PUT AND CALL OPTION DEED. Civic Administration Building Church Street, Dubbo in the State of New South Wales

Transcription

1 PUT AND CALL OPTION DEED THIS DEED is made on the day of 201# BETWEEN: DUBBO REGIONAL COUNCIL ABN of : Civic Administration Building Church Street, Dubbo in the State of New South Wales ( the Grantor ) AND: ## ACN ## ABN ## of: in the State of New South Wales ( the Grantee ) RECITALS: A. The Grantor is the registered proprietor of property comprised in Certificate of Title part Folio Identifiers 11/ , 12/ , 13/ and 14/ and 102/ and known as Lot # Stage 3A Release 4 Keswick Estate Dubbo (the Property). B. The Grantor at the request of the Guarantors has agreed to grant to the Grantee (or Nominee) an option to purchase the Property (the Call option ). C. Subject to the provisions of this Deed the Grantee has agreed to grant the Grantor an option to sell the Property to the Grantee (the Put option ). D. The parties acknowledge and agree that the property is residential property and therefore subject to section 66ZG of the Conveyancing Act This option cannot be exercised within 42 days of the date of this Deed.

2 THE PARTIES COVENANT: Interpretation 1. In this Deed unless a contrary intention appears: (a) Agreement includes any agreement or covenant arising out of or in connection with this Deed; Business day means any day in which banks are open in New South Wales; Call option means the option granted under clause 2; Call option expiry date means the date: i. three (3) months from the date of this Deed; or ii. fourteen (14) days from the date of registration of the plan of subdivision attached to the Contract; whichever is the later date. Conditional Option Fee means the sum of $5, (plus GST); Contract means the Contract for Sale of Land attached and marked A ; Notice of exercise of call option means a document substantially in the form specified in Schedule 1; Notice of exercise of Put option means a document substantially in the form specified in Schedule 2; Nominee means any person or other entity nominated by the Grantee to exercise the Call option; Property has the same meaning as in the Contract; Put option means the option granted under clause 3; Put option expiry date means the date being fourteen (14) days after Call option expiry date. (b) (c) (d) (e) The singular includes the plural and vice versa. Words importing a gender include every other gender. Person or party includes an individual, firm, body corporate, association (whether incorporated or not) government or governmental, semigovernmental and local authority or agency, and if an individual, that individual s executors, administrators and permitted assigns. The Schedules from part of this Deed.

3 (f) (g) Headings are for convenience of reference only and will not affect the construction or interpretation of this Deed. Where a party to this Deed is more than one person they are jointly and separately liable under the terms of this Deed. 2. Call Option (a) The Grantor grants to the Grantee (or Nominee) an option to purchase the Property for the Price described in the Contract. (b) The Grantee (or Nominee) must in order to exercise the Call option: i. serve the Notice of exercise of the Call option on the Grantor by 5.00pm on the Call option expiry date; and ii. deliver the Grantor s Solicitor at the same time a bank cheque payable to the Grantor for the amount equal to the difference between the deposit payable under the Contract and the Conditional Option Fee; and iii. deliver to the Grantor s Solicitor at the same a Certificate issued pursuant to section 66W of the Conveyancing Act 1919 executed by the solicitor for the Grantee (or Nominee); whereupon the Contract will have been made between the Grantor, the Grantee (or Nominee) and the Guarantors. (c) The parties to the Contract will forthwith thereafter exchange executed counterparts of the Contract but the making of the Contract will not be dependent upon such exchange taking place. (d) The Contract date will be the date the Contract is made in accordance with sub-clause (b) of this clause. (e) However, notwithstanding any other provision of this Deed the Call option cannot be exercised any earlier than forty two (42) days after the date on which the Call option is granted. (f) The Grantee may at the time Call option is exercised by written notice delivered to the Grantor nominate some other person or persons as Nominee in which case such Nominee shall thenceforth succeed to the Grantee s rights hereunder and the Contract shall be deemed to be made between the Grantor, the Nominee and the Guarantors and the name of the Nominee will be inserted in the Contract as Purchaser.

4 3. Put Option (a) The Grantee grants to the Grantor an option to sell the property for the Price described in the Contract subject to the terms specified below: i. The Put option will be exercisable on or before 5.00pm on the Put option expiry date by the Grantor serving on the Grantee a Notice of exercise of the Put option whereupon the Contract will have been made between the Grantor, the Grantee and the Guarantors; ii. the parties to the Contract will forthwith thereafter exchange executed counterparts of the Contract but the making of the Contract will not be dependent upon such exchange taking place. The Contract date will be the date the Contract is made in accordance with sub-clause (i) of this clause; iii. the Grantee must deliver to the Grantor s solicitor a bank cheque payable to the Grantor for the amount equal to the difference between the deposit payable under the Contract and the Conditional Option Fee within five (5) business days after the Contract is made time being of the essence; iv. the Put option will only be exercisable by the Grantor if the Call option has not been exercised in accordance with clause 2(b). 4. Payment of Conditional Option Fee The Conditional Option Fee is payable by the Grantee to the Grantor upon the making of this Deed. 5. Conditional Option Fee on non-exercise of option Should: i. the Grantee (or Nominee) not exercise the Call option; and ii. the Grantor not exercise the Put option; then the Conditional Option Fee, together with all interest accrued thereon,(if any) will be absolutely forfeited to the Grantor. 6. Conditional Option Fee on exercise of option

5 Should: i. the Grantee (or Nominee) exercise the Call option; or ii. the Grantor exercise the Put option; then the Conditional Option Fee will be deemed to comprise part of the deposit or other monies payable under the Contract and be held under the same terms as provided for in the Contract. 7. Notices (a) Any notice to be served by a party on another under this Deed must be in writing and is: i. signed by a party if it is signed by the party or the party s solicitor; ii. served if it is served by the party or the party s solicitor; iii. served if it is served on the party s solicitor even if the party has died or any of them has died; iv. served if it is served in any manner provided in s170 of the Conveyancing Act 1919; v. served on a day if it is sent by facsimile transmission to the party s solicitor before 5:00pm on that day, unless it is not received; vi. served on the next business day if it is sent by document exchanged to the party s solicitor; vii. served at the earliest time it is served, if it is served more than once. (b) A party may notify all other parties in writing of a new address for service at any time which will be effective after such written notice has been served on all other parties in accordance with this clause. 8. Assignment The Grantee and the Guarantors do not have the right to assign any of their rights, benefits or obligations under this Deed without the prior written consent of the Grantor, which consent may be given or with held in the complete discretion of the Grantor. 9. Proper Law This Deed is governed by and construed in accordance with the laws of New South Wales and each party submits to the non-exclusive jurisdiction of the Courts of New South Wales. 10. General

6 (a) No failure, delay, relaxation or indulgence on the part of a party in exercising any power or right arising out of or in connection with this Deed or otherwise will operate as a waiver of such power or right, nor will any single or partial exercise of such power or right preclude any future exercise. (b) If any provision or part of this Deed is invalid or not enforceable according to its terms, all other provisions or parts which are self-sustaining and capable of separate enforcement without regard to the invalid or unenforceable provision or part is and will continue to be valid and enforceable according to its terms. 11. Stamp duty and costs (a) The Grantee (or Nominee) must pay all stamp duty (including penalties and fines) payable and arising out of or in connection with this Deed or the exercise of the Put option or Call option. The Grantee and Guarantors indemnify the Grantor in respect of all stamp duty (including penalties and fines) paid by or assessed to the Grantor relating to the exercise of the rights of the Grantee or Grantor. The Grantee must not bring or defend any proceeding concerning this Deed unless it has first paid all unpaid stamp duty (including penalties or fines) or, if the Grantor has paid all or any of those amounts, the Grantee has reimbursed the Grantor in full. (b) The Grantee and the Grantor shall each pay their own costs of and incidental to this Deed. 12. GST (a) In this clause: i. GST refers to goods and services tax under A New Tax System (Goods and Services Tax) Act 1999 ( GST Act ) and the terms used have the meanings in the GST Act as defined or used in that Act. ii. It is agreed that the consideration for the taxable supply expressed in this Deed for grant of the option to purchase the Property namely the Conditional Option Fee, is exclusive of the Grantor s liability for GST. iii. In addition to the Conditional Option Fee the Grantee agrees to pay to the Grantor, on receipt of a tax invoice from the Grantor, the amount payable by the Grantor as GST on a taxable supply made by the Grantor under this Deed. iv. The Grantor shall deliver to the Grantee a tax invoice for the taxable supply in a form which complies with the GST Act and the regulations. 13. Guarantee (a) The Guarantors are ## and ##.

7 (b) In consideration of the Grantor entering into this Deed at the Guarantors request, the Guarantors guarantee to the Grantor: i. payment of all money payable by the Grantee under this Deed; and ii. the performance of all the Grantee s other obligations under this Deed. (c) The Guarantors: i. indemnify the Grantor against any claim, action, loss, damage, cost, liability, expense or payment incurred by the Grantor in connection with or arising from any breach or default by the Grantee of its obligations under this Deed; and ii. must pay on demand any money due to the Grantor under this indemnity. (d) The Guarantors are jointly and severally liable with the Grantee to the Grantor for: i. the performance by the Grantee of its obligations under this Deed; and ii. any damage incurred by the Grantor as a result of the Grantee s failure to perform its obligations under this Deed or the termination of this Deed by the Grantor. (e) The Guarantors must pay to the Grantor on written demand by the Grantor all expenses incurred by the Grantor in respect of the Grantor s exercise or attempted exercise of any right under this Deed or this Guarantee. (f) If the Grantor assigns or transfers the benefit of this Deed or his rights or obligations hereunder, the assignee or transferee receives the benefit of the Guarantors obligations under this Guarantee. (g) The Guarantors obligations under this Guarantee are not released, discharged or otherwise affected by: i. the granting of any time, waiver, covenant not to sue or other indulgence; ii. the release or discharge of any person; iii. an arrangement, composition or compromise entered into by the Grantor, the Grantee, the Guarantors or any other person; iv. any moratorium or other suspension of a right, power, authority, discretion or remedy conferred on the Grantor by this Deed, a statute, a Court or otherwise;

8 v. payment to the Grantor, including payment which at or after the payment date is illegal, void, voidable, avoided or unenforceable; or vi. the winding up of the Grantee. (h) This Guarantee binds the Guarantors jointly and severally and the executors, administrators and assigns of the Guarantors.

9 EXECUTED as a DEED. Grantor: EXECUTED by Dubbo Regional Council: The common seal of Dubbo Regional Council was hereunto affixed on pursuant to a resolution of Council made Administrator Interim General Manager Grantee: EXECUTED AS A DEED by the ) Grantee pursuant to the Corporations Act: ).. Director.. Director Name: Name:

10 SIGNED SEALED AND DELIVERED by ) the Guarantors in the presence of: ) ## Witness ##.. Name

11 SCHEDULE 1 NOTICE OF EXERCISE OF CALL OPTION To: Dubbo Regional Council Civic Administration Building Church Street DUBBO NSW 2830 ## (or Nominee) hereby exercises the Call option for the purchase of the property known as Lot ## Stage 3A Release 4 Keswick Estate Dubbo being Lot ## in an unregistered plan of subdivision referred to in the Put and Call Option Deed dated ## made between you and ##. Executed by ## (or nominee):- Director Name Director Name Dated:

12 SCHEDULE 2 NOTICE OF EXERCISE OF PUT OPTION To: ## Dubbo Regional Council hereby exercises the Put option for the sale of the property known as Lot ## Stage 3A Release 4 Keswick Estate Dubbo being Lot ## in an unregistered plan of subdivision referred to in the Put and Call Option Deed dated ## made between you and Dubbo Regional Council. Executed by Dubbo Regional Council by its authorised officer:- Authorised officer Name Dated:

13 ANNEXURE A CONTRACT FOR SALE OF LAND