SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934.
Date of Report (Date of Earliest event reported):
September 5, 1996
PRIDE AUTOMOTIVE GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-24742 13-3704059
State of Commission File IRS Employer
Incorporation Number. Identification No.
Pride House, Watford Metro Centre, Tolpits Lane,
Watford Hertfordshire, England WD1 8SB
Address of principal executive offices
Registrant's telephone number, including area code (800) 698-6590
None
(Former name or former address, if changed since last report)
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Item 2. Acquisition or Disposition of Assets
Pride Automotive Group, Inc. has entered into an agreement to acquire all the
assets of AC Cars Limited and Autokraft Limited, two companies incorporated
in England. The acquisition will be made through AC Automotive Group, Inc.,
a wholly owned subsidiary of Pride Automotive Group, Inc., which was
incorporated in Delaware on August 9, 1996.
AC Cars Limited and Autokraft Limited (collectively "AC") are engaged in the
design, development, manufacture, marketing and sales of two convertible
sports cars, the famous AC Cobra and the AC Ace which will soon be released
on the worldwide market. Both of these cars use American Ford V8 engines as
their power plant.
AC is Britain's oldest surviving independent car manufacturer and has been in
continuous operation since 1901. The Group has used the Cobra name under a
license agreement with the Ford Motor Company.
Historically, AC Cars Limited has performed development, sales and marketing
work while Autokraft Limited has performed manufacturing work and has
provided specialized engineering and prototyping services.
AC has incurred losses in recent years due to the design and development
costs associates with bringing the AC Ace into production. The AC Ace is now
type-approved for the United Kingdom and certain other EEC Countries,
Thailand and is currently in the process of gaining the approvals to be sold
in the United States and Australia. It has been very well received by the
world motoring press and it is manufactured with a stainless steel alloy
monocoupe type chassis, together with aluminum outer body panels.
The AC Cobra is a high powered, hand built sports car with an aluminum body.
Originally manufactured by AC in the 1960's, the Cobra's produced by AC today
use the same traditional coach building methods and the original tooling.
AC was placed in Administrative Receivership in March 1996 to protect it from
its creditors as it could not pay its debts as they arose due a lack of
capital as a direct result of the development costs of the AC Ace and other
costs connected with an expensive restoration of a Hawker Hurricane
Aeroplane. This restoration has not been completed and the Hurricane has
been put on the market for sale.
Due to a confidentiality agreement between Pride Automotive Group, Inc. and
the Administrators of AC, no details of the purchase price can be released
until after the deal has closed. Closing is expected to be early in the Fall
of 1996 and it is subject to Pride Automotive Group, Inc. having all its
financing in place.
Item 7. Financial Statements, Pro Forma Financial Statements and Exhibits.
(a) Financial Statements of business being acquired. Shall be
filed by amendment.
(b) Exhibits. The following exhibits are filed herewith pursuant
to Item 601 of Regulation S-B of the Securities Act of 1933,
as amended, in connection with Registrant's report on Form
8-K dated September 20, 1996 under file No. O-27944.
10.12 - Form of Agreement to purchase all the assets of AC Cars
Limited and Autokraft Limited.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
Undersigned hereunto duly authorized on the 20th of September 1996.
PRIDE AUTOMOTIVE GROUP, INC.
By: /s/ Alan Lubinsky
Alan Lubinsky, President
AGREEMENT dated day of 1996
BETWEEN
(1) AUTOKRAFT LIMITED a company registered in England and Wales under
number 13305645 ("Autokraft") and AC CARS LIMITED a company registered
in England and Wales under number 20259157 ("AC Cars") both of whose
registered offices are at 3 Vickers Drive, Brooklands Industrial Park,
Weybridge, Surrey KT13 0YV (together "the Vendors");
(2) PARADEHAVEN LIMITED a company registered in England and Wales under
number 3217999 whose registered office is at Pride House, Watford Metro
Centre, Tolpitts Lane, Watford, Herts WD1 8SB ("the Purchaser");
(3) ANDREW MARK HOMAN and MICHAEL DAVID GERCKE both of Price
Waterhouse,
No. 1 London Bridge, London SE1 9QL ("the Receivers"); and
RECITALS
A. The Receivers were appointed joint administrative receivers of the
Vendors on 7th March 1996 under the Debenture.
B. Autokraft acting by the Receivers, has prior to entering into this
Agreement, on 8th July 1996 entered into a separate agreement to
purchase certain assets, previously disclosed to the Purchaser, from
Mr Brian Angliss.
C. The Vendors acting by the Receivers have agreed to sell and the
Purchaser has agreed to purchase such right title and interest as the
Vendors may have in the businesses undertakings and certain of the
assets of the Vendors on the terms and conditions below.
DEFINITIONS
In this document where the context so admits the following words shall have the
meanings set opposite them:
"Acceptance means a certificate substantially in the form
Certificate" set out in Schedule 1 to be executed by
Purchaser at Completion
"Aircraft" means the airframe together with the engine
and propeller (as more particularly described
in Schedule 2) and any and all appliances,
parts, instruments, avionics and equipment of
whatever nature which are installed on or
attached to such Airframe and which form part
of the Aircraft and spare parts at Completion
The word "Aircraft" means the Aircraft as a
whole and each and every part of it and,
unless the content otherwise requires, it
includes the Manuals and Technical Records
"the Assets" the Transferred Assets, the Third Party
Equipment and the Premises but not the
Excluded Assets
"Associates" means in respect of any Person, its parent,
associate and subsidiary companies (as the
term "subsidiary" is defined in Section 736
of the Companies Act 1985) and all of their
respective directors, officers, employees,
agents, successors and assigns;
"the Bentley" means the 1931 4 1/2 litre Supercharged
("Birkin") Bentley Registration No. UR 9155,
Chassis No. HR 3977 and Engine No. MS 3940
"Book Debts" all amounts owing to the Vendors at the close
of business on the Completion Date together
with the benefit of all rights and securities
(if any) of the Vendors in relation to such
unpaid amounts other than Car Sale Proceeds
"the Business" the Vendors' businesses of motor vehicle
manufacture and servicing carried on from the
Premises
"Car Sale Proceeds" all amounts paid or payable after the date
hereof in respect of sales of vehicles other
than sales of vehicles listed as Excluded
Assets
"the Capital the plant, machinery and equipment, office
Equipment" furniture and computer hardware and software
now used by the Vendors in connection with
the Business and situated at the Premises at
the Completion Date including for the
avoidance of doubt the plant and machinery
listed in Schedule 3 and the assets referred
to in Recital B hereof
"Certificate of means the certificate of airworthiness issued
Airworthiness" by the Civil Aviation Authority in respect of
the Aircraft on 25th July 1996
"the Commercial all manuals, personnel records, books of
Records" account, records, written information,
customer lists, data and similar items used
in and/or relating to the Business but
excluding the Receivers' Records
"Completion" means the completion of this Agreement in
accordance with clause 4
"the Completion 6th September, 1996 or such earlier date as
Date" the parties may agree in writing or such
later date as is determined by clause 3 of
this Agreement
"the Debenture" the Composite Guarantee and Debenture dated
14th July 1993 issued by the Vendors to
Arbuthnot Latham & Co. Limited ("the Bank")
"the Employees" the employees of the Vendors listed in
Schedule 4
"the Employment any contract or arrangement with respect to
Contracts" the employment of the Employees entered into
between the Vendors and the Employees whether
in writing or otherwise
"the Employment the Transfer of Undertakings (Protection of
Regulations" Employment) Regulations 1981, as amended
"the Excluded those assets owned by the Vendors listed in
Assets" Schedule 5
"the Excluded those vehicles listed in Schedule 6
Vehicles"
"Ford" Ford Motor Company Limited
"The Ford Mortgage" two mortgages both dated 27th October 1987
made between:-
(a) AC Cars (1) and Ford Motor Company
(2); and
(b) Autokraft (1) and Ford Motor Company
(2).
"General Assets" all intangible assets and choses in action
(not being Book Debts or bank accounts)
relating to the Business including rights of
confidence, the benefit of employees'
restrictive covenants and the benefit of
contracts relating to the insurance or
protection of the assets hereby agreed to be
sold and purchased, or the Third Party
Equipment
"the Goodwill" the goodwill of the Vendors in relation to
the Business, including the benefit of the
Vendors' trade connection with their
customers and suppliers and the right to
carry on the Business in succession to the
Vendors from the Premises and the right to
trade under the names AC Cars and Autokraft
"the Guarantor" Pride Automotive Group Inc a company
incorporated under the laws of the State of
Delaware
"Know-How" all information, know how, formulae, designs,
specifications drawings, data manuals, and
instructions and all technical or other
expertise exclusively used in the Business
including all copyrights, design rights,
patents, trade marks and other intellectual
rights whether registered or not
"Land Registry means Land Registry Title numbers SY579222
Title" and SY579223
"the Lease the agreements for the leasing of certain
Agreements" assets as listed in Schedule 7
"Leases" means a lease dated the eleventh day of
August 1980 granted to South Eastern
electricity Board as the same is referred to
in entry numbered fourteen of the Charges
Register of H.M. Land Registry title number
SY 579222 together with a lease dated 11th
August 1980 made between (1) Oyster Lane
Properties Limited and (2) The South Eastern
Electricity Board as the same is referred to
in entry numbered three of the Charges
Register of H.M. Land Registry title number
SY 579222
"Manuals and means those records, log books, engine
Technical Records" records, manuals, technical data, drawings
and other documents relating to the Aircraft
which are the property of Autokraft and in
Autokraft's possession at the date hereof;
"Mortgage Deed" means a Deed of Mortgage dated the 7th day of
February 1995 made between Autokraft and
Arbuthnot Latham & Co. Limited;
"the Motorcycle the collection of historic and racing
Collection" motorcycles currently owned by the Vendors or
either of them or Mr Brian Angliss at
Completion and listed in Schedule 8
"NASDAQ" the US National Association of Securities
Dealers Automated Quotations Small-Cap Market
System
"AC Automotive" AC Automotive Group Inc a company
incorporated under the laws of the State of
Delaware
"the AC Automotive ordinary stock in AC Automotive convertible
Stock" the Preference Shares pursuant to clause 2.2
at a price of US$3.00 each on the floatation
of AC Automotive on NASDAQ and thereafter at
50% of the average closing bid price on
NASDAQ for ordinary stock of AC Automotive
for the preceding ten days
"the New Lease" means the lease of the Premises which is to
be granted pursuant to the terms of this
Agreement the form of which is set out in
Schedule 9
"the Operating" the gross wages and salary costs
(including
Costs" National Insurance Contributions and PAYE),
the costs of raw materials and general
overhead costs including insurance and
utilities used or accruing in respect of the
Business
"the Option" means the option granted by clause 5 of this
Agreement
"the Preference convertible redeemable preference shares of
Shares" 1 pound each in the Purchaser credited as
fully paid with a minimum dividend payable of
8 per cent per annum to be paid quarterly
and issued pursuant to clause 2.2
"the Premises" all that property being land at Brooklands
Industrial Park Weybridge Elmbridge Surrey as
the same is registered at H.M. Land Registry
with the Land Registry Title
"the Purchaser's Bower Cotton, 36 Whitefriars Street, London
Solicitors" EC4Y 8BH
"Receivers' those contracts and engagements, for sales,
Contracts" supplies or purchases of goods other than
contracts relating to Third Party Equipment
and which were entered into by or on behalf
of the Vendors or either of them with third
parties in connection with the Business
(a) after the appointment of the
Receivers and which remain, in whole
or in part, to be performed at the
Completion Date, or
(b) prior to the appointment of the
Receivers which remain, in whole or
in part, to be performed as at the
Completion Date (i) in respect of
which the Receivers have given
assurances to third parties in
relation to their existing,
continued or future performance by
the Vendors or any purchaser of the
Business or (ii) the terms of which
have been changed after the
appointment of the Receivers but
prior to the Completion Date or
(iii) which the Receivers have
adopted or caused to be continued
during the receivership but prior to
the Completion Date where the
Receivers have caused the Vendors or
either of them to incur commitments
which the Receivers intend to honour
as receivership expenses or where
the Receivers are personally liable
and which are listed in Schedule 10
together with any further contracts
agreed in writing between the
parties and/or contracts where the
value of each of which is less than
500 pounds
"the Receivers' the records, papers and
correspondence
Records" which the Receivers consider, in
their sole discretion, are
confidential and relate either in
whole or in part to the Receivership
of the Vendors or either of them
together with the statutory books of
the Vendors
"the Receivers' Richards Butler Beaufort House 15 St
Solicitors" Botolph Street London EC3A 7EE
"the Receivers' the client account of the Receivers'
Solicitor's Client Solicitors at Lloyds Bank Plc, 39
Account Threadneedle Street, London EC2 (sort
code: 30-00-09, account number
0023889,
reference JY/96-13479)
"Stock" the stocks of materials, components,
part-completed and completed motor
vehicles, demonstration vehicles and
all other stock-in-trade which is
owned by the Vendors or either of
them as at the Completion Date which
for the avoidance of doubt shall not
include completed motor vehicles
where the property in such vehicles
has passed to a third party by
operation of law or otherwise
"the Tempest Parts" means those parts of the two Hawker
Tempest Aircraft Manufacturer's
serial numbers 420 and 1181 together
with any records, log books, engine
records, manuals, technical data,
drawing or other documents relating
to the Parts as are in the
possession or control of the Vendors
at the Completion Date
"the Third Party all items of equipment to the extent
Equipment to which they are not owned by the
Vendors or either of them but which
are used in the Business including
without limitation machinery and
equipment, office furniture and
computer hardware leased or hired to
the Vendors including but not
limited to pursuant to the Lease
Agreements or on hire purchase to
the Vendors or for which the Vendors
or either of them are for any reason
bailees
"Transfers" means the transfers of the Premises
to the Purchaser in all material
respects in the forms set out in
Part 1 of Schedule 11 (subject to
insertion of the date of the New
Lease and to the apportionment of
the Agreed Price as defined in
Schedule 12 as between the two
transfers which is to be decided by
the Vendors);
"the Transferred the Goodwill, the Capital Equipment,
Assets" the Aircraft, the Tempest Parts, the
Car Sale Proceeds (if any), the
Stock, the Parts, the Know-How, the
benefit of (subject to the burden
of) the Receivers' Contracts and the
General Assets but excluding the
Excluded Assets
"VAT" value added tax or any tax replacing
it.
Any reference, express or implied, in this agreement, to an enactment includes
references to:
(a) that enactment as amended, extended or applied by or under any other
enactment before or after this agreement;
(b) any enactment which that enactment re-enacts (with or without
modification); and
(c) any subordinate legislation made (before or after this agreement); and
(d) any subordinate legislation made (before or after this agreement) under
such enactment, including one within (a) or (b) above;
save to the extent that the liability of any party to this agreement will be
increased or extended by the inclusion of such references.
Unless otherwise defined herein, words and phrases defined or otherwise used
in Section 61 of the Law of Property Act 1925, the Companies Act 1985 (as
amended), the Insolvency Act 1986 (as amended) or the Insolvency Rules 1986 (as
amended) shall bear the same meanings in this agreement.
Words denoting persons shall include bodies corporate, unincorporated
associations of persons and partnerships.
The schedules form part of this agreement and any reference to this agreement
shall include the schedules.
References in this agreement to recitals, clauses and schedules, and appendices
are to recitals, clauses, schedules and appendices of this agreement.
The headings in this agreement do not affect its interpretation.
AGREEMENT
1 Sale and Purchase
1.1 The Vendors acting by the Receivers will sell and the
Purchaser will purchase such right title and interest as the
Vendors has in the Transferred Assets and the Vendors shall
grant and the Purchaser shall accept the New Lease as at and
from close of business on the Completion Date.
1.2 The Transferred Assets will be sold by the Vendors subject to
any subsisting reservation of title claims, charges, liens,
encumbrances or other third party rights whatsoever (other
than those arising in favour of Arbuthnot Latham & Co. Limited
under the Debenture or the Mortgage Deed.
1.3 Failure by the Vendors to pass any title, right or interest to
or in any of the Transferred Assets shall not be a ground
enabling the Purchaser to rescind or treat the Vendors as in
breach of the sale of that Transferred Assets or any of the
Transferred Assets or to claim a reduction of the purchase
price.
2 Consideration
2.1 The consideration for the sale and purchase under 1.1 above
shall be the sum of 2,420,000 pounds ("the Cash
Consideration") together with the consideration to pass
pursuant to clause 2.2 the sum of 2,420,000 pounds shall be
apportioned as follows between the Vendors and the Transferred
Assets:
Autokraft AC Cars
(pounds) (pounds)
2.1.1 Goodwill 300,000 300,000
2.1.2 Aircraft and 800,000
Tempest Parts
2.1.3 Capital Equipment 350,000 165,000
2.1.4 Stock 220,000 287,996
2.1.5 Receivers' Contracts 1 1
2.1.6 Know-How 1 1
1,670,002 749,998
TOTAL 2,420,000
===========
The Purchaser shall pay the Cash Consideration payable pursuant to this
clause in three instalments, the first instalment of 50,000 pounds by
way of a non-refundable deposit on the date of execution of this
Agreement, the second instalment of 1,870,000 pounds on the Completion
Date and the third instalment of 500,000 pounds, within eighteen months
of the Completion Date or if earlier the flotation of AC Automotive on
NASDAQ interest will be payable on the third instalment quarterly at
the rate of 2 per cent over Lloyds Bank plc from time to time, such
interest to be calculated on a daily basis and compounded at quarterly
rest, and the Vendors shall have no unpaid vendor's lien on any part
of the Transferred Assets in respect of the third instalment.
2.2
2.2.1 The Purchaser shall also on the Completion Date pay
further consideration in the sum of 1,000,000 pounds
to be paid or satisfied at the option of the
Purchaser either in cash and/or by the allotment of
Preference Shares to the Vendors, or either of them
and in such proportions as the Vendors shall in
writing direct the Purchaser prior to the Completion
Date.
2.2.2 The value of the consideration paid or satisfied
pursuant to clause 2.2.1 shall be apportioned equally
between the Vendors against Goodwill.
2.2.3 The Preference Shares shall be:
2.2.3.1 redeemable at the option of the Vendors, or
either of them as the case may be, at any
time after three years from the Completion
Date; and
2.2.3.2 converted at the option of the Vendors at any
time after the AC Automotive has been floated
on NASDAQ into the AC Automotive Stock.
3 Completion Date
3.1 The Completion Date shall be 6th September 1996 unless the
Vendors shall have received notice in writing from the
Purchaser on or before 1st September 1996 that it requires the
Completion Date to be a later date no later than 30th
September 1996 when the Completion Date shall be the later
date required by the Purchaser PROVIDED THAT the Purchaser
complies with the provisions of clause 3.2.
3.2 If the Completion Date is after 6th September 1996 during the
period between 1st September 1996 and Completion the Purchaser
agrees to:
3.2.1 to pay to the Vendors as additional consideration the
sum of 20,000 pounds per week for the period 1st
September 1996 until Completion the first such
payment to be made on 2nd September 1996 with
payments thereafter on a weekly basis as a
contribution to the Operating Costs such 20,000
pounds per week will include 1,500 pounds for the
purchase of materials;
3.2.2 provide evidence to the reasonable satisfaction of
the Vendors that it is progressing with negotiations
with third parties with a view to arranging funding
for its commitments under this Agreement, such
evidence will be provided on a weekly basis
commencing on 6th September 1996 until Completion.
4 Completion
4.1 Completion will take place on the Completion Date at the
offices of the Receivers Solicitors or wherever they shall
direct.
4.2 At completion:-
4.2.1 the Purchaser shall execute and deliver to the
Vendors a counterpart of the New Lease and the
Vendors and the Receivers will execute and deliver
the New Lease and assignments or transfers to the
Purchaser of the Transferred Assets;
4.2.2 the Purchaser will pay to the Vendors the sum of
1,870,000 pounds; and
4.2.3 the Purchaser shall provide evidence to the
reasonable satisfaction of the Receivers that the
Preference Shares have been issued and will deliver
to the Vendors, or either of them as the case may be,
a share certificate or certificates in respect of the
Preference Shares;
4.2.4 Autokraft shall deliver to the Purchaser the
Certificate of Airworthiness and such of the Manuals
and Technical Records as are held by it at the
Completion Date;
4.2.5 the Purchaser shall execute and deliver to Autokraft
the Acceptance Certificate (delivery of which shall
be conclusive evidence for all purposes that the
Aircraft is satisfactory and in accordance with the
requirements of this Agreement);
4.2.6 Autokraft shall provide to Purchaser:-
(a) a commercial invoice for the Aircraft; and
(b) a Deed of Release of the Aircraft from the
Mortgage Deed and the Debenture;
(c) a letter from any third party which, as far
as the Receivers are aware, has been
responsible for the storage of the Aircraft
to the Purchaser that that third party will
release the Aircraft to the Purchaser upon
demand and without payment of any sort by the
Purchaser;
4.2.7 the Purchaser shall direct its agent to produce a
letter from the bailee of car chassis no. DX1044
releasing the car to the Purchaser upon demand and
without payment of any sort by the Purchaser;
4.2.8 Autokraft and the Receivers shall notify the Civil
Aviation Authority of the sale of the Aircraft to
Purchaser and both will confirm they have no further
interest therein;
4.2.9 without any further action on Autokraft's part,
Autokraft assigns to Purchaser (insofar as they may
be capable of assignment by Autokraft acting by the
Receivers) the full benefit of all subsisting and
assignable manufacturers', suppliers' and/or overhaul
contractors' warranties (if any) in relation to the
Aircraft to the benefit of which Autokraft is
entitled;
the Purchaser recognises there may not be any such
warranties, that if there are any they may not be
assignable and that in any event they may be subject
to third party rights of set-off or counterclaim
which Autokraft will not or cannot satisfy;
4.2.10 it shall be the sole responsibility of the Purchaser
and the Purchaser hereby undertakes to forthwith
remove the Aircraft from where it may be on the
Completion Date and to obtain whatever licences,
permissions, authorities and approvals that may be
required to fly and/or transport the Aircraft from or
within the United Kingdom. All costs relating to the
parking or storage of the Aircraft shall be for the
account of Purchaser after 1st September 1996;
4.2.11 the Vendors shall produce a Court Order pursuant to
Section 38(4) of the Landlord and Tenant Act 1954
("the Act") (as amended by Section 5 of the Law of
Property Act 1969) in such form as shall be
reasonably acceptable to the Vendors authorising the
agreement to exclude the provisions of Sections 24 to
28 of the Act in relation to the New Lease and the
Purchaser shall provide all reasonable assistance to
the Vendors in ensuring the relevant Court Order is
granted prior to the Completion Date;
4.2.12 the Vendors shall on Completion provide the Purchaser
with the written consent of Ford, as mortgagee and
the Bank as holder of the Debenture to the grant of
the New Lease;
4.2.13 the Vendors shall execute all necessary assignments
and transfers of the Know-How;
4.2.14 The Vendors shall deliver to the Purchaser at the
Premises such as the Transferred Assets as are
capable of being transferred by delivery.
4.3 All sums payable or obligations performable by the Purchaser
pursuant to this Agreement shall be paid to the Receivers'
Solicitors on behalf of the Receivers into the Receivers'
Solicitors' Client Account by telegraphic transfer or in
cleared funds as may otherwise be agreed.
5 Option
The Vendors grant to the Purchaser an option to purchase the Premises
on the terms contained in Schedule 12. On or before Completion the
Vendors shall obtain the consent of Ford as mortgagee and the Bank as
holder of the Debenture to the grant of the Option and the parties will
use their reasonable endeavours to reduce the sum due under paragraph
1.1(ii) of Part II of the Option.
6 VAT
6.1 The Vendors and the Purchaser intend that Article 5 of the
Value Added Tax (Special Provisions) Order 1995 ("Article
5") shall apply to the sale of the Transferred Assets under
this Agreement situated in United Kingdom, so that the sale is
treated as neither a supply of goods nor a supply of services.
6.2 If, nevertheless, any VAT is chargeable in respect of the
consideration payable pursuant to this Agreement or any of it
or otherwise on any supply by the Vendors or either of them or
the Receivers under this Agreement, the Purchaser shall pay to
the Receivers the amount of the tax and indemnify the Vendors
or either of them and the Receivers on demand for any interest
and penalties, and the Vendors or either of them or the
Receivers shall forthwith issue to the Purchaser suitable VAT
invoice(s).
6.3 Without limiting sub-clause 6.2, VAT shall be treated as
chargeable if H M Customs & Excise state in writing that it is
chargeable, in which case the Purchaser shall pay the amount
of it to the Vendors or either of them payment to be made on
the tendering of a VAT invoice.
6.4 With a view to procuring that Article 5 applies, the
Purchaser:
6.4.1 warrants that it has applied to H.M. Customs and
Excise for VAT registration with effect from the
Completion Date;
6.4.2 warrants that the Transferred Assets are to be used
by it in carrying out the same kind of business as
that carried on by the Vendors; and
6.4.3 covenants not to withdraw the application referred to
in paragraph (a) within 3 months of the Completion
Date.
6.5 References to the Purchaser in paragraphs (a) and (b) of
sub-clause 6.4 shall be construed as references to the
transferee within the meaning of the corresponding provision
of Article 5 if different.
6.6 The Purchaser shall at Completion produce to the Vendors
satisfactory evidence that the application referred to in
clause 6.4 has been duly received by H.M. Customs & Excise.
7 Further Assurance
7.1 Subject to clause 7.3 below, the Vendors will execute such
further assurances necessary to transfer to the Purchaser the
Vendors' rights in the Transferred Assets, if:
7.1.1 the Vendors are able to do so; and
7.1.2 the Purchaser makes a written request and bears the
reasonable cost.
7.2 Subject to clause 7.3 below, the Vendors will have a
reasonable time to comply with any request under clause 7.1.
7.3 Any requests for assistance by the Purchaser under this clause
7 must be made within twelve (12) months of the Completion
Date or prior to the vacation of office of the Receivers in
respect of the one of the Vendors from which assistance is
sought (if earlier).
8 Disclaimer
8.1 All representations warranties or conditions express or
implied, statutory or otherwise in respect of the Business or
any of the Assets or any of the rights, titles and interest
agreed to be sold are expressly excluded (including without
limitation warranties and conditions as to their existence,
quiet possession, title, satisfactory quality, fitness for
purpose and description).
8.2 The Purchaser acknowledges that the Aircraft will be sold on
an "as is, where is and with all faults" basis and that no
conditions, warranties or representations of any kind have
been or have or will be given by the Vendors, the Receivers or
their Associates in relation to the title, value,
airworthiness, condition, design, capacity, age, quality,
description, state, operation, performance, satisfactory
quality or fitness for use or operation of the Aircraft and
all conditions, warranties, guarantees, and representations
(or obligations or liability in contract or in tort) in
relation to any such matters, express or implied, statutory or
otherwise, are expressly excluded.
8.3 The Purchaser hereby waives, releases and renounces as between
itself and the Vendors and the Receivers all of Purchaser's
rights, express or implied (whether statutory or otherwise)
against the Vendors, the Receivers and their Associates or the
Aircraft in any way arising out of this Agreement and the sale
of the Aircraft hereunder, including but not limited to:
8.3.1 any condition or warranty of description,
airworthiness, satisfactory quality, fitness for any
purpose, durability, value, condition, design or
operation of any kind or nature, as to the absence of
latent or other defects (including inherent defects),
whether or not discoverable, any infringement of any
patent, trademark or copyright;
8.3.2 any condition or warranty arising in the course of
trade usage;
8.3.3 any obligation, liability, right, claim or remedy in
tort whether or not arising from the negligence of
the Vendors, the Receivers and their Associates; and
8.3.4 any obligation, liability, right, claim or remedy for
the loss of or damage to any aircraft (including but
not limited to the Aircraft) for loss of use, revenue
or profit or for any liability of the Purchaser to
any third party or for any direct, incidental or
consequential damages;
other than any action or omission of the Vendors or their
Associates which is a breach by the Vendors or either of them
of their express obligations to the Purchaser under this
Agreement.
8.4 The parties agree that the provisions of this Agreement are
fair and reasonable in all the circumstances of a sale by a
company in receivership in the light of the following matters:
8.4.1 full opportunity for inspection investigation and
analysis of the Assets has been afforded to the
Purchaser and its representatives and agents; and
8.4.2 the Purchaser is fully aware that it must rely on its
own inspection investigation and analysis or that of
its professional advisers.
8.5 The Purchaser takes the Assets in their present state and
condition subject to all faults.
8.6 The Purchaser shall, if it considers it necessary, immediately
carry out or arrange for the carrying out of such testing and
examination as may be necessary to ensure that the machinery
plant and equipment and motor vehicles comprised in the Assets
are, in the case of machinery plant and equipment, designed
and constructed so as to be safe and without risks to health
when properly used and, in the case of motor vehicles,
roadworthy.
8.7 The Purchaser is satisfied:
8.7.1 as to the condition and situation of the Assets;
8.7.2 as to the fitness of the Assets for such purpose as
the Purchaser intends; and
8.7.3 that no reliance is placed or has been placed on any
information, warranty, statement or silence on the
part of the Vendors or of the directors of either of
the Vendors or of the Receivers or any of their
partners, solicitors, valuers, auctioneers, employees
or agents or all or any of them.
9 The Commercial Records
9.1 The Vendors shall allow the Commercial Records to remain in
the possession of the Purchaser until at least twelve (12)
months from the Completion Date (or in respect of each of the
Vendor's Commercial Records individually until the appointment
of a liquidator over either of them.
9.2 The Purchaser agrees to keep the Commercial Records safely on
behalf of the Vendors and agrees not to remove or permit the
removal of them from the United Kingdom.
9.3 The Purchaser may make copies of the Commercial Records at its
own expense.
9.4 The Purchaser will allow the Vendors or either of them and/or
the Receivers, their representatives and agents, reasonable
facilities without charge to inspect and copy any of the
Commercial Records and shall return them to the Vendors
forthwith on demand after the end of twelve months or in
respect of each of the Vendors individually after the
appointment of any liquidator of either.
10 Book Debts
All sums paid to the Purchaser by debtors of the Vendors or either of
them in or towards discharge of Book Debts shall belong to the Vendors
or either of them and the Purchaser will account to the Vendors or the
Receivers, while they are joint administrative receivers of the Vendors
without set off, on a weekly basis. In the event that the Vendors or
the Receivers receive any monies which are properly payable to the
Purchaser, they will forward such monies to the Purchaser on a weekly
basis.
11 Third Party Equipment
11.1 The Purchaser agrees:-
11.1.1 not to hold itself out as owner of the Third Party
Equipment; and
11.1.2 not to sell, offer for sale, assign or charge the
Third Party Equipment.
11.2 The Purchaser will keep the Third Party Equipment:-
11.2.1 in its possession;
11.2.2 at its expense; and
11.2.3 in as good repair as they were in at completion.
11.3 The Purchaser will deliver any Third Party Equipment to the
Receivers on request and will indemnify and keep indemnified
the Receivers and the Vendors against all claims, demands and
costs arising directly or indirectly from the giving of
possession of Third Party Equipment to the Purchaser or from
the breach by the Purchaser of its obligations under this
clause.
12 Receivers' Contracts and Warranty Obligations
12.1 As part of the consideration for the sale and purchase of the
Transferred Assets, the Purchaser shall from the Completion
Date carry out, perform and complete the Receivers' Contracts
at its own expense and on the terms set out below, and will
indemnify each of, the Vendors and the Receivers against any
loss or expense to any of them as a result of its failure to
do so.
12.2 The Purchaser shall assume and discharge all liabilities
incurred by the Vendors or either of them or by the Receivers
under or pursuant to the Receivers' Contracts (together with
value added tax on those amounts where applicable) arising
after the date of Completion.
12.3 Insofar as any Receivers' Contracts, or the benefit of any
other Transferred Asset cannot effectively be assigned by the
Vendors to the Purchaser except by an agreement of novation
with or with the agreement or consent of any other party
thereto or any third party and such novation, agreement or
consent shall not have taken place or been obtained prior to
the Completion Date:
12.3.1 the parties shall co-operate in using reasonable
endeavours to procure that agreement or consent as
aforesaid is obtained and that novations or
assignments are entered into as promptly as
reasonably practicable;
12.3.2 unless and until such Receivers' Contracts or other
Transferred Assets be novated or assigned as
aforesaid the Vendors shall:
(a) hold the same in trust, insofar as it is
legally able to do so, for the Purchaser
absolutely and the Purchaser shall (if
sub-contracting is permissible and lawful
under such Receivers' Contracts) act as the
sub-contractor of the relevant one of the
Vendors and perform all the obligations of
the Vendors thereunder; and
(b) (so far as they lawfully may) give to the
Purchaser the benefit to the same extent as
if the same had been novated or assigned and
act under the reasonable direction of the
Purchaser and shall account to the Purchaser
accordingly, provided that neither of the
Vendors nor the Receivers shall have any
liability to the Purchaser in respect of any
such Receivers' Contracts arising out of or
in connection with the performance,
termination, variation or amendment thereof
by the Purchaser after the Completion Date;
and
12.3.3 if any Receivers' Contract does not permit
sub-contracting the parties will make such other
arrangements between themselves as may be permissible
to implement as far as possible the effective
transfer of such Receivers' Contract to the
Purchaser.
13 Apportionments etc.
13.1 Save as expressly provided elsewhere in this Agreement all
wages, salaries, pension contributions and all other periodic
outgoings in respect of the Employees, all utilities, and all
periodic outgoings in respect of the Transferred Assets the
Business and the Receivers' Contracts up to closing of
business on the Completion Date shall be borne by the Vendors
and for any period of time after that day, shall together with
any holiday pay in respect of the Employees, be borne by the
Purchaser.
13.2 Any outgoings or payments referred to in sub-clause 13.1 which
are payable or receivable in respect of any period starting on
or before the Completion Date and ending after it shall be
apportioned in accordance with sub-clause 13.1
13.3 The Purchaser agrees that where outgoings have been incurred
or payments have been made by the Vendors in respect of orders
for goods or services placed in the period on or prior to the
Completion Date for such goods to be delivered or services to
be provided after the Completion Date the Purchaser shall pay
to the Vendors an amount equivalent to such outgoings and
payments made by the Vendors.
13.4 Any amounts payable to give effect to this clause shall be
paid within seven (7) days of determination, provided that
nothing in this clause shall require the Vendors or either of
them to discharge in whole or in part any liability of the
Vendors or either of them outstanding at or accrued to the
date of the Receivers' appointment.
13.5 If, after the Completion Date the Vendors or either of them
shall receive any sum payable to the Purchaser under the terms
of this agreement the Vendors or either of them shall hold
such sum on trust for the Purchaser absolutely and shall
account to the Purchaser in respect thereof as soon as
possible and in any event within fourteen (14) days of
receipt.
13.6 If, after the Completion Date, the Purchaser or any member of
the Purchaser's group shall receive any sum payable to the
Vendors or either of them under the terms of this Agreement,
the Purchaser shall hold such sum on trust for the Vendors or
either of them absolutely and shall account to the Vendors or
either of them in respect thereof as soon as possible and in
any event within fourteen (14) days of receipt.
14 Aircraft Indemnity and Insurance
14.1 The Purchaser shall, to the extent permitted by law, fully
indemnify and hold harmless the Vendors, the Receivers and
their Associates from and against:
14.1.1 all losses of any kind whatsoever in respect of or in
relation to any injury to or death of any person; and
14.1.2 all losses of any kind whatsoever in respect of or in
relation to any loss of or damage to any property of
any kind whatsoever (including but not limited to the
Aircraft); and
14.1.3 all losses of any kind whatsoever attributable to or
resulting from such injury, death, loss or damage or
any such claims, demands, actions and proceedings in
respect thereof;
which may at any time be incurred by or imposed upon the
Vendors or the Receivers and their Associates and which may in
any manner arise whether directly or indirectly from:
14.1.3.1 the sale of the Aircraft to Purchaser
hereunder, the management, control, operation
or use of the Aircraft at any time after
Completion and whether the same shall arise
out of or be attributable to any defect
(latent or patent) in the Aircraft or any
other item or service supplied by the
Vendors, the Receivers or any of their
Associates whether under this Agreement or
otherwise; or
14.1.3.2 the design, manufacture, testing, use,
maintenance, service, repair, modification or
reconstruction of the Aircraft regardless of
when the same shall or may have been carried
out or put into effect.
14.2 In addition to the provisions of Clause 14.1 the Purchaser
hereby agrees with Autokraft fully to indemnify and hold
harmless the Vendors and the Receivers and their Associates
from and against all losses of any sort which may at any time
be made or brought on the ground that any design, article or
material in the Aircraft or the operation or use thereof
constitutes an infringement of patent or other intellectual
property right or any other right whatsoever.
14.3 For the purposes of the receiving the benefit of the
indemnities contained in Clauses 14.1 and 14.2, but not
otherwise, Autokraft contracts not only on its own behalf as
principal but also as agent on behalf of each of AC Cars, the
Receivers or their Associates.
14.4 The Purchaser undertakes to ensure that on the Completion Date
and throughout the period ending on the earlier of two (2)
years from the Completion Date and the next major overhaul of
the Aircraft the insurances effected by Purchaser and each of
its successors and/or assigns in relation to the Aircraft
shall include provisions in terms satisfactory to Autokraft
whereby:
14.4.1 the Vendors and each of the Receivers and their
Associates, shall be named as additional assureds to
each and every one of the passenger, third party,
baggage and cargo legal liability policies effected
in relation to the Aircraft to the extent of
Purchaser's obligations set out in Clauses 14.1 and
14.2. Such liability policies will include a
suitable cross liability clause and breach of
warranty endorsement and shall be for such a sum as
can reasonably be obtained as a combined single
limit;
14.4.2 the insurers under each and every hull insurance
policy for the Aircraft shall waive all rights of
subrogation against the Vendors and the Receivers and
their Associates to the extent of the Purchaser's
obligations set out in Clauses 14.1 and 14.2;
14.4.3 such policies will provide for the Vendors to be
given at least thirty (30) days notice of
cancellation, termination or adverse material
alteration (or such lesser period as may be
stipulated by insurers in respect of War Risks and
related insurances). The Purchaser shall procure
that its insurance brokers for the time being shall
provide Autokraft and the Receivers with a written
undertaking to give the aforesaid periods of notice
to Autokraft; and
14.4.4 such liability policies will be primary and without
rights of contribution from any other insurance which
may be available to the Vendors or any of the
Receivers or their Associates.
14.5 The Purchaser agrees as a condition precedent to any
obligation on the part of Autokraft to deliver the Aircraft to
the Purchaser that it will produce to the Vendors on or before
the Completion Date and at such times thereafter as Autokraft
may reasonably require such certificates or other evidence as
Autokraft may require to demonstrate compliance with Clause
14.4; and the Purchaser undertakes that it shall not make any
material changes to the terms and amounts of such insurances
which would adversely affect the provisions of Clause 14.4
without obtaining the prior written consent of Autokraft and
the Receivers to such proposed changes during the period
ending on the earlier of (i) the day following two (2) years
after the Completion Date and (ii) the next major overhaul of
the Aircraft.
15 Employees
15.1 The Employment Contracts will be transferred to the Purchaser
on the Completion Date and the Purchaser acknowledges and
agrees that under the Employment Regulations the contracts of
employment between the Vendors or either of them and the
Employees may have effect after the Completion Date as if
originally made between the Purchaser and those employees.
15.2 The Purchaser indemnifies the Vendors or either of them and
the Receivers against any claims costs demands expenses
proceedings or awards limited to those arising in consequence
of the transfer of the Employment Contracts by this Agreement.
16 Continuing Trading
16.1 Save for circumstances and actions of third parties beyond the
control of the Vendors the Vendors shall at the Vendors' risk
continue to carry on the Business and insure the Business and
Transferred Assets, with the interest of the Purchaser noted
on the relevant policies, in substantially the same manner as
it was carried on in the month immediately preceding the date
of this Agreement and the Vendors shall not terminate the
Employment of any of the Employees (otherwise than for good
cause). The Vendors shall discharge the Operating Costs up to
31st August 1996 and thereafter until Completion subject to
payment by the Purchaser under 3.2.1 and the Receivers shall
procure that the Vendors shall not dispose of any of the
Transferred Assets other than in the ordinary course of
business save as provided for in this clause.
16.2 Upon Completion the Vendors shall account to the Purchaser for
the Car Sale Proceeds.
16.3
16.3.1 After the date of this Agreement the Vendors agree to
procure that the Purchaser and its agents and
representatives are given reasonable access to and
permitted to inspect the Premises, Capital Equipment,
Stock, Books and Records and other documents of the
Vendors at all reasonable times, and upon request
furnish such information regarding the Transferred
assets as the Purchaser may reasonably require, in
either case without any additional charge to the
Purchaser.
16.3.2 The Purchaser agrees that it will keep all
information that it is allowed access to or provided
with pursuant to clause 16.4 (the "Information") upon
the same terms as provided for in the letter from the
Receivers to the Guarantor dated 18th March 1996 (the
"Confidentiality Letter") and accepted by the
Guarantor as if "Restricted Information" defined in
the Confidentiality Letter means the Information and
the "Proposed Transaction" also defined means "the
proposed completion of the sale to us or any person
associated with us of the businesses" and the
Purchaser accepts it will be bound by the
Confidentiality Letter upon the above terms as if it
were a party to that letter save that the Purchaser
may disclose the Information to third parties for the
purpose of raising finance to complete this Agreement
16.4 The Vendors agree to notify the Purchaser of all orders (if
any) placed by customers for the production and sale of new
vehicles.
17 The New Lease
The grant and acceptance of the New Lease will be subject to the to the
Special Conditions set out in Schedule 13 below.
18 Interest
In the event that monies due under this Agreement are not paid on the
due date or if completion is delayed beyond the Completion Date for any
reason not attributable to default or delay of the Vendors or the
Receivers, interest shall be payable (as well before as after judgment)
by the Purchaser to the Vendors in respect of money due or the
consideration due under Clause 2 of this agreement as the case may be
at the rate of 4 per cent over Lloyds Bank Plc base rate current from
time to time, such interest to be calculated on a daily basis and to
be compounded at monthly rests.
19 Set-Off
Without prejudice to any other provisions contained in this Agreement
the Purchaser shall not be entitled to set-off any claims it may have
against the Vendors or the Receivers or any of them or exercise any
liens whatsoever against or make any deduction on its own account from
any moneys, cheques, bankers' drafts or other negotiable instruments
payable to either of the Vendors or the Receivers pursuant to this
Agreement but such monies, cheques, bankers' drafts or other negotiable
instruments shall be paid in full forthwith upon the same being due in
accordance with the terms of this Agreement
20 Storage of the Bentley and the Motorcycle Collection
The Purchaser agrees to store for a period of 28 days from the
Completion Date the Bentley and the Motorcycle Collection at the
Premises at no cost to the Vendors but at the Vendors' risk or either
of them or the Receivers and the Purchaser agrees not to remove the
Bentley, or the Motorcycle Collection or any of them from the premises
nor to otherwise dispose of, deal with or otherwise encumber or subject
to any other adverse interest whatsoever the Bentley or the Motorcycle
Collection or any of them.
21 Exclusion of Receivers' Liability
In the negotiation execution and implementation of this Agreement the
Receivers were are and will be acting only as agent for the Vendors.
The parties acknowledge that the Receivers in joining in this Agreement
do so solely for the purpose of obtaining the benefit of the provisions
of this clause 21 and any other provisions of this Agreement in their
favour. The Receivers shall not be personally liable on this Agreement
or under any deed or other document executed in consequence of it or
under any associated or collateral agreement or arrangement save as
provided for in this Agreement.
22 Purchaser's Warranty
The Purchaser represents and warrants to the Vendors that:
(a) it is a limited liability company duly incorporated and
validly existing under the laws of England; and
(b) it has the power to enter into and perform, and has taken all
necessary action to authorise the entry into, performance and
delivery of this Agreement and the transactions contemplated
herein.
23 Use and Change of Names
23.1 The Vendors grant to the Purchaser such right each of them may
have to use the names "Autokraft", "A.C Cars", "Autokraft
Limited" and "A.C Cars Limited" and any intellectual property
therein as the Vendors or either of them may have at the
Completion Date.
23.2 Autokraft shall use its reasonable endeavours to procure that
the shareholders of Autokraft will pass a resolution whereby
Autokraft shall change its name to a name which does not
include the word "Autokraft" and Autokraft undertakes to take
all reasonable steps required for registering such name change
with the Registrar of Companies.
23.3 Autokraft as sole shareholder in AC Cars shall use its
reasonable endeavours to procure that AC Cars will pass a
resolution whereby AC Cars shall change its name to a name
which does not include the words "AC Cars" and AC Cars
undertakes to take all reasonable steps required for
registering such name change with the Registrar of Companies
24 Assignment
The Purchaser shall not assign or otherwise transfer any of its rights
or obligations under this Agreement without the prior written consent
of the Vendors such consent may be given or withheld at the sole
discretion of the Vendors.
The Vendor or either of them shall not assign or otherwise transfer any
of their rights or obligations under this Agreement without the prior
written consent of the Purchaser.
25 Guarantee
25.1 Upon Completion the Purchaser shall procure that the Guarantor
shall as primary obligor unconditionally and irrevocably
guarantees by way of continuing guarantee to AC Cars,
Autokraft and to the Receivers the due punctual and complete
payment of the third instalment payable by the Purchaser
pursuant to Clause 2 (such payment obligation being
hereinafter called the "Obligation").
25.2 AC Cars, Autokraft and the Receivers shall not make demand or
take any steps against the Purchaser or any other person
(including without limitation the Guarantor) before giving 14
days' written notice to the Guarantor of its intention to make
written demand upon the Guarantor in respect of the Obligation
or any of them (sending a copy of such demand to the Purchaser
at the same time). A "day" for the purpose of this sub-clause
25.2 shall not include a Saturday or a Sunday or other day
when clearing banks are not generally open in London for
normal business.
25.3 On making written demand and having given 14 clear days'
notice in accordance with sub-clause 25.2 above neither AC
Cars, Autokraft nor any of the Receivers need make further
demand or take any steps against the Purchaser or any other
person before being entitled to exercise all and any of its or
their rights under this guarantee.
25.4 Subject to the provisions of clause 25.1 this guarantee is a
continuing guarantee and shall remain in full force and effect
until all of the Obligation has been discharged and performed
in full.
25.5 Any payment to be made by the Guarantor hereunder shall be
made free and clear of all deductions or withholdings of any
kind, except for those required by law, and if any deductions
or withholdings must be made by law, the Guarantor will pay
that additional amount which is necessary to ensure that AC
Cars, Autokraft and the Receivers receive a net amount equal
to the full amount which they would have received if the
payment had been made without the deduction or withholding.
In the event that following any payment of an additional
amount by the Guarantor under this clause, AC Cars, Autokraft
and/or the Receivers recover any part of such deduction or an
amount in respect of such withholding, an amount equal to any
such recovery shall be reimbursed to the Guarantor.
25.6 The Guarantor shall pay interest on any amount due from it
hereunder from the date of demand until the date of payment in
full (as well after as before any judgement) calculated on
such over due sum on a daily basis at the rate of three per
cent (3%) per annum above the base rate for the time being of
Lloyds Bank PLC for the first thirty (30) days and four per
cent. (4%) per annum above the base rate for the time being of
Lloyds Bank PLC thereafter.
25.7 The Obligation of the Guarantor hereunder shall not be
affected by any act or omission matter or thing whatever which
but for this provision may affect such Obligation or operate
to release or otherwise exonerate the Guarantor therefrom and
accordingly (without prejudice to the generality of the
foregoing) all or any of AC Cars, Autokraft and the Receivers
may without the Guarantor's consent and without releasing or
reducing the Guarantor's liability to AC Cars, Autokraft and
the Receivers under this agreement:
25.7.1 allow the Purchaser or any other person any time or
indulgence;
25.7.2 enter into, renew, vary, end or neglect to perfect or
refrain from enforcing any agreement or arrangement
with or liability of the Purchaser or any other
person;
25.7.3 renew, vary, neglect to perfect, refrain from
enforcing or release any present or future security
or guarantee or indemnity which AC Cars, Autokraft
and the Receivers holds from the Purchaser or any
other person; or
25.7.4 compound with the Purchaser or any other person.
25.8 AC Cars, Autokraft and/or the Receivers shall appropriate any
sum paid by the Purchaser and/or the Guarantor or recovered or
received on account of the Obligation to the particular
Obligation in respect of which the claim was made.
25.9 Until all relevant amounts which may be or become payable
hereunder have been irrevocably paid in full, the Guarantor
shall not:
(a) as a result of this guarantee or any payment or
performance hereunder be subrogated to any right or
security of AC Cars, Autokraft or the Receivers; or
(b) claim or prove in competition with AC Cars, Autokraft
or any of the Receivers against the Purchaser or any
other person in respect of any obligation guaranteed
pursuant to this clause 24 whether by right of
contribution, set off, indemnity or otherwise.
25.10 The Guarantor will reimburse AC Cars, Autokraft and the
Receivers for all reasonable legal and other costs (including
value added tax) incurred by AC Cars, Autokraft and the
Receivers in connection with the valid enforcement of this
guarantee.
25.11 The Guarantor agrees that if at any time and for any reason,
and whether with the consent of AC Cars, Autokraft and the
Receivers or otherwise, any or all of the Obligation (the
"assigned obligation") are assigned, transferred or novated
to, or assumed by or are purportedly assigned, transferred or
novated to, or assumed by) any other person, or a body
corporate owned or controlled, directly or indirectly, by the
Guarantor (a "transferee), then the Guarantor's obligation
pursuant to this guarantee shall extend, mutatis mutandis, to
the transferee to the extent of the assigned obligation, and
shall not be impaired, released, diminished or discharged as
a result of any such assignment, transfer, novation or
assumption. The benefit of this guarantee may not be assigned
without the prior written consent of the Guarantor.
25.12 The Guarantor represents and warrants to and for the benefit
of AC Cars, Autokraft and the Receivers that:
25.12.1 the execution by it of this guarantee will not
constitute or result in a breach of, or the
contravention of, any term or condition of any other
agreement to which it is a party;
25.12.2 there is nothing in any other agreement to which it
is a party which would prevent or impair, in any
respect, the performance in full by it of its
obligation under this guarantee, or which would
result in the subordination of, or prohibit it from
making payment in respect of, any claim upon it
hereunder; and
25.12.3 the obligation of the Guarantor under this guarantee
rank, and shall rank at all times, at least pari
passu with all its other present and future unsecured
obligation other than those Obligation which are
mandatorily preferred by law and not by reason of
contract.
26 General
26.1 This agreement, supersedes all prior agreements between the
parties in relation to its subject matter (all which prior
agreements are hereby terminated) and contains the entire
agreement between the parties to the maximum extent permitted
by law.
26.2 This agreement shall be construed without reference to its
clause headings.
26.3 The parties shall use their best endeavours to keep the terms
of this Agreement confidential and no announcement regarding
this transaction or the terms of it shall be made whether to
the public, trade or otherwise except with the prior consent
of the other parties (such consent not to be unreasonably
withheld) or:
report to their debenture holder or any liquidators
of the Vendors or either of them; or
26.3.2 to complete and file statutory returns; or
26.3.3 or otherwise by law as required.
26.4 The Purchaser will permit the Receivers, their staff
representatives and agents such facilities (including without
limitation suitable office accommodation, secretarial support,
photocopying facilities and the use of telephones and fax
machines) as they may reasonably require at no cost to enable
the Receivers to complete their receivership duties in
relation to either of the Vendors.
26.5 Time shall be of the essence of this Agreement.
26.6 This Agreement shall, so far as it remains to be performed,
continue in full force and effect notwithstanding completion.
26.7 The Purchaser shall pay all stamp duty arising on this
Agreement and all agreements or other documents entered into
to give effect to it.
27 Law
This Agreement shall be read and construed in accordance with English
law and the parties hereby agree to submit to the non-exclusive
jurisdiction of the English Courts.
28 Notices
28.1 Any notice or document required or permitted to be given under
this Agreement may be given personally or by sending it by
registered post or by facsimile process to the party to be
served at his or its address given below:
the Vendors's Address: Price Waterhouse
No. 1 London Bridge
London SE1 9QL
Fax: 0171 939 5566
Attention: M. Gercke
the Receivers Address: Price Waterhouse
No. 1 London Bridge
London SE1 9QL
Fax: 0171 939 5566
Attention: M. Gercke
the Purchaser Address: Pride House
Watford Metro Centre
Tolpitts Lane
Watford
Herts WD1 8SB
Fax: 01923 212 674
Attention: A. Lubinsky
or to such other address as shall have been last notified to the other parties
for the purpose.
28.2 Any notice or document given by post shall be deemed to have
been given 48 hours after it was registered and posted and in
proving that any notice or document was so given it shall be
necessary only to prove that it was properly addressed,
registered and posted.
29 DK Marketing Services Ltd ("DK")
29.1 Autokraft and the Receivers have entered into an agreement
with DK in May 1996 for the marketing of the Aircraft and the
Tempest Parts on the terms set out therein ("the DK
Agreement").
29.2 On Completion the Purchaser at its option may require
Autokraft to either:-
(a) assign the DK Agreement to the Purchaser in which
case the DK Agreement will be treated as a Receivers'
Contract; or
(b) bring the DK Agreement to an end in which case the
Purchaser will pay to Autokraft one half of any sum
payable to DK as compensation for bringing the DK
Agreement to an end to a maximum sum of 10,000 pounds
and Autokraft agrees to use its reasonable endeavours
to ensure that such sum payable to DK is kept to a
minimum.
29.3 Pending Completion the Purchaser shall have no liability to
Autokraft in relation to the DK Agreement.
IN WITNESS whereof this Agreement has been executed under the hands of one of
the Receivers as agent of the Vendors and of a duly authorised officer of the
Purchaser
<PAGE>
SCHEDULE 1
Description of Aircraft
AIRCRAFT
Make : Hawker Hurricane
Serial No. : 52024
Registration Mark : G-HURR
ENGINE
Make : Packard Merlin
Serial No. : V.335561
PROPELLER
Make : Hamilton Standard
Serial No. : N123321
<PAGE>
SCHEDULE 2
ACCEPTANCE CERTIFICATE
Paradehaven Limited ("Purchaser") of Pride House, Watford Metro Centre,
Tolpitts Lane, Watford, Herts. WD1 8SB acknowledges that it has today accepted
delivery of the Hawker Hurricane Aircraft with manufacturer's serial number
52024 and United Kingdom Registration Mark G-HURR in accordance with a Sale
Agreement dated [ ] 1996 and made between Autokraft Limited
(1), Purchaser (2), Michael David Gercke and Andrew Mark Homan (3) and further
acknowledges that upon such acceptance of delivery the said Aircraft was in all
respects in accordance with the terms of the said Sale Agreement.
On acceptance of the Aircraft, Packard Merlin Engine, serial number V.335561
Hamilton Standard propeller, serial number N123321 was installed.
SIGNED the day of 1996.
For and on behalf of
Paradehaven Limited
...........................
(Authorised Signatory)
<PAGE>
SCHEDULE 3
Capital Equipment
<PAGE>
SCHEDULE 4
The Employees
<PAGE>
SCHEDULE 5
The Excluded Assets
1 all cash in hand or with bankers of the Vendors or either of them, all
cheques, bills or other securities, the benefit of all deposits paid
to suppliers or any other third parties and deposits or prepayments by
third parties to the Vendors or either of them;
2 the Bentley and the Motorcycle Collection;
3 the Excluded Vehicles
4 all book and other debts other than the Car Sale Proceeds owing to the
Vendors or either of them;
5 the benefit of all policies of assurance, insurance and indemnity and
of all guarantees given to either of the Vendors other than any such
benefits arising in relation to any of the Transferred Assets after the
date of this Agreement;
6 the Commercial Records and Receivers' Records; and
7 the statutory books of the Vendors;
8 any other assets of the Vendors which are not specifically agreed to
be sold under this Agreement.
<PAGE>
SCHEDULE 6
The Excluded Vehicles
<PAGE>
SCHEDULE 7
The Lease Agreements
<PAGE>
SCHEDULE 8
The Motorcycle Collection
<PAGE>
SCHEDULE 9
The New Lease
DATED 199
(1) A.C. CARS LIMITED
and
AUTOKRAFT LIMITED
(2) PARADEHAVEN LIMITED
[ORIGINAL]
[COUNTERPART]
L E A S E
- of -
land at Brooklands Industrial Park,
Elmbridge, Surrey
RICHARDS BUTLER
Beaufort House
15 St. Botolph Street
London EC3A 7EE
Ref: GMR/96-13479
<PAGE>
THIS LEASE made the day of One thousand nine
hundred and ninety [ ]
BETWEEN:-
(1) A.C. CARS LIMITED and AUTOKRAFT LIMITED both of whose registered office
is at 3 Vickers Drive, Brooklands Industrial Park, Weybridge, Surrey KT13 0YV
(both hereinafter together called "Landlord" which expression shall include the
person from time to time entitled to the reversion expectant on the term hereby
granted)
(2) PARADEHAVEN LIMITED whose registered office is at Pride House, Watford
Metro Centre, Tolpitts Lane, Watford, Herts WD1 3SB (hereinafter called
"Tenant" which expression shall include the person from time to time entitled
to the term hereby granted)
WHEREAS Andrew Mark Homan and Michael David Gercke both of Price Waterhouse No.
1 London Bridge, London SE1 9QL ("the Receivers") were appointed joint
administrative receivers of the Landlord on 7th March 1996 under the Composite
Guarantee and Debenture dated 14th July 1993 issued by the Landlord to
Arbuthnot Latham & Co. Limited.
WITNESSETH as follows:-
1 INTERPRETATION
In this Lease:-
1.1 The following expressions have unless the context otherwise
requires the following meanings and cognate expressions are to
be construed accordingly:-
"Conducting Media" means sewers drains pipes wires cables
ventilation ducts heating ducts and other conducting media
including any fixings louvres cowls and other covers and
includes any apparatus (not being tenant's or trade fixtures)
connected to any Conducting Media for enabling use to be made
of the Conducting Media or of any water gas electricity
heating ventilation air conditioning or other effluvia passing
through Conducting Media;
"Demised Premises" means the building and premises as
described in Part I of Schedule 1 and all additions and
alterations thereto and all Landlord's fixtures from time to
time annexed thereto but excluding the air space surrounding
and above the same;
"Development" means the whole of the Brooklands Industrial
Park, Elmbridge, Surrey including the Demised Premises;
"Election" means the election exercisable by the Landlord
pursuant to paragraph 2 of Schedule 10 of the VAT Act 1994 for
supplies made under this Lease to fall outside Group 1 of
Schedule 9 to the VAT Act 1994 and become chargeable to VAT at
the standard rate;
"Ford Mortgages" means the two mortgages dated 27th October
1987 one made between AC Cars Limited (1) and Ford Motor
Company Limited (2) and the other made between Autokraft
Limited (1) and Ford Motor Company Limited (2);
"Insurance Charge" means one hundred per cent (being the
"appropriate percentages" in relation to the cost of
insurance) of the cost to the Landlord of effecting and
maintaining the insurances specified in Part I of Schedule 2
such cost to be ascertained in accordance with the provisions
of Part II of Schedule 2;
"Insured Risks" means the risk of loss damage or destruction
by fire lightning storm tempest flood explosion earthquake
(fire and shock) impact from vehicles aircraft and articles
dropped therefrom riot civil commotion malicious damage
bursting or overflowing of water tanks apparatus or pipes and
such other risks as the Landlord may from time to time in its
reasonable discretion insure against pursuant to the
Landlord's covenant in that behalf hereinafter contained but
excepting any stated or other risk against which insurance
cannot ordinarily be obtained at a reasonable and economic
premium with insurers of repute in the United Kingdom for a
property such as the Demised Premises unless the Landlord has
in fact insured and continues to insure against such risk;
"Irrecoverable VAT" means VAT incurred by the Landlord to
the extent that the Landlord is unable to obtain credit for or
recover the same;
"Landlord's Surveyor" means such firm of surveyors or
surveyor (who may be an employee or officer of the Landlord)
as the Landlord may from time to time appoint;
"Legislation" means all present and future Acts of Parliament
all directly applicable provisions of all present and future
treaties constituting the European Communities and all orders
regulations bye-laws and directives made pursuant to any Act
of Parliament or otherwise having the force of law including
any made pursuant to such treaties which have the force of law
in the United Kingdom;
"Loss of Rent Period" means a period of twelve months;
"Oakimber Transfers" means the transfer dated 27th October
1987 made between (1) Oakimber Limited (2) Trafalgar
Brookmount Limited (3) Autokraft Limited (4) Trafalgar House
Developments Holdings Limited (as varied by a Deed of
Variation dated 18th January 1991 made between (1) Oakimber
Limited (2) Autokraft Limited and (3) Ford Motor Company
Limited) and a transfer dated 27th October 1987 made between
(1) Oakimber Limited (2) Trafalgar Brookmount Limited (3) AC
Cars Limited and (4) Trafalgar House Developments Holdings
Limited (as varied by a Deed of Variation dated 18th January
1991 and made between (1) Oakimber Limited (2) AC Cars Limited
and (3) Ford Motor Company Limited);
"Permitted Use" means use for light industrial purposes
within Class B1 of the Town and Country Planning (Use Classes)
Order 1987 with ancillary offices and storage;
"Planning Acts" means the Town and Country Planning Act 1990
the Planning (Listed Buildings and Conservation Areas) Act
1990 the Planning (Hazardous Substances) Act 1990 the Planning
(Miscellaneous Provisions Act) 1990 and the Planning and
Compensation Act 1991 and all other Legislation from time to
time in force relating to Town and Country Planning;
"Perpetuity Period" means the period of 80 years starting on
the date of this Lease which shall be the perpetuity period of
this Lease;
"Prescribed Rate" means interest of a rate of 4 per cent.
above the base rate from time to time of Lloyds Bank PLC or of
such Bank (being a member of the Committee of London and
Scottish Bankers) as the Landlord may from time to time
nominate or during any time when Lloyds Bank PLC or other Bank
nominated by the Landlord has no such base rate such other
rate as shall replace the same or be the nearest equivalent
thereto as may be notified from time to time to the Tenant by
the Landlord;
"Rent Commencement Date" means the date hereof;
"VAT" means Value Added Tax or any similar tax from time to
time payable whether in substitution for or addition to Value
Added Tax;
"Yearly Rent" means the annual rent ascertained pursuant to
Schedule 3 to this Lease.
1.2 Where the context so admits or requires words importing one
gender shall be construed as importing any other gender and
the singular includes the plural and vice versa and where any
party hereto comprises two or more persons any obligation on
the part of that party contained or implied herein shall be
deemed to be joint and several obligations on the part of such
person.
1.3 Any Index and headings are for reference only and shall not
affect the meaning of this document.
1.4 References to "Demised Premises" in the absence of any
provision to the contrary include any part thereof except in
the sub-clause headed DISPOSALS BY TENANT.
1.5 Except in the definition of "Permitted Use" Reference to a
specific statute or provision of a specific statute includes
all regulations and orders from time to time made pursuant to
that statute or (as the case may be) provision or any statute
or provision amending or replacing the same.
1.6 Any covenant by or regulation requiring the Tenant not to do
an act or thing shall be deemed to include an obligation on
the part of the Tenant to ensure that any such act or thing is
not done by any third party.
1.7 Whenever the consent or approval of the Landlord is required
or requested in relation to this Lease, such provisions shall
be construed as also requiring the consent or approval of any
mortgagee of the Landlord and any superior lessor where the
same shall be required except that nothing in this Lease shall
be construed as implying that any obligation is imposed upon
any mortgagee or superior lessor not unreasonably to refuse
any consent.
1.8 References to any right of the Landlord to enter or to have
access to the Demised Premises shall be construed as extending
to any superior lessor or mortgagee for the time being and to
all persons authorised by the Landlord and to any such
superior lessor or mortgagee.
1.9 Unless the context otherwise requires references to "the
tenancy" and "the term" shall be deemed to be references both
to the term of years hereby demised and to any extension or
continuation thereof whether by the provisions of the Landlord
and Tenant Act 1954 or any similar legislation from time to
time in force or otherwise which tenancy shall be deemed to
have commenced on the date of commencement of the said term
hereinafter stipulated.
1.10 The expression "termination" in relation to the tenancy means
termination in any manner whether by effluxion of time notice
forfeiture surrender or otherwise and the expression
"terminating" bears a corresponding meaning.
2 DEMISE TERM RENT
The Landlord hereby demises unto the Tenant ALL THOSE the Demised Premises
TOGETHER WITH the rights described in Part II of Schedule 1 EXCEPTING AND
RESERVING unto the Landlord and its predecessors in title and those deriving
title from the Landlord or such predecessors the rights described in Part III
of Schedule 1 TO HOLD the same unto the Tenant SUBJECT to the matters described
in Part IV of Schedule 1 for the term of twelve months commencing on the date
hereof YIELDING AND PAYING therefor the following rents:-
2.1 First throughout the remainder of the term the Yearly Rent
which Yearly Rent shall be paid by equal quarterly instalments
in advance in the manner prescribed by Schedule 3 save that
the first instalment shall be a proportionate payment in
respect of the period commencing on the Rent Commencement Date
and ending on the quarter day next after the date thereof and
shall be paid on the execution hereof.
2.2 Secondly the Insurance Charge in accordance with clause 3.3.
2.3 Thirdly any VAT payable on the Yearly Rent, the Insurance Rent
or other Taxable supplies by the Landlord to the Tenant
hereunder.
2.4 Fourthly all and any other sums payable by the Tenant to the
Landlord pursuant to the provisions of this Lease.
3 TENANT'S COVENANTS
The Tenant hereby covenants with the Landlord:-
3.1 RENT AND OTHER PAYMENTS
3.1.1 To pay the rents hereby reserved on the days and in
the manner aforesaid and not to exercise or seek to
exercise any right or claim to withhold rent or other
sums payable under this Lease or any right or claim
to be entitled to any legal or equitable set-off.
3.1.2 If so required in writing by the Landlord to make
such payments by bankers order or other direct credit
transfer to any bank and account in the United
Kingdom that the Landlord may from time to time
nominate.
3.2 OUTGOINGS
3.2.1 To pay all rates taxes (including community charges)
levies duties charges assessments impositions and
outgoings whether of an existing or novel kind now or
at any time hereafter during the term levied imposed
or charged exclusively in respect of the Demised
Premises or any part thereof or the owner or occupier
in respect of the Demised Premises (other than income
tax and corporation tax on the income of the Demised
Premises received by the Landlord and any tax payable
by the Landlord in respect of any dealing with any
reversion to this Lease) and a fair proportion (as
determined by the Landlord's Surveyor) of any such
rates taxes assessments impositions and outgoings
levied imposed or charged on the Demised Premises in
common with other premises.
3.2.2 Not to claim void or unoccupied rating relief save
with the prior written consent of the Landlord or
accept any assessment for such relief but (save as
aforesaid) to pay the general rate for the Demised
Premises in full throughout the tenancy.
3.2.3 To pay to the suppliers of and to indemnify the
Landlord against all charges for electricity gas
telephone water and other services consumed or used
at or in relation to the Demised Premises (including
all standing charges and meter rents).
3.3 INSURANCE CHARGE
To pay by way of additional rent the Insurance Charge in accordance
with the provisions of Part II of Schedule 3.
3.4 REPAIR
3.4.1 Well and substantially to repair and reinstate the
Demised Premises and keep them in good and
substantial repair and condition and to carry out
such repair and reinstatement with best quality
materials and to the best standard of workmanship and
to the complete satisfaction of the Landlord and if
necessary from time to time to reinstate or rebuild
the Demised Premises (damage or destruction due to
any of the Insured Risks excepted unless any of the
insurance money in respect thereof shall have been
rendered irrecoverable by any act default or omission
of the Tenant or any person deriving title from the
Tenant or any servant agent licensee or invitee of
the Tenant or any such person) and to repay to the
Landlord on demand all expenses from time to time
incurred by the Landlord in repairing or reinstating
any Conducting Media not comprised in the Demised
Premises but which serve only the Demised Premises
PROVIDED THAT the Tenant shall not be obliged to put
the Premises in a better state of repair and
condition than as at the date hereof.
3.4.2 Without prejudice to the generality of the Tenant's
obligations under the immediately preceding
sub-clause to keep all machinery and equipment
forming part of the Demised Premises properly
maintained and in good working order and for that
purpose to employ reputable contractors to be
approved in writing by the Landlord (such approval
not to be unreasonably withheld) for the regular
periodic inspection and maintenance of them and to
renew all working and other parts of such machinery
and equipment as and when necessary or when
recommended by such contractors.
3.5 INSURANCE OF PLATE GLASS
To insure and keep insured all plate glass (if any) comprised in the
Demised Premises from time to time against damage or destruction in a
sum at least equal to the cost of replacing the same in the joint names
of the Landlord and the Tenant and such other names if any as the
Landlord may from time to time require with such insurance office as
the Landlord may from time to time approve and to pay all premiums
necessary for the above purpose as the same shall become due and
payable and to produce to the Landlord or its agents on demand the
policy or policies of such insurance and the receipt for each such
payment and if any such plate glass shall be damaged or destroyed
forthwith to replace the same and all monies received by virtue of any
such insurance to be applied solely towards the cost of replacing the
said plate glass and if such insurance money is insufficient for such
purpose to make up any deficiency PROVIDED ALWAYS that if the Tenant
shall at any time fail to maintain such insurance the Landlord may do
all things necessary to effect and maintain such insurance and any
monies expended by the Landlord for that purpose shall be payable by
the Tenant on demand and shall be recoverable from the Tenant as rent
in arrear.
3.6 CLEANING OF WINDOWS
To clean the glass of all windows comprised in the Demised Premises
both inside and out at least once in every month of the tenancy.
3.7 CLEANING OF DEMISED PREMISES
To keep the Demised Premises in a clean and tidy condition and
regularly to remove therefrom all waste refuse or offensive materials
and articles and not to deposit any such materials or articles upon any
other part of the Landlord's Development except such part (if any) as
shall from time to time be provided for the deposit of such materials
and articles.
3.8 COMPLIANCE WITH LEGISLATION
To comply in all respects with all requirements (whether placed on the
Landlord or the Tenant) of all present and future Legislation and of
all competent authorities as to the condition of the Demised Premises
and the user thereof and the activities carried on thereat (including
the exercise of any rights granted by this Lease) and any works or
alterations executed or required to be executed thereon or in respect
thereof or in any other way affecting the Demised Premises or any such
rights and to keep the Landlord indemnified against all actions
proceedings claims or demands which may be brought or made by reason
of any such requirements not having been duly complied with and if as
a result of any such requirements the Landlord or any superior landlord
shall carry out any works or alterations to the Demised Premises or any
other part of the Landlord's Development the Tenant shall repay to the
Landlord on demand the expenses thereby incurred by the Landlord or a
fair proportion thereof as determined by the Landlord's Surveyor whose
decision shall be final.
3.9 YIELDING UP
At the termination of the tenancy to yield up the Demised Premises and
all fixtures therein in such repair and condition as is required by the
covenants on the part of the Tenant herein contained and to surrender
to the Landlord all keys to the Demised Premises and unless the
Landlord otherwise requires remove all alterations and additions
whatsoever to the Demised Premises including any work in connection
with any fitting out of the Demised Premises by the Tenant and any
signs or fascias fixed to the Demised Premises and make good all damage
done by such removal to the satisfaction of the Landlord PROVIDED
THAT:-
3.9.1 the Tenant may before such termination remove all
tenant's or trade fixtures but shall make good any
damage thereby caused to the Demised Premises to the
Landlord's satisfaction;
3.9.2 if after the termination of the tenancy there shall
be left on the Demised Premises any tenant's or trade
fixtures or any chattels or refuse the Landlord may
treat the same as having been abandoned by the Tenant
and may arrange for the removal and destruction or
disposal thereof as the Landlord thinks fit and the
Tenant shall pay to the Landlord on demand the cost
of such removal and destruction or disposal and shall
indemnify the Landlord against any liability
resulting therefrom; and
3.9.3 if the Tenant shall fail to yield up the Demised
Premises in such repair and condition as aforesaid
the Landlord may if it thinks fit effect any repairs
decorations and other works which ought to have been
carried out by the Tenant pursuant to the covenants
on the part of the Tenant herein contained and the
Tenant shall pay to the Landlord on demand the cost
of such repairs decorations and other works effected
by the Landlord together with mesne profits at a rate
equal to the rack rental value of the Demised
Premises at the date of such termination for the
period reasonably required for the carrying out of
such work and the Landlord's Surveyor's certificate
as to the amount of such cost and mesne profits shall
be conclusive and binding on the parties.
3.10 ENTRY BY LANDLORD
To permit the Landlord and those authorised by it to enter upon the
Demised Premises or any part thereof and to remain on the same for any
of the following purposes:-
3.10.1 inspecting the Demised Premises and opening up floors
or other parts of the Demised Premises (including
moving fixtures) where such opening-up or moving is
required in order to inspect;
3.10.2 taking schedules of the condition thereof;
3.1%s% taking any measurement or making a valuation of the
Demised Premises;
3.10.4 taking inventories of the Landlord's fixtures and of
other things to be yielded up on termination of the
term;
3.10.5 repairing altering adding to rebuilding or replacing
any adjoining premises;
3.10.6 repairing, altering, adding to, replacing or
installing any Conducting Media comprised in the
Demised Premises which serves or is capable of being
passed through the Demised Premises to serve other
premises;
3.10.7 preparing any schedule of works drawings
specifications or estimates required by the Landlord
prior to or in contemplation of the exercise by the
Landlord of any rights under this Lease;
3.10.8 to do anything which the Landlord considers necessary
or desirable for the performance by the Landlord of
the covenants on its part hereinafter contained or to
prevent forfeiture of any superior lease;
3.10.9 in connection with any rent review or any impending
or intended step under the Landlord and Tenant Act
1954;
3.10.10 exercising without interruption or interference any
of the rights reserved or granted to it by virtue of
the provisions of this Lease
PROVIDED THAT in each of the above cases the person so entering shall cause as
little damage, disturbance and inconvenience as is reasonably practicable and
shall forthwith make good any damage caused to the Demised Premises.
3.11 ENTRY BY LANDLORD ON TENANT'S DEFAULT
3.11.1 To permit the Landlord and those authorised by it to
enter upon the Demised Premises in order to carry out
any works to which this sub-clause applies and which
the Tenant has failed to carry out within two months
after service upon the Tenant of a notice requiring
the same to be carried out.
3.11.2 The works to which this sub-clause applies are:-
3.11.2.1. the carrying out and completion in
the manner required by this Lease of
any repairs or other works which the
Tenant is obliged to carry out by
the terms of this Lease;
3.11.2.2. the removal of any alterations
additions or other works carried out
or commenced on the Demised Premises
without all necessary licences
consents permissions and approvals
of the Landlord the Local Planning
Authority and any other authority or
person having been obtained; and
3.11.2.3. the removal or (at the Landlord's
option) the completion in a good and
workmanlike manner in accordance
with the terms of this Lease and of
such licences consents permissions
and approvals of any alterations
additions or other works which have
not been so completed.
3.12 EXPENSE OF MAKING GOOD DILAPIDATIONS AND SERVING NOTICES
To pay to the Landlord on demand on an indemnity basis all expenses
(including Solicitors' Surveyors' Architects' and other professional
fees) incurred by the Landlord in connection with or in contemplation
of and the Landlord's reasonable administration fee for:-
3.12.1 the carrying out of any works to which the
immediately preceding sub-clause applies;
file~. the preparation and service of any notice under
section 146 or section 147 of the Law of Property Act
1925 notwithstanding that forfeiture is avoided
otherwise than by relief granted by the Court;
3.12.3 the preparation and service at any time during or
after the termination of the tenancy of any schedule
of dilapidations and any negotiations relating
thereto;
3.12.4 the enforcement of or verification of the Tenant's
compliance with any of the Tenant's covenants or
conditions herein contained whether any action to
enforce or verify shall be taken during or after the
termination of the Tenancy;
3.12.5 the recovery or attempted recovery of any rent or
other sums due from the Tenant; or
3.12.6 the preparation of any such schedule of works
drawings specifications or estimates as are referred
to in sub-clause 3.12.7.
3.13 COST OF PARTY WORKS
To pay on demand to the Landlord or to whomsoever it may direct a fair
proportion (to be assessed by the Landlord's Surveyor whose decision
shall be final) of the costs (including Surveyors' Managing Agents'
Architects' and other professional fees) of repairing maintaining and
replacing all party walls fences and gutters and other party structures
and all Conducting Media which serve the Demised Premises in common
with other premises.
3.14 ALTERATIONS
Not to make any alteration or addition or commit waste to or in any way
injure the Demised Premises or any part thereof or any signs affixed
to the exterior thereof or the internal arrangement thereof or the
Conducting Media comprised in or serving the Demised Premises save that
with the written consent of the Landlord which shall not be
unreasonably withheld (but which may impose such reasonable conditions
and obligations as the Landlord shall deem appropriate) the Tenant may
make non-structural alterations or additions to the internal
arrangement of the Demised Premises, and without prejudice to the
foregoing in this sub-clause the Tenant shall:-
3.14.1 comply and ensure compliance by others with all
conditions and obligations stipulated by the Landlord
in respect of any such alteration or addition; and
3.14.2 on or before termination of the tenancy (unless
otherwise required by the Landlord) remove all
alterations and additions to the Demised Premises
(including any such made by or on behalf of the
Tenant in fitting out the Demised Premises prior to
or at the commencement of the tenancy) and to
reinstate the Demised Premises to its condition
before such alterations or additions were carried out
in a good and workmanlike manner to the satisfaction
of the Landlord.
3.15 OBSTRUCTION OF CONDUCTING MEDIA
Not to interfere with or obstruct any Conducting Media and in so far
as heating ventilation or air conditioning may be provided through such
Conducting Media to ensure that the internal arrangement of the Demised
Premises does not interfere with the efficient operation of such
heating ventilation or air conditioning.
3.16 SIGNS
3.16.1 Not to display upon the exterior of the Demised
Premises or upon the interior thereof so as to be
visible outside the Demised Premises any lettering
inscription advertisement board sign notice placard
bill pole flag or similar device without the prior
written consent of the Landlord which consent will
not be unreasonably withheld to a sign on the
exterior of the Demised Premises displaying the name
and business of the Tenant and of any permitted
sub-tenant in such position and being of such
material size design and colours as the Landlord in
its discretion shall direct.
3.16.2 Not to place or affix behind or near the windows of
the Demised Premises so as to be visible outside the
Demised Premises any curtains or other articles which
in the opinion of the Landlord (which the Tenant
agrees to accept without dispute) may depreciate the
value of the Landlord's interest in the Demised
Premises.
3.17 NUISANCE, OVERLOADING ETC.
Not to use or permit to be used the Demised Premises or any part
thereof for any illegal or immoral purpose or in a manner which in the
opinion of the Landlord (which the Tenant agrees to accept without
dispute) will or may depreciate the value of the Landlord's interest
in the Demised Premises or the Landlord's Development or become a
nuisance annoyance or disturbance to the Landlord any superior landlord
or the owner or occupier of any neighbouring premises and not to permit
any person to reside or sleep at the Demised Premises and not to bring
upon the Demised Premises anything of an explosive or inflammable
nature or which may overload any part of the Demised Premises.
3.18 USE OF ADDRESS OF DEMISED PREMISES
Not to use or permit to be used the address of the Demised Premises in
any advertisement or in any other manner which in the opinion of the
Landlord (which the Tenant agrees to accept without dispute) is or may
be detrimental to the reputation of the Demised Premises or the
Landlord's Development.
3.19 NAME OF DEMISED PREMISES
Not for any purpose whatsoever to use or permit others to use as the
name of the Demised Premises any name other than that given to the
Demised Premises by the Landlord or a name approved in writing by the
Landlord (such approval not to be unreasonably withheld).
3.20 USE OF DEMISED PREMISES
At all times during the term to use the Demised Premises for the
Permitted Use and not to use any part thereof for any other purpose.
3.21 PLANNING ACTS
In relation to the Planning Acts:-
3.21.1 Not to make any application under the Planning Acts
for permission to carry out any development (as
defined by the Planning Acts) or for the approval of
anything in connection therewith unless the Tenant
shall previously have obtained all consents licences
and approvals of the Landlord required under this
Lease for the carrying out of such development.
3.21.2 Not to make any such application except in such form
and for such duration whether limited or unlimited as
the Landlord may approve in writing Provided that in
relation to a change of use or works which are
otherwise authorised by this Lease approval of such
application will not be unreasonably withheld in any
case where (i) neither the application for such
planning permission nor its grant nor implementation
will or may create or give rise to any tax or other
fiscal liability for the Landlord or (ii) the Tenant
agrees to indemnify the Landlord against any such tax
or other fiscal liability in such manner and provides
such security as the Landlord may require.
3.21.3 If the Landlord so directs to apply to the relevant
planning authority to determine whether any relevant
proposal requires permission under the Planning Acts.
3.21.4 If reasonably required by the Landlord but at the
cost of the Tenant to appeal against any refusal of
planning permission or the imposition of any
conditions on a planning permission relating to the
Demised Premises following an application by or on
behalf of the Tenant.
3.21.5 Not to enter into any agreement with any competent
authority regulating the development or use of the
Demised Premises.
3.21.6 Not to implement any planning permission or approval
unless the same has been submitted to and approved in
writing by the Landlord whose approval shall not be
unreasonably withheld.
3.21.7 In the event of the Tenant carrying out any works in
implementation of any planning permission or approval
so approved to carry out and complete all works
required to implement the same in a good and
workmanlike manner in accordance with the terms of
such permission or approval and in accordance with
any other obligations imposed by the Landlord in any
licence deed or other document issued by the Landlord
pursuant to clause 3.16 permitting such works.
3.21.8 To make or secure to the satisfaction of the
Secretary of State or other competent authority
appointed for the purpose any payment that may be
required for any planning permission or approval
which may be granted and so to do for the full term
of the permission or approval and similarly to make
or secure any payment that may be required in respect
of any development or the continuance or retention of
any development being a permission or approval
implemented or development carried out or continued
or retained at any time during the currency of the
tenancy.
3.21.9 Unless the Landlord otherwise directs to carry out
before the termination of the tenancy or such earlier
date as may be nominated by the Landlord any works
required to be carried out to the Demised Premises by
a date subsequent to the termination of the tenancy
by any limitation or condition to which any planning
permission or approval implemented by or under or for
the benefit of the Tenant is subject.
3.21.10 To produce to the Landlord or the Landlord's Surveyor
when required all such drawings documents and other
evidence that the provisions of this sub-clause have
been complied with as they or either of them may
reasonably require.
3.21.11 For the avoidance of doubt the Landlord's approval of
any application permission or approval under this
sub-clause may be refused on the ground inter alia
that the period thereof or anything contained therein
or omitted therefrom would in the reasonable opinion
of the Landlord's Surveyor be likely to be
prejudicial to the interests of the Landlord whether
in relation to the Demised Premises or the Landlord's
Development or any neighbouring premises or otherwise
and whether during the currency of this tenancy or
thereafter.
3.22 PRODUCTION OF NOTICES
Within three days of the receipt of the same by the Tenant to give full
particulars to the Landlord or the Landlord's Surveyor of any notice
or order or proposal for a notice or order given issued or made to or
on the Tenant by any competent authority pursuant to Legislation and
if so required by the Landlord or the Landlord's Surveyor to produce
such notice order or proposal to them and without delay to take all
necessary steps to comply with any such notice order or proposal and
at the request of the Landlord or the Landlord's Surveyor but at the
cost of the Tenant to make or join with the Landlord in making such
objections or representations against or in respect of any such notice
order or proposal as they or either of them shall deem expedient.
3.23 ENCROACHMENTS
Not to permit any person to encroach upon or to acquire any right of
light air way water or drainage or other easement over the Demised
Premises but forthwith upon being made aware of the same to inform the
Landlord of any such encroachment or of any act or thing which might
result in the acquisition of any right or easement over the Demised
Premises and to do all acts and things which may be necessary or
expedient to prevent such encroachment or the acquisition of any such
right or easement provided that if the Tenant shall fail to do such
acts and things as aforesaid the Landlord shall have power to enter
upon the Demised Premises for the purpose of doing the same and any
expenses which the Landlord thereby incurs shall be paid by the Tenant
to the Landlord on demand.
3.24 INVALIDATION OF INSURANCE
3.24.1 Not to do or omit or cause any act matter or thing
which might invalidate or prejudicially affect any
insurance of the Demised Premises or any adjoining
premises or whereby any payment thereunder may be
refused in whole or part or render the insurance
monies in whole or part irrecoverable.
3.24.2 Immediately to comply to the satisfaction of the
Landlord's insurers with their requirements for
protection of the Demised Premises of which notice
shall have been given to the Tenant whether those
requirements relate to the Demised Premises to the
use thereof or to anything in or on the Demised
Premises or to the employment of any persons therein.
3.25 DUPLICATION OF INSURANCE
Not to effect or maintain or contribute towards the maintenance of any
insurance on or in respect of the Demised Premises in duplication of
any insurance effected and maintained by the Landlord PROVIDED ALWAYS
that without prejudice to the foregoing and any right of action or
remedy in respect of any breach thereof if at any time the Tenant shall
be entitled to the benefit of any such insurance on the Demised
Premises to pay or procure to be paid to the Landlord all moneys
received by virtue of such insurance and to hold the benefit of such
policy and moneys payable thereunder in trust for the Landlord to be
applied towards rebuilding or reinstating the Demised Premises.
3.26 DISCLOSURE TO INSURERS
Forthwith to give written notice to the Landlord of the occurrence of
any damage or destruction of the Demised Premises or of any other event
which the Landlord is obliged to disclose to the insurers or which
ought reasonably to be brought to the attention of the insurers.
3.27 INCREASED COST OF INSURANCE AND VOID INSURANCE
3.27.1 In the event of the premiums payable for the
insurance of the Demised Premises or the Landlord's
Development or any neighbouring premises being
increased by reason of any act default or omission of
the Tenant to pay on demand to the Landlord or to
whomsoever the Landlord shall direct the amount of
such increase.
3.27.2 In the event of the Demised Premises being destroyed
or damaged by any of the risks insured against by the
Landlord and the insurance money under any such
insurance against the same being wholly or partly
irrecoverable by reason solely or in part of any act
default or omission of the Tenant or any person
deriving title from the Tenant or any servant agent
licensee or invitee of the Tenant or any such person
the Tenant shall from time to time forthwith on
demand by or on behalf of the Landlord pay to the
Landlord the whole or (as the case may require) the
irrecoverable portion of the cost (including
professional and other fees and expenses together
with any Irrecoverable VAT thereon) of completely
rebuilding and reinstating the same together with (in
the event of such sums not being paid within ten
working days of demand therefor) interest thereon at
the Prescribed Rate calculated to the date of payment
(with quarterly rests) from the date of such
destruction or damage.
3.28 DISPOSALS BY TENANT
Not to assign underlet hold on trust mortgage charge the whole or any
part of the Demised Premises nor share nor part with possession of the
whole or any part of the Demised Premises.
3.29 WHERE DEMISED PREMISES ARE FOR SALE OR TO LET
To permit the Landlord at any time (in the case of a proposed sale
mortgage or charge of the Landlord's interest) or during the twelve
months immediately preceding the termination of the term hereby demised
and any continuation of the tenancy thereafter to affix and retain
without interference to any part of the exterior of the Demised
Premises (but so as not unduly to obscure the windows thereof or
interfere with the Tenant's use thereof) a notice advertising that the
same are for sale or to let and during the said twelve months and any
continuation of the tenancy thereafter (or at any time in the case of
a disposal of the Landlord's interest) to permit the Landlord to show
the Demised Premises to prospective tenants mortgagees and purchasers
or their agents at reasonable times by prior appointment.
3.30 COST OF LICENCES ETC.
To pay on an indemnity basis the costs and disbursements (including
stamp duties) of the Landlord's Solicitors Surveyors Architects and
other professional advisers and the Landlord's reasonable
administration fee in connection with any Deed or other thing hereby
required to be executed or done at the Tenant's expense or any licence
consent or approval applied for by the Tenant relating to the Demised
Premises or the provisions of this Lease whether or not the same shall
be executed done or given together with any Irrecoverable VAT thereon.
3.31 INDEMNITIES
3.31.1 To pay and make good to the Landlord all and every
loss and damage whatsoever incurred or sustained by
the Landlord as a consequence of any breach or
non-observance of the Tenant's covenants herein
contained and to indemnify the Landlord from and
against all actions claims liabilities costs and
expenses thereby arising and in the event of
forfeiture of this Lease to indemnify the Landlord
against all losses costs damages and expenses
incurred by the Landlord consequent upon such
forfeiture and (without prejudice to the generality
thereof) pending any re-letting of the Demised
Premises to pay to the Landlord amounts equal to all
rent and other sums which but for such forfeiture
would have been payable by the Tenant under this
Lease (at the respective times therein provided for)
and all costs charges and expenses incurred by the
Landlord of and incidental to any re-letting or
attempted re-letting of the Demised Premises and any
other losses costs damages and expenses occasioned to
the Landlord by reason of or in consequence of any
forfeiture of this Lease.
3.31.2 Without prejudice to any other right or remedy
available to the Landlord to indemnify and keep the
Landlord effectually indemnified from and against all
expenses proceedings claims damages costs demands
loss and any other liabilities as a consequence of or
in respect of:-
3.31.2.1. (save to the extent that the
Landlord is effectively indemnified
by a policy of insurance effected by
it hereunder) damage to the Demised
Premises or the Landlord's
Development caused by any act
default or negligence of the Tenant
or any person deriving title from
the Tenant or the servants agents
licensees or invitees of the Tenant
or such person;
3.31.2.2. any injury to or death of any
person, damage to any property, the
infringement disturbance or
destruction of any right easement or
privilege or otherwise by reason of
or arising directly out of the state
of repair and condition of the
Demised Premises (to the extent that
the Tenant is responsible therefor
under this Lease) or the user of the
Demised Premises;
3.31.2.3. to indemnify the Landlord against
any taxes charges or other
assessments payable in respect of
any change of use or works (as the
case may be) permitted by or by
reason of this Lease or by reason of
any licence granted to the Tenant or
by reason of the obtaining of any
consents required to be obtained
under the terms of any such licence.
3.32 PLANS, DOCUMENTS AND INFORMATION
3.32.1 If called upon to do so supply copies to the Landlord
or the Landlord's Surveyor of all plans documents and
other evidence as the Landlord may reasonably require
in order to satisfy itself that the provisions of
this Lease have been complied with.
3.32.2 If called upon to do so to furnish to the Landlord or
the Landlord's Surveyor and (as the case may be) to
the Surveyor referred to in Schedule 2 such
information as may reasonably be requested in writing
in relation to any pending or intended step under the
Landlord and Tenant Act 1954 or the implementation of
any provisions for rent review contained in Schedule
2.
3.33 INTEREST
Without prejudice to or derogation from any other right remedy or power
whatsoever available to the Landlord if so required by the Landlord to
pay to the Landlord interest at the Prescribed Rate compounded with
quarterly rests both before and after judgment upon:-
3.33.1 any instalment of the Yearly Rent or any other rents
hereby reserved or any part thereof which shall not
have been paid to the Landlord on the due date for
payment (or in the case of sums other than the
instalments of the Yearly Rent seven days after the
same became due) for the period from the date on
which the same became due to the date on which the
same was paid PROVIDED that any instalment which is
tendered to the Landlord but which the Landlord has
declined to accept so as to avoid the risk of waiving
any right to forfeit this Lease to which the Landlord
is entitled shall for the purpose of this sub-clause
be deemed not to have been paid; and
3.33.2 any expenditure by the Landlord or any other sums
payable to the Landlord pursuant to this Lease and
not included in the Insurance Charge but which the
Tenant is required to reimburse or pay to the
Landlord for the period from the date of such
expenditure or demand for payment of such other sums
to the date on which such reimbursement or payment
was made.
3.34 REGULATIONS
To comply and procure compliance by the occupiers of the Demised
Premises or any part thereof and by the Tenant's and such occupiers'
respective servants licensees and visitors with such reasonable
regulations as the Landlord shall from time to time make relating to
the use of any parts of the Development and which in the opinion of the
Landlord are desirable in the interest of the persons (including the
Landlord) entitled to use such parts or for the proper management of
the Development (and without prejudice to the generality of the
foregoing such regulations shall include compliance with the covenants
conditions restrictions and regulations set out in the Oakimber
Transfers).
3.35 VALUE ADDED TAX
3.35.1 To pay VAT on all supplies including the grant of
this Lease received by the Tenant under or in
connection with this Lease.
3.35.2 To pay to the Landlord an amount equivalent to any
Irrecoverable VAT on supplies received by the
Landlord under or in connection with this Lease.
3.35.3 The Landlord agrees not to make the election at any
time after the date hereof PROVIDED that failure to
make the Election would have no adverse financial
consequences for the Vendor and PROVIDED FURTHER that
its Election is not required to be made as a
consequence of any change in law or regulations
following the date hereof.
3.35.4 All references in this Lease to amounts (including
rent) payable by the Tenant to the Landlord are
references to such amounts exclusive of VAT and the
Tenant shall pay to the Landlord in addition to any
such amount any VAT payable on that amount.
3.36 OBLIGATIONS AFFECTING LANDLORD'S TITLE
3.36.1 To observe and perform all obligations imposed upon
and the covenants on the part of the Landlord in
respect of the Demised Premises arising from the
matters specified in Part IV of Schedule 1 and not to
commit any breach of the aforesaid obligations and
covenants in respect of the Development (and in
particular but without prejudice to the generality of
the foregoing the Tenant shall be primarily liable
promptly and duly to observe and perform the
covenants on the part of the Purchaser contained in
the Oakimber Transfers) PROVIDED that the Landlord
shall with all due speed pass on to the Tenant copies
of all demands notices or other correspondence papers
or documents received by the Landlord relating to
such obligations and covenants.
3.36.2 To indemnify and keep indemnified the Landlord from
and against any actions proceedings claims damages
costs and expenses or losses arising from any breach
non-observance or non-performance of such covenants
and conditions.
4 LANDLORD'S COVENANTS
Subject to the Tenant paying the rents hereby reserved and observing and
performing the covenants on its part and the conditions herein contained the
Landlord hereby covenants with the Tenant (but so that the Landlord shall not
remain personally liable to the Tenant after it has disposed of its
reversionary interest to this Lease except for any breach occurring prior to
such disposal) as follows:-
s%s INSURANCE
To effect and maintain the insurances specified in Part I of Schedule
3.
4.2 REINSTATEMENT OF INSURED DAMAGE
In the event of the Demised Premises being destroyed or damaged by any
of the Insured Risks and provided that the Landlord's insurance has not
been vitiated or payment thereunder refused in whole or part as a
result of any act default or omission on the part of the Tenant or any
person deriving title from the Tenant or any servant agent licensee or
invitee of the Tenant or any such person to use all reasonable
endeavours to procure that any necessary permissions licences and
approvals under any Legislation are obtained to enable the Landlord to
rebuild reinstate replace or make good the Demised Premises (but not
necessarily by a facsimile replacement or reinstatement unless the
Landlord requires a facsimile replacement or reinstatement) and as soon
as such permissions licences and approvals have been obtained and
provided the same remain unrevoked and subject to all necessary labour
and materials being available to pay out (or procure such payment out)
of all moneys received in respect of such insurance (other than for
loss of any rents) in rebuilding reinstating replacing and making good
the Demised Premises as aforesaid PROVIDED THAT if for any reason other
than the fault of the Landlord it is not possible to rebuild reinstate
replace or make good the Demised Premises all insurance moneys shall
belong to the Landlord absolutely and the Tenant shall have no interest
therein.
4.3 QUIET ENJOYMENT
That the Tenant shall peaceably hold and enjoy the Demised Premises
throughout the said term without any lawful interruption by the
Landlord or any person lawfully claiming under through or in trust for
the Landlord.
5 PROVISOS
Provided always and it is expressly agreed as follows:-
5.1 FORFEITURE
If the rents hereby reserved or any part thereof shall be in arrear for
twenty one days after the same shall have become due (whether legally
demanded or not) and for the purposes of this clause any rents paid by
the Tenant by bankers standing order or credit transfer shall be deemed
for all purposes hereof not to have been received by the Landlord until
the same shall have been received by the Landlord's bank or in the
event of any breach of any of the Tenant's covenants herein contained
or if the Tenant or any guarantor for the Tenant (being a company)
shall enter into liquidation (other than a voluntary members
liquidation when solvent for the purpose of reconstruction or
amalgamation forthwith carried into effect) whether voluntarily or
compulsorily or if the Tenant or any guarantor shall for any reason be
removed from the register of companies or be unable to pay its debts
within the meaning of section 123 of the Insolvency Act 1986 or if a
petition shall be presented for the appointment of an administrator or
a receiver (whether or not an administrative receiver) or manager
shall be appointed of the whole or any part of its or their respective
undertakings or an administration order shall be made or if there shall
be convened a meeting of creditors or members to consider a voluntary
arrangement or any other scheme or composition with the Tenant's
creditors or if the Tenant or such guarantor (not being a company)
shall become bankrupt have a bankruptcy order made against it or them
or a petition for such order shall be presented or if an interim
receiver is appointed of the property of the Tenant or such guarantor
or if the Tenant or such guarantor (whether or not a company) shall
enter into any arrangement or composition for the benefit of its or
their respective creditors shall suffer any distress or execution to
be levied on their respective goods then in any of the said cases it
shall be lawful for the Landlord or any person on its behalf at any
time thereafter to re-enter upon the Demised Premises or any part
thereof in the name of the whole and thenceforth peaceably to hold and
enjoy the same as if this Lease had not been made and thereupon this
demise shall absolutely determine except for the Tenant's obligations
under the sub-clause headed INDEMNITIES but without prejudice to any
right of action of the Landlord in respect of any breach of the
Tenant's covenants herein contained.
5.2 SUSPENSION OF RENT
If the Demised Premises or any part thereof or any part of the
Landlord's Development over which the rights specified in Part II of
Schedule 1 are exercised shall be so destroyed or damaged by any of the
Insured Risks as to render the Demised Premises or some part thereof
unfit for or incapable of occupation and use by the Tenant then (unless
any of the insurance money in respect of loss of rent shall have been
rendered irrecoverable by the act or default of the Tenant or any other
person deriving title from the Tenant or any licensee or invitee of the
Tenant or any such other person) the rents hereby reserved or a fair
proportion thereof according to the extent of the damage shall be
suspended and cease to be payable until the same shall have been
reinstated and the Demised Premises are fit for occupation and use or
until the expiration of a period from the date of such destruction or
damage equal to the Loss of Rent Period whichever shall be the earlier
PROVIDED that any dispute as to the amount which ceases to be payable
shall be determined by an independent Surveyor (acting as expert)
appointed in default of agreement between the parties by the President
of the Royal Institution of Chartered Surveyors on the application of
either party.
5.3 COMPENSATION UNDER LANDLORD AND TENANT ACT 1954
Subject to the provisions of sub-section (2) of section 38 of the
Landlord and Tenant Act 1954 neither the Tenant nor any person deriving
title from the Tenant to the whole or any part of the Demised Premises
shall be entitled on quitting the Demised Premises to any compensation
under section 37 of the said Act.
5.4 EXCLUSION OF LIABILITY ON PART OF LANDLORD
5.4.1 The Landlord shall not be liable to any person other
than the Tenant to perform any of the covenants
herein contained whether expressed or implied in so
far as such covenants impose obligations going beyond
the common duty of care imposed by the Occupiers
Liability Act 1957 or the Defective Premises Act 1972
and the Landlord shall not be liable to the Tenant or
any other person for any accident loss or damage
which may at any time during the said term be
occasioned to or suffered by the Tenant or any other
person or occasioned to the Demised Premises or to
any goods or property of the Tenant or any other
person by reason of any breach of any obligation on
the part of the Landlord herein contained whether
expressed or implied resulting from any act neglect
default or misfeasance or nonfeasance whether
tortious or of any other kind whatsoever of any
servant or employee or agent or tenant of the
Landlord or any other person or by reason of any fire
or leakage or overflow from any Conducting Media or
other appliances in or near the Demised Premises.
5.4.2 Nothing herein contained or implied nor any statement
or representation made by or on behalf of the
Landlord shall be taken to be a covenant warranty or
representation that the Demised Premises can lawfully
be used for the Permitted Use.
5.5 FORM OF LICENCES ETC.
Any consent permission licence or approval purporting to be given by
the Landlord to the Tenant in relation to this Lease or the Demised
Premises whether or not the same be required to be obtained by the
Tenant by any of the covenants or conditions herein contained shall be
ineffective unless the same be given either:-
5.5.1 by Deed; or
5.5.2 by writing under the hand of the Landlord or some
duly authorised officer or agent of the Landlord
expressly stating that the Landlord does not require
the same to be by Deed.
5.6 WAIVER OF RIGHT TO FORFEIT
That no demand for or acceptance or receipt in whole or in part of any
of the rents hereby reserved or any payment on account thereof or the
grant of any consent permission licence or approval hereunder shall
operate as a waiver by the Landlord of any right which the Landlord may
have to forfeit this Lease by reason of any breach of covenant or
condition by the Tenant notwithstanding that the Landlord may know or
be deemed to know of such breach at the date of such demand acceptance
receipt or grant.
5.7 IMPLIED EASEMENTS AND OTHER RIGHTS
5.7.1 Nothing herein contained shall operate to grant by
implication or otherwise any estate right or easement
not hereby expressly granted by the Landlord.
5.7.2 Nothing herein contained shall confer on the Tenant
any right to the benefit of or to enforce any
covenant or agreement contained in any lease or other
instrument relating to any other premises belonging
to the Landlord or limit or affect the right of the
Landlord to deal with the same now or at any time
hereafter in any manner which may be thought fit.
5.8 PARTY WALLS
Such of the walls (if any) of the Demised Premises as divide the
Demised Premises from other premises of the Landlord shall be deemed
to be party walls divided longitudinally and shall be included in the
Demised Premises to the centre of such division.
5.9 ARBITRATION
Where in this Lease provision is made for the appointment of some
person to act as an expert or arbitrator to determine a matter of
difference between the Landlord and the Tenant and such provision
proves ineffective to secure such appointment then the difference in
question shall if the Landlord so requires be settled by a single
arbitrator under the Arbitration Acts 1950 and 1979.
5.10 REPRESENTATIONS
The Tenant acknowledges that this Lease has not been entered into in
reliance wholly or partly on any statement or representation made by
or on behalf of the Landlord except any such statement or
representation that is expressly set out in this Lease.
5.11 SERVICE OF NOTICES
5.11.1 The provisions of section 196 of the Law of Property
Act 1925 as amended by the Recorded Delivery Service
Act 1962 shall apply to any notices served pursuant
to or in connection with this Lease as if such
notices were notices required or authorised under the
said Acts.
5.11.2 The reference in such section to a registered letter
shall also include a pre-paid first class ordinary
letter.
5.11.3 If the Tenant or the Guarantor shall comprise more
than one person the service of any such notice demand
request or other communication on any one of such
persons shall constitute good service on all persons
constituting the Tenant or (as the case may be) the
Guarantor.
5.12 VALUE ADDED TAX
5.12.1 The Landlord may but is not obliged to exercise the
Election so as to secure that supplies made under the
Lease are or are treated as standard-rated supplies
for VAT purposes.
5.12.2 The Landlord may issue a yearly invoice in accordance
with Regulation 19 of the VAT (General) Regulations
1985 (SI 1985/886).
5.13 EXCLUSION OF RECEIVERS' LIABILITY
In the negotiation execution and implementation of this Lease the
Receivers were are and will be acting only as agents for the Landlord
and the parties acknowledge that the Receivers in joining this Lease
do so solely for the purpose of obtaining the benefit of the provisions
of this clause 19 and any other provisions of this Lease in their
favour and further the Receiver shall not be personally liable on this
Lease or under any deed or other document executed in consequence of
it or under any associated or collateral agreement or arrangement.
5.14 SECURITY OF TENURE
Having been authorised to do so by Order of the [ ] Court made
on the [ ] day of [ ] 19[ ] the Landlord and the
Tenant agree that the provisions of sections 24 to 28 (inclusive) of
the Landlord and Tenant Act 1954 (as amended by the Law of Property Act
1969) are hereby excluded in relation to the tenancy hereby granted.
IN WITNESS whereof the parties have signed or sealed this Deed as indicated
below and it has been delivered or on their behalf on the day and year first
above written.
<PAGE>
SCHEDULE 1
Part I
Description of the Demised Premises
1 The premises known as 3 Vickers Drive, Brooklands Industrial Park,
Weybridge, Surrey as the same is registered at H.M. Land Registry under
titles numbered SY579222 and SY579223.
Part II
Rights granted to the Tenant
2 Such rights in common with the Landlord and others as are co-extensive
with the rights of which the Landlord has the benefit under the
Oakimber Transfers.
Part III
Rights excepted to the Landlord
3
3.1 All rights of light and air and other easements over other
land or premises and all rights and easements belonging to or
enjoyed by any adjoining or neighbouring premises.
3.2 The right to the passage of soil water gas electricity
telephones heating ventilation air conditioning and other
effluvia and services through any Conducting Media comprised
in the Demised Premises from and to any adjoining or
neighbouring premises served thereby.
3.3 The right to carry out any works upon or otherwise deal with
any adjoining or neighbouring premises in such manner as the
Landlord may think fit notwithstanding any interference with
any right of light or air or other easement enjoyed by the
Demised Premises or any nuisance or inconvenience caused to
the occupier thereof.
3.4 The right to build on to connect with or otherwise take into
use any wall or fence bounding the Demised Premises and any
Conducting Media comprised in or serving the Demised Premises
without payment of any consideration or compensation to the
Tenant subject to the Landlord making good at its own expense
any damage thereby caused to the Demised Premises.
3.5 The right at any time to alter or depart from the composition
or layout of the Development to such extent and in such manner
as the Landlord shall think fit to the intent that the Tenant
shall not be entitled to make any claim whether for
compensation or otherwise against the Landlord in respect
thereof.
Part IV
Matters subject to and with the benefit
of which the Demised Premises are demised
4
4.1 The covenants restrictions stipulations rights liabilities and
other matters other than charges to secure money set out or
referred to in the Property and Charges Registers of H.M. Land
Registry Titles numbered SY579222 and SY579223.
<PAGE>
SCHEDULE 2
Part I
Insurances to be maintained by the Landlord
1 Insurance throughout the term with reputable insurers against:-
1.1 loss of the Yearly Rent and the Insurance Charge and the
Service Charge due to damage or destruction caused by any of
the Insured Risks in an amount not exceeding the Landlord's
Surveyor's estimate from time to time of the Yearly Rent
Insurance Charge and Service Charge payable in respect of the
Demised Premises for the Loss of Rent Period; and
1.2 damage or destruction of the Demised Premises by any of the
Insured Risks in a sum equal to the Landlord's or the
Landlord's Surveyors estimate from time to time of the
reinstatement value of the Demised Premises
SUBJECT in each case to such excesses exclusions or limitations as such
insurers may from time to time require or impose.
Part II
Provisions as to payment of the Insurance Charge
2
2.1 The Tenant shall pay to the Landlord on demand the appropriate
percentages of the gross premiums and other expenses from time
to time required to effect or maintain the insurances
specified in Part I of this Schedule and of all fees and
expenses incurred by the Landlord in obtaining valuations and
advice as to the appropriate level of cover or otherwise
relating to such insurances and any Irrecoverable VAT in
respect of such premiums and expenses credit being given to
the Tenant for any payments on account paid by the Tenant
under the following paragraph.
2.2 If so required by the Landlord the Tenant shall on account of
the amounts payable under the preceding paragraph pay to the
Landlord on the quarter day preceding the date on which the
Landlord proposes effecting or renewing any of the insurances
specified in Part I of this Schedule either the whole or (as
the case may be) the appropriate percentage of the Landlord's
or Landlord's Surveyor's estimate of amounts that will be
payable by the Tenant pursuant to paragraph 2.1 in respect of
gross premium and other expenses required for effecting or
renewing such insurance and Irrecoverable VAT in respect
thereof.
2.3 Whenever any claim is made by the Landlord under any of the
insurances stipulated in Part I of this Schedule the Tenant
shall pay to the Landlord on demand by way of additional rent
the whole of any amounts which fall to be borne by the
Landlord in respect of such claim under any excess provisions
contained in the policies of such insurances.
2.4 The Landlord may retain for the Landlord's own benefit any
commissions or discounts received or obtained by the Landlord
on or based on the gross premiums and other expenses which
would otherwise be paid or incurred or suffered by the
Landlord in effecting or maintaining such insurances.
Part III
Interpretation
3 In this Schedule "reinstatement value" means the full cost of
rebuilding or reinstating the Demised Premises together with
architects' surveyors' engineers' and other professional fees and
expenses the cost of shoring up debris removal demolition site
clearance and any works required by Legislation and any other
incidental expenses in connection with rebuilding or reinstatement due
allowance being made for increases in costs fees and expenses during
the period from the date of damage or destruction until the estimated
date of completion of rebuilding and reinstatement.
<PAGE>
SCHEDULE 3
Rent Ascertainment
1 The intention of all parties to this Lease is that the rent first
reserved shall equate to the interest from time to time payable by the
Landlord under the terms of the Ford Mortgages (but for the avoidance
of doubt excluding repayment of capital or arrears accrued prior to the
date hereof).
2 No later than 5 pm on the working day following each usual quarter day
the landlord shall notify the Tenant and of the sum due by way of
interest under the Ford Mortgages from the relevant quarter day and the
amount of the Yearly Rent for the relevant quarter shall equate to the
said amount of interest.
3 The Tenant shall pay the Landlord the amount of the Yearly Rent for the
relevant quarter within two working days of having been notified of the
sum due.
4 The Landlord shall provide the Tenant with such information and copy
correspondence as the Tenant may reasonably require in order to verify
the sums claimed to be due from the Landlord pursuant to the Ford
Mortgages.
(ON LEASE)
SIGNED as a Deed by one of the )
Receivers as agent for Autokraft )
Limited without personal liability )
SIGNED as a Deed by one of the )
Receivers as agent for A.C. Cars )
Limited without personal liability )
(ON COUNTERPART)
THE COMMON SEAL of PARADEHAVEN )
LIMITED was affixed to this Deed )
in the presence of )
Director
Secretary
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE 10
The Receivers' Contracts
Reference Supplier Net VAT Gross
(pounds) (pounds) (pounds)
<S> <C> <C> <C> <C>
R11899 K Lacey 528.45 92.48 520.93
R11868 Lucas Service 155.82 27.27 183.09
R11873 Woodford Tools 129.12 27.85 186.97
R11902 BOC Gases 299.12 52.35 351.47
R11908 Maxpax 487.51 85.31 572.82
1,630.03 285.25 1,915.28
</TABLE>
<PAGE>
SCHEDULE 11
The Transfers
DATED 199[ ]
(1) A.C. CARS LIMITED
(2) PARADEHAVEN LIMITED
(3) A.M. HOMAN AND M.D. GERCKE
TRANSFER
of premises at Brooklands Industrial
Park, Weybridge, Surrey
RICHARDS BUTLER
Beaufort house
15, St. Botolph Street.
London EC3A 7EE
Telephone 0171-247-6555
Telex: 949494 RBLAW G
Fax: 0171-247-5091
Ref: GMR
<PAGE>
H.M. LAND REGISTRY
Land Registration Acts 1925-88
County and District
(or London Borough) Surrey, Elmbridge
Title Numbers SY 579222
Property Land at Brooklands Industrial Park, Weybridge
Date 199[ ]
1 OPERATIVE WORDS
IN CONSIDERATION of [ ]
([ ] Pounds) ("the Price") exclusive of valued added tax paid to the
Transferor the receipt whereof is hereby acknowledged
and
A.C. CARS LIMITED
(Company Registration Number 20259157) whose registered office is at 3 Vickers
Drive, Brooklands Industrial Park, Weybridge, Surrey KT13 0YV (herein called
"the Transferor") HEREBY TRANSFER(S) to Paradehaven Limited (Company
Registration Number 202591157) whose registered office is at Pride House,
Watford Metro Centre, Tolpitts Lane Watford Herts WD1 8SB (herein called "the
Transferee") the land comprised in the title above mentioned ("the Property")
2 TRANSFEREE'S COVENANTS
2.1 In this Transfer the following expressions shall have the
following meanings:
2.1.1 "Leases" means a lease dated the eleventh day of
August
1980 granted to South Eastern electricity Board as the
same is referred to in entry numbered fourteen of the
Charges Register of H.M. Land Registry title number SY
579222 together with a lease dated 11th August 1980
made
between (1) Oyster Lane Properties Limited and (2) The
South Eastern Electricity Board as the same is referred
to in entry numbered three of the Charges Register of
H.M. Land Registry title number SY 579222
2.1.2 "the New Lease" means the lease of the Property (and
other property) dated [ ] and made between A.C.
Cars Limited and Autokraft Limited (1) the
Transferee (2)
2.1.3 "the Matters" means:-
2.1.3.1. all matters registered or capable of
registration in any register of local
land charges and all other matters
otherwise registrable by any local or
other competent authority or pursuant
to legislation;
2.1.3.2. all charges, notices, orders,
restrictions, agreements proposals or
requirements and other matters arising
under or pursuant to the legislation
relating to town and country planning
and to the requirements of the local
planning authority;
2.1.3.3. all other matters whatsoever affecting
the Property which are capable of
discovery by searches or enquiries
whether or not in writing made of any
person or local or other competent
authority or statutory body or by
inspection or survey and whether or
not
such searches or enquiries inspection
or survey have in fact been made by or
on behalf of the Transferee;
2.1.3.4. all matters in the nature of
overriding
interests as defined in section 70 of
the Land Registration Act 1925
affecting the Property;
2.1.3.5. such of the matters referred to in
National Condition 14 as may affect
the Property;
2.1.3.6. the rents reserved by and the
exceptions, reservations, covenants
and conditions contained in the Leases
and the New Lease;
2.1.3.7. all matters contained or referred to
in the registers of the title number
above mentioned under which the
Property is
registered at H.M. Land Registry;
2.1.3.8. All duties and payments (if any)
ecclesiastical or civil charged upon
or payable out of the Premises.
2.2 The Transferee hereby covenants with the Transferor (but by way
of indemnity only) that the Transferee will henceforth observe
and perform all obligations on the part of the Transferor
arising
from the Matters and will indemnify the Transferor against all
costs damages and expenses incurred by the Transferor by reason
of any failure on the part of the Transferee so to observe and
perform the same
3 EASEMENTS ETC
3.1 The Transferor takes the land hereby transferred subject to any
rights of way rights of water rights of common and other rights
easements quasi easements liabilities and public rights
affecting it.
3.2 There are reserved to the Transferor such easements and rights
as would by implication of law become appurtenant to any
adjacent or
neighbouring property which the Transferor now owns if the
Transferor had sold it to another purchaser at the same time as
selling the said land hereby transferred to the Transferee
3.3 The Transferee shall not become entitled to any easement or
right over any other land which the Transferor now owns except
such rights and easements (if any) as are hereby expressly
stipulated.
4 NO TITLE COVENANTS
The Transferor does not give any covenant warranty or representation as
to title to the Property and all statutory covenants are expressly
excluded.
5 RECEIVERS
5.1 Andrew Mark Homan and Michael David Gercke both of Price
Waterhouse No. London Bridge, London SE1 9QL ("the Receivers")
were appointed Joint Administrative Receivers of the Transferor
on 7th March 1996 under the terms of a composite guarantee and
debenture dated 14th July 1993 issued by the Transferor to
Arbuthnot Latham & Co Ltd.
5.2 In the negotiation, execution and implementation of this
Transfer, the Receivers were, are and will be acting only as
agent for the Transferor. The parties acknowledge that the
Receivers in joining this Transfer do so solely for the purpose
for the benefit of the provisions of this Clause 5.2 and any
other provisions of this Transfer in their favour. The
Receivers
shall not be personally liable on this Transfer or under any
Deed or other document executed in consequence of it or under
any associated or collateral agreement or arrangement.
6 MERGER
The Transferor and the Guarantor both hereby declare that immediately
on completion of this Transfer (and the simultaneous completion today
of a transfer to the Transferor of the remainder of the property
comprised in the New Lease) the New Lease shall automatically and
irrevocably merge in the above freehold title to the Property.
7 OVERAGE AND RESTRICTION
7.1 If and on each and every occasion during the period of eighteen
months from the date of actual completion ("the Disposal Period")
but not further or otherwise the Purchaser (or any mortgagee of
the Property or any part thereof):-
7.1.1 sells the freehold interest in the Property or in any
part thereof; and/or
7.1.2 grants a Lease of the Property or any part thereof other
than an occupational lease at or at less than the open
market rent; and/or
7.1.3 otherwise directly or indirectly disposes of the Property
or any part thereof or the legal or beneficial ownership
therein other than by way of charge to secure money to
any institution with whom the Purchaser has otherwise no
connection; and/or
7.1.4 enters into an Agreement to do any of the things in 7.1.1
to 7.1.3 above PROVIDED that a sale of the freehold
interest in the Property contractually linked to a
leaseback of the Property to the Transferee ("Sale and
Leaseback") shall not be a Disposal as herein defined to
which 7.2.1 shall apply and the Purchaser shall remain in
actual occupation of the Property for the entirety of the
Disposal Period.
(Any of which events in paragraphs 7.1 above shall be known as "the Disposal")
the Purchaser shall notify the Vendor forthwith of the Disposal; and
7.2
7.2.1 Subject to the following provisions of this clause the
Purchaser shall pay to the Vendor within seven days of
the date of the Disposal sixty five per centum of the
amount by which the consideration for the Disposal or
where the Disposal is made otherwise than at arm's length
or to a party with whom the Purchaser is otherwise
connected but not further or otherwise the market value
of the Property at that date (whichever is the greater)
exceed the Price exclusive of VAT plus 162,500 Pounds
plus VAT if applicable.
7.2.2 In the event of only part of the Property being disposed
of then the market value of the Property where applicable
under sub-clause 7.2.1 and the Price shall for the
purposes of sub-clause 7.2.1 be deemed only to refer to
that part of the Property which is the subject of the
Disposal and the Price shall be apportioned accordingly.
7.2.3 In the event of default of agreement between the parties
as to the open market rent and/or market value where
applicable and/or the correct apportionment of the Price
pursuant to sub-paragraph 7.2.2 then within seven days of
the Disposal either party may require the matter to be
determined by an independent Surveyor (hereinafter called
"the Surveyor") agreed upon by the Vendor and Purchaser
and failing such agreement within two weeks of the
Disposal either party may apply to the President for the
time being or other appropriate Officer having power from
time to time to make such appointments of The Royal
Institution of Chartered Surveyors (hereinafter called
"the President") and no delay however long in making such
application shall prejudice the right of the Vendor to
require such determination.
7.2.4 The Surveyor shall act as an Expert.
7.2.5 The Surveyor shall afford the Vendor and Purchaser a
reasonable opportunity of making representations to it
and responding to representations made by the other party
but shall be in no way bound or fettered by such
representations and shall be entitled to determine the
said matters on the basis of his own knowledge and
judgment.
7.2.6 The decision of the Surveyor as to open market rent
and/or market value where applicable and/or the
apportionment of the Price shall be final and binding on
the parties hereto.
7.2.7 The fees of the Surveyor shall be paid by the Vendor and
Purchaser in such proportions as he shall direct or
failing such direction by the Vendor and Purchaser
equally.
7.2.8 If the Surveyor fails to reach a decision and give notice
thereof within six weeks of his appointment or if he
shall relinquish his appointment or die or if it shall
become apparent for any reason that he will be unable to
complete his duties hereunder then either party may apply
to the President for a substitute to be appointed in his
place which procedure may be repeated as many times as
necessary.
7.2.9 The Purchaser agrees to place the Land Certificate for
the above title on deposit with H.M. Land Registry to
enable the Vendor to register a Restriction and a Notice
to protect its interest under the terms of this Agreement
in the forms set out below (and the Transferee hereby
consents to the registration of the said Restriction and
Notice):
7.2.9.1. The form of the restriction to be
registered in the Proprietorship
Register of the above title shall be:-
"Except under an order of the Registrar or of the Court no disposition (other
than a charge) of the land comprised in this title is to be registered without
the written consent of A.C. Cars Limited acting by their Receivers".
7.2.9.2. The form of the Notice to be registered
in the Charges Register of the above
title shall be:-
"A Transfer dated the day of made between A.C. Cars Limited
(1) [ Limited] (2) Pride Automotive Group Inc (3) and A.M. Homan
& M.D. Gercke (4) of the property comprised in the above title contained the
following provisions:"
and thereafter the Notice shall set out verbatim the terms of clause 7.1 to
7.2.8 (inclusive) above and PROVIDED that the date of the transfer to be
inserted shall be the date of this transfer.
7.2.9.3. The Transferee shall be entitled at any
time to charge the Property on an arm's
length bona fide basis to a Bank or
other financial institution without the
consent of the Transferor.
7.2.9.4. Upon request upon expiration of the
Disposal Period the Transferee shall
forthwith cause the Restriction and
Notice to be removed.
SIGNED as a Deed by A.C. CARS )
LIMITED acting by one of the )
Receivers as its agent (without )
personal liability) )
THE COMMON SEAL of PARADEHAVEN )
LIMITED was affixed in the )
presence of )
)
)
Director
Secretary
<PAGE>
DATED 199[ ]
(1) AUTOKRAFT LIMITED
(2) PARADEHAVEN LIMITED
(3) A.M. HOMAN AND M.D. GERCKE
TRANSFER
of premises at Brooklands Industrial
Park, Weybridge, Surrey
RICHARDS BUTLER
Beaufort house
15, St. Botolph Street.
London EC3A 7EE
Telephone 0171-247-6555
Telex: 949494 RBLAW G
Fax: 0171-247-5091
Ref: GMR
<PAGE>
H.M. LAND REGISTRY
Land Registration Acts 1925-88
County and District
(or London Borough) Surrey, Elmbridge
Title Numbers SY 579223
Property Land at Brooklands Industrial Park, Weybridge
Date 199[ ]
1 OPERATIVE WORDS
IN CONSIDERATION of [ ] Pounds ([ ] Pounds)
exclusive ("the Price") of valued added tax paid to the Transferor the receipt
whereof is hereby acknowledged
AUTOKRAFT LIMITED
(Company Registration Number 1330564) whose registered office is at 3 Bickers
Drive, Brooklands Industrial Park, Weybridge, Surrey KT13 0YV (herein called
"the Transferor") HEREBY TRANSFER(S) to Paradehaven Limited (Company
Registration Number 13305645) whose registered office is at Pride House, Watford
metro Centre, Tolpitts Lane Watford Herts WD1 8SB (herein called "the
Transferee") the land comprised in the title(s) above mentioned (the Property")
2 TRANSFEREE'S COVENANTS
2.1 In this Transfer the following expressions shall have the
following meanings:-
2.1.1 "Leases" means a lease dated the eleventh day of August
1980 granted to South Eastern electricity Board as the
same is referred to in entry numbered fourteen of the
Charges Register of H.M. Land Registry title number SY
579222 together with a lease dated 11th August 1980 made
between (1) Oyster Lane Properties Limited and (2) The
South Eastern Electricity Board as the same is referred
to in entry numbered three of the Charges Register of
H.M. Land Registry title number SY 579222
2.1.2 "the New Lease" means the lease of the Property (and
other property) dated [ ] and made between A.C.
Cars Limited and Autokraft Limited (1) the Transferee (2)
2.1.3 "the Matters" means:-
2.1.3.1. all matters registered or capable of
registration in any register of local
land charges and all other matters
otherwise registrable by any local or
other competent authority or pursuant
to legislation;
2.1.3.2. all charges, notices, orders,
restrictions, agreements proposals or
requirements and other matters arising
under or pursuant to the legislation
relating to town and country planning
and to the requirements of the local
planning authority;
2.1.3.3. all other matters whatsoever affecting
the Property which are capable of
discovery by searches or enquiries
whether or not in writing made of any
person or local or other competent
authority or statutory body or by
inspection or survey and whether or not
such searches or enquiries inspection
or survey have in fact been made by or
on behalf of the Transferee;
2.1.3.4. all matters in the nature of overriding
interests as defined in section 70 of
the Land Registration Act 1925
affecting the Property;
2.1.3.5. such of the matters referred to in
National Condition 14 as may affect the
Property;
2.1.3.6. the rents reserved by and the
exceptions, reservations, covenants and
conditions contained in the Leases and
the New Lease;
2.1.3.7. all matters contained or referred to in
the registers of the title number above
mentioned under which the Property is
registered at H.M. Land Registry;
2.1.3.8. All duties and payments (if any)
ecclesiastical or civil charged upon or
payable out of the Premises.
2.2 The Transferee hereby covenants with the Transferor (but by way
of indemnity only) that the Transferee will henceforth observe
and perform all obligations on the part of the Transferor arising
from the Matters and will indemnify the Transferor against all
costs damages and expenses incurred by the Transferor by reason
of any failure on the part of the Transferee so to observe and
perform the same
3 EASEMENTS ETC
3.1 The Transferor takes the land hereby transferred subject to any
rights of way rights of water rights of common and other rights
easements quasi easements liabilities and public rights affecting
it.
3.2 There are reserved to the Transferor such easements and rights as
would by implication of law become appurtenant to any adjacent or
neighbouring property which the Transferor now owns if the
Transferor had sold it to another purchaser at the same time as
selling the said land hereby transferred to the Transferee
3.3 The Transferee shall not become entitled to any easement or right
over any other land which the Transferor now owns except such
rights and easements (if any) as are hereby expressly stipulated.
4 NO TITLE COVENANTS
The Transferor does not give any covenant warranty or representation as
to title to the Property and all statutory covenants are expressly
excluded.
5 RECEIVERS
5.1 Andrew Mark Homan and Michael David Gercke both of Price
Waterhouse No. London Bridge, London SE1 9QL ("the Receivers")
were appointed Joint Administrative Receivers of the Transferor
on 7th March 1996 under the terms of a composite guarantee and
debenture dated 14th July 1993 issued by the Transferor to
Arbuthnot Latham & Co Ltd.
5.2 In the negotiation, execution and implementation of this
Transfer, the Receivers were, are and will be acting only as
agent for the Transferor. The parties acknowledge that the
Receivers in joining this Transfer do so solely for the purpose
for the benefit of the provisions of this Clause 5.2 and any
other provisions of this Transfer in their favour. The Receivers
shall not be personally liable on this Transfer or under any Deed
or other document executed in consequence of it or under any
associated or collateral agreement or arrangement.
6 MERGER
The Transferor and the Guarantor both hereby declare that immediately on
completion of this Transfer (and the simultaneous completion today of a
transfer to the Transferor of the remainder of the property comprised in
the New Lease) the New Lease shall automatically and irrevocably merge in
the above freehold title to the Property.
7 OVERAGE AND RESTRICTION
7.1 If and on each and every occasion during the period of eighteen
from the date of actual completion (the "Disposal Period") but
not further or otherwise the Purchaser (or any mortgagee of the
Property or any part thereof):-
7.1.1 sells the freehold interest in the Property or in any
part thereof; and/or
7.1.2 grants a Lease of the Property or any part thereof other
than an occupational lease at or at less than the open
market rent; and/or
7.1.3 otherwise directly or indirectly disposes of the Property
or any part thereof or the legal or beneficial ownership
therein other than by way of charge to secure money to
any institution with whom the Purchaser has otherwise no
connection; and/or
7.1.4 enters into an Agreement to do any of the things in 7.1.1
to 7.1.3 above PROVIDED that a sale of the freehold
interest in the Property contractually linked to a
leaseback of the Property to the Transferee ("Sale and
Leaseback") shall not be a Disposal as herein defined to
which 7.2.1 shall apply if the Purchaser shall remain in
actual occupation of the Property for the entirety of the
Disposal Period.
(Any of which events in paragraphs 7.1 above shall be known as "the Disposal")
the Purchaser shall notify the Vendor forthwith of the Disposal; and
7.2
7.2.1 Subject to the following provisions of this clause the
Purchaser shall pay to the Vendor within seven days of
the date of the Disposal sixty five per centum of the
amount by which the consideration for the Disposal or
where the Disposal is made otherwise than at arm's length
or to a party with whom the Purchaser is otherwise
connected but not further or otherwise the market value
of the Property at that date (whichever is the greater)
exceed the Price exclusive of VAT plus 87,500 Pounds plus
VAT if applicable.
7.2.2 In the event of only part of the Property being disposed
of then the market value of the Property where applicable
under sub-clause 7.2.1 and the Price shall for the
purposes of sub-clause 7.2.1 be deemed only to refer to
that part of the Property which is the subject of the
Disposal and the Price shall be apportioned accordingly.
7.2.3 In the event of default of agreement between the parties
as to the open market rent and/or market value where
applicable and/or the correct apportionment of the Price
pursuant to sub-paragraph 7.2.2 then within seven days of
the Disposal either party may require the matter to be
determined by an independent Surveyor (hereinafter called
"the Surveyor") agreed upon by the Vendor and Purchaser
and failing such agreement within two weeks of the
Disposal either party may apply to the President for the
time being or other appropriate Officer having power from
time to time to make such appointments of The Royal
Institution of Chartered Surveyors (hereinafter called
"the President") and no delay however long in making such
application shall prejudice the right of the Vendor to
require such determination.
7.2.4 The Surveyor shall act as an Expert.
7.2.5 The Surveyor shall afford the Vendor and Purchaser a
reasonable opportunity of making representations to it
and responding to representations made by the other party
but shall be in no way bound or fettered by such
representations and shall be entitled to determine the
said matters on the basis of his own knowledge and
judgment.
7.2.6 The decision of the Surveyor as to open market rent
and/or market value where applicable and/or the
apportionment of the Price shall be final and binding on
the parties hereto.
7.2.7 The fees of the Surveyor shall be paid by the Vendor and
Purchaser in such proportions as he shall direct or
failing such direction by the Vendor and Purchaser
equally.
7.2.8 If the Surveyor fails to reach a decision and give notice
thereof within six weeks of his appointment or if he
shall relinquish his appointment or die or if it shall
become apparent for any reason that he will be unable to
complete his duties hereunder then either party may apply
to the President for a substitute to be appointed in his
place which procedure may be repeated as many times as
necessary.
7.2.9 The Purchaser agrees to place the Land Certificate for
the above title on deposit with H.M. Land Registry to
enable the Vendor to register a Restriction and a Notice
to protect its interest under the terms of this Agreement
in the forms set out below (and the Transferee hereby
consents to the registration of the said Restriction and
Notice):
7.2.9.1. The form of the Restriction to be
registered in the Proprietorship
Register of the above title shall be:-
"Except under an order of the Registrar or of the Court no disposition (other
than a charge) of the land comprised in this title is to be registered without
the written consent of Autokraft Limited acting by their Receivers".
7.2.9.2. The form of the Notice to be registered
in the Charges Register of the above
title shall be:-
"A Transfer dated the day of made between Autokraft
Limited (1) [ Limited] (2) Pride Automotive Group Inc (3) and
A.M. Homan & M.D. Gercke (4) of the property comprised in the above title
contained the following provisions:"
and thereafter the Notice shall set out verbatim the terms of clause 7.1 to
7.2.8 (inclusive) above and PROVIDED that the date of the transfer to be
inserted shall be the date of this transfer.
7.2.9.3. The Transferee shall be entitled at any
time to charge the Property on an arm's
length bona fide basis to a Bank or
other financial institution without the
consent of the Transferor.
7.2.9.4. Upon request upon expiration of the
Disposal Period the Transferee shall
forthwith cause the Restriction and
Notice to be removed.
SIGNED as a Deed by AUTOKRAFT )
LIMITED acting by one of the )
Receivers as its agent (without )
personal liability) )
THE COMMON SEAL of PARADEHAVEN )
LIMITED was affixed in the )
presence of )
)
)
Director
Secretary
<PAGE>
SCHEDULE 12
Part I
The Option
1 INTERPRETATION
In this Schedule unless the context otherwise requires:-
1.1 The following expressions have the following meanings and cognate
expressions are to be construed accordingly.
"Agreed Price" means a sum equivalent to the total
sums due as at the Option Completion
Date from:
(i) the mortgagors (whether principal, interest or
otherwise) pursuant to the Ford Mortgage; and
(ii) the Vendors to Oakimber Limited in respect of
all sums due to Oakimber Limited pursuant to the
Oakimber Transfers; and
(iii) all sums due from but not paid by the Purchaser
under the terms of the New Lease up to the date
of completion of the sale of the Property
hereunder PROVIDED that credit is given for any
sums paid by the Purchaser under the New Lease
in respect of a period after the said date of
completion.
"Direct Covenant" shall mean the form of deed or deeds
required to be entered into with
Oakimber Limited (or its successors in
title) pursuant to clause 5(1) of the
Oakimber Transfers;
"National Conditions" means the National Conditions of Sale
(20th Edition);
"Oakimber Transfers" shall mean a Transfer dated 27th
October 1987 and made between Oakimber
Limited (1) Trafalgar Brookmount
Limited (2) A.C. Cars Limited (3)
Trafalgar House Developments Holdings
Limited (4) (as varied by a Deed of
Variation dated 18th January 1991
between Oakimber Limited (1) A.C. Cars
Limited (2) and Ford Motor Company
Limited (3)) and a Transfer dated 27th
October 1987 made between Oakimber
Limited (1) Trafalgar Brookmount
Limited (2) Autokraft Limited (3)
Trafalgar House Developments Holdings
Limited (4) (as varied by a Deed of
Variation dated 18th January 1991 made
between Oakimber Limited (1) Autokraft
Limited (2) and Ford Motor Company
Limited (3)) both the said transfers
relating to the Property;
"Option Agreement" means the Option and Part I of this
Schedule;
"Option Completion Date" means the date falling fifteen working
days after the service of the Option
Notice;
"Option Notice" means a notice served by the Purchaser
upon the Vendor exercising the Option
in the form of the Notice contained in
Part III of this Schedule;
"Option Period" means the period ending on the
expiration of twelve calendar months
running from the Completion Date;
"Property" means the freehold in the Premises;
"Working day" and have the meanings given to those
"Clearing Banks" expressions in the National Conditions
as varied below.
2 EXERCISING OF THE OPTION
2.1 The Option shall be exercised only by the Purchaser serving the
Option Notice on the Vendor before the end of the Option Period
together with a deposit of 10,000 Pounds paid to the Vendors'
solicitors as stakeholders as to which time is of the essence.
2.2 On the exercise of the Option the Vendor and the Purchaser will
become bound to one another to complete the sale and purchase of
the Property on the terms contained in Part II of this Schedule.
3 VAT
The consideration for any supply made or to be made in respect of the
grant of the Option or supplies received or to be received under the terms
of or in connection with this Agreement or in connection with the exercise
of the Option is exclusive of VAT unless otherwise stated and the party
to whom the supply is made agrees to pay all VAT payable thereon.
Part II
Terms of Sale
1. SALE OF THE PROPERTY
The sale and purchase of the Property shall be at the Agreed Price.
2. ENCUMBRANCES
The Property is sold subject to and (insofar as the following matters are
capable of benefiting the Property and the Vendor can lawfully grant the
same) with the benefit of:-
2.1 all matters registered or capable of registration in any register
of local land charges and all other matters otherwise registrable
by any local or other competent authority or pursuant to
legislation;
2.2 all charges, notices, orders, restrictions, agreements proposals
or requirements and other matters arising under or pursuant to
the legislation relating to town and country planning and to the
requirements of the local planning authority;
2.3 all other matters whatsoever affecting the Property which are
capable of discovery by searches or enquiries whether or not in
writing made of any person or local or other competent authority
or statutory body or by inspection or survey and whether or not
such searches or enquiries inspection or survey have in fact been
made by or on behalf of the Purchaser;
2.4 all matters in the nature of overriding interests as defined in
section 70 of the Land Registration Act 1925 affecting the
Property;
2.5 such of the matters referred to in Condition 14 as may affect the
Property;
2.6 the rents reserved by and the exceptions, reservations, covenants
and conditions contained in the New Lease and the Leases;
2.7 all matters contained or referred to in the registers of the Land
Registry Title other than any financial charges;
3. CAPACITY OF VENDOR
No covenants for title either express or implied are to be given the
Vendors or Receivers.
4. TITLE
4.1 Title to the Property shall be deduced in accordance with the
Land Registration Acts 1925 to 1988.
4.2 The Purchaser hereby agrees that no requisition or objection
shall be raised in respect of:-
4.2.1 the Vendors' title to the Property which has been deduced
to the Purchaser and/or the Purchaser's Solicitors in the
manner provided in this Sale Agreement on or prior to the
date hereof;
4.2.2 those matters revealed by the Vendor or those acting for
or representing the Vendor to the Purchaser or those
acting for or representing the Purchaser on or prior to
the date hereof including for the avoidance of doubt
those matters referred to in paragraph 2 above;
and the Purchaser is deemed to purchase with full knowledge of the same.
5. ASSURANCE
The Vendor shall not be required to execute any assurance of the Property
except assurances of the whole of the Property in favour of the Purchaser
alone at the Agreed Price and in the form of the Transfers (subject to the
Agreed Price being apportioned as between the Transferors in the
proportion 65% to the Transfer from A.C. Cars and 35% to the Transfer from
Autokraft.
6. NATIONAL CONDITIONS
The National Conditions shall be deemed incorporated in this Sale
Agreement insofar as consistent with its other provisions but with the
following variations:-
6.1. "working day" shall not include a Saturday, Christmas Day, a Bank
Holiday or any other designated public holiday.
6.2. Conditions 3, 5(3) and (5), 6(2), 7(1)(iii), 8(4), 15(2), (3) and
(4) and 21(2) and (3) shall not apply.
6.3. The prescribed rate of interest shall be four per cent over the
base rate from time to time of Lloyds Bank Plc.
6.4. "Clearing bank" means Lloyds Bank Plc, National Westminster Bank
Plc, Coutts & Co., Midland Bank Plc, Barclays Bank Plc, TSB Group
Plc, the Royal Bank of Scotland Plc or the Bank of England.
6.5. The words "in the terms of the document which his client has
signed" shall be deleted from Condition 1(6).
6.6. Condition 5(4) shall be construed as if the following words were
added at the end:-
"provided further that the Purchaser shall not be entitled to delay completion
on account of the fact that any subsisting mortgage or charge in favour of any
mortgagee or chargee has not been vacated or released if the Vendor's Solicitors
undertake to pay forthwith to the mortgagee or chargee the money required by the
mortgagee or chargee to discharge such mortgage or charge and to forward to the
Purchaser's Solicitors the appropriate document vacating or releasing such
mortgage or charge as soon as received from the mortgagee or chargee".
6.7. Condition 7 shall be construed as if the following paragraph were
added at the end:-
"(3) If the contract is discharged because the Purchaser fails or refuses to
complete in conformity with Condition 22 the Purchaser shall pay interest in
accordance with paragraph (1) of this condition from the completion date until
the later of the date of discharge of the contract and the date of completion of
a sale to which Condition 22(3) applies".
6.8. Condition 9(3) shall be construed as if the following words were
added at the end:-
"provided that if the period between the date of contract and the completion
date is less than 20 working days the said period of 11 working days and 6
working days shall be reduced proportionately (fractions of a day not counting)
but shall not in either case be reduced to less than 1 working day".
6.9. Condition 11(3) shall be construed as if the following words were
added at the end:-
"provided that the production of such receipt shall not be a condition of
completion but if the Vendor is unable to produce the same the Vendor shall
furnish such other evidence (if any) as may be available in respect thereof".
6.10. In Condition 13(1) the words "such period as the vendor has owned
the property" shall be substituted for the words "at least twelve
years".
6.11 Condition 22 shall be construed as if the words:-
6.11.1. "ten working days" were substituted for "sixteen working
days" wherever the latter appears;
6.11.2. "A party shall be deemed to be ready able and willing to
complete if he could do so but for some default or
omission of the other party" were added at the end of
Condition 22(1); and
6.11.3. "(unless the Court otherwise directs)" shall be deleted
from Condition 22(3).
7. DIRECT COVENANT
(1) Prior to completion the Purchaser (if required by Oakimber
Limited) shall execute a Deed of Direct Covenant in such form as
shall be required by Oakimber Limited and shall deliver the said
Deed to Oakimber Limited is solicitors to be held in escrow
(pending completion of the sale to the Purchaser of the Property)
and the Purchaser shall on completion complete the said Deed with
Oakimber Limited.
(2) Prior to completion the Purchaser shall deliver to the Vendors
written confirmation from Oakimber Limited's Solicitors that they
hold a Direct Covenant in a satisfactory form.
8. COMPLETION
8.1 Completion shall take place before 1.30pm on the Option
Completion Date at the offices of the Vendors' Solicitors or
elsewhere as they may reasonably direct.
8.2 If completion shall be effected after 1.30pm on any day
completion shall for the purposes of apportionment of income and
outgoings and of the calculation of any interest payable by the
Purchaser be deemed to have taken place on the next following
working day.
8.3. The moneys payable by the Purchaser on completion shall be paid
either:-
8.3.1 by credit to account number 0023889 maintained by the
Vendors' Solicitors with Lloyds Bank Plc at 39
Threadneedle Street, London, EC2 (Code No: 30-00-09T) or
to such other account with a bank in the United Kingdom
or the Vendors' Solicitors may from time to time
nominate; or
8.3.2. if the Vendors' Solicitors so agree but not otherwise by
delivery to the Vendors' Solicitors of a town clearing
banker's draft or drafts drawn on a clearing bank in
favour of the Vendors' Solicitors or in favour of such
other person or persons as they may direct
and completion shall not be regarded as having been effected until such time as
such drafts or moneys have been so delivered or credited so as to be in
unconditional possession of the relevant recipient.
8.4 The Vendors, the Purchaser shall on completion each execute and
complete the Transfers in duplicate and the Purchaser shall have
the duplicates of the Transfers and the Transfers duly stamped
and returned to the Vendors within thirty days of completion.
8.5.1 In addition to the Agreed Price the Purchaser shall on
completion pay to the Vendors in cleared funds sums
sufficient to pay all Land Registry fees due in
connection with an application to register the Transfers
at H.M. Land Registry.
8.5.2 The Vendors shall as soon as reasonably practicable
following return to them of the duly stamped Transfers
(and duplicates) pursuant to paragraph 8.4 above duly
apply to H.M. Land Registry for discharge of the Ford
Charges, and the Debenture insofar as it provides
security over the Property, registration of the Transfers
and registration of the Restriction and Notice referred
to in Clause 7.2.9 of the Transfers (and for the
avoidance of doubt the Vendors shall for the aforesaid
purpose be entitled to retain on completion the Charge
Certificates for the Land Registry Title).
9. CHARGES
9.1 Upon completion the Vendors shall procure the discharge of the
Ford Mortgages and Debenture insofar as it provides security over
the Property.
9.2 From the Agreed Price the Purchaser shall be entitled to deduct
an amount equal to the sums paid under the terms of the New Lease
less any sums (net of tax) paid by the Vendors to Ford in
realisation of the sums due under the Ford Mortgage during the
period from the grant of the New Lease until the Option
Completion Date.
10. VAT
The consideration for any supply made or to be made under the terms of or
in connection with this Sale Agreement or in connection with its
completion is exclusive of VAT unless otherwise stated and the party to
whom the supply is made hereby agrees to pay all VAT payable thereon.
11. NON-MERGER
Notwithstanding completion of the assurance of the Property to the
Purchaser all the provisions of this Agreement shall remain in full force
and effect thereafter to the extent that the same may remain to be
implemented or observed or may expressly or by implication remain
applicable.
<PAGE>
Part III
The Form of the Option Notice
To: [the Vendor's name and address]
[Date]
OPTION NOTICE - [description of Property ("the Property")]
WE HEREBY GIVE YOU NOTICE pursuant to the Option Agreement dated [ ]
and made between [ ] ("the Agreement") exercising the option
to purchase the Property in accordance with the terms of the Agreement.
............................
for and on behalf of
[the Purchaser's name and address]
<PAGE>
SCHEDULE 13
The Agreement for New Lease
1. TITLE COVENANTS
No covenants for title either express or implied shall be given by the
Vendors or the Receivers on the grant of the New Lease.
2. ENCUMBRANCES
The New Lease shall be granted subject to:-
2.1. all matters registered or capable of registration in any register
of local land charges and all other matters otherwise registrable
by any local or other competent authority or pursuant to
legislation;
2.2. all charges, notices, orders, restrictions, agreements proposals
or requirements and other matters arising under or pursuant to
the legislation relating to town and country planning and to the
requirements of the local planning authority;
2.3. all other matters whatsoever affecting the Premises which are
capable of discovery by searches or enquiries whether or not in
writing made of any person or local or other competent authority
or statutory body or by inspection or survey and whether or not
such searches or enquiries inspection or survey have in fact been
made by or on behalf of the Purchaser;
2.4. all matters in the nature of overriding interests as defined in
section 70 of the Land Registration Act 1925 affecting the
Premises;
2.5. the rents reserved by and the exceptions reservations covenants
and conditions contained in the Leases;
2.6. all matters contained or referred to in the registers of the Land
Registry Title;
3. DEDUCTION OF TITLE
3.1. Title to the Premises shall be deduced by delivery to the
Purchaser's Solicitors of Office Copy Entries of the Land
Registry Title.
3.2. Title having been deduced as aforesaid the Purchaser shall not be
entitled to raise any requisition or objection in respect of
title matters (including matters arising out of or related to
documents or matters referred to in the registers of the Land
Registry Title.
AND the Purchaser is deemed to accept the Lease with full knowledge of the same.
4. VACANT POSSESSION
Subject to the matters referred to in paragraphs [2] and [5] hereof and
to the presence at the Premises of the Transferred Assets vacant
possession of the Premises shall be given on completion.
5. PHYSICAL STATE
The Premises are acquired in the knowledge of the presence of any
buildings or erections on them and the presence position or absence of
drains, water, mains, cables, sewers, oil tanks and easements and rights
and restrictions relating to them and the Premises are acquired in the
state and condition in which they now are and in the knowledge of their
contents and any obligation to give vacant possession is modified
accordingly.
6. NO IMPLIED WARRANTIES
The Vendors do not warrant or make any representation that the Premises
are suitable for the Purchaser's business.
SIGNED by one of THE RECEIVERS )
as agent for AUTOKRAFT LIMITED )
without personal liability )
SIGNED by one of THE RECEIVERS )
as agent for AC CARS LIMITED )
without personal liability )
SIGNED by )
for and on behalf of PARADEHAVEN )
LIMITED )
<PAGE>
DATED 1996
AUTOKRAFT LIMITED AND AC CARS LIMITED (1)
PARADEHAVEN LIMITED (2)
ANDREW MARK HOMAN AND MICHAEL DAVID GERCKE (3)
A G R E E M E N T
for the sale of Assets
RICHARDS BUTLER
Beaufort House,
15, St. Botolph Street,
London EC3A 7EE
Telephone: 0171-247-6555
Fax: 0171-247-5091
Ref: SCC/96-13479
<PAGE>
<TABLE>
<CAPTION>
INDEX
<S> . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . .<C>
1. Sale and Purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 11
2. Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 12
3. Completion Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 13
4. Completion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 14
5. Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . 17
6. VAT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . 18
7. Further Assurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 19
8. Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . 20
9. The Commercial Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 22
10. Book Debts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 23
11. Third Party Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 23
12. Receivers' Contracts and Warranty Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . 24
13. Apportionments etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . 25
14. Aircraft Indemnity and Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 27
15. Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 30
16. Continuing Trading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . 30
17. The New Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . 32
18. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. 32
19. Set-Off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . 32
20. Storage of the Bentley and the Motorcycle Collection . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . 33
21. Exclusion of Receivers' Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 33
22. Purchaser's Warranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . 33
23. Use and Change of Names . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . 34
24. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 34
25. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . 35
26. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . 38
27. Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . 40
28. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . 40
29. DK Marketing Services Ltd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 41
</TABLE>
<TABLE>
<CAPTION>
SCHEDULES
<S> . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . .<C>
1. Description of Aircraft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 42
2. Acceptance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 43
3. Capital Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 44
4. Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 45
5. Excluded Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 46
6. Excluded Vehicles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 47
7. Lease Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . 48
8. Motorcycle Collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . 49
9. New Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 50
10. Receivers' Contracts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . 87
11. The Transfers and The New Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . 88
12 Option. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. .104
13. Agreement for New Lease. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . .114
</TABLE>
