Вы находитесь на странице: 1из 12

ELEONORA SPORT LIMITED

registered office: 27/28 Eastcastle Street, London W1W 8DH (incorporated in England and Wales with company number 08862382)

TO:

GFH CAPITAL LIMITED (the Vendor) Office 402, Level 4, Precinct Building 3, Gate District, Dubai International Financial Centre, P.O. Box 506544, Dubai, United Arab Emirates

RE: LUFC Holding Limited (the Company)

Dear Sirs,

DATE:

FEBRUARY 2014

We refer to the sale and purchase agreement for 75% of the entire issued share capital of the Company between the Vendor and Eleonora Sport Limited (the Purchaser) dated with today’s date (the SPA) the form of which was agreed on 31 January 2014 pending the execution of this letter agreement and receipt of the Initial Consideration. The terms of the SPA as amended hereby shall be binding on the parties from and with effect from 31 January 2014. Terms defined in the SPA shall have the same meaning in this letter agreement, unless otherwise defined. Reference to Clauses shall be to Clauses of the SPA and references to paragraphs shall be references to paragraphs of this letter agreement unless otherwise specified.

The Purchaser and the Vendor hereby agree the following.

Amendment and restatement of the SPA

1. The SPA shall be amended and restated on the date hereof subject to:

a. the terms of this letter agreement; and

b. the amendments set out in Appendix 1,

and in the event of any conflict between this letter agreement and the SPA or the Short-Form Shareholders’ Agreement, this letter agreement shall take precedence.

2. On or prior to the date of this letter, the Purchaser has delivered evidence satisfactory to the Vendor of the payment of the Initial Consideration to the Vendor.

1

3.

Immediately after the execution of this letter agreement, the parties shall comply with their remaining obligations under Clause 5 (as amended pursuant to this letter agreement) to the extent not previously satisfied.

Final Football League Approval

4.

Each of the Purchaser and the Vendor shall, and shall procure that each of their

Affiliates shall, use their respective reasonable endeavours, so far as they are legally able to do so, to ensure that Final Football League Approval is obtained as soon as practicable. The Purchaser shall keep the Vendor informed of all material non- confidential and non-privileged dealings on its behalf with The Football League Limited and promptly provide copies to the Vendor of all material non-confidential and non-privileged correspondence (and attachments) to and from the Football

League.

5.

Assignment

a. If the Purchaser becomes aware that The Football League Limited is unlikely to (or does not) provide all of the confirmations required to satisfy the Final Football League Approval, the Purchaser will promptly notify the Vendor thereof, provide all relevant documents and keep the Vendor reasonably informed. The Purchaser thereafter may, subject to paragraph 5(d) below, assign its rights (but not its obligations) under the SPA (as amended hereby) to an Affiliate of the Purchaser, provided that the Purchaser has demonstrated to the reasonable satisfaction of the Vendor that such proposed assignee is an Affiliate of the Purchaser and provided further that the Vendor has not objected reasonably in writing to the identity of such assignee on religious and/or moral grounds only. The parties shall take all reasonable steps to procure such assignment and the completion of any sale of the Shares arising therefrom upon Final Football League Approval being granted in connection with such assignee and its nominated Club Directors.

b. If The Football League Limited actually refuses to provide all of the confirmations required to satisfy the Final Football League Approval, the Purchaser will promptly notify the Vendor thereof. The Purchaser may within 6 months thereafter propose to assign, subject to paragraph 5 (d) below, its rights (but not its obligations) under the SPA (as amended hereby) to an unconnected third party for cash or cash equivalents and notify the Vendor thereof (with all relevant supporting materials reasonably satisfactory to the Vendor, including full terms of the proposed transfer). The Vendor shall then have a period of 2 weeks within which to agree to acquire the rights to be transferred on substantially the same terms. Before any assignment or transfer can take place to a third party, the Vendor will need to approve the identity of the third party in writing (such approval not to be unreasonably withheld, conditioned or delayed) and the assignment shall be on terms that the rights will be reassigned to the Purchaser if the Final Football League Approval has not been satisfied within a period of two months from the date of approval of the unconnected third party by the Vendor (or if the SPA

2

terminates under paragraph 5(c) below). Following any such reassignment, provided the SPA has not terminated, the parties will again use commercially reasonable efforts to reach an agreed solution as to how to proceed in such circumstances.

c. If any payments are not made by the Purchaser to the Vendor or the Club within 30 days of falling due under any of the SPA (as amended hereby) or the Short Form Shareholders Agreement (or Shareholders Agreement) then the commercial effect of the Default Call Right (SPA Security) set out in the Short Form Shareholders Agreement shall mutatis mutandis apply whether or not there has been an assignment of rights (including that the Shares shall not transfer back to the Purchaser, but instead the SPA shall terminate (with the documents held by the Purchaser’s Solicitors under paragraph 4 of the appendix hereto being returned to the Vendor) and the Vendor shall procure the issuance of such number of shares in the Company to give the Purchaser such percentage ownership detailed in such ‘Default Call Right (SPA Security)’ section).

d. Any valid assignment under this paragraph 5 must be on terms that any such assignee also agrees to be bound jointly and severally with the Purchaser by the terms of paragraph 5(c) above, the Short Form Shareholders Agreement or Shareholders Agreement (as the case may be) and the Charge Documentation by signing a customary deed of adherence in a form reasonably acceptable to the Vendor.

6. For the purposes of this letter agreement:

a. Approved means approval by the Football League Limited that a person is not subject to a "Disqualifying Condition" as defined in Appendix 3 to the Regulations.

b. Final Football League Approval means the unequivocal confirmation from The Football League Limited that each individual person associated with the Purchaser who falls within the definition of Club Director (including, without limitation, any individual person that the Purchaser proposes to appoint to the Board or any board of another member of the Group, the Purchaser and any person who FL Defined Controls the Purchaser) has been Approved;

c. FL Defined Control has the meaning given to 'Control' in the explanatory notes to the Regulations; and

d. Interim Football League Approval means the unequivocal confirmation from The Football League Limited that any individual person associated with the Purchaser who falls within the definition of Club Director (including, without limitation, any individual person that the Purchaser proposes to appoint to the Board or any board of another member of the Group, the Purchaser and any person who FL Defined Controls the Purchaser) has been Approved.

3

7.

During the period commencing on the entry into this letter agreement and ending when Final Football League Approval is received:

a. the Purchaser undertakes to the Vendor that it shall procure that neither it nor any person associated with, Affiliated to or otherwise connected to the Purchaser who:

i. falls within the definition of Club Director (including, without limitation, any individual person that the Purchaser proposes to appoint to the Board or any board of another member of the Group and any person who FL Defined Controls the Purchaser); and

ii. who has not been Approved,

shall be appointed as a director of any Group Company or exercise any FL Defined Control over any Group Company;

b. the Purchaser shall indemnify and hold the Vendor harmless for any Costs incurred in connection with the terms of this letter agreement in accordance with mutatis mutandis Clause 9.2;

c. the Vendor shall:

i. procure that the Company and the Club carry on their business in the ordinary and normal course having due regard to the interests of the Purchaser under the SPA;

ii. procure that the Purchaser's representatives are given reasonable access to any property occupied by any Group Company and to the books and records of any Group Company on reasonable notice;

iii. provide such information regarding the businesses and affairs of the Group as the Purchaser may reasonably require; and

iv. procure that no less than 48 hours written notice of any board meeting of any Group Company is given to the Purchaser including the date, time, location and telephone dial-in details of such meeting and the Vendor shall procure that such Group Company permits any representative(s) of the Purchaser to attend such meetings as an observer; and

d. each of the Reserved Matters as they apply in favour of the Vendor following receipt of (i) Final Football League Approval, or (ii) Interim Football League Approval if three Directors appointed by the Purchaser have been appointed to the board of the Company and the Club, shall apply in favour of the Purchaser (with the matters specifically contemplated by the SPA or the reorganisation among the GFH Parties (as contemplated in the Short Form Shareholders’ Agreement being hereby approved).

4

8.

As soon as reasonably practicable and in any event not more than 2 business days after Final Football League Approval has been obtained, the parties shall procure that, save to the extent previously appointed, a board meeting of the Company is held at which it shall be resolved that:

(a)

Massimo Cellino or such other person nominated by the Purchaser be appointed as the Managing Director of the Company and a director of the Club;

(b)

a person nominated by the Purchaser be appointed as Honorary President of the Club;

(c)

Daniel Arty and Christopher Farnell be appointed as directors of the Company and the Club; and

(d)

the person nominated by the Purchaser be appointed as the secretary of the Company (if required).

Football League Approval for individual Club Directors

9. As soon as practicable after a representative of the Purchaser is Approved, the parties shall take all reasonable steps (including the holding of applicable board meeting) to ensure that such person is appointed as a director of the Company and the Club.

Finance

10. The Vendor shall procure that the use of the proceeds of any working capital advance or other lending by the Purchaser, shall in its capacity as lender to the Club or any Group Company, be subject to prior approval by the Purchaser.

11. Each party shall use their reasonable endeavours to respond and defend against any winding-up petition issued against any Group Company and ensure that no winding up or other similar order is awarded by any court against a Group Company. The parties shall procure that any Group Company shall instruct its solicitors to transfer conduct of any matter in respect of this paragraph 11 to the law firm of IPS Law and for such transfer to commence transitioning to IPS Law as soon as reasonably practicable immediately after the execution hereof and to have been completed within one (1) week hereof (with IPS Law continuing to instruct the same barristers). Each party shall instruct their respective solicitors to keep the other reasonably and promptly informed of any material developments connected to such matters and IPS Law shall consult with the Vendor’s solicitors where appropriate following such transition.

General

12. Each party represents to the other that: it is duly incorporated, has the power and capacity to enter into this letter agreement, which is legally binding on it and that there is no conflict between this letter agreement and such party’s constitutional documents and contracts and further that it is not insolvent.

5

13. The following clauses of the SPA shall, mutatis mutandis, be incorporated into this letter agreement: 1.2 and 1.3 (Interpretation); 10 (Assignment); 11 (Further Assurance); 12 (Confidentiality); 13 (Announcements); 14 (Costs); 16 (Amendments); 17 (Waivers and Remedies); 18 (Entire Agreement) except for the avoidance of doubt this letter agreement shall be read alongside the SPA ; 19 (Survival of Obligations); 20 (Rights of Third Parties); 21 (Notices); and 22 (Counterparts).

14. This letter agreement and any dispute or claim arising out of or in connection with it (including any non-contractual claims or disputes) shall be governed by and construed in accordance with the laws of England and Wales. In relation to any legal action or proceedings (a) arising out of or in connection with this letter agreement or its implementation or effect or (b) relating to any non-contractual obligations arising out of or in connection with this letter agreement, each of the parties irrevocably submits to the non-exclusive jurisdiction of the English courts and waives any objection to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been brought in an inappropriate forum.

By countersigning below we each agree to be bound by the terms hereof.

[Signature page follows]

6

APPENDIX 1

In addition to the amendments to the SPA referred to in this letter agreement, the Vendor and the Purchaser agree to the following specific amendments to the SPA:

(1)

the words "following Completion" in the second line of the definition of "Reorganisation" shall be deleted and replaced with the words "following receipt of Final Football League Approval";

(2)

in Clause 5.1.2(b), any reference to the resignation of David Haigh or Mohamed Ameen Ali Hasan shall be deleted;

(3)

Clauses 5.1.2(c), (f), (g) and (h) shall be deleted;

(4)

Clause 5.1.2(a) shall be amended so that the transfer of the Shares shall only be made and registered upon receipt of Final Football League Approval. Schedule 3 shall be amended so that the deliverables in paragraphs 1, 2 and 5 thereto (which shall be scanned copies) have been emailed to the Purchaser’s Solicitors prior to the entry into this letter agreement to be held to the order of the Vendor’s Solicitors to

be released upon receipt of written notification by the Purchaser's Solicitors (copied to the Vendor and the Vendor's Solicitors) from the Purchaser that the Final Football League Approval has been received. If within three (3) business days of receipt of the notice referred to above by the Vendor and the Vendor's Solicitors, there is any dispute as to whether Final Football League Approval has been received in accordance with its terms, each of the Vendor’s Solicitors and Purchaser’s Solicitors shall be instructed to agree to jointly appoint an independent Queen’s Counsel barrister with applicable sports law experience to finally determine (as an expert and not an arbitrator) whether Final Football League Approval has been granted (and such determination shall be final and binding on the parties save for manifest error). If such Queen’s Counsel finds that Final Football League Approval has not been received, then the documents released by Purchaser’s Solicitors under this paragraph shall be returned to the Purchaser's Solicitors to be held to the order of

the Vendor's Solicitors as if they had not previously been released.

In relation to

paragraph 3 of Schedule 3, Maples Corporate Services shall remain as the registered agent and company administrator of the Company until at least the date of the Final

Football League Approval and neither party shall give any instruction to Maples Corporate Services which is not in accordance with the provisions hereof;

(5)

the word "Completion" in the second line of Clause 6.1 shall be deleted and replaced with the words "receipt of Final Football League Approval";

(6)

at the end of the second sentence in Clause 6.1 the following words shall be added "(with the exception of the sections below the heading “Board and Governance Procedures” which shall only apply on receipt of (i) Final Football League Approval, or (ii) Interim Football League Approval if three Directors appointed by the Purchaser have been appointed to the board of the Company and the Club). For the avoidance of doubt such sections below such heading are “Constitution and

8

Procedures of the Board”, “Senior Management”, Budget and Business Plan”, “Reserved Matters” and “Deadlock";

(7)

the bank account details in clause 5.2.1 shall be deleted and replaced by the following:

 

Intermediary Bank Name: Standard Chartered Bank, London

Intermediary Bank Swift:

   

Beneficiary: Gulf Finance House BSC. – Bahrain

 

Beneficiary Bank: Standard Chartered Bank, Building No. 180, Road 383, Block 315, Manama, Bahrain

Swift:

   

Beneficiary Account Number:

   

(8)

the following words shall be deleted from clause 15.1 “(the Vendor's Solicitors being irrevocably authorised to receive all such sums) and, for the avoidance of doubt, the Vendor's Solicitors receipt shall be good discharge of the same”; and

(9)

the following shall be added to the end of clause 9.2: “The Purchaser agrees to indemnify and keep the Vendor, its Affiliates (other than the Group) and all of their respective employees, directors or officers ("Indemnified Person"), indemnified against all Costs which are suffered or incurred by any of them, in connection with all actions taken by the Purchaser or its Affiliates, employees, directors, officers, agents and advisors (including IPS Law) in connection with the Group or its operations during the period commencing on the 31 st January 2014 and ending on receipt of Final Football League Approval and which

(1)

has not been agreed by or on behalf of the Vendor or its representative:

(2)

is not within the authority of the Purchaser or its representative(s) in accordance with the SPA or the Short Form Shareholders' Agreement to the extent in force; and

(3)

has not arisen or increased as a result of any negligence, default or actions of such Indemnified Person."

(10)

a new clause 3.4.3 shall be added as follows: “3.4.3

once it becomes clear that

the Club will play in the Premier League in a season following the year in which the

Second Long-Term Loan Payment Date occurs, the parties will meet and negotiate in good faith to decide whether the Club shall pay the Third Long-Term Loan Payment to the Lender under the Long-Term Loan Indebtedness by not later than 31 August in such third season in the Premier League (the Third Long-Term Loan Payment Date). The parties expressly agree that neither the Purchaser nor any

9

Group Company shall have any obligation to make some or all of the Third Long- Term Loan Payment unless and until expressly agreed in the future. ” For these purposes:

(1)

a new definition shall be added to clause 1.1 as follows “Third Long-Term Loan Payment means the third additional payment of £3,000,000 (three million pounds sterling) (plus any accrued but unpaid amount due in respect of the annual profit or interest rate thereon) payable to the Vendor (or its nominated Affiliate) in accordance with Clause 3.4.3, if the parties so agree following their good faith discussions;”;

(2)

the definition of “Long Term Indebtedness” shall change to refer to an amount outstanding of "£16,500,000 or such other amount outstanding from time to time by operation of Clause 3.4.3" rather than £13,500,000;

(3)

Recital B(iii) shall be updated to refer to "the repayment by the Club of the Long –Term Indebtedness" accordingly; and

(4)

the parties agree that no annual profit or interest (howsoever defined) shall accrue or be payable on the third additional payment of £3,000,000 pursuant to clause 3.5 unless and until the parties expressly agree.

10

Tomlinson, Nicholas

From:

Tomlinson, Nicholas

Sent:

06 February 2014 22:17

To:

'Saul Sender'

Cc:

Christina McNally; 'Chris Farnell' (chris.farnell@ipslaw.co.uk); 'Hisham Alrayes'; Salem

Subject:

Patel (spatel@gfh.com); Gareth Owen Jones (GJones@gfh.com) RE: LUFC Holdings Limited

Saul,

Many thanks, I can confirm this is accepted on behalf of my client, GFH Capital Ltd.

Thanks, Nick

Nick Tomlinson

Partner

GIBSON DUNN

Gibson, Dunn & Crutcher LLP Telephone House, 2-4 Temple Ave, London EC4Y 0HB Tel +44 (0)20 7071 4272 Fax +44 (0)20 7070 9272 Mobile +44 (0)7917 372231 NTomlinson@gibsondunn.com www.gibsondunn.com/lawyers/ntomlinson

Gibson, Dunn & Crutcher LLP is a limited liability partnership registered in Delaware. Authorised and regulated by the Solicitors Regulation Authority (Number 324652).

From: Saul Sender [mailto:Saul.Sender@Mishcon.com] Sent: 06 February 2014 21:51 To: Tomlinson, Nicholas Cc: Christina McNally; 'Chris Farnell' (chris.farnell@ipslaw.co.uk) Subject: LUFC Holdings Limited

We refer to the share purchase agreement dated today's date in respect of the sale and purchase of 75 per cent of the issued share capital of LUFC Holding Limited by our client Eleonaora Sport Limited (the Purchaser) to GFH Capital Limited (the Vendor), as amended by a letter agreement between the Purchaser and the Vendor also of today's date (the SPA).

In connection with paragraph 4 of appendix 1 to the side letter to the SPA to be entered into today between our client, Eleonora Sport Limited (ESL) and your client, GFH Capital Limited (GFH), I confirm on behalf of my client ESL (and subject to your confirmation below) that it undertakes not to take any steps to register a transfer of the Shares until (i) at least three business days (as defined in the SPA) after the requisite notification is made to GFH and ESL has not been notified of any dispute in relation thereto, provided that in the event that the Purchaser provides written confirmation from The Football League of receipt of Final Football League Approval, such time period shall be reduced to 1 (one) business day; (ii) if it becomes aware of such a dispute, in accordance with the determination of the expert appointed under such

paragraph 4 of appendix 1.

League Approval is based on written or email confirmation from The Football League Limited, then such documents shall be separately sent to the Vendor and the Vendor’s Solicitors on the same day that the notice is forwarded to them under such paragraph 4 of appendix 1.

I can further confirm on behalf of my client ESL that to the extent any Final Football

1

Our confirmation is conditional upon your confirmation of the same on behalf of your client.

Kind regards

Saul

Saul Sender Partner Corporate Group Mishcon de Reya DDI: +44 20 7440 4700 PA: +44 20 7440 4773 (Maria Pedraza) Mob:+44 (0)7867 971 911 www.mishcon.com saul.sender@mishcon.com

Please consider the environment before printing this e-mail.

Out now: 'The future of the city', the fourth supplement from our London and the World series in partnership with the Financial Times.

Mishcon de Reya Solicitors, Summit House, 12 Red Lion Square, London WC1R 4QD Tel +44(0)20 7440 7000 Fax +44(0)20 7404 5982 www.mishcon.com

This email message has been scanned for viruses by Mimecast.

2