1
Exhibit 10.1 (d)
PURCHASE AGREEMENT
between
Xxxxx Getriebe Aktiengesellschaft, Krokamp 35, D-24539 Neumunster,
- hereinafter referred to as "seller" -
and
Xxxxx-Sundstrand GmbH & Co., Krokamp 35, D-24539 Neumunster,
-hereinafter referred to as "purchaser" -
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ss. 1
Contents of the Land Record
Seller is the owner of the following real property:
1. Land record of Neumunster page 7757
No. 5 Germarkung Neumunster, Flur 6491 C, Flurstuck 185, farmstead,
Krokamp, size 7,794 sq.meters.
The above real property is encumbered as follows:
Abt. II: No encumbrances
Abt. III:
No. 2 Charge on real property (Grundschuld) in the amount of 250,000 DM
for Westdeutsche Landesbank Girozentrale Dusseldorf-Munster,
Munster,
No. 3 Charge on real property (Grundschuld) in the amount of 4,750,000
DM for Xxxxx XxxX & Xx. Xxxxxxxxxxxxxxxxxxxxx, Xxxxxxxxxx,
0
0
Xx. 0 Charge on real property (Grundschuld) in the amount of 5,000,000
DM for Xxxxx XxxX & Xx. Xxxxxxxxxxxxxxxxxxxxx, Xxxxxxxxxx,
Xx. 0 Charge on real property (Grundschuld) in the amount of 2,100,000
DM for Xxxxx XxxX & Xx. Xxxxxxxxxxxxxxxxxxxxx, Xxxxxxxxxx,
Xx. 0 Charge on real property (Grundschuld) in the amount of 2,000,000
DM for Xxxxx XxxX & Xx. Xxxxxxxxxxxxxxxxxxxxx, Xxxxxxxxxx,
Xx. 0 Charge on real property (Grundschuld) in the amount of 7,500,000
DM for Xxxxx XxxX & Xx. Xxxxxxxxxxxxxxxxxxxxx, Xxxxxxxxxx,
Xx. 0 Charge on real property (Grundschuld) in the amount of 4,000,000
DM for Xxxxx XxxX & Xx. Xxxxxxxxxxxxxxxxxxxxx, Xxxxxxxxxx,
Xx. 0 Charge on real property (Grundschuld) in the amount of 2,000,000
DM for Xxxxx XxxX & Xx. Xxxxxxxxxxxxxxxxxxxxx, Xxxxxxxxxx,
Xx. 00 Charge on real property (Grundschuld) in the amount of 1,500,000
DM for Xxxxx XxxX & Xx. Xxxxxxxxxxxxxxxxxxxxx, Xxxxxxxxxx,
Xx.'x 0 - 00 each jointly liable with Neumunster page 7758.
2. Land Record of Neumunster page 7758
No. 5 Gemarkung Neumunster, Flur 6491 C, Flurstuck 106, operational site,
Krokamp, size 55,593 sq.meters.
The above real property is encumbered as follows:
Abt. II: No encumbrances.
Abt. III: Encumberances as Neumunster page 7757.
3. Land Record of Neumunster page 20899
No. 1 Gemarkung Neumunster, Flur 6491 A, Flurstuck 88, road, Gadelander
Strasse, size 69 sq.meters, Flurstuck 312, xxxxx (Holzung),
Xxxxxxxxxxxxxxxxx 0, size 37,695 sq.meters,
Gemarkung Neumunster, Flur 6491 B
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Flurstuck 105, operational site, Xxxxxxxxxxxx 00, size 45,894
sq.meters.
The above real property is encumbered as follows:
Abt. II: No encumbrances.
Abt. III:
No. 1 Charge on real property (Grundschuld) in the amount of 4,000,000
DM for Xxxxx Getriebe Aktiengesellschaft, Neumunster,
No. 2 Charge on real property (Grundschuld) in the amount of 1,000,000
DM for Xxxxx Getriebe Aktiengesellschaft, Neumunster.
ss. 2
Purchase
Seller sells the real property designated in ss. 1 including all buildings
thereon and all rights and components thereto to purchaser. Purchaser hereby
accepts the sale.
ss. 3
Price of Purchase
The price of purchase corresponds to the fair market value of the real property
at the date of the acceptance of the offer of sale. If the parties of this
contract cannot agree on the fair market value it will be determined
conclusively by a sworn expert as an arbitrator, who will be named by the
Chamber of Industry and Commerce of Kiel. Each party may demand that a second
sworn expert named by the Chamber of Industry and Commerce is given the mandate
to prepare an opinion on the value. This demand must be made in writing and must
reach the other party within four weeks of the submission of the first expert
opinion. If two opinions have been prepared the purchase price corresponds to
the average value of both opinions.
The costs of the first opinion are to be borne equally by both parties. The
costs of a second opinion are to be borne by the party that demanded its
preparation.
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ss. 4
Time of Payment
The price of purchase determined according to ss. 3 is due upon its
determination, however not earlier than the date six months after the acceptance
of the offer of sale.
ss. 5
Terms of Payment
The price of purchase is to be paid with regard to the following conditions:
1. Purchaser will assume all charges on the property registered in the land
record to secure debts of seller to be counted towards the purchase price.
At present this consists of all charges listed above in ss. 1.
The above named charges on the property and the underlying liabilities
will be transferred including maturity, interest and collateral
performance as existing on the day the purchase price becomes due.
Purchaser agrees to consent to immediate execution by way of a notarial
deed upon demand of the creditors of such charges.
2. The purchase price remaining after deduction of the charges counted toward
such purchase price shall be paid in cash.
3. Purchaser has the right to pay off any charges to be assumed according to
No. 1 with the purchase price instead of assuming them.
ss. 6
Warranty
Property and premises are sold in the present condition without guaranty of
size, quality and condition free from encumbrances that can be registered,
unless these encumbrances are transferred or remain on the property.
All liability and warranty for material defects are excluded. This exclusion
also applies to residual pollution (Altlasten). Purchaser declares to be aware
of all aspects of the condition of the property.
The encumbrances registered in Abt. II of the land record will remain registered
and will be assumed by purchaser without being counted towards the purchase
price.
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Charges registered to secure debts of seller will remain registered and it is
the responsibility of purchaser to have them removed from the land record.
Local improvement assessments (Erschlie ungskosten und Anliegerbeitrage) for
assets erected at the time of the acceptance of the purchase offer will be borne
by seller, local improvement assessments for assets erected later will be borne
by purchaser.
ss. 7
Delivery
Delivery shall take place as the purchase price becomes due. Upon delivery all
benefits, expenses and the risk will pass to purchaser.
ss. 8
Permissions
The notary public recording this acceptance is instructed to obtain all
permissions and all negative certificates (Negativbescheinigungen) necessary for
this contract. All statements shall be effective for all parties upon their
receipt by the notary public.
ss. 9
Protection of Claim for Transfer(1)
After being advised thereon the parties choose not to register a priority notice
protecting the claim for transfer of title to land.
ss. 10
Contents of the Land Record
The notary public has drawn the information on the contents of the Land Record
from extracts dated November 5, 1996.
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(1) Auflassungsvormerkung according to ss.883 of the German Civil Code (BGB).
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ss. 11
Expenses
All expenses accrued by this contract and its execution are borne by purchaser.
ss. 12
General Power of Agency
The notary public recording this acceptance is authorized to execute this
contract. He is authorized to file and withdraw all applications separately.
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Translation of Contract for Sale of the Krokamp Real Property
Document register No. 57 for the year 1998 (Dr. EG)
For the following transaction, taking place in Duisburg, April 16 1998, in the
presence of Xx. Xxxxx Xxxxxx, whose place of business is located in Duisburg,
the following person, known to the Notary, appeared:
Attorney-at-law Dr. Xxx-Xxxxx Boning, having a place of business at Xxxxxxxx.
00-00 00000 Xxxxxxxx, acting as a representative without power of representation
for
1. Xxxxx GmbH & Co Hydraulik Kommanditgesellschaft, Krokamp 35, D-24539
Neumunster,
2. Xxxxx-Sundstrand GmbH, Krokamp 35, 24539 Neumunster.
The attorney acting in the above described capacity made the following
statement:
Xxxxx Getriebe Aktiengesellschaft, Neumunster, offered, in a notarized
document, dated December 19, 1996 Doc. No 131/1996 of the notarizing attorney, a
contract for the sale of the real property registered in the real property
register of Neumunster on pages 775, 7758 and 20899.
The legal successor of Xxxxx Getriebe Aktiengesellschaft, now
registered owner of above referenced real property became, through a change in
form the representative of the entity referenced in 1., Xxxxx GmbH & Co.
Hydraulik Kommanditgesellschaft, Neumunster.
Based on the agreement in Section 2, last paragraph of the notarized
document dated Dec. 12, 0000, Xxxxx-Xxxxxxxxxx GmbH & Co. is authorized to
delegate by written authorization the power to accept an offer to sell.
Xxxxx-Sundstrand GmbH & Co. has used this power by giving a written
authorization to the entity referenced under 2. above to accept the offer.
Therefore, the attorney, acting in the above referenced capacity
accepted the offer with the following amendment:
1 The entity represented under 1. above, Xxxxx-Sundstrand GmbH, herewith
accepts the notarized offer of sale of a real property as shown in
Exhibit 2 to the official document dated Dec. 19, 1998, filed as Doc.
NO. 131-1996 of the notarizing attorney.
2 The contract of real property sale resulting therefrom will be amended
by adding that, in addition to the real property registered in the
official real property register of Neumunster, on pages 7757, 7758, and
20882, the following pieces of real property, listed in the official
registry, will also become subject of the sale contract:
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Real Property Registry of Neumunster Page 4012
Gemarkung Neumunster Flur 6491 C Flurstuck 181 at 1.932 qm.
Real Property Registry of Neumunster Page 17102
Gemarkung Neumunster Flur 6491 C Flurstuck 183 at 6,636 qm.
3 The entity represented above under 1., Xxxxx GmbH & Co. Hydraulik
Kommanditgesellschaft, and the entity represented under 2.,
Xxxxx-Sundstrand GmbH have agreed to transfer the real property
registered in the official real property register of Neumunster on
pages 775, 7758, 20899, 4012 and 17102 to Xxxxx-Sundstrand GmbH as the
new owner and authorize and request that the change of ownership be
registered in the registry.
4 In addition, the real property sale contract, which is an exhibit to
the official document dated Dec. 19, 1996 - Doc. No. 131/1996 of the
notarizing attorney- will be amended as follows:
a) According to the expertized evaluation by Mr. Stoben, dated
April 3, 1998, the real estate value of the property sold is
DM40,800,000. With reference to Section 3 of the offer of sale
the parties state that they agree that the purchase price be
DM 40,800,000. To the extent that the selling party has to pay
value added taxes due to the sale, it is entitled to be
reimbursed for that amount by the buyer.
b) Section 4 of the offer to sell is changed to state that the
remainder of the purchase price has to be paid on or before 6
months after today's acceptance of the offer to sell.
Xxxxx-Sundstrand will pay 5% interest, as of May 1, 1998,
until the price has been paid to Xxxxx GmbH & Co. Hydraulik
Kommanditgesellschaft.
c) Section 5, paragraph 1 of the offer to sell will be made more
precise in that it states that the liens and encumbrances,
valued at DM 14,445,000 will be adopted as per May 1, 1998.
d) Section 7 of the offer of sale will be changed to state that
the transfer will take place on May 1, 1998.
e) Section 11 of the contract of sale will be changed to the
effect that the parties to the contract, and the cost accruing
due to its execution, with the exception of the
Grunderwerbsteuer (a tax), shall be shared equally by each
party.
f) The parties waive their right to request the change in the
registry themselves. They give the exclusive authority to do
that to the notarizing attorney, who is authorized to request
the change only, after the represented entity in 2. above,
Xxxxx GmbH & Co. Hydraulik Kommanditgesellschaft, has
acknowledged, in writing, the receipt of the balance of the
purchase price.
g) All other determinations of the offer to sell remain
unchanged.
The transaction above was read to the appearing attorney while the notarizing
attorney was present, was authorized by her, and was signed by her, and the
notarizing attorney.
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Document Register No. /19
STATEMENT OF APPROVAL
All declared statements of Dr. Xxx-Xxxxx Boning, with business offices at
Xxxxxxxxxxxx 00-00, 00000 Xxxxxxxx,
in the document of the civil-law notary Xx. Xxxxx Xxxxxx
with offices in Duisburg
dated April 16, 1998 (Document Register No. 57/1998)
are herewith unconditionally approved. Dr. Xxx-Xxxxx Boning is exempt from the
limitations of Section 181 of the German Civil Code.
The content of the document is known.
The value of this statement amounts to DM 40,800,000.00
Neumunster, 0000
Xxxxx-Xxxxxxxxxx GmbH
/s/ Xxxxxx /s/ ppa Xxxx Xxxxxxxx
(Xx. Xxxxxx) (Langrick)
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Document Register No. /19
STATEMENT OF APPROVAL
All declared statements of Dr. Xxx-Xxxxx Boning, with business offices at
Xxxxxxxxxxxx 00-00, 00000 Xxxxxxxx,
in the document of the civil-law notary Xx. Xxxxx Xxxxxx
with offices in Duisburg
dated April 16, 1998 (Document Register No. 57/1998)
are herewith unconditionally approved. Dr. Xxx-Xxxxx Boning is exempt from the
limitations of Section 181 of the German Civil Code.
The content of the document is known.
The value of this statement amounts to DM 40,800,000.00
Neumunster, 1998
Xxxxx GmbH & CO. Hydraulik Kommanditgesellschaft
Xxxxx Gesellschaft mit beschrankter Haftung
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Xxxxx-Sundstrand GmbH & Co. Neumunster, April 14, 1998
Xxxxxxx 00
00000 Xxxxxxxxxx
Firma
Xxxxx GmbH & Co. Hydraulik
Kommanditgesellschaft
- Management -
Xxxxxxx 00
00000 Xxxxxxxxxx
Re.: Offer to conclude a purchase agreement according to Document dated
December 19, 1996 - Document Register No. 131/1996 of the civil-law
notary Xx. Xxxxx Xxxxxx -
Ladies and Gentlemen:
Your predecessor, Xxxxx Getriebe AG, Neumunster, after a transformation that
changed its legal form, today Xxxxx GmbH & Co. Hydraulik Kommanditgesellschaft,
Neumunster, per contract dated December 19, 1996 - Document Register No.
131/1996 (DrG) - has granted to our company, Xxxxx-Sundstrand GmbH & Co.,
Neumunster, et. al., an option to purchase the land registered in the Neumunster
Land Registry on Pages 7757, 7758 and 20899. According to Section 2, last
paragraph of the foregoing contract, we are entitled, as the beneficiary of such
purchase option, to appoint, through written notice to you as the offeror, a
third party who is duly entitled to accept the sales offer.
Exercising the foregoing right, we herewith appoint the
Xxxxx Sundstrand GmbH, Neumunster,
to accept the sales offer on its own behalf with the consequence, that through
its acceptance in the required form, a valid sales contract will be concluded
directly and immediately between your company, Xxxxx GmbH & Co. Hydraulik
Kommanditgesellschaft (as vendor) and Xxxxx-Sundstrand GmbH (as acquiror).
Sincerely,
Xxxxx - Sundstrand
GmbH & Co.
[illegible]
