The Seller has agreed to sell the Business (as defined below) to the Buyer for the consideration and upon the terms set out in this Agreement.
The Seller has made representations to the Buyer in the terms of the undertakings and warranties set out in Schedule 3 with the intention that the Buyer should rely upon such representations in entering into this Agreement.
The Guarantor has agreed, in consideration of the Seller entering into this Agreement, to guarantee the performance by the Buyer of its obligations hereunder upon the terms and conditions hereinafter appearing.
Beneficial ownership and risk in respect of the Business Assets shall pass to the Buyer on Completion. Title to all Business Assets which can be transferred by delivery shall pass on delivery and such delivery shall be deemed to take place at the Properties on Completion.
All assets acquired, liabilities incurred or transactions entered into after the Transfer Date in relation to the Business and the results of the operations of the Business since that date shall be for its account. For the avoidance of doubt, such assets, liabilities, transactions and results shall include, but without limitation, the net amount of cash generated by the Business, interest earned on the daily bank balances held by the Seller for the account of the Business, all Claims which have arisen and all Contracts which have been entered into or undertaken since the Transfer Date.
Insofar as the Business Assets comprise the benefit of Business Claims and the benefit (subject to the burden) of Contracts which cannot effectively be assigned or transferred by the Seller to the Buyer except by agreements of novation or without obtaining a consent, an approval, a waiver or the like from a third party (Consents):
(a) the Seller shall (upon the request of the Buyer) take all reasonable steps to procure that such Contracts are novated or the necessary Consents obtained and the Buyer shall co-operate with the Seller for such purpose;
(b) unless or until any such Contract is so novated or assigned or any necessary Consent is obtained, the Seller shall from the date of Completion receive and hold the benefit of the relevant Contract or Claim as trustee on trust for the Buyer and shall pay to the Buyer promptly upon receipt any sums received by it under any such Contract or pursuant to any such Business Claim;
(c) the Buyer shall from the date of Completion (at the Buyer's cost) assist the Seller to perform all the obligations of the Seller under any such Contracts and indemnify the Seller on an after-tax basis against all liability (and all costs reasonably incurred by the Seller) arising in connection with any such Contracts;
(d) in the case of Intellectual Property Licences, the Seller and the Buyer shall (where necessary) have discussions with a view to establishing by mutual agreement (and the agreement of relevant third parties) the identity of those Intellectual Property Licences where a sub-licence is to be granted and/or those where a further licence is to be granted to the Buyer and/or those which are to be novated or otherwise assigned (subject, where appropriate, to existing licences) to the Buyer.
No effect shall, however, be given to sub-paragraphs (b) and (c) above if there is a material risk that the relevant Contract would be treated as repudiated by the third party or if the Seller would be in breach of its obligations to any third party under any such Contract if effect were given thereto. If any necessary Consent is not obtained within six (6) months after Completion or is refused and the procedure set out in this clause 6.4 does not enable the full benefit of any Contract to be enjoyed by the Buyer after Completion, the parties shall use all reasonable endeavours to achieve an alternative solution pursuant to which the Buyer shall both receive the full benefits of that Contract and assume the associated obligations. If no such alternative solution has been agreed between the parties within twelve (12) months after Completion, then the Seller shall pay to the Buyer such amount by way of compensation as is fair and reasonable having regard to the effect of the loss of the Contract on the Business.
The Seller shall with all due diligence execute such other documents and take such other steps as may reasonably be required by the Buyer to vest the title to the Business Assets in the Buyer and to give effect to this Agreement.