Options Agreement | netherfield

Proposed Options Contract

P.A.R. Prior, R.L.R. Prior, P.I. Prior -and J.A. Attenborough

[Developer][Professional Advisers]

________________________________________________
COUNTERPARTY

AGREEMENT

relating to development of land at Stanstead Abbotts, Hertfordshire

INDEX

Parties

Recitals

Clause 1. Definitions

the Property
the Planning Permission
the Venture
the Option
the Total Outlay
the Owner's Solicitors
the Company's solicitors

Clause 2. Appointment of the Company to effect the Venture

Clause 3. Total Outlay Account

Clause 4. The role of the Company in the Venture

obtain the Planning Permission
appoint professional advisers
complete plans
report periodically to Owners
make or withdraw any applications or appeals
notify the Owners of the Planning Permission obtained

Clause 5. The role of the Owners in the Venture

not object to application for the Planning Permission
permit access to the Property
enter into agreements with the planning authority

Clause 6. Determination

If the Planning Permission not obtained in .... years
If the Planning not likely to be obtained
on withdrawal

Clause 7. Scope of the Option

Clause 8. Manner of exercise of the Option

Clause 9. Determination of the purchase price

Clause 10. Withdrawal

Clause 11. Subsequent Consents

Clause 12. Miscellaneous

Confidentiality
No publicity
Agreement concerns the Venture only
Consents
Agreement personal
Headings
Waiver
Notices
Covenants joint and several
As to Title
Risk

THE AGREEMENT

THIS AGREEMENT is made the .................... day of ..................... Two thousand and .............
BETWEEN:-

(1)PATRICK ANDREW REDMOND PRIOR of 121 Castle Road Salisbury Wiltshire SP1 3RP (hereinafter called "Colonel Prior")

RICHARD LAWRENCE REDMOND PRIOR of 33 Maguricea, Bl.8h, Sc.3, Ap.35, Sector 1, Bucharest, Romania

PAMELA ISOBEL PRIOR of 53 Cours Pey-Berland 33460 Margaux FRANCE

JEAN ALICE ATTENBOROUGH of Pound Cottage Ebbesbourne Wake Salisbury Wiltshire

(2).................................................. the registered office of which is at ........................... (the Company)

WHEREAS

(A)The parties are desirous of recording their agreement on certain matters relating to an application for planning permission and disposal of property at Stanstead Abbotts Hertfordshire being the property hereinafter defined

(B)The title to the said property shall commence as to part with a conveyance dated the 31st day of December 1940 made between Sir Alleyne Percival Boxall (1) and Alice Louisa Katherine Prior (2) and as to the remainder with an Assent dated the 6th day of April 1960 made between John Alexander Longmore and Edward Atkinson Williams (1) and Henry Robert Redmond Prior (2)

NOW IT IS HEREBY AGREED AND DECLARED as follows:-
Definitions

1. In this Agreement the following expressions shall have the following meanings:-

(1)

"the Property" means all that freehold land situate at Stanstead Abbotts as such land is particularly delineated on the plan annexed hereto

(2)

"the Planning Permission" means the grant of outline planning permission (for the avoidance of doubt whether resulting from an application to the Local Authority or as a result of an appeal against the decision thereof) satisfactory and acceptable to the Company (in its absolute discretion) for the proper and lawful residential development of the Property

(3)

"the Venture" means the procuring of the Planning Permission

(4)

"the Option" means the option to purchase specified in Clause 8 hereof

(5)

"the Total Outlay" means the aggregate of the Company's architects' surveyors' solicitors' and other professional advisers' reasonable and proper fees and also any other reasonable and proper costs expenses and disbursements together any irrecoverable Value Added Tax payable thereon (including without prejudice to the generality of the foregoing any solicitors' costs incurred in entering into ancillary planning agreements with the Local Authority) properly incurred by the Company directly in connection with the obtaining of the Planning Permission as hereinafter referred to but not including:-

(a)

any bank interest charges

(b)

the Company's internal fees and disbursements

(c)

accountants fees in connection with the Total Outlay

The appointment of the Company
With effect from the date hereof the Owners hereby appoint the Company to effect the Venture on the terms and conditions hereinafter appearing

Total Outlay Account
There shall be kept by the Company a separate ledger account in the Company's usual accounting system designated "Stanstead Abbotts Account" and all monetary transactions comprising the Total Outlay shall be recorded therein and the Owners shall be entitled on request to production of vouchers or other satisfactory evidence of payments in respect of the Total Outlay

The role of the Company in the Venture
As to the Venture the Company shall:

(1)

obtain the approval of the Owners to the proposed planning application prior to the lodging of the application with the local planning authority and approval not to be unreasonably withheld or delayed

(2)

generally use all reasonable efforts to obtain the Planning Permission without delay

(3)

if it so desires after consultation with the Owners appoint or engage on its behalf professional advisers to provide any service which the Company shall properly and reasonably consider necessary to seek the grant of the Planning Permission with all reasonable expedition

(4)

cause such professional advisers as aforesaid to complete any necessary plans drawings and specifications in respect of the application for the Planning Permission

(5)

from time to time but at least once every calendar month to report to the Owners on the progress of the Venture and the Owners hereby agree that the report shall be made to Colonel Prior or such other of the Owners as they shall have notified to the Company

(6)

if it so requires make and/or withdraw any applications or appeals for or in respect of the grant of Planning Permission as it considers appropriate SUBJECT to the prior approval (not to be unreasonably withheld) of the Owners

(7)

on the occasion of the grant of the Planning Permission notify the Owners in writing within 28 days as to whether or not it is satisfactory to the Company

The role of the Owners in the Venture
As to the Venture the Owners shall:

(1)

not object or procure or encourage any objection to the Company's application for the Planning Permission or making or conducting any appeal in respect thereof

(2)

permit the planning authorities the Company's professional advisers as aforesaid and all others authorised by all of them access to the Property in connection with the obtaining of the Planning Permission

(3)

as freehold owner enter into any agreement with the Local Authority necessary to obtain the Planning Permission if so requested by the Company PROVIDED THAT

(a)

such agreement does not impose any financial liability on the Owners

(b)

that the Company duly and effectually indemnifies the Owners in respect thereof

Determination
This Agreement shall be immediately determined and cease and become void but without prejudice to the rights of either party against the other in respect of any antecedent breach of any of the terms of this Agreement:-

(1)

forthwith on the Company serving written Notice of Determination on the Owners if at any time after the date hereof the Company considers in its absolute discretion that on the balance of probabilities the likelihood of obtaining Planning Permission no longer exists

(2)

if the Planning Permission has not been obtained within three years from the date hereof forthwith on either party at any time thereafter serving written notice of determination on the other party PROVIDED THAT no such Notice can be served if at that time there exists an undetermined Planning Application or undecided appeal in which event the period within which the Option shall be exercised shall be extended for a period of one month from the determination of such Planning Application or decision of such appeal

(3)

forthwith on service by the Company's Solicitors further to Clause 10 of Notice determining the Notice exercising the option

Scope of the Option
In consideration of the sum of £1.00 now paid by the Company to the Owners (the receipt of which the Owners hereby acknowledge) the Owners grant to the Company upon the terms and conditions herein contained the option to purchase the whole of the property for an estate in fee simple absolute in possession

Manner of exercise of the Option

(1)

On the Company deciding to exercise the Option the following provisions shall apply SUBJECT to the proviso of Clause 6(2) and unless time be extended in accordance therewith the Option shall become exercisable at any time within four weeks of the grant of the Planning Permission

(2)

if exercised the Option shall be exercised in respect of the whole of the Property only by service by the Company's Solicitors upon the Owners' Solicitors of a Notice in writing to that effect IN WHICH EVENT a Contract shall be entered into PROVIDING (inter alia)

(a)

completion to take place on the later of:

(i)four weeks from the date of service of such Notice or

(ii)four weeks allowing agreement of or service of Notice of determination of the purchase price further to Clause 9

(b)

the National Conditions of Sale (20th Edition) to apply except that:

(i)the "prescribed rate" in respect of interest further to preamble (4) and to General Condition 7 shall be the base rate for the time being of National Westminster Bank PLC and shall be payable in any event from the date determined as provided for in sub-Clause (2) (a) (i)

(ii)in General Condition 19 (6) the following words shall be added at the end:-
"arising after the date of actual completion"

(c)

vacant possession to be given on completion

(d)

payment of a purchase price calculated in accordance with the formula:

£20,000 plus (90% x (OMV - £20,000) less the Total Outlay

where OMV means "the Open Market Value" being the price which the Property might reasonably be expected to fetch on the open market at the date of the exercise of the Option assuming a willing vendor and purchaser and with the benefit of the Planning Permission

(e)

the Property is sold subject to and with the benefits of the rights of way granted by a deed of Gift dated the 2nd day of April 1985 and made between the Owners amongst themselves

(f)

the Property is sold subject to the easements quasi easements liberties privileges rights and advantages referred to in four separate deeds of Rectification each dated the 9th day of June 1983 and made between Henry Robert Redmond Prior and each of the Owners respectively

Determination of the purchase price

(1)

Following the exercise of the Option the parties shall forthwith endeavour to agree the Open Market Value specified in Clause 8 (2) (d)AND if the parties fail to so agree within 10 working days of the exercise of the Option the parties shall each appoint a chartered surveyor being an Associate of the Royal Institution of Chartered Surveyors and each having substantial experience in valuing properties of a similar kind to the Property to agree the said Open Market Value acting as experts

(2)

In the event that such surveyors so appointed cannot agree the amount of the Open Market Value within four weeks of appointment than either party may request the President for the time being or the next available senior officer of the Royal Institution of Chartered Surveyors to nominate a single surveyor of such standing and experience as specified in sub Clauses 9(1) to determine the said Open Market Value and such reference shall be considered to be deemed to be a submission to arbitration within the Arbitration Acts 1950 to 1979 and if such arbitrator dies or refuses or is unable to act before an award is made the procedure shall be repeated as often as necessary until an appeal is made

(3)

The costs of each of the surveyors appointed shall be borne respectively by the party making each appointment and (where applicable) the costs of any arbitrator nominated shall be shared equally between the parties

10.

Withdrawal
Within four weeks of the determination of the said Open market Value the Company's Solicitors shall be entitled to determine the Notice to that effect on the Owners Solicitors and the Company shall lodge an application with HM Land Charges Department cancelling any Land Charge registered to protect its interest under this Agreement within seven days of determining the Notice.

11.

Subsequent consents

(1)

If at any time in the period of five years immediately following the date for completion of the sale and purchase of the Property (the Completion Date") the Company shall apply once or more often to the Local Authority either to amend the Planning Permission or to lodge a new Planning Application for the Property and obtain a Planning Permission (either in outline or in full) to construct more houses or residential units commercial buildings than is permitted under the Planning Permission then within two months of each occasion of the Company or its successors receiving its written notification of the subsequent Planning Permission the Company shall pay to the Owners a further sum calculated as follows:-

90% (RMV - OMV) less ATO

where RMV means "Revised Market Value" at the date the Company receives notification

OMV means Open Market Value as is hereinbefore defined

ATO means "Additional Total Outlay"

(2)

If at any time in the period of five years immediately following the date determined consequent upon the provisions of Clause 8(1) in the event of the Company not exercising the Option or the date determined by the provisions of Clause 10 in the event of the Company determining the Option exercised by the Owners shall apply once or more often to the Local Authority to lodge a new Planning Application for the Property and obtain Planning Permission (either outline or in full) to construct houses or residential units then within three months of such occasion of the Owners receiving written notification the Owners shall pay to the Company as follows:

TO less 15% of TO

Where TO means Total Outlay as defined in Clause 1 (5) hereof

11.

Miscellaneous

(1)

Each party agrees to keep secret all those facts concerning the affairs of the other which may in connection with or as a result of the performance this Agreement from time to time come to their knowledge (except when required by law to disclose the same)

(2)

Save as may be required by law no announcement or other publicity relating to any matter referred to in this Agreement shall be made or issued by or on behalf of either party without prior agreement of the other

(3)

This Agreement relates only to the Venture and shall neither (save as herein provided) constitute either party hereto the agent of the other nor shall it constitute a partnership between the parties hereto

(4)

Each party represents and warrants to the other party that it has obtained all necessary consents and authorisations to enable it to enter into and perform its obligations in accordance with the terms of this Agreement

(5)

This Agreement is personal to the parties and neither of the parties shall assign charge or otherwise part with its respective interest hereunder without the prior consent in writing of the other

(6)

The headings to Clauses of this Agreement are for convenience only and do not form part of this Agreement

(7)

No waiver (whether express or implied) by the parties of any of the provisions of this Agreement or any breach of or default by either party in performing any of those provisions shall constitute a continuing waiver or any any other waiver of such provisions of this Agreement and no such waiver shall prevent that party from enforcing any of the provisions of this Agreement or from acting upon the same or upon any subsequent breach or default by either party under any of the provisions of this Agreement

(8)

Any notice to be served under this Agreement shall be in writing and shall be validly served if given in accordance with Section 196 of the Law of Property Act 1925 as amended by the Recorded Delivery Service Act 1962

(9)

Covenants made by any party comprising two or more persons shall be deemed to be made by such persons jointly and severally

(10)

The Property shall remain at the Owners risk until the completion of any sale

IN WITNESS whereof the parties hereto have duly executed this Agreement the day and year first before written