Exhibit 10
DATED MARCH 8 2006
J R CROMPTON LIMITED
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇-UK LIMITED
P.H. GLATFELTER COMPANY
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AGREEMENT
FOR THE SALE OF ASSETS
(LYDNEY)
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(▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LOGO)
CONTENTS
PAGE
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CLAUSE
1 Definitions............................................................. 1
2 Interpretation.......................................................... 5
3 Sale and Purchase....................................................... 5
4 The Consideration....................................................... 6
5 VAT..................................................................... 6
6 Completion.............................................................. 6
7 Excluded Assets......................................................... 7
8 Excluded Liabilities.................................................... 8
9 Third Party Items and Claims............................................ 9
10 Intellectual Property Licence........................................... 10
11 Continuing the Business................................................. 10
12 Accounting for the Debts................................................ 11
13 Records................................................................. 11
14 Exclusion of Warranties................................................. 12
15 Exclusion of Personal Liability......................................... 13
16 Employees............................................................... 13
17 Apportionments.......................................................... 14
18 Data Protection......................................................... 14
19 Publicity............................................................... 14
20 Guarantee............................................................... 14
21 Notices................................................................. 15
22 General................................................................. 15
23 Governing Law and Jurisdiction.......................................... 16
SCHEDULE
1 The Lydney Property..................................................... 18
Part I - The Lydney Property............................................ 18
Part II - Special Conditions - The Lydney Property...................... 19
Part III - The Transfers - Lydney Property.............................. 22
Part IV - Details of the Charges to be Released - The Lydney Property... 23
2 The Registered Trademarks............................................... 24
3 The Patents............................................................. 25
4 The Plant............................................................... 26
5 The Third Party Items................................................... 27
6 The German Contracts.................................................... 28
7 Sales Agency Agreements................................................. 29
THIS AGREEMENT is made on March 8, 2006
BETWEEN
(1) J R CROMPTON LIMITED (No. 58810) whose registered office is at ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ (SELLER) acting by the
Administrators (defined below);
(2) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ both of Deloitte & Touche
LLP, ▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (together the ADMINISTRATORS);
(3) GLATFELTER-UK LIMITED (No. 5734921) whose registered office is care of
Jordans Limited ▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇/▇▇▇▇ (▇▇▇▇▇); and
(4) P.H. ▇▇▇▇▇▇▇▇▇▇ COMPANY a United States Corporation incorporated and
validly subsisting under the laws of the State of Pennsylvania whose
principal executive offices are at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (GUARANTOR).
WHEREAS
(A) The Administrators were appointed Joint Administrators of the Seller by an
Administration Order made in the High Court of Justice Chancery Division
Manchester District Registry on 7 February 2006 in proceedings the short
title and reference to the record of which is AO No. 1146 of 2006 In the
Matter of J R Crompton Limited.
(B) The Seller has agreed to sell to the Buyer and the Buyer has agreed to
purchase the Lydney Assets (defined below) which relate to the Lydney
Business (defined below) on the terms of this Agreement.
(C) The Guarantor is the ultimate parent company of the Buyer and has agreed to
guarantee the Buyer's obligations under this Agreement.
IT IS AGREED:
1 DEFINITIONS
In this Agreement, unless the context otherwise requires:
ADMINISTRATORS' SOLICITORS means ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ Ref: SWM\103370-11491
APPOINTMENT means the appointment of the Joint Administrators
BUSINESS NAME means J R Crompton
BUSINESS RIGHTS means any service marks database rights utility models
topography rights inventions trade secrets know-how get up or other rights
in respect of any other intellectual property (registerable or not) and
wherever existing in the world (including all renewals extensions and
revivals and all rights to apply for any of the foregoing) owned by the
Seller and used by it exclusively in connection with the Lydney Business
COMPLETION means the completion of the sale and purchase hereby agreed
COMPLETION DATE means the date of this Agreement
DEBTS means the book and other debts and monetary claims owing to the
Seller and/or the Administrators as at the Transfer Date whether or not yet
due or payable or invoiced.
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DEVON VALLEY PROPERTY means the property occupied by the Seller at Hele
Road, Exeter
EXCLUDED ASSETS means the property rights and assets of or used by the
Seller which are not expressly sold pursuant to this Agreement including
but not limited to those set out in clause 7 (Excluded Assets) and, without
limitation, the assets of the Retained Business and of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Business
EXCLUDED LIABILITIES means (save to the extent to which the Buyer agrees
under this Agreement to discharge the same) all liabilities or obligations
relating to the Lydney Business the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Business or the Retained
Business outstanding on, or accrued or referable to the period up to and
including the Transfer Date and including, for the avoidance of doubt, the
items set out in clause 8 (Excluded Liabilities)
GERMAN BUSINESS means any and all contracts, supply agreements, engagements
or orders entered into on or before the Transfer Date with customers,
suppliers, agents or representatives which in any way, in whole or part
relate to the manufacture, supply or sale of goods into Germany and any
contracts, engagements or orders entered into on or before the Transfer
Date for the supply or sale of goods or services to the Seller by any
supplier or contracting party based in Germany including without limitation
the contracts details of which are set out in schedule 6 hereto, the German
Business further includes all business secrets, Goodwill, Goods in Transit,
Stock, Records and Third Party Items related to the manufacture, supply or
sale of goods in Germany or to customers having their principal place of
business in Germany and related to the supply of goods or services to the
Seller out of Germany or by a company having its principal place of
business in Germany
GOODS IN TRANSIT means all and any items which were ordered by the Seller
and/or the Administrators prior to the Transfer Date for delivery to the
Lydney Property but which have not been delivered as at the Transfer Date
whether or not the same have been paid for
GOODWILL means the goodwill of the Seller exclusively in connection with
the Lydney Business comprising:
(a) exclusive liberty for the Buyer to represent itself as carrying on the
Lydney Business in succession to the Seller
(b) liberty to negotiate to take up all orders and enquiries relating
exclusively to the Lydney Business (other than those which relate to
the German Business) which have not been accepted by the Seller as at
the date hereof
(c) liberty to use all customer lists and (in so far as not referring to
the Seller and not referring to the rights or property of any other
person) any technical literature and any technical drawings used by
the Seller exclusively in connection with the Lydney Business (save in
so far as the same relate to the German Business)
HEAD OFFICE means the head office function of the Seller called on from
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
INTELLECTUAL PROPERTY means such trade marks patents design rights
registered designs copyright database rights or domain names (wherever
existing in the world and whether registered or not and including all
renewals extensions and revivals) and all rights to apply for any for the
foregoing as may be owned by the Seller and used exclusively in connection
with the Lydney Business as at the Transfer Date and including (without
limitation) those
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registered trademarks (REGISTERED TRADEMARKS) listed in Schedule 2 and the
Patent listed in schedule 3 but in every case subject to all licences and
other rights of and obligations to third parties to which the Seller may be
subject in relation to the same
JRC USA means J R Crompton (USA) Limited
LYDNEY ASSETS means the Business Rights, the Lydney Customer Contracts, the
Goodwill, the Intellectual Property, the Plant, the Stock, the Transferred
Records (as defined herein) and all contracts relating to the Third Party
Items and relating exclusively to the Lydney Business but for the avoidance
of doubt excludes the German business
LYDNEY BUSINESS means the business of the manufacture of specialist
beverage papers and related products carried on by the Seller at the Lydney
Property prior to the Transfer Date but for the avoidance of doubt excludes
the German Business, the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Business and the Retained Business
LYDNEY CUSTOMER CONTRACTS means the benefit and burden of all contracts and
engagements entered into and of all orders placed with the Seller or the
Administrators on behalf of the Seller by customers exclusively in relation
to the Lydney Business which are subsisting but uncompleted on the Transfer
Date other than those relating to the German Business
LYDNEY PROPERTY means the freehold property at Lydney, Gloucestershire as
more particularly described in part 1 of schedule 1
PLANT means such plant, machinery, vehicles, office furniture fittings and
equipment relating exclusively to the Lydney Business as is listed in
schedule 4 and is in the ownership of the Seller and situate at the Lydney
Property on the Transfer Date but excluding any ROT Chattels
RECORDS means the Transferred Records and the Retained Records
REGULATIONS means the Transfer of Undertakings (Protection of Employment)
Regulations 1981
RETAINED BUSINESS means the business carried on by the Seller in respect of
the manufacture of specialist beverage papers and related products at the
Devon Valley Property and any retained business rights (including the right
to use the Business Name), customer contracts relating to the Devon Valley
Property any rights in respect of the ▇▇▇▇▇ joint venture referred to in
clause 8.1(d), and all other rights relating thereto together with such
part of the Seller's business as is operated from Head Office or from or by
JRC USA
RETAINED RECORDS means all invoicing financial tax and other accounting
records of the Seller but excludes the VAT Records
RETURNS means all and any goods supplied by the Seller or the
Administrators on behalf of the Seller prior to the Transfer Date but
returned (whether as defective or for any other reason) at any time whether
prior to or after the Transfer Date and any other claims by customers
relating to defective or allegedly defective goods but excludes for the
avoidance of doubt any Returns related to the German Business
ROT CHATTELS means all and any chattels now or hereafter the subject of any
ROT Claims
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ROT CLAIMS means all and any existing or future claims by or on behalf of
any third party to have retained title in or to any chattels included in
the Lydney Assets and/or which at the time of the Appointment were and/or
which at the date hereof are in the possession or control of the Seller
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ BUSINESS means the business of the manufacture of specialist
beverage products carried on by the Seller from premises occupied by the
Seller at ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Mill, ▇▇▇▇▇▇▇, Lancashire (▇▇▇▇▇▇▇ ▇▇▇▇▇▇
PROPERTY)
STANDARD CONDITIONS means the Standard Conditions of Sale (Third Edition)
STOCK means the Goods In Transit and such raw materials parts and other
stock and work-in-progress (both finished and unfinished) relating
exclusively to the Lydney Business as is in the ownership of the Seller and
situate at the Lydney Property on the Transfer Date but excluding any ROT
Chattels
SUPPLY CONTRACTS means the benefit and burden of all contracts commitments
and/or orders entered into or placed by or on behalf of the Seller or the
Administrators on behalf of the Seller between the time of Appointment and
the date of this Agreement for the supply to the Seller of goods, materials
and/or services in connection with the Lydney Business (save insofar as
delivered or rendered on or prior to the Transfer Date)
THIRD PARTY ITEMS means any items which are the subject of hire purchase
lease purchase credit sale or leasing agreements or on loan or otherwise in
the ownership of third parties and which are situate at the Lydney Property
on or which are otherwise put into the possession of the Buyer at any time
after the Transfer Date including but not limited to the items listed in
schedule 5 (but excluding any ROT Chattels)
TOWN AND COUNTRY PLANNING ACTS means all enactments from time to time in
force relating to town and country planning
TRANSFER DATE means 5.00 pm on the date of this Agreement
TRANSFERRED RECORDS means all sales literature and publicity material
production data quality data formulae and recipes correspondence books and
documents and other similar or like materials (including customer and
supplier lists and records, the Lydney Customer Contracts and related
documents) in whatever medium relating exclusively to the Lydney Business
and/or the Lydney Assets or used or intended for use exclusively in the
Lydney Business other than the Retained Records and the VAT Records but for
the avoidance of doubt the Transferred Records do not include records
relating to the German Business
TRANSITIONAL SERVICES AGREEMENT means the agreement of even date with this
Agreement between the parties to this Agreement which sets out the terms on
which for a period of one month post Completion the Buyer shall be entitled
to access certain head office services including payroll systems, computer
software and support functions in connection with the transfer of the
Lydney Business
VAT means Value Added Tax
VATA means the Value Added Tax ▇▇▇ ▇▇▇▇
VAT RECORDS means the records relating to the Business as at the Transfer
Date which are referred to in section 49(1)(b) VATA.
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2 INTERPRETATION
2.1 In this Agreement unless the context otherwise requires:
(a) the recitals and schedules form part of this Agreement and references
to this Agreement include them;
(b) references to recitals, clauses and schedules are to recitals and
clauses of, and schedules to, this Agreement and references in a
schedule or part of a schedule to paragraphs are to paragraphs of that
schedule or that part of the schedule;
(c) references to this Agreement or any other document are to this
Agreement or that document as in force for the time being and as
amended from time to time in accordance with this Agreement or that
document (as the case may be);
(d) a reference to a statute or statutory provision shall be construed as
including a reference to any subordinate legislation (as defined by
section 21(1) Interpretation Act 1978) made from time to time under
that statute or provision (whether before or after the date of this
Agreement);
(e) a reference to a statute, statutory provision or subordinate
legislation (as so defined) shall be construed as including a
reference to:
(i) that statute, provision or subordinate legislation as in force at
the date of this Agreement and as from time to time modified or
consolidated, superseded, re-enacted or replaced (whether with or
without modification and whether before or after the date of this
Agreement);
(ii) any statute, statutory provision or subordinate legislation (as
so defined) which it consolidates, supersedes, re-enacts or
replaces (whether with or without modification);
(f) the headings and contents table are for convenience only and do not
affect its interpretation;
(g) the words "other", "including" and "in particular" do not limit the
generality of any preceding words and any words which follow them
shall not be construed as being limited in scope to the same class as
the preceding words where a wider construction is possible.
3 SALE AND PURCHASE
3.1 The Seller shall sell and the Buyer shall buy whatever right, title and
interest (if any) the Seller has in or to the Lydney Assets on the terms
and for the consideration set out in this Agreement to the intent that the
Buyer shall from the Transfer Date carry on the Lydney Business as a going
concern.
3.2 Such (if any) right title and interest in or to the Lydney Assets and the
Lydney Property shall pass to the Buyer at Completion.
3.3 For the consideration set out in this Agreement and subject to the
conditions hereinafter set out (including the special conditions set out in
part II of schedule 1) the Seller shall sell (without title guarantee) and
the Buyer shall buy the Lydney Property subject to all liens obligations
licences and encumbrances relating thereto. In the event of any conflict
between
5
the conditions set out in the main body of this Agreement and the said
special conditions set out in part II of schedule 1 the former conditions
shall prevail.
3.4 The provisions of part V of schedule 1 shall more particularly apply in
respect of the Lydney Leasehold Property.
4 THE CONSIDERATION
4.1 The aggregate monetary consideration for the sale of the Lydney Property
and the Lydney Assets shall be L37,500,000 (Thirty Seven Million Five
Hundred Thousand Pounds Sterling), payable on Completion which shall be
payable as follows:
(a) for the Business Rights - L1
(b) for the Lydney Customer Contracts - L1
(c) for the Goodwill - L
(d) for the Intellectual Property - L1
(e) for the Plant - L
(f) for the Stock - L
(g) for the Transferred Records - L1
(h) for the Lydney Property - L
5 VAT
5.1 All payments to be made under this Agreement shall be deemed to be
exclusive of VAT unless otherwise provided.
5.2 Subject to clauses 5.3 and 5.4 the Buyer shall not pay any VAT upon the
consideration referred to in clause 4 (The Consideration) the parties being
of the view that this is a transaction which by virtue of Article 5 Value
Added Tax (Special Provisions) Order 1995 S.I. No.1995/1268 is not to be
treated as either a supply of goods or a supply of services.
5.3 If and to the extent to which all or any of the Lydney Assets or the Lydney
Property are for any reason subject to VAT then the Buyer shall against
receipt of a VAT invoice pay to the Administrators on behalf of the Seller
forthwith on demand the VAT due relative to such sale together with all
interest and penalties which may be payable thereon.
5.4 The Buyer warrants that it is registered or will as a result of this
transaction become registerable for VAT purposes and that it intends to use
the Lydney Assets and the Lydney Property to carry on with effect from the
Transfer Date the same kind of business as the Lydney Business.
6 COMPLETION
6.1 Completion shall take place in respect of the purchase of the Lydney Assets
and the Lydney Property at the offices of the Administrators' Solicitors on
the Completion Date when:
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(a) The Buyer shall pay to the Administrators on behalf of the Seller the
sum of L37,500,000 being the aggregate consideration for the sale and
purchase of the Lydney Property and Lydney Assets.
(b) The Seller shall leave at the Lydney Property or otherwise wherever
the same may be situate all such items of the Lydney Assets as are
transferable by delivery.
(c) The Seller shall deliver to the Buyer assignments in favour of the
Buyer of:
(i) Goodwill
(ii) Intellectual Property.
(d) Neither the Seller nor the Administrators shall have any obligation to
the Buyer to identify or deliver any such items of the Lydney Assets
to the Buyer or to take any positive steps whatsoever (including but
not limited to seeking or obtaining any requisite consent of any
person not party hereto) relating thereto to enable the Buyer to
obtain the same.
(e) The parties hereto shall enter into the Transitional Services
Agreement.
7 EXCLUDED ASSETS
All assets and items owned by or in the possession of the Seller other than
the Lydney Assets and the Lydney Property are excluded from the sale under
this Agreement. In particular but without prejudice to the generality of
the foregoing the following assets or items are excluded:
7.1 The Retained Business and any assets owned or used in connection with it.
7.2 The ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Business and any assets owned or used in connection with
it.
7.3 All deposits, prepayments, cheques, bills, notes or securities received by
the Seller or the Administrators on behalf of the Seller on or before the
Transfer Date and any cash in hand and at bank or in the banking system.
7.4 Any claim or potential claim under any insurance arising from any act
occurring on or before the date hereof.
7.5 The Debts and all guarantees, indemnities, securities, rights of retention
of title and liens for the same.
7.6 The Retained Records.
7.7 The ROT Chattels.
7.8 The interest of the Seller in any vehicles other than those forming part of
the Plant.
7.9 The benefit of all agreements which are not assignable or of which a
purported assignment would be a breach or would constitute an event of
default or termination.
7.10 The German Business.
7.11 All investments in shares or securities of the Seller (including shares and
securities and other rights of whatsoever nature of the Seller in
subsidiaries (if any) and all moneys from time to time owing to the Seller
from such subsidiaries).
7
7.12 Any interest of the Seller in any freehold or leasehold properties other
than the Lydney Property.
7.13 Any interest the Seller may have in or to any pension fund(s).
7.14 All computer software (if any) used by the Seller the copyright in which is
not owned by the Seller.
7.15 The Third Party Items.
7.16 Any of the Lydney Assets which have been distrained upon.
7.17 The Business Name.
7.18 Any assets located in or upon the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Property or the Devon
Valley Property at the Transfer Date.
7.19 All other items or assets of the Seller not specifically mentioned in
clause 3 (Sale and Purchase).
8 EXCLUDED LIABILITIES
8.1 Without limiting the meaning of Excluded Liabilities, the following
liabilities relating to the Lydney Business, the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Business
and/or the Retained Business and/or the Lydney Assets are expressly
excluded from the sale to the Buyer contemplated hereunder:
(a) any liability (accrued or outstanding) in respect of the defined
benefit pension scheme, or any other pension scheme operated in
connection with the Lydney Business, the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Business or
the Retained Business prior to the Transfer Date;
(b) any liability of the Lydney Business, the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Business or
the Retained Business relating to any claim, writ or action, pending
or threatened in the Courts of the United Kingdom or any claim or
action accrued or outstanding as at the Transfer Date by any statutory
authority;
(c) to the extent not otherwise assumed under statute, any liability
relating to environmental matters relating to the operation of the
Lydney Business and the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Business at the Lydney Property
or the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Property which may have accrued prior to the
Transfer Date;
(d) any interest in or relating to the Joint Venture between (1) Dynamic
Products Limited (2) the Seller (3) ▇▇▇▇▇ Innovations Limited (4)
▇▇▇▇▇ ▇▇▇▇▇ and any licence or agreement relating thereto to which the
Seller is a party; and
(e) any agreements relating to the appointment of a sales agent to which
the Seller is a party and details of which are set out in schedule 7
hereto.
8.2 The Buyer understands that the Administrators will not discharge all or any
of the Excluded Liabilities and that to the extent to which any such
liabilities are and remain liabilities of the Seller they will at most rank
only as ordinary unsecured liabilities of the Seller. The Buyer also
understands that the Seller and the Administrators cannot and do not nor
give any assurances that the Buyer will not, by operation of law or
otherwise, become responsible for some or all of the Excluded Liabilities
and to the extent to which the Buyer is or becomes so responsible, the
Buyer will have no recourse to the Seller or the Administrators. The
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exclusion of the Excluded Liabilities is not intended to have the effect of
altering any extent to which by operation of law liabilities may pass to
the Buyer as a result of its acquiring the Lydney Business under this
Agreement.
9 THIRD PARTY ITEMS AND CLAIMS
9.1 Unless otherwise agreed, the Buyer shall be entitled to assume possession
of the Third Party Items relating exclusively to the Lydney Business as
from the Transfer Date and the Seller shall not object to or hinder any
arrangement which the Buyer may wish to make with the owners of the Third
Party Items.
9.2 The Seller shall at the Buyer's request and expense enter into novations of
some or all agreements relating to such Third Party Items in such form
(consistent with the terms of this Agreement) as is reasonably acceptable
to the Seller and is approved by the Administrators' Solicitors.
9.3 The Buyer acknowledges that it acquires no title to the Third Party Items
and undertakes not to hold itself out as the owner of the Third Party Items
nor to sell, offer for sale, assign, charge or create or permit any lien,
encumbrance or interest whatsoever to arise in relation to any Third Party
Items.
9.4 Unless/until the same are returned to their owner the Buyer shall keep all
Third Party Items in its possession and under its control at its own
expense and in as good a state of repair as they are in at the Transfer
Date.
9.5 If no novation takes place or if the Buyer receives a valid demand for
delivery up of a Third Party Item from the owner, the Buyer shall
immediately on demand deliver up possession of the Third Party Item to the
owner or otherwise as the owner shall direct. The delivery up of any Third
Party Item shall be at the Buyer's own expense.
9.6 Neither a failure to obtain novation nor a demand for delivery up of any
Third Party Item shall prejudice this Agreement or the consideration paid
or payable under it.
9.7 Save as set out in this clause 9 the Seller shall not be responsible to the
Buyer in any way in relation to any of the Third Party Items and in
particular but without prejudice to the generality of the foregoing neither
the Seller nor the Administrators shall be responsible for making or
failing to make any payment in respect thereof or for arranging the removal
of any of the Third Party Items on or before the Transfer Date or at any
other time and the Buyer shall permit the Seller the Administrators the
owner or the lessor of any of the Third Party Items at any time access to
the Third Party Items for the purpose of inspecting or removing all or any
of the same on demand and pending such removal the Buyer shall maintain all
such Third Party Items in the condition in which they are at the Transfer
Date.
9.8 Without prejudice to the generality of the terms of the preceding
sub-clause if the title of the Seller to any assets possession of which is
allowed to the Buyer or which are purported to be sold to the Buyer under
the terms of this Agreement shall be called into question (whether in
proceedings or otherwise) by any third party at any time or if there shall
be any dispute arising out of this Agreement then:
(a) the Buyer shall allow the Seller and/or the Administrators and their
respective servants authorised agents and invitees access to all the
assets in question during normal business hours for the purpose of
resolving such question;
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(b) the Buyer undertakes not to hold itself out as the owner of such
items, nor to sell, offer for sale, assign, charge or create any lien
on such items and to keep the same in its own possession and in as
good a state of repair and condition as they are at the Transfer Date
and to indemnify and keep indemnified the Administrators and the
Seller and their respective estates and effects against all actions,
proceedings, claims, demands and costs whatsoever arising directly or
indirectly out of the giving of possession or purported sale of such
items to the Buyer hereunder.
9.9 The Buyer acknowledges that all ROT Chattels are excluded from the sale
under this Agreement but possession of such chattels may be given to the
Buyer at Completion and agrees:
(a) to accept full responsibility for and in respect of the ROT Claims;
and
(b) to satisfy and discharge all of the liabilities of the Seller and/or
the Administrators in respect of the ROT Claims;
(c) to indemnify and keep indemnified the Seller and the Administrators
against all claims demands proceedings losses damages awards costs
charges and expenses brought or made against them or suffered or
incurred by them howsoever as a result of and/or in connection with
all and any ROT Claims.
10 INTELLECTUAL PROPERTY LICENCE
The Buyer hereby grants to the Seller (for itself and its successors and
assigns) a perpetual worldwide non-exclusive royalty-free transferable
licence to use and exploit the Intellectual Property in or in connection
with the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Business and/or the Retained Business and any
variation, extension or development thereof. Without prejudice to the
generality of the foregoing the Seller is expressly permitted to transfer
and/or sub-licence this licence (on such terms as the Seller considers
appropriate) to any purchaser(s) of the whole or any part or parts of any
such businesses in order to confer upon any such purchaser(s) the benefit
of it.
11 CONTINUING THE BUSINESS
11.1 The Buyer acknowledges that the Seller may not be entitled to assign, and
shall not be entitled to novate the Lydney Customer Contracts and to that
extent does not purport to do so.
11.2 The Seller shall, for a period of 12 months from the Transfer Date, use
reasonable efforts to co-operate with the Buyer in trying to persuade the
other parties to any of the Lydney Customer Contracts to have them assigned
or novated to the Buyer, although it is agreed and understood that the
Seller may have little or no influence with such other parties and shall be
under no obligation to make any payments directly or indirectly to such
other parties to persuade them to do so.
11.3 The Buyer undertakes with the Seller and the Administrators at the Buyer's
expense:
(a) if requested to do so by the Seller or the Administrators to complete
in a proper and workmanlike manner and meet all liabilities in
connection with the Lydney Customer Contracts and to indemnify the
Seller and the Administrators against all obligations liabilities,
actions, costs, expenses, claims demands, losses and outgoings of
whatsoever nature or description arising out of or by virtue of either
the Lydney Customer Contracts or of any breach or non-observance by
the Buyer of the Seller's
10
obligations under the Lydney Customer Contracts or of the Buyer's
obligations under this Agreement;
(b) to deal with the Returns in accordance with the rights of any customer
of the Business (that is to say the rights the customer(s) would have
had if the Administrators had not been appointed) and to use its
reasonable endeavours to assist the Seller and the Administrators in
determining the validity of any customer's right to make Returns
provided that the Seller and the Administrators reserve the right:
(i) to deal with all or any of the Returns in their sole discretion;
(ii) to require the Buyer to use its best endeavours to assist the
Seller and the Administrators in selling or otherwise disposing
of all or any of the Returns;
(c) to keep the Seller and the Administrators fully indemnified against
all losses, proceedings, claims, liabilities, costs and expenses
whatsoever in respect of any act omission neglect or default by the
Buyer in connection with the Lydney Property, the Lydney Business, the
Returns, the Supply Contracts or any of them or in respect of the use
of the Lydney Assets or any of them;
(d) to accept delivery or other performance of or under the Supply
Contracts and to and pay the relevant suppliers promptly and fully
therefor.
11.4 The Buyer undertakes not at any time to use the Business Name in connection
with its business.
12 ACCOUNTING FOR THE DEBTS
12.1 The Buyer shall not acquire the Debts which shall remain the property of
the Seller and the Seller shall be solely responsible for collection of the
Debts.
12.2 In the event that the Buyer receives any sums in respect of the Debts at
any time after the Transfer Date, the Buyer undertakes forthwith to pay
over to the Administrators all such monies The Buyer acknowledges that all
such monies would be received by it as trustee for the Seller and that if
for any reason it is not possible to pay any such monies direct to the
Administrators then such monies shall be paid by the Buyer into a separate
bank account.
12.3 For the avoidance of doubt the Buyer acknowledges that all monies owing to
the Seller for goods delivered or services provided and/or invoiced to any
customer of the Business on or before the Transfer Date shall continue to
belong to the Seller and the Buyer shall not be entitled to recover from
the Seller or the Administrators any deposits or payments by customers
prior to the Transfer Date.
13 RECORDS
13.1 If the Seller shall leave any of the Retained Records or any other books,
files or other documents not included in this sale in or on the Lydney
Property or otherwise in the possession of the Buyer then the Buyer hereby
acknowledges and agrees that they are the property of the Seller and will
not be removed from the Lydney Property or, as the case may be, from the
possession of the Buyer and the Buyer shall at all times and from time to
time permit the Seller and/or the Administrators and their respective
servants and agents to have access to such Retained Records, books, files
or other documents in order to inspect deal with or remove the same.
11
13.2 The Buyer shall for a period of not less than 7 years from the Transfer
Date retain all of the Transferred Records in good condition and on a
single site in England and for that period during normal working hours the
Buyer shall free of any charge provide whatever access and copying
facilities the Seller the Administrators or any Liquidator of the Seller
(or their respective servants or agents) may require to the Transferred
Records.
13.3 The Buyer shall make available free of charge to the Seller and the
Administrators for a period of six calendar months from the Transfer Date
office accommodation at the Lydney Property for the use by the Seller
and/or the Administrators and/or their servants and/or agents in connection
with the collection of the Debts and for the storage, or any inspection
removal of dealing with or other matters relating to the Records or any
books, files and other documents of the Seller as are not included in this
sale, and for clerical purposes, together with the assistance of clerical
staff and telephone and photocopying facilities at the Lydney Property.
13.4 For a period of six calendar months from the Transfer Date the Buyer shall
(free of any charge) permit the Administrators and their servants and
agents to input and print out as licensee during normal business hours all
accounting and wages information relating to the Lydney Business which the
Administrators may require from any computer equipment included in the
Lydney Assets or which whilst not included in the Lydney Assets is acquired
by or available to the Buyer and the Buyer agrees not to make any entry in
or use of such equipment or its software which would remove destroy corrupt
prevent or inhibit access to or affect the content of any such information
or equipment.
13.5 The Seller will as soon as reasonably practicable after Completion request
a direction from Customs under section 49(1)(b) VATA that from and after
the Transfer Date the Seller shall be obliged to keep and preserve the VAT
Records. If such a direction is made the Seller shall preserve the VAT
Records for such periods as may be required by law and shall allow the
Buyer and its agents (at the Buyer's expense) access to, and to take copies
of, such records on reasonable notice during normal business hours. If such
direction is not made the Seller will deliver to the Buyer the VAT Records
in which event the Buyer undertakes to preserve for such period as required
by law and to allow the Seller access to and to take copies of such records
on reasonable notice during normal business hours.
14 EXCLUSION OF WARRANTIES
14.1 The Buyer admits that the Buyer has inspected and made all investigations
it wishes concerning the Lydney Property and the Lydney Assets and that the
Buyer enters into this Agreement solely as a result of that inspection and
investigation and on the basis of the terms of this Agreement and not in
reliance upon representations or warranties whether written or oral express
or implied made by or on behalf of the Seller or the Administrators or
their employees or any agents or representatives thereof or any of them.
14.2 No warranty or representation on the part of the Seller or the
Administrators or their staff or any agents or representatives thereof or
any of them as to the title, state, quality, quantity, description or
fitness of the Lydney Property or the Lydney Assets or any of them is given
or to be implied by this Agreement nor by anything said or written by or on
behalf of the Seller or the Administrators or their staff or any agents or
representatives thereof or any of them either before during or subsequent
to the negotiations between the parties hereto.
14.3 So far as it is permissible by law to do so any statutory or common law
warranties, representations guarantees or conditions that might otherwise
be implied as to the title, state, quality, quantity description or fitness
of the Lydney Property or the Lydney Assets or any of them are hereby
expressly excluded.
12
14.4 The Buyer acknowledges that it has satisfied itself, or has had the
opportunity of satisfying itself as to the accuracy of the schedules to
this Agreement and that no error or omission as to the title, state,
quality, quantity, description or fitness of the Lydney Property or the
Lydney Assets or any of them shall invalidate this sale and purchase or be
the subject of any claim by the Buyer.
14.5 The Buyer undertakes to ensure that before it uses on a public road any
motor vehicle of which it takes possession and control at the Transfer Date
the same is roadworthy in accordance with the Road Vehicle (Construction
and Use) Regulations 1986 and that any plant is safe before use. The Buyer
acknowledges that neither the Seller nor the Administrators shall incur any
liability to the Seller in respect of any fault or defect in any of the
Lydney Assets.
14.6 Without in any way affecting the generality of the foregoing and solely to
provide the Buyer with comfort as to the entitlement of the Administrators
to commit the Seller to this Agreement the Administrators and the Seller
hereby confirm to the Buyer that:
(a) Recital (A) to this Agreement is true and correct;
(b) The Administrators were and are appointed in accordance with the terms
of the Insolvency ▇▇▇ ▇▇▇▇ and such appointments have not been
resigned or terminated;
(c) Since 7 February 2006 the Administrators have not executed any
document mortgaging or charging the title (if any) of the Seller to
the Lydney Assets.
15 EXCLUSION OF PERSONAL LIABILITY
The Administrators are party to this Agreement only for the purpose of
receiving the benefit of this declaration and any covenants conditions or
provisions in their favour contained in this Agreement. Neither the
Administrators nor their business organisation or its members or partners
or its or their employees or agents shall incur any personal liability (nor
any liability ranking as an expense of the Administration of the Seller)
howsoever arising under or in connection with this Agreement or the
transaction hereby agreed or under any deed or other document or agreement
entered into pursuant to or in connection with this Agreement.
16 EMPLOYEES
16.1 This Agreement and the transfer of the undertaking and assets of the Lydney
Business effected hereby are intended by the parties hereto to be governed
by the Regulations and the Buyer agrees that it shall be solely responsible
for all claims by and liabilities to every employee referred to in clause
16.2.
16.2 In accordance with the Regulations the contracts of employment of each
employee of the Seller engaged in the Lydney Business shall be
automatically transferred to the Buyer with effect at the latest from the
Transfer Date. The parties do not envisage that any employees of the
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Business or the Retained Business will transfer to the Buyer
and those employees will be retained by the Seller in order for the Seller
to conduct the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Business and the Retained Business.
16.3 If for any reason the Regulations do not effect the automatic transfer to
the Buyer of the contract of employment of any employee of the Seller
engaged in the Lydney Business that employee shall be deemed to have been
dismissed by the Seller at the Transfer Date and re-engaged by the Buyer
with effect therefrom and the Buyer shall be solely responsible for all
claims by and liabilities to every such employee.
13
16.4 Neither the Seller nor the Administrators shall have under or in connection
with this Agreement or any document transaction or matter referred to
herein or therein any liability to the Buyer directly or indirectly
relating to:
(a) the Seller and/or the Administrators for any reason or at any
particular time or at all not having terminated or not having been
able to terminate by reason of redundancy or otherwise the contracts
of employment of some or all of the Seller's employees or former
employees
(b) the Buyer for any reason being or becoming actually or potentially
liable for any redundancy or compensatory or other contribution,
benefit or other payment(s) to or in respect of any employee or former
employee of the Seller or of any other employer and/or the Buyer being
or becoming the employer of any such person.
16.5 The Buyer will indemnify and keep indemnified each of the Seller and the
Administrators against all claims, costs, demands, liabilities, actions and
expenses of any nature whatsoever and howsoever arising in connection with
any claim for or in respect of wrongful or unfair dismissal or redundancy
or otherwise in respect of every employee or former employee of the Seller
or their employment or former employment by the Seller.
17 APPORTIONMENTS
There shall be no apportionments as between the Seller, the Administrators
and the Buyer or any third party of any outgoings of any nature in respect
of the Lydney Business or any of the Lydney Assets or any of the Third
Party Items or the Lydney Property.
18 DATA PROTECTION
The Buyer undertakes to comply with the provisions of the Data Protection
▇▇▇ ▇▇▇▇ in processing data held by it in connection with the Lydney
Business and the Lydney Assets sold hereunder and to indemnify the Seller
and the Administrators in respect of any loss liability costs and/or
expenses suffered or incurred by them as a result of any failure so to
comply.
19 PUBLICITY
Save as required by law or any regulatory requirement the Buyer shall not
divulge to any third party (except its professional advisers who shall also
keep the same confidential) any information regarding the existence or
subject matter of this Agreement without the prior written consent of the
Administrators.
20 GUARANTEE
20.1 In consideration of the Seller entering into this Agreement the Guarantor
unconditionally and irrevocably guarantees to the Seller and/or the
Administrators as a primary obligation and debt of the Guarantor the due
and punctual payment by the Buyer of all sums due under this Agreement and
the due and punctual performance of all obligations of the Buyer under this
Agreement and undertakes with the Seller and/or the Administrators that if
and whenever the Buyer shall be in default of any of its obligations under
this Agreement the Guarantor will forthwith make good the default as if the
Guarantor instead of the Buyer was expressed to be the primary obligor
under this Agreement and notwithstanding any indulgence granted by the
Seller and/or the Administrators to the Buyer.
14
21 NOTICES
21.1 Any notice or demand to be made hereunder shall be made in writing in the
English language and may be served at the address of the relevant party
shown at the commencement of this Agreement or in the case of a company at
the registered office for the time being of the company to be served or to
such other address in England as the person to be served may have notified
in substitution for such address or registered office.
21.2 Service may be effected either by hand delivery, facsimile or by first
class post. If effected by delivery by hand service shall be deemed to have
taken place on delivery. If effected by facsimile, service shall be deemed
to have taken place upon transmission and if effected by first class post,
service shall be deemed to have taken place at noon on the business day
following posting.
21.3 In proving service by first class post, it shall be sufficient to prove
that an envelope correctly addressed and duly stamped containing the
item(s) to be served was duly placed into the post.
21.4 In proving service by fax, it shall be sufficient to prove that the fax was
properly addressed and despatched and confirmation of full transmission was
received.
21.5 Emailed notices are not effective for the purpose of this Agreement.
22 GENERAL
22.1 ENTIRE AGREEMENT: This Agreement and the documents to be entered into
pursuant to its terms together represent the entire agreement between the
parties with regard to their subject matter.
22.2 SET-OFF: All payments to be made or procured and all indemnities to be
afforded by the Buyer and/or the Guarantor to the Seller or to any other
person under or in connection with this Agreement shall be paid or afforded
or procured to be paid or afforded without assertion of any lien equity
set-off or counterclaim whatsoever by or on behalf of the Buyer and/or the
Guarantor and all such payments hereunder to the Seller shall be effected
by the payment of cleared sterling funds.
22.3 DEFAULT INTEREST: In default of payment on its due date of any sum payable
hereunder to the Seller and/or the Administrators the Buyer shall pay
interest to the Seller and/or the Administrators on the amount outstanding
for the time being at the rate of 4% per annum above the base lending rate
of The Bank of England for the time being in force from the date on which
such sum(s) became due until payment of such sum(s) in full.
22.4 RESCISSION: The Buyer acknowledges that if it shall be found that the
Seller does not have title or unencumbered title to any or all of the
Lydney Assets or the Lydney Property or if the Buyer is required to
relinquish title and/or possession of all or any of the Lydney Assets or
any Third Party Items or the Lydney Property this shall not be a ground or
grounds for rescinding avoiding or varying any or all of the provisions of
this Agreement or for the recovery from the Administrators or the Seller of
any or all of the purchase price payable or paid by the Buyer hereunder or
of any other form of compensation by way of damages or otherwise.
22.5 INDEMNITY: The Buyer will indemnify and keep indemnified the Administrators
and the Seller and their respective estates and effects against all
actions, proceedings, claims, demands and costs whatsoever arising directly
or indirectly out of any breach or non-observance by the Buyer of the
obligations set out in this Agreement.
15
22.6 FAIRNESS: It is agreed by the Buyer that the terms and conditions of this
Agreement and the exclusions and limitations herein contained are fair and
reasonable in the context of a sale of the assets of a company in
administration bearing in mind:
(a) that the Buyer agrees and acknowledges that it has entered into this
Agreement on the basis of the limited information made available to it
and that the Lydney Assets, the Lydney Property and the respective
titles thereto are sold in their present state and condition and that
the Buyer must rely and has relied upon its own opinion and
professional advice in relation to the Lydney Assets, the Lydney
Property and the said titles thereto and to the terms of this
Agreement the Buyer and its professional advisers having been given
the opportunity to inspect the same;
(b) that the consideration payable hereunder has been agreed on the basis
that it takes into account the risk to the Buyer represented by the
fact that all the parties believe the said terms and conditions,
exclusions and limitations will be recognised as fully effective by
the Courts.
22.7 SURVIVAL: All the provisions of this Agreement shall so far as they are
capable of being performed and observed remain in full force and effect
notwithstanding completion of any part of this Agreement except in respect
of those matters then already performed.
22.8 VARIATION: No variation of this Agreement shall be effective unless it is
in writing and is signed by or on behalf of each of the parties.
22.9 WAIVER: No failure to exercise and no delay in exercising on the part of
the Seller or the Administrators 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.
22.10 SEVERABILITY: In the event that any clause of this Agreement shall be held
to be unenforceable by any court of competent jurisdiction the same shall
cease to be binding on the parties but the remaining provisions of this
Agreement shall continue in full force and effect.
22.11 COUNTERPARTS: This Agreement may be executed in any number of counterparts
and by the parties on separate counterparts, all of which taken together
shall constitute one and the same instrument.
22.12 THIRD PARTY RIGHTS: Unless this Agreement expressly states otherwise:
(a) a person who is not a party to this Agreement has no right to enforce
any of its terms under the Contracts (Rights of Third Parties) ▇▇▇
▇▇▇▇;
(b) if a person who is not a party to this Agreement is stated to have the
right to enforce its terms under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇, the parties may vary this Agreement (and any
documents entered into pursuant to or in connection with it) without
the consent of that person.
23 GOVERNING LAW AND JURISDICTION
23.1 This Agreement is governed by and shall be interpreted in accordance with
English Law.
23.2 Each party irrevocably submits to the non-exclusive jurisdiction of the
English courts in relation to all matters arising out of or in connection
with this Agreement.
16
23.3 The Guarantor appoints ▇▇▇▇▇▇ ▇▇▇▇▇ of ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(PROCESS AGENT) as its agent for service of any document initiating or
otherwise connected with any court proceedings in relation to any matter
arising out of or in connection with this Agreement. Any such document
shall be validly served on the Guarantor:
(a) by being sent by pre-paid first class post to or delivered to the
Process Agent or left at the Process Agent's address set out in this
clause; or
(b) in any other manner permitted by law.
23.4 Each party undertakes not to contest the enforcement against it of any
judgment of the English courts on the ground that those courts did not have
jurisdiction over it or, in the case of, the Guarantor, on the ground that
service of any document which complied with clause 23.3 was invalid,
ineffective or deficient in any way.
SIGNED BY the parties or their duly authorised representatives the day and year
first before written.
17
SCHEDULE 1
THE LYDNEY PROPERTY
PART I - THE LYDNEY PROPERTY
FREEHOLD (THE LYDNEY PROPERTY)
ADDRESS TITLE NUMBER(S)
------------------------------ ---------------
▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ GR176926, GR167055, GR170846
18
PART II - SPECIAL CONDITIONS - THE LYDNEY PROPERTY
1 The Lydney Property is registered at the Land Registry under the Title
Numbers listed in Part I of Schedule 1 and the title to the Lydney Property
shall consist of official copy entries of the register as at 2006 and of
the filed plan and such other documents (if any) as may have been made
available to the Buyer for inspection prior to the date hereof except
charges or financial encumbrances which are to be discharged or overridden
at or before Completion.
2 The Lydney Property is sold subject to all covenants conditions agreements
declarations exceptions reservations stipulations rights charges provisions
and all other matters of a like nature whether or not specified in the
office copy entries of the register or other documents relating to the
Lydney Property to which the Lydney Property or any part thereof or the
Seller as owner thereof is subject and for the purpose of affording to the
Seller and the Administrators a full and sufficient indemnity the Buyer
agrees that it will enter into a covenant in the transfer of the Lydney
Property on behalf of itself and its successors in title thereafter to
observe and perform all the said covenants conditions agreements
declarations exceptions reservations stipulations rights charges provisions
and other matters and to indemnify and keep indemnified the Seller and the
Administrators and their respective estates and effects against all actions
proceedings costs claims or demands whatsoever in respect of any breach
non-performance or non observance of all or any of the same.
3 The Standard Conditions as hereinafter further varied shall apply to the
sale of the Lydney Property provided that in the event of any conflict
between the Standard Conditions and the conditions contained in the main
body of this Agreement then the conditions contained in the main body of
this Agreement shall prevail.
3.1 Standard Conditions 3.1.1, 3.1.3, 3.3.2(a), 3.3.2(b), and 3.3.2(c), 4.1,
4.2.3, 4.3.2, 4.5.2, 4.5.5, 5.1.1, 5.1.2(a), 5.2.2(e), 5.2.7, 7.1.1, 7.1.2,
7.1.3, 7.6.3, 8.1.3, 8.2.4, 8.3.2(a) and 8.3.4 shall not apply.
3.2 In Standard Condition 7.3.4 the last sentence thereof shall be deleted.
3.3 In Standard Condition 7.6.2(a) the words "with accrued interest" shall be
deleted.
3.4 In Standard Condition 7.6.2(b) the words "at the sellers expense" shall be
deleted.
4 Subject to clause 4.1 of this clause the transfer of the Lydney Property by
the Seller to the Buyer shall be in the form set out in Part III of this
Schedule.
5 The title to the Lydney Property having been deduced to and made available
for inspection and investigated by or otherwise known to the Buyer the
Buyer shall be deemed to have satisfied itself as to the same and shall not
be entitled to raise any objection to or requisition on the Seller's title
to the Lydney Property.
6 Without prejudice to the generality of the Standard Conditions (as varied
by this Agreement) and the provisions of this Agreement the Lydney Property
is sold subject to:
6.1 All town planning and other schemes orders notices restrictions charges
agreements requirements resolutions of and/or notices under the Town and
Country Planning Acts or by any local or other competent authority whether
all or any of the same shall have been served or intimated before or after
the Transfer Date and the Buyer shall be responsible at its own cost for
compliance with all or any of the same.
19
6.2 The permitted use of the Lydney Property for the purposes of enactments
from time to time in force relating to or arising under the Town and
Country Planning Acts and the Buyer shall not raise any objection to or
requisition on such use.
6.3 All matters disclosed or reasonably to be expected to be disclosed by
searches and as a result of enquiries formal or informal and whether made
in person by writing or orally by or for the Buyer or which a prudent Buyer
ought to make.
6.4 All overriding interests as defined in Section 70(1) Land Registration Act
1925 whether or not registered at the Transfer Date.
6.5 All other (if any) tenancies licences leases agreements occupations
wayleaves rights easements and quasi-easements upon whatever terms existing
on or before the Transfer Date whether created formally or informally or
whether or not all or any of the same have been disclosed by the Seller or
the Administrators on or before the Transfer Date so far as all or any of
the same remain in force and affect the Lydney Property or any part
thereof. No warranty or representation is made by or on behalf of the
Administrators or the Seller as to the validity of the said tenancies
licences leases agreements occupations rights easements or quasi easements
or as to whether payment of rent or any other monies payable thereunder is
up to date or as to the tenant or other occupant thereunder.
6.6 All matters contained or referred to in any title deeds and documents
insofar as all or any of the same remain in force and affect the Lydney
Property. Save any subsisting charges or financial encumbrances.
7 The Lydney Property is sold in its actual condition and state of repair and
the Buyer shall be deemed to have surveyed and inspected the same and shall
purchase the same or be deemed to have purchased the same with full
knowledge of its actual condition and state of repair.
8 There is expressly excluded from this sale any claim under any insurance
policy or policies or any monies paid or payable thereunder arising from
any act or event occurring on or arising out of the Lydney Property on or
before the Transfer Date.
9 Neither the Seller nor the Administrators shall be required to transfer the
Lydney Property to any person or party other than the Buyer nor in more
than one lot nor at more than the purchase price payable for the Lydney
Property under the terms of this Agreement nor at a price divided between
different parts of the Lydney Property.
10 All representations warranties guarantees and conditions express or implied
statutory or otherwise in respect of the Lydney Property or the right title
and interest of the Seller or the Administrators therein are expressly
excluded insofar as they are lawfully able to be so excluded (including
without limitation warranties guarantees and conditions as to title quiet
possession and description). In particular but without prejudice to the
generality of the foregoing.
10.1 No warranty or representation is given by or on behalf of the
Administrators or the Seller as to the boundaries of the Lydney Property
and all (if any) measurements and areas plans drawings or photographs given
or produced in respect of the Lydney Property are approximate and for
identification purposes only without any guarantee as to their accuracy.
10.2 No warranty or representation is given by or on behalf of either the
Administrators or the Seller that all or any of the covenants conditions
agreements declarations and provisions and other matters to which the
Lydney Property are subject have been complied with.
20
10.3 No warranty or representation is given by or on behalf of the
Administrators or the Seller as to any matter existing or arising under the
Town and Country Planning Acts affecting the Lydney Property or its
permitted use.
11 The Buyer hereby agrees to be responsible in every respect for all or any
registrations at HM Land Registry of the title of the Seller and/or the
Buyer to the Lydney Property and for all applications and requisitions
relating to such registrations. Neither the Seller nor the Administrators
shall be under any obligation to the Buyer or its successors in title to
the Lydney Property to register at HM Land Registry any title to the Lydney
Property or to deal with or otherwise satisfy any requisitions or other
matters which may be raised by HM Land Registry and/or the Buyer and/or its
successors in title to the Lydney Property relating to or in any way
arising out of any such registrations or applications.
21
PART III - THE TRANSFERS - LYDNEY PROPERTY
(Please see attached)
22
PART IV - DETAILS OF THE CHARGES TO BE RELEASED - THE LYDNEY PROPERTY
(Please see attached)
23
SCHEDULE 2
THE REGISTERED TRADEMARKS
(SEE ATTACHED)
24
SCHEDULE 3
THE PATENTS
25
SCHEDULE 4
THE PLANT
(See attached list)
26
SCHEDULE 5
THE THIRD PARTY ITEMS
(See attached list)
27
SCHEDULE 6
THE GERMAN CONTRACTS
(See attached list)
28
SCHEDULE 7
SALES AGENCY AGREEMENTS
29
SIGNED by ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ for N.J. Dargon
--------------------------------- ) /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
as Joint Administrator acting without ) pp ▇▇▇▇ ▇▇▇▇▇
personal liability for and on behalf )
of J R CROMPTON LIMITED in the )
presence of: )
Witness
Signature /s/ ▇. ▇▇▇▇▇▇▇
---------------------------
Name ▇. ▇▇▇▇▇▇▇
--------------------------------
Address ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Manchester
-----------------------------
Occupation Solicitor
--------------------------
SIGNED by ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ for N.J. Dargon
-------------------------------- ) /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
on behalf of himself and ) pp ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ in the )
presence of: )
Witness
Signature /s/ ▇. ▇▇▇▇▇▇▇
---------------------------
Name ▇. ▇▇▇▇▇▇▇
--------------------------------
Address As Above
-----------------------------
-----------------------------
Occupation
--------------------------
SIGNED by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------- ) /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Director for and on behalf of )
Glatfelter-UK Limited in the )
presence of: )
Witness
Signature /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Address ▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
-----------------------------
▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇
-----------------------------
Occupation General Counsel
--------------------------
30
SIGNED by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇
--------------------------- ) /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇
Director for and on behalf of the )
said P.H. ▇▇▇▇▇▇▇▇▇▇ Company in )
the presence of: )
Witness
Signature /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Address ▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
-----------------------------
▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇
-----------------------------
Occupation General Counsel
-------------------------
31