DATED 1999
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(1) XXXXX and XXXX XXXXX AND OTHERS
(2) SFX ENTERTAINMENT, INC.
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SHARE PURCHASE AGREEMENT
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Xxxxx & XxXxxxxx
000 Xxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone: (0000) 000 0000
Fax: (0000) 000 0000
Ref: TEDG/HG
CONTENTS
CLAUSES PAGES
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1. Definitions and Interpretation....................................................................1
2. Sale of Sale Shares...............................................................................8
3. Consideration.....................................................................................9
4. Consideration Shares..............................................................................9
5. Condition and Completion.........................................................................15
6. Completion Accounts..............................................................................22
7. Adjustment of Consideration and Deferred Consideration...........................................23
8. Restriction of Vendors...........................................................................25
9. Warranties.......................................................................................27
10. Covenant in Respect of Tax.......................................................................35
11. Pensions.........................................................................................47
12. Indemnities......................................................................................49
13. estriction on Announcements and
Confidentiality of Information Received by the Vendors...........................................50
14. Costs............................................................................................50
15. General..........................................................................................51
16. Notices..........................................................................................52
17. Agent for Service................................................................................53
18. Governing Law and Submission to Jurisdiction.....................................................54
SCHEDULE 1
The Vendors......................................................................................55
SCHEDULE 2
Details of the Company...........................................................................56
SCHEDULE 3
The Subsidiaries.................................................................................57
SCHEDULE 4
Part 1...........................................................................................70
The Properties...................................................................................70
Part 2...........................................................................................79
Certificates of Title............................................................................79
SCHEDULE 5
Part 1...........................................................................................80
Completion Accounts..............................................................................80
Part 2...........................................................................................83
Working Capital Statement........................................................................83
SCHEDULE 6
Warranties.......................................................................................85
SCHEDULE 7
Part 1 Pension Warranties.......................................................................110
Part 2 Form of Deed of Amendment................................................................114
DATE: 1999
PARTIES:
(1) The persons whose names are set out in Column 1 of Schedule 1 (the
"Vendors").
(2) SFX ENTERTAINMENT, INC., a company incorporated in the state of
Delaware, United States of America whose principal place of business is
at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Xxxxxx Xxxxxx of America
(the "Purchaser").
RECITALS:
(A) The Vendors are the registered holders and except as otherwise stated
herein beneficial owners of all of the issued shares in the capital of
Apollo Leisure Group Limited, particulars of which are set out in
Schedule 2.
(B) The Vendors wish to sell and the Purchaser wishes to purchase and
procure the purchase by a subsidiary of the Purchaser ("SFX UK") of the
said shares on the terms and conditions set out in this Agreement.
TERMS AGREED:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement where the context so admits the following words and
expressions shall have the following meanings:
"Accounting Date" 28 November 1998;
"Accounts" the audited consolidated financial statements
of the Company and of each of the Subsidiaries
for the accounting reference period which
ended on the Accounting Date (each such
financial statement comprising a balance
sheet, profit and loss account, cash flow
statement, notes and directors' and auditors'
report) and the consolidated profit and loss
account and consolidated balance sheet of the
Company and the Subsidiaries as at and for the
period ending on the Accounting Date copies of
which are annexed to the Disclosure Letter;
"Associates" any person, firm or company which is a
connected person (as defined in Section 839
Taxes Act) of the Vendors (or any of them), or
which is an associated company of the Vendors
(or any of them) within the meaning of Section
416 Taxes Act (but as if in sub-section (2) of
that Section there was substituted for the
words "the greater part" wherever they appear
the words "twenty five per cent or more");
1
"Auditors" Xxxxx Partnership;
"Xxxxx Xxxxxxx Xxxxx Xxxxxxx Corporation Limited, a company
Corporation" incorporated in England with registered number
3570610, whose registered office is at 000
Xxxxxxx Xxxxxx, Xxxxxx X0X 0XX;
"Certificates" the certificates of title in respect of the
properties that are listed in Part 2 of
Schedule 4;
"CAA" the Capital Allowances Xxx 0000;
"CCL" CCL Leisure Limited, a company incorporated in
England with registered number 2227126, whose
registered office is at Xxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxx, Xxxxxx XX0 0XX;
"CCL Group" CCL and its subsidiary undertakings;
"Company" Apollo Leisure Group Limited, details of which
are set out in Schedule 2;
"Companies Acts" the Companies Xxx 0000 and the Companies Xxx
0000 and the former Companies Acts within the
meaning of Section 735(1)(c) of the Companies
Xxx 0000;
"Completion" completion of the sale and purchase of the
Sale Shares as specified in clauses 5.4 to
5.7;
"Completion Accounts" the consolidated balance sheet of the Group
prepared as at the Completion Accounts Date
and the consolidated profit and loss account
of the Group for the period from the
Accounting Date to the Completion Accounts
Date, to be prepared and agreed or determined
in accordance with the provisions of clause 6;
"Completion Accounts close of business on 7 August 1999 (except in
Date" relation to the CCL Group where the relevant
date will be the close of business on 1 August
1999) if Completion occurs prior to 20 August
1999 and close of business on 4 September 1999
(except in relation to the CCL Group where the
relevant date will be the close of business on
1 September 1999) if Completion occurs on or
after 20 August 1999;
"Completion Date" the sixth business day after the date on which
the Condition is satisfied, provided that if
the Completion Date would fall after 20 August
1999 Completion shall be deferred until 1
September 1999, or such later date as the
parties may agree;
"Condition" the condition set out in clause 5.2;
2
"Confidential know-how, trade secrets and other information
Information" of a proprietary or confidential nature,
wherever in the world protectable;
"Consideration" the amount specified in clause 3.1;
"Consideration Shares" 979,667 shares of Class A common stock, par
value $0.01 per share, of the Purchaser,
forming the Share Consideration;
"Current Assets" the aggregate of the amount of the cash
balances as recorded in the books of the
Group, stock (consumables and goods for sale),
debtors, pre-payments, accrued income, assets
for resale and investments of the Group at the
Completion Accounts Dates as shown in the
Completion Accounts;
"Current Liabilities" the aggregate of the amount of bank
overdrafts, bank and other loans (falling due
within one year of Completion), hire purchase
creditors, trade creditors, corporation tax
(not including deferred taxation), other
taxation and social security creditors due
within one year of Completion, accruals and
deferred income (not including deferred grants
received) and other creditors of the Group at
the Completion Accounts Date falling due
within one year of Completion as shown in the
Completion Accounts;
"DCG Trustees" Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx Xxxxx and Xxxxx
Xxxx Xxxxx as Trustees of the Xxxxx Xxxxxxxx
Xxxxx Accumulation and Maintenance Trust;
"DCR Trustees" Xxxxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx Xxxxxx and
Xxxx Xxxxxxx Xxxx as trustees of the Xxxxx
Xxxxxxx Xxxxxx Interest in Possession
Settlement;
"Deferred Consideration" an amount equal to the amounts received by any
member of the Group on the sale of the
Deferred Consideration Properties which takes
place within 12 months of Completion as
adjusted for the aggregate amount (if any) of
the operating profit and loss made by the
business carried on at any such property
between the Completion Date and the date of
the sale of the relevant property but less:
(a) all associated reasonable selling costs;
(b) any corporation tax payable on the
associated chargeable gain as calculated
in accordance with the TCGA (except to
the extent that such gains
3
may be deferred under roll-over relief
provisions);
(c) all reasonable costs expended on the
Deferred Consideration Properties
between the Completion Date and the date
of sale of the relevant property as
agreed between the parties, such
agreement not to be unreasonably
withheld; and
(d) an amount equal to the stamp duty (or
stamp duty reserve tax) paid by the
Purchaser (and not repaid) in respect of
the Sale Shares which would not have
been payable if this agreement had not
required the Deferred Consideration to
be paid;
"Deferred Consideration the assets described in paragraph (ii) of Part
Properties" 2 of Schedule 5;
"Directors" the persons listed as directors of the Company
in Schedule 2;
"Disclosure Letter" the letter of today's date from the Vendors to
the Purchaser in the approved terms;
"Employment Law" all and any laws, common law, statutes,
directives, recommendations, regulations,
notices, codes of practice, guidance notes,
judgements, decrees or orders, whether of the
European Community, the United Kingdom or such
other law as may be applicable, relating to or
connected with the employment of employees and
their health and safety at work or the use of
or engagement of temporary workers, agency
workers, contract workers or other workers
where the relationship is not one of
employment in their health and safety at work;
"Exchange Rate" the prevailing exchange rate applicable to the
amount of Sterling in relation to the US
dollar by reference to the middle-market rates
quoted by National Westminster Bank plc;
"Group" the group of companies comprising the Company,
its Subsidiaries, Xxxxx Xxxxxxx Corporation
and Nederlander Dominion and the expression
"member of the Group" shall be construed
accordingly;
"Hazardous Substances" all substances of whatever description which
may cause or have a harmful effect on the
environment or the health of man or any other
living organism including, without limitation,
asbestos, petroleum, petroleum by products and
polychlorinated biphenyls and which in their
present state, condition and location would be
required to be removed by any competent
authority under the provisions
4
of any United Kingdom, Irish laws or
legislation enacted at the Completion Date and
applying to the legal jurisdiction in which
the Properties are located or any regulations
made thereunder, including, for the avoidance
of doubt, under the powers introduced by
Section 57 and paragraphs 161 and 162 of
Schedule 22 of the Environment Xxx 0000;.
"IHTA" the Inheritance Tax Xxx 0000;
"Intellectual Property" includes Confidential Information, patents,
registered designs, copyrights, rights in
databases, design rights, topography rights,
trade marks, business names, registrations of
and applications to register any of the
aforesaid items, rights in the nature of any
of the aforesaid items in any country, rights
in the nature of unfair competition rights and
rights to xxx for passing off, in each case
wherever in the world enforceable;
"Loan Notes" the loan notes guaranteed by HSBC or Royal
Bank of Scotland to be issued to the Vendors
by the Purchaser and SFX UK in the approved
terms;
"Loan Note the amount of seventy nine million two hundred
Consideration" and fifty thousand pounds ((pounds sterling)
79,250,000), as adjusted in accordance with
clause 7;
"Long Stop Date" 5:00pm on 6 September 1999 or such other date
as the parties may agree;
"Long Term Debt" the aggregate amount of bank loans and hire
purchase creditors due over one year
(including finance leases) of the Group
including, for the avoidance of doubt, the
provision for the purchase of the remaining
shares in CCL, at the Completion Accounts
Date, other than Current Liabilities, as shown
in the Completion Accounts;
"Medium Term Plan" the Apollo Leisure Group 5 Year Forecast dated
18 May 1999 included in the bundle of
documents annexed to the Disclosure Letter at
Volume 5, divider 1.4;
"Moral Rights" the rights of an author of a copyright
literary, dramatic, musical or artistic work
or a director of a copyright film ("Work") to
be identified as the author or director (as
the case may be) of the Work, not to have the
Work subjected to derogatory treatment and not
to have a Work falsely attributed to him as
the author or director (as the case may be),
and rights in the nature of the aforesaid
rights, in each case wherever in the world
enforceable;
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"Nederlander Dominion" Nederlander Dominion Limited, a company
incorporated in England with registered number
02583337 whose registered office is at Xxxxxx
House, 000 Xxxxxxxx Xxxx, Xxxxxx XX0 0XX;
"Non-Certificate those of the Properties which are not the
Properties" subject of the Certificates;
"Non-Certificate the information summary in respect of the
Property Summary" Non-Certificate Properties included in the
bundle of documents annexed to the Disclosure
Letter at volume 85;
"participating interest" the meaning defined in section 260 Companies
Xxx 0000;
"Planning Acts" the Town and Country Planning Xxx 0000, the
Planning (Listed Buildings and Conservation
Areas) Xxx 0000, the Planning (Hazardous
Substances) Xxx 0000, the Planning
(Consequential Provisions) Xxx 0000 and the
Planning and Compensation Xxx 0000 and the
Rules, Regulations and Orders made under them
or continued by them as they apply from time
to time;
"Properties" the properties, short particulars of which are
set out in part 1 of Schedule 4;
"Purchaser's
Accountants" Ernst & Young;
"Purchaser's Group" the group of companies comprising the
Purchaser and its subsidiary undertakings from
time to time, and the expression "member of
the Purchaser's Group" shall be construed
accordingly provided that this shall not
include the Group;
"Purchaser's Solicitors" Xxxxx & XxXxxxxx of 000 Xxx Xxxxxx Xxxxxx,
Xxxxxx XX0X 0XX;
"Sale Shares" the 3,000,200 ordinary shares of(pound
sterling)1 each in the capital of the Company;
"SJS Trustees" Xxxxxx Xxxx Xxxxxxxx and Xxxxxx Xxxxxxxx as
trustees of the Xxxxxx Xxxx Xxxxxxxx Interest
in Possession Trust;
"Share Consideration" the amount of twenty five million pounds
((pound sterling)25,000,000) to be satisfied
by the issue of the Consideration Shares;
"Subsidiaries" the subsidiaries and subsidiary undertakings
of the Company which are listed in Schedule 3;
"subsidiary undertaking" the meaning given to that term in section 258
Companies
6
Xxx 0000;
"Tax" all forms of taxation, withholdings, duties,
imposts, levies, social security contributions
and rates imposed by any local, municipal,
governmental, state, federal, or other body in
the United Kingdom or elsewhere and any
interest, penalty, surcharge or fine in
connection therewith;
"Taxes Act" the Income and Corporation Taxes Xxx 0000;
"TCGA" the Taxation of Chargeable Gains Xxx 0000;
"Trusts" the Xxxxx Xxxxxxxx Xxxxx Accumulation and
Maintenance Trust, the Xxxxx Xxxxxxx Xxxxxx
Interest in Possession Settlement and the
Xxxxxx Xxxx Xxxxxxxx Interest in Possession
Trust;
"VATA" the Value Added Tax Xxx 0000;
"Vendors' Solicitors" Gouldens of 00 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX;
"Vendor Trustees" the DCG Trustees, the DCR Trustees and the SJS
Trustees;
"Warranties" the warranties and undertakings contained or
referred to in clause 9 and Schedule 6 and
part 1 of Schedule 7;
"Working Capital" Current Assets less Current Liabilities and
less Long Term Debt, as adjusted in accordance
with Schedule 5 and shown by the Completion
Accounts and the Working Capital Statement;
"Working Capital the statement showing the Working Capital as
Statement" extracted from the Completion Accounts,
prepared and agreed or determined in
accordance with the provisions of clause 6.
1.2 Save where the context otherwise requires words and phrases the
definitions of which are contained or referred to in Part XXVI of the
Companies Xxx 0000 shall be construed as having the meaning thereby
attributed to them.
1.3 Any references, express or implied, to statutes or statutory provisions
shall be construed as references to those statutes or provisions as
respectively amended or re-enacted or as their application is modified
from time to time by other provisions (whether before or after the date
hereof) and shall include any statutes or provisions of which they are
re-enactments (whether with or without modification) and any orders,
regulations, instruments or other subordinate legislation under the
relevant statute or statutory provision. References to sections of
consolidating legislation shall wherever necessary or appropriate in
the context be construed as including references to the sections of the
previous legislation from which the consolidating legislation has been
7
prepared provided that none of the parties' liability will be increased
over and above that on the date of this Agreement.
1.4 References in this Agreement to clauses and schedules are to clauses in
and schedules to this Agreement (unless the context otherwise
requires). The recitals and schedules to this Agreement shall be deemed
to form part of this Agreement.
1.5 Headings are inserted for convenience only and shall not affect the
construction of this Agreement.
1.6 The expression "the Vendors" includes their respective personal
representatives and the expression "the Purchaser" includes its
successors and assigns.
1.7 References to "persons" shall include natural persons, bodies
corporate, unincorporated associations and partnerships (whether or not
having separate legal personality).
1.8 References to writing shall include any methods of reproducing words in
a legible and non-transitory form.
1.9 The masculine gender shall include the feminine and neuter and the
singular number shall include the plural and vice versa.
1.10 All warranties, representations, indemnities, covenants, agreements and
obligations given or entered into by more than one person are given or
entered into jointly and severally except as otherwise provided.
1.11 A document expressed to be "in the approved terms" means a document the
terms of which have been approved by or on behalf of the parties to
this Agreement and a copy of which has been signed for the purposes of
identification by or on behalf of those parties.
2. SALE OF SALE SHARES
2.1 Subject to the terms of this Agreement, each of the Vendors shall sell
with full title guarantee, except to the extent that the Vendor
Trustees do not own the beneficial interest in the Sale Shares set
opposite his or her name in Schedule 1, and the Purchaser shall
purchase and procure the purchase by SFX UK, free from all liens,
charges and encumbrances and together with all rights now or hereafter
attaching to them, including all rights to any dividend or other
distribution declared, made or paid after the date of this Agreement,
the number of Sale Shares set opposite his or her name in column 2 of
Schedule 1.
2.2 Each of the Vendors hereby waives and agrees to procure the waiver of
any restrictions on transfer (including pre-emption rights) which may
exist in relation to the Sale Shares, whether under the articles of
association of the Company or otherwise.
2.3 The covenants implied herein pursuant to the Law of Property
(Miscellaneous Provisions) Act 1994 ("LP(MP)A") shall apply as if the
covenant in section 3(1) of
8
LP(MP)A ended after the word "parties" and as if section 6(2) of
LP(MP)A did not apply.
3. CONSIDERATION
3.1 The consideration payable for the Sale Shares shall be the aggregate of
the Share Consideration, the Deferred Consideration and the Loan Note
Consideration.
3.2 The Share Consideration shall be satisfied by the allotment and issue
of the Consideration Shares in accordance with clause 5.6.3, the Loan
Note Consideration shall be satisfied by the issue of Loan Notes in
accordance with clause 5.6.2 and the Deferred Consideration shall be
satisfied in accordance with clause 7.4.
4. CONSIDERATION SHARES
4.1 Unless otherwise agreed in writing by the Purchaser and provided that
such transferee agrees in writing to be subject to the provisions of
clauses 4 and 9.5, each of the Vendors agrees that he or she will not
offer, sell, pledge, encumber, transfer or otherwise dispose of any of
the Consideration Shares issued and allotted to him or her pursuant to
this Agreement (including any shares he or she receives as a result of
any stock splits, stock dividends, combinations of shares,
recapitalisations or other such events relating to the common stock of
the Purchaser which may occur at any time and from time to time from
and after Completion) or any interest therein during the period of one
year from the Completion Date (the "Non-Disposal Period") and
thereafter unless an exemption from the registration requirements of
the Securities Act of 1933, as amended (the "Securities Act"), is
available or pursuant to an effective registration statement under the
Securities Act and pursuant to an exemption from any applicable United
States state securities or blue sky laws or an effective registration
or other qualification under any applicable United States state
securities or blue sky laws.
4.2 The Purchaser hereby agrees that Xxxxx Xxx Xxxxx and Xxxx Xxxxxxx Xxxxx
shall be entitled to transfer the beneficial and/or legal interest in
their Consideration Shares to a corporate vehicle of their choice
incorporated in the Cayman Islands provided that the said transferee
agrees in writing to be subject to the provisions of clauses 4 and 9.5
and further provided that Xxxx Xxxxxxx Xxxxx or a member of his
immediate family is and will continue to be the ultimate beneficial
owner of the corporate vehicle for the Non-Disposal Period in respect
of 60% of their Consideration Shares and the Option Period in respect
of the Option Shares (as such terms are defined below).
4.3 Each of the Vendors grants to the Purchaser an option (the "Option")
exercisable during the period of two years from the Completion Date
(the "Option Period") to acquire at US$45.31 per share (which price
shall be subject to appropriate adjustment in the event of any stock
splits, stock dividends, combinations of shares, recapitalisations or
other such events relating to the common stock of the Purchaser which
may occur at any time and from time to time from and after Completion),
the number of Consideration Shares that is equal to up to forty percent
(40%) of the Consideration Shares issued and allotted to each Vendor
pursuant to this Agreement (subject to appropriate adjustment in the
event of any stock splits, stock dividends, combinations of shares,
recapitalisations or other such events relating to the common
9
stock of the Purchaser which may occur at any time and from time to
time from and after Completion) (the "Option Shares").
4.4 The Option shall be capable of exercise in whole or in part at any time
or times during the Option Period by service of notice in writing on
the Vendors provided that if the Purchaser does exercise its option in
part, it will treat all the Vendors equally and exercise the Option in
respect of the same proportional percentage of each Vendor's Option
Shares. Service of such notice shall constitute a legally binding
obligation of each of the Vendors to transfer, subject to the Vendors
receiving the consideration due in relation to such shares as set out
in clause 4.3, such number of Option Shares as is specified in the
notice to the Purchaser credited as fully paid with full title
guarantee and free and clear of all liens, charges and encumbrances.
The purchase price shall be payable to the Vendors' Solicitors in cash
within thirty (30) days of the exercise of the Option against delivery
of certificates for the Option Shares to be repurchased and the
Purchaser shall not be concerned to see to the distribution of the
monies so paid.
4.5 Notwithstanding any other provision of this clause 4 other than clause
4.2, whilst the Option remains exercisable in whole or in part, each of
the Vendors undertakes that he or she shall not offer, sell, pledge,
encumber, transfer or otherwise dispose of the Option Shares (including
any shares he or she receives as a result of any stock splits, stock
dividends, combinations of shares, recapitalisations or other such
events relating to the common stock of the Purchaser which may occur at
any time and from time to time from and after Completion) or any
interest therein unless otherwise agreed to in writing by the Purchaser
and provided that such transferee agrees in writing to be subject to
the provisions of this clause 4 and 9.5.
4.6 Each of the Vendors understands and acknowledges that:
4.6.1 the Consideration Shares are being distributed by the
Purchaser pursuant to the terms of Regulation S promulgated
under the Securities Act ("Regulation S"), which permits
securities to be sold to non-U.S. Persons in "offshore
transactions" (as defined in Regulation S), subject to certain
terms and conditions; and
4.6.2 the Consideration Shares have not been registered under the
Securities Act and may not be offered or sold in the United
States or to, or for the account or benefit of, any U.S.
Person (as defined in Regulation S) unless such securities are
registered under the Securities Act or such offer or sale is
made pursuant to an exemption from the registration
requirements of the Securities Act.
4.7 Each of the Vendors agrees that during the Non-Disposal Period, each of
the Vendors shall not engage in any activity for the purpose of, or
which may reasonably be expected to have the effect of, conditioning
the market in the United States for the Consideration Shares.
4.8 Each of the Vendors agrees that from the date hereof until the
expiration of the Non-Disposal Period he or she shall not with respect
to the Consideration Shares enter into any short sale, sell or purchase
any option or other derivative security, enter into any swap, or enter
into any other transaction which would have the effect of, directly or
indirectly, in whole or in part, hedging the economic or investment
risk of such
10
Vendor's investment in the Consideration Shares. Each of the Vendors
represents that no such hedging position is currently in effect.
4.9 Each of the Vendors agrees that the certificates for the Consideration
Shares to be received shall bear the following legend:
"The Shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), or with any state securities commission,
and may not be offered, sold, pledged, transferred, encumbered
or disposed of by the holder except in accordance with the
provisions of Regulation S under the Securities Act, pursuant
to registration under the Securities Act, or pursuant to an
available exemption from registration; and that hedging
transactions involving those securities may not be conducted
unless in compliance with the Securities Act".
During the twelve month period following the Non-Disposal Period, the
Purchaser will cause the removal of such legend upon receipt of an
opinion of United States counsel, or other evidence, in form and
substance reasonably satisfactory to the Purchaser, to the effect that
the specified Consideration Shares may be sold in brokers transactions
under Rule 144. After the Option Period, upon request of any Vendor,
the Purchaser will cause the removal of such legend from any
Consideration Shares held by the Vendors.
In addition, each of the Vendors understands that the Purchaser's
transfer agents will not register any transfer of the Consideration
Shares during the Non-Disposal Period and the Option Period, as
applicable, and agrees that the Purchaser may place stop transfer
orders with its transfer agents with respect to such certificates.
4.10 Each of the Vendors agrees that certificates for the Consideration
Shares to be received on Completion shall bear the following legend in
addition to the legend set forth above for the duration of the
Non-Disposal Period in respect of all of his or her Consideration
Shares and the Option Period in respect of 40% of his or her
Consideration Shares, as applicable:
"In addition to and not in limitation of the restriction set
forth above, the Shares represented by this certificate shall
be subject to the terms of the Share Purchase Agreement dated
3 August 1999 between the shareholders of Apollo Leisure Group
Limited and SFX Entertainment, Inc. (the "Company") which
includes provisions affecting the free transferability of the
shares represented by this certificate. HOLDERS AND/OR
PROSPECTIVE PURCHASERS OR TRANSFEREES OF INTERESTS IN THESE
SHARES SHOULD BE AWARE THAT THE COMPANY, UNDER CERTAIN
CIRCUMSTANCES, WILL HAVE THE ABSOLUTE RIGHT, WITHOUT NOTICE TO
THE HOLDER, TO PREVENT THE TRANSFER OF OR CANCEL THE SHARES
REPRESENTED BY THIS CERTIFICATE ON THE BOOKS OF THE COMPANY."
Upon the request of a Vendor after the Option Period, the Purchaser
will cause the removal of such legend from any Consideration Shares
then held by the Vendors.
11
4.11 Each of the Vendors acknowledges that the Consideration Shares will be
"restricted securities" as defined in Rule 144 under the Securities Act
and may be resold in the U.S. only after the Non-Disposal Period and
only pursuant to the requirements of Rule 144 or otherwise in reliance
upon an exemption from registration under the Securities Act.
4.12 Each of the Vendors hereby warrants and undertakes to and with the
Purchaser that:
4.12.1 he or she has downloaded to paper format from the internet
website maintained by the United States Securities and
Exchange Commission ("SEC") at xxxx://xxx.xxx.xxx and reviewed
the most recent annual report to stockholders of the
Purchaser, the latest available annual report of the Purchaser
on Form 10-K, as amended; any of the Purchaser's quarterly
reports on Form 10-Q filed since such reports; any of the
Purchaser's filings on Form 8-K since such reports; and has
reviewed a statement of certain risk factors associated with
investment in the Consideration Shares as set out in the
Purchaser's Form 10-K, as amended (the "Risk Factors") and in
all cases consents to his or her receipt of such reports to
the extent received in this manner;
4.12.2 he or she was provided with the opportunity to ask questions
of and receive answers from the Purchaser or its
representative, concerning the operations, business and
financial condition of the Purchaser, and all such questions
have been answered to his or her full satisfaction and any
information necessary to verify such responses has been made
available to him or her;
4.12.3 he or she has received such documents, materials and
information as he or she deems necessary or appropriate for
evaluation of the Consideration Shares, and further confirms
that he or she has carefully read and understands these
materials and has made such further investigation as was
deemed appropriate to obtain additional information to verify
the accuracy of such materials;
4.12.4 he or she confirms that the Consideration Shares were not
offered to him or her by any means of general solicitation or
general advertising;
4.12.5 he or she confirms that he has such knowledge and experience
in financial and business matters so that he or she is capable
of evaluating the merits and risks of an investment in the
Consideration Shares and has the capacity to protect his or
her own interests, understands that such investment involves a
high degree of risk, has carefully considered the Risk Factors
before making his decision to make the investment and can bear
the entire economic risk of the investment;
4.12.6 he or she understands that there is no assurance that any
exemption from registration under the Securities Act will be
available and that, even if available, such exemption may not
allow him or her to transfer all or any portion of the
Consideration Shares under the circumstances, in the amounts
or at the times he or she might propose;
12
4.12.7 he or she will be acquiring the Consideration Shares for his
or her own account, for investment purposes only, and not with
a view towards the sale or other distribution thereof, in
whole or in part;
4.12.8 he or she understands that the Consideration Shares have not
been approved or disapproved by the SEC or by any other US
federal or state agency or any UK regulatory authority;
4.12.9 he or she understands that: (i) there are restrictions on the
transferability of the Consideration Shares; (ii) owners of
Consideration Shares have no right to require the
Consideration Shares to be registered under the Securities
Act; and (iii) it may not be possible for him or her to sell
his or her Consideration Shares and accordingly, he or she may
have to hold the Consideration Shares, and bear the entire
economic risk of this investment for an extended period of
time;
4.12.10 he or she is not a U.S. Person; he or she is executing such
undertaking outside the United States; he or she has received
no offer of the Consideration Shares in the United States; and
he or she has made no offer or order to purchase the
Consideration Shares in the United States; and
4.12.11 he or she has not relied upon any information or
representation with regard to the Purchaser or the
Consideration Shares apart from the information in clause
4.14.
4.13 The Purchaser shall prepare and submit to the New York Stock Exchange,
or such other national securities exchange on which the Purchaser's
Class A common stock is principally traded, a listing application
covering the Consideration Shares and shall use its commercially
reasonable efforts to obtain, prior to any permitted sale by a Vendor,
approval for the listing of such Consideration Shares subject to
official notice of issuance. The Vendors shall, without any expenditure
of funds, co-operate fully with the Purchaser with respect to such
listing and any filings made with the SEC by the Purchaser.
4.14 The Purchaser hereby warrants to each of the Vendors as follows:
4.14.1 The Purchaser is a corporation duly organised, validly
existing and in good standing under the laws of the state of
Delaware with full corporate power and corporate authority to
enter into this Agreement and each of the agreements
contemplated hereby to be executed by it and to perform its
obligations hereunder and thereunder.
4.14.2 This Agreement and all documents required to be executed and
delivered by the Purchaser hereunder at Completion have been
or will be duly authorised, executed and delivered on behalf
of the Purchaser. This Agreement and all agreements required
hereunder to be executed and delivered on behalf of the
Purchaser, constitute the legal, valid and binding obligations
of the Purchaser enforceable against it in accordance with
their respective terms, except that enforceability may be
limited by bankruptcy, insolvency, moratorium or other similar
laws of general application affecting the enforceability of
creditors'
13
rights generally or by general principles of equity (whether
applied by a court of law or equity). Neither the execution of
this Agreement or the consummation of the transactions
provided for herein will result in any breach of, acceleration
of, maturity of, or constitute any default under, except to
the extent waived, any indentures, mortgages, promissory
notes, contracts or agreements to which either the Purchaser
is a party or by which it or its properties are bound or will
cause it to violate any applicable legal requirements,
judgement, order or decree of any governmental authority or
any provision of the Certificate of Incorporation or bylaws of
the Purchaser.
4.14.3 The Purchaser has authorised capital stock of (a) 100,000,000
shares of Class A common stock, par value $0.01 per share, of
which 53,705,446 shares were issued and outstanding and no
shares were held as treasury stock as at close of business on
28 July 1999; (b) 10,000,000 shares of Class B common stock,
par value $0.01 per share, of which 2,545,557 were issued and
outstanding as at close of business on 28 July 1999 and (c)
25,000,000 shares of preferred stock, par value $0.01 per
share, of which no shares were issued and outstanding as of
the date hereof. All of the issued shares of common stock of
the Purchaser have been duly authorised and validly issued,
are fully paid and non-assessable and constitute the only
issued and outstanding voting capital shares of the Purchaser.
The Consideration Shares to be exchanged for the Sale Shares
will be issued out of authorised but unissued shares, and
there are no outstanding options, warrants, rights or calls
relating to the Consideration Shares, other than pursuant to
the terms of this Agreement.
4.14.4 Upon delivery of the Consideration Shares in exchange for the
Sale Shares, each of the Vendors will receive good title to
the Consideration Shares allocated to him or her, and the
Consideration Shares will upon issuance in accordance with
this Agreement all be duly authorised and validly issued,
fully paid and non-assessable, not issued in violation of the
pre-emptive rights or other rights of any other shares or
security holder of the Purchaser, free of any restrictions and
encumbrances imposed by the Purchaser except as otherwise
provided in this Agreement or by applicable law, free and
clear of all mortgages, pledges or security interests of
Purchaser and not subject to any agreements or understandings
among any persons with respect to the voting or transfer of
such shares, other than those to which the Vendors or any of
them become or are parties.
4.14.5 The Loan Notes have been or will be duly authorised for
issuance pursuant to this Agreement and, when issued and
delivered pursuant to the provisions of this Agreement, the
Loan Notes will be valid and binding obligations of the
Purchaser subject to bankruptcy, insolvency, moratorium or
other similar laws of general application affecting the
enforceability of creditors' rights generally or by general
principles of equity (whether applied by a court of law or
equity).
4.14.6 The Purchaser has timely filed all reports, schedules, forms,
statements and other documents required to be filed by it with
the SEC pursuant to the reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including material filed pursuant to Sections 13(a) or
14
15(d) (collectively, the "SEC Documents"). As of their
respective dates, the SEC Documents were true, correct and
complete in all material respects in accordance with the
requirements of the Exchange Act and the SEC's regulations
thereunder, and none of the SEC Documents contained any untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances
under which they were made, not misleading.
4.14.7 No broker or finder has been employed by the Purchaser in
consideration with the transactions contemplated hereby.
4.14.8 The Sale Shares that are to be acquired by the Purchaser are
being acquired for investment, for its own account and not
with a view to the resale thereof or any other transaction
which would constitute a "distribution" under the Securities
Act. The Purchaser acknowledges that the Sale Shares have not
been and will not be registered under the Securities Act or
any applicable US state securities or blue sky laws. The
Purchaser has the knowledge and experience in financial and
business matters such that it is capable of evaluating the
merits and risks of the investment by the Purchaser in the
Sale Shares. The Purchaser will not resell or otherwise
dispose of the Sale Shares that it acquires except pursuant to
an effective US registration statement or an exemption from
the registration requirements of the Securities Act and all
other applicable state securities and blue sky laws. The
Purchaser will not resell or otherwise dispose of the Sale
Shares that it acquires in any manner or transaction that will
make the Vendors unable to rely on the exemption from the
Securities Act and all applicable state securities and blue
sky laws on which the Vendors have relied in making the offer
and sale of the Sale Shares hereunder.
4.14.9 The Purchaser is an "accredited investor", as that term is
defined in Rule 501(a) under the Securities Act, and it has
such knowledge and experience in financial and business
matters as make it capable of evaluating the merits and risks
of its purchase of the Sale Shares upon the terms of this
Agreement.
4.14.10 In deciding to enter into and consummate the transactions
contemplated hereby, the Purchaser has relied, as to tax,
securities and other legal matters, on the advice it has
received from its own advisers and experts.
4.14.11 The Purchaser understands that there is no public trading
market for the Sale Shares.
5. CONDITION AND COMPLETION
5.1 From the date of this Agreement until Completion, the Vendors shall not
cause or permit any member of the Group to engage in any practice, take
or refrain from taking any action or enter or refrain from entering
into any transaction outside the ordinary course of business consistent
with prior practice (including with respect to quantity and frequency).
Without limiting the generality of the forgoing, the Vendors shall and
shall procure that each member of the Group shall, from the date of
this Agreement until Completion, subject to the written consent of the
Purchaser, such
15
consent not to be unreasonably withheld or delayed and other than as
disclosed in the Disclosure Letter or otherwise contemplated by the
provisions of this Agreement:
5.1.1 operate the business of the Group only in the ordinary course
of business consistent with prior practice (including with
respect to quantity and frequency);
5.1.2 give the Purchaser and/or any persons authorised by it on
reasonable prior notice reasonable access to the premises and
access to all books, title deeds, records and accounts of the
Group as the Purchaser may reasonably request;
5.1.3 not intentionally or deliberately take any action other than
in the ordinary course of business that would have the effect
of increasing the amount of Working Capital for the purposes
of clause 7 or would result in an increased payment being made
to them under clause 10;
5.1.4 not enter into or vary any contract nor assume any liability
which is outside the ordinary or proper course of its business
or which is long term, unusual or onerous and, in this
context, "long term" means six (6) months or longer;
5.1.5 not enter into any capital commitment in a sum in excess of
(pounds sterling)250,000 (whether by way of purchase, lease,
hire purchase or otherwise);
5.1.6 not make any change in the nature, scope or organisation of
its business nor dispose of the whole of its undertaking or
property or a substantial part thereof;
5.1.7 not acquire or form any subsidiary nor acquire any shares in
any company nor acquire the whole or any substantial part of
the undertaking assets or business of any other company or any
firm or person or enter into any joint venture or partnership
with any other person;
5.1.8 not make any loans or grant any credit (other than credit
given in the normal course of trading and advances made to
employees against expenses incurred by them on its behalf);
5.1.9 not borrow any money (except borrowings under its existing
facilities and routine borrowings in the ordinary course of
business);
5.1.10 not enter into any guarantee, indemnity or surety;
5.1.11 other than artists and performers not employ or engage, or
make any offer of employment or engagement to, any employee or
consultant whose annual remuneration exceeds (pounds
sterling)50,000 or make any changes other than in the ordinary
course of business (whether immediate, conditional or
prospective) in the terms of employment (including, without
limitation, in the amount or basis of the emoluments or
benefits) of any of its employees or in any arrangements with
its consultants;
16
5.1.12 not enter into any agreement, arrangement or understanding
with any trade union, works council, staff association or
other employee representative body in respect of any of the
employees or directors of the Company other than in the
ordinary course of business;
5.1.13 not acquire or dispose of or grant any option or right of
pre-emption in respect of any material asset or any interest
nor give nor receive any service otherwise than at market
value other than in the ordinary course of business;
5.1.14 not acquire or dispose of any freehold or leasehold property
or grant any lease or third party right in respect of any of
the Properties other than in the ordinary course of business;
5.1.15 not negotiate or agree any review of rent in respect of any
lease of any of the Properties in excess of (pounds
sterling)100,000 per annum;
5.1.16 not enter into any leasing, hire purchase agreement or any
agreement or arrangements for payment on deferred terms in
excess of (pounds sterling)100,000 per annum;
5.1.17 not grant or enter into any licence, franchise or other
agreement or arrangement concerning any part of its name,
trading names or know-how other than in respect of affinity
cards;
5.1.18 not declare, make or pay any dividend or distribution outside
the Group;
5.1.19 not knowingly permit any of its insurances to lapse or
knowingly do anything which would make any policy of insurance
void or voidable;
5.1.20 not apply for, surrender or agree any variations to any
permits or licences otherwise than in the ordinary course of
business; and
5.1.21 not agree, conditionally or otherwise, to do any of the
foregoing matters set out in clause 5.1.3 to 5.1.20 inclusive.
5.2 The sale and purchase of the Sale Shares is conditional upon the Inland
Revenue having given clearances for the proposed transaction under
Section 137 of the TCGA) and the Vendors shall use their best
endeavours to procure the clearance as soon as reasonably practicable
provided that if the said clearance is received such that the
Completion Date would fall after 20 August 1999, but before 1 September
1999, this Condition shall be deemed not to be satisfied until the date
falling six (6) business days ending on 1 September 1999. In the event
that the clearance is refused, the Vendors will enter into discussions
with the Purchaser in good faith to endeavour to obtain the same, but
subject to the clear understanding that they shall not be obliged to
change the commercial parameters of the transactions herein described
or to forego the tax treatment that they were expecting had the
clearance been given
5.3 The Vendors may waive the Condition at any time by notice in writing to
the Purchaser. In the event that the Condition is not fulfilled (or
waived pursuant to this clause) prior to the Long Stop Date then the
Vendors and the Purchaser shall not be bound to proceed with the sale
and purchase of the Sale Shares and this Agreement
17
shall cease to be of any effect except clauses 1, 13, 14, 15, 16.1 to
16.6, 16.11, 17, 18 and 19 which shall remain in force and save in
respect of claims arising out of any antecedent breach of this
Agreement.
5.4 Subject to the provisions of clauses 5.2 and 5.3 above, Completion
shall take place on the Completion Date at the offices of the
Purchaser's Solicitors when all (but not some only) of the events
described in clauses 5.5 and 5.6 shall occur.
5.5 The Vendors shall:
5.5.1 deliver to the Purchaser:
5.5.1.1 duly executed transfers of all of the Sale Shares in
favour of the Purchaser or its nominees together with
the relative share certificates or an indemnity in
the approved terms;
5.5.1.2 duly executed transfers in favour of the Company (or
its nominees) of such shares in the Subsidiaries as
are registered in the names of nominee holders,
together with the relative share certificates or an
indemnity in the approved terms;
5.5.1.3 such waivers or consents as the Purchaser may require
to enable the Purchaser or its nominees to be
registered as holders of any of the Sale Shares and
the shares in the Subsidiaries which are referred to
in clause 5.5.1.2;
5.5.1.4 the resignation of Deloitte and Touche as Auditors of
each member of the Group (where such is the case),
such resignation to contain a statement in accordance
with Section 394 of the Companies Xxx 0000 that there
are no circumstances connected with it ceasing to
hold office which they consider should be brought to
the attention of the members or creditors of the
relevant Group Member;
5.5.1.5 written undertakings from edge xxxxxxx, Xxxxxx Xxxx
Solicitors and Brodies to hold the title deeds to the
Properties that are in their possession to the order
of the Purchaser (other than any for which an
undertaking has already been given to a bank or other
lending institution) and a statutory declaration for
the lost title deeds for the Palladium Buildings,
Blackpool and a defective title indemnity policy to
cover any defects in title which result from the loss
of such title deeds and confirmation from Xxxxxxx
Associates that they hold the title deeds to The
Point in Dublin;
5.5.1.6 the statutory and other books (duly written up to
date) of Point Exhibition Company Limited and its
certificate of incorporation, common seal and any
other papers and documents of it and a written
undertaking from the Xxxxx Partnership that they hold
all the statutory and other books (duly written up to
date) of the Company and the Subsidiaries and their
respective certificates of incorporation, common
seals and any other papers and documents of the
Company or the
18
Subsidiaries (other than those Subsidiaries expressly
referred to in paragraph 1(b) of the Disclosure
Letter);
5.5.1.7 an unconditional letter of release from the bankers
of the Company and the Subsidiaries evidencing the
release and discharge of all guarantees and charges
granted by the Company and the Subsidiaries or, to
the extent that such guarantees and charges are not
to be released and/or discharged, letters of consent
to the change of control of the Group from the
relevant banks including Woodchester and HSBC and a
letter of non-crystallisation from HSBC;
5.5.1.8 certified copies of any powers of attorney under
which any of the documents referred to in this clause
5.5 is executed or evidence reasonably satisfactory
to the Purchaser of the authority of any person
signing on the Vendor(s) behalf;
5.5.1.9 the duly executed powers of attorney in respect of
the Sale Shares which are referred to in clause 16.9;
5.5.1.10 except in relation to Xxxxx Xxxxxx, letters of
resignation in the approved terms from each of the
Directors and the secretary of the Company and the
directors and secretary of each of the Subsidiaries
other than in relation to the CCL Group, Nederlander
Dominion and The Point Exhibition Company Limited,
such resignations to take effect in accordance with
the minutes of the meetings referred to in clauses
5.5.5 and 5.5.6 below;
5.5.1.11 duly executed deeds of release, in the approved
terms, terminating the licence in favour of Boars
Xxxx Xxxxx and releasing and discharging the Company
and the Subsidiaries from any liability whatsoever
(whether actual or contingent) which may be owing to
the Vendors, Xxxx Xxxxxx or any of their respective
Associates (other than in relation to remuneration
and emoluments accrued but not yet paid and unpaid
expenses properly payable to the Vendors and Xxxx
Xxxxxx or any of their Associates pursuant to their
terms of employment with the relevant member of the
Group at Completion) including, for the avoidance of
doubt, any and all bonus payments, finder's fees,
claims, demands, proceedings, causes of action,
awards, decisions, injunctions, judgements, orders,
rulings, subpoenas, verdicts, obligations, contracts,
agreements, debts and liabilities whatsoever, whether
in law or equity (including any right of
contribution), whether arising under contract or
arrangement, by operation of law or otherwise,
existing or arising from any acts or events occurring
or failing to occur, or alleged to have occurred or
to have failed to occur, or any conditions existing
or alleged to have existed on or before Completion;
5.5.1.12 a letter from Sheffield International Venues
confirming that they consent to the change of control
of the Company;
19
5.5.1.13 evidence to the Purchaser's reasonable satisfaction
that Xxxxx Xxxxxxx Corporation is beneficially owned
by a member of the Group; and
5.5.1.14 evidence that the lease of the Alexandra Theatre
Birmingham has been duly stamped.
5.5.2 pay and shall procure that their respective Associates shall
pay all monies (if any) then owing by them to each member of
the Group, whether due for payment or not;
5.5.3 procure that Xxxx Xxxxxxx Xxxxx, Xxxx Xxxxxx, Xxxxx Xxxxxxx
Xxxxxx and Xxxxxx Xxxx Xxxxxxxx shall enter into service
agreements (or a consultancy agreement in the case of Xxxx
Xxxxxx) with the Company or, in respect of Xxxx Xxxxxxx Xxxxx,
a member of the Purchaser's Group incorporated outside the
United Kingdom, in the approved terms and procure that Xxxxx
Xxxxxxx shall enter into a service agreement with Xxxxx
Xxxxxxx Corporation Limited in the approved terms;
5.5.4 procure that the amounts set out in the board minutes referred
to in clauses 5.5.5 and 5.5.6 shall be paid to Xxxx Xxxxxxx
Xxxxx, Xxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxx Xxxxxxxx, Xxxx
Xxxxxxx, Xxxxx Xxxxxx, Xxxxx Xxxx, Xxxx Xxxxxx, Xxxxx Xxx
Xxxxx, Xxxxx Xxxx Xxxxx and Xxxxx Xxxxxxxx Xxxxx and to all
staff of the Group;
5.5.5 cause the Directors to hold a meeting of the board of the
Company at which the Directors shall pass resolutions (inter
alia) to:
5.5.5.1 approve the registration of the Purchaser or its
nominees as members of the Company subject only to
the production of duly stamped and completed
transfers in respect of the Sale Shares;
5.5.5.2 appoint the Purchaser's Accountants as joint auditors
of the Company;
5.5.5.3 appoint such persons as the Purchaser may nominate as
directors and secretary of the Company;
5.5.5.4 approve all financial assistance being given by the
Company; and
5.5.5.5 give authority to such persons as the Purchaser may
nominate to operate the bank accounts.
5.5.6 cause the directors of the Subsidiaries to hold meetings of
the board of the Subsidiaries at which the directors of the
Subsidiaries shall pass resolutions (inter alia) to:
5.5.6.1 appoint such persons as the Purchaser may nominate as
directors and secretary of the Subsidiaries; and
5.5.6.2 appoint the Purchaser's Accountants as joint auditors
of the Subsidiaries;
20
5.5.6.3 approve all financial assistance being given by the
Subsidiaries; and
5.5.6.4 give authority to such persons as the Purchaser may
nominate to operate the bank accounts.
5.6 The Purchaser shall:
5.6.1 subscribe or shall procure that SFX UK shall subscribe in cash
nine million pounds ((pounds sterling)9,000,000) for ordinary
shares in the Company;
5.6.2 issue and deliver and procure that SFX UK issue and deliver to
each of the Vendors Loan Notes in the amounts set out opposite
his or her name in column 4 of Schedule 1;
5.6.3 issue and allot to the Vendors the respective number of
Consideration Shares as set out opposite his or her name in
column 3 of Schedule 1; and
5.6.4 provide a letter of support in the approved terms.
5.7 Each of the Vendors hereby agrees to the allocation of the Loan Notes
and the Consideration Shares as is set out in columns 3 and 4 of
Schedule 1.
5.8 Without prejudice to any other remedies available to the Vendors or the
Purchaser, if in any respect the provisions of clauses 5.5 to 5.7
inclusive are not complied with by any of the Vendors or the Purchaser
(as the case may be) on the Completion Date the party not in default
may:
5.8.1 defer Completion to a date not more than 28 days after the
Completion Date (and so that the provisions of this clause 5.8
shall apply to Completion as so deferred); or
5.8.2 proceed to Completion so far as practicable (without prejudice
to its rights under this Agreement); or
5.8.3 save in relation to a breach of clauses 5.5.1.7, 5.5.1.12 and
5.5.1.14, rescind this Agreement;
provided that, if the Purchaser is not able to comply with its
obligations under clause 5.6 and the Vendors are able to comply with
their obligations under clauses 5.5 and 5.7 and rescind this Agreement,
the Purchaser shall reimburse the Vendors for the fees of the Vendors'
professional advisers in cleared funds to the Vendors Solicitors (whose
receipt shall be an absolute discharge therefor and the Purchaser shall
not be concerned to see to the distribution of the moneys represented
thereby) by no later than the Long Stop Date.
21
6. COMPLETION ACCOUNTS
6.1 The Vendors and the Purchaser shall use all reasonable endeavours to
procure that the Company shall prepare Completion Accounts for the
Group in respect of the period from the Accounting Date to the
Completion Accounts Date and a draft Working Capital Statement in
accordance with the provisions of Schedule 5 as soon as reasonably
practicable after Completion and in any event within sixty (60) days of
the Completion Date and that the Company shall deliver the same to the
Purchaser and the Purchaser's Accountants.
6.2 The Purchaser shall procure that the Purchaser's Accountants shall,
within forty five (45) days of the Purchaser's Accountants receiving
the draft Completion Accounts and draft Working Capital Statement
review the same and applying the same basis and principals referred to
in clause 6.1 deliver to the Purchaser and the Vendors a written notice
stating either:
6.2.1 that in their opinion the draft Completion Accounts and the
draft Working Capital Statement have been prepared in
accordance with the provisions of clause 6.1; or
6.2.2 that they disagree with the draft Completion Accounts and the
draft Working Capital Statement, together with a statement
detailing their reasons for disagreement and showing their
proposed adjustments to the draft Working Capital Statement.
6.3 The Vendors shall have thirty (30) days from receipt of the notice
referred to in clause 6.2.2 to serve a written notice on the Purchaser
stating that they:
6.3.1 agree with the proposed adjustments to the draft Completion
Accounts and the draft Working Capital Statement; or
6.3.2 disagree with the proposed adjustments to the draft Completion
Accounts and the draft Working Capital Statement.
6.4 If the Purchaser's Accountants or the Vendors serve a notice pursuant
to clause 6.2.1 or 6.3.1 (as the case may be) the draft Completion
Accounts and the draft Working Capital Statement (as adjusted if
relevant) shall be the Completion Accounts and the Working Capital
Statement respectively for the purposes of this Agreement but such
Completion Accounts and Working Capital Statement shall be without
prejudice to the Purchaser's right to claim under the Warranties,
clause 10 or otherwise in respect of any matter, but subject always to
clause 9.9.8.2. In carrying out their functions under this Agreement,
the Purchaser's Accountants shall not be deemed to be acting as
arbitrators.
6.5 If the Vendors serve a notice pursuant to clause 6.3.2 and/or the
parties are not able to agree the form and content of the Completion
Accounts and Working Capital Statement within seventy five (75) days of
the date on which they were first submitted to the Purchaser and the
Purchaser's Accountants, the matter may be referred by the Vendors or
the Purchaser to an independent firm of chartered accountants selected
by agreement between the Vendors and the Purchaser, or, failing
agreement, nominated
22
by the President for the time being of the Institute of Chartered
Accounts in England and Wales on the application of any of the Vendors
or the Purchaser and:
6.5.1 such independent firm of chartered accountants shall be
requested to settle any matter in dispute, applying the same
basis and principles as are referred to in clause 6.1 and
(unless both the Vendors and the Purchaser shall otherwise
direct in writing) determine the form and content of the
Completion Accounts and the Working Capital Statement; and
6.5.2 the decision of such firm of chartered accountants as to the
matter in dispute and their determination (if any) as to the
form and content of the Completion Accounts and the Working
Capital Statement shall be final and binding, in the absence
of manifest error, on the parties hereto and such chartered
accountants shall be deemed to act as experts and not as
arbitrators.
6.6 The costs of the Purchaser's Accountants and the costs of the
independent chartered accountant, if any, shall be borne by the Vendors
if the amount of the Working Capital which is ultimately agreed or
determined in favour of the Purchaser differs by an amount of more than
ten per cent (10%) from the original amount stated in the draft Working
Capital Statement produced by the Company, and otherwise by the
Purchaser.
7. ADJUSTMENT OF CONSIDERATION AND DEFERRED CONSIDERATION
7.1 Subject to clause 7.4, within 7 days of the agreement or determination
of the amount of the Working Capital in accordance with clause 6:
7.1.1 if the amount of the Working Capital exceeds minus fifty
million seven hundred and twenty thousand pounds
(-(pounds sterling)50,720,000), which for the avoidance of
doubt means that the amount of the Working Capital is nearer
to nil, the Purchaser will and/or will procure that SFX UK
will pay to the Vendors' Solicitors (whose receipt shall be an
absolute discharge therefor) an amount equal to such excess
and interest thereon as specified in clause 7.2 and the
Purchaser shall not be concerned to see to the distribution of
the monies so paid;
7.1.2 if the amount of the Working Capital is less than minus fifty
million seven hundred and twenty thousand pounds
(-(pounds sterling)50,720,000), which for the avoidance of
doubt means that the amount of the Working Capital is a larger
negative number, the Vendors will pay to the Purchaser and/or,
at the Purchaser's option, SFX UK an amount equal to such
shortfall and interest thereon as specified in clause 7.2.
7.2 The interest payable on the amount of any excess or shortfall pursuant
to clause 7.1 shall accrue from day to day at the same rate as the rate
set out in the Loan Notes, from and including the Completion Accounts
Date to the date of payment.
7.3 Any amounts payable:
23
7.3.1 by the Purchaser and/or SFX UK under clause 7.1.1 and clause
7.2 shall be satisfied in cash in the same proportions as set
out in column 4 of Schedule 1;
7.3.2 by the Vendors under clause 7.1.2 and clause 7.2 shall be
satisfied in the same proportions as set out in column 4 of
Schedule 1 by the cancellation of Loan Notes in a principal
amount equal to the amount so payable or, to the extent that
the Vendors no longer hold Loan Notes, in cash, provided that,
if any of the Vendors so elect, any amounts payable by any of
such persons under clause 7.2 shall be satisfied by payment in
cash.
7.4 In relation to the Deferred Consideration Properties:
7.4.1 if the proceeds of any sale of any of the Deferred
Consideration Properties are received by a member of the Group
prior to agreement or determination of the amount of the
Working Capital, the proceeds and deductions that would have
been taken into account in determining the Deferred
Consideration in respect of such properties shall be taken
into account in calculating the amount of the Working Capital;
7.4.2 in all other cases, the proceeds and deductions that would
fall to be taken into account in calculating the Deferred
Consideration shall not be taken into account in calculating
the amount of the Working Capital and any such Deferred
Consideration shall be paid by the Purchaser and/or SFX UK in
cash to the Vendors in the same proportions as set out in
column 4 of Schedule 1 within 30 days of receipt of such
proceeds of sale by the relevant member of the Group.
7.5 The Purchaser shall procure that the relevant member of the Group which
owns the Deferred Consideration Properties shall act promptly on the
reasonable instructions of Xxxx Xxxxx and Xxxxx Xxxxxx in relation to
the terms upon which such properties should be sold and shall procure
that Xxxx Xxxxx and Xxxxx Xxxxxx are given reasonable access at all
reasonable times to papers and documents relating to the Deferred
Consideration Properties.
7.6 In calculating the adjustment for the net amount of the operating
profit and loss made by the business carried on at any of the Deferred
Consideration Properties, the Vendors shall notify the Purchaser in
writing what they consider the profit or loss to be. The Purchaser
shall within 14 days of such notification inform the Vendors in writing
whether it agrees or disagrees with the same. If the Purchaser agrees,
then the amount of Deferred Consideration referable to that Deferred
Consideration Property shall be final and paid as provided in clause
7.4. If the Purchaser disagrees with the amount notified to it and it
and the Vendors cannot reach agreement within 14 days of the
Purchaser's notification of disagreement, the matter shall be referred
to an independent firm of chartered accountants and the provisions of
clause 6.5 shall mutatis mutandis apply. On the decision of the firm of
chartered accountants being published, the amount of the Deferred
Consideration shall be finalised and paid as provided in clause 7.4.
The firm of Chartered Accountants will as part of their
24
decision determine in what proportion their costs should be borne by
either or both of the Vendors and the Purchaser.
8. RESTRICTION OF VENDORS
8.1 Each of the Vendors undertakes with the Purchaser (for itself and as
trustee for SFX UK, the Company and each of the Subsidiaries) that,
except as provided in clause 8.2 or with the consent in writing of the
Purchaser and subject to the provisions of clause 8.4:
8.1.1 for the period of three (3) years after Completion he or she
will not within the United Kingdom and Eire either on his or
her own account or in conjunction with or on behalf of any
person, firm or company carry on or be engaged, concerned or
interested, directly or indirectly, whether as shareholder,
director, employee, partner, agent or otherwise in carrying on
any business which competes with the business carried on by
any member of the Group at Completion (other than as a holder
of not more than five (5) per cent of the issued shares or
debentures of any company carrying on such a business listed
on a recognised stock exchange);
8.1.2 for the period of three (3) years after Completion he or she
will not either on his or her own account or in conjunction
with or on behalf of any other person, firm or company solicit
or entice away or attempt to solicit or entice away from any
member of the Group the custom of any person, firm, company or
organisation who shall at any time within the year preceding
Completion have been a supplier of goods or services,
identified prospective supplier of goods or services,
representative or agent of any member of the Group or in the
habit of dealing with any member of the Group or enter into
any contract for sale and purchase or accept business from any
such person, firm, company or organisation in a business area
in which any members of the Group competes;
8.1.3 for the period of three (3) years after Completion he or she
will not either on his or her own account or in conjunction
with or on behalf of any other person, firm or company employ,
engage, solicit, entice away or attempt to employ, engage,
solicit or entice away from any member of the Group any person
employed in a managerial, supervisory or sales capacity by, or
engaged as a consultant to, or representative or agent of any
member of the Group at Completion or at any time during the
period of six months immediately preceding Completion (whether
or not such person would commit a breach of contract by reason
of leaving such employment or engagement);
8.1.4 he or she will not make use of or disclose or divulge to any
person (other than to officers or employees of the Company or
any of the Subsidiaries whose province it is to know the same)
at any time hereafter, any Confidential Information, or, for a
period of three (3) years after Completion, any other
information (other than any information properly available to
the public or disclosed or divulged pursuant to an order of a
court of competent jurisdiction) relating to any member of the
Group, the identity of its customers and suppliers, its
products, finance, contractual arrangements, business or
methods
25
of business and shall use all his or her reasonable endeavours
to prevent the publication or disclosure of any such
information by any person, firm or company with which he or
she is connected;
8.1.5 if, in connection with the business or affairs of any member
of the Group, he or she shall have obtained Confidential
Information belonging to any third party under an agreement
purporting to bind any member of the Group which contained
restrictions on disclosure he or she will not without the
previous written consent of the board of directors of the
Purchaser at any time infringe such restrictions;
8.1.6 he or she will not at any time hereafter in relation to any
trade, business or company use a name or trade xxxx including
the words Apollo, CCL or The Point or any word confusingly
similar thereto in such a way as to be capable of or likely to
be confused with the name or any trade xxxx of any member of
the Group and shall use his or her best endeavours to procure
that no such name or trade xxxx shall be used by any person,
firm or company with which he or she is connected.
8.2 The restrictions set out in clause 8.1 will not apply to the Vendors
(either alone or working with any other person) in connection with:
8.2.1 the exploitation of such Doctor Dolittle rights as are
transferred to Houston Securities Limited prior to Completion
in accordance with terms and conditions of the transfer
agreement between Houston Securities Limited and the relevant
members of the Group;
8.2.2 the operation of the Prince of Wales Hotel and the Palladium
Llandudno as they are currently operated by the Group;
8.2.3 the personal use by Houston Securities Limited of the name
"Apollo" for the period of twelve (12) months from the
Completion Date for the purpose of operating the Deferred
Consideration Properties; and
8.2.4 the development of the land at The Point, Dublin, provided
that such development does not consist of any large scale live
entertainment that might compete with the business of The
Point as it has been carried on from time to time in the five
(5) years up to the Completion Date.
8.3 Each Vendor shall procure that all persons directly or indirectly owned
or controlled by him or her shall be bound by and observe the
provisions of this clause 8 as if they were parties covenanting with
the Purchaser in the same terms.
8.4 While the restrictions contained in this clause 8 are considered by the
parties to be reasonable in all the circumstances, it is recognised
that restrictions of the nature in question may fail for technical
reasons and accordingly it is hereby agreed and declared that if any of
such restrictions shall be adjudged to be void as going beyond what is
reasonable in all the circumstances for the protection of the interests
of the Purchaser but would be valid if part of the wording thereof were
deleted or the periods thereof reduced or the range of activities or
area dealt with thereby reduced in
26
scope the said restriction shall apply with only such modifications as
may be necessary to make it valid and effective.
8.5 Each of the Vendors acknowledges that its restrictions and obligations
under this clause 8 are reasonable and necessary to protect the
Purchaser and the business that the Purchaser is acquiring pursuant to
this Agreement and monetary damages would not be an adequate remedy for
the Purchaser for any breach by the Vendors of its restrictions and
obligations and the Vendors accordingly agree that the Purchaser shall
be entitled to specific performance of the Vendors' obligations herein
and to injunctive and other equitable relief in addition to any other
remedy to which it may be entitled at law or in equity.
8.6 The restrictions contained in clauses 8.1 and 8.2 shall be without
prejudice to:
8.6.1 performance by and shall not limit the restrictions on any of
the Vendors under the terms of any of their service and/or
employment agreements (as amended from time to time) with any
member of the Group; and
8.6.2 any shareholding any of the Vendors may hold in the Purchaser.
9. WARRANTIES
9.1 As at the date hereof, the Vendors hereby warrant and undertake to and
with the Purchaser (for itself and as trustee for SFX UK) in the terms
of Schedule 6 and part 1 of Schedule 7, as to Xxxx Xxxxxxx Xxxxx and
Xxxxx Xxx Xxxxx jointly and severally, as to Xxxxx Xxxxxxx Xxxxxx and
the DCR Trustees jointly and severally, as to Xxxxx Xxxxxxxx Xxxxx and
the DCG Trustees jointly and severally, and as to and Xxxxx Xxxxx
Xxxxxx and Xxxxx Xxxx Xxxxx severally.
9.2 The Warranties (other than the Warranties in paragraphs 3.2, 3.11 and
5.12 of Schedule 6 in respect of which no qualification is accepted)
are given subject to matters fairly disclosed in the Disclosure Letter.
"Fairly" for these purposes means disclosed in a manner so as to enable
a reasonable purchaser to make an informed and accurate assessment of
the significance of the disclosure and its impact upon the relevant
Warranty. In this connection, it is accepted that where a disclosure is
specifically referenced to a numbered warranty, but not to others that
does not of itself mean that it is not fairly disclosed against such
other warranties, provided that a fact or matter will not be deemed to
be fairly disclosed if it could only have been discoverable by the
Purchaser deducing it from the face of a series of documents which are
not connected by explicit references to each other. The parties agree
that a fact or matter will only be deemed to be fairly disclosed to the
Purchaser if it is within the actual knowledge of the Purchaser as a
result of reviewing the Disclosure Letter and/or the documents annexed
thereto (the "Disclosure Bundle") or it is readily discoverable from
the face of any document in the Disclosure Bundle. No letter, document
or other communication shall be deemed to constitute a disclosure for
the purposes of this Agreement unless the same is actually contained in
the Disclosure Bundle.
9.3 The Vendors acknowledge that the Purchaser has entered into this
Agreement in reliance upon the Warranties.
27
9.4 In the event that any of the Warranties is broken or (as the case may
be) proves to be untrue or misleading in whole or in part, the Vendors
shall indemnify the Purchaser for itself and as trustee for each member
of the Purchaser's Group and Group in respect of:
9.4.1 the full amount of any shortfall or diminution in the value of
any assets of the Company or any of the Subsidiaries and an
amount equal to any other loss suffered or incurred by the
Purchaser, SFX UK, the Company or any of the Subsidiaries or
any successor as a result of or in relation to any act, matter
or circumstance constituting a breach or non-fulfilment of any
of the Warranties, excluding, for the avoidance of doubt, any
right the Purchaser may have to apply the multiple used in
assessing the value of the Sale Shares to the loss suffered as
a result of the breach; and
9.4.2 all costs and expenses incurred by the Purchaser, the Company
and each member of the Group as a result of such breach, and
any reasonable and proper costs (including legal costs on a
solicitor and own client basis), expenses or other liabilities
which any of them may incur either before or after the
commencement of any action in connection with (i) any legal
proceedings in which the Purchaser or the relevant member of
the Group or the Purchaser's Group claims that any of the
Warranties has been broken or is untrue or misleading and in
which judgement is given for the Purchaser or the relevant
member of the Group or the Purchaser's Group or (ii) the
enforcement of any settlement of, or judgement in respect of,
such claim, provided that such claim in respect of such breach
is resolved in favour of the Purchaser or the relevant member
of the Group or the Purchaser's Group.
9.5 Any amounts agreed by each Vendor (including all amounts which are not
in dispute and which form a part of a claim that has not yet been
agreed or finally determined) or, with respect to amounts which are not
so agreed, finally determined to be payable in respect of any breach of
the Warranties or under the terms of clause 10 shall be satisfied
within ten (10) days from such agreement or the date of being finally
determined (and time shall be of the essence for the purpose of this
clause 9.5), to the extent that a claim for breach of a Warranty has
been agreed or finally determined within two (2) years of the
Completion Date, by the transfer to the Purchaser of Consideration
Shares with full title guarantee and free and clear of all liens,
charges and encumbrances which shall be deemed to have a value equal to
the price for which the Consideration Shares were issued to Vendors and
the price in US dollars for the Consideration Shares shall be
translated at the Exchange Rate immediately prior to close of business
in London on the business day prior to the date the claim is agreed or
finally determined, and otherwise, at the option of each of the
Vendors, by:
9.5.1 cancellation in whole or in part (as is necessary) of the Loan
Notes provided that such Loan Notes are tendered to the
Purchaser for cancellation, which shall be deemed to have a
value equal to their face value together with any unpaid
interest accrued thereon; and/or
9.5.2 the transfer to the Purchaser of Consideration Shares with
full title guarantee and free and clear of all liens, charges
and encumbrances which shall be
28
deemed to have a value equal to the average closing price of
such stock over the five business days prior to the date the
claim is agreed or finally determined and the price in US
dollars for the Consideration Shares shall be translated at
the Exchange Rate immediately prior to close of business in
London on the business day prior to the date the claim is
agreed or finally determined; and/or
9.5.3 payment in cash.
For the purposes of this clause 9.5, "finally determined" means a final
decision of a Court or tribunal of competent jurisdiction from which
there is no appeal or in relation to which the right to appeal has not
been made within the applicable time limit. If any of the Vendors fails
to make such payment, the Purchaser shall have the absolute right
without prejudice to any other rights of recovery the Purchaser or any
other member of the Purchaser's Group may have, without further notice
to the Vendors, to satisfy the amount of such payment by cancelling the
appropriate number of Consideration Shares on the books of the
Purchaser with the shares to have a value equal, to the extent that
such cancellation is carried out within two (2) years of the Completion
Date, to the price for which the Consideration Shares were issued to
Vendors and otherwise the average closing price of such stock over the
five business days prior to the date the claim is agreed or finally
determined and the price in US dollars for the Consideration Shares
shall be translated at the Exchange Rate immediately prior to close of
business in London on the business day prior to the date the claim is
agreed or finally determined.
9.6 Each of the Warranties shall be separate and independent and, save as
expressly provided to the contrary, shall not be limited by reference
to or inference from any other Warranty or any other term of this
Agreement.
9.7 Where any statement in the Warranties or any confirmation or
certificate given by any of the Vendors hereunder or pursuant hereto is
qualified by the expression "so far as the Vendors are aware" or "to
the best of the Vendors' knowledge and belief" or any similar
expression, that statement shall be deemed to include an additional
statement that it has been made after reasonable enquiry of each of the
Directors of each member of the Group, Xxxxx Xxxxxx, Xxxxxxx Xxxxxx and
Xxxxx Xxxxxx of the subject matter of the Warranties.
9.8 Each of the Vendors hereby agrees with the Purchaser (for itself and as
trustee for SFX UK, the Company and each of the Subsidiaries) to waive
any rights which he or she may have in respect of any misrepresentation
or inaccuracy in, or omission from, any information or advice supplied
or given by the Company or its Subsidiaries or its or their officers,
employees or advisers in connection with the giving of the Warranties
and the preparation of the Disclosure Letter.
9.9 Subject to clause 9.10, the parties agree as follows:
9.9.1 The liability of the Vendors under the Warranties shall, save
in relation to the Warranties in paragraph 2 of Schedule 6
(the "Tax Warranties"), cease on the earlier of two years from
the Completion Date and thirty (30) days after the audited
accounts for the second audit of the Group following
Completion have
29
been filed at Companies House, except (subject to clause
9.9.10) in respect of matters which have been the subject of a
written claim made before such date by the Purchaser or SFX UK
or the Purchaser's Solicitors to any of the Vendors or the
Vendors' Solicitors.
9.9.2 The liability of the Vendors under the Tax Warranties shall
cease six (6) years after the first anniversary of the
Accounting Date, except in respect of matters which have been
the subject of a written claim made before such date by the
Purchaser or the Purchaser's Solicitors to any of the Vendors
or the Vendors' Solicitors.
9.9.3 Any claim which is made under clause 9.9.1 or 9.9.2 within the
required period shall (unless settled or withdrawn) be deemed
to have been waived or withdrawn if legal proceedings in
respect thereof are not issued and served on the Vendors
within nine months of written notice of the claim first being
given, except in the case of a claim notified under clause
9.9.10 where legal proceedings must be issued and served
within nine months of the liability becoming an actual rather
than contingent liability, and time shall be of the essence
for the purposes of clauses 9.9.1 and 9.9.2.
9.9.4 The aggregate liability of Xxxx Xxxxxxx Xxxxx and Xxxxx Xxx
Xxxxx under the Warranties and clause 10 of the Agreement
shall be limited to 67.144% of the Consideration less
(pounds sterling)38,272,000.
9.9.5 The liability under the Warranties and clause 10 of this
Agreement of:
9.9.5.1 Xxxxx Xxxxxxx Xxxxxx together with the DCR Trustees,
Xxxxxx Xxxx Xxxxxxxx together with the SJS Trustees,
and Xxxxx Xxxxxxxx Xxxxx together with the DCG
Trustees shall in each case be limited to their
individual proportion of the Consideration aggregated
with the relevant proportion of the Consideration of
the relevant Vendor Trustee less the equivalent
proportion of (pounds sterling)57,000,000 and then
reduced by twenty five percent (25%); and
9.9.5.2 Simon Xxxx Xxxxx and Xxxxx Xxxxx Xxxxxx shall in each
case be limited to their individual proportion of the
Consideration less the equivalent proportion of
(pounds sterling)57,000,000 and then reduced by
twenty five percent (25%).
9.9.6 Save in relation to the Warranties in paragraph 5 of Schedule
6 and the Tax Warranties, no liability shall attach to the
Vendors under the Warranties:
9.9.6.1 where the amount of any individual claim is less than
ten thousand pounds ((pounds sterling)10,000), such
claims being ignored for the purposes of calculating
the liability of the Vendors under the Warranties
unless such claims, when aggregated, amount to more
than two hundred thousand pounds ((pounds
sterling)200,000) and further provided that one or
more claims deriving from, or attributable to, the
same matter or circumstance shall be treated as one
claim for the purpose of this clause; and
30
9.9.6.2 until the aggregate amount of all claims shall exceed
one million five hundred thousand pounds
((pounds sterling)1,500,000) and in such event the
Vendors shall be liable for all amounts over two
hundred thousand pounds ((pounds sterling)200,000).
9.9.7 In relation to the Warranties in paragraph 5 of Schedule 6, no
liability shall attach to the Vendors unless the aggregate
amount of all claims under such Warranties shall exceed five
hundred thousand pounds ((pounds sterling)500,000) and in such
event the Vendors shall be liable for the excess only.
9.9.8 The Vendors shall, save in relation to the Tax Warranties, not
be liable under the Warranties:
9.9.8.1 to the extent that such claim would not have arisen
but for some voluntary act or omission occurring
after Completion outside the ordinary course of
business (otherwise than pursuant to a legally
binding commitment binding on the Company or any
Subsidiary created on or before Completion) by or on
behalf of all or any of the Purchaser, the Company or
any Subsidiary and the Purchaser, the Company or any
Subsidiary (as the case may be) or any of its
directors knew or should reasonably have known that
such act or omission could reasonably be or have been
expected to give rise to or increase such claim and a
reasonable alternative course of action, having
regard, without limitation, to the protection of the
goodwill of the Purchaser and the members of the
Group and the Purchaser's Group, was available to the
Purchaser, the Company or the Subsidiary (as the case
may be) which could be expected not to have given
rise to such claim or to a claim of such amount;
9.9.8.2 to the extent that a specific provision is made in
the Completion Accounts in respect of the matter to
which the liability specifically relates;
9.9.8.3 to the extent any claimant(s) is or are entitled to
claim indemnity against any loss or damage arising
out of the breach or claim under the terms of any
insurance policy from time to time in force;
9.9.8.4 which would not have arisen but for anything
expressly provided to be done or omitted to be done
pursuant to this Agreement; or
9.9.8.5 to the extent that any losses, credits, reliefs or
any other allowable sums arising or becoming
available to the Company or any Subsidiary on or
before Completion and previously unutilised (other
than any such reliefs or rights to repayment as are
mentioned in clauses 10.1.5.1 to 10.1.5.3 inclusive)
are available to the Company or any Subsidiary for
set-off against the Tax that is the subject of such
claim or the liability to which it relates (and so
that the use of any such losses, credits, reliefs or
allowable sums shall not of itself give rise to a
claim).
31
9.9.9 The Vendors shall not be liable under the Tax Warranties to
the extent that the limitations in Clause 10.3 are applicable.
9.9.10 If, in respect of a claim for breach of any of the Warranties,
the liability of the Purchaser or the Company or any
Subsidiary is contingent then the Vendors shall not be liable
in respect thereof unless and until such time as the
contingent liability ceases to be contingent and becomes
actual, provided that the liability becomes actual within one
(1) year of the end of the periods referred to in clauses
9.9.1 and 9.9.2 respectively and if the liability does not
become actual within such period the liability of the Vendors
shall cease.
9.9.11 Nothing herein or otherwise shall be deemed to relieve the
Purchaser or the Company or any Subsidiary from any common law
duty to mitigate any loss or damage incurred by it or them.
Neither the Purchaser, nor the Company nor any relevant member
of the Group shall be obliged to make a payment under clauses
9.9.14 or 9.9.15 in respect of any sum or benefit which any of
them shall have received, recovered or become entitled to if
any such sum or benefit falls to be taken into account in
computing any amount to be set off, refunded or repaid to the
Vendors pursuant to clause 10.4.4.
9.9.12 The Purchaser shall not be entitled to recover any sum in
respect of any claim or otherwise obtain reimbursement or
restitution more than once in respect of any one breach of the
Warranties or claim under clause 10 or the subject matter
thereof.
9.9.13 In the event that a claim (other than a claim under clause 10)
against the Vendors arises as a result of or in connection
with a liability to or a dispute with any third party:
9.9.13.1 no such liability or dispute shall be admitted,
settled or discharged without the written consent of
the Vendors (such consent not to be unreasonably
withheld or delayed); and
9.9.13.2 the Purchaser shall or shall procure that SFX UK
shall (provided that they are indemnified to their
reasonable satisfaction by the Vendors against any
costs, expenses, liabilities, penalties, and fines
which may be incurred by the Purchaser and the Group
and the Purchaser's Group in taking such action and
provided that the Vendors give the Purchaser and SFX
UK such assistance as they reasonably require) take
such action to avoid, dispute, resist, appeal,
compromise or contest such liability or dispute as
may be reasonably requested by the Vendors
provided that neither the Purchaser nor SFX UK shall be
obliged to take any action whatsoever that the Purchaser or
SFX UK reasonably believes acting in good faith having taken
account of the reasonable representations of the Vendors will
or is reasonably likely to have a material adverse effect on
the business of any member of the Group taken as a whole. In
relation to any claim against the Company arising from an
audit of the box office takings by any major US or UK
producer, the parties agree that contesting, disputing or
resisting such claim in good faith will not be reasonably
likely to have a
32
material adverse effect on the business of the Group taken as
a whole. Notwithstanding the above, the Purchaser and SFX UK
may, at their option, assign such claim or any part thereof to
the Vendors.
9.9.14 Where the Purchaser or any member of the Group or the
Purchaser's Group is entitled (whether by right of indemnity,
reimbursement or any other means) to recover from some other
person (not being the Purchaser any member of the Group or the
Purchaser's Group or any person connected with any of them but
including, without limitation, any Tax authority) any sum or
benefit in respect of the same matter that was the subject of
a successful claim for breach of any of the Warranties, the
Purchaser or the relevant member of the Group or the
Purchaser's Group so entitled shall (provided that it is
indemnified to its satisfaction by the Vendors against all
costs, expenses, liabilities, penalties and fines which it or
they may incur thereby and provided that the Vendors give the
Purchaser or the relevant member of the Group or the
Purchaser's Group such assistance as it reasonably requires)
take all reasonable steps to enforce such recovery provided
that neither the Purchaser nor any member of the Group or the
Purchaser's Group shall be required to do anything which in
the reasonable opinion of the Purchaser might have a material
adverse effect on the business of the Group taken as a whole
(in which case the Purchaser shall reimburse the Vendors for
the amount which the Vendors and the Purchaser reasonably
expect the Purchaser to recover from such other person, less
all reasonable costs, expenses, and taxes, but in no event
shall such amount be greater than the amount received by
Purchaser from the Vendors with respect to the same matter
that was the subject of such claim for breach of Warranties).
Notwithstanding the above, the Purchaser or the relevant
member of the Group or the Purchaser's Group entitled to such
recovery may, at its option, assign such claim or any part
thereof for recovery to the Vendors.
9.9.15 In the event that payment is made by the Vendors or any of
them in respect of a claim and the Purchaser or the relevant
member of the Group or the Purchaser's Group or any of them
subsequently recovers from the third party a sum or, in the
case of Tax claims, a benefit in respect of the same matter
that was the subject of a claim, the Purchaser and the Company
or the relevant Group member shall reimburse the Vendors after
receipt of such sum or, in the case of Tax claims, benefit the
net amount received (after deducting any costs including legal
costs on a solicitor and own client basis) but not in any
event exceeding the amount originally paid in respect of the
relevant claim. For the purposes of the foregoing:
9.9.15.1 subject to clauses 9.9.15.2 to 9.9.15.4 below, a sum
or benefit shall also be deemed to have been received
if received by way of credit, set-off or other
deduction or received in kind, provided that such sum
or benefit is reasonably capable of being quantified
in cash.
9.9.15.2 a reduction in liability to Tax arising as a direct
result of any payment made in respect of the claim
shall be deemed to be a sum or benefit received
aforesaid;
33
9.9.15.3 the recipient shall be deemed to receive a refund or
repayment for Tax purposes when and only when it
would have received the same but for a liability to
any Tax not covered by clause 10 and shall be deemed
to receive a credit for Tax purposes when and only
when the same results in an actual reduction of Tax
not covered by clause 10 that the recipient would
otherwise have been liable to pay;
9.9.15.4 any repayment supplement for Tax purposes or interest
(less tax) paid or received or attributable to the
sum or benefit recovered shall also be accounted for
to the Vendors to the extent referable to the period
after the claim was satisfied.
9.9.16 None of the Vendors shall be liable in respect of any
representations or warranties which are made or deemed to have
been made by them or any of them in relation to or connection
with the subject matter hereof (save for fraudulent
misrepresentation) which are not contained and expressly given
or assumed by them in this Agreement or any document in the
approved terms to be entered into pursuant hereto and the
Purchaser hereby confirms that it has not entered into this
Agreement in reliance on any such representation or warranty.
9.9.17 The Purchaser shall and shall procure that SFX UK shall
indemnify the Vendors and each of them against any and all
reasonable and proper costs and expenses (including legal
costs on a solicitor and own client basis) to the extent that
such costs and expenses are incurred in successfully defending
in all respects a claim for breach of any of the Warranties
and where the Purchaser and the members of the Purchaser's
Group have no right of appeal or the Purchaser has not
appealed within the applicable time limits.
9.9.18 The Purchaser irrevocably and unconditionally waives any right
it may have to xxx the Vendors in misrepresentation or to
rescind this Agreement, in either case for any non-fraudulent
misrepresentation made by or on behalf of the Vendors, whether
or not contained in this Agreement, or to terminate this
Agreement for any reason except as provided in clause 5. The
Purchaser's remedy in respect of any such misrepresentation
shall be an action under the terms of this Agreement if and to
the extent the misrepresentation constitutes a breach of the
Warranties.
9.9.19 Notwithstanding any other provision of this Agreement, the
maximum liability of each of the Vendor Trustees (and any
trustees to whom they transfer all or any part of the trust
fund of the relevant Trust in exercise of their dispositive
powers under the relevant Trust ("a Transferee Trustee") under
this Agreement shall be limited to the extent that such
liability can be met and discharged out of the net assets
(after costs of realisation of the same and any tax payable on
or by reference to such realisation) held by or on behalf of
such Vendor Trustee in the Trust of which they are trustees at
the time such Vendor Trustee is called upon to make such
payment and no Vendor Trustee (or any Transferee Trustee)
shall incur any personal liability in respect of any claim
under this Agreement.
34
9.9.20 If a capital distribution is made to a beneficiary of a Trust
before such time as the Vendor Trustee of the relevant Trust
are under no actual or contingent liability under this
Agreement and the beneficiary of the distribution is sui iuris
and shall by deed undertake to accept liability under this
Agreement (subject to the limitations provided herein) whether
to the extent only of the distribution concerned (less any tax
payable by such beneficiary by reason of the receipt thereof)
or generally then the residual liability of such distributing
trustees hereunder shall thereupon be reduced to such extent
or extinguished accordingly.
9.10 Clause 9.9 shall not apply if any claim or claims has or have arisen by
reason of fraud, wilful concealment or dishonesty.
9.11 If any sum payable by the Vendors under this clause 9 shall be subject
to Tax (whether by way of deduction or withholding or direct assessment
of the person entitled thereto) such payment shall be increased by such
an amount as shall ensure that after deduction, withholding or payment
of such Tax the recipient shall have received a net amount equal to the
payment otherwise required hereby to be made.
9.12 The amount paid by the Vendors to the Purchaser or the relevant member
of the Purchaser's Group in satisfaction of any claim shall, so far as
possible, be treated as a reduction by that amount in the Consideration
for the Sale Shares.
10. COVENANT IN RESPECT OF TAX
10.1 In this clause 10 unless the context otherwise requires:
10.1.1 "Claim" means the issue of any notice, letter or other
document by or on behalf of any Tax Authority or the taking of
any action by or on behalf of any Tax Authority from which
letter, notice, document or action it appears that a Tax
liability is to be imposed on any of the Company or a
Subsidiary so that such Company or Subsidiary will or may
become subject to a liability which could give rise to a claim
under the Warranties relating to Taxation or, in the context
of clause 10.2 that a liability or increased liability is to
be imposed on any relevant company.
10.1.2 "event" includes (without limitation) any omission, event,
action or transaction whether or not the Company or any of the
Subsidiaries is a party thereto, the death of any person, a
change in the residence of any person for any Tax purpose, and
the entering into and completion of this Agreement and
references to the result of events on or before the Completion
Date shall include the combined result of two or more events
one or more of which shall have taken place on or before the
Completion Date in circumstances where those events occurring
after Completion occurred inside the Company's ordinary course
of business and is or are:
10.1.2.1 the completion of the disposal by the Company or any
of the Subsidiaries of any asset which was contracted
to be sold by the Company or any of the Subsidiaries
outside the ordinary course of business before
Completion or the performance of any other act which
35
the Company or any of the Subsidiaries was bound to
perform by virtue of a legally binding obligation it
had entered into outside the ordinary course of
business before Completion;
10.1.2.2 the satisfaction of a condition to which the disposal
by the Company or any of the Subsidiaries of any
asset pursuant to a contract entered into outside the
ordinary course of business before Completion was
subject (in which even the disposal shall, for the
purposes of this clause 10, but subject to clause
10.3.14, be treated as having been made before
Completion and any liability to Tax arising from such
disposal shall be treated as having risen before
Completion);
10.1.2.3 the service of any notice pursuant to section 703 of
the Taxes Act;
10.1.2.4 the bringing into the United Kingdom of any document
executed prior to Completion outside the United
Kingdom where the same is required to be produced in
court in the United Kingdom with a view to protecting
or enforcing any legal rights of the Company or any
of the Subsidiaries;
10.1.2.5 the making of any chargeable payment (as defined in
section 214 of the Taxes Act) where the same is
connected with the exempt distribution (as defined in
section 213(2) of the Taxes Act) made prior to
Completion.
10.1.3 "relief" means any relief, allowance, credit, set off,
deduction or exemption for any Tax purpose;
10.1.4 reference to income or profits or gains earned, accrued or
received shall include income or profits or gains deemed to
have been or treated as or regarded as earned, accrued or
received for the purposes of any legislation;
10.1.5 reference to any Tax liability shall include not only any
liability to make actual payments of or in respect of Tax but
shall also include:
10.1.5.1 the loss or reduction in the amount of, or the
setting off against income, profits or gains, or
against any Tax liability for which no provision has
been made in preparing the Accounts or in preparing
the Completion Accounts, of any relief which would
(were it not for the said loss, reduction or setting
off) have been available to the Company or any of the
Subsidiaries and which has been taken into account in
computing (and so eliminating or reducing) any
provision for deferred Tax which appears (or which
but for such relief would have appeared) in the
Completion Accounts;
10.1.5.2 the loss or reduction in the amount of, or the
setting off against any Tax liability for which no
provision has been made in preparing the Accounts or
in preparing the Completion Accounts, of a right to
repayment of Tax which has been treated as an asset
of the Company or any of the Subsidiaries in
preparing the Completion Accounts; and
36
10.1.5.3 the utilisation or setting off against income,
profits or gains earned, accrued or received on or
before Completion, or against any Tax liability of
any relief which is not available before Completion
but which arises in respect of an event occurring
after Completion in circumstances where but for such
utilisation or setting off, the Company or any of the
Subsidiaries would have had a Tax liability in
respect of which the Purchaser would have been able
to make a successful claim under this clause 10;
and in such a case as is referred to in Clause 10.1.5.1, the
amount of the Tax liability shall be either the amount of the
relief where the relief which has been lost or set off was a
deduction or offset against Tax or where the relief was a
deduction offset against income profits or gains, the amount
of Tax which, on the basis of rates current at the date of the
loss, would have been saved but for such loss and in the case
of a liability under Clause 10.1.5.1 or 10.1.5.3 where the
relief was subject to a set-off, the Tax liability shall be
the amount of Tax which the Covenantors would have been liable
for hereunder but for the set off;
10.1.6 reference to "the Company" includes a reference to each of the
Subsidiaries;
10.1.7 reference to a payment in respect of Tax means a payment other
than to a Group Company for the surrender of losses or other
amounts by way of group relief (within the meaning of Section
402 of the Taxes Act) or for the surrender of advance
corporation tax or for the transfer of any other relief, a
repayment of any such payment and a payment by way of
indemnity or damages.
10.2 Subject as provided in this Agreement, the Vendors hereby covenant with
and undertake as to Xxxx Xxxxxxx Xxxxx and Xxxxx Xxx Xxxxx jointly and
severally, Xxxxx Xxxxxxx Xxxxxx and the DCR Trustees jointly and
severally, Xxxxxx Xxxx Xxxxxxxx and the SJS Trustees jointly and
severally, Xxxxx Xxxxxxxx Xxxxx and the DCG Trustees jointly and
severally, and Xxxxx Xxxxx Xxxxxx and Xxxxx Xxxx Xxxxx severally, to
pay to the Purchaser (for itself and as trustee for SFX UK) a sum equal
to the amount of:
10.2.1 any Tax liability of the Company or any of the Subsidiaries
arising as a result of or calculated by reference to any
income, profits or gains earned accrued or received on or
before the Completion Date or any event on or before the
Completion Date whether or not such Tax is chargeable against
or attributable to any other person;
10.2.2 any Tax liability of any member of the Group that arises after
Completion as a result of an act, omission or transaction by a
person (other than any member of the Group) and which
liability to Tax falls upon the relevant member of the Group
as a result of (i) the failure by such person to discharge
(even after Completion) where due any liability to taxation on
its part and (ii) its having been in the same group for Tax
purposes as that person at any time before Completion;
37
10.2.3 the standard rate of corporation tax as at the date of this
Agreement multiplied by the aggregate of the payments referred
to in clause 5.5.4 (other than in relation to the payment to
Xxxx Xxxxxxx Xxxxx) and the employer's national insurance
contributions thereon to the extent that a deduction for
corporation tax purposes is denied in whole or in part in
respect thereof; and
10.2.4 all costs and expenses incurred by the Purchaser, the Company
and each member of the Group in connection with a claim by the
Purchaser which results in a payment being made by the Vendors
under this clause 10.2, and any reasonable and proper costs
(including legal costs on a solicitor and own client basis),
expenses or other liabilities which any of them may incur
either before or after the commencement of any action in
connection with (i) any legal proceedings in which the
Purchaser or the relevant member of the Group or the
Purchaser's Group make a claim under this clause 10.2 and in
which judgement is given for the Purchaser or the relevant
member of the Group or the Purchaser's Group or (ii) the
enforcement of any settlement of, or judgement in respect of,
such claim, provided that such claim is resolved in favour of
the Purchaser or the relevant member of the Group or the
Purchaser's Group.
10.3 The covenants contained in clause 10.2 do not apply to any liability:
10.3.1 to the extent that provision or reserve in respect thereof has
been made in the Completion Accounts or to the extent that
payment or discharge of such liability has been taken into
account therein;
10.3.2 in respect of which provision or reserve has been made in the
Completion Accounts which is insufficient only by reason of
any increase in rates of Tax made after the Completion Date
with retrospective effect;
10.3.3 to the extent that the Tax liability arises as a result of the
Purchaser, the Company or any Subsidiary failing to comply
with their respective obligations under this clause 10;
10.3.4 to the extent that the Tax liability in question arises or is
increased as a result of the failure by the Purchaser, the
Company or any Subsidiary after Completion to make any claim,
election, surrender or disclaimer or give any notice or
consent under any enactment relating to Taxation, the making
or giving of which was taken into account in preparing the
Accounts or the Completion Accounts and in the case of a
claim, election, surrender, disclaimer, notice or consent
assumed to be made or given in the preparation of the Accounts
sufficient details of which are notified to the Purchaser at
least 60 days prior to the last date upon which such claim,
election, surrender or disclaimer notice or consent could
validly be made or given;
10.3.5 to the extent that the Tax liability in question arises or is
increased as a result of any voluntary claim, election,
surrender or disclaimer made or notice or consent given after
Completion by the Purchaser, the Company or any Subsidiary
other than pursuant to clause 10.9, 10.9.1 or 10.11 hereof and
other
38
than pursuant to a comment or suggestion made by the Vendors
or their duly authorised agents in accordance with clause
10.10;
10.3.6 to the extent that the Tax liability in question arises or is
increased as a result of any cessation or winding-up after
Completion of any trade or business carried on by the Company
or any Subsidiary or the Purchaser or any major change after
Completion in the nature or conduct of any trade carried on by
the Company or any Subsidiary;
10.3.7 to the extent that the Tax liability in question arises or is
increased as a result of the any change in law or published
practice or any withdrawal of any extra statutory concession
by any authority competent to impose a Tax liability (a "Tax
Authority");
10.3.8 to the extent that the Tax liability in question arises or is
increased as a result of any change in accountancy principles
or practice or as a result of the change in the bases,
policies, or methods of accounting of the Purchaser, the
Company or any Subsidiary except where such change was
necessary to rectify any prior non-compliance with relevant
generally accepted accounting principles and practice;
10.3.9 to the extent that any relief arising to the Company or
relevant Subsidiary wholly before Completion (other than any
such relief as is referred to in clause 10.1.5.1, 10.1.5.2,
10.1.5.3, 10.4.2, 10.4.3 or 10.5) is available for offset
against the Tax Liability concerned provided that the Vendors
shall have notified the Purchaser in writing of the
availability of such relief and shall have taken all such
steps as are reasonable to assist in obtaining the benefit or
claiming such relief;
10.3.10 to the extent that the Tax liability in question arises or is
increased as a result of any voluntary act, transaction or
omission by the Purchaser, the Company or any Subsidiary after
Completion outside the ordinary course of business and which
could reasonably have been avoided and otherwise (in the case
of the Company and any Subsidiary only) than pursuant to a
legally binding obligation entered into before Completion;
10.3.11 to the extent that the Tax liability has been made good by
insurers deducting for these purposes the associated costs and
expenses of maintaining the relevant policy of insurance;
10.3.12 to the extent that the Purchaser has made recovery in respect
of the Tax liability concerned by means of a claim for breach
of any of the Warranties (whether or not relating to
Taxation);
10.3.13 to the extent that the Tax liability is corporation tax which
has been deducted in calculating the Deferred Consideration;
10.3.14 to the extent that the Tax liability arises solely as a result
of the combination of two or more events one or more of which
shall have taken place on or before the Completion Date in
circumstances where the events occurring after
39
Completion occurred inside the Company's ordinary course of
business and is or are the events referred to in clauses
10.1.2.1 or 10.1.2.2 AND the income, profits or gains by
reference to which such Tax liability is calculated are actual
income, profits or gains (as opposed to income, profits or
gains which are deemed to have been or treated as or regarded
as earned, accrued or received) which have not been reflected
or taken into account in either the Accounts or the Completion
Accounts;
10.3.15 to the extent that the Tax liability arises by reference to
actual income, profits or gains (as opposed to income, profits
or gains which are deemed to have been or treated as or
regarded as or earned, accrued or received) earned, accrued or
received since the Accounting Date and which are not reflected
or taken into account in the Completion Accounts.
10.3.16 to the extent that the Tax liability arises by reference to
actual income, profits or gains (as opposed to income, profits
or gains which are deemed to have been or treated as or
regarded as earned, accrued or received) earned, accrued or
received in the accounting reference period which ended on the
Accounting Date and which were not reflected or taken into
account in the Accounts.
10.4.1 If any provision for Taxation in the Completion Accounts
proves to be an over-provision, then the amount of such
over-provision shall be dealt with as set out in clause
10.4.4.
10.4.2 If the Vendors and the Purchaser shall agree that any Tax
Claim which has resulted in a payment having been made or
becoming due from the Vendors under this Agreement will give
rise to relief which relief results in an actual saving of Tax
or repayment of Tax for the Company or any Subsidiary which
would not otherwise have arisen, then, the amount by which
that Company's or any Subsidiary's liability to Tax is so
reduced or the amount of such repayment of Tax shall be dealt
with in accordance with clause 10.4.4 below and for these
purposes the Purchaser shall use all reasonable endeavours to
utilise any such reliefs in priority to any other reliefs that
arise in accounting periods commencing after that in which the
relief arose;
10.4.3 If the Vendors and the Purchaser shall agree that the Company
or any Subsidiary has:
10.4.3.1 received after the Completion Date from any Tax
Authority any repayment of Taxation in circumstances
where the Taxation in question was paid before
Completion and the repayment of such Taxation has not
been taken into account or reflected in the Accounts
or the Completion Accounts and is not otherwise dealt
with in accordance with clause 10.4.4; or
10.4.3.2 set off after the Completion Date any relief (other
than such relief as is referred to in clauses
10.1.5.1, 10.1.5.2 or 10.1.5.3) against any Tax
liability (whether arising before or after
Completion) of the Company
40
or any Subsidiary in circumstances where the Tax
liability in question is not a Tax liability in
respect of which a claim could be made under clause
10 and the relief arises as a result of or is
calculated by reference to an event occurring
(including the accrued earning or receiving of
income, profits or gains) before Completion;
then the Relevant Amount shall be dealt with in accordance
with clause 10.4.4 PROVIDED ALWAYS THAT:
(a) the Relevant Amount shall be in such a case as is
mentioned in clause 10.4.3.1, the amount of the
repayment received by the Company or the Subsidiary
but only to the extent that it is neither (i)
reflected or taken into account in the Accounts or
the Completion Accounts, nor (ii) otherwise taken
into account in accordance with clause 10.4.4;
(b) the Relevant Amount shall be, in such a case as is
mentioned in clause 10.4.3.2, the amount of Taxation
agreed by the Vendors and the Purchaser as having
been saved by the use of the relief in question; and
(c) the Purchaser shall use reasonable endeavours to
recover any such repayment as is mentioned in clause
10.4.3.1 and to procure that the Company and/or the
Subsidiary use any such reliefs as are mentioned in
clause 10.4.3.2 but nothing in this clause 10.4.3.2
(c) shall require the Purchaser to procure that the
Company or Subsidiary utilise any such relief in
priority to any other reliefs which are available to
the Company or the Subsidiary and nothing in this
clause 10.4.3.2 (c) shall require the Purchaser to do
(or to procure that the Company or any of the
Subsidiaries shall do) anything that the Purchaser
reasonably believes is likely to have a material
adverse effect on the business of any member of the
Group taken as a whole.
10.4.4 where it is provided under paragraph 10.4.1, 10.4.2 or 10.4.3
that any amount (the "Relevant Amount") is to be dealt with in
accordance with this paragraph:
(a) the Relevant Amount shall first be set off against
any payment then due from the Vendors under this
Agreement; and
(b) to the extent there is an excess, a refund shall be
made to the Vendors of any previous payment or
payments made by the Vendors under this Agreement and
not previously refunded under this clause up to the
amount of such excess; and
(c) to the extent that the excess referred to in
paragraph (b) of this paragraph is not exhausted
under that paragraph, the remainder of that excess
shall be repaid to the Vendors within 30 days of:
(i) in a case falling within clause 10.4.1, the
date on which the Vendors and the Purchaser
agree that a provision for Tax has proved to
be an over provision;
41
(ii) in a case falling within clause 10.4.2, the
date on which the Tax which has been reduced
by reason of the relief in question would
otherwise have been due to be paid or (as
the case may be) the date on which the
Company or the Subsidiary receives the
repayment of Tax in question;
(iii) in a case falling within clause 10.4.3.1,
the date on which the Company or the
Subsidiary received the repayment of Tax in
question; and
(iv) in a case falling within clause 10.4.3.2,
the date on which the Tax against which the
relief in question has been set off would
otherwise have been due to have been paid.
10.5 The Purchaser shall and shall procure that the Company and each
Subsidiary takes such steps as are reasonably necessary for the Company
and each Subsidiary to use in the manner hereinafter mentioned all
reliefs (other than any reliefs referred to in clauses 10.1.5.1,
10.1.5.2, 10.1.5.3, 10.4.1, 10.4.2 or 10.4.3 above) arising to the
Company by reason of events occurring on or before the date of
Completion as are available to the Company and as are notified to the
Purchaser in writing by the Vendors to reduce or eliminate any
liability of the Company to make an actual payment of Tax in respect of
which the Purchaser would have been able to make a claim against the
Vendors under this Agreement, the said use being to effect the
reduction or elimination of any such liability to make an actual
payment of Tax to the extent permitted by law, provided that neither
the Purchaser, the Company nor any Subsidiary shall be required to do
anything that, in the reasonable opinion of the Purchaser, might have a
material adverse effect on the business of any member of the Group
taken as a whole.
10.6 The Purchaser shall procure that the Company makes (or joins in making)
such claims and elections and signs such documents as may be reasonably
necessary to effect the reduction or elimination referred to in clause
10.5.
10.7 If the Vendors and the Purchaser shall fail to agree as contemplated in
clauses 10.4.2, 10.4.3, 10.4.3.2 (b) and 10.4.4 (c) (i) within 45 days
of written notice having been served by the Vendors on the Purchaser to
agree the matter in question, the matter shall be referred to such
chartered accountant (the "Independent Accountant") as the parties may
agree or in default of agreement within 10 days nominated by the
President for the time being of the Institute of Chartered Accountants
in England and Wales on the application of any of the Vendors or the
Purchaser. The Independent Accountant shall act as an expert and not as
arbitrator and his decision shall, save in the case of manifest error,
be binding on the parties (including the manner in which his costs
shall be borne by the Vendors and the Purchaser).
10.8 If the Purchaser, the Company or any Subsidiary is entitled to recover
from some other person (not being the Purchaser, any member of the
Group or the Purchaser's Group or any person connected with any of them
but including, without limitation, any Tax Authority) any sum (other
than a sum which is dealt with in accordance with clause 10.4.4) in
respect of a Tax Claim that has resulted or will result in the Vendors
becoming liable to make a payment under this clause 10 or the
Warranties relating to
42
Taxation, or subsequently becomes entitled to make such a recovery,
then Purchaser shall or shall procure that the Company shall as soon as
reasonably practicable after becoming aware of such entitlement notify
the Vendors of its entitlement and shall, if reasonably so required by
the Vendors in writing and subject to being indemnified against all
losses, costs, interest, damages and expenses which may hereby be
incurred take all such reasonable steps to enforce that recovery
(keeping the Vendors informed of the progress of any action taken) as
the Vendors may reasonably request and, provided that neither the
Purchaser nor the Company nor any Subsidiary shall be required to do
anything which in the reasonable opinion of the Purchaser might have a
material adverse effect on the business of any member of the Group
taken as a whole and shall account to the Vendors for whichever is the
lesser of:
10.8.1 any sum so recovered (including any interest or repayment
supplement paid by the Tax Authority) but net of any Tax paid
by the Company or relevant recipient or which would be due
from the Company or relevant recipient but for any such relief
as is mentioned in clauses 10.1.5.1, 10.1.5.2 or 10.1.5.3
hereof and net of any reasonable costs, expenses and charges
properly incurred in recovering the same; and
10.8.2 the amount paid by or due by the Vendors under this clause 10
or the Warranties relating to Taxation in respect of the Tax
Claim in question.
10.9 The Vendors or their duly authorised agents shall be responsible for,
and have the conduct of preparing, submitting to and agreeing with the
relevant Tax Authorities all Tax returns, computations and other
related documents of the Company and each Subsidiary relating to all
accounting periods ending on or before Completion ("Relevant Accounting
Periods") and subject as hereafter provided shall be solely entitled to
deal with all matters (including correspondence) relating to such Tax
returns, computations, and other related documents.
10.9.1 The Vendors shall submit all Tax returns, computations and
related documents as are referred to in clause 10.9 to the
Purchaser or its duly authorised agents for comment a
reasonable time before they are due to be sent to the relevant
Tax Authority. The Purchaser or its agents shall comment
within 21 days of such submission and if the Vendors shall not
have received comments within that period, the Purchaser or
its agents shall be deemed to have approved such draft
computations. If the Purchaser or its agents have any comments
or suggestions, the Vendors and its agents shall not
unreasonably refuse to adopt such comments or suggestions
provided that nothing herein shall oblige the Company or any
Subsidiary to submit any computation or other document unless
it is reasonably satisfied that it is accurate and complete in
all material respects. The Vendors and the Purchaser shall
respectively afford (or procure to be afforded) to the other
or their agents such information and assistance as may
reasonably be required to prepare, submit and agree all
relevant Tax returns, computations and other related
documents.
10.9.2 The Purchaser shall, except in the case of manifest error,
procure (i) that the Company and each Subsidiary shall cause
the returns referred to in clause 10.9. to be authorised,
signed and submitted to the appropriate Tax Authority without
amendment or with such amendments as the Vendors shall agree
43
(such agreement not to be unreasonably withheld or delayed);
and (ii) that the Company and each Subsidiary makes (or joins
in making) such claims and elections as the Vendors shall
reasonably require in relation to accounting periods for which
the Vendors have responsibility pursuant to clause 10.9 above.
10.9.3 For the avoidance of doubt, it is hereby agreed that the
Company shall bear the reasonable costs of the Company of
preparing and submitting the tax computations, returns and
other documents referred to in clause 10.9 and dealing with
matters arising in connection therewith.
10.10 The Purchaser shall be responsible for, and have the conduct of
preparing, submitting to and agreeing with the relevant Taxation
Authorities all Tax computations of the Company for the period
comprising Completion subject to all such tax computations, documents
and correspondence (in so far as they relate also to the period between
the Accounting Date and Completion) being submitted in draft to the
Vendors for comment. The Vendors or their duly authorised agents shall
comment within 14 business days of such submission. If the Purchaser
has not received any comments within 21 business days, the Vendors and
its duly authorised agents shall be deemed to have approved such draft
documents. If the Vendors or their duly authorised agents have any
comments or suggestions, the Purchaser shall not unreasonably refuse to
adopt such comments or suggestions except where the Purchaser
reasonably believes the same would be materially prejudicial to the Tax
affairs of any member of the Group taken as a whole. (Provided always
that nothing in this clause 10.10 shall entitle the Purchaser to refuse
to make such claims under sections 152, 153, 155, 156 and 175 TCGA as
are referred to in paragraph 2.15 of the Disclosure Letter or in
respect of the Deferred Consideration Properties.) The Vendors and the
Purchaser shall each respectively afford (or procure the affordance) to
the other or their duly authorised agents of information and assistance
which may reasonably be required to prepare, submit and agree all such
outstanding Tax computations.
10.11 In the event that a Claim against the Vendors arises pursuant to this
clause 10, no such liability or dispute shall be admitted, settled or
discharged without the written consent of the Vendors (such consent not
to be unreasonably withheld or delayed) and the Purchaser shall
(provided that it is indemnified to its reasonable satisfaction by the
Vendors against any costs, expenses, liabilities, penalties, and fines
which may be incurred by the Purchaser, the Group and the Purchaser's
Group in taking such action and provided that the Vendors give the
Purchaser such assistance as they may reasonably require) take such
action or procure that SFX UK shall take such action to avoid, dispute,
resist, appeal, compromise or contest such liability or dispute as may
be reasonably requested by the Vendors provided that the Purchaser
shall not be obliged to take any action which the Purchaser reasonably
believes acting in good faith having taken account of the reasonable
representations of the Vendors will or is reasonably likely to have a
material adverse effect on the goodwill of the Group taken as a whole.
10.12 The Purchaser (for itself and on behalf of SFX UK) hereby covenants
with the Vendors to pay to the Vendors an amount equal to any of the
following:
44
10.12.1 any liability or increased liability to Tax of any company
under the control of the Vendors which arises as a result of
or by reference to any reduction or disallowance of Group
Relief that would otherwise have been available to the Vendors
or the relevant subsidiary of such company where and to the
extent that such reduction or disallowance occurs as a result
of or by reference to:
(a) any total or partial withdrawal effected by any
Company after Completion of any surrender of Group
Relief that was submitted by any Company to the
Inland Revenue on or before Completion in respect of
any accounting period on or before Completion; or
(b) any total or partial disclaimer made by any Company
after Completion of any capital allowances available
to any Company in respect of any accounting period
ended on or before Completion
save where any such withdrawal or disclaimer is made at the
express written request of the Vendors or pursuant to clause
10.9, 10.9.1, 10.9.2, 10.10 or 10.11 hereof;
10.12.2 any liability or increased liability to the Tax of the Vendors
or any company under the control of the Vendors which arises
as a consequence of any Relevant Company failing to pay the
whole of the Tax charged by any Tax assessment made in respect
of that Relevant Company within six months of the date of that
Tax Assessment where (and to the extent that) the liability
for that Tax arises in circumstances such that the Purchaser
would not have been entitled to make a claim against the
Vendors under clause 10.2 hereof in respect of that Tax had it
been paid by the Relevant Company and, for the purposes of
this sub-clause, the term "Relevant Company" shall mean any of
the Company, any Subsidiary and any other company which is, or
has at any time been, treated for the purposes of any Tax as
being a member of the same group of companies as the
Purchaser;
10.12.3 all costs and expenses incurred by the Vendors in connection
with a claim by the Vendors which results in a payment being
made under this clause 10.12, and any reasonable and proper
costs (including legal costs on a solicitor and own client
basis), expenses or other liabilities which any of them may
incur either before or after the commencement of any action in
connection with (i) any legal proceedings in which the Vendors
make a claim under this clause 10.12 and in which judgement is
given for the Vendors or (ii) the enforcement of any
settlement or, or judgement in respect of, such claim,
provided that such claim is resolved in favour of the Vendors;
10.12.4 where the Purchaser or SFX UK becomes liable to make any
payment under sub-clause 10.12 hereof, the due date for the
making of that payment shall be the date that is the last date
on which the Vendors or, as the case may be, the relevant
company would have had to have paid to the appropriate Tax
Authority the Tax that has given rise to the Purchaser's or
SFX UK's liability under clause 10.12 hereof in order to avoid
incurring a liability to interest or a charge or penalty in
respect of that amount of Tax;
45
10.12.5 if any payment required to be made by the Purchaser or SFX UK
under clause 10.12 hereof is not made by the due date for the
making thereof, then that payment shall carry interest from
that due date until the date when the payment is actually made
at the rate of three per cent above the base rate for the time
being of National Westminster Bank plc; and
10.12.6 all sums payable by the Purchaser or SFX UK to the Vendors
under this clause shall be paid free and clear of all
deductions or withholdings whatsoever, save only as may be
required by law. If any sum payable by the Purchaser under
this clause 10.12 (other than interest under clause 10.12.5)
shall be subject to Tax (whether by way of deduction or
withholding or direct assessment of the person entitled
thereto) such payment shall be increased by such amount as
shall ensure that after deduction, withholding or payment of
such Tax the recipient shall have received a net amount equal
to the payment otherwise required hereby to be made.
10.13 The liability of:
10.13.1 the Vendors under this clause shall cease after the sixth
anniversary of the first anniversary of the Accounting Date
except in respect of matters which have been the subject of a
written claim before such date by the Purchaser or the
Purchaser's Solicitors to any of the Vendors or the Vendors'
Solicitors provided that any such claim shall be deemed to
have been irrevocably withdrawn if proceedings in respect of
it are not begun within 9 months of the sixth anniversary
referred to above unless the claim in question has arisen by
reason of fraud, wilful concealment or dishonesty in which
event there shall be no contractual limit in the time period
within which such claim may be brought; and
10.13.2 the Purchaser under this clause shall cease after the sixth
anniversary of the first anniversary of the Accounting Date
except in respect of matters which have been the subject of a
written claim before such date by the Vendor or the Vendors'
Solicitors to the Purchaser or the Purchaser's Solicitors
provided that any such claim shall be deemed to have been
irrevocably withdrawn if proceedings in respect of it are not
begun within 9 months of the sixth anniversary referred to
above unless the claim in question has arisen by reason of
fraud, wilful concealment or dishonesty in which event there
shall be no contractual limit in the time period within which
such claim may be brought.
10.14 The due date for the making of payments under this clause 10 (other
than clause 10.12 or clause 10.4.4) shall be the later of the day
following seven days after written demand has been made therefor and:
10.14.1 where the payment relates to a liability of the Company or any
of the Subsidiaries to make an actual payment of or in respect
of Tax, the date which is seven days before the date on which
such actual payment becomes due and payable to the relevant
authority;
10.14.2 where the payment relates to a matter falling within clause
10.1.5.1 or 10.1.5.3, the date falling seven days after the
Vendors have been notified by
46
the Purchaser that the auditors for the time being of the
Company or the relevant Subsidiary have certified at the
request of the Purchaser or the Company or the relevant
Subsidiary that the Vendors have a liability for a
determinable amount under clause 10.2 or, if later, the date
on which any Tax for which would have been liable under this
clause 10 would have been due and payable to the Tax Authority
entitled to the same but for the use of any such relief as is
referred to in clause 10.1.5.1 or 10.1.5.3
10.14.3 where the payment relates to a matter falling within clause
10.1.5.2 the date on which the repayment of Tax would
otherwise have been due to be made, and;
10.14.4 in the case of costs expenses within clause 10.2.5 seven days
after written demand has been made therefore or, if later, the
date on which such costs become due and payable.
10.15 If any payment due to be made by the Vendors under this clause is not
made on the due date for payment thereof the same shall carry interest
which shall accrue from day to day from such due date of payment until
actual payment at the rate of three per cent above the base rate from
time to time of National Westminster Bank Plc, compounded annually.
10.16 If any sum payable by the Vendors under this clause 10 (other than
interest under clause 10.15) shall be subject to Tax (whether by way of
deduction or withholding or direct assessment of the person entitled
thereto) such payment shall be increased by such an amount as shall
ensure that after deduction, withholding or payment of such Tax the
recipient shall have received a net amount equal to the payment
otherwise required hereby to be made.
10.17 The Purchaser shall and shall procure that SFX UK shall indemnify the
Vendors and each of them against any and all reasonable and proper
costs and expenses (including legal costs on a solicitor and own client
basis) to the extent that such costs and expenses are incurred in
successfully defending in all respects a claim under clause 10.2 hereof
and where the Purchaser and the members of the Purchaser's Group have
no right of appeal or the Purchaser has not appealed within the
applicable time limits.
10.18 The Vendors shall indemnify the members of the Purchaser's Group and
each of them against any and all reasonable and proper costs and
expenses (including legal costs on a solicitor and own client basis) to
the extent that such costs and expenses are incurred in successfully
defending in all respects a claim under clause 10.12 hereof and where
the Vendors have no right to appeal or the Vendors have not appealed
within the applicable time limits.
11. PENSIONS
11.1 For the purposes of this clause 11, the definitions set out in part 1
of Schedule 7 shall apply.
11.2 For the purposes of this clause 11, the value at the Completion Date of
the assets of the Pension Scheme and the value at the Completion Date
of the prospective benefits payable to or in respect of all active
members, pensioners and deferred pensioners
47
which have accrued in consequence of pensionable service under the
Pension Scheme up to the Completion Date (including any augmentations
to benefits and any benefits due in respect of transfer payments
received by the Pension Scheme) shall be calculated (if the Purchaser
elects to have the value of the Pension Scheme as at the Completion
Date calculated) by the Purchaser's Actuary at the Purchaser's expense,
using the actuarial assumptions used in the last formal Actuarial
Valuation of the Pension Scheme undertaken as at April 1997 and also
the minimum funding requirement.
11.3 In the event that the value of the assets of the Pension Scheme at the
Completion Date is less than the value of the prospective benefits (on
each basis described in clause 11.2) calculated by the Purchaser's
Actuary in accordance with clause 11.2 and certified to the Purchaser
by the Purchaser's Actuary:
11.3.1 the Vendors shall pay to the Purchaser, or if the Purchaser so
requests in writing to the trustees of the Pension Scheme,
such amount as the Purchaser's Actuary shall certify to be
equal to the shortfall and the cost to the Purchaser of the
valuations performed by the Purchaser's Actuary (together with
interest thereon calculated in accordance with this clause)
or, if a shortfall exists on both bases, the greater of the
shortfalls;
11.3.2 the required amount (and the interest on it) shall be paid to
the Purchaser or to the Pension Scheme (as appropriate) no
later than thirty (30) days after the receipt by the Vendor of
the certificate of the Purchaser's Actuary specifying the
value of that amount at the Completion Date;
11.3.3 the Vendors have the option to instruct the Vendors' Actuary
to check the calculations performed by the Purchaser's Actuary
and any dispute between the Purchaser's Actuary and the
Vendors' Actuary regarding the calculations can be referred at
either the Purchaser's or the Vendors' request to an
independent Actuary; and
11.3.4 the Vendors shall, in addition, pay interest upon the
shortfall (or upon such part as shall remain unpaid) from the
Completion Date to the date of actual payment at 2% above the
National Westminster Bank plc base rate from time to time in
force calculated on a day to day basis with monthly rests.
11.4 No liability shall attach to the Vendors under clause 11.3 unless the
aggregate amount of any such liability, when aggregated with any
interest payable in accordance with clause 11.3.4 exceeds fifty
thousand pounds ((pounds sterling)50,000). For the avoidance of doubt,
if such liability does exceed fifty thousand pounds ((pounds
sterling)50,000), the Vendors' liability under Clause 11.3 shall attach
to the entire amount (together with the cost to the Purchaser of the
valuations performed by the Purchaser's Actuary) and not just the
excess.
11.5 In relation to the SSAS:
11.5.1 the Vendors hereby jointly and severally undertake to use
their best endeavours to procure that a deed of amendment for
the SSAS (in the form set out in part 2 of Schedule 7, the
"Deed of Amendment") is executed and that
48
the approval of the Pension Schemes Office of the Inland
Revenue ("the PSO") is obtained for the Deed of Amendment;
11.5.2 in the event that the approval of the PSO cannot be obtained
for the Deed of Amendment, the Vendors hereby jointly and
severally undertake to use their best endeavours to procure
that the Deed of Amendment is modified in the light of
comments received from the PSO and executed and approval for
such modified Deed of Amendment is subsequently obtained from
the PSO;
11.5.3 the Vendors hereby jointly and severally indemnify and keep
indemnified the Purchaser and the Principal Employer (as
defined in the governing documentation of the SSAS) for the
time being of the SSAS against all costs, claims, demands,
expenses and litigation whenever and howsoever arising in
relation to the SSAS (except and to the extent that such
costs, claims, demands, expenses and litigation arise as a
consequence of default by the said Principal Employer in
relation to its duties and obligations under legislation and
regulations governing the SSAS and its constitutional
documents) and, without prejudice to the generality of the
foregoing, shall indemnify and keep indemnified the Purchaser
and the Principal Employer for the time being of the SSAS
against any liabilities arising by virtue of the failure of
the Vendors to procure the execution of and approval of the
PSO to the Deed of Amendment in the exact form set out in part
2 of Schedule 7 or as modified in accordance with clause
11.5.2.
12. INDEMNITIES
12. The Vendors hereby covenant with and undertake to indemnify the
Purchaser for itself and as trustee for each member of the Purchaser's
Group and the Group and their respective successors in title, officers,
directors, employees and agents as to Xxxx Xxxxxxx Xxxxx and Xxxxx Xxx
Xxxxx jointly and severally, as to Xxxxx Xxxxxxx Xxxxxx and the DCR
Trustees jointly and severally, as to Xxxxxx Xxxx Xxxxxxxx and the SJS
Trustees jointly and severally, as to Xxxxx Xxxxxxxx Xxxxx and the DCG
Trustees jointly and severally, and as to Xxxxx Xxxxx Xxxxxx and Xxxxx
Xxxx Xxxxx severally, fully on demand and to keep them indemnified
against any and all liabilities, losses (including consequential
losses) penalties, fines, damages, claims, costs, expenses and legal or
professional fees and disbursements (on a full indemnity basis)
incurred, suffered or sustained by them or asserted against them, or
any or all of them arising out of:
12.1.1 the sale of any of the Deferred Consideration Properties,
including, for the avoidance of doubt, in relation to any
representations and/or warranties given to any of the
purchasers of the such Deferred Consideration Properties; and
12.1.2 the exercise of the option pursuant to the option agreement
dated 7 August 1991 between Dominion Xxxxx Xxxxxxxxxxx and
Apollo Dominion Investments Limited to the extent that the
amount received by the Group is less than eight million five
hundred and seventy seven thousand pounds ((pounds
sterling)8,577,000) as reduced by the net amount (if any) of
the operating profit attributable to the Dominion Theatre and
Nederlander Dominion from the Completion Date until the date
of purchase of the Group's interest.
49
12.2 The liability of the Vendors shall cease in respect of any claim:
12.2.1 under clause 12.1.1 on the sixth anniversary of completion of
the sale of each such Deferred Consideration Property; and
12.2.2 under clause 12.1.2 on the earlier of the fifth anniversary of
the Completion Date and the date upon which Xxxx Xxxxxxx
Xxxxx'x employment is terminated (except in relation to
termination through no fault of his employer).
13. RESTRICTION ON ANNOUNCEMENTS AND CONFIDENTIALITY OF INFORMATION
RECEIVED BY THE VENDORS
13.1 Each of the parties to this Agreement undertakes that it will not (save
as required by law, under any securities act, rules or regulations, or
by any securities exchange or any supervisory or regulatory body to
whose rules any party to this Agreement is subject, including in
connection with the Purchaser's proposed equity offering) make any
statement or announcement in connection with this Agreement unless the
other parties shall have given their respective consents to such
announcement (which consents may not be unreasonably withheld or
delayed and may be given either generally or in a specific case or
cases and may be subject to conditions).
13.2 Subject to clause 13.1, the Vendors undertake with the Purchaser and
the members of the Purchaser's Group that they shall treat as strictly
confidential all information received or obtained by them or their
employees, agents or advisers as a result of entering into or
performing this Agreement including information relating to the
provisions of this Agreement, the negotiations leading up to this
Agreement, the subject matter of this Agreement and the business or
affairs of any member of the Purchaser's Group and subject to the
provisions of clause 13.3 that they will not at any time hereafter make
use of or disclose or divulge to any person any such information and
shall use their best endeavours to prevent the publication or
disclosure of any such information.
13.3 The restrictions contained in clause 13.2 shall not apply so as to
prevent the Vendors from making any disclosure required by law or by
any securities exchange or supervisory or regulatory or governmental
body pursuant to rules to which the relevant Vendor is subject or from
making any disclosure to any professional adviser for the purposes of
obtaining advice (provided always that the provisions of this clause 14
shall apply to and the Vendors shall procure that they apply to and are
observed in relation to, the use or disclosure by such professional
adviser of the information provided to him) nor shall the restrictions
apply in respect of any information which comes into the public domain
otherwise than by a breach of this clause 14 by any Vendor.
14. COSTS
14.1 Each party to this Agreement shall pay its own costs of and incidental
to this Agreement and the sale and purchase hereby agreed to be made.
50
14.2 Save as specifically referred to in this Agreement, the Vendors confirm
that no expense of whatever nature relating to the sale of the Sale
Shares, the Loan Notes and related guarantee has been or is to be borne
by the Company or any of the Subsidiaries.
15. GENERAL
15.1 This Agreement shall be binding upon and enure for the benefit of the
estates, personal representatives or successors of the parties. This
Agreement may not be assigned by any party without the prior written
consent of each other party. Notwithstanding the foregoing, the
obligations and rights of the Purchaser hereunder or any part thereof
may be assigned and delegated without the consent of the Vendors to any
affiliated company of the Purchaser and/or to any transferee of the
Sale Shares, but only where such transfer is effected pursuant to the
exercise of security rights by any lender to or financial source of the
Purchaser's Group and such rights may be assigned but only as security
to any such lender.
15.2 This Agreement (together with any documents referred to herein or
executed contemporaneously by the parties in connection herewith)
constitutes the whole agreement between the parties hereto and
supersedes any previous agreements or arrangements between them
relating to the subject matter hereof; it is expressly declared that no
variations hereof shall be effective unless made in writing signed by
duly authorised representatives of the parties.
15.3 All of the provisions of this Agreement shall remain in full force and
effect notwithstanding Completion (except insofar as they set out
obligations that have been fully performed at Completion).
15.4 If any provision or part of a provision of this Agreement shall be, or
be found by any authority or court of competent jurisdiction to be,
invalid or unenforceable, such invalidity or unenforceability shall not
affect the other provisions or parts of such provisions of this
Agreement, all of which shall remain in full force and effect and such
invalid or unenforceable provision shall be replaced by a provision or
part of a provision as similar in terms to such invalid or
unenforceable provision as possible to effect the intent of the parties
which shall be valid and enforceable.
15.5 If any liability of one or more but not all of the Vendors shall be or
become illegal, invalid or unenforceable in any respect, such
circumstance shall not affect or impair the liabilities of the other
Vendors under this Agreement.
15.6 The Purchaser may release or compromise the liability of any of the
Vendors hereunder or grant to any Vendor time or other indulgence
without affecting the liability of any other Vendor hereunder.
15.7 Save as stated in relation to clauses 9.6, 9.10.1 and 9.10.2 where time
is of the essence, no failure of any party to exercise, and no delay or
forbearance in exercising, any right or remedy in respect of any
provision of this Agreement shall operate as a waiver of such right or
remedy.
51
15.8 Upon and after Completion the Vendors shall do and execute or procure
to be done and executed all such further acts, deeds, documents and
things as may be reasonably necessary to give effect to the terms of
this Agreement and to place control of the Company and the Subsidiaries
in the hands of the Purchaser and SFX UK and pending the doing of such
acts, deeds, documents and things the Vendors shall as from Completion
hold the legal estate in the Sale Shares in trust for the Purchaser and
SFX UK.
15.9 At the request of the Purchaser, each of the Vendors shall execute as a
deed a power of attorney in favour of the Purchaser or such person as
may be nominated by the Purchaser generally in respect of the Sale
Shares and in particular to enable the Purchaser (or its nominees) to
attend and vote at General Meetings of the Company.
15.10 Unless this Agreement or any arrangement of which it forms a part is a
non-notifiable agreement pursuant to Section 27A of the Restrictive
Trade Practices Xxx 0000 ("RTPA 1976") or paragraph 5, Schedule 13 of
the Competition Xxx 0000, to the extent that any provision of this
Agreement or of any such arrangement is a restriction or information
provision for the purposes of the RTPA 1976 by virtue of which this
Agreement or any such arrangement is registrable under the RTPA 1976,
no such restriction or information provision shall take effect or be
enforced until the day after particulars of this Agreement or (as the
case may be) that arrangement have been furnished to the Director
General of Fair Trading in accordance with the RTPA 1976.
15.11 This Agreement may be executed in one or more counterparts, and by the
parties on separate counterparts, but shall not be effective until each
party has executed at least one counterpart and each such counterpart
shall constitute an original of this Agreement but all the counterparts
shall together constitute one and the same instrument.
16. NOTICES
16.1 Save as otherwise provided in this Agreement any notice, demand or
other communication to be served under this Agreement shall be in
writing in the English language and shall be served upon any party
hereto only by posting by first class post or pre-paid recorded
delivery (if to an address in the same country) or air mail (if to an
address in a different country) or delivering the same by hand or by
courier, to its address given or referred to in this clause or sending
the same by facsimile transmission to the number given in this clause
for the addressee or at such other address or number as it may from
time to time notify in writing to the other parties hereto.
16.2 A notice, demand or other communication served by first class post or
pre-paid recorded delivery shall be deemed duly served on an address in
the same country 48 hours (disregarding days which are not business
days) after posting, a notice, demand or other communication served by
air mail shall be deemed duly served on an addressee in a different
country five business days after posting and a notice, demand or other
communication sent by facsimile transmission shall be deemed to have
been served at the time of transmission (save that if the transmission
occurs after 6pm the notice, demand or other communication shall be
deemed to have been served at 8.30am on the next business day following
transmission) and in proving service of the
52
same it will be sufficient to prove, in the case of a letter, that such
letter was left at or delivered to the correct address of the party to
be served as provided in this Agreement or, in the case of properly
stamped or franked first class post or air mail or pre-paid recorded
delivery, addressed to the address of the party to be served given in
this clause and placed in the post and, in the case of facsimile
transmission, that such facsimile was duly transmitted to the number of
the party to be served given in this clause and an electronic
acknowledgement was received.
16.3 All notices, demands or other communications given under this
Agreement, shall be given to the following addresses:
If to the Vendors: To the address set out in Schedule 1 or such
other address as is notified to the Purchaser
from time to time for these purposes.
Copied to: The Vendors' Solicitors, marked for the attention
of Xxxxxx Xxxxxx.
If to the Purchaser: SFX ENTERTAINMENT, INC., 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000, Xxxxxx Xxxxxx of America,
telephone (000) 000 000 0000, facsimile (001)
000 000 0000 for the attention of the legal
department.
Copied to: Xxxxx & XxXxxxxx, Two Xxxxx Center, Suite 1200,
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000-0000,
Xxxxxx Xxxxxx of America, facsimile: (001) 713
427 5099 for the attention of Xxxx Xxxxxxxx (for
the purpose of information only and not for
purpose of Service).
16.4 For the purposes of this clause "business day" means a day (other than
a Saturday or a Sunday) on which banks are generally open for business
in London and New York.
17. AGENT FOR SERVICE
17.1 The Purchaser agrees that any document may be sufficiently and
effectively served on it in connection with any proceedings in England
and Wales by service on the Purchaser's Solicitors, if no replacement
agent has been appointed and notified to the Vendors pursuant to clause
18.3 below, or on the replacement agent if one has been appointed and
notified to the Vendors.
17.2 Any document served pursuant to this clause shall be marked for the
attention of:
17.2.1 Xxxxx & XxXxxxxx Ref: TEDG: For the attention of the
Litigation Partner/Service of Process, 000 Xxx Xxxxxx Xxxxxx,
Xxxxxx XX0X 0XX; or
17.2.2 such other person as is appointed as agent for service
pursuant to clause 18.3 below at the address notified pursuant
to 18.3 below.
17.3 If the agent referred to in clause 18.1 above (or any replacement agent
appointed pursuant to this clause) at any time ceases for any reason to
act as such, the Purchaser
53
shall appoint a replacement agent to accept service having an address
for service in England and Wales and shall notify the Vendors of the
name and address of the replacement agent.
17.4 A copy of any document served on any agent pursuant to this clause
shall be served on the Purchaser at its address for the time being for
the service of notices and other communications under clause 17.3 in
accordance with that clause.
18. GOVERNING LAW AND SUBMISSION TO JURISDICTION
This Agreement shall be governed by and construed in accordance with English law
and the parties hereto submit to the non-exclusive jurisdiction of the English
courts for the purpose of enforcing any claim arising hereunder.
54
SCHEDULE 2
DETAILS OF THE COMPANY
THE COMPANY
-----------
1. Registered number: 2129195
2. Address of registered office: Xxxxxx Xxxxx, Xxxxxxxxxx Xxxx, Xxxxxx,
Xxxxxx XX0 0XX
3. Date and place of 7 May 1987
incorporation:
England and Wales
4. Authorised share capital: 5,000,000 ordinary shares of (pounds
sterling)1 each
5. Issued share capital: 3,000,200 ordinary shares of (pounds
sterling)1 each
6. Directors: Xxxx Xxxxxxx Xxxxx, Xxxxx Xxx Xxxxx,
Xxxxx Xxxxxxx Xxxxxx, Xxxxxx Xxxx
Xxxxxxxx, Xxxxx Xxxxxxxx Xxxxx and Xxxx
Xxxxxxx Xxxxxx
7. Secretary: Xxxxx Xxxxxxx Xxxxxx
8. Accounting Reference Date: 30 November
9. Auditors: Xxxxx Partnership and Deloitte & Touche
55
SCHEDULE 3
THE SUBSIDIARIES
1. Name of Subsidiary: Apollo Dominion Investments Limited
2. Registered Number: 01623438
3. Date and place of Incorporation: 19/03/1982, England & Wales
4. Address of Registered Office: Xxxxxx Xxxxx, Xxxxxxxxxx Xxxx, Xxxxxx,
Xxxxxx, XX0 0XX
5. Directors: X.X. Xxxxx, X.X. Xxxxxx, X.X. Xxxxxxxx,
6. Secretary: X.X. Xxxxxx
7. Auditors: Xxxxx Partnership
8. Accounting Reference Date: 03/12
9. Authorised Share Capital: 100 ordinary shares of(pounds sterling)1 each
10. Issued Share Capital: 100 ordinary shares of(pounds sterling)1 each
11. Registered Shareholders and Apollo Leisure (UK) & X X Xxxxx 1
identity of beneficial owners: Xxxxxx Xxxxxxx (XX) & X X Xxxxx 00
0. Name of Subsidiary: Apollo Leisure (U.K.) Limited
2. Registered Number: 01444368
3. Date and place of Incorporation: 17/08/1979 England & Wales
4. Address of Registered Office: Xxxxxx Xxxxx, Xxxxxxxxxx Xxxx, Xxxxxx,
Xxxxxx, XX0 0XX
5. Directors: X.X. Xxxxx, X.X. Xxxxxx, X.X. Xxxxxxxx,
X. Xxxxxxx, S.C. Xxxxxxx, N.D. Xxxxxxxx
6. Secretary: X.X. Xxxxxx
7. Auditors: Xxxxx Partnership,
8. Accounting Reference Date: 03/12
9. Authorised Share Capital: 100 ordinary shares of(pounds sterling)1 each
10. Issued Share Capital: 100 ordinary shares of(pounds sterling)1 each
11. Registered Shareholders and Apollo Leisure Group Limited 99
identity of beneficial owners: Apollo Leisure Group Limited & X.X. Xxxxx 1
1. Name of Subsidiary: Apollo Lyceum London Limited
2. Registered Number: 2898096
3. Date and place of Incorporation: 15/02/1994 England & Wales
4. Address of Registered Office: Xxxxxx Xxxxx, Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxx, XX0
0XX
5. Directors: X.X. Xxxxx, X.X. Xxxxxx, X.X. Xxxxxxxx, N.D.
Xxxxxxxx, S.C. Xxxxxxx
6. Secretary: X.X. Xxxxxx
7. Auditors: Xxxxx Partnership
8. Accounting Reference Date: 30/11
9. Authorised Share Capital: 100 ordinary shares of(pounds sterling)1 each
10. Issued Share Capital: 2 ordinary shares of(pounds sterling)1 each
11. Registered Shareholders and Apollo Leisure (UK) Limited
identity of beneficial owners: 2
56
1. Name of Subsidiary: Cardiff International Arena Limited
2. Registered Number: 03014566
3. Date and place of Incorporation: 26/01/1995, England & Wales
4. Address of Registered Office: Xxxxxx Xxxxx, Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxx, XX0
0XX
5. Directors: X.X. Xxxxx, X.X. Xxxxxx, S.C. Xxxxxxx
6. Secretary: X.X. Xxxxxx
7. Auditors: Xxxxx Partnership
8. Accounting Reference Date: 30/11
9. Authorised Share Capital: 100 ordinary shares of (pounds sterling)1 each
10. Issued Share Capital: 2 ordinary shares of (pounds sterling)1 each
11. Registered Shareholders and Apollo Leisure (UK) Limited
identity of beneficial owners: 2
1. Name of Subsidiary: Cardiff World Trade Centre Limited
2. Registered Number: 02965830
3. Date and place of Incorporation: 07/09/94, England & Wales
4. Address of Registered Office: Xxxxxx Xxxxx, Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxx, XX0
0XX
5. Directors: X.X. Xxxxx, X.X. Xxxxxx, S.C. Xxxxxxx
6. Secretary: X.X. Xxxxxx
7. Auditors: Xxxxx Partnership
8. Accounting Reference Date: 30/11
9. Authorised Share Capital: 100 ordinary shares of (pounds sterling)1 each
10. Issued Share Capital: 2 ordinary shares of (pounds sterling)1 each
11. Registered Shareholders and Apollo Leisure (UK) Limited 2
identity of beneficial owners:
1. Name of Subsidiary: Apollo Theatre Productions Limited
2. Registered Number: 1544438
3. Date and place of Incorporation: 10/02/1981 England & Wales
4. Address of Registered Office: Xxxxxx Xxxxx, Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxx, XX0
0XX
5. Directors: X.X. Xxxxx
6. Secretary: X.X. Xxxxxx
7. Auditors: Xxxxx Partnership,
8. Accounting Reference Date: 03/12
9. Authorised Share Capital: 100 ordinary shares of(pounds sterling)1 each
10. Issued Share Capital: 100 ordinary shares of(pounds sterling)1 each
11. Registered Shareholders and Apollo Leisure (UK) Limited 99
identity of beneficial owners: Xxxxxx Xxxxxxx (XX) & X X Xxxxx 0
0. Name of Subsidiary: Apollo Theatre (Victoria) Limited
2. Registered Number: 01481278
3. Date and place of Incorporation: 25/02/1980 England & Wales
57
4. Address of Registered Office: Xxxxxx Xxxxx, Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxx, XX0
0XX
5. Directors: X.X. Xxxxx, X.X. Xxxxxx, X.X. Xxxxxxxx
6. Secretary: X.X. Xxxxxx
7. Auditors: Xxxxx Partnership
8. Accounting Reference Date: 03/12
9. Authorised Share Capital: 100 ordinary shares of (pounds sterling)1 each
10. Issued Share Capital: 100 ordinary shares of (pounds sterling)1 each
11. Registered Shareholders and Apollo Leisure (UK) Limited 99
identity of beneficial owners: Xxxxxx Xxxxxxx (XX) & X X Xxxxx 0
0. Name of Subsidiary: Dragon Advertising Limited
2. Registered Number: 02655969
3. Date and place of Incorporation: 21/10/91 England & Wales
4. Address of Registered Office: Xxxxxx Xxxxx, Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxx, XX0
0XX
5. Directors: X.X. Xxxxx
6. Secretary: X.X. Xxxxxx
7. Auditors: None
8. Accounting Reference Date: 30/11
9. Authorised Share Capital: 100 ordinary shares of(pounds sterling)1 each
10. Issued Share Capital: 100,000 ordinary shares of (pounds sterling)1 each
11. Registered Shareholders and Apollo Leisure Group Limited 75
identity of beneficial owners: Exors X X Xxxxx 15
S M B Xxxxx 10
1. Name of Subsidiary: Manchester Theatres Limited
2 Registered Number: 01889935
3. Date and place of Incorporation: 26/02/85 England & Wales
4. Address of Registered Office: Xxxxxx Xxxxx, Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxx, XX0
0XX
5. Directors: X.X. Xxxxx, X.X. Xxxxxx, X.X. Xxxxxxxx and N D
Xxxxxxxx
6. Secretary: X.X. Xxxxxx
7. Auditors: Xxxxx Partnership
8. Accounting Reference Date: 30/11
9. Authorised Share Capital: 100 ordinary shares of(pounds sterling)1 each
10. Issued Share Capital: 100 ordinary shares of(pounds sterling)1 each
11. Registered Shareholders and Apollo Leisure (UK) Limited 99
identity of beneficial owners: X X Xxxxxx (Nominee for Apollo Leisure (UK)
Limited) 1
1. Name of Subsidiary: Tatton Cinemas (Gatley) Limited
2. Registered Number: 0324687
3. Date and place of Incorporation: 25/02/1937, England & Wales
4. Address of Registered Office: Xxxxxx Xxxxx, Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxx, XX0
0XX
58
5. Directors: X.X. Xxxxxx, X.X. Xxxxxxxx
6. Secretary: X.X. Xxxxxx
7. Auditors: Xxxxx Partnership
8. Accounting Reference Date: 30/11
9. Authorised Share Capital: 18,000 ordinary shares of(pounds sterling)1 each
10. Issued Share Capital: 18,000 ordinary shares of(pounds sterling)1 each
11. Registered Shareholders and Manchester Theatres Limited 17,999 Manchester
identity of beneficial owners: Theatres Limited & X X Xxxxxx 1
1. Name of Subsidiary: World Trade Centre Wales Limited
2. Registered Number: 01340618
3. Date and place of Incorporation: 25/11/1977, England & Wales
4. Address of Registered Office: Xxxxxx Xxxxx, Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxx, XX0
0XX
5. Directors: X.X. Xxxxx, X.X. Xxxxxx, X.X. Xxxxxxxx
6. Secretary: X.X. Xxxxxx
7. Auditors: Xxxxx Partnership
8. Accounting Reference Date: 30/11
9. Authorised Share Capital: 100 ordinary shares of (pounds sterling)1 each
10. Issued Share Capital: 100 ordinary shares of (pounds sterling)1 each
11. Registered Shareholders and Apollo Leisure (UK) Limited 99
identity of beneficial owners: Apollo Leisure (UK) & X X Xxxxx 1
1. Name of Subsidiary: Tickets London Limited
2. Registered Number: 2846049
3. Date and place of Incorporation: 19/08/1993 England & Wales
4. Address of Registered Office: Xxxxxx Xxxxx, Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxx, XX0
0XX
5. Directors: X.X. Xxxxx, X.X. Xxxxxx, X.X. Xxxxxxxx, N.D.
Xxxxxxxx
6. Secretary: X.X. Xxxxxx
7. Auditors: Xxxxx Partnership
8. Accounting Reference Date: 30/11
9. Authorised Share Capital: 1,000 ordinary shares of(pounds sterling)1 each
10. Issued Share Capital: 150 ordinary shares of(pounds sterling)1 each
11. Registered Shareholders and Apollo Leisure (UK) Limited 100
identity of beneficial owners: Tickets International Limited 50
1. Name of Subsidiary: Tickets North Limited
2. Registered Number: 2628279
3. Date and place of Incorporation: 10/07/1991 England & Wales
4. Address of Registered Office: Xxxxxx Xxxxx, Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxx, XX0
0XX
5. Directors: X.X. Xxxxx, X.X. Xxxxxx, X.X. Xxxxxxxx, N.D.Xxxxxxxx
6. Secretary: X.X. Xxxxxx
59
7. Auditors: Xxxxx Partnership
8. Accounting Reference Date: 30/11
9. Authorised Share Capital: 1,000,000 ordinary shares of(pounds sterling)1 each
10. Issued Share Capital: 2 ordinary shares of(pounds sterling)1 each
11. Registered Shareholders and Apollo Leisure (UK) & X X Xxxxxx 1
identity of beneficial owners: Apollo Leisure (UK) Limited 2
1. Name of Subsidiary: Fitzers Limited
2. Registered Number: 02461451
3. Date and place of Incorporation: 19/01/1990. England & Wales
4. Address of Registered Office: 0 Xxxxx Xxxxxx, Xxxx Xxxxxxxxx, Xxxxxxxxxx, X0 0XX
5. Directors: X.X. Xxxxx, X.X. Xxxxxx, X.X. Xxxxxxxx, X.X.
Xxxxxxxxxxx, X.X. Xxxxxxxxxxx, X. Xxxxxx
6. Secretary: X.X. Xxxxxx
7. Auditors: None
8. Accounting Reference Date: 30/11
9. Authorised Share Capital: 50 A ordinary shares and 50 B ordinary shares each
of(pounds sterling)1
10. Issued Share Capital: 50 A ordinary shares and 50 B ordinary shares each
of(pounds sterling)1
11. Registered Shareholders and Apollo Leisure (UK) Limited 50
identity of beneficial owners: X X Xxxxxxxxxxx 50
1. Name of Subsidiary: Xxxxxxxxxx Leisure Group of Companies Limited
2. Registered Number: 00565365
3. Date and place of Incorporation: 28/04/1956, England & Wales
4. Address of Registered Office: 0 Xxxxx Xxxxxx, Xxxx Xxxxxxxxx, Xxxxxxxxxx, X0 0XX
5. Directors: X.X. Xxxxx, X.X. Xxxxxx, X.X. Xxxxxxxx, N.D. Xxxxxxxx
6. Secretary: X.X. Xxxxxx
7. Auditors: Xxxxx Partnership
8. Accounting Reference Date: 30/11
9. Authorised Share Capital: 1,000,000 ordinary shares of (pounds sterling)1 each
10. Issued Share Capital: 100,000 ordinary shares of (pounds sterling)1 each
11. Registered Shareholders and Apollo Leisure (UK) Limited 100,000
identity of beneficial owners:
1. Name of Subsidiary: Xxxxxxxxxx Cinemas (North Wales) Limited
2. Registered Number: 00964627
3. Date and place of Incorporation: 23/10/1969 England & Wales
4. Address of Registered Office: 0 Xxxxx Xxxxxx, Xxxx Xxxxxxxxx, Xxxxxxxxxx, X0 0XX
5. Directors: X.X. Xxxxx, X.X. Xxxxxx, X.X. Xxxxxxxx, N.D. Xxxxxxxx
60
6. Secretary: X.X. Xxxxxx
7. Auditors: Xxxxx Partnership
8. Accounting Reference Date: 30/11
9. Authorised Share Capital: 1,000 ordinary shares of (pounds sterling)1 each
10. Issued Share Capital: 1,000 ordinary shares of (pounds sterling)1 each
11. Registered Shareholders and Xxxxxxxxxx Leisure Group of
identity of beneficial owners: Companies Limited 998
X X Xxxxxxxxxx 1
X X Xxxxxxxxxx and Xxxxxxxxxx Leisure Group of
Companies Limited 1
1. Name of Subsidiary: Xxxxxxxxxx Cinemas (Properties) Limited
2. Registered Number: 738149
3. Date and place of Incorporation: 18/10/1962 England & Wales
4. Address of Registered Office: 0 Xxxxx Xxxxxx, Xxxx Xxxxxxxxx, Xxxxxxxxxx, X0 0XX
5. Directors: X.X. Xxxxx, X.X. Xxxxxx, X.X. Xxxxxxxx, N.D. Xxxxxxxx
6. Secretary: X.X. Xxxxxx
7. Auditors: Xxxxx Partnership
8. Accounting Reference Date: 30/11
9. Authorised Share Capital: 5,000 ordinary shares of(pounds sterling)1 each
10. Issued Share Capital: 1,000 ordinary shares of(pounds sterling)1 each
11. Registered Shareholders and Xxxxxxxxxx Leisure Group
identity of beneficial owners: of Companies Limited 999
X X Xxxxxxxxxx and Xxxxxxxxxx Leisure
Group of Companies Limited 1
1. Name of Subsidiary: Xxxxxxxxxx Leisure Limited
2. Registered Number: 1076410
3. Date and place of Incorporation: 12/101972 England & Wales
4. Address of Registered Office: 0 Xxxxx Xxxxxx, Xxxx Xxxxxxxxx, Xxxxxxxxxx, X0 0XX
5. Directors: X.X. Xxxxx, X.X. Xxxxxx, X.X. Xxxxxxxx, N.D. Xxxxxxxx
6. Secretary: X.X. Xxxxxx
7. Auditors: Xxxxx Partnership
8. Accounting Reference Date: 30/11
9. Authorised Share Capital: 50,000 ordinary shares of 10p each
10. Issued Share Capital: 20 ordinary shares of 10p each
11. Registered Shareholders and Xxxxxxxxxx Leisure Group
identity of beneficial owners: of Companies Limited 19
X X Xxxxxxxxxx and Xxxxxxxxxx Leisure
Group of Companies Limited 1
1. Name of Subsidiary: The Wigan Entertainments Company Limited
2. Registered Number: 0111659
61
3. Date and place of Incorporation: 08/09/1910, England & Wales
4. Address of Registered Office: 0 Xxxxx Xxxxxx, Xxxx Xxxxxxxxx, Xxxxxxxxxx, X0 0XX
5. Directors: X.X. Xxxxx, X.X. Xxxxxx, X.X. Xxxxxxxx, N.D. Xxxxxxxx
6. Secretary: X.X. Xxxxxx
7. Auditors: None
8. Accounting Reference Date: 30/11
9. Authorised Share Capital: 42,000 ordinary shares of(pounds sterling)1 each
10. Issued Share Capital: 30,285 ordinary shares of(pounds sterling)1 each
11. Registered Shareholders and Xxxxxxxxxx Leisure Limited 30,284
identity of beneficial owners: XX Xxxxxxxxxx and Xxxxxxxxxx Leisure
Limited 1
1. Name of Subsidiary: Unit Four Cinemas Limited
2. Registered Number: 0841717
3. Date and place of Incorporation: 19/03/1965 England & Wales
4. Address of Registered Office: 0 Xxxxx Xxxxxx, Xxxx Xxxxxxxxx, Xxxxxxxxxx, X0 0XX
5. Directors: X.X. Xxxxx, X.X. Xxxxxx, X.X. Xxxxxxxx, N.D. Xxxxxxxx
6. Secretary: X.X. Xxxxxx
7. Auditors: None
8. Accounting Reference Date: 02/12
9. Authorised Share Capital: 100 ordinary shares of(pounds sterling)1 each
10. Issued Share Capital: 100 ordinary shares of(pounds sterling)1 each
11. Registered Shareholders and Xxxxxxxxxx Leisure Group of Companies Limited 99
identity of beneficial owners: Xxxxxxxxxx Leisure Group of Companies Limited and XX
Xxxxxx 1
1. Name of Subsidiary: Unit Four Cinemas (Accrington) Limited
2. Registered Number: 1559426
3. Date and place of Incorporation: 05/05/1981 England and Wales
4. Address of Registered Office: 0 Xxxxx Xxxxxx, Xxxx Xxxxxxxxx,
Xxxxxxxxxx, X0 0XX
5. Directors: X.X. Xxxxx, X.X. Xxxxxx, X.X. Xxxxxxxx,
6. Secretary: X.X. Xxxxxx
7. Auditors: None
8. Accounting Reference Date: 02/12
9. Authorised Share Capital: 1,500 ordinary shares of (pounds sterling)1 each
10. Issued Share Capital: 1,500 ordinary shares of (pounds sterling)1 each
11. Registered Shareholders and Xxxxxxxxxx Leisure Group of
Identity of beneficial owners: Companies Limited 1,500
1. Name of Subsidiary: Unit Four Cinemas (Wigan) Limited
2. Registered Number: 928375
62
3. Date and place of Incorporation: 06/03/1968 England & Wales
4. Address of Registered Office: 0 Xxxxx Xxxxxx, Xxxx Xxxxxxxxx, Xxxxxxxxxx, X0 0XX
5. Directors: X.X. Xxxxx, X.X. Xxxxxx, X.X. Xxxxxxxx
6. Secretary: X.X. Xxxxxx
7. Auditors: None
8. Accounting Reference Date: 02/12
9. Authorised Share Capital: 100 ordinary shares of (pounds sterling)1 each
10. Issued Share Capital: 100 ordinary shares of (pounds sterling)1 each
11. Registered Shareholders and Unit Four Cinemas Limited 99
identity of beneficial owners Unit Four Cinemas &DC Xxxxxx 1
1. Name of Subsidiary: Unit Four Cinemas (Walkden) Limited
2. Registered Number: 0787110
3. Date and place of Incorporation: 07/10/1964 England & Wales
4. Address of Registered Office: 0 Xxxxx Xxxxxx, Xxxx Xxxxxxxxx, Xxxxxxxxxx, X0 0XX
5. Directors: X.X. Xxxxx, X.X. Xxxxxx, X.X. Xxxxxxxx
6. Secretary: X.X. Xxxxxx
7. Auditors: None
8. Accounting Reference Date: 02/12
9. Authorised Share Capital: 100 ordinary shares of (pounds sterling)1 each
10. Issued Share Capital: 100 ordinary shares of (pounds sterling)1 each
11. Registered Shareholders and Unit Four Cinemas Limited 99
identity of beneficial owners: Unit Four Cinemas & X X Xxxxxx 1
1. Name of Subsidiary: Xxxxx Xxxxxxx Concerts Limited
2. Registered Number: 01996525
3. Date and place of Incorporation: 06/03/1986 England & Wales
4. Address of Registered Office: 000 Xxxxxxx Xxxxxx, Xxxxxx, X0X 0XX
5. Directors: Xxxxx Xxxxxxx
6. Secretary: Xxxxx Xxxxxxx
7. Auditors: Xxxxx Partnership
8. Accounting Reference Date: 30/11
9. Authorised Share Capital: 100,000 ordinary shares of(pounds sterling)1 each
10. Issued Share Capital: 100 ordinary shares of(pounds sterling)1 each
11. Registered Shareholders and Xxxxx Xxxxxxx 50
identity of beneficial owners: Apollo Leisure Group Limited 50
1. Name of Subsidiary: Xxxxx Xxxxxxx Productions Limited
2. Registered Number: 02405548
3. Date and place of Incorporation: 18/07/1989 England & Wales
4. Address of Registered Office: 000 Xxxxxxx Xxxxxx, Xxxxxx, X0X 0XX
5. Directors: Xxxxx Xxxxxxx, X.X. Xxxxxx, X.X. Xxxxx
6. Secretary: X.X. Xxxxxx
7. Auditors: Xxxxx Partnership
8. Accounting Reference Date: 30/11
63
9. Authorised Share Capital: 100(pounds sterling)1 ordinary shares
249,900 (pounds sterling)1 Deferred Ordinary Shares
10. Issued Share Capital: 16 (pounds sterling)1 ordinary shares
160,000 (pounds sterling)1 Deferred Ordinary Shares
11. Registered Shareholders and Xxxxx Xxxxxxx Concerts Limited 15
identity of beneficial owners: Xxxxx Xxxx Xxxxxxxxx 160,000
Xxxxx Xxxxxxx 1
1. Name of Subsidiary: Xxxxx Xxxxxxx Concerts (London) Limited
2. Registered Number: 02177553
3. Date and place of Incorporation: 13/10/1987 England & Wales
4. Address of Registered Office: 000 Xxxxxxx Xxxxxx, Xxxxxx, X0X 0XX
5. Directors: Xxxxx Xxxxxxx, Xxxxx Xxxxxxx
6. Secretary: Xxxxx Xxxxxxx
7. Auditors: None
8. Accounting Reference Date: 30/11
9. Authorised Share Capital: 100,000 ordinary shares of (pounds sterling)1 each
10. Issued Share Capital: 1,000 ordinary shares of (pounds sterling)1 each
11. Registered Shareholders and Xxxxx Xxxxxxx Concerts Limited 1,000
identity of beneficial owners:
1. Name of Subsidiary: Street Promotions (Europe) Limited
2. Registered Number: 2721990
3. Date and place of Incorporation: 10/06/1992 England and Wales
4. Address of Registered Office: 000 Xxxxxxx Xxxxxx, Xxxxxx, X0X 0XX
5. Directors: Xxxxx Xxxxxxx
6. Secretary: Xxxxx Xxxxxxx
7. Auditors: Xxxxx Partnership
0 Xxxxx Xxxxxx, Xxxx Xxxxxxxxx, Xxxxxxxxxx X0 0XX
8. Accounting Reference Date: 30/11
9. Authorised Share Capital: 1,000 ordinary shares of (pounds sterling)1 each
10. Issued Share Capital: 100 ordinary shares of (pounds sterling)1 each
11. Registered Shareholders and Xxxxx Xxxxxxx Concerts Limited 100
identity of beneficial owners:
1. Name of Subsidiary: Point Exhibition Company Limited
2. Registered Number: 128549
3. Date and place of Incorporation: 29/01/1988
4. Address of Registered Office: Xxx Xxxxx Xxxxx, Xxxxx Xxxx Xxxx, Xxxxxx 0
5. Directors: Xxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxx Xxx, Xxxxx Xxxxxxx
and Xxxxx Xxxxxxx
6. Secretary: Xxxxxx Xxx
7. Auditors: KPMG
8. Accounting Reference Date: 28 November
9. Authorised Share Capital: 9,900,000 ordinary shares of(pounds sterling)1 each
100,000 A ordinary shares
64
12,550,000 7% Redeemable Cumulative Preference Shares
500,000 7% Redeemable Cumulative Second Preference
Shares
10. Issued Share Capital: 500,000 ordinary shares of(pounds sterling)1 each
30,000 A ordinary shares of(pounds sterling)1 each
2,800,000 7% Redeemable Cumulative Preference Shares
500,000 7% Redeemable Cumulative Second Preference
Shares
11. Registered Shareholders and Apollo UK Limited, 250,000 ordinary shares of (pounds sterling)1
identity of beneficial owners: Xxxxx Xxxxxxx, 249,999 ordinary shares of (pounds sterling)1 each
Xxxxx Xxxxxxx, 1 ordinary share of (pounds sterling)1 Point
Presentations Limited, 30,000 `A' ordinary shares of
(pounds sterling)1 each Apollo UK Limited, 1,025,000 7%
Redeemable Cumulative Preference Shares of (pounds sterling)1
Xxxxx Xxxxxxx, 1,400,000 7% Redeemable Cumulative
Preference Shares of (pounds sterling)1 Apollo UK Limited, 250,000 7%
Redeemable Cumulative Second Preference Shares (2nd) of
(pounds sterling)1 each
Point Presentations Limited, 250,000 7% Redeemable
Cumulative Second Preference Shares (2nd) of (pounds sterling)1 each
1. Name of Subsidiary: CCL Leisure Limited (was City Centre Leisure
(Holdings) Limited until 06/08/1998)
2. Registered Number: 02227126
3. Date and place of Incorporation: 03/03/1988 England & Wales
4. Address of Registered Office: Xxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxx XX0 0XX
5. Directors: X X Xxxxxxxxx, N D Xxxxxxxx, X X Xxxxxx, C A Xxxxxx, X
X Xxxxxx and I E Xxxxxx.
6. Secretary: X X Xxxxxx
7. Auditors:
8. Accounting Reference Date: 30/11
9. Authorised Share Capital: 56,750 (pounds sterling)1 ordinary shares divided into 28,430 (pounds
sterling)1 A ordinary shares and 28,320 (pound)1 B ordinary shares
10. Issued Share Capital: 28,430(pounds sterling)1 A ordinary shares
28,320(pounds sterling)1 B ordinary shares
11. Registered Shareholders and Apollo Leisure (UK) Limited 28,430 A ordinary shares
identity of beneficial owners: K Milsom 4,885 B ordinary shares
65
L Milsom 1,884 B ordinary shares P Xxxx 1,416 B ordinary
shares
Wlabrook Trustees (Jersey) Limited 15,710 B
ordinary shares
I Xxxxxx 1,416 B ordinary shares
1. Name of Subsidiary: City Centre Leisure (London) Limited
2. Registered Number: 02678878
3. Date and place of Incorporation: 17/01/1992 England & Wales
4. Address of Registered Office: Xxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxx XX0 0XX
5. Directors: X X Xxxxxxxxx, X X Xxxx, I E Xxxxxx, X X Xxxxxx
6. Secretary:
7. Auditors:
8. Accounting Reference Date: 30/11
9. Authorised Share Capital: 5,000 ordinary shares of (pounds sterling)1 each
10. Issued Share Capital: 1,000 ordinary shares of (pounds sterling)1 each
11. Registered Shareholders and City Centre Leisure Limited 1,000
identity of beneficial owners:
1. Name of Subsidiary: City Centre Leisure (Meridian) Limited
2. Registered Number: 02700627
3. Date and place of Incorporation: 25/03/1992 England & Wales
4. Address of Registered Office: Xxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxx XX0 0XX
5. Directors: X X Xxxxxxxxx, X X Xxxxxxxx
6. Secretary: X X Xxxxxx
7. Auditors:
8. Accounting Reference Date: 30/11
9. Authorised Share Capital: 5,000 ordinary shares of (pounds sterling)1 each
10. Issued Share Capital: 100 ordinary shares of (pounds sterling)1 each
11. Registered Shareholders and City Centre Leisure Limited 100
identity of beneficial owners:
1. Name of Subsidiary: City Centre Leisure (Severn) Limited
2. Registered Number: 02678884
3. Date and place of Incorporation: 17/01/1992 England & Wales
4. Address of Registered Office: Xxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxx XX0 0XX
5. Directors: X X Xxxxxxxxx
6. Secretary: X X Xxxxxx
7. Auditors:
8. Accounting Reference Date: 30/11
9. Authorised Share Capital: 5,000 ordinary shares of (pounds sterling)1 each
10. Issued Share Capital: 100 ordinary shares of (pounds sterling)1 each
11. Registered Shareholders and City Centre Leisure Limited 100
identity of beneficial owners:
66
1. Name of Subsidiary: City Centre Leisure (Weald) Limited
2. Registered Number: 02678879
3. Date and place of Incorporation: 17/01/1992 England & Wales
4. Address of Registered Office: Xxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxx XX0 0XX
5. Directors: X X Xxxxxxxxx, X X Xxxx, K Xxxxxx
6. Secretary: X X Xxxxxx
7. Auditors:
8. Accounting Reference Date: 30/11
9. Authorised Share Capital: 1,000 ordinary shares of (pounds sterling)1 each
10. Issued Share Capital: 1,000 ordinary shares of (pounds sterling)1 each
11. Registered Shareholders and City Centre Leisure Limited 1,000
identity of beneficial owners:
1. Name of Subsidiary: Gold Diggers Limited
2. Registered Number: 2484888
3. Date and place of Incorporation: 26.03.90, England & Wales (as Showclip Limited)
4. Address of Registered Office: 0 Xxxxx Xxxxxx, Xxxx Xxxxxxxxx, Xxxxxxxxxx.
5. Directors: X.X. Xxxxx
6. Secretary: Xxxxx Xxxxxxx
7. Auditors: Xxxxx Partnership
8. Accounting Reference Date: 31/08
9. Authorised Share Capital: 1000 Ordinary shares of (pounds sterling)1 each
10. Issued Share Capital: 2 Ordinary shares of (pounds sterling)1 each
11. Registered Shareholders and Xxxxx Xxxxxxx Concerts Limited 1
identity of beneficial owners: Xxxxx Xxxxxxx Concerts Limited and Xxxxx Xxxxxxx 1
1. Name of Subsidiary: Point Presentations Limited
2. Registered Number: 14377
3. Date and place of Incorporation: 16/04/1989, Ireland
4. Address of Registered Office: Xxx Xxxxx Xxxxx, Xxxxx Xxxx Xxxx, Xxxxxx 0
5. Directors: Xxxx Xxxxx, Xxxx Xxxxxxx, Xxxxx Xxx, Xxxxx Xxxxxxx
and Xxxxx Xxxxxxx
6. Secretary: Xxxxx Xxx
7. Auditors: KPMG
8. Accounting Reference Date: 28 November
9. Authorised Share Capital: 100 ordinary shares of IR(pounds sterling)1 each
10. Issued Share Capital: 2 ordinary shares of IR(pounds sterling)1 each
11. Registered Shareholders and Point Exhibition Company Limited
identity of beneficial owners:
67
1. Name of Subsidiary: Point Promotions Limited
2. Registered Number: 172291
3. Date and place of Incorporation: 09/04/1991
4. Address of Registered Office: Xxx Xxxxx Xxxxx, Xxxxx Xxxx Xxxx, Xxxxxx 0
5. Directors: Xxxx Xxxxx, Xxxx Xxxxxxx, Xxxxx Xxx, Xxxxx Xxxxxxx
and Xxxxx Xxxxxxx
6. Secretary: Xxxxx Xxx
7. Auditors: KPMG
8. Accounting Reference Date: 28 November
9. Authorised Share Capital: 100 ordinary shares of IR(pounds sterling)1 each
10. Issued Share Capital: 2 ordinary shares of IR(pounds sterling)1 each
11. Registered Shareholders and Point Exhibition Company Limited 1
identity of beneficial owners: Xxxxxxx Xxxxxxx 1
1. Name of Subsidiary: Apollo Cambridge Theatre
2. Registered Number: 1568580
3. Date and place of Incorporation: England & Wales
4. Address of Registered Office: Xxxxxx Xxxxx, Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxx, XX0
0XX
5. Directors: X X Xxxxx
6. Secretary: X X Xxxxxx
7. Auditors
8. Accounting Reference Date: 03/12
9. Authorised Share Capital: 100 ordinary shares of(pounds sterling)1 each
10. Issued Share Capital: 100 ordinary shares of(pounds sterling)1 each
11. Registered Shareholders and identity of Apollo Leisure (UK) Ltd 99 Apollo Leisure (UK) Ltd
beneficial owners: and X X Xxxxx 1
68
SCHEDULE 4
PART 1
THE PROPERTIES
--------------------------------------------------------------------------------------------------------------------------
NO PROPERTY DESCRIPTION TENURE DATE & LANDLORDS TENANT
-------- DETAILS TERM OF
LEASE
---------------
Free Lease
Hold hold
--------------------------------------------------------------------------------------------------------------------------
1 LYCEUM THEATRE, West End Theatre LH 21.11.88 The Theatres Apollo
LONDON 150 years Trust Lyceum
London
Limited
--------------------------------------------------------------------------------------------------------------------------
0 XXXXXXXX XXXXXXX, Xxxx Xxx Theatre FH N/a N/a N/a
LONDON
--------------------------------------------------------------------------------------------------------------------------
3 PLAYHOUSE THEATRE, Provincial Theatre FH N/a N/a N/a
EDINBURGH
--------------------------------------------------------------------------------------------------------------------------
0 XXXXXX XXXXXX, Xxxxxx Theatre LH 24.3.64 Land Apollo
HAMMERSMITH 125 years Securities Leisure
(Ravenseft) (UK)
Limited
--------------------------------------------------------------------------------------------------------------------------
0 XXXXXXXXX XXXX, Xxxxxx XX X/x X/x X/x
BURNLEY
--------------------------------------------------------------------------------------------------------------------------
6 CARDIFF INTERNATIONAL Concert and LH 6.7.94 to City and Apollo
ARENA Exhibition 25.12.2131 County of Leisure
Arena and Cardiff (UK)
Offices Limited
--------------------------------------------------------------------------------------------------------------------------
7 PALACE THEATRE, Provincial Theatre FH N/a N/a N/a
MANCHESTER
--------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
NO SURETY ANNUAL NEXT RENT PRESENT OWNER REMARKS
RENTAL REVIEW USE
---------------------------------------------------------------------------------------------------------------------------------
1 None (pound)10 per None Theatre and The Theatres Tenant of restaurant is
annum Restaurant Trust Groupe Chez Gerrard
Restaurants Plc
---------------------------------------------------------------------------------------------------------------------------------
2 N/a N/a N/a Theatre Apollo Leisure
(UK) Limited
----------------------------------------------------------------------------------------------------------------------------------
3 N/a N/a N/a Theatre Apollo
Leisure (UK)
Limited
----------------------------------------------------------------------------------------------------------------------------------
4 None (pound)150,000 25.3.2010 Theatre Ravenseft
per annum Properties
Limited
----------------------------------------------------------------------------------------------------------------------------------
5 N/a N/a N/a 9 Screen Apollo Tenant of restaurant is
Multiplex Leisure (UK) Ind Coope (Oxford and
Cinema and Limited West) Limited
Restaurant
----------------------------------------------------------------------------------------------------------------------------------
6 None (pound) 15,000 6.7.2001 Arena and City and BT and various other
Agreed Offices County of tenants have short term
increase to Cardiff lets on offices
(pound)300,000
per annum
----------------------------------------------------------------------------------------------------------------------------------
7 N/a N/a N/a Theatre Apollo Leisure 999 year lease on stage
(UK) Limited extension from 22.12.80
----------------------------------------------------------------------------------------------------------------------------------
69
SCHEDULE 4
PART 1 - THE PROPERTIES
-----------------------------------------------------------------------------------------------------------------------------
NO PROPERTY DESCRIPTION TENURE DATE & LANDLORDS TENANT
-------- DETAILS TERM OF
LEASE
---------------
Free Lease
Hold hold
-----------------------------------------------------------------------------------------------------------------------------
8 OPERA HOUSE, Provincial FH N/a N/a N/a
MANCHESTER Theatre
-----------------------------------------------------------------------------------------------------------------------------
9 BRISTOL HIPPODROME, Provincial FH N/a N/a N/a
BRISTOL Theatre
-----------------------------------------------------------------------------------------------------------------------------
10 SOUTHPORT THEATRE Provincial LH 12 years from Sefton Apollo
AND FLORAL HALL Theatre and 1.4.96 Metropolitan Leisure
COMPLEX, SOUTHPORT Exhibition Hall Borough (UK)
Council Limited
-----------------------------------------------------------------------------------------------------------------------------
11 APOLLO BINGO, RHYL Bingo Xxxx XX N/a N/a N/a
-----------------------------------------------------------------------------------------------------------------------------
12 APOLLO CINEMA, RHYL Cinema LH 25 years from Denbighshire Apollo
29.9.95 County Council Leisure
(formerly (UK)
Rhuddlan Limited
Borough
Council)
-----------------------------------------------------------------------------------------------------------------------------
13 APOLLO THEATRE, Provincial FH N/a N/a N/a
MANCHESTER Theatre/Music
Venue
-----------------------------------------------------------------------------------------------------------------------------
14 APOLLO CINEMA, Cinema FH N/a N/a N/a
LEAMINGTON SPA
-----------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
NO SURETY ANNUAL NEXT RENT PRESENT OWNER REMARKS
RENTAL REVIEW USE
-------------------------------------------------------------------------------------------------------------------
8 N/a N/a N/a Theatre Apollo Leisure
(UK) Limited
-------------------------------------------------------------------------------------------------------------------
9 N/a N/a N/a Theatre 1. Apollo
Leisure (UK)
Limited
(10 + 00x Xx
Xxxxxxxxxx
Xxxxxx)
2. Apollo
Cambridge
Theatre
Limited (main
Theatre)
-------------------------------------------------------------------------------------------------------------------
10 None Pepper-corn N/a Theatre and Sefton MBC
Exhibition
Hall
-------------------------------------------------------------------------------------------------------------------
11 N/a N/a N/a Bingo Club Xxxxxxxxxx 4 lock up shops
Cinemas
(Property)
Limited
-------------------------------------------------------------------------------------------------------------------
12 N/a (pound)27,500 + None 5 Screen Denbighshire
RPI + profit Rent linked Multiplex County Council
share to RPI
-------------------------------------------------------------------------------------------------------------------
13 N/a N/a N/a Theatre Apollo Leisure 1 vacant former
(UK) Limited night club
-------------------------------------------------------------------------------------------------------------------
14 N/a N/a N/a 4 Screen Xxxxxxxxxx
Cinema Cinemas
(Properties)
Limited
-------------------------------------------------------------------------------------------------------------------
70
SCHEDULE 4
PART 1 - THE PROPERTIES
-----------------------------------------------------------------------------------------------------------------------------------
NO PROPERTY DESCRIPTION TENURE DATE & LANDLORDS TENANT
-------- DETAILS TERM OF
LEASE
---------------
Free Lease
Hold hold
-----------------------------------------------------------------------------------------------------------------------------------
15 APOLLO CINEMA, Cinema FH N/a N/a N/a
XXXXXXXXX
-----------------------------------------------------------------------------------------------------------------------------------
16 ALEXANDRA THEATRE, Provincial LH 20 years City of Apollo
BIRMINGHAM Theatre from 21.2.94 Birmingham Leisure
(UK)
Limited
-----------------------------------------------------------------------------------------------------------------------------------
00 XXXXXX XXXXXX, Xxxxxx XX X/x X/x X/x
WALLASEY
-----------------------------------------------------------------------------------------------------------------------------------
18 APOLLO THEATRE, Provincial LH 75 years City of Apollo
OXFORD Theatre from 25.12.32 Oxford Leisure
(UK)
Limited
-----------------------------------------------------------------------------------------------------------------------------------
00 XXX XXXXX, XXXXXX Concert and FH N/a N/a N/a
Exhibition Arena
-----------------------------------------------------------------------------------------------------------------------------------
00 XXXXXXXX XXXXXXX, Xxxx Xxx Theatre LH 125 years Land Xxxxx-xxxxx
LONDON less 10 Securities Dominion
days, from (Ravenseft) Limited
25.3.64 (freeholder)
Butlins
Limited
(head
leaseholder)
-----------------------------------------------------------------------------------------------------------------------------------
21 APOLLO CINEMA, Cinema LH 999 years Lancaster Xxxxxxxxxx
MORECAMBE from 1.2.96 City Council Leisure
Group of
Companies
Limited
-----------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
NO SURETY ANNUAL NEXT RENT PRESENT OWNER REMARKS
RENTAL REVIEW USE
---------------------------------------------------------------------------------------------------------
15 N/a N/a N/a 5 Screen Xxxxxxxxxx 1 tenanted
Cinema Cinemas restaurant and
(Properties) 1 vacant shop
Limited
---------------------------------------------------------------------------------------------------------
16 None Premium of 1.1.2000 Theatre City of
(pound)250,000, Agreed Birmingham
then rent
pepper-corn to increase to
31.12.99 (pound)50,000
pa
---------------------------------------------------------------------------------------------------------
17 N/a N/a N/a 6 Screen Xxxxxxxxxx
Cinema Leisure
Group of
Companies
Limited
---------------------------------------------------------------------------------------------------------
18 None (pound)600 No review Theatre, City of
Nightclub Oxford
and Shop
---------------------------------------------------------------------------------------------------------
19 N/a N/a N/a Concert and Point 50% Apollo Leisure
Arena Exhibition Group
Co Limited 50% Xxxxx Xxxxxxx
---------------------------------------------------------------------------------------------------------
20 (pound)296,153 25.3.2010 Theatre, Apollo
Shops and Dominion
Offices Investments
Limited have
33 1/3rd %
interest in
the Theatre
---------------------------------------------------------------------------------------------------------
21 None Pepper-corn None 4 Screen Lancaster
Cinema City Council
---------------------------------------------------------------------------------------------------------
71
SCHEDULE 4
PART 1 - THE PROPERTIES
-----------------------------------------------------------------------------------------------------------------------------
NO PROPERTY DESCRIPTION TENURE DATE & LANDLORDS TENANT SURETY
-------- DETAILS TERM OF
LEASE
---------------
Free Lease
Hold hold
-----------------------------------------------------------------------------------------------------------------------------
22 GRAND OPERA HOUSE, Provincial FH N/a N/a N/a N/a
YORK Theatre
-----------------------------------------------------------------------------------------------------------------------------
23 GREHAN HOUSE, Head Office and LH 21 years Apollo Apollo None
OXFORD Finance from 25.9.94 Leisure Leisure
Department Pension (UK)
Scheme Limited
-----------------------------------------------------------------------------------------------------------------------------
24 EMPIRE THEATRE, Provincial LH 124 years + 000 Xxxxxxxxx Xxxx Xxxxxx X/x
LIVERPOOL Theatre days from Council/Empire Leisure
completion (Merseyside) (UK)
of Agreement Trust Limited Theatre
to Lease
-----------------------------------------------------------------------------------------------------------------------------
25 OLD FIRE STATION, Studio Theatre LH 9.4.91 to City of Apollo
OXFORD and Cafe Bar 29.9.2009 Oxford Leisure
(UK)
Limited
-----------------------------------------------------------------------------------------------------------------------------
26 LEAS XXXXX XXXX, Provincial LH 16.9.96 to District Apollo None
FOLKESTONE Theatre 31.1.2000 Council of Leisure
Shepway (UK)
Limited
-----------------------------------------------------------------------------------------------------------------------------
27 PRINCESS THEATRE, Princess Theatre LH 60 years Borough of Apollo None
TORBAY from 17.11.98 Torbay Leisure
(UK)
Limited
-----------------------------------------------------------------------------------------------------------------------------
28 HOLLYWOOD PARK, Multiplex Cinema LH New Lease Borough of Apollo None
TORBAY (currently under will be from Torbay Leisure
construction) 20 days after (UK)
Practical Limited
Completion,
for 60 years
-----------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
NO ANNUAL NEXT RENT PRESENT OWNER REMARKS
RENTAL REVIEW USE
------------------------------------------------------------------------------------------------
22 N/a N/a Theatre Apollo Leisure
(UK) Limited
------------------------------------------------------------------------------------------------
23 (pound)87,000 25.9.99 Office Apollo Leisure
Agents Pension Scheme
recommend
increase to
(pound)145,000
------------------------------------------------------------------------------------------------
00 Xxxxxx-xxxx X/x Xxxxxxx Xxxxxxxxx
Xxxx Council
Limited
------------------------------------------------------------------------------------------------
25 Profit N/a Theatre and City of Proposed scheme to
related Cafe Bar Oxford substantially
refurbish building
linked to new Lease
------------------------------------------------------------------------------------------------
26 Pepper-corn N/a Theatre District New refurbishment
Council of scheme linked to
Shepway Management Contract
------------------------------------------------------------------------------------------------
27 Pepper-corn None Theatre Borough of
Torbay
------------------------------------------------------------------------------------------------
28 Pepper-corn From Cinema under Borough of
until 1.12.2010 construction Torbay
30.11.2010 (pound)50,000
pa 5-yearly
reviews RPI
------------------------------------------------------------------------------------------------
72
SCHEDULE 4
PART 1 - THE PROPERTIES
--------------------------------------------------------------------------------------------------------------------------
NO PROPERTY DESCRIPTION TENURE DATE & LANDLORDS TENANT SURETY
-------- DETAILS TERM OF
LEASE
---------------
Free Lease
Hold hold
--------------------------------------------------------------------------------------------------------------------------
29 APOLLO CINEMA AND 3 Screen Cinema FH N/a N/a N/a N/a
BINGO, CREWE and Bingo Club
--------------------------------------------------------------------------------------------------------------------------
30 HOLLYWOOD PARK, 6 Screen Cinema LH 125 years Neath Port Apollo N/a
PORT TALBOT from 30.11.98 Talbot Leisure
County (UK)
Borough Limited
Council
--------------------------------------------------------------------------------------------------------------------------
31 PALLADIUM CINEMA Bingo Hall and LH Lease ending Xxxxxx Xxxxxxxxxx N/a
AND BINGO, Cinema 2913 Estates Cinemas
LLANDUDNO (Properties)
Limited
--------------------------------------------------------------------------------------------------------------------------
00 XXXXXX XX XXXXX 21 Bedroom Hotel FH N/a N/a N/a N/a
HOTEL, CAERNARFON
--------------------------------------------------------------------------------------------------------------------------
33 DELIBERATELY LEFT BLANK
--------------------------------------------------------------------------------------------------------------------------
34 UNIT 4 CINEMA, Vacant Cinema FH N/a N/a N/a N/a
BRIERFIELD
--------------------------------------------------------------------------------------------------------------------------
00 XXXX XXXXXX XXXXX, Xxxxxxxxx XX 000 years Scotts Apollo N/a
PORT TALBOT from 14.8.89 Leisure
(UK)
Limited
--------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
NO ANNUAL NEXT RENT PRESENT OWNER REMARKS
RENTAL REVIEW USE
-----------------------------------------------------------------------------------------
29 N/a N/a Cinema and Xxxxxxxxxx
Bingo Club Cinemas
(Properties)
Limited
-----------------------------------------------------------------------------------------
30 (pound)15,625 N/a Multiplex Neath Port
for Cinema and Talbot
first 10 Development County
years(pound)1 Site Borough
thereafter Council
-----------------------------------------------------------------------------------------
31 (pound)35 N/a Bingo Hall Xxxxxxxxxx 7 tenanted shops
and Cinema Cinemas
(Properties)
Limited
-----------------------------------------------------------------------------------------
32 N/a N/a Hotel Xxxxxxxxxx
Cinemas
(Properties)
Limited
-----------------------------------------------------------------------------------------
33
-----------------------------------------------------------------------------------------
34 N/a N/a Vacant Cinema Xxxxxxxxxx
Group of
Companies
Limited
-----------------------------------------------------------------------------------------
35 Pepper-corn N/a Warehouse Apollo Agreed sale of
Leisure (UK) warehouse and land
Limited for (pound)296,000
-----------------------------------------------------------------------------------------
73
SCHEDULE 4
PART 1 - THE PROPERTIES
-------------------------------------------------------------------------------------------------------------------------
NO PROPERTY DESCRIPTION TENURE DATE & LANDLORDS TENANT SURETY
-------- DETAILS TERM OF
-------------- LEASE
Free Lease
Hold hold
-------------------------------------------------------------------------------------------------------------------------
36 ASTRA CINEMA, 4 Screen Cinema FH N / a N / a N / a N / a
XXXXXX
-------------------------------------------------------------------------------------------------------------------------
37 PLAZA BINGO, WIDNES Bingo Club FH N / a N / a N / a N / a
-------------------------------------------------------------------------------------------------------------------------
38 PALLADIUM BINGO, Bingo Club FH N / a N / a N / a N / a
BLACKPOOL
-------------------------------------------------------------------------------------------------------------------------
39 TATTON CINEMA, 3 Screen Cinema FH N / a N / a N / a N / a
GATLEY
-------------------------------------------------------------------------------------------------------------------------
40 HEN & CHICKENS, Public House LH 10 years Ind Coope Apollo N / a
BIRMINGHAM from 14.9.92 (Oxford and Leisure
West) Limited (UK)
Limited
-------------------------------------------------------------------------------------------------------------------------
41 PALACE BINGO, Bingo Xxxx XX 21 years Warrington Xxxxxxxxxx N / a
WARRINGTON from 1.1.78 Borough Cinemas
Council (Properties)
Limited
-------------------------------------------------------------------------------------------------------------------------
42 UNIT 4 CINEMA, 4 Screen Cinema LH 21 years Liverpool Unit 4 Xxxxx
XXXXXXX from 13.1.86 and Cinemas Tattersall
Lancashire Limited and Xxxxx
Properties Tattersall
Limited
-------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------
NO ANNUAL NEXT RENT PRESENT OWNER REMARKS
RENTAL REVIEW USE
----------------------------------------------------------------------------------
36 N / a N / a Vacant Xxxxxxxxxx Cinema and 4 shops
former Cinemas currently for sale
Cinema (Properties)
Limited
----------------------------------------------------------------------------------
37 N / a N / a Vacant Xxxxxxxxxx Currently for sale
Bingo Cinemas
Hall (Properties)
Limited
----------------------------------------------------------------------------------
38 N / a N / a Bingo Hall Xxxxxxxxxx
Group of
Companies
Limited
----------------------------------------------------------------------------------
39 N / a N / a Cinema Xxxxxxxxxx
Group of
Companies
Limited
----------------------------------------------------------------------------------
40 (pound)80,000 None Public Ind Coope
House (Oxford and
/Nightclub West) Limited
----------------------------------------------------------------------------------
41 (pound)12,000 N / a Vacant Warrington Ongoing negotiations
Bingo Borough with Council
Hall Council regarding
alternative uses
----------------------------------------------------------------------------------
42 (pound)17,000 15.1.2001 Cinema Liverpool
and
Lancashire
Properties
Limited
----------------------------------------------------------------------------------
74
SCHEDULE 4
PART 1 - THE PROPERTIES
-------------------------------------------------------------------------------------------------------------------
NO PROPERTY DESCRIPTION TENURE DATE & LANDLORDS TENANT SURETY
-------- DETAILS TERM OF
--------------- LEASE
Free Lease
Hold hold
-------------------------------------------------------------------------------------------------------------------
43 PLAZA CINEMA & 2 Screen Cinema FH N / a N / a N / a N / a
BINGO, BANGOR and Vacant
Bingo Club
-------------------------------------------------------------------------------------------------------------------
44 APOLLO CINEMA, 3 Screen Cinema XX Xxxx Budget Xxxxxxxxxx N / a
XXXXXXXX leasehold Xxxxxxx Cinemas
into (Properties)
perpetuity Limited
-------------------------------------------------------------------------------------------------------------------
45 HOLLYWOOD PARK, 6 Screen Cinema LH 25 years Positive Apollo N / a
XXXXXX from 25.12.98 Location Leisure
Properties (UK)
Limited Limited
-------------------------------------------------------------------------------------------------------------------
46 EMPIRE BINGO, Bingo Club N / a N / a N / a N / a
CAERNARFON
-------------------------------------------------------------------------------------------------------------------
47 COPPULL OFFICES, Regional Office LH 3 years Palatine Apollo N / a
COPPULL, CHORLEY from 1.3.99 Developments Leisure
Limited (UK)
Limited
-------------------------------------------------------------------------------------------------------------------
48 134 WIGMORE Former offices,
STREET, LONDON now vacated at
end of lease
-------------------------------------------------------------------------------------------------------------------
49 144 WIGMORE Offices for BCC LH 25 years Zaison Apollo N / a
STREET, LONDON /Apollo from 25.12.86 Investments Leisure
Productions Limited (UK)
Limited
-------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
NO ANNUAL NEXT RENT PRESENT OWNER REMARKS
RENTAL REVIEW USE
---------------------------------------------------------------------------------------
43 N / a N / a Cinema / Xxxxxxxxxx 3 vacant shops
vacant Cinemas
Bingo (Properties)
Club Limited
---------------------------------------------------------------------------------------
44 (pound)400 N / a 3 Screen Budget
Cinema Xxxxxxx
---------------------------------------------------------------------------------------
45 (pound)59,500 25.12.2003 6 Screen Positive
Cinema Location
Properties
Limited
---------------------------------------------------------------------------------------
46 N / a N / a Bingo Club Xxxxxxxxxx
Cinemas
(Properties)
Limited
---------------------------------------------------------------------------------------
47 (pound)18,350 N / a Offices Palatine
Developments
Limited
---------------------------------------------------------------------------------------
48
---------------------------------------------------------------------------------------
49 (pound)41,500 1.1.2006 Offices Superior
Lessee
Zaison
Investments
Limited
---------------------------------------------------------------------------------------
75
SCHEDULE 4
PART 1 - THE PROPERTIES
-------------------------------------------------------------------------------------------------------------------
NO PROPERTY DESCRIPTION TENURE DATE & LANDLORDS TENANT SURETY
-------- DETAILS TERM OF
--------------- LEASE
Free Lease
Hold hold
-------------------------------------------------------------------------------------------------------------------
50 TICKETS LONDON, Offices LH New lease Nederlander Apollo -
LONDON being Dominion Leisure
prepared Limited (UK)
Limited
-------------------------------------------------------------------------------------------------------------------
51 TICKETS DIRECT, Offices LH 7 years Drew Apollo -
MANCHESTER from 25.3.94 Investments Leisure
Limited (UK)
Limited
-------------------------------------------------------------------------------------------------------------------
52 BOARS XXXX XXXXX, Offices Licence Ongoing Xxx Xxxxx Apollo -
OXFORD Leisure
(UK)
Limited
-------------------------------------------------------------------------------------------------------------------
53 SPA PAVILION, Provincial LH 20 years Suffolk Apollo N / a
FELIXSTOWE Theatre from 3.6.96 Coastal Leisure
District (UK)
Council Limited
-------------------------------------------------------------------------------------------------------------------
00 XXXX XXXXXXX, XXXXX Xxxxxx Theatre Management 15 years London Apollo N / a
Agreement and from 1.4.92 Borough of Leisure
Licence Hillingdon (UK)
Limited
-------------------------------------------------------------------------------------------------------------------
00 XXXXXX XXXXXXX, Xxxxxxxxxx Management 10 years Swindon Apollo N / a
SWINDON Theatre Agreement from 25.3.94 Council Leisure
(UK)
Limited
-------------------------------------------------------------------------------------------------------------------
56 TAMESIDE Provincial Management 15 years Tameside Apollo N / a
HIPPODROME, Theatre Agreement from 1.10.92 Metropolitan Leisure
TAMESIDE Borough (UK)
Council Limited
-------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
NO ANNUAL NEXT RENT PRESENT OWNER REMARKS
RENTAL REVIEW USE
--------------------------------------------------------------------------------------
50 (pound)13,000 Offices Nederlander
Dominion
Limited
--------------------------------------------------------------------------------------
51 (pound)59,346 None Call Centre Drew
Investments
Limited
--------------------------------------------------------------------------------------
52 (pound)50,000 Linked to Offices Xxx Xxxxx
+ RPI RPI
--------------------------------------------------------------------------------------
53 (pound)18,000 None Theatre Suffolk
Coastal
District
Council
--------------------------------------------------------------------------------------
00 - - Xxxxxxx Xxxxxx
Xxxxxxx xx
Xxxxxxxxxx
--------------------------------------------------------------------------------------
55 N / a N / a Theatre Swindon
Council
--------------------------------------------------------------------------------------
56 N / a N / a Theatre Tameside
Council
--------------------------------------------------------------------------------------
76
SCHEDULE 4
PART 1 - THE PROPERTIES
-------------------------------------------------------------------------------------------------------------------
NO PROPERTY DESCRIPTION TENURE DATE & LANDLORDS TENANT SURETY
-------- DETAILS TERM OF
--------------- LEASE
Free Lease
Hold hold
-------------------------------------------------------------------------------------------------------------------
57 FUTURIST, Provincial Management Scarborough N / a N / a
SCARBOROUGH Theatre Agreement Borough
No formal Council
lease in
place
--------------------------------------------------------------------------------------------------------------------
58 SHEFFIELD ARENA, Concert and Management Sheffield N / a N / a
SHEFFIELD Exhibition arena Agreement City Trust
--------------------------------------------------------------------------------------------------------------------
59 XXXXXXXX HOTEL - Vacant Flat FH N / a N / a N / a N / a
FLAT, LLANDUDNO
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
NO ANNUAL NEXT RENT PRESENT OWNER REMARKS
RENTAL REVIEW USE
--------------------------------------------------------------------------------------
57 N / a N / a Theatre Scarborough
Borough
Council
---------------------------------------------------------------------------------------
58 N / a N / a Concert and Sheffield
Arena City Trust
---------------------------------------------------------------------------------------
59 N / a N / a Vacant flat Xxxxxxxxxx Formally Manager's
Cinemas flat for Xxxxxxxx
(Properties) Hotel (sold
Limited separately)
---------------------------------------------------------------------------------------
77
PART 2
CERTIFICATES OF TITLE
1. Lyceum Theatre, London
2. Victoria Apollo Theatre, London
3. Edinburgh Playhouse
4. Hammersmith Apollo, London
5. Hollywood Park, Burnley
6. Cardiff International Arena
7. Palace Theatre, Manchester
7a. Bridgwater Store, Manchester
8. Xxxxx Xxxxx, Xxxxxxxxxx
0. Xxxxxxx Xxxxxxxxxx
0x. CAST, Bristol
10. Southport Theatre and Floral Hall
11. Apollo Bingo, Rhyl
12. Apollo 5 Cinema, Rhyl
13. Apollo Theatre, Manchester
14. Apollo 4 Cinema, Leamington Spa
15, Apollo 5 Cinema, Blackburn
16. Alexandra Theatre, Birmingham
17. Apollo 6 Cinema, Wallasey
18. Apollo Theatre, Xxxxxx
00. Xxx Xxxxx, Xxxxxx
00. The Dominion Theatre, London
21. Apollo 4 Cinema, Morecambe
22. Grand Xxxxx Xxxxx, Xxxx
00. Xxxxxx Xxxxx, Xxxxxx
24. Empire Theatre, Liverpool
25. Old Fire Station, Oxford
26. Leas Xxxxx Xxxx, Folkestone
27. Princess Theatre, Torbay
28. Hollywood Park, Torbay
29. Apollo Cinema, Crewe
29a. Apollo Bingo, Crewe
30. Hollywood Park, Port Talbot
78
SCHEDULE 5
PART 1
COMPLETION ACCOUNTS
The Completion Accounts shall be prepared in accordance with the policies that
appear, and in the order shown, below:
1. the specific accounting policies set out in (i) to (viii) below;
2. to the extent not covered by 1 above, the accounting policies, principles,
practices, evaluation rules and procedures, methods and bases adopted by
the Group in preparation of the Accounts; and
3. to the extent not covered by 1 or 2 above, in accordance with UK generally
accepted accountancy principles as at the Completion Accounts Date.
(i) OTHER DEBTORS
Stocks of Paintings
Stocks of paintings (for the avoidance of doubt included within other
debtors in the financial statements of the Group) will only include items
that have been purchased from third parties for future use within the
business. No value will be attributed to any item that has previously been
included within fixed assets.
Stocks of paintings (excluding those transferred into work in progress as
at the Completion Accounts Date) will be valued at cost subject to a
maximum total value for these items of (pounds sterling)60,000.
(ii) PREPAYMENTS
Prepayments will only be included where such prepayments will give rise to
a benefit to the Group after the Completion Accounts Date or are expected
to be recovered in full from promoters or other third parties.
(iii) ACCRUED INCOME
Accrued income will only be included where such amounts are supported by
documentary evidence prepared by third parties that specify amounts to be
paid to the Group. Where such documentary evidence is not available for all
periods up to the Completion Accounts Date, accrued income may be based on
reasonable estimates prepared.
(iv) INVESTMENTS
Doctor Dolittle
The investment in the London production of Doctor Dolittle will be written
down to nil value.
79
A separate provision will be included within the Completion Accounts for
all further costs to be borne in relation to the London production of
Doctor Dolittle with the exception of storage costs incurred after the
closure of this production.
Any costs expended in relation to the UK tour of Doctor Dolittle shall be
included as current assets.
Listed securities
The quoted investments held by the Group at the Completion Accounts Date
will be valued at market value as at the Completion Accounts Date.
(v) CORPORATION TAX
(a) Full provision will be made for corporation tax which is payable for
all accounting periods ending before the Completion Accounts Date and
which has not yet been paid to the Inland Revenue. In addition, full
provision will be made for corporation tax as if the period beginning
with the day following the Accounting Date and ending on the
Completion Accounts Date was a financial year of the Company and its
Subsidiaries for corporation tax purposes. For the avoidance of
doubt, it shall be assumed that the payments to certain of the
Vendors, managers and employees referred to in (vi) below will be
fully deductible for corporation tax purposes.
(b) In preparing the provision for Tax in the Completion Accounts it
shall be assumed that (i) all of the payments referred to in clause
5.5.4 other than the payments to Xxxx Xxxxxxx Xxxxx and Xxxx Xxxxxx
and the employer's national insurance contributions thereon shall be
deductible for corporation tax purposes and (ii) the payments
referred to in clause 5.5.4 to Xxxx Xxxxxxx Xxxxx and to Xxxx Xxxxxx
and the employer's national insurance contributions thereon shall not
be deductible for corporation tax purposes.
(vi) OTHER CREDITORS
Concert Ledger
All income relating to shows that have not taken place prior to the
Completion Accounts Date will be included within deferred income.
Payments to certain of the Vendors, Managers and Employees
Provision will be made in respect of specific payments due to certain of
the Vendors, managers and employees referred to in clause 5.5.4 of this
Agreement only to the extent that these payments have not been paid on
the Completion Date.
80
(vii) CREDITORS: AMOUNTS FALLING DUE AFTER ONE YEAR
Provision for payments to be made in relation to acquisition of remaining
shares in CCL
The provision to be included in respect of future payments to acquire the
remaining issued share capital of CCL will be calculated under the terms
of the shareholders' agreement dated 5 February 1997 as modified by the
memorandum of agreement dated 28 May 1999. The forecast trading results
to be used as the basis for the calculation of this provision are to be
those forecasts prepared for the purposes of the Accounts.
(viii) OTHER MATTERS
Foreign Currencies
Foreign currency balances of all member of the Group (including the
assets and liabilities of The Point Exhibition Company Limited will be
translated into sterling at the prevailing Exchange Rate on the
Completion Accounts Date.
Lease Premiums
Lease premiums will be accounted for in accordance with the provisions of
Urgent Issues Task Force Abstract Number 12.
Vendors Private Costs
A provision will be included in relation to all costs which are either
paid to or on the instruction of the Vendors and which are in excess of
the level of such costs which have been agreed by the Purchaser to be
paid in the period following Completion or are costs which are not
wholly, exclusively and necessarily for the purposes of the business of
the Group which are incurred by the Group in the period beginning on the
day following the Completion Accounts Dates and ending on the Completion
Date.
81
PART 2
WORKING CAPITAL STATEMENT
The Working Capital Statement shall be prepared in accordance with the policies
set out in (i) to (vi) below:
(i) WORK-IN-PROGRESS
The following projects have been designated as work-in-progress:
Torbay Cinema
Folkestone
Screen Advertising in theatres
Liverpool Phase 2
Warrington
Old Fire Station cafe bar
Stage Door bar
Tower Hamlets (CCL)
Trafford (CCL)
Torbay (CCL)
Bangor
An adjustment will be included within the Working Capital Statement to
increase the level of Working Capital by the value of work-in-progress in
accordance with the following terms:
(a) Costs included within the category of work-in-progress represent
amounts invoiced from third parties only, and include stocks of
paintings not already included in Working Capital.
(b) All costs included within work-in-progress relate to work completed
or assets delivered as at the date of the Completion Accounts.
(c) No internal costs or interest costs are to be included within
work-in-progress.
(d) Any grant or other non-repayable funding which has been received in
relation to schemes included within work-in-progress must be offset
against the capitalised costs within the Working Capital Statement.
(e) No value will be attributed to any items that are transferred into
this category from other categories of fixed assets.
(ii) DEFERRED CONSIDERATION PROPERTIES
The following assets have been designated as "Deferred Consideration
Properties":
Llandudno Bingo and Cinema
Port Talbot warehouse and land
Prince of Wales Hotel
82
Except to the extent that, if such properties are removed from the Group
prior to Completion, the properties will not be designated as Deferred
Consideration Properties and will not be included in the Working Capital.
Subject to clause 7.4 of this Agreement, the Deferred Consideration
relating to the Deferred Consideration Properties shall be included in
the Working Capital Statement.
(iii) ASSETS FOR SALE
The following assets have been designated as assets for sale and will be
ascribed a total value of (pounds sterling)200,000 in the Working Capital
Statement:
Brierfield Cinema
Widnes Bingo
Xxxxxxxx Hotel Flat
Xxxxxx Cinema
Blackpool Bingo
(iv) INVESTMENTS
Doctor Dolittle
An adjustment of (pounds sterling)800,000 will be included in the Working
Capital Statement to increase the level of Working Capital in respect of
the London Production of Doctor Dolittle.
Fixed asset investments
No amount shall be included within the Working Capital Statement in
relation to fixed asset investments including the investment in
Nederlander Dominion. However, one third of all working capital balances
(calculated using the same principles as those applied in calculating the
Working Capital) of Nederlander Dominion and the tenancy in common will
be included in the Working Capital Statement.
(v) CASH
An adjustment of nine million pounds ((pounds sterling)9,000,000) will be
included within the Working Capital Statement to reduce the level of
Working Capital in relation to the cash paid by the Purchaser to
subscribe for ordinary shares in the Company in accordance with clause
5.6.1 of this Agreement.
(vi) MINORITY INTERESTS
An adjustment will be included within the Working Capital Statement to
remove the value of all minority interests included within the Working
Capital. For the avoidance of doubt, this paragraph does not refer to
either Nederlander Dominion Limited or the CCL Group.
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SCHEDULE 7
PART 1
PENSION WARRANTIES
1. DEFINITIONS
In this Schedule references to paragraphs are references to paragraphs in this
Schedule and the following expressions shall have the following meanings:
1.1 "Actuary" means a Fellow of the Institute of Actuaries or a Fellow of
the Faculty of Actuaries in Scotland;
1.2 "the Final Salary Scheme" means each of Apollo LG Pension and Assurance
Scheme and the Xxxxxxxxxx Leisure Group Pension Scheme;
1.3 "the GPPs" means each of the Apollo Leisure Group Personal Pension
Plan, the Sheffield Arena Group Personal Pension Plan, the CCL Scottish
Equitable GPP, the CCL Allied Xxxxxx GPP and any other personal pension
plan to which any of the Group contributes in respect of a present or
former employee of the Group;
1.4 "the Apollo Leisure Group Personal Pension Plan" means the group
personal pension established by the Company with effect from 1 January
1993;
1.5 "the Apollo Leisure Staff Pension Scheme" means the occupational
defined contribution scheme for senior management governed by the
Definitive Trust Deed and Rules dated 1 December 1992 and established
with effect from 1 July 1989;
1.6 "the Apollo L G Pension and Assurance Scheme" means the occupational
defined benefit scheme for staff and manual employees governed by the
Definitive Trust Deed and Rules dated 31 March 1998 and established
with effect from 1 April 1996;
1.7 "the Xxxxxxxxxx Leisure Group Pension Scheme" means the Xxxxxxxxx
Leisure Group Limited Pension and Life Assurance Scheme which was
placed into winding up with effect from 31 December 1993;
1.8 "the Money Purchase Schemes" means each of the Apollo Leisure Staff
Pension Scheme, the CCL Directors Pension Schemes with Allied Xxxxxx,
United Friendly and Scottish Equitable and the SSAS;
1.9 "the Apollo Life Scheme" means the Apollo Leisure (UK) Limited Group
Life Assurance Scheme established by a Deed of Declaration of Trust and
Rules with effect from 1 October 1990;
1.10 "the Pension Schemes" means each of the Apollo LG Pension and Assurance
Scheme, the Xxxxxxxxx Leisure Group Pension Scheme, the Money Purchase
Schemes, the GPPs and the Apollo Life Scheme and where appropriate,
shall include the trustees of the Pension Schemes;
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1.11 "the Purchaser's Actuary" means Xxxxxxx Xxxxxx of Xxxx Xxxxx & Xxxxxxx,
00 Xxx Xxxxxxxxxx Xxxxxx, Xxxxxx X0X 0XX or any other actuary appointed
by the Purchaser for the purpose of this Schedule;
1.12 "Retirement Benefit Scheme" means a retirement benefits scheme within
the meaning given to that term in Section 611 of the Taxes Act;
1.13 "the Sheffield Arena Group Personal Pension Plan" means the group
personal pension acquired by the Company when it acquired Sheffield
Arena in 1996;
1.14 "the SSAS" means the occupational defined contribution scheme
established with effect from 10 November 1987 by the Definitive Trust
Deed and Rules dated 26 July 1994 and known as the Apollo Leisure
Pension Scheme;
1.15 "the Taxes Act" means the Income and Corporation Taxes Xxx 0000; and
1.16 "the Vendors' Actuary" means Xxxxxx Xxxxxxx of Legal & General
Assurance Society Limited, Legal & Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx,
Xxxxxx XX00 0XX or any other actuary appointed by the Vendors for the
purpose of this Schedule.
2. VENDORS' WARRANTIES (GENERAL)
2.1 Other than the Pension Schemes, no member of the Group provides any
pension, share option, share incentive or similar schemes or
arrangements for the employees or former employees of the Group and the
Vendors and the Group have no obligation (whether legally binding or
established by custom) to pay any pension or make any other payment
after retirement or death or otherwise to provide "relevant benefits"
or to make any payment for the purpose of providing "relevant benefits"
within the meaning of Section 612 of the Taxes Act to or in respect of
any employee or former employee of the Group and that the Vendors and
the Group are not party to any scheme or arrangement having as it
purpose or one of its purposes the making of such payments or the
provision of such benefits;
2.2 The Vendors have supplied to the Purchaser complete and accurate copies
of all announcements and relevant booklets relating to the Pension
Schemes. The Vendors have also supplied to the Purchaser complete and
accurate copies of all trust deeds, rules and resolutions relating to
the Apollo LG Pension and Life Assurance Scheme, the Apollo Leisure
Staff Pension Scheme, the SSAS and the Apollo Life Scheme. In relation
to the Apollo L G Pension and Assurance Scheme, the Vendors have
supplied complete copies of the most recent actuarial valuation and the
Scheme accounts together with copies of any certifications made to the
Inland Revenue under the Finance Xxx 0000 or Schedule 22 to the Taxes
Act. In relation to the Money Purchase Schemes, the Vendors have
supplied complete copies of the last audited scheme accounts for each
scheme. The GPPs are, and have been since their establishment, group
personal pension arrangements.
2.3 So far as the Vendors are aware, the Pension Schemes comply and have at
all times complied materially with any applicable provisions of the
Pensions Xxx 0000, the Xxxxxxx Xxxxxxx Xxx 0000 and all other relevant
legislation and with the relevant requirements of the Pension Schemes
Office and the Contributions Agency affecting
85
schemes approved (or capable of approval) under either Chapter I or
Chapter IV of Part XIV of the Taxes Act and, where appropriate,
contracted-out under the Xxxxxxx Xxxxxxx Xxx 0000. There is no reason
why such approval should be withdrawn or not obtained. In addition, the
Vendors, any participating employers and the Pension Schemes have duly
complied with their respective obligations under the applicable trust
deeds and rules or other governing documentation of the Pension Schemes
and the aforementioned applicable legislation and other requirements;
2.4 The Vendors have disclosed to the Purchaser complete and accurate
details of all benefits payable or prospectively payable under the
Pension Schemes to or in respect of all active members, pensioners and
deferred pensioners, including any augmentations of benefits, and
details of any additional undertakings with regard to the provision of
such benefits together with complete, accurate and comprehensive
employee data (including the member's age, sex, pensionable service and
pensionable salary);
2.5 All amounts due to the Pension Schemes or to any insurance company in
connection with them have been paid and, where appropriate, have been
eligible for tax relief. All contributions paid to the Pension Schemes
since their establishment have been paid in accordance with any
guarantees, promises or undertakings given by any member of the Group
or the Pension Schemes to the employees and former employees of the
Group;
2.6 Neither the Group nor the Pension Schemes are parties to any litigation
or arbitration proceedings in respect of the Pension Schemes or the
provision of any relevant benefits (as defined in Section 612 of the
Taxes Act), and there are no current submissions or referrals to the
Pensions Ombudsman or to the Occupational Pensions Advisory Service or
notifications to the Occupational Pensions Regulatory Authority in
respect of the Group or the Pension Schemes and no such submissions,
referrals or notifications are expected by the Vendors and that there
are no outstanding payments or penalties payable by the Group or the
Pension Schemes in respect of any litigation or arbitration proceedings
or determination of the Pensions Ombudsman or the Occupational Pensions
Regulatory Authority;
2.7 No Retirement Benefits Scheme other than the Xxxxxxxxxx Leisure Group
Pension Scheme in which employees or former employees of the Group
participate or have participated has been or is in the process of being
(or is proposed to be) wound up (in whole or in part) or closed to new
entrants (in whole or in part).
3. WARRANTIES FOR THE FINAL SALARY SCHEMES
3.1 The Apollo L G Pension and Assurance Scheme (the "Pension Scheme") has
been funded to the extent recommended by the actuary to the Pension
Scheme and that neither the Group nor the Pension Scheme has undertaken
to make or accept any transfer payment on agreed terms regarding the
calculation of the payment or the benefits to be credited in respect of
the payment;
3.2 No employers other than the Company participate in the Pension Scheme
and all such participating companies were properly admitted to the
Pension Scheme;
86
3.3 The Pension Scheme does not hold any employer-related investments
(within the meaning of Section 40 of the Pensions Act 1995);
3.4 All reasonable and appropriate steps were taken by the principal
company and the trustees to trigger the termination of the Xxxxxxxxxx
Leisure Group Personal Scheme. In addition all necessary and
appropriate steps were taken by the principal company and the trustees
to secure all the assets and liabilities of the Xxxxxxxxxx Leisure
Group Pension Scheme in accordance with applicable legislative, Inland
Revenue and trust law requirements. This Scheme has been fully wound up
and no further actuarial, legislative or Inland Revenue requirements
need to be satisfied in relation to it.
3.5 There are no provisions for continued private medical insurance or
permanent health and life insurance for ex-employees and ex-directors
including pensioners, other than for X X Xxxxxx, S Simpon, D
Tattershall and P Xxxxxxx and no promises of such provisions on leaving
service for whatever reason on retirement for current employees,
workers or directors.
3.6 None of the Pension Schemes are in breach of any legal requirement to
provide equal access to benefits and equal levels of benefits to male
and female employees regardless of sex relating to any UK or European
Community legislation or any other applicable legislation.
4. WARRANTIES FOR THE MONEY PURCHASE SCHEMES
4.1 At no time since the establishment of the Money Purchase Schemes, have
members under them been guaranteed or promised a defined benefit
underpin or any other defined benefit by any member of the Group or by
the Money Purchase Schemes.
4.2 The SSAS has always, and does, comply with the Retirement Benefit
Schemes (Restriction on Discretion to Approve) (Small Self-Administered
Schemes) Regulations 1991 as subsequently amended and the Retirement
Benefits Schemes (Restriction on Discretion to Approve) (Small
Self-Administered Schemes) Regulations 1998. Without prejudice to the
generality of the foregoing, in relation to the property known as
Alexander House, 000/000/000 Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxx, all trust
law, statutory and Inland Revenue requirements have always been and are
satisfied in relation both to that property's purchase and its
subsequent retention by the trustees of the SSAS.
87
PART 2
FORM OF DEED OF AMENDMENT
THIS DEED OF AMENDMENT is made on 1999
PARTIES
XXXX XXXXXXX XXXXX and XXXXX XXX XXXXX both of Boars Xxxx Xxxxx, Jarn Way, Boars
Hill, Oxford, XXXXX CHARGES XXXXXX and XXXXX XXXXX XXXXXX both of Woodsend
Hamels Lane, Boars Hill, Oxford, XXXXXX XXXX XXXXXXXX of Xxxxxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxxxxxxxx, Xxxxxxx and XXXXXXXXXX XXXXXXXX TRUSTEES LIMITED
whose registered office is at 0-0 Xxxxx Xxxx Xxxxxx, Xxxxxxxxx XX0 0XX
("Trustees")
RECITALS
(A) By a definitive trust deed dated 10 November 1987 ("the Old Definitive
Deed") made between the Principal Employer and Xxxx Xxxxxxx Xxxxx, Xxxxx Xxxxxxx
Xxxxxx and Xxxxxxx Xxxxxxx Xxxxx, the Principal Employer established a
retirement benefits scheme called the Apollo Leisure Pension Scheme ("the
Scheme") to commence on and operate from 10 November 1987.
(B) This Deed is supplemental (inter alia) to the Old Definitive Deed and the
rules attached thereto ("the Old Rules") and to a supplemental definitive deed
("the Supplemental Deed") made on 26 July 1994 and the rules attached thereto
("the Supplemental Rules") which set out the existing definitive provisions of
the Scheme (together, "the Scheme Documents").
(C) This Deed is subject to a resolution made with effect from 6 April 1997
("the Resolution") that all decisions of the Trustees must be unanimous to be
effective.
(D) The Trustees may under Clause 10 of the Supplemental Deed and the Resolution
modify provisions of the Scheme Documents if acting unanimously.
OPERATIVE PROVISIONS
1. DEFINITIONS
The definitions used in the Supplemental Rules apply equally to this
Deed, except as otherwise stated herein.
2. AMENDMENTS
The following amendments to the Scheme Documents shall apply from the
date hereof:-
2.1 Rule 7 of the Supplemental Rules shall be replaced by the words "Each
of the Employers shall during the continuance of the Scheme contribute
20% of
88
Remuneration in respect of each Member or such other amount as the
Principal Employer and the Trustees shall agree".
2.2 In Rule 8 of the Supplemental Rules, sub-paragraph (i) shall be
replaced by:-
"(i) no grant or augmentation hereunder shall oblige any Employer
to make contributions to the Fund other than in accordance
with clause 7 above."
2.3 In Clause 19 of the Supplemental Deed the words "the Employers in such
proportion by each Employer as the Trustees shall deem appropriate"
shall be replaced by the words "the Fund". The second sentence of
Clause 19 shall be deleted.
2.4 Clause 15.1 of the Supplemental Deed shall be added to with the words:-
"b) ...., and
c) the Employers consent to the substitution of the Old Company
with the New Company".
2.5 In Clause 15.2 of the Supplemental Deed the words "the Employers" shall
be inserted after the word "Trustees".
2.6 Clause 17.3 of the Supplemental Deed shall be amended by the
replacement of the words "The Principal Employer" in the first sentence
thereof with the words "Scheme" and the addition of the words "out of
the Fund" following the words "Keep indemnified". The last sentence of
the clause shall be deleted and the clause shall be retitled "Indemnity
from the Fund".
2.7 Clause 17.4 shall be deleted.
2.8 In Clause 10 of the Supplemental Deed the words "The Trustees and the
Employers in agreement may by deed or resolution modify all or any of
the provisions of the Scheme where such modification may affect the
Employers liabilities or contributions" shall be inserted at the
beginning of the Clause and the word "other" shall be inserted after
the word "provisions" of the following sentence.
3. CONSENT
The Trustees hereby unanimously consent to the above amendments to be
operative from the date hereof.
NOW this DEED is executed the day and year before written.
89
IN WITNESS WHEREOF the parties hereto have executed this document as a deed on
the date appearing at the head hereof.
EXECUTED by ) _________________________
duly authorised officer on behalf of ) By : Xxxxxx X Xxxxx
SFX ENTERTAINMENT, INC. ) Title: Executive Vice President
Member of the Office of
the Chairman, General
Counsel and Secretary
SIGNED, SEALED )
AND DELIVERED by )
XXXX XXXXXXX XXXXX )
in the presence of )
)
SIGNED, SEALED )
AND DELIVERED by )
XXXXX XXX XXXXX )
in the presence of )
)
SIGNED, SEALED )
AND DELIVERED by )
XXXXX XXXXXXX XXXXXX )
in the presence of )
)
90
SIGNED, SEALED )
AND DELIVERED by )
XXXXX XXXXX XXXXXX )
in the presence of )
)
SIGNED, SEALED )
AND DELIVERED by )
XXXXXX XXXX XXXXXXXX )
in the presence of )
)
SIGNED, SEALED )
AND DELIVERED by )
XXXXX XXXXXXXX XXXXX )
in the presence of )
)
SIGNED, SEALED )
AND DELIVERED by )
SIMON XXXX XXXXX )
in the presence of )
)
EXECUTED AS A DEED )
by XXXXX XXXXXXX XXXXXX )
AS TRUSTEE OF THE XXXXX )
XXXXXXX XXXXXX INTEREST IN )
POSSESSION SETTLEMENT )
in the presence of )
91
EXECUTED AS A DEED )
by XXXXX XXXXX XXXXXX )
AS TRUSTEE OF THE XXXXX )
XXXXXXX XXXXXX INTEREST IN )
POSSESSION SETTLEMENT )
in the presence of )
EXECUTED AS A DEED )
by XXXXXX XXXX XXXXXXXX )
AS TRUSTEE OF THE XXXXXX )
XXXX XXXXXXXX INTEREST IN )
POSSESSION TRUST )
in the presence of )
EXECUTED AS A DEED )
by XXXXXX XXXXXXXX )
AS TRUSTEE OF THE XXXXXX )
XXXX XXXXXXXX INTEREST IN )
POSSESSION TRUST )
in the presence of )
EXECUTED AS A DEED )
by DAVID CLIFFORD GREGG )
AS TRUSTEE OF THE DAVID )
CLIFFORD GREGG ACCUMULATION )
AND MAINTENANCE TRUST )
in the presence of )
92
EXECUTED AS A DEED )
by SUZANNE GREGG )
AS TRUSTEE OF THE DAVID )
CLIFFORD GREGG ACCUMULATION )
AND MAINTENANCE TRUST )
in the presence of )
EXECUTED AS A DEED )
by SIMON PAUL GREGG )
AS TRUSTEE OF THE DAVID )
CLIFFORD GREGG ACCUMULATION )
AND MAINTENANCE TRUST )
in the presence of )
93
EXECUTED AS A DEED )
by JOHN MICHAEL COOK )
AS TRUSTEE OF THE DAVID )
CHARLES ROGERS INTEREST )
IN POSSESSION SETTLEMENT )
in the presence of )
94
