals under the Building Bye-Laws or
compliance with such Bye-Laws in respect of Development or
works carried out prior to the 13th day of December, 1989
(this proviso being here inafter in Condition 36 referred to
as the "Proviso")
(b) unless the Special Conditions contain a stipulation to the contrary,
the Vendor warrants in all cases where the provisions of the
Building Control Act, 1990 or of any Regulation from time to time
thereunder apply to the design or Development of the Subject
Property or any part of the same or any activities in connection
therewith, that there has been substantial compliance with the said
provisions in so far as they pertained to such design, Development
or activities
(c) the warranties referred to in (a) and (b) of this Condition shall
not extend to any breach of provisions contained in Planning
Legislation, which breach has been remedied or is no longer
continuing at the Date of Sale.
(d) the Vendor shall prior to the Date of Sale make available to the
Purchaser for inspection or furnish to the Purchaser copies of:
(i) all such Permissions and Approvals as are referred to in.
Condition 36 (a) other than in the Proviso
(ii) all Fire Safety Certificates and (if available) Commencement
Notices issued under Regulations made pursuant to the Building
Control Act, 1990, and referable to the Subject Property (such
Permissions, Approvals and Certificates specified in this
Condition 36(d) being hereinafter in Condition 36 referred to
as the "Consents")
and
(iii) (Save where Development is intended to be carried out between
the Date of Sale and the date upon which the Sale shall be
completed) the documents referred to in Condition 36 (e)
(e) the Vendor shall, on or prior to completion of the Sale, furnish to
the Purchaser
(i) written confirmation from the Local Authority of compliance
with all conditions involving financial contributions or the
furnishing of bonds in any such Consents (other than those
referred to in the Proviso) PROVIDED HOWEVER that where
the Development authorised by such Consents relates to a
residential housing estate of which the Development of the
Subject Property forms part
and
such Consents relate to the initial construction of a building
on the Subject Property
22
written confirmation from the Local Authority that the roads
and services abutting on the Subject Property have been taken
in charge by it shall be accepted as satisfactory evidence of
compliance, with such conditions, unless the said confirmation
discloses a requirement for payment of outstanding moneys
(ii) a Certificate or Opinion by an Architect or an Engineer (or
other professionally qualified person competent so to certify
or opine) confirming that, in relation to such Consents (save
those referred to in the Proviso)
- the same relate to the Subject Property
- (where applicable) the design of the buildings on the
Subject Property is in substantial compliance with the
Building Control Act, 1990 and the Regulations made thereunder
- the Development of the Subject Property has been carried out
in substantial compliance with such Consents
- all conditions (other than financial conditions) of such
Consents have been complied with substantially
and
- in the event of the Subject Property forming part of a
larger development, all conditions (other than financial
conditions) of such Consents which relate to the overall
development have been complied with substantially so far as
was reasonably possible in the context of such development as
at the date of such Certificate or Opinion
(f) (i) where the Vendor has furnished Certificates or Opinions
pursuant to Condition 36 (e), the Vendor shall have no
liability on foot of the warranties expressed in Condition
36(a) or 36(b) or either of them in respect of any matter with
regard to which such Certificate or Opinion is erroneous or
inaccurate, unless the Vendor was aware at the Date of Sale
that the same contained any material error or inaccuracy
(ii) if, subsequent to the Date of Sale and prior to the completion
thereof, it is established that any such Certificate or
Opinion is erroneous or inaccurate,
then, if the Vendor fails to show
that before the Date of Sale the Purchaser was aware of the
error or inaccuracy
or
that same is no longer relevant or material
or
that same does not prejudicially affect the value of the
Subject Property
the Purchaser may by notice given to the Vendor rescind the
Sale.
RESCISSION
37. Upon rescission of the Sale in accordance with any of the provisions
herein or in the Special Conditions contained or otherwise:
(a) the Purchaser shall be entitled to a return of his deposit (save
where it shall lawfully have been forfeited) but without interest
thereon
23
(b) the Purchaser shall remit to the Vendor all documents in his
possession belonging to the Vendor and the Purchaser shall at his
expense (save where Special Conditions otherwise provide) procure
the cancellation of any entry relating to the Sale in any register.
38. If any such deposit as is to be returned pursuant to Condition 37 shall
not have been returned to the Purchaser within five Working Days from the
date upon which the Sale shall have been rescinded, the Purchaser shall be
entitled to interest thereon at the Stipulated Interest Rate from the
expiration of the said period of five Working Days to the date upon which
the deposit shall have been so returned.
39. The right to rescind shall not be lost by reason only of any intermediate
negotiations or attempts to comply with or to remove the issue giving rise
to the exercise of such right.
COMPLETION NOTICES
40. Save where time is of the essence in respect of the Closing Date, the
following provisions shall apply:
(a) if the Sale be not completed on or before the Closing Date either
party may on or after that date (unless the Sale shall first have
been rescinded or become void) give to the other party notice to
complete the Sale in accordance with this condition, but such notice
shall be effective only if the party giving it shall then either be
able, ready and willing to complete the Sale or is not so able,
ready or willing by reason of the default or misconduct of the other
party
(b) upon service of such notice the party upon whom it shall have been
served shall complete the Sale within a period of twenty-eight days
after the date of such service (as defined in Condition 49 and
excluding the date of service), and in respect of such period time
shall be of the essence of the contract but without prejudice to any
intermediate right of rescission by either party
(c) the recipient of any such notice shall give to the party serving the
same reasonable advice of his readiness to complete
(d) if the Purchaser shall not comply with such a notice within the said
period (or within any extension thereof which the Vendor may agree)
he shall be deemed to have failed to comply with these Conditions in
a material respect and the Vendor may enforce against the Purchaser,
without further notice, such rights and remedies as may be available
to the Vendor at law or in equity, or (without prejudice to such
rights and remedies) may invoke and impose the provisions of
Condition 41
(e) if the Vendor does not comply with such a notice within the said
period (or within any extension thereof which the Purchaser may
agree), then the Purchaser may elect either to enforce against the
Vendor, without further notice, such rights and remedies as may be
available to the Purchaser at law or in equity or (without prejudice
to any right of the Purchaser to damages) to give notice to the
Vendor requiring a return to the Purchaser of all moneys paid by
him, whether by way of deposit or otherwise, on account of the
Purchase Price. Condition 38 shall apply to all moneys so to be
returned, the period of five Working Days therein being computed
from the date of the giving of such last mentioned notice. If the
Purchaser gives such a notice and all the said moneys and interest
(if any) are remitted to him, the Purchaser shall no longer be
entitled to specific performance of the Sale, and shall return
forthwith all documents in his possession belonging to the Vendor,
and (at the Vendor's expense) procure the cancellation of any entry
relating to the Sale in any register.
(f) the party serving a notice under this Condition may, at the request
of or with the consent of the other party, by written communication
to the other party extend the term of such notice for one or more
specified periods of time, and, in that case, the term of the notice
shall be deemed to expire on the last day of such extended period or
periods, and the notice shall operate as though such extended period
or periods had been specified in this Condition in lieu of the said
period of twenty-eight days, and time shall be of the essence in
relation to such extended period
(g) the Vendor shall not be deemed to be other than able, ready and
willing to complete for the purposes of this Condition:
24
(i) by reason of the fact that the Subject Property has been
mortgaged or charged, provided that the funds (including the
deposit) receivable on completion shall (after allowing for
all prior claims thereon) be sufficient to discharge the
aggregate of all amounts payable in satisfaction of such
mortgages and charges to the extent that they relate to the
Subject Property
or
(ii) by reason of being unable, not ready or unwilling at the date
of service of such notice to deliver vacant possession of the
Subject Property provided that (where it is a term of the Sale
that vacant possession thereof be given) the Vendor is, upon
being given reasonable advice of the other party's intention
to close the Sale on a date within the said period of
twenty-eight days or any extension thereof pursuant to
Condition 40 (f), able, ready and willing to deliver vacant
possession of the Subject Property on that date.
FORFEITURE OF DEPOSIT AND RESALE
41. (a) If the Purchaser shall fail in any material respect to comply with
any of the Conditions, the Vendor (without prejudice to any rights
or remedies available to him at law or in equity) shall be entitled
to forfeit the deposit and to such purpose unilaterally to direct
his Solicitor to release same to him AND the Vendor shall be at
liberty (without being obliged to tender an Assurance) to resell the
Subject Property, with or without notice to the Purchaser, either by
public auction or private treaty. In the event of the Vendor
re-selling the Subject Property within one year after the Closing
Date (or within one year computed from the expiration of any period
by which the closing may have been extended pursuant to Condition
40) the deficiency (if any) arising on such re-sale and all costs
and expenses attending the same or on any attempted re-sale shall
(without prejudice to such damages to which the Vendor shall
otherwise be entitled) be made good to the Vendor by the Purchaser,
who shall be allowed credit against same for the deposit so
forfeited. Any increase in price obtained by the Vendor on any
re-sale, whenever effected, shall belong to the Vendor.
(b) A Solicitor acting on any such direction as is referred to in
Condition 41 (a) shall have no further obligations as stakeholder or
otherwise in respect of such deposit to the Vendor or to the
Purchaser PROVIDED that he shall have given to the Purchaser notice
of the receipt by him of the said direction and the Purchaser shall
not within twenty one days of the giving of such notice have
instituted and served proceedings disputing the rights alleged by
the Vendor to forfeit the deposit.
DAMAGES FOR DEFAULT
42. (a) Neither the Vendor nor the Purchaser, in whose favour an order for
specific performance has been made, shall be precluded from an award
of damages at law or in equity, in the event of such order not being
complied with.
(b) Notwithstanding any rule of law to the contrary failure on the part
of the Vendor to show title to the Subject Property in accordance
with the Conditions shall not per se preclude the making of an award
for damages to the Purchaser for loss of bargain or otherwise in
relation to the Sale.
RISK
43. Subject as hereinafter provided, the Vendor shall be liable for any loss
or damage howsoever occasioned (other than by the Purchaser or his Agent)
to the Subject Property (and the Purchased Chattels) between the Date of
Sale and the actual completion of the Sale BUT any such liability
(including liability for consequential or resulting loss) shall not as to
the amount thereof exceed the Purchase Price.
44. The liability imposed on the Vendor by Condition 43 shall not apply:
(a) to inconsequential damage or insubstantial deterioration from
reasonable wear and tear in the course of normal occupation and use,
and not materially affecting value
25
(b) to damage occasioned by operations reasonably undertaken by the
Vendor in his removal from, and vacation of the Subject Property,
provided that the same are so undertaken with reasonable care
(c) where any such loss or damage has resulted from a requirement
restriction or obligation imposed by a Competent Authority after the
Date of Sale.
45. Nothing in Conditions 43 and 44 shall affect:
(a) the Purchaser's right to specific performance in an appropriate case
(b) the Purchaser's right to rescind or repudiate the Sale upon the
Vendor's failure to deliver the Subject Property substantially in
its condition at the Date of Sale (save where such failure shall
have been occasioned by the Purchaser or his Agent)
(c) the operation of the doctrine of conversion
(d) the Purchaser's right to gains accruing to the Subject Property (or
the Purchased Chattels) after the Date of Sale
(e) the Purchaser's right to effect on or after the Date of Sale his own
insurance against loss or damage in respect of the Subject Property
or any part of the same (or the Purchased Chattels)
(f) the rights and liabilities of parties other than the Vendor and the
Purchaser
(g) the rights and liabilities of the Purchaser on foot of any lease
subsisting at the Date of Sale, or of any arrangement whereby the
Purchaser shall prior to the actual completion of the Sale have been
allowed into occupation of the Subject Property or any part thereof
(or into possession of the Purchased Chattels).
CHATTELS
46. Unless otherwise disclosed to the Purchaser prior to the Sale the Vendor
warrants that, at the actual completion of the Sale, all the Purchased
Chattels shall be his unencumbered property and that same shall not be
subject to any lease, rental hire, hire-purchase or credit sale agreement
or chattel mortgage.
INSPECTION
47. The Vendor shall accede to all such requests as may be made by the
Purchaser for the inspection on a reasonable number of occasions and at
reasonable times of the Subject Property (and the Purchased Chattels).
NON-MERGER
48. Notwithstanding delivery of the Assurance of the Subject Property to the
Purchaser on foot of the Sale, all obligations and provisions designed to
survive completion of the Sale and all warranties in the Conditions
contained, which shall not have been implemented by the said Assurance,
and which shall be capable of continuing or taking effect after such
completion, shall ensure and remain in full force and effect
NOTICES
49. Unless otherwise expressly provided, any notice to be given or served on
foot of the Conditions shall be in writing, and may (in addition to any
other prescribed mode of service) be given:
26
(a) by handing same to the intended recipient, and shall be deemed to
have been delivered when so handed
(b) by directing it to the intended recipient, and delivering it by
hand, or sending same by prepaid post to:
(i) such address as shall have been advised by him to the party
serving the notice as being that required by the intended
recipient for the service of notices,
or
(ii) (failing such last mentioned advice) the address of the
intended recipient as specified in the Memorandum,
or
(iii) (in the event of the intended recipient being a Company) its
Registered Office for the time being,
or
(iv) the office of the Solicitor representing the intended
recipient in relation to the Sale
(c) by facsimile transmission directed to the office of the Solicitor
representing the intended recipient in relation to the Sale
and any such notice shall be deemed to have been given or served,
when delivered, at the time of delivery, and, when posted, at the
expiration of three Working Days after the envelope containing the
same, and properly addressed, was put in the post and, when sent by
facsimile transmission, at the time of its transmission.
TIME LIMITS
50. Where the last day for taking any step on foot of the Conditions or any
Notice served thereunder would, but for this provision, be a day other
than a Working Day, such last day shall instead be the next following
Working Day provided that for the purpose of this Condition the expression
"Working Day" shall not be deemed to include (i) any Saturday, Sunday,
Bank or Public Holiday nor (ii) any of the seven days immediately
succeeding Christmas Day nor (iii) any day on which the registers or
records wherein it shall be appropriate to make searches referable to the
Sale shall not be available to the public nor (iv) any day which shall be
recognised by the Solicitors' Profession at large as being a day on. which
their offices are not open for business.
ARBITRATION
51. All differences and disputes between the Vendor, and the Purchaser as to:
(a) whether a rent is or is not a rack rent for the purpose of Condition
10 (c), or
(b) the identification of the Apportionment Date, or the treatment or
quantification of any item pursuant to the provisions for
apportionment in the Conditions, or
(c) any issue on foot of Condition 33, including the applicability of
said Condition, and the amount of compensation payable thereunder,
or
(d) the materiality of any matter for the purpose of Condition 36 (a),
or
27
(e) the materiality of damage or any other question involving any of the
provisions in Conditions 43, 44 and 45, including the amount of
compensation (if any) payable, or
(f) whether any particular item or thing is or is not included in the
Sale, or otherwise as to the nature or condition thereof shall be
submitted to arbitration by a sole Arbitrator to be appointed (in
the absence of agreement between the Vendor and the Purchaser upon
such appointment and on the application of either of them) by the
President (or other Officer endowed with the functions of such
President) for the time being of the Law Society of Ireland or (in
the event of the President or other Officer as aforesaid being
unable or unwilling to make the appointment) by the next senior
Officer of that Society who is so able and willing to make the
appointment and such arbitration shall be governed by the
Arbitration Acts, 1954 to 1998 provided however that if the
Arbitrator shall relinquish his appointment or die, or if it shall
become apparent that for any reason he shall be unable or shall have
become unfit or unsuited (whether because of bias or otherwise) to
complete his duties, or if he shall be removed from office by Court
Order, a substitute may be appointed in his place and in relation to
any such appointment the procedures hereinbefore set forth shall be
deemed to apply as though the substitution were an appointment de
novo which said procedures may be repeated as many times as
necessary.
28