PURCHASE AGREEMENT concluded by and between Milan Gottwald, Tax Id. No.: CZ 7502195327 residing at: Náklo 334, Postal Code: 783 32 account No. 6319656084/2700, kept by UniCredit Bank Czech Republic, a.s. (hereinafter the “Seller”) on the one part and...
concluded
by and between
Xxxxx
Xxxxxxxx,
Tax Id.
No.: CZ 7502195327
residing
at: Xxxxx 000, Xxxxxx Code: 783 32
account
No. 6319656084/2700, kept by UniCredit Bank Czech Republic, a.s.
(hereinafter
the “Seller”)
on the
one part
and
SENDIO
s.r.o.
Id. No.:
281 64 440,
Tax Id.
No.: CZ28164440
with its
registered office: Olomouc, Xxxxxxx 000/00, Xxxxxx Xxxx 00000,
registered
in the Commercial Register kept by the Regional Court in Ostrava in Section C,
Inset 43097,
represented
by Philip Glyn Styles and Xxxxxxx Xxxxxx Xxxx, Executives of the
company
(hereinafter
the “Buyer”)
on the
other part
(the
Seller and the Buyer are hereinafter jointly referred to as the “Parties”)
Preamble
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A.
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On
May 28, 2008, the Parties concluded a lease contract providing for
step-by-step lease of the Premises (as defined in Art. I (1) of the Lease
Contract) by the Seller to the Buyer (hereinafter the “Lease Contract”). On
September 16, the Parties concluded Amendment No. 1 to the Purchase
Agreement.
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B.
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The
Lease Contract was concluded by the Parties with the intention to
conclude, as soon as possible after the conclusion of the Lease Contract,
a purchase agreement, whereby the Seller would transfer the ownership
title to the Premises (as defined in Art. I (1) of the Lease Contract) and
to other real estate to the Buyer.
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C.
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On
April 18, 2003, the Seller and other co-debtors, on
the one part, and Živnostenská banka, a.s., with its registered office at
Xx Xxxxxxx 000/00, Xxxxxx 0, 000 00, Xx. No.: 00001368 (currently,
UniCredit Bank Czech Republic, a.s., with its registered office: Xxxxxx 0,
Xx Xxxxxxx 000/00, Xxxxxx Code 111 21, Id. No.: 649 48 242)
(hereinafter the “Bank“), on the other
part, concluded Mortgage Loan Agreement No. HF 116/03, as amended by
Amendment No. 1 to Mortgage Loan Agreement No. HF 116/03 of April 24,
2003, on the basis of which the Seller was provided with a loan in the
amount of CZK 20,000,000.00 (in words: twenty million Czech crowns)
(hereinafter the “Loan”).
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initials
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D.
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Simultaneously
with this Agreement, the Buyer, the Seller and UniCredit Bank Czech
Republic, a.s., with its registered office: Xxxxxx 0, Xx Xxxxxxx
000/00, Xxxxxx Code 111 21, Id. No.: 649 48 242, (hereinafter the
“Escrow Agent”)
conclude an escrow agreement (hereinafter the “Escrow Agreement”),
providing, inter
alia, for establishment of escrow account No. 2101989486/2700
(hereinafter the “Escrow
Account”), which shall be used exclusively for the purposes
described in the Escrow Agreement.
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E.
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The
Buyer intends to establish his registered office and build manufacturing
premises in the Real Estate (as defined in Art. I (1) hereof) and to
operate its business there, and this prior to the legal effects of the
transfer of the Real Estate to the
Buyer.
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F.
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The
Seller is the exclusive owner of the Real Estate (as defined in Art. I (1)
hereof) and intends to sell the Real Estate to the Buyer for the agreed
purchase price and under the terms and conditions stipulated hereafter in
this Agreement. The Buyer intends to purchase the Real Estate from the
Seller for the agreed purchase price and under the terms and conditions
stipulated hereafter in this
Agreement.
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G.
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The
objective of this Agreement is to ensure that the Buyer becomes, with
effect from July 1, 2009, the exclusive owner of the Real Estate (as
defined in Art. I (1) hereof) free of any third-party rights, except for
those on which the Parties have agreed, and also that the Seller is paid
the agreed purchase price for sale of the Real Estate to the
Buyer.
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H.
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The
Parties agree that the ownership title to movable assets located in the
Real Estate on the date of conclusion hereof, or on the date of effect of
the transfer of the Real Estate to the Buyer, as appropriate, (e.g.
apparatus, equipment of offices, etc.), in which the Buyer is interested
and which the Seller intends to sell, shall be transferred from the Seller
to the Buyer by virtue of a separate purchase contract concluded between
the Parties.
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I.
Subject
of the Agreement
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1.
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This
Agreement provides for the transfer of the following buildings and land,
including their parts and accessories (the accessories are specified in
more detail in Schedule No. 8
hereof), for consideration:
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building
No. 156, administrative building on construction property lot No. 1416,
part of municipality: Hodolany
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building
without land-registry number, manufacture, on construction property lot
No. 1415
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building
without land-registry number, technical infrastructure, on construction
property lot No. 1417
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building
without land-registry number, infrastructure, on construction property lot
No. 1418
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building
without land-registry number, other structure, on construction property
lot No. 1419
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building
without land-registry number, infrastructure, on construction property lot
No. 1422
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building
without land-registry number, infrastructure, on construction property lot
No. 1423
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building
without land-registry number, manufacture, on construction property lot
No. 1677/1
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building
without land-registry number, garage, on construction property lot No.
1614
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building
without land-registry number, garage, on construction property lot No.
1615
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building
without land-registry number, garage, on construction property lot No.
1616
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building
without land-registry number, garage, on construction property lot No.
1617
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initials
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building
without land-registry number, garage, on construction property lot No.
1618
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building
without land-registry number, garage, on construction property lot No.
1619
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building
without land-registry number, technical infrastructure, on construction
property lot No.
1417
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construction
property lot No. 1415, with an area of 6 775 m2,
built-up area and courtyard;
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construction
property lot No. 1416, with an area of 928 m2,
built-up area and courtyard;
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construction
property lot No. 1418, with an area of 74 m2,
built-up area and courtyard;
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construction
property lot No. 1417, with an area of 480 m2,
built-up area and courtyard;
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construction
property lot No. 1419, with an area of 86 m2,
built-up area and courtyard;
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construction
property lot No. 1422, with an area of 82 m2,
built-up area and courtyard;
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construction
property lot No. 1423, with an area of 23 m2,
built-up area and courtyard;
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construction
property lot No. 1677/1, with an area of 455 m2,
built-up area and courtyard;
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property
lot No. 567/3, with an area of 502 m2,
other area, different area;
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property
lot No. 568/2, with an area of 1 048 m2,
other area, different area;
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property
lot No. 568/8, with an area of 12 753 m2,
other area, handling area;
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property
lot No. 568/10, with an area of 493 m2,
other area, different area;
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property
lot No. 578/3, with an area of 1 815 m2,
other area, other road;
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property
lot No. 582/2, with an area of 3 400 m2,
other area, different road;
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construction
property lot No. 1614, with an area of 18 m2,
built-up area and courtyard;
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construction
property lot No. 1615, with an area of 18 m2,
built-up area and courtyard;
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construction
property lot No. 1616, with an area of 19 m2,
built-up area and courtyard;
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construction
property lot No. 1617, with an area of 18 m2,
built-up area and courtyard;
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construction
property lot No. 1618, with an area of 18 m2,
built-up area and courtyard;
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construction
property lot No. 1619, with an area of 18 m2,
built-up area and courtyard;
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property
lot No. 568/13, with an area of 2 708 m2,
other area, different
area;
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all
the above in the cadastral area of Hodolany, the municipality of Olomouc,
registered in the Land Registry kept by the Cadastral Authority for the
Xxxxxxx Xxxxxx, Xxxxxxx cadastral workplace, on title sheet (LV) No. 2978
(hereinafter the “Premises”), from the
ownership of the Seller to the ownership of the Buyer. An up-to-date
extract from the Land Registry, in which the Real Estate is recorded, is
attached to this Agreement as its Schedule No. 1.
A ground plan of the Real Estate is attached to this Agreement as its
Schedule No.
2.
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2.
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By
virtue of this Agreement, the Seller sells, i.e. transfers for
consideration, the Real Estate to the Buyer under the terms and conditions
stipulated herein and for the agreed Purchase Price (as defined in Art. II
(1) hereof) and, by virtue of this Agreement, the Buyer purchases, i.e.
accepts the ownership title to, the Real Estate, tel quel, from the
Seller under the terms and conditions stipulated herein, and agrees to pay
the Seller the agreed Purchase Price. The effects of purchase and sale of
the Real Estate hereunder are subject to the preconditions stipulated in
Art. VII (1) hereof.
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II.
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Purchase
Price for the Real Estate
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1.
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The
Parties agree on the purchase price for the Real Estate in the amount of
CZK 179,000,000.00 (in words: one hundred and seventy-nine million Czech
crowns) (hereinafter the “Purchase
Price”).
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initials
3
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2.
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The
Buyer shall pay the Purchase Price to the Seller by means of the Escrow
Account, with the collaboration of the Escrow Agent, under the payment
terms and other terms and conditions, as specified in Art. III. and Art.
IX. hereof.
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III.
Payment
Terms
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1.
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The
Parties jointly represent and confirm that, prior to conclusion hereof, on
May 29, 2008, the Buyer paid the Seller, and the Seller received from the
Buyer, the amount of CZK 4,000,000.00 (in words: four million Czech
crowns). The Parties acknowledge that, according to their joint will, as
of May 29, 2008, the above was a payment effected on the basis of Art. IV
(5) of the Lease Contract as an advance on future payments of the rent
under the Lease Contract. Furthermore, the Parties acknowledge that, as a
consequence of conclusion hereof, in accordance with Art. XV (4) of the
Lease Contract, this payment shall further be considered to be an advance
on the Purchase Price within the meaning of Section 498 of the Civil Code,
or first installment on the Purchase Price
hereunder.
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2.
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The
Buyer agrees to deposit the balance of the Purchase Price for the Real
Estate in the Escrow Account in individual installments as
follows:
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(i)
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the
amount of CZK 11,000,000.00 (in words: eleven million Czech crowns) shall
be paid by the Buyer into the Escrow Account at the latest by February 28,
2009;
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(ii)
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the
amount of CZK 2,500,000.00 (in words: two million five hundred thousand
Czech crowns) shall be paid by the Buyer into the Escrow Account at the
latest by April 30, 2009;
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(iii)
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the
amount of CZK 3,000,000.00 (in words: three million Czech crowns) shall be
paid by the Buyer into the Escrow Account at the latest by May 5,
2009;
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(iv)
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the
amount of CZK 153,130,000.00 (in words: one hundred and fifty-three
million one hundred and thirty thousand Czech crowns) shall be paid by the
Buyer into the Escrow Account (subject to a possible change pursuant to
Art. III (6) hereof) at the latest by June 30,
2009;
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(v)
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the
amount of CZK 5,370,000.00 (in words: five million three hundred and
seventy thousand Czech crowns) shall be paid by the Buyer into the Escrow
Account (subject to a possible change pursuant to Art. III (6) hereof) at
the latest by June 30, 2009.
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3.
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The
obligation of the Buyer to deposit the individual installments in the
relevant account pursuant to Art. III (2) hereof shall be considered to be
duly fulfilled upon crediting the entire amount of the relevant individual
installment to the Escrow Account.
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4.
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The
Buyer shall also be entitled to pay the individual parts of, or
installments on, the Purchase Price, as specified in Art. III (2) hereof
prior to the individual dates stipulated in Art. III (2) hereof. In this
case, the Buyer shall pay any contractual fine and other penalties
required by the Bank in connection with early repayment of the
Loan.
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5.
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The
manner and terms of payment of part of the Purchase Price in the amount of
CZK 175,000,000.00 by the Buyer into the Escrow Account, as well as the
manner and terms of release of the money from the Escrow Account, are
described in Art. IX. hereof and also in the Escrow Agreement, whose
wording, approved by the Parties, without annexes, is attached to this
Agreement as its Schedule
No. 3.
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initials
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6.
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The
manner of payment of the individual installments on the Purchase Price as
specified in Art. III (2) (iv) and (v) hereof, as regards identification
of the account into which the relevant amount is to be paid, may be
changed after conclusion hereof. The conditions of the change, including
the related changes in the manner of subsequent release of the Purchase
Price, are specified in Art. XIV (8)
hereof.
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IV.
Seller’s
Representations and Warranties
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1.
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The
Seller represents and warrants to the Buyer
that:
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(a)
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he
has all the necessary authorizations and powers to conclude and perform
this Agreement and to perform his obligations following from this
Agreement; this Agreement gives rise to a legally binding and valid
obligation of the Seller that can be enforced against him in accordance
with its terms and deadlines;
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(b)
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he
is the exclusive owner of the Real Estate and has been the exclusive owner
thereof for a period exceeding 3 (three) years prior to conclusion
hereof;
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(c)
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the Real Estate is neither
divided nor combined and is free of any legal defects, particularly
contractual pre-emption rights, contractual mortgage rights, except for
the mortgage right established in favor or the Bank which secures the
Seller’s debt in the amount of CZK 20,000,000.00, third-party rights
corresponding to contractual easements, except for the easements set forth
on Title Sheet (LV) No. 2978, which is attached to this Agreement as its
Schedule
No. 1, lease rights
and other rights of use, except for the leases set forth in Schedule
No. 5 hereof, other
rights or limitations and encumbrances for the benefit of third parties,
regardless of whether or not these rights are registered in the Land
Registry, including, but not limited to, the fact that it is not the
subject of any pending enforced restitution claims, it is not encumbered
with any tax or other receivables or arrears, and no court,
administrative, arbitration or other proceedings are pending with respect
to the ownership title or right of use to the Real Estate, and the Seller
and/or any person authorized by the Seller has not performed any act that
could encumber or limit the Real Estate in any of the above-mentioned
ways, except for the easements that have arisen by operation of law,
without the prior consent of the Buyer; the Seller is not aware that the
legal relationships to the Real Estate would be or could be affected by a
change in the legal relationships (i.e. a “note”);
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(d)
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the
Seller is not aware that the Real Estate would have other factual material
defects having their origin in the period when the Seller was the owner of
the Real Estate (i.e. 5 years – since May 2003) other than those of which
the Seller has informed the Buyer prior to conclusion hereof and/or those
that the Buyer has ascertained himself on the basis of his investigations
prior to conclusion hereof and of which he has notified the Seller in
accordance with Art. VI (1) (h)
hereof;
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(e)
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no
third person, including the tenants set forth in Schedule No. 5
hereof, is entitled, or has incurred within the last four (4) years prior
to the effect of the transfer of the Real Estate hereunder, an unsettled
entitlement to request that the Seller reduce the amount of the rent or
provide a discount on the rent, indemnification or any other pecuniary
amount (including claims on the grounds of unjust enrichment, etc.); no
third person, including the aforementioned tenants, has provided, either
in the past or at the present time, any advance payment in any form
whatsoever on rent or fees for services, or has provided the Seller with
any down payment or performance aimed at a future performance that is to
be effected at any time after July 1, 2009, except for the usual security
deposits or payments set out in the contracts with the tenants pursuant to
Schedule No.
5 hereof; if the Seller has received any funds from the tenants of
the Real Estate for the purpose of securing the rent and payments for the
performances provided in connection with use of the real estate and for
payment of any obligations related to the lease of the Real Estate
(deposits, security, collateral) and these are related to the period when
the right to manage the Real Estate was already borne by the Buyer as the
owner of the Real Estate, the Seller agrees to transfer such funds within
14 (fourteen) days of acceptance of the Real Estate pursuant to Art. VIII
(1) (iv) and Art. X. hereof to the Buyer’s bank account, which shall be
communicated by the Buyer to the Seller to this end (this provision shall
not apply to down payments, security deposits and other funds obtained by
the Seller from the Buyer on the basis of the Lease
Contract;
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(f)
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if
the following was stored or maintained in the Real
Estate:
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(i)
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hazardous waste, as defined in
Section 4 (a) of Act No. 185/2001 Coll., on waste, as amended (hereinafter
the “Waste Act”); and/or
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(ii)
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dangerous substances, as defined
in Section 2 (5) of Act No. 356/2003 Coll., on chemical substances and
chemical preparations, as amended (hereinafter the “Chemical Substances
Act”); and/or
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(iii)
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dangerous preparations, as
defined in Section 2 (5) of the Chemical Substances
Act;
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the above
was stored and/or maintained in accordance with the applicable legal
regulations, particularly the Waste Act. This representation is related to the
period: (i) with
respect to the Remaining Part of the Real Estate, from the date when the Seller
became the owner of the Real Estate to the date of delivery of the Remaining
Part of the Real Estate to the Buyer; and (ii) with respect to the
subject of the lease, as defined in the Lease Contract, from the date when the
Seller became the owner of the Real Estate to the date of conclusion of the
Lease Contract.
Furthermore,
the Seller represents and warrants that he has not obtained any written
information, notice, study or documentation that would bindingly demonstrate any
environmental damage to the Real Estate or parts thereof within the meaning of
Section 2 (a) of Act No. 167/2008 Coll., on prevention of environmental damage
and its remedy, as amended.
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(g)
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he
is not aware that any hazardous waste as defined in subpar. (0) above
would be stored or maintained in the Real Estate and/or part thereof prior
to acquisition of the Real Estate by the
Seller;
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(h)
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he
is not aware that any unauthorized structures would be located in the Real
Estate, regardless of whether or not these structures would be registered
in the Land Registry or third-party
structures;
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(i)
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direct
access to the Real Estate is ensured for pedestrians and vehicles from a
public road; the Seller is not aware that access by pedestrians and/or
vehicles to the Real Estate would be restricted in any manner whatsoever
(except for usual maintenance and repairs) and/or subject to
payment;
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(j)
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the
Seller represents that, as of the date of hereof, there is no pending
court dispute with any supplier of electricity, water, gas and heat and
the contracts with these suppliers are not being breached, as a
consequence of which these contracts would be terminated; furthermore, the
Seller represents that no fees are paid for use of the engineering
networks to which the Real Estate is directly linked and that their use
results in no additional costs or other obligations; the Seller is not
aware of any disputes with the mentioned suppliers with respect to the
prices of energies and/or outstanding payments for the provided
services;
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initials
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(k)
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the
Seller agrees to pay the installments on the Loan duly, in the full amount
and in a timely manner, as agreed in the Mortgage Loan Agreement specified
in Recital C. hereof.
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2.
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The
Seller makes the representations and warranties set out in this Art. IV
hereof as of the date of this Agreement and is aware that the Buyer relies
on these representations and warranties in conclusion hereof and would
never conclude this Agreement without
them.
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3.
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The
Seller agrees to reassure the Buyer of the continuing validity, accuracy
and completeness of the representations and warranties set out in this
Art. IV. hereof repeatedly, including prior to the actual transfer of the
Real Estate in accordance with Art. VIII (1) (i) hereof. If the Seller is
unable to provide this reassurance, because he is aware of any facts or
matters that could cause this reassurance to be false, inaccurate,
incomplete or misleading, he shall explicitly state these facts in the
reassurance as exemptions.
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4.
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The
Seller represents that, as of the date hereof, he is not aware of any
breach of the representations and warranties of the Buyer set out in Art.
VI. hereof.
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V.
Seller’s
Obligations
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1.
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The
Seller agrees that, at the latest by June 30, 2009, the Real Estate will
be free of any legal defects, particularly contractual pre-emption rights,
contractual mortgage rights, third-party rights corresponding to
contractual easements, except for the easements set forth in Schedule No. 7
hereof and easements established on the basis of the legal regulations or
decisions of public authorities without respect to the Seller’s will,
lease rights and other rights of use, except for the leases set forth in
Schedule No.
5 hereof, other rights or limitations and encumbrances for the
benefit of third parties, regardless of whether or not these are rights
registered in the Land Registry.
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2.
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The
Seller’s obligation pursuant to Art. V (1) hereof also does not cover the
mortgage right for the benefit of the Bank securing its receivables from
the Loan. The effects of this obligation are conditional on due deposition
of the individual installments on the Purchase Price in the Escrow Account
pursuant to Art. III (2) (i) to (iii) hereof. Furthermore, the Parties
represent and acknowledge that the time of deletion of this mortgage right
from the Land Registry cannot be unambiguously specified and influenced on
the date of conclusion hereof, as it depends on the procedure of the
competent cadastral authority and due collaboration by the Bank. The
Seller agrees that, without undue delay after the above-specified
preconditions for effects of this obligation are fulfilled, he will take
all steps that can be reasonably required from him to ensure that the
mortgage right is deleted from the Land Registry at the latest by the date
specified in Art. V (1) hereof or as soon as possible
thereafter.
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3.
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The
Seller’s obligation to maintain the Real Estate in a condition enabling
the Buyer to use the Real Estate in accordance with the provisions of the
Lease Contract is in no way prejudiced by this
Agreement.
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initials
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VI.
Buyer’s
Representations and Warranties
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1.
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The
Buyer represents and warrants to the Seller
that:
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a)
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it
is a limited liability company duly established and existing under the
laws of the Czech Republic and has the capacity to conclude this Agreement
and perform all the rights and obligations following for the Buyer from
this Agreement, for which it also has all the necessary authorizations and
powers, which condition also applies to the person who will execute and
conclude this Agreement on behalf of or for the Buyer; this Agreement
gives rise to a legally binding and valid obligation of the Buyer that can
be enforced against it in accordance with its terms and deadlines; the
details on the Buyer set out in the up-to-date extract from the Commercial
Register, which is attached to this Agreement as its Schedule No. 6,
correspond to the facts;
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b)
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c)
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all
consents of the General Meeting, any other body of the Buyer and/or VU1
Corporation, administrative bodies or other public authorities and/or the
courts that are necessary for conclusion hereof, as well as for
acquisition of the Real Estate by the Buyer and payment of the Purchase
Price hereunder, have been granted;
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d)
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conclusion
of this Agreement and performance of the obligations arising out of this
Agreement by the Buyer will not violate any legal regulation, contractual
or statutory obligation or any court, administrative or other decision of
public authorities concerning the
Buyer;
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e)
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the
Buyer performs its obligations duly and in time,
and
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(i)
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is
not insolvent or in danger of
insolvency;
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(ii)
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has
not lodged an insolvency petition and/or proposal for a moratorium related
to it and has not been informed that such a proposal would be lodged by
any third party;
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(iii)
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is
not negotiating with its creditors on conclusion of any agreement, on the
basis of which the creditors would obtain and/or would be paid smaller
amounts than those equal to the nominal value of their
receivables;
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(iv)
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has
no insolvency trustee, execution administrator, receiver or other
administrator, liquidator, curator or guardian appointed by the court or
some other public authority or appointed otherwise, who would limit the
disposal of its assets; and
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(v)
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has
no unperformed obligations imposed thereon by a court or other decision,
order or arbitral award and no enforcement of a decision or execution is
pending with respect to it or its
assets;
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where
this representation is valid to the full extent also for VU1
Corporation;
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f)
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the
Buyer is fully capable of performing its obligations arising for the Buyer
from this Agreement in a due and timely manner; furthermore, the Buyer
represents that, at the latest within the deadlines stipulated in this
Agreement or, as the case may be, in the Escrow Agreement, it will have
available sufficient funds to pay the parts of the Purchase price
stipulated by this Agreement or, as the case may be, the Escrow
Agreement;
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g)
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the
guarantor’s declaration made by the Buyer’s parent company, i.e. VU1
Corporation, as set out in Art. VI (2) hereof, is valid, binding and fully
enforceable by the Seller in accordance with its terms and
deadlines;
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h)
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prior
to conclusion hereof and also as of the date of effects hereof, the Buyer
was able to become thoroughly acquainted with the Real Estate and its
condition, without any limitation, and used this opportunity to
the full extent, particularly by performing legal, environmental and
construction-technical audit (due diligence) of the Real Estate (which it
completed on March 18, 2008), including control of its actual state and
visual control aimed at assessing the statics and dynamics of the Real
Estate (performed on August 21, 2008), and, on the basis of this
inspection, studies and assessment, it has found no defects in the Real
Estate, other than those that the Buyer communicated to the Seller prior
to conclusion hereof; simultaneously, the Buyer represents that it finds
the condition of the Real Estate to be suitable and compatible with the
subject and objective hereof, and that it has not required, either in
writing or orally, any specific properties of the Real Estate, other than
those that are expressly specified in this Agreement, and that it has not
been assured by the Seller in any way whatsoever of any specific
properties of the Real Estate, other than those that are expressly
stipulated in this Agreement; furthermore, the Buyer represents that it is
sufficiently acquainted with the legal and factual condition of the
building without a Reg. No., technical infrastructure, located on property
lot No. 1417 in the cadastral area of Hodolany, the municipality of
Olomouc (the “water plant”).
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2.
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The
Buyer agrees to submit to the Seller, on the date of conclusion hereof, a
valid and binding guarantor’s declaration issued by its parent company,
VU1 Corporation, for the amount of CZK 13,500,000.00 (in words: thirteen
million five hundred thousand Czech crowns), in order to secure the
Buyer’s obligations following from Art. III (2) (i) and (ii) hereof. The
amount set forth in this paragraph shall gradually be automatically
reduced by the individual advance payments on the Purchase Price paid by
the Buyer pursuant to Art. III (2) (i) and (ii)
hereof.
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3.
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The
Buyer makes the representations and warranties set out in this Art. VI
hereof as of the date of this Agreement and is aware that the Seller
relies on these representations and warranties in conclusion hereof and
would never conclude this Agreement without
them.
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4.
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The
Buyer agrees to reassure the Seller of the continuing validity, accuracy
and completeness of the representations and warranties set out in this
Art. VI. hereof repeatedly, including prior to the actual transfer of the
Real Estate in accordance with Art. VIII. (1) (i) hereof. If the Buyer is
unable to provide this reassurance, because it is aware of any facts or
matters that could cause such reassurance to be false, inaccurate,
incomplete or misleading, it shall explicitly state these facts in the
reassurance as exemptions.
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5.
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The
Buyer represents that, as of the date hereof, it is not aware of any
breach of the representations and warranties of the Seller set out in Art.
IV. hereof.
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VII.
Conditions
Precedent
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1.
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The
effects of Art. I (2) hereof are subject to fulfillment of the following
conditions precedent:
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(i)
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the
Parties have concluded the Escrow Agreement with the Escrow Agent (this shall
in no way prejudice Art. XIV (8)
hereof);
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(ii)
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the
individual installments on the Purchase Price pursuant to Art. III (2)
hereof (i.e. the total amount of CZK 175,000,000.00; in words: one hundred
and seventy-five million Czech crowns) have been deposited in the Escrow
Account, which fact shall be proven by a declaration of the Escrow Agent in
accordance with the Escrow
Agreement.
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2.
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If
the conditions precedent set out in Art. VII (1) hereof are not fulfilled
by January 31, 2010 or on a later date agreed in writing by the Parties,
this Agreement shall expire and the Purchase Price in the amount deposited
in the Escrow Account, including accrued interest, shall be returned to
the Buyer in accordance with the Escrow Agreement. All the rights and
obligations of the Parties under this Agreement shall expire upon expiry
of this Agreement, except for the rights and obligations of the Parties
incurred as a consequence of breach of the obligations
hereunder.
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VIII.
Transfer
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1.
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Without
undue delay after the Escrow Agent makes a
declaration pursuant to Art. VII (1) (ii) hereof to the effect that the
entire amount of the Purchase Price has been deposited in the Escrow
Account, the Parties shall perform the following acts in the following
order:
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(i)
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the
Parties shall submit to each other an up-to-date written confirmation on
the validity, accuracy and completeness of the representations and
warranties pursuant to Art. IV (3) and Art. VI (4) hereof; and
subsequently
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(ii)
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the
Seller and the Buyer shall draw up a joint declaration and confirmation
for the purposes of lodging an application for registration of the
ownership title to the Real Estate in the Land Registry pursuant to
paragraph (iii) hereof to the effect that all the preconditions for
effectiveness of the purchase and sale of the Real Estate (transfer)
pursuant to this Agreement have been fulfilled; the form of this
declaration is attached to this Agreement as its Schedule No. 4;
and subsequently
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(iii)
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the
Buyer or a representative authorized by the Buyer shall lodge an
application for registration of the ownership title to the Real Estate in
the Land Registry, with all the requisites and annexes, with the competent
cadastral authority; and
subsequently
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(iv)
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the
Seller shall deliver, and the Buyer shall accept from the Seller, the Real
Estate in accordance with Art. X.
hereof.
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In order
to avoid any doubts, the Parties state that, if any of these acts is not
performed, the transfer cannot proceed and cannot be completed. Furthermore, the
Parties agree to take all steps and, at the same time, provide each other with
all collaboration that can be reasonably required from them to ensure that all
these acts are performed at the latest by July 1, 2009.
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2.
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The
special provisions set out in Art. XI. hereof shall apply for the purposes
of registration of the ownership title to the Real Estate in the Land
Registry pursuant to Art. VIII (1) (iii)
hereof.
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3.
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The Buyer shall acquire the
ownership title to the Real Estate upon registration of the title in the
Land Registry, with legal effects as of the date of delivery of the
application for registration to the cadastral authority, in accordance
with Section 133 (2) of the Civil Code and Section 2 (3) of Act No.
265/1992 Coll., on registration of ownership titles and other rights in
rem to real estate, as
amended.
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IX.
Settlement
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1.
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Without
undue delay after registration of the ownership title of the Buyer to the
Real Estate is permitted through a final decision issued on the basis of
an application for registration lodged in accordance with Art. VIII (1)
(iii), the following acts shall be performed, in the following
order:
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(i)
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pursuant
to the relevant provisions of the Escrow Agreement, the Escrow Agent shall
pay to the Seller, from the Escrow Account, the amount of CZK
153,130,000.00 (in words: one hundred and fifty-three million one hundred
and thirty thousand Czech crowns) into the Seller’s account specified in
the header hereof and shall submit a written confirmation of this fact to
each of the Parties; and
subsequently
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(ii)
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the
Seller shall pay, to the substantively and locally competent tax
authority, real estate transfer tax on the grounds of transfer of the Real
Estate hereunder and submit the relevant document to this effect to the
Escrow Agent;
and subsequently
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(iii)
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pursuant
to the relevant provisions of the Escrow Agreement, the Escrow Agent shall
pay to the Seller, from the Escrow Account, the amount of CZK 5,370,000.00
(in words: five million three hundred and seventy thousand Czech crowns)
into the Seller’s account specified in the header hereof; and
subsequently
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pursuant
to the relevant provisions of the Escrow Agreement, the
Escrow Agent shall
pay, from the Escrow Account, the accrued interest into the Buyer’s account;
this shall in no way prejudice Art. XV (3) hereof. Any other funds in the Escrow
Account, if any, shall be paid by the Escrow Agent in accordance with
the applicable provisions of the Escrow Agreement to the Buyer. In order to
avoid any doubts, the Parties state that, if any of these acts is not performed,
the settlement cannot proceed and cannot be completed.
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2.
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Further
details on the required formalities and procedural aspects of the
settlement are stipulated in the Escrow Agreement (or are
stipulated in accordance with Art. XIV (8) hereof, as
appropriate).
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X.
Delivery
and Acceptance of the Real Estate
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1.
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The
Parties represent and confirm that the Buyer already uses or will use a
major part of the Real Estate for its needs on the basis of the Lease
Contract and that this part of the Real Estate has been or will be duly
delivered by the Seller to the Buyer in accordance with the Lease
Contract. The subject of delivery and acceptance pursuant to this
Agreement shall consist solely in the remaining part of the Real Estate
that has not been delivered to the Buyer on some other grounds,
particularly on the grounds of the Lease Contract (hereinafter the “Remaining Part of the Real
Estate”).
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2.
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The
Seller shall be obliged to deliver the Remaining Part of the Real Estate
to the Buyer and the Buyer shall be obliged to accept the Remaining Part
of the Real Estate from the Seller in accordance with Art. VIII (1) (iv)
hereof, unless the Parties agree
otherwise.
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3.
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The
Buyer and the Seller shall execute a protocol on delivery and acceptance
of the Remaining Part of the Real Estate. The time of completion of the
process of delivery of the Remaining Part of the Real Estate, execution of
the protocol on delivery and acceptance of the Remaining Part of the Real
Estate by both Parties and the time when the Seller hands over all the
keys/chip cards and documents (e.g. lease contracts, supplier contracts,
plans, etc.) related to the Real Estate (including the Remaining Part of
the Real Estate) shall be deemed to be the time of full and due delivery
and acceptance of the Real Estate (as a whole) by the Seller to the Buyer
hereunder, including those parts of the Real Estate that were delivered to
the Buyer earlier on some other grounds, particularly on the basis of the
Lease Contract. Both Parties shall also confirm this full and due delivery
and acceptance of the Real Estate (as a whole) in the protocol mentioned
in the first sentence of this
provision.
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XI.
Special
Provisions on Application for Registration
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1.
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The
Buyer or a representative authorized by the Buyer agrees to lodge an
application for registration of the ownership title to the Real Estate
together with all the requisites and annexes with the competent cadastral
authority in accordance with Art. VIII (1) (iii) hereof. The Buyer agrees
to submit a copy of the application for registration of the ownership
title to the Real Estate in the Land Registry with the stamp of the filing
department of the cadastral authority, date and file number to the Seller
promptly after lodging of the application for registration of the Buyer’s
ownership title to the Real Estate.
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2.
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If
the competent cadastral authority requests that the Parties remedy any
shortcomings or errors in the application for registration of the
ownership title to the Real Estate, the Parties agree to deal with this
request and supplement or explain any facts or submit any additional
documents without undue delay, but in any case not later than within ten
(10) business days of the date of delivery of the request to any of the
Parties.
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3.
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If
the competent cadastral authority discontinues the proceedings on
permitting registration or rejects the application for registration of the
Buyer's ownership title to the Real Estate, the Buyer agrees to lodge a
new application for registration of the Buyer's ownership title to the
Real Estate. The Parties agree to adopt any and all suitable measures to
ensure due registration of the Buyer's ownership title to the Real Estate
in the Land Registry as soon as possible. The Parties shall take any and
all appropriate measures without undue delay after the competent cadastral
authority discontinues the proceedings on permitting registration or
rejects the application for registration of the Buyer's ownership title to
the Real Estate, but not later than within ten (10) business days of the
date of issuing of the decision by the competent cadastral authority
notified to either of the Parties.
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XII.
Breach
of the Seller’s Obligations
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1.
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If
any of the representations or warranties made by the Seller in Art. IV (1)
(a) to (c) and (e) to (k) hereof proves to be untrue or in case of their
breach and/or in case of breach of the Seller’s obligation set forth in
Art. V. and Art. XIV (4) hereof (except for breaches pursuant to Art.
XII (2) hereof), the Buyer shall be entitled
to:
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(i)
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withdraw
from this Agreement, with effect as of the date of delivery of the Buyer’s
notice of withdrawal from this Agreement to the Seller;
and/or
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(ii)
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claim
a contractual fine in the amount of CZK 17,500,000.00 (in words: seventeen
million five hundred thousand Czech crowns); and/or
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| (iii) | claim indemnification exceeding the amount of the contractual fine pursuant to subparagraph (ii) above, whose amount may not exceed CZK 26,000,000.00 (in words: twenty-six million Czech crowns), reduced by the paid contractual fine pursuant subparagraph (ii) above; |
provided
that the Buyer notified the Seller of the breach of the Agreement without undue
delay after the Buyer learned of the breach and unless the breach of the
Agreement is remedied by the Seller within 30 (thirty) consecutive calendar days
after the Seller receives a written request of the Buyer to this effect,
containing a definite and specific identification of the breached contractual
obligation. If the Buyer withdraws from this Agreement pursuant to subparagraph
(i) of this paragraph, the Seller shall be obliged to reimburse the Buyer for
all advance payments paid on the Purchase Price pursuant to Art. III (1)
hereof.
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2.
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If
the Seller’s representations or warranties made in Art. IV (1) (d)
concerning the factual defects of the Real Estate are untrue, the Buyer
shall be entitled to:
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(i)
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claim
an appropriate discount on the Purchase Price in an amount corresponding
to the nature and scope of the defect, which may not exceed in aggregate
the amount of CZK 25,000,000.00 (in words: twenty-five million Czech
crowns); and/or
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(ii)
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claim
indemnification (including reimbursement of the necessary expenses)
exceeding the claim for a discount pursuant to subparagraph (i) above,
which may not exceed in aggregate the amount of CZK 40,000,000.00 (in
words: forty million Czech crowns), less the actually paid discount
pursuant to subparagraph (i) hereof;
or
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(iii)
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withdraw
from this Agreement provided that the aggregate amount of the claim for a
discount pursuant to subparagraph (i) above has already exceeded the
amount of CZK 40,000,000.00 (in words: forty million Czech crowns), with
effect as of the date of delivery of the Buyer's notice of withdrawal from
this Agreement to the Seller;
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provided
that the Buyer has claimed the defect vis-à-vis the Seller without undue delay
after the Buyer learned of the defect and unless the defect is removed and/or
otherwise remedied by the Seller within 30 (thirty) consecutive calendar days
after the Seller receives a written request of the Buyer to this effect,
containing a definite and specific identification of the defect. In the event
that the Buyer withdraws from this Agreement pursuant to subparagraph (iii)
above by the date of lodging the application for registration of the Buyer's
right to the Real Estate pursuant to Art. VIII (1) (iii) hereof, the Seller
shall be obliged to reimburse the Buyer for all advance payments paid on the
Purchase Price pursuant to Art. III hereof.
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3.
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If
the Seller breaches the prohibition to sell, donate or exchange the Real
Estate or part thereof, to encumber the Real Estate in any manner
whatsoever, i.e. create mortgage rights, pre-emption rights, etc., as he
agreed in the third sentence of Art. XIV (4) hereof, the Buyer shall be
entitled to:
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(i)
|
withdraw
from this Agreement, with effect as of the date of delivery of the Buyer’s
notice of withdrawal from this Agreement to the Seller;
and/or
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(ii)
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claim
a contractual fine in the amount of CZK 179,000,000.00 (in words: one
hundred and seventy-nine million Czech crowns);
and/or
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(iii)
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claim
indemnification exceeding the amount of the contractual fine pursuant to
subparagraph (ii) above for damage caused by breach of this obligation,
whose amount may not exceed CZK 209,000,000.00 (in words: two hundred and
nine million Czech crowns), reduced by the paid contractual fine pursuant
subparagraph (ii) above.
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4.
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If
the Seller fails to provide the Buyer with collaboration that can be
reasonably requested pursuant to Art. XI (2) and (3) hereof, the Buyer
shall be entitled to claim a contractual fine against the Seller in the
amount of CZK 20,000.00 (in words: twenty thousand Czech crowns) for each
day of delay following the date when the Seller received the Buyer’s
request for the provision of this
collaboration.
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5.
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The
Parties have agreed that the contractual fines shall be payable at the
latest within 10 (ten) calendar days of delivery of the Buyer’s request
for payment of the contractual fine to the Seller. If the Seller
demonstrably refuses to accept the request for payment of a contractual
fine, it shall hold that the Buyer’s request for payment of the
contractual fine was delivered to the Seller on the date of the
refusal.
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6.
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The
Buyer’s claims against the Seller pursuant to this Art. XII. hereof shall
not arise if the Buyer ascertained the facts giving rise to these claims
within and/or on the basis of the performed legal, environmental and
construction-technical audit (due diligence) of the Real Estate and other
assessments, as the Buyer made a representation and warranty to this
effect in Art. VI (1) (h) hereof. However, the Buyer’s claims against the
Seller pursuant to this Art. XII hereof that would be based on factual
defects of the Real Estate shall arise only if the factual defects have
their origin in the period when the Seller was the owner of the Real
Estate (i.e. 5 years – since May
2003).
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7.
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The
Buyer’s claims against the Seller pursuant to this Art. XII. hereof shall
also not arise if the total amount of discount, damage or other harm
incurred by the Buyer as a consequence of untruthfulness of the
representations or warranties, or breach of the relevant obligation
hereunder by the Seller, which has not been remedied in the manner
stipulated in paragraph 1 above and which the Buyer would otherwise
justifiably enforce against the Seller, does not exceed in aggregate CZK
5,000,000.00 (in words: five million Czech crowns). The Buyer's claims
against the Seller arising as a consequence of untruthfulness of the
representations or warranties, or breach of the relevant obligation
hereunder by the Seller shall be limited only to the claims stipulated in
this Art. XII. hereof.
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8.
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The
Buyer shall be entitled to enforce the claims pursuant to this Art. XII
(2) hereof, i.e. claims concerning factual defects of the Real Estate,
against the Seller only if the costs justifiably incurred by the Buyer for
removal of an individual claimed defect exceed the amount of CZK
100,000.00 (in words: one hundred thousand Czech crowns) excluding
VAT.
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9.
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The
Buyer’s right to withdraw from this Agreement pursuant to this Art. XII.
hereof must be exercised at the latest within 9 (nine) months of the date
of lodging the application for registration of the Buyer’s ownership title
to the Real Estate pursuant to Art. VIII (1) (iii) hereof. After this
date, the Buyer shall no longer be entitled to withdraw from this
Agreement.
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10.
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The
Buyer’s right to request any contractual fine from the Seller and the
Buyer’s right to request a discount or indemnification from the Seller for
breach of the Seller’s obligations stipulated by this Agreement and/or
related to it shall expire upon lapse of 9 (nine) months of the date of
lodging the application for registration of the Buyer’s ownership title to
the Real Estate pursuant to Art. VIII (1) (iii) hereof. All claims of the
Buyer following from the right to a contractual fine and/or the right to a
discount or indemnification must be enforced against the Seller in
writing, together with a definite and specific identification of the
breached legal obligation, without undue delay after the Buyer learns of
the facts that give rise to these claims or rights; otherwise, they shall
expire.
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XIII.
Breach
of the Buyer’s Obligations
|
1.
|
If
the Buyer is in delay with any advance payment on the Purchase Price
pursuant to Art. III. hereof for a period exceeding 5 (five) business
days, the Seller, having requested the Buyer in writing that he pay the
relevant advance payment on the Purchase Price at the latest within three
(3) business days, which request has not been satisfied, shall be entitled
to:
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|
|
(i)
|
withdraw
from this Agreement, with effect as of the date of delivery of the
Seller’s notice of withdrawal from this Agreement to the Buyer;
and/or
|
|
(ii)
|
claim
a contractual fine in the amount of CZK 17,500,000.00 (in words: seventeen
million five hundred thousand Czech crowns);
and/or
|
|
| (iii) | claim indemnification exceeding the amount of the contractual fine pursuant to subparagraph (ii) above, whose amount may not exceed CZK 26,000,000.00 (in words: twenty-six million Czech crowns), reduced by the paid contractual fine pursuant subparagraph (ii) above and pursuant to Art. XIV (5) hereof. |
Any
potential claim of the Buyer for reimbursement of the advance payments (or
individual installments) on the Purchase Price pursuant to Art. III (1) and Art.
III (2) (i) and (ii) hereof (that would be incurred by the Buyer on the grounds
of the entitlement to settlement in case of withdrawal by the Seller from this
Agreement pursuant to subparagraph (i) of this paragraph) shall be set-off
against the contractual fine set out in subparagraph (ii) of this
paragraph 1 hereof. If the advance payments (or individual installments) on the
Purchase Price referred to in the preceding sentence are deposited in the Escrow
Account as of the date of the withdrawal, each of the Parties agrees (for the
purpose of effecting the relevant set-off) to give, without undue delay, a
written instruction to the Escrow Agent pursuant to Art. IV (1) of the Escrow
Agreement to release these funds, without delay, to the credit of the Seller’s
account.
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2.
|
If
the Buyer fails to provide the Seller with collaboration that can be
reasonably requested pursuant to Art. XI (2) and (3) hereof, the Seller
shall be entitled to claim a contractual fine against the Buyer in the
amount of CZK 20,000.00 (in words: twenty thousand Czech crowns) for each
day of delay following the date when the Buyer received the Seller’s
request for the provision of this
collaboration.
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3.
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The
Parties have agreed that the contractual fines shall be payable at the
latest within 10 (ten) calendar days of delivery of the Seller’s request
for payment of the contractual fine to the Buyer. If the Buyer
demonstrably refuses to accept the request for payment of a contractual
fine, it shall hold that the Seller’s request for payment of the
contractual fine was delivered to the Buyer on the date of the
refusal.
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4.
|
The
Seller’s claims for indemnification against the Buyer hereunder shall also
not arise if the total amount of damage or other harm incurred by the
Seller as a consequence of breach of the relevant obligation hereunder by
the Buyer, which the Seller would otherwise justifiably enforce against
the Buyer, does not exceed in aggregate CZK 5,000,000.00 (in
words: five million Czech
crowns).
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5.
|
The
Seller’s right to request any contractual fine from the Buyer and the
Seller’s right to request indemnification from the Buyer for breach of the
Buyer’s obligations stipulated by this Agreement and/or related to it
shall expire upon lapse of 9 (nine) months of the date of lodging the
application for registration of the Buyer’s ownership title to the Real
Estate pursuant to Art. VIII (1) (iii) hereof. All claims of the Seller
following from the right to a contractual fine and/or the right to
indemnification must be enforced against the Buyer in writing, together
with a definite and specific identification of the breached legal
obligation, without undue delay after the Seller learns of the facts that
give rise to these claims or rights; otherwise, they shall
expire.
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XIV.
Miscellaneous
|
1.
|
The
Parties agree that any and all contractual fines and damages based on this
Agreement may be mutually set-off, unless the Parties agree otherwise.
Except for the above-mentioned permissible set-off, the Parties shall not
be entitled to unilaterally set-off any receivable, or any monetary or
non-monetary claim, against receivables, or any monetary or non-monetary
claims, of the other Party arisen out of this Agreement (particularly the
claim for payment of the Purchase Price) and/or from the Escrow Agreement,
without prior written consent of the other Party, unless this Agreement
and/or the Escrow Agreement expressly permits
this.
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2.
|
The
Parties have agreed that, as of the date of effect of registration of the
Buyer’s ownership title to the Real Estate in the Land Registry pursuant
to Art. VIII (1) (iii) hereof, the Lease Contract shall be terminated
unless it has been terminated or otherwise expired previously. The claims
of the Parties arisen on the basis of the Lease Contract, namely the
claims for payment of the contractual fines, indemnification and default
interest, as well as their obligation to maintain confidentiality, shall
not expire as a consequence of such termination of the Lease Contract in
accordance with its Art. XVI (4) and shall not be otherwise
prejudiced.
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3.
|
Furthermore,
the Parties have agreed that, in the period from July 1, 2009, inclusive
(the latest day of termination of validity and effectiveness of the Lease
Contract) to the date of effect of registration of the Buyer’s ownership
title to the Real Estate in the Land Registry, the use of the Real Estate
shall be governed by this Agreement. A precondition for such use pursuant
to the previous sentence shall be
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|
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(i)
|
due
deposition of an amount of CZK 175,000,000.00 (in words: one hundred and
seventy five million Czech crowns) in the Escrow Account (Art. VII. (1)
(ii) of this Agreement) and simultaneously
also
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(ii)
|
due
lodging of an application for registration of the Buyer’s ownership title
to the Real Estate in the Land Registry, with all the requisites, which
the Buyer shall demonstrate by submitting the relevant copy of the
application to the Seller (Art. XI (1)
hereof).
|
In this
period, the Buyer shall be entitled to use the Real Estate to the same extent as
the owner; however, it shall be obliged to secure the rights and justified
interests of the Seller and to refrain from any steps that would infringe on
and/or prejudice them, to the maximum possible extent that can be reasonably
required. The Buyer’s entitlement to use the Real Estate pursuant to the
previous sentence shall expire upon lapse of 30 (thirty) days from the date of
legal force of the relevant decision on dismissal of the above-mentioned
application for registration of the Buyer’s ownership title to the Real Estate
in the Land Registry or other decision on termination of the proceedings on the
application, if it is clear from the circumstances and related legal facts that
the registration of the Buyer’s ownership title to the Real Estate in the Land
Registry can no longer be successfully claimed for reasons on the Buyer’s
part.
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4.
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The
Seller shall not be entitled to carry out any construction, i.e.
construction of new buildings or extensions to the existing buildings,
within the Real Estate. Furthermore, the Seller agrees not to carry out
any construction modifications that would interfere with the current
condition of the Real Estate. Furthermore, without the Buyer’s prior
written consent, the Seller shall not be entitled to establish any new
easements; to lease further premises, areas, properties and buildings
within the Real Estate to third parties; to extend the term (duration) of
a lease or modify the lease agreements in any manner whatsoever; to sell,
donate or exchange the Real Estate or any part thereof; to encumber the
Real Estate in any manner whatsoever, i.e. establish mortgage rights,
pre-emption rights, etc.
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5.
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If
the Seller withdraws from this Agreement pursuant to Art. XIII (1) hereof,
the Parties explicitly agree that, furthermore, the Seller shall be
entitled to retain the advance payment (or individual installment) paid by
the Buyer on the Purchase Price pursuant to Art. III (2) (iii) hereof as a
contractual penalty; this shall in no way prejudice Art. XIII (1) hereof.
In order to avoid any potential doubts, the Parties also explicitly agree
that, in such a case, the Seller shall be entitled to retain, in
accordance with the Lease Agreement, all improvements and additions to the
Real Estate (as described in Art. VII (8) of the Lease Agreement) that
were performed by the Buyer; the grounds (legal title) for this claim
consist in indemnification (compensation) for damage that would be
incurred by the Seller if he were forced to settle such improvements or
other additions to the Real Estate (as described in Art. VII (8) of the
Lease Agreement) vis-à-vis the Buyer, even if this occurred as a
consequence of breach of the Buyer’s contractual obligations (the Buyer’s
claim for settlement shall thus be set-off against the Seller’s claim for
indemnification).
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6.
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The
Parties agree on the following addresses, which shall serve as mailing
addresses for the purposes of any and all communications and notices
delivered in relation to this
Agreement:
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Address
for delivery to the Seller:
Xxxxx
Xxxxxxxx
Náklo
334, Postal Code: 783 32
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17
Address
for delivery to the Buyer:
SENDIO
s.r.o.
Olomouc,
Holická 156/49, Postal Code 77900
Contact person:
Svatava Xxxxxxxxx, Xxxxxx Xxxx Styles
Tel:
000 000 000
Copy:
VU1
Corporation
000 Xxx
Xxxxxx, Xxxxx 000, Xxxxxxx
XX 981
09, U.S.A.
Any and
all notices and communications hereunder must be made in writing and sent to the
above-specified address of the addressee, i.e. the other Party, exclusively by
registered mail or through a renowned courier service (e.g. DHL or UPS, etc.),
unless the Parties agree otherwise. Personal delivery by any Party or its
representative, confirmed by the signature of the other Party or its
representative, shall also be considered to be due delivery. The Parties agree
to inform each other in writing of any changes in their mailing
addresses.
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7.
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Any
(i) right following from this Agreement, (ii) claim following from breach
hereof, (iii) condition precedent or other condition stipulated herein for
the benefit of one of the Parties, (iv) deadline for fulfillment of an
obligation hereunder by other Party and/or (v) other right or claim
relating to this Agreement may only be waived by a written declaration to
the Party that is to benefit from such waiver. The waiver shall become
effective upon delivery. A waiver shall apply exclusively to the rights,
obligations or deadlines expressly specified in the declaration by virtue
of which the waiver is effected. The waiver shall in no way prejudice
other rights, obligations or deadlines. Non-exercise, failure to exercise
or delay in exercising any right or claim hereunder shall not represent
waiver of such right or claim. Granting any grace period for the
performance of any other Party's obligation shall not represent extension
of the deadline for fulfillment
thereof.
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8.
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The
Parties hereby agree on the possibility of changing the manner of payment
of the individual installments on the Purchase Price as specified in Art.
III (2) (iv) and (v) hereof, as regards identification of the account into
which the relevant amount is to be paid. At the latest by June 15, 2009,
the Parties may jointly determine, in the manner set out in Art. XV (7)
hereof, that the Buyer shall not pay these individual installments on the
Purchase Price into the Escrow Account kept by the Escrow Agent pursuant
to the Escrow Agreement, but rather into some other account kept by some
other third party. Such a change shall be valid and effective subject to
an agreement concluded between the Parties and the relevant third party
stipulating the obligation of the third party to accept the relevant
amounts of the individual installments on the Purchase Price into escrow
and to release them to the Seller and/or the Buyer under the same or
similar terms and conditions as the Escrow Agent pursuant to the Escrow
Agreement or pursuant to this Agreement, as appropriate. If such a change
is valid and effective, it shall hold that the competence of the Escrow
Agent agreed herein or in the Escrow Agreement, as appropriate (but only
to the extent concerning acceptance of the relevant amounts of the
individual installments on the Purchase Price into escrow and their
subsequent release and to the extent of the acts of the Escrow Agent
pursuant Art. VII and VIII hereof) shall be performed by the relevant
third party (unless the agreement with the relevant third party stipulates
otherwise); in that case, simultaneously, the account kept by the relevant
third party for the purpose of payment of the relevant amounts of the
individual installments on the Purchase Price into escrow and their
subsequent release shall be considered to be the Escrow Account. If such a
change is valid and effective, other provisions hereof shall be construed
in accordance with this provision and also in accordance with the purpose
of the change. Furthermore, the Parties have agreed that the relevant
third party pursuant to this provision may consist only in a reliable
financial institution with respect to which there are objective guarantees
of due performance of payment obligations and other obligations decisive
for fulfillment of the purpose of this provision; if the Parties fail to
agree on the change within the above-specified deadline, but the Seller
insists on the change, the Seller shall be entitled to select the relevant
third party from the list that is attached to this Agreement as its Schedule No. 9,
and the Buyer agrees to respect this selection and, to the extent that can
be reasonably requested of the Buyer, allow the relevant change pursuant
to this provision.
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initials
18
XV.
Joint
and Concluding Provisions
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1.
|
This
Agreement shall come into force upon its execution by both Parties and
shall also enter into effect upon its execution by the Parties, except for
purchase and sale of the Real Estate, which shall enter into effect after
fulfillment of the preconditions stipulated in Art. VII (1) hereof. In
accordance with Section 133 (2) of the Civil Code and Section 2 (3) of Act
No. 265/1992 Coll., on registration of ownership titles and other rights
in rem to real estate, as amended, the Buyer shall acquire the ownership
title to the Real Estate upon registration of the title in the Land
Registry, with legal effects as of the date of delivery of the application
for registration to the cadastral
authority.
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2.
|
The
real estate transfer tax for the transfer of the ownership title to the
Real Estate in accordance with the provisions hereof shall be paid by the
Seller. The administrative fees related to registration of the rights in
the Land Registry shall be paid by the
Buyer.
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3.
|
Any
and all costs and expenses incurred by any of the Parties in connection
with this Agreement, including, but not limited to (i) the costs of the
analysis (due diligence) and other expert assessments, (ii) the costs and
fees of financial, accounting, legal and other counsels, (iii) the costs
relating to negotiations prior to execution hereof, (iv) the costs
incurred in relation to execution of rights or fulfillment of obligations
hereunder and (v) any other costs and/or expenses, shall be borne by the
Party that incurred them, unless expressly stipulated otherwise in this
Agreement. The Escrow Agent’s remuneration for establishing and keeping
the Escrow Account pursuant to the Escrow Agreement shall be paid by each
of the Parties in a 1:1 ratio; if the remuneration is paid to the Escrow
Agent in the full amount only by one of the Parties pursuant to the Escrow
Agreement, the other Party agrees to reimburse the Party paying the
remuneration, without undue delay, for the relevant part of the
remuneration according to the mentioned ratio. The provisions of the
preceding sentence shall apply analogously also in the case pursuant to
Art. XIV (8) hereof. Furthermore, the Parties agree that the Buyer shall
pay the Seller 50 % of the accrued interest, into an account communicated
to the Buyer by the Seller to this end, without delay after the accrued
interest that was credited monthly by the Escrow Agent to the escrow
amount (as defined in Art. II (1) of the Escrow Agreement) is credited to
the Buyer’s bank account pursuant to Art. II (5) of the Escrow Agreement,
but no later than within five (5) business days from the date of crediting
the relevant Buyer’s account with the accrued
interest.
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4.
|
Neither
of the Parties shall be entitled to assign its rights and obligations
following from this Agreement to any third party without the prior written
consent of the other Party, unless such assignment is expressly permitted
by this Agreement. This Agreement is and shall be binding also for the
heirs and/or legal successors of the Parties, where each of the Parties
agrees to perform any and all acts necessary to this end. In case of
passage of the rights and obligations following from this Agreement on the
basis of an act of any Party (including, but not limited to, a merger,
transfer or contribution of a business or part thereof, transfer of assets
or any other dispositions with assets), the Party, whose rights have thus
been transferred, shall guarantee fulfillment of the devolved obligations.
No provision hereof shall establish any rights of obligations of third
parties that are not the Parties, unless expressly stipulated otherwise in
this Agreement.
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initials
19
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5.
|
This
Agreement shall be governed by and interpreted in accordance with the laws
of the Czech Republic, to the exclusion of conflict rules referring to the
use of foreign laws. In order to avoid any doubts, the Parties state that
this Agreement shall be governed by the Civil Code and, with respect to
registration of the ownership title to the Real Estate, also by Act No.
265/1992 Coll., on registration of ownership titles and other rights in
rem to real estate, as amended. This provision shall not apply to the
guarantor’s declaration made by the Buyer’s parent company, as set out in
Art. VI (2) hereof.
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6.
|
The
Seller hereby explicitly agrees that, as of the date of lodging the
application for registration of the ownership title to the Real Estate in
the Land Registry hereunder, the Buyer may, at his own expense, either
himself or through a third party, commence construction, revitalization,
reconstruction etc. of the Real Estate in accordance with the valid and
final decisions of the administrative authorities and perform all the
necessary and required acts in this relation. This consent shall apply
only to those cases where the rights and justified interests of the Seller
as the owner of the Real Estate are not and will not be endangered or
infringed. Furthermore, the Seller agrees to provide the Buyer with all
collaboration that can be reasonably
required.
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7.
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This
Agreement may be modified only in writing, by means of consecutively
numbered amendments executed by both
Parties.
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8.
|
This
Agreement contains the entire agreement of the Parties with respect to the
purchase/sale of the Real Estate and no other contract, agreement,
declaration or covenant made by any of the Parties that is not contained
herein shall be binding on the Parties in relation to the subject of this
Agreement. This Agreement cancels and replaces all previous contracts,
agreements, declarations or covenants related to the purchase/sale of the
Real Estate made by any of the Parties prior to the conclusion hereof.
This shall not apply to the agreement on the manner and conditions of
payment of the Purchase Price and settlement thereof through the Escrow
Agent, as stipulated herein and in the Escrow Agreement. Article headings
are included for convenience of reference only and shall in no respect
whatsoever serve for interpretation of the terms and provisions
hereof.
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9.
|
The
Parties shall be obliged to maintain confidentiality of the terms and
conditions hereof and of information which they obtained during its
negotiation, unless disclosure thereof is required by a law or some other
generally binding regulation. The obligation to maintain confidentiality
pursuant to this provision shall not apply to information
disclosed:
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(i)
|
to
legal and other counsels of the Parties bound by similar obligations to
maintain confidentiality; and/or
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initials
20
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(ii)
|
if
the information has already been disclosed by the relevant Party or has
become publicly known without breach of obligations by any Party,
and/or
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(iii)
|
to
entities that are entities related to the Party hereof within the meaning
of Section 66a of the Commercial Code (hereinafter “related entities”)
provided that such disclosure is necessary for the purposes of performance
of the obligations of the relevant Party and/or the exercise of its rights
following from this Agreement;
and/or
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(iv)
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to
banks or other financial institutions financing the Seller and/or the
Buyer, stock exchanges where shares of the related entities are listed
and/or traded, and to governmental agencies (including, but not limited
to, the U.S. Securities and Exchange
Commission);
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(v)
|
to
the shareholders of VU1 Corporation and information that publicly listed
companies are obliged to publish in accordance with the laws of the State
of Washington.
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After
conclusion hereof, the Seller shall be entitled to notify his employees (and
co-workers) and also the tenants using the Real Estate of conclusion of this
Agreement, within the scope of details on the Buyer and the anticipated date of
effect of the transfer of the Real Estate. Until the transfer of the Real Estate
enters into effect, neither this notice nor any other notice may include
information on the amount of the Purchase Price, unless it is published or known
previously in some other manner. The Buyer shall not be entitled to make any
announcements regarding this Agreement and its subject, expressly including the
amount of the Purchase Price, before the transfer of the Real Estate enters into
effect, with the exception of the persons referred to in subparagraphs (i) to
(v) of this paragraph.
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10.
|
The
claims of the Parties to payment of the contractual fine, damages and
default interest, as well as their obligation to maintain confidentiality,
shall not expire upon withdrawal from this Agreement, its termination,
canceling or other expiry.
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11.
|
This
Agreement has been drawn up in six (6) counterparts, of which each of the
Parties shall obtain one (1) counterpart immediately after conclusion
hereof and four (4) counterparts hereof shall be attached to the relevant
application for registration of the Buyer’s ownership title to the Real
Estate in the relevant Land Registry. The Parties acknowledge that their
signatures, or the signatures of the persons executing and concluding this
Agreement for them or on their behalf, shall be notarized on the
counterparts of this Agreement intended for the Parties and also on one
(1) counterpart hereof that is intended for the Land
Registry.
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12.
|
The
following schedules constitute an integral part of this
Agreement:
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Schedule
No. 1 – Up-to-date extract from the Land
Registry
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Schedule
No. 2 – Graphic delimitation of the Real
Estate
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Schedule
No. 3 – Escrow Agreement
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Schedule
No. 4 – Declaration for the purposes of the Land
Registry
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Schedule
No. 5 – List of leases
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Schedule
No. 6 – Up-to-date extract from the Commercial Register for the
Buyer
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Schedule
No. 7 – List of easements agreed by the
Parties
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Schedule
No. 8 - Specification of
appurtenances
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Schedule
No. 9 – List of financial institutions pursuant to Art. XIV (8)
hereof
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13.
|
The
Parties declare that they have read the Agreement prior to its execution,
that they conclude it seriously, definitely and comprehensibly, based on
their free will and not under unfavorable terms and conditions. In witness
thereof, they affix their
signatures.
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initials
21
|
In
Prague, on November 25, 2008
|
In
Prague, on November 25, 2008
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|
|
(signature
illegibile)
|
(signature
illegibile)
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Xxxxx
Xxxxxxxx
|
Sendio
s.r.o.
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|
Xxxxxxx
Xxxxxx Xxxx
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||
|
Executive
|
||
|
(signature
illegibile)
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||
|
Sendio
s.r.o.
|
||
|
Philip
Glyn Styles
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|
Executive
|
initials
22
