Dated the day of 2006
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and
[ ]
AGREEMENT FOR SALE AND PURCHASE
MESSRS WONG, FUNG& CO.,
SOLICITORS,
10TH FLOOR, FAR EAST CONSORTIUM BLDG.,
121 DES VOEUX ROAD CENTRAL,
HONG KONG.
Ref. :
- 1 -
THIS AGREEMENTmade the day of Two Thousand
and Six
BETWEEN the Vendor whose name address or registered office are set out in Part I of the First Schedule hereto (the “Vendor”) of the one part and the Purchaser whose name address or registered office are set out in Part I of the First Schedule hereto (the “Purchaser”) of the other part.
1.(a)The Vendor agrees to sell and the Purchaser agrees to purchase the land property more particularly described in the Second Schedule hereto (the “Property”) and the appurtenances thereto And all the estate right title interest claim and demand whatsoever of the Vendor therein and thereto to hold the same unto the Purchaser absolutely or (as the case may be) for the residue of the term(s) of years created by the Government Grant(s) affecting the Property and (if applicable) as extended by any legislation Subject to the payment of the Government rent and premium (if any) or a due proportion thereof And Subject to and with the benefit of all applicable Deed of Mutual Covenant, Sub-Deed of Mutual Covenant and/or Management Agreement and all other subsisting easements, rights and rights of way affecting the Property. No error, omission, misstatement or misdescription herein or in any plans furnished or any statement made in the course of the negotiations leading to this Agreement shall annul the sale or entitle the Purchaser to be discharged from the purchase. Any such error or omission or misstatement or misdescription shown to be material shall entitle the Purchaser to proper compensation provided that the Purchaser shall not in any event be entitled to compensation for matters falling within Clause 21 hereof. No immaterial error, omission, misstatement or misdescription (including a mistake in any plan furnished for identification only) shall entitle either party to compensation.
(b)The sale and purchase herein and the purchase price to be paid by the Purchaser to the Vendor shall include such furniture and chattels presently placed at the Property as set out in Part VII of the First Schedule hereto (if any) (the “furniture and chattels”).
(c)The Vendor hereby declares and warrants that the furniture and chattels (if any) are the properties of the Vendor and that the same are not subject to any lien or encumbrance.
(d)The Purchaser hereby declares that the Purchaser has inspected and examined the furniture and chattels (if any) and is fully aware of their physical conditions.
(e)At the time of completion the Vendor shall deliver the furniture and chattels (if any) in their present state and conditions (fair wear and tear excepted) and free from all incumbrances to the Purchaser or his nominee(s) or sub-purchaser(s) to the intent that the Purchaser or his nominee(s) or sub-purchaser(s) shall become the absolute owner thereof. To remove doubt, it is hereby expressly agreed that the failure of the Vendor to deliver the furniture and chattels (if any) or any of them to the Purchaser or his nominee(s) or sub-purchaser(s) shall not entitle the Purchaser to terminate this Agreement or to withdraw from the purchase of the Property. The only relief in such case open to the Purchaser who must complete the purchase of the Property is a claim against the Vendor for damages only.
2.The Vendor hereby declares and confirms that no other occupier of the Property (whether related to the Vendor or otherwise) has any right or interest whatsoever (whether legal or equitable) in the Property and that the Vendor has absolute right to sell the same and the Property was purchased with the Vendor’s own monies/and the mortgage loan was repaid by the Vendor with the Vendor’s own monies. In the event of any third party claim to the Property, whether legal or equitable, on or before completion, the Vendor shall forthwith return the deposits paid hereunder to the Purchaser without prejudice to the Purchaser’s right to claim against the Vendor for all losses and damages sustained by the Purchaser by reason of the Vendor’s failure and/or inability to complete the sale in accordance with the terms hereof and it shall not be necessary for the Purchaser to tender an Assignment to the Vendor for execution.
3. The Vendor shall assign and the Purchaser shall purchase the Property in such capacity as described in Part I of the First Schedule hereto.
4.(a)The purchase price is the sum set out in Part II of the First Schedule hereto which shall be paid by the Purchaser in the manner set out in Part III of the First Schedule hereto and the remaining paragraphs of this Clause.
(b)In respect of the balance of the purchase price or any part thereof, the Vendor or his solicitors shall be entitled to require the Purchaser to deliver to the Vendor on completion a cashier order issued by a licensed bank in Hong Kong or a cheque issued by a firm of solicitors in Hong Kong in favour of the Vendor for the relevant amount.
(c)Where the balance of the purchase price or any part thereof is required to be applied by the Vendor to discharge an existing mortgage, charge or incumbrance or to pay any person who will be a party to the Assignment on completion or any person as the Vendor may direct, the Vendor or the Vendor’s solicitors shall be entitled to require the Purchaser to split such payment and deliver to the Vendor’s solicitors one or more cashier order(s) or cheque(s) issued by a firm of solicitors in favour of the person(s) or party/parties entitled to such payment(s) and a separate cashier order or solicitors’ cheque in favour of the Vendor for the balance.
(d)The Purchaser shall not be deemed to have discharged the obligation to make payment hereunder unless in making such payment, the Purchaser also complies with the provisions of this Clause.
5.Completion shall take place on or before the date set out in Part IV of the First Schedule hereto (the “Completion Date”) at the offices of Messrs. Wong, Fung & Co., Solicitors at 10thFloor, Far East Consortium Bldg., 121 Des Voeux RoadCentral,Hong Kong. The parties hereto expressly agree that completion of the sale and purchase shall be implemented by way of the usual solicitors’ undertaking subject to the usual Law Society Qualifications.
6.Time shall in every respect be of the essence of this Agreement.
7.(a)The Property is sold subject to such tenancy as set out in Part V of the First Schedule hereto. If no tenancy is set out in Part V of the First Schedule hereto, vacant possession of the Property shall be delivered to the Purchaser on completion.
(b)If the Property is sold subject to any existing tenancy agreement (the “Tenancy Agreement”), the Vendor shall on or after completion account and transfer to the Purchaser all rental deposits set out in Part V of the First Schedule hereto (the “Deposit”) which are being kept by the Vendor in his capacity as landlord of the Property (subject to such deductions which may be made by the Vendor in accordance with the terms of the Tenancy Agreement) on condition that the Purchaser shall procure the tenant set out in Part V of the First Schedule hereto (the “Tenant”) to sign a memorandum in substantially the form appearing in the Third Schedule hereto to release the Vendor’s obligation to refund the Deposit to the Tenant provided that the Purchaser as the new landlord shall on the expiration of the Tenancy Agreement account to the Tenant the Deposit and shall keep the Vendor fully and effectually indemnified against any loss damages and subsequent claim that may be sustained by the Vendor as a result of any claim by the Tenant which may be enforced against the Vendor for the refund of the Deposit. In the event that the Purchaser fails to obtain a signed memorandum from the Tenant as aforesaid, the Deposit shall be paid to and held by the Vendor’s solicitors as stakeholders who shall only release the same to the Tenant upon expiry of the Tenancy Agreement.
(c)The Vendor hereby expressly excepts and reserves unto the Vendor the right, after as well as before completion, to claim from the Tenant all arrears of rents and other moneys due and owing under the Tenancy Agreement up to and inclusive of the Completion Date and all damages in respect of any breach of the Tenancy Agreement before completion.
(d)This Clause shall survive completion of the sale and purchase of the Property.
8.(a)All stamp duty and registration fees payable on the agreement referred to in Paragraph (g) of Part VI of the First Schedule hereto (if any) (the “Provisional Agreement”), this Agreement and the subsequent Assignment shall be paid by the Purchaser absolutely.
(b)In the event of the consideration stated in the Provisional Agreement (if any), this Agreement and the subsequent Assignment not being accepted by the Collector of Stamp Revenue as representing the true value of the Property the additional stamp duties charged by him in accordance with his valuation of the Property shall be borne by the Purchaser absolutely. The Purchaser agrees to indemnify the Vendor against all claims made by the appropriate Government authority for the payment of such additional duties and until payment such liabilities of the Purchaser hereof shall despite completion hereof remain a charge on the Property vested in the Purchaser and shall be binding and enforceable against the Purchaser his assigns or successors in title or any persons claiming under or in trust for the Purchaser. The Purchaser’s duty to pay stamp duty under this Clause shall not cease even if this Agreement is cancelled, annulled or rescinded for whatever reason (other than due to the breach of this Agreement by the Vendor) and the Vendor is not obliged to return the monies paid under this Agreement to the Purchaser until the Purchaser shall have provided evidence to the satisfaction of the Vendor that the Purchaser has discharged his duty under this Clause.
(c)For the avoidance of doubt, it is hereby declared that this Clause shall survive completion of the sale and purchase of the Property.
9.(a)Notwithstanding the provisions contained in Clause 8 hereof, it is hereby agreed that if this Agreement is annulled or rescinded due to the Vendor’s breach, the Vendor shall bear the stamp duty.
(b)For the purpose of this Clause, the Vendor shall not be regarded as in breach of this Agreement and required to pay the stamp duty if he fails to deliver any of the furniture and chattels (if any).
10.(a)Each party shall pay his own solicitors’ costs and disbursements of and incidental to the preparation, approval, completion and registration of this Agreement and the subsequent Assignment. The approving costs of the Assignment shall be calculated in accordance with the Law Society scale charges based on the purchase price of the Property mentioned in Part II of the First Schedule hereto or in the subsequent Assignment whichever shall be the higher provided that if the purchase price mentioned in the subsequent Assignment shall be higher than the purchase price mentioned in Part II of the First Schedule hereto the excess of the approving costs charged by the Vendor’s solicitors shall be paid by the Purchaser.
(b)Without prejudice to sub-clause (a) of this Clause, if the Vendor shall be required to execute more than one Assignment of the Property or approve more than one draft Assignment, any additional approving costs charged by the Vendor’s solicitors shall be paid by the Purchaser. This sub-clause however does not entitle the Purchaser to require the Vendor to execute more than one Assignment of the Property if the Vendor is of the opinion that any partition of the Property is in contravention of any laws, regulations or provisions contained in any Government Grant(s), Deed of Mutual Covenant, Sub-Deed of Mutual Covenant and/or Management Agreement or other instruments affecting the Property.
11.The Purchaser has been advised that it would be difficult for the Vendor to transfer the insurance policy (if any) on the Property or the benefit thereof to the Purchaser and hence no such transfer will be made and the Purchaser is advised to take out proper insurance coverage on the Property for his own protection and benefit. Immediately after the signing of this Agreement, the Property shall as between the Vendor and the Purchaser be at the Purchaser’s risk.
12.(a)Any requisition or objection on title shall be delivered in writing to the Vendor’s solicitors within 7 working days after the receipt of the title deeds by the Purchaser’s solicitors and within 7 working days after the receipt of a reply from the Vendor’s solicitors answering the Purchaser’s solicitors.
(b)The Purchaser shall be deemed to have accepted the Vendor’s title if requisition or objection on title is not delivered to the Vendor’s solicitors within the time stipulated above (in which respect time shall be of the essence).
(c)If the Purchaser shall have made within the time stipulated above and shall insist on any objection or requisition either as to title or any matter appearing on the title deeds or otherwise which the Vendor shall be unable or (on the grounds of difficulty, delay or expense or on any other reasonable ground) unwilling to remove or comply with, the Vendor shall notwithstanding any previous negotiation or litigation be at liberty on giving to the Purchaser or his solicitors not less than 3 days’ notice in writing to annul the sale in which case unless the objection or requisition shall have been in the meantime withdrawn, the sale shall at the expiration of the notice be annulled. In this event, the Purchaser shall be entitled to the return of the deposits paid hereunder but without costs or compensation (and without interest if that return is made within 7 days) and the parties hereto shall at their own costs enter into and cause to be registered at the Land Registry an Agreement for Cancellation.
13.The Vendor hereby warrants and declares that the Property is not and does not form part of the subject matter of (i) any order for possession granted or deemed to have been granted by the Lands Tribunal under Section 53(2)(b) or (c) or Section 53(7F) of the Landlord and Tenant (Consolidation) Ordinance Cap.7 or (ii) any application to the Lands Tribunal for the grant of a new tenancy which has been successfully or deemed to have been successfully opposed under Section 119E(1)(b) or (c) or Section 119H(7) of the Landlord and Tenant (Consolidation) Ordinance Cap.7, within a period of 24 months immediately preceding the date of signing of this Agreement.
14.(a)The Vendor hereby warrants and declares that the Vendor has not received any notice from any Government or other competent authority requiring the Vendor to demolish or reinstate any part of the Property. If it should be discovered that such notice existed prior to the date hereof or if any such notice shall be served before the Completion Date, the costs for such demolition or reinstatement shall be borne by the Vendor.
(b)The Vendor hereby further warrants and declares that the Vendor has not received any notice from any Government or other competent authority or the manager or management committee of the building of which the Property forms part (the “Building”) requiring the Vendor as one of the coowners of the Building to effect repair to any common part of the Building. If it should be discovered that any such notice existed prior to the date hereof or if any such notice shall be served before the Completion Date the cost for such repair shall be borne by the Vendor.
(c)The Vendor hereby further warrants and declares that the Vendor has not received any notice under the Lands Resumption Ordinance Cap.124 or the Mass Transit Railway (Land Resumption and Related Provisions) Ordinance Cap.276 or any other form of notice of similar nature affecting the Property and has no knowledge whatsoever whether the Property is included in any layout plans (draft or approved) under the Town Planning Ordinance Cap.131. The Purchaser acknowledges that he has been advised by his solicitors that he should seek independent professional advice whether the Property is affected by the said Ordinances or any of them. If it shall be ascertained before completion of the purchase that the Property is affected by any of the said Ordinances, the Purchaser may by notice in writing to the Vendor rescind this Agreement in which event the deposits paid hereunder shall be returned by the Vendor to the Purchaser in full but without any costs or compensation (and without interest if that return is made within 7 days) and neither party shall have any claim against the other and the parties hereto shall at their own costs enter into and cause to be registered at the Land Registry an Agreement for Cancellation.
(d)The Vendor undertakes to notify the Purchaser forthwith upon receipt of any of the aforesaid notices.
15.(a)The parties hereto hereby declare that they fully understand and acknowledge that no other date than the date of the Provisional Agreement (if any) and the date of this Agreement pursuant thereto (which respective dates will be filled in the Questionnaire Form I.R.S.D.112(E) for stamping of this Agreement) may be claimed as the relevant dates for valuation of the Property once this Agreement has been submitted for stamping.