Exhibit 4.16
SHARE SALE AND PURCHASE AGREEMENT
RELATING TO
THE SHARES IN
SHAW HOTEL HOLDING B.V.
by and between
1. EURO SEA HOTEL N.V.
2. B.E.A. HOTELS N.V.
3. SHAWPARK INVESTMENTS B.V. (as "Sellers")
and
4. WG MITCHELL (SCOTLAND) LTD (as "Purchaser")
19 December 2005
Van Doorne N.V.
Jachthavenweg 121
1081 KM Amsterdam
P.O. Box 75265
1075 AG Amsterdam
The Netherlands
INDEX
CLAUSE PAGE
- ------ ----
1 Interpretation...................................................... 2
2 Sale and purchase of the Shares..................................... 4
3 Purchase Price...................................................... 4
4 Completion.......................................................... 5
5 Warranties; liability of Sellers.................................... 7
6 Indemnities......................................................... 10
7 Confidentiality..................................................... 11
8 Notices and other announcements to the Parties...................... 12
9 Waiver of right to annul or dissolve................................ 14
10 Assignment.......................................................... 15
11 Partial invalidity.................................................. 15
12 Fees and costs...................................................... 15
13 Entire agreement, amendments........................................ 15
14 Miscellaneous provisions............................................ 16
15 Applicable law...................................................... 17
16 Settlement of disputes.............................................. 17
EXECUTION COPY
SHARE SALE AND PURCHASE AGREEMENT RELATING TO THE SHARES IN SHAW HOTEL HOLDING
B.V.
SCHEDULES
NUMBER SCHEDULE
- ------ --------
1 SHAREHOLDING IN THE COMPANY
2 DEFINITIONS
3 DEED OF TRANSFER
4 PURCHASE PRICE STATEMENT
5 WARRANTIES
EXECUTION COPY
SHARE SALE AND PURCHASE AGREEMENT RELATING TO THE SHARES IN SHAW HOTEL HOLDING
B.V.
SHARE SALE AND PURCHASE AGREEMENT RELATING TO THE SHARES
IN SHAW HOTEL HOLDING B.V.
THIS SHARE SALE AND PURCHASE AGREEMENT IS MADE THE 19TH DAY OF DECEMBER 2005 BY
AND BETWEEN:
(1) WG MITCHELL (SCOTLAND) LIMITED, a company with limited liability
incorporated under the laws of Northern Ireland, Registered Number
NI032090, having its registered office at 10 Victoria Park, Waterside,
Londonderry, Northern Ireland ("PURCHASER");
(2) EURO SEA HOTELS N.V., a company limited by shares (naamloze vennootschap)
incorporated under the laws of The Netherlands, registered with the
commercial register of the Chamber of Commerce in Amsterdam under file
number 33233798, having its registered office in Amsterdam and its place of
business at Dufaystraat 5-hs, 1075 GR, Amsterdam, The Netherlands ("EURO
SEA HOTELS");
(3) B.E.A. HOTELS N.V., a company limited by shares (naamloze vennootschap)
incorporated under the laws of The Netherlands, registered with the
commercial register of the Chamber of Commerce in Amsterdam under file
number 33300462, having its registered office in Amsterdam and its place of
business at Keizersgracht 241, 1016 EA Amsterdam, The Netherlands ("BEA
HOTELS"); and
(4) SHAWPARK INVESTMENTS B.V., a private company with limited liability
(besloten vennootschap) incorporated under the law of The Netherlands,
registered with the commercial register of the Chamber of Commerce in
Amsterdam under file number 33303714, having its registered office in
Amsterdam and its place of business at 9B Boulevard du Prince Henri, L-1724
Luxembourg, Luxembourg ("SHAWPARK");
Euro Sea Hotels, B.E.A. Hotels and Shawpark Investments are hereinafter
jointly referred to as "SELLERS";
WHEREAS:
(A) Shaw Hotel Holding B.V. is a private company with limited liability
(besloten vennootschap met beperkte aansprakelijkheid) incorporated under
the laws of The Netherlands, having its
EXECUTION COPY
SHARE SALE AND PURCHASE AGREEMENT RELATING TO THE SHARES IN SHAW HOTEL HOLDING
B.V.
registered office in Amsterdam, The Netherlands (the "COMPANY") and the
Sellers hold all issued and outstanding shares in the capital of the
Company (the "SHARES") as set forth in SCHEDULE 1;
(B) The Company holds legal title to the Property. The entire Property is let
pursuant to the Lease;
(C) Prior to the entry of this Agreement, a satisfactorily legal, financial and
tax due diligence has been conducted by or on behalf of Purchaser;
(D) Each of Sellers and Purchaser has taken all necessary corporate action and
has obtained all necessary internal and external approvals, consents and
permits for the acquisition contemplated by this Agreement;
(E) Sellers and Purchaser now have reached definitive agreement on the sale and
purchase of the Shares on the terms and conditions set forth in this
Agreement;
HAVE AGREED AS FOLLOWS:
1 INTERPRETATION
1.1 SCHEDULE 2 contains a list of definitions. All capitalised terms used
herein shall have the meaning as set out in such Schedule 2.
1.2 Any reference in this Agreement to the "ORDINARY COURSE OF BUSINESS" of the
Company shall be construed as a reference to the following activities
presently conducted by the Company, namely the owning of the Property as an
investment.
1.3 In this Agreement, a reference to:
1.3.1 a "SUBSIDIARY" or "HOLDING COMPANY" is to be construed in accordance
with section 2:24a DCC;
1.3.2 a "GROUP" or "GROUP COMPANY" is to be construed in accordance with
section 2:24b DCC;
1.3.3 a "PARTICIPATION" is to be construed in accordance with section 2:24c
DCC;
(2)
1.3.4 a document in the "AGREED FORM" is a reference to a document in a
form approved and for the purposes of identification signed by or on
behalf of each Party;
1.3.5 a statutory provision includes a reference to any subordinate
legislation made under the statutory provision before the date of
this Agreement;
1.3.6 singular words shall include the plural and vice-versa and words in a
particular gender shall include all genders, unless the context
requires otherwise;
1.3.7 a reference to a "person" or a "party" to this Agreement includes a
reference to any individual, company, association or partnership
(whether or not having legal personality (rechtspersoonlijkheid)) and
that person's or party's legal representatives and successors; and
1.3.8 a reference to "FAIRLY DISCLOSED" matters means matters and
circumstances disclosed in such terms that their substance and the
implications thereof to an intending Purchaser are reasonably
apparent to and understandable by qualified and competent
professional advisors or experienced businessmen reading such
documents for the purposes of a due diligence review of the rights,
obligations, assets and liabilities to be acquired and/or assumed
pursuant to this Agreement..
1.4 Clause headings are inserted for convenience purposes only and shall
neither affect the contents nor the interpretation of this Agreement.
1.5 Terms in this Agreement refer to Dutch legal concepts only and shall be
interpreted accordingly. The use of these or similar terms in any other
jurisdiction shall be disregarded. In the event of any translation of this
Agreement or any agreement resulting there from, the English language
version shall prevail for any and all purposes, including for
interpretation purposes. In respect of any jurisdiction other than the
Netherlands, references to any Dutch legal concept shall be deemed to refer
to the concept that most approximates to the Dutch legal term in that
jurisdiction.
1.6 Where any of the Warranties is qualified by the expression "TO THE BEST OF
SELLERS' KNOWLEDGE" or any similar expression, this means that Sellers have
made or are deemed to have made due inquiry and the appropriate
investigations and verifications
(3)
which may reasonably be expected in view of the matters stated in the
Warranty concerned.
2 SALE AND PURCHASE OF THE SHARES
2.1 Subject to the terms and conditions of this Agreement, each Seller hereby
sells the Shares to Purchaser as set opposite such Seller's name in
Schedule 1 and Purchaser hereby purchases such Shares from Sellers.
2.2 The sale and purchase of the Shares shall have effect from the date hereof,
to the effect that all benefits and obligations of any nature whatsoever
attached to or accrued in respect of the Shares as of the date hereof are
for the Purchaser, unless otherwise provided in this Agreement.
2.3 Subject to the terms and conditions of this Agreement, Sellers shall
transfer title to the Shares to Purchaser, and Purchaser shall accept the
same from Sellers, on the Completion Date through the execution of the Deed
of Transfer before the Notary. Sellers shall procure that the Company
acknowledges the transfer of the Shares. A draft of the Deed of Transfer is
attached hereto as SCHEDULE 3.
3 PURCHASE PRICE
3.1 The consideration to be paid by Purchaser to Sellers for the acquisition of
the Shares shall be the amount as calculated and specified in the Purchase
Price Statement, attached hereto as SCHEDULE 4. Such consideration for the
Shares reflected in the Purchase Price Statement hereinafter referred to as
the "PURCHASE PRICE".
3.2 Each respective Seller is entitled to the Purchase Price pro rata to its
respective shareholding in the Company as set opposite such Seller's name
in Schedule 1.
3.3 The Purchase Price shall be payable in cash on the Completion Date in
accordance with Clause 4.2.
3.4 The Sellers shall within 10 Business Days following Completion procure that
the Company's chartered accountant issues its unqualified opinion
(goedkeurende verklaring) within the meaning of Section 2:393 subsection 5
DCC in respect of its review of the Completion Accounts and ensure that an
original copy of such unqualified opinion is forwarded to Purchaser and the
Company.
(4)
4 COMPLETION
4.1 Completion shall take place at the offices of Van Doorne N.V.,
Jachthavenweg 121, Amsterdam, The Netherlands on the date hereof.
4.2 The Parties shall perform the following or procure that the following shall
be performed at Completion in the order set out below, it being understood
and agreed that any documents or items referred to below which have already
been executed or delivered before Completion, shall be deemed to have been
executed or delivered at Completion:
4.2.1 Execution of this Agreement;
4.2.2 Sellers shall deliver to the Notary the original shareholders'
register(s) of the Company;
4.2.3 Sellers shall deliver to Purchaser the Completion Accounts.
4.2.4 Sellers shall deliver the Sellers Release Letters to Purchaser.
4.2.5 Sellers shall deliver to Purchaser duly signed copies of the
Resignation Letters of Shawpark Investments B.V., BEA Hotels
Management B.V. and Red Sea Group Management B.V. as managing
directors of the Company.
4.2.6 Purchaser shall provide evidence to Sellers of receipt of the
Purchase Price and the required monies for the repayment of the
Shareholders' Loans in the Notary's Bank Account before 12:00
(Amsterdam time) on the Completion Date and for value the date equal
to the Completion Date. Until the execution of the Deed of Transfer,
the Notary shall hold the Purchase Price and the required monies for
the repayment of the Shareholders' Loans in the name of the
Purchaser. Parties shall jointly instruct the Notary to immediately
release the Purchase Price and the required monies for the repayment
of the Shareholders' Loans to Sellers forthwith upon execution of the
Deed of Transfer by wiring the Purchase Price and the required monies
for the repayment of the Shareholders' Loans in 'same day funds' to
the bank account or bank accounts of Sellers (for that purpose to be
designated by Sellers at least one Business Day prior to the
Completion Date);
(5)
4.2.7 Sellers shall transfer the Shares to Purchaser and the Purchaser
shall accept the Shares. Sellers shall procure that the Company
acknowledges the transfer of the Shares. The transfer of the Shares
and the acknowledgement of the transfer shall take place by execution
of the Deed of Transfer by the Parties and the Notary;
4.2.8 The transfer of the Shares shall be recorded in the Company's
shareholders register;
4.2.9 The Sellers shall deliver to the Purchaser:
a) the counterpart of the Lease and;
b) the counterpart of the Rent Deposit Deed; and
c) all other title documents in the possession of the Sellers' Group
and/or their advisors.
4.3 Sellers and Purchaser shall do all such further acts and execute all such
further documents as shall be necessary to fully effect the transactions
contemplated by this Agreement.
4.4 If a Party fails to perform any of the actions listed in Clause 4.2, the
other Party may, without prejudice to its rights to claim damages pursuant
to this Agreement or applicable law:
4.4.1 demand that the Party not performing shall perform the relevant
action(s) ultimately on a day to be determined by it; or
4.4.2 terminate this Agreement.
4.5 If either of the Parties exercises its right to terminate the Agreement
pursuant to Clause 4.4, then this termination will not affect Clauses 7
(Confidentiality), 8 (Notices), 15 (Applicable law) and 16 (Settlement of
disputes).
4.6 In the event either of the Parties would exercise its right to terminate
the Agreement pursuant to Clause 4.4, the other Parties shall not be
entitled to, and hereby irrevocably declare to refrain from doing so, claim
any costs or damages it may incur
(6)
as a result nor shall the terminating Party(ies) under any circumstance
become liable for any costs and damages towards the other Party(ies).
5 WARRANTIES; LIABILITY OF SELLERS
5.1 Each of Sellers hereby represents and warrants to Purchaser that the
statements made by Sellers in the Warranties are true, accurate, complete
and not misleading on the Completion Date, subject, however, to the matters
that have been fairly disclosed by Sellers to Purchaser in the course of
its due diligence investigation.
5.2 The Warranties are made by each of Sellers with the knowledge that
Purchaser is, save only as provided in Clause 5.1, relying thereon in
connection with the transactions contemplated by this Agreement. The
investigations carried out by, or information furnished to, Purchaser or
representatives or advisers of Purchaser shall, save only as provided in
Clause 5.1, neither relieve Sellers from any of their obligations under
this Agreement nor shall such investigation or information prejudice or
mitigate in any way Purchaser's right to make a claim under the Warranties.
On the Completion Date, Purchaser has no knowledge of any Warranty being
untrue, inaccurate, incomplete and/or misleading, subject, however, to the
matters that have been fairly disclosed by the Sellers to the Purchaser in
the course of its due diligence investigation.
5.3 Without prejudice to the other provisions of this Clause 5 (in particular
5.6) in case of a Breach each of Sellers shall be jointly and severally
liable to Purchaser, and each of Sellers shall take all such actions and
make all such payments as may be required to bring the Company and/or the
Purchaser in the position (financially or otherwise) it would have been in
if the relevant Warranty would have been true, accurate, complete and not
misleading. Any amount payable to any of the Company and/or Purchaser
pursuant to this Clause shall be deemed to be a reduction of the Purchase
Price.
5.4 Actions and payments by Sellers pursuant to Clause 5.3 shall be taken or
made respectively, within 30 Business Days from a Claim Notice by
Purchaser, provided that if any claim arises pursuant to Clause 5.3, then:
a) the Purchaser shall not accept, pay or compromise, or make any
admission in respect of, such liability or alleged liability
without the prior written consent of the Sellers;
(7)
b) the Purchaser shall procure that the Company at the expense of
Sellers takes such action to avoid, dispute, resist, appeal,
compromise or contest or prove the liability, as may be
reasonably requested by the Sellers and the Sellers shall be
entitled at their expense to have the conduct of any appeal,
dispute, compromise or defence of the dispute and of any
incidental negotiations;
c) the Purchaser shall procure the Company to make available to the
Sellers such persons and all such assistance and information as
the Sellers may reasonably require for avoiding, disputing,
resisting, appealing, compromising or contesting or proving any
such liability including instructing such professional advisers
as the Sellers at their expense may nominate to the intent that
the content of the claim be delegated to the Sellers entirely.
5.5 In case of late payment of any amount due pursuant to Clause 5.3, an
interest equal to the regular statutory interest for late payment in
commercial transactions pursuant to Sections 6:119a and 6:120 paragraph 2
DCC will be payable from the due date for payment until the date the
payment is received in full.
5.6 The liability of Sellers for a Breach shall be limited under this Clause 5
as follows:
5.6.1 no liability shall exist unless a Breach is notified in writing to
Sellers prior to 30 June 2007; with respect to a Tax Claim, such
period shall be extended for as long as the tax, social security and
other authorities of any relevant jurisdiction can still impose any
additional (re-) assessments or penalties relating to the period up
to and including the Completion Date, increased with six months after
the expiry of such term; with respect to the Warranties set forth in
Clauses 1, 2 and 5 of the Warranties (Capital, Shares and Real
Property), such period shall be 30 October 2011; and
5.6.2 the aggregate liability of Sellers, except for the Warranties set
forth in Clauses 1, 2 and 5 of the Warranties (Capital, Shares and
Real Property), is limited to an amount of GBP 18,700,000 (in words:
eighteen million seven hundred thousand pounds); and
5.6.3 no liability of Sellers shall exist unless the total of the amounts
that can be claimed exceeds the amount of GBP 100,000 (in words: one
hundred
(8)
thousand Pounds)]; no liability of Sellers shall exist unless each
individual claim exceeds the amount of GBP 10,000 (in words: ten
thousand Pounds); in the event that the sum of all claims exceeds this
threshold, Sellers shall be liable for the entire amount.
5.7 The limitations set forth in Clause 5.6 shall not apply (i) in case of
deliberate misleading (bedrog) or gross negligence (bewuste roekeloosheid)
on the part of Sellers or of a person acting on behalf of Sellers or for
whom Sellers is responsible and/or (ii) in case the breach of the relevant
Warranties was known to Sellers or to a person acting on behalf of Sellers
or for whom Sellers is responsible at the date hereof or at Completion
Date, or could or should have reasonably been known to Sellers or to a
person acting on behalf of Sellers or for whom Sellers is responsible at
that date.
5.8 Upon Purchaser becoming aware of a breach of any Warranty, Purchaser shall
give notice to Sellers of all the relevant facts known at that time to
Purchaser as soon as is reasonably practicable.
5.9 A discharge (decharge) given by Purchaser to a director of the Company
shall in no respect affect or prejudice the rights of Purchaser under this
Agreement..
5.10 The Sellers shall not be liable in respect of a Breach:
5.10.1 in the case the Breach was known to Purchaser or to a person acting
on behalf of Purchaser or for whom Purchaser is responsible at
Completion Date;
5.10.2 if it relates to any matter or event, to the extent such matter or
event was actually recovered under an insurance policy by the
Company and/or the Purchaser;
5.10.3 if it relates to any matter or event for which a specific provision
is made in the Completion Accounts;
5.10.4 if it relates to any matter or event which would not have arisen but
for a change in legislation made after Completion Date.
5.11 The Sellers hereby acknowledge and agree that, notwithstanding that the
Purchase Price has been structured as set out in Clause 3.1 of this
Agreement, for the purpose of calculating loss and liability arising from a
breach of the Warranties, the Purchaser
(9)
shall be deemed to have paid GBP 74,846,000 (in words: seventy four million
eight hundred forty six thousand pounds) for the Shares and the Sellers
further acknowledge that GBP 74,846,000 (in words: seventy four million
eight hundred forty six thousand pounds) is the aggregate economic cost to
the Purchaser of acquiring the Shares.
6 INDEMNITIES
6.1 Notwithstanding and without prejudice to the generality of the Warranties,
Sellers shall jointly and severally indemnify and keep Purchaser and the
Company harmless from and against:
a) all Taxes payable by the Company relating to the period up to
Completion as legally required in respect of the Company and all
Taxes payable by the Company arising (in all such cases) as a
consequence of (i) any act, event, omission, transaction or
circumstance occurring or existing before Completion and/or (ii)
by reference to any income, profits or gains earned, accrued or
received before Completion;
b) any and all claims made against or liabilities of the Company
including but not limited to Tax liabilities and/or any other
(direct or indirect) present or former subsidiaries of the
Company and the disposal by the Company of Euston Road Properties
Ltd. and/or any other (direct or indirect) present or former
subsidiary, shareholder or other affiliate(s) of the Company
arising as a consequence of any act, event, omission, transaction
or circumstance occurring or existing before Completion;
c) any and all claims, liabilities, damages and expenses arising
from the Company failing to observe and perform the covenants and
conditions on the Landlord's part contained in the Lease and/or
the Rent Deposit Deed;
d) any costs and expenses incurred or payable in connection with any
matters for which a successful claim is made by the Purchaser
under this Clause 6.1;
(10)
e) any Taxation for which the Company becomes liable in consequence
of the failure by:
(i) any company which has at any time (whether before or after
Completion) been (a) a member of a group (as defined from
time to time for any Taxation purpose) of which the Company
concerned has at any time prior to Completion been a member
or (b) under the control of the same person as has had
control of the Company at any time prior to Completion; or
(ii) any other person,
to discharge Taxation within a specified period or otherwise,
provided that in the case of sub-Clause 6.1(e)(ii) above this
Clause 6.1(e) shall only apply insofar as such Taxation arises as
a result of profits earned, accrued or received or an event, act,
omission or transaction entered into, effected or occurring on or
before Completion.
6.2 In the event that a claim can be brought both under the Warranties and the
Indemnities, Purchaser will indicate whether it is a claim under the
Warranties or the Indemnities.
6.3 Sellers shall reimburse Purchaser or the Company under this Clause within
10 Business Days from a Claim Notice to such effect by Purchaser or the
Company respectively. Clause 5.4 shall apply accordingly.
7 CONFIDENTIALITY
7.1 Subject to the further provisions of this clause, Sellers and Purchaser
(the latter only up to the Completion Date) shall not either directly or
indirectly disclose to any person any information relating to a
(potentially) confidential aspect of the Company' business including but
not limited to trade secrets, Know-How, inventions, discoveries and details
of clients and contracting parties.
7.2 Subject to the further provisions of this clause, neither Party shall
disclose to any person confidential information which relates to the other
Party and which it received or obtained as a result of or in relation to
this Agreement and neither Party shall
(11)
disclose any information or make any public announcement concerning the
subject matter of this Agreement.
7.3 Either Party may disclose information which would otherwise be subject to
this confidentiality obligation to the extent
a) required by the law of any relevant jurisdiction; or
b) the other Party has given prior written approval to the
disclosure
subject to the prior notification of the other Party and the obligation to
take all reasonably possible measures to prevent or limit the damages the
other Party may suffer from the disclosure of such information, including
but not limited to consultation on the form, content and timing of such
disclosure.
7.4 Each Party shall procure that all of its group's employees, agents and
other persons related to it shall comply with the obligations set forth in
this Clause and such Party shall be liable to the other Party and shall
indemnify and hold the other Party harmless from and against any damages
incurred by such other Party arising out of a breach by any such person of
these obligations.
8 NOTICES AND OTHER ANNOUNCEMENTS TO THE PARTIES
8.1 Except as otherwise required by law, all notices, announcements, summons
and/or communications pursuant to this Agreement shall be in English
language and be delivered to the addresses stated hereunder (or to such
other address as a Party has communicated to the other Parties in
accordance with this Clause) by registered mail with return receipt, by
courier or by telefax:
8.1.1 if directed to Purchaser:
WG Mitchell (Scotland) Limited
Attn.: management board
10 Victoria Park
Waterside
Londonderry
Northern Ireland
Facsimile: +44 (0)2871 361994
(12)
With a copy to:
a) Dickson Minto
Attn. Mr. E. Sheriff
16 Charlotte Square
Edinburgh EH2 4DF
United Kingdom
Facsimile: +44 (0)131 255 2712; and
b) Van Doorne N.V.
Attn. Mr. J.A. van Ramshorst
Jachthavenweg 121
1081 KM Amsterdam
P.O. Box 75265
1070 AG Amsterdam
The Netherlands
Facsimile: + 31 (0)20 678 9589;
8.1.2 if directed to Sellers to:
a) Euro Sea Hotels N.V.
Attn. management board
Dufaystraat 5-hs
1075 GR Amsterdam
The Netherlands
Facsimile: +31 (0)20 305 8355; and
b) B.E.A. Hotels N.V.
Attn. management board
Keizersgracht 241
1016 EA Amsterdam
The Netherlands
Facsimile: +31 (0)20 344 9561; and
c) Shawpark Investments B.V.
Attn. management board
9B Boulevard du prince Henri
(13)
L-1724 Luxembourg
Luxembourg
Facsimile: +352 22 21 17
With a copy to:
a) Olswang
Attn. Mr. J. Lewis
90 High Holborn
London WC1V 6XX
United Kingdom
Facsimile: +44 (0)20 7067 3999; and
b) Bird & Bird
Attn. Mr. S. van der Waal
Parkstraat 31
2514 JD The Hague
P.O. Box 30311
2500 GH The Hague
The Netherlands
Fax: +31 (0)70 353 8811.
8.2 Notices, announcements, summons and/or communications pursuant to this
Agreement shall be deemed to have been received at the following moments:
a) if sent by registered letter: at the date of delivery evidenced by the
return receipt;
b) if sent by courier: at the date of delivery by the courier to the
addressee; and
c) if sent via facsimile: at the time of sending evidenced by the
transmission report.
8.3 Any communications copied to the respective advisers as set out above shall
be for information purposes only and shall not constitute a valid
notification under this Agreement.
9 WAIVER OF RIGHT TO ANNUL OR DISSOLVE
Parties hereto waive their right to dissolve (ontbinden) or annul
(vernietigen), or to demand dissolution or annulment (in rechte ontbinding
of vernietiging vorderen) of this Agreement in whole or in part, after
Completion.
(14)
10 ASSIGNMENT
10.1 Subject to Clause 10.2, this Agreement and any rights and obligations in
connection thereto may not be assigned by any of the Sellers or the
Purchaser without the prior written consent of the other Party(ies).
10.2 Notwithstanding the provisions of Clause 10.1, Purchaser shall be entitled
to assign its rights and obligations under this Agreement to any member of
Purchaser's group in conjunction with a transfer of the Shares in the
Company, and Sellers hereby agree to cooperate to such assignment, provided
that Purchaser will give prior notice to Sellers of such assignment and
provided that Purchaser remains jointly and severally liable for all its
obligations under this Agreement.
11 PARTIAL INVALIDITY
In the event that any provision of this Agreement appears to be
non-binding, the other provisions of this Agreement will continue to be
effective. The Parties are obliged to replace the non-binding Clause with
an other clause that is binding, in such manner that the new provision
differs as little as possible from the non-binding Clause, taking into
account the object and the purpose of this Agreement.
12 FEES AND COSTS
12.1 Unless expressly stipulated otherwise in this Agreement in general and in
any relevant Clause in particular, each Party shall bear the costs it
incurs, including fees charged by third-party consultants arising from or
relating to the conclusion and performance of this Agreement, including all
negotiations, preparations and investigations.
12.2 The Notary's fees for the transfer of the Shares shall be borne by
Purchaser.
13 ENTIRE AGREEMENT, AMENDMENTS
13.1 The Schedules, and Annexes and Appendices form an integral part of this
Agreement and references to this Agreement include the Schedules, and
Annexes and Appendices. Any definitions used in this Agreement shall have
the same meaning when used in the Schedules, or Annexes or Appendices
unless explicitly stipulated otherwise.
(15)
13.2 This Agreement contains all of the agreements between the Parties with
respect to the transactions contemplated by this Agreement and supersedes
all earlier written and/or oral agreements with respect to the subject
matter(s) hereof, including but not limited to earlier drafts of this
Agreement exchanged in connection with the negotiations and preparations
hereof. Unless expressly provided otherwise in this Agreement, this
Agreement does not, however, prejudice any right attributed to a purchaser
by law.
13.3 This Agreement can be amended or supplemented only by an instrument in
writing signed by all Parties.
14 MISCELLANEOUS PROVISIONS
14.1 The lessee under the Lease has erroneously withheld the sum of GBP 22,000
(in words: twenty two thousand pounds) from the rents payable thereunder
and the Purchaser agrees hereafter to use reasonable endeavours if it
receives the same (or any part thereof) to account accordingly to the
Sellers.
14.2 Sellers acknowledges that Purchaser is represented in this transaction by a
lawyer of Van Doorne N.V., while the Notary is associated with the same law
firm, and explicitly agrees that Purchaser may seek Van Doorne N.V.'s legal
assistance in any dispute that may arise in respect of this Agreement or
any related agreement.
14.3 If a Party does not exercise any right under this Agreement, including the
right to demand that the other Party meets its obligations under this
Agreement, or does not do so promptly, it shall not be deemed to thereby
have waived this right. If a Party, in a specific case, waives any right it
may have with respect to the other Party by virtue of the fact that this
Party has not, not fully or promptly fulfilled any obligation under the
Agreement, it shall not be deemed to thereby have waived any other right it
has in that specific case, nor have given up any possibility of invoking
that right in other cases.
14.4 This Agreement is drawn up for the exclusive use of the Parties, their
successors by universal title and to the extent allowed by this Agreement,
their successors by singular title. Except to the extent expressly
stipulated otherwise in this Agreement, no clause in this Agreement intends
to create any right for any third party to claim performance or to rely
upon the Agreement in any way. In the event a third party stipulation
(derdenbeding) is accepted by a third party, such third party shall not
become a party to this Agreement. Any and all provisions relating to
members or former members of the
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management or Employees or former Employees of the Company or the Sellers
do not qualify as a third party stipulation.
14.5 On or after Completion each Party shall, at its own cost and expense,
execute and do (or procure to be executed and done by any other necessary
party) such deeds, documents, acts and things as the other Party may from
time to time require in order to give full effect to the Agreement.
14.6 This Agreement may be signed in any number of counterparts, each of which
shall be an original, but only all of which, when taken together, shall
constitute one and the same document.
15 APPLICABLE LAW
This Agreement and any agreement resulting here from shall be governed by
and construed in accordance with the laws of the Netherlands.
16 SETTLEMENT OF DISPUTES
Any disputes arising out of or in connection with this Agreement or any
agreement resulting there from, which cannot be settled amicably, shall be
submitted to the exclusive jurisdiction of the competent court in Amsterdam
the Netherlands.
SIGNED IN COUNTERPARTS ON 19 DECEMBER 2005
- ------------------------------------- ----------------------------------------
EURO SEA HOTELS N.V. B.E.A. HOTELS N.V.
By: By:
--------------------------------- ------------------------------------
Title: Title:
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- ------------------------------------- ----------------------------------------
SHAW PARK INVESTMENTS B.V. W.G. MITCHELL (SCOTLAND) LIMITED
By: By:
--------------------------------- ------------------------------------
Title: Title:
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