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CLSA Schedule 6

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    Schedule 6

    Schedule 6 Land Release and Vacant Possession arid Use ofOption Land Pending TransferPart 1: Vacant PossessionI Appointments1.1 The Council shall after the date of this Agreement but no later than the first CPO Start Datesubject to and following the appropriate procurement process:1.1.1 appoint land referencers for the following purposes and the selected land referencers shallhave a duty of care to the Council and the Buyer:

    (a) of undertaking the referencing for the relevant CPO; and(b) providing access to the Council and the Buyer to all referencing information carriedout including title and property search information a nd o n site inspections andenquiries in relation to the CPO and.

    1.1.2 appoint a Selected Agent for the following purposes and the Selected Agent shall have aduty of care to the Council and the Buyer:(a) negotiations with the owners or prospective grantors of Third Party Interests includinghaving regard to the purchase contracts offered and entered into in accordance withSchedule 2; and(b) advice in relation to CPO Compensation in respect of Third Party Interests.

    2 Rehousing Report2.1 Within 6 months of the date of this Agreement, the Council shall complete the precedentRehousing Report attached at Schedule 26 by, in relation to each Existing Home comprisedwithin the Option Land, populating the blank fields in the precedent Rehousing Report withsuch information of which the Council is aware at that time and provide a copy to the Buyerand, if established, the Project Delivery Group.2.2 Throughout the duration of this Agreement, and consistent with the t iming of the DetailedNeeds Assessment the Council will keep the Rehousing Report up to date in relation to thoseparts of the Option Land which have not yet been transferred to the Buyer.2.3 The Rehousing Report shall contain the following information:2.3.1 The address of every Existing Home located in the Option Land and which has not yet beentransferred to the Buyer.2.3.2 In relation to each Existing Home listed in the Rehousing Report:

    (a) the property type (e.g. House, apartment);(b) the number of bedrooms in the property;(c) the GIA of the Existing Home;

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    Schedule 6(d) whether the property has a garden and/or off-road parking;(e) whether they are:

    (i) a Council Owned Residential Unit and, i f so , whether they are (aa) occupiedby a Secure Tenant, (bb) let to a Short Term Occupier or a RegisteredProvider, (cc) (so far as the Council has sufficient information to so specify)occupied on any other basis or (dd) vacant;

    H) owned by an Owner;iii) owned by a Registered Provider and, if so , whether the Assured Tenant living

    in the property has elected to be rehoused by the Council within theDevelopment.(f) the Councils suggestion as to the type, number of bedrooms and GIA of theReplacement Home that the Buyer would need to make available to replace the

    property, such suggestion being in accordance with the provisions of clause 13.2.2.3.3 In relation to each Existing Home listed in the Rehousing Report that is a Council OwnedResidential Unit occupied by a Secure Tenant, the additional information set out below in sofar as the Council is aware of the same (and the Council shall require its employees andcontractors to promptly communicate any changes they may identify to the relevant officers ofthe Council):

    (a) the Councils Needs prediction including:i) the number of lawful occupiers living in the property;H) the number of bedrooms required in the Replacement Home by reference tothe Needs of the Secure Tenant (and anyone lawfully living with them) living

    in that property;Hi) any additional requirements in relation to the location and/or adaptation of theReplacement Home arising as a result of any disability or for any otherreason;

    (b) whether a Secure Tenant Contract Acceptance Form ha s been received in relation tothat property.2.3.4 In relation to each Existing Home listed in the Rehousing Report that is owned by an Owner,whether the property is subject to a Standard Purchase Contract, an Advance ExistingPurchase Contract or an Early Purchase Contract and, if applicable, any estimatedcompletion date in relation to those contracts.2.3.5 Regarding properties where vacant possession has been secured by the Council but have notyet been transferred to the Buyer:

    (a) the addresses of those properties; and(b) whether the properties have been re-let and, if so , on what basis.

    2.3.6 Following service of a Home Election Notice, u~hether the Owners have confirmed (or aredeemed to confirm) that they wish to proceed with the acquisition of the Replacement Home.42578078.2\1o08 1a7RGB/90883.00001/9510001.1

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    Schedule 6

    2.4 The Council shall provide an updated Rehousing Report to:2.4.1 the Project Delivery Group as often as is reasonably required by the Project Delivery Group;

    and2.4.2 the Buyer on demand, if the Buyer is considering activating the Pre-PPDN procedure detailed

    in clause 11.2 provided that the Buyer will pay in advance) the Councils reasonably incurredcosts in providing any updated Rehousing Report more frequently than required by theProject Delivery Group and such cost will not be Allowable Revenue Expenditure or AllowableCapital Expenditure.3 Rehousing Process3.1 The Rehousing Report shall be used by the Buyer, the Council and the Project DeliveryGroup to inform the Parties decisions about the Replacement Homes Proposal and thepractical decanting whether before or after a CPO is confirmed, together with the CPO

    Implementation Programme.3.2 The Buyer shall update the Project Delivery Group no less than every 6 months as to thelikely Estimated Habitable Date(s) for the Replacement Homes in the relevant Build Phaseand, as soon as reasonably practicable thereafter, the Council shall pass on such informationto the Owners, Registered Providers and Secure Tenants located within the Demolition Phase

    in accordance with its obligations under the relevant purchase contracts or Secure TenantContract or otherwise.3.3 If the Buyer anticipates that one or more Estimated Habitable Date(s) for the relevant BuildPhase may occur before the Secretary of State has confirmed an Approved CPD for theDemolition Phase, the Buyer and the Council may agree to decant some or all of the Owners

    and Secure Tenants to the relevant Build Phase prior to the service by the Buyer of a VPRequirement Notice (but shall not be obliged to do so).3.4 Either Party shall be entitled to propose at a meeting of the Project Delivery Group thatresidents, occupying Existing Homes in a Phase for which a CPO Start Notice has beenserved but for which a VP Requirement Notice has not yet been served, move into aReplacement Home prior to the service of a VP Requirement Notice for that Phase, butneither Party shall be bound to commence such rehousing unless the other Party consents or

    until there is a Satisfactory CPO. If the Parties agree to secure vacant possession (actingreasonably) then the Par ties shall a lso agree the t iming by which the relevant mechanisms inthe relevant purchase contracts or Secure Tenant Contract shall be operated in order toachieve early rehousing.3.5 No Party can be required to complete on the grant of a Replacement Accommodation Leasebefore an Independent Certifiers Habitable Certificate has been issued in respect of theReplacement Accommodation.3.6 The Demolition Phase may be subject to Purchase Contracts, for which a Home ElectionNotice may be served in accordance with paragraph 3.1 of PartS of Schedule 2 and for whichcompletion notices may be served in accordance with Schedule 2.3.7 The Parties acknowledge that there is nothing to prevent an Independent Certifiers HabitableCertificate from being issued before or after an Approved CPO has been made or confirmed.3.8 The Project Delivery Group shall use reasonable endeavours to:

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    Schedule 6

    3.8.1 agree a practical and appropriate programme for:(a) decanting Qualifying Owners, Secure Tenants and Assured Tenants (who, eitherbefore or during the Detailed Needs Assessment have elected to be rehoused by theCouncil in the Development) entitled to a Replacement Home to the Replacement

    Home allocated under the Home Allocation Plan;(b) decanting other residents from the relevant Build Phaseat all times having regard to the obligations of both Parties under this Agreement, the relevanttimescales for activating completion mechanisms under the Purchase Contracts (and anyother purchase contracts applicable to the relevant Demolition Phase), the EstimatedHabitable Date(s) for the Build Phase (which may be subject to change); and

    3.8.2 thereafter to keep under review and agree changes as appropriate and necessary.4 Early Vacant Possession: Reletting and Non Residential Properties4.1 Reletting4.1.1 From the date of this Agreement until the service of the Trigger Notice the Council shall have

    a discretion and be entitled to enter into each of the transactions envisaged inparagraph 4.1.2 below and shall also be ent it led to relet or par t with possession of thebuildings at its discretion and in accordance with its policies from time to time (but not tootherwise dispose of its interest) but shall have due regard to the probability of theDevelopment proceeding.4.1.2 From the date of the service of the Trigger Notice until (for each relevant Demolition Phase)the date immediately prior to the date on which the Approved CPO is confirmed, if the Councilreceives vacant possession of a property within the Option Land then the Council shall notrelet or otherwise deal with that property (including letting to another Secure Tenant), savethat the Council may:

    (a) in respect of residential dwellings:) i) let the property to a Short Term Occupier on terms which shall not prevent orimpede the Council from giving vacant possession of such property whenrequired under this Agreement; or

    (ii) let the property to a Registered Provider provided that such lease(aa) is approved by the Buyer (such consent not to be unreasonablywithheld or delayed)(bb) cannot be varied without the Buyers consent (such consent not to beunreasonably withheld or delayed);(cc) is excluded from the operation of sections 2428 of the Landlord

    and Tenant Act 1954;(dd) includes a break clause permitting the landlord to terminate the lease

    on not more than 6 months notice;

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    Schedule 6

    (ee) prohibits the Registered Provider from sub-letting on terms other thana weekly periodic Assured Shorthold Tenancy which can beterminated at any time on not more than 2 months notice pursuant tosection 21 of the Housing Act 1988;

    (if) includes a covenant from the Registered Provider not to claim anycompensation in the event that the Council has to ultimately securevacant possession of any property via the CPU; and(gg) shall otherwise be on terms which shall not prevent or impede theCouncil from giving vacant possession of such property whenrequired under this Agreement.

    (b) in respect of non-residential premises, let the property to a commercial tenant oroccupier provided that such lease or licence:i) is approved by the Buyer (such consent not to be unreasonably withheld ordelayed)U) cannot be varied without the Buyers consent (such consent not to beunreasonably withheld or delayed);Ni) shall not permit alienation of any description;(iv) is excluded f rom the operation of sections 24 28 of the Landlord andTenantAct 1954;Cv shall include a break clause permitting the landlord to terminate the lease onnot more than 2 months notice;(vi) includes a covenant from the relevant tenant not to claim any compensation

    in the event that the Council has to ultimately secure vacant possession ofany property v ia the CPU;vU) shall otherwise be on terms which shall not prevent or impede the Councilfrom giving vacant possession of such property when required under thisAgreement.

    4.1.3 From the date on which the Approved CPO is confirmed, if the bouncil receives vacantpossession of a property within the land comprised within the CPU (other than by a processreferred to in paragraph 4.1.1) then the Council shall not re let or otherwise deal with thatproperty, without the consent of the Buyer in its absolute discretion.5 Vacant Possession GPO and Closure Orders5.1 Resolutions in principle for a CPU and Buyer Proposals for Appropriation Schemes5.1.1 In relation to each proposed CPU the Councils cabinet will be asked by Council officers toresolve in principle to prepare the CPU as soon as reasonably practicable having regard tothe Councils obligations under this Agreement after service of the relevant CPU Start Notice.5.1.2 In relation to any Appropriation Scheme Land i f the Council has not made a CPU that will

    override any Third Party Interests (including rights of light) or otherwise extinguish such ThirdParty Interests (including rights of light) over the Appropriation Scheme Land, where such42878078.2\IoOS 190RGB/90853.00001/9510001 .11

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    Schedule 6Third Party Interests would inhibit or restrict the carrying out and/or uae of the Development,upon notice by the Buyer to the Council a Buyers Appropriation Scheme Notice) andaccompanied by a draft Appropriation Scheme which shall contain the Buyers proposals forany Additional Costs and Compensation Liability Security the Council shall consider details ofan Appropriation Scheme and the parties agree that the Appropriation Scheme shall accordwith the following principles:(a) the consideration for i) such transfer to the Council and H) such transfer back orlease back to the Buyer or a Connected Party (or in the case of the Seagrave Road

    Site to the Buyer or a Connected Party or to the Seagrave Road LP) shall both be thelowest possible conaideration consistent with the Councils statutory and legalobligations;(b) the Council and the Buyer shall use reasonable endeavours to minimise any liabilityfor stamp duty land tax or VAT or any other tax or levy in respect of suchAppropriation Scheme but to the extent that the Council becomes liable for any stampduty land tax or VAT or any other tax or levy as a result of the Appropriation, i) the

    Buyer will itself (or procure that the Connected Party or the relevant owner whoseidentity and covenant strength shall first be approved by the Council (such approvalnot to be unreasonably withheld or delayed) indemnify the Council in respect of suchliability, o r ii) that such other security as may be approved by the Council (suchapproval not to be unreasonably withheld or delayed) is provided to the Council inrespect of such liability of the Council.

    (c) the Council shall use reasonable endeavours to obtain all necessary consents for theAppropriation and the Appropriation Scheme as soon as possible;(d) the reasonable legal and professional costs of the Council in respect of theAppropriation Scheme shall be paid for by the Buyer (or other party indemnifying theCouncil as aforesaid) (and the Compulsory Purchase, Closure Order andAppropriation Scheme Costs and Compensation Agreement provides forcompensation payable to the owners of Third Party Interests to be payable by theBuyer subject to the terms of the Compulsory Purchase, Closure Order andAppropriation Scheme Costs and Compensation Agreement);(e) the Council and the Buyer shall work together to optimise the t iming of theimplementation of the Appropriation Scheme in relation to (where relevant) theachievement of the CPO Implementation Programme and the VP Target Date for arelevant Phase;f) it will be an overriding aim of any Appropriation Scheme that the Councils liability for,or potential liability for, expense in connection with its ownership of the land thesubject of the Appropriation Scheme will be minimised. These expenses include, butare not limited to:

    i) rates;H) insurance (including occupiers liability insurance);iB) planning matters;(iv) environmental matters; and

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    Schedule 6

    (v) expenses associated with construction on the s ite to which the AppropriationScheme applies.(g) the Buyer shall provide with the draft Appropriation Scheme an estimate of thecompensation for which the Council will be liable as a result of any appropriationcertified by an independent surveyor: and(h) if required by the Council the Buyer shall provide or procure to be provided to theCouncil such reasonable Additional Costs and Compensation Liability Security as theParties shall agree subject to paragraph 5.6.11

    5.1.3 If the terms of the Appropriation Scheme (and subject to paragraph 5.6.11 including anyAdditional Costs and Compensation Liability Security) have not been agreed within 60 days ofthe Buyers Appropriation Scheme Notice the matter shall be referred for resolution to a panelcomprising the Chief Executive and Leader of the Council and such representatives of theBuyer as the Buyer shall nominate (up to a maximum of 2 representatives) within a further 21(twenty one) days

    5.1.4 If b y the date which is 120 (one hundred and twenty) days from the Buyers AppropriationScheme Notice the Appropriation Scheme shall not have been agreed and any necessarythird party consents have not been obtained then the Buyer may by written notice Terminatethis Agreement and the provisions of Schedule 16 shall apply to such Termination.5.1.5 Following agreement of the Appropriation Scheme, i f the Councils arrangements require, theCouncil shall submit the agreed Appropriation Scheme to Cabinet within 60 Working Days ofthe Appropriation Scheme being agreed for a decision whether to proceed with theAppropriation Scheme and if this has not been so submitted to Cabinet and/or Cabinet has

    not resolved to proceed with the agreed Appropriation Scheme within this time period then theBuyer may by written notice Terminate this Agreement and the provisions of Schedule 16shall apply to such Termination.

    5.1.6 If the Appropriation Scheme shall not have been implemented by the relevant parties havingentered into all required documentation within 60 (sixty) Working Days of the Councilscabinets decision to proceed with the Appropriation Scheme then the Buyer may by writtennotice Terminate this Agreement and the provisions of Schedule 16 shall apply to suchTermination save that the Buyers right to Terminate will be suspended where theAppropriation Scheme has not been implemented because:(a) by the date whch is 60 (sixty) Working Days from such Councils cabinet decision, agrant of any Secretary of State or other statutory third party consent required for it to

    be lawfully implemented has not yet been obtained Provided That any suchsuspension of the Buyers right to Terminate shall not apply following the grant ofsuch consent and the Buyer may Terminate this Agreement and the provisions ofSchedule 16 shall apply to such Termination if any suspension period exceeds 30(thirty) Working Days; or(b) of the failure ofthe Buyer to provide the agreed Additional Costs and CompensationLiability Security Provided That any suspension of the Buyers right to Terminate shallend when either such agreed Additional Costs and Compensation Liability Securityhas been provided or the Buyer notifies the Council that the Appropriation Scheme is

    not being pursued so no Additional Costs and Compensation Liability Security will berequired (save to cover any Additional Costs and Compensation incurred prior to thedate of such notification in which case such Additional Costs and Compensation42878078.2\1o08 192RGB/90883.00001/95 10001.11

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    Schedule 6

    5.4.1 In relation to each CPO, within 20 Working Days of the CPO Start Date for that CPO theCouncil will commence the formal title referencing for the Third Party Interests and on Siteand near Site inspections and enquiries in relation to the CPO Land.

    5.5 Negotiations and Selected Agent5.5.1 The Council and the Buyer will during the negotiations for the acquisition or grant of any ThirdParty Interest keep each other reasonably informed of the progress of such negotiations.5.5.2 Each Party will notify the other of the exchange and completion of any agreement for theacquisition or grant of any Third Party Interest.5.5.3 Nothing in the provisions of this Schedule will prevent the Council or the Buyer negotiatingwith the owners of Third Party Interests provided that it is in accordance with the provisions ofthis Agreement.5.6 CPO, CPO Budget and CPO Map5.6.1 Within 4 months of t he CPO S ta rt Notice for any GPO t he Council will prepare the followingdocuments in draft and submit the same to the Project Delivery Group and/or GPO sub groupfor its approval:

    (a) the Statement of Reasons;(b) the GPO, including schedule of Third Party Interests and GPO map;(c) subject to paragraph 5.6.2 of this Schedule, the CPO Budget(d) a report identifying all the Council interests in a Demolition Phase, the Earls Court,

    Regeneration Site, or the Seagrave Road Site, or elsewhere including any Councilsinterests which are to be Appropriated; and(e) the report to the cabinet supporting the making of the CPO and any Appropriation ofCouncils interests.

    5.6.2 A CPO Budget shall be prepared by the Council prior to the making of any GPO and inrespect of a Blight Notice for o r in respect of a Third Party Interest before accepting that BlightNotice Provided that there will be no obligation to prepare, submit or maintain a CPO Budgetfor any CPO where the Council has given notice pursuant to paragraph 5.6.6 below andclause 2.11 of the Compulsory Purchase, Closure Order and Appropriation Scheme Costsand Compensation Agreement that it will be using its own resources to fund the costsassociated with a CPO or a Blight Notice.5.6.3 To allow the Council to prepare a CPO Budget the Buyer shall cooperate with the Council andupon receiving a written request by the Council the Buyer shall provide relevant landacquisition related information in its possession (to the extent reasonably and properlyrequired by the Council) in order to draw up the CPO Budget.5.6.4 The GPO Budget shall where one is required be monitored and reviewed on a quarterly basiswith the Buyer and the Council.5.6.5 The GPO Budget shall contain an overall estimate and breakdown for all GPO Compensationand Costs set out in Schedule of the Compulsory Purchase, Closure Order andAppropriation Scheme Costs and Compensation Agreement and the Council shall provide the42878078.2\1o05 194RGB/90883.00001/9510001.1

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    Schedule 6Buyer with a quarterly update on these estimates showing actual costs against budgetedcosts, together with an explanation for any cost overruns and an alert of any potential costoverruns and their respective amounts as soon as such potential cost overruns appear morelikely than not.

    5.6.6 In the event that the Council has notified the Buyer in writing in advance that it will be using itsown resources to fund the costs and compensation associated with a CPQ or a Blight Noticeor an Appropriation and that such costs and compensation will not be included in the CPOCompensation and Costs, paragraphs 5.6.2 and 5.6.5 of this Schedule will apply (in order tokeep the Buyer informed as to costs and compensation in the context of other potential CPOsor Blight Notices) save that there will be no obligation to provide an alert of any potential costoverruns (as would otherwise have been the case as specified in paragraph 5.6.5 of thisSchedule).5.6.7 The Project Delivery Group and/or CPO sub group as appropriate will consider thedocuments listed in paragraph 5.6.1 and advise whether they are ready to be submitted to theCouncils cabinet for a resolution to make a CPO or to undertake an Appropriation.5.6.8 If the Project Delivery Group and/or CPO sub group as appropriate consider that suchdocuments are not ready to be submitted to the Councils cabinet, the Project Delivery Groupand/or CPO sub group as appropriate shall direct how the matter should then proceedincluding, but not limited to:

    (a) what further steps, evidence, information and/or resources, if any, the Council and/orthe Buyer should take, acquire and/or provide in order to support the case for makinga CPO and/or Appropriation and the period of time that the Council and/or the Buyershall have to do this;(b) the date by which revised documents, which reflect these further steps should be

    submitted to the Project Delivery Group for approval for it to be submitted to theCouncils cabinet for a resolution to make a CPO and/or Appropriation.5.6.9 If the Project Delivery Group and/or CPO sub group as appropriate considers that suchdocuments or revised versions thereof are ready to be submitted to the Councils cabinet,then:

    (a) the Council and Buyer shall jointly instruct Counsel to advise on:i) whether, based on the information provided to Counsel in the instructions, theprospects of a CPO made pursuant to a cabinet resolution and based onthose documents being confirmed are more than 50 ; and) irrespective of the prospects of success, whether Counsel considers that theprospects of successfully promoting a CPO can be enhanced by the Counciland/or the Buyer providing or supplying any further information, evidence andreports prior to those documents being submitted to the Councils cabinet forapproval; andHi) the proposed Appropriation (if any).

    (b) the identity of Counsel to be instructed shall be agreed by the Project Delivery Group.5.6.10 CPO Suspension Notice and CPO Restart Notice

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    Schedule 6

    (a) At any time prior to the Council passing a resolution to make a CPO the Buyer shallbe entitled to serve on the Council a CPO Suspension Notice which shall have effectfor up to 6 months from the date of such not ice.(b) After receipt of a CPO Suspension Notice:

    i) the Council shall cease carrying out all procedures in respect of the relevantCPO which is the subject of the CPO Suspension Notice other than anyprocedures or processes specified in writing from time to time by the Buyer atthe time of or subsequent to the service of the CPO Suspension Notice whichthe Council shall continue with;

    ii) the Time Critical Item Completion Period referred to at Appendix I to thisSchedule shall be suspended in respect of the relevant CPO (whether or notany procedures or processes are specified as those for the Council tocontinue with pursuant to paragraph 5.6.1 0(b)(i) above);Hi) the Project Delivery Group shall meet within 10 (ten) Working Days of theservice of a CPO Suspension Notice to consider an d agree what if anymatters should be continued or commenced during the period of a CPOSuspension Notice.

    (c) No later than 6 months after service of a CPO Suspension Notice, the Buyer mayprovide notice to the Council that the Council shall re-start the process andprocedures in respect of the CPO which was the subject of the CPO SuspensionNotice by service on the Counc il of a CPO ReStart Notice and the Council and theBuyer (acting reasonably) shall agree a revised CPO Implementation Programme forsuch CPO, and whether any further information or documentation is required tosupport the CPO (including whether an updated Detailed Needs Assessment isrequired) and a commensurately revised Time Critical Item Completion Periodreferred to at Appendix I to this Schedule and where thi~ is not agreed within SWorking Days of the service of such a CPO ReStart Notice, either the Buyer or theCouncil may refer the matter(s) to the dispute resolution procedure set out in clause40

    5.6.11 Additional Costs and Compensation Liability Security(a) If reasonably required by the Council the Buyer shall provide Additional Costs andCompensation Liability Security in respect of Non-Deductible Compensation andCosts and such Additional Costs and Compensation Liability Security may include

    any or any combination of the following at the discretion of the Buyer:i) A guarantee;H) A cash security deposit;Hi) Security over other assets;(iv) The inclusion of the whole or part of the Additional Costs and CompensationLiability as an Outstanding Liability under this Agreement;(v) An adjustment to the Initial Guaranteed Amount;(vi) Any other form of security acceptable to the Council.

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    Schedule 6(b) Where Additional Costs and Compensation Liability Security is reasonably requiredby the Counc il the Buyer shal l specify to the Council the Additional Costs andCompensation Security offered by the Buyer and the terms on which such securitywil l be provided (Additional Costs and Compensation Security Arrangements)for approval by the Council.(c) The Council shall not unreasonably require any Additional Costs and CompensationSecurity or unreasonably withhold its approval to any proposed Additional Costs andCompensation Security Arrangements.(d) Where Additional Costs and Compensation Security Arrangements are to be provided

    the Buyer and the Council shall endeavour to agree the terms of such documentationas may be required to implement such arrangements (Additional Costs andCompensation Security Documentation) and each Party shall not unreasonablywithhold its agreement to such terms.(e) Any dispute as to (a) whether the Council is unreasonably requiring Additional Costsand Compensation Security or (b) whether the Council or the Buyer is unreasonablywithholding its approval to any proposed Additional Costs and Compensation SecurityArrangements or to the Additional Costs and Compensation Security Documentationmay be referred for determination by an Expert in accordance with clause 40 and theExpert shall have regard where the dispute relates to the need for or amount ofAdditional Costs and Compensation Security in relation to the Appropriation of landwhich is not Council owned land to the principle in paragraph 5.1.2(f).(f) As soon as possible and in any event within 20 Working Days following agreement ordetermination of any Additional Costs and Compensation Security each Party shallenter into the same and as soon as possible shall do all such other things as may be

    necessary to give effect thereto;(g) Additional Costs and Compensation Security shall not be required to be in force until

    5 Working Days before the relevant CPO is to be made and/or the rele~iant transfer ofland to the Buyer is to be made following an Appropriation.5.7 Where Counsel considers that the prospects of obtaining a confirmed CPO are morethan 50

    If Counsel has advised that the prospects of a CPO (made pursuant to a cabinet resolutionand based on the documents) being confirmed are more than 50 then:

    5.7.1 within 10 (ten) Working Days of receipt of any Counsels advice received pursuant to aninstruction issued under paragraph 5.6.9 the Project Delivery Group shall meet to decidewhether the draft CPO, CPO map and Statement of Reasons (incorporating any amendmentssuggested in Counsels advice if applicable) is ready to be submitted to the Councils cabinetfor a resolution to make a CPO; and5.7.2 If the Project Delivery Group decides that the draft CPO, CPO map and Statement ofReasons are ready to be submitted to the Councils cabinet for a resolution to make a CPO itshall provide the Council with written notification to proceed with submitting the draft CPO,CPO map and Statement of Reasons to the Councils cabinet for a resolution to make a CPD;and

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    Schedule 6

    5.7.3 where the Project Delivery Group has served written notification in accordance withparagraph 5.7.2 the draft GPO, GPO map and Statement of Reasons shall be submitted tothe Councils cabinet as soon as reasonably practicable subject to paragraph 5.8.5.

    5.8 Where Counsel considers that the prospects of obtaining a confirmed CPO are 50 orless5.8.1 If Counsel has advised that the prospects of a GPO (made pursuant to a cabinet resolutionand based on the documents) being confirmed are 50 or less the Project Delivery Groupshall meet within 10 (ten) Working Days of receipt of Counsels advice to decide including thecollation and production of additional documentation where Counsel advises this is required

    to improve the chance of securing a confirmed GPO:(a) the steps to be taken following receipt of Counsels a vice and the period of timewithin which those steps should be taken; and(b) if relevant the date by which a further draft GPO (including GPO schedule) and CPOmap should be submitted to the Project Delivery Group for approval for it to besubmitted to the Councils cabinet for a resolution to make a GPO; and(c) whether, prior to submitting the documents back to the Project Delivery Group and i fthe Project Delivery Group consider t appropriate, the Buyer and Council shall jointlyinstruct Counsel to advise on the matters detailed in this paragraph in the l ight of thefurther evidence and/or information collated; and(d) the Project Delivery Group will submit written details of the matters outlined at5.8.1(a) to (c) for the Buyers approval within 5 Working Days.

    5.8.2 In the event that the Buyer has confirmed approval in writing of the steps to be carried out at5.8.1(a) to c), the Project Delivery Group shall arrange for the steps identified to beundertaken within the programme identified.5.8.3 Once the steps identified at paragraph 5.8.1(a) have been carried out to the satisfaction of theProject Delivery Group and the Buyer the Project Delivery Group and/or GPO sub group asappropriate will consider whether the documents are ready to be submitted to the Councilscabinet in accordance with paragraph 5.6.8.5.8.4 The Council shall, i f necessary, continue to modify the draft CPO and supportingdocumentation and evidence in a manner to secure the opinion of Counsel that the draft CPOhas more than a 50 chance of being confirmed unless and until the Council receives the

    advice of Counsel that the CPO is incapable of being modified and has a 50 or less chanceof being confirmed and becoming a Satisfactory GPO and therefore should not be made andfollowing receipt of that advice from Counsel then the Council can abandon attempts to makethe CPO subjectto paragraphs 5.10.10 and 5.10.11.5.8.5 If, at anytime, the Project Delivery Group and/or GPO sub group as appropriate disagrees onany aspect within this paragraph 5, the matter shall be referred to be determined inaccordance with clause 40.5.8.6 Subject to paragraph 5.7 as soon as reasonably practicable (bearing in mind the agenda formeetings of the Councils cabinet and the need for pre-meeting information and appropriatepublicity) after the CPO sub group and/or Project Delivery Groups decision to submit a

    proposed CPO to the Councils cabinet, the Councils officers shall submit the following4287ao7s.2\Iooa 198RGB/90883.00001/9510001 .11

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    Schedule 6documents, as approved by the Project Delivery Group and/or CPO sub group, to theCouncils cabinet for a resolution to make the CPO and Appropriate the relevant Councilsinterest(s) and authority to seal the same:(a) Statement of Reasons in respect of the CPO;(b) CPO and CPO map;(c) a report supporting the making of, pursuing, confirmation and implementation of theCPO.(d) a report identifying all the Councils land in the Earls Court Regeneration Site which isto be Appropriated.

    5.9 Information Exchange for a CPO and a Closure Order5.9.1 The Council will regularly (not less than fortnightly) consult with the Buyer in relation to the

    progress of the preparation for, making of, pursuing, confirmation and implementation of anyCPO and arrangements, procedures, preparation for and conduct of any Inquiry and theCouncil will supply to the Buyer, as soon as reasonably practicable, copies of all relevantdocumentation relating to the CPO for consultation and comment by the Buyer (except wherethe Council has been advised by Counsel that the supply of such documents could prejudicethe success of the CPO).5.9.2 The Council and Buyer will regularly (not less than fortnightly) consult with each other inrelation to the progress of the preparation for, making of, pursuing, confirmation andimplementation of any Closure Order and each will supply the other, as soon as reasonablypracticable, copies of all relevant documentation relating to any Closure Order for consultation

    and comment (except where the Council has been advised by Counsel that the supply ofsuch documents could prejudice the success of the Closure Order).5.9.3 The Councils and the Buyers obligations in paragraphs 5.9.1 and 5.9.2 will be discharged byprovision of information to the CPO sub group and/or the Project Delivery Group asappropriate.5.9.4 The Buyer will (at its own cost) provide all reasonable assistance to the Council with any CPOand Closure Order.5.10 Making any CPO5.10.1 Subject to paragraph 5.6.10 (CPO Suspension Notice) and subject to the Buyer supplying to

    the Council any relevant Additional Costs and Compensation Security Documentationpursuant to paragraph 5.6.11 no later than the expiry of 6 months from the date on which theCPO Start Notice was served (or 8 months in relation to a CPO within paragraph (c) of thedefined term CPO) the Councils cabinet will be asked to resolve to make a CPO andAppropriate the Councils interests within the relevant Demolition Phase.5.10.2 If the Council has resolved to make a CPO the Council will, in full consultation with the Buyer,proceed with due diligence (and in any event within 10 (ten) Working Days of the date of theresolution) to mske the CPO.5.10.3 Within 15 (fifteen) Working Days of the date on which the CPO is made and the Buyer

    receives from the Council a copy thereof, together with all notices and the Statement of42878078.2\1o08 199RGB/90883.00001/9510001.1

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    Reasons in respect thereof, the Buyer will serve on the Council written notice (the BuyersApproval Notice) confirming that:(a) the Buyer is satisfied that so far as it is aware the CPO has been made in compliancewith all statutory requirements; and(b) the Buyer is satisfied with the GPO in terms of the Third Party Interests included inthe GPO or(c) that the CPO is not approvedand any failure to serve the Buyers Approval Notice within the 15 (fifteen) Working Daysreferred to above will be deemed to be service of the Buyers Approval Notice, and followingreceipt of the Buyers Approval Not ice the CPO wil l be termed an Approved GPO.

    5.10.4 The Council will (subject to any necessary Additional Costs and Compensation Securitypursuant to paragraph 5.6.11 being provided) within 10 (ten) Working Days of the date onwhich the Buyer serves the Buyers Approval Notice:(a) submit an Approved CPO to the Secretary of State for confirmation and use itsreasonable endeavours to obtain confirmation of the GPO and shall jointly appointCounsel with the Buyer to advise in relation thereto; and(b) Appropriate all interests owned by the Council in the CPO Land.

    5.10.5 If the Council fails to submit the Approved CPO to the Secretary of State for whatever reasonit shall be obliged and under an obligation to continue to seek to submit the Approved GPO tothe Secretary of State unless and until the Council receives the advice of Counsel thatsubmitting the Approved CPO to the Secretary of State ha s a 50 chance or less of beingconfirmed but if the Council has received the advice of Counsel that there is a 60 chance orless of securing a confirmed CPO which would be a Satisfactory GPO this shall be a CouncilAbandonment Event and the Council shall be entitled to abandon the GPO subject toparagraph 5.10.11.

    5.10 .6 The Council shall promptly invite representatives of the Buyer to attend all meetings and allconsultations with Counsel relating to the preparation of the case in support of any ApprovedGPO and for any Inquiry into objections against any Approved GPO and shall consult with theBuyer in relation to the form of the joint instructions to be provided for Counsel and theselection of witnesses to give evidence on behalf of the Council and the Buyer at any Inquiry.

    5 .10 .7 The Buyer will be entitled to appoint and will appoint if requested by the Council or on theadvice of Counsel professional consultants to support the Council in seeking the confirmationof any Approved GPO, including the giving of evidence as to matters within its or theircompetence or proper expertise, the provision of expert witnesses and attendance or givingassistance at any Inquiry.5 .10 .8 The Council shall negotiate with objectors to any Approved CPO and seek the withdrawal ofobjections and agree with the Buyer the form and content of appropriate undertakings (if any)

    to objectors having first obtained the advice of Counsel thereon where possible andconsistent with this Agreement.5.10.9 In relation to the first Demolition Phase the Council will not be obliged (save to the extent that

    the Council decides at its own discretion to proceed) to proceed to an Inquiry into anyobjections into any GPO or take any further steps to secure confirmation of any CPO save for42878078.2\IoOS 200 RGB/90883.00001/9510001.1

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    the preparation and issue of its Statement of Case for any Inquiry or written representations inany written representations process or initial submissions in relation to any court hearing(where applicable) unless:(a) in the case of an Inquiry by the date which is 8 weeks before the date for exchange of

    evidence pursuant to Rule 15(3) of the Compulsory Purchase (Inquiries Procedure)Rules 2007; or(b) in the case of any written representations process by the date 8 weeks before thedeadline for written representations to be submitted:the Buyer has:

    (i) demolished the l ight industrial units on those parts of Roxby Place within thered edging on the plan attached with drawing number 55100/78 as labelledRoxby Place Site; or

    U) begun construction of the basement of the buildings approved pursuant to theSeagrave Road Planning Permission and required for the relevantReplacement Homes5.10.10 If there is a failure to make a CPO and this Agreement is not Terminated then the proceduresrequired to be followed by the Council in making and submitting a replacement and/or furtherApproved CPO to the Secretary of State shall only be repeated to the extent that Counsel hasadvised they need to be repeated and any dispute on this matter shall be referred to Counselacting as an expert and not as an arbitrator (and who, for the avoidance of doubt, shall onlybe the same Counsel as has advised pursuant to paragraph 5.6.9(a) if the Buyer and Councilagree) and the provisions of the Arbitration Act 1996 shall not apply to the expert, his decisionor the procedure by which he reaches his decision and the experts decision on the matter

    shall in the absence of manifest error be final and binding on the Council and the Buyer; and(a) if the Council or the Buyer wish to refer the matter to Counsel then either said Partywill give notice in writing to that effect to the other and such notice shall containdetails of the matter that the said party wishes to refer to Counsel;

    ) b) if the matter is not resolved within 2 Working Days of such notification either saidparty may then refer the matter to Counsel;(c) Counsel will allow the said parties to make written representations and writtencounter-representations to him within 5 Working Days of the date of his appointmentbut wil l not be in any way fettered by such representations and counter-representations and will rely on his own judgment (and such period cannot beextended without the consent of the said parties);(d) the said parties will give Counsel such assistance as Counsel considers necessary tocarry out his function;(e) Counsel will give notice in writing of his decision to the said parties within 10 WorkingDays of his appointment or within such extended period a s th e said parties may bothagree in writing;(f) the costs of Counsel in determining any matters pursuant to this paragraph 5.10.8shall be paid by the said parties in equal shares

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    5.10.11 Where a Council Abandonment Event occurs then:(a) the Council shall be under a duty to publicise its decision in full consultation with theBuyer; and(b) the Council shall reject any requests by Third Party Interests within the abandonedCPO to acquire their Third Party Interests unless included in a further CPO unless theBuyer expressly agrees or requests such acquisition; an d(c) the Buyer shall not be under any duty to acquire and/or fund the acquisition of such aThird Party Interest nor shall such an acquisition by the Council nor any costs andcompensation paid in respect of the same be regarded as CPO Compensation andCosts unless it has expressly agreed or requested such acquisition pursuant to subparagraph (b) above.

    5.11 Preparation and Making of Closure Orders by the Council5.11.1 Where reasonably practicable in sufficient time to allow for the potential conjoining of anyInquiry in relation to a Closure Order with any Inquiry in relation to objections to an ApprovedCPO, the Buyer will identify for the Council the requirement for any Closure Orders within theDemolition Phase or for the carrying out and use of the Development and will (at its own cost)work with the Council to prepare applications for such Closure Orders.5.11.2 Whether or not a CPO is required for proposed Development to be carried out or used butwhere a Closure Order is required for the carrying out or use of proposed Development then ifthe Buyer requests the Council to prepare a Closure Order then the Council shall prepare aClosure Order in draft and send to the Buyer a copy of the draft Closure Order and allproposed notices and statement of reasons in respect thereof and within 15 (fifteen) Working

    Days of the date of receipt the Buyer will serve on the Council written notice (the BuyersClosure Order Approval Notice):-(a) confirming that the Buyer is satisfied that so far as i t is aware that the draft ClosureOrder is in a format in compliance with all statutory requirements; and(b) confirming that the Buyer is satisfied with the proposals contained in the draft ClosureOrder; or(c) that the Closure Order is not approvedand any failure to serve the Buyers Closure Order Approval Notice within the 15 (fifteen)Working Days referred to above will be deemed to be service of the Buyers Closure OrderApproval Notice, and following receipt of the Buyers Closure Order Approval Notice theproposed Closure Order will be termed an Approved Closure Order; and(d) the Closure Order shall not be made, published, submitted to the Secretary of Stateor the Magistrates Court (as appropriate) unless it i s an Approved Closure Order andif there is a related CPO to be made by the Council the Approved Closure Order shall

    be made and published by the Council no later than I (one) month from receipt of theBuyers Closure Order Approval Not ice or I (one) month f rom the making of anyrelated CPO whichever is the later;(e) The Council will use reasonable endeavours to obtain the Closure Order;

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    Schedule 6(f) The Council will keep the Buyer informed of the progress made in the making andconfirmation of the Closure Order, any objections thereto and any negotiationsundertaken with the highway authority and relevant Government Office in respectthereof and of any communications with the confirming body and/or the Planninglnspectorate and the Magistrates Court;(g) the Council will use reasonable endeavours to secure the earliest possible date for anInquiry to hear objections to the Closure Order (or a Magistrates Court hearing) and,

    in the case of an Inquiry, seeking a conjoined Inquiry with any Inquiry into objectionsto a related CPO for a Demolition Phase

    (h) the Council will consult the Buyer and take into account all reasonablerepresentations made by the Buyer as to the progress and conduct of the promotionof the Closure Order and in relation to al l submissions and any evidence to besubmitted to the Inquiry or Magistrates Court hearing;i) the Council will supply to the Buyer all relevant advice, documentation,

    correspondence and reports received and issued in respect of the Closure Order;j) the Council will appoint an experienced counsel to present the Councils case forconfirmation of the closure Order at the Inquiry or Magistrates Court hearing and willnotify the Buyer of and invite the Buyer to any consultation with counsel and shallconsult with the Buyer on the form of the instructions (to be provided in draft form forthe Buyers comment)and in this paragraph 5.11 and in paragraph 5.12 references to the making or confirmation ofa Closure Order shall mean (as the context admits) to having performed all administrativesteps so that no further steps are required before the Closure Order can take effect.

    5.12 Preparation and Making of Closure Orders by the Buyer5.12.1 In the event that the Buyer is to make an application for a Closure Order, the Buyer shallapply for a Closure Order either before or as soon as reasonably practicable after the makingof any related CPO.5 12 2 If the Buyer applies for a Closure Order it shall

    (a) use reasonable endeavours to obtain such Closure Order;(b) keep the Council informed of the progress made in the making and confirmation and

    implementation of such Closure Order, any objections made thereto and anynegotiations undertaken with the highways authority and relevant Government Officein respect thereof and of any communications with the confirming body and/or thePlanning Inspectorate;

    c) use reasonable endeavours to secure the earliest possible date for an Inquiry toconsider objections to such Closure Order, seeking a conjoined Inquiry with anyrelated CPO which has been made and in respect of which an Inquiry into objectionsto the CPO is due to be held;(d) consult with the Council and take into account all reasonable representations made

    by the Council as to the progress and conduct of the promotion and pursuance of theconfirmation of such Closure Order and in relation to all submissions and anyevidence to be submitted to the Inquiry;42878D78.2MoO8 203RGS/90853.00001/9510001.1I

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    (e) supply to the Council all relevant advice, documentation, correspondence and reportsreceived and issued by the Buyer in respect of the promotion and pursuance of theconfirmation of the Closure Order; andf) appoint an experienced counsel to present the Buyers case for confirmation of suchClosure Order at the Inquiry and to notify the Council of and invite the attendance ofthe Council at all consultations with such counsel;

    5.12.3 Subject to the Council having decided to support a Buyers Closure Order, the Council willuse reasonable endeavours to assist the Buyer in securing confirmation of such ClosureOrder as a Satisfactory Closure Order as soon as possible.5.13 Confirmation of an Approved CPO and process if an Approved GPO is a SatisfactoryCPO5.13.1 If the Secretary of State notifies the Council pursuant to section 14A of the Acquisition of LandAct 1981 that the Approved CPO is one which the Council may confirm itself the Council willprovide a copy of the letter of notification to the Buyer and proceed to confirm the ApprovedCPO as soon as reasonably practicable thereafter.5.13.2 If the Secretary of State confirms the Approved CPO the Council will provide a copy of theletter of confirmation, any report from the Inspector and a copy of the confirmed ApprovedCPO to the Buyer as soon as reasonably practicable thereafter5.13 .3 Once an Approved CPO is confirmed:

    (a) the Buyer will confirm in writing to the Council no later than 10 (ten) Working Daysafter receiving the confirmed Approved CPO and any other documents pursuant toparagraphs 5.13.1 to 5.13.2 above whether the confirmed Approved CPO issatisfactory and if so it will be termed a Satisfactory CPO; and(b) insofar as such has not already been agreed, as soon as reasonably practicable (and

    in event within 10 (ten) Working Days) following confirmation by the Buyer that theconfirmed Approved CR3 is a Satisfactory CPO, the Council and the Buyer willthrough the Project Delivery Group and/or the CPO sub group (as appropriate) usereasonable endeavours to agree the next steps in the CPO ImplementationProgramme. Any disputes will be referred to be determined in accordance withclause 40; and(c) as soon as reasonably possible after receiving confirmation that the confirmed CPO

    is a Satisfactory CPO (and in any event within 25 Working Days of receiving suchconfirmation save where this period is extended in accordance with paragraph 5.13.4)the Council will prepare all relevant and necessary notices and documents on behalfof the Council and then publish and serve a notice of confirmation of the SatisfactoryCPO, which shall be a combined notice of confirmation of the Satisfactory CPO andin respect of those interests in which a GVD can be made) a notice of intention tomake a GVD in respect of the Satisfactory CPO and will take all necessary steps tocomply with all other relevant statutory requirements in relation to the confirmedSatisfactory CPO;

    (d) unless the Council has notified the Buyer pursuant to paragraph 5.6.6 the Council willnot make any GVD and/or serve any notices to treat and/or notices of entry and/ortake any other steps required to be taken to acquire any Third Party Interests

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    Schedule 6pursuant to any CPO unless and until it receives a VP Requirement Notice or theBuyer otherwise agrees, following which paragraph 7.2 shall apply; and

    (e) the Council will seek to implement the Satisfactory CPO and continue to seek toimplement the Satisfactory CPO (including scheme modifications acceptable to theBuyer) unless and until the Council receives Counsels advice that theimplementation of the Satisfactory CPO has a 50 or less prospect of success andtherefore should not be pursued and the Counc il may treat this as a CouncilAbandonment Event and abandon its attempts to implement the CPO subject toparagraph 5.10.11.

    5.13.4 If any part of the Time Critical Item Completion Period for completion of the fifth Time CriticalItem (item no.5 in Appendix Ito this Schedule) falls within the following periods:(a) 15 July to September (inclusive); or(b) 15 December to l5January (inclusive)(the Suspension Periods) any part of such Time Critical Item Completion Period that, as atthe start of one of the aforementioned periods, is unexpired will be suspended and will onlycontinue to expire following the xpiry of either of the Suspension Periods, Provided Thatsuch suspension shall not occur to the extent that the reason for such Time Critical ItemCompletion Period falling within either of the Suspension Periods is caused or contributed toby the Councils failure to achieve completion of any other Time Critical Items within itsrespective Time Critical Item Completion Periods.

    5.14 Confirmation of Satisfactory Closure Order5.14.1 If the Secretary of State, the Council or the court (as appropriate to the type of Closure Order

    concerned) confirms or makes the Closure Order the Council will provide a copy of the letterof confirmation, any report from an inspector, decision of the Council or of the court (asappropriate) to the Buyer as soon as reasonably practicable and the Buyer will notify in writingto the Council no later than fifteen (15) Working Days of receiving the aforesaid relevantdocumentation whether the confirmed or made (as appropriate) Closure Order is aSatisfactory Closure Order Provided That if the Buyer is the recipient of the aforesaiddocumentation and not the Council then the Buyer will supply copies of the relevantdocumentation to the Council and notify in writing to the Council no later than fifteen (15)Working Days of receiving the aforesaid relevant documentation whether the confirmed ormade (as appropriate) Closure Order is a Satisfactory Closure Order.

    5.14.2 Following confirmation or making (as appropriate) of a Satisfactory Closure Order the Counciland/or the Buyer (as appropriate) shall take all steps to implement the same to enable theDevelopment to be carried out and used in accordance with the CPO ImplementationProgramme and in accordance with this Agreement.5.15 Where a confirmed CPO is not a Satisfactory CPO or where a confirmed Closure Orderis not a Satisfactory Closure Order5.15.1 If an Approved CPO is not a Satisfactory CPO, then:

    (a) the Buyer shall provide reasons to the Council why the Approved CPO is not aSatisfactory CPO; and

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    (b) the Buyer may elect to recommence the CPO process set out in this Schedule; andrequest that the Council make a new CPO for the relevant Phase and may serve anew CPO Start Notice in respect of that Phase and Counsels (and who for theavoidance of doubt shall only be the same Counsel as has advised pursuant toparagraph 5.6.9(a) if the Council and the Buyer agree) advice shall be sought assoon as reasonably practicable whether a new CPO could be made which enablesthe relevant Phase of the Development to be carried out and used and whichadequately responds to the Buyers reasons why the Approved CPO is not aSatisfactory CPO (including any scheme or Development modifications to therelevant Phase acceptable to the Buyer) and which would have greater than a 50chance of success for being confirmed as a Satisfactory CPO; or

    (c) subject to Schedule 16 proceed to issue a new CPO Start Notice for a CPO for a newandfor modified Phase in accordance with the terms of this Agreement.5.15 .2 Where an Approved CPO has been submitted to the Secretary of State and not confirmedthen the Buyer may dec ide in consultation with the Council and Counsel) to either:

    (a) request that the Council make a new CPO for the relevant Phase and Counselsadvice shall be sought as soon as reasonably practicable whether a new CPO couldbe made which enables the relevant Phase of the Development to be carried out andused and which adequately responds to the reason why the Approved CPO has notbeen confirmed (including any scheme or Development modifications to the relevantPhase acceptable to the Buyer) and which would have greater than a 50 chance ofsuccess for being confirmed as a Satisfactory CPD; or(b) subject to Schedule 16 proceed to issue a new CPO Start Notice for a new andlormodified Phase in accordance with the terms of this Agreement.

    5.15.3 If an Approved CPO is confirmed with modifications not approved by the Buyer prior toconfirmation ofthe CPO such that in the opinion of the Buyer it is not a Satisfactory CPO,then the Buyer may at any time nonetheless notify the Council that it wishes to proceed withthe Unsatisfactory CPO which will then be deemed to be a Satisfactory CPO.5.15.4 If a n Approved Closure Order is not a Satisfactory Closure Order, then:

    (a) the Buyer shall provide reasons to the Council why the Approved Closure Order is nota Satisfactory Closure Order;

    (b) the Buyer may elect to recommence the Closure Order process set out in thisSchedule; and if the Closure Order is one to be made by the Council, request that theCouncil make a new Closure Order for the relevant Phase and Counsels advice shallbe sought as soon as reasonably practicable whether a new Closure Order could bemade which enables the relevant Phase of the Development to be carried out an dused and which adequately responds to the Buyers reasons why the ApprovedClosure Order is not a Satisfactory Closure Order (including any scheme orDevelopment modifications to the relevant Phase acceptable to the Buyer) and whichwould have greater than a 50 chance of success for being confirmed as aSatisfactory Closure Order; and

    (c) Where an Approved Closure Order has been submitted to the Secretary of State andnot confirmed then the Buyer may decide in consultation with the Council andCounsel to request that if the Closure Order is one to be made by the Council, the

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    Schedule 6Council make a new Closure Order for the relevant Phase and Counsels advice shallbe sought as soon as reasonably practicable whether a new Closure Order could bemade which enables the relevant Phase of the Development to be carried out andused and which adequately respond to the reasons why the Approved Closure Orderha s not been confirmed (including any scheme or Development modifications to therelevant Phase acceptable to the Buyer) and which would have greater than a 50chance of success for being confirmed as a Satisfactory Closure Order.

    I f a n Approved Closure Order is confirmed with modifications (not approved by the Buyer priorto confirmation of the Closure Order) such that in the opinion of the Buyer it is not aSatisfactory Closure Order , then the Buyer may at any time nonetheless notify the Councilthat it wishes to proceed with the Unsatisfactory Closure Order which will then be deemed tobe a Satisfactory Closure Order.

    5.16 Referrals to Upper TribunalWhere, following service of a GVD or notice to treat in respect of a Third Party Interest inrespect of a Satisfactory CPO, it has not been possible within 6 months to concludenegotiations in respect of CPO Compensation in respect of a Third Party Interest, then unlessthe Buyer agrees otherwise, the Council in consultation with the Buyer) will refer thedetermination of any such Compensation payable to the claimant to the Upper Tribunal(Lands Chamber), acting reasonably and with the aim of determining the appropriate amountof CPO Compensation payable.

    5.17 Blight NoticesThe provisions of the Compulsory Purchase, Closure Order and Appropriation Scheme Costsand Compensation Agreement will apply to any Blight Notices served on the Council followingthe date hereof.

    5.18 Initial and Final Demolition Notices5.18.1 If the Council receives an application under a Right to Buy in respect of residential propertycontained within the area covered by a CPO Start Notice then the Council shall as soon aspossible carry out the procedures set out in the Housing Act 1985 (section 38A, section1388 and schedules 5 and 5A) to issue and serve initial and/or final demolition notices, asappropriate, to suspend the right to buy application and i f the Parties are in dispute on anymatter thereafter the dispute will be referred to an Expert pursuant to clause 40.6 VP Requirement Notice6.1.1 The Buyer may serve a VP Requirement Notice any time after the confirmation of the relevantSatisfactory CPO (and any relevant Satisfactory Closure Order) but:

    (a) there must be at least a period of 3 months between the date of the VP RequirementNotice and the first Estimated Habitable Date for any of the Replacement Homes thatare to be provided to replace the Existing Homes comprised in the VP RequirementNotice:

    (b) the VP Date may not be a date later than the date on which the relevant SatisfactoryCPO will cease to be capable of implementation;

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    (c) the VP Date may not be less than 7 months from the date of the VP RequirementNotice;(d) the VP Date must be at least 3 months after the last Estimated Habitable Date for anyof the Replacement Homes that are to be provided to replace the Existing Homes

    comprised in the VP Requirement Notice.6.1.2 Both: (a) the Time Critical Item Completion Period for the Time Critical Item numbered 6 inAppendix ito this Schedule for a Demolition Phase will be extended where the Council isprevented from achieving such Time Critical Item within that Time Critical Item CompletionPeriod by any of the following; and (b) the VP Date will be extended where:

    (a) a Satisfactory CPO has been challenged by a validly made application under section23 of the Acquisition of Land Act 1981; or(b) there is a Judicial Review challenge to the making of a GVD or the service of a noticeto treat or a notice of entry (or any decision to take any such step) in relation to a

    Satisfactory CPO.In such circumstances, the VP Date and the Time Critical Item Completion Period for suchTime Critical Item will be 3 months after the date of a judgment or decision from which noappeal is possible or in relation to which the deadline for f il ing any appeal has passed withoutany appeal having been issued PROVIDED THAT at the request of the Buyer, where theCouncil can continue to implement the GVD or not ice to treat or notice of entry in relation toall or part of the CPO Land it will continue to do so or in the alternative make a new GVD orserve a new notice to t reat or not ice of entry and if there is any doubt as to whether this ispossible either Party may refer this to the Project Delivery Group (who shall meet within 10(ten) Working Days of such referral) for an opinion and if the Parties are in dispute on anymatter thereafter, either Party may refer the dispute to an Expert pursuant to clause 40.4.

    6.1.3 Any number of VP Requirement Notices can be served in relation to a Phase save that theBuyer shall not be permitted to serve a VP Requirement Notice in relation to part or all of aPhase where, to do so , would mean that, by virtue of previous VP Requirement Noticesserved, the Council would, at any one time, be decanting more than 200 Existing Homes in a7 month period.

    7 Following Service of the VP Requirement Notice7.1 VP Requirement Notice Service

    Subject to a VP Requirement Notice being served upon the Council and only following serviceof the VP Requirement Notice,the Council shall in respect of the Existing Homes identified inthe VP Requirement Notice:

    7.1.1 immediately commence the process of relocating all Short Term Occupiers who areoccupying the Existing Homes within the relevant Demolition Phase and progress thisprocess with all due speed; and7.1.2 immediately serve notice on any Registered Providers to whom a lease of an Existing Homehas been granted in accordance with paragraph 4.1 .2(a)(ii) of this Schedule and take all stepsnecessary to secure possession of any such properties;

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    Schedule 67.1 .3 immediately serve notice on any owners or occupiers of any no n residential premises towhom a lease has been granted in accordance with this Schedule and take all stepsnecessary to secure possession of any such properties; and7 .1 .4 immedia te ly serve notice on any unlawful occupiers (including squatters) and take all stepsnecessary to secure possession of such properties.7.2 GVD and Notices to Treat7.2.1 Following service of the VP Requirement Notice, the Council will in accordance with theprovisions of this Schedule:

    (a) in respect of those Third Party Interests in which a GVD can be made make a GVD orGVDs in respect of a Satisfactory GPO in accordance with the CPO ImplementationProgramme; and(b) in respect of those Third Party Interests in which no GVD can be made serve inrespect of a Satisfactory GPO a notice or notices to treat (and either simultaneously

    or in due course) a notice or notices of entry in accordance with the GPOImplementation Programme.7.3 Satisfaction of Vacant Possession Condition7.3.1 The Council shall diligently and expeditiously use all powers available to it to procure that theowners of Third Party Interests give vacant possession of Third Party Interests in compliancewith the GPO Implementation Programme but, in any event, by the VP Date and inaccordance with arrangements agreed between the Council and the owners of the Third PartyInterests and if such owners refuse to vacate the Third Party Interests the Council will takesuch steps as are necessary to obtain vacant possession in accordance with the GPOImplementation Programme and in any event by the VP Date including necessary

    enforcement action including if required the execution of a deed poll to secure vacantpossession.7.3.2 If the Council fails to satisfy the Vacant Possession Condition by the VP Date the Councilshall continue diligently and expeditiously to use all powers available to it to satisfy the VacantPossession Condition unless and until it shall have been established in accordance with thisparagraph 7.3 that a VP Abandonment Event has occurred.7.3.3 If the Council considers that the prospects of success of the Council securing any order of theCourt or lawfully being able to operate any other legal process necessary to enable it tosecure possession of any Third Party Interest to enable the Council to lawfully satisfy theVacant Possession Condition in a Demolition Phase (taking into account any appeal processthat may be available) shall be less than 50 (the VP Abandonment Test) then the Buyerand the Council shall endeavour to agree whether the VP Abandonment Test is satisfied and

    in default of agreement the matter may be referred by either party to an d Expert inaccordance with clause 40.4 provided that:(a) the Expert in this case shall be a Queens Counsel experienced in proceedings of thenature and type in issue(b) the Expert in this case shall be agreed between the Parties or in default of agreement

    appointed at the request of either of the Parties by or on behalf of the Chairman for

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    Schedule 6

    the time being of the General Council of the Bar o r h is duly appointed deputy or otherperson authorised to make appointments o n h is behalf.7.3.4 If the parties agree or the Expert shall determine that the VP Abandonment Test shall besatisfled then in respect of the relevant Third Party Interests the Buyer shall not be entitled to

    bring any claim against the Council seeking (by way of specific performance or similarremedy) to compel the Council to satisfy the Vacant Possession Condition in accordance withthe obligations in paragraph 7.3.2 of this Part of this Schedule for the Demolition Phase (andthis shall be a VP Abandonment Event) but subject and without prejudice to paragraphs 7.3.5and 7.3.7 of this Part of this Schedule

    7.3.5 If a VP Abandonment Event occurs and if required by the Buyer, the Parties shall endeavourto agree (such agreement not to be unreasonably withheld or delayed) such modifications tothe Demolition Phase and other relevant matters as may be fair and reasonable so that partsof the relevant Demolition Phase may be transferred to the Buyer (including subject to anyoutstanding Third Party Interests (which, unless the Council otherwise agrees, shall notcomprise a dwelling or dwellings which are occupied) as the Buyer may agree but withoutprejudice to the remaining provisions of this paragraph) and the arrangements in thisAgreement can continue in relation to the Demolition Phase notwithstanding that the VPAbandonment Test is not satisfied in relation to the relevant Third Party Interest(s) andfollowing agreement such arrangements shall be implemented provided that suchmodifications and arrangements shall ensure that where in respect of any part of theDemolition Phase that is not to be transferred to the Buyer under such arrangements therelevant Third Party Interest(s) in such parts of the Demolition Phase comprise a dwelling ordwellings which are occupied, criteria (a) and (b) the PPDN Criteria will be met in respect ofsuch Third Party Interest(s) so that the PPDN Criteria will continue to be met in respect of thatpart of the Option land which remains vested in the Council.

    7.3.6 Any land or Third Party Interests in respect of which a VP Abandonment Event has occurredshall remain par t of the Opt ion Land and the Buyer shall be entitled to bring such land forwardas part of a subsequent Phase provided that the Council has been able to satisfy the VPCondition in respect thereof.7.3.7 Nothing in this paragraph 7.3 of this part of this Schedule shall l imit any other right or remedyof the Buyer against the Council which arises as a result of the Council failing to satisfy theVP Condition in relation to the relevant land or Third Party Interests and in particular (butwithout limitation) (a) any right to Terminate this Agreement (b) any liability of the Council topay LADS (c) any liability of the Council to pay damages at large on Termination of thisAgreement (but subject and without prejudice to the express limitations on the recovery ofsuch LADS or other damages provided for in clause 39 or in Schedule 6 or paragraph 7 of

    Schedule 16.7.4 Transfer of Third Party Interests

    If the Council shall acquire any Third Party Interest pursuant to the terms of this Schedule, orthe Compulsory Purchase, Closure Order and Appropriation Scheme Costs andCompensation Agreement, the Council will at the request from time to t ime ofthe Buyer selland the Buyer will buy all such Third Party Interests as are capable of being transferred asopposed to having been extinguished by the Council acquiring the same) in accordance withthe provisions of Part 3 of this Schedule.

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    8 Buyers Interests in Earls Court Regeneration SiteThe Council shall not make any compulsory purchase order required for the Development inrespect of the Buyers (or the interests of any Connected Party) interests in the Earls CourtRegeneration Site without the prior written consent of the Buyer.

    9 Approach to Application of Time Critical Events and LADSAppendix 2 is appended to this Schedule for information purposes only and is not to be usedin construing this Agreement but is used to illustrate the approach to the CPO andAppropriation and Appropriation Scheme process and the application of Time Critical Items,Time Critical Item Periods and LADS and procedural time period compliance periods any ofwhich may result in a Refund Termination Event.

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    Schedule 6

    Part Liquidated and scertainedDamagesLIQUIDATED AND ASCERTAINED DAMAGES

    Time Critical Items1.1 If, in respect of a CPQ (except a CPQ made in respect of the interest and rights specified inparagraph (c) of the defined term CPO), the Council fails to achieve completion of one ormore of the Time Critical Items by the relevant Time Critical Item Completion Period or Date,

    the Council shall pay and/or allow LADS to the Buyer in accordance with this Part 2.1.2 The period in respect of which the Council would otherwise be liable to pay and/or allowLADS in relation to a CPO in accordance with this Part 2 as a consequence of any of TimeCritical Items numbered 1, 2 or Sin Appendix below not being complete within itsrespective Time Critical Item Completion Period shall be reduced by the equivalent period (ifany) by which any Time Critical Item 4 or 5 (but not 6 or 7) in Appendix below in

    relation to that CPO is completed prior to the expiry of its respective Time Critical ItemCompletion Period an Item 1, 2 or 3 Time Saving Period) provided that any Item 1, 2, or 3Time Saving Period shall only apply once in reducing the period in respect of which theCouncil would otherwise have been liable for LADS in relation to not having completed TimeCritical Items 4 or Sin Appendix below.1.3 Insofar as the Council is, in relation to a CPO, unable to complete a Time Critical Item within

    its respective Time Critical Item Completion Period by reason of any impediment, preventionor default of the Buyer, then such Time Critical Item Completion Period shall be extended bysuch period as is fair and reasonable as a result thereof.1.4 If a VP Requirement Notice in respect of that CPO is issued by the Buyer prior to the

    occurrence of Time Critical Item numbered Sin Appendix 1, the Council shall have noliability to the Buyer for LADS in relation to any failure to complete Time Critical Itemnumbered Sin Appendix I within its Time Critical Item Completion Period in respect of thatCPO.1.5 Without prejudice to paragraph 1.3 above, the Time Critical Item Completion Period for theTime Critical Item numbered 6 in Appendix I below for a CPO will be extended if theCouncil is prevented from achieving completion of such Time Critical Item within such TimeCritical Item Completion Period by the Independent Certifiers Habitable Certificate(s) nothaving been issued for all the relevant Replacement Homes. In such circumstances, suchTime Critical Item Completion Period will expire 3 months after the date upon which theIndependent Certifiers Habitable Certificate has been issued for all the relevant Replacement

    Homes.1.6 Where a Challenge is made during a Time Critical Item Completion Period that has the effectof delaying completion of the Time Critical I tem to which such Time Critical Item CompletionPeriod relates beyond the relevant Time Critical Item Completion Period, then such TimeCritical Item Completion Period shall be extended by such period as is fair and reasonable as

    a result thereof.1.7 Where in this part of this Schedule reference is made to a Demolition Phase such referenceshall also include a part of a Demolition Phase in respect of which a VP Requirement Noticehas been served as if such part itself comprised the whole of the Demolition Phase, providedthat, for the avoidance of doubt, only the GEA of the relevant development on that part of the

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    Schedule 6Demolition Phase in respect of which the VP Requirement Notice has been served shall beused in calculating any liability of the Council for LADS pursuant to paragraph 2.1 below.

    2 Councils Liability for LADS2.1 Subject to the limitation set out in paragraph 3 below, if in respect of any Demolition Phase (orany part thereof) the Council fails to achieve completion of a Time Critical Item within therelevant Time Critical Item Completion Period (or date) then the Council will pay or allowLADS to the Buyer at the ra te o f 0.50 (Indexed) multiplied by the GEA (expressed in squarefeet) of the development permitted to be carried out on the relevant Demolition Phase by theSatisfactory Main Site Planning Permission (or if greater, the Satisfactory Scheme OveragePlanning Permission) for each week (or part thereof) that elapses between the date of expiryof the relevant Time Critical Item Completion Period (or date) and the date on which therelevant Time Critical Item is completed (or any earlier Termination of this Agreementpursuant to paragraph 4.2.1 of Schedule 16).2.2 In respect of any LADS to which the Buyer is entitled pursuant to this Part 2, the Buyer may

    withhold, deduct or set-off such LADS from any Advance Payment (or any other sums) whichare due or which may become due for payment by the Buyer to the Council under thisAgreement. Further or alternatively at the Buyers discretion, insofar as any such LADS havenot been so withheld, deducted or set-off by the Buyer, the Buyer may recover the balance ofany such LADS from the Council as a debt, and such debt shall be payable by the Councilwithin twenty (20) Working Days of the Buyers written demand.2.3 The Buyer shall repay or allow to the Council any LADS paid oral lowed by the Council whichthe Buyer is no longer entitled to receive as a result of the Council subsequently becomingentitled to any relief from LADS pursuant to this Agreement (including as a result of it beingagreed or determined that the Council is entitled to an extension to any Time Critical Item

    Completion Period or date) within twenty (20) Working Days of the Councils written demandfor the same.3 Limitations on Liability for LADS3.1 Until the Expiry or earlier Termination of this Agreement the Council shall not be liable todischarge any LADS for which it would othe~ise be liable to pursuant to this Part 2 which are

    in excess of the unutilised balance of the LADS Cap calculated in accordance with paragraph3.2.3.2 For the purposes of paragraph 3.1, the unutilised balance of the LADS Cap shall be10,000,000 Indexed as at the date upon which the relevant LADS accrue to the Buyer less

    any amount previously paid by the Council pursuant to this Part 2 in respect of LADS or byway of damages for any breach of the terms of clauses 2.1 to 2.11 (inclusive).3.3 In addition to the provisions of paragraph 3.1 above, the Councils aggregate liability for LADS

    in respect ofany one calendar week (or part thereof) shall be limited to 50,000 (Indexed).3.4 References to amounts expressed to be Indexed in relation to this part of this Schedulemeans that the relevant amount is adjusted (but not so as to fall below the figures detailed inparagraphs 2.1, 3.1 and 3.2) in line with the movement in the RP I which movement shatl becalculated by taking the RPI figure for the month preceding the date of this Agreement andthe RPI Index figure for the month preceding the date upon which the relevant amountcommences to accrue.

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    delay but the other rights and remedies of the Buyer shall not be prejudiced including (withoutlimitation) specific performance.4.6 Where this Agreement is Terminated or Expires and the Council is in breach of any of itsobligations the Buyer shall be entitled to pursue such remedies as the Buyer may decide(including damages) without any limitation save that, without prejudice to any liability under or

    pursuant to this Part 2 which has accrued prior to such Termination or Expiry, in relation tothe payment of damages the provisions of Schedule 16 shall apply.4.7 The Council acknowledges and agrees that, where a delay in achieving the Time Critical Itemnumbered 5 in Appendix below in relation to a Demolition Phase is caused by an eventreferred to in paragraph 5.13.4 of Part of Schedule 6, the Council shall continue to progresssecuring vacant possession of that Demolition Phase, save for those properties affected byevents, whilst the relevant challenge is being progressed.

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    APPENDIX I TIME CRITICAL ITEMS

    216

    )

    Time Critical Item Time Critical Item Completion Period (or Date)1. A decision to resolve to make a CPU The end of the time period provided for in

    within paragraphs (a) and (b) but not paragraph 5.10.laubject to the operation of theparagraph (c) of the defined term CPU by following as applicable:the Councils cabinet in respect of arequest made under paragraph 5.10.1 of (a) paragraph 5.6.10 of Part I of Schedule 6; orPart I of Schedule 6 to make a CPU (b) clause 11.7.2(e)

    2 The Council making a CPU within Within 10 (ten) Working Days from the resolution.paragraph (a) or (b) but no t paragraph (c) of the defined term CPU as provided for inparagraph 5.10.2 of Part of Schedule 6.The Appropriation of all interests owned The time specified in paragraph 5.10.4 of Part I ofby the Council in accordance with and Schedule 6.pursuant to paragraph 5.10.4 of Part I ofSchedule 6.

    4 The Council submits a CPU within 10 (ten) Working Days after the Buyer confirms thatparagraphs (a) or (b) but no t paragraph the CPU is an Approved CPU(c) of the defined term CPU which is anApproved CPU to the Secretary of Statefor confirmation5 The Council publishing and serving all End of the period provided for in paragraph 5.13.3.necessary notices as required pursuant to 25 Working Days of receipt of notification from theparagraph 5.13.3 of Part I of Schedule 6 Buyer that the confirmed CPU is a Satisfactory

    in respect of a CPU within paragraphs (a) CPUor (b) but not paragraph (c) of the definedterm CPU which is a Satisfactory CPU.6 The Council satisfying the Vacant The VP Date for the relevant Demolition PhasePossession Condition in respect of the and/or CPU LandDemolition Phase and/or CPU Land andcompletes the transfer of the DemolitionPhase andfor CPU Land to the Buyer7 The Council complying with the time The end of the time periods provided for inperiods set out in paragraphs 5.1.4. 5.1.5 paragraphs 5.1.4, 5.1.5 and 5.1.6 relating to anand 5.1.6 of Part of Schedule 6 relating Appropriation Scheme.to an Appropriation Scheme

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    APPENDIX 2Type of CPO Deductible Non- Time LADS Procedural Refundor Costs and Deductible Critical Time TerminationAppropriation Compensation Costs and Items Com plianc e E ventsor Compensation PeriodsAppropriationScheme CI 2.4CompulsoryPurchaseOrder,Closure Order

    andAppropriationSchemeCosts andCompensationAgreement)Paragraph a Yes No Yes Yes Yes Yesi) and N) ofthe CPOdefinitionParagraph a No Yes Yes Yes Yes YesIN) and b ofthe CPOdefinitionParagraph c No Yes No No Yes Yesof the CPOdefinitionAppropr iation Yes No Yes Yes Yes Yesof CouncilInterestsalongside acPOAppropriation No Yes No No Yes YesScheme

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    Part 3 Aquisit ionI Agreement for Sale and Purchase1.1 Where paragraph 7.4 of Part I of this Schedule applies, the Council will sell, and the Buyer(or such other Purchase Company as the Buyer may nominate) wil l buy, the Third PartyInterests with full vacant possession.1.2 The Completion Date for the purposes of this Part 3 shall be the date that is 20 WorkingDays after the date on which the Buyer notifies the Council of its desire to acquire Third PartyInterests in accordance with paragraph 7.4 of Part of this Schedule.1.3 Actual Completion for the purposes of this Part 3 shall be the completion of the sale an dpurchase of the Third Party Interests whether or not it takes place on the Completion Date(referred to in the Standard Conditions as the date of actual completion).1.4 The risk of damage to or destruction of the Third Party Interests passes to the Buyer (or suchother Purchase Company as the Buyer may nominate) on the Completion Date.1.5 Standard Conditions 1.4, 3.1.3, 6.1, 6.2, 6 .3, 7.1.1, 7.1.2, 7.1.4(b) and 10.3 shall not apply.2 Price

    The price for the Third Party Interests is an amount equal to the price paid by the Councilpursuant to the Compulsory Purchase, Closure Order and Appropriation Scheme Costs andCompensation Agreement except that where:2.1 pursuant to the Compulsory Purchase, Closure Order and Appropriation Scheme Costs and

    Compensation Agreement the Buyer has already reimbursed the Council for the amount paidfor the Third Party Interests; or -2.2 the amount paid for the Third Party Interests qualifies as Allowable Capital Expenditure

    the price will be 1 (one pound).3 Deposit

    No deposit is payable.4 Completion Arrangements4.1 Completion is to take place on the Completion Date at the offices of the Councils Solicitors,or elsewhere as the Council may reasonably direct.4.2 Save where the Council elects under Clause 9.16.1 of this Agreement itself to pay the moneydue on Actual Completion the Buyer (or such other Purchase Company as the Buyer maynominate) is to pay the money due on Actual Completion by direct credit to a bank account ofand nominated by the Councils Solicitors. The money is to be treated as paid to the Council

    at the time it is received by the relevant bank.4.3 If the money due on Actual Completion is received after 2:00 pm, Actual Completion is to betreated for the purposes only of Standard Conditions 8.3 and 9.3 as taking place on the next

    working day. Standard Condition 8.1.2 is varied accordingly.42878078.2\1o08 218RGB/90883.00001I9510001 .11

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