|First||Previous (CREAMERY ACT, 1928)||Next (SECOND SCHEDULE. FORM OF AGREEMENT FOR PURCHASE OF MILK SUPPLY.)|
CREAMERY ACT, 1928
FORM OF AGREEMENT FOR PURCHASE OF PREMISES, ETC.
THIS AGREEMENT, made the day of between the Dairy Disposal Company, Limited, having its registered office at 42–43 St. Stephen's Green, Dublin (hereinafter called the vendors, which expression shall be deemed to include its successors and assigns where the context so admits or requires), of the one part, and
a Society incorporated under the Industrial and Provident Societies Act, 1893 (hereinafter called the Purchasing Society, which expression shall be deemed to include its successors and assigns where the context so admits or requires), of the other part: WHEREAS in the year 1926 the Irish Agricultural Organisation Society, Limited, with a view to aiding the Dairying Industry in Ireland, opened negotiations for the acquisition of the business and undertakings of the Condensed Milk Company of Ireland (1924), Limited, and of the Newmarket Dairy Company, Limited, to the end that redundant creameries might be eliminated with resultant benefit to the Dairying Industry: AND WHEREAS the said Irish Agricultural Organisation Society, Limited, being unable by its proper funds to finance such a purchase, requested the Government of Saorstát Eireann to make due provision for the acquisition of the said business and undertakings, which the said Government duly agreed to do: AND WHEREAS the vendors were duly incorporated under the Companies Acts with the object of facilitating the allotment and distribution of the business and undertakings of the said two Companies to and among selected Co-operative Creamery Societies, and the entire issued capital of the said two Companies is now held by or in trust for the Vendors: AND WHEREAS the Vendors are taking all necessary steps to put the said Condensed Milk Company of Ireland (1924), Limited, and the Newmarket Dairy Company, Limited, into liquidation forthwith: AND WHEREAS the Limited (herein after called the Company), holds the premises known as situate at under Lease dated the day of subject to the yearly rent of £ : AND WHEREAS by resolution of the Committee of Management of the Purchasing Society dated the day of it was resolved that the Purchasing Society should purchase the said premises together with the plant, equipment, utensils, furniture, etc., thereon, and the milk supply attached thereto, and also the goodwill connected therewith, for the price or sum of £ , such sum to be payable by eight yearly instalments, with simple interest not exceeding 5½ per cent. per annum on the amount outstanding for the time being, and that the said purchase price should be secured by charge or mortgage, and that shares should be issued by the Purchasing Society to the suppliers so as aforesaid obtained by the Purchasing Society to cover the amount of the said purchase money, and that the amount payable on the shares so issued should be earmarked for the payment of the said purchase price: AND WHEREAS the Purchasing Society is prepared and hereby undertakes to issue shares to all former suppliers of milk to the Company in the said area who have and will become members of the Purchasing Society: NOW IT IS HEREBY AGREED as follows:—
1. The Vendors agree to sell or procure to be sold by the (hereinbefore and hereinafter called the Company) or its Liquidator to the Purchasing Society, and the Purchasing Society agree to purchase on the terms and conditions hereinafter appearing ALL THAT AND THOSE
2. The purchase shall include the fixed and movable machinery, plant, equipment, furniture, and other chattels on the said premises, the milk supply attached thereto, and also the goodwill of the business carried on therein.
3. The consideration for the said purchase shall be the said purchase price of £ , and the said purchase price shall be paid by the Purchasing Society in eight equal yearly instalments, payable in manner hereinafter appearing, with simple interest at the rate of £5 10s. 0d. per cent. per annum on the amount for the time being outstanding, and the payments of the said instalments and interest shall be secured to the Vendors, as hereinafter mentioned.
4. The Purchasing Society shall covenant to pay to the Vendors the said purchase monies, with interest thereon as aforesaid, from the day of by eight equal yearly instalments, whereof the first shall fall due on the day of , and the succeeding payments on the day of in each successive year, with the addition to each instalment of all interest due to the date of payment of the said instalment.
5. In any of the following events the entire balance of the purchase money then remaining unpaid, and all interest thereon shall become immediately payable, and all securities therefor shall become immediately enforceable:—
(a) If any instalment of principal or interest, or any part thereof, shall remain unpaid for thirty days after the same shall have become due.
(b) If the Purchasing Society ceases to carry on its business.
(c) If an order shall be made, or a special or extraordinary resolution be passed, for winding up the Purchasing Society.
(d) If the Purchasing Society commits a breach of any of the covenants, agreements, or provisions in any mortgage charge or agreement entered into between the Purchasing Society and the Vendors, and on its part to be observed and performed.
6. The said purchase price and the interest thereon shall be secured by a first mortgage or charge on the said premises sold, which mortgage shall be prepared by the Vendors, and shall contain such powers and provisions, and be in such form as the Vendors may reasonably require, and shall be executed immediately after the assurance of the premises to the Purchasing Society. The premises shall be insured by the Purchasing Society against loss by fire in the sum of £ , at least, in an office to be approved by the Vendors in the joint names of the Vendors and the Purchasing Society.
7. By way of further security for the payment of the purchase monies and interest, the Purchasing Society shall charge the capital of the shares issued as hereinbefore recited with the repayment of the said purchase price, and the Purchasing Society shall covenant and agree that so long as any part of the said purchase monies shall remain unpaid the Purchasing Society shall, either by a deduction per gallon on the price of milk purchased by it from the holders of such shares, or in such other way as the Purchasing Society may decide, call up in each year so much of the said capital at that time uncalled on such shares as may be required, to provide for payment to the Vendors of the instalment falling due in that year. The monies so deducted on foot of the said calls shall be paid into a separate account in the joint names of the Vendors and the Purchasing Society, and shall be applied for the purpose only of paying to the Vendors the instalments of purchase money and interest as and when the same shall become payable to them as aforesaid. The Purchasing Society shall not until the repayment in full of the last and all previous instalments of the total sum to be paid to the Vendors under these presents, and all interest thereon, make any calls whatsoever on the capital of the said shares, save as aforesaid, nor apply any part of any sum received on foot of any call made in accordance with the foregoing provisions other than towards the reduction of the total sum to be paid to the Vendors under these presents. Provided that on the happening of any of the events specified in Paragraph 5 hereof, the Purchasing Society, if required by the Vendors so to do, shall forthwith call up the remainder of the capital at that time uncalled on the said shares, or so much thereof as shall be required, in addition to any other monies of the Purchasing Society available for the purpose, and any sum outstanding to the credit of the joint account aforesaid, to repay to the Vendors the total amount then outstanding on foot of the purchase money and interest due to the Vendors under and by virtue of these presents, and shall pay the monies received on foot of such calls into the joint account aforesaid, to be applied for the sole purpose of paying to the Vendors the sum then due on foot of the purchase money and interest. The said charge upon the capital of the said shares shall be prepared by the Vendors, and shall contain such powers and provisions and be in such form as the Vendors may reasonably require, and shall be executed immediately after the assurance of the premises to the Purchasing Society.
8. The Purchasing Society hereby agrees with the Vendors to make such alterations and additions in its rules as may be reasonably required by the Vendors for the purpose of making provision for the following matters:—
(1) For carrying into effect the provisions of these presents and for securing the payment of the purchase money in manner hereinbefore agreed.
(2) For ensuring so far as may be lawful that members shall sell milk only to the Purchasing Society.
(3) For regulating the number of Ordinary Shares to be held by members.
(4) For the payment of calls on shares of members by deductions out of the price payable to them for milk supplied.
(5) For the issue of Loan Guarantee Shares as a further security for the payment of the purchase monies and interest in the event of the new shares issued to new members not proving sufficient to cover the amount of the purchase money.
(6) For regulating the power of the Committee of the Purchasing Society to sanction the transfer of shares.
(7) For regulating the appointment of auditors and stock-takers and the approval of such appointments by the Department of Lands and Agriculture.
(8) For the holding of audits and stocktakings.
Such alterations and additions shall apply to all former suppliers of milk to the premises the subject of this agreement who have or will become members of the Purchasing Society, and shall remain in force until the purchase monies hereinbefore contracted to be paid and all interest thereon shall have been paid to the Vendors.
9. The premises are held
10. The Vendors will on closing hand to the Purchasers the following and no other documents, viz.:—
11. The Purchasing Society shall accept the title of the Company to the premises, milk supply, and goodwill without search or enquiry as good and sufficient in all respects, and shall make no objection or requisition in respect of the same on any point or matter whatsoever.
12. The purchase shall be completed on the day of and the Purchasing Society will be entitled on that date to a proper assurance of the premises and a proper assignment of the milk supply. The Purchasing Society shall not require the concurrence of any person other than the Liquidator of the Company and the Vendors in the Conveyance to them, and shall make no objection on the ground that any other person ought to be and is not a party. All outstanding legal estates, if any, shall be traced and got in by and at the expense of the Purchasing Society, and the Vendors shall be under no obligation in respect thereof.
13. The Conveyance to the Purchasing Society shall include a covenant by the Purchasing Society to pay, observe, perform, and indemnify the Vendors against the rents and covenants of the Lease, and a further covenant that the Purchasing Society will at all times keep the Vendors indemnified in respect of the contracts or orders, the benefit whereof is to be assigned, and against all proceedings, costs, damages, claims, payments, and liabilities by reason of the non-performance or non-execution of the said several contracts or orders.
14. The Purchasing Society shall, notwithstanding any discrepancies or variations in names, quantities, measurements, boundaries, abutments, or otherwise, admit the identity of the premises with that comprised in the muniments upon the evidence afforded by a comparison of the description in this agreement with the muniments and plans thereto (if any).
15. The premises are believed and shall be taken to be correctly described as to tenure, quantity or otherwise, and are sold subject to all rents and outgoings, and to all incidents of tenure, rights of way, and other rights and casements (if any) affecting the same; and if any error, misstatement, or omission shall be discovered in the particulars of the premises as described in this agreement, or any of the documents of title, the same shall not annul the sale nor be a ground for the allowance of any compensation by the Vendors in respect thereof.
16. All profits in respect of the business and premises up to the date fixed for completion and all outgoings in respect thereof up to the same date (including ascertained liabilities then previously incurred in respect of the said business, but not discharged) shall, as the case may be, belong to or be discharged by the Vendors, and from the date fixed all outgoings and losses (including all liabilities and outgoings arising out of any uncompleted contracts and engagements and all future claims in respect of all completed contracts and engagements) shall be discharged by and the rents and profits (including the receipts from the business) shall belong to the Purchasing Society; and the rents, profits, and outgoings shall, if necessary, be apportioned for the purpose of this provision. Provided that the Purchasing Society shall not be let into actual possession or receipt of the rents or profits until the completion of the purchase. If from any cause whatever other than the wilful default of the Vendors the purchase shall not be completed on or before the date fixed for completion, the Purchasing Society shall pay to the Vendors all costs and expenses incurred by the Vendors in carrying on the said business in the interval between the date fixed for completion and the date of actual completion, and shall not be entitled to any compensation for the Vendors' delay or otherwise, but this stipulation shall be without prejudice to the Vendors' rights under any other of these conditions.
17. Until the actual completion of the purchase the Vendors shall retain possession of the premises and the right to control the conduct and management of the business, but without prejudice to the provision as to the appropriation of profits and the liability for outgoings and losses hereinbefore contained. If the purchase be not completed on the day fixed, the Vendors shall carry on the business until the date of actual completion for the benefit and at the sole risk and costs in all respects (including the Manager's salary) of the Purchasing Society.
18. The receipts for the last rents accrued due up to the date fixed for the completion of the purchase shall be accepted as conclusive evidence of the performance and observance of the covenants and conditions in the Lease under which the same is held, and of the payments of all rents accrued due, and of the performance and observance of all the covenants and conditions contained in the Superior Lease (if any), or of the effectual waiver of any breach (whether continuing or not) of any covenant or condition up to the actual completion of the purchase, without proof being required of the title or authority of the person giving the said receipts.
19. The purchase money shall be apportioned between the parties for the purpose of stamp duty as follows, namely—£ shall be for the price of the said premises, milk supply, and goodwill, and £ shall be the price of the movable chattels transferable by delivery.
20. If the purchase shall not be completed by the date fixed for the completion through failure of the Purchasing Society to comply with any of these conditions, the Vendors shall be at liberty to rescind the sale to the Purchasing Society and to re-sell the premises; the loss (if any) arising out of such re-sale, and all expenses attending the same, shall be made good and paid by the Purchasing Society as liquidated damages, and any increase of price on such re-sale shall belong to the Vendors.
21. Every act or thing which the Vendors may by virtue of these presents be bound to do or perform, shall for the purposes of this agreement be deemed to have been done or performed by them if done or performed by the Liquidator of the Company.
IN WITNESS whereof the Vendors have hereunto affixed their corporate seal and the Purchasing Society, pursuant to resolution of its Committee dated the day of 192 has hereunto affixed its seal the day and year first in these presents written