DATED 15th September 2006
|
DATED
15th
September
|
2006
|
SUBJECT
TO CONTRACT
| (1) |
▇▇▇
LOGISTICS LIMITED
(in
administration)
|
| (2) |
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the
Administrators)
|
| (3) |
WLG
(UK) LIMITED
|
AGREEMENT
by
deed
for the sale and purchase of
the
business of
▇▇▇
Logistics Limited (in administration)
and
of
associated rights and certain other assets
Draft
3
BPE 15/09/06
▇▇▇▇▇
Day
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇
ODJ
Tel:
▇▇▇▇
▇▇▇ ▇▇▇▇
Fax:
▇▇▇▇
▇▇▇ ▇▇▇▇
TABLE
OF CONTENTS
Page
|
DEFINITIONS
AND INTERPRETATION
|
1
|
|
|
2.
|
SALE
AND PURCHASE
|
4
|
|
3.
|
SALE
CONSIDERATION
|
4
|
|
4.
|
COMPLETION
|
4
|
|
5.
|
TITLE
AND RISK
|
5
|
|
6.
|
BUSINESS
CONTRACTS
|
5
|
|
7.
|
PREMISES
|
6
|
|
8.
|
GOODWILL
|
6
|
|
9.
|
THIRD
PARTY ASSETS
|
6
|
|
10.
|
EMPLOYEES
|
7
|
|
11.
|
DEBTS
|
7
|
|
12.
|
COMPUTER
SOFTWARE & SYSTEM
|
7
|
|
13.
|
LIABILITIES
OF THE BUSINESS
|
7
|
|
14.
|
APPORTIONMENTS
|
8
|
|
15.
|
AUTHORITY
AND LIABILITY OF THE ADMINISTRATORS
|
8
|
|
16.
|
INDEMNITY
|
8
|
|
17.
|
MISREPRESENTATION
AND WARRANTIES
|
9
|
|
18.
|
STATUTORY
REGULATION
|
10
|
|
19.
|
FURTHER
ASSURANCE
|
10
|
|
20.
|
VALUE
ADDED TAX
|
10
|
|
21.
|
BUSINESS
RECORDS AND ACCESS
|
11
|
|
22.
|
ENCUMBRANCES
|
12
|
|
23.
|
NOTICES
|
12
|
|
24.
|
ASSIGNMENT
AND THIRD PARTY RIGHTS
|
12
|
|
25.
|
ANNOUNCEMENTS
|
13
|
|
26.
|
MISCELLANEOUS
|
13
|
|
27.
|
LAW
AND JURISDICTION
|
14
|
|
SCHEDULE
1
|
THE
DEBENTURE
|
15
|
|
SCHEDULE
2
|
SALE
ASSETS
|
16
|
|
SCHEDULE
3
|
EXCLUDED
ASSETS
|
17
|
|
SCHEDULE
4
|
EMPLOYEES
|
18
|
|
SCHEDULE
5
|
PROPERTY
PROVISIONS
|
19
|
|
SCHEDULE
6
|
CHATTEL
SCHEDULE
|
24
|
i
|
DATED
|
2005
|
PARTIES
|
(1)
|
▇▇▇
LOGISTICS LIMITED
(in administration) (registered in England and Wales with company
number 05632954) whose registered office is at ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ acting by the Administrators (the
"Seller");
|
|
(2)
|
MR
PHILIP ▇▇▇▇▇ ▇▇▇▇
of
PKF (UK) LLP, Farringdon Place, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇ and ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
of
PKF (UK) LLP, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇
in their
capacity as joint administrators of the Seller but without personal
liability (the "Administrators");
and
|
|
(3)
|
WLG
(UK) LIMITED (registered
in England and Wales with company number 05663215) whose registered
office
is ▇/▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ James's House, St ▇▇▇▇▇
Square,
Cheltenham, Gloucestershire, GL50 3PR (the "Buyer").
|
RECITALS
|
(A)
|
On
11 September 2006, the directors of the Seller appointed the
Administrators as joint administrators pursuant to paragraph 22
of
Schedule B1 of the Insolvency ▇▇▇ ▇▇▇▇ (the "Act").
|
|
(B)
|
The
Seller has agreed to sell and the Buyer has agreed to buy whatever
right,
title and interest (if any) that the Seller may have in assets
used by the
Seller in the Business (as defined below) which is the subject
of this
Agreement and certain other assets used by the Seller on the basis
that
such assets and business should be transferred to and taken over
by the
Buyer as a going concern on and subject to the terms of this
Agreement.
|
OPERATIVE
PROVISIONS
|
1.
|
DEFINITIONS
AND INTERPRETATION
|
|
1.1
|
In
this Agreement the following words and expressions shall have the
following meanings:
|
"Administration
Contracts" means
the
contracts, orders and engagements (if any) entered into by the Administrators
in
connection with the Business as agents for the Seller and without personal
liability prior to Completion;
"Administrators'
Solicitors" means
▇▇▇▇▇ Day of ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ (Ref: SXR/KVE);
"Business"
means
the business of freight forwarding and ancillary business and carried on
by the
Seller from the Premises;
"Business
Contracts" means
the
Customer Contracts, the Supplier Contracts and the User Agreements;
"Business
Day" means
a
day (not being a Saturday or Sunday) on which banks generally are open for
business in London;
"Business
IPR" means
patents, trademarks, service marks, trade names, registered and unregistered
design rights, copyrights, internet domain names, computer software systems
and
programs, know-how, inventions, confidential information, database rights
and
all other forms of intellectual property rights (in each case in any part
of the
world and whether or not registered or registrable) owned and used by the
Seller
in connection with the Business at Completion;
2
"Business
Records" means
all
books, papers, records, documents, files, invoices and other records of the
Seller relating wholly or mainly to the Business in whatever form or medium
held
or recorded excluding:
| (a) |
the
Seller's statutory records;
|
|
(b)
|
any
documents that the Administrators are required by law or best practice
to
retain; and
|
|
(c)
|
any
documents that the Administrators consider in their reasonable
discretion
are required to be retained by them for the purposes of the proper
administration of the administration of the Seller and/or the collection
of the Debts;
|
"Buyer's
Solicitors" means
BPE
Solicitors, First Floor St James's House, St ▇▇▇▇▇ Square, Cheltenham,
Gloucestershire, GL50 3PR (ref: ▇▇▇ ▇▇▇▇▇▇);
"Claim"
means
any action, proceeding, claim or demand of any kind which may be brought
or made
against any of the Seller and/or the Administrators;
"Completion"
means
completion of the obligations of the parties pursuant to
clause 4;
"Contract
Rights" means
the
benefit, subject always to the burden, of the Customer Contracts, the Supplier
Contracts and the User Agreements;
"Customer
Contracts" means
any
contracts, engagements and accepted orders which have been received by or
on
behalf of the Seller in connection with the Business for the supply of goods
and/or services, which remain to be performed (in whole or in part) as at
Completion;
"Debenture"
means
the debenture listed in Schedule 1;
"Debts"
means
the book and other debts belonging to the Seller or any assignee of the Seller
as at Completion (whether or not then due and payable) including all sums
due to
the Seller under the Business Contracts whether invoiced or not up to and
including Completion, together with the benefit of all securities, guarantees,
indemnities, rights of retention of title, liens and negotiable instruments
given to the Seller in payment or satisfaction of the same and including
(without limitation) all rights of set-off and counterclaim;
"Employees"
means
those employees of the Seller who are at Completion employed by the Seller
in
the Business and who are more particularly identified, but not limited to,
those
parties listed in Schedule 4;
"Excluded
Assets" means
all
assets of the Seller other than the Sale Assets, which are excluded from
the
sale and purchase pursuant to this Agreement which, without prejudice to
the
generality of the foregoing, shall include all of the assets identified in
Schedule 3;
"Expert"
means an
independent chartered accountant, acting as an expert and not as an arbitrator
and appointed (in default of agreement) by the President for the time being
of
the Institute of Chartered Accountants in England and Wales;
"Finance
Provider" means
Venture Finance Plc, company number 2281768 and whose registered office is
at
Sussex House, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇;
3
"Goodwill"
means
the goodwill, custom and connections of the Business (including the use of
customer lists and order books, subject always to clause 18.2(c)), together
with the exclusive right for the Buyer to represent and hold itself out as
carrying on the Business in succession to the Seller but excluding for the
avoidance of doubt, the right to use the Name;
"Loss"
means
any loss, damage, award, cost, charge, penalty or expense which any of the
company and/or Administrators have incurred or sustained directly or indirectly;
"Name"
means
▇▇▇ Logistics Limited;
"Plant
and Equipment" means
all
plant, equipment, machinery, tools, fittings and furniture which are owned
by
the Seller and exclusively used by the Seller for the purposes of the Business
and are situated at the Premises at Completion and as is more particularly
described in the Schedule 6 (Chattel Schedule) but excluding any landlords'
fixtures at the Premises;
"Premises"
means
the leasehold property comprising commercial buildings occupied by the Seller
at
Southmoor Park, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇
(the "Premises");
"Road
Traffic Acts" means
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, the Road Traffic Offenders Act 1988 and the Road Traffic
(Consequential Provisions) ▇▇▇ ▇▇▇▇;
"Sale
Assets" means
the
assets, rights and things listed or otherwise identified in Schedule 2 used
wholly or mainly in the Business and which are agreed to be sold and purchased
under this Agreement including, for the purposes of the releases referred
to in
clause 22.2,
the
Premises but excluding the Excluded Assets;
"Sale
Consideration" means
the
consideration to be paid for the Sale Assets pursuant to clause 3;
"Stock
and Work in Progress"
means
all of the following owned by the Seller at Completion and situated at the
Premises exclusively for use in the Business:
|
(a)
|
stocks
of finished goods;
|
|
(b)
|
raw
materials, components and work in
progress;
|
|
(c)
|
spare
parts for any of the Plant and Equipment;
and
|
|
(d)
|
brochures,
catalogues, stationery and consumable stores and
items;
|
"Supplier
Contracts" means
contracts and accepted orders placed by or on behalf of the Seller for the
supply to the Seller of goods and/or services in connection with the Business
which remain to be performed (in whole or in part) as at
Completion;
"Third
Party Assets" means
all
assets of any nature whatsoever in the possession or control of the Seller
which
are owned by a third party, including without limitation motor
vehicles, photocopiers, computer equipment, telephone systems, assets
subject to the User Agreements and any materials, tools and other goods of
any
kind held on loan or similar terms and any item supplied to the Seller on
terms
effective to reserve title to the supplier until payment or any other time
or
event;
4
"Transfer
Regulations" means
the
Transfer of Undertakings (Protection of Employment) Regulations 1981 and
the
Collective Redundancies, Transfer of Undertakings (Protection of
Employment)(Amendment) Regulations 1999 and the Transfer of Undertakings
(Protection of Employment) Regulations 2006;
"User
Agreements" means
any
contract for hire, hire purchase, leasing, conditional sale, sale on consignment
or bailment on any terms entered into by the Seller in connection with the
Business;
"VAT"
means
Value Added Tax;
"VAT
Records" means
the
records relating to the Business required to be preserved after Completion
by
the Buyer by virtue of paragraph 6 of Schedule 11 to the Value Added Tax
▇▇▇
▇▇▇▇; and
"Vehicles"
means
the motor vehicles owned by the Seller and used exclusively in the Business
as
are more particularly identified in the Chattel Schedule.
|
1.2
|
Words
importing the singular shall include the plural and vice versa
and words
importing any gender shall include all other genders and references
to
persons shall include corporations and unincorporated
associations.
|
|
1.3
|
References
in this Agreement to statutory provisions shall be construed as
references
to those provisions as respectively amended, consolidated, extended
or
re-enacted from time to time and shall include the corresponding
provisions of any earlier legislation (whether repealed or not)
and any
orders, regulations, instruments or other subordinate legislation
made
from time to time under the statute
concerned.
|
|
1.4
|
References
to clauses and schedules are to be construed as references to clauses
and
schedules to this Agreement unless the contrary is expressly
indicated.
|
|
1.5
|
The
clause and schedule headings in this Agreement and the table of
contents
are for convenience only and shall not affect its
interpretation.
|
|
2.
|
SALE
AND PURCHASE
|
|
2.1
|
The
Seller shall sell and the Buyer shall purchase with effect from
4:00 p.m.
on the day of Completion such right, title and interest as the
Seller may
have in the Sale Assets with the intent that such sale shall include
a
transfer of the Business as a going
concern.
|
|
2.2
|
For
the avoidance of doubt it is expressly agreed that the Excluded
Assets are
excluded from the assets sold and purchased pursuant to this
Agreement.
|
|
3.
|
SALE
CONSIDERATION
|
|
3.1
|
The
Sale Consideration, being the price to be paid by the Buyer to
the Seller
for the sale and purchase of the Sale Assets, shall be
£80,000.
|
|
3.2
|
The
Sale Consideration shall be apportioned between the Sale Assets
as
indicated in Schedule 2.
|
|
3.3
|
All
sums payable by the Buyer are stated exclusive of VAT which shall
(if
applicable) be payable pursuant to clause 20.1(c)
in
addition to such sums on the presentation of the relevant VAT
invoice.
|
5
|
4.
|
COMPLETION
|
|
4.1
|
Completion
shall take place at the offices of the Administrators' Solicitors
immediately following the execution of this
Agreement.
|
|
4.2
|
On
Completion:
|
|
(a)
|
the
Seller shall be deemed to have delivered to the Buyer such of the Sale
Assets title to which is capable of passing by delivery;
and
|
|
(b)
|
the
Buyer's Solicitors shall unconditionally release the sum of £80,000.00 to
the Administrators' Solicitors (whose receipt shall be a valid
discharge
on behalf of the Seller and the Administrators), such sum having
been
transferred prior to Completion by way of electronic fund transfer
to the
client account of the Administrators' Solicitors
at:
|
Bank:
The
Royal Bank of Scotland plc
Address:
▇▇-▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Sort
Code: 16-00-19
Account
No: ▇▇▇▇▇▇▇▇
Account
Name: ▇▇▇▇▇ Day Client Account
on
the
basis that it is held to the order of the Buyer's Solicitors pending such
release.
|
5.
|
TITLE
AND RISK
|
|
5.1
|
Save
as otherwise provided in this Agreement such right, title and interest
(if
any) as the Seller may have in and to the Sale Assets shall pass
to the
Buyer on Completion.
|
|
5.2
|
Risk
in the Sale Assets shall pass to the Buyer on
Completion.
|
|
5.3
|
In
the case of tangible items, so far as practicable title shall pass
to the
Buyer on delivery of such items pursuant to clause 4.2(a)
and in the case of any of the Sale Assets not capable of so passing
will
be held on trust by the Seller for the Buyer absolutely (subject
always to
any third party rights) pending
assignment.
|
|
5.4
|
To
the extent that title is not capable of passing by delivery, any
instrument of transfer shall be prepared by the Buyer at its own
expense
and shall contain an exclusion of the Administrators' personal
liability
and, subject to approval of the wording by the Administrators and
the
Administrators' Solicitors, shall be executed by one of the Administrators
as attorney for the Seller.
|
|
5.5
|
The
Seller shall only be obliged to transfer the Sale Assets to the
Buyer (and
no other person) and the Seller and the Administrators shall have
no
obligation to recognise third party rights in the Sale Assets so
transferred.
|
|
5.6
|
For
the avoidance of doubt and notwithstanding the grant of the licence
to
occupy contained in clause 7
of
this Agreement, the parties agree that it is not their intention
that any
legal interest that the Seller (and the Administrators) may have
in the
Premises transfers to the Buyer by virtue of this Agreement and
any future
transfer of such interest shall be dealt with in accordance with
the
provisions of clause 7.
|
6
|
6.
|
BUSINESS
CONTRACTS
|
|
6.1
|
The
Buyer shall for its own account complete and discharge all obligations
of
the Seller arising after its assumption of particular Business
Contracts
in accordance with their terms and shall at all times indemnify
and keep
the Seller and the Administrators indemnified against all such
obligations
so arising and against all actions, proceedings, damages, costs,
claims
and demands in respect of a failure by the Buyer to perform its
obligations under this clause 6.
|
|
6.2
|
The
Buyer shall be solely responsible at its own expense for negotiating
any
assignment or novation of the Business Contracts and the Buyer
agrees to
use all reasonable endeavours to procure that the Business Contracts
are
assigned or novated as soon as practicable after Completion and
the Seller
shall for a period of 6 months following Completion give reasonable
assistance at the request and cost of the Buyer in obtaining such
assignment or novation for the Buyer's
benefit.
|
|
6.3
|
For
the avoidance of doubt, it is expressly acknowledged that the Contract
Rights are transferred to the Buyer under this Agreement.
|
|
7.
|
PREMISES
|
The
Seller and the Buyer shall comply with their respective obligations set out
in
Schedule 5 (Property Provisions) in so far as they relate to Seller’s current
occupation of the Premises.
|
8.
|
GOODWILL
|
|
8.1
|
On
and after Completion the Seller shall not raise any objection to
the Buyer
carrying on the Business in succession to the
Seller.
|
|
8.2
|
The
Goodwill shall vest in the Buyer on Completion but no formal assignment
shall be executed.
|
|
9.
|
THIRD
PARTY ASSETS
|
|
9.1
|
The
Seller shall permit the Buyer to use Third Party Assets as licensee
without any fee payable (save where this would be in breach of
the rights
of any third parties or would constitute an act of conversion)
from
Completion and the Buyer undertakes to the Seller and the Administrators
that unless and until it becomes the absolute owner of a Third
Party Asset
it will:
|
|
(a)
|
not
hold itself out as the owner of such Third Party Asset nor sell,
offer for
sale, assign, charge or create any lien on it and it shall keep
it in its
own possession in as good a condition as it was at Completion;
and
|
|
(b)
|
deliver
possession of Third Party Assets to the owner of such property
on
reasonable notice by the owner.
|
|
9.2
|
The
Buyer undertakes to keep the Seller and the Administrators fully
and
completely indemnified against all actions, proceedings, claims,
demands,
penalties and expenses whatsoever, which may arise as a result
of the
Buyer utilising or taking possession of any Third Party Asset delivered
to
the Buyer pursuant to this
Agreement.
|
7
|
9.3
|
Insofar
as any of the Sale Assets are or shall be found to be subject to
a valid
reservation of title claim the Buyer agrees upon demand and at
its cost to
deliver possession of such assets to the Administrators or at the
direction of the Administrators to the owners of the
same.
|
|
9.4
|
Without
prejudice to the foregoing terms of this clause 9,
if the Buyer wishes to make use of any Third Party Asset, the Buyer
shall
be solely responsible for approaching the owner and obtaining such
owner's
agreement provided only that if the Buyer wishes to have any lease
(or
hire purchase or similar contract) of the Third Party Assets assigned
or
novated to it, the Seller will join in an appropriate form of assignment
or novation, subject to the Buyer paying the costs of such assignment
or
novation and obtaining any necessary consent of the
owner.
|
|
10.
|
EMPLOYEES
|
|
10.1
|
The
Seller and the Administrators give no warranties concerning the
effect of
the Transfer Regulations or the consequences of re-engagement (if
any) by
the Buyer or any other person of some or all of the former employees
of
the Seller or any other person who worked in the
Business.
|
|
10.2
|
The
Seller and the Buyer acknowledge and agree that the Transfer Regulations
apply to the purchase of the Business by the Buyer. For the avoidance
of
doubt, the Buyer shall be responsible for payment of all wages,
salaries
and benefits due in respect of the
Employees.
|
|
10.3
|
The
Buyer shall indemnify and shall keep the Seller and the Administrators
and
each of them fully indemnified against any Loss or Claim arising
in
respect of the Employees, former employees or any other person
who worked
in the Business before or after Completion.
|
|
11.
|
DEBTS
|
|
11.1
|
The
Buyer hereby agrees to act as agent for the Finance Provider in
the
collection of the Debts. In acting as agent of the Finance Provider,
the
Buyer will carry out their customary procedures for the collection
of
debts and, in addition, act in accordance with the reasonable instructions
of the Administrators and/or the Finance Provider. The Finance
Provider
may terminate the Buyer's agency upon the expiry of 28 days written
notice
to the Buyer whereupon the Buyer must immediately cease all collection
activity save as directed by the Administrators or the Finance
Provider.
The Buyer agrees to use its reasonable endeavours to collect the
Debts and
agrees to provide to the Administrators and/or the Finance Provider
with
such information about the progress of the collection of Debts
as the
Administrators or the Finance Provider reasonably require including
but
not limited to providing, on a weekly basis commencing 7 days after
Completion, a report demonstrating to the reasonable satisfaction
of the
Administrators or the Finance Provider amongst other things (i)
the nature
of the collection activity for the preceding week (ii) payments
promised
and/or received in the preceding week and (iii) credit notes requested
or
details of any other issue or dispute which might reduce the value
of the
Debts.
|
|
11.2
|
In
consideration of the Buyer agreeing to collect the Debts on behalf
of the
Finance Provider, the Buyer shall be paid a collection fee equal
to 4% of
actual Debt realisations up to £500,000 and 7½% in respect of all actual
Debt realisations in excess of £500,000 (the "Fee").
The Fee shall be set off against any amounts payable by the Buyer
to the
Finance Provider relating to the proceeds of the Debts in accordance
with
clause 11.4
|
|
11.3
|
The
Buyer will not commence any legal proceedings or agree any discount,
compromise or settlement of any of the Debts without the prior
written
consent of the Finance Provider. For the avoidance of doubt, the
Buyer
will not be obliged to commence any legal proceedings in respect
of such
Debts.
|
8
|
11.4
|
Subject
to clause 11.2, the proceeds of the Debts shall be paid into a
bank
account nominated by the Finance Provider, unless otherwise agreed
in
writing between the parties. The Buyer shall account to the Administrators
and or Finance Provider for any payment received by the Buyer in
respect
of any of the Debts by paying the same (allowing for the deduction
of any
Fee payable in accordance with clause 11.2) upon receipt directly
into a
bank account to be nominated by the Administrators and prior to
such
payment shall hold such sums and any cheque, instrument or payment
relating thereto on trust absolutely for the
Administrators.
|
|
11.5
|
Any
payment that is received by the Finance Provider/and or Administrators
from a person who is both a debtor of the Seller (or as its assignee)
and
the Buyer shall, if it is not clear to which invoice the payment
relates,
be appropriated to the debt owed by that debtor to the Seller or
its
assignee.
|
|
11.6
|
Subject
to clause 11.1, the Finance Provider or such other agents as it
may
appoint for this purpose from time to time, shall be exclusively
responsible for the collection of the Debts provided that the Buyer
shall
at its own expense provide a reasonable degree of co-operation
in the
collection of the Debts.
|
|
11.7
|
Unless
and until all of the Debts have been collected (or earlier if agreed
by
the parties hereto and the Finance Provider) the Buyer shall not
assign
those of its debts due in connection with the Business (whether
by
factoring or discounting the same or otherwise howsoever) and arising
after Completion without the prior written consent of the Finance
Provider. Such consent shall not be unreasonably withheld provided
that
the Finance Provider or the Administrators shall be entitled to
approve
any notice sent to debtors to advise them of such assignment to
ensure, in
the opinion of the Finance Provider or the Administrators, that
such
notice does not materially prejudice the collection of the Debts
and if so
required the Buyer shall amend its notice in accordance with the
reasonable directions of the Finance Provider or the
Administrators.
|
|
12.
|
COMPUTER
SOFTWARE&
SYSTEM
|
|
12.1
|
The
Buyer acknowledges that it acquires no right, title or interest
in, or
right to use, any computer software used, or available for use,
by the
Seller prior to Completion save insofar as such rights are included
in the
Business IPR. It shall accordingly
be the sole responsibility of the Buyer to obtain consent for the
use of
rights in such software.
|
|
12.2
|
The
Buyer shall not (unless it has obtained any necessary consent)
use any
such software or otherwise infringe any rights of any person therein,
and
the Buyer shall keep the Seller and the Administrators fully and
completely indemnified against all actions, proceedings, claims,
demands,
penalties and expenses whatsoever which may arise as a result of
the
failure of the Buyer to comply with this clause 12.
|
|
13.
|
LIABILITIES
OF THE BUSINESS
|
|
13.1
|
The
Buyer shall pay, satisfy and discharge all the debts, liabilities
and
obligations relating to the Business arising on or after Completion
and
shall at all times keep the Seller and the Administrators indemnified
against the same and all actions, proceedings, costs, damages,
claims and
demands in respect thereof.
|
|
13.2
|
In
the event of a dispute over the sums payable pursuant to this clause
and
provided that the sum in dispute is not less than £2,000, either party
shall be entitled to refer the matter for determination by an Expert,
which determination shall be final and binding on the parties and
the
costs of his appointment shall be borne equally by the
parties.
|
9
|
13.3
|
The
Seller shall remain liable for all debts, liabilities and obligations
of
the Business other than those specifically assumed by the Buyer
under this
Agreement.
|
|
14.
|
APPORTIONMENTS
|
|
14.1
|
The
apportionment of all outgoings of any nature (including without
limitation
service charges, business rates, utility and telephone charges
and any
insurance premium) in respect of the Business as between the Seller
and
the Buyer shall be made as at
Completion.
|
|
14.2
|
In
the event that any apportionment cannot be determined as at Completion
it
shall be calculated as soon as possible thereafter and the Buyer
or the
Seller as the case may be shall account for the net amount
due.
|
|
15.
|
AUTHORITY
AND LIABILITY OF THE
administratorS
|
|
15.1
|
The
Buyer agrees that the Administrators are acting as the agents of
the
Seller pursuant to the powers granted to them by
statute.
|
|
15.2
|
Save
as specifically set out in this Agreement neither the Administrators,
their firm nor their agents shall incur any personal liability
whatsoever
under this Agreement or under any other deed, instrument or document
entered into pursuant to or in connection with it or in relation
to any
related matter or claim however, whenever and wherever arising
and whether
such liability would arise under the Act or
otherwise.
|
|
15.3
|
Save
where expressly provided to the contrary, the Administrators are
a party
to this Agreement solely for the purpose of taking the benefit
of the
exclusions, indemnities and other rights in their
favour.
|
|
15.4
|
Each
of the Administrators shall have full power to act for and on behalf
of
the Seller and for each of the other Administrators for all purposes
arising out of or in connection with this
Agreement.
|
|
15.5
|
This
clause 15
shall continue to have effect, whether the Administrators' capacity
as
agents of the Seller continues or is terminated and notwithstanding
Completion.
|
|
16.
|
INDEMNITY
|
|
16.1
|
Without
prejudice to any specific right of indemnity in this Agreement,
the Buyer
covenants with the Administrators to keep the Administrators and
their
personal representatives, estates and effects fully indemnified
from and
against all actions, proceedings, claims, liabilities and demands,
reasonable costs and expenses incurred as a direct result of any
breach by
the Buyer of the terms of this
Agreement.
|
|
16.2
|
Nothing
in this Agreement shall operate to restrict or affect in any way
any right
of the Administrators to any indemnity or to a lien, whether under
the Act
or in any other way whatsoever and the exclusion of liability,
acknowledgements and waivers in favour of the Administrators shall
be in
addition to, and not qualified by or in substitution for, any right
of
indemnity, recovery or relief otherwise available to the Administrators
and apply to claims formed in contract, tort or otherwise
howsoever.
|
10
|
17.
|
MISREPRESENTATION
AND WARRANTIES
|
|
17.1
|
Nothing
in this Agreement shall be construed as excluding or attempting
to exclude
Section 12(3) to (5) of the Sale of Goods ▇▇▇ ▇▇▇▇ or any liability
for
fraudulent misrepresentation or any liability for death or personal
injury
arising as a result of negligence.
|
|
17.2
|
Except
in relation to clauses 22.1
and 22.2
the Buyer has entered into this Agreement without reliance on and
there
are excluded any warranties, representations, agreements, statements
or
undertakings (oral or in writing) made by the Seller or the Administrators
or by any of its or their employees or agents at any time on or
before the
date of this Agreement including (without limitation) any warranty
or
condition as to title, quiet possession, satisfactory quality,
fitness for
purpose or description and whether express or implied by statute
or
otherwise.
|
|
17.3
|
The
description of the Sale Assets in this Agreement shall not imply
any
warranty or representation as to their nature or quality or otherwise
and
without prejudice to the generality of the foregoing the Buyer
acknowledges that:
|
|
(a)
|
it
is satisfied with the accuracy of the information contained in
this
Agreement and the Schedules;
|
|
(b)
|
this
is an administration transaction and that the terms and conditions
of, and
the exclusions and limitations set out in, this Agreement are fair
and
reasonable in the context of a sale by a company acting by its
Administrators;
|
|
(c)
|
the
Sale Consideration has been calculated by the Buyer to reflect
the
commercial risk assumed by it and the Buyer shall not be entitled
to any
refund or abatement of the Sale Consideration as a result of its
failure
to secure ownership of any of the Sale Assets or on any ground
whatsoever;
and
|
|
(d)
|
the
Administrators have available to them only limited knowledge in
relation
to the Seller and its affairs.
|
|
17.4
|
The
Buyer is deemed to buy the Sale Assets on an "as is, where is"
basis with
full knowledge and the Seller and the Administrators give no warranty
whatsoever concerning the Sale Assets and the Business (except
as provided
in clauses 22.1
and 22.2)
and without prejudice to the generality of the foregoing, or any
other
term of this Agreement, no warranty is given in respect
of:
|
|
(a)
|
the
ownership, condition, permitted use or fitness for purpose of any
of the
Sale Assets;
|
|
(b)
|
the
turnover or profitability of the
Business;
|
|
(c)
|
the
enforceability of the Business Contracts or the existence of any
breach of
the Business Contracts;
|
|
(d)
|
any
consent or approval required from any third party in respect of
the
transfer of the Business and the Sale
Assets;
|
|
(e)
|
any
defect in the Sale Assets; and
|
|
(f)
|
whether
or not any of the Sale Assets is affected by any reservation of
title or
any encumbrance affecting the Seller's title or any other claim
by any
third party in relation to the Sale Assets and any such claim shall
be
wholly the responsibility of the
Buyer
|
11
and
none
of such matters shall give the Buyer any right or claim against the Seller
or
the Administrators or entitle it to rescind or repudiate this Agreement or
claim
any abatement in respect of the Sale Consideration.
|
18.
|
STATUTORY
REGULATION
|
|
18.1
|
The
Buyer shall be deemed to buy with knowledge in all respects of
the use of
the Premises and the operation of the Business imposed by any
environmental, planning or other legislation and the Seller and
the
Administrators give no warranty in relation to such
matters.
|
|
18.2
|
The
Buyer shall be deemed to buy with knowledge in all respects of
all
restrictions on the use of Sale Assets and the Third Party Assets
and in
particular, but without prejudice to the generality of the
foregoing:
|
|
(a)
|
the
Seller and the Administrators give no warranty or undertaking in
respect
of any certificate, consent, licence or permit that may be required
from
any relevant authority for such use or operation whether at the
date of
this Agreement or at any time in the future and the Buyer shall
be solely
responsible for obtaining any authorisation or consent necessary
for the
continued use of the Sale Assets;
|
|
(b)
|
the
Buyer shall not use any of the Sale Assets or Third Party Assets
unless
and until it is in a safe condition and in compliance with all
applicable
requirements of any legislation as to health and safety (and in
particular, in relation to the Vehicles, with the Road Traffic
Acts and
the Road Vehicles (Construction and Use) Regulations 1986) or otherwise
and with any relevant instruction manuals or manufacturers'
recommendations and it is the sole responsibility of the Buyer
to inspect
each Sale Asset and Third Party Asset and satisfy itself as to
these
matters, whether or not that asset was in use by the Seller at
any time
prior to Completion; and
|
|
(c)
|
whilst
the Buyer can make use of the information contained in the Business
Records (including inspecting and copying them at its own expense)
it must
not do anything which would breach the Data Protection Acts 1984
and 1998
and any rules or regulations made under or pursuant to such legislation
but must obtain all such licences and consents as may be required
for the
purposes of such legislation.
|
|
19.
|
FURTHER
ASSURANCE
|
The
Seller shall at the request and cost of the Buyer, provided it is reasonably
able to do so and for a period of 3 months only from Completion, execute
such
further documents and undertake and do such things as may be reasonably
necessary for the purpose of transferring to the Buyer the Sale Assets or
any of
them.
|
20.
|
VALUE
ADDED TAX
|
|
20.1
|
The
Seller and the Buyer intend that paragraph 5 of the Value Added
Tax
(Special Provisions) Order 1995 and so far as applicable Section
49(1) of
the Value Added Tax Act 1994 shall apply to the transfer of the
Sale
Assets and accordingly:
|
|
(a)
|
the
Seller and the Buyer shall jointly give notice of such transfer
to H.M.
Customs & Excise as required by
law;
|
12
|
(b)
|
the
Seller and the Buyer shall use all reasonable endeavours to secure
that
pursuant to the provisions referred to above the sale of the Sale
Assets
is treated as neither a supply of goods nor a supply of services
for the
purposes of VAT;
|
|
(c)
|
if,
notwithstanding the provisions referred to above, any VAT shall
be payable
on the sale (as verified by letter from H.M. Customs & Excise
confirming that the sale is a standard rated supply) the Buyer
shall (upon
receipt of a valid VAT invoice) pay such tax to the Seller;
and
|
|
(d)
|
the
VAT Records shall be transferred to the Buyer on Completion subject
to the
obligation on the Buyer to retain the VAT records for a period
of not less
than 6 years from Completion and to the right of the Seller, the
Administrators, the Finance Provider and any liquidator of the
Seller and
their agents to inspect and copy the same at all reasonable
times.
|
|
20.2
|
The
Buyer warrants that:
|
|
(a)
|
it
has applied to be registered for
VAT;
|
|
(b)
|
the
Sale Assets are to be used by the Buyer (or another member of the
Buyer's
group of companies within the same group VAT registration as the
Buyer) in
carrying on the same kind of business as the Business, whether
or not as
part of any existing business carried on by the Buyer;
and
|
|
(c)
|
there
are no arrangements in existence for the transfer of the legal
or
beneficial interest in the Sale Assets by the
Buyer.
|
|
21.
|
BUSINESS
RECORDS AND ACCESS
|
|
21.1
|
The
Seller shall allow the Buyer to take possession of the Business
Records
held at the Premises or elsewhere on Completion for 6 months from
Completion or such longer period as the Seller and the Administrators
in
their absolute discretion shall allow and the Buyer may at its
own expense
make and retain copies of such Business Records provided that the
Buyer
shall make such Business Records or any of them available for collection
by the Seller, the Administrators or the Finance Provider at any
time.
|
|
21.2
|
The
Buyer shall (at no cost to the Seller or the Administrators or
the Finance
Provider) allow the Administrators and the Finance Provider and
their
representatives and agents
|
access
to
and the right to inspect and take copies of such of the Business Records
as the
Buyer has possession of pursuant to clause 21.1to
enable
the Administrators to perform and complete their duties as Administrators
or as
agents of the Finance Provider.
|
21.3
|
The
Buyer shall maintain the security, order and integrity of all Business
Records in its possession (whether held on paper, computer record
or other
storage media) in the same condition as they are at Completion
and shall
keep them separate from the Buyer's own records (including all
records
relating to the Buyer's trading after Completion) and shall not
alter, add
to, amend or delete any part of the Business
Records.
|
|
21.4
|
The
Buyer undertakes with the Administrators for 6 calendar months
following
Completion to promptly send by first class post to the Administrators
all
correspondence received at the Premises after Completion that is
addressed
to the Seller or the Administrators other than "junk
mail".
|
|
21.5
|
Other
records of the Business not falling within the definition of the
Business
Records shall be made available to the Buyer insofar as it may
reasonably
need to see or copy them (at its own expense) for the purposes
of the
Business.
|
13
|
21.6
|
The
Buyer undertakes not to seek to gain access to any information
which is
not relevant to the Business and if the Buyer inadvertently obtains
such
information to treat it as
confidential.
|
|
22.
|
ENCUMBRANCES
|
|
22.1
|
The
Sale Assets are sold and transferred with no title guarantee and
subject
to all mortgages including mortgages, charges, liens or other encumbrances
affecting the same but, subject to the foregoing, free from any
claim
under the Debenture.
|
|
22.2
|
Pursuant
to clause 22.1,
the Administrators warrant that the Finance Provider shall on Completion
release the Sale Assets from all charges in the Debenture and all
monies
secured by those charges and from all claims and demands under
the
Debenture provided that all of the charges in the Debenture shall
remain
in full force and effect with regard to all of the property charged
thereby other than the Sale Assets.
|
|
22.3
|
Nothing
in this Agreement shall:
|
|
(a)
|
imply
any acknowledgement of the existence, validity or enforceability
of any
charge, claim or encumbrance; or
|
|
(b)
|
require
the Seller or the Administrators to discharge any indebtedness
of the
Seller whether or not such indebtedness is secured by any mortgage,
charge, lien or other encumbrance.
|
|
23.
|
NOTICES
|
|
23.1
|
Any
notice or other communication to be given in connection with this
Agreement shall be in writing and (without prejudice to proof that
it has
been effectively given in any other manner) shall be deemed duly
served if
delivered at or sent by recorded delivery post to the address of
the party
concerned which is set out in this Agreement or such other address
for
service as that party may have notified to the other party in
writing.
|
|
23.2
|
Any
notice shall be deemed to be served if delivered personally, on
the day on
which it is delivered or, if posted, at 10 a.m. on the second Business
Day
after the day of posting. Evidence that the notice was properly
addressed
stamped and put into the post shall be conclusive evidence of service.
|
|
24.
|
ASSIGNMENT
AND THIRD PARTY RIGHTS
|
|
24.1
|
This
Agreement shall not be assignable by the Buyer without the prior
written
consent of the Administrators and the Seller shall not be required
to
transfer any of the Sale Assets to any person other than the
Buyer.
|
|
24.2
|
The
Contracts (Rights of Third Parties) Act 1999 shall not apply to
this
Agreement save that the Finance Provider shall be entitled to enforce
the
obligations of the Buyer pursuant to clause 11
and clause 21.2
of
this Agreement.
|
|
25.
|
ANNOUNCEMENTS
|
No
announcement regarding the transactions contemplated by this Agreement or
any
ancillary matter and no disclosure of the terms of this Agreement shall (save
as
required by law) be made by the Buyer without the prior written consent of
the
Administrators (such consent not to be unreasonably withheld) provided that
the
Buyer shall be entitled to advise any customer, client or supplier of the
Business of the fact that it has purchased the Business.
14
|
26.
|
MISCELLANEOUS
|
|
26.1
|
If
any one or more provisions contained in this Agreement is or becomes
invalid, illegal or unenforceable in any respect the validity,
legality or
enforceability of the remaining provisions shall not thereby be
affected.
|
|
26.2
|
All
payments to be made by the Buyer under this Agreement shall be
made on the
due date for payment without any deduction, set-off or counterclaim
whatsoever, in immediately available sterling funds, and if not
so paid
shall bear interest at the rate of 4 per cent over the base rate
of The
Royal Bank of Scotland plc from time to time from the due date
for payment
to the date of actual payment whether before or after judgment,
calculated
on a daily basis and compounded on the last day of each
month.
|
|
26.3
|
The
terms and conditions of this Agreement and any other agreement
entered
into pursuant hereto represent the entire arrangement between the
parties
relating to the arrangements between
them.
|
|
26.4
|
All
provisions of this Agreement shall so far as they are capable of
being
performed continue in full force and effect notwithstanding
Completion.
|
|
26.5
|
This
Agreement may be executed in any number of counterparts (which
may be
exchanged by fax) and by the parties to it on separate counterparts,
each
of which shall be an original but all of which together shall constitute
one and the same agreement.
|
|
26.6
|
The
parties shall each bear their own costs in connection with the
preparation
and implementation of this Agreement and in connection with the
sale and
purchase hereby contemplated.
|
|
26.7
|
No
failure to exercise and no delay in exercising on the part of the
Seller
or the Administrators or the Finance Provider of any right, power
or
privilege hereunder shall operate as a waiver thereof nor shall
any single
or partial exercise of any such right, power or privilege preclude
any
further or other exercise thereof or the exercise of any other
right,
power or privilege.
|
|
26.8
|
Time
shall be of the essence in relation to the obligations of the Buyer
under
this Agreement.
|
|
26.9
|
The
Buyer shall pay any stamp duties payable in respect of this Agreement
or
any other document entered into or executed in connection
herewith.
|
|
27.
|
LAW
AND JURISDICTION
|
This
Agreement shall be governed by the laws of England and the parties submit
to the
non-exclusive jurisdiction of the English Courts.
IN
WITNESS of
which
the parties have executed this Agreement as a Deed on the basis that it should
be effective on the date entered in the heading.
15
|
SIGNED
(but
not delivered until the date
|
)
|
|
|
hereof)
as a DEED
by
▇▇▇
LOGISTICS
|
)
|
|
|
LIMITED
|
)
|
|
|
acting
by the Administrators as its agent
|
)
|
…/s/………………………………………
|
|
without
personal liability
|
)
|
Signature
of Administrator
|
|
SIGNED
(but
not delivered until the date
|
)
|
|
|
hereof)
as a DEED
by
▇▇▇▇▇
▇▇▇▇▇▇
|
)
|
|
|
for
the Administrators
|
)
|
…/s/………………………………………
|
|
in
the presence of:
|
)
|
Signature
of Administrator
|
|
/s/…………………………………….
|
||
|
Signature
of Witness
|
||
|
Name
of Witness:
|
||
|
Address:
|
||
|
Occupation:
|
||
|
SIGNED
(but
not delivered until the date
|
)
|
|
|
hereof)
as a
DEED by
WLG
(UK)
|
)
|
…/s/
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇………………
|
|
LIMITED
|
)
|
Signature
of director
|
|
|
…/s/……………………….……………….
|
|
|
|
Signature
of second director or company secretary
|
|
|
SIGNED
(but
not delivered until the date
|
)
|
|
|
hereof)
as a
DEED by
VENTURE
|
)
|
…/s/
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇………………
|
|
FINANCE
PLC
|
)
|
Signature
of director
|
|
by
its duly appointed Attorney
|
||
|
in
the presence of:
|
||
|
…………………………………….
|
||
|
Signature
of Witness
|
||
|
Name
of Witness:
|
||
|
Address:
|
||
|
Occupation:
|
16