BERMUDA BAR ASSOCIATION GENERAL CONDITIONS OF SALE JANUARY 2003
THE GENERAL CONDITIONS 1. Deposit 1.1 The Purchaser shall on or before the date of this Agreement pay the Deposit to the Stakeholder as stakeholder in part payment of the Purchase Price. 1.2 The Deposit shall be paid by means of a cheque drawn on an attorney s client trust account, banker s draft, bank guaranteed cheque or by such other means as the Vendor in his absolute discretion shall agree. 1.3 The Stakeholder shall forthwith place the Deposit so paid in an interest bearing account and the accrued interest upon the same shall be paid to the Purchaser upon completion of this Agreement. 2. Formation The contract between the parties hereto is made when the Deposit has been paid to the Stakeholder and a complete copy of this Agreement has been signed by the last of the Vendor and Purchaser and dated. 3. Vendor s Title The Vendor shall deduce good title to the Property in accordance with established conveyancing practice in Bermuda and in accordance with Section 16 of the Conveyancing Act 1983 and shall forthwith make available to the Purchaser s Attorneys the documents of title to the Property. 4. Chattels 4.1 The Vendor warrants that he is entitled to sell the Chattels, (if any), free from any charge, lien, burden or adverse claim. 4.2 If the Property Price includes payment for the Chattels, (if any), the Chattels shall pass to the Purchaser by delivery on the Actual Completion Date. 5. Matters Affecting the Property 5.1 The Property is believed and shall be taken to be correctly described. No error, omission or misdescription of the Property other than a substantial or material error omission or misdescription shall invalidate this Agreement and entitle any party to rescind the same. If any substantial or material error, omission or misdescription is made by or on the part of the Vendor and is discovered before the Completion Date either party may: 5.1.1 by notice served upon the other rescind this Agreement; or 5.1.2 if such material error omission or misdescription affects the value of the Property either party may serve notice upon the other confirming their desire to proceed with the purchase or sale of the Property subject to the Purchase Price being varied by a sum equal to the reduction or increase in the value of the Property. 5.2 If the Vendor and the Purchaser are unable to agree upon the amount of the reduction or increase in the value of the Property on or before the Completion Date either party may refer the matter to be determined by arbitration in accordance with the provisions of General Condition 17 hereof. 5.3 Unless the Vendor is building or converting the Property the Purchaser accepts the Property in the physical state of repair and condition it is in at the date of this Agreement. 5.4 The following provisions apply if this Agreement states that any part of the Property is sold subject to a lease. 6. Planning Permission 5.4.1 The Vendor shall disclose to the Purchaser all the terms of the Lease and the Purchaser shall be treated as entering into this Agreement knowing and fully accepting the terms of the Lease. 5.4.2 The Vendor shall inform the Purchaser without delay if the Lease ends or if the Vendor learns of any application by the tenant in connection with the Lease; the Vendor is then to act as the Purchaser reasonably directs, and the Purchaser is to indemnify him against all consequent loss and expense. 5.4.3 The Purchaser shall indemnify the Vendor against all claims arising from the Lease after the Actual Completion Date save for any failures by the Vendor to comply with the Vendor s obligations as landlord prior to the Actual Completion Date. 6.1 Subject to the provisions of General Subcondition 6.3 below the Vendor warrants that no development as defined in the Planning Act has been carried out on the Property without planning permission first having been granted, or otherwise in contravention of the Planning Act or any condition contained in any planning permission granted for such development.
6.2 Notwithstanding the provisions of General Subcondition 6.1 above, if any such development shall have occurred which materially reduces the value of the Property, the Purchaser may:- 6.2.1 by notice served upon the Vendor rescind this Agreement and the Vendor shall forthwith pay the Purchaser s legal fees reasonably incurred in connection with this Agreement up to and including the date of rescission; or 6.2.2 serve notice upon the Vendor confirming his desire to proceed with his purchase of the Property subject to the Purchase Price being reduced by a sum equal to the said reduction in the value of the Property, such sum to be agreed between the Vendor and the Purchaser and in the absence of agreement to be determined by arbitration in accordance with the provisions of General Condition 17 hereof. 6.3 It shall be the responsibility of the Purchaser to enquire of the Department of Planning as to the truth of the warranty given in General Subcondition 6.1 and if the Purchaser fails to do so the Vendor shall not be liable under this warranty. 7. Subdivision The Vendor warrants that:- 7.1 He retains no interest in any land abutting the Property for which planning permission for subdivision of land is required; or 7.2 Planning permission for the subdivision of the Property has been granted and has not expired; or 7.3 The Property is the whole of a lot within a registered plan of subdivision; or 7.4 He will, at his own expense, submit an application to the Department of Planning for planning permission for the subdivision of the Property, and this Agreement shall be treated as being conditional upon the grant of such planning permission on or before the Completion Date or within such longer period as the Vendor and the Purchaser may agree in writing; 7.5 If planning permission for the subdivision of the Property is necessary but has not been obtained by the Completion Date (or within such longer period as the Vendor and the Purchaser may agree in writing) then the Vendor shall be deemed not to have deduced good title as per General Condition 3 and the Purchaser shall be entitled to rescind this Agreement. 8. Maintenance The Vendor will transfer the Property and the Chattels (if any) in the same physical state of repair and condition as they were at the date hereof (except for fair wear and tear), which means that the Vendor retains the risk for maintenance and repairs until completion. 9. Insurance 9.1 The Vendor shall, until the Actual Completion Date, comprehensively insure the buildings erected on the Property and the Chattels (if any) against loss or damage to their full reinstatement value with an insurance office of good repute. 9.2 If at any time before the Actual Completion Date damage occurs as a result of which the physical state of the Property makes it unusable for its purpose at the date hereof: 10. Consent to Sale 9.2.1 the Purchaser, as he may elect, may either: (a) (b) by notice to the Vendor rescind this Agreement; or proceed to complete his purchase of the Property as herein provided whereupon the Purchaser shall be entitled to the benefit of all insurance policies effected by the Vendor in respect of the Property. 9.2.3 the Vendor may rescind this Agreement by notice to the Purchaser where the Property has become unusable for its purpose as a result of damage against which the Vendor could not reasonably have insured, or which it is not legally possible for the Vendor to make good. 10.1 The following provisions apply if the title to the Property contains a covenant prohibiting the transfer of the Property otherwise than with the consent of any person. 10.2 The Purchaser shall apply for the consent with all due diligence and dispatch and the Vendor and the Purchaser shall use all reasonable efforts to obtain it. 10.3 Subject to General Subcondition 10.4, if, five Working Days before the Completion Date, the consent has not been given or has been given subject to a condition to which the Purchaser reasonably objects, either the Vendor or the Purchaser may, by notice to the other parties hereto, rescind this Agreement. 10.4 The Purchaser shall not be entitled to rescind this Agreement pursuant to General Subcondition 10.3 if he is in breach of his obligation under General Subcondition 10.2.
11. Deed of Transfer 11.1 The Purchaser shall deliver to the Vendor for approval a draft deed of transfer of the Property and a bill of sale (if required) of the Chattels, (if any), at least 4 Working Days before the Completion Date and the engrossment(s) of the approved drafts at least 2 Working Days before the Completion Date. 11.2 The deed of transfer of the Property shall contain a covenant by the Purchaser that the Purchaser will observe and perform any covenant or condition contained or referred to in the title deeds to the Property and will indemnify and keep the Vendor and his successors in title fully and effectually indemnified against all actions, proceedings, damages, costs, claims and expenses which may be suffered or incurred by the Vendor or his successors in title in respect of any future breach or non-observance or non-performance of such covenant or condition. 12. Apportionments 12.1 Income and expenses of the Property shall be apportioned between the Vendor and the Purchaser so far as the change of ownership on completion will affect entitlement to receive or liability to pay them. 12.2 In apportioning any sum, it is to be assumed that the Vendor owns the Property until the end of the Actual Completion Date. 13. Completion 13.1 Completion of the sale and purchase and payment of the Completion Money shall take place on the Completion Date at the offices of the Vendor s Attorneys or where they may direct. 13.2 If the Completion Money is received after 4:00 p.m. on a Working Day, or on a day which is not a Working Day, completion is to be treated as taking place on the next Working Day. 13.3 The Purchaser is to pay the Completion Money in one or more of the following ways: 13.3.1 a cheque drawn on an attorney s client trust account; 13.3.2 an unconditional release of the Deposit held by the Stakeholder; 13.3.3 a banker s draft; 13.3.4 a bank guaranteed cheque. 13.4 If the Completion Money is not paid as aforesaid but is paid by direct credit to a bank account then it shall be treated as having been received when the bank to which it is transferred notifies the Vendor s Attorneys that it has been received. 14. Notice to Complete 14.1 At any time on or after the Completion Date, the Vendor or the Purchaser who is ready, able and willing to complete may give the other a Notice to Complete. 14.2 The parties are to complete the sale and purchase of the Property and Chattels (if any) within 10 Working Days of giving a Notice to Complete excluding the day on which the notice is given. For this purpose, time is of the essence of this Agreement. 14.3 The service of a Notice to Complete by the Vendor or the Purchaser shall not prejudice any right of either party to rescind this Agreement. 15. Remedies 15.1 Rescission If either the Vendor or the Purchaser rescinds this Agreement: 15.1.1 unless the rescission is a result of the Purchaser s breach of contract the Deposit is to be repaid to the Purchaser with accrued interest; and 15.1.2 the Purchaser is to return any deeds or documents he received from the Vendor; and 15.1.3 the party not in default may claim damages. 15.2 Late Completion If the Vendor or the Purchaser fails to complete on the Completion Date in accordance with the terms of this Agreement and such failure cannot be attributed wholly to the other party s default: 15.2.1 the Vendor or the Purchaser as appropriate shall pay compensation to the other. Compensation is calculated at the Interest Rate on the Purchase Price, less the Deposit, for the period between the Completion Date and the Actual Completion Date; and 15.2.2 the Vendor shall be entitled to the income from the Property until the Actual Completion Date.
15.3 Purchaser s Failure to Comply with Notice to Complete If the Purchaser fails to complete in accordance with a Notice to Complete, the following terms apply: 15.3.1 The Vendor may rescind this Agreement, by notice to the Purchaser hereto and if he does so he may: (a) (b) (c) forfeit and keep the Deposit and accrued interest; and/or resell the Property and the Chattels (if any); and/or claim damages. 15.3.2 The Vendor retains his other rights and remedies. 15.4 Vendor s Failure To Comply With Notice To Complete 16. Legal Fees If the Vendor fails to complete in accordance with a Notice to Complete the Purchaser may by notice to the Vendor hereto rescind this Agreement or seek specific performance or such other legal remedies as may be available to him. 16.1 Subject as provided in this General Condition 16, where the Vendor and the Purchaser are represented by separate attorneys, the Vendor and the Purchaser shall be separately liable, each to his own attorney, but not to the attorney of the other, for all legal costs incurred in connection with the negotiation of this Agreement and the provision of advice and other services in respect of this Agreement and the sale and purchase of the Property and the Chattels, (if any). 16.2 The legal costs incurred in connection with the preparation of this Agreement and stamp duty shall be paid by the Vendor and the Purchaser in equal shares. 16.3 The legal costs and disbursements incurred in connection with the preparation by the Purchaser s Attorneys of the deed of transfer of the Property and, if required, the bill of sale of the Chattels and the stamp duties payable thereon shall be paid by the Vendor and the Purchaser in equal shares. 16.4 The legal costs incurred in connection with any application by the Purchaser for a Licence or Sanction to acquire the Property together with any fee payable in respect of the same shall be paid by the Purchaser. 16.5 The legal costs incurred in connection with the preparation by the Purchaser s Attorneys of any mortgage of the Property together with the stamp duty payable thereon and the registration fees payable therefor shall be paid by the Purchaser. 16.6 The legal costs incurred in connection with the preparation of any reconveyance or reassignment of the Property together with the stamp duty payable thereon shall be paid by the Vendor. 17. Arbitration 17.1 Any dispute or controversy arising out of or in connection with this Agreement shall be referred to and determined by a sole arbitrator unless specific performance is being sought by one of the parties. 17.2 The arbitrator shall be appointed by agreement between the parties or, in default of agreement, determined by the President of The Bermuda Bar Council. 17.3 Any such arbitration shall be held in Bermuda. 17.4 The procedure to be followed shall be agreed by the parties or, in default of agreement, determined by the arbitrator. 17.5 In the event of default by any party in respect of any procedural order made by the arbitrator, the arbitrator shall have power to proceed with the arbitration and to deliver his award. 18. Disclaimer The Purchaser admits that: 18.1 he enters into this Agreement solely as a result of his own inspection of the Property and the Chattels, (if any), and on the basis of the terms of this Agreement and not in reliance upon any representation or warranty either written or oral or implied made by or on behalf of the Vendor. 18.2 this Agreement contains the entire agreement between the parties. 19. Restriction on Assignment 19.1 This Agreement is personal to the Purchaser and shall not be capable of assignment without the Vendor s consent such consent not to be unreasonably withheld or delayed.
19.2 Subject to General Subcondition 19.1 the Vendor shall not be required to transfer the Property or the Chattels, (if any), to anyone other than the Purchaser named in this Agreement. 20. Merger on Completion 21. Notices The provisions of this Agreement shall not merge on completion of the deed of transfer of the Property insofar as they remain to be performed or in circumstances where merger would be clearly inconsistent with the terms hereof. 21.1 A notice required or authorised by this Agreement must be in writing and shall be delivered by hand or transmitted by facsimile to the addressee. 21.2 Giving a notice or delivering a document to a party s attorney has the same effect as giving or delivering it to that party. 21.3 Subject to the following provisions of this General Condition 21 a notice is given when it is received. 21.4 If a notice is received after 4:00 p.m. on a Working Day, or on a day which is not a Working Day, it is to be treated as having been received on the next Working Day. 21.5 Unless the actual time of receipt is proved, a notice delivered by hand or transmitted by facsimile is to be treated as having been received before 4:00 p.m. on the day of such delivery or transmission. 22. Governing Law and Variation This Agreement shall be governed and construed in all respects by and in accordance with the laws of the Islands of Bermuda and may be modified or varied only by an instrument in writing signed by all the parties hereto.