(In this translation an attempt has been made to be as literal as possible without jeopardizing the overall
continuity.
Inevitably, differences may occur in translation, and if so the Dutch text will by law govern.)
PURCHASE CONTRACT
between
Hanseatische Immobilienfonds Holland VII Verwaltungsgesellschaft mbH as legal owner and
Hanseatische Immobilienfonds Holland VII GmbH & Co. KG as beneficial owner
and
[●]
regarding
Hoofdweg 204, Rotterdam
Paraaf partijen:
1
PARTIES
(1)
a.
Hanseatische Immobilienfonds Holland VII Verwaltungsgesellschaft mbH, a
company incorporated under German law, with address at Herdentorsteinweg 7, D-28195
Bremen, Germany, as legal owner, hereinafter referred to as the “Legal Owner”; and
b.
Hanseatische Immobilienfonds Holland VII GmbH & Co. KG, a company incorporated
under German law, with address at Herdentorsteinweg 7, D-28195 Bremen, Germany, as
beneficial owner, hereinafter to be referred to as: the "Beneficial Owner",
the Legal Owner and the Beneficial Owner hereinafter also jointly to be referred to as "Seller";
(2)
[●] ("Buyer");
CONSIDERING
(A)
Seller has offered the Property Sold for sale, by making sales information regarding the Property
Sold available via the Website and the Data Room, which contained amongst others the Sales
Brochure, as well as a draft of this Purchase Contract.
(B)
Seller and Buyer have reached an agreement, amongst others due to the sales information and after
conducting a due diligence, regarding the sale and purchase of the Property Sold, as a result of the
Online Real Estate Sales, on the basis of the 'as is'-principle and in connection therewith the Buyer
accepts the current environmental, fiscal, structural, commercial and actual (legal) aspects and all
other aspects of the Property Sold and in accordance therewith the AVVIVV 2013 and the special
and general conditions in this Purchase Contract are to be regarded and read in that context.
(C)
the Agreement of Sale between Seller and Buyer is hereby laid down subject to the AVVIVV 2013
and the following special and general conditions and stipulations.
(D)
If the following special and general conditions and stipulations deviate from the AVVIVV 2013,
then the special and general conditions and stipulations will prevail.
HEREBY AGREE AS FOLLOWS
1.
DEFINITIONS AND INTERPRETATION
1.1
In this Purchase Contract and purchase the following definitions apply:
a.
"AVVIVV 2013" general terms and conditions by internet offers for voluntary auctions as
published on the Website and accepted by the Buyer, which are attached to this instrument as
Annex 1;
Paraaf partijen:
2
b.
"Annex": any annex to this Purchase Contract;
c.
"Business Day": any day other than a Saturday, Sunday or public holiday on which banks are
ordinarily open for business in both the Netherlands and Germany;
d.
"Data Room": the electronic secured Drooms application presenting details of the Property Sold.
The documents made available in the Data Room are detailed on the index of the Data Room as
attached to this instrument as Annex 2;
e.
"Award": the statement of the Seller through which, as a result of the Online Real Estate Sales, the
Purchase Contract is concluded, without prejudice to article 7:2 paragraph 1 of the Dutch civil
code;
f.
"Purchase Contract": this contract which contains the terms and conditions applicable to the
Purchase agreement between the Seller and Buyer; including the Annexes;
g.
"Purchase Agreement": the agreement between Seller and Buyer resulting in the sale of the
Property Sold, which agreement was concluded by the Award by Seller to the Buyer;
h.
"Purchase Price": the purchase price as referred to in article 3 of this Purchase Contract;
i.
"Buyer": the Party referred to above under (2);
j.
"Client Account": the special account referred to in section 25 of the Notaries Act (Wet op het
notarisambt) and held in the name of the Notary or the civil or general partnership in which he
works together with other notaries, which account is kept at the Rabobank under account number
NL10RABO0103368604;
k.
"Deed of Delivery": the deed which is required for the legal transfer of title executed in the
presence of the Notary;
l.
"Delivery Date": the date the Deed of Delivery is signed;
m.
"Notary": one of the civil law notaries affiliated with CMS Derks Star Busmann N.V., or his/her
deputy;
n.
"Online Real Estate Sales": the procedure to effect the sale of the Property Sold via the Website,
where bidders are invited to make bids, by upward and downward auction;
o.
"Party": Buyer or Seller;
p.
"Parties": Seller and Buyer jointly;
q.
"Property Sold": the real estate property/properties as referred to in article 2.1 of the Purchase
Contract;
Paraaf partijen:
3
r.
"Sales Brochure": the brochure containing a further description of the Property Sold, as made
available on the Website or in the Data Room or as provided by the Seller to the Buyer;
s.
"Seller": the Party referred to under (1) above;
t.
"Website" the website Hoofdweg 204, Rotterdam: https://www.bogauctions.com/auction/lot/3858/6428, which includes more information on the Property Sold and
the Online Real Estate Sales, as well as a link to the draft of this Purchase Contract;
u.
"Other party": Buyer or Seller.
1.2
The definitions can be used without losing their meaning in the singular or in the plural form.
2
PURCHASE AND SALE
2.1
Seller has sold to Buyer, who in turn has purchased from Seller:
The right of temporary ground lease ending 14 May 2097, of the land and water owned by the
Municipality of Rotterdam, registered with the Netherlands’ Cadastre, Land Registry and Mapping
Agency with registered address Hoofdweg 204, 3067 GJ Rotterdam, registration reference
Municipality of Kralingen, section K, number 2347, and registered plot size of 2,505 square meters.
2.2
The Property Sold is sold including the movable property, which, according to public opinion is
intended to continually serve the Property Sold, unless such movable property is owned by third
parties.
3.
PURCHASE PRICE
3.1
The purchase price for the Property Sold is EUR [●].
SPECIAL CONDITIONS
4.
4.1
4.2
4.3
COSTS AND TAXES
The land registry costs, notarial costs of this Purchase Contract and the costs of the legal transfer of
the Property Sold, as well as any turnover tax due, will be paid by Buyer.
The real estate transfer tax (if due) calculated on the basis of the value of the Property, increased or
reduced as provided for in the Legal Transactions (Taxation) Act (Wet op belastingen van
rechtsverkeer), will be paid by Buyer.
If the tax basis for the purposes of the real estate transfer tax can be reduced as referred to in
section 13 of the Legal Transactions (Taxation) Act, the Buyer shall pay to the Seller the
difference between the amount of real estate transfer tax that would have been due without the said
reduction and the amount of real estate transfer tax actually due. The amount paid by the Buyer to
the Seller will be reduced by such an amount that the total amount paid by the Buyer of real estate
transfer tax together with the amount that the Buyer pays to the Seller under paragraph 3 of this
article shall never exceed the amount that the Buyer would pay in the real estate transfer tax if
section 13 of the Legal Transactions (Taxation) Act did not apply.
Paraaf partijen:
4
5.
STATEMENTS BY THE SELLER
The Seller declares that as far as known to Seller:
a)
to be authorized to transfer the Property Sold at the time of signing of the Deed of Delivery;
b)
no orders have been made or announced in writing by government authorities that have not yet
been carried out, or that have been carried out by a government authority but have remained
unpaid;
c)
no enforcement decisions have been announced or notified by government authorities in respect of
the Property Sold;
d)
the Property Sold is not vacant within the meaning of the Housing Allocation Act
(Huisvestingswet) and the regulations made under the said Act;
e)
the Property Sold is not included in any (pending application for) designation, listing order or
registration:
(i)
as a listed building within the meaning of the Monuments and Historic Buildings Act
(Monumentenwet) 1988;
(ii)
as a listed building by any local or provincial authority.
f)
no government subsidy for which conditions have yet to be satisfied has been applied for or
granted in connection with the Property Sold;
g)
no obligations in respect of the Property exist which provide an option or right of first refusal for a
third party to negotiate the acquisition of the Property;
h)
when the Deed of Delivery is signed the Property Sold and any movables sold with it will not be
the subject of any claim and will not be used by third parties without any right or title thereto;
i)
the Property Sold is rented out.
(i)
The tenancy agreements are recorded in private instruments. These instruments that record
the tenancy agreements set out the full legal relationship between the landlord and the
tenants. No arrangements disadvantageous to the landlord, other than those contained in
the tenancy agreements, have been made with the tenants.
(ii)
To date the tenants have duly performed their obligations.
(iii)
No legal action concerning the Property Sold is pending before any rent tribunal.
Moreover, the Seller does not have any information that a tenant has such an intention.
j)
the Property Sold comprises the right of ground lease (emphyteusis), as mentioned in the
acquisition title of the respective Seller, a copy of which is attached as Annex 3 to the Agreement;
k)
the Property Sold comprises no building/ planting right (right of superficies), other than mentioned
in the acquisition title of the respective Seller, a copy of which is attached as Annex 3 to the
Agreement;
l)
there are no other easements than mentioned in the acquisition title of the respective Seller, a copy
of which is attached as Annex 3 to the Agreement;
m)
there are no other title-related obligations within the meaning of Article 6:252 of the Dutch Civil
Code, other than mentioned in the acquisition title of the respective Seller, a copy of which is
attached as Annex 3 to the Agreement;
n)
no covenant to insert a fresh covenant in any subsequent transfer deed needs to be imposed upon
the Buyer other than mentioned in the acquisition title of the respective Seller, a copy of which is
Paraaf partijen:
5
o)
p)
q)
r)
s)
6.
6.1
6.2
6.3
6.4
attached as Annex 3 to the Agreement;
the Property is insured – and will be kept insured until the date of signing of the Deed of Transfer
– against fire damage and the latest insurance premium has been paid;
no legal action, binding advice procedure, arbitration or mediation is currently pending or has been
notified with respect to the Property Sold;
the documents included in the Data Room have been compiled with the care of a prudent
businessman and that the Seller has not withheld from the Buyer in bad faith any information
available to it which is or would be of importance for the customary due diligence of a professional
real estate investor;
the Property Sold and the systems and appurtenances included in the Property Sold above are not
encumbered with any lien (retentierecht) and will also not be encumbered by any lien
(retentierecht ) when the Deed of Delivery is signed;
the Seller has an energy performance certificate or equivalent document as referred to in the
Energy Performance (Buildings) Decree (Besluit energieprestatie gebouwen) in respect of the
Property Sold, a copy of which has been included in the Data Room. The Seller shall hand the
original certificate to the Buyer when the Deed of Delivery is signed.
DUTY OF NOTICE
Subject to the remaining provisions of the Purchase Contract, the Seller has given the Buyer all
information with regard to the Property Sold that to Sellers best knowledge and public opinion the
Seller should bring to the Buyer’s attention.
Buyer expressly declares to be informed and hereby expressly agrees, that all information relating
to the Property Sold as Seller or its advisors have provided (including the information in the Data
Room and Sales Brochure) is solely provided to Buyer in order to for Buyer to verify the
information and research its accuracy and completeness, unless it is clear from this contract Seller
makes an explicit guarantee.
With regard to the information provided by the Seller or its advisors, it is further expressly
accepted by the Buyer, that:
(a)
all (whether or not factual) information (including its descriptions, surfaces and other
dimensions, measurement specifications, technical inspections, environmental inspections,
the construction status, photos, construction drawings, floor plans, other drawings, possible
contract take-overs and possible lease agreements, riders, bank guarantees,
communications of tenants or landlords) is provided to Sellers best knowledge, which is in
no way a guarantee that the information is actually correct, complete, in effect and up-todate;
(b)
the Seller was allowed to add and modify the information provided to Buyer during the
period that this information was available.
Without prejudice to the preceding provisions Seller declares that to its best knowledge all
information was provided to the Buyer and none was held back in bad faith.
Paraaf partijen:
6
7.
7.1
7.2
7.3
SELLER'S DECLARATION CONCERNING CONTAMINATION
The Seller declares not to know facts which show that the (soil/groundwater of the) Property Sold
is contaminated with harmful or dangerous materials (such as asbestos), expect insofar as this is
evidenced by the Sales Information. Due to the year of construction and the location of the
Property Sold, however, it is possible that harmful or dangerous materials (such as asbestos) are
contained in the (soil/groundwater of the) Property Sold.
The risk that it is concluded in hindsight that at the time of concluding the Agreement the
soil/groundwater of the Property Sold is contaminated, or asbestos is included in the
constructions in/on the Property Sold, which contamination is not identified in the Sales
Information, is for the account and risk of the Buyer.
Buyer and its legal successor (s) (including those who acquire a right of use from the Buyer
and/or its legal successors over the Property Sold) will indemnify Seller from any liability with
regard to current and at any time determined contamination of the soil/groundwater, as well as
asbestos or other harmful or dangerous substances in the constructions on/in the Property Sold
and will not have any recourse against Seller in connection herewith. Buyer and his legal
successor(s) will also refrain from making any claim on Seller in relation to said contamination
of the Property Sold. Buyer undertakes to indemnify Seller against all private and public lawbased claims, orders and instructions of third parties, including governmental institutions, related
to pollution of the Property Sold.
8.
DECLARATIONS BY THE BUYER
The Buyer makes the following declarations:
a)
Buyer expressly accepts the charges and restrictions described in this Purchase Contract, and
those which are or could be known to him from the existing situation after a survey as referred to
in Article 6, in relation thereto the Buyer expressly declares to have made its own investigation of
the publicly available information in the cadastral and municipal registrations (even if a charge of
costs is applicable).
b)
Buyer explicitly acknowledges to have received a copy of:
the Seller's title document;
the AVVIVV 2013;
the lease agreements;
the energy performance certificate or equivalent document as referred to in the Energy
Performance (Buildings) Decree (Besluit energieprestatie gebouwen).
c)
Buyer intends to use the Property for the purposes which are permitted by and does not breach
any provisions of public and/or private law, and hereby declares to have sufficiently investigated
and have sufficiently been informed of these provisions.
d)
Buyer has sufficiently investigated and been informed of:
the charges, taxes and duties payable by the owner and/or the person entitled to the real
rights with respect to the Property Sold;
public encumbrances (if any) registered with regard to the Property Sold in the cadastral and
municipal registrations for public encumbrances;
any possible (proposals for a) urban renewal plan or environmental order within the meaning
Paraaf partijen:
7
-
-
9.
9.1
9.2
9.3
9.4
9.5
of the of the former Urban and Rural Regeneration Act (Wet op de stads- en
dorpsvernieuwing) involving the Property Sold;
any possible designation, listing order or registration of the Property Sold as an urban or
village conservation area or a pending request for an opinion on such matters;
encumbrances, obligations to allow certain acts, (if any) as referred to in the Public Works
(Removal of Impediments in Private Law) Act (Belemmeringenwet Privaatrecht), or any
other notifications or restrictions of any kind under public law relating to the Property Sold;
the right of ground lease (emphyteusis), and/or the building/ planting right (right of
superficies) in relation to the Property Sold (if any), as these appear in the Sales Information
as well as the cadastral registrations.
NOTICE OF BREACH
Without prejudice to the other limitations of (any) liability of the Seller set out in this Agreement,
any total liability for compensation from the Seller, by whatever name and irrespective of the
underlying cause, is limited to claims for compensation under a breach of an obligation pursuant
to or in connection with this Agreement for the Seller filed within six months after the Date of
Transfer. As a result all claims/rights of the Buyer will lapse/forfeit (in Dutch: 'verval van
rechten') if the Buyer has not commenced proceedings (i.e. meaning the date of issuing a writ of
summons) within six months after the Date of Transfer.
Liability of Seller is furthermore excluded for each claim for compensation under a breach of an
obligation pursuant to or in connection with this Agreement for the Seller representing a value
under EUR 5,000 and for all such claims together under EUR 15,000, with the understanding that
each claim should be at least EUR 5,000 (threshold) and all claims together at least EUR 15,000
(basket). For the calculation of the basket only claims of EUR 5,000 or more will be valid. If the
basket (EUR 15,000) is reached, Buyer is only entitled to the amount that exceeds EUR 15,000.
The obligation of the Seller to compensate for damages resulting from any and all claims for
compensation under a breach of an obligation pursuant to or in connection with this Agreement
will together also never exceed the amount equal to five percent (5%) of the Purchase Price.
The Buyer shall ensure that all reasonable steps shall be taken to prevent or limit damages that
could result in a claim for compensation under a breach of an obligation pursuant to or in
connection with this Agreement for the Seller.
Subject to any other limitation set out in this Agreement, the Seller shall not be liable in respect
of any claim for compensation under a breach of an obligation pursuant to or in connection with
this Agreement if such claim is:
a) attributable to anything arising directly or indirectly from any matter, act, omission, or
circumstance (or any combination thereof) that is known or should have been known to the
Buyer on the basis of the disclosed information in the Data Room;
b) attributable to anything arising directly or indirectly from any matter, act, omission, or
circumstance (or any combination thereof) pursuant to an action of the Buyer or its
respective directors, officers, employees or agents or successors in title, after the Date of
Transfer;
c) attributable to the passing of, or any change in, any regulation, rule, official directive,
Paraaf partijen:
8
d)
e)
f)
g)
10.
10.1
10.2
10.3
request or guideline whether or not having the force of law of any governmental,
intergovernmental or supranational body, agency, department or regulatory, self-regulatory
or other authority or organisation after the Date of Transfer;
attributable to any change after the Date of Transfer of any generally accepted interpretation
or application of any law; or
covered by a policy of insurance of the Buyer and insofar as the Buyer has a right of
recovery; or would have been covered if a policy of insurance commonly taken out in the
Netherlands commercial real estate practice with respect to such claim had been taken out by
the Buyer as from the Date of Transfer;
attributable to anything arising directly or indirectly from or increased by the failure of the
Buyer to limit damages that could result in such a claim; or
for indirect loss or consequential damages or punitive damages.
CONDITION(S) SUBSEQUENT
This sale is concluded under the condition subsequent that, the Seller is not at liberty to transfer
the Property Sold on the agreed moment of signing of the Deed of Delivery due to an obligation
to the offer the Property Sold for sale to the Municipality, the Province or the State of the
Netherlands on the basis of the Preemptive Rights for Municipalities Act (Wet Voorkeursrecht
Gemeente).
If the condition subsequent is fulfilled, this has retro-active effect between Parties back to the
moment of concluding this sale.
Buyer expressly declares to agree that no financing condition is stipulated and declares to be
aware of the consequences of this.
11.
DEPOSIT
As additional security for the fulfilment of his obligations the Buyer shall at his discretion:
pay a deposit of ten per cent (10%) of the aforementioned total purchase price into the Client
Account; or
furnish a written bank guarantee for an amount equal to ten per cent (10%) of the aforementioned
total Purchase Price,
ultimately within three (3) Business Days after the Award and furthermore as stipulated in the AVVIVV
2013.
12.
12.1
AWARD AND DELIVERY
In deviation of article 9 paragraph 2 of the AVIVV 2013 the Consultation Period as described in
said article will end ten (10) Business Days after the Auction Period or so much earlier as the
Seller has approved the winning bid.
12.2
In deviation of article 11 paragraph 1 subparagraph b. of the AVIVV 2013 the payment of the
Purchase Price and execution in front of the Notary of the Deed of Delivery required for transfer,
will be not later than twenty-five (25) Business days after the Award, or as much earlier or later
as the Parties may agree.
Paraaf partijen:
9
13.
13.1
13.2
13.3
JURISDICTION AND CHOICE OF LAW
Any disputes arising out of or in connection with this Purchase Contract will be heard and
decided exclusively by the Court of Amsterdam.
This sale will be governed by the law of the Netherlands.
The time limits referred to in this Purchase Contract will be governed by the General Extension
of Time Limits Act (Algemene termijnenwet).
14.
14.1
ENTRY IN THE PUBLIC REGISTERS
Buyer gives no instruction to the Notary to register the sale as soon as possible in the appropriate
public records of the land registry office and public registers by filing a copy of the Purchase
Contract to the relevant authority of the aforementioned service.
14.2
The cost of registration of this sale, such as the research and registration fees of the service for
the land registry office and public registers, and the applicable VAT, shall be for the account of
Buyer.
15.
15.1
STANDARD CONDITIONS/LIMITATION OF LIABILITY
The Parties agree that the operation of articles 17, 20 and 23 of Book 7 of the DCC and article
265 of Book 6 of the DCC are excluded in connection with the Purchase Agreement.
15.2
The services to be rendered by the Notary are governed by the ‘Standard Conditions’ applied by
the Notary, which contain a limitation of liability. A copy of these Standard Conditions has been
attached to this Purchase Contract (Schedule). The Parties each declare to have received a copy
of the Standard Conditions.
16.
16.1
NO POSSIBILITYOF BIDDING FOR A THIRD PARTY
In deviation of article 8 of the AVIVV 2013 Buyer is not permitted to declare to have made its
bid for a third party.
17.
MISCELLANEOUS
Paraaf partijen:
10
GENERAL CONDITIONS
I.
Description of the duty to deliver
I.1.
The Seller is obliged to deliver to the Buyer ownership of the Property Sold or, as the case may
be, a ground lease (emphyteusis) or building/planting right (right of superficies) which:
a)
is unconditional and not subject to any curtailment, cancellation or annulment of any
kind, but without prejudice – in the case of a ground lease or building/planting right –
to the provisions of the ground lease or building/planting right and the statutory
provisions;
b)
is not subject to attachments, seizures or mortgages or registrations thereof, and is not
subject to any other encumbrances, with the exception of those mentioned in this
Purchase Contract;
c)
is not encumbered by title-related obligations as referred to in Article 6:252 of the Civil
Code, with the exception of those mentioned in this Purchase Contract;
d)
is not subject to other special charges and restrictions, except any specified in this
Purchase Contract.
Any movables sold with the Property Sold are free of encumbrances and not subject to
attachments or seizures.
The Seller and the Buyer hereby give the Notary and his staff a power of attorney:
a)
after informing the Seller and/or the Buyer to do everything which is necessary and
expedient with regard to the contemplated transaction (including the termination of
loans) in order to secure cancellation of entries of mortgage and/or attachments or
seizures to which the Property Sold is subject and to procure such cancellation; the
costs of such cancellation will be borne by the Seller;
b)
to inspect all documents and registers considered by the Notary to be of importance to
the performance of this Purchase Contract.
In so far it appears from this Purchase Contract that the Property Sold is let, it will be delivered
subject to the Buyer’s obligation to continue to perform the existing tenancy agreement(s).
If any tenancy agreement relating to the Property Sold expires following the signing of this
Purchase Contract, the Seller shall give immediate notice of this by any of the Sales information
or a notice to the Buyer (if the Award has taken place) and may not enter into any new tenancy
agreement without the Buyer’s prior written consent.
The above provision also applies to any amendment to a possible existing tenancy agreement.
If the Buyer withholds his consent to the making of a new tenancy agreement or to the
amendment of an existing tenancy agreement, the Buyer will be required to compensate the
Seller for the consequent loss of rent for the period up to signing the Deed of Delivery.
If the Buyer withholds his consent to the making of a new tenancy agreement, the risk of the
Property Sold being occupied by squatters will be borne by the Buyer, as will any consequences
under the Housing Allocation Act – and the regulations made under it – of the fact that the
Property Sold is unoccupied.
I.2.
I.3.
Paraaf partijen:
11
I.4.
I.5.
I.6.
I.7.
I.8.
If the dimensions or size of the Property Sold as specified by the Seller or the further description
of it or the representations made in the special conditions is/are incorrect or incomplete, neither
party may derive any right from this. However, this will be subject to an exception if and in so far
as the specification or description by the other party:
has been warranted according to this Purchase Contract;
has not been made in good faith;
concerns a hitherto undisclosed fact which qualifies for entry in the public registers but
has not hitherto been entered in them.
The Property Sold will be transferred together with all accompanying rights and powers and free
of any special charges and restrictions, save for those expressly accepted by the Buyer in the
special conditions.
The completion (i.e. transfer of actual possession of the Property Sold and of any movables sold
with it) will take place upon the signing of the Deed of Delivery and in the state and condition in
which the Property Sold and/or the movables are at that time.
The Seller shall – as a careful debtor – take proper care of the Property Sold and any movables
sold with it until Completion.
Subject to the condition precedent that the Property Sold is delivered, the Seller hereby assigns to
the Buyer all claims that the Seller may be able to enforce now or at any other time, by way of
contract or delict (tort) or in any other way, against third parties, including (but not limited to) the
Seller’s predecessor(s) in title, the architect(s), builder(s), contractor(s), subcontractor(s), fitter(s)
and/or supplier(s) in respect of the Property Sold and any movables sold with it, or any part or
parts therein or thereof, as well as the rights under any subsidy schemes, guarantee schemes and
certificates of guarantee, all this in so far as such claims or rights are assignable and without any
duty of indemnification.
The Seller undertakes to furnish the Buyer with all relevant information at his disposal.
Only after the Property Sold and any movables sold with it have been transferred will the Buyer
be authorised to effectuate the assignment of the aforementioned rights by giving notice of this
assignment to the persons against whom the said rights can be exercised.
The transfer of the Property Sold will take place by (digital) entry of a copy of the Deed of
Delivery in the public registers of the Land and Public Registers Agency.
II. FORCE MAJEURE, RISK, INSURANCE
II.1.
II.2.
The risk in respect of the Property Sold and any movables sold with it will pass to the Buyer
upon the signing of the Deed of Delivery
The Seller shall take out and maintain at his own expense until the signing of the Deed of
Delivery insurance for the buildings and structures belonging to the Property Sold at rebuilding
value with an insurance company of sound repute and upon the terms and conditions usually
applied by Dutch non-life insurance companies. Failing this, the Buyer may, at the expense and
in the name of the Seller, take out such insurance or, as the case may be, extend the existing
insurance and/or raise it to rebuilding value. The Buyer may require the Seller to produce to him
the insurance policy and premium receipts concerned and may also ask the insurance company
Paraaf partijen:
12
II.3.
II.4.
II.5.
II.6.
II.7.
II.8.
for information.
If either party is entirely unable to fulfil his obligations owing to an occurrence beyond his
control (force majeure) other than during a foreseeable period of time, the Purchase Contract will
be cancelled following a written statement to that effect by the other party. The statement should
give the reason for the inability to fulfil the obligations.
If, as a result of damage to the Property Sold other than of a minor nature, the Seller is able to
fulfil only part of his obligations, he shall give immediate notice of this to the Buyer by
registered letter and send a copy of the notice to the Notary. A copy of the applicable insurance
policy together with the insurance terms and conditions should be sent with the notice.
If the Seller does not give this notice in time, the Buyer may cancel the Purchase Contract before
the Delivery Date by registered letter within twenty Business Days of the date on which the
damage has come to the attention of the Buyer.
The Seller shall notify the Buyer by registered letter, within ten Business Days after the Buyer
has received the notice referred to in paragraph 4, but before the Delivery Date at the latest,
whether he will repair the Property Sold (or cause it to be repaired) and restore it to the condition
in which it was when the Purchase Contract was concluded and, if so, within what period the
repair will take place. The Seller shall at the same time send a copy of the relevant letter to the
Notary.
If the Seller does not give the notification referred to in paragraph 5 or does not do so in time or
if the Seller declares that he will not repair the Property Sold (or cause it to be repaired) before
the Delivery Date, the Buyer may cancel the Purchase Contract by registered letter within twenty
Business Days of receipt of the notification from the Seller or, if no notification has been
received, within twenty Business Days after the date of the notice referred to in paragraph 4. The
Buyer may similarly cancel the Purchase Contract if the Seller has not fulfilled his obligations
under paragraph 4. The period of twenty Business Days will in that case run from the date on
which the damage comes to the attention of the Buyer.
If the Seller gives notice that he will repair the Property Sold (or cause it to be repaired) within a
period that expires after the Delivery Date and the Buyer has not cancelled the Purchase Contract
pursuant to the provisions of paragraph 6:
a)
the Buyer will opt for payment of the Purchase Price in consideration of the transfer of
the Property Sold in its current (damaged) condition, including the transfer of all rights
to which the Seller is entitled in respect of the damage either under the insurance or on
any other account against third parties. The risk that the transfer will affect the amount
of the insurance payment will in that case be borne by the Buyer. The Seller shall do
everything possible to furnish the Buyer with the information necessary in order to
assess this risk; or
b)
the delivery will be suspended until the working day after the last day of the period
specified by the Seller for the repair in the notification referred to in paragraph 5, unless
the parties agree otherwise. The Seller is obliged to repair the damage in full within this
period in so far as this concerns damage usually covered under an insurance policy with
a Dutch insurance company.
In the case of paragraph 7 (b) above, the Seller is obliged to reimburse to the Buyer, by no later
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than the date of the signing of the Deed of Delivery of the repaired Property Sold, the loss or
damage suffered by the Buyer as a result of the postponement of the Delivery Date.
III. ASSUMPTION OF OBLIGATIONS
III.1.
III.2.
III.3.
If obligations of a personal nature have been imposed upon the Seller which he in turn is required
to impose upon the Buyer and any subsequent buyer (i.e. covenants to insert a fresh positive
covenant in any subsequent conveyance), the Buyer shall assume and fulfil such obligations and
also impose the same obligations upon his successors by particular title, in the manner described
in the Deed of Delivery.
The Buyer is not required to take over any insurance contracts concluded by the Seller.
Orders by government authorities for work to be carried out on the Property Sold that are made
after the date of signature of this Purchase Contract by the Buyer and the Seller and were not
previously announced by written notice will be for the account of the Buyer. If the work has to be
carried out before the signing of the Deed of Delivery, the Seller shall consult with the Buyer
about the carrying out of such work.
IV. PAYMENT AND APPORTIONMENT
IV.1.
IV.2.
IV.3.
IV.4.
As from the date when the Deed of Delivery is signed all income and expenditure in respect of
the Property Sold shall be for the account of the Buyer.
Rent due up to and including the date of signature of the Deed of Delivery will be collected by
and at the risk of the Seller.
In so far as taxes and/or duties are levied on the user in relation to the Property Sold, they will not
be apportioned between the parties.
The Seller shall pay in full the charges, taxes and duties payable by the owner or the owner of the
real rights for the current periods on the date of signature of the Deed of Delivery, without
prejudice to the apportionment between the parties.
If tenants have paid deposits, such deposits and any current interest on them will be apportioned
between the Seller and the Buyer upon the signing of the Deed of Delivery.
If any bank guarantees have been issued on behalf of tenants in favour of the Seller, the Seller
shall hand over the documents concerned to the Buyer upon the signing of the Deed of Delivery.
Payment of the purchase price and any turnover tax and apportionment of the income and
expenditure as specified by the Seller to the Notary in a statement supplied in good time before
the signing of the Deed of Delivery and any turnover tax charged thereon and any deposits will
be made (in accordance with the said statement) through the completion statements of the Notary.
All sums owed by the Buyer will be paid by the Buyer in full upon the signing of the Deed of
Delivery by remittance to the Client Account no later than on the date of signing of the Deed of
Delivery and at the value on that date.
For the benefit of creditors who should – in connection with the correct conclusion of the
Purchase Contract and the delivery of the Property Sold – be paid from the purchase price in
accordance with the professional and practice rules applicable to the Notary, the Seller hereby
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IV.5.
IV.6.
IV.7.
obtains a warranty that their claims will be paid by the Notary directly from the purchase price
and will be, for this purpose, be remitted from the Client Account to their bank or giro account;
the Notary will accordingly be obliged to pay to the Seller himself only such part of the purchase
price as remains thereafter. The Seller agrees to accept the Notary’s decision on which of the
creditors notified by the Seller in good time fulfil the aforementioned criterion and up to what
amounts. The warranty does not extend to the residual amount due to the Seller.
The Seller and the creditors referred to above in this paragraph are entitled to receive payment
from the Notary of the sum to which each of them is entitled and the Buyer is entitled to payment
only when the Notary has ascertained, on the basis of written searches of the public registers, that
the transfer has taken place in conformity with the provisions of Article I, paragraph 1 and the
Notary has complied with the professional and practice rules applicable to the Notary.
The Seller and the Buyer are aware that – in connection with such searches – a period of one or
more days may elapse between the date of signing of the Deed of Delivery and the date of
payment.
The party who is liable to pay the transfer duty under the terms of this Purchase Contract shall
deposit the said duty with the Notary upon the signing of the Deed of Delivery for payment to the
collector of taxes.
If turnover tax is due the Seller shall ensure that the Buyer receives in good time an invoice
within the meaning of the Turnover Tax Act (Wet op de omzetbelasting) 1968. The Buyer shall
also furnish the Notary with a copy of this invoice in good time.
To provide for the eventuality that the purchase price must be refunded to the Buyer, the Buyer
will obtain, for the benefit of persons who have remitted the purchase price (or part thereof)
directly to the Client Account, a warranty that these amounts will be refunded by the Notary by
remittance to the account from which they were debited; the Notary shall accordingly owe the
Buyer only the amounts remitted by himself. The warranty does not extend to the amounts
transferred by the Buyer himself.
V. BREACH OF CONTRACT (NON-PERFORMANCE)
V.1.
V.2.
In the event of non-performance or late performance of the Purchase Contract other than as a
result of events beyond a party’s control (force majeure), the party who has failed to perform will
be liable for all damage, including costs and interest, suffered by the other party on account
thereof, irrespective of whether or not the party who has failed to perform is in default within the
meaning of the following paragraph.
If either party fails to perform one or more of his obligations – including but not limited to late
payment of the deposit by the Buyer or late furnishing of an adequate bank guarantee by the
Buyer – and does not remedy such failure within eight (8) Business Days of being served with
notice of default by bailiff’s notification, the party concerned will be in default and the other
party, may choose between the following alternatives:
a)
demand performance of the Purchase Contract, in which case the party in default will
forfeit a penalty, due and payable forthwith, of three per mille of the Purchase Price for
each day that passes from the end of the aforementioned term of eight (8) Business
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Days until the day of performance; or
cancel the Purchase Contract by a written statement to that effect and demand payment
of a penalty, due and payable forthwith, of ten per cent of the Purchase Price.
Any penalty paid or due will be deducted from any compensation due, together with interest and
costs.
This will include any turnover tax due on the penalty.
The notice of default procedure and the penalty scheme described in paragraph 2 of this article
will no longer apply after the Notary has verified by written examination of the public registers
that the transfer has been carried out in accordance with the provisions of Article I, paragraph 1,
and after the Seller and any creditors referred to in Article IV, paragraph 4, as well as the Buyer
have each received from the Notary the amount to which they are entitled.
b)
V.3.
V.4.
V.5.
VI. CONDITIONS SUBSEQUENT
Any conditions subsequent which may have been agreed between the Seller and the Buyer will cease to
have effect after the Deed of Delivery has been signed.
VII. FINAL PROVISIONS
VII.1.
VII.2.
VII.3.
VII.4.
For the purposes of this Purchase Contract and its consequences and until the Deed of Delivery
has been signed, the parties choose as their address for service the office of the Notary in whose
custody this Purchase Contract will remain.
If two or more persons are Buyers or if two or more persons are Sellers, the following rules will
apply:
a)
the Buyers (or, as the case may be, the Sellers) may exercise their rights under this
contract only jointly, subject to the proviso that:
the Buyers hereby give each other an irrevocable power of attorney to
cooperate in the delivery and transfer of the Property Sold on each other’s
behalf;
the Sellers hereby give each other an irrevocable power of attorney to
cooperate in the delivery and transfer of the Property Sold on each other’s
behalf;
b)
the obligations of the Sellers under this Purchase Contract are joint and several;
c)
the obligations of the Buyers under this Purchase Contract are joint and several.
Where reference is made in this Purchase Contract to ‘payment to the Notary’ or ‘deposit with
the Notary’ this means payment into the Client Account.
The Seller and the Buyer instruct the Notary to undertake such activities as are necessary for the
performance of this Purchase Contract.
The Seller and the Buyer hereby give the Notary a power of attorney to arrange, in the
eventuality that this Purchase Contract is cancelled or ends as a result of the entry into force of a
condition subsequent, for the cancellation of the entry of this Purchase Contract in the public
registers.
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VII.5.
VII.6.
VII.7.
By countersigning this Purchase Contract the Notary confirms that he assumes the obligations to
which he is subject under this Purchase Contract and that he accepts the powers of attorney and
other powers given to him herein.
In deviation of the stipulations in the AVVIVV 2013 any reference to a working day is deemed to
be a reference to a Business Day.
If the stipulations of the AVVIVV 2013 conflict with the stipulations of the Agreement, the
stipulations of the Agreement will prevail. If the stipulations of the Special Conditions of the
Agreement conflict with the stipulations of the General Conditions of the Agreement, the
stipulations of the Special Conditions of the Agreement will prevail.
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ANNEXES
Annex 1
Annex 2
Annex 3
AVVIVV 2013
index of the Data Room
acquisition title of the respective Seller
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