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THIS AGREEMENT is made the 2nd day of January 1998. BETWEEN:
(1) OVERLORD INVESTMENT COMPANY LIMITED whose registered office is situate at
00xx Xxxxx, Xx. 0 Xxxxxxxx Xxxx, Xxxx Xxxx (the "Vendor") and
(2) EXCEL ACCESS LIMITED whose registered office is situate at Room 1B, 26th
Floor, Lucky Xxxxxxxxxx Xxxxxx, 000 Xxx Xxxxx Xxxx, Xxxxxxx, Xxxx Xxxx
(the "Purchaser").
WHEREAS:
(1) By an Agreement for Sale and Purchase dated 24th September 1996 made
between Mid-Levels Portfolio (Xxxxxxxx) Limited (the "Head Vendor") as
vendor of the one part and the Vendor as purchaser of the other part (the
"Principal Agreement") the Head Vendor agreed to sell and the Vendor
agreed to purchase All Those premises more particularly described in the
First Schedule hereto (the "said premises") for the price and upon the
terms and conditions set out therein.
(2) The Vendor has agreed to sell and the Purchaser has agreed to purchase
the said premises for the price of HK$15,050,000.00 subject to the
Principal Agreement and upon the terms and conditions hereinafter
contained.
IT IS HEREBY AGREED by and between the parties hereto as follows:
1. The Vendor shall sell and the Purchaser shall purchase All Those the said
premises and all the estate right title property claim and demand
whatsoever of the Vendor therein and thereto subject to the Principal
Agreement.
2. (a) The purchase money shall be HK$15,050,000.00 which shall be paid
by the Purchaser in manner set out in the Second Schedule hereto.
(b) In respect of each payment of the purchase price or any part thereof
required to be made hereunder, the Purchaser shall deliver to the
Vendor's solicitors on the date on which such payment is required to
be made hereunder a cashier order issued or a cheque certified good
for payment by a licensed bank in Hong Kong in favour of the Vendor
and/or the person(s) or party(ies) entitled to such payment(s) for the
relevant amount.
(c) Without prejudice to any other remedy hereunder, the Vendor shall be
entitled to demand and receive payment of interest on the amount of
any part of the purchase price not paid on its due date at the rate of
2% per annum above the prime rate specified by The Hongkong and
Shanghai Banking Corporation Limited from time to time calculated from
the date on which the same ought to have been paid by the Purchaser to
the date of actual payment.
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3. The purchase shall be completed at the offices of Messrs. P.C. Woo & Co.
during the office hours of 10:00 a.m. to 12:00 noon on weekday and 10:00
to 10:30 a.m. on Saturdays within 13 days of the Purchaser being notified
in writing that an occupation permit or a temporary occupation permit
covering the said premises has been issued and the Head Vendor is in a
position validly to assign the said premises to the Purchaser. Any
notification given pursuant to this Clause shall be deemed to have been
validly given if sent by post to the Purchaser at the address of the
Purchaser last known to the Vendor or its solicitors and shall be deemed
to have been received on the expiry of 48 hours after the date of posting.
4. The Vendor declares that Messrs. P.C. Woo & Co. are the Vendor's Agents
(the "Agents") for the purposes of receiving all moneys payable to the
Vendor pursuant to this Agreement including the balance of the purchase
money payable upon completion.
5. The Vendor further declares that the payment to the Agents of any
deposit, instalments of the purchase money (if any) and the balance
thereof shall be a full and sufficient discharge of the Purchaser's
obligations hereunder.
6. The Vendor may revoke the authority of the Agents and appoint other
solicitors as agents in their place. No such revocation shall be valid
unless it:
(a) is in writing addressed to the Purchaser; and
(b) is delivered to the Purchaser care of Messrs. Xxxx & Partners, his
solicitors, at least seven clear days prior to completion; and
(c) specifically identified this Agreement.
7. On completion, the Vendor shall procure that the Head Vendor will execute
a proper assignment or other assurance of the said premises direct to the
Purchaser free from incumbrances but subject to the Government Grant
specified in the First Schedule hereto and the Vendor will also join in to
execute such Assignment as confirmor to assign and confirm the said
premises to the Purchaser and the purchaser shall be entitled to vacant
possession of the said premises from the date of completion.
8. On completion, the Purchaser shall pay the balance of the purchase price
as described in the Second Schedule hereto to the Vendor together with
arrears interest thereon which may become payable under Clause 2(c) hereof
and the Purchaser shall further pay to the Manager appointed under the
Deed of Mutual Covenant in respect of the said premises such sum and
deposits specified in Clause 6(b) to (h) of the Principal Agreement and
shall also pay all utility deposits required to be made in respect of the
said premises.
9. Any requisitions or objections in respect of the title or otherwise
arising out of this Agreement shall be delivered in writing to the
Vendor's solicitors within seven business
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days after receipt of the title deeds by the Purchaser's solicitors. The
Purchaser shall be deemed to the satisfied with the title to the said
premises and to have accepted the Vendor's title to the said premises if
requisitions on and/or objections to the Vendor's title are not delivered
to the Vendor's solicitors within the time aforesaid or if no further
requisitions or objections are raised within seven business days after
the reply by the Vendor's solicitors to the requisitions or objections
raised by the Purchaser or the Purchaser's solicitors and in this respect
time shall be of the essence of the agreement. If the Purchaser shall
make and insist on any objection or requisition in respect of the title
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
negotiations or litigation, be at liberty on giving to the Purchaser or
his Solicitors not less that five working days' notice in writing to
annual 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 the Purchaser in that event entitled to a return
of the deposit and other sums of money already paid on account of the
purchase money forthwith but without interest, costs or compensation
provided such refund is made within 7 days from the date of rescission.
10. (a) The said premises are sold subject to and with the benefit of the
Government Grant and for the residue of the term of years created
thereby and with any right of renewal thereby granted and subject to
all easements (if any) subsisting therein.
(b) No error mis-statement or mis-description shall annul the sale nor
shall any compensation be allowed in respect thereof save and except
where such error mis-statement or mis-description relates to matter
materially and adversely affecting the value or user of the said
premises.
11. Such of the title deeds and documents as relate exclusively to the said
premises will be, at the cost and expenses of the Purchaser, delivered to
the Purchaser. All other title deeds and documents in the possession of
the Vendor will be retained by him and he will, if required, give to the
Purchaser a covenant for production and delivery of copies and for sale
custody thereof to be prepared by and at the expense of the Purchaser.
12. (a) Subject as hereinafter provided each party shall bear his own
solicitors' costs of an incidental to the preparation completion and
registration of this Agreement.
(b) The Purchaser shall pay to Messrs. P.C. Woo & Co. Solicitors, a due
proportion of the costs of and incidental to the preparation stamping
registration and completion of the Deed of Mutual Covenant and
Management Agreement (if any) and the plans thereto referred to in the
Principal Agreement or the entire costs of a certified copy thereof
(including the fees for preparation of the plans to such certified
copy).
(c) The architect's fees for the plan(s) to be annexed to the Assignment
shall be borne
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and paid by the Purchaser.
(d) Each party shall bear his own solicitors' costs of and incidental to
the preparation approval and execution of the Assignment Provided
Further that if the Purchaser shall request the Vendor and/or the Head
Vendor to execute more that one assignment in respect of the said
premises the Purchaser shall on completion pay the additional costs
charged by the Vendor's and/or the Head Vendor's solicitors (at half
scale costs) for their approval; and if the Purchaser requires the
Vendor and/or the Head Vendor to assign the said premises to his
nominee or sub-purchaser the Purchaser shall on completion pay the
additional costs charged by the Vendor's and/or the Head Vendor's
solicitors for the perusal of any instrument of Nomination or Sub-sale
Agreement.
13. (a) The stamp duty and land registration fees payable pursuant to this
sale and purchase shall be borne by the Purchaser.
(b) The Purchaser shall indemnify the Vendor against all claims
proceedings actions brought by the Collector of Stamp Revenue against
the Vendor arising from a breach of this Clause which shall survive
completion.
(c) The parties hereto hereby declare that they fully understand and
acknowledge that no other date than the date of the preliminary
agreement specified in paragraph 7 of the Third Schedule hereto, the
date of this Agreement and the date of the subsequent Assignment
pursuant hereto (which respective dates will be filled in the
Questionnaire Form I.R.S.D.26 for stamping purpose) may be claimed as
the relevant dates for valuation of the said premises.
(d) There shall if the Vendor so requires be included in the Assignment a
covenant in favour of the Vendor and/or the Head Vendor by the
Purchaser to perform his obligation under this Clause and such
covenant shall be expressed to be one which is annexed to the said
premises and binding on the Purchaser his executors administrators
successors in title and assigns.
14. The Vendor shall show a good title to the said premises at is own expense
and produce to the Purchaser for his perusal such certified or other
copies of any deeds or documents of title, xxxxx and matters of public
record as may be necessary to complete such title. The costs of verifying
the title, including search fees shall be borne by the Purchaser who shall
also if he requires certified copies of any documents in the Vendor's
possession relating to other property retained by the Vendor as well as to
the said premises pay the costs of such certified copies.
15. Time shall in every respect be of the essence of this Agreement.
16. Should the Purchaser fail to observe or comply with any of the terms and
conditions
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herein contained, the Vendor may give to the Purchaser notice in writing
calling upon the Purchaser to make good his default and in the event of the
Purchaser failing within fourteen days from the date of service of such
notice fully to make good his default the Vendor may by a further notice in
writing forthwith determine this Agreement and the Vendor shall thereupon
be entitled to re-enter upon the said premises and repossess the same if
possession shall have been given to the Purchaser free from any right or
interest of the Purchaser therein and the Vendor shall be entitled to
forfeit all the deposits paid hereunder. Upon determination of this
Agreement, the Vendor may resell the said premises either by public auction
or by private contract subject to such stipulations as the Vendor may think
fit and any increase in price on resale shall belong to the Vendor.
Without prejudice to the Vendor's right to recover the actual loss which
may flow from the Purchaser's breach of this Agreement, on such resale any
deficiency in price shall be made good and all expenses attending such
resale shall be borne by the Purchaser and such deficiency and expenses
shall be recoverable by the Vendor as and for liquidated damages. On the
exercise of the Vendor's right to determine this Agreement as aforesaid the
Vendor shall have the right, if this Agreement shall have been registered
at the Land Registry or any New Territories Land Registry, to register at
the Land Registry or the relevant New Territories Land Registry a Memorial
signed by the Vendor evidencing such determination. Upon registration of
such Memorial in the Land Registry, a tenant, purchaser, mortgagee or any
other person dealing with the Vendor shall not be bound to see or enquire
whether the Vendor or the Purchaser was entitled to terminate and/or
rescind and/or annul this Agreement and so far as regards the safety and
protection of any such tenant, purchaser, mortgagee or any other person
this Agreement shall be deemed to have been duly terminated and/or
rescinded and/or annulled and the remedy (if any) of the Purchaser against
the Vendor shall be in damages only. If the Purchaser shall have entered
into possession of the said premises, he shall forthwith vacate the same.
17. In the event of the Vendor failing to complete the sale in accordance
with the terms hereof, then all deposit moneys paid by the Purchaser to
the Vendor shall be returned to the Purchaser forthwith who shall also be
entitled to recover from the Vendor such further damages (if any) over and
above the deposits as the Purchaser may sustain by reason of such failure
on the part of the Vendor, it shall not be necessary for the Purchaser to
tender an Assignment to the Vendor for execution before taking proceedings
to enforce specific performance of this Agreement.
18. (a) The Purchaser acknowledges that he is aware of the fact that the
Property is now charged by the Vendor to Standard Chartered Bank
(hereinafter called the "Lender") under an Equitable Mortgage
Memorial No. 6791833 (hereinafter called the "Equitable Mortgage").
The Purchaser hereby expressly agrees and declares that
notwithstanding the Equitable Mortgage the Purchaser consents to the
deposit money mentioned in Second Schedule being paid and released
to the Vendor Provided such release and payments also complied with
the conditions and terms of the Second Schedule and waivers any
claims or demand against Messrs. P.C. Woo & Co. in respect of the
payment and release of the deposit
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money to the Vendor.
(b) The Vendor warrants that the balance of purchase price
payable by the Purchaser hereunder shall be sufficient to discharge
the Equitable Mortgage.
(c) The Vendor hereby agrees and undertakes to discharge the
Equitable Mortgage on or before completion of the sale and purchase
hereof.
(d) And the Vendor agrees to send to the Purchaser a certified
true copy of the Power of Attorney (if applicable) supporting the
execution of the said discharge and if such Power of Attorney is
executed more than 12 months prior to the execution of the said
discharge, a Statutory Declaration to be made by the Vendor under
section 5(4) of the Powers of Attorney Ordinance (Chapter 31) that
at the time of the execution of the said discharge in favour of the
Vendor, the Vendor did not know of the revocation of the Power of
Attorney under which the said discharge was executed to the Vendor
or a confirmation from the Chargee that the Power of Attorney was
still valid and subsisting at the material time.
19. The Vendor is selling the said premises as confirmor under and by virtue
of the Principal Agreement and will only be required to give in the
subsequent Assignment the usual limited covenant that the Vendor has not
encumbered the said premises.
20. The Agreement is subject to and with the benefit of the Principal
Agreement and the Purchaser agrees and undertakes to be bound by and
observe and perform all the terms and conditions contained in the
Principal Agreement as if the Purchaser were a party thereto insofar as
such terms and conditions are not inconsistent with or inapplicable to the
terms and conditions herein contained.
21. (a) The Vendor hereby agrees and undertakes with the Purchaser that:
(i) the Vendor will duly perform and observe all the terms and
conditions contained in the Principal Agreement; and
(ii) in the event of any breach or non-performance or any term or
condition in the Principal Agreement on the part of the Head
Vendor, the Vendor will, upon being required by the Purchaser so
to do, (at the cost and expense of the Purchaser and subject to
the indemnity hereinafter contained) take all necessary steps and
actions which are reasonable and prudent to procure the due
performance and observance by the Head Vendor of its obligation
and the terms and conditions under the Principal Agreement
Provided that the Purchaser shall indemnify the Vendor against all
losses, costs, expenses, claims, damages, liabilities and actions
which the Vendor may incur or sustain as a result of taking any
such step or action.
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(iii) the Principal Agreement is good, valid and enforceable in full
force and effect.
(b) In the event of the Vendor becoming entitled to exercise any
right of rescission under the Principal Agreement, the Vendor shall,
within 5 working days after the Vendor becomes aware of the
existence of such right, notify the Purchaser in writing of such
right, and irrespective of whether or not such notice has been given
by the Vendor, the Purchaser shall, notwithstanding any provisions
herein contained to the contrary, be entitled to rescind this
Agreement by serving written notice of rescission on the Vendor. In
addition, the Purchaser shall be entitled within 5 working days
after the receipt of such notification by the Vendor to direct the
Vendor in writing to refrain from exercising such right and the
Vendor shall not exercise any right of rescission under the
Principal Agreement unless the direction is revoked by the Purchaser
or unless the Purchaser shall fail to give any direction to the
Vendor within 5 working days of receipt of the Vendor's notice under
this sub-clause, in which event, the Vendor shall be entitled to
exercise or to refrain from exercising such right of rescission as
the Vendor may think fit.
(c) The Purchaser shall indemnify the Vendor against all losses,
costs, expenses, damages, liabilities, claims and actions which the
Vendor may incur or sustain as a result of the Vendor refraining
from exercising any right of rescission under the Principal
Agreement pursuant to the direction of the Purchaser.
(d) The Purchaser shall not be entitled to exercise the right of
rescission under clause 21(b) above if (i) the Purchaser has given
direction to the Vendor to refrain from exercising any right of
rescission under the Principal Agreement; (ii) such direction
remains unrevoked and (iii) the Vendor has not acted contrary to
such direction.
(e) In the event of the Purchaser serving notice of rescission on
the Vendor pursuant to clause 21(b) above or in the event of the
Vendor exercising any right of rescission under the Principal
Agreement where the Purchaser has failed to give any direction
pursuant to clause 21(b) above or such direction has been revoked by
the Purchaser, then (without prejudice to the rights of the Vendor
under clause 21(c) above), this Agreement shall be rescinded and the
Vendor shall repay to the Purchaser all or such part of the purchase
price as shall have been paid by the Purchaser, the payment of such
amounts to be in full and final settlement of all claims by the
Purchaser against the Vendor hereunder.
(f) If the Head Vendor fails to complete the building within the
specified period provided in the Principal Agreement and the Vendor
elects to wait for completion, the Vendor shall on completion
account and pay to the Purchaser all interest payable by the Head
Vendor to the Vendor under the Principal Agreement due to delay in
completing the building.
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(g) The Vendor shall not without the prior written consent of the
Purchaser:
(i) make or agree any amendment or modification to be made to the
Principal Agreement;
(ii) agree to the cancellation or termination of the Principal
Agreement; or
(iii) agree to waive or to release any of the obligations of the Head
Vendor under the Principal Agreement.
22. Any notice required to be given hereunder shall be deemed to have been
validly given if addressed to the party to whom the notice is given and
sent by ordinary prepaid post to the address of such party above given or
to his last known address if a notification of the change of address has
previously been given to the other party or his solicitors and shall be
deemed to have been served on the expiry of forty eight hours after the
date of posting.
23. This Agreement supersedes a Provisional Agreement dated 18th December
1997 made between the parties on the same terms and all representations
made by any party or its agent to the other of the parties hereto prior to
the signing of the said Provisional Agreement and this Agreement.
24. It is hereby declared that (if the context permits or requires) the
singular number shall include the plural and the masculine feminine and
neuter genders shall include the others of them.
25. The sale and purchase herein shall include the furniture and fixtures
more particularly described in the "Inventory of Furniture" annexed
hereto.
26. For the purpose of Section 29B(1) of the Stamp Duty Ordinance the parties
specify and declare the information disclosed in the Third Schedule hereto
to be true to the best of their knowledge and belief.
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THE FIRST SCHEDULE
The Property
All Those 80 equal undivided 9, 100th parts or shares of and in INLAND LOT NO.
8213 and of and in Xxxxxxxx ( ) No. 00 Xxx Xxxx, Xxxx Xxxx
(the "Development") together with the sole and exclusive right and privilege to
hold use occupy and enjoy All That Flat A on the 33rd Floor of the Development.
The Government Grant
The Government Lease for the term of 75 years commencing from 21st August 1911
with an option of renewal for one further term of 75 years deemed to have been
granted pursuant to Section 14(1) of the Conveyancing and Property Ordinance
(Cap. 219) upon deemed compliance with the terms and conditions of certain
Agreement and Conditions of Exchange dated 24th March 1970 made between His
Excellency the Governor and Xxxxxxxxx Estate and Finance Company, Limited and
deposited and registered in the Land Registry as Conditions of Exchange No.
9660, as varied or modified by a Modification Letter dated 1st June 1995 and
registered in the Land Registry by Memorial No. 6314901 and shall include any
subsequent extensions or other variations or modifications thereto or renewals
thereof.
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THE SECOND SCHEDULE
The purchase money mentioned in Clause 2 hereof shall be paid by the Purchaser
as follows:
(1) HK$752,500.00 being the initial deposit and in part payment of
purchase price which has been paid by the Purchaser
to the Vendor direct prior to the signing of this
Agreement.
(2) HK$752,500.00 being the further deposit and in part payment of
purchase price to be paid by the Purchaser to the
Vendor upon the signing of this Agreement. The said
further deposit to be paid to the Vendor's solicitors
as stakeholders who may release the same to the
Vendor provided that the balance of purchase price is
sufficient to discharge the Equitable Mortgage
Memorial No. 6791833 and the title of the said
premises has been accepted by the Purchaser's
solicitors pursuant to Clause 9 hereof.
(3) HK$13,545,000.00 being the balance of purchase price to be paid on
completion of Assignment.
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THE THIRD SCHEDULE
1. The name and address of the Vendor and of the Purchaser of the Property:
Please see page 1 of this Agreement.
2. If the Vendor or Purchaser is an individual, his identification number:
Not applicable
3. If the Vendor or Purchaser is not an individual but is registered under
the Business Registration Ordinance (Cap. 310), the business registration
number of the Vendor or Purchaser:
Please see page 1 of this Agreement
4. The description and location of the said premises:
Please refer to the First Schedule of this Agreement
5. A statement as to whether the said premises is residential property or
non-residential property, within the meanings of Section 29A(1) of the
Stamp Duty Ordinance:
The said premises is residential property
6. The date on which the agreement for sale was made:
Please see page 1 of this Agreement
7. If the agreement for sale was preceded by an unwritten sale agreement, or
an agreement for sale, made between the same parties and on the same
terms, the date on which the first such agreement was made:
The 18th day of December 1997
8. A statement as to whether or not a date has been agreed for a conveyance
on sale pursuant to the agreement for sale and, if so, that date:
Please see clause 3 of this Agreement
9. A statement as to whether or not there is an agreed consideration for the
conveyance on sale that is to, or may, take place pursuant to the
agreement for sale and, if so, the amount of value of the consideration:
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Please see clause 2 of this Agreement
10. The amount or value of any other consideration which each person
executing the document knows has been paid or given, or has been agreed to
be paid or given, to any person for or in connection with the agreement
for sale or any conveyancing on sale pursuant to that agreement (excluding
legal expenses), together with the name, address, and the identification
number or business registration number of each person receiving or to
receive such consideration, and a description of the benefit to which the
consideration relates:
Estate agent's commission payable by the Vendor: HK$150,500.00
Estate agent's commission payable by the Purchaser: HK$150,500.00
Name of Agent:
Address of Agent:
Business Registration No.:
N/A
11. If the Purchaser has not executed the agreement, a statement as to
whether or not, to the best of the knowledge of each person executing the
agreement, the Purchaser knew, at the time the agreement was made, that it
affected him:
Name:
HKID Card No.:
N/A
"INVENTORY OF FURNITURE"
All the fitting and fixtures to be provided by the Head Vendor.
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SIGNED by Xxxxx Xxxx Xxxx Xxxxx )
) OVERLORD INVESTMENT CO LTD.
for and on behalf of the Vendor in the )
presence of: )
SIGNED by Xxxxx Xxx Po )
Director ) EXCEL ACCESS LIMITED
for and on behalf of the Purchaser in the )
presence of: )
RECEIVED the above-mentioned sum of )
DOLLARS SEVEN HUNDRED FIFTY )
TWO THOUSAND FIVE HUNDRED ) OVERLORD INVESTMENT CO LTD.
ONLY (being the initial deposit and in part )
payment of purchase price). ) the Vendor
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Dated the 2nd day of January 1998
OVERLORD INVESTMENT COMPANY LIMITED
to
EXCEL ACCESS LIMITED
____________________________________________
AGREEMENT
for Sub-sale and Purchase
of
80 equal undivided 9,1000th parts or shares
of and in Inland Lot No. 8213 (Flat A on
00xx Xxxxx xx Xxxxxxxx Xx. 00 Xxx Xxxx,
Xxxx Xxxx)
____________________________________________
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