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Exhibit 10.31
DATED 12th November 1996
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SKANDA DEVELOPMENTS LIMITED
(In Administrative Receivership) (1)
and
JDA INTERNATIONAL LIMITED (2)
SALE AND PURCHASE AGREEMENT
relating to Churchill Court Hortons Way
Westerham Kent
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CONTENTS
Clause
1. Definitions
2. Interpretation
3. Sale and purchase and price
4. National conditions
5. Deposit
6. Date of completion
7. Possession
8. Matters affecting the Property
9. Title
10. Transfer
11. Capacity of Vendor
12. Local land charges and statutory notices
13. Sub-sales
14. Insurance
15. Service charges
16. Rent arrears
17. Acknowledgement by Purchaser
18. Management of the Property pending completion
19. Maintenance contracts
20. Bankruptcy or liquidation of the Purchaser
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21. Value Added Tax
22. Non Merger
23. Limitation of Vendor's Liability
24. Vendor's Representative
25. Entire agreement
Schedule I: The Property and the Second Property
Schedule II: Leases and Ancillary Leasehold Documents
Schedule III: The form of transfer of the Property and the Second
Property
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AGREEMENT FOR SALE AND PURCHASE
THIS AGREEMENT is made the 12th day of November 1996
BETWEEN:
(1) SKANDA DEVELOPMENTS LIMITED of 43 South Street Reading RG1 4QU
Tunbridge Wells Kent ("the Vendor") acting by JOHN NEIL HARRISON (sole
administrative receiver) of Harrison Associates of 43 South Street
Reading RG1 4QU ("the Receiver") and
(2) JDA INTERNATIONAL LIMITED (Registered Number 2426868) whose registered
office is at 4-5 Churchill Court Hortons Way Westerham Kent TN16 1BT
(the "Purchaser")
IT IS AGREED:
1. Definitions
In this Agreement the following words and expressions have the meanings
set opposite them:
"Property" the property described in Part A of Schedule I;
"the Leases" the leases specified in Schedule II
"Ancillary Leasehold
Documents" the documents (if any) specified in Schedule II
other than the Leases being ancillary to the
Leases and any further documents ancillary to
the Leases entered into after the date of this
Agreement;
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"National Conditions" the National Conditions of Sale
(Twentieth Edition);
"Purchaser's Solicitors" Lovell White Durrant of 65 Holborn
Viaduct London EC1A 2DY Ref: P1/ASL
"Vendor's Solicitors" Pitmans of 47 Castle Street Reading
RG1 7SR Ref AD
"VAT" value added tax and any other tax of
a like nature
"the Second Property" the property described in Part B of
Schedule I
2. Interpretation
In this Agreement unless there be something in the subject or context
consistent therewith:
(a) words importing the neuter gender only shall include the masculine
or feminine gender (as the case may be) and words importing the
masculine gender only shall include the feminine gender and vice
versa;
(b) words importing the singular number only shall include the plural
number and vice versa and where two or more persons are included in
the expression the "Purchaser" or the "Vendor" the agreements and
covenants contained in this Agreement which are expressed to be made
by either the Purchaser or the Vendor shall be deemed to be
respectively made by such persons jointly and severally;
(c) words importing persons shall include firms companies and
corporations and vice versa;
(d) the headings appearing in this Agreement are for ease of reference
only and shall not affect the construction of this Agreement
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3. Sale and purchase and price
3.1 The Vendor agrees to sell and the Purchaser agrees to buy the Property
and all the Vendor's title and interest in the Second Property at the
price of One Million Two Hundred and Eighty Thousand Pounds (pound
sterling 1,280,000)
3.2 the sale excludes all fixtures and fittings in the nature of tenant's
and trade fixtures and fittings
4. National conditions
The National Conditions shall apply to and are deemed to be incorporated
into this agreement in so far as they are applicable to a sale by
private treaty and are not inconsistent with the terms of this agreement
but subject to the following variations
4.1 National Conditions 2, 3, 5(3)(iii), 5 3(v), 5(5)(i), 7(1)(iii) and 15
shall not apply
4.2 The expression "Designated bank" shall for the purposes of the
construction of the said National Conditions herein mean a bank which is
a member of CHAPS and Town Clearing Company Limited
4.3 The prescribed rate of interest shall be four per cent (4%) per annum
above the Base Lending Rate of National Westminster Bank Plc for the
time being in force
4.4 For the purposes of National Conditions 6, 7 and 8 completion shall
unless due to any act or default of the Vendor be deemed to be postponed
by reason of the Purchaser's delay until the next working day if the
money due on completion is not paid over unconditionally to the Vendor's
solicitors (or in the case of a telegraphic or other direct transfer in
accordance with National Condition 5(3)(iv)) credited to the specified
account and released unconditionally in either case by 1:00p.m. on
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any day and the money due on completion shall in that event be
calculated as if completion took place on such next working day
4.5 The proviso to Condition 7(1) shall be deemed to be deleted and the
words "in a case to which proviso (i) of Condition 7(1) applies" shall
be deleted from Condition 6(1)
4.6 In National Condition 22 references to "16 working days" shall be
replaced by references to "10 working days" wherever the same occur
5. Deposit
On or before the signing hereof a deposit of pound sterling 128,000
shall be paid to the Vendor's Solicitors and such deposit will be held
by them as stakeholders
6. Completion
6.1 The sale of the Property and the Second Property shall be completed at
the offices of the Vendor's Solicitors or as they may reasonably direct
on the day of 1996
6.2 If the balance of the purchase money is paid by CHAPS or other direct
transfer then the money remitted by that method shall be deemed to be
received by the Vendor when the Vendor's Solicitors bank has received
the money
7. Possession
The Property is sold subject to and with the benefit of the Leases and
the Ancillary Leasehold Documents
8. Matters affecting the Property
8.1 The Property is sold subject to and (as the case may be) with the
benefit of the exceptions reservations covenants restrictions
stipulations and other matters (except mortgages) contained or referred
to in all registers of title relating to the Property
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kept at HM Land Registry as at the date when the Vendor's land or charge
certificate was last compared with the Register or (if later) the date
of the latest set of office copy entries and copy of the filed plan
provided to the Purchaser
8.2 The Second Property is sold transferred subject to all exceptions
reservations covenants restrictions stipulations and other matters
affecting the same
9. Title
9.1 Title to the First Property is registered at HM Land Registry with
absolute title K684114 and the abstract shall consist of office copies
of the entries on the register and of the filed plan
9.2 The title to the Second Property is comprised in a transfer dated 14
March 1990 made between CNC Properties Limited (1) Skanda Developments
Limited (2)
9.3 The Purchaser or its Solicitor has been furnished with copies of the
Leases and the Ancillary Leasehold Documents and the documents mentioned
in clause 8 the Purchaser shall purchase with full knowledge of the
terms and effect thereof and shall not raise any requisition or make any
objection thereto or to any matters mentioned therein whether or not the
Purchaser or any person acting on its behalf has inspected the same and
shall accept the title so deduced but this shall not prevent the
Purchaser raising requisitions arising from its pre-completion searches
at HM Land Registry HM Land Charges Registry and the Companies Registry
10. Transfer
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The form of transfer of the Property and of the Second Property shall
be in the form as set out in Schedule III
11. Capacity of Vendor
The Vendor shall transfer the Property and the Second Property with no
title covenants
12. Local Land Charges and Statutory Notices
The Property and the Second Property is sold subject to:
(a) all matters registrable by any competent authority pursuant to
statute
(b) all requirements of any competent authority
(c) all matters disclosed or which should have been disclosed by
searches or as the result of enquiries formal or informal and
whether made in person by writing or orally by or for the
Purchaser or which a prudent purchaser ought to make
(d) all notices served by or on behalf of a reversioner a tenant or
sub-tenant or the owner or occupier of any adjoining or
neighbouring property
(e) In this clause:
(i) "competent authority" means a local authority or other body
exercising powers under statute or by Royal Charter
(ii) "requirement" includes (whether or not subject to
confirmation) any notice order of proposal
13. Sub-sales
The Vendor shall not be under any liability to convey the Property and
the Second Property (whether by way of sub-sale or pursuant to a
direction by the Purchaser
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or in any other manner) to any person other than the Purchaser named
herein nor by more than one assurance
14. Insurance
14.1 The Vendor shall maintain its insurance of the Property until the date
of actual completion
14.2 The Vendor shall cancel its policy of insurance on actual completion and
pay to the Purchasers a proportion of the premiums paid in advance for
the period from the date of actual completion to the day before the next
renewal date calculated on a daily basis
14.3 The Purchaser shall forthwith pay to the tenants of the Property the
said refunds paid by the Vendor to the Purchaser and the Purchaser
hereby indemnifies the Vendor against any claims made by any of the
tenants of the Property against the Vendor in respect of such refunds
14.4 The Vendor shall not be responsible to the Purchaser for any deficiency
in the amount insured or the adequacy of the risks insured against and
the Purchaser shall satisfy itself in this respect
15. Service Charge
15.1 As soon as is practical following actual completion and in any event
within 28 days thereof the Vendor shall prepare or procure that an
account is prepared by its management agents showing the amount of all
money received from or credited to tenants on account of service charges
for the period from 1 January 1996 until the date of actual completion
and also showing the amounts of payments made or to be made in respect
of services or other matters provided for or incurred by or on behalf of
the Vendor for the like period
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15.2 The Purchaser shall be supplied with a copy of the account referred to
in subclause 15.1 hereof and if such account shows that the receipts on
account of service charge exceed payments made or to be made in respect
thereof then the amount of such surplus shall be paid forthwith by the
Vendor to the Purchaser and the Purchaser shall account to or credit the
tenants in respect thereof and if such account shows that receipts on
account of service charge are less than payments made or to be made by
the Vendor in respect thereof the Purchaser shall pay the amount of such
shortfall to the Vendor upon having recovered the same from the tenants
but only once all service charges due to the Purchaser have been fully
paid
15.3 At expiration of the service charge year current at the date of actual
completion (hereinafter called "the Service Charge Year") the Purchaser
or its managing agents shall prepare the relevant accounts pursuant to
the Leases taking into the account the expenditure incurred by the
Vendor during its ownership of the Property and expenditure subsequently
incurred by or on behalf of the Purchaser during the Service Charge Year
15.4 The Vendor shall be supplied with a copy of the account referred to in
sub-clause 15.3 hereof and if such account shall show that during the
Service Charge Year:
15.4.1 the receipts on account of service charge exceed payments made
or to be made in respect thereof then insofar as the Vendor has
not been reimbursed for the expenditure it incurred prior to the
date of actual completion the Purchaser shall forthwith pay to
the Vendor such sum as is sufficient to discharge the amount due
to the Vendor
15.4.2 the receipts on account of service charge are less than the
payments made or to be made in respect thereof then the
Purchaser shall use its best
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endeavours to recover any excess service charges from the tenants and
forthwith upon receipt of the same shall to the extent that the Vendor
has not been reimbursed for the expenditure it incurred prior to the
date of actual completion pay to the Vendor such sums as are necessary
to reimburse the Vendor fully in respect thereof provided all service
charges due to the Purchaser during such service charge year have been
fully settled and paid to it first
16. Rent Apportionment
Apportionment of the rent reserved under any of the Leases shall be made at
the date of actual completion (such day of completion being apportioned to
the Purchaser according to the number of days from actual completion to the
date before the day upon which the next installment falls due relative to
the number of days in the calendar year
17. Acknowledgement by Purchaser
The Purchaser acknowledges that this Agreement is not being entered into in
reliance wholly or partly on any statement or representation made by or on
behalf of the Vendor save insofar as any such statement or representation
is expressly set out in this Agreement or has been made in writing by the
Vendor's Solicitors in reply to enquiries raised by the Purchaser's
solicitors
18. Management of the Property pending completion
18.1 Between the date hereof and the date of actual completion of the sale to
the Purchaser the Vendor shall manage the Property and each and every part
thereof in accordance with the terms of the Leases but with the consent in
writing of the Purchaser such consent not to be unreasonably withheld or
delayed
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18.2 Any covenants for indemnity by the Purchaser in relation to the Leases
shall be extended to include such further documents as may hereafter be
entered into by the Vendor in accordance with the provisions of this
Agreement
19. Maintenance contracts
The Vendor shall be entitled to terminate all existing contracts relating
to maintenance and service works in respect of the Property or any part
thereof with effect from the date of actual completion and the Purchaser
shall make its own arrangements with regard to such matters following
completion
20. Bankruptcy or liquidation of the Purchaser
If the Purchaser:
(a) (being a company) enters into voluntary liquidation (other than for
the purpose of reconstruction or amalgamation not involving a
realisation of assets) or has a winding up order made against it by
the court or has a receiver appointed over all or any part of its
assets or an administration order is made pursuant to the Insolvency
Act 1986; or
(b) becomes insolvent or enters into any composition with its or his
creditors or enters into a voluntary arrangement (within the meaning
of ss.1 or 253 Insolvency Act 1986)
then and in any such case the Vendor may rescind this Agreement by notice
to the Purchaser
21. Value Added Tax
21.1 All amounts expressed in this Agreement as being payable or allowable by
either party are expressed exclusive of any VAT which shall be payable in
addition thereto
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21.2 The parties intend that Section 49 of VATA and Article 5 Special
Provisions Order shall apply to the sale of that part of the Property
not let to the Purchaser and the Vendor and the Purchaser shall each use
all their reasonable endeavours to secure that pursuant to the
provisions referred to above the sale of that part of the Property is
treated as neither a supply of goods nor a supply of services for the
purposes of VAT but as the transfer of a business as a going concern
21.3 The Purchaser represents, warrants and undertakes to the Vendor that:
21.3.1 it is the duly and properly registered for the purposes of VAT
registration with number 515 2446 67 and
21.3.2 it will validly elect with effect from a date on or before the date
of completion under paragraph 2 Schedule 10 VATA in respect of the
Property and
21.3.3 it will duly notify HM Customs & Excise on or before the date of
completion of such election
21.3.4 it will produce to the Vendor on or before the date of completion a
copy of its notice to HM Customs & Excise of its election under
paragraph 2 Schedule 10 in respect of the Property and written
confirmation of the receipt of such election from HM Customs & Excise
and
21.3.5 it will from the date of completion continue to use the Property for
the purposes of letting
21.4 The Vendor represents warrants and undertakes to the Purchaser that
21.4.1 it is and will be at completion duly and properly registered for the
purposes of VAT registration number 565 3933 16 and
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21.4.2 it has validly elected under paragraph 2 Schedule 10 VATA in respect
of the Property and will not revoke such election
21.4.3 it has duly notified HM Customs & Excise of such election in
accordance with paragraph 3 Schedule 10 VATA
21.4.4 it will produce to the Purchaser on the execution of this Agreement a
copy of its notice to HM Customs & Excise of its election under
paragraph 2 Schedule 10 VATA in respect of the Property and written
confirmation of the receipt of such election from HM Customs & Excise
21.4.5 The Property is not a capital item to which part XV of the Value Added
Tax Regulations 1995 applies
21.5 The Vendor and the Purchaser shall give to HM Customs & Excise such notice
of the sale and purchase of the Property pursuant to this Agreement as may
be required by paragraphs 11 or 12 Schedule 1 VATA or by paragraph 6 Value
Added Tax Regulations 1995 or as may otherwise be required by law
21.6 The Vendor shall prior to completion write in terms to be agreed by the
Purchaser to HM Customs & Excise requesting a written ruling that pursuant
to Article 5 Special Provisions Order the sale of that part of the
Property not let to the Purchaser pursuant to this Agreement is neither a
supply of goods nor a supply of services for the purposes of VAT. The
Purchaser shall provide such assistance and information as the Vendor
shall reasonably require to enable the Vendor to obtain such ruling
21.7 If HM Customs & Excise notify the Vendor that they do not agree that the
sale of that part of the Property not let to the Purchaser pursuant to
this Agreement falls within Section 49 VATA and Article 5 Special
Provisions Order, the Vendor shall
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forthwith on receipt of such notification or on completion (whichever is
the later) issue to the Purchaser a valid VAT invoice in respect of the
sale of that part of the Property (or the relevant part of it) in addition
to the Price
21.8 If the Vendor does not receive prior to completion a written ruling by HM
Customs & Excise as to the correct VAT treatment of the sale of the
Property pursuant to this Agreement the Purchaser shall on completion pay
the sum of pounds sterling 132,451.20 into the Account
21.9 If notwithstanding the provisions of this Clause 21 HM Customs & Excise
notify the Vendor that VAT is chargeable on the sale of the Property (or
any part of it) pursuant to this Agreement
21.9.1 the Vendor shall forthwith on receipt of such notification issue to the
Purchaser a valid VAT invoice in respect of the sale of the Property
(or the relevant part of it)
21.9.2 an amount equal to the VAT which is determined by HM Customs & Excise
to be charged on the sale of the Property (or the relevant part of it)
shall forthwith be released from the Account to the Vendor and the
balance (if any) of the monies held in the Account shall forthwith be
released to the Purchaser (including any accrued interest)
21.9.3 if the amount of the VAT which is determined by HM Customs & Excise to
be charged on the sale of the Property (or the relevant part of it)
exceeds (for whatever reason) the amount held in the Account the
Purchaser shall pay to the Vendor forthwith on receipt of a written
demand form the Vendor an amount equal to the excess
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21.10 If HM Customs & Excise notify the Vendor that VAT is not charged on the
sale of the Property pursuant to this Agreement the monies held in the
Account shall forthwith be released to the Purchaser (including any
accrued interest)
21.11 For the purposes this clause 23 the following definitions shall have
the following meanings
"Special Provisions Order" the Value Added Tax (Special Provisions)
Order 1995
"the Account" a stakeholder account maintained by the
Purchaser's Solicitors on behalf of the
Vendor and Purchaser
"VATA" the Value Added Tax Act 1994 and any other
statutes concerned with VAT as amended from
time to time and any act from time to time
replacing re-enacting or consolidating the
said Act or those statues and any
regulations made under the said Act or
those statute and any directions and
regulations adopted by the Council of the
European Communities which relate to VAT
22. Non Merger
For as long as any obligation under this Agreement remains to be performed
then notwithstanding completion of the sale and purchase hereby agreed to
be made this Agreement shall to such extent remain in full force and effect
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23. Rent Deposit
On completion the Vendor will pay to the Purchaser all rent deposits held
by it under the terms of the any leases or deeds supplemental thereto and
will account to the Purchaser for all interest earned thereon
24. Limitation of Vendor's liability
24.1 Notwithstanding any obligations on the part of the Vendor contained in this
Agreement relating to the insurance and/or management of the Property
pending completion the Vendor shall not be required to observe and perform
such obligations to any greater extent than the Receiver is able to do so
as agent of the Vendor or otherwise in pursuant of the power conferred upon
him by virtue of his appointment
24.2 Notwithstanding any obligations on the part of the Vendor in this Agreement
to account for or pay to the Purchaser on completion any apportionment of
rent or service charge or insurance premiums or any other monies paid by
any of the tenants under the Leases the Vendor shall not be required to
account for or to pay such apportionment except to the extent that the
Receiver shall either have received or be in possession of such sums
relating to the period in respect of which the relevant apportionment is
payable
25. Vendor's Representative
The Receiver shall incur no personal liability whatsoever under or by
virtue of this Agreement (in his capacity as agent of the Vendor or
otherwise) whether in contract or in tort and shall not be made a party to
any assurance of the Property
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or the Second Property to the Purchaser and the assurance of the
Property and the Second Property to the Purchaser shall incorporate a
declaration of exclusion of liability on the part of the Receiver in the
same terms as this clause
26. Entire agreement
Any additional conditions or variation of the conditions contained in
this Agreement which are agreed in correspondence between the parties
(or their solicitors with their authority) where the correspondence
makes express reference to this Clause are deemed to be incorporated in
this Agreement and it is hereby acknowledged that this Agreement (with
the incorporation of any such additional conditions or variation)
constitutes the entire contract between the parties
AS WITNESS the hands of the parties hereto or their duly authorized
agents the day and year first before written
SCHEDULE I
Part A
(The Property)
ALL THAT freehold property known as Churchill Court Hortons Way Westerham Kent
as the same is registered at H M Land Registry under title no. K684114
Part B
(The Second Property)
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All that freehold property as shown edged red in a transfer dated 14 March 1990
made between CNC Properties Limited (1) Skanda Developments Limited (2)
SCHEDULE II
The Leases and the Ancillary Leasehold Documents
Unit 1
Date Document Parties
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29.08.1995 Letter Skanda Developments Limited (In
Administrative Receivership) (1)
BUPA Purchasing Limited (2)
28.09.1995 Lease Skanda Developments Limited (In
Administrative Receivership) (1)
BUPA Purchasing Limited (2)
Unit 2
07.06.1996 Lease Skanda Developments Limited (In
Administrative Receivership) (1)
Isovel International Limited (2)
[Undated License for Skanda Developments Limited
Alterations (In Administrative
Receivership) (1) Isovel
International Limited (2)]
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Unit 3
04.04.1995 Lease Skanda Developments Limited (In
Administrative Receivership) (1)
Wesleyan Assurance Society (2)
Unit 4
25.06.1991 Lease Skanda Developments Limited (1)
JDA Software Services Limited (2)
25.06.1991 Agreement Skanda Developments Limited (1)
JDA Software Services Limited (2)
Unit 5
25.06.1991 Lease Skanda Developments Limited (In
Administrative Receivership) (1)
JDA Software Services Limited (2)
Unit 6
06.03.1995 Lease Skanda Developments Limited (In
Administrative Receivership) (1)
Reflex Information Management
Limited (2)
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TRANSFER
HM LAND REGISTRY
LAND REGISTRATION ACTS 1925 TO 1986
County & District: Kent - Sevenoaks
Title Number : K684114
Property : Churchill Court Hortons Way Westerham and land adjoining
Date : 1996
1. In consideration of One million two hundred and eighty thousand pounds
(1,280,000 pound sterling) [(plus value added tax thereon of Ninety one
thousand five hundred and forty eight pounds and eighty pence (91,548.80
pound sterling))] the receipt of which is hereby acknowledged SKANDA
DEVELOPMENTS LIMITED (Registered Number 2280899) whose registered office is
at 14-16 Mount Ephraim Road Tunbridge Wells Kent (the "Transferor") acting by
John Neil Harrison (sole administrative receiver) of Harrison Associates of
43 South Street Reading RG1 4QU (the "Receiver") HEREBY TRANSFERS to JDA
INTERNATIONAL LIMITED (Registered Number 2426868) whose registered office is
at 4-5 Churchill Court Hortons Way Westerham Kent TN16 1BT (The "Transferee")
first the land comprised in the above title and secondly ALL THAT right title
and interest of the Vendor in the land transferred to the Vendor by a
Transfer dated 14 March 1990 made between CNC London Properties Limited (1)
the Vendor(2).
2. With the object of affording to the Transferor a full and sufficient
indemnity but not further or otherwise the Transferee HEREBY COVENANTS with
the Transferor that the Transferee and the persons deriving title under it
will at all times hereafter observe and perform the covenants on the part of
the Landlord contained in the Leases specified in the Schedule and will
indemnify and keep indemnified the Transferor from and against all
proceedings, costs, claims and expenses in respect of any future breach,
non-observance or non-performance thereof.
3. The Receiver shall incur not personal liability whatsoever under or by
virtue of this Transfer.
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4. This document shall be treated as having been executed and delivered as a
deed only upon being dated.
THE SCHEDULE
UNIT NO. DATE PARTIES
1 28.09.1995 The Transferor (in Administrative Receivership)(1)
BUPA Purchasing Limited (2)
2 07.06.1996 The Transferor (in Administrative Receivership)(1)
Isovel International Limited (2)
3 04.04.1995 The Transferor (in Administrative Receivership)(1)
Wesleyan Assurance Society (2)
4 25.06.1991 The Transferor (1)
The Transferee (2)
5 25.06.1991 The Transferor (1)
The Transferee (2)
6 06.03.1995 The Transferor (in Administrative Receivership)(1)
Reflex Information Management Limited (2)
Executed as a deed by the affixing of the )
Common Seal of Skanda Developments )
Limited (in Administrative Receivership) )
in the presence of: )
Administrative Receiver
Executed as a deed by the affixing of the )
Common Seal of JDA International )
Limited in the presence of: )
Director
Secretary
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SCHEDULE III
The form of transfer of the Property and the Second Property
Signed by or on behalf of
the Vendor\Purchaser
/s/ J. N. Harrison
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J. N. Harrison
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