"Fourthly, the written Business Asset Sale Agreement is unsatisfactorily drawn generally and in particular is rendered meaningless by reason of the fact that certain corporations and persons who are parties to the unexecuted but necessary complementary agreements (which are contained in the Schedules to the main agreement) are not parties to the Business Asset Sale Agreement and therefore have no current obligation to perform the promises expressed in those complementary agreements.
Advice from our legal counsel is that the above four matters (either taken separately or as a whole) entitle Pasdonnay Pty Ltd to repudiate the Business Asset Sale Agreement in its entirety.
And I have to say that in the light of events and your company's apparent attitude I am inclined to adopt this option and will do so if necessary.
But taking a purely commercial perspective, a lot of time, effort and expense has gone into trying to consummate a deal which ultimately would be of advantage to us both.
To attempt to salvage such a deal from the present wreck I propose that a fresh agreement be negotiated (adopting the present 'in principle' understanding as a model) and a proper contract be entered into, one that contains certainty and both legal and commercial efficacy.
Key points which I would regard as essential to a new contract are (and I might add that I am here just putting forward the points in principle, not attempting to definitively draft their content).
(a) SDS Corporation Ltd commits to providing incontrovertible evidence of its ability to pay all monies due under the contract to Pasdonnay Pty Ltd and its creditors in a timely manner.
(b) The transfer of the business assets is to be contemporaneous with settlement, (sic: and?) the payment of the $1,000,000, rather than on the present artificial completion date.
(c) Any moneys borrowed by Pasdonnay Pty Ltd to pay creditors pending the new completion/settlement date be repaid to any such lender in cash by SDS Corporation Ltd at the same time as completion/settlement.
(d) The current dates for finalisation be put back four months.
The above items are fundamentally non negotiable; other matters can be the subject of further discussion. There also needs to be an express commitment by each side of good faith toward each other both in direct dealing and in any peripheral activities involving third parties which might have a bearing on either of the parties.
Would you please respond directly to the above by 5.00 PM (WST), Friday, 6 September 2002."