EXHIBIT 4.13
EXECUTION COPY (delta)
FRAMEWORK TRANSACTION AGREEMENT
BY AND AMONG
1. KLEPIERRE S.A.
2. KLEPIERRE HONGRIE S.A.S.
3. LP7 S.A.S.
4. SEGECE
AS BUYERS
5. PLAZA CENTERS (EUROPE) B.V.
6. ELBIT ULTRASOUND NETHERLANDS B.V.
7. SZEGED 2002 KFT.
8. PLAZA CENTERS MANAGEMENT B.V.
AS VENDORS
DATED AS OF JULY 30TH, 2004
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TABLE OF CONTENTS
ARTICLE I - - DEFINITIONS................................................... 3
1.1 Certain Definitions............................................. 3
ARTICLE II - TRANSACTIONS................................................... 11
2.1 Purchase and Sale of the Contract Companies..................... 11
2.2 Financing Loan Facilities....................................... 13
2.3 Re-payment of OVAG Loans and Release of Securities ............. 13
2.4 Release of Cross Collateralization. ........................... 14
2.5 Utilities Guarantee............................................. 14
2.6 Price Adjustment Escrow Deposit................................. 15
2.7 Parent Guarantees............................................... 15
2.8 Excluded Portfolio Centers and Rights of First Offer............ 15
2.9 Other Excluded Assets........................................... 17
2.10 Taxes........................................................... 17
ARTICLE III - TRANSACTION PRICE AND VERIFICATIONS........................... 18
3.1 Determination of Estimated Transaction Prices................... 18
3.2 Payment of Estimated Portfolio Companies Prices................. 19
3.3 Payment of Estimated PCMM Shares Value.......................... 19
3.4 Closing Interest................................................ 20
3.5 Post-Closing Purchase Price Adjustments......................... 20
3.6 Special Agreed Price Adjustments................................ 24
3.7 Duna Plaza Extension Price...................................... 26
3.8 Special Provisions relating to Duna Plaza Offices............... 26
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF VENDORS...................... 26
4.1 Organization, Qualification, and Corporate Power................ 26
4.2 Authorization................................................... 27
4.3 No Conflicts.................................................... 27
4.4 Consents........................................................ 27
4.5 Capitalization.................................................. 27
4.6 Validity of Quotas and Shares................................... 28
4.7 Articles of Association and Constitutive Documents.............. 28
4.8 Legal Title..................................................... 28
4.9 Transferability................................................. 29
4.10 Assigned Shareholders' Loans and Up-Stream Loans................ 29
4.11 Financing Loan Facilities....................................... 29
4.12 Financial Statements............................................ 30
4.13 Undisclosed Liabilities......................................... 30
4.14 Events Subsequent to Most Recent Fiscal Period End.............. 30
4.15 Legal Compliance................................................ 32
4.16 Tax Matters..................................................... 32
4.17 Title of Properties; Absence of Liens and Encumbrances;
Condition of Equipment.......................................... 33
4.18 Portfolio Centers............................................... 34
4.19 Intellectual Property........................................... 35
4.20 Notes and Accounts Receivable................................... 36
4.21 Insurance....................................................... 36
4.22 Material Business Contracts ................................... 36
4.23 Lease Contracts................................................. 37
4.24 Fotex Lease Contract............................................ 38
4.25 Power of Attorney............................................... 39
4.26 Litigation...................................................... 39
4.27 Utilities Charges............................................... 39
4.28 No Development Risks............................................ 39
4.29 Employees....................................................... 39
4.30 Environment, Health and Safety.................................. 40
4.31 Intergroup Agreements. ......................................... 42
4.32 Promotions Agreements........................................... 42
4.33 Complete Copies of Materials.................................... 42
4.34 Full Disclosure................................................. 42
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF KLEPIERRE AND BUYERS.......... 42
5.1 Organization, Qualification, and Corporate Power................ 42
5.2 Authorization................................................... 43
5.3 No Conflicts.................................................... 43
5.4 Consents........................................................ 43
5.5 Financial Resources............................................. 43
5.6 Liability....................................................... 43
ARTICLE VI - PRE-CLOSING COVENANTS.......................................... 44
6.1 Operation of Business........................................... 44
6.2 Notice of Developments.......................................... 45
6.3 Exclusivity..................................................... 46
6.4 Reasonable Efforts.............................................. 47
ARTICLE VII - CLOSING....................................................... 47
7.1 Closing and Consummation........................................ 47
7.2 Conditions for Closing.......................................... 47
7.3 Acts to be performed at Closing................................. 48
7.4 Acknowledgement of Closing...................................... 49
7.5 Partial Consummation............................................ 49
7.6 Deferred Closing................................................ 50
ARTICLE VIII - ADDITIONAL AGREEMENTS WITH POST CLOSING EFFECT............... 50
8.1 Post Closing Merger Procedures.................................. 50
8.2 Post Merger Tax Procedure....................................... 50
8.3 Duna Plaza Extension............................................ 54
8.4 Duna Plaza Offices.............................................. 59
8.5 Re-Organization of Management Company Activities................ 59
8.6 Non-Compete..................................................... 60
8.7 Non-Solicitation................................................ 60
8.8 Collection of Receivables....................................... 60
8.9 PCMM Inventory.................................................. 60
ARTICLE IX - OTHER AGREEMENTS AND COVENANTS................................. 61
9.1 Confidentiality................................................. 61
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9.2 Additional Documents and Further Assurances..................... 61
ARTICLE X - WITHDRAWAL OPTION............................................... 61
10.1 Withdrawal Option............................................... 61
10.2 Material Adverse Effect Defined................................. 62
10.3 Right of Withdrawal............................................. 63
10.4 Withdrawal Notice and Rectification............................. 63
10.5 Restrictions on Rights of Withdrawal............................ 63
10.6 Consequences of Withdrawal and Termination...................... 64
ARTICLE XI - SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.......... 64
11.1 Representations, Warranties and Covenants....................... 64
ARTICLE XII - INDEMNIFICATION............................................... 65
12.1 Indemnification by Vendors...................................... 65
12.2 Indemnification by Buyers....................................... 66
12.3 Notice and Opportunity to Defend................................ 67
12.4 Remedies........................................................ 68
12.5 Certain Limitations............................................. 68
12.6 Special Indemnities............................................. 69
ARTICLE XIII - TERMINATION.................................................. 70
13.1 Termination of the Agreement.................................... 70
13.2 Effect of Termination........................................... 71
13.3 Entire Transaction.............................................. 71
ARTICLE XIV - MISCELLANEOUS................................................. 71
14.1 Press Releases and Public Announcements......................... 71
14.2 Governing Law................................................... 71
14.3 Dispute Resolution.............................................. 72
14.4 Perfection of Schedules......................................... 73
14.5 No Third-Party Beneficiaries.................................... 73
14.6 Entire Agreement and Modification............................... 73
14.7 Amendment....................................................... 73
14.8 Waivers......................................................... 73
14.9 Successors and Assigns.......................................... 74
14.10 Counterparts.................................................... 74
14.11 Headings........................................................ 74
14.12 Notices......................................................... 74
14.13 Severability.................................................... 75
14.14 Expenses........................................................ 75
14.15 Construction.................................................... 76
14.16 Attorneys' Fees................................................. 76
14.17 Further Assurances.............................................. 76
14.19 Time of Essence................................................. 76
14.20 Consent to Jurisdiction.........................................
14.21 Schedules and Exhibit........................................... 76
14.22 Euro............................................................ 76
14.23 Language........................................................ 76
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FRAMEWORK TRANSACTION AGREEMENT
THIS FRAMEWORK TRANSACTION AGREEMENT (this "AGREEMENT") is made and
entered into on July 30th, 2004, by and among:
(1) KLEPIERRE S.A., a French "societe anonyme" having its registered
head office at Paris, 21 Avenue Kleber 75116, registered in the
Paris Trade Register under n(degree) B 780 152 914 ("KLEPIERRE");
(2) KLEPIERRE HONGRIE S.A.S., a French "societe par actions simplifiee",
being a wholly owned subsidiary of Klepierre, having its registered
office at Paris, 21 Avenue Kleber 75116, registered in the Paris
Trade Register under n(degree) B 442 692 315 ("KLPH");
(3) LP 7 S.A.S., a French "societe par actions simplifiee", being a
wholly owned subsidiary of Klepierre, having its registered office
at Paris, 21 Avenue Kleber 75116, registered in the Paris Trade
Register under n(degree) B 000 000 000 ("LP7")
(4) SEGECE (societe en commandite simple), a French subsidiary of
Klepierre, having its registered head office at Paris, 21 Avenue
Kleber 75116, registered in the Paris Trade Register under n(degree)
B 562 100 214 ("SEGECE");
(5) PLAZA CENTERS (EUROPE) B.V., a Dutch corporation having its
registered seat at 239 Keizersgracht, EA1016 Amsterdam, The
Netherlands, and registered with the Chamber of Commerce under
n(degree) 33248324 ("PCE");
(6) ELBIT ULTRASOUND NETHERLANDS B.V., a Dutch corporation having its
registered seat at 239 Keizersgracht, EA1016 Amsterdam, The
Netherlands, and registered with the Chamber of Commerce under
n(degree) 27156039 ("EUN");
(7) SZEGED 2002 KFT., an Hungarian corporation having its registered
seat at 00 Xxxxxxxx Xxxx., X-0000 Xxxxxxxx, Xxxxxxx, and registered
with the Court of Registration n(degree) 00-00-000000 ("SZEGED");
and
(8) PLAZA CENTERS MANAGEMENT B.V., a Dutch corporation and a wholly
owned subsidiary of PCE, having its registered seat at 239
Keizersgracht, EA1016 Amsterdam, The Netherlands, and registered
with the Chamber of Commerce under n(degree) 34149674 ("PCM-BV").
Klepierre, XXXX, XX0, Xxxxxx, PCE, EUN, Szeged and PCM are sometimes
referred to herein individually as a "PARTY" and collectively as the
"PARTIES."
RECITALS
A. PCE and EUN are the direct and/or indirect and/or beneficial owners of
the entire Equity Rights in and to the Portfolio Companies, and the indirect
owners of the entire issued and outstanding Equity Rights in and to PCMM,
through PCM-BV;
B. Each of the Holding Companies is the direct owner of record of the
entire Equity Rights in and to the relevant Property Company recorded opposite
its name in the Rights Acquisition Schedule;
C. Each of the Property Companies and each of the Direct Property
Companies is the owner of the entire right, title and interest in and to the
Portfolio Center recorded opposite its name in the Property Schedule;
D. PCM-BV is a wholly owned subsidiary of PCE, and the holder of the
entire Equity Rights in and to PCMM, which operates and manages each of the
Portfolio Centers;
E. Szeged is a wholly owned subsidiary of PCE and EUN, and the holder of
the entire Equity Rights in and to the Direct Property Company known as Szeged
Plaza Kft., which in turn is the registered owner of the right, title and
interest in and to the "Szeged Plaza" Portfolio Center.
F. Purchasers desire to acquire from PCE, EUN and Szeged, and PCE, EUN and
Szeged desire to sell to Purchasers, the entire Equity Rights in and to the
Portfolio Companies, on the terms and subject to the conditions set forth
herein;
G. Segece desires to acquire from PCM-BV, and PCM-BV desires to sell to
Segece, fifty percent (50%) of the entire Equity Rights in and to PCMM, on the
terms and subject to the conditions set forth herein;
H. Each of the Parties believes that it is in their respective best
interests that the Transactions contemplated hereby be consummated and, in
furtherance thereof, has duly approved this Agreement and the Transactions
contemplated hereby.
G. Each of the Parties desire to make certain representations, warranties,
covenants and other agreements in connection with the transactions contemplated
hereby.
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NOW, THEREFORE, in consideration of the covenants and representations set
forth herein, and for other good and valuable consideration, the parties agree
as follows:
ARTICLE I - - DEFINITIONS
1.1 Certain Definitions. As used in this Agreement, the following terms
have the following meanings (terms defined in the singular to have a correlative
meaning when used in the plural and vice versa). Certain other terms are defined
in the Recitals and in the text of this Agreement.
(a) "ASSIGNED SHAREHOLDER LOANS" mean all the shareholders loans
which remain outstanding as at the Reference Date and which are due and payable
by the Contract Companies to PCE and/or EUN, and/or PCM-BV and/or their
Affiliates;
(b) "ASSIGNED SHAREHOLDER LOANS AMOUNTS means, with respect to each
of the Assigned Shareholder Loans (i) the entire (100%) aggregate estimated
amount of those Assigned Shareholder Loans, which are due and payable by the
Portfolio Companies to PCE and/or EUN and/or their Affiliates; and (ii) fifty
percent (50%) of the aggregate estimated amount of those Assigned Shareholder
Loans which are due and payable by PCMM to PCM-BV and/or its Affiliates; all in
the estimated amounts (principal and accrued interest as at the Reference Date)
which are specified in the Shareholders Loan Schedule attached hereto as
SCHEDULE 1.1(WWW), subject to verification in terms of the provisions of Section
3.5 below;
(c) "ACQUIRED PCMM QUOTA" means fifty percent (50%) of the total
outstanding Equity Rights in and to PCMM, which are to be acquired by Segece
pursuant to the provisions of this Agreement, as detailed and specified in the
Rights Acquisition Schedule attached hereto as SCHEDULE 1.1(UUU);
(d) "AFFILIATE" means any Person that directly or indirectly,
through one of more intermediaries, controls or is controlled by or is under
common control with the Person specified. For purposes of this definition,
control of a Person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such Person whether by voting power,
Contract or otherwise;
(e) "ANCILLARY AGREEMENTS" means all those ancillary agreements and
contracts to be concluded between inter alia the Parties or any of them and
which are required or necessary for the full and proper execution and perfection
of the Transactions provided for in this Framework Agreement, including: (i) the
Duna Plaza Turn-Key Development Agreement; (ii) the DPO Interim Agreement; (iii)
the PCMM Shareholders Agreement; (iv) the Trademark License Agreement; (v) the
OVAG Loan Repayment Agreement; (vi) the various agreements and related documents
required for the sale and transfer of the Equity Rights in and to the Portfolio
Companies referred to in Section 7.3 below; (vii) the Shareholder Loan
Assignment Agreements referred to in Section 7.3 below; and (viii) the Utilities
Guarantee; (ix) the EMI Parent Company Guarantee; (x) the Price Adjustment
Escrow Agreement; (xi) the EMI First Demand Guarantee referred to in Section
8.2(j) below; and (xii) such other contracts, deeds and documents as are
reasonably required by operation of applicable Law in order to give full, valid
and proper effect to the intention of the Parties as set forth in this
Agreement;
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(f) "ASSUMED FINANCING LOANS" means all those Financing Loans which
are to be repaid by the relevant Portfolio Company at the election of Purchasers
following the Closing, excluding the OVAG Loans, as specified in the Portfolio
Liability Schedule SCHEDULE 1.1(lll);
(g) "BOOKS AND RECORDS" of any Contract Company means all files,
documents, instruments, papers, books and records relating to the business,
operations, condition of (financial or other), results of operations and assets
of each Contract Company, including without limitation financial statements,
ledgers, journals, deeds, title policies, minute books, stock certificates and
books, Contracts, Leases, Permits, customer and tenant lists, rent rolls,
computer files and programs, retrieval programs, operating data and plans and
environmental studies;
(h) "BUSINESS DAY" shall mean a day other than (i) Saturday and
Sunday; and (ii) any day on which banks located in Hungary, France, The
Netherlands or Israel are authorized or obligated to close;
(i) "BUSINESSES" shall mean the respective businesses and operations
of each of the Contract Companies and/or each of the Portfolio Centers;
(j) "BUYERS" shall mean: Purchasers and Segece, acting jointly and
severally;
(k) "BUYERS' ACCOUNTANTS" shall mean: Messrs. Deloittes of Hungary;
(l) "CLOSING" means the consummation of the Transaction which is to
be carried out on the Closing Date in the manner specified in Article VII below
and in accordance with its provisions;
(m) "CLOSING ACCOUNTS" means the Estimated Portfolio Companies
Accounts and the Estimated PCMM Accounts;
(n) "CLOSING DATE" has the meaning set forth in Section 7.1 below;
(o) "CONTRACT COMPANIES" means the Property Companies, the Direct
Property Companies, the Holding Companies and PCMM;
(p) "DIRECT PROPERTY COMPANIES" means those 4 (four) companies
specified in Section B of the Rights Acquisition Schedule attached hereto as
SCHEDULE 1.1(uuu), which are recorded as the owners of the respective Portfolio
Centers recorded opposite their names in the Property Schedule attached hereto
as SCHEDULE 1.1(ooo), the entire quota of which are to be acquired directly by
KLPH from PCE (or, in the case of Szeged Plaza Kft. - from Szeged);
(q) "DPO INTERIM AGREEMENT" means the agreement to be entered into
at the Closing by and among Klepierre, Purchasers, Duna Plaza Rt., and PCE in
the form and text attached hereto as SCHEDULE 8.4, which shall govern the
respective rights of, and the relations between, the Parties insofar as they
pertain to the Duna Plaza Offices;
(r) "DUNA PLAZA COMPLEX" means the Duna Plaza Shopping Center and
the Duna Plaza Offices;
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(s) "DUNA PLAZA EXTENSION" means the proposed extension to the Duna
Plaza Shopping Center referred to in, contemplated in, and subject to the
provisions of, Section 8.3 below, which is to be constructed by PCE pursuant to
the provisions of the Duna Plaza Turn-Key Development Agreement and in
accordance with the plans and designs in terms of which the building permit
applications were submitted (and in accordance with detailed plans and designs
to be agreed);
(t) "DUNA PLAZA OFFICES" means those areas of the Duna Plaza Complex
which are delineated in blue on the plans attached to the DPO Interim Agreement
and which : (i) are designated for use and are leased out as office areas (and
which shall include the underground parking facilities); (ii) are excluded from
the ambit of the Transaction; and (iii) are subject to and shall be governed by
the provisions of the DPO Interim Agreement;
(u) "DUNA PLAZA SHOPPING CENTER" means those areas of the Duna Plaza
Complex which are delineated in green on the plans attached to the DPO Interim
Agreement and which : (i) are designated for use and are leased and operated as
a shopping and entertainment center; and (ii) are included within the ambit of
the Transaction and comprise the Duna Plaza Portfolio Center;
(v) "DUNA PLAZA TURN-KEY DEVELOPMENT AGREEMENT" means the turn-key
development and construction agreement which is to be executed by and among
Klepierre, Purchasers, Duna Plaza Rt. and PCE following the Closing in respect
of the development, construction, lease-up and completion of the Duna Plaza
Extension, all as contemplated in and subject to the provisions of Section 8.3
below;
(w) "EMI" means Elbit Medical Imaging Ltd., of 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxxxxx, being the ultimate and/or indirect parent company of the Vendors;
(x) "EMI PARENT GUARANTEE" means the corporate guarantee to be
furnished by EMI to Purchasers and Segece at the Closing, in the form and text
attached hereto and marked as SCHEDULE 2.7(a);
(y) "EMPLOYEE" means each employee of the Contract Companies or any
of them who is employed in connection with the Businesses;
(z) "EQUITY RIGHTS" means the equity and voting rights (shares or
quotas) in each of the Contract Companies, together with all other rights and
interests bestowed by operation of applicable law on the holders thereof,
including without limitation the right to receive dividends and other forms of
profit distributions, and surplus assets upon liquidation;
(aa) "ESTIMATED TRANSACTION PRICES" means the aggregate of the
Estimated Portfolio Company Prices and the Estimated PCMM Share Value, and as
detailed and specified in the Transaction Prices Schedule attached hereto as
SCHEDULE 1.1(bbbb);
(bb) "ESTIMATED PCMM ACCOUNTS" means the pro forma balance sheet and
financial statements in respect of PCMM as of the Reference Date, which have
been prepared by PCE in accordance with Hungarian accounting standards, copies
of which are attached hereto and marked as SCHEDULE 3.1(a)(i);
(cc) "ESTIMATED PCMM SHARE VALUE" means the estimated value of the
Acquired PCMM Quota which is to be paid by Segece to PCM-BV at the Closing in
consideration for the purchase of
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the Acquired PCMM Quota, calculated in terms of the Estimated PCMM Accounts, but
subject to verification and review in terms of the provisions of Sections 3.5
below;
(dd) "ESTIMATED PORTFOLIO COMPANIES ACCOUNTS" means the pro forma
balance sheet and financial statements in respect of all of the Portfolio
Companies (including those of the Property Companies) as of the Reference Date,
which have been prepared by PCE in accordance with Hungarian accounting
standards, copies of which are attached hereto and marked as SCHEDULE
3.1(a)(ii);
(ee) "ESTIMATED PORTFOLIO COMPANY PRICES" means the estimated prices
which are to be paid by Purchasers to PCE, EUN and Szeged respectively at the
Closing in consideration for the acquisition of the entire Equity Rights in and
to the Portfolio Companies, calculated in terms of the Estimated Portfolio
Company Accounts, but subject to verification and review in terms of the
provisions of Sections 3.5 below;
(ff) "EXCLUDED ASSETS" means the Excluded Centers, the Excluded
Centers Companies, the Duna Plaza Offices, as well as the other projects and
businesses of PCE and/or EUN referred to in Section 2.9 below;
(gg) "EXCLUDED CENTERS" means the 4 (four) shopping and
entertainment centers located within Hungary which are owned and operated by the
Excluded Centers Companies, and which are not included within the ambit of the
Transaction (subject however to the provisions of Section 8.5(c) below), namely:
Pecs Plaza located in Pecs, Sopron Plaza located in Sopron, Balaton Plaza
located in Vezsprem, and Xxxxxxx Plaza located in Szombathely;
(hh) "EXCLUDED CENTERS COMPANIES" means Pecs Plaza Kft., Sopron
Plaza Kft., Vezsprem Plaza Kft. and Szombathely Plaza Kft. being wholly owned
subsidiaries of PCE and the holders of the right, title and interest in and to
each of the Excluded Centers respectively;
(ii) "EXCLUDED CENTERS FINANCING LOANS" means the loans awarded by
the Financing Banks to the Excluded Centers Companies as set forth in the
Portfolio Liabilities Schedule(SCHEDULE 1.1(lll));
(jj) "EXECUTION DATE" means the date of the signing and execution of
this Agreement;
(kk) "FINANCING BANKS" means those banking institutions which have
granted credit facilities to the relevant borrowers in respect of the Portfolio
Centers, all and more fully detailed and specified in the Portfolio Liability
Schedule attached hereto as SCHEDULE 1.1(lll);
(ll) "FINANCING BANKS SECURITIES" means the securities and
collateral granted to the relevant Financing Banks in respect of each of the
respective credit facilities, all as more fully detailed and specified in the
Portfolio Liabilities Schedule attached hereto as SCHEDULE 1.1(lll);
(mm) "GOVERNMENTAL BODY" means any (i) nation, province, state,
county, city, town, village, district, or other jurisdiction of any nature; (ii)
provincial, state, local, municipal, or other government; (iii) governmental or
quasi-governmental authority of any nature (including any governmental agency,
branch, department, official, or entity and any court or other tribunal); or
(iv) body exercising, or entitled to exercise, any administrative, executive,
judicial, legislative, police, regulatory, or taxing authority or power of any
nature;
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(nn) "HOLDING COMPANIES" means the eight (8) special
purpose vehicle holding companies which hold 100% of the Equity Rights of the
relevant Property Company recorded opposite its name in the Rights Acquisition
Schedule attached hereto as SCHEDULE (UUU), the Equity Rights of which are held
by PCE and EUN respectively in the proportions indicated in the said Rights
Acquisition Schedule, and are to be acquired by KLPH and LP7 in the same
proportions;
(oo) "INDEBTEDNESS" of any Person means all obligations of
such Person (i) for borrowed money, (ii) evidenced by notes, bonds, debentures
or similar instruments, (iii) for the deferred purchase price of goods or
services (other than trade payables or accruals incurred in the ordinary course
of business), (iv) under leases or (v) in the nature of guarantees of the
obligations described in clauses (i) through (iv) above of any other Person;
(pp) "KNOWLEDGE OF VENDORS" shall mean the actual
knowledge of the incumbent officers, employees and directors of the Vendors, or
of the Contract Companies where relevant, or knowledge which the incumbent
officers, employees and directors of the Vendors, or of the Contract Companies
where relevant, ought reasonably to have had in the circumstances of any
particular matter;
(qq) "LAND REGISTRY EXTRACTS" means the official extracts
issued by and/or obtained from the Lands Registry Office in respect of each of
the Portfolio Centers, which shall each bear a date of issue not earlier than 3
(three) days prior to the Closing Date, and which are to be furnished by Vendors
to Purchasers at Closing in terms of the provisions of Section 7.2(a)(iii)
below, and which are attached as Exhibit B to the Property Schedule (SCHEDULE
1.1(OOO));
(rr) "LAW" means any applicable law (including common
law), statute, rule, regulation, ordinance, extension order, or other
pronouncement having the effect of law in the Kingdom of The Netherlands or in
the Republic of Hungary or any other country or Governmental Body having
jurisdiction in matters pertaining to the subject matter of this Agreement;
(ss) "LEASE CONTRACT(S)" means with respect to the shops
and office premises of the Portfolio Centers (excluding the Duna Plaza Offices),
any lease contract and any amendment thereof entered into between the relevant
Property Companies and Direct Property Companies, as the case may be, for the
use or occupancy of any portion of the Portfolio Centers;
(tt) "LIABILITY" means any Indebtedness, obligation or
other liability of a Person (whether absolute, accrued, contingent, fixed or
otherwise, or whether due or to become due);
(uu) "LIEN" means any mortgage, pledge, lien, charge,
claim, security interest, adverse claims of ownership or use, restrictions on
transfer, defect of title or other encumbrance of any sort, other than Permitted
Liens;
(vv) "MATERIAL ADVERSE EFFECT" shall have the meaning
ascribed to it in Section 10.2 below;
(ww) "ORDER" means any writ, judgment, decree, injunction,
administrative order, directive or similar order or directive of any
Governmental Body (in each such case whether preliminary or final);
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(xx) "OVAG" means Osterreichische Volksbanken AG of
Vienna;
(yy) "OVAG LOANS" means the Financing Loans awarded by
OVAG (either alone or jointly with syndicating banks) to D2 Rt., Duna Plaza Rt.,
Csepel Plaza Kft. and Gyor Plaza Kft., as more fully detailed and specified in
the Portfolio Liabilities Schedule attached hereto as SCHEDULE 1.1(LLL), and in
the OVAG Loans Repayment Agreement (SCHEDULE 2.3(A))
(zz) "OVAG LOANS REPAYMENT AGREEMENT" means the agreement
which shall have been concluded on or before the Closing Date by and among OVAG,
Purchasers and PCE, the provisions of which shall govern the repayment of the
OVAG Loans in full at the Closing, a copy of which is attached hereto and marked
as SCHEDULE 2.3(A);
(aaa) "PCE" has the meaning set forth in the recitals
above;
(bbb) "PCE GROUP APPROVALS" means the approval of the
Transaction, as incorporated in this Framework Agreement and the Ancilliary
Agreements, of the respective Boards of Directors of EMI and each of the
Vendors, all of which have been obtained prior to the Execution Date;
(ccc) "PCM-BV" has the meaning set forth in the recitals
above;
(ddd) "PCMM" means Plaza Centers Magyarorszag (Management)
Kft., being a company registered pursuant to the Laws of Hungary and bearing
registration No. 00-00-000000;
(eee) "PCMM SHAREHOLDERS AGREEMENT" means the shareholders
agreement to be entered into by and among Segece and PCM-BV at the Closing,
which shall govern their relations inter se and their joint relations with PCMM,
in the form and text attached hereto as SCHEDULE 2.1(C)(II);
(fff) "PCMM UPSTREAM LOANS" means the loan, in the amount
of E 2,509,000 as at the Reference Date, which is due and payable by PCE to
PCMM, of which an amount of E 1,000,000 will be repaid by PCE to PCMM at Closing
in terms of Section 3.3(b) below, subject to verification in terms of the
provisions of Section 3.5 below, which shall apply mutatis mutandis;
(ggg) "PERMIT" means the licenses, permits, authorizations,
registrations, certificates, variances, approvals, consents and franchises and
similar rights obtained from governments and any Governmental Body, and any
pending applications relating to the foregoing in respect of and/or in
connection with the Contract Companies and/or the Portfolio Centers and/or the
Businesses and/or the Purchased Assets;
(hhh) "PERMITTED LIENS" means (i) all Financing Bank
Securities in respect of the Assumed Financing Loans; (ii) with respect to each
of the Portfolio Centers, all specific liens, easements and other registered
third party rights recorded in the Land Registry Extracts attached hereto as an
exhibit to the Property Schedule (SCHEDULE 1.1(OOO)); and (iii), with respect to
the Property Companies and the Direct Property Companies, liens arising by
operation of law in respect of goods supplied or services rendered in the
ordinary course of business consistent with past practice for amounts that are
not due and payable as of the Closing Date or being contested in good faith and
for which appropriate reserves have been established in the Estimated Portfolio
Company Accounts; (iv) in respect of the Portfolio Centers only, legal easements
and rights of access mandated by operation of law whether or not recorded in the
Land Registry Extracts, which
8
comply with the provisions of Section 4.8(f) below and which do not and may not
detract from the value of the relevant Portfolio Center, or from the use,
operation of transfer of the relevant Portfolio Center; provided, however, that
no liens, encumbrances or other third party rights, other than Financing Bank
Securities, shall be permitted against the Equity Rights to be acquired by
Buyers pursuant to the provisions of this Agreement;
(iii) "PERSON" means any individual, corporation (including
any non-profit corporation), company, general or limited partnership, limited
liability company, joint venture, estate, trust, association, organization,
labor union, Governmental Body or other entity;
(jjj) "PORTFOLIO COMPANIES" means the Holding Companies and
the Direct Property Companies;
(kkk) "PORTFOLIOS CENTERS" means the 12 (twelve) shopping
and entertainment centers specified in the Property Schedule, which are fully
and validly owned and controlled by the relevant Property Company or the
relevant Direct Property Company recorded opposite its name (and including land
reserves and/or extensions owned by Duna Plaza Rt. and Kapsovar Plaza Kft.
respectively which are adjacent to the existing Portfolio Centers, but subject
to the provisions of Section 8.3(e) below), as set forth in detail in the
Property Schedule as attached hereto as SCHEDULE 1.1(OOO);
(lll) "PORTFOLIO LIABILITIES SCHEDULE" means the schedule
attached hereto and marked as SCHEDULE (LLL), setting out the details and
particulars of the Assumed Financing Loans, the OVAG Loans and the Excluded
Centers Financing Loans;
(mmm) "PRICE ADJUSTMENT ESCROW AGREEMENT" means the escrow
agreement to be concluded on or before the Closing by and among Purchasers, PCE
and OVAG as escrow agent, pursuant to which an escrow fund will be created as
security for any price adjustments which may be required pursuant to the
provisions of Section 2.6 below, in the form and text attached hereto as
SCHEDULE 2.6(A);
(nnn) "PROPERTY COMPANIES" means each of the eight (8)
special purpose vehicle companies which are recorded as the owners of the
respective Portfolio Centers recorded opposite their names in the Property
Schedule attached hereto as SCHEDULE 1.1(OOO), the entire Equity Rights of which
are held by the relevant Holding Company recorded opposite its name in the
Rights Acquisition Schedule attached hereto as SCHEDULE 1.1(UUU);
(ooo) "PROPERTY SCHEDULE" means the schedule attached
hereto as SCHEDULE 1.1(OOO) setting out the details and particulars of the
Portfolio Centers, and including the floor plans of each of the Portfolio
Centers appendixed thereto as exhibits;
(ppp) "PURCHASERS" shall means KLPH and LP7, jointly and
severally, and shall be deemed to include their successor or assign pursuant to
Section 14.9 below;
(qqq) "PURCHASED ASSETS" means, refers to and includes all
the equipment, machinery, properties, rights, titles, assets (tangible and
intangible) and other interests which are owned, used or held for use by the
relevant Contract Companies and/or the relevant Portfolio Centers related to
and/or in connection with the relevant Businesses;
9
(rrr) "PURCHASERS GROUP APPROVALS" means the approval of
the Transactions, as incorporated in this Framework Agreement and the Ancillary
Agreements, of the respective supervisory boards of Klepierre and and Segece,
both of which have been obtained prior to the Execution Date;
(sss) "REFERENCE DATE" means June 30, 2004;
(ttt) "REPRESENTATIVES" means, with respect to a Person,
that Person's officers, directors, employees, accountants, legal counsel, agents
and other representatives;
(uuu) "RIGHTS ACQUISITION SCHEDULE" means the schedule of
the Equity Rights to be acquired by Purchasers and Segece pursuant to the
provisions of this Agreement attached hereto and marked as SCHEDULE 1.1(UUU);
(vvv) "SEGECE" shall have the meaning set forth in the
recitals above;
(www) "SHAREHOLDER LOAN SCHEDULE" means the schedule
attached hereto as SCHEDULE 1.1(WWW), specifying : (i) each of Assigned
Shareholder Loans and each of the estimated Assigned Shareholder Loans Amount
(principal and interest as at the Reference Date) and (ii) each of the Up-Stream
Loans and each of the Up-Stream Loans Amounts (principal and interest as at the
Reference Date);
(xxx) "TRADEMARK LICENSE AGREEMENT" means the agreement to
be entered into by and among, inter alia, Klepierre, Purchasers and PCE at the
Closing, in terms of which PCE shall award a license for the use of the "Plaza
Centers" tradename and logo, on the terms and conditions specified therein, in
the form and text attached hereto as SCHEDULE 1.1(XXX);
(yyy) "TRANSACTIONS" means the transactions which are the
subject matter of this Framework Agreement and the Ancillary Agreements;
(zzz) "TRANSACTION APPROVALS" means all those approvals
which are required for the consummation of the Transaction are detailed and
specified in Section 7.2(a) below, namely : (i) the Financing Banks Approvals;
(ii) the Waivers and Consents; and (iii) the COH Approval (as defined in Section
7.2(a)(i) below);
(aaaa) "TRANSACTION COMPANIES" means the Portfolio Companies
and PCMM;
(bbbb) "TRANSACTION PRICES SCHEDULE" means the schedule
setting forth the Estimated Transaction Prices attached hereto and marked as
SCHEDULE 1.1(BBBB);
(cccc) "TRIPLE NET RENTS" shall have the meaning, and shall
be calculated in according with the methodologies, as provided for in SCHEDULE
3.1(B)(I);
(dddd) "UTILITIES GUARANTEE" means the guarantee to be
furnished by PCE to Purchasers at the Closing in terms of the provisions of
Section 2.5 below and in the form and text attached hereto as SCHEDULE 2.5(B);
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(eeee) "UP-STREAM LOANS" means all loans which remain
outstanding as at the Reference Date, and which are due and payable by the PCE
and/or any of its Affiliates to any of the Contract Companies (but excluding the
PCMM Upstream Loan), all, as specified in the Shareholder Loan Schedule
(SCHEDULE 1.1(WWW)), subject to verification in terms of the provisions of
Section 3.5 below, which shall apply mutatis mutandis;
(ffff) "UP-STREAM LOANS AMOUNT" means, with respect to any
of the Up-Stream Loans, the amount which remain outstanding as at the Reference
Date;
(gggg) "VENDORS" means PCE, EUN, Szeged and PCM-BV, acting
jointly and severally;
(hhhh) "WAIVERS AND CONSENTS" means the waivers and consents
to be furnished by the Financing Banks in respect of the Transactions, which are
to be obtained on or before the Closing, copies of which are attached hereto as
SCHEDULE 7.2(A)(II);
ARTICLE II - TRANSACTIONS
2.1 Purchase and Sale of the Contract Companies.
(a) Purchase and Sale of Holding Companies. Upon the
terms and subject to the conditions set forth herein, at the Closing : (i) KLPH
shall irrevocably purchase from PCE, and PCE shall irrevocably sell, convey,
transfer, assign and deliver to KLPH, the Equity Rights held by PCE
(representing at the date hereof and on the Closing Date 96.6% of the entire
Equity Rights) in and to all of the Holding Companies (excluding D2 Rt.) as
indicated in the Rights Acquisition Schedule, free and clear of all Liens except
for Financing Bank Securities; and (ii) LP7 shall irrevocably purchase from EUN,
and EUN shall irrevocably sell, convey, transfer, assign and deliver to LP7, the
Equity Rights held by EUN (representing at the date hereof and on the Closing
Date 3.4% of the entire Equity Rights) in and to all of the Holding Companies
(excluding D2 Rt.) as indicated in the Rights Acquisition Schedule, free and
clear of all Liens except for Financing Bank Securities; and (iii) KLPH shall
irrevocably purchase from PCE, and PCE shall irrevocably sell, convey, transfer,
assign and deliver to KLPH, the Equity Rights held by PCE in D2 Rt.
(representing at the date hereof and on the Closing Date 99.5% of the entire
Equity Rights of D2 Rt.), free and clear of all Liens except for Financing Bank
Securities; and (iv) LP7 shall irrevocably purchase from EUN, and EUN shall
irrevocably sell, convey, transfer, assign and deliver to LP7, the Equity Rights
held by EUN in D2 Rt. (representing at the date hereof and on the Closing Date
0.5% of the entire Equity Rights of D2 Rt.), free and clear of all Liens except
for Financing Bank Securities.
(b) Purchase and Sale of Direct Property Companies. Upon
the terms and subject to the conditions set forth herein, at the Closing, KLPH
shall irrevocably purchase from PCE and Szeged, and PCE and Szeged shall
irrevocably sell, convey, transfer, assign and deliver to KLPH, the entire
Equity Rights (100%) in and to all of the Direct Property Companies, free and
clear of all Liens except for Financing Bank Securities.
(c) Purchase and Sale of Acquired PCMM Quota.
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(i) Upon the terms and subject to the conditions
set forth herein, at the Closing, Segece shall irrevocably purchase from PCM-BV,
and PCM-BV shall irrevocably sell, convey, transfer, assign and deliver to
Segece, the Acquired PCMM Quota (constituting 50% of the entire Equity Rights of
PCMM) free and clear of all Liens except for Financing Bank Securities, if any;
(ii) At the Closing, PCM-BV and Segece shall
enter into the PCMM Shareholders Agreement in the form and text attached hereto
as SCHEDULE 2.1(C)(II), which shall govern their mutual relations inter se as
the quotaholders of PCMM, and the relations between them and PCMM.
(d) Assignment and Transfer of Assigned Shareholder
Loans. Upon the terms and subject to the conditions set forth herein, at the
Closing:
(i) PCE shall assign, transfer and make over to
KLPH, and KLPH shall accept the assignment and transfer to it, of all the
outstanding Assigned Shareholder Loans recorded in the Books and Records of the
the relevant Holding Company and/or the relevant Direct Property Company (and
the relevant Property Company, if any) as an Indebtedness due and payable to PCE
and/or EUN and/or Szeged, as the case may be, or their Affiliates (all as
detailed and specified in the Shareholder Loan Schedule attached as SCHEDULE
1.1(WWW)). The Assigned Shareholders' Loans so assigned shall be free and clear
of all Liens, except for Financing Bank Securities.
(ii) PCM-BV shall assign, transfer and make over
to Segece, and Segece shall accept the Assigned Shareholder Loans recorded in
the Books and Records of PCMM as an Indebtedness due and payable by PCMM to
PCM-BV or its Affiliates (as detailed and specified in the Shareholder Loan
Schedule attached as SCHEDULE 1.1(WWW)). The Assigned Shareholders' Loans so
assigned to Segece shall be free and clear of all Liens, except for Financing
Bank Securities.
(iii) In the event that the recorded creditor of
any Indebtedness which is to be assigned as an Assigned Shareholders Loan in
terms of this Section is an Affiliate of Vendors, then and in such event the
relevant Vendor shall cause such Affiliate to execute the relevant Deed of Loan
Assignment so as to effect the assignment of the Assigned Shareholders Loan as
contemplated in terms of this Section.
(e) Transfer of the Up-Stream Loans
(i) At the Closing, and subject to the execution
and perfection of the assignment of the Assigned Shareholder Loans as aforesaid
and subject to the payment by PCE to KLPH of a amount equal to aggregate amount
of all of the Up-Stream Loans Amounts (such payment to be effected by way of set
off against the aggregate amount of Assigned Shareholder Loans Amounts which
shall be due and payable at Closing by KLPH to PCE as consideration for the
assignment of the Assigned Shareholder Loans), KLPH shall assume the obligations
of PCE under each of the Up-Stream Loans; in this respect, PCE, KLPH and the
relevant Contract Companies shall execute at Closing an assignment of debt and
substitution agreement effecting such substitution and releasing PCE of all and
any payment obligations under the Up-Stream Loans.
(ii) At the Closing, and subject to the execution
and perfection of the assignment of the Assigned Shareholder Loans as aforesaid,
Vendors represent and warrants that no amount shall remain owed by any of the
Contract Companies to any of the Vendors and/or any of their Affiliate, under
any Assigned Shareholder Loan, and more generally under any agreement or
otherwise. In this respect the
12
Vendors, on the one hand and the relevant Contract Companies on the other hand
shall execute at Closing a general waiver and release, whereby Vendors and their
Affiliates shall irrevocably and unconditionally release the Contract Companies
from all and any Liabilities in respect of the Assigned Shareholder Loans and
from any other Indebtedness, and shall irrevocably waive all past present or
future claims against the Contract Companies pertaining to the repayment of the
Assigned Shareholder Loans.
(iii) At Closing, and subject to the payment by
the Vendors to the Buyers by way of set-off against the Up-Stream Amount as set
forth in this Agreement, and subject to the provisions of Section 4.10(b) below,
the Buyers and the Contracts Companies shall irrevocably and unconditionally
release Vendors from all and any Liabilities and Indebtedness in respect of
Up-Stream Loans.
2.2 Financing Loan Facilities.
The Parties record that each of the Property Companies and
each of the Direct Property Companies has entered into Financing Loan Facilities
with the Financing Banks, as more fully detailed and specified in the Portfolio
Liability Schedule attached hereto and marked as SCHEDULE 1.1(LLL).
2.3 Re-payment of OVAG Loans and Release of Securities.
(a) With respect to the repayment of the OVAG Loans in
their entirety at the Closing, Klepierre, Purchasers, PCE, and OVAG shall on or
before the Closing Date enter into that certain OVAG Loans Repayment Agreement
in the form and text attached hereto as SCHEDULE 2.3(A), whereby, subject to the
consummation of the Transactions at the Closing:
(i) Purchasers shall deposit into an escrow
account opened in their names with OVAG the full amount required to repay the
OVAG Loans in full;
(ii) PCE shall cause that amount required to
execute full repayment of the Financing Loans extended by OVAG to Pecs Plaza
Kft. And to Sopron Plaza Kft. ("THE EXCLUDED CENTER OVAG LOANS") to be deposited
into a special deposit account;
(iii) OVAG shall be furnished with irrevocable
instructions that upon the delivery to the representative of OVAG attending the
Closing of the Acknowledgement of Closing referred to in Section 7.4 below, the
funds held in the special deposit accounts referred to hereinabove shall be
applied to the immediate repayment of the OVAG Loans and the Excluded center
OVAG Loans; and
(iv) OVAG shall unconditionally release and
terminate all collateral held by it as security for the repayment of the OVAG
Loans and the Excluded Center OVAG Loans.
(b) In respect of all Assumed Financing Loans, Purchasers
declare that it is their intention to cause the full repayment of the Assumed
Financing Loans on the next regularly scheduled payment date under the relevant
Financing Loan Facilities as set forth in the Portfolio Liabilities Schedule
attached as SCHEDULE 1.1(LLL). Pending repayment of the Assumed Financing Loans
as aforesaid, Purchasers undertake that they shall refrain from committing any
act, deed or omission which may give rise or result in an Event of Default or a
potential Event of Default under the relevant Financing Loan Facilities, and
which may thereby trigger the exercise of cross collateral against the Excluded
Centers and/or the Excluded Center
13
Companies. In this regard, Purchasers shall indemnify Vendors and/or the
Excluded Centers Companies as provided in Section 12.2 below .
2.4 Release of Cross Collateralization. PCE hereby undertakes to
cause that by not later than the Closing Date it shall cause all the Financing
Loans taken out by Sombathely Plaza Kft. in respect of the Xxxxxxx Portfolio
Center to be either repaid in full or refinanced in such manner that with effect
from the Closing none of the Contract Companies and/or the Portfolio Centers
and/or the Purchased Assets will be encumbered in any manner or form, or subject
to any Liens, in respect of and/or pertaining to and/or which may serve as
collateral for the repayment of all and any loans and other forms of credit
facilities taken out by the Sombathely Plaza Kft. in respect of the Xxxxxxx
Portfolio Center or otherwise, whether past or future. In this respect, PCE
shall deliver at Closing a certificate signed by the relevant banks and
reasonably satisfactory to the Buyers, which shall confirm such repayment or
refinancing as described above has been fully effected.
2.5 Utilities Guarantee
(a) On Closing Date, PCE shall deliver the Utilities
Guarantee to Purchasers. The Utilities Guarantee shall be an autonomous,
irrevocable and unconditional first demand bank guarantee issued by Magyar
Kulkereskedelmi Bank Rt. of Hungary, or another reputable bank acceptable to
Purchasers in their sole discretion (such discretion not to be unreasonably
exercised).
(b) The Utilities Guarantee shall be in the form and text
attached hereto as SCHEDULE 2.5(B), and shall fully guarantee that the annual
pre-tax net revenues deriving from the sale of electricity only to the tenants
of the Portfolio Centers [(including from the Duna Plaza Offices)] and which are
recorded by all the Property Companies and the Direct Property Companies in the
aggregate, after the deduction of direct costs ("UTILITIES REVENUES"), shall be
in a minimum amount equal to E 1.246 million (one million two hundred and forty
six thousand Euro) (the "MINIMUM ANNUAL UTILITIES REVENUES") with respect to
each of the consecutive six calendar years commencing as and from the 4th
anniversary of the Closing Date (the "GUARANTEED YEARS"). The total value of the
Utilities Guarantee shall be in the amount of E 7.476 million (seven million
four hundred and seventy six thousand Euro), which amount shall be reduced as
provided in the Utilities Guarantee.
(c) Purchasers may not exercise the Utilities Guarantee
in respect of any Guaranteed Year unless and until they shall have furnished PCE
with a written demand to execute payment of the Utilities Shortfall in respect
of the relevant Guaranteed Year (which demand shall be accompanied by a copy of
the auditors report referred as provided in the Utilities Guarantee, and PCE
shall have failed to execute such payment within 10 (ten) Business Days of its
receipt of such written demand; and
(d) Buyers undertake to ensure that the Property
Companies and the Direct Property Companies, as well as PCMM following the
exercise of the call option or the put option provided for in the PCMM
Shareholders Agreement, shall act in good faith in determining the margins
between the prices for the bulk acquisition of electricity and the prices for
the re-sale of electricity to the tenants of the Portfolio Centers, and shall
refrain from any act which would deliberately and unreasonably reduce the amount
of the Utilities Revenues (and consequently increase the amount of the Utilities
Shortfall) and thereby unfairly prejudice PCE's payment obligations pursuant to
the provisions of this Section.
14
(e) For the avoidance of doubt, in the event that the
Property Companies and/or the Direct Property Companies shall sell the existing
transformator stations and relay stations to the electricity supplier at any
time during the Guaranteed Years, then and in such event the revenues deriving
from such sales of the transformator stations and relay stations shall be
included in the Utilities Revenues.
2.6 Price Adjustment Escrow Deposit
(a) On or before the Closing Date, Purchasers, PCE and
Magyar Kulkereskedelmi Bank Rt shall execute the Price Adjustment Escrow
Agreement in the form and text attached hereto as SCHEDULE 2.6(A).
(b) The Price Adjustment Escrow Agreement shall provide
for the creation of an escow fund to be held by OVAG in escrow, and which shall
act as security for the repayment to Purchasers of a certain portion of the
Estimated Portfolio Companies Prices (or the Final Definitive Portfolio
Companies Prices following Verification under Section 3.5 below) in the
circumstances provided for in Section 8.2 below.
2.7 Parent Guarantees
(a) On Closing Date, PCE shall cause EMI to furnish
Buyers with the EMI Parent Guarantee in the form and text attached hereto as
SCHEDULE 2.7(A), in terms of which EMI shall guarantee the fulfillment by
Vendors of their obligations and undertakings pursuant to the provisions of this
Agreement and the Ancillary Agreements. The EMI Parent Guarantee shall remain
valid until the fulfillment by the Vendors of all of their payment obligations
under this Agreement and the Ancillary Agreements.
(b) By affixing its signature to this Framework
Agreement, Klepierre hereby unconditionally guarantees the full, prompt, timely
and complete performance by Buyers of all of their undertakings, obligations and
duties in accordance with the terms and conditions of this Agreement and/or the
Ancillary Agreements, and undertake to indemnify Vendors against all losses,
reasonable costs, charges and expenses which they may sustain or incur by reason
of the failure of the Buyers or any of them to perform their obligations and
undertakings in whole or in part, and in a timely manner. Klepierre undertakes
that it shall not avail itself of the rights afforded to it in terms of Article
7-III of the Articles of Association of Segece.
2.8 Excluded Portfolio Centers and Rights of First Offer
(a) It is specifically hereby agreed and understood that
each of the Excluded Centers which are owned by direct and wholly owned
subsidiaries of PCE) are all excluded from the ambit of the Transaction.
(b) With respect to each of the Excluded Centers (as
defined), PCE hereby grants to Purchasers a right of first offer, which remain
valid and binding for a period of 5 (five) years following the Closing Date, in
the event that PCE may consider transferring directly or indirectly the relevant
Excluded Center to an unrelated third party which is not a Group Affiliate of
PCE ("POTENTIAL PURCHASER"). The following provisions shall govern the said
rights of first offer, namely:
15
(i) In the event that PCE shall consider the
transfer of an Excluded Center to a Potential Purchaser, it shall be required to
furnish Purchasers with 60 (sixty) days advance written notice of its intention
to transfer the relevant Excluded Center, and specifying the terms and
conditions upon which it would be agreeable to the sale of the relevant Excluded
Center, and attaching a form of Sale and Purchase Agreement incorporating such
terms and conditions ("NOTICE OF FIRST OFFER").
(ii) Purchasers shall have the right, by not
later than the sixtieth (60th) day following their receipt of the Notice of
First Offer ("OFFER EXPIRY DATE") to accept the offer on the terms and
conditions specified in the Notice of First Offer by written notice to PCE to be
delivered to PCE not later than the close of business (17h00 Amsterdam time) on
the Offer Expiry Date ("ACCEPTANCE NOTICE").
(iii) PCE undertakes to afford Purchasers a
reasonable opportunity to conduct due diligence investigations in respect of the
relevant Excluded Center (and, as the case may be of the Excluded Center Company
or any other relevant company), provided that such investigations are concluded
prior to the Offer Expiry Date.
(iv) Upon receipt of an unconditional Acceptance
Notice, Purchasers and PCE (or its group Affiliate, where relevant) shall
execute the Sale and Purchase Agreement in the form attached to the Notice of
First Offer, and same not later than 10 (ten) Business Days following the date
of receipt of the Acceptance Notice (subject to obtaining the approval of the
Hungarian Competition Office, if required).
(v) In the event that Purchasers decline to
accept the offer, or are deemed to have so declined, then and in such event PCE
shall be free to transfer the relevant Excluded Center to any Potential
Purchaser within a 6 (six) month period following the Offer Expiry Date, under
terms and conditions which shall not be more favorable for the Potential
Purchaser than those offered to Purchasers.
(vi) For the avoidance of doubt:
(1) Failure by Purchasers to deliver
the Acceptance Notice to PCE as
aforesaid shall be deemed to
constitute a refusal by Purchasers
to accept the offer;
(2) Delivery of an Acceptance Notice
which is subject to certain
conditions, or which deviates from
the terms and conditions of the
Notice of First Offer, shall be
also deemed to constitute a refusal
by Purchasers to accept the offer.
(3) Upon receipt of a conditional
Acceptance Notice, or an Acceptance
Notice which deviates from the
terms and conditions specified in
the Notice of First Offer, PCE
shall be entitled, but not obliged,
to conduct negotiations with
Purchasers in good faith with a
view to reaching agreement on the
purchase and sale of the relevant
Excluded Center. If PCE elects to
conduct such negotiations, and if
the parties fail to reach agreement
within a period of 30 (thirty) days
following the date of receipt of
the original Acceptance Notice,
then and in such event the
provisions of Section 2.8(b)(v)
above shall apply.
16
(4) In the event that PCE wishes to
transfer the relevant Excluded
Center to the Potential Purchaser
on terms and conditions which are
more favorable to the Potential
Purchaser than those offered by
Purchasers in their original
Acceptance Notice, then and in such
event PCE shall be obliged to
furnish Purchasers with an amended
Notice of First Offer incorporating
identical terms and conditions
offered by the Potential Purchaser,
and the provisions of this Section
2.8(b) shall apply mutatis mutandis
to such amended Notice of First
Offer; and
(5) In the event that the PCE and any
Potential Purchaser shall fail to
execute definitive agreements for
the purchase and sale of the
relevant Excluded Center within 6
(six) months from the Offer Expiry
Date, as aforesaid, then and in
such event any subsequent sale of
the relevant Excluded Center shall
be subject to the rights of
Purchasers in terms of this
Section.
2.9 Other Excluded Assets
(a) The Transaction which is the subject matter of this
Agreement also specifically excludes: (i) the Duna Plaza Offices, which shall be
separated from the Duna Plaza Shopping Center in the manner and subject to the
terms and provisions of the DPO Interim Agreement as contemplated in Section 8.3
below; (ii) all and any shopping and entertainment centers owned, controlled or
operated by PCE and/or its Affiliates, whether directly or indirectly or whether
wholly or partially, located outside the boundaries of Hungary, including
without limitation: Poland, the Czech Republic, Greece, Latvia and Israel; and
(iii) any other businesses of PCE and its Affiliates in Hungary or elsewhere,
including the "Obuda Project".
2.10 Taxes.
(a) Purchasers shall bear all acquisition or transfer
taxes, if applicable, which are imposed in any jurisdiction by operation of
applicable Law on buyers with respect to the acquisition of the Equity Rights of
the Transaction Companies contemplated in this Agreement.
(b) PCE shall bear all taxes, if applicable, imposed in
any jurisdiction by operation of applicable Law on sellers with respect to the
sale of the Equity Rights of the Transaction Companies contemplated in this
Agreement.
(c) PCE shall bear all income or capital gains taxes
which may be imposed upon it in any jurisdiction by operation of applicable Laws
in respect of the consummation of the Transaction.
2.11 Stamp Duty. Stamp duty related to this Transaction imposed
under applicable Law in Hungary, if any, shall be borne equally by Purchasers,
on the first hand, and PCE and EUN and the second hand. For the avoidance of
doubt, stamp duties which may be imposed upon Purchasers under French Law are
subject to the provisions of Section 2.10(a) above.
17
ARTICLE III - TRANSACTION PRICE AND VERIFICATIONS
3.1 Determination of Estimated Transaction Prices.
(a) On the basis of the Closing Accounts delivered by PCE
to Buyers on or about May 31st, 2004, the Parties have by mutual agreement
determined the Estimated Transaction Prices comprised of: (i) the Estimated
Portfolio Company Prices in respect of each Portfolio Company calculated in
accordance with the Estimated Portfolio Companies Accounts attached as SCHEDULE
3.1(A)(I); and (ii) the Estimated PCM Shares Value calculated in terms of the
Estimated PCMM Accounts attached as SCHEDULE 3.1(A)(II); all as detailed and
specified in the Transaction Price Schedule attached hereto and marked as
SCHEDULE 1.1(BBBB).
(b) The Parties record and declare that the Estimated
Transaction Prices have been determined by mutual agreement in accordance with:
(i) the methodology for the calculation of the Triple Net Rents attached as
SCHEDULE 3.1(B)(I); (ii) the Restated Net Asset Methodology attached as SCHEDULE
3.1(B)(II); and (iii) the Methodology for the Valuation of PCMM attached as
SCHEDULE 3.1(B)(III).
(c) It is specified that, inasmuch as the net asset value
of Zalaegerszeg Plaza Kft. is in the negative, the Parties have agreed that:
(i) the price to be paid at Closing by KLPH to PCE in respect of the acquisition
of the Equity Rights in and to Zalaegerszeg Plaza Kft. shall be fixed at the
nominal amount of E 1.- (one Euro); and (ii) the price to be paid by KLPH to PCE
in consideration for the assignment of the Assigned Shareholder Loans due and
payable by Zalaegerszeg Plaza Kft. to PCE shall be equal to Assigned Shareholder
Loan Amount of such Assigned Shareholder Loans as specified in the Shareholders
Loan Schedule less the amount by which the Estimated Portfolio Companies Price
for Zalaegerszeg Plaza Kft. is negative.
(d) The Transaction Prices Schedule (SCHEDULE 1.1(BBBB))
shall detail and determine (subject to adjustment and verification in terms
of Sections 3.5 and 3.6 below):
(i) the agreed price to be paid by KLPH to PCE
in respect of the acquisition PCE's Equity Rights representing 99.5% in D2 Rt.
and 96.6% in each of the remaining Holding Companies and in each of the Direct
Property Companies;
(ii) the Assigned Shareholder Loan Amount to be
paid by KLPH to PCE and/or its Affiliates in respect of the assignment of the
Assigned Shareholder Loans recorded in the Books and Records of each of the
Holding Companies and the Direct Property Companies in accordance with the
Shareholders Loan Schedule; it being specified, however, that in respect of each
Holding Company and Direct Property Company where Up-Stream Loans exist, part of
the Assigned Shareholder Loan Amount shall be paid by way of set off against the
amount of the Up-Stream Loan Amounts which are to be transferred and assigned by
PCE to KLPH as set forth in Section 2.1(e) above;
(iii) the agreed price to be paid by LP7 to EUN in
respect the acquisition EUN's Equity Rights representing 0.5% in D2 Rt., and
3.4% in each of the remaining Holding Companies;
(iv) the agreed price to be paid by KLPH to
Szeged in respect of the acquisition Szeged's Equity Rights in the Direct
Property Company known as Szeged Plaza Kft.;
18
(v) the Assigned Shareholder Loan Amount to be
paid by KLPH to Szeged in respect of the assignment of the Assigned Shareholder
Loans recorded in the Books and Records of Szeged Plaza Kft, in accordance with
the Shareholders Loan Schedule.;
(vi) the agreed price to be paid by Segece to
PCM-BV in respect of the acquisition of the Acquired PCMM Quota; and
(vii) the Agreed DPO Value.
3.2 Payment of Estimated Portfolio Companies Prices.
(a) At the Closing, on the terms and subject to the
conditions set forth in this Agreement, as full payment for -
(i) the transfer of the entire Equity Rights in
and to the Portfolio Companies by PCE, EUN and Szeged to Purchasers, Purchasers
shall pay to PCE, EUN and Szeged respectively the aggregate total of the
Estimated Portfolio Companies Prices determined in terms of Section 3.1(d)(i),
(iii) and (iv) above and subject to the provisions of Section 3.1(c) above (less
the Agreed DPO Value, which shall be paid by way of set off as set forth in the
DPO Interim Agreement; and
(ii) the assignment of each of the Assigned
Shareholder Loans, Purchasers shall pay to PCE, EUN and Szeged, as the case may
be, the Assigned Shareholder Loan Amounts determined in Section 3.1(d)(ii)
above;
(b) Payment of the Estimated Portfolio Companies Prices
(less the Agreed DPO Value as aforesaid) and the Assigned Shareholder Loan
Amounts (after deduction of the Up-Stream Loans Amounts) shall be effected by
wire transfer of immediately available funds in Euro to such account or accounts
as PCE may direct in its irrevocable payment instructions to be furnished to
KLPH and LP7 at least two Business Days before Closing in terms of Section
7.3(l) below.
3.3 Payment of Estimated PCMM Shares Value.
(a) At the Closing, on the terms and subject to the
conditions set forth in this Agreement, as full payment for the transfer of the
Acquired PCMM Quota by PCM-BV to Segece, Segece shall pay to PCM-BV the full
amount of the Estimated PCMM Shares Value determined in terms of Section 3.1
above;
(b) The following provisions shall govern the status of
the PCMM Up-Stream Loan on and after Closing:
(i) At Closing, PCE shall furnish Segece with
its payment instructions, whereby out of the Estimated PCMM Shares Value, an
amount of E 1,000,000 (one million Euro) will be transferred directly by Segece
to PCMM on behalf of PCE as partial repayment of the PCMM Up-Stream Loan,
following which the outstanding balance of the PCMM Up-Stream Loan will be
approximately E 1,509,000 (one million five hundred and nine thousand Euro)(the
"REDUCED PCMM UP-STREAM LOAN");
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(ii) At Closing, PCE shall, with the consent of
PCMM, assign 50% of the liability to repay the Reduced PCMM Up-Stream Loan in
the amount of approximately E 755,000 (seven hundred and fifty five thousand
Euro) to Segece, in consideration for which PCE shall pay to Segece an
equivalent amount by way of set-off against the Estimated PCMM Shares Value. In
this regard, PCE and Segece shall execute a deed of assignment and substitution
in order to accomplish this assignment, following which the outstanding amount
of the Reduced PCMM Up-Stream Loan due and payable by PCE shall be approximately
E 755,000 (seven hundred and fifty five thousand Euro)(the "REMAINING PCMM
UP-STREAM LOAN");
(iii) Simultaneously, PCE shall assign to PCM-BV
the full amount of the Remaining PCMM Up-Stream Loan in terms of a deed of
assignment and substitution; and
(iv) Following the execution of the steps set
forth in this Section 3.3(b), each of Segece and PCM-BV will be indebted to PCMM
in an amount of approximately E 755,000 (seven hundred and fifty five thousand
Euro), which loans shall bear interest as provided in the PCMM Shareholders
Agreement.:
(c) Subject to the provisions of Section 3.3(b) above,
payment of the Estimated PCMM Shares Value shall be effected by wire transfer of
immediately available funds in Euro to such account or accounts as PCM-BV may
direct in its irrevocable payment instructions to be furnished to Segece by
PCM-BV at least two Business Days before Closing in terms of Section 7.3(m)
below.
3.4 Closing Interest. The Estimated Transaction Prices (less the
Agreed DPO Value, and after deduction of the Up-Stream Loan Amounts to be paid
at Closing shall be paid together with interest calculated at EURIBOR for three
(3) month deposits in Euro applicable on July 1st, 2004, plus 185 base points,
(i) multiplied by the number of days which shall have elapsed between the
Reference Date and the actual Closing Date and (ii) divided by 365.
3.5 Post-Closing Purchase Price Adjustments.
Verification of Estimated Transaction Prices.
(a) Within sixty (60) days following the Closing Date
(such period hereinafter referred to as the "VERIFICATION PERIOD"), the Vendors
will prepare :
(i) the financial statements of each of the
Contract Companies (excluding PCMM) in accordance with Hungarian accounting
standards as at the Reference Date (June 30, 2004) (the "DEFINITIVE PORTFOLIO
COMPANIES ACCOUNTS"); and
(ii) the financial statements of PCMM , in
accordance with Hungarian accounting standards as at the Reference Date (June
30, 2004) (the "DEFINITIVE PCMM ACCOUNTS").
(b) By not later than the last day of the Verification
Period, the external auditors of Vendors (who shall be numbered amongst the "Big
Four") shall carry out and complete an audit of the Definitive Portfolio Company
Accounts and the Definitive PCMM Accounts.
20
(c) On the basis of the Definitive Portfolio Company
Accounts and the Definitive PCMM Accounts, during the Verification Period PCE on
behalf of the Vendors will calculate:
(i) the definitive prices to be paid by KLPH and
LP7 to PCE, EUN and Szeged respectively in respect of each of the Portfolio
Companies based upon the Definitive Portfolio Companies Accounts, in accordance
with the formula set forth in SCHEDULE 3.1(B)(II) (the "DEFINITIVE PORTFOLIO
COMPANIES PRICES" ); and
(ii) the definitive price to be paid by Segece to
PCM-BV in respect of the purchase of the Acquired PCMM Quota, based on the
Definitive PCMM Accounts, in accordance with the formula set forth in SCHEDULE
3.1(B)(III) (the "DEFINITIVE PCMM SHARES VALUE"); and
(iii) the definitive prices to be paid by KLPH to
PCEin respect of each of the Assigned Shareholder Loans, in accordance with the
principles set forth in this Section 3.1 (the "DEFINITIVE ASSIGNED SHAREHOLDER
LOANS PRICES"
(iv) those adjustments which are to be made to
the Estimated Transaction Prices pursuant to the provisions of Section 3.5(o)
below (the "PRICE ADJUSTMENTS").
(d) The Parties shall reasonably cooperate with the
Transaction Accountants during the Verification Period in order to enable the
auditing of the audited Definitive Portfolio Companies Accounts and the audited
Definitive PCMM Accounts.
(e) The reasonable cost of the auditing of the Definitive
Portfolio Companies Accounts and the audited Definitive PCMM Accounts shall be
borne by Buyers.
Review of Definitive Accounts.
(f) The Buyers Accountants will have forty-five days as
from the expiration of Verification Period (the "REVIEW PERIOD") to review the
Definitive Portfolio Companies Accounts, the Definitive PCMM Accounts, the
Definitive Portfolio Companies Prices, the Definitive PCMM Share Value, the
Definitive Shareholder Loan Prices and the Price Adjustments (collectively the
"DEFINITIVE CLOSING ACCOUNTS"). Vendors shall reasonably cooperate with Buyers
and/or Buyers' Accountants in order to enable Buyers' Accountants to perform the
review of the Definitive Closing Accounts.
(g) If Buyers believe that any changes are required to be
made to the Definitive Closing Accounts or any of them (including but not
limited to changes based on differences between the Definitive Closing Accounts
and the results of the Review) (an "UNCERTAINTY"), Buyers shall but not later
than the last day of the Review Period give written notice to Vendors (a
"DISPUTE NOTICE") of any such proposed change or Uncertainty, describing the
change or Uncertainty and the basis for the change or Uncertainty in reasonable
detail. The Definitive Closing Accounts shall be binding and conclusive upon,
and deemed accepted by, Buyers unless Buyers shall have delivered a Dispute
Notice to Vendors prior to the conclusion of the Review Period in terms of this
section.
Verification Disputes
21
(h) Any difference of opinion between the Parties and/or
between the Transaction Accountants and Buyers' Accountants pertaining to the
preparation, verification and review of the Definitive Closing Accounts with
regard to any item contained therein ("VERIFICATION DISPUTES") which cannot be
promptly and amicably resolved by mutual agreement within 14 (fourteen) days of
the expiry of the Review Period (or such longer period as shall be mutually
agreed), shall be referred to an internationally reputable firm of auditors, who
shall act in the capacity of third party experts (and not arbitrators) (the
"CLOSING EXPERTS"). If the Parties are unable to agree upon the identity of the
Closing Experts within 14 days of a request by either party to do so, then and
in such event each Party shall have the right to request the President for the
time being of the Commercial Court in the Hague to proceed to the appointment of
the Closing Expert (preferably from amongst the "Big Four" international
accounting firms, provided that the Closing Exeprt shall not act as the external
auditors of any of the Parties to this Agreement, nor to any of the Contract
Companies.
(i) The Closing Expert will be instructed to select, in
its discretion, the individuals within its organization who will have primary
responsibility for this matter and to reach a determination within twenty-one
(21) days from the date of referral. The Closing Expert shall be required, if so
requested by either party, to allow both Parties an opportunity to give
explanations and/or to provide documentation in support of the position adopted
by the respective Parties regarding the Dispute.
(j) The decision of the Closing Expert will be final and
binding upon the Parties, and, in the absence of manifest error or fraud, shall
not be subject to appeal. The Definitive Closing Accounts shall be adjusted by
the Parties in order to reflect the decision of the Closing Expert.
(k) The reasonable fees, and the expenses and
disbursements, of the Closing Expert shall be paid one-half by Vendors and
one-half by Buyers, unless otherwise determined by the Closing Experts.
(l) Notwithstanding the provisions of Section 14.3 below
(Dispute Resolution) below and the provisions of applicable Law determined in
terms of Section 14.2 below (Governing Law), the procedures for the adjudication
of Verification Disputes as provided for in this Section shall not be governed
by the provisions of any applicable arbitration laws now in effect or as
hereafter amended, or any subsequent legislation replacing or supplanting same,
and for this purpose the Closing Expert shall be deemed to be an expert and not
an arbitrator.
(m) By executing this Agreement, the Parties hereto shall
be deemed to have furnished the Closing Expert with instructions and with a
mandate to fulfill the duties specified in this Section. In the event, however,
that additional instructions or directions are required to be given to the
Closing Expert, the Parties undertake to co-operate and to act reasonably in
order to facilitate the resolution of any Verification Dispute.
Final Definitive Closing Accounts.
(n) The audited Closing Definitive Accounts shall become
final with respect to all or any portion thereof, and binding upon the Parties
hereto upon the earlier of (i) the failure by Buyers to object to all or any
portion thereof within the period specified under Section 3.5(f) above; (ii) an
agreement between Buyers and Vendors with respect thereto; or (iii) the decision
by the Closing Expert with respect to any disputed matters pursuant to Section
3.5(i) above. The audited Definitive Closing Accounts, as adjusted pursuant to
22
the agreement of Buyers and Vendors or the decision of the Closing Expert as
aforesaid, upon becoming final and binding pursuant to this Section 3.5(n),
shall be referred to herein as the "FINAL DEFINITIVE CLOSING ACCOUNTS".
Transaction Price Adjustments.
(o) In the event and to the extent that:
(i) the Final Definitive Portfolio Companies
Prices of all the Portfolio Companies in the aggregate exceed the Estimated
Portfolio Companies Prices of all the Portfolio Companies, then and in such
event the amounts paid to PCE, EUN, and Szeged, as the case may be, at the
Closing shall be increased on a Euro-for-Euro basis by an amount (the "PCE&CO
INCREASE AMOUNT") equal to the amount by which the Final Definitive Portfolio
Companies prices as reflected in the Final Definitive Closing Accounts is
greater than the Estimated Portfolio Companies Prices for all the Portfolio
Companies.
(ii) the Final Definitive PCMM Shares Value
exceeds the Estimated PCMM Shares Value, then and in such event the amount paid
to PCM-BV at the Closing shall be increased on a Euro-for-Euro basis by an
amount (the "PCM INCREASE AMOUNT") equal to the amount by which the Final
Definitive PCMM Shares Value as reflected in the Final Definitive Closing
Accounts is greater than the Estimated PCMM Shares Value.
(iii) the Final Definitive Assigned Shareholder
Loans Prices of all the Contract Companies in the aggregate exceed the Assigned
Shareholder Loan Amounts of all the Contract Companies, then and in such event
the amounts paid to PCE at the Closing shall be increased on a Euro-for-Euro
basis by an amount (the " SHAREHOLDER LOANS INCREASE AMOUNT") equal to the
amount by which the aggregate amount of the Final Definitive Assigned
Shareholder Loans Prices is greater than the aggregate amount of the Assigned
Shareholder Loan Amounts for all the Portfolio Companies.
(p) In the event that in terms of the Definitive Closing
Accounts, a negative value results for any Portfolio Company, then and in such
event the provisions of Section 3.13.1(c) shall be applied, mutatis mutandis.
(q) However, in the event and to the extent that:
(i) the Final Definitive Portfolio Companies
Prices of all the Portfolio Companies in the aggregate are less than the
aggregate of the Estimated Portfolio Companies Prices of all the Portfolio
Companies, then and in such event the amount paid to PCE EUN, and Szeged, as the
case may be at the Closing shall be decreased on a Euro-for-Euro basis by an
amount (the "PURCHASERS DECREASE AMOUNT") equal to the amount by which the
aggregate Estimated Portfolio Companies Prices for all the Portfolio Companies
exceeds the Final Definitive Portfolio Companies Prices as reflected in the
Final Definitive Closing Accounts.
(ii) the Final Definitive PCMM Shares Value is
less than the Estimated PCMM Shares Value, then and in such event the amount
paid to PCM-BV at the Closing shall be decreased on a Euro-for-Euro basis by an
amount (the "SEGECE DECREASE AMOUNT") equal to the amount by which the
23
Estimated PCMM Shares Value is greater than the Final Definitive PCMM Shares
Value as reflected in the Final Definitive Closing Accounts.
(iii) the Final Definitive Assigned Shareholder
Loans Prices of all the Contract Companies in the aggregate is less than the
aggregate of Assigned Shareholder Loan Amounts of all the Contract Companies,
then and in such event the amounts paid to PCE at the Closing shall be decreased
on a Euro-for-Euro basis by an amount (the "SHAREHOLDER LOANS DECREASE AMOUNT")
equal to the amount by which the aggregate amount of the Assigned Shareholder
Loan Amounts for all the Portfolio Companies is greater than the aggregate
amount of the Final Definitive Assigned Shareholder Loans Prices.
Method of Transaction Price Adjustments.
(r) All adjustment payments which are required to be made
pursuant to the aforegoing provisions will:
(i) be executed within 10 (ten) Business Days of
later of: (A) the expiry of the Review Period; or (B) the date upon which the
Closing Expert shall have rendered its opinion on any Verification Dispute
referred to it in terms of Section 3.6(h) above; and
(ii) be payable to the Party entitled to receive
same in immediately available funds to such banking account(s) as the party
entitled to receive such payment shall designate from time to time.
(iii) bear interest thereon at the rate of EURIBOR
for 3 month deposits in Euro plus 185 base points, accruing from the Reference
Date to the actual date of payment.
Interim Price Adjustments.
(s) The Parties hereby record that it is their express
understanding and intention that the payment of all undisputed amounts set forth
in the Definitive Closing Accounts that have become final and binding pursuant
to Section 3.5(n) above shall not be contingent upon the resolution of any
disputed amounts specified in a Dispute Notice which are referred to the Closing
Expert for adjudication as contemplated in Section 3.5 above.
3.6 Special Agreed Price Adjustments. Without derogating from the
provisions of Section 3.5 above, and in addition thereto, the Parties have
agreed that the following special price adjustments may be carried out in the
circumstances and on the conditions set forth hereunder:
(a) Szeged Land Use Rights:
(i) The Parties record that the area of land
adjacent to the Szeged Plaza Portfolio Center, which is currently used as an
external parking lot, is owned by the Municipality of Szeged but is used by
Szeged Plaza Kft. under a Rights of Use Agreement concluded with the
Municipality for 50 years commencing in 1999;
24
(ii) PCE and Szeged undertake to procure that the
Municipality of Szeged will extend the validity of the said Rights of Use
Agreement for an additional 50 years (for a total of 100 years) by not later
than a date 6 (six) months following the Closing Date;
(iii) In the event that PCE and/or Szeged are
unable to procure the extension of the validity of the Rights of Use Agreement
as aforesaid, then and in such event the Parties have agreed that the Final
Definitive Portfolio Company Price in respect of Szeged Plaza Kft. only shall be
reduced by an amount of E300,000 (three hundred thousand Euro), which shall be
paid by or on behalf of Szeged to KLPH within 5 (five) Business Days of its
receipt of a written demand to do so.
(iv) As security for the execution of the price
adjustment provided for in this Section 3.6(a), Vendors shall furnish to KLPH
the special indemnity provided for in Section 12.6(a) below.
(b) Surface Area Discrepancies (Duna Plaza and Gyor
Plaza).
(i) The Parties record that no "as made" or "as
built" drawings have been prepared in respect of the Duna Plaza Portfolio Center
and the Gyor Plaza Portfolio Center. Vendors undertake to ensure that detailed
"as-made" drawings are prepared in respect of these two Portfolio Centers by not
later than December 31st, 2004, at their sole cost and expense.
(ii) In the event of a discrepancy (a "SURFACE
AREA DISCREPANCY") between (a) the actual surface area of the leaseable areas as
reflected in the "as-made" drawings; and (b) the surface areas specified in the
Schedule of Leases or actually charged; which does not exceed 2% (two percent)
(a "PERMITTED SURFACE AREA DISCREPANCY"), then in such event no price
adjustments shall be carried out.
(iii) In the event however that a Surface Area
Discrepancy (higher or lower) is discovered which exceeds the Permitted Surface
Area Discrepancy (an "EXCESS SURFACE AREA DISCREPANCY"), then and in such event
the value of the relevant Portfolio Center shall be re-calculated to the extent
of such Excess Surface Area Discrepancy in accordance with the methodology set
forth in SCHEDULE SCHEDULE 3.13.1(A)(I), and thereafter the corresponding
Definitive Portfolio Company Price of that Property Company (and the Definitive
Assigned Shareholder Loan Price, should such Definitive Portfolio Company Price
become negative) shall be re-determined accordingly;
(iv) The price adjustments to be carried out in
terms of this Section shall be paid within 20 (twenty) Business Days following
the preparation and presentation of the "as-made" drawings to Purchasers
(v) In this regard, Vendors have furnished
Purchasers with a specific indemnity as provided for in Section 12.6(b) below.
(c) Anchor Tenant Price Adjustments. SCHEDULE (C)
attached hereto sets out the methodologies and amounts of certain agreed price
adjustments which are to be made following the Closing regarding a certain major
anchor tenant, all as detailed and specified therein.
25
3.7 Duna Plaza Extension Price. The price due and payable in
respect of the construction and completion of the Duna Plaza Extension shall be
calculated and paid separately in terms of the provisions of Section 8.3 below.
3.8 Special Provisions relating to Duna Plaza Offices. The agreed
value of the Duna Plaza Offices has been determined by the Parties at the
Closing in the amount of E3,000,000 (three million Euro), which amount isd
specified in the Transaction Prices Schedule ("AGREED DPO VALUE"). The Agreed
DPO Value shall not be paid by Purchasers to PCE at the Closing, but shall
remain an amount due (without bearing any interest) by Purchasers to PCE in
terms of the relevant Equity Rights Transfer Agreements to be executed at
Closing. However, Purchasers, Klepierre and PCE have agreed further that the
payment of the Agreed DPO Value shall be effected by way of set-off in terms of
the provisions of the DPO Interim Agreement.
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF VENDORS
Subject to such exceptions as are specifically disclosed in the
disclosure letter (each exception referencing the corresponding representation
and warranties section number to which it applies) supplied by Vendors to Buyers
(the "VENDORS' DISCLOSURE SCHEDULE") which is attached hereto as SCHEDULE 4.0,
and which shall not be modified after the date hereof, the Vendors acting
jointly and severally hereby represent and warrant to Buyers that the statements
contained in this Article IV are true and correct and not misleading as of the
date of this Agreement and will be true and correct and not misleading as of the
Closing Date (as though made at the Closing Date); provided, that the
representations and warranties made as of a specified date will be true and
correct as of such date.
Representations and Warranties applicable to Vendors
4.1 Organization, Qualification, and Corporate Power
Each of the Vendors:
(a) is a corporation duly organized, validly existing,
and in good standing (to the extent to which the concept of good standing exists
in the relevant jurisdiction) under the laws of the Kingdom of The Netherlands
with respect to PCE, EUN and PCM-BV and under the laws of Hungary with respect
to Szeged;
(b) is duly authorized to conduct its respective
businesses and is in good standing (to the extent to which the concept of good
standing exists in the relevant jurisdiction) under the laws of each other
jurisdiction where such qualification is required for the conduct of such
businesses and in which the failure to so qualify is reasonably likely to have a
materially adverse effect on Vendors or any of them;
(c) is duly qualified or otherwise authorized to transact
business and is in good standing (to the extent the concept of good standing
exists in the relevant jurisdiction) in each jurisdiction in which such
qualification or authorization is required by applicable Laws; and
(d) has full corporate power and authority to carry on
its respective businesses and to own and use its respective assets.
26
4.2 Authorization Each of the Vendors has full power and authority
to enter into, execute and deliver this Agreement and all Ancillary Agreements
to which it is a party, and, to consummate the transactions contemplated
hereunder and to perform its obligations hereunder, including, without
limitation, the sale and transfer of Equity Rights in and to the Transaction
Companies and no further actions on the part of Vendors or any of them are
necessary to authorize the execution, delivery and performance of this Agreement
and the Ancillary Agreements to which Vendors are parties or, in the case of the
Ancillary Agreements, do not require such approval. This Agreement and the
Ancillary Agreements to which Vendors are parties and the transactions
contemplated hereby and thereby have been approved by the affirmative vote of
the respective Boards of Directors of each of the Vendors (and, where required,
their Affiliates, including EMI). This Agreement and the Ancillary Agreements to
which Vendors are parties have been duly and validly executed and constitute the
valid and legally binding obligations of each of the Vendors, enforceable
against the Vendors in accordance with their respective terms and conditions.
4.3 No Conflicts Neither the execution and the delivery of this
Agreement and the Ancillary Agreements by the Vendors nor the consummation of
the Transaction will:
(a) violate any constitution, Law, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Vendors or the Contract Companies are
subject;
(b) violate or conflict with any provision of the
respective Articles of Incorporation, bylaws or organizational documents of the
Vendors or the Contract Companies; or
(c) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice or consent
under, any agreement, contract, lease, license, instrument, franchise, permit,
mortgage, indenture or other arrangement to which any of the Vendors or the
Contract Companies are a party or by which it is bound or to which any of its
assets are subject (or result in the imposition of any Lien upon any of their
respective assets); or
(d) result in the imposition or creation of a Lien upon
or with respect to the Equity Rights of the Contract Companies.
4.4 Consents. No consent, waiver, approval, order, license,
permit, certificates, filing or authorization of, or registration, declaration
or filing with, any Governmental Body or any third party, including a party to
any agreement with Vendors or any of them, is required by or with respect to
Vendors in connection with the execution and delivery of this Agreement or the
consummation of the Transaction (or, if so required have been obtained), except
for the Transaction Approvals referred to in Section 7.2 below.
Representations and Warranties applicable to the Contract Companies
4.5 Capitalization. The authorized, issued and outstanding capital
stock of each of the Contract Companies is as set forth in the Rights
Acquisition Schedule. Except as set forth in the Portfolio Liabilities Schedule,
or as mandated under applicable Hungarian Law, there are no outstanding
securities convertible into or exchangeable for quotas or shares in any of the
Contract Companies, nor there are any outstanding options, rights, preemptive or
otherwise, or similar right or other right, contract, agreement, commitment or
27
understanding of any kind or warrants to purchase or to subscribe for any quotas
or shares of such stock or other securities of the Contract Companies, or
obligating any of the Contract Companies to issue any additional shares or
quotas of capital stock. The issued and outstanding quotas and shares of the
Contract Companies are held by the quotaholders or shareholders listed in the
Rights Acquisition Schedule, and in the amounts set forth.
4.6 Validity of Quotas and Shares. The quotas and shares of the
Contract Companies have all been validly issued, are fully paid up and
non-assessable, and free of any liens or encumbrances save in respect of the
Financing Bank Securities, and have been issued in compliance with all
applicable Laws and in accordance with the relevant Articles of Association.
4.7 Articles of Association and Constitutive Documents. The copies
of the Articles of Association and other constitutive documents of each of the
Contract Companies which have been furnished to Buyers within the framework of
Buyers' due diligence investigations are true and accurate copies thereof, and
that same have not been amended or modified except as disclosed in writing to
Buyers, but subject to the provisions of Section 8.1 below (Post Closing
Mergers).
4.8 Legal Title.
(a) At Closing, PCE and EUN are the beneficial and the
owner of record of, and have good, valid and marketable title in and to, all of
the shares and quotas (100%) of the Portfolio Companies, which are to be
acquired by Purchasers pursuant to the provisions of this Agreement, free and
clear of all Liens save in respect of Financing Bank Securities;
(b) At Closing, Szeged is the beneficial and the owner of
record of, and has good, valid and marketable title in and to, all of the quota
(100%) of Szeged Plaza Kft., which are to be acquired by KLPH pursuant to the
provisions of this Agreement, free and clear of all Liens save in respect of
Financing Bank Securities;
(c) PCM-BV is the beneficial and owner of record of, and
has good, valid and marketable title in and to, the entire quota of the PCMM,
including the Acquired PCMM Quota which is to be acquired by Segece pursuant to
the provisions of this Agreement, free and clear of all Liens.
(d) At Closing, each of the Holding Companies is the
beneficial and owner of record of, and has good, valid and marketable title in
and to, all of the shares and/or quota (as the case may be) of the relevant
Property Company recorded opposite its name in the Rights Acquisition Schedule,
free and clear of all Liens (save in respect of Financing Bank Securities; and
(e) Except for the Holding Companies as set forth above,
and save in respect of the Post Closing Merger Procedures referred to in
Section 8.1 below, none of the Contract Companies owns or has any right to
acquire, directly or indirectly, any outstanding capital stock of, or other
equity interest in, any Person; and
(f) All easements which constitute Permitted Liens are
not violated by the current use or occupancy of the Portfolio Centers, or the
operation of Contract Companies as currently conducted thereon.
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4.9 Transferability. The quotas and shares of the Transaction
Companies are not subject to any restrictions with respect to their
transferability, save as determined in terms of the Financing Bank Securities
applicable to the Assumed Financing Loans, and save as mandated under applicable
Hungarian Law.
4.10 Assigned Shareholders' Loans and Up-Stream Loans. (a) The
Shareholder Loan Schedule sets forth all of the Assigned Shareholder Loans due
by the Contract Companies to PCE and/or EUN and/or PCM-BV and/or their
Affiliates as at the Reference Date. All the Assigned Shareholder Loans: (i) are
recorded in the books of account of the relevant Contract Companies as being an
Indebtedness due and payable to PCE and/or EUN or to their Affiliates; (ii) have
been properly reported to and/or recorded with the Central Bank of Hungary (MNB)
in compliance with all applicable Laws and regulations, if necessary; (iii) are
valid binding and enforceable in accordance with their terms, and free from any
Lien (except for Financing Bank Securities), (iv) are capable of repayment in
Euro currency in accordance with their respective terms and conditions without
restriction, save in respect of the sub-ordination rights of the Financing Banks
under the Financing Bank Securities; (v) are capable of assignment and transfer
to Purchasers (or - in respect of PCMM only - to Segece) as contemplated in this
Agreement; and (vi) none of the Assigned Shareholder Loans have been repaid in
whole or in part, or increased, nor has any interest thereon been paid, since
the Reference Date.
(b) The Shareholder Loan Schedule also sets forth all of
the Up-Stream Loans loans owed to the Contract Companies by PCE and/or EUN
and/or PCM-BV and/or their Affiliates as at the Reference Date. All the
Up-Stream Loans: (i) are recorded in the books of account of the relevant
Contract Companies as being an asset due and payable by PCE and/or EUN and/or
their Affiliates; (ii) have been properly reported to and/or recorded with the
Central Bank of Hungary (MNB) in compliance with all applicable Laws and
regulations (including any credit facilities covenants), if necessary; (iii) are
valid binding and enforceable in accordance with their terms, and free from any
Lien (except for Financing Bank Securities), (iv) are capable of repayment in
Euro currency in accordance with their respective terms and conditions without
restriction; (v) are capable of transfer to Purchasers as contemplated in this
Agreement; and (vi) none of the Up-Stream Loans have been repaid in whole or in
part, or increased, nor has any interest thereon been paid, since the Reference
Date.
(c) The PCMM Up-Stream Loan is the only up-stream loan
which is due and owing by PCE and its Affiliates to PCMM. The representations
set forth in Section 4.10(b) above apply mutatis mutandis and in all respects to
the PCMM Up-Stream Loan.
4.11 Financing Loan Facilities.
(i) Subject to obtaining the Waivers and
Consents of the Financing Banks as specified in Section 7.2(a)(ii) below, the
Transactions shall not give rise to any breach of any obligation, undertaking or
covenant of the Contract Companies under the Financing Loan Facilities, nor
shall any Event of Default or other adverse event occur under the Financing Loan
Facilities as a result thereof;
(ii) The Contract Companies have not and are not
currently in breach of any obligation, undertaking or covenant of the Contract
Companies under the Financing Loan Facilities which gives rise to an Eent of
Default or adverse effect (or any fact or circumstance which could give rise to
an Event of Default or adverse effect) under the Financing Loan Facilities which
remains outstanding;
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(iii) The next regularly scheduled payment date
under the Financing Loan Facilities is set forth in Portfolio Liability Schedule
(the "PREPAYMENT DATE") and upon such date, that total amount of all outstanding
principal, interest and prepayment fees under each of Financing Loan Facilities,
should the relevant borrower decide to prepay, shall be as set forth in the
Waiver and Consent of the Financing Banks attached as SCHEDULE 7.2(A)(II)
(collectively, the "PREPAYMENT AMOUNTS"), and no other fees, costs, penalties
losses (including "breakage costs") and/or other amounts shall be due in
connection with the prepayment of such loan on the Prepayment Date;
(iv) Subject at all times to the provisions of
the relevant Loan Facility Agreements, upon prior written notice of the relevant
borrower that it intends to prepay its Financing Loan Facility, the relevant
borrower shall be entitled to prepay such loan on the Prepayment Date; and
(v) No side letters, addenda or other documents
exist which have not already been disclosed to Buyers and which may affect the
obligations of the borrowers and/or their ability to execute repayment on the
Prepayment Date and/or the Prepayment Amounts, or the cost of, the repayment of
the Financing Loan Facilities on the Prepayments Date.
4.12 Financial Statements. Attached as SCHEDULE 4.12 are the
financial statements of each of the Contract Companies, which have been audited
or reviewed, for the fiscal periods ended June 30, 2003 (reviewed), December 31,
2003 (audited) and June 30, 2004 (reviewed) (the "FINANCIAL STATEMENTS"). The
Financial Statements (including the note thereto) have been prepared in
accordance with Hungarian accounting standards applied on a basis consistent
throughout the periods covered thereby, present fairly the financial condition
of the relevant Contract Companies as of such date and the result of operations
of the relevant Contract Companies for such periods, are correct and complete,
and are consistent with the Books and Records of the relevant Contract
Companies. The Estimated Portfolio Company Prices and the Estimated PCMM Shares
Value have been prepared in good faith and in accordance with Hungarian
accounting standards.
4.13 Undisclosed Liabilities. None of the Contract Companies has
any Liability, Indebtedness, obligation, expense, claim, deficiency, guaranty or
endorsement of any type (whether asserted or unasserted, whether absolute or
contingent, whether accrued or un-accrued, whether liquidated or un-liquidated,
and whether due or to become due), except for those set forth on the face of the
Final Definitive Closing Accounts (rather than in any notes thereto) and those
which have arisen after the Reference Date in the ordinary course of business
(none of which results from or relates to a breach of contract, breach of
warranty, tort or violation of law).
4.14 Events Subsequent to Most Recent Fiscal Period End. Other than
in the ordinary course of business and consistent with past practise, sine the
Reference Date there has not been any material adverse change in the business,
operations, assets (including intangible assets), liabilities (contingent or
otherwise), results of operations or financial performance, or condition
(financial or otherwise) of the Contract Companies. Without limiting the
generality of the foregoing, since that date:
(a) Neither Vendors nor any of the Contract Companies
have sold, pledged, leased, transferred, or assigned any of the Purchased
Assets, tangible or intangible, used or held for use in, or necessary for the
continued conduct of, the Businesses outside the ordinary course of business;
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(b) Neither Vendors nor any of the Contract Companies
have entered into, assumed or become bound under or obligated by any agreement,
contract, lease or commitment (collectively a "CONTRACT") or extended or
modified the terms of any Contract related to the Businesses or the Purchased
Assets which (i) involves the payment by the Contract Companies or any of them
of greater than E 10,000 per annum or which extends for more than one (1) year,
(ii) involves any payment or obligation to any Affiliate of Vendors other than
in the ordinary course of business, or (iii) involves the sale of any material
assets;
(c) Save as otherwise notified in writing to Buyers and
with their approval and consent, and save in respect of prepayment notices sent
to the Financing Banks with the consent and approval of Purchasers, no party
(including Vendors and the Contract Companies) has accelerated, terminated, made
modifications to, or canceled (or advised or been advised of an intention to
cancel) any agreement, contract, lease, or license of a material nature related
to the Businesses or the Purchased Assets to which Vendors or any of the
Contract Companies is a party or by which they are bound, nor have they
modified, canceled or waived or settled any material debts or claims held by
them related to the Business or the Purchased Assets, outside the ordinary
course of business, or waived or settled any rights or claims of a substantial
value related to the Businesses or the Purchased Assets, whether or not in the
ordinary course of business;
(d) none of the Purchased Assets, tangible or intangible,
has become subject to any Lien (excluding Permitted Liens);
(e) Neither Vendors nor any of the Contract Companies
have made any capital expenditures related to the Businesses or the Purchased
Assets except in the ordinary course of business and/or not exceeding E 10,000
in the aggregate of all such capital expenditures;
(f) Neither Vendors nor any of the Contract Companies
have created, incurred, assumed, prepaid or guaranteed any indebtedness for
borrowed money and capitalized lease obligations, or extended or modified any
existing Indebtedness related to the Businesses or the Purchased Assets;
(g) Neither Vendors nor any of the Contract Companies
have granted any license or sublicense of any rights under or with respect to
any intellectual property related to the Businesses or the Purchased Assets,
including specifically with respect to the trademark which is the subject matter
of the Trademark License Agreement;
(h) Neither Vendors nor any of the Contract Companies
have experienced any damage, destruction, or loss (whether or not covered by
insurance) to the Purchased Assets in excess of E 10,000 in the aggregate of all
such damage, destruction and losses;
(i) Neither Vendors nor any of the Contract Companies
have entered into any employment contract (other than a standard contract
involving non-management personnel, and other than as a result of the conversion
of the Mandate Agreements referred to in Section 8.5(f) into labour contracts)
or collective bargaining agreement, made any other change in employment terms
for any key-personnel Employees, or adopted any bonus, profit-sharing,
incentive, severance, or other plan, contract, or commitment for the benefit of
any Employees;
(j) Neither Vendors nor any of the Contract Companies
have changed any of the accounting principles or methods followed by the
Businesses or the method of applying such principles;
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(k) Neither Vendors nor any of the Contract Companies
have entered into any agreement, contract or commitment limiting the freedom of
the Contract Companies to engage in the Businesses or to compete with any
person, save as provided in Section 8.6 below;
(l) Neither Vendors nor any of the Contract Companies
have entered into any transaction related to or in connection with the Business
or the Purchased Assets other than in the ordinary course of business;
(m) Neither Vendors nor any of the Contract Companies
have made any distribution of dividends or made any other contractual payment to
their direct or indirect Affiliates (including repayment of Assigned Shareholder
Loans (it being specifically declared that the representation and warranty
contained in this sub-section shall not be subject to qualifications of business
conducted in the ordinary course and consistent with past practice); and
(n) Neither Vendors nor any of the Contract Companies
have become obligated to do any of the foregoing.
4.15 Legal Compliance. The Businesses are being conducted and all
of the Contract Companies are in compliance with all applicable Laws (including
without limitation rules, regulations, codes, plans, injunctions, judgments,
orders, extension orders, decrees, rulings, and charges). Except as set forth in
the Proceedings Schedule (SCHEDULE 4.15) no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, demand, notice or inquiry is pending,
or to the Knowledge of Vendors, is threatened against Vendors or any of the
Contract Companies by any Governmental Body alleging any failure to so comply.
The Contract Companies have all Permits and qualifications that are necessary
for the conduct of the Businesses and/or the ownership and operation of the
Purchased Assets.
4.16 Tax Matters.
(a) For purposes of this Agreement, "TAX" or,
collectively, "TAXES", means any taxes income, stamp severance, customs duties,
franchise, withholding social security, value added tax, and any other type of
tax of any kind whatsoever (including but not limited to: Corporate Income Tax,
Value Added Tax, Local Business Tax, Personal Tax) in respect of the Contract
Companies and/or the Businesses and/or the Purchased Assets.
(b) Each of the Contract Companies has filed all
declaration, form, claim statements ("TAX RETURN") that it was required to file
for any type of Tax under applicable laws, regulations and case law. All such
Tax Returns, including those which review is still pending at the time of the
signature of this agreement, or those which were only partially submitted for
review, were correct and complete in all respects and have been prepared in
strict and substantial compliance with all applicable laws and regulations.
There are no Liens upon any property or assets of the Contract Companies
relating to or attributable to Taxes.
The Contract Companies have withheld and paid all Taxes
required to have been withheld and paid in connection with any amounts paid or
owing to any employee independent contractor, creditor, stockholder, or other
third party.
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(c) The provisions made in the Final Definitive Closing
Accounts are sufficient in order to cover any Tax payment pertaining to the time
period elapsed [on June 30, 2004].
(d) There are no audits or investigations by any Tax
authority of any Contract Company currently in progress.
(e) No Contract Company is party to any tax sharing
agreement or similar agreement or arrangement (evidenced in writing or
otherwise) pursuant to which it will have any obligation to make any payments in
respect of Taxes after the Closing Date.
(f) None of the Contract Companies benefits from or has
benefited from or has claimed to benefit from any Tax benefits or from an
optional Tax regime (other than a Tax benefit, election, deduction, credit or
treatment which is generally available to Tax payers under the Tax laws of the
Tax jurisdiction in question), except as a result of the Post-Closing Merger
Procedures referred to in Section 8.1 below. None of the Contract Companies has
taken any action which triggers a disallowance of any Tax benefits or optional
Tax regime or other undertaking with respect to Tax.
(g) None of the Contract Companies benefit from Tax aids
or from Tax subsidies or Tax exemptions not generally available to other similar
Tax payers in such Tax jurisdiction and no undertaking or commitment has been
entered into by the Contract Companies in connection with any such Tax aids or
Tax subsidies, and no Tax aids or Tax subsidies which have been granted to any
of the Companies is required to be refunded. None of the Contract Companies will
incur any Taxes or lose its right to any Tax benefits by the reason of the
consummation of the transactions contemplated by this Agreement.
(h) The Contract Companies have satisfied their
obligations regarding the conservation of documents and hold (or have access to)
all appropriate documents which could be required by the relevant authorities
for the non-prescribed periods in respect of the Tax Returns submitted.
(i) To the Knowledge of Vendors, there is no basis for
the assertion of any claim relating or attributable to Taxes which, if adversely
determined, would result in any Lien upon any Purchased Assets if unpaid by due
date.
4.17 Title of Properties; Absence of Liens and Encumbrances;
Condition of Equipment (a) Each of the Property Companies and the Direct
Property Companies has good, valid and marketable title to the respective
Portfolio Centers recorded opposite their respective names in the Property
Schedule, free and clear of all objection, adverse possession, Liens and other
encumbrances other than Permitted Liens, and each of the Contract Companies has
good, valid and marketable title to all other Purchased Assets, free and clear
of all objection, adverse possession, Liens and other encumbrances other than
Permitted Liens.
(b) Each of the Property Companies and the Direct
Property Companies has good and valid title to, or, in the case of leased
properties and assets, valid leasehold interests in, the relevant respective
Purchased Assets owned by it (as specified in the Property Schedule), free and
clear of any Liens, save for Permitted Liens. The Purchased Assets are not
subject to expropriation or seizure as at the Closing Date.
(c) Each material item of equipment owned or leased by
the Property Companies and the Direct Property Companies and included in the
Purchased Assets is (i) adequate for the conduct of the
33
Businesses as currently conducted, and (ii) in good operating condition,
regularly and properly maintained, subject to normal wear and tear (subject to
recognized capital expenditures which have been taken into account in
determining the relevant Estimated Portfolio Company Prices). Upon the transfer
of moveable assets and chattels to PCMM as set forth in Section 8.9, each
material item of equipment (including computers and softwares) owned by PCMM
shall be (i) adequate for the conduct of its Businesses as currently conducted,
and (ii) in good operating condition, regularly and properly maintained, subject
to normal wear and tear.
(d) Each of the Property Companies and the Direct
Property Companies, and PCMM, own, free and clear of any Liens, all tenant
lists, customer contact information, customer correspondence and customer lease
histories relating to their respective Portfolio Centers. Other than PCE, PCMM,
the relevant Property Company, the relevant Direct Property Company and the
tenant to which such information relates, no person possesses any claims or
rights with respect to use of the information.
4.18 Portfolio Centers.
(a) The Portfolio Centers comprise all of the real
property used or intended to be used in, or otherwise related to, the
Businesses; and, except as set forth in Vendors Disclosure Schedule (SCHEDULE
4.0) none of the Contract Companies is a party to any agreement or option to
purchase (including preference right) any real property or interest therein.
(b) Subject to recognized capital expenditures which have
been taken into account in determining the relevant Estimated Portfolio Company
Prices, all Portfolio Centers, and all buildings, structures, fixtures, building
systems and equipment, and all components thereof, included in the Portfolio
Centers (the "IMPROVEMENTS") are in good condition and repair and sufficient for
the operation of Businesses. There are no structural deficiencies or latent
defects, affecting any of the Portfolio Centers and/or any of the Improvements
and there are no facts or conditions affecting any of the Portfolio Centers or
Improvements which would, individually or in the aggregate, interfere in any
respect with the use or occupancy of the Portfolio Centers or Improvements or
any portion thereof in the operation of Businesses as currently conducted
thereon.
(c) There is no condemnation, expropriation or other
proceeding in eminent domain, pending or threatened, affecting any parcel of the
Portfolio Centers or any portion thereof or interest therein. Save as specified
in the Proceedings Schedule, there is no injunction, decree, order, writ or
judgment outstanding, nor any claims, litigation, administrative actions or
similar proceedings, pending or threatened, relating to the ownership, lease,
use or occupancy of the Portfolio Centers or any portion thereof, or the
operation of Companies' business as currently conducted thereon. There is no
claim or action initiated by any Portfolio Center's neighbor which is pending or
to the Knowledge of the Vendors, which is threatening.
(d) The Portfolio Centers are in compliance with all
applicable building, zoning, subdivision, health and safety and other land use
laws, and are in compliance with the legal requirements upon which the cover of
the present insurance carrier is conditional, which affect the Portfolio Centers
(collectively, the "PORTFOLIO CENTERS LAWS"), and the current use and occupancy
of the Portfolio Centers and operation of Businesses thereon do not violate any
Portfolio Centers Laws. None of the Contract Companies has received any notice
of violation of any Portfolio Centers Law and to Knowledge of Vendors there is
no basis for the issuance of any such notice or the taking of any action for
such violation, nor are there any pending or anticipated change in any Portfolio
Centers Law that will materially impair the ownership, lease,
34
use or occupancy of any Portfolio Centers or any portion thereof in the
continued operation of Companies' business as currently conducted thereon.
(e) Each parcel of Portfolio Centers has direct vehicular
and pedestrian access to a public street adjoining the Portfolio Centers, or has
vehicular and pedestrian access to a public street via an insurable, permanent,
irrevocable and appurtenant easement benefiting such parcel of Portfolio
Centers, and such access is not dependent on any land or other real property
interest which is not included in the Portfolio Centers or in respect of which
valid leasehold interests exist which comply with the provisions of Section
4.17(b) above. None of the Improvements or any portion thereof is dependent for
its access, use or operation on any land, building, improvement or other real
property interest which is not included in the Portfolio Centers.
(f) All water, oil, gas, electrical, steam, compressed
air, telecommunications, sewer, storm and waste water systems and other utility
services or systems for the Portfolio Centers have been installed and are
operational and sufficient for the operation of the Businesses as currently
conducted thereon. Each such utility service enters the Portfolio Centers from
an adjoining public street or valid private easement in favor of the supplier of
such utility service or appurtenant to such Portfolio Centers.
(g) All certificates of occupancy, Permits, approvals and
authorizations (collectively, the "PORTFOLIO CENTERS PERMITS") of all
Governmental Bodies or any other entity having jurisdiction over the Portfolio
Centers which have been required for the construction and which are required or
appropriate to construct, to open to the public, to use, occupy and operate the
Portfolio Centers or operate Businesses as currently conducted thereon, have
been issued and are in full force and effect and are not susceptible of
challenge or withdrawal. As at the Closing Date, none of the Contract Companies
has received any notice from any Governmental Body or other entity having
jurisdiction over the Portfolio Centers threatening a suspension, revocation,
modification or cancellation of any Portfolio Centers Permit and to the
Knowledge of Vendors there is no basis for the issuance of any such notice or
the taking of any such action.
(h) The current use and operation of the Portfolio
Centers and the operation of the Businesses as currently conducted thereon do
not violate any easement, covenant, condition, restriction or similar provision
(including restrictive covenants) in any instrument of record or other
unrecorded agreement affecting such Portfolio Centers. None of the Vendors or
Contract Companies has received any notice of such violation, and to the
Knowledge of Vendors there is no basis for the issuance of any such notice or
the taking of any action for such violation.
(i) None of the Portfolio Centers or any portion thereof
is located in an officially designated flood hazard area.
4.19 Intellectual Property.
(a) The Contract Companies own and possess or have the
right to use pursuant to a valid and enforceable, written license, sublicense,
agreement, or permission all intellectual property used in the operation of the
Businesses as presently conducted. Each item of intellectual property owned or
used by the Contract Companies will be owned or available for use by the
Contract Companies on identical terms and conditions immediately subsequent to
the Closing hereunder (subject to the rights awarded to Buyers in terms of the
Trademark License Agreement). The Contract Companies have taken all necessary
action to maintain and protect each item of intellectual property that they own
or use.
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(b) None of the Contract Companies has interfered with,
infringed upon, misappropriated, or otherwise come into conflict with any
intellectual property rights of third parties, and none of Vendors and the
directors and officers (and employees with responsibility for Intellectual
Property matters) of the Contracts Companies has ever received any charge,
complaint, claim, demand, or notice alleging any such interference,
infringement, misappropriation, or violation.
4.20 Notes and Accounts Receivable All notes and accounts
receivable (including the Up-Stream Loans) of the Contract Companies are
reflected properly on their Books and Records, are valid receivables which as at
the Reference Date are not subject to setoffs or counterclaims pending at the
Reference Date, are current and collectible, and are capable of being collected
in accordance with their terms at their recorded amounts, subject only to the
reserve for bad debts set forth on the face of the Final Definitive Closing
Accounts.
4.21 Insurance. (a) The Contract Companies are validly and
adequately insured in scope and amount in accordance with valid insurance
policies as detailed and specified in the Insurance Schedule attached hereto as
SCHEDULE 4.21. All the insurance policies owned by the Contract Companies and/or
on their behalf, provide for coverage that conforms to industry standards in
respect of the risk and the amount covered. To the extent that the Contract
Companies have made claims, such claims have been made in accordance with the
terms and conditions of such insurance policies in respect of all insured losses
suffered thereby and have not been notified any denial of coverage and/or
indemnification.
(b) With respect to all insurance policies specified in
SCHEDULE 4.21,: (i) the policy is legal, valid, binding, enforceable, and in
full force and effect; (ii) the policy will continue to be legal, valid,
binding, enforceable, and in full force and effect on identical terms following
the consummation of the Transactions contemplated hereby provided that the
insurance premiums due after the Closing Date are paid in a timely manner and
other conditions the fulfillment of which is required following the Closing are
fulfilled; (iii) none of the Contract Companies, nor any other party to the
policy is in breach or default (including with respect to the payment of
premiums or the giving of notices), and no event has occurred which, with notice
or the lapse of time, would constitute such a breach or default, or permit
termination, or modification under the policy; and (iv) no party to the policy
has repudiated any provision thereof.
4.22 Material Business Contracts
(a) For the purposes of this section, the term "MATERIAL
BUSINESS CONTRACTS" shall mean :
(i) any agreement (or group of related
agreements) for the lease of personal property to or from any Person providing
for lease payments in excess of E 50,000 per annum;
(ii) any agreement (or group of related
agreements) for the purchase or sale of raw materials, commodities, supplies,
products, or other personal property, or for the furnishing or receipt of
services, the performance of which will extend over a period of more than one
year, result in a material loss to any of the Contract Companies, or involve
consideration in excess of E 50,000;
(iii) any agreement concerning a partnership or
joint venture;
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(iv) any agreement (or group of related agreements) under
which it has created, incurred, assumed, or guaranteed any indebtedness for
borrowed money, or any capitalized lease obligation, in excess of E20,000 or
under which it has imposed a Lien on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or
non-competition;
(vi) any agreement with any of Vendors and their Affiliates
(other than the Contract Companies);
(vii) any profit sharing, stock option, stock purchase, stock
appreciation, deferred compensation, severance, or other material plan or
arrangement for the benefit of its current or former directors, officers, and
employees;
(viii) any collective bargaining agreement;
(ix) any agreement for the employment of any individual on a
full-time, part-time, consulting, or other basis providing annual compensation
in excess of E 20,000 or providing severance benefits;
(x) any agreement under which it has advanced or loaned any
amount to any of its directors, officers, and employees outside the ordinary
course of business;
(xi) any agreement under which the consequences of a default
or termination could have a Material Adverse Effect;
(xii) any agreement under which it has granted any Person any
registration rights;
(xiii) any agreement under which any of the Contract
Companies has advanced or loaned any other Person amounts in the aggregate
exceeding E10,000; or
(xiv) any other agreement (or group of related agreements) the
performance of which involves consideration in excess of E50,000.
(b) Vendors represent and warrant that all Material Business
Contracts entered into by any Contract Company and in force at the Reference
Date and the Closing Date have been disclosed to Buyers, either in the due
diligence data room or by request.
(c) With respect to each Material Business Contract: (i) the
Material Business Contract is legal, valid, binding, enforceable in accordance
with its terms, and in full force and effect in all respects; (ii) neither
Vendors nor the Contract Companies, or, to the Knowledge of Vendors, any other
party is in breach or default, and no event has occurred, which with notice or
lapse of time would constitute a breach or default, or permit termination,
modification, or acceleration, under the Material Business Contracts, nor have
any notices been received from any party which purports to repudiated any
provision of the Material Business Contract.
4.23 Lease Contracts
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(a) The Lease Schedule attached as SCHEDULE 4.23(A) and which has
formed the basis of the calculation of the Triple Net Rents, sets forth all the
Lease Contracts in force as at March 31st, 2004, and for each Lease Contract,
the amount and the date of the cash deposit paid or bank guarantee furnished by
the tenant to the landlord.
(b) With respect to each Lease Contract itemized in the Lease
Schedule: (i) the Lease Contract is duly executed, legal, valid, binding,
enforceable in accordance with its terms, and in full force and effect in all
respects; (ii) neither Vendors and/or the Contract Companies, nor, to the
Knowledge of Vendors, any other party is in breach or default, and no event has
occurred, which with notice or lapse of time would constitute a breach or
default, or permit termination, modification, or acceleration, under the Lease
Contracts, nor have any notices been received from any party which purports to
repudiated any provision of the Lease Contract.
(c) Without limiting the generality of the foregoing, with respect
to each of the Lease Contracts itemized in the Lease Schedule, and save as
provided in Section 3.6(c) above, the square meter area stated in such Lease
ContrACt is accurate and in conformity with the actual square meter area of the
leased premises ,except for minor inaccuracy of less than 2% of the relevant
leased areas, which is not susceptible to give rise proceeding or action
(including for refund or reduction of rent) against any of the Contract
Companies.
(d) All the Lease Contracts itemized in the Lease Schedule have been
entered into with good standing tenants, are and will be at Closing: (I) in
force and of a duration of more than 1 (one) year from date of execution (it
being specified that approximately 60% of the rentals of the Portfolio Centers
derive from Lease Contracts which are in force for a period of more than 4
(four) years from date of execution, including exercised options or options
exercised under new contracts); (II) globally conform to the breakdown set forth
in the Schedule of Leases (SCHEDULE 4.23(D)) in terms of currency of payment,
currency of accounts, exchange rate reference date and indexation; and (III) for
most of the Portfolio Centers, such Lease Contracts conform in all material
respects with the standard form of lease contract set forth in Exhibit A to the
Schedule of Leases (it being specified that renewals of existing leases and new
leases are executed under an improved version of this contract which contains
provisions more favorable to the lessor), but excluding approximately 80 arms
length contracts concluded with anchors and semi-anchors, and excluding other
contracts designated as "Others"; all of the above subject to the rent-roll for
all Portfolio Centers as at March 31st, 2004 which comprises the Schedule of
Leases.
(e) The rent roll updated to June 30, 2004 includes details of lease
contracts executed after April 1st, 2004 which : (i) have been concluded with
good standing tenants for a period in excess of 1 (one) year,(ii) conform in all
material respects with the standard form of lease contract set forth in Exhibit
A to the Schedule of Leases, or under an improved version of this contract which
contains provisions more favorable to the lessor); (iii) are valid and legal;
and (iv) comply with the provisions of Section 4.23(c) above.
4.24 Fotex Lease Contract. With respect to the Lease Agreement dated
July 26th, 1996 entered into with Fotex Rt., as amended ("THE FOTEX LEASE") :
(a) the pre-emption right to acquire the Shopping Center referred to
in Section 20.5 of the Fotex Lease does not apply to the transfer of the shares
in D2 Rt. (or indirectly in Duna Plaza Rt.) to Purchasers in terms of this
Agreement, to the Post Closing Merger Procedures referred to in Section 8.1
below, or to the DPO Spin-Off referred to in the DPO Interim Agreement;
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(b) upon the expiration of the term of the Fotex Lease on September
24, 2009 and/or upon the lawful termination of the Fotex Lease, the pre-emption
right provided for in Section 20.5 of the Fotex Lease as well as all other
exclusivity rights, pre-emption rights, preferential rights or prior approval
rights granted to and enjoyed by Fotex Rt. in terms of the Fotex Lease shall
expire and be of no further force and effect;
(c) upon the expiry of the term of the Fotex Lease on September 24,
2009 as aforesaid, Duna Plaza Rt. shall be under no contractual or legal
obligation to renew the Fotex Lease and/or to extend its validity, and Fotex Rt.
will be obliged to vacate the leased premises which are the subject of the Fotex
Lease and shall have no further rights therein;
(d) the right to lease additional space provided for in Section 20.6
of the Fotex Lease does not apply to the Duna Plaza Extension;
(e) The copy of the Fotex Lease furnished by Vendors to Purchasers
is a true, complete and accurate copy of the Fotex Lease, and there are no other
written or oral agreement, amendments, modifications, side letters or other
documents regarding the rights of Fotex Rt. in and to the leased premises at the
Duna Plaza Portfolio Center.
4.25 Power of Attorney. Save as required for the conduct of the Businesses
in their ordinary course, and as disclosed to Buyers, there are no outstanding
powers of attorney executed on behalf of Vendors in respect of the Businesses
and/or the Purchased Assets. All powers of attorney issued in the ordinary
course of business as aforesaid shall be deemed terminated and of no further
force and effect as at the Closing or may be unilaterally and unconditionally
terminated at the sole discretion of the Portfolio Companies or the Direct
Property Companies. Upon the resignation at Closing of all the managing
directors of the Contract Companies nominated by Vendors, there shall be no
valid and outstanding powers of attorney with respect to any Contract Company.
4.26 Litigation. The Proceedings Schedule attached hereto as SCHEDULE 4.26
sets forth details of all outstanding injunction, order, decree to which any of
the Contract Companies is subject and of all hearing, action, proceeding,
investigation or litigation proceedings which are pending (collectively the
"PROCEEDINGS"), as at the date hereof, or in respect of which threats of
Proceedings have been received or may reasonably be anticipated, which pertain
to the Contract Companies and/or the Businesses and/or the Purchased Assets.
Other than as specified in the Proceedings Schedule, to the Knowledge of
Vendors, there are no facts or circumstances that would form the reasonable
basis of any claim against the Contract Companies.
4.27 Utilities Charges. (a) All charges for electricity only made by the
Property Companies and the Direct Property Companies to their respective tenants
have been made in compliance with applicable Laws and regulations.
4.28 No Development Risks. PCMM has not been exposed to any development
risks in respect of any of the Portfolio Centers and/or the Excluded Centers at
any time prior to the Reference Date.
4.29 Employees.
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(a) No executive, key employee, or significant group of Employees
has advised any executive officer of Vendors that he, she or they plan to
terminate their employment with the Contract Companies during the 12 (twelve)
month period following the Reference Date. To the Knowledge of Vendors, there is
no organizational effort presently being made or threatened by or on behalf of
any labor union with respect to Employees.
(b) There are no severance or other similar contracts and no pension
or retirement benefits, bonus, employment, change-in-control, deferred
compensation profit sharing, stock purchase, stock option, company saving,
employee benefit plans, agreements, programs, policies, arrangements or schemes
or employee funds by reason of which any of the Contract Companies has any
current or future liability (such plans or funds, the "BENEFIT PLANS").
(c) Except for PCMM, none the Contract Companies employs any person.
SCHEDULE 4.29(C) sets forth a complete and correct list of the all of the
Employees of PCMM (detailing each such employee's name, job title, length of
service and gross annual remuneration). The employment contracts relating to
PCMM were entered into under ordinary and customary conditions. There are no
commitments or undertakings vis-a-vis any regulatory authorities or employees
unions in respect of past or future dismissals of employees of the Contract
Companies. PCMM is not bound and has not been bound by any collective bargaining
agreement.
(d) Each of the Contract Companies has been and is in compliance
with all applicable Law respecting employment and employment practices.
(e) No labour dispute, strike or work stoppage exists or has been
notified to any member of PCMM which is likely to interrupt the normal
activities of PCMM.
(f) In respect of any of the Contract Companies, there are no
obligations of any kind nor any sum due to any present or former employee, agent
or representative in connection with their employment and/or other contracts or
agreements (including dismissal indemnities) except as liabilities disclosed in
the Final Definitive Closing Accounts (rather than in any notes thereto) or
incurred in the normal course of business since the Reference Date.
(g) The resignation of the managing directors of each of the
Contract Companies, as well as the resignations of all members of the
supervisory boards of the Contract Companies, on or prior to the Closing Date
shall not give rise to any payment obligation (including bonuses,
indemnification, or golden parachute) on the part of any Contract Company.
4.30 Environment, Health and Safety.
(a) As at the Closing Date, each of the Contract Companies is in
compliance with all applicable Laws, regulations and orders pertaining to
environment, health and safety ("ENVIRONMENT, HEALTH AND SAFETY REQUIREMENTS"),
nor have they received any notification of any alleged violation of such Laws,
regulations and orders. Furthermore, no actions, proceedings (judicial or
administrative) are currently pending against any of the Contract Companies
concerning any such alleged violation.
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(b) Without limiting the generality of the foregoing, each of the
Contract Companies has obtained and complied with, and is in compliance with,
all permits, licenses and other authorizations that are required pursuant to
Environmental, Health, and Safety Requirements for the occupation of their
facilities and the operation of their Business.
(c) SCHEDULE 4.30(C) sets forth the accurate and complete list of
all reports, investigations notices, and other environmental information
regarding the Portfolio Centers. None of the Contract Companies, nor to the
Knowledge of Vendors their respective predecessors or previous owners of the
parcels or buildings has received any written or oral notice, report or other
information regarding any actual or alleged violation of Environmental, Health,
and Safety Requirements, or any Liabilities or potential Liabilities, including
any investigatory, remedial or corrective obligations, relating to any of them
or its facilities arising under Environmental, Health, and Safety Requirements.
(d) None of the following exists at any property or facility owned
or operated by the Contract Companies: (1) underground storage tanks (excluding
mandatory oil traps (parking) and grease traps (restaurants); (2)
asbestos-containing material in any form or condition, (3) materials or
equipment containing polychlorinated biphenyls, or (4) landfills, surface
impoundments, or disposal areas.
(e) None of the Contract Companies nor to the Knowledge of Vendors
their respective predecessors or previous owners of the parcels or buildings
have treated, stored, disposed of, arranged for or permitted the disposal of,
transported, handled, or released any substance, including without limitation
any hazardous substance, or owned or operated any property or facility (and no
such property or facility is contaminated by any such substance) in a manner
that has given or would give rise to Liabilities, including any Liability for
response costs, corrective action costs, personal injury, property damage,
natural resources damages or attorney fees, pursuant to any environmental,
health, and safety requirements.
(f) Neither this Agreement nor the consummation of the Transaction
that is the subject of this Agreement will result in any obligations for site
investigation or cleanup, or notification to or consent of government agencies
or third parties, pursuant to any of the so-called "transaction-triggered" or
"responsible property transfer" Environmental, Health, and Safety Requirements.
(g) None of the Contract Companies, nor to the Knowledge of Vendors
any of their respective predecessors or previous owners of the parcels or
buildings has, either expressly or by operation of law, assumed or undertaken
any Liability, including without limitation any obligation for corrective or
remedial action, of any other Person relating to Environmental, Health, and
Safety Requirements.
(h) No facts, events or conditions relating to the past or present
facilities, properties or operations of the Contract Companies, or any of their
respective predecessors or previous owners of the parcels or buildings will
prevent, hinder or limit continued compliance with Environmental, Health, and
Safety Requirements, give rise to any investigatory, remedial or corrective
obligations pursuant to environmental, health, and safety requirements, or give
rise to any other Liabilities pursuant to Environmental, Health, and Safety
Requirements, including without limitation any relating to onsite or offsite
releases or threatened releases of hazardous materials, substances or wastes,
personal injury, property damage or natural resources damage.
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4.31 Intergroup Agreements. At the Closing there are no contracts and
agreements currently in force between any of the Vendors or any of their
Affiliates (other than the Contract Companies) on the one hand and any of the
Contract Companies, on the other hand. All contracts and agreements currently in
force between PCMM on the one hand and with suppliers (other than suppliers who
will not be transferred to the Property Companies or the Direct Property
Companies), on the other hand (the "PCMM AGREEMENTS") as specified in SCHEDULE
4.31, may be terminated at any time by the relevant Contract Company without any
penalty or termination indemnity to be paid by the relevant Contract Company,
and without any prior notice longer than ninety (90) days. All PCMM Agreements
are valid, binding and in full force and effect, and have been entered into and
performed on an arm's length basis and in the ordinary course of business.
4.32 Promotions Agreements. As of March 31st, 2004, the three promotional
service contracts concluded with Miniplex Operations Kft., I.T. Cinema Magyar
Rt. and Rano Szolgaltato Kft. have expired and are of no force and effect as at
the Reference Date.
4.33 Complete Copies of Materials. All relevant documents and information
relating to the Contract Companies, the Portfolio Centers and the Purchased
Assets which were provided to the Buyers during the due diligence phase are
accurate in all respects.
4.34 Full Disclosure. No representation or warranty in this Article IV or
in any document delivered by Vendors or their Representatives pursuant to the
Transactions contemplated by this Agreement, and no statement, list, certificate
or instrument furnished to Buyers pursuant hereto or in connection with this
Agreement, when taken as a whole, contains any untrue statement of a material
fact, or omits to state a material fact necessary to make the statement herein
or therein, in light of the circumstances in which they were made, not
misleading.
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF KLEPIERRE AND BUYERS
Each of Klepierre, KLPH, LP7 and Segece, jointly and severally, hereby
represents and warrants to Vendors that the statements contained in this Article
V are true and correct as of the date of this Agreement and will be true and
correct as of the Closing (as though made at the Closing); provided, that the
representations and warranties made as of a specified date will be true and
correct as of such date.
5.1 Organization, Qualification, and Corporate Power. Each of
Klepierre, KLPH, LP7 and Segece :
(a) is a corporation duly organized, validly existing, and in good
standing under the laws of France (to the extent the concept of good standing
exists in the relevant jurisdiction);
(b) is duly authorized to conduct their respective businesses and
are in good standing (to the extent the concept of good standing exists in the
relevant jurisdiction) under the laws of each other jurisdiction where such
qualification is required and in which the failure to so qualify is reasonably
likely to have a material adverse effect on Klepierre, KLPH, LP7 or Segece.
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5.2 Authorization. Klepierre, KLPH, LP7 and Segece each have full power
and authority to enter into, execute and deliver this Agreement and the
Ancillary Agreements to which they are parties, and to consummate the
Transaction and to perform their obligations hereunder, and no other proceedings
on the part of any of Klepierre, KLPH, LP7 or Segece are necessary to authorize
the execution, delivery and performance of this Agreement and the Ancillary
Agreements to which they are parties. This Agreement and the Ancillary
Agreements to which they are parties and the transactions contemplated hereby
and thereby have been duly approved by the respective Supervisory Boards of
Klepierre and Segece, or, in the case of KLPH and LP7 and in respect of the
Ancillary Agreements, do not require such approval. The consummation of the
transactions contemplated hereby does not require the approval or consent of the
shareholders of Klepierre, KLPH, LP7 or Segece . This Agreement and the
Ancillary Agreements to which they are parties constitute the valid and legally
binding obligations of Klepierre, KLPH, LP7 or Segece, enforceable against
Klepierre, KLPH, LP7 or Segece in accordance with their respective terms and
conditions.
5.3 No Conflicts. Neither the execution and the delivery of this
Agreement nor the consummation of the transactions contemplated hereby, will:
(a) violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which Klepierre, KLPH, LP7 or Segece is
subject;
(b) violate or conflict with any provision of the charters, bylaws
or organizational documents of Klepierre, KLPH, LP7 or Segece; or
(c) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under, any
agreement, contract, lease, license, instrument, or other arrangement to which
Klepierre, KLPH, LP7 or Segece is a party or by which either is bound or to
which any of their assets is subject, other than any of the foregoing which
would not in the aggregate have a material adverse effect on Klepierre, KLPH,
LP7 or Segece or adversely their ability of to consummate the transactions
contemplated hereby.
5.4 Consents. No consent, waiver, approval, order, license, permit,
certificates, filing or authorization of, or registration, declaration or filing
with, any Governmental Body or any third party, including a party to any
agreement with Klepierre, KLPH, LP7 or Segece, is required by or with respect to
Klepierre, KLPH, LP7 or Segece in connection with the execution and delivery of
this Agreement or the consummation of the Transaction, except for the
Transaction Approvals referred to in Section 7.2 below.
5.5 Financial Resources. Klepierre, KLPH, LP7 and Segece have the
financial resources to fulfill all the undertakings, obligations and guarantees
made by them in terms of the provisions of this Agreement, including without
limitation, the payment of the Estimated Transaction Price (or the Final
Definitive Transaction Price following Verification), and any Price Adjustments
required in terms hereof.
5.6 Liability. Klepierre is an "associe commanditaire" of Segece and has
the duties and obligations provided for in Article L.222-6 of the French
Commercial Code.
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ARTICLE VI - PRE-CLOSING COVENANTS
With respect to the period between the execution of this Agreement and the
earlier of the termination of this Agreement and the Closing ("COVENANT
PERIOD"), the following shall apply:
6.1 Operation of Business.
(a) Vendors agree that, for the duration of the Covenant Period,
except as contemplated by this Agreement or as otherwise consented to or
approved in advance in writing by Buyers (which consent and approval shall not
be unreasonably withheld or delayed to the extent that it does not prejudice the
rights of Buyers in terms of this Agreement), Vendors shall, and shall procure
that the Contract Companies shall:
(i) use all commercially reasonable efforts to (aa) preserve
intact the present business organization, reputation, contractual and other
arrangements of the Contract Companies and the Businesses then under the control
of Vendors; (bb) keep available (subject to dismissals and retirements in the
ordinary course of business consistent with past practice) the services of the
present officers and other Employees of the Businesses, and subject to any right
under applicable Law; (cc) maintain the Purchased Assets in good working order
and condition, ordinary wear and tear excepted; (dd) maintain the goodwill of
tenants, customers, suppliers and other Persons with whom Vendors have
significant business relationships in connection with the Businesses; and (ee)
continue all current business operations and activities relating to the
Businesses in a manner consistent with past practise;
(ii) except to the extent required by applicable Law, (aa)
cause the Books and Records of the Contract Companies to be maintained in the
usual, regular and ordinary manner, and (bb) not permit any change in any
rentals, credit, allowance or Tax practice or policy of the Contract Companies
that would adversely affect the Businesses, the Contract Companies or the
Purchased Assets;
(iii) comply with all Laws and Orders applicable to the
Businesses, and promptly following receipt thereof deliver to Buyers copies of
any notice received from any Governmental Body or other Person alleging any
violation of any such Law or Order.
(b) During the Covenant Period, except as contemplated by this
Agreement or as otherwise consented to or approved in advance and in writing by
Buyer (which approval shall not be unreasonably withheld or delayed to the
extent that it does not prejudice the rights of Buyers in terms of this
Agreement), Vendors shall not, and shall procure that the Contract Companies
shall not:
(i) make any representation or promise, oral or written, to
any Employee, except for statements as to the rights or accrued benefits of any
Employee under the terms of any applicable Law;
(ii) make any increase in the salary, wages or other
compensation (aa) of any Employee whose annual salary is or, after giving effect
to such change, would be the equivalent of E50,000 per annum or more, except
where such increases have been agreed upon by the relevant Contract Companies
and/or Vendors, prior to the Execution Date;
(iii) adopt, enter into or become bound by any benefit plan,
any employment-related contract or any collective bargaining agreement with
respect to any of the Employees;
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(iv) enter into any Contract to do or engage in any of the
foregoing items set forth in this Section 6.1(b).
(c) Vendors agree that, during the Covenant Period, except as
contemplated by this Agreement, or as specifically directed by Buyers, or as
otherwise consented to or approved in advance by Buyers (which consent or
approval shall not be unreasonably withheld or delayed to the extent that it
does not prejudice the rights of Buyers in terms of this Agreement), Vendors
shall not, and shall procure that the Contract Companies shall not:
(i) acquire lease, license or dispose of or agree to acquire
lease, license or dispose of any assets that would constitute Purchased Assets
hereunder, other than in the ordinary course of business consistent with past
practice, or create or incur any Lien, other than a Permitted Lien, on any
assets that would constitute Purchased Assets hereunder;
(ii) enter into, amend, modify, terminate (partially or
completely), grant any waiver under or give any consent with respect to any
Business Contract, in each case other than in the ordinary course of business
consistent with past practice;
(iii) violate, breach or default under, or take or fail to
take any action that (with or without notice or lapse of time or both) would
constitute a material violation or breach of, or default under, any term or
provision of any Business Contract;
(iv) incur, purchase, cancel, prepay or otherwise provide for
a complete or partial discharge in advance of a scheduled payment date with
respect to, or waive any right of the Contract Companies under, any liability of
or owing to the Contract Companies in connection with the Businesses then under
the control of Vendors that would constitute a Purchased Asset hereunder, other
than in the ordinary course of business consistent with past practice;
(v) save as specifically provided to the contrary in Section
8.1 below, engage with any Person in any merger, consolidation or other business
combination, unless such Person agrees in writing that such merger,
consolidation or other business combination is subject to the terms and
conditions of this Agreement and the Ancillary Agreements;
(vi) make or commit to make any capital expenditures for
additions to property, plant or equipment constituting capital assets on behalf
of the Businesses, other than in the ordinary course of business consistent with
past practice, or otherwise as are urgently required to maintain the equipment
and assets of the Portfolio Centers in operating condition and in compliance
with safety regulations;
(vii) make any material changes in the conduct of the
Businesses, except as specifically contemplated or permitted by this Agreement;
or
(viii) enter into any Contract to do or engage in any of the
foregoing items set forth in this Section 6.1(c).
6.2 Notice of Developments. Vendors shall give prompt notice to Buyers of
(i) the occurrence or non-occurrence of any event, the occurrence or
non-occurrence of which is likely to cause, net and in the
45
aggregate, any representation or warranty of Vendors contained in this Agreement
to be untrue or inaccurate at or prior to the Closing and (ii) any failure of
Vendors to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder; provided, however, that the delivery
of any notice pursuant to this Section 6.2 shall not limit or otherwise affect
any remedies available to the Party receiving such notice.
6.3 Exclusivity.
(a) From and after May 12, 2004, and until the earlier of the
Closing or the termination of this Agreement, Vendors have not and shall not
(nor has it permitted and shall it permit its Representatives to) directly or
indirectly take any of the following actions with any Person other than Buyers
and their designees:
(i) solicit, initiate or encourage any proposals or offers
from, or conduct discussions with or engage in negotiations with, any Person
relating to any possible Acquisition Proposal (as hereinafter defined) with
Vendors or any of its subsidiaries (whether such subsidiaries are in existence
on the date hereof or are hereafter organized);
(ii) provide information with respect to Vendors and/or the
Contract Companies, other than to Buyers, relating to, or otherwise cooperate
with, facilitate or encourage any effort or attempt by any such Person with
regard to, any possible Acquisition Proposal with Vendors or any subsidiary of
Vendors (whether such subsidiaries are in existence on the date hereof or are
hereafter organized);
(iii)enter into a contract or agreement (whether oral or
written) with any Person, other than Buyers, providing for an Acquisition
Proposal with Vendors or any subsidiary (whether such subsidiaries are in
existence on the date hereof or are hereafter organized); or
(iv) make or authorize any statement, recommendation or
solicitation in support of any possible Acquisition Proposal with Vendors or any
subsidiary (whether such subsidiary is in existence on the date hereof or are
hereafter organized) other than by Buyers.
(b) Vendors shall, and shall cause its Representatives to, avoid and
cause to be avoided any such contacts or negotiations with any Person relating
to any Acquisition Proposal. In addition to the foregoing, if Vendors or any of
their Representatives receives, prior to the Closing or the termination of this
Agreement, any offer or proposal (formal or informal) relating to any of the
above, Vendors shall immediately notify Buyers thereof and provide Buyers with
the details thereof including the identity of the Person or Persons making such
offer or proposal, and will keep Buyers fully informed of the status and details
of any such offer of proposal. Vendors and Buyers all acknowledge that this
Section 6.3 was a significant inducement for Buyers to enter into this Agreement
and the absence of such provision would have resulted in either (i) a material
reduction in the Purchase Price to be paid to Vendors; or (ii) a failure to
induce Buyers to enter into this Agreement.
(c) As used in this Section 6.3, the term "ACQUISITION PROPOSAL"
shaLL mean a proposal or offer for a merger, consolidation or other business
combination involving an acquisition of all or part of the Contract Companies
and/or the Businesses and/or the Purchased Assets.
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(d) For the avoidance of doubt, it is specifically agreed and
understood that the provisions of this Section 6.3 are not applicable to: (i)
the Post-Closing Merger procedures referred to in Section 8.1 below; and (ii) to
any property, assets or business activities of Vendors and/or their Affiliates
which are excluded from the ambit of this Agreement.
6.4 Reasonable Efforts. Each of the Parties will use their best efforts to
take all action and to do all things necessary, proper, or advisable in order to
consummate and make effective the transactions contemplated by this Agreement
(including satisfaction of the closing conditions set forth in Article VII
below).
ARTICLE VII - CLOSING
7.1 Closing and Consummation.
The closing of the Transaction shall take place July 29th, 2004, or on
such alternative date as shall be agreed between the Parties prior to July 31st,
2004 (the "CLOSING DATE"), provided that if the Transaction Approvals have not
been obtained by that date, then and in such event the Closing shall take place
within [five (5)] Business Days after the date on which the Transaction
Approvals will have been obtained (or waived in writing). The Closing shall take
place in the offices of PCE located in Budapest, Hungary.
7.2 Conditions for Closing. Notwithstanding anything to the contrary in
this Agreement contained, the Closing and consummation of the Transaction shall
be subject to the fulfillment of the following conditions, namely:
(a) Transaction Approvals. The following unconditional Transaction
Approvals shall have been obtained (or, if issued subject to fulfillment of
certain conditions, such conditions have been either fulfilled or waived in
writing), and shall be valid, namely:
(i) The approval of the Transaction, which was issued by the
Hungarian Competition Office under applicable Law on July 21st, 2004 (the "COH
APPROVAL"), a copy of which is attached hereto and marked as SCHEDULE
(I)7.2(A)(I);
(ii) Each of the Financing Banks (excluding OVAG) shall have
delivered to the Buyers a duly signed Waivers and Consents, and which include
Waivers and Consents issued by the Financing Banks in respect of Pecs Plaza Kft.
and Sombathely Plaza Kft.referred to in Section 2.4 above, copies of which are
attached as SCHEDULE 7.2(A)(II);
(iii) Vendors shall have furnished Buyers with Land Registry
Extracts updated to a date 3 (three) days to the Closing Date, and which shall
be attached as an exhibit to the Property Schedule.
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(b) OVAG Loan Repayment Agreement. The OVAG Loan Repayment Agreement
shall have been executed between the parties thereto, shall be valid and binding
upon them, and Purchasers shall have deposited the OVAG Loan Repayment Amount
into the special escrow account opened and maintained by OVAG for that purpose;
(c) Vendors' Legal Opinion. Buyers shall have received an opinion
of Vendors' legal counsel in substantially the form set forth in SCHEDULE
7.2(c).
(d) Buyers's Legal Opinion of Counsel. Vendors shall have
received an opinion of legal counsel for Klepierre, KLPH, LP7 and Segece in
substantially the form set forth in SCHEDULE 7.2(D).
7.3 Acts to be performed at Closing. At the Closing, the following acts,
deeds and things shall be simultaneously executed, performed and perfected,
namely:
(a) PCE and EUN shall sell, transfer and make over to KLPH and LP7
respectively, and KLPH and LP7 shall acquire from PCE and EUN respectively,
good, clean and valid title in and to the entire Equity Rights (100%) in and to
the Holding Companies by way of the execution of Equity Rights Transfer
Agreements in agreed form in respect of each Holding Company, together with all
ancillary documentation required by operation of applicable Hungarian Law in
order to give full and proper effect thereto;
(b) PCE and Szeged shall sell, transfer and make over to KLPH, and
KLPH shall acquire from PCE and Szeged respectively, good, clean and valid title
in and to the entire Equity Rights (100%) in and to the Direct Property
Companies by way of the execution of Equity Rights Transfer Agreements in agreed
form in respect of each Direct Property Company, together with all ancillary
documentation required by operation of applicable Hungarian Law in order to give
full and proper effect thereto;
(c) PCM-BV shall sell, transfer and make over to Segece, and Segece
shall acquire from PCM-BV, good, clean and valid title in and to the Acquired
PCMM Quota by way of the execution of Equity Rights Transfer Agreements in
agreed form, together with all ancillary documentation required by operation of
applicable Hungarian Law in order to give full and proper effect thereto;
(d) PCE and/or EUN and/or their relevant Affiliates shall assign and
transfer to KLPH, and KLPH shall accept assignment of, the relevant Assigned
Shareholder Loans due and owing by the Portfolio Companies by way of the
execution of a Deed of Assignment of Shareholder Loans in agreed form;
(e) PCM-BV and/or PCM-BV and/or the relevant Affiliates shall assign
and transfer to Segece, and Segece shall accept assignment of, the relevant
Assigned Shareholder Loans (50%) due and owing by PCMM by way of the execution
of a Deed of Assignment of Shareholder Loans in agreed form;
(f) Vendors shall furnish Buyers with unconditional letters of
resignation of each of the managing directors of each of the Contract Companies,
as well as the resignations of all members of the supervisory boards of the
Contract Companies, nominated by Vendors and/or their Affiliates, which shall be
effective as at the Closing Date. Vendors undertake to procure that none of the
managing directors and supervisory board members appointed by it and who shall
resign at the Closing as aforesaid shall have any claims or rights against the
Contract Companies and that all their rights against such Contract Companies are
unconditionally waived and released.
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(g) Buyers shall nominate and appoint, in the manner required under
applicable Hungarian Law, managing directors for each of the Contract Companies,
and, where required, members of the Supervisory Boards of the Contract
Companies.
(h) Vendors shall if necessary convene on the Closing Date, such
Quotaholders meetings of each of the Contract Companies in order to give full
and proper effect to the Transactions contemplated herein, and to replace the
managing directors and the supervisory board members of the Contract Companies
as aforesaid.
(i) The following Ancillary Agreements, to the extent that same
shall not have been executed between the relevant parties thereto prior to the
Closing Date, shall be duly and properly signed and executed, namely:
(i) the DPO Interim Agreement;
(ii) the PCMM Shareholders Agreement; and
(iii) the Trademark License Agreement;
(iv) the OVAG Loan Repayment Agreement; and
(v) the Price Adjustment Escrow Agreement.
(j) PCE shall furnish Buyers with the Utilities Guarantee;
(k) Vendors shall cause Buyers to be furnished with the EMI Parent
Guarantee;
(l) Purchasers shall execute payment of the Estimated Portfolio
Company Prices subject to and in accordance with the provisions of Section 3.2
above;
(m) Segece shall execute payment of the Estimated PCMM Shares Value
subject to and in accordance with the provisions of Section 3.3 above; and
(n) The Parties shall execute all additional documents, deeds and
instruments which are required by operation of applicable Hungarian Law and
regulations in order to give full and proper effect to the Transactions
contemplated hereby.
7.4 Acknowledgement of Closing. Upon the full and proper execution of the
Closing in terms of this Article VII, the Parties shall execute an
Acknowledgement of Closing in agreed form confirming that the consummation of
the Transactions has been accomplished.
7.5 Partial Consummation. In the event that one or several of the
Transaction Companies (or its (their) relevant Property Company or Portfolios
Centers) shall be affected by a problem which would entitle the Purchasers
and/or Segece to exercise their respective rights to withdraw from the
Transaction in accordance with the provisions of Article X below, then and in
such event Purchasers or Segece, as the case may be, will have the option to
partially consummate the Transaction by excluding such affected Transaction
49
Company from the Closing procedures to be conducted in terms of this Article VI,
provided that nothing in this Section contained shall be deemed to prejudice the
rights of Purchasers and/or Segece under Sections 10.3(a), 10.3(b) and
10.3(D) below.
7.6 Deferred Closing. In the event that any Transaction Approval(s)
relevant to any particular Transaction Company and/or its relevant Portfolio
Center shall not have been obtained by the Closing Date as determined above,
then and in such event the Purchasers shall have the right to demand that a
separate deferred closing be conducted in respect of the affected Transaction
Company upon receipt of the missing Transaction Approval(s), provided that such
deferred Closing shall not occur later than December 31, 2004 (unless otherwise
agreed between the Parties).
ARTICLE VIII - ADDITIONAL AGREEMENTS WITH POST CLOSING EFFECT
8.1 Post Closing Merger Procedures.
(a) It shall be the sole responsibility and liability of PCE to
cause, complete and perfect the due, proper and valid execution of the merger
procedures which have been instituted prior to the date hereof between each of
the Holding Companies and the relevant Property Company recorded opposite its
name of the Rights Acquisition Schedule (the "Post Closing Mergers").
(b) It is envisaged that in each instance, the relevant Property
Company will be merged into the relevant Holding Company ("step-up mergers"),
save in the event of Duna Plaza, where the Holding Company (D2 Rt.) will be
merged down into the Property Company (Duna Plaza Rt.) (a "step-down merger").
(c) The Post Closing Mergers shall be conducted and implemented on
the basis of the financial statements of the respective Holding Companies and
the relevant Property Companies as at December 31st, 2003.
(d) PCE undertakes to ensure that the Post Closing Mergers are
finalized and perfected, by order of the Court of Registration, by not later
than December 31st, 2004.
(e) All costs and expenses incurred or to be incurred in respect of
and/or in connection with and/or pertaining to the Post Closing Mergers
(including without limitation : legal fees, tax advisors fees, accountants fees,
notarial fees and court registration fees) shall be for the sole cost and
account of PCE.
8.2 Post Merger Tax Procedure
(a) Definition & qualification of the Goodwill
(i) It is acknowledged by the Parties that the completion of
the Post Closing Mergers referred to in Section 8.1 above, shall make available
a Global Goodwill Tax Benefit.
(ii) For the purpose of this Section 8.2, the term "Global
Goodwill Tax Benefit" shall mean the discounted tax benefit of E 6,800,000 (six
million eight hundred thousand Euros) resulting from the
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possibility to amortize from a tax standpoint a goodwill amount transferred to
the surviving companies of the Post Closing Mergers.
(iii) The Global Goodwill Tax Benefit is broken down as
follows : (1) E 5,780,000 in respect of Duna Plaza Rt. following its merger with
D2 Rt.; (2) E 560,000 in respect of Csepel Plaza Kft. following its merger with
CSPL 2002 Kft.; and (3) E 460,000 in respect of Debrecen Plaza Kft. following
its merger with Debrecen 2002 Kft, (Duna Plaza Rt., Csepel Plaza Kft and
Debrecen Plaza Kft. collectively referred to as the "Goodwill Beneficiaries" and
each of such amount being defined as "Individual Goodwill Tax Benefit").
(iv) Vendors hereby agree and acknowledge that due to the
existence of the Global Goodwill Tax Benefit, Purchasers did not reduce the
Estimated Transaction Prices by E 6,800,000 to take into account the impact of
the lack of amortization basis as specified in Exhibit H of the Heads of Terms
dated May 10, 2004. In this context, Vendors undertake to implement the
following steps in order to ensure that Goodwill Beneficiaries will be able to
derive the full benefit of the Global Goodwill Tax Benefit;
(v) The Parties further acknowledge that the approval by the
Tax Authorities (as hereinafter defined) of carry forward losses is prima facia
evidence that the relevant Goodwill Beneficiary will be able to derive the
benefit of the Goodwill Tax Benefit.
(b) Escrow Deposit.
(i) In order to secure its undertakings and obligations
pursuant to the provisions of this Section 8.2, at the Closing, Vendors shall
cause an amount of E 6,800,000 to be deposited into a special escrow account to
be opened and maintained by OVAG in terms of the Escrow Agreement attached
hereto as Schedule 8.2(b).
(ii) The Escrow Agreement shall govern the manner in which
OVAG as escrow agent shall release the escrow funds in terms of the provisions
of this Section 8.2.
(c) Actions to be taken by Vendors to ensure the use and enjoyment
of the Global Goodwill Tax Benefit by the Goodwill Beneficiaries. In order to
allow the future enjoyment and use of the Global Goodwill Tax Benefit by the
Goodwill Beneficiaries, Vendors have undertaken to implement and shall complete
the following specific procedures ("POST MERGER TAX PROCEDURES").
(d) On the other hand and solely in the case of "Upstream Mergers"
(as defined in Section 8.1 (b) above), in the event that Csepel Plaza Kft.
and/or Debrecen Plaza Kft. do not have tax losses, Vendors shall have the right
in its sole discretion (subject to a 3 day prior written notice to Purchasers)
to substitute other Contract Companies (which would be the surviving entity
following an Upstream Merger) instead of Debrecen 2002 Kft and CSPL 2002 Kft,
for the purpose of the Post Merger Tax Procedures, provided that the aggregate
amount of the Goodwill Tax Benefit for such companies shall not be less than E
1,020,000.
(e) Duna Plaza Application. The Post Merger Tax Procedures with
respect to Duna Plaza Rt. are as follows:
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(i) Given the specific nature of the merger process entered
into among D2 Rt. and Duna Plaza Rt. (namely a downstream merger whereby Duna
Plaza Rt. is the surviving entity) and in order to ensure the enjoyment and use
by Goodwill Beneficiary of the corresponding Individual Goodwill Tax Benefit
(i.e. E 5.78 million), Vendors undertake to make an application (the "DUNA PLAZA
APPLICATION") to the relevant office, service or department of the Hungarian Tax
Authorities ("TAX AUTHORITIES") so as to obtain the approval of the Tax
Authorities that Duna Plaza Rt., as the surviving entity in the merger and legal
successor, will be entitled to utilize the carry forward losses (which comprise
but are not limited to the Individual Goodwill Tax Benefit) of D2 Rt. (as the
predecessor), such approval being necessary in respect of tax losses incurred in
2004 and thereafter, in application of the new Hungarian tax regime which
entered into force as of January 1, 2004 (the "NEW REGIME"). It is emphasized
that the nature and wording of the Duna Application to be made to the Tax
Authorities pursuant to the provisions of this Section 8.2(d) shall be made
exclusively at the discretion of Vendors.
(ii) It shall be the responsibility and liability of Vendors
to make all arrangements necessary to ensure that the Duna Plaza Application be
prepared and submitted to the Tax Authorities within the statutory deadline,
namely within 30 days of date of the adoption the first decision on the merger
by the general meeting of the relevant company, but at the latest within 30 days
of the date of the registration of the merger by the Hungarian Commercial Court.
Vendors shall also be responsible for providing the Tax Authorities with all the
necessary and requested information and documentation during the procedure in a
timely manner with a view to ensure the success of the procedure, and Purchasers
undertake to co-operate in the provision of such documentation.
(f) Approval of Duna Plaza Application
(i) In the event that the Duna Plaza Application is approved
by the Tax Authorities, then and in such event Vendors shall be entitled to
demand OVAG as escrow agent to release to Vendors the amount of E 5,780,000 out
of the escrow funds, together with accrued interest, provided that they shall
have delivered to Purchasers the EMI First Demand Guarantee in accordance with
the provisions of Section 8.2(j) below.
(ii) For the purposes of this Section, an "approval/approved"
shall mean either : (1) official notification of the Tax Authorities that the
Duna Plaza Application has been approved (provided, however, that an approval
which is qualified as being subject to future tax audits and which reserves the
determination as to the correctness or integrity of the carry forward losses
which are referred to in the Duna Plaza Application, shall nevertheless be
deemed to constitute an approval of the Tax Authorities for the purposes of this
Section which will entitle Vendors to demand the release of the escrow funds as
aforesaid); or (2) in the event that the Tax Authorities are deemed to have
approved the Duna Plaza Application by reason of their failure to respond to the
Duna Plaza Application within 60 (sixty) days from the date of the submission of
the Duna Application (a "deemed approval"). Purchasers shall notify Deloittes
Rt. (or such other tax adviser numbered amongst the "Big Four" who act as the
tax advisers of Purchasers. at that time) of the occurrence of a "deemed
approval". Deloittes Rt. shall be required to either confirm or dispute the
existence of a deemed approval within 10 (ten) Business Days, failing which they
shall be deemed to have approved. For the avoidance of doubt, Deloittes Rt.
shall not make any approaches to the Tax Authorities in order to verify the
occurrence of a deemed approval.
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(g) Refusal of the Duna Plaza Application
(i) In the event, however, that the Tax Authorities issue a
refusal of the Duna Plaza Application, then and in such event Purchasers shall
be entitled to demand OVAG as escrow agent to release to Purchasers the amount
of E 5,780,000 out of the escrow funds, together with accrued interest.
(ii) For the purposes of this Section, a "refusal" shall be
deemed to mean either (1) official notification of the Tax Authorities that the
Duna Plaza Application has been rejected, or has not been approved, irrespective
as to whether reasons are furnished (provided however that if Vendors elect to
appeal the refusal to the next instance within the Tax Authorities, the refusal
shall not be deemed to have occurred until such time as the appeal is also
rejected); or (2) if the Tax Authorities by official notice advise Vendors
and/or Duna Plaza Rt. that they wish to conduct an investigation of Duna Plaza
Rt. prior to rendering their decision on the Duna Plaza Application which has
not been finalized by December 31st, 2005; or (3) if Vendors have not applied
for the permission to use the loss carry forward of D2 Rt as at December 31,
2005.
(iii) For the avoidance of doubt, in the event that Vendors
elect to appeal the decision of the Tax Authorities as aforesaid, and the appeal
is accepted, then and in such event an "approval" of the Duna Plaza Application
shall be deemed to have occurred, and the provisions of Section 8.2(f)(i) above
shall apply.
(h) Csepel Plaza Kft . The Post Merger Tax Procedures with respect
to Csepel Plaza Kft are as follows:
(i) Given the specific nature of the merger process entered
into among Csepel Plaza Kft. and CSPL 2002 Kft. (namely an upstream merger
whereby CSPL 2002 Kft. is the surviving entity) and in order to ensure the
enjoyment and use by the Goodwill Beneficiary of the Individual Goodwill Tax
Benefit (i.e. E 560,000 million), Vendors undertakes to make an application (the
"CSEPEL APPLICATION") to the Tax Authorities so as to obtain the approval of the
Tax Authorities that CSPL 2002 Kft., as the surviving entity in the merger and
legal successor, will be entitled to utilize the carry forward tax losses of
Csepel Plaza Kft. (as the predecessor) which is necessary in respect of tax
losses incurred in 2004 and later based on the New Regime.
(ii) In the event of an "approval" of the Csepel Application,
Purchasers shall be entitled to request that OVAG as escrow agent release to
Vendors the amount of E 560,000 out of the escrow funds, together with accrued
interest, provided that they shall have delivered to Purchasers the EMI First
Demand Guarantee in terms of Section 8.2(j) below. For the purpose of the Csepel
Application an "approval" shall be deemed to mean either: (1) either of the
circumstances referred to in Section 8.2(f)(ii) above, mutatis mutandis; and (2)
if the Csepel Application is not submitted by December 31, 2004 by reason of the
fact that Csepel Plaza Kft. has no tax losses.
(iii) However, in the event of a "refusal" of the Csepel
Application, then Purchasers shall be entitled to request the release to the
Purchasers of the amount of E 560,000 together with accrued interest For the
purposes of the Csepel Application, a "refusal" shall be deemed to mean either
of the circumstances referred to in Section 8.2(g) (1) and (2).
53
(i) Debrecen Plaza Kft. The Post Merger Tax Procedures with respect
to Debrecen Plaza Kft are as follows: The provisions of Section 8.2(h) above
shall apply, mutatis mutandis, to an application to be submitted by Vendors to
the Tax Authorities in respect of the Debrecen Plaza Kft. (the "DEBRECEN
APPLICATION") in respect of an Individual Goodwill Tax Benefit in the amount of
E 460,000.
(j) EMI First Demand Guarantee
(i) Any demand by Vendors for the withdrawal of funds from the
escrow account as contemplated in this Section 8.2 shall be conditioned upon the
delivery to Purchasers of a first demand corporate guarantee issued by EMI in
favour of the Purchasers in terms of this Section 8.2(j) ("the EMI First Demand
Guarantee") in the form and text attached hereto as SCHEDULE 8.2(J);
(ii) The EMI First Demand Guarantee shall be in an amount
equal to : (1) the amount of the relevant Individual Goodwill Tax Benefit to be
withdrawn; and (2) fines, penalties and late payment interests actually charged
by the Tax Authorities in a Tax Demand (as hereinafter defined), but in any
event in a total amount which shall not exceed 25% of the relevant Individual
Goodwill Tax Benefit;
(iii) Purchasers shall not be entitled to draw down on the EMI
First Demand Guarantee after the expiry of a period commencing on its date of
issue and terminating on the 5th anniversary of that date;
(iv) The EMI First Demand Guarantee will be payable on demand.
However, Purchasers undertake that they shall not make any demands under the EMI
First Demand Guarantee unless and until the Tax Authorities have re-assessed the
use of the Individual Goodwill Tax Benefit by the Goodwill Beneficiary and have
delivered to the Goodwill Beneficiary a demand for the payment of taxes, fines,
penalties and/or late payment interests relating directly to the use of the
relevant Individual Goodwill Tax Benfit (a "Tax Demand"),
(v) In the event that Vendors contest the Tax Demand and
succeed in definitely canceling the Tax Demand, then and in such event
Purchasers undertake to cause that any amounts drawn down on the EMI First
Demand Guarantee on the basis of such Tax Demand shall be refunded in full to
EMI; and
(vi) In the event that, notwithstanding that a "refusal" has
been given to any of the Duna Application, the Csepel Application or the
Debrecen Application, but the relevant Goodwill Beneficiary nevertheless makes
use of the Individual Goodwill Tax Benefit, then and in such event Purchasers
undertake to return to EMI all amounts drawn down under the EMI First Demand
Guarantee..
8.3 Duna Plaza Extension
(a) The parties record and declare that the acquisition of D2 Rt.
specifically includes the rights in and to the proposed Duna Plaza Extension.
(b) In respect of the Duna Plaza Extension., PCE and Duna Plaza Rt
shall as soon as reasonably practicable after the Closing Date agree in good
faith on the valid building permits, and the detailed plans and designs of the
Duna Plaza Extension.
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Undertaking to Construct.
(c) PCE shall construct, complete and deliver to Duna Plaza Rt. the
Duna Plaza Extension fully in accordance with (i) the valid agreed building
permits and the plans and designs; and, (ii) the terms and conditions of the
Duna Plaza Turnkey Development Agreement. PCE shall be required to perform the
Duna Plaza Extension's works and to acquire the supplies, parts, materials,
services and equipment necessary, even if not specifically identified or
otherwise specified by Duna Plaza Turnkey Development Agreement, so as to ensure
that the works are completed in a timely manner and in accordance with the
agreed plans and designs and the technical specifications. At the time of
delivery of the Duna Plaza Extension, the works shall be technically and
administratively viable, conform with the Duna Plaza Turnkey Development
Agreement in all material respects, and be capable of operation within its
intended purpose.
Plans and Designs, Building Permits.
(d) It shall be the responsibility of PCE to obtain all building
permits and other Permits required under operation of applicable law in order to
enable the construction of the Duna Plaza Extension in accordance with the said
agreed plans and designs. In the event that the building permits and other
Permits have not been issued and/or have not become valid and final, by the
fifth anniversary of the Closing Date, notwithstanding the diligent and
commercially reasonable efforts of the Parties, then and in such event the
Parties shall be deemed to have waived all their respective rights, and to have
been be fully and unconditionally released from all their respective
obligations, in terms of the provisions of this Section 8.3, and/or the Duna
Plaza Turn-Key Development Agreement, without sanction or penalty.
(e) Purchasers and Duna Plaza Rt. shall give positive
consideration to a proposed "land swap" with the owners of the adjacent parcels
of land, so as to enable the construction of a parking garage intended to
service the Duna Plaza Extension.
(f) Duna Plaza Rt. shall upon request furnish PCE and/or its
representatives with special powers of attorney or other authorizations which
may be necessary or required in order to enable PCE to obtain the valid and
legal building permits in the name of Duna Plaza Rt., and generally to fulfill
its undertakings and obligations in terms of the Duna Plaza Turn-Key Development
Agreement.
(g) PCE shall have the right to engage reputable building
contractors, consultants, service providers and other parties as sub-contractors
in respect of the execution of the construction works, in accordance with the
terms and provisions of the Duna Plaza Turnkey Agreement. The appointment of
such sub-contractors shall be subject to Purchaser's approval, such approval not
to be unreasonably or arbitrarily withheld or delayed.
Commencement of Construction - Non Commencement.
(h) Subject to : (i) the consummation of the Transactions in terms
of Article VII above in respect of a majority of the Contract Companies and
specifically including X0 XX. xxx Xxxx Xxxxx Xx; (ii) the execution of the Duna
Plaza Turn-Key Development Agreement; and (iii) the obtaining of the valid and
legal building permits as aforesaid; it is anticipated that construction of the
Duna Plaza Extension will commence in early 2005, and will be completed within
30 (thirty) months (including the parking garage).
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(i) In the event that the construction works for the Duna Plaza
Extension shall have not commenced by the 2nd (second) anniversary of the
Closing Date by reason of the refusal or neglect of Purchaser and/or Duna Plaza
Rt. to authorize the commencement of construction under the Duna Plaza Turnkey
Agreement, notwithstanding that : (i) the Closing of the Transaction shall have
occurred; and (ii) the valid and legal building permits have been issued which
enables the commencement of such construction and which are in accordance with
the agreed plans and specifications in all material respects); then and in such
event PCE shall have the right to terminate the Duna Plaza Turnkey Agreement. In
such event, Purchaser shall be obliged and hereby undertakes to compensate PCE
for the value of the building rights inherent in the Duna Plaza Extension in the
amount of E 10,000,000 (ten million Euro), payable not later than the effective
date of termination of the Duna Plaza Turnkey Agreement. For the avoidance of
doubt, the maximum amount to be paid by Purchaser to PCE in terms of this
sub-section shall in all events be capped at the total amount of E 10,000,000
(ten million Euro) and PCE shall waive unconditionally any right to
compensation, fees or damages to be awarded by Duna Plaza Rt. Prior to payment.
(j) If on the second anniversary of the Closing Date the conditions
precedent set forth in Section 8.3(i) above are not fulfilled and if PCE is
liable for such failure, Duna Plaza Rt. shall be entitled to elect to extend the
Duna Plaza Turn-Key Development Agreement for another period of two years for
PCE to correct its faults and procure the fulfilment of the conditions
precedent, if possible. If such election has not been exercised or, if it has
been elected, if the conditions precedent are still not fulfilled at the end of
the extension period, Duna Plaza Rt. shall nonetheless be granted an irrevocable
license to use the technical documentation in connection with the Duna Plaza
Extension's works and be assigned the exclusive right to use the designs and
architectural conception of the Extension free of royalties (but subject to
copyright of the designing architects).
Duna Plaza Turn-Key Development Agreement.
(k) As soon as practical following the Closing, Duna Plaza Rt. and
PCE shall prepare, negotiate and execute a turnkey agreement the terms and
conditions of which shall be customary for an institutional investor (the "DUNA
PLAZA TURNKEY DEVELOPMENT AGREEMENT").
(l) The Duna Plaza Turnkey Development Agreement shall provide among
other things that:
(i) Duna Plaza Rt. shall not bear any development
responsibility and that in this respect the situation should be as analogous as
possible to that arising of the purchase Duna Plaza Rt from PCE of an existing
building. As a result PCE shall be the sole co-contracting party of Duna Plaza
Rt and shall be accountable for all the works, services, faults or omissions of
the sub-contractors, architects, engineers, suppliers, or surveyors.
(ii) PCE's primary and fundamental obligation under the Duna
Plaza Turnkey Development Agreement shall to design, engineer, manufacture,
deliver to site, install, construct after having obtained the necessary
administrative approvals, free of any challenges or right of withdrawal, and
test the works so that the works and each and every component of the works: (1)
meet or exceed the guarantees and other requirements upon completion and at all
relevant times thereafter, provided that the Duna Plaza Extension shall be of
the same standard or higher as the existing Duna Plaza Portfolio Center; (2)
upon
56
completion comply with all applicable laws; and (3) upon completion, be
otherwise fit for their intended purposes.
Lease Up.
(m) The Duna Plaza Turn-Key Development Agreement shall also provide
that PCE shall be responsible for the marketing and lease-up of the Duna Plaza
Extension leasable areas in a timely and efficient manner to reputable tenants
of good standing. All lease agreements shall be concluded directly between Duna
Plaza Rt. and the individual tenants in the standard form of contract used by
Duna Plaza Rt. at that time.
(n) Purchasers undertake to cause that the consent of Duna Plaza Rt.
will not be unreasonably withheld or delayed, provided that the following
leasing parameters, as reasonably determined by Purchasers ("EXTENSION LEASING
PARAMETERS") are observed by PCE, namely:
(i) the rentals payable under the lease agreements are equal
to or higher than the average rentals payable at the same time by tenants in the
existing Duna Plaza Portfolio Center;
(ii) general and customary leasing parameters and guidelines;
(iii) rental grids (but no higher than 20% of the rental grid
in respect of any specific tenant, or 10% in the aggregate regarding all
tenants); and
(iv) tenant mix.
(o) Notwithstanding the foregoing, Duna Plaza Rt. shall remain free
to market and lease premises to tenants not introduced by PCE , provided however
that : (A) the Extension Leasing Parameters are observed; (B) Duna Plaza Rt.
will co-ordinate such independent leasing operations with PCE; and (C) the
leases signed as a result of such independent leasing operations shall be
included in the calculation of the 90% threshold referred to in Section
8.3(s)(iv) below.
Duna Plaza Extension Payment.
(p) In consideration for the fulfillment of its undertakings and
obligations pursuant to the provisions of the Duna Plaza Turnkey Development
Agreement, PCE shall be entitled to receive, and Duna Plaza Rt. shall be
obligated to pay, an amount equivalent to Triple Net Rents generated by the Duna
Plaza Extension, determined in accordance to the formula set forth in SCHEDULE
3.1(B)(I), capitalized at a rate of 8.75%. The Duna Plaza Extension Payment
shall be paid as follows : (A) during the construction period, the Construction
Period Payments will be paid on account of the Duna Plaza Extension Payment, in
accordance with the provisions of Section 8.3(r) below; (B) subject to the
fulfillment of the conditions specified in Section 8.3(s) below, the balance of
the estimated Duna Plaza Extension Payment shall be paid; and (C) a final
verification of the Duna Plaza Extension Payment shall be conducted within 9
(nine) months in accordance with the provisions of Section 8.3(t) below.
(q) The "ESTIMATED DUNA PLAZA EXTENSION PRICE" shall be calculated
upon the execution of the Duna Plaza Turn-Key Development Agreement on the basis
of PCE's reasonable assessment
57
of the future Triple Net Rents to be generated by the Duna Plaza Extension
following completion and delivery, calculated in accordance with the Duna Plaza
Extension methodology attached hereto as SCHEDULE 8.3(Q).
Construction Period Payments.
(r) During construction, Duna Plaza Rt. shall pay to PCE the
construction costs (as determined in the Duna Plaza Turnkey Development
Agreement plus a 10% overhead cost factor, but in any event capped at an amount
equivalent to 80% of the Estimated Duna Plaza Extension Price (as hereinabove
defined (the "CONSTRUCTION PERIOD PAYMENTS"). The Construction Period Payments
will be paid according to agreed milestones based on the progress of the
construction works, as specified in the Duna Plaza Turnkey Development
Agreement.
Final Duna Plaza Extension Payment.
(s) Subject to the terms of the Duna Plaza Turnkey Development
Agreement, Duna Plaza Rt. shall execute payment to PCE of the difference between
the Estimated Duna Plaza Extension Price and those amounts of the Construction
Period Payment paid on account during the construction period in terms of
Section 8.3(r) above. (the "FINAL DUNA PLAZA EXTENSION PAYMENT"). The Final Duna
Plaza Extension Payment shall be made not later than 10 (ten) Business Days (or
such other date as shall be mutually agreed) following the fulfillment, or
waiver by Purchaser, of the following conditions, namely:
(i) the Duna Plaza Extension shall be practically complete,
and shall have been delivered to Duna Plaza Rt. pursuant to the provisions of
the Duna Plaza Turnkey Development Agreement;
(ii) the Duna Plaza Extension shall be open to the public at
large, and all accesses to and from public roads and streets, as specified in
the approved plans and designs and in the building permits, shall be open to
pedestrian and vehicular traffic;
(iii) all the authorizations and Permits required by
applicable law for the operation of the Duna Plaza Extension (including the
occupancy permits and other operational permits) shall have been obtained, and
shall be valid and legal; and
(iv) Lease Contracts in relation to at least 90% of the
letable area of the Duna Plaza Extension shall have been executed and shall be
in force and effect, provided however, that Purchaser (acting through Duna Plaza
Rt.) shall not be entitled to withhold its approval for the execution of Lease
Agreements without legitimate grounds if same are in accordance with the
Extension Leasing Parameters (as defined in Section 8.2(n)above).
Final Verification of the Duna Plaza Final Payment.
(t) Not later than a date nine (9) months following the date of
delivery of the Duna Plaza Extension under the Duna Plaza Turn-Key Development
Agreement, the Estimated Duna Plaza Extension Price calculated in terms of
Section 8.2(q) above, the aggregate of the Estimated Duna Plaza Extension
Payment shall be adjusted (upwards or downwards, as the case may be) according
the actual Duna Plaza Extension Triple Net Rents determined in accordance to the
formula set forth in SCHEDULE 3.1(B)(I), capitalized at a rate
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of 8.75%. Any payments to be made in consequence of the adjustments to be made
in terms of this section shall be effected with 10 (ten) Business Days from the
date of the determination of the adjustment amount.
8.4 Duna Plaza Offices. Inasmuch as the Parties have agreed between them
that the Duna Plaza Offices are excluded from the ambit of the Transaction which
is the subject matter of this Agreement, PCE and Purchasers shall by not later
than the Closing enter into a separate DPO Interim Agreement in the form and
text attached hereto as SCHEDULE 8.4.
8.5 Re-Organization of Management Company Activities. It is specifically
agreed between the Parties to this Agreement that, notwithstanding the
provisions of the Heads of Terms dated May 10th, 2004, a reorganization of the
business, legal and financial activities of the Management Company will be
implemented jointly by Segece and PCM-BV following the Closing, in accordance
with the following terms, provisions and conditions:
(a) On a date to be agreed between Segece and PCM-BV, but in any
event nor later than November 1, 2004, each of the Property Companies and each
of the Direct Property Companies shall enter into a Patrimonial Management
Contract (in the agreed form attached hereto as SCHEDULE 8.5(A) with PCMM in
respect of the management and operation of each of the respective Portfolio
Centers, and the administration of the relevant Property Company and Direct
Property Company.
(b) The Patrimonial Management Contracts will determine and
implement a new fee and costing regime pertaining to the management and
operation of the Portfolio Centers, which shall be implemented according to the
step plan attached hereto as SCHEDULE 8.5(B), it being specified however that
any payments under the Patrimonial Management Contracts will be conditioned upon
the occurrence of the Closing and the repayment of the Assumed Financing Loans..
(c) PCE shall cause PCMM to act diligently in order to make all
legal, technical and other arrangements and modifications vis-a-vis suppliers,
tenants and any other relevant third party in order to implement the
Reorganization as set forth in SCHEDULE 8.5(B) as expeditiously as possible, but
in any event by not later than January 1st, 2005.
(d) In addition:
(i) each of the Excluded Centers Companies shall conclude
Patrimonial Management Contracts with PCMM on a date to be agreed between Segece
and PCM-BV, but in any event nor later than November 1, 2004. Subject to
specific reporting requirements of Vendors and other agreed changes, these
Patrimonial Management Agreements will be in identical form, mutatis mutandis,
and will also be implemented according to the step plan attached SCHEDULE
8.5(b). Any payment under the Patrimonial Management Contracts pertaining to the
Excluded Centers will be conditioned upon the occurrence of the Closing and the
repayment of the Financing Loans applicable to the Excluded Centers, unless
otherwise agreed; and
(ii) PCMM may conclude agreement(s) with PCE and/or its
subsidiaries in respect of the rendering of certain marketing and lease-up
services in respect of new shopping and entertainment centers owned and/or to be
developed by PCE which are not the subject of the Transaction, on terms and
conditions to be agreed on an ad hoc basis.
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(e) It is hereby specifically agreed that, notwithstanding the
provisions of the Heads of Terms dated May 10, 2004, neither the execution of
the Patrimonial Management Contract nor the implementation of the PCMM
Reorganization shall not constitute a condition for closing.
(f) PCE shall cause the mandate agreements set forth in SCHEDULE
8.5(F)(the "MANDATE AGREEMENTS") to be terminated before December 31st, 2004,
failing which the provisions of Section 12.1(g) below shall apply.
8.6 Non-Compete.
(a) PCE undertakes that neither it nor its Group Affiliates shall,
during a ten-year period commencing on the Closing Date, directly or indirectly,
own, manage, operate, control or be connected with, any shopping and
entertainment centers or factory outlets within the Restricted Areas (as
hereinafter defined).
(b) For the purposes of this Section, the term "RESTRICTED AREAS"
means those areas lying within a radius of: (i) 4 (four) kilometers from the
Duna Plaza and Csepel Plaza Portfolio Centers in Budapest (but specifically
excluding the Obuda Island and the properties located at 25 Andrassy ut. and 59
Andrassy ut., which shall not constitute Restricted Areas notwithstanding that
the are located within the 4 (four) kilometer radious abovementioned); or (ii)
10 (ten) kilometers in any other regional city in which a Portfolio Center
(excluding Duna Plaza and Csepel Plaza) is situated.
8.7 Non-Solicitation. PCE and its Group Affiliates (including PCM-BV)
shall, for a period of 10 (ten) years following the Closing Date, be prohibited
(directly or indirectly) from soliciting or encouraging the managers and
employees of PCMM and/or PCMM-II to leave their functions or from otherwise
recruiting them to fulfill any position within the PCE group of companies
(including acting as independent consultants or contractors). However, in the
event that an employee of PCMM or PCMM-II shall voluntarily resign from his
employment with those companies, or either of them, or in the event that such
employee shall be dismissed from his employment for whatever reason, then and in
such event the non-solicitation undertakings made in terms of this section shall
cease to be applicable or effective, in respect of that employee only, after the
elapse of 6 (six) months from the effective date of the termination of his
employment as aforesaid.
8.8 Collection of Receivables. Purchasers and/or Segece shall exert all
reasonable commercial efforts in order to collect receivables which are
outstanding at the Reference Date for a period in excess of 6 months in
accordance with the Accounting Principles specified in SCHEDULE 8.8/A, and which
are to be excluded from the calculation of the Definitive Portfolio Company
Prices. A list of these outstanding receivables (estimated) shall compromise
part of the Definitive Portfolio Companies Accounts to be furnished to
Purchasers in terms of the provisions of Section 3.5 above. Any amounts
collected by the relevant Contracts Company within 18 (eighteen) months of the
Closing Date in respect of such identified outstanding receivables shall be
transferred to PCE, less any reasonable collection costs (including reasonable
legal fees) incurred in respect thereof, and after deduction of any taxes
applicable thereto.
8.9 PCMM Inventory. PCM-BV undertakes to ensure that as soon as possible
following the closing, but in any event by not later than December 31st, 2004,
it shall compile and complete a detailed inventory of the moveable assets and
chattels of PCMM, including those items which are physically located in the
Portfolio Centers. PCM-BV undertakes to act in good faith in compiling the
inventory list, and to refrain
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from any act which would unreasonably prejudice the interests of Segece. PCE
shall undertake to transfer without delay and for free to PCMM all the full
ownership of all the assets (including the files, data, softwares, computers
currently) currently used for the purpose of the operation of its business and
its activity.
ARTICLE IX - OTHER AGREEMENTS AND COVENANTS
9.1 Confidentiality. Each of the Parties hereto hereby agrees to keep such
information or knowledge obtained in any due diligence or other investigation
pursuant to the negotiation and execution of this Agreement or the effectuation
of the transactions contemplated hereby, confidential; provided, however, that
the foregoing shall not apply to information or knowledge: (a) the disclosure
of which is mandated by operation of any securities law or regulations of any
recognized stock exchange in any jurisdiction which are applicable to the
Parties and/or their affiliates; (b) which a Party can demonstrate was already
lawfully in its possession prior to the disclosure thereof by the other party;
(c) which is generally known to the public and did not become so known through
any violation of law or the terms of this section; (d) which became known to the
public through no fault of such Party; (e) which is later lawfully acquired by
another Party from other sources; (f) which is required to be disclosed by order
of court or government agency with subpoena powers; or (g) which is disclosed in
the course of any Proceedings between any of the Parties hereto.
9.2 Additional Documents and Further Assurances. Each Party hereto, at the
request of another Party hereto, shall execute and deliver such other
instruments and do and perform such other acts and things as may be reasonably
necessary for effecting the consummation of the Transactions contemplated
hereby.
ARTICLE X - WITHDRAWAL OPTION
10.1 Withdrawal Option. Notwithstanding anything to the contrary herein
contained, Purchasers and Segece shall have an option to withdraw from the
Transaction and to terminate this Agreement at any time prior to the Closing,
but only in the following events, namely:
(a) In the event that at any time prior to Closing, Purchasers
and/or Segece (whether as a result of its due diligence findings or otherwise)
shall become aware of objective findings that have a Material Adverse Effect (as
hereinafter defined) resulting from:
(i) defects, deficiencies or encumbrances on the rights,
title, interests and ownership of the Contract Companies and/or the Portfolio
Centers; and/or
(ii) discrepancies or inaccuracies in the financial
information provided to Purchasers, including in the Estimated Portfolio
Companies Accounts and the Estimated PCMM Accounts; and/or
(iii) any other matters (including a material change in the
operations of the Portfolio Centers or the Contract Companies as a result of
their operation in a manner which is inconsistent with the ordinary and usual
course of business or with past practise; and/or.
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(b) upon the occurrence of a change in the tax or legal situation of
Hungary which has a Material Adverse Effect in the aggregate.
10.2 Material Adverse Effect Defined. For the purposes of this Article X,
and without prejudice to the representations and warranties given by Vendors in
terms of Article IV hereof and to the provisions of Section 3.6 above, the term
"MATERIAL ADVERSE EFFECT" shall have the meanings ascribed to it hereunder, and
each such event shall constitute an "MAE EVENT":
(a) any matter(s) that has(have) or could reasonably be anticipated
to have an adverse effect (direct or indirect, present or future, conditional or
not) on Purchasers and/or on the rights and interests to be acquired by them
directly or indirectly in terms of this Agreement, which is or may be quantified
with a financial value in the aggregate in excess of an amount equivalent to 5%
(five percent) of the total of the Estimated Portfolio Companies Prices for all
Portfolio Centers in the aggregate; or
(b) any matter(s) that has(have) or could reasonably be anticipated
to have an adverse effect (direct or indirect, present or future, conditional or
not) on Purchasers and/or the rights and interests to be acquired by Purchasers
directly or indirectly in terms hereof in respect of an individual Portfolio
Company or Direct Property Company only, which is or may be quantified with a
financial value in excess of an amount equivalent to 5% (five percent) of the
Estimated Portfolio Companies Price for that specific Portfolio Company only; or
(c) any matter(s) that has(have) or could reasonably be anticipated
to have an adverse effect (direct or indirect, present or future, conditional or
not) on Segece and/or the rights and interests which are to be acquired by
Segece directly or indirectly in terms hereof in respect of PCMM only, which is
or may be quantified with a financial value in excess of an amount equivalent to
5% (five percent) of the Estimated PCMM Shares Value; or any defect, impediment
or encumbrance which would materially jeopardize or prejudice the value and/or
integrity of the legal rights (including the permits and authorizations) and
interests to be acquired directly or indirectly by Segece in respect of PCMM, in
such manner that Segece will be prevented from or unreasonably delayed in
exercising free, permanent and unfettered rights of ownership, operation,
possession and disposal (including syndication) of the assets and rights so
acquired in respect of PCMM; or
(d) any defect, impediment or encumbrance which would materially
jeopardize or prejudice the value and/or integrity of the legal rights
(including the permits and authorizations) and interests to be acquired directly
or indirectly by Purchasers in terms hereof, in such manner that Purchasers will
be prevented from or unreasonably delayed in exercising free, permanent and
unfettered rights of ownership, operation, possession and disposal (including
syndication) of the assets and rights so acquired in respect of all or a
majority of the Portfolio Centers and/or the Portfolio Companies, or
specifically in respect of the Duna Plaza Shopping Center (it being specified
that the existence of Financing Banks Securities pertaining to the Assumed
Financing Loans shall not per se constitute an MAE Event to the extent they are
capable of release upon full repayment of the relevant Assumed Financing Loan;
or
(e) any defect, impediment or encumbrance which would materially
jeopardize or prejudice the value and/or integrity of the legal rights
(including the permits and authorizations) and interests to be acquired directly
or indirectly by Purchasers in respect of a specific Portfolio Center, in such
manner that Purchasers will be prevented from or unreasonably delayed in
exercising free, permanent and unfettered
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rights of ownership, operation, possession and disposal (including syndication)
of the assets and rights so acquired in respect of that specific Portfolio
Centers and/or the relevant Portfolio Company or Direct Property Company (it
being specified that the existence of Financing Banks Securities pertaining to
the Assumed Financing Loans shall not per se constitute an MAE Event to the
extent they are capable of release upon full repayment of the relevant Assumed
Financing Loan).
10.3 Right of Withdrawal. Upon the occurrence of:
(a) an MAE Event under Sections 10.2(a) or 10.2(d) above,
Purchasers shall be entitled to withdraw from the entire Transaction in respect
of all Portfolio Companies and all Portfolio Centers, and Segece shall be
entitled to withdraw from the transaction for the acquisition of the Acquired
PCMM Quota;
(b) an MAE Event under Section 10.2(b) above which affects the Duna
Plaza Center only, Purchasers shall be entitled to withdraw from the entire
Transaction in respect of all Portfolio Companies and all Portfolio Centers, and
Segece shall be entitled to withdraw from the transaction for the acquisition of
the Acquired PCMM Quota;
(c) an MAE Event under Sections 10.2(b) and/or 10.2(e) above
which affects any Portfolio Center other than the Duna Plaza Center, Purchasers
shall be entitled to exercise its partial consummation rights under Section 7.5
above in respect of that specific Portfolio Center only; and
(d) an MAE Event under Section 10.2(c) above which affects PCMM
only, Segece shall be entitled to withdraw from the transaction for the
acquisition of the Acquired PCMM Quota.
10.4 Withdrawal Notice and Rectification.
(a) Subject to the provisions of Section 10.5 below, if the
Purchasers and/or Segece elect to withdraw from the Transaction pursuant to the
provisions of Section 10.1(a) above, they shall be entitled to do so by the
giving of written notice of their intention to do so, specifying their reasons
for doing so, and giving particulars of the MAE Event which has occurred in
sufficient detail to enable Vendors to identify the nature of the event.
(b) Vendors shall be afforded an opportunity to rectify the MAE
Event identified in the Withdrawal Notice within 21 (twenty one) days from the
date of receipt of the Withdrawal Notice (provided that if the MAE Event is
incapable of being rectified within that period for reasons beyond the control
of Vendos, Buyers will not unreasonably withhold their consent to an extension
of such rectification period).
(c) In the event that PCE shall have failed to rectify the matter to
the reasonable satisfaction of Purchasers or Segece within the said 21day
rectification period (as extended, where relevant), then and in such event the
Withdrawal Notice shall become effective
10.5 Restrictions on Rights of Withdrawal. For the avoidance of doubt,
it is hereby stated and declared that:
(a) Upon the Closing, the rights of withdrawal awarded to Buyers in
terms of this Article X shall automatically lapse and be of no further force and
effect;
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(b) Upon the occurrence of a deferred closing in respect of any
individual Portfolio Company as provided in Section 7.6 above, the rights of
withdrawal provided for in this Article X shall continue in force in respect of
the relevant Portfolio Company and Portfolio Center only;
(c) No separate rights of withdrawal shall exist in respect of the
Duna Plaza Extension only following the Closing, which shall be governed by the
provisions of the Duna Plaza Construction Agreement;
(d) Nothing in this Article X contained shall be deemed to derogate
from the rights of Vendors to refer any dispute regarding the existence of an
MAE Event to arbitration pursuant to the provisions of Section 14.3 below.
(e) In the event that Purchasers only shall furnish a notice of
withdrawal on the basis of an MAE Event which has occurred under Sections
10.2(a), 10.2(b) and 10.2(d) above, then and in such event Segece shall
automatically be deemed to have furnished a notice of withdrawal in respect of
the acquisition of the Acquired PCMM Quota, it being understood that Segece
shall not be permitted to enforce the transaction for the acquisition of the
Acquired PCMM Quota in the event that Purchasers have elected to withdraw from
the transaction for the acquisition of all of the Portfolio Companies.
10.6 Consequences of Withdrawal and Termination.
(a) The exercise by Purchasers and/or Segece of their respective
rights of withdrawal and termination in terms of this Article X shall be without
sanction or penalty whatsoever to any of the Parties. All costs and expenses
incurred by the Parties prior to the effective date of the termination of the
Agreement and/or the Ancillary Agreements as aforesaid shall be for their own
cost and account, and no rights of reimbursement, compensation or indemnity
shall exist in that event.
(b) Upon the notice of withdrawal becoming effective as contemplated
in Section 10.4(c) above, this Agreement and all the Ancillary Agreements shall
be deemed to have been terminated by mutual consent and shall be of no further
force and effect.
(c) However, if a notice of withdrawal has become effective in
respect of an individual Portfolio Company only, or in respect of the Acquired
PCMM Quota only, then and in such event this Agreement and the Ancillary
Agreements shall be deemed to have been modified and amended in such manner that
all references to the relevant Transaction Company shall be deleted.
ARTICLE XI - SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
11.1 Representations, Warranties and Covenants. The covenants contained in
this Agreement and of any of the Ancillary Agreements shall survive the
applicable Closing Date indefinitely and without limitation except as otherwise
specified therein. The representations and warranties contained in this
Agreement shall survive the applicable Closing Date and continue in full force
and effect for a period of thirty six (36) months (such date upon which they
expire being referred to herein as the "SURVIVAL DATE") and shall thereafter
expire; provided, however, that notwithstanding the foregoing (i) the
representations and
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warranties of Vendors relating to Tax matters (including in Section 4.16) shall
survive until the date which is sixty (60) days following the expiration of the
applicable statute of limitations (after giving effect to any extensions or
waivers) and (ii) the representations and warranties of Vendors contained in
Section 4.2 (Authorization) and Section 4.30] (Environment, Health and Safety),
and the representations and warranties of Buyers contained in Section 5.2
(Authorization), shall survive the applicable Closing Date indefinitely and
without limitation. Buyers' right to make a claim for indemnification under
Section 12.1, and Vendors' right to make a claim for indemnification under
Section 12.2, for a breach of any representation or warranty shall be made on or
prior to the date, if any, on which the survival period for such representation
or warranty expires, irrespective as to whether the Damages (as hereinafter in
Section 12.1 defined) may be suffered after the Survival Date. Any claims under
Article XII must be asserted in writing with reasonable particularity by the
party making such claim.
ARTICLE XII - INDEMNIFICATION
12.1 Indemnification by Vendors. Subject to Section 12.5 below, PCE, EUN,
Szeged and PCM-BV, acting jointly and severally, shall defend, indemnify and
hold harmless Purchasers and Segece - or at the discretion of Purchasers and/or
Segece - any of the Contract Companies (and their respective successors, assigns
and Affiliates) (individually, a "BUYERS INDEMNITEE", and collectively, the
"BUYERS INDEMNITEES") from and against and in respect of any and all losses,
damages, deficiencies, liabilities, assessments, judgments, costs and expenses,
including attorneys' fees (both those incurred in connection with the defense or
prosecution of the indemnifiable claim and those incurred in connection with the
enforcement of this provision) (collectively, "DAMAGES") suffered or incurred by
any Buyers Indemnitee which is caused by, resulting from or arising out of,
related to, in the nature of:
(a) any breach of any representation or warranty of any of the
Vendors contained in this Agreement or in any Ancillary Agreement, or other
agreement, certificate, instrument or other document entered into or delivered
by Vendors in connection herewith;
(b) any breach of any covenant of any of the Vendors contained in
this Agreement or in any Ancillary Agreement, or other agreement, certificate,
instrument or other document entered into or delivered by Vendors in connection
herewith;
(c) Taxes chargeable to or asserted against the Contract Companies
in terms of a final assessment and/or enforceable judgment in respect of the
period preceding the Reference Date, but only to the extent that such Taxes
exceed the amount, if any, reserved for such Taxes (excluding any reserve for
deferred Taxes established to reflect timing differences between book and Tax
income) on the face of the Final Definitive Closing Account (rather than in any
notes thereto); and Taxes imposed in respect of the Excluded Asset;
(d) any additional Tax liabilities assessed, and related sanctions
such as fines, penalties and late payment interest) regarding any type of Tax
imposed by the statutory Tax Authorities directly or indirectly related to the
fiscal years prior to the Reference Date which are directly or indirectly
attributable to the acts, deeds and omissions of the Vendors;
65
(e) any additional Tax liability related to the implementation of
the Post Closing Merger Procedures referred to in Section 8.1 above (including
any Damage related to any delay, challenge, or impediment regarding any of the
Post Closing Mergers;
(f) any additional Tax liabilities assessed, and related sanctions
(such as penalties and late payment interest) regarding any type of Tax imposed
or assessed by the statutory Tax Authorities directly or indirectly related to
the fiscal years in respect of which review has been partial, not definitive
and/or impossible due to the lack of documentation provided or made available by
the Vendors;
(g) the execution, the performance and/or the termination of any of
the Mandate Agreements, as referred to in Section 8.5(f) above, in respect of
the four head - office Employees of PCMM only and to the extent only that
increased costs associated with such Mandate Agreements have not been taken into
consideration in the determination of the PCMM Shares Value; and, any tax
liabilities in connection with all Mandate Agreements;
(h) any of the Proceedings set forth in the Proceedings Schedule
(SCHEDULE 4.26) and/or any environmental Damage related to the potential risks
set forth in SCHEDULE 4.30(C) under a final and enforceable judgment or Order ;
(i) any dysfunction or improper use of the electricity meter in the
Alba Plaza Portfolio Center prior to the Closing Date, and in particular any
claim that may be initiated by the electricity supplier of such center arising
therefrom;
(j) any Damages which will be suffered by Purchasers in the event
that the tax authorities decide to re-assess the depreciation policies
pertaining to the accumulated carry forward losses of CSPL 2002 Kft. and/or
Debrecen 2002 Kft., as contemplated in Section 8.2, notwithstanding that the
applications made in terms of Section 8.2 above were approved; and
(k) Any Damage which will be suffered by Purchasers in respect of
and/or arising out of encumbrances (including a mortgage) registered in favour
of K&H Bank against the ownership interests of Csepel Plaza Kft. in and to the
Csepel Plaza Portfolio Center as reflected in the Land Registry Extract for
Csepel Plaza Portfolio Center which is attached as an exhibit to the Property
Schedule, (in respect of which applications for termination have been submitted
but have not yet been registered).
12.2 Indemnification by Buyers. Subject to Section 12.5, the Klepierre and
the Buyers agree jointly and severally to defend, indemnify and hold harmless
PCE, EUN, Szeged and PCM-BV and their respective successors, assigns and
Affiliates (individually, a "VENDORS INDEMNITEE", and collectively, the "VENDORS
INDEMNITEES") from and against and in respect of any and all Damages suffered or
incurred by any Vendors Indemnitee which is caused by, resulting from or arising
out relating to, in the nature of:
(a) any breach of any representation and warranty of Buyers
contained in this Agreement, or in any Ancillary Agreement, or other agreement,
certificate, instrument or other document entered into or delivered by any of
Klepierre and/or, the Purchasers and/or Segece in connection herewith;
66
(b) any breach of any covenant of any of the Buyers and Klepierre
contained in this Agreement or in any Ancillary Agreement, or other agreement,
certificate, instrument or other document entered into or delivered by Vendors
and Klepierre in connection herewith; and
(c) any Damage which may be suffered by Vendors by reason of the
failure of Purchasers to fulfill their undertakings made in terms of Section
2.3(b) above.
12.3 Notice and Opportunity to Defend.
(a) If any action, proceeding, claim, liability, demand or
assessment shall be asserted by a third party against any Buyers Indemnitee or
any Vendors Indemnitee (the "INDEMNITEE") with respect to any matter (a "THIRD
PARTY CLAIM") in respect of which such Indemnitee proposes to demand
indemnification in terms of this Article XII, such Indemnitee shall notify the
party obligated to provide indemnification pursuant to Section 12.1 or Section
12.2 (the "INDEMNIFYING PARTY") thereof within a reasonable period of time after
assertion thereof; provided, however, that the failure to so notify the
Indemnifying Party shall not affect the Indemnitee's right to indemnification
hereunder unless (and solely to the extent) the Indemnifying Party's interests
are actually and materially prejudiced thereby. Subject to rights of or duties
to any insurer or other third Person having liability therefor, the Indemnifying
Party shall have the right, within ten (10) days after receipt of such notice,
to defend the Indemnitee against the Third Party Claim with counsel of its
choice reasonably satisfactory to the Indemnitee; provided, however, that the
Indemnifying Party notifies the Indemnitee in writing within 15 days after the
Indemnitee has given notice of the Third Party Claim that the Indemnifying Party
will indemnify the Indemnitee from and against the entirety of any damage the
Indemnitee may suffer resulting from, arising out of, relating to, in the nature
of, or caused by the Third Party Claim, and provided further that the
Indemnifying Party may not assume such control without Indemnitee's express
written consent if : (i) the Third Party Claim does not involve only money
damages but also seeks an injunction or other equitable relief; or (ii)
settlement of, or an adverse judgment with respect to, the Third Party Claim is,
in the good faith judgment of the Indemnitee, likely to establish a precedential
custom or practice materially adverse to the continuing business interests or
the reputation of the Indemnitee. The Indemnifying Party shall conduct the
defense of the Third Party Claim actively and diligently.
(b) So long as the Indemnifying Party is conducting the defense of
the Third Party Claim in accordance with Section 12.3(a) above, (i) the
Indemnitee may retain separate counsel at its sole cost and expense and
participate in the defense of the Third Party Claim, provided that Indemnitee's
counsel may not oppose the professional decisions of the lead counsel engaged by
the Indemnifying Party except on reasonable grounds; (ii) the Indemnitee will
not consent to the entry of any judgment or enter into any settlement with
respect to the Third Party Claim without the prior written consent of the
Indemnifying Party (not to be withheld unreasonably), and (C) the Indemnifying
Party will not consent to the entry of any judgment or enter into any settlement
with respect to the Third Party Claim without the prior written consent of the
Indemnitee (which may only be withheld in the event that such settlement would
serve to create a precedential custom or practice materially adverse to the
continuing business interests or the reputation of the Indemnitee).
(c) In the event that Indemnifying Party declines or fails to assume
control of the defense of any Third Party Claim as specified in Section 12.3(a)
above, then and in such event the Indemnitee may defend against, and consent to
the entry of any judgment or enter into any settlement with respect to, the
Third Party Claim in any manner it reasonably may deem appropriate, subject to
the consent of the Indemnifying Party
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which may not be unreasonably withheld or delayed. The Indemnifying Parties will
reimburse the Indemnitee promptly and periodically for the costs of defending
against the Third Party Claim (including attorneys' fees and expenses), and will
remain responsible for any Damage the Indemnitee may suffer resulting from,
arising out of, relating to, in the nature of, or caused by the Third Party
Claim in accordance with the provisions of this Article XII.
12.4 Remedies. Except for the right to seek to specifically enforce the
covenants hereunder, and except as specifically provided in this Agreement
(including, without limitation, the immediately succeeding sentence), following
the Closing Date, in the absence of fraud or willful breach of this Agreement,
the sole and exclusive remedy of the Buyers (or, at the discretion of
Purchasers, the Contract Companies) and Vendors with respect to any breach of
any representation or warranty contained in this Agreement, or in any agreement,
certificate, instrument or other document entered into in connection herewith,
shall be restricted to the indemnification rights set forth in this Article XII.
Nothing contained in this Article XII or elsewhere in this Agreement shall limit
the liability of any Party under this Agreement if this Agreement is terminated
pursuant to Section 13.1 or otherwise, or if the transactions contemplated
hereby shall not be consummated for any reason.
12.5 Certain Limitations. The liability of the Vendors or Buyers, as
applicable, for claims under this Agreement shall be limited by the following:
(a) At any time after the Survival Date, (i) the Vendors shall have
no further obligations under this Article XII for breaches of representations
and warranties of the Vendors, except for Damages with respect to which the
Buyers Indemnitee has given the Vendor written notice prior to such date in
accordance with Section 12.3 above; and (ii) the Buyers shall have no further
obligations under this Article XII for breaches of representations and
warranties of the Buyers, except for Damages with respect to which the Vendors
Indemnitee has given the Buyers written notice prior to such date in accordance
with Section 12.3.
(b) Notwithstanding anything to the contrary herein, Buyers
Indemnitees shall not be entitled to recover Damages from Vendors pursuant to
Section 12.1(a) unless and until the accumulated aggregate amount of Damages
shall exceed an amount which is the equivalent of E 150,000 (the "VENDOR
INDEMNIFICATION THRESHOLD"); provided, however, that at such time as the
aggregate amount of Damages in respect of the indemnity obligations of Vendors
shall exceed the Vendors Indemnification Threshold, Vendors shall thereafter
indemnify any of the Buyers Indemnitees from all and against all Damage in
excess of equivalent E 10,000.
(c) Notwithstanding anything to the contrary herein, in the absence
of fraud or willful breach of this Agreement (for which there shall be no
limitation), in no event shall the maximum aggregate liability of Vendors in
respect of any claims by the Buyers Indemnitees against Vendors pursuant to
Section 12.1(a) for Damages suffered or incurred by any Buyers Indemnitee exceed
the maximum amount of E 100,000,000.
(d) Notwithstanding anything to the contrary contained herein, any
claim for indemnity made by any Buyer Indemnitee relating to Taxes is subject to
the condition that : (i) Purchasers and/or the Contract Companies shall
authorize and permit the tax advisers of Vendors at Vendors' sole cost and
expense to conduct, direct and process all dealings with the Tax Authorities in
respect of all matters and/or all fiscal years and/or all assessments pertaining
to the period prior to the Reference Date, in close co-operation with
68
the accountants and tax advisers of the Purchasers and the Contract Companies,
provided that neither the Vendors nor their tax advisers shall enter into any
settlement or take any action before the courts, or otherwise compromise any tax
matter that affects or may affect the tax liabilities of Buyers or any of the
Contract Companies, without the prior written consent of the Buyers, which
consent shall not be unreasonably withheld or delayed; and (ii) with respect of
claims which are not based upon a breach of Vendors' representations and
warranties given under Section 4.16 above, the Tax Liability in respect of which
the claim for indemnity is made (including penalties and late payment interest)
does not result from a change adopted by Purchasers and/or the Contract
Companies in the accounting and/or tax policies of the Contract Companies which
has, directly or indirectly, retroactive effect to the period preceding the
Reference Date.
(e) Notwithstanding anything to the contrary herein, the limitations
contained in Section 12.5 (b) shall not apply to claims for indemnification by
Buyers Indemnitees against Vendors in respect of : (i) the indemnities specified
in Section 12.1(b), (c), (d), (e) and (f) above; and (ii) the special
indemnities specified in Section 12.6 below.
(f) Notwithstanding anything to the contrary herein, Vendor
Indemnitees may not shall not be entitled to recover Damages from Buyers unless
and until the accumulated aggregate amount of Damages shall exceed an amount
which is the equivalent of E 150,000 (the "BUYER INDEMNIFICATION THRESHOLD");
provided, however, that at such time as the aggregate amount of Damages in
respect of the indemnity obligations of Buyers shall exceed the Buyers
Indemnification Threshold, Buyers shall thereafter indemnify any of the Vendor
Indemnitees from all and against all Damage in excess of equivalent E 10,000.
(g) Notwithstanding anything to the contrary herein, the limitations
contained in this Section 12.5(f) shall not apply to claims for indemnification
by Vendors Indemnitees against Buyers in respect of: (i) the indemnities
specified in Section 12.2(b); and (ii) all and any Damages which may be
suffered by the Excluded Centers Companies in consequence of the exercise by the
Financing Banks of any cross collateralization rights by reason of an Event of
Default caused by Buyers under the Assumed Financing Loans, as contemplated in
2.3(b) above.
(h) Notwithstanding anything to the contrary herein, in no event
shall the maximum aggregate liability of Buyers in respect of any claims by the
Vendors Indemnitees against Buyers pursuant to Section 12.2 for Damages suffered
or incurred by any Vendors Indemnitees exceed E 100,000,000.
12.6 Special Indemnities. Notwithstanding the provisions of Section
12.5(b) above, Vendors have agreed to provide Buyers with the special
indemnities set forth hereunder. The special indemnities provided in terms of
this Section 12.6 shall be in respect of all Damages suffered by Buyers'
Indemnitees and shall be exempt from the Vendor Indemnification Threshhold and
from the limitations provided for in Section 12.5(b) and (c) above.
(a) Szeged Land Use Extension. In the event that Vendors shall have
failed to obtain the extension of the Land Use rights as contemplated in
Section3.6(a) above by a date 6 (six) months following the Closing Date, then
and in such event PCE and/or EUN shall indemnify Buyers by payment to Purchasers
as a price reduction in respect of the acquisition of the Equity Rights in
Szeged Plaza Kft., in the amount of E300,000 (three hundred thousand Euro),
which the Parties agree represents a fair, equitable and reasonable compensation
for any possible loss of value of the Szeged Plaza Portfolio Center consequent
upon failure to extend the land use rights as aforesaid
69
(b) Surface Area Adjustments (Duna Plaza and Gyor Plaza). Without
derogating from the provisions of Section 3.6(b) above, and in addition thereto,
PCE and/or EUN hereby agree to indemnify KLPH and/or LP7 and/or Duna Plaza Rt.
and/or Gyor Plaza Kft. against any Damage which may be suffered Duna Plaza Rt.
as a result of claims submitted by any of the tenants of the Duna Plaza
Portfolio Center or the Gyor Plaza Portfolio Center by reason of the fact that
the actual surface areas of the units leased by them is less than the surface
areas for which they have been invoiced and for which they have actually paid
rentals. The indemnity provided in terms hereof shall: (i) be for the amount
determined in a final and enforceable judgment as being the amount by which the
tenant has been overcharged for rental payments by reason of the discrepancy
between the actual surface area and the billed surface area; (ii) expire on the
date of expiry of the then current longest running lease agreement as at the
Reference Date (excluding any extensions of that lease agreement which may be
agreed upon)
ARTICLE XIII - TERMINATION
13.1 Termination of the Agreement. The Parties may terminate this
Agreement as provided below:
(a) Any Party may terminate this Agreement by mutual written
consent of all the Parties at any time prior to the Closing;
(b) Any Party may terminate this Agreement by written notice if:
(i) the Closing has not occurred by November 30th, 2004];
provided, however, that the right to terminate this Agreement under this Section
13.1(b)(i) shall not be available to any Party whose action or failure to act
has been a principal cause of or resulted in the failure of the Closing to occur
on or before such date and such action or failure to act constitutes a breach of
this Agreement;
(ii) there shall be a final non-appealable order of a court of
competent jurisdiction in effect preventing consummation of the Transactions
contemplated by this Agreement or
(iii) there shall be any statute, rule, regulation or order
enacted, promulgated or issued or deemed applicable to the Transactions
contemplated by this Agreement by any Governmental Body that would make
consummation of the transactions contemplated by this Agreement illegal;
(c) Purchasers and Segece may terminate this Agreement by written
notice if they are not in material breach of their obligations under this
Agreement and there has been a material breach of any covenant, undertaking,
obligation or agreement contained in this Agreement on the part of Vendors or
either
70
of them and such breach has not been cured within thirty (30) calendar days
after written notice to Vendors; provided, however, that, no cure period shall
be required for a breach which by its nature cannot be cured;
(d) PCE, EUN and PCM-BV may terminate this Agreement by written
notice if they are not in material breach of their obligations under this
Agreement and there has been a material breach of any covenant, undertaking,
obligation or agreement contained in this Agreement on the part of Buyers and
such breach has not been cured within thirty (30) calendar days after written
notice to Buyers; provided, however, that no cure period shall be required for a
breach which by its nature cannot be cured; and
(e) For the purposes of this Section 13.1, a breach of this
Agreement shall be deemed to be material if its goes to the root of this
Agreement and/or may reasonably be deemed to substantially frustrate the purpose
and intent of the Parties hereto.
13.2 Effect of Termination. If any Party terminates this Agreement
pursuant to Section 13.1 above, all rights and obligations of the Parties
hereunder shall terminate without derogating from any liability of any Party to
any other Party; provided that the provisions contained in Section 9.1
(Confidentiality) and Section 14 (Miscellaneous) shall survive termination.
13.3 Entire Transaction. The Parties acknowledge that the acquisition of
the Duna Plaza Portfolio Center is a material and essential condition for
Purchasers in respect of the entire Transaction. The termination of the
Transaction in respect of the Duna Plaza Portfolio Center shall constitute
sufficient cause for the termination of the Transaction in its entirety.
ARTICLE XIV - MISCELLANEOUS
14.1 Press Releases and Public Announcements. No Party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement prior to the Closing without the prior written approval of the
other Party; provided, however, that (a) Purchasers and EMI may make any public
disclosure they believe in good faith is required by applicable law or any
listing or trading agreement concerning their respective publicly-traded
securities (in which case Purchasers will use their reasonable efforts to advise
PCE and EMI prior to making the disclosure, and visa versa) and (b) the Parties
may correspond with third parties in writing with respect to obtaining the
Transaction Approvals.
14.2 Governing Law. This Agreement shall be governed by and construed in
accordance with Dutch Law, without regard to conflicts of laws or the choice of
law principles of any jurisdiction including The Netherlands, and without the
need of any Party to establish the reasonableness of the relationship between
Dutch Law and the subject matter of this Agreement, and all questions concerning
the validity and construction hereof shall be determined in accordance with
Dutch Law. However, it is specified that the transfer of ownership of the quotas
and shares in the Acquired Companies and the transfer or assignment of
71
the Assigned Shareholder Loans, where relevant, shall be executed in compliance
with applicable Hungarian Law.
14.3 Dispute Resolution.
(a) For any dispute, difference or claim arising out of or relating
to this Agreement or the Ancillary Agreements (other than as set forth in
Section 14.3(c) below), the Parties shall first attempt in good faith to
negotiate a written resolution of such dispute or claim within a period not to
exceed fifteen (15) days from the date of receipt of a Party's request for such
negotiations ("DATE OF REQUEST"). Such negotiations shall be conducted by senior
executives of Purchasers and PCE. In the event that Purchasers and PCE fail to
reach a written resolution within such fifteen (15) days from the Date of
Request, or other period of time agreed upon by the Parties in writing, either
Purchasers or PCE may seek to resolve the dispute or claim by arbitration in
accordance with the procedures set forth in Section 14.3(b) of this Agreement.
(b) Subject to Section 14.3(a) above and other than as set forth in
Section 14.3(c) below, any dispute, difference or claim between the Parties with
regard to this Agreement or the Ancillary Agreements, its performance,
interpretation, application or validity, shall be solely referred for
arbitration before a tribunal of three arbitrators in accordance with the Rules
of Arbitration then in force of the Court of Arbitration of the International
Chamber of Commerce (ICC) headquartered in Paris, France (the "RULES"). Each of
Buyers and Vendors will be entitled to appoint a Party Appointed Arbitrator,
while the third arbitrator, who shall act as Chairman of the Tribunal, shall be
appointed by mutual agreement between the two Party Appointed Arbitrators, or
failing agreement between them, by the President for the time being of the Court
of Arbitration of the ICC. (the "TRIBUNAL"). Purchasers and Segece shall be
considered as the same party, and PCE, EUN and PCM-BV shall be considered as the
same party, for the purpose of the appointment of the Party Appointed
Arbitrators in terms of this section. For the purposes of this Section : (i)
PCE, EUN, PCM-BV and Szeged shall be considered as one party for the purpose of
the appointment of a party appointed arbitrator; and (ii) Klepierre, KLPH, LP7
and Segece shall be considered as one party for the purpose of the nomination of
a party appointed arbitrator in terms hereof.
(c) The arbitration shall be conducted in Amsterdam, The
Netherlands, or at such other venue as shall be agreed upon between the Parties
or failing such agreement as determined by the Tribunal. The arbitration
proceedings shall be conducted in the English language on a continuous basis on
consecutive working days until completed, to the greatest extent possible.
(d) The Tribunal will be bound solely by the substantive Dutch Law
and the terms of this Agreement (save in those instances where Hungarian Law is
applicable as specified in Section 14.2 above. However the Tribunal may, but
only with the prior consent of the adjudicating Parties, act as amicable
compositeurs.
(e) Upon request by either Party, the Tribunal may order the Parties
to conduct Party and non-party oral depositions of witnesses outside the
presence of the Tribunal, which shall be recorded by a stenographer. The
Tribunal shall issue a written determination setting forth with particularity
its findings of fact and conclusions of law. The decision of the Tribunal shall
be final and binding upon the Parties and shall be subject to judicial review
solely in accordance with the provisions of Dutch Law.
72
(f) The Tribunal shall be competent to grant interim relief by way
of injunctions at the request of the Parties. Notwithstanding the foregoing,
either party shall be entitled to apply to a court of competent jurisdiction to
obtain temporary injunctive or other ancillary relief in aid of arbitration
hereunder.
(g) The fees and expenses of the Tribunal shall be borne as
determined in the Arbitral Award, provided that interim payments made on account
shall be borne by the Parties in equal shares.
(h) The provisions of this Section 14.3 shall not apply to disputes
and claims before the Closing Expert under Section 3.6 above.
(i) If any dispute submitted to arbitration involves claims by or
against a Party against or by a third party, and such third party cannot be made
a party to such arbitration, the Tribunal shall be empowered to take such
actions as it deems just and equitable in order to avoid prejudice to the
Parties by reason of the inability of the Tribunal to adjudicate such third
party claims, including without limitation, if the Tribunal so determines,
conditioning its award upon the outcome of the third party or staying the
arbitration pending the outcome of the third party claims.
(j) This Section 14.3 constitutes a separate agreement to arbitrate
which shall survive the termination of this Agreement for any reason.
14.4 Perfection of Schedules. All schedules referred to in this
Agreement shall be furnished on the Execution Date.
14.5 No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and the Contract
Companies as contemplated in Section 12.1 above, and their respective successors
and permitted assigns, other than as specifically set forth herein.
14.6 Entire Agreement and Modification. This Agreement (including the
exhibits and schedules hereto) constitutes the entire agreement among the
Parties with respect to the subject matter hereof and supersedes any prior
understandings, agreements, warranties or representations by or among the
Parties, written or oral, to the extent they related in any way to the subject
matter hereof, including specifically the Heads of Terms. This Agreement may not
be amended except by a written agreement executed by all Parties.
14.7 Amendment. At any time prior to the Closing, this Agreement may be
amended by the Parties hereto at any time by execution of an instrument in
writing signed on behalf of each of the Parties hereto. At any time after the
Closing, this Agreement may be amended by all the Parties by execution of an
instrument in writing.
14.8 Waivers. The rights and remedies of the Parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by any Party
in exercising any right, power or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of such right,
power or privilege, and no single or partial exercise of such right, power, or
privilege will preclude any other or further exercise of such right, power, or
privilege or the exercise of any other right, power, or privilege. To the
maximum extent permitted by applicable law, (i) no claim or right arising out of
this Agreement or the documents referred to in this Agreement can be discharged
by one Party, in whole or in part, by a waiver or renunciation of the claim or
right unless in writing signed by the other Party; (ii) no waiver that may be
given
73
by a Party will be applicable except in the specific instance for which it is
given; and (iii) no notice to or demand on one Party will be deemed to be a
waiver of any obligation of such Party or of the right of the Party giving such
notice or demand to take further action without notice or demand as provided in
this Agreement or the documents referred to in this Agreement.
14.9 Successors and Assigns. This Agreement shall inure to the benefit of,
and be binding upon, the Parties hereto and their respective successors and
assigns; provided, however, that no Party shall assign or delegate any of the
obligations created under this Agreement without the prior written consent of
the other Parties. Notwithstanding the foregoing, Purchasers and Segece shall
have the unrestricted right to assign this Agreement and to delegate all or any
part of their obligations hereunder (i) to any direct or indirect Affiliate of
Purchasers; or (ii) to an investment fund which would be controlled or managed
by Klepierre or any of its Affiliates, or the property and asset management of
which shall be entrusted to Klepierre or its Affiliate; provided that in such
events Purchasers shall remain fully liable for the performance of all of such
obligations in the manner prescribed in this Agreement. Nothing in this
Agreement shall confer upon any person or entity not a party to this Agreement,
or the legal representatives of such person or entity, any rights or remedies of
any nature or kind whatsoever under or by reason of this Agreement.
14.10 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original but all of which together will constitute
one and the same instrument.
14.11 Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
14.12 Notices.
(a) Any notice, approval, request, authorization or other
communication under this Agreement shall be given in writing and in English
language ("NOTICE"). Any Notice must be made by personal remittance, by fax
(followed by a copy sent the same day or the following Business day by
registered letter with acknowledgment of receipt) or by prepaid international
express mail with acknowledgment of receipt and shall be deemed to have been
delivered (i) on the date of the personal remittance as certified by the
receipt, in the case of personal service; (ii) on the Business Day following the
date of sending the fax (with confirmatory copy of the mail) in the case of a
transmission by fax (the date set out on the acknowledgment of transmission
indicating the date of sending); or (iii) the date of receipt in the event of
sending by international express mail.
(b) The relevant addresses and fax numbers of each Party for the
purpose of these Heads of Terms are as follows:
PCE, EUN, Szeged and PCM-BV:
000 Xxxxxxxxxxxxx,
XX0000 Xxxxxxxxx,
Xxx Xxxxxxxxxxx.
Tel: 00-00-0000000
Fax: 00-00-0000000
For the attention of Xx. Xxx Xxxxxxxx
74
With a copy to:
00 Xxxxxxxx Xxxx.,
Xxxxxxxx,
Xxxxxxx
Tel: 00-0-0000000
Fax: 00-0-0000000
For the attention of Xx. Xxx Xxxxxxx.
Klepierre,KLPH and LP7 ::
00 Xxxxxx Xxxxxx,
00000 Xxxxx,
Xxxxxx
Tel: (00-0) 00 00 00 00
Fax: (00-0) 00 00 00 00
For the attention of Xx. Xxxxx-Xxxxxxx XXXXXX.
Segece:
00 Xxxxxx Xxxxxx,
00000 Xxxxx
Xxxxxx
Tel: (00) 0 00 00 00 00
Fax: (00-0) 00 00 00 00
For the attention of Xx. Xxxxxxxxx XXXXXX,
(c) By written Notice sent as indicated above, the Parties may
specify a new address or a supplementary address to which notification or
communications should be sent subsequently or to any address that a Party shall
notify in writing at any time, with at least ten (10) days' advance written
notice.
14.13 Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
14.14 Expenses. Subject to the provisions of this Agreement, each Party
will bear its own costs and expenses (including legal and accounting fees and
expenses) incurred in connection with this Agreement and the transactions
contemplated hereby. All notarial fees and other costs (excluding taxes) which
may be incurred in connection with: (I) the transfer of the quotas and shares in
the Holding Companies and the
75
Acquired Property Companies - shall be borne equally by PCE and EUN, on the
first hand, and Purchasers and the second hands; and (II) the transfer of 50% of
the outstanding shares in the Management Company - shall be borne equally by
Segece and PCM-BV.
14.15 Construction.
(a) The Parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions of
this Agreement. Any reference to any federal, state, local, or foreign statute
or law shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. The word "including" shall
mean including without limitation.
(b) Unless the context requires otherwise, all words used in this
Agreement in the singular number shall extend to and include the plural, all
words in the plural number shall extend to and include the singular, and all
words in any gender shall extend to and include all genders.
14.16 Attorneys' Fees. If any legal proceeding or other action relating to
this Agreement is brought or otherwise initiated, the prevailing Party shall be
entitled to recover reasonable attorneys fees, costs and disbursements (in
addition to any other relief to which the prevailing Party may be entitled).
14.17 Further Assurances. The Parties agree (a) to furnish upon request to
each other such further information, (b) to execute and deliver to each other
such other documents, and (c) to do such other acts and things, all as the other
Party may reasonably request for the purpose of carrying out the intent of this
Agreement and the documents referred to in this Agreement.
14.19 Time of Essence. With regard to all dates and time periods set forth
or referred to in this Agreement, time is of the essence.
14.20 Schedules and Exhibit. The Schedules and Exhibits described herein
and attached hereto constitute an inseparable part of this Agreement and are
incorporated into this Agreement for all purposes as if fully set forth herein.
Any disclosure made in any Schedule to this Agreement which may be applicable to
another Schedule to this Agreement shall be deemed to be made with respect to
such other Schedule only if a specific cross reference is made thereto.
14.21 Euro. All currency amounts expressed herein (whether or not preceded
by E) are in the currency of the Euro, unless preceded by HUF, in which case,
the amounts will be in the currency of Hungarian Forints.
14.22 Language. This Agreement and all documents contemplated hereby or
relating thereto shall be prepared and binding in the English language.
76
THIS SPACE INTENTIONALLY LEFT BLANK
]
77
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on of
the date first above written.
KLEPIERRE: KLEPIERRE SA
By:
--------------------
Name: Xx. Xxxxxxxxx XXXXXX
Title: Under Power of Attorney
Date : July 30th, 2004
KLPH : KLEPIERRE HONGERIE SAS
By:
--------------------
Name: Xx. Xxxxxxxxx XXXXXX
Title: Under Power of Attorney
Date : July 30th, 2004
LP7 : LP7 SAS
By:
--------------------
Name: Xx. Xxxxxxxxx XXXXXX
Title: Under Power of Attorney
Date : July 30th, 2004
SEGECE: SEGECE
By:
--------------------
Name: Xx. Xxxxxxxxx XXXXXX
Title: Under Power of Attorney
Date : July 30th, 2004
PCE: PLAZA CENTERS (EUROPE) BV
By:
----------------------
Name: Xxx Xxxxxxx
Title: President and CEO
Date: July 30th, 2004
EUN: ELBIT ULTRASOUND
NETHERLANDS BV
By:
---------------------
Name: Xx. Xxx Xxxxxxx
Title: Under Power of Attorney
Date: July 30th, 2004
2
PCM-BV: PLAZA CENTERS MANAGEMENT BV
By:
------------------------------
Name: Xx. Xxx Xxxxxxx
Title: Member of the Management Board
Date: July 30th, 2004
SZEGED: SZEGED 2002 KFT.
By:
-------------------
Name: Mr. Ran Xxxxxxxx
Title: Under Power of Attorney
Date: July 30th, 2004
3
