“1. Extension of the PCOA and automatic expiry of the PCOA and this Letter Agreement: (a) Notwithstanding any terms to the contrary in the PCOA… [as amended], the parties agree that the Call Option Period … shall automatically expire on the first business day following the day upon which the parties either obtain any necessary Governmental Approval (as defined in the RTP Agreement) or determine no Governmental Approval is required and the RTP Agreement … thereby becomes unconditional in accordance with its terms. (b) If the parties determine that Government (sic) Approval (as defined in the RTP Agreement) is required but are unable to obtain the same on or before the Longstop Date (as defined in the RTP Agreement), this Letter Agreement will automatically expire and the Right to Purchase, as provided for in [the RTP Offer Letter], shall then form the only basis upon which Rolls-Royce or its Affiliates shall be entitled to purchase the AM Package from Goodrich or its Affiliates (including UTC, its ultimate parent). 2. Revised right to purchase the AM Package: (a) The parties acknowledge that pursuant to the PCOA and the Right to Purchase Letter, Rolls-Royce has two separate and partially concurrent rights to purchase the AM Package from Goodrich. To provide certainty, the parties have agreed that the PCOA, as amended by paragraph (1) of this Letter Agreement, should expire in accordance with its terms so that, subject to paragraph 2(b) below, only… [the Modified RTP] remains in place until31 December 2023 . (b) In consideration of, among other things, Rolls-Royce agreeing not to exercise the Modified RTP in accordance with the RTP Agreement, which, for the avoidance of doubt, means Rolls-Royce shall not serve the 12 months’ RTP Notice on Goodrich earlier than1 January 2020 , Goodrich will, on or around the date of this Letter Agreement, enter into the… [the RTP agreement] which provides all terms and conditions pertaining to the Modified RTP. Consequently, the parties agree, and Rolls-Royce hereby waives any claim to the contrary, that the RTP Agreement (together with any documents referred to therein), shall form the only basis upon which Rolls-Royce or its Affiliates shall be entitled to purchase the AM Package from Goodrich or its Affiliates (including UTC, its ultimate parent), unless the parties agree otherwise or the provisions of paragraph 1(b) above apply.”
“15. As Ms Anderson QC rightly reminded me, the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as follows: i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman[2001] 2 All ER 91 ; ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel[2003] EWCA Civ 472 at [8] iii) In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10] v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5)[2001] EWCA Civ 550 ; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd[2007] FSR 63 ; vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd[2007] EWCA Civ 725 .”
“Novation takes place where: “… there being a contract in existence, some new contract is substituted for it, either between the same parties… or between different parties; the consideration mutually being the discharge of the old contract.”
“56. There is no reason in principle why parties to a contract should not agree that a certain state of affairs should form the basis for the transaction, whether it be the case or not. For example, it may be desirable to settle a disagreement as to an existing state of affairs in order to establish a clear basis for the contract itself and its subsequent performance. Where parties express an agreement of that kind in a contractual document neither can subsequently deny the existence of the facts and matters upon which they have agreed, at least so far as concerns those aspects of their relationship to which the agreement was directed. The contract itself gives rise to an estoppel: see Colchester Borough Council v Smith[1991] Ch. 448 , affirmed on appeal[1992] Ch. 421 . 57. It is common to include in certain kinds of contracts an express acknowledgment by each of the parties that they have not been induced to enter the contract by any representations other than those contained in the contract itself. The effectiveness of a clause of that kind may be challenged on the grounds that the contract as a whole, including the clause in question, can be avoided if in fact one or other party was induced to enter into it by misrepresentation. However, I can see no reason in principle why it should not be possible for parties to an agreement to give up any right to assert that they were induced to enter into it by misrepresentation, provided that they make their intention clear, or why a clause of that kind, if properly drafted, should not give rise to a contractual estoppel of the kind recognised in Colchester Borough Council v Smith . However, that particular question does not arise in this case. A clause of that kind may (depending on its terms) also be capable of giving rise to an estoppel by representation if the necessary elements can be established: see E.A. Grimstead & Son Ltd v McGarrigan (C.A.) (unreported,27th October 1999 ).” and Springwell at [143]-[144], [156] and [177]: “143. Before I examine Lowe v. Lombank and subsequent cases on this issue, I will try and analyse the matter from principle. If A and B enter into a contract then, unless there is some principle of law or statute to the contrary, they are entitled to agree what they like. Unless Lowe v Lombank is authority to the contrary, there is no legal principle that states that parties cannot agree to assume that a certain state of affairs is the case at the time the contract is concluded or has been so in the past, even if that is not the case, so that the contract is made upon the basis that the present or past facts are as stated and agreed by the parties. It is, after all, common in marine insurance contracts for an assured to “warrant” that a certain state of affairs has existed in the past and is still existing at the time the insurance contract is concluded or will continue, e.g. that the nationality of a ship was and is British; or that a ship was and is “in Class” with her Classification Society. The shipowner may know that those things are not the case; the insurer may have his suspicions that they are not the case. The parties agree that for the purposes of the insurance contract, the facts as “warranted” by the assured are as he has stated them to be. A “conclusive evidence” clause in a sale contract, viz. that a report on e.g. the amount or condition of a commodity sold under a contract between A and B shall be “conclusive evidence” of the matters stated in the report is to the same effect. The parties are agreeing that the statements in the report shall be the case for the purposes of the contract of sale and the parties cannot go behind that agreement. 144. So, in principle and always depending on the precise construction of the contractual wording, I would say that A and B can agree that A has made no pre-contract representations to B about the quality or nature of a financial instrument that A is selling to B. Should it make any difference that both A and B know at and before making the contract, that A did, in fact, make representations, so that the statement that A had not is contrary to what each side knows is the case? Apart from the remarks of Diplock J in Lowe v Lombank, Mr Brindle did not show us any case that might support the proposition that parties cannot agree that X is the case even if both know that is not so. I am unaware of any legal principle to that effect. The only possible exception might be if the particular agreement between A and B on the certain state of affairs concerned contradicts some other specific or more general rule of English public policy. Like Moore-Bick LJ in Peekay I see commercial utility in such clauses being enforceable, so that parties know precisely the basis on which they are entering into their contractual relationship… … 156. In contrast to Lowe v Lombank, there is a series of cases which support the proposition that parties can agree that a state of affairs will be the basis of their contractual dealings with one another, even if they know that it is not the case. First there is the decision of the Court of Appeal in Burrough's Adding Machines Limited v Aspinall. The case concerned a dispute about whether the salesman was entitled to commission on the sale of adding machines to banks. The company had, wrongly but without deceit, prepared its accounts of the sales of the machines on the basis that sales to banks were excluded. The salesman knew that sales of adding machines had been made to banks, but did not dispute the accounts at the time they were sent to him. He only raised the issue when he left the company's service some years later. The court held that a term in the contract between the company and its salesman that all statements of account sent by the company to him “ shall be deemed to be accepted by the salesman as correct ” unless he gave written notice that they were not within 30 days of receiving the account, bound both parties. Therefore the salesman was bound by the agreed statement of facts even if they were not accurate…. … 177. I have, effectively, rejected Mr Brindle's argument that there is no juristic concept of “contractual estoppel” which is distinct from the doctrine of “estoppel by convention”
“No party (the "Assignor") shall, nor shall it purport to, assign, transfer, charge or otherwise deal with all or any of its rights and/or obligations (in whole or in part) under this Agreement, nor grant, declare, create or dispose of any right or interest in it (in whole or in part), without the prior written consent of the other party. If the proposed dealing is an assignment and if the proposed assignee (the "Assignee") is a party's Affiliate, such prior written consent shall not be unreasonably withheld or delayed. Any such purported assignment, transfer, charge or other dealing without the prior written consent of the other party shall be null and void.”
“No assignment or novation pursuant to clause 15.1 or clause 15.2 shall be effective until: (A) In the case of an assignment pursuant to clause 15.1 the Assignor procures that the Assignee executes and delivers a deed of adherence in the form set out in Schedule 6; (B) In the case of an assignment pursuant to clause 15.1, the Assignor executes and delivers a guarantee of the performance of the Assignee’s obligations under this Agreement in the form set out in Schedule 6; and…”
“16.1 Any release, delay or waiver by any party in favour of the other party of any (or any part of) its rights under this Agreement shall only be binding if it is given in writing. Any binding release, delay or waiver shall: (A) Be confined to the specific circumstances in which it is given; and (B) Not affect any other enforcement of the same right or the enforcement of any other right by or against any of the parties.”
“16. The enforcement of No Oral Modification clauses carries with it the risk that a party may act on the contract as varied, for example by performing it, and then find itself unable to enforce it. It will be recalled that both the Vienna Convention and the UNIDROIT model code qualify the principle that effect is given to No Oral Modification clauses, by stating that a party may be precluded by his conduct from relying on such a provision to the extent that the other party has relied (or reasonably relied) on that conduct. In some legal systems this result would follow from the concepts of contractual good faith or abuse of rights. In England, the safeguard against injustice lies in the various doctrines of estoppel. This is not the place to explore the circumstances in which a person can be estopped from relying on a contractual provision laying down conditions for the formal validity of a variation. The courts below rightly held that the minimal steps taken by Rock Advertising were not enough to support any estoppel defences. I would merely point out that the scope of estoppel cannot be so broad as to destroy the whole advantage of certainty for which the parties stipulated when they agreed upon terms including the No Oral Modification clause. At the very least, (i) there would have to be some words or conduct unequivocally representing that the variation was valid notwithstanding its informality; and (ii) something more would be required for this purpose than the informal promise itself: see Actionstrength Ltd v International Glass Engineering IN.GL.EN SpA[2003] 2 AC 541 , paras 9, 51, per Lord Bingham of Cornhill and Lord Walker of Gestingthorpe.”
“74. What emerges is that there is little difference between the UNIDROIT approach and the English approach through the doctrines of estoppel. This is borne out by the example of the exception in the second sentence of Article 2.1.18 given in the Comment on the UNIDROIT Principles: “Yet there is an exception to the general rule. In application of the general principle prohibiting inconsistent behaviour (see Article 1.8), this Article specifies that a party may be precluded by its conduct from invoking the clause requiring any modification or termination to be in a particular form to the extent that the other party has reasonably acted in reliance on that conduct. Illustration 2. A, a contractor, contracts with B, a school board, for the construction of a new school building. The contract provides that the second floor of the building is to have sufficient bearing capacity to support the school library. Notwithstanding a "no oral modification" clause in the same contract, the parties orally agree that the second floor of the building should be of non-bearing construction. A completes construction according to the modification and B, who has observed the progress of the construction without making any objections, only at this point objects to how the second floor has been constructed. A court may decide that B is not entitled to invoke the "no oral modification" clause as A reasonably relied on the oral modification, and is therefore not liable for non-performance." 75. As I pointed out during the course of argument, the oral agreement postulated involves an unequivocal representation that the second floor does not have to be of load-bearing capacity, upon which the contractor relies by building according to that oral modification. In those circumstances, the school board could not rely upon the No Oral Modification clause. The illustration is a classic example of what Lord Sumption JSC said at [16] of his judgment was required by way of estoppel. In other words, Lord Sumption JSC is setting out how English law interprets this UNIDROIT principle and is not saying anything different from UNIDROIT.”
“This Letter Agreement shall expire on the Longstop Date.”