DATED 30 June 1999
(1) RANK HOLIDAYS DIVISION LIMITED
(2) GRAND HOTEL GROUP LIMITED
ASSET SALE AGREEMENT
RELATING TO BUTLINS PROVINCIAL HOTELS
REFERENCE
PMT/98-14145
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INTERNATIONAL LAW FIRM
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CONTENTS
CLAUSE
1 INTERPRETATION ........................................................ 1
2 SALE AND PURCHASE OF THE ASSETS ....................................... 9
3 CONSIDERATION ......................................................... 11
4 APPORTIONMENTS AND CONTRACTS .......................................... 12
5 STOCK, CASH FLOATS, PREPAYMENTS AND TARIFF CREDITORS .................. 17
6 COMPLETION ............................................................ 20
7 WARRANTIES ............................................................ 22
8 BADGED ITEMS AND EXCLUDED ASSETS ...................................... 23
9 EMPLOYEES ............................................................. 23
10 PENSIONS .............................................................. 26
11 VALUE ADDED TAX ....................................................... 26
12 LICENCES .............................................................. 29
13 BOOKINGS .............................................................. 29
14 EXCLUSION OF WARRANTIES AND REPRESENTATIONS ........................... 31
IS NOTICES ............................................................... 32
16 GENERAL ............................................................... 32
SCHEDULE
SCHEDULE I ............................................................... 36
THE PROPERTIES ........................................................ 36
SCHEDULE 2 ............................................................... 46
TERMS AND CONDITIONS OF SALE OF THE PROPERTIES ......................... 46
SCHEDULE 3 ............................................................... 51
PRICE ................................................................. 51
SCHEDULE 4 ............................................................... 52
EMPLOYEES ............................................................. 52
SCHEDULE 5 ............................................................... 61
THE CONCESSION AGREEMENTS ............................................. 61
SCHEDULE 6 ............................................................... 63
THE WARRANTIES ........................................................ 63
SCHEDULE 7 ............................................................... 72
PROVISIONS CONCERNING THE WARRANTIES .................................. 72
SCHEDULE 8 ............................................................... 78
MOTOR VEHICLE ......................................................... 78
SCHEDULE 9 ............................................................... 79
PENSIONS .............................................................. 79
CONTENTS
AGREED FORM DOCUMENTS
Actuary's Letter
Assurances
Butlins Licence
Butlins Services Agreement
Grosvenor Fire Alarm Agreement
Loan Note
LSA Agreement
Standby Letter of Credit
CONTENTS
AGREEMENT dated 30 June 1999
BETWEEN:
(I) RANK HOLIDAYS DIVISION LIMITED, a company registered in England under
number 712215 whose registered office is at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇
▇▇▇ (`the Vendor')
(2) GRAND HOTEL GROUP LIMITED, a company registered in England under number
3657769 whose registered office is at Level ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (`THE PURCHASER')
RECITALS
(A) Pursuant to an asset sale agreement of 15 June 1999, the Vendor purchased
the Business including the Assets from Butlins Limited on 15 June 1999.
(B) The Purchaser wishes to purchase from the Vendor and the Vendor wishes to
sell to the Purchaser the Assets on the terms and conditions set out in this
Agreement.
I INTERPRETATION
1.1 In this Agreement, unless the context otherwise requires -
`THE ACCOUNTS' means Butlins audited accounts for the financial year ended
on 31 December 1998 (including the notes), together with the reports and
other documents required by law to be annexed or attached to them;
`ARTICLES OF ASSOCIATION' means the new articles of association of the
Purchaser adopted on or around (but not later than) the date hereof in
substitution for the previous articles of association of the Purchaser;
`THE ASSETS' means the assets of the Business agreed to be sold and all
other rights referred to in clause 2.2 agreed to be transferred to the
Purchaser under this Agreement;
PAGE 1
`BADGED ITEMS' means all plant, machinery, tools, equipment, uniforms,
clothing, stock, confectionery, merchandise and other items (including
without limitation, all corporate, directional and informational signs,
advertising and publicity materials, stationery and invoices) at the
Properties on Completion (i) badged with or bearing any name of or any
name, logo or symbol owned or used by a Rank Group Company including
without limitation the names `Butlins', `Butlins Hotels', `Entertainment
Hotels', `Everydays', `Hard Rock', `Butlins Holiday Worlds',' `Rank', `Red
Coats' and the `man with the gong' symbol or logo (`A RANK BADGE') and/or
(ii) recognisably in the house style or colouring of any Rank Group Company
(including but without limitation the `Red Coats' uniforms);
`THE BOOK DEBTS' means all debts owing to any Member of the Vendor's Group
in connection with the Business on the Completion Date (excluding for the
avoidance of doubt cash receivable at Completion in respect of holidays or
breaks to be taken at the Properties after Completion, such cash receivable
to be treated under clause 4);
`THE BUSINESS' means the business of owning and operating hotels at each of
the Properties as carried on up to the date of this Agreement by Butlins
and (following the purchase from Butlins) the Vendor under the Business
Names and which is part of the activities carried on by Butlins and
(following the purchase from Butlins) the Vendor and `BUSINESS' in relation
to any of the Properties means such business as carried on at such Property
under the Business Name used at that Property;
`BUSINESS DAY' means a day, except Saturday and Sunday, on which banks in
the City of London are generally open for business;
`THE BUSINESS NAMES' means the names used in respect of the Business as set
out in paragraph 2 of each part of Schedule 1;
`BUTLINS' means Butlins Limited, a company registered in England under
number 323698 whose registered office is at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇
▇▇▇;
PAGE 2
`THE BUTLINS LICENCE' means the licence to use the Trade Marks in the
agreed form to be entered into on Completion between Rank Leisure Holdings
plc and the Purchaser;
`THE BUTLINS SALE AGREEMENT' means the agreed dated 15 June 1999 pursuant
to which Butlins sold to the Vendor the Business and Assets which are sold
to the Purchaser pursuant to this Agreement;
`THE BUTLINS SERVICES AGREEMENT' means the agreement for services in the
agreed form to be entered into on Completion between the Vendor and the
Purchaser;
`THE CASH FLOATS' means all cash floats at the Properties (including all
cash in gaming, amusement, vending, video, change and other machines) on
Completion ascertained in accordance with clause 5;
`CHAPTER I PART XIV' means Chapter 1 Part XIV of the Income and Corporation
Taxes Act 1988 (as amended);
`CONSIDERATION SHARES' means the 100 Rank Shares;
`COMPLETION' means completion of the sale and purchase of the Business and
Assets under this Agreement in accordance with the provisions of clause 6;
`THE COMPANIES ACT' means the Companies ▇▇▇ ▇▇▇▇;
`THE COMPLETION DATE' means the date on which Completion takes place;
`THE CONCESSION AGREEMENTS' means those concession agreements listed in
Schedule 5 together with those other agreements entered into with third
parties for the purpose of enabling the provision of services by third
parties to customers and guests at the Properties as disclosed in the
Vendor's replies to the Purchaser's pre-contract enquiries and in
correspondence relating to the Properties which are outstanding on the
Completion Date;
PAGE 3
`THE CONTRACTS' means the contracts and commitments entered into by a
Member of the Vendor's Group in the ordinary course of the Business and
which are outstanding on the Completion Date (other than the contracts and
commitments excluded pursuant to clause 2.3(f), all computer software
licences and agreements and agreements relating to data and voice lines),
all bookings for holidays or breaks to be taken at the Properties after
Completion, the Concession Agreements and all bookings of acts to perform
at the Properties after Completion made by Leisure Services Agency Limited
prior to Completion;
`THE CREDITORS' means all amounts owing by any Member of the Vendor's Group
in relation to the Business outstanding on the Completion Date;
`THE CUSTOMER LIST' means the list comprising, to the extent the same are
in the possession of the Vendor and/or Butlins at Completion, the names and
addresses of those persons who have booked a holiday or break taken at any
time during the two year period up to Completion at any of the Properties
and/or who have booked prior to Completion a holiday or break to be taken
at any of the Properties after Completion;
`THE DISCLOSURE LETTER' means the disclosure letter of the same date as
this Agreement addressed by the Vendor to the Purchaser for the purpose of
Schedule 7;
`THE EMPLOYEES' means the persons other than ▇▇▇▇▇ Vallally, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ who, immediately before Completion, are employed
under contracts of employment with any Member of the Vendor's Group and
exclusively engaged in the Business and details of the persons who at 1
June 1999 were employed under permanent contracts of employment in the
Business are set out in Schedule 4;
`THE ERA' means the Employment Rights ▇▇▇ ▇▇▇▇;
`THE GOODWILL' means the goodwill of the Business, together with -
PAGE 4
o the right to represent the Purchaser as carrying on the Business in
succession to Butlins and the Vendor;
o the benefit (so far as the Vendor can lawfully assign it), subject to
the burden, of the Contracts; and
o the Business Names (so far as the Vendor has any right to use or
interest in the same and is lawfully able to transfer any right to use
or interest in the same);
`GROUP' means, in relation to any company, that company and every other
company which at the relevant time is its subsidiary or holding company, or
a subsidiary of any such holding company; and `MEMBER' of a Group has a
corresponding meaning;
`THE GROSVENOR FIRE ALARM AGREEMENT' means the agreement between Grosvenor
Casinos Limited and the Purchaser in the agreed form relating to the fire
alarm at the Property at Scarborough;
`LANDLORD' means in relation to a Leasehold Property the landlord/lessor in
relation to the Lease(s) relating to that Leasehold Property or part of it
and includes any landlord/lessor in relation to any lease superior thereto
(and `LANDLORDS' shall be construed accordingly);
`THE LEASEHOLD PROPERTIES' means those of the Properties which are, in
whole or part, leasehold and `LEASEHOLD PROPERTY' shall be construed
accordingly;
`THE LEASE' means the lease(s) referred to in paragraph I of the relevant
Part of Schedule 1 and `LEASES' shall be construed accordingly;
`THE LICENCES' means all justices' licences, public entertainment licences,
bingo licences, gaming machine licences, registrations under the Gaming ▇▇▇
▇▇▇▇, gaming machine permits granted under section 34 of the Gaming ▇▇▇
▇▇▇▇, hotel comprehensive television licences, radio licences and all other
licences, permits and registrations in force immediately prior to
Completion in relation to the Business;
PAGE 5
`THE LOAN NOTE' means the (pound)10,400,000 non-interest bearing loan note
to be issued to Butlins by the Purchaser in the agreed form;
`THE LSA AGREEMENT' means the agreement in the agreed form to be entered
into by Leisure Services Agency Limited and the Purchaser on Completion;
`THE MANAGEMENT ACCOUNTS' means the trading accounts of the Business for
the 12 month period ended 31 December 1998 annexed to the Disclosure Letter
as document H31;
`THE MOTOR VEHICLE' means the motor vehicle details of which are given in
Schedule 8;
`THE PLANT' means all fixed and loose plant, machinery, tools, furniture
and equipment owned by the Vendor for the purpose of the Business and
situated at the Properties on Completion;
`THE PREPAYMENTS' means all payments made by any Member of the Vendor's
Group prior to Completion in respect of the supply to the Business of any
goods or services to be provided to the Business after Completion;
`THE PROPERTIES' means the freehold and leasehold properties brief
particulars of which are given in paragraph 1 of each Part of Schedule 1,
but excluding any fixed plant, machinery or equipment on them, and
`PROPERTY' shall be construed accordingly;
`RANK GROUP COMPANY' means The Rank Group Plc, a company registered in
England under number 3140769, and every other company which at the relevant
time is its subsidiary or holding company, or a subsidiary of any such
holding company,
`RANK PLAN' means the retirement benefits scheme known as `The Rank Pension
Plan' constituted by a Definitive Trust Deed and Rules dated 8th April 1963
(as amended);
PAGE 6
`RANK SCHEME' means the retirement benefits scheme known as `The Rank Money
Purchase Pension Scheme' constituted by a Definitive Trust Deed and Rules
dated 2nd April 1991 (as amended);
`RANK SHARES' means the shares of (pound)1 each in the capital of the
Purchaser having the rights and being subject to the restrictions set out
in the Articles of Association;
`THE RECORDS' means payroll details relating to the Employees, such
documents of title relating to the Assets as are in the possession and
control of the Vendor's Group at Completion and details of all bookings
made with Butlins prior to Completion for holidays at the Properties
commencing after Completion in whatever form or medium held or recorded;
`THE STANDBY LETTER OF CREDIT' means the standby letter of credit in the
agreed form to be issued by CitibankN.A. to Butlins on Completion in
respect of the Loan Note;
`THE STOCK' means all wet and dry stocks of any kind (including, without
limitation, all stocks of food, liquor, beverages, tobacco, shop
merchandise but excluding Badged Items) at the Properties and used or
intended for use in the Business and ascertained in accordance with clause
5;
`THE TARIFF CREDITORS' means all amounts received by Butlins and/or any
other Member of the Vendor's Group and/or the Vendor prior to Completion in
respect of bookings of holidays and breaks to be taken at the Properties
after Completion such amounts to be treated in accordance with clause 5
less any VAT for which Butlins or any Member of its Group is properly
accountable to HM Customs and Excise in respect of such holidays and less
any agents' commission deductible from any such amounts;
`THE TRADE MARKS' means the `Butlins' and `Entertainment Hotels' trade
marks licensed under the Butlins Licence;
PAGE 7
`THE TRANSFER REGULATIONS' means the Transfer of Undertakings (Protection
of Employment) Regulations 1981;
`VAT' means value added tax;
`THE VENDOR'S SOLICITORS' means ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ of Beaufort House, ▇▇ ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, Ref: PMT (and who are also Butlins
Solicitors); and
`THE WARRANTIES' means the warranties contained in Schedule 6.
1.1 In this Agreement, unless the context otherwise requires -
(a) an expression which is defined in or to which a meaning is given for
the purpose of the Companies Act (excluding its Schedules) has the
same meaning unless it is otherwise defined in this Agreement;
(b) a reference to a statute or a provision of a statute is a reference to
that statute or provision as amended or modified on the date of this
Agreement;
(c) a reference to a document `IN THE AGREED FORM' is a reference to a
document in the form of the draft which, for identification, is
endorsed with a statement (signed by or on behalf of the parties) to
the effect that it is such a document for the purpose of this
Agreement;
(d) a reference to `WRITING', or any cognate expression, includes a
reference to any communication effected by telex, facsimile
transmission or similar means; and
(e) a reference to a clause or a Schedule is a reference to a clause of or
a Schedule to this Agreement and a reference to this Agreement
includes a reference to each Schedule; and
(f) a reference to `the Parties' is a reference to the parties hereto.
PAGE 8
1.2 The headings in this Agreement are for convenience only and shall not
affect its interpretation.
2 SALE AND PURCHASE OF THE ASSETS
2.1 Subject to the terms of this Agreement the Vendor shall transfer the
Business as a going concern including the Assets or procure the transfer of
the same to the Purchaser with effect on and from Completion.
2.2 The Vendor shall sell, or procure the sale of, and the Purchaser shall
purchase the following assets of the Business -
(a) the Goodwill provided always that (save as expressly provided in the
Butlins Licence) nothing contained herein or otherwise shall give the
Purchaser any rights whatsoever in or to use any of the names
`Butlins', `Butlins Hotels', `Butlins Holiday Worlds', `Entertainment
Hotels', `Everydays', `Hard Rock', `Red Coats', `Rank', the `man with
the gong' logo or symbol or any other name, logo or symbol owned or
used by any Rank Group Company (other than the Business Names);
(b) the Properties;
(c) the Plant;
(d) the Tariff Creditors;
(e) the Customer List;
(f) the Records;
(g) the Stock;
(h) the Cash Floats;
PAGE 9
(i) the Prepayments; and
(j) the Motor Vehicle (together with the benefit of its unexpired vehicle
excise licence).
2.3 For the avoidance of doubt there shall be excluded from the sale and
purchase under this Agreement -
(a) all cash in hand or at bank of the Vendor's Group in relation to the
Business other than the Tariff Creditors and the Cash Floats;
(b) other than those items referred to in clauses 2.2(e) and (f), all
purchasing manuals, books of account, records, and all other
information and data howsoever recorded or stored relating to the
Business or the customers or suppliers thereof and all copies of the
same;
(c) all plant, machinery, tools, equipment and other items the subject of
any hire, hire purchase, conditional sale, financial lease, rental or
loan agreement or arrangement included in the Contracts and/or the
Leases;
(d) all Badged Items;
(e) the Creditors;
(f) the benefit of all group purchase and supply contracts, arrangements
and commitments entered into by the Vendor's Group in the course of
the Business (including, without limitation, agreements with National
Express and ATOC) other than the arrangements and commitments covered
by the Prepayments; and
(g) the Book Debts.
2.4 The Business as a going concern including the Assets shall be sold by the
Vendor as beneficial owner, and the Vendor shall sell the same, or procure
the sale of the same,
PAGE 10
with full title guarantee (subject to the provisions of Schedule 2 in
respect of the Properties) as to any property to which the Law of Property
(Miscellaneous Provisions) Act 1994 is capable of applying unless there is
express provision in this Agreement to the contrary in relation to any
particular Asset.
2.5 The Properties shall be sold by the Vendor, or the Vendor shall procure the
sale of the Properties, on the terms and conditions contained or referred
to in Schedule 2.
2.6 Risk in and title to the Assets shall pass to the Purchaser on Completion.
2.7 Nothing in this Agreement shall transfer or be deemed to transfer to the
Purchaser or constitute or be deemed to constitute an acceptance or
assumption by the Purchaser of any liability, obligation, benefit, right,
interest or asset of the Vendor or any Member of the Vendor's Group save in
relation to the Properties or as expressly set out in this Agreement or in
any document in the agreed form.
3 CONSIDERATION
3.1 The price for the Assets (excluding the Stock, the Cash Floats and the
Prepayments) shall be the sum of (pound)19,000,100 (nineteen million one
hundred pounds) (`THE CONSIDERATION') exclusive of VAT (if any) to be
satisfied by-
(a) the allotment at Completion to the Vendors of the Consideration Shares
credited as fully paid; and
(b) the discharge by the Purchaser of the liability of the Vendor under
clause 3.1 of the Butlins Sale Agreement to pay the sum of
(pound)19,000,000 (but not any VAT thereon) to be effected as
follows -
(i) by the payment in cash to Butlins on Completion
of (pound)8,600,000 (eight million six hundred thousand pounds);
and
(ii) by the issue on Completion to Butlins by the Purchaser of the
Loan Note.
PAGE 11
3.2 The parties agree to adopt the apportionment of the price given in Schedule
3 for all fiscal purposes. Any adjustment to the price for the Assets under
this Agreement shall be effected pro rata the apportioned values given in
Schedule 3.
3.3 As consideration for the Stock, Cash Floats and Prepayments, the Purchaser
shall discharge the liability of the Vendor to make payment to Butlins
under clause 3.3 of the Butlins Sale Agreement to be effected by the
payment directly to Butlins of the sum calculated under clause 5.12 of this
Agreement.
3.4 In addition to the stuns payable as consideration for the Assets the
Purchaser agrees that it shall, pursuant to the Butlins Licence and the
Butlins Services Agreement, pay -
(a) to the Vendor (as trustee for the benefit of Rank Leisure Holdings
Plc) on Completion the sum of (pound)700,000 together with any VAT
chargeable thereon in respect of the amounts due under the Butlins
Licence and the sum of (pound)300,000 together with any VAT chargeable
thereon on the date two months after the Completion Date in respect of
further amounts due under the Butlins Licence; and
(b) to the Vendor on Completion the sum of (pound)200,000 together with
any VAT chargeable thereon in respect of amounts due under the Butlins
Services Agreement and the sum of (pound)100,000 together with any VAT
chargeable thereon on the date two months after the Completion Date in
respect of further amounts due under the Butlins Services Agreement.
4 APPORTIONMENTS AND CONTRACTS
4.1 Without prejudice to clause 2.7 and subject always to the terms of clause 5
all expenses and outgoings (but excluding the Creditors) and income (but
excluding the Book Debts) relating to the Business including any of the
Assets shall, as they relate to a period before the Completion Date be
borne by (in the case of expenses and outgoings) and be for the benefit of
(in the case of income) the Vendor and insofar as they relate to a period
after the Completion Date be borne by (in the case of expenses
PAGE 12
and outgoings) and be for the benefit of (in the case of income) the
Purchaser and accordingly insofar as they relate to a period falling partly
before and partly after the Completion Date, be apportioned pro rata
temporis as between the Vendor and the Purchaser who shall account to one
another on or as soon as practicable after Completion. Subject always to
the provisions of the Butlins Services Agreement in respect of sums dealt
with thereunder, in the event that after Completion any Member of the
Purchaser's Group receives any payment which under the terms of this clause
4.1 is due to the Vendor it shall pay the same to the Vendor within 10
Business Days of the next occurring Accounting Date (as defined below) and
in the event that after Completion any Member of the Vendor's Group
receives any payment which under the terms of this clause 4.1 is due to the
Purchaser it shall pay the same to the Purchaser within 10 Business Days of
the next occurring Accounting Date (as defined below). For the purposes of
the above provisions, the Parties shall on the expiry of each consecutive
period of seven days following Completion (each such date being an
`ACCOUNTING DATE') notify the other Party in writing of any sums received
by it due to that other Party under this clause.
4.2 As further consideration for the sale of the Business including the Assets,
the Purchaser undertakes to the Vendor (for itself and as trustee for the
benefit of every other Member of its Group) that, in discharge of part of
the liability of the Vendor under clause 3.2 of the Butlins Sale Agreement,
as from the Completion Date it shall -
(a) subject to clause 4.2(b), perform any outstanding obligations and
liabilities of the Vendor or any other Member of its Group under the
Contracts in so far as they relate to the period after the Completion
Date in accordance with their terms, and shall not do any act or thing
as a result of which any claim may be made against the Vendor or any
other Member of its Group under the Contracts; and
(b) in so far as the Vendor or any other Member of its Group has entered
into any Contract which relates both to the Business and to any other
business of the Vendor or any other Member of its Group, the Purchaser
shall as from the
PAGE 13
Completion Date assume responsibility for and perform any outstanding
obligations and liabilities in so far as they relate to the period
after the Completion Date of the Vendor and any other Member of its
Group under that Contract to the extent that it relates to the
Business, and shall duly and properly perform at the Purchaser's cost
all of the obligations arising under that Contract in relation to the
Business in accordance with its terms, and the Purchaser shall not do
any act or thing as a result of which any claim may be made against
the Vendor or any other Member of its Group under any such Contract.
4.3 In so far as the benefit or burden of any of the Contracts cannot
effectively be assigned to the Purchaser without the agreement of or
novation with, or consent to the assignment from, the person, firm or
company concerned (`THE NON-ASSIGNABLE CONTRACTS') and in relation to the
contracts referred to in clause 4.2(b) (`THE JOINT CONTRACTS') -
(a) the Vendor and the Purchaser shall co-operate to do everything they
reasonably can (excluding, for the avoidance of doubt, the making of
any monetary payment) to procure that the non-assignable Contracts are
novated or assigned accordingly and that the joint Contracts are
novated into separate agreements respectively relating to the Business
and the business retained by the Vendor pending which the Vendor
shall hold the benefit of the relevant Contracts in trust for the
Purchaser;
(b) unless and until any of the non-assignable Contracts are novated or
assigned in accordance with this clause 4.3, the Purchaser shall as
the Vendor's or the relevant Member of its Group's sub-contractor
perform all the obligations of the Vendor or the relevant Member of
its Group under the Contracts in question insofar as they relate to
the Business and the Vendor will at the Purchaser's cost give all
reasonable assistance to the Purchaser to enable the enforcement of
rights thereunder; and
PAGE 14
(c) unless and until any of the joint Contracts are novated in accordance
with this clause 4.3, as the Vendor's or the relevant Member of its
Group's subcontractor perform any outstanding obligations of the
Vendor or the relevant Member of its Group under the joint Contracts
in so far as they relate to the Business and the Vendor will at the
Purchaser's cost give all reasonable assistance to the Purchaser to
enable the enforcement of rights thereunder.
4.4 Nothing in this Agreement -
(a) shall require the Purchaser to perform any obligations falling due for
performance before the Completion Date by any Member of the Vendor's
Group under the Contracts;
(b) shall make the Purchaser liable for any neglect or default in respect
of any of the Contracts by any Member of the Vendor's Group prior to
Completion; or
(c) shall impose any obligation on the Purchaser for or in respect of any
breach of contract, breach of statutory duty or negligence on the part
of any Member of the Vendor's Group in respect of any goods sold or
services provided by any Member of the Vendor's Group prior to
Completion.
4.5 The Purchaser shall on the Completion Date (or as soon as reasonably
practicable after receipt of the same from the Vendor) send notice of the
change of ownership of the Motor Vehicles to DVLA in Swansea (which the
Vendor shall deliver to the Purchaser on or as soon as practicable after
Completion) in the prescribed form so that as from the Completion Date the
Vendor is no longer named as the registered keeper of the Motor Vehicles
with DVLA.
4.6 The Vendor shall, following Completion, discharge in accordance with its
ordinary custom and practice the Creditors and all other liabilities of the
Business not expressly agreed to be assumed by the Purchaser under this
Agreement. The Vendor shall, following Completion, collect in accordance
with its ordinary custom and practice the
PAGE 15
Book Debts provided that before taking any legal steps in respect of the
collection thereof the Vendor shall notify the Purchaser.
4.7 The Purchaser undertakes to the Vendor (for itself and as trustee for the
benefit of every other Member of its Group) that it shall indemnify, and
keep indemnified, the Vendor and every other Member of its Group in respect
of any losses, damages, costs, claims and expenses which may be reasonably
incurred by the Vendor or any other Member of its Group as a result of -
(a) any act, neglect, default or omission on the part of the Purchaser's
Group constituting a failure to comply with any obligation of the
Purchaser's Group under the Contracts arising on or after Completion;
and
(b) any claim for payment by any of the creditors of the Purchaser's Group
in relation to the carrying on of the Business after the Completion
Date and arising from or in connection with the neglect or default of
any Member of the Purchaser's Group.
4.8 Nothing in this Agreement -
(a) shall require any Member of the Vendor's Group to perform any
obligations falling due for performance after the Completion Date by
any Member of the Purchaser's Group under the Contracts;
(b) shall make any Member of the Vendor's Group liable for any neglect or
default in respect of any of the Contracts by any Member of the
Purchaser's Group after Completion; or
(c) shall impose any obligation on any Member of the Vendor's Group for or
in respect of any breach of contract, breach of statutory duty or
negligence on the part of any Member of the Purchaser's Group in
respect of any goods sold or services provided by any Member of the
Purchaser's Group after Completion.
PAGE 16
5 STOCK, CASH FLOATS, PREPAYMENTS AND TARIFF CREDITORS
5.1 Under the provisions of the Butlins Sale Agreement, for the purposes of
determining the payment to be made to Butlins under clause 3.3 of the
Butlins Sale Agreement the amount of the Tariff Creditors is to be deducted
from the amount payable for the Stock, the Cash Floats and Prepayments. The
Parties agree that the following provisions shall be applied to determine
the sum payable by the Purchaser in discharge of the liability of the
Vendor under clause 3.3 of the Butlins Sale Agreement. The Vendor and the
Purchaser shall procure that the aggregate value of the Stock, the Cash
Floats and the Prepayments less the Tariff Creditors is calculated in
accordance with the following provisions of this clause 5.
5.2 `The quantities and descriptions of the Stock, the cost and net realisable
value of the Stock and the amount of the Cash Floats shall be determined
by reference to a stocktaking to be taken on the Completion Date (or such
other date as may be agreed by the parties) by Messrs. Venners (or such
other stocktaker as may be agreed by the parties) whose costs shall be
borne jointly by the Vendor and the Purchaser and whose decisions shall (in
the absence of manifest error) be final and binding on the parties.
5.3 The value of the Stock shall be ascertained by the stocktaker and each item
of Stock shall be valued at the lower of cost and net realisable value (or
cost in the case of items not for resale). For the purpose of computing the
cost to the Vendor of any Stock, any Stock acquired by the Vendor or
Butlins from another Member of its Group shall be treated as having been so
acquired at market value by way of a bargain made at arm's length.
5.4 Each of the Vendor and the Purchaser shall, and the Vendor shall procure
that Butlins shall, give to the stocktaker such assistance as may be
reasonably required to enable the price of the Stock and the amount of the
Cash Floats to be calculated and each shall procure that proper access to
the books of account and accounting records of the Business is provided to
enable the stocktake to be carried out under this Agreement.
PAGE 17
5.5 The Vendor shall, or shall procure that Butlins shall, procure that a
statement showing the value of the aggregate of the Stock, the Cash Floats
and the Prepayments less the Tariff Creditors with each shown separately
(`THE STATEMENT') as at the Completion Date is prepared as soon as
practicable after Completion and in any event within 28 days of the
Completion Date. Once prepared, such statement and any supporting
calculations (including details of all bookings to which the Tariff
Creditors relate) shall be delivered forthwith to the Purchaser for
approval.
5.6 Unless the Purchaser notifies the Vendor in writing within 14 days of its
receipt of the Statement that, in the Purchaser's opinion, the Statement is
inaccurate, the amount of the value of the aggregate of the Stock, the Cash
Floats and the Prepayments less the Tariff Creditors set out in such
statement shall be conclusive and binding on the Vendor and the Purchaser;
but if the Purchaser notifies the Vendor that in its opinion the Statement
is inaccurate the provisions of clauses 5.8 and 5.9 shall apply.
5.7 If the Purchaser notifies the Vendor that, in its opinion, the Statement
is inaccurate, the Vendor the Purchaser shall use their respective
reasonable endeavours to agree the Statement and the amount of the value of
the aggregate of the Stock, the Cash Floats and the Prepayments less the
Tariff Creditors within 14 days of receipt by the Vendor of the
notification under clause 5.6.
5.8 If the Statement and the amount of the value of the aggregate of the Stock,
the Cash Floats, and the Prepayments less the Tariff Creditors are not
agreed by the end of the period mentioned in clause 5.7, the Vendor and
Purchaser shall as soon as practicable after the end of that period refer
any disputed item in the preparation of the Statement or the ascertainment
of the amount of the value of the aggregate of the Stock, the Cash Floats
and the Prepayments less the Tariff Creditors to an independent chartered
accountant qualified as such for not less than ten years and engaged in
private practice to be agreed upon between them and appointed jointly by
the Vendor and the Purchaser or (in default of such agreement) by the
President for the time being of the Institute of Chartered Accountants in
England and Wales on the application of the Vendor or the Purchaser, the
accountant so appointed shall be instructed to deliver his
PAGE 18
determination of such disputed item(s) as soon as practicable to the Vendor
and the Purchaser and shall be deemed to act as an expert and not as an
arbitrator and his decision shall be final and binding on the Vendor and
the Purchaser.
5.9 The Vendor and the Purchaser shall, and the Vendor shall procure that
Butlins shall, procure that proper and reasonable access to the books of
account and accounting records of the Business is given to the Purchaser
and any accountant appointed under clause 5.8 to enable them to verify the
Statement and to enable them to carry out their respective duties under
this Agreement.
5.10 The fees of any chartered accountant appointed under clause 5.8 shall be
paid by the Vendor and the Purchaser in such proportion as he may determine
or, in the absence of any such determination, as to one half by the Vendor
and as to one half by the Purchaser.
5.11 Sums received by Butlins and/or any other Member of the Vendor's Group
and/or the Vendor prior to Completion in respect of bookings of holidays
and breaks to be taken at the Properties partly before and after Completion
shall be apportioned on a pro rata temporis basis and the relevant amount
thereof included in the Tariff Creditors accordingly.
5.12 Within seven days of the Statement being finally agreed or determined
pursuant to the above provisions the Purchaser shall, in discharge of the
obligations of the Vendor under clause 3.3 of the Butlins Sale Agreement,
pay to Butlins the greater of (a) the aggregate of the value of the Stock,
the Cash Floats and the Prepayments less (i) the Tariff Creditors and (ii)
(pound)500,000; and (b) nil.
3.13 If the value of the aggregate of the Tariff Creditors plus (pound)500,000
is greater than the aggregate of the Stock, Cash Floats and Prepayments,
the Vendor shall within seven days of the Statement being finally agreed or
determined pursuant to the above provisions pay to the Purchaser the amount
by which the aggregate of the Tariff
PAGE 19
Creditors plus (pound)500,000 is greater than the aggregate of the Stock,
the Cash Floats and the Prepayments
6 COMPLETION
6.1 The sale and purchase of the Assets shall be completed immediately upon the
execution and exchange of this Agreement.
6.2 The Vendor shall on Completion -
(a) deliver to the Purchaser such of the Assets as are capable of passing
by delivery by making the same available at the relevant Property;
(b) to the extent the same are in the possession of the Vendor, deliver to
the Purchaser the originals of the Contracts and copies of the joint
Contracts (as referred to in clause 4.3);
(c) deliver to the Purchaser
(i) an assurance of each Property in the agreed form duly executed by
Butlins;
(ii) the Butlins Licence duly executed by Rank Leisure Holdings plc;
(iii) the Butlins Services Agreement duly executed by the Vendor;
(iv) the LSA Agreement duly executed by Leisure Services Agency
Limited;
(v) the Grosvenor Fire Alarm Agreement duly executed by Grosvenor
Casinos Limited;
(vi) certified copies of the board minutes of the Vendor approving the
entry into and performance of this Agreement; and
PAGE 20
(vii) licences to assign relating to the Leasehold Properties (where
appropriate) in a form acceptable to the relevant Landlord and
duly executed by the relevant Landlord (provided that the
obligation on the Vendor in this sub-clause is limited to handing
over such licence to assign as soon as it is received by the
Vendor from the relevant Landlord).
6.3 The Purchaser shall on Completion
(a) pay to Butlins, by CHAPS transfer to the Vendor's Solicitors' (who arc
also Butlins Solicitors) bank account at Lloyds Bank Plc, ▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, (sort code 30-00-09, account
number ▇▇▇▇▇▇▇) the sum of (pound)8,600,000 (eight million, six
hundred thousand pounds), being the sum specified in clauses
3.1(b)(i);
(b) pay to the Vendor, by CHAPS transfer to the Vendor's Solicitors'
bank account at Lloyds Bank Plc, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇, (sort code 30-00-09, account number ▇▇▇▇▇▇▇) the sum of
(pound)900,000 being the aggregate of the sums specified in clauses
3.4(a) and 3.4(b) as payable at Completion;
(c) deliver a duly executed original of the Loan Note to Butlins (or to
the Vendor's Solicitors on Butlins behalf), together with certified
copies of the board minutes of the Purchaser constituting the Loan
Note and authorising its issue to Butlins and the original Standby
Letter of Credit duly issued and executed by Citibank N.A.;
(d) deliver to the Vendor -
(i) an assurance of each Property in the agreed form duly executed by
the Purchaser;
(ii) the Butlins Licence duly executed by the Purchaser;
PAGE 21
(iii) the Butlins Services Agreement duly executed by the Purchaser;
(iv) the LSA Agreement duly executed by the Purchaser;
(v) the Grosvenor Fire Alarm Agreement duly executed by the
Purchaser;
(vi) certified copies of the board minutes of the Purchaser approving
the entry into and execution of the above and
(vii) licences to assign and rent deposit deeds relating to the
Leasehold Properties (where appropriate) in a form acceptable to
the relevant Landlord duly executed by the Purchaser.
6.4 The Vendor's Solicitors are irrevocably authorised to receive the payments
referred to in clauses 6.3(a) and 6.3(b) and their receipt thereof shall be
a sufficient discharge to the Purchaser who shall not be concerned with the
distribution thereof.
6.5 The Vendor shall from time to nine and at all times after the Completion
Date upon request by the Purchaser (and at the Purchaser's cost and
expense) do all such acts and execute all such documents as arc reasonably
necessary for perfecting the transfer of the Business to the Purchaser and
for vesting in the Purchaser title to the Assets in accordance with this
Agreement.
6.6 This Agreement shall, so far as it remains to be performed, continue in
full force and effect notwithstanding Completion.
7 WARRANTIES
7.1 The Vendor warrants to the Purchaser in the terms contained in Schedule 6,
subject to the provisions of Schedule 7, the terms of which the Purchaser
acknowledges and agrees are fair and reasonable in all the circumstances
and in particular, but without limitation, for the purposes of the
Misrepresentation ▇▇▇ ▇▇▇▇ and the Unfair ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
PAGE 22
7.2 Each of the Warranties shall be construed as a separate Warranty and shall
not be limited or restricted by reference to or inference from any other
matter including the terms of any other Warranty or any other terms of this
Agreement with the exception of Schedule 7.
7.3 In the absence of fraud or fraudulent concealment, the Vendor shall not (in
the event of any claim being made against it in connection with the sale of
the Business and Assets to the Purchaser) make any claim against any of the
Employees on whom it may have relied before agreeing to any term of this
Agreement or the content of any of the Warranties or authorising any
statement in the Disclosure Letter.
7.4 Save as provided in this Agreement no failure or delay by any Party in
exercising any of its rights hereunder shall be deemed to be a waiver of
that right. Any waiver or release of any right hereunder shall be in
writing and such a waiver or release shall not prejudice or affect any
remaining rights or remedies of the relevant Party giving the waiver or
release.
8 BADGED ITEMS AND EXCLUDED ASSETS
On the expiry of the Butlins Licence, the Purchaser shall remove and
dispose at its own cost (and in a manner which is not prejudicial or
detrimental to the goodwill of any Rank Group Company) all items badged
with or bearing a Trade ▇▇▇▇ (other than those which it has been expressly
agreed by the parties in writing should remain at the Properties and in
relation to such Badged Items the Purchaser shall on expiry of the Butlins
Licence permanently block out, at the cost of the Purchaser, any Rank Badge
thereon).
9 EMPLOYEES
9.1 It is acknowledged and agreed by the Parties that the transfer of the
Business pursuant to this Agreement constitutes a `relevant transfer' for
the purposes of the Transfer Regulations and that accordingly the contracts
of employment of the Employees ▇▇▇▇
▇▇▇▇ 23
on Completion be transferred to the Purchaser as provided by the Transfer
Regulations.
9.2 The Vendor shall pay to each of the Employees all emoluments (excluding any
accrued holiday pay and bonuses but including other benefits) due to them
for the period ending on the Completion Date.
9.3 The Purchaser warrants and represents that it has prior to the execution of
this Agreement given to the Vendor in writing such information concerning
the measures envisaged by the Purchaser concerning the Employees as would
enable the Vendor to comply with its statutory obligation to inform and
consult representatives of the Employees pursuant to the Transfer
Regulations about the transfer of the Business to the Purchaser.
9.4 The Vendor warrants and represents that it has prior to the execution of
this Agreement complied with it obligations under the Transfer Regulations
to inform and consult the Employees about the transfer of the Business to
the Purchaser and that any default by the Vendor in doing so is a direct
result of any failure by the Purchaser to comply with its obligations under
regulation 10(3) of the Transfer Regulations.
9.5 The Vendor shall indemnify the Purchaser against all costs, expenses,
damages, compensation, fines and other liabilities arising out of or in
connection with-
(a) any claim by any Employee arising from his employment with Butlins or
the Vendor or any other Member of the Vendor's Group or the
termination of that employment (howsoever arising) on or prior to
Completion;
(b) any claim by any employee or former employee of Butlins or the Vendor
or any other Member of the Vendor's Group who is not one of the
Employees arising from his employment with Butlins and/or the Vendor
and/or any other Member of the Vendor's Group or the termination of
that employment (howsoever arising);
PAGE 24
(c) any claim by any trade union or staff association recognised by
Butlins or by the Vendor or any other Member of the Vendor's Group in
respect of all or any of the Employees or arising from Butlins or the
Vendor's or any other Member of the Vendor's Group's failure to comply
with any legal obligation to any such trade union or staff association
or Butlins or the Vendor's or any other Member of the Vendor's Group's
failure to comply with any consultation provision of any collective
agreement with any trade union or staff association;
(d) any claim by or on behalf of any Employee in respect of the failure to
comply with any legal obligation on Butlins or the Vendor or any other
Member of the Vendor's Group to supply information to and/or consult
with a representative of that Employee; and
(e) any claim or fine arising out of the failure by Butlins or the Vendor
or any other Member of the Vendor's Group to comply with their
obligations under sections 188 or 193 of the Trade Union and Labour
Relations (Consolidation) ▇▇▇ ▇▇▇▇;
provided always that the indemnities contained in clauses 9.5(c) and 9.5(d)
shall apply subject to the Purchaser having complied with its obligations
under regulation 10(3) of the Transfer Regulations.
9.6 The Vendor shall following Completion at the Purchaser's request and
expense provide to the Purchaser in relation to any Employee such
information or documents which are not delivered to the Purchaser at
Completion as the Purchaser may reasonably require relating to the terms
and conditions of employment and pension and life assurance arrangements
concerning the employment of such Employee with Butlins or the Vendor prior
to the Completion Date.
9.7 The Purchaser shall from Completion assume responsibility for the
performance of all of the obligations of the employer of the Employees and
undertakes to indemnify the
PAGE 25
Vendor (for itself and as trustee for the benefit of Butlins) against all
costs, expenses, damages, compensation, fines and other liabilities arising
out of or in connection with the employment of the Employees on or after
Completion.
10 PENSIONS
The Vendor and the Purchaser undertake to perform their respective
obligations under Schedule 9 with regard to the pension rights of the
Employees.
11 VALUE ADDED TAX
11.1 Any sum payable by the Purchaser under this Agreement is exclusive of any
applicable VAT and (subject to this clause 11) the Purchaser agrees to pay
all VAT which is properly chargeable thereon.
11.2 The Parties acknowledge and agree that section 49(1) of the Value Added Tax
▇▇▇ ▇▇▇▇ (`VATA') and paragraph 5 of the Value Added Tax (Special
Provisions) Order 1995 (`Article 5') are intended to apply to the sale and
purchase of the Assets and accordingly the Purchaser -
(a) warrants that from Completion it shall use the Assets to carry on the
same kind of business as the Business without a significant break in
trading;
(b) warrants and represents it is duly registered for VAT or shall be so
registered with effect from a date no later than Completion;
(c) warrants that it shall not immediately transfer the Business or any
part thereof or any of the Assets to another person; and
(d) warrants and represents that it has made an election having effect
under paragraph 2 of schedule 10 VATA and given notice of that
election to HM Customs & Excise in respect of the Properties such
election to have effect on Completion.
PAGE 26
11.3 Under a general dispensation dated 23rd January 1992 Rank Group Companies
received permission to retain the records (if any) referred to in section
49(1) VATA as relate to the Business. After Completion the Vendor shall
procure that all such records are preserved for such period as is required
by law and shall give the Purchaser reasonable access upon reasonable
notice to those records and shall allow the Purchaser and its agents, at
the Purchaser's expense and upon reasonable notice, to make copies of those
records.
11.4 If notwithstanding the intention of the parties expressed in clause 11.2 an
amount of Value Added Tax is determined (on the basis of full disclosure of
all material facts) by H.M. Customs and Excise to be payable in respect of
the sale to the Purchaser of the Assets and H.M. Customs and Excise make an
assessment in respect of that Value Added Tax, then the Purchaser shall,
upon the date following five Business Days after the date of receipt by the
Purchaser in cleared funds from H.M. Customs & Excise of an input tax
credit or a refund in respect of such VAT and provided that it shall have
received in respect of the same a valid tax invoice, pay over to the Vendor
the amount of that Value Added Tax.
11.5 The Purchaser shall use all reasonable endeavours to obtain, as soon as
reasonably practicable, such input tax credit or refund as is referred to
in clause 11.4 above.
11.6 The Purchaser shall indemnify the Vendor against any liability of the
Vendor for interest and penalties to the extent that such liability would
not have arisen but for a breach by the Purchaser of -
(a) any of its warranties and representations in clause 11.2; or
(b) its obligations under clause 11.5 above.
11.7 The Vendor warrants that it is validly registered for VAT and that it has
validly elected to waive the exemption from VAT in respect of the
Properties with effect from a date falling on or before Completion by
reason of the election made by Butlins Limited a company in the same VAT
group as the Vendor and shall provide to the Purchaser
PAGE 27
prior to Completion a copy of valid notices to HM Customs & Excise in
respect of such election by Butlins.
11.8 The Vendor and the Purchaser shall use all reasonable endeavours to procure
that the sale of the Assets pursuant to this Agreement is accepted as a
transfer of a going concern by HM Customs & Excise for the purposes of
Article 5 and the Vendor shall -
(a) if HM Customs & Excise determine that Article 5 does not apply to the
sale of the Assets pursuant to this Agreement, provide to the
Purchaser as soon as reasonably practicable full details of such
determination;
(b) if so requested by the Purchaser and at the Purchaser's sole expense,
make such appeals and request for review of decisions as the Purchaser
shall reasonably require from time to time, providing all such
co-operation, information and assistance as is reasonably necessary to
pursue such appeals and reviews;
(c) permit, for the purposes of the appeals and requests for review
referred to in 11.8(b) above, the Purchaser to have control of the
conduct of such appeals and requests and to instruct on the Vendor's
behalf such reasonably competent professional advisers as the
Purchaser shall select; and
(d) promptly repay to the Purchaser any amount of VAT paid to the Vendor
which is determined by HM Customs & Excise or a court or tribunal not
to have been VAT properly due and payable.
11.9 The Vendor shall not be required to make any appeal in respect of the
application of Article 5 to the sale of the Assets under this Agreement
beyond the VAT and Duties Tribunal (or equivalent body replacing the same)
unless the Purchaser has, at its own expense, procured the opinion of Tax
Counsel of not less than six years call to the effect that such an appeal
will be likely to succeed.
PAGE 28
11.10 The Vendor agrees to provide within 4 weeks of written request by the
Purchaser such details as are in its possession (including the total input
tax on the capital item the date it was incurred and the percentage of
input tax claimed on the item in the first interval both as defined in
Part XV of the Value Added Tax Regulations 1995 SI 1995/2518 (`the VAT
Regulations')) of all land and other capital items which are used in the
course or furtherance of the Business to which Part XV of the VAT
Regulations could apply.
12 LICENCES
The Purchaser shall use all reasonable endeavours (which endeavours shall
include, without limitation, the payment of any renewal, transfer,
registration or other similar fee in relation to the Licences) to procure
that any of the Licences which are in the name of a Rank Group Company or
any person employed by any such company (other than an Employee) and which
are assignable or transferable to the Purchaser or its employees are, with
effect from the Completion Date, assigned or transferred into the name of
the Purchaser or its employees. The Vendor shall provide such assistance as
is reasonably requested by the Purchaser for the purpose of effecting such
assignments and transfers. The Purchaser acknowledges and agrees that in
respect of any such Licences which are not capable of assignment or
transfer to it or its employees, the Vendor shall following notice to the
Purchaser identifying the Licences in question have the right to terminate
or cancel or procure the termination or cancellation of the same with
effect from Completion or any time thereafter.
13 BOOKINGS
13.1 The Vendor undertakes that in the event of Butlins staff receiving an
enquiry from a customer in respect of a booking to be made at any of the
Properties for a holiday commencing after Completion Butlins staff should
recite, or other arrangements should be in place so far as is reasonably
practicable, such that the customer hears, a form of message to be agreed
between the Parties following Completion concerning the sale of the
Business and the Vendor shall otherwise have the right to inform customers
that the Business has been sold to the Purchaser by means of a letter to
PAGE 29
customers in a form to be agreed between the parties following Completion
and if so requested by customers of the Business Butlins, Butlins shall
have the right to make and accept (without any liability to the Purchaser)
a hooking at any other site or property operated by a Rank Group Company.
13.2 The Purchaser acknowledges that holiday brochures and other marketing
materials advertising holidays at the Properties for the period after
Completion are in circulation at the date hereof and that bookings have
and will be made by reference to the said brochures and materials.
Accordingly, the Purchaser undertakes to the Vendor (for itself and as
trustee for the benefit of every other Member of its Group) that it
shall -
(a) ensure that the Business is operated in all material respects during
the periods covered by such brochures and materials to the same
standard advertised in the said brochures and materials and shall
ensure that the facilities, accommodation and services specified in
the said brochures and materials are in all material respects
provided at the Properties throughout such periods;
(b) adopt and honour the conditions of booking specified in the said
brochures and materials and any other relevant contract (save as to
price); and
(c) ensure that following Completion the travel offers set out in the
1999 Entertainment Hotels brochure currently in circulation continue
to be made available to customers of the Business in accordance with
the terms of such brochure throughout the life of such brochure and
the Purchaser agrees to purchase from the Vendor upon the expiry of
3 months from Completion any National Express vouchers held by
Butlins and/or the Vendor for coach travel to and from the
Properties.
13.3 The Purchaser undertakes to the Vendor (for itself and as trustee for the
benefit of every other Member of its Group) that it shall indemnify and
keep indemnified the Vendor and each Rank Group Company in respect of all
loss, damage, costs, claims or expenses reasonably incurred by the Vendor
or any other Rank Group Company
PAGE 30
arising out of or in connection with any claim made by a party in respect
of a holiday taken or to be taken at any Property at any time after
Completion which claim arises out of or in connection with any failure by
any Member of the Purchaser's Group to ensure that the Business is
operated during the periods covered by the brochures and materials
referred to in clause 13.2(a) to the same standard advertised in those
brochures and materials and/or to ensure that the facilities,
accommodation and services (including without limitation the rail and
coach travel offers) specified in the said brochures and materials are
provided at the Properties throughout such periods and/or to adopt and
honour the conditions of booking specified in the said brochures and
materials and any other relevant contract.
14 EXCLUSION OF WARRANTIES AND REPRESENTATIONS
14.1 The Purchaser acknowledges that it has been afforded the opportunity to
inspect the Assets and the Properties prior to the date of this Agreement
and agrees that it shall take the same in the condition as they are at
Completion.
14.2 The Purchaser acknowledges that it has not been induced to enter into this
Agreement by any representation, term, condition, warranty, promise or
assurance other than those expressly set out or referred to herein or in a
document in the agreed form or by any collateral contract and all
representations, terms, conditions, warranties, promises, assurances and
duties not expressly set out or referred to herein or in a document in the
agreed form and whether implied by statue, common law or otherwise are
excluded to the fullest extent permitted by law and, in the absence of
fraud, the purchaser acknowledges that it shall have no remedy in respect
of the same.
14.3 The Purchaser acknowledges and agrees that the provisions of this clause
14 are fair and reasonable in all the circumstances and in particular, but
without limitation, for the purposes of the Misrepresentation ▇▇▇ ▇▇▇▇ and
the Unfair ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
PAGE 31
15 NOTICES
15.1 Any notice or other communication to be given under this Agreement to
either part may be given by delivering it by hand or sending it by prepaid
first class post or by facsimile transmission to, in the case of the
Vendor, its registered office for the time being marked for the attention
of `The Company Secretary and, in the case of the Purchaser, its
registered office for the time being or to such other address as a party
may have notified to the other party in writing from time to time.
15.2 A notice or other communication given in the manner prescribed above shall
be deemed to be given -
(a) at the time of delivery if it is delivered before 5.00 p.m. on a
Business Day; and
(b) in any other case at 9.00 a.m. on the next following Business Day.
16 GENERAL
16.1 The Purchaser shall throughout the period of 6 years from the Completion
Date -
(a) allow the Vendor or its duly authorised agent (on reasonable notice
and at the Vendor's cost) to inspect and take copies of or extracts
from any books of account, records and other documents (as defined
in section 10 of the Civil Evidence Act 1968) relating to the
Business which are delivered to the Purchaser on Completion and
shall not destroy any part thereof without first offering the same
to the Vendor; and
(b) use its reasonable endeavours at the Vendor's cost to assist the
Vendor in obtaining any necessary information reasonably required
for settling any outstanding tax computations or other tax, VAT,
PAYE or National Insurance or other matter or enquiry of the
Vendor.
16.2 Except to the extent required by the rules or regulations of the London
Stock Exchange or by law, no announcement of the sale and purchase
hereunder or the
PAGE 32
terms of this Agreement shall be made by either party without the prior
written consent of the other and pending any announcement each party shall
use its best endeavours to keep the same confidential.
16.3 The Purchaser undertakes to the Vendor (for itself and as trustee for the
benefit of every other Member of the Vendor's Group) that, except as
provided below in this clause 16.3, it shall and shall procure that its
employees, agents and advisors shall at all times-
(a) keep confidential all Restricted Information;
(b) not disclose any Restricted Information to any other person; and
(c) not use any Restricted Information for any purpose other than is
contemplated by this Agreement (including the operation of the
Business in the normal course);
provided that the Purchaser may disclose any Restricted Information (i) to
the extent required by law, (ii) to the extent that, through no fault of
the Purchaser, the Restricted Information is at the time of such
disclosure public knowledge or (iii) to those of its own employees and
professional advisors who in the course of their employment or in their
capacity as professional advisor (as the case may be) need to know such
information.
For the purposes of this clause, `Restricted Information' means any
information which is disclosed to the Purchaser, its agents or its
advisors by the Vendor, its agents or its advisors pursuant to or in
connection with this Agreement or the sale of the Assets hereunder.
16.4 Subject as provided in this Agreement, the parties shall pay their
respective costs in connection with this Agreement.
PAGE 33
16.5 This Agreement, together with the documents in the agreed form,
constitutes to the fullest extent permitted by law the whole agreement of
the parties in relation to its subject matter and supersedes any previous
agreement between them in relation to that matter; and no modification of
this Agreement shall be effective unless it is made in writing and signed
by the parties.
16.6 If any provision of this Agreement is held by a court or other competent
authority to be invalid or unenforceable in whole or in part, this
Agreement shall continue to be valid as to its other provisions and the
remainder of the affected provision.
16.7 This Agreement shall be governed by and construed in accordance with
English law and the parties agree to submit to the non-exclusive
jurisdiction of the English courts.
16.8 This Agreement may be executed in more than one counterpart and shall come
into force once each party has executed such a counterpart in identical
form and exchanged it with the other party.
16.9 This Agreement is personal to the Purchaser and the Purchaser shall not
assign, transfer, charge or deal in any other manner with this Agreement
or any of its rights under it, nor purport to do any of the same, nor
sub-contract any or all of its obligations under this Agreement provided
that -
(a) the Purchaser shall be entitled to assign the benefit of its right
and interest in this Agreement to a wholly owned subsidiary of the
Purchaser provided that if such assignee company (`THE ASSIGNEE')
shall cease to be a wholly owned subsidiary of the Purchaser at any
time when such benefits are outstanding, the Purchaser shall procure
that prior to the Assignee ceasing to be a wholly owned subsidiary
of the Purchaser it shall assign such benefits to the Purchaser or
another wholly owned subsidiary of the Purchaser at that time; and
(b) the Purchaser shall be entitled with the consent of the Vendor, such
consent not to be unreasonably withheld or delayed, to assign the
benefit of its right and interest in this Agreement to another
Member of the Purchaser's Group.
PAGE 34
16.10 The Vendor shall, and shall procure that Butlins shall, provide such
information and assistance as the Purchaser shall reasonably require for
the purposes of submitting a claim for relief from stamp duty under
Section 76 of the Finance ▇▇▇ ▇▇▇▇.
PAGE 35
SCHEDULE I
THE PROPERTIES
PART I
BRIGHTON
1 PROPERTY DESCRIPTION
1.1 All that freehold property known as Ocean Hotel at Saltdean in the County
Borough of Brighton in the County of Sussex ("Ocean Hotel") as comprised
in the Root of Title referred to in paragraph 3 below.
1.2 All such rights, title and interest which Butlins has in the land edged
orange (on the plan annexed hereto (`THE ORANGE LAND').
2 BUSINESS NAME
Ocean Hotel, Saltdean, Brighton
3 ROOT OF TITLE
In relation to the property referred to in paragraph 1.1 above -
Conveyance dated 30th June 1954 made between (1) Investment and First
Mortgage Company Limited and (2) Butlins.
4 MATTERS TO WHICH THE PROPERTY IS SUBJECT
4.1 Those contained or referred to in the following documents -
(a) Licence dated 9th February 1954 made between (1) Butlin Properties
Limited and (2) The Mayor Aldermen and Burgesses of the Borough of
Brighton;
(b) Agreement dated 25th July 1969 made between (1) Butlins and (2) The
Sussex Police Authority;
PAGE 36
[OCEAN HOTEL, SALTDEAN, NR BRIGHTON MAP]
(c) Agreement dated 19th January 1993 made between (1) Brighton Borough
Council and (2) Butlins;
5 TENANCIES
5.1 Lease dated 19th July 1960 made between (1) Butlins Limited and (2) The
South Eastern Electricity Board;
5.2 Agreement dated 5th October 1993 made between (1) Butlins limited and (2)
Vodafone Limited.
6 SPECIAL CONDITIONS
6.1 Subject to 6.4 below no requisition or objection shall be made in respect
of the fact that neither the Vendor nor Butlins is able to supply either
the original or any examined copy or abstract of the Conveyance dated 30th
June 1954 referred to above as the root of title.
6.2 No requisition or objection shall be made in respect of the fact that the
Vendor is unable to supply any further particulars of Butlins occupation
of the Orange Land.
6.3 The Vendor sells (or shall procure the sale of) such interest as Butlins
may have in the Orange Land and no title guarantee is given by the Vendor
nor Butlins in respect thereof.
6.4 The Vendor will at its own cost give reasonable assistance to reply to
requisitions raised by HM Land Registry arising from the Purchaser's
application to be registered as proprietor of the Orange Land with
possessory title.
6.6 No requisition or objection shall he made in respect of the fact that
neither the Vendor nor Butlins is able to supply either the original or an
examined copy or abstract of the Conveyance dated 26th October 1938 made
between (1) Land Freeholds Limited and (2) First Mortgage Co-Operative
Investment Trust Limited.
PAGE 37
SCHEDULE I
PART 2
SCARBOROUGH
I PROPERTY DESCRIPTION
All that freehold property known as The Grand Hotel, Scarborough comprised
in and registered at HM Land Registry under Title Number NYK9958 with
title absolute.
2 BUSINESS NAME
Grand Hotel, Scarborough.
3 ROOT OF TITLE
Not applicable.
4 MATTERS TO WHICH THE PROPERTY IS SUBJECT
Those contained or referred to in the following documents -Section 106
Agreement dated 30th April 1997 made between (1) The Scarborough Borough
Council and (2) Butlins.
5 TENANCIES
None
6 SPECIAL CONDITIONS
None
PAGE 38
SCHEDULE I
PART 3
MARGATE
1 PROPERTY DESCRIPTION
1.1 All that freehold property known as Norfolk Hotel, Eastern Esplanade,
Margate as the same is registered at HM Land Registry under Title Number
K266280 with title absolute.
1.2 All that freehold property known as St George's Hotel, Eastern Esplanade
and land at the rear of ▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, as the same is registered
at HM Land Registry under Title Number K273897 with title absolute.
1.3 All that freehold property known as Hydro Grand Hotel and Cafe, Eastern
Esplanade, Margate, the Patch, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Enfield
House, ▇▇▇▇▇▇ Road, Margate, and ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ as the same is
registered at HM Land Registry under Title Number K28501 with title
absolute.
1.4 All that leasehold property known as the Prince's Hotel, 14 and ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Kent, being the land demised by a
lease dated 28th May 1993 made between (1) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ and (2) Butlins Limited.
1.5 Such right, title and interest as Butlins may have in the subsoil beneath
the public highway between the properties described at paragraphs 1.1, 1.2
and 1.3 above and including (but not by way of limitation) all subways and
tunnels running between those properties.
2 BUSINESS NAME
Grand Hotel, Cliftonville, Margate.
PAGE 39
3 ROOT OF TITLE
In relation to the land referred to in paragraph 1.4 above: The lease
dated 28th May 1993 referred to in paragraph 1.4 above.
4 MATTERS TO WHICH THE PROPERTY IS SUBJECT
Those contained or referred to in the following documents -
4.1 Section 18 Agreement dated 25th july 1994 made between (1) Southern Water
Services Limited and (2) Butlins Limited.
4.2 The rents reserved by the lease dated 28th May 1993 rcfcrred to in
paragraph 1.4 above and the covenants, rights, exceptions, reservanons
under the matters contained or referred to in the said lease.
5 TENANCIES
5.1 Lease dated 7th June 1961 made between (1) Butlins and (2) The South
Eastern Electricity Board.
6 SPECIAL CONDITIONS
6.1 The Vendor will at its own cost give reasonable assistance to reply to
requisitions raised by HM Land Registry arising from the Purchaser's
application to be registered as proprietor of the property described in
paragraph 1.5 to this Schedule 1 Part 3.
6.2 The parties hereby agree to the following -
(a) For the avoidance of doubt (and as reflected in the Consideration),
nothing in this Agreement gives or is intended to give the Purchaser any
rights or entitlement to claim damages against the Highways Department or
any other person, entity or authority relating to the works carried out by
Butlins to the sewers and drains running
PAGE 40
through/under the land adjoining the Property referred to in this Part of
Schedule 1 (the `Works');
(b) Further, for the avoidance of doubt (and as is reflected in the
Consideration), the parties hereby agree that the Purchaser has no
entitlement or claim whatsoever in respect of any damages which may he
claimed and/or received by either (1) the Vendor or (2) Butlins against
the Highways Department or any other person, entity or authority relating
to the Works; and
(c) The Purchaser shall promptly provide Butlins and the Vendor all
reasonable assistance as may be required for the purposes of pursuing any
claim relating to the Works.
PAGE 41
SCHEDULE I
PART 4
BLACKPOOL
1 PROPERTY DESCRIPTION
1.1 All that leasehold property known as the Metropole Hotel, Blackpool in the
County of Lancashire situate on the north promenade adjoining Talbot
Square, Blackpool together with the gardens or car park yard and cellars
thereto and the lock-up shops situated within the curtilage of the said
hotel and known as Metropole Buildings, Blackpool being the property
comprised in and demised by a lease dated 26th March 1965 made between (1)
Metropole Hotel (Blackpool) Limited and (2) Butlins Limited as varied by a
Deed of Variation dated 7/3/1999 made between (1) Ian ▇▇▇▇▇ ▇▇▇▇▇▇ and
others and (2) Butlins.
1.2 All that leasehold property relating to ▇▇▇/▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ situated only on the ground floor entrance hall and staircase
together with the upper floors of the Landlord's property situate and
numbered ▇▇▇/▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ excluding therefrom the
portion of the premises comprised on the ground floor separate and apart
from the premises hereby demised under roof under the external and/or
structural parts of the building comprising the Premises being the
property comprised in and demised by a lease dated 11th July 1994 and made
between (1) Venturion Limited and (2) Butlins Limited.
2 BUSINESS NAME
Metropole Hotel, Blackpool.
3 ROOT OF TITLE
The two leases referred to above and dated 26th March 1965 and 11th July
1994 respectively.
PAGE 42
4 MATTERS TO WHICH THE PROPERTY IS SUBJECT
The rents reserved by the two said leases dated 26th March 1965 and 11th
July 1994 referred to above respectively and the covenants, rights,
exceptions, reservations under the matters contained or referred to in the
two said leases.
5 TENANCIES
None.
6 SPECIAL CONDITIONS
None.
PAGE 43
SCHEDULE I
PART S
LLANDUDNO
1 PROPERTY DESCRIPTION
1.1 All that freehold land and buildings at Llandudno comprising the Dolphin
Cafe and part of the Grand Hotel, Llandudno which is shown for
identification only edged red on the plan attached to the Conveyance and
Assignment dated 27th March 1981 made between (1) Llandudno Hotels
limited, (2) Trusthouse Forte Hotels Limited and (3) Butlins Limited.
1.2 All that leasehold land known as the Grand Hotel, Llandudno forming part
of the land demised by a lease dated 31st December 1902 made between (1)
The Most Honourable ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of Abergavenny and others and (2) The
Grand Hotel Llandudno Limited (excluding the land conveyed by the
conveyance of 26th March 1981 made between (1) Llandudno Hotels Limited,
(2) Trusthouse Forte Hotels Limited and (3) Entam Leisure Limited
2 BUSINESS NAME
Grand Hotel, Llandudno
3 ROOT OF TITLE
3.1 Conveyance and assignment dated 27th March 1981 made between (1) Llandudno
Hotels Limited, (2) Trusthouse Forte Hotels Limited and (3) Butlins
3.2 Lease dated 31st December 1902 made between (1) The Most Honourable
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of Abergavenny and others and (2) The Grand Hotel
Llandudno Limited
4 MATTERS TO WHICH THE PROPERTY IS SUBJECT
Those contained and referred to in the following documents -
PAGE 44
4.1 The rents reserved by the said lease dated 31st December 1902 and the
covenants, rights, exceptions, reservations and other matters contained or
referred to in the said lease.
4.2 A licence to house condensing unit dated 27th March 1981 made between (1)
Entam Leisure Limited and (2) Butlins.
4.3 Licence to place dustbins dated 27th March 1981 made between (1) Entam
Leisure Limited and (2) Butlins.
4.4 Deed of grant of covenant dated 27th March 1981 made between (1) Entam
Leisure Limited and (2) Butlins.
4.5 Deed dated 27th March 1981 made between (I) Entam Leisure Limited and (2)
Butlins.
4.6 Conveyance dated 6th December 1983 made between (1) Entam Leisure Limited
and First Leisure Corporation Plc and (2) Llandudno Pavilion Limited.
5 TENANCIES
None.
6 SPECIAL CONDITIONS
None.
PAGE 45
SCHEDULE 2
TERMS AND CONDITIONS OF SALE OF THE PROPERTIES
1 STANDARD CONDITIONS
1.1 The Standard Conditions of Sale (3rd Edition) (the `STANDARD CONDITIONS')
as amended hr paragraphs 1.2 and 1.3 shall be incorporated into this
Agreement insofar as they are not varied by or inconsistent with the other
terms expressly set out in this Agreement and shall apply to the sale and
purchase of the Properties.
1.2 Standard Conditions 2.2, , 3.4, 4.1, 4.2, 4.3.2, 4.5.2, 4.5.5, 5.1,
5.2.2(b), 5.2.2(g), 5.2.3 and 5.2.7, 6.1, 6.2, 6.3, 6.4, 6.6, 6.7 and 6.8,
7, 8.3 and 9 shall not apply.
1.3 The Standard Conditions shall be varied as follows -
(a) the word `seller' shall be amended to Vendor and the word `buyer'
shall be amended to `Purchaser' wherever each of them appears;
(b) in Standard Condition 1.1.1(a), sub-paragraphs (i) and (ii) shall be
deleted and the words `the interest actually earned on money less
any proper charges for handling the money' shall be inserted; and
(c) in Standard Condition 1.1.1 (g), the contract rate shall be 4% per
annum above the base rate current from time to time of Lloyds Bank
Plc.
(d) in Standard Condition 3.2.1, the word "contract" shall be replaced
with the word "completion".
(e) in Standard Condition 5.2.2(f), the words `nor change its use and
shall comply with all statutory obligations relating to the property
and indemnify the Seller against all liability arising as a result
of any breach of such `obligation' shall be added at the end;
PAGE 46
2 SPECIAL CONDITIONS
In addition to the terms and conditions contained in this Schedule the
relevant special conditions (`SPECIAL CONDITIONS') (if any) referred to in
paragraph 6 of the relevant Part of Schedule 1 shall apply to the sale of
each relevant Property
3 ENCUMBRANCES
Each of the Properties is sold subject to and with the benefit of--
3.1 all matters registered or registrable by any local or other competent
authority and any other requirement (including any charge notice order or
proposal) of any local or other competent authority acting by statutory
authority or by Royal Charter;
3.2 all matters affecting that Property which are disclosed or capable of
discovery by searches or enquiries made of any person or local or other
competent authority or statutory body or by inspection or survey and
whether or not such searches or enquiries inspection or survey have in
fact been made by or on behalf of the Purchaser;
3.3 overriding interests (as defined in section 70 of the Land Registration
Act 1925) affecting that Property;
3.4 all matters contained or referred to in the property and charges registers
of the registered title referred to (if relevant) in paragraph 1 of each
Part of Schedule 1 as relate to that Property (`REGISTERED TITLES' and
`REGISTERED TITLE' shall be construed accordingly) (other than charges to
secure the repayment of money);
3.5 all matters contained or referred to in the documents referred to in
paragraphs 3 and 4 of each Part of Schedule 1 as relate to that Property
and the relevant tenancies (of any) referred to in paragraph 5 of each
Part of Schedule 1 and/or all matters referred to in the schedule of deeds
and documents supplied by the Vendor's Solicitors to the Purchaser's
Solicitors before the date hereof (in this Schedule and in Schedule 1
`DOCUMENTS').
PAGE 47
3.6 the rents reserved by and the tenant's covenants and other obligations
contained in the Leases.
3.7 Any rights or interests (if any) affecting the Properties pursuant to the
Concession Agreements.
4 TITLE
4.1 Title to the Properties (which in the case of any Property which is
unregistered will commence from the Root of Title referred to in paragraph
3 of the relevant Part ot Schedule 1) has been deduced to the Purchaser
prior to the date of this Agreement and the Purchaser will not raise any
objection to or requisition on such title.
4.2 The Purchaser having been provided with copies of the registers of each
Registered Title and associated filed plan(s) and the documents and
matters specified in the schedule of deeds and documents as supplied to
the Purchaser's Solicitors before the date hereof is deemed to purchase
with full knowledge of their respective terms and will not raise any
objection to or requisition on them or on the matters contained or
referred to in the paragraphs of the relevant Part of Schedule 1 relating
to the Properties.
5 ASSURANCE
5.1 Notwithstanding that the Vendor sells (or is procuring the sale) with full
title guarantee (save for in relation to the Orange Land) and the
assurance of each Property is to contain provisions in the following terms
modifying the covenants implied into it by the Law of Property
(Miscellaneous Provisions) Act 1994 (the `ACT') -
(a) in section 6(1) the word `particular' shall be deleted and the words
`or the contract for the disposition of the property' shall be added
after the words `...to which disposition...';
(b) the words `who shall be deemed to have actual knowledge of all
entries made in the public registers held by H.M. Land Registry, the
local land charges registry and Companies House' shall be added at
the end of section 6(2);
PAGE 48
(c) section 6(3) shall be deleted;
(d) the covenants to be implied on the part of Butlins as disponer in
such assurance by sections 2, 3, 4 and 5 of the Act shall be limited
so that they shall not be annexed and incident to that Property
pursuant to section 7 of the Act and none of the provisions of the
Act shall be interpreted to imply there is any obligation on Butlins
to pay any Land Registry fees in relation to the registration of the
Purchaser at H.M. Land Registry in respect of any of that Property;
and
(e) section 4(1)(b) of the Act shall not apply to any condition or
obligation on the part of the tenant contained in the Lease or
imposed by common law or otherwise relating to the repair and/or
condition of the Property.
5.2 Each such assurance shall -
(a) include such other provisions as shall be appropriate in the light
of any Special Conditions applicable to, or any matter affecting,
the relevant Property;
(b) contain covenants (by way of indemnity only) with Butlins and the
Vendor that the Purchaser and its successors in title will observe
and perform all obligations on the part of Butlins and the Vendor
(or either) arising from (where appropriate) the relevant Lease(s)
and the matters referred to in the property, proprietorship, and
charges registers of the relevant Registered Title and the matters
referred to in the documents referred to in paragraphs 3, 4 and 5
(if any) of the relevant Part of Schedule 1 relating to that
Property and will indemnify Butlins and the Vendor against all costs
damages and expenses incurred by Butlins and the Vendor (or either)
arising out of any failure by the Purchaser or its successors in
title to do so; and
(c) be executed in duplicate and one part shall (as soon as reasonably
practicable) be denoted and stamped by the Purchaser at its own cost
and (without delay) delivered to the Vendor.
PAGE 49
5.3 The Vendor shall only be obliged to convey or transfer (or procure the
conveyance or transfer of) each Property to the Purchaser in one parcel
and by one assurance.
PAGE 50
SCHEDULE 3
PRICE
MARGATE SCARBOROUGH BLACKPOOL BRIGHTON LLANDUDNO TOTAL
Goodwill, Records 21 21 21 21 21 105
and Customer List
Buildings 850,000 1,420,000 690,000 1,040,500 900,000 4,900,000
Land 2,597,999 3,163,999 2,341,999 3,439,999 1,755,999 13,299,995
Plant and Machinery 16,000 22,000 17,000 12,000 15,000 82,000
Fixed
Plant and Machinery 136,000 194,000 151,000 108,000 129,000 718,000
Muveable and Motor
Vehicle
TOTAL 3,600,000 4,800,000 3,200,000 4,600,500 2,800,000 19,000,100
PAGE 51
SCHEDULE 4
EMPLOYEES
METROPOLE HOTEL, BLACKPOOL
▇. ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
L.A. Bird
▇. ▇▇▇▇▇
▇. ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
▇.▇ ▇▇▇▇
▇.▇ ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
C.Z. ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇
▇. ▇▇▇▇▇▇
PAGE 52
▇.▇. ▇▇▇▇▇▇
▇. ▇▇▇▇▇
▇. ▇▇▇▇
▇. ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ Iliffe
P.A. ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇
▇.▇ ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
M.D. ▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇
▇. ▇▇▇▇
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▇. ▇▇▇▇▇▇▇
▇. ▇▇▇▇
OCEAN HOTEL, BRIGHTON
▇.▇. ▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇ (aka ▇. ▇▇▇▇▇▇▇)
▇.▇. ▇▇▇▇▇▇▇
A.Z. ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
T. Brietton
▇. ▇▇▇▇
PAGE 53
▇. ▇▇▇▇▇
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I.B.J. ▇▇▇▇
▇.▇. ▇▇▇▇▇▇
▇. ▇▇▇▇▇
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PAGE 54
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PAGE 55
D.S. Way
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PAGE 56
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PAGE 57
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PAGE 58
▇. ▇▇▇▇▇▇
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PAGE 59
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PAGE 60
SCHEDULE 5
THE CONCESSION AGREEMENTS
o a contract for cigarette vending service dated 19th December 1997 made
between (1) Rank Leisure Holdings Plc and (2) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (Vending)
Limited;
o an agreement dated 25th February 1998 between (1) Rank Group Holidays
Division and (2) LRC Vending;
o an agreement dated 2nd March 1998 made between (1) Butlins Limited and (2)
Nigara Therapy UK Limited;
o an agreement dated 26th January 1998 made between (1) Butlins Limited and
(2) Mrs J ▇▇▇▇▇▇▇▇▇;
o an agreement dated 26th January 1998 made between (1) Butlins Limited and
(2) Mrs M ▇▇▇▇;
o an agreement dated 26th January 1998 made between (1) Butlins Limited and
(2) Mr B ▇▇▇▇;
o an agreement dated 26th January 1998 made between (1) Butlins Limited and
(2) Falmer & ▇▇▇▇▇▇ ▇▇▇▇ Taxis; and
o an agreement dated 28th January 1998 made between (1) Butlins Limited and
(2) Station Taxis;
o an agreement dated 13th April 1999 made between (1) Butlins Limited and
(2) R ▇▇▇▇▇▇ re: the provision of a taxi service;
o an agreement dated 2nd January 1998 made between (1) Butlins Limited and
(2) Station Taxis re: the provision of a taxi service;
PAGE 61
o an agreement dared 15th November 1998 made between (1) Butlins limited and
(2) Mr H Mountain re: the provision of coach tours.
PAGE 62
SCHEDULE 6
THE WARRANTIES
I ACCOUNTS
1.1 The Accounts have been prepared in accordance with generally accepted
accounting practice in the UK and on bases and policies consistent with
the Butlins audited annual accounts for the year ended 31 December 1997.
1.2 The figures contained in the Management Accounts have been properly used
in the preparation of the Accounts.
2 TITLE TO THE ASSETS
2.5 The Assets (other than the Properties) -
(a) are the absolute and sole property of the Vendor free from any lien,
option, mortgage, charge, lease, licence, or other encumbrance; and
(b) in the case of tangible assets, are in the possession or under the
exclusive control of the Vendor.
3 CONTRACTS
3.1 None of the Contracts has been entered into by Butlins or the relevant
Member of its Group otherwise than in the ordinary course of the Business.
3.2 So far as each of Butlins and the Vendor is aware, no party to any
Contract is in material breach of it.
3.3 So far as each of Butlins and the Vendor is aware, no default or event has
occurred as a result of which any of the Contracts will be terminated.
PAGE 63
3.4 None of the Contracts current1y commits the Vendor's Group in relation to
the Business to an expenditure in excess of (pound)20,000 to be made
during the course of any six month period following Completion.
4 CARRYING ON OF THE BUSINESS
4.1 Other than the Trade Marks and the Business Names no intellectual property
rights, are required for the purpose of carrying on the Business, neither
Butlins or the Vendor is party to any intellectual property licence for
the purposes of the Business and the carrying on of the Business does not
so far as Butlins and the Vendor are aware infringe any right of another
person in respect of any intellectual property rights or has given rise to
payment by Butlins or the Vendor of any royalty or of any sum in the
nature of a royalty or to liability to pay compensation.
4.2 Butlins has carried on the Business solely under its corporate name, the
name `Entertainment Hotels' and the Business Names and, so far as each of
Butlins and the Vendor is aware, without infringement of any proprietary
right or interest of any other person or liability to pay any royalty.
4.3 Neither Butlins or the Vendor is a member of any partnership, consortium,
trade association or any other association of persons (whether
incorporated or not incorporated) which relates to the Business.
4.4 Butlins has not carried on the Business through any branch, agency or
permanent establishment outside the United Kingdom.
4.5 Copies of the Licences are attached to the Disclosure Letter and the
Licences are, so far as Butlins and the Vendor are aware, in full force
and effect and save for the sale of the Business hereunder neither Butlins
or the Vendor are aware of any current circumstances which indicates that
any of the Licences is likely to be revoked or is not capable of transfer
or renewal in the ordinary course.
PAGE 64
5 LITIGATION
In relation to the Business neither Butlins nor any Member of the Vendor's
Group is engaged or involved or proposing to engage in
(a) any litigation, prosecution, arbitration or other legal proceedings
(whether as plaintiff, defendant or third party) except for normal
debt collection;
(b) any proceedings or enquiries before any tribunal;
(c) so far as it is aware, any investigation by the Inland Revenue, the
Office of Fair Trading, the Commission of the European Communities
or any other authority; or
(d) any industrial dispute or action;
and so far as each of Butlins and the Vendor is aware there are no such
claims or actions or investigations pending or threatened by or against
any Member of the Vendor's Group in relation to the Business.
6 INSURANCE
6.1 The policies of insurance maintained by Butlins and its Group relating to
the Business and the Assets are, so far as each of Butlins and the Vendor
is aware, valid and in force and all premiums due in respect of the same
have been paid.
6.2 There is no insurance claim by the Vendor or Butlins outstanding in
respect of the Business or the Assets.
7 EMPLOYEES
7.1 Particulars accurate in all material respects of the terms of employment
of those persons who are employed by the Vendor, Butlins or any other
Member of the Vendor's Group (THE `EMPLOYING COMPANIES') exclusively for
the purpose of the
PAGE 65
Business on the date hereof under permanent contracts of employment are
set out in the Disclosure Letter.
7.2 None of the Employing Companies is a party to any agreement or
arrangement for profit sharing with the Employees, or for the payment to
the Employees of bonuses or incentive payments, or any collective
bargaining or other agreement or arrangement with any trade union in
respect of the Employees.
7.3 No Employee listed in Schedule 4 has given to any of the Employing
Companies or received from any of the Employing Companies notice of
termination of his employment.
7.4 There are no employees engaged in the Business or other individuals who
provide services to the Business as consultant, other than the Employees.
7.5 None of the Employing Companies is party to any collective agreement,
arrangement or other understanding with any trade union, staff association
or other body representing the Employees.
7.6 So far as each of Butlins and the Vendor is aware, each of the Employing
Companies has in relation to each of the Employees in connection with
their employment in the Business -
(a) complied in all material respects with its obligations under the
Trade Union and Labour Relations (Consolidation) ▇▇▇ ▇▇▇▇, the Sex
Discrimination ▇▇▇ ▇▇▇▇, the Race Relations ▇▇▇ ▇▇▇▇, the Employment
Rights ▇▇▇ ▇▇▇▇, Article 119 of The Treaty of Rome, the Equal
Treatment Directive, the Disability Discrimination ▇▇▇ ▇▇▇▇ and all
other statutes, regulations and codes of practice relevant to its
relations with the Employee and with any recognised trade union
representing him and all collective agreements from time to time in
force relating to such relations or the conditions of service of the
Employee and has maintained such records regarding the service of
the Employee as required by the Working Time Regulations 1998;
PAGE 66
(b) discharged fully its obligations arising prior to Completion to pay
all salaries, wages, commissions, bonuses, overtime pay, holiday
pay, sick pay, accrued entitlement under incentive schemes and other
benefits of or connected with his employment with the relevant
Employing Company; and
(c) without prejudice to paragraph 7.6(a), complied in all material
respects with all its obligations under statute and otherwise
concerning health and safety at work and has not incurred any
undischarged liability to any Employee in respect of any accident or
injury.
7.7 No Employing Company has in relation to the Business entered into and
which remains effective -
(a) any agreement or arrangement to make any payments (other than
emoluments) to or on behalf of any of the Employees;
(b) any agreement or arrangement imposing an obligation on the relevant
Employing Company to increase the rates of remuneration of, or to
make any bonus or incentive payments or any benefits in kind or any
payments under a profit-sharing scheme to or on behalf of, any of
the Employees at any future date;
(c) any negotiation with any of the Employees for a change in the
emoluments or other terms of engagement of that Employee; or
(d) any agreement or arrangement for the provision of compensation on
the termination of employment of any Employee beyond the minimum
required by law; and
for the purposes of this paragraph 7.7 a reference to `Employees' shall be
a reference to those Employees listed in Schedule 4 only and `Employee'
shall be construed accordingly.
PAGE 67
7.8 No dispute has arisen since 1 January 1998 between any Employing Company
and a material number or category of the employees engaged in the Business
at the relevant time and so far as each of Butlins and the Vendor is aware
there are no present circumstances which are likely to give rise to any
such dispute.
7.9 So far as each of Butlins and the Vendor is aware there are no claims
pending or threatened against any Employing Company by any of the
Employees or former employees engaged in the Business and so far as each
of Butlins and the Vendor is aware there is no industrial action or
dispute threatened or existing or anticipated by any of the Employees.
7.10 So far as each of Butlins and the Vendor is aware there are no enquiries
or investigations pending or threatened affecting Butlins or the Vendor in
relation to the Business by the Equal Opportunities Commission or
Commission for Racial Equality.
7.11 Neither the Vendor nor any Member of the Vendor's Group has in relation to
the Business offered any permanent contract of employment to any person
which remains outstanding.
7.12 There is no person employed or previously employed by the Vendor or any
Member of the Vendor's Group exclusively in relation to the Business who
is on maternity leave, absent on grounds of disability or other leave of
absence and has a statutory or contractual right to return to work for the
Vendor in relation to the Business.
8 PENSIONS
8.1 With the exception of the Rank Plan and the Rank Scheme, there are no
agreements or arrangements for the provision of any relevant benefits (as
defined in Section 612(1) of Chapter I Part XIV with the omission of the
exception in that definition) for any employee or officer or former
employee or officer of the Business or for any
PAGE 68
spouse or dependant of any such person nor has any proposal been
announced to establish any such agreement or arrangement.
8.2 The Vendor has no obligation to contribute to any pension scheme (as
defined in Section 630 of Chapter I Part XIV) in respect of any employee
or officer or former employee or officer of the Business.
8.3 The Vendor is not providing and has not at any time provided or promised
to provide ex gratia pensions or other benefits in respect of any person.
8.4 Copies of the current editions of the members' booklets of the Rank Plan
and the Rank Scheme as issued to current members of the Rank Plan and the
Rank Scheme (as appropriate) have been provided to the Purchaser; such
booklets provide an accurate outline of the contributions and benefits
under the Rank Plan and the Rank Scheme save to the extent that those
benefits have been amended by the deeds of amendment dated 16 February
1999 and 27 May 1999 (relating to the Rank Plan) and a deed of amendment
dated 27 May 1999 (relating to the Rank Scheme) copies of which have also
been provided to the Purchaser and which are identified in the Disclosure
Letter.
8.5 No discretion or power has been exercised under the Rank Plan and the Rank
Scheme in relation to any of the Employee Members to -
(a) augment benefits;
(b) admit to membership anyone not otherwise eligible for admission;
(c) admit to membership anyone on terms relating to transfer credits in
circumstances where a full transfer payment has not yet been made in
full in respect of that person; or
(d) pay a contribution or provide a benefit which would not otherwise be
paid or provided.
PAGE 69
8.6 The Rank Plan and the Rank Scheme are approved as an exempt approved
scheme within the meaning of Chapter I Part XIV and there is in force in
respect of employments with the Company to which either the Rank Plan or
the Rank Scheme relates an appropriate contracting-out certificate (within
the meaning of section 7 of the Pension Schemes Act 1993) and there is no
reason why such approval will or may cease or any such contracting-out
certificate will or may be cancelled surrendered or varied.
8.7 The Rank Plan and the Rank Scheme have at all times been administered in
accordance with its trusts powers and provisions and of the Pension
Schemes Office and with due regard to the general requirements of trust
law.
8.8 The membership data relating to the Rank Plan and the Rank Scheme that has
been disclosed to the Purchaser is complete and accurate in all material
respects.
8.9 All amounts due to be paid to each of the Rank Plan and the Rank Schemes
have been paid when due.
9 TAX-GENERAL
9.1 Butlins and the Vendor have each properly operated the Pay As You Earn
system (including its application to National Insurance Contributions) and
have complied with their respective reporting obligations to the Inland
Revenue in connection with all benefits provided for the Employees by
Butlins and the Vendor.
10 TAX-VAT
10.1 Butlins and the Vendor are registered as taxable persons for the purposes
of any tax legislation relating to Value Added Tax, have both maintained
and obtained up to date records, invoices and other documents appropriate
or requisite for the purposes of Value Added Tax relating to the Business
and have complied in all material respects with all provisions of any tax
legislation relating to Value Added Tax in relation to the Business.
PAGE 70
10.2 All documents in the possession or under the control of the Vendor or to
the production of which the Vendor is entitled which arc necessary to
establish the title of the Vendor to any of the Business Assets and which,
in the United Kingdom or elsewhere, attract either stamp duty or require
to be stamped with a particular stamp denoting that no duty is chargeable
or that the document has been produced to the appropriate authority, have
been properly stamped; and no such documents which are outside the United
Kingdom would attract stamp duty if they were brought into the United
Kingdom.
11 PROPERTY
11.1 Butlins have relied on the presumption of law that Butlins owns the
subsoil beneath the public highway running between the properties
described at paragraphs 1.1, 1.2 and 1.3 of Part 3 of Schedule 1 in the
construction and use of the subway tunnels and service media running
between such properties and as far as Butlins is aware they have received
no written notice from any other party claiming any right title or
interest in such subsoil.
11.2 As far as the Vendor is aware the written replies by the Vendor's
Solicitors to written property enquiries made by the Purchaser's
Solicitors are true and accurate in all material respects.
11.3 No Rank Group Company other than Butlins has any claim, right, title or
interest in the Orange Land as defined in paragraph 1.2 of Part 1 of
Schedule 1.
PAGE 71
SCHEDULE 7
PROVISIONS CONCERNING THE WARRANTIES
INTERPRETATION
1 In this Schedule `Claim' means a claim for breach of any of the
Warranties.
BASIS ON WHICH WARRANTIES GIVEN
2 The Purchaser hereby confirms that it is not aware of any matter or fact
which would constitute a breach of any of the Warranties.
TIME LIMIT FOR MAKING CLAIMS
3 The Vendor shall not be liable for a Claim unless the Purchaser gives
written notification to the Vendor of the particulars of the Claim
(setting out in reasonable detail the basis of the Claim and the amount
claimed), in the case of a Claim relating to Tax, before the expiry of 7
years from Completion and, in the case of any other claim, before the
expiry of 18 months from Completion and either liability for the Claim is
accepted by the Vendor in writing or a claim form in respect of the Claim
is duly served by the Purchaser in either case within 180 days from the
day of notification of the Claim by the Purchaser to the Vendor.
EXCLUSION OF SMALL CLAIMS
4 The Vendor shall not be liable for a Claim unless the amount payable in
respect of that Claim -
(a) individually exceeds (pound)20,000; and
(b) in aggregate exceeds (pound)200,000 when added to the amount which
is payable (or but for subparagraph (a) would be payable) in respect
of every other Claim
in which case the Vendor shall be liable for the whole amount not only the
excess above (pound)200,000.
PAGE 72
MAXIMUM LIABILITY
5 The total liability of the Vendor under this Agreement (including
liability for interest and costs) shall not exceed (pound)19,000,000
(nineteen million pounds). The Parties agree that at any time when any
amount is outstanding under the Loan Note, the liability of the Vendor
hereunder in respect of a Claim to the extent of the said amount
outstanding shall be settled and satisfied by a reduction, in accordance
with the provisions of the Loan Note, in the amount payable by the
Purchaser under the Loan Note.
OTHER LIMITATIONS OF LIABILITY
6 The Vendor shall not be liable for a Claim to the extent that its subject
matter -
(a) is fairly disclosed in the Disclosure Letter;
(b) would have been fairly disclosed by a search of the microfiches
relating to Butlins and the Vendor held at Companies Registry no
earlier than two Business Days immediately prior to the date hereof.
7 The Vendor shall not be liable for any Claim -
(a) to the extent that the Claim would arise or the amount of the Claim
would be increased after the date of Completion as a result of -
(i) the enactment of any legislation;
(ii) a judgment or change in the interpretation or application of
any law or of any ruling or practice relating to any law or of
any ruling or practice of any administrative authority
(including taxing authorities);
(iii) a change in the basis or method of calculation of tax made
after the date of this Agreement;
PAGE 73
(iv) the amendment, modification or withdrawal of any
extra-statutory concession previously made available by the
Inland Revenue; or
(v) a change in any generally accepted accounting practice;
(b) to the extent that the liability to which the Claim relates is
attributable to any act, omission, transaction or arrangement of the
Purchaser (or any person deriving title from it) or any Member of
its Group done in the knowledge that the resulting circumstances
will give rise to a Claim;
(c) to the extent that the Purchaser (or any person deriving title from
it) or any other Member of its Group is entitled to claim under and
as a result of such claim receives payment under any insurance
policy against the loss or damage suffered as a result of the
circumstances giving rise to the Claim (and the Purchaser agrees to
procure that such claim is made and that all reasonable steps are
taken to recover for such loss or damage under such insurance
policy); and
(d) to the extent that and in the amount which the loss occasioned
thereby has been recovered under any other provision of this
Agreement or otherwise from the Vendor or any other Member of its
Group.
8 The amount of the Vendor's liability for any Claim shall be reduced by -
(a) any sum which is recovered (whether by way of insurance,
indemnification or otherwise) by the Purchaser in respect of the
loss or damage suffered by reason of the relevant breach, less the
amount of any reasonable costs and expenses incurred in obtaining
payment of that sum and of any tax for which the Purchaser is liable
by reason of its receipt of that sum; and
(b) the amount, if any, by which any tax for which the Purchaser is or
would be liable but for the circumstances giving rise to the Claim
is reduced or extinguished by reason of the circumstances giving
rise to the Claim,
PAGE 74
and if the Vendor has paid to the Purchaser any amount in respect of
the Claim before the recovery of the sum mentioned in sub-paragraph
(a) or before agreement of the amount by which the tax mentioned in
sub-paragraph (b) is to be reduced or extinguished, the Purchaser
shall repay to the Vendor the amount by which its liability is so
reduced.
PROCEDURE FOR MAKING A CLAIM FOR BREACH OF ANY OF THE WARRANTIES
9 If any matter which will give rise to a Claim for breach of the Warranties
comes to the notice of the Purchaser or any other Member of its Group the
following provisions shall apply -
(a) the Purchaser shall as soon as reasonably possible (and in any event
within the following 10 Business Days) notify the Vendor in writing
of the matter and make available to it all information and documents
in the possession or under the control of the Purchaser or any other
Member of its Group in so far as they relate to that matter;
(b) subject to paragraph 10 below neither the Purchaser nor any other
Member of its Group shall make any admission of liability or take
any other action in connection with the matter without the previous
written consent of the Vendor (not to be unreasonably withheld or
delayed); and
(c) subject to paragraph 10 below and subject to it being indemnified to
its reasonable satisfaction against all costs and expenses which
might be incurred by it, the Purchaser shall take such steps as the
Vendor may reasonably request to mitigate its liability under the
relevant Claim.
10 Notwithstanding the provisions of paragraph 9 above -
(a) the Purchaser shall not be precluded from proceeding with a Claim
whilst complying with or after complying with the provisions of
paragraph 9; and
PAGE 75
(b) subject always to the Purchaser and it's Group's common law duty to
mitigate their loss neither the Purchaser or any Member of the
Purchaser's Group shall be required to take any step or omit to take
any step to the extent that the Purchaser or the relevant Member of
the Purchaser's Group reasonably considers that it would damage the
goodwill or reputation of the Purchaser's Group.
GENERAL
11 For the purpose of determining the amount of the Claim in paragraph 4 or
for the purposes of paragraph 5 no account will be taken of any amount for
which the Vendor has no liability by virtue of any other paragraph of this
Schedule.
12 The Purchaser may not assign or purport to assign the benefit of any or
all of the Warranties save that -
(a) the Purchaser may assign the same to a wholly owned subsidiary of
the Purchaser provided always that in the event such assignee (`THE
ASSIGNEE') shall cease to be a wholly owned subsidiary of the
Purchaser the Purchaser shall procure that prior to such cessation
the Assignee shall assign the benefits assigned to it to another
wholly owned subsidiary of the Purchaser for the time being; and
(b) the Purchaser may with the consent of the Vendor, such consent not
to be unreasonably withheld or delayed, assign the same to another
Member of the Purchaser's Group.
13 The Purchaser's sole remedy against the Vendor in respect of any Claim
will be in damages.
14 Any payment made by the Vendor to the Purchaser in respect of a Claim
shall be treated as a reduction of the consideration for the Assets.
PAGE 76
15 Any reference in Schedule 6 to "so far as the Vendor and Butlins is
aware", or to some other similar or other state of awareness, knowledge,
information or belief shall be deemed to be a reference only to the actual
knowledge (after making due and careful enquiry) of ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
Vallally and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ in respect of the Warranties other than
those contained in paragraph 11 and in respect of the Warranties contained
in paragraph 11 of Schedule 6 only, to the actual knowledge (after making
due and careful enquiry) of ▇▇▇▇▇ Vallally, ▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇.
16 The Purchaser acknowledges that the provisions of this Schedule 7 are fair
and reasonable in all the circumstances and in particular, but without
limitation, for the purposes of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and The
Unfair Contract Terms ▇▇▇ ▇▇▇▇.
17 The Purchaser agrees that it will not take any action against any director
or former director of any Rank Group Company or any person employed or
previously employed by any Rank Group Company to attempt to recover any
loss in respect of any breach of the Warranties.
18 None of the provisions of this Schedule 7 shall apply to limit the
liability of the Vendor in the case of fraud or fraudulent concealment.
19 The Purchaser undertakes to (and undertakes to procure that each Member of
it's Group will) comply with its common law duty to mitigate its loss in
respect of any Claim.
PAGE 77
SCHEDULE 8
MOTOR VEHICLE
PROPERTY VEHICLE TYPE REG. NO.
Blackpool Vauxhall Astra M829 VGS
PAGE 78
SCHEDULE 9
PENSIONS
1 INTERPRETATION
1.1 In this Schedule, the following expressions shall unless the context
otherwise requires have the following meanings -
`ACTUARY'S LETTER' means the letter dated 18th June 1999 from the Vendor's
Actuary in the agreed form;
`EMPLOYEE MEMBERS' means those Employees who are members of the Rank Plan
or the Rank Scheme at the Completion Date (but excluding Life Assurance
Members);
`LIFE ASSURANCE MEMBERS' means those Employees who are members of the Rank
Plan at the Completion Date for death in service benefits only;
`PAYMENT DATE' means -
(a) in the case of the Plan Transfer ▇▇▇▇▇▇, ▇▇ days after whichever is
the latest of:
(i) the date on which the Plan Transfer Amount is determined under
paragraph 3;
(ii) the date on which the Vendor has received the forms of request
or consent referred to in the definition of `Transferring
Employee Members';
PAGE 79
(iii) the date on which the Rank Plan Trustee has received such
completed documents as it reasonably requires to enable a
transfer payment to be made to a personal pension scheme;
(iv) the Purchaser produces evidence to the reasonable satisfaction
of the Vendor that in so far as any part of the payment would
represent amounts in respect of accrued rights to guaranteed
minimum pensions or section 9(2B) rights, the Purchaser's
Scheme is a contracted out scheme or in so far as the payment
would relates to such rights of any Transferring Member
Employee, the personal pension scheme for him within the
Purchaser's Scheme is an appropriate scheme and (in either
case) the effect of making that payment to the Purchaser's
Scheme will be to discharge the liability of the Rank Plan to
provide guaranteed minimum pensions or section 9(2B) rights
for and in respect of each such Transferring Employee Member;
and
(b) in the case of the Scheme Transfer Amount 60 days after whichever
is the latest of
(1) the date on which the Vendor has received the forms of request
or consent referred to in the definition of `Transferring
Employee Members';
(ii) If the Purchaser's Scheme is a Group Personal Pension Scheme
comprising personal pension schemes, the Rank Scheme Trustee
has received such completed documents as it reasonably
requires to enable a transfer payment to be paid to a personal
pension scheme;
(iii) the Purchaser produces evidence to the reasonable satisfaction
of the Vendor that in so far as any part of the payment would
represent amounts in respect of protected rights, the
Purchaser's Scheme is a contracted out scheme or in so far as
the payment would relates to such
PAGE 80
rights of any Transferring Member Employee, the personal
pension scheme for him within the Purchaser's Scheme is an
appropriate scheme and (in either case) the effect of making
that payment to the Purchaser's Scheme will be to discharge
the liability of the Rank Scheme to provide protected rights
for and in respect of each such Transferring Employee Member;
`1993 ACT' means the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (as amended);
`PLAN TRANSFER AMOUNT' means the amount so defined in the Actuary's Letter
and determined according to the method and in accordance with the
assumptions set out therein;
`PURCHASER'S SCHEME' means the group personal pension arrangement to be
established or nominated under paragraph 2;
`RANK ACTUARY' means ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ of ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ Limited or
such other actuary or firm of actuaries as may be appointed for the
purposes of this Schedule;
`RANK PLAN TRUSTEE' means the trustee or trustees for the time being of
the Rank Plan;
`RANK SCHEME TRUSTEE' means the trustee or trustees for the time being of
the Rank Scheme;
`SCHEME TRANSFER AMOUNT' means the sum applicable to the Transferring
Employee Members who are members of the Rank Scheme on the basis that each
is entitled to the benefit of all contributions paid by or in respect of
him to the Rank Scheme, all transfer payments received by the Rank Scheme
in respect of him and in both cases the investment returns thereon,
whether or not he has been an active member of the Rank Scheme for two
years;
PAGE 81
`TRANSFER AMOUNTS' means the Plan Transfer Amount and the Scheme Transfer
Amount;
`TRANSFERRING EMPLOYEE MEMBERS' means those Employee Members who are
members of the Rank Plan or the Rank Scheme on the day preceding the
Completion Transfer Date -
(i) who become members of the Purchaser's Scheme as from the
Completion Date pursuant to the offer of membership referred
to in paragraph 2.2; and
(ii) request or consent in writing within six months from the
Completion Date, in a form acceptable to the Rank Plan Trustee
or the Rank Scheme Trustee, as appropriate, such form to
include a discharge and indemnity in favour of the Rank Plan
Trustee or the Rank Scheme Trustee, as appropriate, to a
transfer of assets being made from the Rank Plan or the Rank
Scheme to the Purchaser's Scheme in relation to the benefits
accrued in respect of or attributable to their pensionable
service under the Rank Plan or the Rank Scheme up to the
Completion Date and whose request or consent has not
subsequently been withdrawn;
1.2 The headings in this Schedule are for convenience only and shall not
affect its interpretation.
1.3 In this Schedule `contracting out certificate', `contracted out',
`protected rights', and `guaranteed minimum pensions' bear the meanings
given to them in the 1993 Act and `section (2B) rights' means rights under
section 9(2C) of the ▇▇▇▇ ▇▇▇.
1.4 This Schedule shall be applied separately to the Rank Plan and the Rank
Scheme.
PAGE 82
2 NEW PENSION ARRANGEMENTS
The Purchaser undertakes to the Vendor -
2.1 to establish or nominate with effect from the Completion Dates a new or
existing group personal pension scheme which includes for each
Transferring Member Employee a personal pension scheme which at the option
of the Transferring Member Employee may be an appropriate personal pension
scheme (within the meaning of section 7 of the ▇▇▇▇ ▇▇▇) to which the
respective Trustees of the Rank Plan and the Rank Scheme can make a
transfer of assets without prejudicing the exempt approved status of the
Rank Plan or the Rank Scheme under Chapter I Part XIV;
2.2 to offer or procure to be offered to each Employee Member who is a member
of the Rank Plan or the Rank Scheme and who is in the employment of the
Purchaser on the day preceding the Completion Date membership of the
Purchaser's Scheme for future service as from the Completion Date and pay
contributions thereto in respect of Transferring Employee Members of the
Rank Plan and the Rank Scheme;
2.3 to offer or procure to be offered to each Employee Member referred to in
paragraph 2.2 and each Life Assurance Member with effect from the
Completion Date death in service benefits no less favourable than the
benefits currently provided for him under the Rank Plan immediately before
the Completion Date.
3 TRANSFER FROM RANK PLAN AND RANK SCHEME
3.1 Subject to the fulfilment by the Purchaser of its undertakings under
paragraph 2 of this Schedule, as to which the Purchaser shall produce such
evidence as the Vendor may reasonably require, the Vendor undertakes to
the Purchaser, subject to any approval of the Inland Revenue which may be
required which the Vendor undertakes to use all reasonable endeavours
promptly to obtain; that the Vendor will -
(a) request the Rank Plan Trustee to pay or transfer to the trustees or
managers of the Purchaser's Scheme the Plan Transfer Amount on the
Payment Date in full
PAGE 83
and final satisfaction of all interests (other than in respect of
additional voluntary contributions) of or in respect of each
Transferring Employee Member of the Rank Plan; and
(b) request the Rank Scheme Trustee to pay or transfer to a personal
pension scheme within the Purchaser's Scheme) the Scheme Transfer
Amount on the Payment Date including the investment return accruing
on each Transferring Employee Member's account in the Rank Scheme
during the period from the Completion Date until the Payment Date.
3.2 The requests referred to in paragraph 3.1 shall be for the Plan Transfer
Amount and the Scheme Transfer Amount to be paid in cash or if the
Purchaser and the Vendor agree in the form of other assets acceptable to
the Rank Plan Trustee or the Rank Scheme Trustee (as the case may be) and
the trustees or managers of the Purchaser's Scheme or partly in cash and
partly in the form of other assets
(a) reduced in the case of the Plan Transfer Amount by the amount
required to meet the liability of the Rank Plan in relation to
guaranteed minimum pensions and section 9(2B) rights of the
Transferring Employee Members thereof in respect of whom the Rank
Plan Trustee cannot make a transfer payment to a personal pension
within the Purchaser's Scheme because that scheme is not an
appropriate personal pension scheme; and
(b) less, in the case of the Scheme Transfer Amount, the amount required
to meet the liability of the Rank Scheme in relation to protected
rights of each Transferring Employee Member thereof in respect of
whom the Rank Scheme Trustee cannot make a transfer payment to a
personal pension scheme within the Purchaser's Scheme because that
scheme is not an appropriate personal pension scheme which would
have the effect of discharging such liability.
PAGE 84
4 BENEFITS FOR PAST SERVICE
4.1 Subject to receipt by the trustees or managers of the Purchaser's Scheme
of the sums referred to in paragraph 3 of this Schedule the Purchaser
shall direct that such trustees or managers shall credit to the personal
pension scheme within the Purchaser's Scheme which relates to the
Transferring Employee Member of that part (as determined by the Plan
Actuary) of the Plan Transfer Amount or the Scheme Transfer Amount (as the
case may be) received which relates to him without any deduction in
respect of commission or remuneration for business introduction so that
the amount so transferred shall be wholly applied in the defined
contribution account for and in respect of the Transferring Employee
Member.
5 ADDITIONAL VOLUNTARY CONTRIBUTIONS
Any additional voluntary contributions paid to the Rank Plan to provide
benefits of a money purchase nature (or any investments property or assets
deriving therefrom or into which the same have been transposed) and the
benefits payable in respect thereof shall be disregarded in calculating
the Plan Transfer Amount and the Vendor will use all reasonable endeavours
to procure that on the Payment Date such contributions investments
property or assets (to the extent attributable to Transferring Employee
Members) shall be paid over or assigned as the case may be (together with
accumulated interest or bonuses thereon) to the Purchaser's Scheme for the
benefit of thc Transferring Employee Members concerned. The Vendor shall
procure that the Rank Plan Trustee shall certify to the trustees or
managers of the Purchaser's Scheme how much (if any) of the amount of
assets transferred derives from voluntary contributions paid by the
Transferring Employee Members.
6 ENCOURAGEMENT OF CLAIMS
The Purchaser undertakes not to assist or encourage directly or indirectly
any person in any claim that the Rank Plan or Rank Scheme should pay a
greater amount to the Purchaser's Scheme than the Plan Transfer Amount or
the Scheme Transfer Amount.
PAGE 85
7 CO-OPERATION
7.1 The Purchaser and the Vendor undertake to co-operate in making any
necessary submissions to the Board of Inland Revenue and executing all
documents that are necessary in this connection.
7.2 The Vendor and the Purchaser undertake to each other to provide the other
of them or their advisers promptly with all such information as the other
of them or their advisers may reasonably require in connection with
Employee Members and the due implementation of this Schedule and that all
such information will be true, complete in all material respects and
fairly presented.
PAGE 86
SIGNED by RANK HOLIDAYS DIVISION LIMITED )
acting by Pinal Nicum ) PINAL NICUM
its duly appointed attorney )
SIGNED by ▇▇▇▇▇▇ ▇▇▇▇▇ )
duly authorised for and on behalf of - ) ▇▇▇▇▇▇ ▇▇▇▇▇
GRAND HOTEL GROUP LIMITED )
PAGE 87