Exhibit 4.15
EXECUTION (Y)
FRAMEWORK TRANSACTION AGREEMENT
BY AND AMONG
1. KLEPIERRE S.A.
2. KLEPIERRE SADYBA SP.Z.O.O.
3. KLEPIERRE KRAKOW SP.Z.O.O.
4. KLEPIERRE POZNAN SP.Z.O.O
5. LP 7 S.A.S.
6. SEGECE S.C.S.
AS BUYERS
7. PLAZA CENTERS (EUROPE) B.V.
AS VENDOR
DATED AS OF JULY 29TH, 2005
FRAMEWORK TRANSACTION AGREEMENT
THIS FRAMEWORK TRANSACTION AGREEMENT (this "AGREEMENT") is made and entered
into on July 29th, 2005, by and among:
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(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 degrees B 780 152 914 ("KLEPIERRE");
(2) KLEPIERRE SADYBA SP.Z.O.O., a Polish limited liability company in the
course of incorporation ("w organizacji") pursuant to the applicable
provisions of Polish Law, whose seat is at xx. Xxxxxxxx, 00-000
Xxxxxx, ("KLP-SADYBA");
(3) KLEPIERRE KRAKOW SP.Z.O.O., a Polish limited liability company in the
course of incorporation ("w organizacji") pursuant to the applicable
provisions of Polish Law, whose seat is at xx. Xxxxxxxx, 00-000
Xxxxxx, ("KLP-KRAKOW");
(4) KLEPIERRE POZNAN SP.Z.O.O., a Polish limited liability company in the
course of incorporation ("w organizacji") pursuant to the applicable
provisions of Polish Law, whose seat is at xx. Xxxxxxxx, 00-000
Xxxxxx, ("KLP-POZNAN");
(5) 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 degrees B 000 000 000 ("LP7")
(6) SEGECE S.C.S. (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 degrees B
562 100 214 ("Segece");
(7) 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 degrees 33248324
("PCE" or "VENDOR");
Klepierre, XXX-Xxxxxx, XXX-Xxxxxx, XXX-Xxxxxx, XX0, Xxxxxx, and PCE are
sometimes referred to herein individually as a "PARTY" and collectively as
the "PARTIES."
RECITALS
A. The Parties have entered into that certain Heads of Terms dated May
20th, 2005, pursuant to the provisions of which Klepierre has agreed to purchase
from PCE, and PCE has agreed to sell to Klepierre, the Acquired Companies (as
therein defined).
B. The Parties are now desirous of concluding the Definitive Agreements
specified hereinafter with a view to implementing the Transactions which are
subject matter of the Heads of Terms.
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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 - THE TRANSACTIONS
1.1 Definitive Agreements. Following the completion of the due diligence
investigations conducted by the Buyers, and following further negotiations
conducted between the Parties, the Parties have reached agreement on the terms
and conditions for the execution and implementation of the Transactions
contemplated in the Heads of Terms. Accordingly, the Parties have agreed that
simultaneously with the execution of this Framework Transaction Agreement, they
shall duly sign and execute the following agreements, documents and deeds on the
Execution Date.
1.2 Stage A Transaction - Operational Projects. In respect of the sale and
acquisition of the Acquired Companies owning and operating the Operational
Centers (namely, Sadyba Center SA, Krakow Plaza Sp.z.o.o., Xxxx Xxxxxx Plaza
Sp.z.o.o and Poznan Plaza Sp.z.o.o.), the Parties shall duly sign and execute
the following agreements:
(a) The Stage A Transaction Agreement, including all schedules
attached thereto;
(b) The Share Purchase Agreements in respect of each of the Acquired
Companies comprising Stage A abovementioned (the "OPERATIONAL COMPANIES"), and
related documents;
(c) The Loan Subrogation Agreements;
(d) The Assignment of Debt Agreement;
(e) The OVAG Loan Repayment Agreement II;
(f) The EMI Parent Guarantee (Stage A);
(g) The EMI First Demand Corporate Guarantee (Related Party Tenants);
(h) The EMI Corporate Guarantee (Tenant Securities);
(i) The Klepierre Corporate Guarantee (Sadyba Ground Lease Price
Adjustment); and
(j) The Trademark License Agreement (Poland);
1.3 Stage B Transaction - Development Projects. In respect of the sale and
acquisition of the Acquired Companies owning and operating the Development
Centers (namely, Rybnik Plaza Sp.z.o.o., Sosnoweic Plaza Sp.z.o.o, Entertainment
Plaza s.r.o and Pilsen Plaza s.r.o) and in respect of Lublin Plaza Sp.z.o.o, the
Parties shall duly sign, execute and deliver the following agreements on the
Execution Date:
(a) The Preliminary Transaction Agreement, including all its
schedules;
(b) The Lublin Option Agreement;
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(c) The Payment Guarantee;
(d) The Closing Agent Agreement (Deferred);
(e) The Conditional Trademark License Agreements for Poland and the
Czech Republic; and
(f) The EMI Parent Guarantee (Stage B).
1.4 Third Addendum. In respect of those matters which are the subject of
the Supplemental Heads of Terms signed on May 20, 2005 in respect of: (i) the
sale and purchase of the remaining 50% of the quota in Plaza Centers
Magyarorszag (Management) Kft. presently held by Plaza Centers Management BV by
PCM-BV to Segece; and (ii) the return of the Utilities Guarantee referred to in
Section 2.5 of the Framework Transaction Agreement dated July 30, 2004; the
Parties shall on the Execution Date execute and duly sign the Third Addendum to
the Framework Transaction Agreement.
ARTICLE II - SPECIAL PROVISIONS
2.1 Prepayment Costs.
(a) Pursuant to the provisions of Section (e) of Article 0 of Schedule
IV to the Heads of Terms, it was assumed that the Prepayment Costs to be
incurred in consequence of the prepayment of the outstanding banking loans
extended to the "Acquired Companies" (that is to say, the Operational Companies
to be acquired under the Stage A Transaction Agreement, and the Development
Companies to be acquired under the Preliminary Transaction Agreement (Stage B))
on the next scheduled interest payment date immediately following the Execution
Date will not exceed E521,000 (five hundred and twenty one thousand Euro) in the
aggregate in respect of all of the Acquired Companies ("TOTAL PREPAYMENT
AMOUNT").
(b) It is hereby agreed that in the event that PCE shall succeed in
reducing the amount of the Prepayment Costs (as that term is defined in Section
2.1(h)(ii) of the Stage A Transaction Agreement) incurred in respect of the
Operational Projects in terms of the provisions of Section 2.1(h) of the Stage A
Transaction Agreement, then and in such event the amount so saved (the
"UNUTILIZED PREPAYMENT AMOUNT") shall be applied in respect of the Prepayment
Costs to be incurred in respect of the repayment of the Construction Loan
Facilities awarded to the Development Companies as contemplated in the
Preliminary Agreement, provided however that the total amount of the Prepayment
Costs to be incurred in respect of both Stage A (Operational Companies) and
Stage B (Development Companies) will not exceed the aggregate amount of
E521,000.
(c) Accordingly, it is agreed that Klepierre shall pay Prepayment
Amounts incurred in respect of the repayment of the Construction Loan Facilities
by the Development Companies in terms of Section 3.2 of the Preliminary
Agreement (Stage B) up to but not exceeding an amount equivalent to the
Unutilized Prepayment Amount, and provided further that under no circumstances
will Klepierre be required to pay an amount in excess of E521,000 in respect of
the repayment of the loans of the Operational Companies and the Development
Companies jointly.
(d) For the avoidance of doubt, PCE undertakes to pay:
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(i) all Prepayment Amounts incurred in respect of the repayment
of the Construction Loan Facilities of the Development Companies which exceed
the Unutilized Prepayment Amount; and
(ii) all Breakage Costs, as that term is defined in Section
2.1(h)(iii) of the Stage A Transaction Agreement; incurred in respect of the
repayment of all the Construction Loan Facilities of all the Development
Companies.
ARTICLE III - MISCELLANEOUS
3.1 Governing Law. This Framework Transaction 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.
3.2 Dispute Resolution.
(a) For any dispute, difference or claim arising out of or relating to
this Framework Transaction Agreement, 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 a representative of Klepierre, KLP-Sadyba, KLP-Krakow, KLP-Poznan, LP7,
Segece, (jointly "BUYERS") and a senior executive of PCE. In the event that
Buyers 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 Buyers or PCE may seek to resolve the dispute or claim by
arbitration in accordance with the procedures set forth in Section 3.2(b) below.
(b) Subject to Section 3.2(a) above and other than as set forth in
Section 3.2(c) below, any dispute, difference or claim between the Parties with
regard to this Framework Transaction Agreement, 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"). Buyers shall be considered as the same
party for the purpose of the appointment of the Party Appointed Arbitrators in
terms of this section.
(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. However the Tribunal may, but only with the prior
consent of the adjudicating Parties, act as amiables 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
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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.
(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) 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.
(i) This Section 3.2 constitutes a separate agreement to arbitrate
which shall survive the termination of this Agreement for any reason.
3.3 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:
000 Xxxxxxxxxxxxx,
XX0000 Xxxxxxxxx,
Xxx Xxxxxxxxxxx.
Tel: 00-00-0000000
Fax: 00-00-0000000
For the attention of Xx. Xxx Xxxxxxxx
With a copy to:
00 Xxxxx Xxxxxx.,
Xxx Xxxx,
Xxxxxx
Tel: 000-0-0000000
Fax: 000-0-0000000
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For the attention of Xx. Xxxx Xxxxxx, General Counsel.
Klepierre, KLP-Sadyba, KLP-Krakow, KLP-Poznan, 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.
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:
----------------------------------
KLP-SADYBA: KLEPIERRE SADYBA SP.Z.O.O.
By:
------------------------------------
Name:
----------------------------------
Title: Under Power of Attorney
Date:
----------------------------------
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KLP-POSNAN: KLEPIERRE POZNAN SP.Z.O.O.
By:
------------------------------------
Name:
----------------------------------
Title: Under Power of Attorney
Date:
----------------------------------
KLP-KRAKOW: KLEPIERRE KRAKOW SP.Z.O.O.
By:
------------------------------------
Name:
----------------------------------
Title: Under Power of Attorney
Date:
----------------------------------
SEGECE: SEGECE
By:
------------------------------------
Name:
----------------------------------
Title: Under Power of Attorney
Date:
----------------------------------
LP7: LP7 SAS
By:
------------------------------------
Name:
----------------------------------
Title: Under Power of Attorney
Date:
----------------------------------
PCE: PLAZA CENTERS (EUROPE) BV
By:
------------------------------------
Name: Xxxxxx Xxxxxx
Title: President and CEO
Date:
----------------------------------
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EXECUTION COPY (O)
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS................................................... 2
1.1 Certain Definitions.............................................. 2
ARTICLE II - STAGE A TRANSACTIONS......................................... 10
2.1 Purchase and Sale................................................ 10
2.2 Tenant Improvements.............................................. 14
2.3 Poznan Plaza - Development Liability............................. 14
2.4 Matters Relating to Project Operation............................ 15
2.5 Vendor Guarantees................................................ 18
2.6 Klepierre Parent Guarantee....................................... 18
2.7 Taxes............................................................ 19
ARTICLE III - LEASE UP.................................................... 19
3.1 Lease-Up following Closing....................................... 19
3.2 Break-Off........................................................ 20
3.3 General Provisions relating to Lease-Up.......................... 20
3.4 Property Management.............................................. 21
ARTICLE IV - TRANSACTION PRICE AND VERIFICATIONS.......................... 21
4.1 Proforma Closing Accounts........................................ 21
4.2 Operational Projects - Calculation of Initial Purchase Prices.... 21
4.3 Special Agreed Price Adjustment.................................. 22
4.4 Calculation of PCMP Purchase Price............................... 22
4.5 Transaction Prices Schedule...................................... 22
4.6 Payment of Initial Purchase Prices............................... 23
4.7 Post-Closing Purchase Price Adjustments.......................... 24
4.8 Final Price Adjustments for Operational Companies................ 28
4.9 Sadyba Additional Special Price Adjustments...................... 30
4.10 Further Final Special Price Adjustments.......................... 30
4.11 General Provisions relating to Transaction Prices................ 31
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF VENDOR...................... 31
5.1 Organization, Qualification, and Corporate Power................. 32
5.2 Authorization.................................................... 32
5.3 No Conflicts..................................................... 32
5.4 Consents......................................................... 33
5.5 Capitalization................................................... 33
5.6 Validity of Shares............................................... 33
5.7 Articles of Association and Constitutive Documents............... 33
5.8 Legal Title...................................................... 34
5.9 Transferability.................................................. 34
5.10 Shareholders' Loans and the Sadyba Up-Stream Loan................ 34
5.11 Financing Loan Facilities........................................ 35
5.12 Financial Statements............................................. 35
5.13 Undisclosed Liabilities.......................................... 35
5.14 Events Subsequent to Most Recent Fiscal Period End............... 36
5.15 Legal Compliance................................................. 37
5.16 Tax Matters...................................................... 37
5.17 Title of Properties; Absence of Liens and Encumbrances;
Condition of Equipment........................................... 39
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5.18 Operational Projects............................................. 39
5.19 Intellectual Property............................................ 41
5.20 Notes and Accounts Receivable.................................... 41
5.21 Insurance........................................................ 41
5.22 Material Business Contracts...................................... 42
5.23 Qualified Lease Agreements....................................... 43
5.24 Powers of Attorney............................................... 44
5.25 Litigation....................................................... 45
5.26 Utilities Charges. A............................................ 45
5.27 No Development Risks............................................. 45
5.28 Employees........................................................ 45
5.29 Environment, Health and Safety................................... 46
5.30 Other Agreements................................................. 47
5.31 Construction Works............................................... 47
5.32 Complete Copies of Materials..................................... 48
5.33 Full Disclosure.................................................. 48
ARTICLE VI - REPRESENTATIONS AND WARRANTIES OF KLEPIERRE AND BUYERS....... 48
6.1 Organization, Qualification, and Corporate Power................. 48
6.2 Authorization.................................................... 48
6.3 No Conflicts..................................................... 49
6.4 Consents......................................................... 49
6.5 Financial Resources.............................................. 49
6.6 Liability........................................................ 49
ARTICLE VII - PRE-CLOSING COVENANTS....................................... 49
7.1 Operation of Business............................................ 49
7.2 Notice of Developments........................................... 51
7.3 Exclusivity...................................................... 51
7.4 Reasonable Efforts............................................... 52
ARTICLE VIII - CLOSING.................................................... 53
8.1 Closing and Consummation......................................... 53
8.2 Conditions for Closing........................................... 53
8.3 Acts to be performed at Closing.................................. 54
8.4 Acknowledgement of Closing....................................... 55
8.5 Postponed Closing................................................ 55
ARTICLE IX - ADDITIONAL AGREEMENTS WITH POST-CLOSING EFFECT............... 56
9.1 Non-Compete...................................................... 56
9.2 Non-Solicitation................................................. 56
9.3 Collection of Receivables........................................ 56
9.4 Waiver of Claims................................................. 56
ARTICLE X - OTHER AGREEMENTS AND COVENANTS................................ 56
10.1 Confidentiality.................................................. 56
10.2 Additional Documents and Further Assurances...................... 57
10.3 Updated Tenant List.............................................. 57
ARTICLE XI - WITHDRAWAL OPTION............................................ 57
11.1 Withdrawal Option................................................ 57
11.2 Material Adverse Effect Defined.................................. 57
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11.3 Right of Withdrawal.............................................. 58
11.4 Withdrawal Notice and Rectification.............................. 58
11.5 Restrictions on Rights of Withdrawal............................. 59
11.6 Consequences of Withdrawal and Termination....................... 59
ARTICLE XII - SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS....... 60
12.1 Representations, Warranties and Covenants........................ 60
ARTICLE XIII - INDEMNIFICATION............................................ 60
13.1 Indemnification by Vendor........................................ 60
13.2 Indemnification by Buyers........................................ 61
13.3 Notice and Opportunity to Defend................................. 62
13.4 Remedies......................................................... 63
13.5 Certain Limitations.............................................. 63
13.6 Specific Indemnities............................................. 64
ARTICLE XIV - TERMINATION................................................. 66
14.1 Termination of the Agreement..................................... 66
14.2 Effect of Termination............................................ 67
ARTICLE XV - MISCELLANEOUS................................................ 67
15.1 Press Releases and Public Announcements.......................... 67
15.2 Governing Law.................................................... 67
15.3 Dispute Resolution............................................... 68
15.4 Perfection of Schedules.......................................... 69
15.5 No Third-Party Beneficiaries..................................... 69
15.6 Entire Agreement and Modification................................ 69
15.7 Amendment........................................................ 69
15.8 Waivers.......................................................... 69
15.9 Successors and Assigns........................................... 70
15.10 Counterparts..................................................... 70
15.11 Headings......................................................... 70
15.12 Notices.......................................................... 70
15.13 Severability..................................................... 71
15.14 Expenses......................................................... 71
15.15 Construction..................................................... 71
15.16 Attorneys' Fees.................................................. 72
15.17 Further Assurances............................................... 72
15.18 Time of Essence.................................................. 72
15.19 Schedules and Exhibits........................................... 72
15.20 Euro............................................................. 72
15.21 Language......................................................... 72
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EXECUTION COPY (O)
STAGE A TRANSACTION AGREEMENT
BY AND AMONG
1. KLEPIERRE S.A.
2. KLEPIERRE SADYBA SP.Z.O.O.
3. KLEPIERRE KRAKOW SP.Z.O.O.
4. KLEPIERRE POZNAN SP.Z.O.O
5. LP 7 S.A.S.
6. SEGECE S.C.S.
AS BUYERS
7. PLAZA CENTERS (EUROPE) B.V.
AS VENDOR
DATED AS OF JULY 29TH, 2005
iv
STAGE A TRANSACTION AGREEMENT
THIS TRANSACTION AGREEMENT (this "AGREEMENT") is made and entered into on
July 29th, 2005, 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 degrees B 780 152 914 ("KLEPIERRE");
(2) KLEPIERRE SADYBA SP.Z.O.O., a Polish limited liability company in the
course of incorporation ("w organizacji") pursuant to the applicable
provisions of Polish Law, whose seat is at xx. Xxxxxxxx, 00-000
Xxxxxx, ("KLP-SADYBA");
(3) KLEPIERRE KRAKOW SP.Z.O.O., a Polish limited liability company in the
course of incorporation ("w organizacji") pursuant to the applicable
provisions of Polish Law, whose seat is at xx. Xxxxxxxx, 00-000
Xxxxxx, ("KLP-KRAKOW");
(4) KLEPIERRE POZNAN SP.Z.O.O., a Polish limited liability company in the
course of incorporation ("w organizacji") pursuant to the applicable
provisions of Polish Law, whose seat is at xx. Xxxxxxxx, 00-000
Xxxxxx, ("KLP-POZNAN");
(5) 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 degrees B 000 000 000 ("LP7")
(6) SEGECE S.C.S. (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 degrees B
562 100 214 ("SEGECE");
(7) 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 degrees 33248324
("PCE" or "VENDOR");
Klepierre, XXX-Xxxxxx, XXX-Xxxxxx, XXX-Xxxxxx, XX0, Xxxxxx, and PCE are
sometimes referred to herein individually as a "PARTY" and collectively as
the "PARTIES."
RECITALS
A. PCE is the direct and/or indirect and/or beneficial owner of the entire
Equity Rights in and to the Operational Companies, as detailed and specified in
the Rights Acquisition Schedule;
B. Each of the Operational Companies is the owner of the entire right,
title and interest in and to the Operational Project recorded opposite its name
in the Property Schedule;
C. PCE is the holder of the entire Equity Rights in and to PCMP, which
operates and manages each of the Operational Projects;
D. Purchasers desire to acquire from PCE, and PCE desires to sell to
Purchasers, the entire Equity Rights in and to the Operational Companies, on the
terms and subject to the conditions set forth herein;
E. Segece desires to acquire from PCE, and PCE desires to sell to Segece,
the entire Equity Rights in and to PCMP, on the terms and subject to the
conditions set forth herein;
F. 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.
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) "ACCOUNTING PRINCIPLES" means the agreed accounting principles
which shall govern the preparation, auditing and verification of the Proforma
Closing Accounts, the Proforma PCMP Closing Accounts, the Definitive Closing
Accounts, the Definitive PCMP Closing Accounts, and the Final Definitive Closing
Accounts, as set forth in the schedule attached hereto as SCHEDULE 1.1(A);
(b) "ACQUIRED COMPANIES" means the Operational Companies and PCMP;
(c) "ACQUIRED PCMP SHARES" means 50 (fifty) shares of PLN 1,000 par
value per share, issued by PCMP (representing together the entire Equity Rights
held by PCMP, and representing at the date hereof and on the Closing Date 100%
of the entire Equity Rights) in and to PCMP as indicated in the
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Rights Acquisition Schedule (Schedule 1.1(ggg)), which are to be acquired by
Segece pursuant to the provisions of this Agreement;
(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) "AGREED YIELDS" means the agreed capitalization rates in respect
of each Portfolio Center as detailed and specified in SCHEDULE 1.1(E);
(f) "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 Agreement, including: (i) the Trademark
License Agreement; (ii) the OVAG Loan Repayment Agreement (II); (iii) the EMI
Parent Company Guarantee; (iv) the Sadyba Loan Subrogation Agreement referred to
in Section 2.1(c) below; (v) the Sadyba Debt Assignment Agreement referred to in
Section 2.1(d) below; (vi) the EMI Corporate Guarantee (Tenant Securities)
referred to in Section 2.4(a)2.4(a)(ii) below; (vii) the EMI First Demand
Guarantee referred to in Section 2.4(d)(ii) below; (viii) the Klepierre
Corporate Guarantee (Sadyba Ground Lease Price Adjustment) referred to in
Section Section 4.9(a) below; (ix) the various agreements and documents required
by operational of applicable law to effect the Shareholder Loan reimbursements
referred to in Section 2.1(e) below; (x) the various share purchase agreements
and related documents required for the sale and transfer of the Equity Rights in
and to the Acquired Companies referred to in Sections 8.3(a) and 8.3(b) 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;
(g) "ASSUMED FINANCING LOANS" means all those Financing Loans
(excluding the OVAG Loan and the loan awarded by Magyar Kulkereskedelmi Bank Rt.
of Budapest to Sadyba Center SA) which are to be repaid by the relevant
Operational Company at the election of Purchasers at or following the Closing,
as specified in the Portfolio Liabilities Schedule (Schedule 1.1(uu));
(h) "BOOKS AND RECORDS" of any Acquired 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 Acquired 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;
(i) "BUSINESS DAY" shall mean a day other than (i) Saturday and
Sunday; and (ii) any day on which banks located in Poland, France, The
Netherlands or Israel are authorized or obligated to close;
(j) "BUSINESSES" shall mean the respective businesses and operations
of each of the Acquired Companies and/or each of the Operational Projects;
(k) "BUYERS" shall mean: Purchasers and Segece, acting jointly and
severally;
(l) "BUYERS' ACCOUNTANTS" shall mean: Deloitte of Poland;
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(m) "CLOSING" means the consummation of the various transactions
contemplated hereunder which is to be carried out on the date and in the manner
specified in Article VIII below and in accordance with its provisions;
(n) "EMI" means Elbit Medical Imaging Ltd., of 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxxxxx, being the ultimate and/or indirect parent company of the Vendor;
(o) "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 2.5(a);
(p) "EMPLOYEE" means each employee of the Acquired Companies or any of
them who is employed in connection with the Businesses;
(q) "EQUITY RIGHTS" means the equity and voting rights (shares or
quotas) in each of the Acquired 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;
(r) "EXECUTION DATE" means the date of the signing and execution of
this Agreement;
(s) "EXECUTION OPERATIONAL PROJECT VALUE" means, the agreed project
value of the Operational Projects calculated by applying the Project Value
Methodology (Schedule 1.1(xx)) on the basis of the Execution Rentals capitalized
at the Agreed Yields, after the deduction of the Special Agreed Price Adjustment
referred to in Section 4.3 below;
(t) "EXECUTION RENTALS" means, with respect to any Operational
Project, the Gross Rentals of such Operational Project as set forth in the
Tenant List (Schedule 1.1(qqq)), which have been confirmed by the Parties on the
Execution Date following Purchasers' due diligence investigations, and as
existing as of (i) the Reference Date (March 31, 2005) in respect of the Sadyba,
Krakow and Xxxx Xxxxxx Operational Projects; and (ii) June 30, 2005 with respect
to the Poznan Operational Project; all calculated in accordance with the
methodologies set forth in the Gross Rentals Definitions Schedule (Schedule
1.1(y));
(u) "FORECASTED RENTALS" means the forecasted Gross Rentals for each
of the Operational Projects specified in Schedule 1.1(e), or, for the purposes
of Section 4.8(e) below, the Forecasted Rentals of a specific unit within the
Operational Projects;
(v) "FINANCING BANKS" means those banking institutions which have
granted credit facilities to the relevant borrowers in respect of the
Operational Projects, all and more fully detailed and specified in the Portfolio
Liabilities Schedule (Schedule 1.1(uu));
(w) "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 (Schedule 1.1(uu));
(x) "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
4
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;
(y) "GROSS RENTALS" means, the gross rental incomes of any Operational
Project calculated in accordance with the updated Tenant List as at any relevant
calculation date in accordance with the provisions of the methodologies set
forth in the Gross Rental Definition Schedule (SCHEDULE 1.1(Y));
(z) "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;
(aa) "KNOWLEDGE OF VENDOR" shall mean the actual knowledge of the
incumbent officers, employees and directors of Vendor, or of the Acquired
Companies where relevant, or knowledge which the incumbent officers, employees
and directors of the Vendor, or of the Acquired Companies where relevant, ought
reasonably to have had in the circumstances of any particular matter, after
reasonable investigation;
(bb) "KRAKOW PLAZA SP.Z.O.O." means a Polish limited liability company
registered and validly existing pursuant to the applicable provisions of Polish
Law, whose registered seat is at Xxxxx Xxxxxx 00, 00-000 Xxxxxx, Xxxxxx, entered
into the Entrepreneurs Register kept by the Registry Court in Krakow, XI
Commercial Division of the National Registry Court under KRS no. 0000043811;
(cc) "LAND REGISTRY EXTRACTS" means the official extracts issued by
and/or obtained from the Lands and Mortgage Registry Court in respect of each of
the Operational Projects, which shall each bear a date of issue not earlier than
14 (fourteen) days prior to the Closing Date, which are to be furnished by
Vendor to Purchasers at Closing in terms of the provisions of Section
8.2(a)(iii) below, and which are attached as Exhibit B to the Property Schedule
(Schedule 1.1(yy));
(dd) "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 Polish Republic, as
the case may be, or in any other country or Governmental Body having
jurisdiction in matters pertaining to the subject matter of this Agreement;
(ee) "LEASE AGREEMENT(S)" means all leases, subleases, licenses,
concessions and other agreements (written or oral), including all amendments,
extensions, renewals, guaranties, and other agreements with respect thereto,
pursuant to which any Operational Company grants the right to use or occupy any
part of the Operational Projects.
(ff) "LEASE-UP CRITERIA": in respect to any Operational Project in
respect of which PCE shall render Lease-Up services in terms of Section 3.1
below, that the Lease Agreements executed by the relevant Operational Company
with its tenants shall: (i) be in Standard Form Lease (save in respect of Lease
Agreements signed prior to the Standard Form Lease Approval Date) and shall have
been approved by the relevant Purchasers, as the case may be, in terms of
Section 3.3(d) below in respect of anchor tenants only; (ii) be in the Standard
Form Lease for all other tenants (save in respect of Lease Agreements signed
prior to the
5
Standard Form Lease Approval Date); (iii) be valid and in full force and effect;
(iv) be in compliance with the Leasing Parameters in all material respects; (v)
be for a minimum duration equal to 1 (one) year; and (vi) be executed with
tenants of good standing;
(gg) "LEASING PARAMETERS" means, with respect to all Operational
Projects in respect of which PCE shall render Lease-Up services in terms of
Section 3.1 below, those rental grids, tenant mix and leasing guidelines which
have been agreed between the Parties in respect of each Operational Project, as
detailed and specified in the Leasing Parameters Schedule attached hereto as
SCHEDULE 1.1(GG);
(hh) "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);
(ii) "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;
(jj) "OPERATIONAL COMPANIES" means, the 4 (four) companies (i.e.
Sadyba Center SA, Krakow Plaza Sp.z.o.o, Xxxx Xxxxxx Sp.z.o.o, and Poznan Plaza
Sp.z.o.o) owning the Operational Projects, as detailed and specified in the
Rights Acquisition Schedule (Schedule 1.1(ggg));
(kk) "OPERATIONAL PROJECTS" means the 4 (four) shopping and
entertainment centers (including the Project Properties specified in the
Property Schedule), which are fully and validly owned and controlled by the
relevant Operational Company recorded opposite its name, as set forth in detail
in the Property Schedule (Schedule 1.1(yy));
(ll) "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);
(mm) "OVAG" means Osterreichische Volksbanken AG of Vienna;
(nn) "OVAG LOANS" means the Financing Loans awarded by OVAG (either
alone or jointly with syndicating banks) to Krakow Plaza Sp.z.o.o., as more
fully detailed and specified in the Portfolio Liabilities Schedule (Schedule
1.1(uu)), and in the OVAG Loans Repayment Agreement II (Schedule 2.1(g)(i));
(oo) "OVAG LOANS REPAYMENT AGREEMENT II" means the agreement which has
been concluded on or before the Closing Date by and among OVAG, Klepierre,
KLP-Krakow 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 2.1(g)(i);
(pp) "PCE GROUP APPROVALS" means the approval of the Transaction, as
incorporated in this Agreement and the Ancilliary Agreements, of the respective
Boards of Directors of EMI and PCE, all of which have been obtained prior to the
Execution Date;
(qq) "PCMP" means Plaza Centers Management Poland Sp.z.o.o., a Polish
limited liability company registered and validly existing pursuant to the
applicable provisions of Polish Law, whose
6
registered seat is at xx. Xxxxxxxxx 00, 00-000 Xxxxxx, Xxxxxx,, entered into the
Entrepreneurs Register kept by the Registry Court in Krakow, XI Commercial
Division of the National Registry Court under KRS no. 0000054095;
(rr) "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 Acquired Companies and/or the Operational Projects and/or
the Businesses and/or the Purchased Assets;
(ss) "PERMITTED LIENS" means (i) all Financing Bank Securities in
respect of the Assumed Financing Loans; (ii) with respect to each of the
Operational Projects, 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(yy)); and (iii) 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 Proforma Closing
Accounts and the Definitive Closing Accounts; (iv) legal easements and rights of
access mandated by operation of law, whether or not recorded in the Land
Registry Extracts, which are not violated by the current use or occupancy of the
relevant Operational Project, nor by the operation of the relevant Operational
Project as currently conducted on the Project Property in question, and which do
not and may not detract from the value, use, operation or transfer of the
relevant Operational Project; 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;
(tt) "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;
(uu) "PORTFOLIO LIABILITIES SCHEDULE" means the schedule attached
hereto and marked as SCHEDULE 1.1 (UU), setting out the details and particulars
of the Assumed Financing Loans and the OVAG Loans;
(vv) "POZNAN PLAZA SP.Z.O.O." means a Polish limited liability company
registered, andvalidly existing pursuant to the applicable provisions of Polish
Law, whose registered seat is at Xxxxx Xxxxxx 00, 00-000 Xxxxxx, Xxxxxx,,
entered into the Entrepreneurs Register kept by the Registry Court in Krakow, XI
Commercial Division of the National Registry Court under KRS no. 0000018331;
(ww) "PROJECT PROPERTIES" means, the properties upon which the
Operational Projects have been constructed, including without limitation in
respect of each Operational project : the parcels of land underlying the
shopping and entertainment centers; their external areas; access routes owned or
leased by the relevant Operational Company; easements and rights of passage
enjoyed by the Operational Company over access routes; the internal and external
parking facilities; and the underground and air rights, if applicable; all as
detailed in the Property Schedule (Schedule 1.1(yy));
(xx) "PROJECT VALUE METHODOLOGY" means the agreed methodology for the
determination of the Execution Operational Project Value and the Final
Operational Project Value (taking into consideration
7
the Special Agreed Price Adjustment referred to in Section 4.3 below), attached
hereto and marked as SCHEDULE 1.1(XX);
(yy) "PROPERTY SCHEDULE" means the schedule attached hereto as
SCHEDULE 1.1(YY) setting out the details and particulars of each of the
Operational Projects, and including the floor plans of each of the Operational
Projects appendixed thereto as exhibits, and specifying the nature and
conditions of the ownership rights of the relevant Operational Company therein
(freehold or leasehold);
(zz) "PURCHASERS" shall mean KLP-Sadyba, KLPKrakow, KLP-Poznan and
LP7, as well as their successors and assigns pursuant to Section 15.9 below;
(aaa) "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 Acquired Companies and/or the relevant Operational Projects related to
and/or in connection with the relevant Businesses;
(bbb) "PURCHASERS GROUP APPROVALS" means the approval of the
Transactions, as incorporated in this Agreement and the Ancillary Agreements, of
the respective supervisory boards of Klepierre and Segece, both of which have
been obtained prior to the Execution Date;
(ccc) "QUALIFYING LEASE AGREEMENTS" means the Lease Agreements which
are of a duration equal to or more than 1 (one) year, provided, however, that :
(i) Lease Agreement which are for periods of less than one year but which have
been consistently renewed for a total period which in the aggregate exceeds 1
(year), shall be deemed to constitute a Qualifying Lease Agreement;
(ddd) "REFERENCE DATE" means, March 31st, 2005;
(eee) "REPRESENTATIVES" means, with respect to a Person, that Person's
officers, directors, employees, accountants, legal counsel, agents and other
representatives;
(fff) "RESTATED NET ASSET METHODOLOGY SCHEDULE" means, the schedule
attached hereto as SCHEDULE 1.1(FFF) setting out the agreed methodologies for
the calculation of the Initial Purchase Prices in terms of Section 4.2(b) below,
and the Initial PCMP Purchase Price in terms of Section 4.4 below;
(ggg) "RIGHTS ACQUISITION SCHEDULE" means the schedule of the Equity
Rights to be acquired by Purchasers and Segece in the Acquired Companies
pursuant to the provisions of this Agreement attached hereto and marked as
SCHEDULE 1.1(GGG);
(hhh) "XXXX XXXXXX PLAZA SP.Z.O.O." means a Polish limited liability
company registered and validly existing pursuant to the applicable provisions of
Polish Law, whose registered seat is at xx. 0 Xxxx 000, 00-000 Xxxx Xxxxxx,
Xxxxxx, entered into the Entrepreneurs Register kept by the Registry Court in
Gliwice, X Commercial Division of the National Registry Court under KRS no.
0000117245;
(iii) "SADYBA CENTER SA" means a joint stock company organized and
existing under the Polish law, with its registered seat at xx. Xxxxxxxxx 00,
00-000 Xxxxxx, Xxxxxx, entered into Entrepreneurs Register kept by the Registry
Court in Warsaw, XX Commercial Division of the National Registry Court, under
KRS No. 0000084304;
8
(jjj) "SADYBA UP-STREAM LOANS" means the loan (principal and interest)
which remains outstanding as at the Closing Date, and which is due and payable
by PCE and/or any of its Affiliates to Sadyba Center SA, all, as specified in
the Shareholder Loan Schedule (Schedule 1.1(lll)), subject to verification in
terms of the provisions of Section 4.7 below, which shall apply mutatis
mutandis;
(kkk) "SADYBA UP-STREAM LOANS AMOUNT" means, the amount (principal and
interest) of the Sadyba Up-Stream Loan which remains outstanding as at the
Closing Date, as specified in the Shareholder Loan Schedule (Schedule
1.1(lll));;
(lll) "SHAREHOLDER LOAN SCHEDULE" means the schedule attached hereto
as SCHEDULE 1.1(LLL), specifying: (i) the Shareholder Loans and each of the
estimated Shareholder Loans Amounts (principal and interest as at the Closing
Date); and (ii) the Sadyba Up-Stream Loan and the Sadyba Up-Stream Loan Amounts
(principal and interest as at the Closing Date);
(mmm) SHAREHOLDER LOANS" mean all the shareholder loans which remain
outstanding as at the Closing Date and which are due and payable by the
Operational Companies and PCMP to PCE and/or its Affiliates;
(nnn) "SHAREHOLDER LOANS AMOUNTS" means, with respect to each of the
Shareholder Loans: (i) the entire (100%) aggregate amount of those Shareholder
Loans, which are due and payable by the Operating Companies to PCE and/or its
Affiliates; and (ii) the entire (100%) aggregate amount of the Shareholder Loans
which are due and payable by PCMP to PCE and/or its Affiliates; all in the
estimated amounts (principal and accrued interest as at the Closing Date) which
are specified in the Shareholders Loan Schedule (Schedule 1.1(lll)), subject to
verification in terms of the provisions of Section 4.7 below;
(ooo) "STANDARD FORM LEASE" means, the standard form of Lease
Agreement which have been prepared by Purchasers, which were approved by PCE on
the Standard Form Lease Approval Date, a copy of which is attached hereto as
SCHEDULE 1.1(OOO);
(ppp) "STANDARD FORM LEASE APPROVAL DATE" means, the date upon which
PCE shall furnish Purchasers with its written approval of the Standard Form
Leases, but in any event not later than a date 60 (sixty) days following the
Execution Date;
9
(qqq) "TENANT LIST" means, in respect of all Operational Projects, the
exact, complete and updated list (rent roll) of good standing tenants as at :
(i) the Reference Date with respect of the Sadyba, Krakow and Xxxx Xxxxxx
Operational Projects; and (ii) June 30, 2005 with respect to the Poznan
Operational Project: specifying inter alia, the Gross Rentals actually invoiced
according to signed and valid Qualifying Lease Agreements, adjusted for step-up
rents and turn-over rents in accordance with the provisions of the Gross Rentals
Definition Schedule (Schedule 1.1(y)), and denominated in Euro currency
(provided, however, that : (xx) rentals which are denominated in US Dollars will
be converted into their Euro equivalent at the official rate of exchange of the
US Dollar and the Euro prevailing on the Closing Date as published by the
National Bank of Poland; and (yy) rentals which are denominated in Polish Zloty
will be converted into their Euro equivalent at the official rate of exchange of
the Polish Zloty and the Euro prevailing on the Closing Date as published by the
National Bank of Poland) a copy of which is attached hereto and marked as
SCHEDULE 5.23;
(rrr) "TRADEMARK LICENSE AGREEMENT" means the agreement to be entered
into by and among, inter alia, Klepierre, Purchasers, Segece, PCMP 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(RRR);
(sss) "TRANSACTIONS" means the transactions which are the subject
matter of this Agreement and the Ancillary Agreements;
(ttt) "TRANSACTION APPROVALS" means all those approvals which are
required for the consummation of the Transaction detailed and specified in
Section 8.2(a) below, namely: (i) the Waivers and Consents; and (ii) the AMO
Approval (as defined in Section 8.2(a)(i) below);
(uuu) "TRANSACTION PRICES SCHEDULE" means the schedule to be compiled
in terms of Section 4.5 below setting forth the Initial Purchase Prices, the
Initial PCMP Purchase Price and the Initial Shareholder Loan Amounts, all as
calculated pursuant to the provisions of Sections 4.2 and 4.4 below, which shall
be attached hereto at the Closing and marked as Schedule 4.5;
(vvv) "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 8.2(a)(ii).
ARTICLE II - STAGE A TRANSACTIONS
2.1 Purchase and Sale
(a) Purchase and Sale of Operational Companies. Upon the terms and
subject to the conditions set forth herein, at the Closing :
(i) KLP-Sadyba shall irrevocably purchase from PCE, and PCE shall
irrevocably sell, convey, transfer, assign and deliver to KLP-Sadyba, 100,000
(one hundred thousand) shares at PLN 4 par value per share, issued by Sadyba
Center SA (representing the entire Equity Rights held by PCE, and representing
at the date hereof and on the Closing Date 100% of the entire Equity Rights in
and to Sadyba
10
Center SA) as indicated in the Rights Acquisition Schedule, free and clear of
all Liens except for Financing Bank Securities;
(ii) KLP-Krakow shall irrevocably purchase from PCE, and PCE
shall irrevocably sell, convey, transfer, assign and deliver to KLP-Krakow, 100
(one hundred) shares of PLN 500 par value per share, issued by Krakow Plaza
Sp.z.o.o. (representing the entire Equity Rights held by PCE, and representing
at the date hereof and on the Closing Date 100% of the entire Equity Rights in
and to Krakow Plaza Sp.z.o.o) as indicated in the Rights Acquisition Schedule,
free and clear of all Liens except for Financing Bank Securities;
(iii) KLP-Poznan shall irrevocably purchase from PCE, and PCE
shall irrevocably sell, convey, transfer, assign and deliver to KLP-Poznan, 100
(one hundred) shares of PLN 500 par value per share, issued by Poznan Plaza
Sp.z.o.o. (representing the entire Equity Rights held by PCE, and representing
at the date hereof and on the Closing Date 100% of the entire Equity Rights in
and Poznan Plaza Sp.z.o.o) as indicated in the Rights Acquisition Schedule, free
and clear of all Liens except for Financing Bank Securities; and
(iv) KLP-Sadyba shall irrevocably purchase from PCE, and PCE
shall irrevocably sell, convey, transfer, assign and deliver to KLP-Sadyba, 100
(one hundred) shares of PLN 500 par value per share, issued by Xxxx Xxxxxx Plaza
Sp.z.o.o. (representing the entire Equity Rights held by PCE, and representing
at the date hereof and on the Closing Date 100% of the entire Equity Rights in
and to Xxxx Xxxxxx Plaza Sp.z.o.o) as indicated in the Rights Acquisition
Schedule, free and clear of all Liens except for Financing Bank Securities.
(b) Purchase and Sale of the Acquired PCMP Shares.
Upon the terms and subject to the conditions set forth herein, at
the Closing, Segece and LP7 shall irrevocably purchase from PCE, and PCE shall
irrevocably sell, convey, transfer, assign and deliver to Segece and LP7
respectively, 49 (forty nine) shares and 1 (one) share of PLN 1000 par value per
share (which together constitute the entire Acquired PCMP Shares, representing
together the entire Equity Rights held by PCE in PCMP, and representing at the
date hereof and on the Closing Date 100% of the entire Equity Rights in and to
PCMP) as indicated in the Rights Acquisition Schedule, free and clear of all
Liens except for Financing Bank Securities.
(c) Subrogation of Sadyba Shareholder Loan. Upon the terms and subject
to the conditions set forth herein, at the Closing (contemporaneously with the
sale and purchase of the Equity Rights in and to Sadyba Center SA in terms of
Section 2.1(a) above :
(i) PCE, KLP-Sadyba and Sadyba Center SA, acting in the manner
consistent with Article 518 para 3 of the Polish Civil Code, shall conclude a
Loan Subrogation Agreement in the form and text attached hereto as SCHEDULE
2.1(C)(I), in terms of which KLP-Sadyba shall pay to PCE, for and on behalf of
Sadyba Center SA, the full amount of the Shareholder Loan Amount recorded in the
Books and Records of Sadyba Center SA as an Indebtedness due and payable to PCE
[or its Affiliates] (all as detailed and specified in the Shareholder Loan
Schedule attached as Schedule 1.1(lll)), and Sadyba Center SA shall thereby
become Indebted to KLP-Sadyba in respect of an equivalent amount. PCE represents
and warrants that the Sadyba Shareholders' Loan will be at Closing free and
clear of all Liens, except for the Financing Bank Securities.
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(ii) In the event that the recorded creditor of any Indebtedness
which is to be subrogated as a Shareholders' Loan in terms of this Section is an
Affiliate of PCE, then and in such event PCE shall cause such Affiliate to
execute the relevant Subrogation Agreement so as to effect the subrogation of
the said loan as contemplated in terms of this Section. In addition, and without
derogating from the aforegoing, any amount paid by KLP-Sadyba directly to PCE
shall be deemed to constitute payment to any Affiliate of PCE in terms of the
relevant Loan Subrogation Agreement and a full discharge by KLP-Sadyba of its
obligations in terms of this Section 2.1(c), and neither KLP-Sadyba nor Sadyba
Center SA shall be under any duty to ensure that such payments are distributed
by PCE amongst its Affiliates.
(d) Transfer and Assignment of Sadyba Up-Stream Loan.
(i) Upon the terms and subject to the conditions set forth
herein, at the Closing (contemporaneously with the sale and purchase of the
Equity Rights in and to Sadyba Center SA in terms of Section 2.1(a) above), PCE
shall assign, transfer and make over to KLP-Sadyba the full liability and
obligation to repay the Sadyba Up-Stream Loan to Sadyba Center SA, thereby
releasing PCE from all further liability under the Sadyba Up-Stream Loan, and
same by way of an Agreement of Debt Assignment in the form and text attached
hereto as SCHEDULE 2.1(D)(I);
(ii) In consideration for its consent to assume the liability for
the repayment of the Sadyba Up-Stream Loan as aforesaid, PCE undertakes to pay
to KLP-Sadyba at the Closing an amount equivalent to the Initial Sadyba
Up-Stream Loan Amount, provided that such payment shall by mutual agreement be
effected by way of set-off against the payment of the Initial Shareholder Loan
Amount relevant to Sadyba Center SA which KLP-Sadyba is required to pay to PCE
in terms of the Loan Subrogation Agreement referred to in Section 2.1(c) above;
and
(iii) For the avoidance of doubt it is agreed and understood that
the Initial Sadyba Up-Stream Loan Amount shall be included amongst the assets of
Sadyba Center SA for the purposes of the determination of the Initial Purchase
Price of Sadyba Center SA pursuant to the provisions of Section 4.2(b) below;
(e) Reimbursement of Shareholder Loans. Upon the terms and subject to
the conditions set forth herein, at the Closing, immediately after the sale and
purchase of the Equity Rights in and to Krakow Plaza Sp.z.o.o., Poznan Plaza
Sp.z.o.o. and Xxxx Shlaska Sp.z.o.o. as set forth in Section 2.1(a) above:
(i) KLP-Krakow shall cause Krakow Plaza Sp.z.o.o to reimburse the
full amount of the Shareholder Loan Amounts recorded in the Books and Records of
the Krakow Plaza Sp.z.o.o as an Indebtedness due and payable to PCE or its
Affiliates (all as detailed and specified in the Shareholder Loan Schedule
attached as Schedule 1.1(lll));
(ii) KLP-Poznan shall cause Poznan Plaza Sp.z.o.o to reimburse,
the full amount of the Shareholder Loan Amounts recorded in the Books and
Records of the Poznan Sp.z.o.o as an Indebtedness due and payable to PCE or its
Affiliates (all as detailed and specified in the Shareholder Loan Schedule
attached as Schedule 1.1(lll));
(iii) In order to facilitate the reimbursement of the Shareholder
Loans as contemplated in this Section 2.1(d), Purchasers undertake that at the
Closing KLP-Krakow and KLP-Poznan, acting in the name and behalf of Krakow Plaza
Sp.z.o.o. and Poznan Plaza Sp.z.o.o. respectively and upon their
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written instructions, shall execute payment of the relevant Shareholders Loan
Amounts directly to PCE and/or its Affiliates, and in this regard.
(iv) The provisions of Section 2.1(c)(ii) above shall apply
mutatis mutandis to the reimbursement of the Shareholders Loans in terms of this
2.1(e).
(f) Assumed Financing Loans. The Parties record that each of the
Operational Companies (excluding Krakow Plaza Sp.z.o.o) has entered into the
Assumed Financing Loans with the relevant Financing Banks, as more fully
detailed and specified in the Portfolio Liabilities Schedule (Schedule 1.1(uu)).
In respect of all Assumed Financing Loans, Purchasers declare that it is their
intention to cause the full repayment of the Assumed Financing Loans either at
Closing, or on the next regularly scheduled payment date under the relevant
Assumed Financing Loan agreement as set forth in the Portfolio Liabilities
Schedule (the "PREPAYMENT DATE").
(g) Re-payment of OVAG Loan and Release of Securities.
(i) With respect to the repayment of the OVAG Loan in its
entirety, Klepierre, KLP-Krakow, PCE, and OVAG shall on or before the Closing
Date enter into that certain OVAG Loans Repayment Agreement II in the form and
text attached hereto as SCHEDULE 2.1(G)(I), whereby, subject to the consummation
of the Stage A Transactions at Closing :
(ii) Purchasers shall deposit into an escrow account opened in
their names with OVAG the full amount required to repay the OVAG Loan in full;
(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 8.4 below, the funds held in
the special deposit accounts referred to hereinabove shall be applied to the
immediate repayment of the OVAG Loan; and
(iv) OVAG shall unconditionally release and terminate all
collateral held by it as security for the repayment of the OVAG Loan, and shall
execute all documents required for that purpose.
(h) Loan Repayment Amounts, Prepayment Costs and Breakage Costs.
(i) The Parties hereby confirm that all the total amount of all
outstanding principal, interest and Prepayment Amounts (as hereinafter defined)
which shall fall due for payment to the relevant Financing Banks in consequence
of the pre-payment of the Assumed Financing Loans, the OVAG Loan and the loan
awarded by Magyar Kulkereskedelmi Bank Rt. of Budapest to Sadyba Center SA
(jointly, the "FINANCING LOAN FACILITIES") on the Closing Date or on the next
Prepayment Date, as the case may be are accurately recorded in the Portfolio
Liability Schedule (Schedule 1.1(uu)).
(ii) It is hereby agreed that all prepayment fees, arrangement
fees, sybdication fees, financial management fees and all other costs and
expenses (including legal costs) which shall fall due for payment in consequence
of the prepayment of the Financing Loan Facilities as aforesaid (collectively
the "PREPAYMENT AMOUNTS") shall be borne and paid by Purchasers, or at the
election of Purchasers by the relevant Operational Company, provided that the
maximum amount of the Prepayment Amounts to be paid by Purchasers and/or the
Operational Companies shall under no circumstances exceed the aggregate amount
of
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E521,000 (five hundred and twenty one thousand Euro) for all Financing Loan
Facilities. Subject to the aforegoing, all Prepayment Amounts shall be borne and
paid by Purchasers and/or the Operational Companies at the time of the repayment
of the relevant Financing Loan Facility.
(iii) In addition, any additional costs which shall be incurred
by reason of the fact that any Financing Loan Facility is, at Purchasers'
election, repaid on a date which is not the next relevant Prepayment Date
("BREAKAGE COSTS") shall be borne and paid by solely Purchasers, or, at
Purchasers' election, by the relevant Operational Companies; provided, however,
that if such early prepayment occurs on a date other than the next scheduled
Prepayment Date is the result of the exercise by the Financing Bank of its
rights to accelerate repayment of the relevant Financing Loan Facility
consequent upon an event of default under the relevant loan agreement which
occurred prior to the Closing Date, then and in such event PCE shall bear all
Breakage Costs attributable to such accelerated repayment, but only to the
extent that such Breakage Costs exceed the amount which would otherwise have
been paid had the prepayment been effected on the next scheduled Prepayment
Date.
2.2 Tenant Improvements.
(i) In those instances where the Operational Companies have
concluded Lease Agreements with tenants prior to the Closing Date, in terms of
which the relevant Operational Company has undertaken to perform improvements to
the units leased by the tenant ("TENANT IMPROVEMENTS"), then and in such event
PCE shall bear sole liability for the execution of such Tenant Improvements and
shall bear the full cost incurred in that regard.
(ii) PCE shall be solely responsible for ensuring that all
authorizations for the execution of such Tenant Improvements are obtained from
the relevant competent Government Bodies, if and to the extent required, and
shall ensure that the Tenant Improvements are executed in compliance with all
applicable laws and regulations.
(iii) In these instances, Purchasers shall co-operate with PCE
and allow PCE and its contractors access to the relevant unit in order to
execute such Tenant Improvements, provided that the normal day-to-day operation
of the relevant Operational Project is not unreasonably disrupted thereby.
(iv) In this regard, KLP-Sadyba acknowledges that it shall cause
Sadyba Center SA to advance a loan to the "Eastbridge" tenant in the amount of
E414,000 (four hundred and fourteen thousand Euro) as provided in the Lease
Agreement executed with that tenant.
2.3 Poznan Plaza - Development Liability.
(a) It is specifically agreed and understood that, as and from the
Closing Date and at all times thereafter, Poznan Plaza Sp.z.o.o. shall not bear
any development liability whatsoever arising from and/or in connection with
and/or in respect of the development, construction, completion and construction
maintenance following practical completion of the Poznan Plaza Operational
Project, and that the situation at and after the Closing Date should be as
analogous as possible to that of the acquisition by KLP-Poznan of an existing
operational project.
(b) Immediately prior to the Closing Date, PCE shall assume full and
unconditional responsibility and liability arising under the agreements with all
contractors, sub-contractors, architects,
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engineers, suppliers, project managers, project supervisors and surveyors
engaged in the construction works ("CONTRACTORS"), and/or in respect of the
construction operations (collectively, "DEVELOPMENT LIABILITY"), including
specifically, but without limitation, all of the following, namely: (i) PCE
shall be accountable for all the works, services, faults or omissions of the
Contractors; (ii) PCE shall have the obligation to pay and settle in a timely
manner all Contractors' claims arising out of and/or in connection with the
construction works and/or the Contractors' agreements, unless such amounts are
fully provided for in the Proforma Closing Accounts and the Definitive Closing
Accounts ("CONTRACTORS' CLAIMS"), provided that nothing hereincontained shall
prevent PCE from the conduct of bona fide disputes in that regard; and (iii) PCE
shall ensure that the Contractors fulfill their obligations under the
Contractors' agreements prior to and following the Closing Date in accordance
with their respective terms.
(c) To the extent permitted by local applicable law and subject to the
consent of the Contractors, PCE shall use its best endeavours to obtain from the
Contractors an estoppel certificate, confirming that the Contractors shall have
no further claims against Poznan Plaza Sp.z.o.o. arising out of and/or in
connection with the construction works and/or the Contractors' agreements;
(d) PCE shall ensure that all performance bonds, maintenance
guarantees, and other forms of securities furnished by the Contractors as
security for the fulfillment of their respective undertakings in terms of the
Contractors' agreement, as well as construction warranties arising under or
mandated by operation of law ("CONTRACTORS' BONDS") will be issued in favor of
PCE and Poznan Plaza Sp.z.o.o., jointly and severally.
2.4 Matters Relating to Project Operation
(a) Absence of Tenant Securities.
(i) Purchasers record that their due diligence investigations
have revealed that certain tenants of the Operational Projects have not
deposited with the relevant Operational Company the tenant securities (either in
the form of a cash deposit or in the form of a bank guarantee), as required in
terms of the relevant Lease Agreement.
(ii) In order to address any possible damage which may be
suffered by Purchasers and/or the Operational Companies in consequence thereof,
Vendor shall cause EMI to furnish Purchasers at Closing with its corporate
guarantee in the form and text attached hereto as SCHEDULE 2.4(A)(II), in an
amount of E100,000 (one hundred thousand Euro) per year for a period of 5 (five)
years following the Closing, which guarantee shall replenishable every year by
the amount drawn down during the previous year, so that as at each successive
anniversary of the Closing Date Purchasers shall be entitled to draw down an
amount of E100,000 during the 12 month period immediately following such
anniversary.
(iii) The corporate guarantee shall provide that Purchasers
and/or the Operational Companies may draw down only those amounts of damage
actually suffered by them in consequence of the non-payment of amounts due under
the Lease Agreements and which they are unable to recover due to the absence of
the tenant security deposit, provided, however, that the corporate guarantee may
not be drawn down in excess of : (i) three months rentals per tenant; and (ii)
E100,000 (one hundred thousand Euro) per annum in each of the 5 (five) years
following the Closing Date.
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(iv) For the avoidance of doubt, Purchasers may only draw down on
the corporate guarantee if and to the extent that they would be entitled to use
the tenant security deposit in terms of the relevant Lease Agreement, but are
unable to do so due to its absence.
(v) Attached hereto as SCHEDULE 2.4(A)(V) is a list of the
tenants in all of the Operational Projects in respect of whom the tenant
securities are either missing or deficient.
(b) Licenses for Purchase and Sale of Electricity.
(i) Vendor declares that each of the Operational Companies has
sumitted applications to the competent Government Bodies to obtain final and
valid licenses for the purchase and re-sale of electricity to the tenants of the
Operational Projects ("UTILITIES LICENSES") as required by operation of
applicable law. Vendor further declares that these applications are currently
being processed, and that it shall use its best endeavours to ensure that such
Utilities Licenses are obtained as expeditiously as possible following the
Closing Date. However, Vendor undertakes to ensure that the Utilities Licenses
are awarded to each of the Operational Companies by not later than December
31st, 2005. All costs and expenses incurred in obtaining the Utilities Licenses
shall be borne by Vendor.
(ii) It is hereby agreed between the Parties, that in the event
that the Utilities Licenses for all Operational Centers shall not have been
obtained by December 31st, as aforesaid, then and in such event Purchasers shall
be entitled to withhold the following amounts in respect of each Operational
Company (for an aggregate total not to exceed E5,400,000 (five million four
hundred thousand Euro for all four Operational Companies) from any payment to be
made by Purchasers to Vendor in terms of the Final Price Adjustments to be
conducted on the Final Price Adjustment Date in terms of the provisions of
Section 4.8 below, namely : (AA) E1,260,000 (one million two hundred and sixty
thousand Euro) in respect of Sadyba Center SA; (BB) E1,900,000 (one million nine
hundred thousand Euro) in respect of Krakow Plaza Sp.z.o.o.; (CC) E620,000 (six
hundred and twenty thousand Euro) in respect of Xxxx Xxxxxx Plaza Sp.z.o.o.; and
(DD) E1,620,000 (one million six hundred and twenty thousand Euro) in respect of
Poznan Plaza Sp.z.o.o,, provided that insofar as Poznan Plaza Sp.z.o.o. is
concerned, if that company shall not have received the Utilities Licenses by
December 31st, 2005 as aforesaid, then the amount to be withheld shall be
deducted from the Final Price Adjustments to be made in respect of the other
Operational Centers, notwithstanding that the Final Price Adjustment Date for
Poznan Plaza Sp.z.o.o. shall occur on May 30, 2006.
(iii) In the event that the amount of the Final Price Adjustment
which is to be made in respect of any Operational Project in terms of Section
4.8 below is insufficient to cover the amount which Purchasers are entitled to
withhold in terms of the preceding sub-section, then and in such event it is
agreed that the shortfall may be withheld from the Final Price Adjustment
Amounts due in respect of any of the other Operational Projects. In the event
that the aggregate amount of the Final Price Adjustments which are to be made in
respect of all four Operational Projects in terms of Section 4.8 below is also
insufficient to cover the amount which Purchasers are entitled to withhold in
terms of the preceding sub-section, then and in such event PCE undertakes to pay
such shortfall amount to Purchasers within 10 (ten) Business Days following the
date upon which the Final Price Adjustments are conducted.
(iv) In the event that Purchasers shall withhold any amounts in
accordance with the provisions of Section 2.4(b)(ii) above, they shall be
entitled to do so only against delivery to Vendor of Klepierre's corporate
guarantee to refund those withheld amounts upon the obtaining of the relevant
Utilities Guarantees prior to December 31st, 2006 as contemplated in
Section 2.4(b)(v) below.
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(v) In the event that Vendor shall nevertheless succeed in
obtaining the Utilities Licenses within a 12 (twelve) month period following
December 31st, 2005 (that is to say prior to December 31st, 2006), then and in
such event Purchasers undertake to repay to Vendor any amounts withheld by them
pursuant to the provisions of Section 2.4(b)(ii) above.
(vi) In the event that any Utilities Licenses have not been
obtained by December 31st, 2006, then and in such event : (aa) Purchasers shall
be under no further obligation to refund, and may retain, the amounts withheld
by them in terms of Section 2.4(b)(ii) above, and in such event the amounts so
retained shall be deemed to constitute a reduction of the Definitive Purchase
Prices due in respect of the relevant Operational Companies in terms of the
provisions of this Agreement; and (bb) PCE shall be deemed to have forfeited its
right to demand repayment of the amounts so withheld.
(c) H&M Tenant - Poznan Plaza
(i) The Parties record that pursuant to the provisions of the
Lease Agreement entered into with the H&M anchor tenant in the Poznan Plaza
Operational Center, H&M are required to pay rentals on the basis of their
turn-over only, and are exempted from the payment of charges.
(ii) The Parties have agreed that, for the purpose of determining
the Initial Purchase Price and the Definitive Purchase Price for the Poznan
Plaza Operational Center in terms of Section 4.2(b) below, the Gross Rentals
applicable to H&M shall be in the amount of E158,000 (one hundred and fifty
eight thousand), which amount shall be capitalized at the Agreed Yield for the
Poznan Plaza Operational Project. Furthermore, no price adjustments shall be
effected in respect of the Gross Rentals of H&M at the Final price Adjustment
Date for the Poznan Plaza Operational Center in terms of the provisions of
Section 4.8 below.
(d) Vendor's Related Party Tenants.
(i) It is agreed that Hokus Pokus Sp.z.o.o. and Fantasy Park
Sp.z.o.o., being parties related to Vendor and currently tenants in certain
Operational Projects, shall within 3 (three) months of the Closing Date enter
into and execute Lease Agreements (in the form of the Standard Form Leases) for
a period of 10 (ten) years from the Closing Date, at their current rental
levels. It is acknowledged that preliminary agreements have been entered into on
the Closing Date between the said related party tenants and the relevant
Operational Company.
(ii) Vendor shall cause EMI to furnish the relevant Purchaser on
the Closing Date, with its First Demand Corporate Guarantee in the form and text
attached hereto as SCHEDULE 2.4(D)(II), pursuant to the provisions of which the
beneficiary Purchaser shall be entitled to demand payment of all and any amounts
which these Vendor Related Party Tenants shall have failed to pay pursuant to
the provisions of their then current Lease Agreements, including charges, but
excluding those bad debts referred to in Section 9.4 below, and EMI shall
undertake to pay all amounts so claimed on first demand.
(iii) It is agreed that upon the termination or expiry of the
Lease Agreements referred to in Section 2.4(d)(i) above and the vacation of the
leased units, the related party tenants shall be entitled to remove all gaming
machines and other items of equipment located within the leased units without
consideration or payment.
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(e) Sadyba - Shell Polska. At the Closing, Vendor shall furnish
Purchasers with a legal opinion issued by a reputable Polish law office,
confirming that it may reasonably be assumed that the sub-lease entered into
between Sadyba Centers SA as Shell Polska Sp.z.o.o.(the "SHELL POLSKA
SUB-LEASE") has been approved by the Municipality of Warsaw, and that the
absense of documentary evidence of such approval does not constitute a material
exposure for Sadyba Center SA.
2.5 Vendor Guarantees.
(a) EMI Parent Guarantee. On the Closing Date, PCE shall cause EMI to
furnish Buyers with the EMI Parent Guarantee in the form and text attached
hereto as SCHEDULE 2.5(A), in terms of which EMI shall guarantee the prompt,
timely and complete performance by PCE of its obligations and undertakings and
duties pursuant to the provisions of this Agreement and the Ancillary
Agreements. The EMI Parent Guarantee shall remain valid until the fulfillment by
PCE of all of its obligations under this Agreement and the Ancillary Agreements.
(b) In addition to the EMI Parent Guarantee, and without derogating
therefrom, Vendor shall cause EMI to furnish to Purchasers at Closing : (aa) the
corporate guarantee relating to the absence of tenant securities referred to in
Section 2.4(a)(ii) above (Schedule 2.4(a)(ii)); and (bb) the First Demand
Corporate Guarantee relating to Vendor's Related Party Tenants referred to in
Section 2.4(d)(ii) above (Schedule2.4(d)(ii)).
2.6 Klepierre Parent Guarantee.
(a) By affixing its signature to this 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
undertakes to indemnify PCE against all losses, reasonable costs, charges and
expenses which it 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.
(b) 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, or any provision of the constitutive documents of any of the Purchasers
which restricts the ability of Klepierre to guarantee the obligations of the
Buyers in terms of this Section.
(c) Any approval, consent, waiver or concession made or given by
Klepierre either before or after the Closing Date shall be deemed to be binding
upon each of the Buyers, jointly and severally.
(d) In addition, Klepierre undertakes to ensure that its wholly owned
subsidiary Capucine BV, a Dutch corporation and the direct shareholder of each
of the Purchasers (excluding LP7) shall take all steps required or necessary
under applicable law and/or its corporate governance instruments and those of
the Purchasers, so as to enable Purchasers to fulfill their undertakings and
obligations pursuant to the provisions of this Agreement.
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2.7 Taxes
(a) Taxes.
(i) Subject to the provisions of sub-section 2.7(b) below, Buyers
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 Acquired Companies contemplated in this
Agreement.
(ii) 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 Acquired Companies contemplated in this Agreement.
(iii) 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.
(iv) For the avoidance of doubt, the obligation to pay Taxes
includes the payment of fines, penalties and default interest in the event that
such taxes are not paid within the time prescribed by operation of Law.
(b) Transaction Tax. Transaction Tax related to the Transactions
imposed under applicable Law in Poland (1%), if any, shall be borne exclusively
by PCE. For the avoidance of doubt, stamp duties which may be imposed upon
Purchasers under French or Dutch Law are subject to the provisions of Section
2.2(a)(i) above. However, in the event that Taxes shall be imposed by any
Government Body competent to do so by reason of the reimbursement of the
Shareholders Loan in the manner contemplated in Section 2.1(e) above (rather
than by way of the subrogation of such loans), then and in such event all such
taxes shall be for the sole account of Buyers.
ARTICLE III - LEASE UP
3.1 Lease-Up following Closing. During the Lease-Up Period (as hereinafter
defined), PCE shall carry out, at its sole cost and expense, the lease-up and
commercialization of all units within the Operational Centers in accordance with
the Lease-Up Criteria, and will keep PCMP fully informed and in a timely manner
of the progress made during that period by way of periodic written reports to be
issued not less than every 30 (thirty) days. In addition, PCE shall permit an
observer on behalf of PCMP to participate in all meetings with the tenants, and
shall ensure that the observer is given reasonable advance notice of the conduct
of such meetings so as to enable his participation. For the purposes of this
Article III, the term "LEASE-UP PERIOD" shall mean:
(a) In respect to Sadyba Center SA, Krakow Plaza Sp.z.o.o. and Xxxx
Xxxxxx Plaza Sp.z.o.o. - the period commencing on the Execution Date and
terminating on the earlier of (i) December 31st, 2005; or (ii) the Lease-Up
Break-Off Date (as hereinafter defined); and
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(b) In respect to Poznan Plaza Sp.z.o.o. - the period commencing on
the Execution Date and terminating on the earlier of (i) May 31st, 2006; or (ii)
the Lease-Up Break-Off Date (as hereinafter defined).
3.2 Break-Off. Notwithstanding the aforegoing, PCE shall have the option in
its sole discretion at any time during the Lease-Up Period to discontinue its
lease-up activities in terms of this Article, provided that it shall be required
to furnish Purchasers, PCMP and the relevant Operational Company with not less
than 30 (thirty) days advance written notice of its intention to do so, and
specifying the date upon which the discontinuance of its lease-up activities
shall take effect (the "LEASE-UP BREAK-OFF DATE"). In such event, PCE shall also
have the option to determine that the determination of the Final Price
Adjustment Date shall occur simultaneously with the Lease-Up Break-Off Date, and
in such event the Final Price Adjustments to be made in terms of the provisions
of Section 4.8 below shall be conducted on the Lease-Up Break-Off Date in
respect of the relevant Operational Project.
3.3 General Provisions relating to Lease-Up.
(a) At the Closing, each Operational Company and PCMP shall award to
PCE a special mandate and power of attorney in agreed form, so as to enable PCE
to carry out its lease-up responsibilities in terms of this Article during the
Lease-Up Period. PCE shall be entitled to delegate all or part of the powers and
authorities vested in terms of the said powers of attorney to a leasing agent,
as contemplated in sub-paragraph (b) below;
(b) PCE shall be entitled to engage the services of a reputable
leasing agent approved by Buyers in advance, such approval not to be
unreasonably withheld or delayed. Furthermore, subject to Buyers' rights of
prior approval as aforesaid, PCE shall be entitled to replace or substitute its
leasing agent in its discretion. PCE hereby notifies Buyers that it has
appointed Messrs. DTZ as its leasing agent in Poland, [and Buyers confirm that
they are agreeable to such appointment].
(c) PCE undertakes to fulfill its lease-up responsibilities in terms
of this Article in a diligent, timely and efficient manner, and shall cause the
leasing agent so to act.
(d) All units shall be leased to reputable tenants of good standing in
compliance with the Lease-Up Criteria. Unless otherwise approved by Purchasers
in advance, PCE shall systematically and exclusively use the Standard Form Lease
in respect of all tenants of the Operational Projects (save in respect of those
units where lease agreements have already been finalized or executed under
contracts of different format prior to the Closing Date, or where the use of a
different format is contractually mandated, such as upon the execution of an
option by the tenant). PCE undertakes to report to KLP prior to the finalization
of any lease negotiation, specifying the agreements reached and, specifically,
any deviations from the Standard Form Lease, using the reporting format attached
as Exhibit B to the Leasing Parameters Schedule (Schedule 1.1(gg)).
(e) However, it is agreed and understood that the power of attorney
awarded to PCE will specifically exclude the power or authority to sign and
execute the Lease Agreements (or any amendment thereto) for and on the behalf of
the Operational Companies. PCE shall be required, and hereby undertakes, to
present all Lease Agreements with tenants to the relevant Operational Company
for signature and execution. However it is hereby specifically agreed and
understood that: (i) Purchasers and/or the Operational
20
Companies may not refuse to execute any lease in Standard Form Lease which
complies with the Lease-Up Criteria; and (ii) where amendments or modification
to the Standard Form Lease are entailed, and in respect of leases with anchor
tenants, the Purchasers and/or the relevant Operational Company may not
unreasonably or arbitrarily withhold or delay its consent to and execution of
such lease agreements.
(f) PCE shall render the Lease-Up services in terms hereof without
consideration. Accordingly, Purchasers, PCMP and the Operational Companies shall
be under no obligation to pay any commissions, commercialization fees or other
forms of remuneration to PCE in respect of such services, nor shall the award of
the power of attorney to PCE in terms of sub-section (a) above be deemed to
impose any obligation upon Purchasers and/or the Operational Companies and/or
PCMP to make such payments. All costs incurred by PCE in the rendering of the
Lease-Up Services, including any fees due and payable to leasing agents
appointed by it in terms of sub-section (b) above, shall be borne and paid
solely by PCE.
(g) For the avoidance of doubt, it is further specifically agreed and
understood that PCMP will not assume any development liability whatsoever, and
PCE undertakes to ensure that PCMP is kept entirely free of all such liability.
3.4 Property Management. Notwithstanding the Lease-Up responsibilities
entrusted to PCE in terms of this Article, as and from the Closing Date, PCMP
will carry out the property management of the Operational Projects in terms of a
Patrimonial Management Agreement in a form and text to be agreed upon between
PCMP and the Operational Companies. In addition, following the Final Price
Adjustment Date or the Lease-Up Break-Up Date, as the case may be, PCMP shall
also carry out the rental management of the Operational Projects.
ARTICLE IV - TRANSACTION PRICE AND VERIFICATIONS
4.1 Proforma Closing Accounts.
(a) Attached hereto as SCHEDULE 4.1(A) are the Proforma Closing
Accounts in respect of each of the Operating Companies as at the Closing Date,
and the Proforma PCMP Closing Accounts in respect of PCMP as at the Closing
Date.
(b) The Proforma Closing Accounts and the Proforma PCMP Closing
Accounts have been prepared by PCE in good faith, consistent with past practice
in accordance with the Accounting Principles, and have been approved by Buyers.
4.2 Operational Projects - Calculation of Initial Purchase Prices. On the
Closing Date, on the basis of the Proforma Closing Accounts the Parties shall:
(a) determine the Execution Operational Project Value of each of the
Operational Companies by applying the Project Value Methodolgy (Schedule
1.1(xx)) on the basis of the Execution Rentals, capitalized at the Agreed
Yields; and thereafter.
(b) calculate the amount of the purchase price in respect of each
Operational Company (the "INITIAL PURCHASE PRICES") which shall be comprised of
- (i) the net asset value of the relevant
21
Operational Company, calculated in accordance with the Restated Net Asset
Methodology set forth in Schedule 1.1(fff) ("INITIAL NET ASSET VALUE"); and (ii)
its Execution Operational Project Value.
(c) In calculating the Initial Net Asset Value of Sadyba Center SA,
the provisions of Section 4.9(b)(iii) shall be applied. In addition, in
calculating the Execution Operational Project Value of Poznan Plaza Sp.z.o.o.,
the provisions of Section 2.4(c)(ii) below shall be applied.
4.3 Special Agreed Price Adjustment.
(a) Notwithstanding the provisions of Section 4.2 above, and
notwithstanding anything to the contrary herein contained, it is hereby
specifically agreed that a special, agreed and final price adjustment in the
amount of E1,700,000 (one million seven hundred thousand Euro) (the "SPECIAL
AGREED PRICE ADJUSTMENT") shall be deducted from and applied against the
aggregate total of the Execution Operation Project Value at Closing, and against
the Final Operational Project Value on the Final Price Adjustment Date, and same
as specified and accounted for in the Project Value Methodology (Schedule
1.1(xx)).
(b) The Special Agreed Price Adjustment abovementioned has been agreed
upon between the Parties following the conduct of Buyers' due diligence
investigations and in negotiations preceding the Execution Date, as detailed and
specified in Exhibit A to the Transaction Prices Schedule to be attached hereto
as Schedule 4.5 in terms of the provisions of Section 4.5 below. In this regard
: (I) Purchasers hereby declare that the Special Agreed Price Adjustment
reflected in the exhibit to the Transaction Prices Schedule as aforesaid
constitutes the agreed, full and final compensation and/or consideration payable
to them in respect of the matters specifically addressed and itemized in that
Exhibit A to the Transaction Prices Schedule, including exclusively in respect
of such matters the right to claim indemnity in respect thereof in terms of
Section 13.1(a) below insofar as the representations and warranties pertain
directly to such matters; and (II) Purchasers hereby waive all and any claims,
whether past present or future, against Vendor or any of them and/or their
Affiliates pertaining to the matters specifically referred to in Exhibit A to
the Transaction Prices Schedule, and in respect of any other matters arising
from and in connection with their due diligence investigations pertaining to the
determination of the Initial Purchase Prices and/or the Definitive Purchase
Prices and/or the Execution Operational Project Value and/or the Final
Operational Project Value, but without derogating in any manner from Buyers'
rights to claim damages and/or indemnification arising out of and/or in
connection with and/or relating to a breach by Vendor of its representations,
warranties and covenants given and made in terms of the provisions of this
Agreement.
4.4 Calculation of PCMP Purchase Price. On the Closing Date, on the basis
of the Proforma PCMP Closing Accounts prepared as aforesaid, the Parties shall
calculate the PCMP purchase price (the "INITIAL PCMP PURCHASE PRICE") according
to the Restated Net Asset Methodology set forth in Schedule 1.1(fff), it being
specifically agreed and understood, however, that: (i) the enterprise value of
PCMP (on a debt free basis) shall be equal to E1.- (one Euro); and (ii) PCE
shall cause PCMP's net asset value to be positive at the Closing Date.
4.5 Transaction Prices Schedule.
(a) At the Closing, the Parties shall prepare the Transaction Prices
Schedule and attach same to this Agreement as SCHEDULE 4.5.
22
(b) The Transaction Prices Schedule shall detail and determine, for
each Operational Company, the Initial Purchase Price to be paid by the relevant
Purchaser to PCE, calculated as aforesaid, specifying :
(i) its Execution Operational Project Value; and
(ii) its Net Asset Value; and identifying
(iii) the Shareholder Loan Amount as reflected in the Shareholder
Loan Schedule (the "INITIAL SHAREHOLDER LOAN AMOUNTS"); and
(iv) in respect of Sadyba Center SA only, the Sadyba Up-Stream
Loan Amount (the "INITIAL SADYBA SHAREHOLDER LOAN AMOUNT").
(c) In addition, the Transaction Prices Schedule shall detail and
determine the Initial PCMP Purchase Price, calculated in the manner specified in
Section 4.4 above.
4.6 Payment of Initial Purchase Prices.
(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 entire Equity
Rights (100%) in and to the Operational Companies by PCE to Purchasers,
Purchasers shall pay to PCE the aggregate total of the Initial Purchase Prices
for all of the Operational Companies; and
(b) At the Closing, on the terms and subject to the conditions set
forth in this Agreement and in the Loan Subrogation Agreement in respect to
Sadyba Center SA referred to in Section 2.1(c) and Section 8.3(c) hereof,
KLP-Sadyba shall pay to PCE the net aggregate total of the Initial Shareholder
Loan Amount in respect to Sadyba Center SA, following set off of the Initial
Sadyba Up-Stream Loan Amount in the manner specified in Section 2.1(d)(ii)
above; and
(c) At the Closing (contemporaneously with the transfer of the Equity
Rights as set forth in Section 4.6(a) above), on the terms and subject to the
conditions set forth in this Agreement, PCE shall assign to KLP-Sadyba the
liability to repay the Sadyba Up-Steam Loan, in consideration for which PCE
shall pay at Closing to KLP-Sadyba the Initial Sadyba Up-Stream Loan Amount in
the manner contemplated in Section 2.1(d)(ii) above. Simultaneously, PCE shall
assign to KLP-Sadyba the Sadyba Up-Stream Loan Amount, in terms an Assignment of
Debt Agreement (Schedule 2.1(d)(i)).
(d) At the Closing (immediately after the transfer of the Equity
Rights as set forth in Section 4.5 (a) above), on the terms and subject to the
conditions set forth in this Agreement, KLP-Krakow and KLPPoznan shall cause
Krakow Plaza Sp.z.o.o. and Poznan Plaza Sp.z.o.o., to pay to PCE by way of the
reimbursement of their respective Shareholders Loans, the aggregate total of the
Initial Shareholder Loan Amounts in respect to Krakow Plaza Sp.z.o.o. and Poznan
Plaza Sp.z.o.o., in the manner contemplated in Section 2.1(d)(ii) above; and
(e) At the Closing, on the terms and subject to the conditions set
forth in this Agreement, as full payment for the sale and transfer of the
Acquired PCMP Shares constituting the entire Equity Rights
23
(100%) in and to PCMP by PCE to Segece, Segece shall pay to PCE the full amount
of the Initial PCMP Purchase Price; and.
(f) All amounts paid by Buyers to PCE on the Closing Date as
hereinabove specified, shall be subject, as the case may be, to:
(i) The restated Net Asset Value adjustment to be carried out in
terms of the provisions of Section 4.7 below on the basis of the Final
Definitive Closing Accounts; and
(ii) The adjustments of the Execution Operational Project Value
to be carried out on the Final Adjustment Date in terms of the provisions of
Section 4.8 below; and
(iii) The special price adjustments regarding Sadyba Center SA,
to be carried out in accordance with the provisions of Section 4.9 below.
(g) Payment of all amounts to be made under this Section 4.5 by Buyers
and the Operational Companies to PCE shall be effected by wire transfer of
immediately available funds in Euro Currency to such account or accounts as PCE
may direct in its irrevocable payment instructions to be furnished to Purchasers
and Segece respectively at least 2 (two) Business Days before Closing.
4.7 Post-Closing Purchase Price Adjustments.
Verification of Initial Purchase Prices (Net Asset Values).
(a) Within ninety (90) days following the Closing Date (such period
hereinafter referred to as the "VERIFICATION PERIOD"), the Vendor will prepare:
(i) the audited financial statements of each of the Operational
Companies (excluding PCMP) in accordance with Polish accounting standards and
the Accounting Principles as at the Closing Date (the "DEFINITIVE CLOSING
ACCOUNTS"); and
(ii) the audited financial statements of PCMP, in accordance with
Polish accounting standards and the Accounting Principles as at the Closing Date
(the "DEFINITIVE PCMP CLOSING ACCOUNTS").
(b) By not later than the last day of the Verification Period, the
external auditors of Vendor (who shall be numbered amongst the "Big Four") shall
carry out and complete an audit of the Definitive Closing Accounts and the
Definitive PCMP Closing Accounts.
(c) On the basis of the Definitive Closing Accounts and the Definitive
PCMP Closing Accounts, during the Verification Period PCE will :
(i) Calculate the definitive prices (Net Asset Value only) to be
paid by Purchasers to PCE in respect of each of the Operational Companies based
upon the Definitive Closing Accounts, in the same manner provided for in Section
4.2 above by applying the Restated Net Asset Methodology (Schedule 1.1(fff)) on
the basis of the Definitive Closing Accounts (the "DEFINITIVE PURCHASE PRICES"),
it being agreed and understood, however, that the Execution Operational Project
Value will remain unchanged
24
at this time and will be subject to separate adjustment procedures pursuant to
the provisions of Section 4.9 below; and
(ii) Calculate the definitive price to be paid by Segece to PCE
in respect of the purchase of the Acquired PCMP Shares, based on the Definitive
PCMP Closing Accounts, in the same manner provided for in Section 4.4 above by
applying the Restated Net Asset Methodology (Schedule 1.1(fff)) on the basis of
the Definitive Closing Accounts (the "DEFINITIVE PCMP PURCHASE PRICE"); and
(iii) Identify the definitive amounts to be paid by Krakow Plaza
Sp.z.o.o., Poznan Plaza Sp.z.o.o. and KLP-Sadyba with respect to the
reimbursement or the subrogation, as the case may be, of the Shareholder Loans
as specified in Sections 2.1(c) and 2.1(e) respectively above (the "DEFINITIVE
SHAREHOLDER LOAN AMOUNTS"); and
(iv) Identify the definitive amounts to be paid by PCE to
KLP-Sadyba with respect to the transfer by way of an assignment of debt, of the
Sadyba Up-Stream Loan (the "DEFINITIVE SADYBA UP-STREAM LOAN AMOUNT").
(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
PCMP Accounts.
(e) The reasonable cost of the auditing of the Definitive Closing
Accounts and the Definitive PCMP Closing Accounts shall be borne in equal shares
by Buyers on the one hand, and by PCE on the other hand.
Review of Definitive Accounts.
(f) Buyers Accountants will have sixty (60) days as from the
expiration of Verification Period (the "REVIEW PERIOD") to review the Definitive
Closing Accounts, the Definitive PCMP Closing Accounts, the Definitive Purchase
Price, the Definitive PCMP Purchase Price, the Definitive Shareholder Loan
Amounts and the Definitive Sadyba Up-Stream Loan Amount (collectively the
"AUDITED CLOSING ACCOUNTS"). Vendor shall reasonably cooperate with Buyers
and/or Buyers' Accountants in order to enable Buyers' Accountants to perform the
review of the Audited Closing Accounts.
(g) If Buyers believe that any changes are required to be made to the
Audited Closing Accounts or any of them (including but not limited to changes
based on differences between the Audited 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 Vendor (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.
(h) The Audited Closing Accounts shall be binding and conclusive upon,
and deemed accepted by, Buyers unless Buyers shall have delivered a Dispute
Notice to Vendor prior to the conclusion of the Review Period in terms of this
section.
25
Verification Disputes
(i) Any difference of opinion between the Parties and/or between the
Vendor's Accountants and Buyers' Accountants pertaining to the preparation,
verification and review of the Audited Closing Accounts with regard to any item
contained therein ("VERIFICATION DISPUTES") which cannot be promptly and
amicably resolved by mutual agreement within 15 (fifteen) 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 Expert shall not act as the external auditors of any
of the Parties to this Agreement, nor to any of the Acquired Companies).
(j) 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 fifteen (15)
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.
(k) 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 Audited Closing Accounts shall be adjusted by the Parties
in order to reflect the decision of the Closing Expert.
(l) The reasonable fees, and the expenses and disbursements, of the
Closing Expert shall be paid one-half by Vendor and one-half by Buyers, unless
otherwise determined by the Closing Experts.
(m) Notwithstanding the provisions of Section 15.3 below (Dispute
Resolution) and the provisions of applicable Law determined in terms of Section
15.2 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.
(n) 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 Audited Closing Accounts.
(o) The Audited Closing 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 4.7(g) above; (ii) an agreement between Buyers
and Vendor with respect thereto; or (iii) the decision by the Closing Expert
with respect to any disputed matters
26
pursuant to Section 4.7 (i) above. The Audited Closing Accounts, as adjusted
pursuant to the agreement of Buyers and Vendor or the decision of the Closing
Expert as aforesaid, upon becoming final and binding pursuant to this Section
4.7(o), shall be referred to herein as the "FINAL DEFINITIVE CLOSING ACCOUNTS"
which shall include the "FINAL DEFINITIVE PURCHASE PRICES", the "FINAL
DEFINITIVE PCMP PURCHASE PRICE", the "FINAL DEFINITIVE SHAREHOLDER LOANS
AMOUNTS" and the "FINAL DEFINITIVE SADYBA UP-STREAM LOAN AMOUNT".
Net Asset Value Adjustments.
(p) Each of the Initial Purchase Prices (excluding the Execution
Operational Project Value) shall be adjusted as follows: increased on a
Euro-for-Euro basis, by an amount of the difference, if positive, between the
Final Definitive Purchases Prices and the Initial Purchase Prices, or, if
negative, reduced by the amount of such difference.
(q) The Initial PCMP Purchase Prices shall be adjusted as follows:
increased on a Euro-for-Euro basis, by an amount of the difference, if positive,
between the Final Definitive PCMP Purchases Prices and the Initial PCMP Purchase
Prices, or, if negative, reduced by the amount of such difference.
(r) Each of the Initial Shareholder Loans Amounts reimbursed or
subrogated, as the case may be, at Closing, as specified in Section 4.6 above,
shall be adjusted as follows: increased on a Euro-for-Euro basis, by an amount
of the difference, if positive, between the Final Definitive Shareholder Loan
Amounts and the Initial Shareholder Loan Amount, or, if negative, reduced by the
amount of such difference.
(s) The Initial Sadyba Up-Stream Loan Amount shall be adjusted as
follows: increased on a Euro-for-Euro basis, by an amount of the difference, if
positive, between the Final Definitive Sadyba Up-Stream Loan Amount and the
Initial Sadyba Up-Stream Loan Amount, or, if negative, reduced by the amount of
such difference.
Method of NAV Adjustments.
(t) All NAV 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 4.7(k) 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 Closing Date to the
actual date of payment.
Interim Price Adjustments.
(u) The Parties hereby record that it is their express understanding
and intention that the payment of all undisputed amounts set forth in the Final
Definitive Closing Accounts that have become final
27
and binding pursuant to Section 4.7(o) 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
4.7(i) above.
(v) For the avoidance of all doubt, the post-closing price adjustments
to be carried out in terms of this Section 4.7 shall be in addition to, and
shall not constitute part of, the special and additional price adjustments to be
carried out in terms of Sections 4.8 and 4.9 below, and shall be conducted
separately.
4.8 Final Price Adjustments for Operational Companies. Without derogating
from the provisions of Section 4.7 above, the Parties have agreed that the
following additional price adjustments shall be carried out on the Final Price
Adjustment Date (as hereinafter defined):
Final Price Adjustment Date
(a) The Final Price Adjustment Date for the Operational Companies
shall occur on: (i) December 31st, 2005 at the latest for each of the Sadyba
Center SA, Xxxx Xxxxxx Sp.z.o.o. and Krakow Plaza Sp.z.o.o.; and (ii) May 31st,
2006 at the latest for the Poznan Plaza Sp.z.o.o.; provided, however, that in
the event that PCE shall so elect to exercise the right granted to it in terms
of Section 3.2 above, then and in such event the Final Price Adjustment Date
shall occur on the relevant Lease-Up Break-Off Date.
Final Operational Projects Value
(b) On the relevant Final Price Adjustment Date, an adjustment of the
Execution Operational Project Value for each Operational Company shall be
carried out by applying the Project Value Methodology (Schedule 1.1(xx)) on the
basis of the Gross Rentals as at the Final Price Adjustment Date, or the
Lease-Up Break-Off Date, where relevant (determined in accordance with the
methodology set forth in the Gross Rentals Definition Schedule (Schedule
1.1(y)), capitalized at the Agreed Yields (the "FINAL OPERATIONAL PROJECTS
VALUE").
Calculation of Final Price Adjustmens
(c) On or before a date 15 (fifteen) days following the relevant Final
Price Adjustment Date, the following adjustments shall be calculated and paid,
namely:
(i) If A > C > B : then Purchasers shall pay to PCE an amount
equal to -
(C - B) + [(A - C) X 50%];
(ii) If A > B or A = B, and C > A: then Purchasers shall pay to
PCE an amount equal to (A - B); and
(iii) If C > B > A: then PCE shall pay to Purchasers an amount
equal to (B - A).
(d) For the purposes of sub-section (c) above -
(i) A = the Final Operational Project Value of each
Operational Project;
28
(ii) B = the indexed Execution Operational Project Value of
each Operational Project. The indexation of each
Execution Operational Project Value will be
calculated from the Reference Date (March 31st, 2005)
until the relevant Final Price Adjustment Date, save
in respect of the Poznan Operational Project, where
the indexation will be calculated from June 30, 2005
until the Final Price Adjustment Date for Poznan;
(iii) C = the indexed Forecasted Operational Project Value,
defined as the Forecasted Rents on each Operational
Project as of 31/12/2005, capitalized at the Agreed
Yields set forth in Schedule 1.1(e), except for
Poznan Plaza which will be the Forecasted Rents as of
31/05/2006 capitalized at the Agreed Yield, set forth
in Schedule 1.1(e). The indexation of each Forecasted
Operational Project Value will be calculated from the
Reference Date (March 31, 2005) until the relevant
Final Price Adjustment Date, save in respect of the
Poznan Operational Project, where the indexation will
be calculated from Jun3 30, 2005 until the Final
Price Adjustment Date for Poznan.
Capped Gross Rentals
(e) Notwithstanding anything to the contrary herein contained, and
subject to the provisions of Section 4.11(a) below, it is specified that with
respect to any Operational Project, the Gross Rentals as at the relevant Final
Price Adjustment Date shall be capped on an individual basis, as follows:
(i) at 1.25 of the relevant unit's Forecasted Rentals (plus the
Exchange Rate Differentials, as hereinafter defined), where relevant - with
respect to each Operational Project unit whose gross leasable area is below
1,000 square meters; or
(ii) at 1.15 of the relevant unit's Forecasted Rentals (plus the
Exchange Rate Differentials), where relevant - with respect to each Operational
Project unit whose gross leasable area is above 1,000 square meters.
(f) For the purpose of determining the Capped Gross Rentals in terms
of Section 4.8(e) above, it is specifically agreed that in the event that a
devaluation of the Euro compared to the US Dollar will cause an increase in the
Euro value of any rentals denominated in US Dollars upon their conversion into
the Euro currency (that is to say that a higher Euro equivalent will result due
to the devalued exchange rate) (hereinafter "EXCHANGE RATE DIFFERENTIALS"), such
Exchange Rate Differentials shall be taken into consideration in the calculation
of the Capped Gross Rentals.
Indexation
(g) In the calculation of the Final Adjustments to be made pursuant to
the provisions of this Section 4.8, the indexation applied to the Execution
Operational Project Values, as the case may be, will be the costs indexation
actually applicable to the relevant leases.
29
4.9 Sadyba Additional Special Price Adjustments.
(a) Ground Lease Adjustment. Without derogating from the provisions of
Sections 4.7 and 4.8 above, and in addition thereto, the Parties have agreed
that that the Final Definitive Purchase Price of Sabyba Center SA will be
adjusted by an amount calculated in accordance with the methodology set forth in
SCHEDULE 4.9(A)(A), and in the circumstances specified therein. At Closing
Klepierre shall furnish PCE with its corporate guarantee for the payment of the
amounts detailed and specified for payment in Schedule 4.9(a) on the terms and
conditions specified therein, in the form and text attached hereto as SCHEDULE
4.9(A)(B).
(b) Tax Ruling Adjustment. It is further agreed and specified as
follows :
(i) Klepierre and KLP-Sadyba declare that following the Closing
Date, they intend to cause Sadyba Center SA to convert the Sadyba Shareholders
Loan subrogated in terms of Section 2.1(c) above, from a shareholder loan into
equity capital (the "SADYBA SHAREHOLDER LOAN CONVERSION");
(ii) To that end, and at Klepierre's request, Vendor has caused
Sadyba Center SA to prepare an application (which has been approved by
Klepierre, and a copy of which is attached hereto as SCHEDULE 4.9(B)( and to
submit such application to the competent Polish Tax authorities. Pursuant to the
provisions of the said application, Sadyba Center SA has requested that the
Polish Tax authorities issue a binding ruling confirming, without condition or
reserve, that the Sadyba Shareholder Loan Conversion will be exempt from Tax
(the "SADYBA TAX RULING");
(iii) In the calculation of the Initial Purchase Price in respect
of Sadyba Center SA in terms of Section 4.2 above, it is agreed that the
effective tax, net after tax losses carried forward, shall be applied in the
calculation of the Net Asset Value in terms of the Restated Net Asset Value
Methodology (Schedule 1.1(fff)) on the assumption that the Sadyba Tax Ruling
will not be given.
(iv) However, In the event that the Sadyba Tax Ruling is issued
on or before December 31st, 2005 then and in such event it is agreed that the
Definitive Purchase Price for Sadyba Center SA shall be increased by an amount
of E845,000 (eight hundred and forty five thousand Euro). In such event,
KLP-Sadyba undertakes to execute payment of the said increment on the Definitive
Purchase Price within 10 (ten) Business Days of the date of the Sadyba Tax
Ruling, and the provisions of Section 4.7(t) shall apply mutates mutandis to
such payment;
(v) In the event, however, that the Sadyba Tax Ruling has not
been issued by the date abovementioned, or in the event that the Sadyba Tax
Ruling has been issued subject to reservations or conditions which are
unacceptable to Klepierre in its sole discretion reasonably applied; then and in
such events no adjustment of the Final Definitive Purchase Price will be made
under this Section 4.9(b). In such event, Purchasers and Klepierre shall have no
further claims, arguments, demands or contentions against PCE relating
specifically to any tax exposure or liability pertaining to and/or in respect of
the Sadyba Shareholder Loan and/or the Sadyba Shareholder Loan Conversion, that
would have been covered by the Sadyba Tax Ruling.
4.10 Further Final Special Price Adjustments
(a) Invoicing Discrepencies. In the event that at the Final Price
Adjustment Date it shall be revealed that discrepancies exist between the
amounts specified in the Tenant List as at the Final Price
30
Adjustment Date, and the amounts actually invoiced to tenants as at the Final
Price Adjustment Date in accordance with the terms and provisions of the
relevant Lease Agreements, then and in such event an adjustment shall be
performed on the basis of the actual amounts invoiced in accordance with the
terms of the relevant Lease Agreements so as to rectify such discrepancies. For
information purposes only, the Parties have attached hereto as SCHEDULE 4.10(A)
a list of tenants in respect of whom such invoicing discrepancies exist as at
the Closing Date. It is specifically agreed and understood that Schedule 4.10(a)
is attached for information purposes only, and shall not prevent Purchasers from
exercising its rights in terms of this Section 4.10(a) at the Final Price
Adjustment Date in respect of tenants not specified in Schedule 4.10(a).
(b) H&M Gross Rentals. No price adjustments shall be performed in
respect of the capitalized Gross Rentals attributable to the H&M anchor tenant
at the Poznan Plaza Operational Project, as contemplated in Section 2.4(c)(ii)
above.
4.11 General Provisions relating to Transaction Prices. For all purposes in
terms of this Article IV:
(a) All the values and prices shall be denominated in the Euro
Currency prevailing on the relevant calculation dates. The reference rate of
exchange of the United States Dollar and the Euro with respect to the Sadyba
Best Mall (and any other Operational Project's revenues denominated in United
States Dollars) will be the official rate of exchange of the US Dollar and the
Euro as published by the National Bank of Poland which will prevail on the
Closing Date. The reference rate of exchange of the Polish Zloty and the Euro
with respect to any Operational Project will be the official rate of exchange of
the Polish Zloty and the Euro prevailing on the Closing Date as published by the
National Bank of Poland.
(b) PCE undertakes to ensure that the tax book asset values for the
Sadyba Center SA, Xxxx Xxxxxx Sp.z.o.o. and Krakow Slaska Sp.z.o.o., and the net
book asset values of the Poznan Plaza Sp.z.o.o. (namely: total project costs,
excluding the land acquisition costs) shall be at least equal to the
corresponding values set forth in SCHEDULE (B)4.11(B), calculated at: (i)
December 31, 2004 for Sadyba Center SA, Xxxx Xxxxxx Sp.z.o.o. and Krakow Slaska
Sp.z.o.o.; and (ii) the Execution Date in respect of the Poznan Plaza Sp.z.o.o;
(c) PCE further undertakes to ensure that the Net Asset Value of the
Acquired Companies will be positive. To that end PCE undertakes to on or before
the Closing it shall where necessary capitalize Shareholder Loans in the
relevant Acquired Companies in an amount sufficient to render the Net Asset
Value positive, or, if insufficient, cause fresh capital to be injected into the
relevant Acquired Companies prior to Closing.
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF VENDOR
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 Vendor to Buyers (the
"VENDOR'S DISCLOSURE SCHEDULE") which is attached hereto as SCHEDULE 5.0, and
which shall not be modified after the date hereof, the Vendor hereby represents
and warrants to Buyers that the statements contained in this Article V 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
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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 Vendor
5.1 Organization, Qualification, and Corporate Power.
Vendor:
(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;
(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 Vendor;
(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 businesses
and to own and use its assets.
5.2 Authorization. Vendor 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 Acquired Companies and no further actions on the
part of Vendor are necessary to authorize the execution, delivery and
performance of this Agreement and the Ancillary Agreements to which Vendor is a
party or, in the case of the Ancillary Agreements, do not require such approval.
This Agreement and the Ancillary Agreements to which Vendor is a parties and the
transactions contemplated hereby and thereby have been approved by the
affirmative vote of the Board of Directors of Vendor (and, where required, its
Affiliates, including EMI). This Agreement and the Ancillary Agreements to which
Vendor is a party have been duly and validly executed and constitute the valid
and legally binding obligations of Vendor, enforceable against Vendor in
accordance with their respective terms and conditions.
5.3 No Conflicts. Neither the execution and the delivery of this Agreement
and the Ancillary Agreements by the Vendor nor the consummation of the
Transactions 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 Vendor or the Acquired Companies are subject;
(b) violate or conflict with any provision of the respective Articles
of Incorporation, by-laws or organizational documents of the Vendor or the
Acquired Companies; or
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(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 the Vendor or any of the Acquired
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 Acquired Companies.
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 Vendor, is required by or with respect to Vendor 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 8.2(a) below.
Representations and Warranties applicable to the Acquired Companies
5.5 Capitalization. The authorized, issued and outstanding capital stock of
each of the Acquired Companies is as set forth in the Rights Acquisition
Schedule. Except as set forth in the Portfolio Liabilities Schedule, or as
mandated under applicable Polish Law, as the case may be, there are no
outstanding securities convertible into or exchangeable for shares in any of the
Acquired Companies, nor are there any outstanding options, rights, preemptive or
otherwise, or similar right or other right, contract, agreement, commitment or
understanding of any kind or warrants to purchase or to subscribe for any quotas
or shares of such stock or other securities of the Acquired Companies, or
obligating any of the Acquired Companies to issue any additional shares or
quotas of capital stock. The issued and outstanding shares of the Acquired
Companies are held by the shareholders listed in the Rights Acquisition
Schedule, and in the amounts set forth.
5.6 Validity of Shares. The shares of the Acquired 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.
5.7 Articles of Association and Constitutive Documents.
(a) The copies of the Articles of Association and other constitutive
documents of each of the Acquired Companies which have been furnished to Buyers
within the framework of its due diligence investigations are true and accurate
copies thereof, and same have not been amended or modified except as disclosed
in writing to Buyers.
(b) The Acquired Companies are corporations duly organized, validly
existing, and in good standing under the laws of the jurisdiction of their
incorporation. The Acquired Companies are duly authorized to conduct business
and are in good standing under the laws of each jurisdiction where such
qualification is required. None of the Acquired Companies is in default under or
in violation of any provision of its charter or by-laws.
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5.8 Legal Title.
(a) At Closing, PCE is the beneficial and the owner of record of, and
has good, valid and marketable title in and to, all of the shares (100%) of the
Acquired Companies, which are to be acquired by Buyers pursuant to the
provisions of this Agreement, free and clear of all Liens save in respect of
Financing Bank Securities;
(b) None of the Acquired Companies owns or has any right to acquire,
directly or indirectly, any outstanding capital stock of, or other equity
interest in, any Person; and
(c) All easements which constitute Permitted Liens are not violated by
the current use or occupancy of the Operational Projects, or the operations of
the Operational Companies as currently conducted thereon.
5.9 Transferability. Upon the execution by the Financing Banks of the
Waiver and Consent as set forth in Section 8.2 (a)(ii) and the execution by OVAG
of the OVAG Loan Repayment Agreement II as set forth in Section 8.2 (b), the
shares of the Acquired Companies are not subject to any restrictions with
respect to their transferability, save as mandated under applicable Polish Law.
5.10 Shareholders' Loans and the Sadyba Up-Stream Loan. (a) The Shareholder
Loan Schedule sets forth all of the Shareholder Loans due by the Acquired
Companies to PCE and/or its Affiliates as at the Closing Date. All the
Shareholder Loans: (i) are recorded in the books of account of the relevant
Acquired Companies as being an Indebtedness at Closing of an amount equal to the
Initial Shareholders Loans Amounts due and payable to PCE and/or its Affiliates,
for such amounts; (ii) have been properly reported to and/or recorded with the
competent authorities, including the Central Bank of Poland, 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 reimbursement and/or subrogation
to Buyers as contemplated in this Agreement; and (vi) none of the Shareholder
Loans have been repaid in whole or in part, or increased, nor has any interest
thereon been paid, since the Execution Date.
(b) The Shareholder Loan Schedule also sets forth details of the
Sadyba Up-Stream Loan owed to Sadyba Center SA by PCE as at the Closing Date.
The Sadyba Up-Stream Loan: (i) is recorded in the books of account of Sadyba
Center SA as being an asset at Closing Date of an amount equal to the Sadyba
Up-Stream Loan Amount, due and payable by PCE for such amount; (ii) have been
properly reported to and/or recorded with the Central Bank of Poland in
compliance with all applicable Laws and regulations (including any credit
facilities covenants), if necessary; (iii) is valid binding and enforceable in
accordance with its terms, and free from any Lien, except for Financing Bank
Securities; (iv) is capable of repayment in Euro currency in accordance with
their respective terms and conditions without restriction; (v) is capable of
transfer to Purchasers as contemplated in this Agreement; and (vi) the Sadyba
Up-Stream Loan has not been repaid in whole or in part, or increased, nor has
any interest thereon been paid, since the Reference Date.
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5.11 Financing Loan Facilities.
(i) Subject to obtaining the Waivers and Consents of the
Financing Banks as specified in Section 8.2(a)(ii) below, the Transactions shall
not give rise to any breach of any obligation, undertaking or covenant of the
Acquired 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 Acquired Companies have not and are not currently in
breach of any obligation, undertaking or covenant of the Acquired Companies
under the Financing Loan Facilities which gives rise to an Event 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;
(iii) The next regularly scheduled Prepayment Date is set forth
in Portfolio Liabilities Schedule, and upon such date, that total amount of all
Prepayment Amounts under each of the 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 8.2(a)(ii), and in the
Portfolio Liabilities Schedule, and no other fees, costs, penalties losses
(excluding the Breakage Costs referred to in Section 2.1(h)(iii)above) and/or
other amounts shall be due in connection with the prepayment of such loan on the
Prepayment Date;
(iv) The total aggregate amount of the Prepayment Amounts due and
payable in respect of all of the Assumed Financing Loans, the OVAG Loan and the
loan awarded by Magyar Kulkereskedelmi Bank Rt. of Budapest to Sadyba Center SA,
shall not exceed E521,000 (five hundred and twenty one thousand Euro);
(v) 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
(vi) 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 Prepayment Date.
5.12 Financial Statements. The financial statements of each of the Acquired
Companies, which have been audited or reviewed, for the fiscal periods ended
December 31, 2003 (audited), December 31, 2004 (audited) and the Proforma
Closing Accounts as at July 31st, 2005, including the notes thereto (the
"FINANCIAL STATEMENTS") have been prepared in accordance with Polish accounting
standards, as the case may be, applied on a basis consistent throughout the
periods covered thereby, present fairly the financial condition of the relevant
Acquired Companies as of such date and the result of operations of the relevant
Acquired Companies for such periods, are correct and complete, and are
consistent with the Books and Records of the relevant Acquired Companies. The
Proforma Closing Accounts and the Proforma PCMP Closing Accounts have been
prepared in good faith and in accordance with Polish accounting standards and
the Accounting Principles (Schedule 1.1(a)).
5.13 Undisclosed Liabilities. None of the Acquired 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
35
whether due or to become due), except for those set forth on the face of the
Proforma Closing Accounts and the Final Definitive Closing Accounts (rather than
in any notes thereto).
5.14 Events Subsequent to Most Recent Fiscal Period End. Save in respect of
Poznan Plaza Sp.z.o.o., and save in respect of the Tenant Improvements referred
to in Section 2.2 above, other than in the ordinary course of business and
consistent with past practise, since December 31, 2004, 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 Acquired
Companies. Without limiting the generality of the foregoing, since that date:
(a) Neither Vendor nor any of the Acquired 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;
(b) Neither Vendor nor any of the Acquired 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 Acquired Companies or any of them of greater
than E10,000 (E50,000 for Poznan Plaza Sp.z.o.o.) per annum or which
extends for more than one (1) year, (ii) involves any payment or obligation to
any Affiliate of Vendor 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
Vendor and the Acquired 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 Vendor or any of the Acquired
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 Vendor nor any of the Acquired 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 E10,000 (E50,000 for Poznan
Plaza Sp.z.o.o.) in the aggregate of all such capital expenditures;
(f) Neither Vendor nor any of the Acquired 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 Vendor nor any of the Acquired Companies have granted any
license or sublicense of any rights under or with respect to any intellectual
property related to the Businesses or the
36
Purchased Assets, including specifically with respect to the trademark which is
the subject matter of the Trademark License Agreement;
(h) Neither Vendor nor any of the Acquired Companies have experienced
any damage, destruction, or loss (whether or not covered by insurance) to the
Purchased Assets in excess of E10,000 in the aggregate of all such damage,
destruction and losses;
(i) Neither Vendor nor any of the Acquired Companies have entered into
any employment contract (other than a standard contract involving non-management
personnel) 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 Vendor nor any of the Acquired Companies have changed any
of the accounting principles or methods followed by the Businesses or the method
of applying such principles;
(k) Neither Vendor nor any of the Acquired Companies have entered into
any agreement, contract or commitment limiting the freedom of the Acquired
Companies to engage in the Businesses or to compete with any person, save as
provided in Section 9.1 (Non-compete);
(l) Neither Vendor nor any of the Acquired 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 Vendor nor any of the Acquired Companies have made any
distribution of dividends or made any other contractual payment to their direct
or indirect Affiliates (including repayment of Shareholder Loans; and
(n) Neither Vendor nor any of the Acquired Companies have become
obligated to do any of the foregoing.
(o) In respect of Poznan Plaza Sp.z.o.o., the provisions of this
section shall not be applicable in respect of the period preceding June 1st,
2005.
5.15 Legal Compliance. The Businesses are being conducted and all of the
Acquired 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 5.25), no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, demand, notice or inquiry is pending,
or to the Knowledge of Vendor, is threatened against Vendor or any of the
Acquired Companies by any Governmental Body alleging any failure to so comply.
The Acquired 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.
5.16 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
37
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 Acquired Companies and/or the Businesses and/or the Purchased
Assets.
(b) Each of the Acquired Companies has filed all declarations, forms,
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 Acquired Companies relating to or attributable to
Taxes. Accordingly all Taxes due and owing by the Acquired Companies (whether or
not shown on any Tax Return) have been paid and should not constitute any
Liability in the future for Buyers or the Acquired Companies.
(c) The Acquired 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.
(d) The provisions made in the Proforma Closing Accounts and the
Definitive Closing Accounts are sufficient in order to cover any Tax payment
pertaining to the time period elapsed on the Closing Date.
(e) There are no audits or investigations by any Tax authority of any
Acquired Company currently in progress.
(f) No Acquired 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.
(g) None of the Acquired 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). None of the Acquired Companies has taken any action which triggers a
disallowance of any Tax benefits or optional Tax regime or other undertaking
with respect to Tax.
(h) None of the Acquired 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 Acquired 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 Acquired 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.
(i) The Acquired 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.
38
(j) To the Knowledge of Vendor, 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.
(k) The provisions of this Section 5.16 are not applicable to Taxes
which have actually been exempted from payment in terms of the Sadyba Tax Ruling
referred to in Section 4.9(b) above.
5.17 Title of Properties; Absence of Liens and Encumbrances; Condition of
Equipment. (a) Each of the Operational Companies has good, valid and marketable
title to the respective Operational Projects 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 Acquired 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. The Property Schedule and the
plans attached thereto accurately specify the nature, terms and conditions of
the ownership rights (freehold or leasehold) held by the relevant Operational
Company.
(b) Each of the Acquired Companies has good, exclusive 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 Acquired
Companies and included in the Purchased Assets is (i) adequate for the conduct
of the Businesses as currently conducted, and (ii) in good operating condition,
regularly and properly maintained, subject to normal wear and tear. Each
material item of equipment (including computers and softwares) owned by PCMP is:
(a) adequate for the conduct of its Businesses as currently conducted; and (b)
in good operating condition, regularly and properly maintained, subject to
normal wear and tear.
(d) Each of the Operational Companies and PCMP, own, free and clear of
any Liens, all tenant lists, customer contact information, customer
correspondence and customer lease histories relating to their respective
Operational Projects. Other than PCMP and the relevant Operational Companies and
the relevant tenants to which such information relates, no person possesses any
claims or rights with respect to use of the information.
(e) The termination or the non-renewal of the one-year lease agreement
entered into between Sadyba Center SA as lessee and the Municipality of Warsaw
as lessor, with respect to the use by Sadyba Center SA of a parcel of 370 square
meters adjacent to the Sadyba Project Property will not disrupt the continued
operation of the Sadyba Operational Project, or the rights of access thereto, as
at the date hereof.
5.18 Operational Projects.
(a) The Operational Projects 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 Vendor's Disclosure Schedule (Schedule 5.0) none of the Acquired
Companies is a party to any agreement or option to purchase (including
preference right) any real property or interest therein.
39
(b) All Operational Projects, and all buildings, structures, fixtures,
building systems and equipment, and all components thereof, included in the
Operational Projects (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 Operational Projects and/or any of the
Improvements and there are no facts or conditions affecting any of the
Operational Projects or Improvements which would, individually or in the
aggregate, interfere in any respect with the use or occupancy of the Operational
Projects 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 Operational
Projects 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 Operational Projects or any portion thereof, or the operation
of Acquired Company's business as currently conducted thereon. There is no claim
or action initiated by any Operational Project's neighbor which is pending or to
the Knowledge of Vendor, which is threatening.
(d) The Operational Projects 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 Operational Projects
(collectively, the "OPERATIONAL PROJECTS LAWS"), and the current use and
occupancy of the Operational Projects and operation of Businesses thereon do not
violate any Operational Projects Laws. None of the Acquired Companies has
received any notice of violation of any Operational Projects Law and to
Knowledge of Vendor 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 Operational Projects Law that will materially impair
the ownership, lease, use or occupancy of any Operational Projects or any
portion thereof in the continued operation of Acquired Companies' business as
currently conducted thereon.
(e) Each of the Operational Projects has direct vehicular and
pedestrian access to a public street adjoining the Operational Projects, or has
vehicular and pedestrian access to a public street via an insurable, permanent,
irrevocable and appurtenant easement benefiting each parcel of Operational
Projects, and such access is not dependent on any land or other real property
interest which is not included in the Operational Projects or in respect of
which valid leasehold interests exist which comply with the provisions of
Section 5.17(a) 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 Operational Projects.
(f) All water, oil, gas, electrical, steam, compressed air,
telecommunications, sewer, storm and waste water systems and other utility
services or systems for the Operational Projects have been installed and are
operational and sufficient for the operation of the Businesses as currently
conducted thereon. Each such utility service enters the Operational Projects
from an adjoining public street or valid private easement in favor of the
supplier of such utility service or appurtenant to such Operational Projects.
(g) All certificates of occupancy, Permits, approvals and
authorizations of all Governmental Bodies or any other entity having
jurisdiction over the Operational Projects 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 Operational Projects or operate
Businesses as currently conducted thereon (including
40
but not limited to, the conditions for building and land development (warunki
zabudowy i zagospodarowania terenu (WZiZT)), the building permits (pozwolenie na
budowe), the permit for use (pozwolenie na uzytkowanie)) (collectively, the
"OPERATIONAL PROJECTS PERMITS") 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 Acquired Companies has received any notice from any
Governmental Body or other entity having jurisdiction over the Operational
Projects threatening a suspension, revocation, modification or cancellation of
any Operational Projects Permit and to the Knowledge of Vendor 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 Operational Projects 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 Operational Projects. None of the Vendor or the Acquired
Companies has received any notice of such violation, and to the Knowledge of
Vendor there is no basis for the issuance of any such notice or the taking of
any action for such violation.
(i) None of the Operational Projects or any portion thereof is located
in an flood hazard area.
5.19 Intellectual Property.
(a) The Acquired 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
Acquired Companies will be owned or available for use by the Acquired 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 Acquired Companies have taken all necessary action to
maintain and protect each item of intellectual property that they own or use.
(b) None of the Acquired Companies has interfered with, infringed
upon, misappropriated, or otherwise come into conflict with any intellectual
property rights of third parties, and neither Vendor nor the directors and
officers (and employees with responsibility for Intellectual Property matters)
of the Acquired Companies has ever received any charge, complaint, claim,
demand, or notice alleging any such interference, infringement,
misappropriation, or violation.
5.20 Notes and Accounts Receivable All notes and accounts receivable
(including the Sadyba Up-Stream Loan) of the Acquired Companies are reflected
properly on their Books and Records, are valid receivables which as at the
Closing Date are not subject to setoffs or counterclaims pending at the Closing
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, as appears in the "Restated Net Asset Methodology (Schedule 1.1(fff)).
5.21 Insurance.
(a) The Acquired 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 5.21. All the insurance
policies owned by the Acquired Companies and/or on their behalf,
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provide for coverage that conforms to industry standards in respect of the risk
and the amount covered. To the extent that the Acquired 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 5.21:
(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 Acquired 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.
5.22 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 E50,000 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 Acquired Companies, or involve consideration in excess of
E50,000;
(iii) any agreement concerning a partnership or joint venture;
(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 Vendor and its Affiliates (other than the
Acquired 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;
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(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 E20,000 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 Acquired Companies
has advanced or loaned any other Person amounts in the aggregate exceeding
E10,000; and/or
(xiv) any lease, ground-lease, leasehold, subleases, licenses,
concessions and other agreement (written or oral) with respect thereto, pursuant
to which any Acquired Company holds the right to use or occupy any part of the
Operational Projects or any other property.
(xv) any other agreement (or group of related agreements) the
performance of which involves consideration in excess of E50,000.
(b) Vendor represents and warrants that all Material Business
Contracts entered into by any Acquired Company and in force at 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 Vendor nor the
Acquired Companies, or, to the Knowledge of Vendor, 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.
(d) The provisions of this Section 5.22 are not applicable to any
Material Business Contracts in respect of which PCE has assumed Development
Liability pursuant to the provisions of Section 2.3 above, nor to the Tenant
Improvements referred to in Section 2.2 above.
(e) Insofar as Poznan Plaza Sp.z.o.o. is concerned, to the extent not
excepted in terms of Section 5.22(d) above, the provisions of this Section shall
be applicable from June 1st, 2005 and thereafter only..
5.23 Qualified Lease Agreements
(a) The Lease Schedule attached as SCHEDULE 5.23(A) sets forth a
complete and accurate list of (i) all the Qualified Lease Agreements in force as
at the Reference Date (March 31st, 2005) (or June 30th, 2005 in respect of
Poznan), which has formed the basis of the calculation of the Gross Rentals and
the Initial Purchase Price; (ii) all the Qualified Lease Agreements that are in
force on the date hereof, (specifying
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the Qualified Lease Agreement that have been terminated, renewed, modified or
entered into between the Reference Date and the date hereof); (iii) for each
Qualified Lease Agreement the amount of the cash deposit paid or bank guarantee
furnished by the tenant to the landlord; and (iv)shall clearly identify all
Lease Agreements which are for a period of less than 1 (one) year
("promotions"), provided that Lease Agreement which are for periods of less than
one year but which have been consistently renewed for a total period which in
the aggregate exceeds 1 (year), shall be deemed to constitute a Qualifying Lease
Agreement.
(b) With respect to each Lease Agreement: (i) the Lease Agreement is
duly executed, legal, valid, binding, enforceable in accordance with its terms,
and in full force and effect in all respects; (ii) neither Vendor and/or the
Acquired Companies, nor, to the Knowledge of Vendor, 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 Agreements, nor have any notices been received
from any party which purports to repudiated any provision of the Lease
Agreement.
(c) Without limiting the generality of the foregoing, with respect to
each of the Lease Agreements, the square meter area stated in such Lease
Agreement is accurate and in conformity with the actual square meter area of the
leased premises, except for minor inaccuracies of less than 2% of the relevant
leased areas which are not susceptible to give rise proceeding or action
(including for refund or reduction of rent) against any of the Acquired
Companies.
(d) All the Qualified Lease Agreements itemized in the Lease Schedule
5.23 (a) have been entered into with good standing tenants, are at Closing: (i)
in force and of a duration of (one) year or more from date of execution (it
being specified that Lease Agreement which are for periods of less than one year
but which have been consistently extended and renewed shall be deemed to
constitute lease contracts for periods in excess of one year); and (ii) globally
conform to the breakdown set forth in the Lease Schedule (Schedule 5.235.23(a))
in terms of currency of payment.
(e) The amount of the bank guarantee and/or tenants' security deposit
itemized in the Lease Schedule in respect of each Lease Agreement is accurate.
(f) Except for Hokus-Pokus Sp.z.o.o. and Fantasy Park Spz.o.o., the
other party to any Lease Agreement is not an Affiliate of, and otherwise does
not have any economic interest and/or any other relationship (direct or
indirect) with PCE or the EMI group;
(g) None of the Acquired Companies has collaterally assigned or
granted any other Lien in any Lease Agreement or any interest therein, except
under the Financing Bank Securities.
(h) The provisions of this Section 5.23 (a) to (h) above shall apply,
mutatis mutandis, to the Lease Agreements reflected in the Tenant List as at the
relevant Final Price Adjustment Date for each Operational Company.
5.24 Powers 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 Vendor 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 Acquired Companies. Upon
44
the resignation at Closing of all the managing directors of the Acquired
Companies nominated by Vendor, there shall be no valid and outstanding powers of
attorney with respect to any Acquired Company.
5.25 Litigation. The Proceedings Schedule attached hereto as SCHEDULE 5.25
sets forth details of all outstanding injunction, order, decree to which any of
the Acquired 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 Acquired Companies and/or the Businesses and/or the Purchased Assets.
Other than as specified in the Proceedings Schedule, to the Knowledge of Vendor,
there are no facts or circumstances that would form the reasonable basis of any
claim against the Acquired Companies.
5.26 Utilities Charges. All the charges for electricity only made by the
Operational Companies to their respective tenants have been made in compliance
with applicable Laws and regulations.
5.27 No Development Risks. PCMP has not been exposed to any development
risks in respect of any of the Operational Projects and/or any of the Excluded
Asset at any time prior to the Closing Date.
5.28 Employees.
(a) Save as specified in the Disclosure Schedule, no executive, key
employee, or significant group of Employees has advised any executive officer of
Vendor that he, she or they plan to terminate their employment with the Acquired
Companies during the 12 (twelve) month period following the Reference Date. To
the Knowledge of Vendor, 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 Acquired Companies has any
current or future liability (such plans or funds, the "BENEFIT PLANS").
(c) Except for PCMP and except for the Acquired Companies' employees
referred to in Section 13.6 (a) (as listed in Schedule 13.6(a)), none of the
Acquired Companies employs any person. SCHEDULE 5.28(C) sets forth a complete
and correct list of the all the Employees of PCMP (detailing each such
employee's name, job title, length of service and gross annual remuneration).
The employment contracts relating to PCMP 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 Acquired Companies. PCMP is not bound and has not
been bound by any collective bargaining agreement.
(d) Each of the Acquired 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 PCMP which is likely to interrupt the normal
activities of PCMP.
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(f) In respect of any of the Acquired 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 Proforma Closing Accounts and the Final Definitive Closing Accounts (rather
than in any notes thereto).
(g) The resignation of the managing directors of each of the Acquired
Companies, as well as the resignations of all members of the supervisory boards
of the Acquired 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 Acquired Company.
5.29 Environment, Health and Safety.
(a) As at the Closing Date each of the Acquired 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 Acquired Companies
concerning any such alleged violation.
(b) Without limiting the generality of the foregoing, each of the
Acquired 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 5.29(C) sets forth the accurate and complete list of all
reports, investigations notices, and other environmental information regarding
the Operational Projects. None of the Acquired Companies, nor to the Knowledge
of Vendor, 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 Acquired 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 Acquired Companies nor to the Knowledge of Vendor
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
46
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 Acquired Companies, nor to the Knowledge of Vendor 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 Acquired 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.
5.30 Other Agreements.
(a) Intergroup Agreements. Save as specified in the Vendor's
Disclosure Schedule, and excluding all agreements for the award of Shareholder
Loans and the Sadyba Up-Stream Loan, at the Closing there are no contracts and
agreements currently in force between Vendor, EMI or any of their Affiliates
(other than the Acquired Companies) on the one hand and any of the Acquired
Companies, on the other hand. Upon the reimbursement or subrogation, as the case
may be, of the Shareholders Loans as set forth in Section 2.1 (c) and 2.1 (d)
above, PCE represents and warrants that no amount shall remain owed by any of
the Acquired Companies to the Vendor, EMI or any of their Affiliates, under any
Shareholder Loan, and more generally under any agreement or otherwise.
(b) Service Agreements. There are no contracts and agreements
currently in force between PCMP on the one hand and with suppliers (other than
suppliers who will not be transferred to the Acquired Companies) may not be
terminated at any time by the relevant Acquired Company without any penalty or
termination indemnity to be paid by the relevant Acquired Company, and without
any prior notice longer than ninety (90) days. All such service 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.
5.31 Construction Works.
(a) The works in respect of the Operational Centers construction
operations have been carried out by local and international contractors, who
were to the Knowledge of Vendor, qualified, solvent and adequately insured at
the time of the execution of the relevant works.
(b) None of the Operational Companies, in their respective capacities
as employer, interfered in the construction process in a manner which would
restrict its rights to claim indemnification in case of defect or
non-conformities.
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5.32 Complete Copies of Materials. All relevant documents and information
relating to the Acquired Companies, the Operational Projects and the Purchased
Assets which were provided to Buyers during the due diligence phase are accurate
in all respects.
5.33 Full Disclosure.
(a) No representation or warranty in this Article V or in any document
delivered by Vendor or its 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. Vendor is not aware of any fact or event that would be materially
adverse to the Businesses and/or the Project Properties and/or the Purchased
Assets and/or the condition, operating results or operations of any Operational
Project and/or any Acquired Company, including any order, judgment, claims,
pending or threatened, which would be material and would relate to the
ownership, lease, use or occupancy of the properties.
ARTICLE VI - REPRESENTATIONS AND WARRANTIES OF KLEPIERRE AND BUYERS
Each of the Buyers and Klepierre, jointly and severally, hereby represents
and warrants to Vendor that the statements contained in this Article VI 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.
6.1 Organization, Qualification, and Corporate Power.
(a) Each of Klepierre and the Buyers is a corporation duly organized,
validly existing, and in good standing under the laws of the jurisdiction of its
incorporation or other formation (to the extent the concept of good standing
exists in the relevant jurisdiction);.
(b) Each of Klepierre and the Buyers 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 or the Buyers.
6.2 Authorization. Klepierre, and each of the Buyers 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, or the Buyers 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 or management boards of Klepierre and Segece,
or, 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 or Segece. This Agreement
and the Ancillary Agreements to which they are parties constitute the valid and
legally binding
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obligations of Klepierre, or each of the Buyers, enforceable against Klepierre,
or each of the Buyers in accordance with their respective terms and conditions.
6.3 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, or any of the Buyers is
subject;
(b) violate or conflict with any provision of the charters, by-laws or
organizational documents of Klepierre, or any of the Buyers; 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,
or any of the Buyers 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, or any of the Buyers or
adversely their ability of to consummate the transactions contemplated hereby.
6.4 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, or any of the Buyers, is required by or with respect
to Klepierre, or any of the Buyers 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 8.2(a) below.
6.5 Financial Resources. Klepierre, and Buyers 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 Initial Purchase Prices, and the Initial PCMP Purchase Price, and
any price adjustments and other payments or obligations required to be made or
fulfilled by them pursuant to the provisions of this Agreement.
6.6 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.
ARTICLE VII - 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:
7.1 Operation of Business.
(a) Vendor agrees 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
49
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), Vendor
shall, and shall procure that the Acquired Companies shall:
(i) use all commercially reasonable efforts to (aa) preserve
intact the present business organization, reputation, contractual and other
arrangements of the Acquired Companies and the Businesses then under the control
of Vendor; (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 Vendor has 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 Acquired 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 Acquired Companies that would
adversely affect the Businesses, the Acquired 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
Buyers (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), Vendor shall not, and shall procure that the Acquired 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 Acquired Companies and/or
Vendor, 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;
(iv) enter into any Contract to do or engage in any of the
foregoing items set forth in this Section 7.1(b).
(c) Vendor agrees 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), Vendor
shall not, and shall procure that the Acquired Companies shall not:
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(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 Acquired Companies under, any liability of
or owing to the Acquired Companies in connection with the Businesses then under
the control of Vendor that would constitute a Purchased Asset hereunder, other
than in the ordinary course of business consistent with past practice;
(v) 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 Operational Projects 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 7.1(c).
7.2 Notice of Developments. Vendor 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 aggregate, any
representation or warranty of Vendor contained in this Agreement to be untrue or
inaccurate at or prior to the Closing; and (ii) any failure of Vendor 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 7.2 shall not limit or otherwise affect any remedies
available to the Party receiving such notice.
7.3 Exclusivity.
(a) From and after May 20th, 2005, and until the earlier of the
Closing or the termination of this Agreement, Vendor has not and shall not (nor
has it permitted and shall it permit its Representatives
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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 Vendor 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 Vendor and/or the
Acquired Companies, other than to Klepierre and 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 Vendor or any
subsidiary of Vendor (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 Klepierre and Buyers, providing for an
Acquisition Proposal with Vendor 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 Vendor or any
subsidiary (whether such subsidiary is in existence on the date hereof or are
hereafter organized) other than by Klepierre and Buyers.
(b) Vendor 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 Vendor or any of
its 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, Vendor shall immediately notify Klepierre and Buyers thereof and provide
Klepierre and Buyers with the details thereof including the identity of the
Person or Persons making such offer or proposal, and will keep Klepierre and
Buyers fully informed of the status and details of any such offer of proposal.
Vendor, Klepierre and Buyers all acknowledge that this Section 9.3 was a
significant inducement for Klepierre, and Buyers to enter into this Agreement
and the absence of such provision would have resulted in either (i) a material
reduction in the purchase prices to be paid to Vendor; or (ii) a failure to
induce Klepierre and Buyers to enter into this Agreement.
(c) As used in this Section 7.3, 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 Acquired Companies
and/or the Businesses and/or the Purchased Assets.
(d) For the avoidance of doubt, it is specifically agreed and
understood that the provisions of this Section 7.3 are not applicable to any
property, assets or business activities of Vendor and/or its Affiliates which
are excluded from the ambit of this Agreement.
7.4 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 VIII
below).
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ARTICLE VIII - CLOSING
8.1 Closing and Consummation.
The Closing of the Transactions for the acquisition of the Operational
Companies and PCMP in terms of this Agreement shall take place on July 29th,
2005, or on such alternative date as shall be agreed between the Parties prior
to July 31st, 2005 (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.
8.2 Conditions for Closing. Notwithstanding anything to the contrary in
this Agreement contained, the Closing and consummation of the Transactions 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 Transactions, shall have been issued by
the Polish Anti-Monopoly Office under applicable Law (the "AMO APPROVAL");
(ii) Each of the Financing Banks (excluding OVAG) shall have
delivered to Purchasers a duly signed Waiver and Consent substantially in the
form and text attached hereto as SCHEDULE 8.2(A)(II);
(iii) Vendor shall have furnished Purchasers with Land Registry
Extracts in respect of the Operational Project Properties updated to a date 14
(fourteen) days prior to the Closing Date, and which shall be attached as an
exhibit to the Property Schedule.
(b) OVAG Loan Repayment Agreement II. The OVAG Loan Repayment
Agreement II, together with all ancillary documents required for the release of
the relevant Financing Bank Securities, shall have been executed between the
parties thereto, shall be valid and binding upon them, and KLP-Krakow shall have
deposited into the special escrow account opened and maintained by OVAG for that
purpose the full amount specified in the OVAG Loan Repayment Agreement II as
being required to execute full repayment of the OVAG Loan and the unconditional
release of all of the Financing Bank Securities thereunder;
(c) Vendor's Legal Opinion. Buyers shall have received an opinion of
Vendor's legal counsel in substantially the form set forth in SCHEDULE 8.2(C).
(d) Legal Opinion of Buyer's Counsel. Vendor shall have received an
opinion of legal counsel for Klepierre, and the Purchasers in substantially the
form set forth in SCHEDULE 8.2(D).
(e) Sadyba's Waivers. Buyers shall have received a waiver certificate
of each of the following Sadyba Operational Center's tenants, namely Hokus-Pokus
Sp.z.o.o, and IT Poland Cinemas Sp.z.o.o in the form reasonably satisfactory to
Buyers, whereby such tenants waive unconditionally and irrevocably any rights
and claims against Sadyba Centers SA (and its assignees and successors) in the
event
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that, notwithstanding that they shall have exercised their respective options to
extend their Lease Agreements, they shall be compelled to vacate their leased
premises by reason of the fact that the Sadyba Ground Lease in respect of the
Sadyba Project Property will not have been renewed or extended by the
Municipality of Warsaw.
(f) Polish Counsel Legal Opinion. Vendor shall have furnished Buyers
with the legal opinions referred to in Section 2.4(e) above in form reasonably
satisfactory to Buyers.
8.3 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 shall sell, transfer and make over to Purchasers, and
Purchasers shall acquire from PCE, good, clean and valid title in and to the
entire Equity Rights (100%) in and to the Operational Companies by way of the
execution of Share Purchase Agreements in the form and text attached as SCHEDULE
8.3(A) in respect of each Operational Company, together with all ancillary
documentation required by operation of applicable Polish Law in order to give
full and proper effect thereto;
(b) PCE shall sell, transfer and make over to Segece, and Segece shall
acquire from PCE, good, clean and valid title in and to the Acquired PCMP Shares
by way of the execution of Share Purchase Agreements in agreed form, together
with all ancillary documentation required by operation of applicable Polish Law
in order to give full and proper effect thereto;
(c) PCE, KLP-Sadyba and Sadyba Center SA shall execute the Loan
Subrogation Agreement in respect of the subrogation of the Sadyba Shareholder
Loans in terms of Section 2.1(c), in the form attached hereto as Schedule
2.1(c);
(d) PCE, KLP-Sadyba and Sadyba Center SA shall enter into and execute
the Debt Assignment Agreement in the form and text attached as Schedule
2.1(d)(i) in respect of the assignment to KLP-Sadyba of the obligation to
execute repayment of the Sadyba Up-Stream Loan;
(e) Vendor shall furnish Buyers with unconditional letters of
resignation of each of the managing directors and management boards of each of
the Operational Companies, as well as the resignations of all members of the
supervisory boards of the Operational Companies, where relevant, nominated by
Vendor and/or its Affiliates, which shall be effective as at the Closing Date.
Vendor undertakes to procure that none of the managing directors, management
boards members and supervisory board members appointed by it and who shall
resign at the Closing as aforesaid shall have any claims or rights against the
Acquired Companies and that all their rights against such Acquired Companies are
unconditionally waived and released.
(f) Buyers shall nominate and appoint, in the manner required under
applicable Polish Law, managing directors and management boards for each of the
Operational Companies, and, where required, members of the Supervisory Boards of
the Operational Companies.
(g) Vendor shall if necessary convene on the Closing Date, such
shareholders meetings of each of the Acquired Companies in order to give full
and proper effect to the Transactions contemplated herein, and to replace the
managing directors, management board members and the supervisory board members
of the Operational Companies as aforesaid, where relevant.
54
(h) 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 Trademark License Agreement (Schedule 1.1(rrr)); and
(ii) the OVAG Loan Repayment Agreement II (Schedule 2.1(g)(i)));
(i) Vendor shall cause Buyers to be furnished with the EMI Parent
Guarantee, the EMI Corporate Guarantee (Tenant Securities) referred to in
Section 2.4(a)2.4(a)(ii) below and the EMI First Demand Guarantee referred to in
Section 2.4(d)(ii) below;
(j) Klepierre shall furnish PCE with its Corporate Guarantee (Sadyba
Ground Lease Price Adjustment) referred to in Section Section 4.9(a) below;
(k) Purchasers shall execute payment to PCE of the Initial Purchase
Prices specified in the Transaction Prices Schedule, and Segece shall execute
payment to PCE of the Initial PCMP Purchase price, all subject to and in
accordance with the provisions of Section 4.6 above;
(l) Purchasers shall cause respectively Poznan Plaza Sp.z.o.o. and
Krakow Plaza Sp.z.o.o. to execute payment to PCE of the Initial Shareholder Loan
Amounts specified in the Transaction Prices Schedule, subject to and in
accordance with the provisions of Sections 2.1(e) and 4.6 above;
(m) KLP-Sadyba shall execute payment to PCE of the net aggregate
amount payable on account of the subrogation of the Sadyba Shareholder Loan in
terms of the Sadyba Loan Subrogation Agreement, after set off of the amount due
and payable by PCE to KLP-Sadyba in respect of the assignment of the Sadyba
Up-Stream Loan in terms of the Agreement of Debt Assignment, all in the manner
specified in Sections 2.1(c), 2.1(d) and 4.6 above;
(n) The Parties shall execute all additional documents, deeds and
instruments which are required by operation of applicable Polish Law and
regulations in order to give full and proper effect to the Transactions
contemplated hereby.
8.4 Acknowledgement of Closing. Upon the full and proper execution of the
Closing in terms of this Article VIII, the Parties shall execute an
Acknowledgement of Closing in agreed form confirming that the consummation of
the Transactions contemplated herein has been accomplished.
8.5 Postponed Closing. In the event that any Transaction Approval(s)
relevant to any particular Acquired Company and/or its relevant Operational
Project shall not have been obtained by the Closing Date as determined above,
then and in such event Purchasers and/or Segece shall have the right to demand
that a separate postponed closing be conducted in respect of the affected
Acquired Company upon receipt of the missing Transaction Approval(s), provided
that such postponed Closing shall not occur later than December 31, 2005 (unless
otherwise agreed between the Parties).
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ARTICLE IX - ADDITIONAL AGREEMENTS WITH POST-CLOSING EFFECT
9.1 Non-Compete.
(a) PCE undertakes that neither it nor its 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) 3 (three) kilometers from the
Sadyba Best Mall Centers in Warsaw; or (ii) 10 (ten) kilometers in any other
regional city in which a Operational Project (excluding Sadyba) is situated.
9.2 Non-Solicitation. PCE and its Affiliates 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 PCMP 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 PCMP 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.
9.3 Collection of Receivables. Purchasers and/or Segece shall exert all
reasonable commercial efforts in order to collect receivables which are
outstanding at the Closing Date for a period in excess of 6 months in accordance
with the Accounting Principles specified in Schedule 1.1(a), and which are to be
excluded from the calculation of the Definitive Purchase Prices. A list of these
outstanding receivables (estimated) shall compromise part of the Definitive
Closing Accounts to be furnished to Purchasers in terms of the provisions of
Section 4.7(a) above. Any amounts collected by the relevant Acquired Company
within 24 (twenty four) 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.
9.4 Waiver of Claims. Buyers hereby waive all claims against Vendor's
related parties (Hokus Pokus Sp.z.o.o. and fantasy Park Sp.z.o.o.) in respect of
the payment of rentals and other debts and receiveables which (i) relate to the
period prior to the Reference Date; and (ii) were classified as bad debts (or
would have been so classified applying the Accounting Principles in Schedule
1.1(a)); and (iii) were excluded from the Execution Rentals for the purpose of
the calculation of the Execution Operational Project Value of the relevant
Operational Project.
ARTICLE X - OTHER AGREEMENTS AND COVENANTS
10.1 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
56
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.
10.2 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.
10.3 Updated Tenant List. By not later than September 1st, 2005, PCE shall
furnish Purchasers with a Tenant List as at the Closing Date, for information
purposes only.
ARTICLE XI - WITHDRAWAL OPTION
11.1 Withdrawal Option. Notwithstanding anything to the contrary herein
contained, Purchasers and Segece shall have an option to withdraw from the
Transactions 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 the Closing, Purchasers
and/or Segece (whether as a result of its due diligence findings or otherwise)
shall become aware of facts, events or 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 Operational Companies and/or the Operational
Projects; and/or
(ii) material inconsistencies and/or inaccuracies in the
financial information provided to Buyers, including in the Proforma Closing
Accounts and the Audited Closing Accounts; and/or
(iii) any other matters (including a material change in the
operations of the Operational Projects or the Operational 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.
(b) upon the occurrence of a change in the tax or legal situation of
Poland which has a Material Adverse Effect in the aggregate.
11.2 Material Adverse Effect Defined. For the purposes of this Article XI,
and without prejudice to the representations and warranties given by Vendor in
terms of Article V hereof, 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
57
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 Execution Operational
Project Values for all Operational Projects 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 Segece and/or the rights and interests which are to be acquired by
Segece directly or indirectly in terms hereof in respect of PCMP only, which is
or may be quantified with a financial value in excess of an amount equivalent to
5% (five percent) of the Initial PCMP Purchase Price; 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 PCMP, 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 PCMP; or
(c) 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 Operational Projects and/or the Operational Companies (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
11.3 Right of Withdrawal. Upon the occurrence of:
(a) a MAE Event under Sections 11.2(a) or 11.2(c) above, Purchasers
shall be entitled to withdraw from the entire Transaction in respect of all
Operational Companies and all Operational Projects, and Segece shall be entitled
to withdraw from the transaction for the acquisition of the Acquired PCMP
Shares; and
(b) a MAE Event under Section 11.2(b) above which affects PCMP only,
Segece shall be entitled to withdraw from the transaction for the acquisition of
the Acquired PCMP Shares.
11.4 Withdrawal Notice and Rectification.
(a) Subject to the provisions of Section 11.5 below, if the Purchasers
and/or Segece elect to withdraw from the Transaction pursuant to the provisions
of Section 11.1(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 Vendor to identify the nature of the event.
(b) Vendor 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 Vendor,
Buyers will not unreasonably withhold their consent to an extension of such
rectification period).
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(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
11.5 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 XI shall automatically lapse and be of no further force
and effect;
(b) The rights of withdrawal in terms of this Section 11 may not be
exercised by Buyers if the Closing is postponed solely by reason of the fact
that the AMO Approval referred to in Section 8.2(a)(i) above shall not have been
issued by July 31st, 2005;
(c) Upon the occurrence of a deferred closing in respect of any
individual Acquired Company as provided in Section 8.5 above, the rights of
withdrawal provided for in this Article XI shall continue in force in respect of
the relevant Acquired Company and/or Operational Project only;
(d) Nothing in this Article XI contained shall be deemed to derogate
from the rights of Vendor to refer any dispute regarding the existence of an MAE
Event to arbitration pursuant to the provisions of Section 15.3 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
11.2(a) or 11.2(c) 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 PCMP Shares, it being understood that Segece shall not be permitted
to enforce the transaction for the acquisition of the Acquired PCMP Shares in
the event that Purchasers have elected to withdraw from the transaction for the
acquisition of all of the Operational Companies.
11.6 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 XI 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 11.4 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 Acquired Company only, or in respect of the Acquired PCMP
Shares 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 Acquired Company shall be deleted.
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ARTICLE XII - SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
12.1 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 as from the Closing Date (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 warranties of Vendor relating to Tax matters
(including in Section 5.16) 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 Vendor contained in Section 5.2 (Authorization) and Section 5.29
(Environment, Health and Safety), and the representations and warranties of
Buyers contained in Section 6.2 (Authorization), shall survive the applicable
Closing Date indefinitely and without limitation. Buyers' right to make a claim
for indemnification under Section 13.1, and Vendor's right to make a claim for
indemnification under Section 13.2, for a breach and/or inaccuracy 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 13.1 defined)
may be suffered after the Survival Date. Any claims under Article XIII must be
asserted in writing with reasonable particularity by the party making such
claim.
ARTICLE XIII - INDEMNIFICATION
13.1 Indemnification by Vendor. Subject to Section 13.5 below, PCE shall
defend, indemnify and hold harmless Klepierre, Purchasers and Segece - and at
the discretion of Klepierre and/or Purchasers and/or Segece any of the Acquired
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 and/or inaccuracy of any representation or warranty of
Vendor contained in this Agreement or in any Ancillary Agreement, or other
agreement, certificate, instrument or other document entered into or delivered
by Vendor in connection herewith;
(b) any breach of any covenant of Vendor contained in this Agreement
or in any Ancillary Agreement, or other agreement, certificate, instrument or
other document entered into or delivered by Vendor in connection herewith;
(c) Taxes chargeable to or asserted against the Acquired Companies in
terms of a final assessment and/or enforceable judgment in respect of the period
preceding the Closing 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 Accounts (rather than in any notes
thereto);
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(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 (i)
Transaction Tax imposed in terms of Section 2.7(b) above; and (ii) the fiscal
years prior to the Closing Date which are directly or indirectly attributable to
the acts, deeds and omissions of the Vendor and/or the Acquired Companies prior
to the Closing Date;
(e) 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 lack
in the Acquired Companies' books and records of documentary evidence regarding
transfer pricing and/or lack of substantiation of inter-company charges;
(f) any stamp duties imposed by the Polish Tax Authorities to
KL-Sadyba as a result of the subrogation of the Sadyba Shareholder Loan as set
forth in Section 2.1(c);
(g) any additional Tax liabilities assessed against, and related
sanctions (such as penalties and late payment interest) imposed upon, any of the
Acquired Companies 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 Vendor and/or any
of the Acquired Companies;
(h) any of the Proceedings set forth in the Proceedings Schedule
(Schedule 5.25) and/or any other proceedings, suits or claims in respect of
causes of action arising prior to the Closing Date and/or any environmental
Damage related to the potential risks set forth in Schedule 5.29(c) under a
final and enforceable judgment or Order;
(i) the amount by which the Net Asset Value of any of the Acquired
Companies is negative as at the Closing Date;
(j) the cancellation or invalidity, by Order of any court of competent
jurisdiction or by any Government Body, of any agreement concluded by any
Acquired Company prior to the Closing Date, for lack of notary certification
and/or shareholders' approval; and
(k) the failure of the Acquired Companies to maintain their minute
books (including records of the meetings of shareholders, the board of
directors, and any committees of the board of directors), the stock certificate
books, and the stock record books of the Acquired Company, in a correct and
complete manner as required under operation of applicable law, .
13.2 Indemnification by Buyers. Subject to Section 13.5, Klepierre,
Purchasers and Segece agree jointly and severally to defend, indemnify and hold
harmless PCE and its respective successors, assigns and Affiliates
(individually, a "VENDOR INDEMNITEE", and collectively, the "VENDOR
INDEMNITEES") from and against and in respect of any and all Damages suffered or
incurred by any Vendor 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 Purchasers and/or Segece in connection herewith; and
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(b) any breach of any covenant of any of Klepierre and/or Purchasers
and/or Segece contained in this Agreement or in any Ancillary Agreement, or
other agreement, certificate, instrument or other document entered into or
delivered by Vendor and Klepierre and/or Purchasers and/or Segece in connection
herewith; and
(c) any Transaction Tax or other Taxes which may be imposed in
consequence of the reimbursement of the Shareholders Loans in terms of Section
2.1(e) above by any means other than by the subrogation of such loans..
13.3 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 Vendor
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 XIII, such Indemnitee shall notify the party obligated to
provide indemnification pursuant to Section 13.1, Section 13.6 or Section 13.2
(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 13.3(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 (iii) 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 13.3(a)
above, then and in such event the Indemnitee may defend
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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 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.
13.4 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 Acquired Companies) and Vendor 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
XIII. Nothing contained in this Article XIII or elsewhere in this Agreement
shall limit the liability of any Party under this Agreement if this Agreement is
terminated pursuant to Section 14.1 or otherwise, or if the transactions
contemplated hereby shall not be consummated for any reason.
13.5 Certain Limitations. The liability of the Vendor 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 Vendor shall have no
further obligations under this Article XIII for breaches of representations and
warranties of the Vendor, except for Damages with respect to which the Buyers
Indemnitee has given the Vendor written notice prior to such date in accordance
with Section 13.3 above; and (ii) Buyers shall have no further obligations under
this Article XIII for breaches of representations and warranties of Buyers,
except for Damages with respect to which the Vendor Indemnitee has given Buyers
written notice prior to such date in accordance with Section 13.3.
(b) Notwithstanding anything to the contrary herein, Buyers
Indemnitees shall not be entitled to recover Damages from Vendor pursuant to
Section 13.1 unless and until the accumulated aggregate amount of Damages shall
exceed an amount which is the equivalent of E115,000 (the "VENDOR
INDEMNIFICATION THRESHOLD"); provided, however, that at such time as the
aggregate amount of Damages in respect of the indemnity obligations of Vendor
shall exceed the Vendor Indemnification Threshold, Vendor shall thereafter
indemnify any of the Buyers Indemnitees from all and against all Damage in
excess of equivalent E10,000.
(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 Vendor in
respect of any claims by the Buyers Indemnitees against Vendor pursuant to
Section Section 13.1 for Damages suffered or incurred by any Buyers Indemnitee
exceed the maximum amount of E75,000,000.
(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) Buyers and/or the Acquired Companies shall authorize
and permit the tax advisers of Vendor at Vendor's sole cost and expense to
conduct, direct and process all dealings with the Tax Authorities in respect of
all matters and/or all fiscal
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years and/or all assessments pertaining to the period prior to the Closing Date,
in close co-operation with the accountants and tax advisers of the Buyers and
the Acquired Companies, provided that neither the Vendor nor its 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 Acquired 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
Vendor's representations and warranties given under Section 5.16 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
Buyers and/or the Acquired Companies in the accounting and/or tax policies of
the Acquired Companies which has, directly or indirectly, retroactive effect to
the period preceding the Closing Date.
(e) Notwithstanding anything to the contrary herein, the limitations
contained in Section 13.5(b) shall not apply to claims for indemnification by
Buyers Indemnitees against Vendor in respect of (i) the indemnities specified in
Section 13.1(b) to Section 13(k) inclusive above; and (ii) the special
indemnities specified in Section 13.6 below;
(f) Notwithstanding anything to the contrary herein, Vendor
Indemnitees 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 E115,000 (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 E10,000.
(g) Notwithstanding anything to the contrary herein, the limitations
contained in Section 13.5(f) shall not apply to claims for indemnification by
Vendor Indemnitees against Buyers in respect of the indemnities specified in
Section 13.2(b) and 13.2(c) 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 Vendor
Indemnitees against Buyers pursuant to Section 13.2 for Damages suffered or
incurred by any Vendor Indemnitees exceed E75,000,000
13.6 Specific Indemnities
Notwithstanding the provisions of Section 13.5 above, and without prejudice
to the provisions set forth in Section 13.1, Vendor hereby provides Buyers with
the special indemnities set forth hereunder. The special indemnities provided in
terms of this Section 13.6 shall be in respect of all Damages suffered by
Buyers' Indemnitees and shall be exempt from the Vendor Indemnification
Threshold and from the limitations provided for in Section 13.5 above.
(a) Employee Dismissals. Vendor shall assume directly, and shall hold
the Acquired Companies harmless from, all the financial consequences (including
the dismissal costs and indemnities, the salaries until the end of the notice
period, paid vacations, bonuses and any other amounts or damages incurred in
connection thereto) arising before or after the Closing Date, in connection with
the dismissal, resignation and/or departure of the employees of the Acquired
Companies (a complete list of whom is set forth in SCHEDULE 13.6(A), which have
been initiated or effected, on or prior to the Closing Date.
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(b) Employee Benefit Plans. Vendor shall indemnify and hold Buyers
Indemnitees harmless from and against any Damages resulting from the failure by
PCMP to make certain contributions and payments to and/or under the applicable
Benefit Plan, to the extent that such contributions and/or payments were due by
PCMP under the applicable Laws for a period ending on or before the Closing
Date.
(c) Shell Polska. Vendor shall indemnify and hold the Buyers
Indemnitees, harmless from any Damage resulting from (i) the violation by Shell
Polska Sp.z.o.o during the term of the Shell Polska Sadyba Sublease prior to the
Closing Date of any Environmental, Health, and Safety Requirement; and/or (ii)
the obligation to assume any Liability pursuant to Environmental, Health, and
Safety Requirements and/or pursuant to the Sadyba Ground Lease, for corrective
or remedial actions on the parcel which is subject to the Shell Polska Sublease
in respect of events occurring prior to the Closing Date. For the avoidance of
doubt, provided that Vendor's obligation to indemnify in terms of this Section
shall apply irrespective as to whether the Damage in respect of which
indemnification is demanded arises before or after the Closing Date. In
addition, Vendor shall indemnify the Buyer Indemnitees and hold them harmless
against any Damage, in the event that it shall transpire that the Shell Polska
Sp.z.o.o. Sub-Lease was not authorized and approved by the Municipality of
Warsaw in terms of the long term lease dated August 1, 1996, as amended, entered
into between the Municipality of Warsaw as lessor and Sadyba Center SA as lessee
in respect of the Project Property of the Sadyba Operational Project (the
"SADYBA GROUND LEASE").
(d) Krakow Pond. Vendor shall indemnify the Buyer Indemnitees and hold
them harmless against any Damage arising out of the failure of neglect to
observe Environmental, Health and Safety Requirements with respect to the
protection of the pond and its surrounding located in proximity to the Krakow
Operational project, which occurred prior to the Closing Date (but irrespective
as to whether the Damage in respect of which indemnification is demanded arises
before or after the Closing Date)
(e) McDonalds Polska. Vendor shall indemnify the Buyer Indemnitees and
hold them harmless against any Damages caused or sustained in consequence of any
claim which may be submitted by McDonalds Polska Sp.z.o.o., in the event that
McDonalds Polska Sp.z.o.o. will be compelled to vacate their leased premises
within the Sadyba Operational Project by reason of the fact that the Sadyba
Ground Lease will not have been renewed or extended by the Municipality of
Warsaw, notwithstanding that McDonalds Polska Sp.z.o.o. will have exercised its
option to extend its Lease Agreement..
(f) Development Liability. Vendor shall indemnify the Buyers
Indemnitees and hold them harmless from and against Damages arising from and/or
in connection with:
(i) Any Development Liability assumed by PCE in respect of Poznan
Plaza Sp.z.o.o. in terms of the provisions of Section 2.3, and any Tenants
Improvements executed by it in terms of Section 2.2 below;
(ii) The completion of the construction of the Poznan Operational
Center and/or the Contractors' Claims, including without limitation the works
detailed and specified in the completion punch list compiled in respect of the
Poznan Plaza Operational Project, a copy of which is attached hereto as SCHEDULE
13.6(F)(II); and/or
(iii) Claims by and against any and all third party (including
tenants and neighbours) brought for damage, loss, personal injury or death by
reasons of and/or arising out of the completion of the Poznan Operational
Center; and/or
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(iv) By reason of a breach of zoning regulations, administrative
permits, damages to third parties caused by the design, engineering, and
construction of the Poznan Operational Center.
(v) Following the Poznan Operational Center's final completion,
any defect and non-conformities in the Contractors' works (including engineering
and architectural studies) carried out in the Poznan Operational Center
provided, however that with respect to this sub-section, Vendor's obligations to
indemnify shall expire:
(i) 10 years from the date of the substantial completion for
shell and core (including waterproofing and isolation) and the structural
elements,
(ii) 36 months from the date of the substantial completion for
mechanical parts, and
(iii) 1 year from the date of the substantial completion for
other defects.
(g) Completion of Works. In the event that PCE and/or any Operational
Company has undertaken to execute certain works as a condition to the award of
any Permit, or in the event that any Permit has been issued subject to the
condition that such works be performed by, and at the cost and expense of the
relevant Operational Company, then and in such event Vendor undertakes to
indemnify Buyers Indemnitees against any Damage arising in that regard, but only
to the extent that provisions for the cost of such works shall not have been
made in the Proforma Closing Accounts and/or the Definitive Closing Accounts.
(h) Sale of Utilities. Vendor shall indemnify and hold Buyers'
Indemnitees harmless against any Damage resulting from the sale of electricity
to the tenants in the Operational Projects without Utilities Licenses, or
otherwise in a manner not in compliance with applicable laws and regulations.
ARTICLE XIV - TERMINATION
14.1 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 December 31st, 2005;
provided, however, that the right to terminate this Agreement under this Section
14.1(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;
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(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 if there has been a material breach of any covenant, undertaking,
obligation or agreement contained in this Agreement on the part of Vendor and
such breach has not been cured within thirty (30) calendar days after written
notice to Vendor; provided, however, that, no cure period shall be required for
a breach which by its nature cannot be cured;
(d) PCE 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 14.1, a breach of this Agreement
shall be deemed to be material if it goes to the root of this Agreement and/or
may reasonably be deemed to substantially frustrate the purpose and intent of
the Parties hereto.
14.2 Effect of Termination. If any Party terminates this Agreement pursuant
to Section 14.1 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 10.1 (Confidentiality) and
Article XV (Miscellaneous) shall survive termination.
ARTICLE XV - MISCELLANEOUS
15.1 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) Klepierre 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 Klepierre and Buyers will use their reasonable efforts
to advise PCE and EMI prior to making the disclosure, and vice versa) and (b)
the Parties may correspond with third parties in writing with respect to
obtaining the Transaction Approvals.
15.2 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 shares
in the Acquired Companies and the subrogation of the Shareholder Loans
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in respect to Sadyba Center SA, the transfer of the Sadyba Up-Stream Loan by way
of assignment of debt, where relevant, shall be executed in compliance with
applicable Polish Law.
15.3 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
15.3(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 15.3 (b) of this Agreement.
(b) Subject to Section 15.3(a) above and other than as set forth in
Section 15.3(h) 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 Vendor 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 for the purpose of the appointment of the Party
Appointed Arbitrators in terms of this section.
(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 Polish Law is
applicable as specified in Section 15.2 above. However the Tribunal may, but
only with the prior consent of the adjudicating Parties, act as amiables
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.
(f) The Tribunal shall be competent to grant interim relief by way of
injunctions at the request of the Parties. Notwithstanding the foregoing, each
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.
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(h) The provisions of this Section 15.3 shall not apply to disputes
and claims before the Closing Expert under Section 4.7(i)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 15.3 constitutes a separate agreement to arbitrate
which shall survive the termination of this Agreement for any reason.
15.4 Perfection of Schedules. All schedules referred to in this Agreement
shall be furnished on the Execution Date, save in respect of: (i) the
Transaction Prices Schedule; and (ii) the Land Registry Extracts; which will be
furnished on or about the Closing Date.
15.5 No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and the Acquired
Companies as contemplated in Section 13 above, and their respective successors
and permitted assigns, other than as specifically set forth herein.
15.6 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 dated May 20, 2005.
This Agreement may not be amended except by a written agreement executed by all
Parties.
15.7 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.
15.8 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 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.
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15.9 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.
15.10 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.
15.11 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.
15.12 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:
000 Xxxxxxxxxxxxx,
XX0000 Xxxxxxxxx,
Xxx Xxxxxxxxxxx.
Tel: 00-00-0000000
Fax: 00-00-0000000
For the attention of Xx. Xxx Xxxxxxxx
With a copy to:
00 Xxxxx Xxxxxx.,
Xxx Xxxx,
Xxxxxx
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Tel: 000-0-0000000
Fax: 000-0-0000000
For the attention of Xx. Xxxx Xxxxxx, General Counsel.
Klepierre and Purchasers:
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.
15.13 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.
15.14 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 shares in the
Operational Companies - shall be borne equally by PCE on the first hand, and
Purchasers on the second hand; and (ii) the transfer of the Acquired PCMP Shares
- shall be borne equally by Segece and PCE.
15.15 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
71
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.
15.16 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).
15.17 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.
15.18 Time of Essence. With regard to all dates and time periods set forth
or referred to in this Agreement, time is of the essence.
15.19 Schedules and Exhibits. 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.
15.20 Euro. All currency amounts expressed herein (whether or not preceded
by E) are in the currency of the Euro, unless preceded by PLN or USD, in
which case, the amounts will be in the currency of Polish Zloty or United States
Dollars respectively.
15.21 Language. This Agreement and all documents contemplated hereby or
relating thereto shall be prepared and binding in the English language.
72
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:
----------------------------------
KLP-SADYBA: KLEPIERRE SADYBA SP.Z.O.O.
By:
------------------------------------
Name:
----------------------------------
Title: Under Power of Attorney
Date:
----------------------------------
KLP-POSNAN: KLEPIERRE POZNAN SP.Z.O.O.
By:
------------------------------------
Name:
----------------------------------
Title: Under Power of Attorney
Date:
----------------------------------
KLP-KRAKOW: KLEPIERRE KRAKOW SP.Z.O.O.
By:
------------------------------------
Name:
----------------------------------
Title: Under Power of Attorney
Date:
----------------------------------
SEGECE: SEGECE
By:
------------------------------------
Name:
----------------------------------
Title: Under Power of Attorney
Date:
----------------------------------
LP7: LP7 SAS
By:
------------------------------------
Name:
----------------------------------
Title: Under Power of Attorney
Date:
----------------------------------
2
PCE: PLAZA CENTERS (EUROPE) BV
By:
------------------------------------
Name: Xxxxxx Xxxxxx
Title: President and CEO
Date:
----------------------------------
3
INDEX OF SCHEDULES
Schedule Title
----------- -----
1.1(A) Accounting Principles
1.1(E) Schedule of Agreed Yields and Forecasted Rentals
1.1(Y) Gross Rentals Definition Schedule
1.1(GG) Leasing Parameters Schedule
1.1(UU) Portfolio Liabilities Schedule
1.1(XX) Project Value Methodology
1.1(YY) Property Schedule
1.1(FFF) Restated Net Asset Methodology Schedule
1.1(GGG) Rights Acquisition Schedule
1.1(LLL) Shareholders Loan Schedule
1.1(OOO) Standard Form Lease
1.1(RRR) Trademark License Agreement
2.1(C)(I) Loan Subrogation Agreement (Sadyba)
2.1(D)(I) Agreement of Debt Assignment (Sadyba)
2.1(G)(I) OVAG Loan Repayment Agreement II
2.4(A)(II) Corporate Guarantee (Tenant Securities)
2.4(A)(V) Schedule of Missing Tenant Securities
2.4(D)(II) First Demand Corporate Guarantee (Related Party Tenants)
2.5(A) Form of EMI Parent Guarantee
4.1(A) Proforma Closing Accounts
4
Schedule Title
----------- -----
4.5 Transaction Prices Schedule
4.9(A) (A) Special Price Adjustment Methodology (Sadyba Ground Lease)
4.9(A)(B) Form of Klepierre Corporate Guarantee
(Sadyba Ground Lease Price Adjustment)
4.9(B)(II) Sadyba Tax Ruling Application
4.10(A) Schedule of Tenant Invoicing Discrepencies
4.11(B) Agreed Book Asset Values
5.0 Vendor's Disclosure Schedule
5.21 Insurance Schedule
5.23 Leases Schedule
5.25 Proceedings Schedule
5.28(C) Schedule of Employees of PCMP
5.29(C) Environment Schedule
8.2(A)(II) Waivers and Consents
8.2(C) Vendor's Legal Opinion
8.2(D) Buyers Legal Opinion of Counsel
8.3(A) Form of Share Purchase Agreement
13.6(A) List of Former Employees of Acquired Companies
13.6(F)(II) Poznan Plaza Completion Punch List
5
INDEX OF DEFINITIONS
DEFINED TERM SECTION
------------ -----------
Acquired Companies 1.1(a)
Acquired Companies 1.1(b)
Acquired PCMP Shares 1.1(c)
Acquisition Proposal 7.3(c)
Affiliate 1.1(d)
Agreed Yields 1.1(e)
Agreement Recitals
AMO Approval 8.2(a)(i)
Ancillary Agreements 1.1(f)
Assumed Financing Loans 1.1(g)
Audited Closing Accounts 4.7(f)
Benefit Plans 5.28(b)
Books and Records 1.1(h)
Breakage Costs 2.1(h)(iii)
Business Day 1.1(i)
Businesses 1.1(j)
Buyer Indemnification Threshold 13.5(f)
Buyers 1.1(k)
Buyers' Accountants 1.1(l)
Buyers Indemnitee 13.1
Closing 1.1(m)
Closing Date 8.1
Closing Experts 4.7(i)
Contract 5.14(b)
Contractors 2.3(b)
Contractors' Bonds 2.3(d)
Contractor's Claims 2.3(b)
Covenant Period 7.1
Damages 13.1
Date of Request 15.3(a)
Definitive Closing Accounts 4.7(a)(i)
Definitive PCMP Closing Accounts 4.7(a)(ii)
6
DEFINED TERM SECTION
------------ -----------
Definitive PCMP Purchase Price 4.7(c)(ii)
Definitive Purchase Prices 4.7(c)(i)
Definitive Sadyba Up-Stream Loan Amount 4.7(c)(iv)
Definitive Shareholder Loan Amounts 4.7(c)(iii)
Development Liability 2.3(b)
Dispute Notice 4.7(g)
EMI 1.1(n)
EMI Parent Guarantee 1.1(o)
Employee 1.1(p)
Environment, Health and Safety Requirements 5.29(a)
Equity Rights 1.1(q)
Exchange Rate Differentials 4.8(f)
Execution Date 1.1(r)
Execution Operational Project Value 1.1(s)
Execution Rentals 1.1(t)
Final Definitive Closing Accounts 4.7(o)
Final Definitive PCMP Purchase Price 4.7(o)
Final Definitive Purchase Prices 4.7(o)
Final Definitive Sadyba Up-Stream Loan Amount 4.7(o)
Final Definitive Shareholder Loans Amounts 4.7(o)
Final Operational Projects Value 4.8(b)
Financing Loan Facilities 2.1(h)(i)
Financial Statements 5.12
Financing Banks 1.1(v)
Financing Banks Securities 1.1(w)
Forecasted Rentals 1.1(u)
Governmental Body 1.1(x)
Gross Rentals 1.1(y)
Improvements 5.18(b)
Indebtedness 1.1(z)
Indemnifying Party 13.3(a)
Indemnitee 13.3(a)
Initial Net Asset Value 4.2(b)
Initial PCMP Purchase Price 4.4
Initial Purchase Prices 4.2(b)
Initial Sadyba Shareholder Loan Amount 4.5(b)(iv)
Initial Shareholder Loan Amounts 4.5(b)(iii)
Klepierre Recitals
KLP-Krakow Recitals
KLP-Poznan Recitals
KLP-Sadyba Recitals
Knowledge of Vendor 1.1(aa)
Krakow Plaza Sp.z.o.o 1.1(bb)
7
DEFINED TERM SECTION
------------ -----------
Land Registry Extracts 1.1(cc)
Law 1.1(dd)
Lease Agreement(s) 1.1(ee)
Lease-Up Break Off Date 3.2
Lease-Up Criteria 1.1(ff)
Lease-Up Period 3.1
Leasing Parameters 1.1(gg)
Liability 1.1(hh)
Lien 1.1(ii)
LP7 Recitals
MAE Event 11.2
Material Adverse Effect 11.2
Material Business Contracts 5.22(a)
Notice(s) 15.12(a)
Operational Companies 1.1(jj)
Operational Projects 1.1(kk)
Operational Projects Laws 5.18(d)
Operational Projects Permits 5.18(g)
Order 1.1(ll)
OVAG 1.1(mm)
OVAG Loans 1.1(nn)
OVAG Loans Repayment Agreement II 1.1(oo)
PCE Recitals
PCE Group Approvals 1.1(pp)
PCMP 1.1(qq)
Permit 1.1(rr)
Permitted Liens 1.1(ss)
Person 1.1(tt)
Portfolio Liabilities Schedule 1.1(uu)
Poznan Plaza Sp.z.o.o. 1.1(vv)
Prepayment Amounts 2.1(h)(ii)
Prepayment Date 2.1(f)
Proceedings 5.25
Project Properties 1.1(ww)
Property Schedule 1.1(yy)
Purchased Assets 1.1(aaa)
Purchasers 1.1(zz)
Purchasers Group Approvals 1.1(bbb)
Qualifying Lease Agreements 1.1(ccc)
Reference Date 1.1(ddd)
Representatives 1.1(eee)
Restated Net Asset Methodology Schedule 1.1(fff)
Restricted Areas 9.1(b)
8
DEFINED TERM SECTION
------------ -----------
Review Period 4.7(f)
Rights Acquisition Schedule 1.1(ggg)
Xxxx Xxxxxx Plaza Sp.z.o.o. 1.1(hhh)
Rules 15.3(b)
Sadyba Center SA 1.1(iii)
Sadyba Ground Lease 13.6(c)
Sadyba Shareholder Loan Conversion 4.9(b)(i)
Sadyba Tax Ruling 4.9(b)(ii)
Sadyba Up-Stream Loans 1.1(jjj)
Sadyba Up-Stream Loans Amount 1.1(kkk)
Segece Recitals
Shareholder Loan Schedule 1.1(lll)
Shareholder Loans 1.1(mmm)
Shareholder Loans Amounts 1.1(nnn)
Shell Polska Sub-Lease 2.4(e)
Special Agreed Price Adjustment 4.3(a)
Standard Form Lease 1.1(ooo)
Standard Form Lease Approval Date 1.1(ppp)
Survival Date 12.1
Tax, Taxes 5.16(a)
Tenant List 1.1(qqq)
Third Party Claim 13.3(a)
Trademark License Agreement 1.1(rrr)
Transaction Approvals 1.1(ttt)
Transaction Prices Schedule 1.1(uuu)
Transactions 1.1(sss)
Tribunal 15.3(b)
Uncertainty 4.7(g)
Utilities Licenses 2.4(b)(i)
Vendor Recitals
Vendor Indemnification Threshold 13.5(b)
Vendor Indemnitee(s) 13.2
Vendor's Disclosure Schedule 5.0
Verification Disputes 4.7(i)
Verification Period 4.7(a)
Waivers and Consents 1.1(vvv)
9
Execution (O)
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS................................................... 2
1.1 Certain Definitions............................................ 2
ARTICLE II - PRELIMINARY AGREEMENT FOR FUTURE ACQUISITION................. 10
2.1 Future Acquisition Agreement................................... 10
2.2 Conditions Subsequent to Validity.............................. 11
2.3 Undertakings to execute the Share Purchase Agreements.......... 13
2.4 Joinder of Additional or Alternative Purchaser................. 14
ARTICLE III - THE TRANSACTION............................................. 15
3.1 Purchase and Sale.............................................. 15
3.2 Construction Loan Facilities................................... 15
3.3 The Lublin Option Agreement.................................... 16
3.4 Sosnoweic - Supermarket........................................ 16
3.5 General Provisions............................................. 16
ARTICLE IV - CONSTRUCTION OF THE DEVELOPMENT PROJECT...................... 18
4.1 Undertaking to Construct and Complete.......................... 18
4.2 Approved Plans and Designs..................................... 18
4.3 Building Permits............................................... 19
4.4 Construction Loan Facilities................................... 20
4.5 Construction Works............................................. 21
4.6 Insurance...................................................... 23
4.7 Excusable Delay (Force Majeure)................................ 23
4.8 Development Liability.......................................... 24
ARTICLE V - COMPLETION, OPENING AND DELIVERY.............................. 25
5.1 Practical Completion........................................... 25
5.2 Opening........................................................ 26
5.3 CP Satisfaction Date........................................... 26
5.4 Supplementary Due Diligence.................................... 28
5.5 Delivery....................................................... 28
ARTICLE VI - LEASE UP FOLLOWING DELIVERY.................................. 29
6.1 Lease-Up following Delivery.................................... 29
6.2 Break-Off...................................................... 29
6.3 General Provisions relating to Lease-Up........................ 29
ARTICLE VII - TRANSACTION PRICE AND VERIFICATIONS......................... 30
7.1 Proforma Development Closing Accounts.......................... 30
7.2 Development Projects - Calculation of Delivery Purchase Price.. 31
7.3 Calculation of Delivery Development Project Value (DDPV)....... 31
7.4 Cap on Delivery Rentals........................................ 31
7.5 Transaction Prices Schedule.................................... 32
7.6 Payment of Delivery Purchase Prices............................ 32
7.7 Payment Guarantee.............................................. 33
7.8 Post-Closing Purchase Price Adjustments........................ 34
7.9 Final Price Adjustments for Development Companies.............. 37
7.10 Special Provisions Relating to the Tesco Lease (Novo Plaza).... 38
7.11 General Provisions relating to Transaction Prices.............. 39
i
ARTICLE VIII - REPRESENTATIONS AND WARRANTIES OF VENDOR................... 39
8.1 Organization, Qualification, and Corporate Power............... 40
8.2 Authorization.................................................. 40
8.3 No Conflicts................................................... 40
8.4 Consents....................................................... 41
8.5 Capitalization................................................. 41
8.6 Validity of Shares............................................. 41
8.7 Articles of Association and Constitutive Documents............. 41
8.8 Legal Title.................................................... 41
8.9 Transferability................................................ 42
8.10 Shareholders' Loans............................................ 42
8.11 Construction Loan Facilities................................... 42
8.12 Financial Statements........................................... 43
8.13 Undisclosed Liabilities........................................ 43
8.14 Events Subsequent to Most Recent Fiscal Period End............. 43
8.15 Legal Compliance............................................... 45
8.16 Tax Matters. In respect of each of the Development Companies:.. 45
8.17 Title of Properties; Absence of Liens and Encumbrances;
Condition of Equipment......................................... 46
8.18 Development Projects........................................... 47
8.19 Intellectual Property.......................................... 48
8.20 Notes and Accounts Receivable.................................. 48
8.21 Insurance...................................................... 49
8.22 Material Business Contracts.................................... 49
8.23 Qualified Lease Contracts...................................... 51
8.24 Powers of Attorney............................................. 51
8.25 Litigation..................................................... 52
8.26 Utilities Charges.............................................. 52
8.27 No Development Risks........................................... 52
8.28 Employees...................................................... 52
8.29 Environment, Health and Safety................................. 53
8.30 Intergroup Agreements.......................................... 54
8.31 Complete Copies of Materials................................... 54
8.32 Full Disclosure................................................ 54
ARTICLE IX - REPRESENTATIONS AND WARRANTIES OF KLEPIERRE.................. 54
9.1 Organization, Qualification, and Corporate Power............... 55
9.2 Authorization.................................................. 55
9.3 No Conflicts................................................... 55
9.4 Consents....................................................... 55
9.5 Financial Resources............................................ 55
9.6 Additional Purchaser........................................... 56
ARTICLE X - PRE-CLOSING COVENANTS......................................... 56
10.1 Operation of Business.......................................... 56
10.2 Notice of Developments......................................... 58
10.3 Exclusivity.................................................... 58
10.4 Reasonable Efforts............................................. 59
ARTICLE XI - DELIVERY AND CLOSING......................................... 59
11.1 Delivery (Closing) and Consummation............................ 59
ii
11.2 Conditions for Closing......................................... 60
11.3 Acts to be performed at Closing................................ 61
11.4 Acknowledgement of Closing..................................... 62
ARTICLE XII - ADDITIONAL AGREEMENTS WITH POST CLOSING EFFECT.............. 62
12.1 Non-Compete.................................................... 62
12.2 Non-Solicitation............................................... 62
ARTICLE XIII - OTHER AGREEMENTS AND COVENANTS............................. 63
13.1 Confidentiality................................................ 63
13.2 Additional Documents and Further Assurances.................... 63
13.3 Updated Tenant List............................................ 63
ARTICLE XIV - WITHDRAWAL OPTION........................................... 63
14.1 Withdrawal Option.............................................. 63
14.2 Material Adverse Effect Defined................................ 64
14.3 Right of Withdrawal............................................ 64
14.4 Withdrawal Notice and Rectification............................ 64
14.5 Restrictions on Rights of Withdrawal........................... 65
14.6 Consequences of Withdrawal and Termination..................... 65
ARTICLE XV - SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS........ 65
15.1 Representations, Warranties and Covenants...................... 65
ARTICLE XVI - INDEMNIFICATION............................................. 66
16.1 Indemnification by Vendor...................................... 66
16.2 Indemnification by Purchaser................................... 67
16.3 Notice and Opportunity to Defend............................... 67
16.4 Remedies....................................................... 68
16.5 Certain Limitations............................................ 68
16.6 Specific Indemnities........................................... 69
ARTICLE XVII - TERMINATION................................................ 70
17.1 Termination of the Agreement................................... 70
17.2 Effect of Termination.......................................... 72
17.3 Partial Termination............................................ 72
ARTICLE XVIII - MISCELLANEOUS............................................. 72
18.1 Press Releases and Public Announcements........................ 72
18.2 Governing Law.................................................. 72
18.3 Dispute Resolution............................................. 73
18.4 Perfection of Schedules........................................ 74
18.5 No Third-Party Beneficiaries................................... 74
18.6 Entire Agreement and Modification.............................. 74
18.7 Amendment...................................................... 74
18.8 Waivers........................................................ 74
18.9 Successors and Assigns......................................... 75
18.10 Counterparts................................................... 75
18.11 Headings....................................................... 75
18.12 Notices........................................................ 75
18.13 Severability................................................... 76
18.14 Expenses....................................................... 76
18.15 Construction................................................... 76
iii
18.16 Attorneys' Fees................................................ 76
18.17 Further Assurances............................................. 77
18.19 Time of Essence................................................ 77
18.20 Schedules and Exhibit.......................................... 77
18.21 Euro........................................................... 77
18.22 Language....................................................... 77
iv
EXECUTION (O)
PRELIMINARY AGREEMENT (STAGE B)
BY AND AMONG
1. KLEPIERRE S.A.
AS PURCHASER
2. PLAZA CENTERS (EUROPE) B.V.
AS VENDOR
DATED AS OF JULY 29TH, 2005
v
PRELIMINARY AGREEMENT
THIS PRELIMINARY AGREEMENT (this "PRELIMINARY AGREEMENT") is made and
entered into on July 29th, 2005, 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 no B 780 152 914 ("KLEPIERRE" or "PURCHASER");
(2) 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 no 33248324
("PCE" or "VENDOR");
Klepierre and PCE are sometimes referred to herein individually as a
"PARTY" and collectively as the "PARTIES."
RECITALS
A. PCE is the direct and/or indirect and/or beneficial owner of the entire
Equity Rights in and to the Development Companies, as detailed and specified in
the Rights Acquisition Schedule;
B. The Development Companies are developing and are or shall become the
owners of the entire rights, title and interest in and to the Development
Centers recorded opposite their names in the Property Schedule;
C. Purchaser desires to acquire from PCE, and PCE desires to sell to
Purchaser, the entire Equity Rights in and to the Development Companies
following the completion of the construction of the relevant Development
Projects and the satisfaction of the Conditions Precedent for Delivery and the
Conditions for Closing, all in the terms and subject to the conditions set forth
herein;
D. Each of the Parties believes that it is in its respective best interests
that the Transaction contemplated hereby be consummated and, in furtherance
thereof, has duly approved this Preliminary Agreement and the Transaction
contemplated hereby.
E. Each of the Parties desires to make certain representations, warranties,
covenants and other agreements in connection with the transactions contemplated
hereby.
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 Preliminary 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 Preliminary
Agreement.
(a) "ACCOUNTING PRINCIPLES" means the agreed accounting principles
which shall govern the preparation, auditing and verification of the Proforma
Development Closing Accounts, the Definitive Development Closing Accounts and
the Final Definitive Development Closing Accounts, as set forth in the schedule
attached hereto as SCHEDULE 1.1(A);
(b) "AFFILIATE" means any Person that directly or indirectly, through
one or 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;
(c) "AGREED YIELDS" means the agreed capitalization rates in respect
of each of the Development Projects as detailed and specified in SCHEDULE
1.1(C);
(d) "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 Preliminary Agreement, including: (i)
the Share Purchase Agreements referred to in Section 11.3(a) below; (ii) the
Conditional Trademark License Agreements; (iii) the EMI Parent Company
Guarantee; (iv) the Payment Guarantee; (v) the Closing Agent Agreement; (vi) the
Lublin Option Agreement; and (vii) 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
Preliminary Agreement;
(e) "APPROVED PLANS AND DESIGNS" in respect of any Development Project
means the plans, designs and technical specifications which have been or which
shall have been presented by PCE and approved by Purchaser in terms of the
provisions of Section 4.2 below, such approval not to unreasonably withheld or
delayed;
(f) "BOOKS AND RECORDS" of the Development Companies 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 the Development Companies, 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;
(g) "BUILDING PERMITS" means the final, lawful and valid building
permits issued or to be issued by the Competent Authorities which are not
susceptible of any challenge or withdrawal as at the date of their issuance and
at the Delivery Date and which enable the construction of the relevant
Development
2
Projects in accordance with the Approved Plans and Designs in all material
respects, as specified in Sections ERROR! REFERENCE SOURCE NOT FOUND. and 4.3
below;
(h) "BUSINESS DAY" shall mean a day other than (i) Saturday and
Sunday; and (ii) any day on which banks located in Poland, the Czech Republic,
France, The Netherlands or Israel are authorized or obligated to close;
(i) "BUSINESSES" shall mean the businesses and operations of the
Development Companies and/or the Development Projects;
(j) "PURCHASER' ACCOUNTANTS" shall mean Messrs. Deloitte of Poland and
of the Czech Republic;
(k) "CLOSING" means the consummation of each of the Transactions
contemplated hereunder which are to be carried out on the Delivery Date and in
the manner specified in Article XI below and in accordance with its provisions;
(l) "CLOSING PROTOCOL" means the protocol to be drawn up and executed
by the Parties at the Closing and on the Delivery Date in terms of the
provisions of Section 11.2(c) below, to which shall be attached the updated
Schedules in respect of the Development Company and/or the Development Project
which is the subject of the relevant Closing;
(m) "COMPETENT AUTHORITIES" means any Governmental Body or other
municipal body or authority having jurisdiction over any matter pertaining to
the subject matter of this Preliminary Agreement, including without limitation
the granting of the Building Permits;
(n) "COMPLETION CRITERIA" shall mean that the relevant Development
Project: (i) has been Practically Completed in accordance with the Approved
Plans and Designs and the Building Permits, all as contemplated in Section 5.1
below; (ii) has obtained all Permits and authorizations required by operation
of law for the construction, opening and full operation of the Development
Project (including without limitation an Operating Permit), which are final,
legal and valid and not subject to challenge or withdrawal at the CP
Satisfaction Date and at the Delivery Date; (iii) has been opened to the public
at large, with all pedestrian and vehicular access to public roads and streets,
as specified in the Approved Plans and Designs and in the Building Permits, and
all the additional works required pursuant to and/or as a condition to the said
Building Permit and authorizations (including without limitation an Operating
Permit), shall have been completed or fully provided for in the Proforma
Development Closing Accounts and in the Definitive Development Closing Accounts;
(o) "CONDITIONAL TRADEMARK LICENSE AGREEMENT" means the agreement to
be entered into by and among, inter alia, Purchaser, the Management Company and
PCE on the Execution Date, in terms of which PCE shall award a license for the
use by the relevant Development Company and/or the relevant Development Project
of the "Plaza Centers" tradename and logo following the Delivery Date, on the
terms and conditions specified therein, in the form and text attached hereto as
SCHEDULE 1.1(O);
(p) "CONSTRUCTION LOAN FACILITY" means all those construction loans
and other financing loans which will have been or shall be taken out by each of
the Development Companies during the Construction Period in order to financing
the Construction Works, and which are or shall be specified in the Project
Liability Schedule at the Closing (Schedule 1.1(ddd));
3
(q) "CONSTRUCTION WORKS" shall mean all the construction, mechanical,
engineering and other works and disciplines which are to be executed and
performed for and/or in connection with the construction and completion of the
relevant Development Center in terms of the Approved Plans and Designs and the
Building Permits in accordance with the provisions of Article IV below;
(r) "CP SATISFACTION DATE" means the date upon which the Conditions
Precedent for Delivery with respect to the relevant Development Project have
been either fulfilled or waived;
(s) "DELIVERY DATE" shall mean, a date falling not later than 75
(seventy five) days following the occurrence of the CP Satisfaction Date
(subject to the provisions of Section 5.5(c)) below);
(t) "DELIVERY DEVELOPMENT PROJECT VALUE" or "DDPV" means, the agreed
project value of the Development Projects at the Delivery Date, calculated in
the manner specified in Section 7.3 below;
(u) "DELIVERY RENTALS" means the actual Gross Rentals of the
Development Project prevailing on the CP Satisfaction Date (determined in
accordance with the provisions of the Gross Rentals Definition Schedule
(Schedule 1.1(kk)) as reflected in the updated Tenant List as at the CP
Satisfaction Date and which shall have been confirmed by the Parties on the
Delivery Date following Purchaser' supplemental due diligence investigations to
be conducted in terms of Section 5.4 below;
(v) "DEVELOPMENT COMPANY" means the companies detailed and specified
in the Rights Acquisition Schedule attached hereto as Schedule 1.1(v);
(w) "DEVELOPMENT PROJECT" means the shopping and entertainment center
(including the Project Properties) specified in the Property Schedule opposite
the name of each Development Company, which shall be fully and validly owned and
controlled by the relevant Development Company by not later than the Cut Off
Date, as set forth in detail in the Property Schedule attached hereto as
Schedule 1.1(w);
(x) "EMI" means Elbit Medical Imaging Ltd., of 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxxxxx, being the ultimate and/or indirect parent company of Vendor;
(y) "EMI PARENT GUARANTEE" means the corporate guarantee to be
furnished by EMI to Purchaser and Segece at the Execution Date, in the form and
text attached hereto and marked as Schedule 3.5(a);
(z) "EMPLOYEE" means any employee of the Development Companies who is
employed in connection with the Businesses;
(aa) "EQUITY RIGHTS" means the equity and voting rights (shares in
Poland or participation interests in the Czech Republic) in the Development
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, all as detailed in the Rights Acquisition Schedule;
(bb) "EXECUTION DATE" means the date of the signing and execution of
this Preliminary Agreement;
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(cc) "FINAL DEVELOPMENT PROJECT ADJUSTMENT DATE" means that date which
is the earlier of: (i) the first anniversary of the CP Satisfaction Date; or
(ii) the Lease-Up Break Off Date;
(dd) "FINAL DEVELOPMENT PROJECT RENTALS" means the actual Gross
Rentals (determined in accordance with the provisions of the Gross Rentals
Definition Schedule (Schedule 1.1(kk)) prevailing on the Final Development
Project Adjustment Date, but only in respect of the units within the relevant
Development Project which were vacant and not previously leased as at the CP
Satisfaction Date ("NEW LEASES");
(ee) "FINAL DEVELOPMENT PROJECT VALUE" means the Final Development
Project Rentals capitalized at the Agreed Yields in accordance with the Project
Value Methodology (Schedule 1.1(hhh)); ;
(ff) "FORECASTED DEVELOPMENT PROJECT VALUE" or "FDPV" means the
Forecasted Rentals capitalized at the Agreed Yields in accordance with the
Project Value Methodology (Schedule 1.1(hhh));
(gg) "FORECASTED RENTALS" means the forecasted Gross Rentals for the
Development Centers as specified in Schedule 1.1(c), or, for the purposes of
Section 7.4(a) below, the Forecasted Rentals of a specific unit within the
Development Project;
(hh) "FINANCING BANKS" means those banking institutions which have
granted Construction Loan Facilities to the Development Companies, all as shall
be more fully detailed and specified in the Project Liability Schedule attached
hereto as Schedule 1.1(ddd);
(ii) "FINANCING BANKS SECURITIES" means the securities and collaterals
granted or to be granted to the relevant Financing Banks in respect of each of
the Construction Loan Facilities, all as more fully detailed and specified in
the Project Liabilities Schedule attached hereto as Schedule 1.1(ddd), as
updated at the Delivery Date;
(jj) "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;
(kk) "GROSS RENTALS" means the gross rental incomes of the Development
Projects calculated in accordance with the updated Tenant List as at any
relevant calculation date in accordance with the provisions of the methodologies
set forth in the Gross Rental Definition Schedule (SCHEDULE 1.1(KK));
(ll) "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;
(mm) "KNOWLEDGE OF VENDOR" shall mean the actual knowledge of the
incumbent officers, employees and directors of Vendor, or of the Development
Company where relevant, or knowledge
5
which the incumbent officers, employees and directors of Vendor, or of the
Development Company where relevant, ought reasonably to have had in the
circumstances of any particular matter after reasonable investigation;
(nn) "LAND OWNERSHIP CRITERIA" means, that the Development Company
shall: (i) be the legal owner of the freehold title in and to the each of the
relevant Project Properties as set forth in the Property Schedule; or (ii) have
acquired the long terms lease rights in and to the Project Property for a period
of not less than 97 years (save in respect of the Novo Plaza Development
Project, where an area of land adjacent to the Project Property has been
sub-leased for a period of 25 years) as set forth in the Property Schedule;
provided that such freehold title and/or lease rights are exclusive, valid,
enforceable and not susceptible of any challenges and/or withdrawal as at the CP
Satisfaction Date and the Delivery Date;
(oo) "LAND REGISTRY EXTRACTS" means the official extracts issued by
and/or obtained from the Lands and Mortgage Registry Court (Poland) or the
Cadastral (Czech Republic) in respect of the Project Properties, which shall
each bear a date of issue not earlier than 14 (fourteen) prior to: (i) the date
of the Land Ownership Notice; and (ii) the Delivery Date; and which are to be
furnished by Vendor to Purchaser in terms of the provisions of Sections 0 and
11.2(c)(iii) below, and which shall be attached as Exhibit B to the Property
Schedule (Schedule 1.1(iii));
(pp) "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, the Republic of Poland and the
Czech Republic, as the case may be, or in any other country or Governmental Body
having jurisdiction in matters pertaining to the subject matter of this
Preliminary Agreement;
(qq) "LEASE AGREEMENT(S)" means all leases, subleases, licenses,
concessions and other agreement (written or oral), including all amendments,
extensions, renewals, guaranties and other agreement with respect thereto,
pursuant to which any Development Company grants the right to use or occupy any
part of the Development Projects;
(rr) "LEASE-UP CRITERIA" means that the Lease Agreements executed by
the Development Company with its tenants shall: (i) be in Standard Form Lease
and shall have been approved by Purchaser in terms of Section 6.3(d) below in
respect of anchor tenants only; (ii) be in the Standard Form Lease for all other
tenants (save in respect of Lease Agreements signed prior to the Standard Form
Lease Approval Date); (iii) be valid and in full force and effect; (iv) be in
compliance with the Leasing Parameters in all material respects; (v) be for a
minimum duration equal to 1 (one) year; and (vi) be executed with tenants of
good standing;
(ss) "LEASING PARAMETERS" means, with respect to the Lease-Up services
to be rendered by PCE in terms of Section 6.1 below in respect of each
Development Project, those rental grids, tenant mix and leasing guidelines which
have been agreed between the Parties in respect of each of the Development
Projects by not later than the date of the Construction Start Notice, which are
or shall be detailed and specified in the Leasing Parameters Schedule attached
hereto as SCHEDULE 1.1(SS);
(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);
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(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) "LUBLIN OPTION AGREEMENT" means, that certain option agreement to
be entered into by and among the Parties on the Execution Date, as specified in
Section 3.3 below;
(ww) "MANAGEMENT COMPANY" means: (i) Messrs. Plaza Centers Management
Poland Sp.z.o.o., a company registered pursuant to the Laws of Poland and
bearing registration No. KRS 0000054095, being the management company which is
an Affiliate of Purchaser and to whom the management of the Polish Development
Projects shall be entrusted following the relevant Delivery Date; and (ii)
Messrs. FMC-Cz, a company registered pursuant to the Laws of the Czech Republic,
being the management company which is an Affiliate of Purchaser and to whom the
management of the Czech Development Projects shall be entrusted following the
relevant Delivery Date;
(xx) "OPERATING PERMIT" means the valid occupancy and operating permit
("pozwolenie na uzykowanie" in Poland and "kolauduce" in the Czech Republic)
(including a temporary permit) allowing for the opening and operation of the
Development Project to be granted (or, in the case of a temporary permit -
issued) by the competent Governmental Body in accordance with the Building
Permit;
(yy) "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);
(zz) "PCE GROUP APPROVALS" means the approval of the Transaction, as
incorporated in this Preliminary Agreement and the Ancillary Agreements, of the
respective Boards of Directors of EMI and PCE, all of which have been obtained
prior to the Execution Date;
(aaa) "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 Development Companies and/or the Development Projects and/or
the Businesses and/or the Purchased Assets;
(bbb) "PERMITTED LIENS" means (i) all Financing Bank Securities in
respect of the Construction Loan Facility; (ii) all specific liens, easements
and other registered third party rights recorded in the Land Registry Extracts
to be attached hereto as an exhibit to the Property Schedule (Schedule 1.1(ddd);
(iii) 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 Delivery Date or being contested
in good faith and for which appropriate reserves have been established in the
Proforma Development Closing Accounts and the Definitive Development Closing
Accounts; (iv) legal easements and rights of access mandated by operation of law
whether or not recorded in the Land Registry Extracts, which are not violated by
the current use or occupancy of the relevant Development Project, nor by the
operation of the relevant Development Project as currently conducted on the
Project Property in question, and which do not and may not detract from the
value, use, operation or transfer of the Development Company and/or the
Development Project; 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 Purchaser pursuant to the provisions
of this Preliminary Agreement;
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(ccc) "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;
(ddd) "PROJECT LIABILITIES SCHEDULE" means the schedule attached
hereto and marked as SCHEDULE 1.1(DDD), setting out the details and particulars
of the Construction Loan Facilities, as well as all other Liabilities of the
Development Companies, as updated on the respective Delivery Dates;
(eee) "PROJECT MANAGER" means the qualified engineer who shall be
appointed by PCE to act as the project manager in charge of the execution of the
Construction Works;
(fff) "PROJECT PROPERTIES" means, the properties upon which the
Development Projects are being constructed,, including without limitation in
respect of each Development Project : the parcels of land underlying the
shopping and entertainment centers; their external areas; access routes owned or
leased by the relevant Development Company; easements and rights of passage
enjoyed by the Development Company over access routes; the internal and external
parking facilities; and the underground and air rights, if applicable; all as
detailed in the Property Schedule (Schedule 1.1(fff));
(ggg) "PROJECT VALUE AT DELIVERY" or (PVAD) means: the project value
of any Development Project on the Delivery Date, calculated by applying the
Project Value Methodology (Schedule 1.1(hhh)) on the basis of the Delivery
Rentals capitalized at the Agreed Yields;;
(hhh) "PROJECT VALUE METHODOLOGY" means the agreed methodology for the
determination of the Forecasted Development Project Value (FDPV), the Project
Value at Delivery (PVAD) and the Final Development Project Value, attached
hereto and marked as SCHEDULE 1.1(hhh);
(iii) "PROPERTY SCHEDULE" means the schedule attached hereto as
SCHEDULE 1.1(III) setting out the details and particulars of the each Project
Property, including the floor plans of each of the Development Projects
appendixed thereto as exhibits, and specifying the nature and conditions of the
ownership rights of the relevant Development Company therein (freehold or
leasehold);
(jjj) "PRUDENT INDUSTRY PRACTICE" means the practices, methods,
specifications and standards that a prudent, competent, experienced and expert
contractor in the local engineering and construction industry would be expected
to use and/or adopt in relation to the design, engineering, manufacture,
installation, construction and testing of works similar to the Construction
Works referred to in Article IV;
(kkk) "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
Development Company and/or the Development Project related to and/or in
connection with the Business;
(lll) "PURCHASER" shall have the meaning ascribed to it in the
Recitals, subject however to the provisions of Section 2.4 below;
(mmm) "PURCHASER'S GROUP APPROVALS" means the approval of the
Transactions, as incorporated in this Preliminary Agreement and the Ancillary
Agreements, of the supervisory board of Klepierre, which has been obtained prior
to the Execution Date;
8
(nnn) "QUALIFYING LEASE AGREEMENTS" means Lease Agreements concluded
with tenants of the Development Project, and which are of a duration equal to or
more than 1 (one) year, provided that leases which are for periods of less than
one year but which have been consistently renewed for a total period which in
the aggregate exceeds 1 (year), shall be deemed to constitute a Qualifying Lease
Agreement;
(ooo) "REPRESENTATIVES" means, with respect to a Person, that Person's
officers, directors, employees, accountants, legal counsel, agents and other
representatives;
(ppp) "RESTATED NET ASSET METHODOLOGY SCHEDULE" means the schedule
attached hereto as SCHEDULE 1.1(PPP)setting out the agreed methodologies for the
calculation of the Delivery Purchase Price in terms of Section 7.2(b) below;
(qqq) "RIGHTS ACQUISITION SCHEDULE" means the schedule of the Equity
Rights to be acquired by Purchaser in the Development Company pursuant to the
provisions of this Preliminary Agreement attached hereto and marked as SCHEDULE
1.1(QQQ);
(rrr) "SHARE PURCHASE AGREEMENT" means the share purchase agreement in
the form and text attached hereto as Schedule 11.3(a)(A) for the Polish
Development Companies and as Schedule 11.3(a)(B) for the Czech Development
Companies, which the Parties have undertaken to execute and conclude on the
Delivery Date in accordance with the provisions of Section 0 below;
(sss) "SHAREHOLDER LOAN SCHEDULE" means the schedule attached hereto
as SCHEDULE 1.1(SSS), specifying the Shareholder Loans and the estimated
Shareholder Loans Amount (principal and interest as at the Delivery Date);
(ttt) "STANDARD FORM LEASE" means, the standard form of lease
agreement which have been prepared by Purchaser and which comply with the
relevant provisions of applicable law in Poland and in the Czech Republic, and
which were approved by PCE on the Standard Form Lease Approval Date, a copy of
which is attached hereto as SCHEDULE 1.1(TTT);
(uuu) "STANDARD FORM LEASE APPROVAL DATE" means, the date upon which
PCE furnished Purchaser with its written approval of the Standard Form Leases,
but in any event not later than a date 60 (sixty) days following the Execution
Date;
(vvv) "SHAREHOLDER LOANS" means the shareholder loans advanced or to
be advanced by Vendor to the relevant Development Company, all as detailed and
specified in the Shareholders Loans Schedule attached hereto as Schedule
1.1(sss), which shall be updated as at the relevant Delivery Date in respect of
each Development Company (principal and interest as at the Delivery Date);
(www) "SHAREHOLDER LOANS AMOUNTS" means, with respect to each of the
Shareholder Loans, the entire (100%) aggregate amount of those Shareholder
Loans, which are due and payable by the respective Development Companies to PCE
and/or its Affiliates as at the Delivery Date, all as specified in the
Shareholders Loan Schedule attached hereto as Schedule 1.1(sss) subject to
verification in terms of the provisions of Section 7.7 below;
(xxx) "TENANT LIST" means, in respect of any Development Project, the
exact and complete list (rent roll) of good standing tenants on the CP
Satisfaction Date and on the Final Development Project Adjustment Date,
specifying inter alia, the Gross Rentals actually invoiced as at the relevant
calculation date
9
according to signed and valid Qualifying Lease Agreements, adjusted for step-up
rents and turn-over rents in accordance with the provisions of the Gross Rentals
Definition Schedule (Schedule 1.1(kk)), and denominated in Euro currency
(provided however that rentals which are denominated in any other currency will
be converted into their Euro equivalent at the official rate of exchange of the
National Bank of Poland or the National Bank of the Czech Republic, as the case
may be, prevailing on the CP Satisfaction Date and on the Final Development
Project Adjustment Date, as the case may be), a copy of which shall be attached
to the Closing Protocol;
(yyy) "TRANSACTIONS" means the transactions which are the subject
matter of this Agreement and the Ancillary Agreements;
(zzz) "TRANSACTION APPROVALS" means all those approvals which are
required for the consummation of the Transactions are detailed and specified in
Section 7.2(a) below, namely: (i) the Waivers and Consents; and (ii) the AMO
Approval (as defined in Section 11.2(b)(i) below), to the extent required;
(aaaa) "TRANSACTION PRICE SCHEDULE" means the schedule to be compiled
at each Delivery date in terms of Section 7.5 below setting forth the Delivery
Purchase Price, specifying the Shareholder Loan Amount in respect of the
relevant Development Company, all as calculated pursuant to the provisions of
Sections 7.2 to 7.4 below, which shall be attached hereto at the relevant
Delivery Date and marked as Schedule 7.5;
(bbbb) "TRANSACTION AGREEMENTS" means, this Preliminary Agreement, the
Ancillary Agreements and any other documents required by operation of applicable
law to perfect the Transactions contemplated herein;
(cccc) "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 relevant Delivery Date, copies of which will be
attached hereto as Schedule 11.2(b)(ii).
ARTICLE II - PRELIMINARY AGREEMENT FOR FUTURE ACQUISITION
2.1 Future Acquisition Agreement. The Parties hereby record and declare
that, subject to the fulfillment of the Condition Subsequent referred to in
Section 2.2 below, this Preliminary Agreement constitutes a binding agreement:
(a) to enter into binding Share Purchase Agreements for the sale and
acquisition of the entire Equity Rights in and to the Development Companies upon
the occurrence of the relevant CP Satisfaction Date in respect of each
Development Project, all on the terms of and in accordance with the provisions
of Section 11.3 below; and
(b) which governs the respective rights and obligations of the Parties
during the Construction Period prior to the Delivery Date; and
(c) which governs the respective rights and obligations of the Parties
following the Delivery Date in respect of the Development Companies and/or the
Development Projects.
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2.2 Conditions Subsequent to Validity.
Conditions Subsequent
(a) Notwithstanding anything to the contrary contained in this
Preliminary Agreement, it is hereby specifically agreed and understood that it
shall be a condition to the continuing validity of this Agreement that :
(i) As soon as possible, but in any event by not later than a
date 3 (three) months following the Execution Date, PCE shall have furnished
Purchaser with the following materials (collectively, the "PROJECT PORTFOLIO")
in respect of each of the Development Projects, where relevant, namely : (AA)
the valid Building Permit, together with complete set of the Building Permit
plans and designs and technical specifications for each of the Development
Projects, which shall be in substantial compliance with the conceptual designs
and floor plans attached hereto as exhibits to the Property Schedule, provided
that the Building Permits have been issued at that time, and PCE shall furnish
the conceptual plans and designs of the Development Project as currently
updated; and (BB) the master plans ("plomau") showing the layout of the
Development Project in relation to the Project Property, together with access
routes; (CC) the merchandising parameters for each Development Project; and (dd)
any other material reasonably requested by Purchaser pertaining to the planning
and design of the relevant Development Project (the "FIRST CONDITION
SUBSEQUENT"); and
(ii) by not later than a date 12 (twelve) months following the
Execution Date (the "CUT-OFF DATE"), PCE shall have satisfied the Land Ownership
Criteria in respect of each of the Development Properties (the "SECOND CONDITION
SUBSEQUENT").
(b) It is specified for the avoidance of doubt, that the Conditions
Subsequent shall apply on a project by project basis, and the failure to satisfy
in due time a Condition Subsequent with respect to a specific Development
Project shall not have any effect on the remaining Development Projects.
First Condition Subsequent
(c) In the event that PCE shall have failed to deliver the Project
Portfolio by the date specified therein, then and in such event Purchaser shall
be entitled, but not obliged, to terminate this Preliminary Agreement in terms
of the relevant Development Company in terms of the provisions of Section 17.1
below.
(d) Purchaser shall be entitled to analyze the Project Portfolio for a
period not to exceed 3 (three) months from its receipt of the Project Portfolio.
In the event that Purchaser is of the reasonable opinion that the Project
Portfolio is not in substantial compliance with the conceptual designs and floor
plans attached to this Preliminary Agreement as an exhibit to the Property
Schedule, or is not in substantial compliance with the Construction and
Development Parameters Schedule (Schedule 4.2(a)), then and in such event
Purchaser shall furnish PCE with its written notification specifying and
detailing the nature and extent of the planning disputes. In such event the
Parties, acting in good faith, shall use their best endeavours to find mutually
acceptable solutions to such planning disputes within a period of 30 (days) from
the date of Purchaser's written notification as aforesaid, and where necessary
to modify the Building Permits.
(e) In the event that the Parties are unable to reach mutually
acceptable solutions to such planning disputes by amicable means within such 30
(thirty) day period, then and in such event both
11
Purchaser and PCE shall be entitled to terminate this Preliminary Agreement,
insofar as it pertains to the relevant development Project, in terms of the
provisions of Section 17.1 below.
Second Condition Subsequent
(f) PCE shall be required to furnish Purchaser as soon as practicable
but by not later than the Cut-Off Date with its written notice (the "LAND
OWNERSHIP NOTICE") confirming that the Second Condition Subsequent has been
fulfilled in respect of each Development Project Property, and that relevant
Development Company's rights in and to the Project Property are in compliance
with the Land Ownership Criteria in all respects. The Land Acquisition Notice
shall be accompanied by a Land Registry Extract evidencing that Development
Company is recorded as the sole and unencumbered registered owner of the
freehold or leasehold rights in and to the relevant Project Property in
compliance with the Land Ownership Criteria, or alternative documentation
reasonably satisfactory to Purchaser substantiating that the Land Ownership
Criteria have been fulfilled.
(g) In the event that the Land Ownership Criteria have been satisfied
as at the Execution Date, then and in such event the Land Ownership Notice shall
be delivered by PCE to Purchaser on the Execution Date and shall be attached
hereto as SCHEDULE 2.2(G).
(h) Upon the satisfaction of the Second Condition Subsequent, this
Preliminary Agreement shall thereupon continue in full force and effect in
respect of the relevant Development Company and/or Development Project, and the
rights of the Parties in terms of Section 2.2(i) below shall lapse and be of no
further force and effect insofar as they pertain to that Development Company
and/or Development Project;
(i) In the event, however, that the Second Condition Subsequent shall
not have been fulfilled to the reasonable satisfaction of Purchaser by the
Cut-Off Date, then and in such event:
(i) Purchaser shall be entitled, at its option, either: (aa) to
extend the Cut-Off Date by a further period not to exceed an additional 90
(ninety) days; or (bb) to terminate this Preliminary Agreement, insofar as it
pertains to the relevant Development Company, in accordance with the provisions
of Section 17.1 below, without sanction or penalty whatsoever to either Party;
or
(ii) In the event that Purchaser shall have declined to extend
the Cut-Off Date as aforesaid, then and in such event PCE shall also have the
right to terminate this Preliminary Agreement, insofar as it pertains to the
relevant Development Company, in accordance with the provisions of Section 17.1
below, without sanction or penalty whatsoever to either Party.
(j) In the event that the Second Condition Subsequent shall not have
been fulfilled to the reasonable satisfaction of Purchaser by the expiry of the
additional 90 day period referred to in Section 2.2(i)(i)(i) above, Purchaser
shall be entitled either : (aa) to terminate this Preliminary Agreement, insofar
as it pertains to the relevant Development Company, in accordance with the
provisions of Section 17.1 below, without sanction or penalty whatsoever to
either Party; or (ii) to open discussions with Vendor, in which case the Parties
will negotiate in good faith within a period ending 30 (thirty) days following
the expiry of such additional 90 day period, with a view to cure, overcome
and/or neutralize (if necessary, through a price reduction and/or the provision
of adequate guarantees) the matter that prevents the Second Condition Subsequent
from being satisfied.
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(k) It is however specified that nothing in this Section 2.2 shall
relieve any Party of liability for any breach of its undertakings and
obligations in terms of this Agreement, where such breach is the cause for the
failure to fulfill the Conditions Subsequent as aforesaid..
Disputes
(l) The Parties undertake that they shall use their best endeavours
and shall act reasonably in attempting to resolve and overcome any disputes
which may arise between them pertaining to and/or arising out of the
fulfillment, or non-fulfillment, of the Conditions Subsequent abovementioned.
(m) However, in the event that the Parties shall not succeed in
resolving such disputes amicably, then either Party shall be entitled to refer
such disputes to the Arbitrator in terms of Section 18.3 below.
2.3 Undertakings to execute the Share Purchase Agreements
(a) The Parties hereby agree and respectively declare that the Share
Purchase Agreements in the form and text attached hereto as Schedules 11.3(a)(A)
and 11.3(a)(B) respectively are in a form which has been negotiated between them
and agreed as to all of its material contents and that, with the exception of
the matters set out in Section 2.3(b) below, no further alterations or additions
to the Share Purchase Agreements may be carried out prior to the signing and
execution thereof.
(b) Prior to or on the date of signing of the Share Purchase Agreement
in accordance with the provisions of Section 11.3(a) below, the following
information and/or alterations will be incorporated into the Share Purchase
Agreement, namely,:
(i) the date of the execution of the Share Purchase Agreement
shall be the Delivery Date;
(ii) The price to be paid in respect of the acquisition of the
Equity Rights which are the subject of the relevant Share Purchase Price, shall
be the Initial Delivery Purchase Price for the relevant Development Company
determined in terms of Sections 7.2 to 7.4 below;
(iii) the attachment of the Closing Protocol as a schedule to the
Share Purchase Agreement, provided, however, that if such completion and
updating shall reveal or constitute an MAE Event (as defined in Section 14.2
below), then and in such event : (aa) the Parties shall act reasonably and in
good faith to remedy such event, including without limitation the granting of
specific indemnities to Purchaser; and (bb) if the Parties are unable to resolve
such event, Purchaser shall be entitled to exercise its Withdrawal option in
terms of Article XIV below;
(iv) any amendments to the Share Purchase Agreement where such
amendments are made necessary by requirements or conditions imposed by any
Governmental Body in the course of the issuance and processing of the Building
Permit and/or the Operating Permit (it being agreed that in such circumstances,
PCE shall inform Purchaser of any such changes without undue delay and the
Parties shall as soon as possible thereafter use their reasonable endeavours in
order to reach agreement with regard to the necessary amendments to the Share
Purchase Agreement); and
(v) the completion of any other parts of the text of the Share
Purchase Agreement which are indicated in the Share Purchase Agreement by square
brackets ([....]).
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(c) The Parties hereby irrevocably undertake to each other that,
subject to the Conditions Precedent for Delivery being satisfied, or waived by
Purchaser, in accordance with the provisions of Section 5.3 below, by not later
than the Delivery Date they shall: (i) complete those matters detailed and
specified in Section 2.3(b) above; and (ii) sign and duly execute the Share
Purchase Agreements.
2.4 Joinder of Additional or Alternative Purchaser
(a) Klepierre declares that it is its intention that each of the
Development Companies shall be acquired by one or more separate purchasers, who
shall be controlled subsidiaries of Klepierre or of any entity wholly owned by
Klepierre. Accordingly, Klepierre shall have the right at any time to join its
wholly owned subsidiaries as parties to the Transaction Agreements, either: (i)
as additional purchasers jointly and severally together with Klepierre; or (ii)
as alternate purchasers in the place and stead of Klepierre; (hereinafter
referred to as "ADDITIONAL PURCHASER(S)"). PCE hereby unconditionally agrees to
the joinder of such Additional Purchaser(s). No further assignments shall be
permitted in terms of this Section.
(b) The joinder of the Additional Purchaser(s) as a party to the
Transaction Agreements as aforesaid shall be by way of written notice to be
furnished by Klepierre to PCE, accompanied by a Deed of Accession and Joinder in
the form and text attached hereto as SCHEDULE 2.4(B), duly signed and executed
by the Additional Purchaser pursuant to which it shall assume all of the rights,
interests, duties and obligations of Klepierre and unconditionally agree to be
bound by the terms, provisions and conditions of the Transaction Agreements,
including specifically but without limitation any waivers and releases made by
Klepierre in terms hereof and/or in connection herewith. The Deed of Accession
and Joinder shall be accompanied by a legal opinion in respect of such joined
party substantially in the form and text attached hereto as Schedule
11.2(c)(vi).
(c) Upon the joinder of such Additional Purchaser(s), the following
provisions shall apply.
(i) All references to "Purchaser" in the Transaction Agreements
shall be deemed to refer to Klepierre and such purchasing entities, jointly and
severally, and all provisions of the Transaction Agreements shall be interpreted
and construed accordingly, save where the context clearly indicates a contrary
intention.
(ii) Both Purchaser and any Additional Purchaser shall be liable
jointly and severally in terms of the Transaction Agreements;
(iii) However, for all purposes hereunder, the aggregate of the
rights and interests of all purchasing entities shall under no circumstances
exceed the rights and interests of Klepierre pursuant to the provisions of the
Transaction Agreements. By way of clarification, and without derogating from the
generality of the aforegoing, the cumulative rights and interests of all
purchasing entities shall not exceed in the aggregate the rights and interests
of Klepierre in terms of the provisions of the Transaction Agreements.
(d) The provisions of this Section shall not derogate in any manner
from the extent or validity of the Parent Guarantee furnished by Klepierre
pursuant to the provisions of Section 3.5(b) below, or the Payment Guarantee to
be furnished in terms of the provisions of Section 7.7 below.
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ARTICLE III - THE TRANSACTION
3.1 Purchase and Sale. Subject at all times to: (i) the fulfillment of the
Condition Subsequent in terms of Section 2.2 above; and (ii) the fulfillment or
waiver of all of the Conditions Precedent to Delivery in terms of the provisions
of Section 5.3 below; and (iii) the signing and execution of the Share Purchase
Agreements; on each of the respective Delivery Dates the Parties shall execute,
perform and consummate the following transactions:
(a) Purchase and Sale of the Development Company. Upon the terms and
subject to the conditions set forth herein and in the Share Purchase Agreement,
at the Closing Purchaser shall irrevocably purchase from PCE, and PCE shall
irrevocably sell, convey and transfer to Purchaser, the entire Equity Rights
held by PCE (representing on the Delivery Date 100% of the entire Equity Rights
in and to the relevant Development Company as indicated in the Rights
Acquisition Schedule), free and clear of all Liens except for Financing Bank
Securities.
(b) Reimbursement of Shareholder Loans. Upon the terms and subject to
the conditions set forth herein, at the Closing (immediately after the purchase
and sale of the Equity Rights in the Development Companies as set forth in
paragraph (a) above), Purchaser shall cause the relevant Development Company to
reimburse the full amount of the Shareholder Loan Amount recorded in the Books
and Records of the relevant Development Company on the Delivery Date as an
Indebtedness due and payable to PCE or its Affiliates (all as detailed and
specified in the Shareholder Loan Schedule. The Shareholders' Loans shall be
free and clear of all Liens. In order to fascilitate the reimbursement of the
Shareholder Loans as contemplated herein, Purchaser acting in the name and on
behalf of the Development Company and upon its written instructions, shall
execute payment of the Shareholder Loan Amount directly to PCE. In the event
that the recorded creditor of any Indebtedness which is to be reimbursed as a
Shareholders' Loan in terms of this Section is an Affiliate of PCE, then and in
such event PCE shall cause such Affiliate to accept such reimbursement and to
execute any relevant agreement so as to effect the reimbursement of said loan as
contemplated in terms of this Section.
3.2 Construction Loan Facilities.
(a) PCE undertakes that it shall cause the Development Company to
execute full repayment of the Construction Loan Facilities, which shall have
been taken out by the Development Company during the Construction Works as
contemplated in Section 4.4 below, on or before but in any event by not later
than the Delivery Date.
(b) Alternatively, PCE shall have the option to assume liability for
the repayment of the Construction Loan Facility, provided that the Financing
Bank furnishes the Development Company with a full, unconditional and
irrevocable release, and provided further that the Financing Bank Securities are
terminated by not later than the next scheduled interest and prepayment
("roll-over") date
(c) PCE shall be liable for and shall pay all prepayment costs
associated with and/or incurred in connection with the repayment of the
Construction Loan Facilities (including, without limitation, all prepayment
fees, arrangement fees, syndication fees, financial management fees and all
other costs and expenses including legal costs which shall fall due for payment
in consequence of the prepayment of the Construction Loan Facilities, as well as
"breakage costs" in the event that the Construction Loan facilities are repaid
other than on the next scheduled prepayment date), subject however to the
provisions of Section 2.1 of that certain Framework Agreement entered into
between the Parties on even date. The provisions of this
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section shall not apply to the extent that such prepayment costs and breakage
costs have been fully provisioned in the Proforma Development Closing Accounts
and the Definitive Development Closing Accounts.
3.3 The Lublin Option Agreement.
(a) On the Execution Date, the Parties shall sign and duly execute
that certain Lublin Option Agreement in the form and text attached hereto as
SCHEDULE 3.3, in terms of which PCE shall award options to Purchaser to acquire
: (i) 100% of the Equity Rights in and to the Lublin Plaza Development Company
(Movement Poland SA); or (ii) in circumstances specified therein, 50% of such
Equity Rights indirectly by the acquisition of PCE's 50% shareholding in the
sole shareholder of Movement Poland SA..
(b) In the event that Purchaser shall exercise the option awarded to
it in terms of the provisions of Section 3.3(a)(i) above and those of the Lublin
Option Agreement, then and in such event the Lublin Development Company shall be
deemed to have been included within the ambit of these Transaction Agreements,
the terms and provisions of which shall govern the construction and delivery of
the Lublin Development Project and the sale and acquisition of the Lublin
Development Company; and
(c) In the event, however that Purchaser shall exercise its option in
terms of Section 3.3(a)(ii) above, then and in such event a Conditional Share
Purchase Agreement shall be prepared and signed between Purchaser and PCE in the
manner provided for in the Lublin Option Agreement.
(d) Upon the exercise of either of the options abovementioned, PCE
shall assume full liability for the performance of the obligation made by
Movement Poland SA in favour of the Municipality of Lublin in terms of the
ground lease to construct a hotel above or adjacent to the Lublin Development
Project, and shall furnish Purchaser with a full indemnity against such
liability and/or against any harm which may be suffered by Purchaser and/or by
Movement Poland SA in consequence of the failure to construct the hotel as
aforeaid.
3.4 Sosnoweic - Supermarket. On the Execution Date, PCE shall furnish
Purchaser with a legal opinion issued by a reputable Polish law office,
confirming that Sosnoweic Plaza Sp.z.o.o. is entitled to construct a supermarket
within the Sosnoweic Development Project of up to 2,000 square meters.
3.5 General Provisions.
(a) EMI Parent Guarantee. On the Execution Date, PCE shall cause EMI
to furnish Purchaser with the EMI Parent Guarantee in the form and text attached
hereto as SCHEDULE 3.4(A), in terms of which EMI shall guarantee the prompt,
timely and complete performance by PCE of its obligations and undertakings
pursuant to the provisions of this Preliminary Agreement and the Ancillary
Agreements, and specifically including the Lublin Option Agreement. The EMI
Parent Guarantee shall remain valid until the fulfillment by PCE of all of its
obligations under this Preliminary Agreement and the Ancillary Agreements.
(b) Klepierre Parent Guarantee.
(i) By affixing its signature to this Preliminary Agreement and
the Ancillary Agreements, Klepierre hereby unconditionally guarantees the full,
prompt, timely and complete performance by Purchaser and all Additional
Purchasers of all of theirundertakings, obligations and duties in accordance
with the terms and conditions of the Transaction Agreements, and undertakes to
indemnify PCE against all
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losses, reasonable costs, charges and expenses which it may sustain or incur by
reason of the failure of the Purchaser and/or the Additional Purchasers to
perform their obligations and undertakings, in whole or in part, and in a timely
manner.
(ii) Klepierre undertakes that it shall not avail itself of the
rights afforded to it under any provision of the constitutive documents of
Purchaser and the Additional Purchasers which restricts the ability of Klepierre
to guarantee the obligations of the Purchaser and/or the Additional Purchasers
in terms of this Section.
(iii) Any approval, consent, waiver or concession made or given
by Klepierre either before or after the Closing Date shall be deemed to be
binding upon each of the Additional Purchasers, jointly and severally.
(iv) In addition, Klepierre undertakes to ensure that its wholly
owned subsidiary through whom it holds the Additional Purchasers shall take all
steps required or necessary under applicable law and/or its corporate governance
instruments and those of the Additional Purchasers, so as to enable Purchaser
and/or the Additional Purchasers to fulfill their undertakings and obligations
pursuant to the provisions of this Agreement.
(v) The provisions of this Section 3.4(b) shall not derogate in
any manner from, and shall be in addition to, the obligations of Klepierre
and/or the Additional Purchasers arising out of and/or in connection with the
Payment Guarantee to be furnished in terms of the provisions of Section 7.7
below.
(c) Taxes.
(i) Subject to the provisions of sub-section (iv) below,
Purchaser shall bear all acquisition or transfer taxes, if applicable, which are
imposed in any jurisdiction by operation of applicable Law on Purchaser with
respect to the acquisition of the Equity Rights of the Development Company as
contemplated in this Preliminary Agreement and/or the Share Purchase Agreement.
(ii) 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 Development Company contemplated in this Preliminary
Agreement and/or the Share Purchase Agreement.
(iii) 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.
(iv) For the avoidance of doubt, the obligation to pay Taxes
includes the payment of fines, penalties and default interest in the event that
such taxes are not paid within the time prescribed by operation of Law.
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(d) Transaction Tax. Transaction Tax related to the Transactions
imposed under applicable Law in Poland and in the Czech Republic, if any, shall
be borne exclusively by PCE. For the avoidance of doubt, stamp duties which may
be imposed upon Purchasers under French or Dutch Law are subject to the
provisions of Section 3.5(c)(c)(i) above. However, in the event that Taxes shall
be imposed by any Government Body competent to do so by reason of the
reimbursement of the Shareholders Loans in the manner contemplated in Section
3.1(b) above (rather than by way of the subrogation of such loans), then and in
such event all such taxes shall be for the sole account of Purchaser.
ARTICLE IV - CONSTRUCTION OF THE DEVELOPMENT PROJECT
4.1 Undertaking to Construct and Complete.
(a) PCE hereby undertakes to cause the Development Company to
construct and complete the Development Center, in accordance with the Building
Permits and the Approved Plans and Designs, and same within the Construction
Period (subject to the provisions of Section 4.7 below (Excusable Delay), all in
accordance with and subject to the terms and provisions of this Preliminary
Agreement.
(b) PCE shall procure that the Development Company shall develop,
construct and complete the Development Project in accordance with the Agreed
Plans and Designs approved by Purchaser in terms of Section 4.2 below, and fully
in compliance with the Building Permits. In order to facilitate same, PCE shall
cause the Development Company to:
(i) execute agreements with reputable and reliable contractors,
sub-contractors, architects, engineers, suppliers, project managers, project
supervisors and surveyors, and use its reasonable commercial endeavours to
ascertain that same are in good standing and solvent, adequately insured
coverage and with the necessary resources to timely perform the construction
works in a timely manner (collectively "CONTRACTORS") on market terms and
conditions which comply with the Prudent Industry Practice; and
(ii) take out the Construction Loan Facility in terms of the
provisions of Section 4.4 below
4.2 Approved Plans and Designs. In respect of the Pilsen Development
Project only, it is agreed as follows:
(a) prior to the issuance of the building permits and the commencement
of construction of the Development Project, Klepierre, Purchaser and PCE shall
agree upon and approve the plans and designs and the technical specifications of
the Development Project (such approval not be unreasonably withheld or delayed
by any of the Parties). The plans and designs and the technical specifications
which shall be in substantial conformity with the Construction and Development
Parameters attached hereto as SCHEDULE 4.2(A), due regard being had to the
specific attributes and exigencies of the specific Development Projects which
are the subject matter of this Preliminary Agreement.
(b) PCE shall furnish Purchaser with copies of the detailed plans and
designs of the Development Center by not later than a date which is the later
of: (a) a date 60 (sixty) days following the date of this Preliminary Agreement;
and (b) a date which is 60 (sixty) days following the date of the Land Ownership
Notice referred to in Section 2.2(f) above. Purchaser shall be required to
approve the plans and designs
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and the technical specifications within 60 (sixty) days of their submission as
aforesaid, or alternatively to furnish PCE within such period with its comments,
reservations and suggestions for amendment and modification of the plans and
designs. In the latter event, PCE shall give positive consideration to such
comments, reservation and suggestion and shall within and additional 15
(fifteen) days re-submit the plans and designs and the technical specifications
to Klepierre and Purchaser for their refusal and approval by not later than a
date 15 (fifteen) days after such re-submission.
(c) Notwithstanding the provisions of Section 4.2(b) above, any
proposals for the modification or amendment of the plans and designs proposed by
Purchaser shall require the prior approval of PCE, such approval not to be
unreasonably withheld or delayed. However, it is agreed and understood that if
any such proposals which would cause a material increase in the construction
budget, the Parties shall act reasonably and in good faith to find a mutually
acceptable planning solution within a period of 21 (twenty one) days, failing
which either Party shall be entitled to terminate this Preliminary Agreement.
For the purposes of this section, a budget increase exceeding 1% (one percent)
will be considered as materal..
(d) Notwithstanding the aforegoing: (i) PCE hereby agrees to use its
best endeavours so as to modify the entrance of the Sosnowiec Development
Project in accordance with the plans set forth in SCHEDULE 4.2(D)(A),, and to
modify the plans of Novo Plaza in accordance with the guidelines set forth in
SCHEDULE 4.2(D)(B); and (ii) the Parties will use their joint efforts to
re-locate the supermarket on the basement of the Pilsen Development Project by
not later than the date of approval of the Approved Plans and Designs.
(e) The plans and designs and the technical specifications which shall
have been prepared and approved by the Parties in accordance with the aforegoing
provisions such thereafter constitute the Approved Plans and Designs.
(f) Any modifications to the Approved Plans and Designs, or any
modifications to the Building Permits, shall require the advance approval of
Purchaser.
4.3 Building Permits. To the extent the Building Permits shall not have
been issued prior to the date hereof:
(a) It shall be the responsibility of PCE to cause the Development
Company to apply for and obtain the Building Permits required by operation of
law to commence, execute and complete the Construction Works.
(b) PCE undertakes to cause the Development Company to submit all
relevant applications to the Competent Authorities required under applicable Law
and/or the requirements of such Competent Authorities for the award of the
Building Permits. Furthermore, PCE shall cause the Development Company to
process all submissions, including the requests and demands of the Competent
Authorities pertinent to the award of the Building Permits, in a diligent and
expeditious manner so as to ensure that the Building Permits are issued by not
later than a date 6 (six) months following the date of the Land Acquisition
Notice (the "BUILDING PERMIT TARGET DATE").
(c) In the event that, notwithstanding the diligent and commercially
reasonable efforts of PCE and the Development Company, the Building Permits in
respect of the Approved Plans and Designs shall not have been issued by the
Building Permit Target Date, then and in such event Purchaser may in its sole
discretion by mutual agreement elect either: (i) to extend the Building Permit
Target Date by an additional
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period not to exceed 6 (six) months; or (ii) terminate this Preliminary
Agreement insofar as it pertains to the relevant Development Project. If the
Building Permits have still not be awarded on the expiry of such extended
period, then and in such event the right to either extend the period further, or
to terminate this Preliminary Agreement insofar as it pertains to the relevant
Development Project, shall rest with Purchaser only.
(d) The date upon which the final, valid and lawful Building Permits
being not susceptible of any challenge or withdrawal are issued to the
Development Company shall hereinafter be referred to as the "BUILDING PERMIT
DATE".
4.4 Construction Loan Facilities
(a) PCE shall procure that each Development Company shall take out
construction loan financing in an amount sufficient to enable the execution and
completion of the Construction Works. In this regard, it is agreed that:
(i) PCE shall cause the relevant Development Company to execute
all such agreements and other documents with the Financing Banks as are required
for the award of the Construction Loan Facilities, and shall ensure that all the
conditions precedent for draw down are satisfied in good time;
(ii) PCE shall cause the relevant Development Company to duly and
properly create, perfect and register the Financing Bank Securities; and
(iii) PCE shall make, award and transfer to the relevant
Development Company Shareholder Loans in such amounts as are sufficient to
comply with the "owner's equity requirements" specified in the Construction Loan
Facility Agreements, and same in good time so as to enable draw down on the
Construction Loan Facility itself in accordance with its terms.
(b) PCE undertakes to ensure that at no time during the Construction
Works will the relevant Development Company be held to be in breach of its
undertakings and/or financial covenants under the Construction Loan Facility
Agreements, or that an event of default shall be declared by the Financing Bank
in question. Should that eventuality arise, PCE undertakes to take such steps,
or to cause the Development Company to take such steps, as are necessary to
remedy the breach or event of default within the designated remedial period.
(c) For the avoidance of doubt, it is specified that:
(i) PCE shall be entitled to cause the creation and registration
of the Financing Bank Securities, including specifically the registration of a
mortgage over the Development Property and a pledge over the Equity Rights of
the relevant Development Company, and Purchaser hereby specifically agrees
thereto, provided however that nothing in this sub-section contained shall be
deemed to relieve PCE of its obligations in terms of Sections 3.2(b) and 11.3(c)
hereof to cause the termination and release of such Financing Bank Securities,
in their entirety, at the Delivery Date; and
(ii) PCE shall ensure that the Construction Loan Facility
Agreements allow for pre-payment of the Construction Loan Facility on no more
than 90 (ninety) days advance written notice, if and to the extent possible
without Pre-Payment Amounts (as defined in Section 8.11(c) below).
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4.5 Construction Works
Commencement
(a) PCE undertakes to cause the Development Company to commence the
execution and performance of the Construction Works as expeditiously as possible
following the Building Permit Date. To that end, PCE undertakes to cause the
Development Company -
(i) To execute all such contracts and agreements with the
Contractors Agreements as are necessary to facilitate the execution and
completion of the Construction Works in terms of this Article IV in a timely
manner (the "CONTRACTORS' AGREEMENTS");
(ii) To execute all agreements and documents required to
facilitate draw down on the Construction Loan Facility in terms of Section 4.4
above in a timely manner; and
(iii) To ensure that all Contractors mobilize in good time.
(b) Upon the commencement of the execution of the Construction Works,
the Project Manager shall issue a "CONSTRUCTION START NOTICE" to Purchaser and
to PCE, confirming that the Construction Works have commenced.
No Start
(c) In the event that the Construction Start Notice shall not have
been issued by the later of a date 6 (six) months after the Building Permit
Date, or the first (1st) anniversary of the Execution Date, by reason of the
refusal or neglect of Purchaser to approve the plans and designs,
notwithstanding that (i) Condition Subsequent set forth in Section 2.2 above has
been fulfilled; and (ii) the plans and designs are substantially in accordance
with Construction and Development Parameters (Schedule 4.2(a)) and (iii) PCE
complied with provisions set forth in Section 4.2, then and in such event PCE
shall have the right to terminate this Preliminary Agreement insofar as it
pertains to the relevant Development Center, and same without derogating from
its rights to claim compensation for the damages suffered and the costs and
expenses incurred by it in consequence of such unreasonable delay.
(d) In the event, however, that the Construction Start Notice shall
not have been issued by a date 6 (six) months following the later of the
Execution Date or the Building Permit Date, notwithstanding that: (i) Conditions
Subsequent set forth in Section 2.2 above have been fulfilled; and (ii) the
Approved Plans and Designs have been approved by Purchaser; and (iii) the
Building Permits have been issued; then and in such event Purchaser shall have
the right to terminate this Preliminary Agreement insofar as it pertains to the
relevant Development Center, and same without derogating from its rights to
claim compensation for the damages suffered and the costs and expenses incurred
by it in consequence of such unreasoned and/or unreasonable delay.
Construction Time Table
(e) By no later than the date of the Commencement Start Notice, PCE
shall cause the Development Company to furnish Purchaser with a detailed
Construction Time-Table, including milestone dates and time-flow charts,
specifying the proposed construction timetable for the execution of the
Construction Works, and identifying the target date for the Practical Completion
of the Construction Works.
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Purchaser shall be entitled to comment upon, and to make recommendations in
respect of, the Construction Schedule, and PCE and/or the Development Company
shall give positive consideration to such comments and recommendations.
Execution of the Construction Works
(f) PCE represents and warrants that it possesses the required
professional skills and competence to cause the execution of the Construction
Works, and that it is and will be capable of mustering the resources necessary
to the perfect performance and completion of the Construction Works by the
Development Companies and the Contractors within the Construction Time Table.
(g) PCE's primary and fundamental obligation shall be to cause the
construction and completion of the Construction Works, through the agency of the
Development Companies, in full and proper compliance with the Approved Plans and
Designs, the Building Permits, Prudent Industry Practice and all relevant
provisions of applicable law.
(h) PCE shall ensure that a suitably qualified Project Manager is
available at all relevant times during the execution of the Construction Works
so as to ensure professional direction and supervision of the conduct of the
works.
(i) In carrying out all its obligations under this Article, PCE shall
exercise all reasonable skill, care and diligence and put into effect all
necessary means to attain the proper performance of the Construction Works and
the development of the Development Project(s). PCE further covenants that the
detailed plans, designs and specifications of the Development Projects shall
conform in all respects to the Building Permits and the Approved Plans and
Designs, and shall be in compliance with Prudent Industry Practice and the
obligations imposed upon the Development Company and/or PCE under their
insurance policies or by the Building Permit and/or by any Governmental Body
with jurisdiction and authority over the Construction Works.
(j) In purchasing the fittings, fixings and equipment, PCE shall cause
the Development Company to conform to the quality requirements specified in the
technical specifications, and take into consideration the ease and cost of
maintenance of said fittings, fixings and equipment.
(k) Where any law, regulation, by-law, or insurance policy provision
requires that a separate check of the design or a test shall be carried out
prior to the construction of any permanent and temporary works, PCE shall cause
such tests to be executed in a timely manner so as not to cause delays in the
execution of the Construction Works and/or disrupt the Construction Time Table.
(l) PCE shall assume responsibility for the safety of the design and
for the adequacy stability and safety of the Development Center site operations
and methods of construction.
(m) PCE shall take all the necessary steps to ensure that the
Development Company shall not be held in breach of any Contractors' Agreements,
and that the conduct and execution of the Construction Works shall not be
delayed or disrupted, subject however to the provisions of Section 4.7 below.
However, the provisions of this sub-section shall not be applicable to
legitimate and bona-fide disputes with the Contractors or any of them pertaining
to the quality of the workmanship, compliance with the provisions of the
relevant Contractors' Agreements, or entitlement to payment of the contract
price for those or any other reasons.
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(n) PCE undertakes to keep the Representatives of Purchaser informed
on a regular basis as to the progress of the execution of the Construction
Works, and will allow such Representatives access to the works site on
reasonable advance notice. PCE shall give positive consideration to
recommendations and advise given by Purchaser's Representatives during the
course of the Construction Works, it being understood however that the rights of
inspection and access enjoyed by Purchaser's Representatives shall not impose
upon PCE any obligation to follow the comments or recommendations of Purchaser's
Representatives, but nor shall it restrict in any way PCE's Development
Liability in terms of the provisions of Section 4.8 below.
(o) In addition, PCE shall afford to any supervisor or observer
appointed by the insurance carrier issuing the latent defect insurance cover
referred to in Section 4.6(a) below reasonable access to the construction site
so as to enable them to fulfill their duties and responsibilities.
(p) In the event that the execution of the Construction Works fall
into critical delay for reasons which would not justify a claim of Excusable
Delay under Section 4.7 below, PCE undertakes to cause the Development Company
and/or the Contractors to exert such additional efforts, including without
limitation the conduct of night work, in order to ensure that the Construction
Works are completed within the Construction Time-Table.
4.6 Insurance
(a) Purchaser shall be entitled to demand that the Development Company
shall take out a ten-year insurance coverage against inherent construction
defects under terms and conditions acceptable to Purchaser. All premiums and
supervision costs in respect of the creation and maintenance of such policies
and which are due under such policies shall be borne solely by Purchaser. Where
so required under the said insurance policy, PCE undertakes to ensure that all
Contractors' Bonds (as defined in Section 4.8(e) below) are assigned to the
insurance company by the Development Company, and otherwise to perform all acts
and things required in order to ensure the validity of the said policy, provided
that all costs and expenses incurred in respect thereof shall be for the sole
account of Purchaser.
(b) In addition, PCE shall ensure that the Development Company shall
take out and maintain such insurance policies as are prudent and necessary for
the developer of the Development Project, and in any event such policies which
it shall undertake to take out in terms of the Contractor's Agreements.
4.7 Excusable Delay (Force Majeure)
(a) PCE shall not be held liable or responsible if the execution of
the Construction Works and/or the performance of any of its obligations under
this Article is prevented or delayed due to causes beyond its reasonable control
and/or which it could not reasonably have been expected to anticipate, including
but not limited to fire, strike, war, insurrection, act of God, law, regulation
and embargo of a Competent Authority, riot, severely inclement weather,
restriction on the use of power or any other cause beyond its reasonable control
and not due to PCE's own fault or negligence (an "EXCUSABLE DELAY"), provided
however that PCE:
(i) gives notice of the event of Excusable Delay to Purchaser
promptly after its occurrence;
(ii) uses its reasonable efforts to overcome, mitigate and remove
the cause of the event preventing or delaying performance;
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(iii) continues the performance of all its obligations that are
not prevented or delayed; and
(iv) upon cessation of the Excusable Delay, promptly performs or
completes performance of the obligations which were so prevented or delayed.
(b) If an event of Excusable Delay occurs, all dates specified herein
for the fulfillment by PCE of its undertakings shall be deemed automatically to
have been postponed by a period equivalent to the duration of such event of
Excusable Delay.
(c) If PCE is prevented from the performance of any of its obligations
by reason of an Excusable Delay for a period exceeding 6 (six) months, then
after the expiry of the said period of 6 months either PCE or Purchaser shall be
entitled to terminate this Agreement by serving written notice to that effect
upon the other party.
4.8 Development Liability
(a) It is specifically agreed and understood that, as and from the
Delivery Date and at all times thereafter, none of the Development Companies
shall bear any development liability whatsoever arising from and/or in
connection with and/or in respect of the development, construction, completion
and construction maintenance following practical completion, of the relevant
Development Center, and that the situation at and after the Delivery Date should
be as analogous as possible to that of the acquisition by Purchaser of an
existing operational project.
(b) Immediately prior to the Delivery Date, PCE shall assume full and
unconditional responsibility and liability arising under the Contractors'
Agreements with the Contractors and/or in respect of the construction operations
("DEVELOPMENT LIABILITY"), including specifically, but without limitation, all
of the following, namely: (i) PCE shall be accountable for all the works,
services, faults or omissions of the Contractors; (ii) PCE shall have the
obligation to pay and settle in a timely manner all Contractors' claims arising
out of and/or in connection with the Construction Works and/or the Contractors'
Agreements unless fully provided for in the Proforma Development Closing
Accounts and the Definitive Development Closing Accounts ("CONTRACTORS'
CLAIMS"), provided that nothing herein contained shall prevent PCE from pursuing
legitimate and bona-fide disputes with the Contractors or any of them pertaining
to the quality of their workmanship, compliance with the provisions of the
relevant Contractors' Agreements, or entitlement to payment of the contract
price for those or for any other reasons.; and (iii) PCE shall ensure that the
Contractors fulfill their obligations under the Contractors' Agreements prior to
and following the Delivery in accordance with their respective terms.
(c) In this regard PCE shall indemnify the Purchaser Indemnitees as
provided in Section 16.6 below.
(d) To the extent permitted by local applicable law, PCE shall use its
best endeavours to obtain from the Contractors by no later than the Delivery
Date an estoppel certificate, confirming that the Contractors shall have no
further claims against the Development Company arising out of and/or in
connection with the Construction Works and/or the Contractors' Agreements,
subject to the agreement of the Contractors;
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(e) Subject to the provisions of Section 4.6(a) above, PCE shall
ensure that all performance bonds, maintenance guarantees, and other forms of
securities furnished by the Contractors as security for the fulfillment of their
respective undertakings in terms of the Contractors' Agreement, as well as
construction warranties arising under or mandated by operation of law
("CONTRACTORS' BONDS") will be issued in favor of PCE and/or the Development
Company, jointly and severally.
(f) Any information which PCE had, or could reasonably have had at the
Execution Date shall be deemed, by an irrebuttable presumption, to be in the
possession of PCE. More generally, PCE shall be estopped from making any claim
based on the state or condition of the Development Properties and/or the
construction site, including its subsurface, and surrounding conditions, the
technical constraints, and of local zoning, construction and security
regulations or of any legal theory based on unforeseeability. PCE hereby waives
any right against the Development Companies arising of the inaccuracy or
insufficiency of the information and data provided by the Development Companies
regarding the state or condition of the Development Properties, except with
respect to changes occurred after the Delivery Date or at Purchaser's demand.
ARTICLE V - COMPLETION, OPENING AND DELIVERY
5.1 Practical Completion
(a) PCE shall cause the Construction Works, and each component of the
Construction Works, to be built, tested and brought to a state of Practical
Completion by not later than a date which is eighteen (18) months from the later
of: (i) the Execution Date; or (ii) the Building Permit Date; (the "TARGET
OPENING DATE") (subject at all times to the provisions of Section 4.7 above).
(b) For all purposes hereunder, the term "PRACTICAL COMPLETION" or
"PRACTICALLY COMPLETE" shall mean: (i) that the Construction Works have been
completed in all material respects in accordance with the Approved Plans and
Designs, the Building Permit, and the terms and provisions of the Contractors'
Agreements, except for those works specified in the Completion Punch List (as
hereinafter defined) which do not detrimentally affect the normal use and
operation of the Development Project; (ii) and (ii) that a legal and valid
Operating Permit which is not susceptible of any challenge or withdrawal on the
CP Satisfaction Date and on the Delivery Date has been issued by the Competent
Authorities which permits the opening of the Development Center to the public at
large, specifically including a temporary permit.
(c) Upon the Practical Completion of the relevant Development Center,
the Project Manager shall send to all of the Parties a "CERTIFICATE OF PRACTICAL
COMPLETION" evidencing that the Development Center is Practically Complete in
terms of this Section 5.1.
(d) Upon the Practical Completion of the Development Project, PCE
shall cause the Development Company and the Contractor(s) to compile a
completion punch list ("COMPLETION PUNCH LIST") itemizing all those works which
are to be executed and completed by PCE through the agency of the Contractors
after Practical Completion in order to attain final completion. PCE undertakes
invite a Representative of Purchaser to participate in the compiling of the
Completion Punch List, and to give positive consideration to the demands and/or
recommendations of Purchaser.
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(e) PCE further undertakes to ensure that the works specified in the
Completion Punch List are executed and completed within a period not to exceed 3
(three) months from the date of Practical Completion, save in respect of such
works the completion of which is mandated within a shorter period by Order of an
Government Body, or such works the non-performance of which would constitute an
offense under applicable Law or regulations.
(f) Any matters regarding the Practical Completion of the Development
Project in respect of which this Preliminary Agreement is silent, shall be
resolved in accordance with the applicable FIDIC standards.
5.2 Opening
(a) It is hereby specifically agreed and understood that PCE shall be
entitled to cause the relevant Development Company to commence the commercial
operations of the relevant Development Center, and to open the Development
Center to the public at large, immediately upon the Practical Completion of the
Development Center in question, notwithstanding that the CP Satisfaction Date
shall not yet have occurred. The date of the commencement of the commercial
operations of the Development Center as aforesaid shall hereinafter be referred
to as the "OPENING DATE".
(b) During the interim period between the Opening Date and the
Delivery Date, PCE undertakes to ensure that the Development Projects shall be
kept and maintained in a good and proper state of maintenance and repair (fair
wear and tear excepted).
(c) Not less than 6 (six) months prior to the scheduled Opening Date,
the Development Company shall conclude a Patrimonial Management Agreement with
the Management Company in its standard form, subject however to the lease up
rights enjoyed by PCE in terms of the provisions of Article VI below, in terms
of which : (1) the Management Company shall be entitled to fee to be agreed in
respect of services rendered prior to the Opening Date; and (ii) the Management
Company shall be entitled to receive a property management fee equal to 5.1% of
the Gross Rentals in respect of the period following the Opening Date.
5.3 CP Satisfaction Date
(a) In respect of each Development Project, the CP Satisfaction Date
shall be the date upon which all of the following conditions precedent for
delivery (the "CONDITIONS PRECEDENT FOR DELIVERY") have been either fulfilled to
the reasonable satisfaction of Purchaser, or waived by Purchaser in its sole
discretion, namely:
(i) the Land Ownership Criteria shall have been satisfied; and
(ii) the Development Project has been completed in terms of the
Completion Criteria, as defined in Section 1.1(n) above and shall not have been
destroyed or suffered any material damage; and
(iii) the Development Project has been leased up in accordance
with the Lease-Up Criteria, as defined in Section 1.1(rr) above, in relation to
not less than 70% of the gross leasable area of the relevant Development
Project; and
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(iv) with respect to the Novo Plaza (Prague IV) Development
Project only, PCE shall have caused the Development Company to conclude a
principal lease in respect of the "green area" adjacent to the Development
Center (which is currently under sub-lease) directly with the land-owners for a
period of not less than 10 (ten) years and on terms and conditions which are not
globally more onerous for the lessee than those provided for in the current
sub-lease.
(b) PCE shall furnish Klepierre and Purchaser with written notice that
Conditions Precedent for Delivery have been satisfied in full, accompanied by
such documentation as shall reasonably be required in order to substantiate its
assertions, subject at all times to Purchaser's rights to verify the fulfillment
of the Conditions Precedent for Delivery in terms of the provisions of Section
5.4 below. The date of the issuance of such confirming notice by PCE to
Purchaser shall for all purposes hereunder be the "CP SATISFACTION DATE".
(c) Purchaser shall be entitled, in its sole discretion, to waive the
fulfillment of such Conditions Precedent for Delivery, either entirely or on
such terms and conditions as it deems fit.
(d) All and any disputes arising out of and/or in connection with the
fulfillment of the Conditions Precedent for Delivery shall be referred to
arbitration pursuant to the provisions of Section 18.3 below.
(e) Purchaser shall always be entitled, in its sole discretion, to
elect to waive the Condition Precedents for Delivery above by serving written
notice to that effect upon PCE..
(f) Within five (5) Business Days of the occurrence of the CP
Satisfaction Date, Plaza Centers shall serve written notice confirming the same
upon Purchaser. The CP Satisfaction Notice shall be accompanied by documentation
evidencing to the reasonable satisfaction of Purchaser that the conditions
precedent have been satisfied.
(g) In the event that the CP Satisfaction Date shall not have occurred
by a date which 30 (thirty) months following the later of the Execution Date or
the Building Permit Date (the "CP CUT-OFF DATE"), then and in such event the
following provisions shall apply:
(i) PCE shall be obliged to notify Purchaser in writing, by not
later than a date 14 (fourteen) days following the CP Cut-Off Date, that it has
failed to fulfill the Conditions Precedent for Delivery, specifying the reasons
therefor in reasonable detail;
(ii) Purchaser shall be entitled, in its sole and unfettered
discretion, to waive the fulfillment of the Conditions Precedent for Delivery,
in which event the Parties shall thereupon proceed to delivery in the manner and
on the terms specified in this Preliminary Agreement;
(iii) Alternatively, Purchaser shall be entitled at its option to
extend the CP Cut-Off Date by an additional period not to exceed 6 (six) months,
provided that in such event it undertakes to extend the validity of the Payment
Guarantee referred to in Section 7.7 below;
(iv) Without derogating from the aforegoing, the Parties
undertake to co-operate, to act in good faith and to exert their best endeavours
to resolve the inability of PCE to fulfill the Conditions Precedent for Delivery
to their mutual satisfaction (including the granting of indemnities where
appropriate);
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(v) However, in the event that Purchaser shall have declined to
waive the fulfillment of the Conditions Precedent for Delivery, or in the event
that the Conditions Precedent for Delivery have still not been fulfilled at the
extended CP Cut-Off Date as aforesaid, and the Parties are unable to resolve the
deadlock by amicable means as aforesaid, then and in such event, both Purchaser
and PCE shall have the right to terminate this Preliminary Agreement, insofar as
it pertains to the relevant Development Project, in terms of the provisions of
Section 17.1 below, provided that nothing hereincontained shall prevent either
Party from referring the dispute to arbitration in terms of the provisions of
Section 18.3 below.
5.4 Supplementary Due Diligence
(a) During the 60 (sixty) day period following the CP Satisfaction
Date, Purchaser shall be entitled to conduct a fully comprehensive due diligence
investigation pertaining to the relevant Development Company and/or the relevant
Development Project, including but not limited to: (i) detailed verification
that the Conditions Precedent for Delivery have been fulfilled to the reasonable
satisfaction of Purchaser; (ii) integrity of title in and to the Equity Rights
in and to the Development Company to be acquired by Purchaser on the Delivery
Date, and the absence of liens, encumbrances and other third party rights
therein and/or thereon, save in respect of the Financing Bank Securities; (iii)
integrity of title in and to the relevant Development Project Property and/or
Development Center, and the absence of liens, encumbrances and other third party
rights therein and/or thereon, save in respect of the Financing Bank Securities
and other Permitted Liens.
(b) PCE shall co-operate, and shall cause the relevant Development
Company to co-operate, with Purchaser so as to enable Purchaser to conduct its
supplemental due diligence investigations in a timely manner and in any event to
conclude same on or before the Delivery Date. All costs and expenses to be
incurred in the conduct of such supplemental due diligence investigations shall
be for the sole cost and expense of Purchaser.
5.5 Delivery
(a) Subject to the consummation of the relevant Transaction in the
manner prescribed in Article XI below, on the Delivery Date PCE shall cause the
transfer and delivery of the possession and control of the Development Project
to the Representatives of the Purchaser. All operating manuals, equipment
guarantees and other relevant documentation pertaining to the operation and
maintenance of the Development Project and the equipments and machineries
comprising part of the Development Project, as well as a set of "As-Built"
drawings, shall be delivered to Purchaser's Representatives within 60 days of
the Delivery Date, provided that PCE shall ensure that Purchasers and the
Development Companies shall have full access to all relevant documentation at
all times following the delivery Date.
(b) The transfer of the possession and control of the Development
Center as aforesaid shall not derogate from the assumption by PCE of the
Development Liabilities in terms of the provisions of Section 4.8 above.
(c) In the event that the CP Satisfaction Date shall fall during the
months of July or August, then and in such event the Delivery Date shall occur
not later than 90 days following the CP Satisfaction Date.
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ARTICLE VI - LEASE UP FOLLOWING DELIVERY
6.1 Lease-Up following Delivery.
(a) During the Lease-Up Period (as hereinafter defined), PCE shall
carry out, at its sole cost and expense, the lease-up and commercialization only
of those units within the relevant Development Center which were vacant as at
the Delivery Date and had not been previously leased prior to the Delivery Date
(hereinafter "NEW LEASES").
(b) Lease-Up of the New Leases shall be carried out in accordance with
the Lease-Up Criteria. PCE shall keep the Management Company fully informed and
in a timely manner of the progress made during the Lease-Up Period by way of
periodic written reports to be issued not less than every 30 (thirty) days. In
addition, PCE shall permit an observer on behalf of the Management Company to
participate in all meetings with the tenants, and shall ensure that the observer
is given reasonable advance notice of the conduct of such meetings so as to
enable his participation.
(c) For the purposes of this Article VI, the term "LEASE-UP PERIOD"
shall mean the period commencing on the Delivery Date and terminating on the
earlier of (i) the 1st (first) anniversary of the Delivery Date; or (ii) the
Lease-Up Break-Off Date (as hereinafter defined).
6.2 Break-Off. Notwithstanding the aforegoing, PCE shall have the option in
its sole discretion to dis-continue its lease-up activities in terms of Section
6.1 above at any time during the Lease-Up Period, provided that it shall be
required to furnish Purchaser, the Management Company and the relevant
Development Company with not less than 30 (thirty) days advance written notice
of its intention to do so, and specifying the date upon which the
dis-continuance of its lease-up activities shall take effect (the "LEASE-UP
BREAK-OFF DATE"). In such event, PCE shall also have the option to determine
that the determination of the Final Development Price Adjustment Date shall
occur simultaneously with the Lease-Up Break-Off Date, and in such event the
Final Development Price Adjustments to be made in terms of the provisions of
Section 7.8 below shall be conducted on the Lease-Up Break-Off Date in respect
of the relevant Development Project.
6.3 General Provisions relating to Lease-Up.
(a) At the Closing, each Development Company and the relevant
Management Company shall award to PCE a special mandate and power of attorney in
agreed form, so as to enable PCE to carry out its lease-up responsibilities in
terms of this Article during the Lease-Up Period. PCE shall be entitled to
delegate all or part of the powers and authorities vested in terms of the said
powers of attorney to a leasing agent, as contemplated in sub-paragraph (b)
below;
(b) PCE shall be entitled to engage the services of a reputable
leasing agent approved by Purchaser in advance, such approval not to be
unreasonably withheld or delayed. Furthermore, subject to Purchaser's rights of
prior approval as aforesaid, PCE shall be entitled to replace or substitute its
leasing agent in its discretion.
(c) PCE undertakes to fulfill its lease-up responsibilities in terms
of this Article in a diligent, timely and efficient manner, and shall cause the
leasing agent so to act.
(d) All units shall be leased to reputable tenants of good standing in
compliance with the Lease-Up Criteria. Unless otherwise approved by Purchaser in
advance, PCE shall systematically and
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exclusively use the Standard Form Lease in respect of all tenants of the
Development Projects (save in respect of those units where lease agreements have
already been finalized or executed under contracts of different format prior to
the Closing Date, or where the use of a different format is contractually
mandated, such as upon the execution of an option by the tenant). PCE undertakes
to report to Purchaser prior to the finalization of any lease negotiation,
specifying the agreements reached and, specifically, any deviations from the
Standard Form Lease, using the standard reporting format attached as Exhibit B
to the Leasing Parameters Schedule.
(e) However, it is agreed and understood that the power of attorney
awarded to PCE will specifically exclude the power or authority to sign and
execute the leases (or any amendment thereto) for and on the behalf of the
Development Companies. PCE shall be required, and hereby undertakes, to present
all Lease Agreements with tenants to the relevant Development Company for
signature and execution. However it is hereby specifically agreed and understood
that: (i) Purchaser and/or the Development Companies may not refuse to execute
any lease in Standard Form Lease which complies with the Lease-Up Criteria; and
(ii) where amendments or modification to the Standard Form Lease are entailed,
and in respect of leases with anchor tenants, the Purchaser and/or the relevant
Development Company may not unreasonably or arbitrarily withhold or delay its
consent to and execution of such lease agreements.
(f) PCE shall render the Lease-Up services in terms hereof without
consideration. Accordingly, Purchaser, the relevant Management Company and the
relevant Development Companies shall be under no obligation to pay any
commissions, commercialization fees or other forms of remuneration to PCE in
respect of such services, nor shall the award of the power of attorney to PCE in
terms of sub-section (a) above be deemed to impose any obligation upon Purchaser
and/or the Development Companies and/or the Management Company to make such
payments. All costs incurred by PCE in the rendering of the Lease-Up Services,
including any fees due and payable to leasing agents appointed by it in terms of
sub-section (b) above, shall be borne and paid solely by PCE.
(g) For the avoidance of doubt, it is further specifically agreed and
understood that the Management Companies will not assume any development
liability whatsoever, and PCE undertakes to ensure that the Management Companies
are kept entirely free of all such liability.
ARTICLE VII - TRANSACTION PRICE AND VERIFICATIONS
7.1 Proforma Development Closing Accounts.
(a) By not later than a date 30 (thirty) days following the CP
Satisfaction Date, PCE shall prepare the proforma closing accounts as at the
Delivery Date in respect of the relevant Development Company, based upon the
Delivery Rentals, and deliver same to Purchaser (the "PROFORMA DEVELOPMENT
CLOSING ACCOUNTS").
(b) The Proforma Development Closing Accounts shall be prepared by PCE
in good faith and consistent with past practice.
(c) The Proforma Development Closing Accounts shall be subject to the
approval of Purchaser within 30 (thirty) days of delivery by PCE as aforesaid,
such approval not to be unreasonably withheld, and in any event not delayed.
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7.2 Development Projects - Calculation of Delivery Purchase Price. Subject
to the provisions of Sections 7.3 and 7.4 below, in respect of each Development
Company, on the Delivery Date and on the basis of the Proforma Development
Closing Accounts, the Parties shall:
(a) determine the Delivery Development Project Value (DDPV) of each of
the relevant Development Company in the manner provided for in Section 7.3
below; and thereafter
(b) calculate the amount of the purchase price in respect of the
relevant Development Company (the "INITIAL DELIVERY PURCHASE PRICES"), which
shall be comprised of - (i) the net asset value of the relevant Development
Company, calculated in accordance with the Restated Net Asset Methodology set
forth in Schedule 1.1(ppp) ("NET ASSET VALUE"); and (ii) its Delivery
Development Project Value.
7.3 Calculation of Delivery Development Project Value (DDPV). As of the
Delivery Date, the Parties shall calculate and determine the Delivery
Development Project Value (DDPV) as follows:
(a) The Parties shall determine the Project Value at Delivery (PDAV)
of the Development Project by applying the Project Value Methodology on the
basis of the Delivery Rentals, capitalized at the Agreed Yields;
(b) If the Project Value at Delivery (PDAV) is equal to or greater
than the Forecasted Development Project Value (FDPV), then the DDPV will be
calculated by applying the following formula: [FDPV] + ([PDAV]-[FDPV]) X 30% =
DDPV;
(c) If, however, the Project Value at Delivery (PDAV) is less than the
Forecasted Development Project Value (FDPV) - then the Delivery Development
Project Value (DDPV) shall be equal to the Project Value at Delivery (PDAV).
7.4 Cap on Delivery Rentals.
(a) Notwithstanding anything to the contrary herein, it is specified
that, with respect to any Development Project, the Delivery Rentals shall be
capped on an individual basis, as follows:
(i) at 1.25 of the relevant unit's Forecasted Rentals with
respect to each unit whose gross leasable area is below 1,000 square meters; and
(ii) at 1.15 of the relevant unit's Forecasted Rentals with
respect to each unit whose gross leasable area is above 1,000 square meters.
(b) It is also specified that Delivery Rentals of the offices and
storage areas comprising part of the Novo Plaza Development Center (Prague IV)
will be capped at the amount of E6.25 (six Euro and twenty five cents) per
square meter per month for the purpose of the calculation of the DDPV for that
project. However, in the event that PCE shall cause the offices spaces of the
Novo Plaza Center to be converted into shop rental units, and Purchaser has
confirmed that in its reasonable opinion such converted units are suitable for
use as commercial retail units, then and in such event : (i) the capped amount
in terms of this section in respect of such converted units will be increased to
E10 (ten Euro) per square meter per month; and (ii) the Parties shall
re-calculate the Forecasted Development Project Value (FDPV) on the basis that
the Gross Rentals of such units will be E10 per month as aforesaid.
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(c) The provisions of Section 7.4(b) above shall apply, mutatis
mutandis in the event that: (i) Klepierre exercises the option awarded to it in
terms of the Lublin Option Agreement; and (ii) areas of the Lublin Plaza
conference center are converted into shop rental units.
7.5 Transaction Prices Schedule.
(a) On the Delivery Date, the Parties shall prepare the Transaction
Price Schedule in respect of each relevant Development Project, and attach same
to this Preliminary Agreement as SCHEDULE 7.5.
(b) The Transaction Price Schedule shall detail and determine the
Initial Delivery Purchase Price to be paid by the Purchaser on the Delivery
Date, calculated as aforesaid, specifying :
(i) Its Delivery Development Project Value (DDPV); and
(ii) Its Net Asset Value; and identifying
(iii) The Shareholder Loan Amount, as reflected in the updated
Shareholder Loan Schedule (the "INITIAL SHAREHOLDER LOAN AMOUNT") .
7.6 Payment of Delivery Purchase Prices.
(a) On the Delivery Date, on the terms and subject to the conditions
set forth in this Preliminary Agreement, as full payment for the transfer of the
entire Equity Rights (100%) in and to the relevant Development Company by PCE to
Purchaser, Purchaser shall pay to PCE the aggregate total of the Initial
Delivery Purchase Price for the relevant Development Company; and .
(b) On the Delivery Date, (immediately after the transfer of the
Equity Rights as set forth in this Agreement) Purchaser shall on the written
instructions of the Development Company, pay the Initial Shareholder Loan Amount
directly to PCE by way of the reimbursement of Shareholder Loan.; and
(c) All amounts paid by Purchaser to PCE on the Delivery Date as
hereinabove specified, shall be subject, as the case may be, to:
(i) The restated Net Asset Value adjustment to be carried out in
terms of the provisions of Section 7.8 below on the basis of the Final
Definitive Closing Accounts; and
(ii) The final adjustments of the Delivery Development Project
Value to be carried out on the Final Adjustment Date in terms of the provisions
of Section 7.9 below.
(d) Payment by Purchaser of the Initial Delivery Purchase Price, and
payment by Purchaser to PCE on behalf of the Development Company of the Initial
Shareholder Loan Amount, shall be effected by wire transfer of immediately
available funds in Euro Currency to such account or accounts as PCE may direct
in its irrevocable payment instructions to be furnished to Purchaser at least 2
(two) Business Days before Closing.
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7.7 Payment Guarantee.
(a) As security for the fulfillment by Purchaser of its undertakings
to execute and/or cause the payment of the Initial Delivery Purchase Price and
the Initial Shareholder Loan Amount at the Delivery Date as contemplated in
Section 7.6 above, Purchaser shall furnish to PCE an irrevocable and autonomous
Payment Guarantee in the form and text attached hereto as SCHEDULE 7.7(A) in
respect of each of the Development Centers (excluding Lublin).
(i) The Payment Guarantee shall be furnished to PCE on a date
which is the later of: (i) the Execution Date; (ii) the date of the fulfillment
of the Condition Subsequent referred to in Section 2.2(a)(ii) above; (iii) the
Building Permit Date referred to in Section 4.3(d); or (iv) in respect of the
Lublin Development Project only, the date upon which the Trigger Notice (as that
terms is defined in the Lublin Option Agreement) is given, provided that the
events specified in sub-sections (ii) and (iii) above have occurred.
(b) The Payment Guarantee shall be issued in respect of the full
amount of the Forecasted Development Project Value for each relevant Development
Company, that is to say in an amount which is equal to the Forecasted Rentals
capitalized at the Agreed Yields.
(c) The Payment Guarantee shall be exercisable -
(i) by mutual agreement of the Parties notified in writing to the
issuing bank, specifying the amount of the Delivery Purchase Price to be paid
out under the Payment Guarantee; or
(ii) on the basis of a written certificate issued by an
independent third party expert on or after the Delivery Date ("CLOSING AGENT")
confirming:
(1) that he has received an expert opinion confirming that
the relevant Development Project has been completed in accordance with
Completion Criteria and in accordance with the provisions of this Preliminary
Agreement; and
(2) that he has received an expert opinion confirming that
the Lease-Up Criteria have been satisfied in accordance with the provisions of
this Preliminary Agreement; and
(3) that he has received an expert legal opinion that the
legal standing of the relevant Development Company and the integrity of title in
and to the Equity Rights to be acquired are as represented and warranted in
Sections 8.8 and 8.9 below, that the Land Ownership Criteria have been
satisfied, and that all Conditions Precedent for Delivery and all conditions for
the Closing of the relevant Transaction have been satisfied, and all PCE's
closing obligations have been performed.; and
(4) that PCE has deposited in escrow with the Closing Agent
all documents and deeds specified in Sections 11.2 and 11.3 below as required by
operation of applicable law for the transfer of the Equity Rights in and to the
relevant Development Company in compliance with the provisions of this
Preliminary Agreement; and
(5) specifying the amount of the Delivery Purchase Price to
be paid out under the Payment Guarantee;
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(d) In order to facilitate the issuance of the Payment Guarantee
and/or its proper exercise on the conditions detailed as specified above, on or
before the Execution Date the Parties shall enter into a detailed agreement with
the Closing Agent in the form and text attached hereto and marked as SCHEDULE
7.7(D) ("the "CLOSING AGENT AGREEMENT"). The Closing Agent Agreement shall
determine, inter alia: (i) the agreed identity of the experts who shall furnish
the Closing Agent with the opinions referred to in Section 7.7(c)(c)(ii) above;
and (ii) the precise criteria which are to be satisfied in order to enable the
issuance of such expert opinions. All expert opinions referred to be delivered
to the Closing Agent in terms of the provisions of the Closing Agent Agreement
to enable the issuance of the Closing Agent's written certificate as aforesaid
shall be unconditional and not subject to any reservations.
(e) In the event that Purchaser shall exercise the rights enjoyed by
it to extend any of the deadline dates provided for herein (including without
limitation the right to extend the Building Permit Target Date or the CP Cut-Off
Date), then and in such event Purchaser undertakes that it shall ensure that the
term of the validity of the Payment Guarantee shall be extended by a period
equivalent to such extended period.
7.8 Post-Closing Purchase Price Adjustments.
Verification of Net Asset Value.
(a) Within thirty (30) days following the Delivery Date (such period
hereinafter referred to as the "VERIFICATION PERIOD"), PCE will prepare the
audited financial statements of the relevant Development Company in accordance
with Polish or Czech accounting standards, as the case may be, and the
Accounting Principles as at the Delivery Date (the "DEFINITIVE DEVELOPMENT
CLOSING ACCOUNTS").
(b) By not later than the last day of the Verification Period, the
external auditors of PCE and the relevant Development Company (who shall be
numbered amongst the "Big Four") shall carry out and complete an audit of the
Definitive Development Closing Accounts.
(c) On the basis of the Definitive Development Closing Accounts,
during the Verification Period PCE will calculate:
(i) Calculate the definitive prices (Net Asset Value only) to be
paid by Purchaser to PCE in respect of the relevant Development Company based
upon the Definitive Development Closing Accounts, in the same manner provided
for in Section 7.2 above by applying the Restated Net Asset Methodology
(Schedule 1.1(ppp)) on the basis of the Definitive Development Closing Accounts
(the "DEFINITIVE DELIVERY PURCHASE PRICE"), it being understood however that the
Delivery Development Project Value [DDPV] will remain unchanged at this time and
will be subject to separate adjustment procedures pursuant to the provisions of
Section 7.9 below; and
(ii) Identify the definitive amounts to be paid by the
Development Company to PCE in respect of the reimbursement of the Shareholder
Loans as specified in Section 7.6(b) (the "DEFINITIVE SHAREHOLDER LOAN
AMOUNTS").
(d) The Parties shall reasonably cooperate with the Transaction
Accountants during the Verification Period in order to enable the auditing of
the audited Definitive Development Closing Accounts.
(e) The reasonable cost of the auditing of the Definitive Development
Closing Accounts shall be borne in equal shares by Purchaser and Vendor
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Review of Definitive Accounts.
(f) The Purchaser's Accountants will have thirty (30) days as from the
expiration of Verification Period (the REVIEW PERIOD") to review the Definitive
Development Closing Accounts, the Definitive Delivery Purchase Price and the
Definitive Shareholder Loan Amounts (collectively the "AUDITED DEVELOPMENT
CLOSING ACCOUNTS"). PCE shall reasonably cooperate with Purchaser's Accountants
in order to enable Purchaser's Accountants to perform the review of the Audited
Development Closing Accounts.
(g) If Purchaser believes that any changes are required to be made to
the Audited Development Closing Accounts (including but not limited to changes
based on differences between the Audited Development Closing Accounts and the
results of the Review) (an "UNCERTAINTY"), Purchaser shall by not later than the
last day of the Review Period give written notice to PCE (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.
(h) The Audited Development Closing Accounts shall be binding and
conclusive upon, and deemed accepted by, Purchaser unless Purchaser shall have
delivered a Dispute Notice to PCE prior to the conclusion of the Review Period
in terms of this section.
Verification Disputes
(i) Any difference of opinion between the Parties and/or between the
PCE's Accountants and Purchaser's Accountants pertaining to the preparation,
verification and review of the Audited Development Closing Accounts with regard
to any item contained therein ("VERIFICATION DISPUTES") which cannot be promptly
and amicably resolved by mutual agreement within 15 (fifteen) 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 Expert shall not act as the external auditors
of any of the Parties to this Agreement, nor to any of the Development
Companies).
(j) 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 fifteen (15)
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.
(k) 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 Audited Development Closing Accounts shall be adjusted by
the Parties in order to reflect the decision of the Closing Expert.
(l) The reasonable fees, and the expenses and disbursements, of the
Closing Expert shall be paid one-half by PCE and one-half by Purchaser, unless
otherwise determined by the Closing Expert.
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(m) Notwithstanding the provisions of Section 18.3 below (Dispute
Resolution) and the provisions of applicable Law determined in terms of Section
18.2 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.
(n) 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 Audited Development Closing Accounts.
(o) The Audited Development Closing 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 Purchaser to object to all or any portion
thereof within the period specified under Section 7.7(g) above; (ii) an
agreement between Purchaser and PCE with respect thereto; or (iii) the decision
by the Closing Expert with respect to any disputed matters pursuant to Section
7.7(j) above. The Audited Development Closing Accounts, as adjusted pursuant to
the agreement of Purchaser and PCE or the decision of the Closing Expert as
aforesaid, upon becoming final and binding pursuant to this Section 7.7(o),
shall be referred to herein as the "FINAL DEFINITIVE DEVELOPMENT CLOSING
ACCOUNTS" which will include the "FINAL DEFINITIVE DELIVERY PURCHASE PRICES" and
the "FINAL DEFINITIVE SHAREHOLDER LOAN AMOUNTS".
Net Asset Value Adjustments.
(p) For each Development Company, the Initial Delivery Purchase Price
(excluding the Delivery Development Project Value) shall be adjusted as follows:
increased on a Euro-for-Euro basis, by an amount of the difference, if positive,
between the Final Definitive Delivery Purchase Prices or, if negative, reduced
by the amount of such difference.
(q) Each of the Initial Shareholder Loans Amounts reimbursed at the
Delivery Date as specified in Section 3.1(b) above, shall be adjusted as
follows: increased on a Euro-for-Euro basis, by an amount of the difference, if
positive, between the Final Definitive Shareholders Loans Amounts and the
Initial Shareholders Loans Amounts or, if negative, reduced by the amount of
such difference.
(r) In the event that in terms of the Final Definitive Development
Closing Accounts, a negative value results for any Development Company, then and
in such event the provisions of Section 7.11(c) shall be applied, mutatis
mutandis.
Payment of NAV Adjustments.
(s) All Net Asset Value adjustment payments which are required to be
made pursuant to the aforegoing provisions will:
36
(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 7.7(k) 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 Delivery Date to the
actual date of payment.
Interim Price Adjustments.
(t) The Parties hereby record that it is their express understanding
and intention that the payment of all undisputed amounts set forth in the
Definitive Development Closing Accounts that have become final and binding
pursuant to Section 7.7(o) 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 7.7(i) above.
(u) For the avoidance of all doubt, the post-closing price adjustments
to be carried out in terms of this Section 7.7 shall be in addition to, and
shall not constitute part of, the additional price adjustments to be carried out
in terms of Section 7.9 below, and shall be conducted separately.
7.9 Final Price Adjustments for Development Companies. Without derogating
from the provisions of Section 7.7 above, the Parties have agreed that the
following additional price adjustments shall be carried out on the Final Price
Adjustment Date (as hereinafter defined):
Final Development Project Adjustment Date
(a) The Final Price Adjustment Date for each Development Company shall
occur on the 1st (first) anniversary of the CP Satisfaction Date at the latest,
provided, however, that in the event that PCE shall elect to exercise the right
granted to it in terms of Section 6.1 above, then and in such event the Final
Price Adjustment Date shall occur on the relevant Lease-Up Break-Off Date.
Final Operational Projects Value
(b) On the relevant Final Development Project Adjustment Date, an
adjustment for each Development Company shall be carried out on the basis of the
Final Development Project Value, being the Final Development Project Rentals
prevailing on the Final Development Project Adjustment Date (or the Lease-Up
Break-Off Date, where relevant), capitalized at the Agreed Yields in accordance
with the methodology set forth in the Gross Rentals Definition Schedule
(Schedule 1.1(kk)) (the "FINAL OPERATIONAL PROJECTS VALUE").
Calculation of Final Price Adjustments
(c) On or before a date 15 (fifteen) days following the relevant Final
Development Projects Adjustment Date, the following adjustments shall be
calculated and paid, namely:
37
(i) if (AA) that amount which is the sum of the indexed Delivery
Development Project Value [DDPV] plus the Final Development Project Value; is
less than (BB) the indexed Forecasted Project Value - then Purchaser shall pay
to PCE the Final Development Project Value;
(ii) if (AA) that amount which is the sum of the indexed Delivery
Development Project Value [DDPV] plus the Final Development Project Value, is
greater than (BB) the indexed Forecasted Project Value; and if (CC) the indexed
Delivery Development Project Value [DDPV] is greater than (DD) the indexed
Forecasted Project Value - then Purchaser shall pay to PCE that amount which is
the equivalent of the Final Development Project Value multiplied by 30%; and
(iii) if (AA) that amount which is the sum of the indexed
Delivery Development Project Value [DDPV] plus the Final Development Project
Value, is greater than (BB) the indexed Forecasted Project Value; and if (CC)
the indexed Delivery Development Project Value [DDPV] is less than (DD) the
indexed Forecasted Project Value - then Purchaser shall pay to PCE that amount
which is the equivalent of (XX) the indexed Forecated Project Value less the
indexed Delivery Development Project Value; plus (YY) the indexed Delivery
Development Project Value plus the Final Development Project Value less the
indexed Forecasted Project Value) and (ZZ) multiplied by 30%.
Capped Final Development Project Rentals
(d) The provisions of Section 7.4 above shall apply mutatis mutandis
to the Final Development Project Rentals.
Indexation
(e) In the calculation of the Final Adjustments to be made pursuant to
the provisions of this Section 7.9, the indexation applied to the Delivery
Development Project Values and the Forecasted Development Project Value, as the
case may be, will be the costs indexation actually applicable to the relevant
leases.
7.10 Special Provisions Relating to the Tesco Lease (Novo Plaza).
(a) The Parties hereby record that the hypermarket unit located in the
Novo Plaza (Prague IV) Development Project has been leased to a Czech subsidiary
of the Tesco Group ("TESCO LESSEE") for a period of thirty years (with an option
to extend for an additional 30 years) in consideration for payment of E6.9
million to be paid in cash upon the execution of a lease agreement (the "TESCO
RENTALS"). A copy of the Tesco hypermarket lease ("TESCO LEASE") has been
furnished to Purchaser during the due diligence investigations.
(b) PCE hereby undertakes that the Tesco Lease shall not be modified
prior to the Delivery Date of the Novo Plaza Development Project without the
prior written consent of Purchaser, such consent not to be unreasonably
withheld.
(c) It is hereby specifically agreed and understood that PCE shall be
entitled to retain the Tesco Rentals which shall be paid in advance on the
execution of the Tesco Lease as aforesaid. However, in the event that the Tesco
Lessee exercises its rights to cancel the Tesco Lease and vacate the unit in
accordance with the provisions of the Tesco Lease, or in the event that the
Tesco Lessee otherwise becomes entitled to a full or partial repayment of the
Tesco Rentals, then and in such event PCE undertakes to pay all those
38
amounts which shall become due and payable to Tesco by way of full or partial
refund of the Tesco Rentals in terms of the Tesco Lease (the "TESCO RENTALS
REFUND AMOUNT").
(d) However, if following the termination of the Tesco Lease and the
vacation by the Tesco of the hypermarket rental unit, the Novo Plaza Development
Company succeeds in re-leasing the hypermarket rental unit, in whole or in part
and to one or more lessees ("NEW LESSEES"), then and in such event the following
provisions shall apply :
(i) The Gross Rentals paid by the New Lessees shall be
capitalized at the Agreed Yields for the Novo Development Project (as specified
in Schedule 1.1(c)), less the costs incurred by the Development Company in
securing the re-lease of the hypermarket unit ("NEW LESSEE CAPITALIZED
RENTALS");
(ii) Purchaser shall pay to PCE that portion of the New Lessee
Capitalized Rents as is equal to the Tesco Rentals Refund Amount, and same
within 30 (thirty) days of the execution of the lease agreement with the New
Lessees. In the event that the aggregate of the New Lessee Capitalized Rentals
are less than the Tesco Rentals Refund Amount, then and in such event Purchaser
shall pay the full amount of the New Lessee Capitalized Rentals to PCE.
7.11 General Provisions relating to Transaction Prices. For all purposes in
terms of this Article VII:
(a) All the values and prices shall be denominated in the Euro
Currency prevailing on the relevant calculation dates.
(b) PCE undertakes to ensure that the tax book asset values for each
of the Development Centers (namely: total project costs, excluding the land
acquisition costs) shall be at least equal to the corresponding values set forth
in SCHEDULE 7.11(B), calculated at the Delivery Date.
(c) PCE further undertakes to ensure that the Net Asset Value of the
Development Companies will be positive. To that end PCE undertakes to on or
before the Delivery Date it shall where necessary capitalize Shareholder Loans
in the relevant Development Companies in an amount sufficient to render the Net
Asset Value positive, or, if insufficient, cause fresh capital to be injected
into the relevant Development Companies.
ARTICLE VIII - REPRESENTATIONS AND WARRANTIES OF VENDOR
Subject to such exceptions as shall be specifically disclosed in a
disclosure letter (each exception referencing the corresponding representations'
and warranties' section number to which it applies) supplied by PCE to Purchaser
(the "VENDOR'S DISCLOSURE SCHEDULE") which is attached hereto as SCHEDULE 8.0,
and which shall not be modified after the date hereof, Vendor hereby represents
and warrants to Purchaser that: (i) the statements contained in Sections 8.1 to
8.7 below are true and correct and not misleading as of the date of this
Preliminary Agreement; and (ii) that all the statements contained in this
Article VIII will be true and correct and not misleading as of the Delivery Date
(as though made at the Delivery Date); provided, that the representations and
warranties made as of a specified date will be true and correct as of such date.
39
Representations and Warranties applicable to Vendor
8.1 Organization, Qualification, and Corporate Power
Vendor:
(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;
(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 Vendor;
(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 businesses
and to own and use its assets.
8.2 Authorization Vendor has full power and authority to enter into,
execute and deliver this Preliminary 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 Development Companies and no
further actions on the part of Vendor are necessary to authorize the execution,
delivery and performance of this Preliminary Agreement and the Ancillary
Agreements to which Vendor is a party or, in the case of the Ancillary
Agreements, do not require such approval. This Preliminary Agreement and the
Ancillary Agreements to which Vendor is a party and the transactions
contemplated hereby and thereby have been approved by the affirmative vote of
the Board of Directors of Vendor (and, where required, its Affiliates, including
EMI). This Preliminary Agreement and the Ancillary Agreements to which Vendor is
a party have been duly and validly executed and constitute the valid and legally
binding obligations of Vendor, enforceable against Vendor in accordance with
their respective terms and conditions.
8.3 No Conflicts Neither the execution and the delivery of this Preliminary
Agreement and the Ancillary Agreements by Vendor nor the consummation of the
Transactions will:
(a) violate any constitution, Law, injunction, judgment, order,
decree, ruling, charge, or other restriction of any government, governmental
agency, or court to which Vendor or the Development Companies are subject;
(b) violate or conflict with any provision of the respective Articles
of Incorporation, bylaws or organizational documents of Vendor or the
Development 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
40
or other arrangement to which Vendor or any of the Development 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 Development Companies.
8.4 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 Vendor, is required by or with respect to Vendor in connection
with the execution and delivery of this Preliminary Agreement or the
consummation of the Transactions (or, if so required have been obtained), except
for the Transaction Approvals referred to in Section 11.2(a)(i) below.
Representations and Warranties applicable to the Development Companies
8.5 Capitalization. The authorized, issued and outstanding capital stock of
each of the Development Companies is as set forth in the Rights Acquisition
Schedule. Except as set forth in the Portfolio Liabilities Schedule, or as
mandated under applicable Polish or Czech Law, as the case may be, there are no
outstanding securities convertible into or exchangeable for shares in any of the
Development Companies, nor are there any outstanding options, rights, preemptive
or otherwise, or similar right or other right, contract, agreement, commitment
or understanding of any kind or warrants to purchase or to subscribe for any
quotas or shares of such stock or other securities of the Development Companies,
or obligating any of the Development Companies to issue any additional shares or
quotas of capital stock. The issued and outstanding shares of the Development
Companies are held by the shareholders listed in the Rights Acquisition
Schedule, and in the amounts set forth.
8.6 Validity of Shares. The shares of the Development 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, where
applicable) and have been issued in compliance with all applicable Laws and in
accordance with the relevant Articles of Association.
8.7 Articles of Association and Constitutive Documents.
(a) The copies of the Articles of Association and other constitutive
documents of each of the Development Companies which have been furnished to
Purchaser within the framework of their due diligence investigations are true
and accurate copies thereof, and same have not been amended or modified except
as disclosed in writing to Purchaser.
(b) The Development Companies are corporations duly organized, validly
existing, and in good standing under the laws of the jurisdiction of their
incorporation. The Development Companies are duly authorized to conduct business
and are in good standing under the laws of each jurisdiction where such
qualification is required. The Books and Records of the Acquired Companies are
correct and complete. None of the Development Companies is in default under or
in violation of any provision of its charter or by-laws.
8.8 Legal Title.
(a) At Closing, PCE is the beneficial and the owner of record of, and
has good, valid and marketable title in and to, all of the shares (100%) of the
Development Companies, which are to be acquired
41
by Purchaser pursuant to the provisions of this Agreement and/or the Share
Purchase Agreements, free and clear of all Liens [save in respect of Financing
Bank Securities;]
(b) None of the Development Companies owns or has any right to
acquire, directly or indirectly, any outstanding capital stock of, or other
equity interest in, any Person; and
(c) All easements which constitute Permitted Liens are not violated by
the current use or occupancy of the Operational Projects, or the operation of
the Development Companies as currently conducted thereon.
8.9 Transferability. The shares of the Development Companies are not
subject to any restrictions with respect to their transferability, [save as
determined in terms of the Financing Bank Securities] and save as mandated under
applicable Polish or Czech Law, as the case may be.
8.10 Shareholders' Loans. (a) The Shareholder Loan Schedule sets forth all
of the Shareholder Loans due by the Development Companies to PCE and/or its
Affiliates as at the Closing Date. All the Shareholder Loans: (i) are recorded
in the books of account of the relevant Development Companies as being an
Indebtedness at Closing of an amount equal to the Initial Shareholder Loan
Amounts due and payable to PCE and/or its Affiliates; (ii) have been properly
reported to and/or recorded with the competent authorities, including the
Central Bank of Poland or the Central Bank of the Czech Republic, as the case
may be, 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 the 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 subordination rights of
the Financing Banks under the Financing Bank Securities; (v) are capable of
subrogation to Purchaser as contemplated in this Agreement; and (vi) none of the
Shareholder Loans have been repaid in whole or in part, or increased, nor has
any interest thereon been paid, since the CP Satisfaction Date.
8.11 Construction Loan Facilities.
(a) Subject to obtaining the Waivers and Consents of the Financing
Banks as specified in Section 11.2(b)(ii) below, and without derogating from
PCE's undertakings to effect full repayment of the Construction Loan Facilities
by not later than the Delivery Date in terms of Section 3.2(a) above, the
Transactions shall not give rise to any breach of any obligation, undertaking or
covenant of the Development Companies under the Construction Loan Facilities,
nor shall any Event of Default or other adverse event occur under the
Construction Loan Facilities as a result thereof;
(b) The Development Companies have not and are not currently in breach
of any obligation, undertaking or covenant of the Development Companies under
the Construction Loan Facilities which gives rise to an Event of Default or
adverse effect (or any fact or circumstance which could give rise to an Event of
Default or adverse effect) under the Construction Loan Facilities which remains
outstanding;
(c) Subject at all times to the provisions of the relevant
Construction Loan Facility Agreements, upon prior written notice of the relevant
borrower that it intends to prepay its Construction Loan Facility, the relevant
borrower shall be entitled to prepay such loan on the Prepayment Date; and
(d) No side letters, addenda or other documents exist which have not
already been disclosed to Purchaser and which may affect the obligations of the
borrowers and/or their ability to execute
42
repayment on the Prepayment Date and/or the Prepayment Amounts, or the cost of,
the repayment of the Construction Loan Facilities on the Prepayment Date.
8.12 Financial Statements.
(a) At the Delivery Date, PCE shall attach as SCHEDULE 8.12 the
financial statements of each of the Development Companies, which have been
audited or reviewed, for each of the two fiscal years preceding the Delivery
Date, if available. By no later than a date 30 (thirty) days following the CP
Satisfaction Date, Vendor shall in addition furnish Purchaser with the Proforma
Development Closing Accounts referred to in Section 7.1(a) above (jointly, the
"FINANCIAL STATEMENTS");
(b) The Financial Statements (including the notes thereto) have been
and shall be prepared in accordance with Polish or Czech accounting standards,
as the case may be, applied on a basis consistent throughout the periods covered
thereby, present fairly the financial condition of the relevant Development
Company as of such date and the result of operations of the relevant Development
Company for such periods, are correct and complete, and are consistent with the
Books and Records of the relevant Development Company.
(c) The Proforma Development Closing Accounts have been prepared in
good faith and in accordance with Polish or Czech accounting standards, as the
case may be, and the Accounting Principles (SCHEDULE 1.1(A)).
8.13 Undisclosed Liabilities. None of the Development 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
Proforma Development Closing Accounts and the Definitive Development Closing
Accounts (rather than in any notes thereto).
8.14 Events Subsequent to Most Recent Fiscal Period End. Other than in the
ordinary course of business and consistent with past practise, and save in
respect of the Development Liabilities assumed by PCE pursuant to the provisions
of Section 4.8 above, since the Opening 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 Development
Companies. Without limiting the generality of the foregoing, since that date:
(a) Neither Vendor nor any of the Development 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;
(b) Neither Vendor nor any of the Development 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 Development Companies or any of them of greater
than E10,000 per annum or which extends for more than one (1) year, (ii)
involves any payment or obligation to any Affiliate of Vendor other than in the
ordinary course of business, or (iii) involves the sale of any material assets;
43
(c) Save as otherwise notified in writing to Purchaser and with their
approval and consent, and save in respect of prepayment notices sent to the
Financing Banks with the consent and approval of Purchaser, no party (including
Vendor and the Development 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 Vendor or any of the
Development 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 Vendor nor any of the Development 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 E10,000 in the
aggregate of all such capital expenditures;
(f) Neither Vendor nor any of the Development 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 Vendor nor any of the Development 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 Vendor nor any of the Development Companies have
experienced any damage, destruction, or loss (whether or not covered by
insurance) to the Purchased Assets in excess of E10,000 in the aggregate
of all such damage, destruction and losses;
(i) Neither Vendor nor any of the Development Companies have entered
into any employment contract (other than a standard contract involving
non-management personnel) 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 Vendor nor any of the Development Companies have changed
any of the accounting principles or methods followed by the Businesses or the
method of applying such principles;
(k) Neither Vendor nor any of the Development Companies have entered
into any agreement, contract or commitment limiting the freedom of the
Development Companies to engage in the Businesses or to compete with any person,
save as provided in Section 12.1 (Non-compete);
(l) Neither Vendor nor any of the Development 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;
44
(m) Neither Vendor nor any of the Development Companies have made any
distribution of dividends or made any other contractual payment to their direct
or indirect Affiliates (including repayment of Shareholder Loans; and
(n) Neither Vendor nor any of the Development Companies have become
obligated to do any of the foregoing.
8.15 Legal Compliance. The Businesses are being conducted and all of the
Development 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 8.25), no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, demand, notice or inquiry is pending,
or to the Knowledge of Vendor, is threatened against Vendor or any of the
Development Companies by any Governmental Body alleging any failure to so
comply. The Development 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.
8.16 Tax Matters. In respect of each of the Development Companies:
(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 Development Companies and/or
the Businesses and/or the Purchased Assets.
(b) Each of the Development Companies has filed all declarations,
forms, 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 Development Companies relating to or
attributable to Taxes. Accordingly all Taxes due and owing by the Development
Companies (whether or not shown on any Tax Return) have been paid and should not
constitute any Liability in the future for Purchaser or the Development
Companies.
(c) The Development 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.
(d) The provisions made in the Profroma Development Closing Accounts
and the Definitive Development Closing Accounts are sufficient in order to cover
any Tax payment pertaining to the time period elapsed on the Delivery Date.
(e) There are no audits or investigations by any Tax authority of any
Contract Company currently in progress.
(f) 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.
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(g) None of the Development 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). None of the Development Companies has taken any action which
triggers a disallowance of any Tax benefits or optional Tax regime or other
undertaking with respect to Tax.
(h) None of the Development 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 Development 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 Development
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.
(i) The Development 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.
(j) To the Knowledge of Vendor, 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.
8.17 Title of Properties; Absence of Liens and Encumbrances; Condition of
Equipment (a) Each of the Development Companies has good, valid and marketable
title to the respective Development Projects 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 Development 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. The Property Schedule and the
plans attached thereto accurately specify the nature, terms and conditions of
the ownership rights (freehold or leasehold) held by the relevant Development
Company.
(b) Each of the Development 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 Delivery Date.
(c) Each material item of equipment owned or leased by the Development
Companies and included in the Purchased Assets is (i) adequate for the conduct
of the Businesses as currently conducted, and (ii) in good operating condition,
regularly and properly maintained, subject to normal wear and tear.
(d) Each of the Development Companies own, free and clear of any
Liens, all tenant lists, customer contact information, customer correspondence
and customer lease histories relating to their respective Development Projects.
Other than PCE, the relevant Development Companies and the relevant tenants to
which such information relates, no person possesses any claims or rights with
respect to use of the information.
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8.18 Development Projects.
(a) The Development Projects 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 Vendor's Disclosure Schedule (Schedule 8.0) none of the Development
Companies is a party to any agreement or option to purchase (including
preference right) any real property or interest therein.
(b) All buildings, structures, fixtures, building systems and
equipment, and all components thereof, included in the Development Projects (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 Development Projects and/or any of the Improvements and
there are no facts or conditions affecting any of the Development Projects or
Improvements which would, individually or in the aggregate, interfere in any
respect with the use or occupancy of the Development Projects 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 Development
Projects 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 Development Projects or any portion thereof, or the operation
of the Development Company's business as currently conducted thereon. There is
no claim or action initiated by any Development Project's neighbor which is
pending or to the Knowledge of Vendor, which is threatening.
(d) The Development Projects 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 Development Projects
(collectively, the " DEVELOPMENT PROJECTS LAWS"), and the current use and
occupancy of the Development Projects and operation of Businesses thereon do not
violate any Development Projects Laws. None of the Development Companies has
received any notice of violation of any Development Projects Law and to
Knowledge of Vendor 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 Development Projects Law that will materially impair
the ownership, lease, use or occupancy of any Development Projects or any
portion thereof in the continued operation of the Development Companies'
business as currently conducted thereon.
(e) Each of the Development Projects has direct vehicular and
pedestrian access to a public street adjoining the Development Projects, or has
vehicular and pedestrian access to a public street via an insurable, permanent,
irrevocable and appurtenant easement benefiting each parcel of Development
Projects, and such access is not dependent on any land or other real property
interest which is not included in the Development Projects or in respect of
which valid leasehold interests exist which comply with the provisions of
Section 8.17(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 Development Projects.
(f) All water, oil, gas, electrical, steam, compressed air,
telecommunications, sewer, storm and waste water systems and other utility
services or systems for the Development Projects have been installed and are
operational and sufficient for the operation of the Businesses as currently
conducted thereon.
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Each such utility service enters the Development Projects from an adjoining
public street or valid private easement in favor of the supplier of such utility
service or appurtenant to such Development Projects.
(g) All certificates of occupancy, Permits, approvals and
authorizations of all Governmental Bodies or any other entity having
jurisdiction over the Development Projects 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 Development Projects or operate
Businesses as currently conducted thereon (including but not limited to (x) with
respect to Development Projects located in Poland (warunki zabudowy i
zagospodarowania terenu (WZiZT)), the building permits (pozwolenie na budowe),
the permit for use (pozwolenie na uzytkowanie)) and (y) with respect to
Development Projects located in the Czech Republic uzemni rozhodnuti (zoning
permits), stavebni povoleni (construction permits) and kolaudacni rozhodnuti
zivnosti (trade licenses); - (collectively, the " DEVELOPMENT PROJECTS
PERMITS"), 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
Development Companies has received any notice from any Governmental Body or
other entity having jurisdiction over the Development Projects threatening a
suspension, revocation, modification or cancellation of any Development Projects
Permit and to the Knowledge of Vendor 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 Development Projects 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 Development Projects. None of Vendor or the Development Companies
has received any notice of such violation, and to the Knowledge of Vendor there
is no basis for the issuance of any such notice or the taking of any action for
such violation.
(i) None of the Development Projects or any portion thereof is located
in an officially designated flood hazard area.
8.19 Intellectual Property.
(a) The Development 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
Development Companies will be owned or available for use by the Development
Companies on identical terms and conditions immediately subsequent to the
Delivery Date (subject to the rights awarded to Purchaser in terms of the
Trademark License Agreement). The Development Companies have taken all necessary
action to maintain and protect each item of intellectual property that they own
or use.
(b) None of the Development Companies has interfered with, infringed
upon, misappropriated, or otherwise come into conflict with any intellectual
property rights of third parties, and neither Vendor nor the directors and
officers (and employees with responsibility for Intellectual Property matters)
of the Development Companies has ever received any charge, complaint, claim,
demand, or notice alleging any such interference, infringement,
misappropriation, or violation.
8.20 Notes and Accounts Receivable All notes and accounts receivable of the
Development Companies are reflected properly on their Books and Records, are
valid receivables which as at the Delivery Date are not subject to setoffs or
counterclaims pending at the Delivery Date, are current and collectible, and are
capable of being collected in accordance with their terms at their recorded
amounts, subject only to the
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reserve for bad debts set forth on the face of the Final Definitive Development
Closing Accounts, as appears in the Restated Net Asset Methodology (Schedule
1.1(ppp)).
8.21 Insurance.
(a) The Development 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 8.21. All the
insurance policies owned by the Development 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 Development 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
8.21,: (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 Delivery Date are paid in a timely manner and other
conditions the fulfillment of which is required following the Delivery Date are
fulfilled; (iii) none of the Development 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.
8.22 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 E50,000 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 Development Companies, or involve consideration in excess of
E50,000;
(iii) any agreement concerning a partnership or joint venture;
(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 Vendor and its Affiliates (other than the
Development Companies);
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(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 E20,000 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 Development Companies
has advanced or loaned any other Person amounts in the aggregate exceeding
E10,000;
(xiv) any lease, ground lease, leasehold, sublease, licences,
concessions and other agreement (written or oral) with respect thereto, pursuant
to which any Development Company holds the right to use or occupy any part of
the Development Project or any other property;
(xv) any material contract related to the construction and/or
development of the Development Centers; or
(xvi) any other agreement (or group of related agreements) the
performance of which involves consideration in excess of E50,000.
(b) Vendor represents and warrants that all Material Business
Contracts entered into by any Development Company and in force at the CP
Satisfaction Date and the Delivery Date have been disclosed to Purchaser, 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 Vendor nor the
Development Companies, or, to the Knowledge of Vendor, 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.
(d) The provisions of this Section 8.22 are specifically not
applicable to any Material Business Contracts which relate to and/or are
connected with the Development Liability assumed by PCE pursuant to the
provisions of Section 4.8 above, in respect of which no representations are
given, nor to those which relate to the management of the Development Project
conducted by the Management Company on behalf of the Development Company.
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8.23 Qualified Lease Contracts
(a) The Lease Schedule attached as SCHEDULE 8.23 sets forth a complete
and accurate list of (i) the Qualified Lease Contracts in force as at the CP
Satisfaction Date which has formed the basis of the calculation of the Delivery
Rentals and the Delivery Purchase Price, and (ii) all the Qualified Lease
Agreements that are in force on the Delivery Date (specifying the Qualifying
Lease Agreement that have been terminated, renewed, modified or entered into
between the CP Satisfaction Date and the Delivery Date; (iii) for each Qualified
Lease Contract, the amount of the cash deposit paid or bank guarantee furnished
by the tenant to the landlord, and (iv) shall clearly identify all Lease
Agreements which are for a period of less than 1 (one) year ("promotions");
(b) With respect to each Qualified Lease Contract itemized in the
Lease Schedule: (i) the Qualified Lease Agreement is duly executed, legal,
valid, binding, enforceable in accordance with its terms, and in full force and
effect in all respects; (ii) neither Vendor and/or the Development Companies,
nor, to the Knowledge of Vendor, 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
Qualified Lease Contracts, nor have any notices been received from any party
which purports to repudiated any provision of the Qualified Lease Agreement.
(c) Without limiting the generality of the foregoing, with respect to
each of the Qualified Lease Agreements itemized in the Lease Schedule, the
square meter area stated in such Qualified Lease Agreement is accurate and in
conformity with the actual square meter area of the leased premises, except for:
(i) minor inaccuracies of less than 2% of the relevant leased areas; and (ii)
discrepancies between the actual square metrage of the units and the area
recorded in the lease contracts; which are not susceptible to give rise
proceeding or action (including for refund or reduction of rent) against any of
the Development Companies.
(d) All the Qualified Lease Agreements 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 1 (one) year or more from date of execution
(it being specified that lease contracts which are for periods of less than one
year but which have been consistently extended and renewed shall be deemed to
constitute lease contracts for periods in excess of one year); and (II) globally
conform to the breakdown set forth in the Lease Schedule (Schedule 8.23(d)) in
terms of currency of payment.
(e) The amount of the bank guarantee and/or tenants' security deposit
itemized in the Lease Schedule in respect of each Lease Agreement is accurate.
(f) None of the Development Companies has collaterally assigned or
granted any other Lien in any Lease Agreement or any interest therein, except
under the Financing Bank Securities.
(g) The provisions of this Section 5.24 shall apply, mutatis mutandis,
to the Qualified Lease Agreements reflected in the Tenant List as at the
relevant Final Development Price Adjustment Date for each Development Company.
8.24 Powers of Attorney. Save as required for the conduct of the Businesses
in their ordinary course or as provided for in terms of Section 6.3(a) above,
and as disclosed to Purchaser, there are no outstanding powers of attorney
executed on behalf of Vendor 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 Delivery Date, or may be unilaterally and unconditionally terminated at
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the sole discretion of the Development Companies. Upon the resignation at
Delivery of all the managing directors of the Development Companies nominated by
Vendor, there shall be no valid and outstanding powers of attorney with respect
to any Development Company, save as aforesaid.
8.25 Litigation. The Proceedings Schedule attached hereto as SCHEDULE 8.25
sets forth details as of the Delivery Date of all outstanding injunction, order,
decree to which any of the relevant Development Company is subject and of all
hearing, action, proceeding, investigation or litigation proceedings which are
pending as at the Delivery Date (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 Development Companies and/or the
Businesses and/or the Purchased Assets. Other than as specified in the
Proceedings Schedule, to the Knowledge of Vendor, there are no facts or
circumstances that would form the reasonable basis of any claim against the
Development Companies.
8.26 Utilities Charges. All charges for electricity only made by the
Development Companies to their respective tenants prior to the Delivery Date
have been made in compliance with applicable Laws and regulations.
8.27 No Development Risks. All development and construction risks and
liabilities have been assumed by PCE pursuant to the provisions of Section 4.8
above, and accordingly none of the Development Companies shall be under such
risks as and from the Delivery Date. In addition, the Management Company has not
been exposed to any development risks in respect of any of the Development
Projects and/or any the Excluded Asset at any time prior to the Delivery Date,
or shall be thereafter.
8.28 Employees.
(a) Save as specified in the Disclosure Schedule, no executive, key
employee, or significant group of Employees has advised any executive officer of
Vendor that he, she or they plan to terminate their employment with the relevant
Development Company during the 12 (twelve) month period following the CP
Satisfaction Date. To the Knowledge of Vendor, 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 Development Companies has any
current or future liability (such plans or funds, the "BENEFIT PLANS").
(c) None of the Development Companies employs any person.
(d) Each of the Development Companies has been and is in compliance
with all applicable Law respecting employment and employment practices.
(e) In respect of any of the Development 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 Proforma Development Closing Accounts and the Final Definitive Development
Closing Accounts (rather than in any notes thereto).
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(f) The resignation of the managing directors of each of the
Development Companies, as well as the resignations of all members of the
supervisory boards of the Development Companies where relevant, on or prior to
the Delivery Date, shall not give rise to any payment obligation (including
bonuses, indemnification, or golden parachute) on the part of any Development
Company.
8.29 Environment, Health and Safety.
(a) As at the Delivery Date each of the Development 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 Development Companies
concerning any such alleged violation.
(b) Without limiting the generality of the foregoing, each of the
Development 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 8.29(C) sets forth the accurate and complete list of all
reports, investigations notices, and other environmental information regarding
the Development Projects. None of the Development Companies, nor to the
Knowledge of Vendor, 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 Development 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 Development Companies nor to the Knowledge of Vendor
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 Preliminary Agreement nor the consummation of the
Transactions that are the subject of this Preliminary Agreement or the Ancillary
Agreements 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 Development Companies, nor to the Knowledge of Vendor
any of their respective predecessors or previous owners of the parcels or
buildings has, either expressly or by operation of
53
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 Development 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.
8.30 Intergroup Agreements. Save as specified in the Disclosure Schedule,
at the Delivery Date there are no contracts and agreements currently in force
between Vendor, EMI or any of their Affiliates (other than the Development
Companies) on the one hand and any of the Development Companies, on the other
hand. Upon reimbursement of the Shareholder Loans as set forth in Section
3.1(b), no amount shall remain owed by any of the Development Companies to
Vendor, EMI or any of their Affiliates, under any Shareholder Loan and, more
generally, under any agreement or otherwise, save as specified in the Vendor's
Disclosure Schedule.
8.31 Complete Copies of Materials. All relevant documents and information
relating to the Development Companies, the Development Projects and the
Purchased Assets which were provided to Purchaser during the due diligence phase
are accurate in all respects.
8.32 Full Disclosure.
(a) No representation or warranty in this Article VIII or in any
document delivered by Vendor or its Representatives pursuant to the Transactions
contemplated by this Agreement, and no statement, list, certificate or
instrument furnished to Purchaser 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. Vendor is not aware of any fact or event that would be materially
adverse to the Businesses and/or the Development Project Properties and/or the
Purchased Assets and/or the condition, operating results or operations of any
Development Project and/or any Development Company, including any order,
judgment, claims, pending or threatened, which would be material and would
relate to the ownership, lease, use or occupancy of the properties.
ARTICLE IX - REPRESENTATIONS AND WARRANTIES OF KLEPIERRE
Klepierre hereby represents and warrants to Vendor that the statements
contained in this Article IX are true and correct as of the date of this
Preliminary Agreement and will be true and correct as of the Delivery Date (as
though made at the Delivery), provided, that the representations and warranties
made as of a specified date will be true and correct as of such date.
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9.1 Organization, Qualification, and Corporate Power.
(a) Klepierre 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) Klepierre is duly authorized to conduct its businesses under the
laws of France.
9.2 Authorization. Klepierre has full power and authority to enter into,
execute and deliver this Preliminary Agreement and the Ancillary Agreements to
which it is party, and to consummate the Transactions and to perform its
obligations hereunder, and no other proceedings on the part of any of Klepierre
are necessary to authorize the execution, delivery and performance of this
Preliminary Agreement and the Ancillary Agreements to which they are parties.
This Preliminary Agreement and the Ancillary Agreements to which it is party and
the Transactions contemplated hereby and thereby have been duly approved by the
Supervisory Boards of Klepierre, or, 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. This Preliminary Agreement and the Ancillary Agreements to which it
is party constitute the valid and legally binding obligations of Klepierre,
enforceable against Klepierre in accordance with their respective terms and
conditions.
9.3 No Conflicts. Neither the execution and the delivery of this
Preliminary 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 is subject;
(b) violate or conflict with any provision of the charters, bylaws or
organizational documents of Klepierre; 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 is
a party or by which either is bound or to which any of its assets is subject,
other than any of the foregoing which would not in the aggregate have a material
adverse effect on Klepierre or adversely its ability of to consummate the
transactions contemplated hereby.
9.4 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 is required by or with respect to Klepierre in
connection with the execution and delivery of this Preliminary Agreement or the
consummation of the Transactions, except for the Transaction Approvals referred
to in Section 11.2(b) below.
9.5 Financial Resources. Klepierre has the financial resources to fulfill
all the undertakings, obligations and guarantees made by them in terms of the
provisions of this Preliminary Agreement, including without limitation, the
payment of the Initial Delivery Purchase Prices and the Final Delivery Prices
adjustment if any, and any other payments or obligations required to be made or
fulfilled by them pursuant to the provisions of this Preliminary Agreement.
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9.6 Additional Purchaser. In the event that Klepierre shall elect to join
Additional Purchaser to this Preliminary Agreement as contemplated in Section
2.4 above, then and in such event: (i) each of the above representations and
warranties shall be deemed to have been given on behalf of each of the
Additional Purchaser; (ii) each of such statements pertaining to the Additional
Purchaser shall be true and correct as of the date of the Deed of Joinder
referred to in Section 2.4(b) above, and will be true and correct as of the
Delivery Date (as though made at the Delivery), provided, that the
representations and warranties made as of a specified date will be true and
correct as of such date.
ARTICLE X - PRE-CLOSING COVENANTS
With respect to the period between the CP Satisfaction Date and the earlier
of the termination of this Preliminary Agreement and the Delivery Date
("COVENANT PERIOD"), the following shall apply:
10.1 Operation of Business.
(a) Vendor agrees that, for the duration of the Covenant Period,
except as contemplated by this Preliminary Agreement or as otherwise consented
to or approved in advance in writing by Purchaser (which consent and approval
shall not be unreasonably withheld or delayed to the extent that it does not
prejudice the rights of Purchaser in terms of this Preliminary Agreement),
Vendor shall, and shall procure that the Development Companies shall:
(i) use all commercially reasonable efforts to (aa) preserve
intact the present business organization, reputation, contractual and other
arrangements of the Development Companies and the Businesses then under the
control of Vendor; (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 Vendor 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 Development 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 Development
Companies that would adversely affect the Businesses, the Development Companies
or the Purchased Assets;
(iii) comply with all Laws and Orders applicable to the
Businesses, and promptly following receipt thereof deliver to Purchaser 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
Preliminary Agreement or as otherwise consented to or approved in advance and in
writing by Purchaser (which approval shall not be unreasonably withheld or
delayed to the extent that it does not prejudice the rights of Purchaser in
terms of this Preliminary Agreement), Vendor shall not, and shall procure that
the Development Companies shall not:
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(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
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 Development Companies and/or
Vendor, 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;
(iv) enter into any Contract to do or engage in any of the
foregoing items set forth in this Section 10.1(b).
(c) Vendor agrees that, during the Covenant Period, except as
contemplated by this Preliminary Agreement, or as specifically directed by
Purchaser, or as otherwise consented to or approved in advance by Purchaser
(which consent or approval shall not be unreasonably withheld or delayed to the
extent that it does not prejudice the rights of Purchaser in terms of this
Preliminary Agreement), Vendor shall not, and shall procure that the Development
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 Development Companies under, any liability
of or owing to the Development Companies in connection with the Businesses then
under the control of Vendor that would constitute a Purchased Asset hereunder,
other than in the ordinary course of business consistent with past practice;
(v) 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 Preliminary 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 Development Projects in operating condition and in compliance
with safety regulations;
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(vii) make any material changes in the conduct of the Businesses,
except as specifically contemplated or permitted by this Preliminary Agreement;
or
(viii) enter into any Contract to do or engage in any of the
foregoing items set forth in this Section 10.1(c).
10.2 Notice of Developments. Vendor shall give prompt notice to Purchaser
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 aggregate, any
representation or warranty of Vendor contained in this Preliminary Agreement to
be untrue or inaccurate at or prior to the Delivery; and (ii) any failure of
Vendor 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 10.2 shall not limit or otherwise affect
any remedies available to the Party receiving such notice.
10.3 Exclusivity.
(a) From and after May 20th, 2005, and until the earlier of the
Delivery Date or the termination of this Preliminary Agreement (either generally
or in respect of any particular Development Company), Vendor has 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
Purchaser 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 Vendor 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 Vendor and/or the
Development Companies, other than to Klepierre and Purchaser, 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 Vendor or any
subsidiary of Vendor (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 Klepierre and Purchaser, providing for an
Acquisition Proposal with Vendor 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 Vendor or any
subsidiary (whether such subsidiary is in existence on the date hereof or are
hereafter organized) other than by Klepierre and Purchaser.
(b) Vendor 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 Vendor or any of
its Representatives receives, prior to the Delivery or the termination of this
Preliminary Agreement, any offer or proposal (formal or informal) relating to
any of the above, Vendor shall immediately notify Klepierre and Purchaser
thereof and provide Klepierre and Purchaser with the details thereof including
the identity of the Person or Persons making such offer or proposal, and will
keep Klepierre and Purchaser fully informed of the status and details of any
such offer of proposal. Vendor, Klepierre and
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Purchaser all acknowledge that this Section 10.3 was a significant inducement
for Klepierre to enter into this Preliminary Agreement and the absence of such
provision would have resulted in either (i) a material reduction in the Delivery
Purchase Prices to be paid to Vendor; or (ii) a failure to induce Klepierre to
enter into this Preliminary Agreement.
(c) As used in this Section 10.3, 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 Development Companies
and/or any of them and/or the Businesses and/or the Purchased Assets.
(d) For the avoidance of doubt, it is specifically agreed and
understood:
(i) that the provisions of this Section 10.3 are not applicable
to any property, assets or business activities of Vendor and/or its Affiliates
which are excluded from the ambit of this Preliminary Agreement; and
(ii) the provisions of this Section 10.3 are applicable, mutatis
mutandis, in respect of each Development Company and/or in respect of any
Acquisition Proposal made in respect of any one or more of the Development
Companies.
10.4 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 Preliminary
Agreement (including satisfaction of the closing conditions set forth in Article
XI below).
ARTICLE XI - DELIVERY AND CLOSING
11.1 Delivery (Closing) and Consummation.
(a) The Closing of each of the Transactions for the acquisition of the
Development Companies in terms of this Preliminary Agreement shall take place on
the respective Delivery Dates (that is to say a date not more than 60 (sixty)
days following the relevant CP Satisfaction Date), or such alternative date as
shall be agreed between the Parties prior to the designated Delivery Date (the
"CLOSING DATE" or the "DELIVERY DATE").
(b) However, if the Transaction Approvals in respect of each such
Transaction shall not have been obtained by the relevant Delivery 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), provided that such postponed Closing shall not occur later than a
date which is 6 (six) months following the CP Satisfaction Dater (unless
otherwise agreed between the Parties).
(c) The Closing shall take place at a venue to be agreed upon between
the Parties, or, failing such agreement at the offices of Xxxxx & XxXxxxxx in
Warsaw or in the Czech Republic.
(d) The provisions of this Article XI shall apply mutatis mutandis in
respect of each Development Company at its relevant Delivery Date.
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11.2 Conditions for Closing. Notwithstanding anything to the contrary in
this Preliminary Agreement contained, the Closing and consummation of each of
the Transactions shall be subject to the fulfillment of the following Conditions
for Closing to the satisfaction of Purchaser (subject to Purchaser's exclusive
right to waive fulfillment of the Conditions for Closing). The Parties undertake
to act in good faith and to use their best efforts to ensure that the Conditions
for Closing are satisfied by the Delivery Date.
(a) Bring Down Conditions. It shall be a condition to the Closing that
-
(i) The representations and warranties set forth in Article VIII
above shall be true and accurate as at the Delivery Date;
(ii) Vendor shall have performed and complied in all material
respects with all covenants or conditions required by this Preliminary Agreement
to be performed and complied with prior to the Delivery Date;
(iii) No injunction or restraining orders shall be in effect
forbidding or enjoining the consummation of the Transaction contemplated hereby
and no legal action or governmental investigation shall be pending or threatened
which, if adversely determined, would reasonably be expected to result in such
injunction or order;
(iv) Vendor shall, where permissible under applicable law and if
and to the extent so agreed with the Contractors, have procured that the
Development Company has received estoppel certificates from each of the
Contractors as set forth in Section 4.8(d), evidencing that they do not have any
claim arising out the Construction Works against the Development Company; and
(b) 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 Transactions, shall have been issued by
the Polish Anti-Monopoly Office or the Czech Anti-Monopoly Office, if and to the
extent required under applicable Law (the "AMO APPROVAL");
(ii) The relevant Financing Bank shall have delivered to
Purchaser a duly signed Waiver and Consent substantially in the form and text
attached hereto as SCHEDULE 11.2(A)(I)(II);
(c) Closing Protocol. The Parties shall have compiled and executed a
Closing Protocol in respect of the relevant Development Company and Development
Project, which shall include, or to which shall be attached as schedules, the
following :
(i) The Proforma Development Closing Accounts;
(ii) The Transaction Prices Schedule, setting out the Initial
Delivery Purchase Prices;
(iii) All of the following schedules, updated to the Delivery
Date, namely : the Rights Acquisition Schedule; the Property Schedule; the
Project Liability Schedule; the Shareholder Loan Schedule; the Lease Schedule
(Tenant List as at the CP Satisfaction Date); Vendor's Disclosure Schedule; the
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Financial Statements; the Proceedings Schedule; the Environment Schedule; the
Insurance Schedule; Land Registry Extracts in respect of the relevant Project
Property updated to a date 14 (fourteen) days prior to the Delivery Date; and
any other schedules which may be required in terms of Article VIII above;
(iv) A Bring Down Certificate signed by an officer of PCE
confirming that the bring Down Conditions specified in Section 11.2(a) above are
true and accurate as at the Delivery Date;
(v) Vendor's Legal Opinion. shall have received an opinion of
Vendor's legal counsel in substantially the form set forth in SCHEDULE 11.2(V).
(vi) Legal Opinion of Purchaser's Counsel. Vendor shall have
received an opinion of legal counsel for Klepierre (and, if relevant, for each
of the Additional Purchaser) in substantially the form set forth in SCHEDULE
11.2(VI).
(vii) Sosnoweic Legal Opinion. By not later than the CP
Satisfaction Date in respect of the Sosnoweic Development Project, Vendor shall
have furnished Purchaser with the legal opinion referred to in Section 3.4
above.
11.3 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 shall sell, transfer and make over to Purchaser, and Purchaser
shall acquire from PCE, good, clean and valid title in and to the entire Equity
Rights (100%) in and to the relevant Development Company by way of the execution
of Share Purchase Agreements in the agreed form attached hereto as SCHEDULE
11.3(A)(A)(Poland) and SCHEDULE 11.3(A)(B)(Czech Republic) respectively in
respect of each Development Company, together with all ancillary documentation
required by operation of applicable Polish or Czech Law, as the case may be, in
order to give full and proper effect thereto;
(b) Immediately after the Equity Rights acquisition set forth in
Section 11.3(a) Purchaser shall cause each Development Company to pay the
relevant Initial Shareholder Loan Amount specified in the Shareholders Loan
Schedule, as part of the reimbursement of the corresponding Shareholder Loan;
(c) PCE shall cause the repayment of the Construction Loan Facility in
full on the Delivery Date;
(d) Vendor shall furnish Purchaser with unconditional letters of
resignation of each of the managing directors and management boards of each of
the relevant Development Company, as well as the resignations of all members of
the supervisory boards of the relevant Development Company, where relevant,
nominated by Vendor and/or its Affiliates, which shall be effective as at the
Delivery Date. Vendor undertakes to procure that none of the managing directors,
management boards members and supervisory board members appointed by it and who
shall resign at the Closing as aforesaid shall have any claims or rights against
the relevant Development Company and/or any of the Development Companies, and
that all their rights against such Development Companies are unconditionally
waived and released.
(e) Purchaser shall nominate and appoint, in the manner required under
applicable Polish or Czech Law, as the case may be, managing directors and
management boards for the relevant Development Company, and, where required,
members of the Supervisory Boards of the relevant Development Company.
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(f) Vendor shall if necessary convene on or before the Delivery Date,
such shareholders meetings of each of the relevant Development Company in order
to give full and proper effect to the Transactions contemplated herein, and to
replace the managing directors, management board members and the supervisory
board members of the relevant Development Company as aforesaid, where relevant.
(g) Vendor shall cause Purchaser to be furnished with the EMI Parent
Guarantee, if not already provided pursuant to the provisions of Section 3.5(a)
above;
(h) Purchaser shall execute payment to PCE of the Initial Delivery
Purchase Price for the relevant Development Company, as specified in the
Transaction Prices Schedule, subject to and in accordance with the provisions of
Section 7.6 above;
(i) Purchaser shall execute payment to PCE of the Initial Shareholder
Loan Amounts specified in the Transaction Prices Schedule, subject to and in
accordance with the provisions of Section 7.6 above;
(j) Against payment of the Delivery Purchase Price and the Initial
Shareholder Loan Amount as aforesaid, PCE shall return the original of the
Payment Guarantee to Purchaser, unexercised;
(k) The Parties shall execute all additional documents, deeds and
instruments which are required by operation of applicable Polish Law and
regulations in order to give full and proper effect to the Transactions
contemplated hereby.
11.4 Acknowledgement of Closing. Upon the full and proper execution of the
Closing in terms of this Article XI, the Parties shall execute an
Acknowledgement of Closing in agreed form confirming that the consummation of
the Transaction for the sale and acquisition of the relevant Development Company
has been accomplished.
ARTICLE XII - ADDITIONAL AGREEMENTS WITH POST CLOSING EFFECT
12.1 Non-Compete.
(a) PCE undertakes that neither it nor its Affiliates shall, during a
ten-year period commencing on the Delivery 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) 3 (three) kilometers from the
Novo Plaza Shopping in Prague District IV; or (ii) 10 (ten) kilometers in any
other regional city in which a Development Project (excluding Novo Plaza) is
situated.
12.2 Non-Solicitation. PCE and its Affiliates shall, for a period of 10
(ten) years following the Delivery Date, be prohibited (directly or indirectly)
from soliciting or encouraging the managers and employees of the respective
Management Companies 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 the respective Management Companies shall voluntarily resign from his
employment with those companies, or either of them, or in the event that such
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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 or
her employment as aforesaid.
ARTICLE XIII - OTHER AGREEMENTS AND COVENANTS
13.1 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 Preliminary 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.
13.2 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.
13.3 Updated Tenant List. By not later than a date 60 days following the
Delivery Date, PCE shall furnish Purchasers with an updated Tenant List as at
the Delivery Date, for information purposes only.
ARTICLE XIV - WITHDRAWAL OPTION
14.1 Withdrawal Option. Notwithstanding anything to the contrary herein
contained, Purchasers shall have an option to withdraw from the Transactions and
to terminate this Preliminary Agreement in respect of any Development Company at
any time prior to the Delivery Date, but only in the following events, namely:
(a) In the event that at any time prior to the Delivery Date,
Purchaser (whether as a result of their due diligence findings or otherwise)
shall become aware of facts, events or 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 relevant Development Company and/or the relevant
Development Project; and/or
(ii) material inconsistencies and/or inaccuracies in the
financial information provided to Purchasers, including in the Proforma
Development Closing Accounts and the Audited Development Closing Accounts;
and/or
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(iii) any other matters (including a material change in the
operations of the relevant Development Project or the relevant Development
Company 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.
(b) upon the occurrence of a change in the tax or legal situation of
Poland or the Czech Republic which has a Material Adverse Effect in the
aggregate.
14.2 Material Adverse Effect Defined. For the purposes of this Article XIV,
and without prejudice to the representations and warranties given by Vendor in
terms of Article VIII hereof, 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 Purchaser and/or on the rights and interests to be acquired by it
directly or indirectly in any Development Company in terms of this Preliminary
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
Delivery Development Project Value for that specific Development Company and/or
Development Project; or
(b) a discrepancy of more than 2% is revealed between the actual built
up area of the Development Project and the area specified in the Building
Permits; or
(c) 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 Purchaser in respect of a specific Development Company and/or
Development Project, in such manner that Purchaser 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 that specific Development Projects
and/or the relevant Development Company (it being specified that the existence
of Financing Banks Securities pertaining to the Construction Loan Facility shall
not per se constitute an MAE Event to the extent they are capable of release
upon full repayment of the relevant Construction Loan Facility).
14.3 Right of Withdrawal(a). Upon the occurrence of and MAE Event under
Section 14.2 above, Purchaser shall be entitled to withdraw from the transaction
for the acquisition of the Equity Rights in and to the relevant Development
Company and/or the acquisition of the relevant Development Project.
14.4 Withdrawal Notice and Rectification.
(a) Subject to the provisions of Section 14.5 below, if the Purchaser
elects to withdraw from any Transaction pursuant to the provisions of Section
14.2 above, it shall be entitled to do so by the giving of written notice of its
intention to do so, specifying its reasons for doing so, and giving particulars
of the MAE Event which has occurred in sufficient detail to enable Vendor to
identify the nature of the event.
(b) Vendor 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 Vendor,
Purchaser will not unreasonably withhold its consent to an extension of such
rectification period).
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(c) In the event that PCE shall have failed to rectify the matter to
the reasonable satisfaction of Purchaser within the said 21day rectification
period (as extended, where relevant), then and in such event the Withdrawal
Notice shall become effective
14.5 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 Purchaser in
terms of this Article XIV shall automatically lapse and be of no further force
and effect;
(b) The rights of withdrawal in terms of this Article XIV may not be
exercised by Purchaser if the Closing is postponed solely by reason of the fact
that the AMO Approvals referred to in Section 11.2(b)(i) above shall not have
been issued by the Delivery Date;
(c) Nothing in this Article XIV contained shall be deemed to derogate
from the rights of Vendor to refer any dispute regarding the existence of an MAE
Event to arbitration pursuant to the provisions of Section 18.3 below.
14.6 Consequences of Withdrawal and Termination.
(a) The exercise by Purcahsers of their rights of withdrawal and
termination in terms of this Article XIV 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 14.4 above, this Preliminary Agreement and all the Ancillary
Agreements, insofar as they pertain to the relevant Development Company, shall
be deemed to have been terminated by mutual consent and shall be of no further
force and effect.
ARTICLE XV - SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
15.1 Representations, Warranties and Covenants. The covenants contained in
this Preliminary Agreement and of any of the Ancillary Agreements shall survive
the applicable Delivery Date indefinitely and without limitation except as
otherwise specified therein. The representations and warranties contained in
this Preliminary Agreement shall survive the applicable Delivery 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 warranties of Vendor relating to Tax matters
(including in Section 8.16) 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 Vendor contained in Section 8.2 (Authorization) and Section 8.29
(Environment, Health and Safety), and the representations and warranties of
Purchaser contained in Section 9.2 (Authorization), shall survive the applicable
Delivery Date indefinitely and without limitation. Klepierre's right to make a
claim for indemnification under Section 16.1, and Vendor's right to make a claim
for indemnification under Section 16.2, 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 16.1 defined) may be suffered after the
Survival
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Date. Any claims under Article XVI must be asserted in writing with reasonable
particularity by the party making such claim.
ARTICLE XVI - INDEMNIFICATION
16.1 Indemnification by Vendor. Subject to Section 16.5 below, PCE shall
defend, indemnify and hold harmless Klepierre and Purchaser - and at the
discretion of Klepierre and/or Purchaser any of the Development Companies (and
their respective successors, assigns and Affiliates) (individually, a "PURCHASER
INDEMNITEE", and collectively, the "PURCHASER 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 Purchaser
Indemnitee which is caused by, resulting from or arising out of, related to, in
the nature of:
(a) any breach and/or inaccuracy of any representation or warranty of
Vendor contained in this Preliminary Agreement or in any Ancillary Agreement, or
other agreement, certificate, instrument or other document entered into or
delivered by Vendor in connection herewith;
(b) any breach of any covenant of Vendor contained in this Preliminary
Agreement or in any Ancillary Agreement, or other agreement, certificate,
instrument or other document entered into or delivered by Vendor in connection
herewith;
(c) Taxes chargeable to or asserted against any Development Company in
terms of a final assessment and/or enforceable judgment in respect of the period
preceding the Delivery 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 Development Closing Accounts (rather than in
any notes thereto);
(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 Delivery Date which are directly or indirectly
attributable to the acts, deeds and omissions of Vendor;
(e) 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 lack
in the Development Companies' books and records of documentary evidence
regarding transfer pricing and/or lack of substantiation of inter-company
charges;
(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
Vendor; and
(g) any of the Proceedings set forth in the Proceedings Schedule
(Schedule 8.25) and/or any environmental Damage related to the potential risks
set forth in Schedule 8.29(c) under a final and enforceable judgment or Order.
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16.2 Indemnification by Purchaser. Subject to Section 16.5, Klepierre,
Purchaser and Segece agree jointly and severally to defend, indemnify and hold
harmless PCE and its respective successors, assigns and Affiliates
(individually, a "VENDOR INDEMNITEE", and collectively, the "VENDOR
INDEMNITEES") from and against and in respect of any and all Damages suffered or
incurred by any Vendor 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 Purchaser
contained in this Preliminary Agreement, or in any Ancillary Agreement, or other
agreement, certificate, instrument or other document entered into or delivered
by any of Klepierre and/or Purchaser in connection herewith; and
(b) any breach of any covenant of any of Klepierre and/or Purchaser
contained in this Preliminary Agreement or in any Ancillary Agreement, or other
agreement, certificate, instrument or other document entered into or delivered
by Vendor and Klepierre and/or Purchaser in connection herewith.
16.3 Notice and Opportunity to Defend.
(a) If any action, proceeding, claim, liability, demand or assessment
shall be asserted by a third party against any Purchaser Indemnitee or any
Vendor 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 XVI such Indemnitee shall notify the party obligated to
provide indemnification pursuant to Section 16.1 or Section 16.2 (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 16.3(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 (iii) 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
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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 16.3(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 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.
16.4 Remedies. Except for the right to seek to specifically enforce the
covenants hereunder, and except as specifically provided in this Preliminary
Agreement (including, without limitation, the immediately succeeding sentence),
following the relevant Delivery Date, in the absence of fraud or willful breach
of this Preliminary Agreement, the sole and exclusive remedy of the Purchaser
(or, at the discretion of Purchaser, the Development Companies) and Vendor with
respect to any breach of any representation or warranty contained in this
Preliminary 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 XVI. Nothing contained in this
Article XVI or elsewhere in this Preliminary Agreement shall limit the liability
of any Party under this Preliminary Agreement if this Preliminary Agreement is
terminated pursuant to Section 17.1 or otherwise, or if the transactions
contemplated hereby shall not be consummated for any reason.
16.5 Certain Limitations. The liability of Vendor or Purchaser, as
applicable, for claims under this Preliminary Agreement shall be limited by the
following:
(a) At any time after the Survival Date, (i) Vendor shall have no
further obligations under this Article XVI for breaches of representations and
warranties of Vendor, except for Damages with respect to which the Purchaser
Indemnitee has given Vendor written notice prior to such date in accordance with
Section 16.3 above; and (ii) the Purchaser shall have no further obligations
under this Article XVI for breaches of representations and warranties of the
Purchaser, except for Damages with respect to which Vendor Indemnitee has given
the Purchaser written notice prior to such date in accordance with Section 16.3.
(b) Notwithstanding anything to the contrary herein, Purchaser
Indemnitees shall not be entitled to recover Damages from Vendor pursuant to
Section 16.1 unless and until the accumulated aggregate amount of Damages in
respect of any Development Company shall exceed an amount which is the
equivalent of E125,000 (the "VENDOR INDEMNIFICATION THRESHOLD"); provided,
however, that at such time as the aggregate amount of Damages in respect of the
indemnity obligations of Vendor shall exceed Vendor Indemnification Threshold,
Vendor shall thereafter indemnify any of the Purchaser Indemnitees from all and
against all Damage in excess of equivalent E10,000.
(c) Notwithstanding anything to the contrary herein, in the absence of
fraud or willful breach of this Preliminary Agreement (for which there shall be
no limitation), in no event shall the maximum aggregate liability of Vendor in
respect of any claims by the Purchaser Indemnitees against Vendor pursuant to
Section Section 16.1 for Damages suffered or incurred by any Purchaser
Indemnitee in respect of any Development Company exceed the maximum amount of
E80,000,000.
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(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) Purchaser and/or the Development Companies shall
authorize and permit the tax advisers of Vendor at Vendor's 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 Delivery Date, in close co-operation with the
accountants and tax advisers of the Purchaser and the Development Companies,
provided that neither Vendor nor its 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 Purchaser or any of the
Development Companies, without the prior written consent of the Purchaser, which
consent shall not be unreasonably withheld or delayed; and (ii) with respect of
claims which are not based upon a breach of Vendor's representations and
warranties given under Section 8.16 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 Purchaser and/or the Development
Companies in the accounting and/or tax policies of the Acquired Companies which
has, directly or indirectly, retroactive effect to the period preceding the
Delivery Date.
(e) Notwithstanding anything to the contrary herein, the limitations
contained in Section 16.5(b) shall not apply to claims for indemnification by
Purchaser Indemnitees against Vendor in respect of the indemnities specified in
Section 16.1 (b), (c), (d), (e) and (f) above, and in terms of Section 16.6
below;
(f) Notwithstanding anything to the contrary herein, Vendor
Indemnitees shall not be entitled to recover Damages from Purchaser unless and
until the accumulated aggregate amount of Damages in respect of each Development
Company shall exceed an amount which is the equivalent of E125,000 (the "BUYER
INDEMNIFICATION THRESHOLD"); provided, however, that at such time as the
aggregate amount of Damages in respect of the indemnity obligations of Purchaser
shall exceed the Purchaser Indemnification Threshold, Purchaser shall thereafter
indemnify any of Vendor Indemnitees from all and against all Damage in excess of
equivalent E10,000.
(g) Notwithstanding anything to the contrary herein, the limitations
contained in Section 16.5(f) shall not apply to claims for indemnification by
Vendor Indemnitees against Purchaser in respect of the indemnities specified in
Section 16.2(b);
(h) Notwithstanding anything to the contrary herein, in no event shall
the maximum aggregate liability of Purchaser in respect of any claims by Vendor
Indemnitees against Purchaser in respect of any Development Company pursuant to
Section 16.2 for Damages suffered or incurred by any Vendor Indemnitees exceed
E80,000,000.
16.6 Specific Indemnities. Notwithstanding the provisions of Section 16.5
above, and without prejudice to the provisions set forth in Section 16.1, Vendor
hereby provides Purchaser with the special indemnities set forth hereunder. The
special indemnities provided in terms of this Section 16.6 shall be in respect
of all Damages suffered by Purchaser' Indemnitees and shall be exempt from the
Vendor Indemnification Threshold and from the limitations provided for in
Section 16.5 above.
(a) Development Liability. Vendor shall indemnify the Purchaser
Indemnitees and hold them harmless from and against Damages arising from and/or
in connection with:
(i) Any Development Liability assumed by PCE in respect of the
Development Projects. in terms of the provisions of Section 4.8;
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(ii) The completion of the construction of the relevant
Development Project and/or the Contractors' Claims; and/or
(iii) Claims by and against any and all third party (including
tenants and neighbours) brought for damage, loss, personal injury or death by
reasons of and/or arising out of the completion of the Development Project;
and/or
(iv) By reason of a breach of zoning regulations, administrative
permits, damages to third parties caused by the design, engineering, and
construction of the Development Project.
(v) Following the final completion of the Development Project,
any defect and non-conformities in the Contractors' works (including engineering
and architectural studies) carried out in the Development Project, provided,
however that with respect to this sub-section, Vendor's obligations to indemnify
shall expire:
(1) 10 years from the date of the substantial completion
for shell and core (including waterproofing and
isolation) and the structural elements,
(2) 36 months from the date of the substantial completion
for mechanical parts, and
(3) 1 year from the date of the substantial completion for
other defects.
(b) Completion of Works. In the event that PCE and/or any Development
Company has undertaken to execute certain works as a condition to the award of
any Permit, or in the event that any Permit has been issued subject to the
condition that such works be performed by, and at the cost and expense of the
relevant Development Company, then and in such event Vendor undertakes to
indemnify Purchaser Indemnitees against any Damage arising in that regard, but
only to the extent that provisions for the cost of such works shall not have
been made in the Proforma Delivery Closing Accounts and/or the Definitive
Delivery Closing Accounts.
(c) Tesco Indemnity. The indemnifications granted by PCE in terms of
this provisions of this Section 16.6 shall not derogate from, and shall be in
addition to, the specific indemnities awarded by it in terms of the provisions
of Section 7.10 above.
ARTICLE XVII - TERMINATION
17.1 Termination of the Agreement. The Parties may terminate this
Preliminary Agreement in respect of any specific Development Company as provided
below:
(a) Any Party may terminate this Preliminary Agreement by mutual
written consent of all the Parties at any time prior to the Closing;
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(b) Any Party may terminate this Preliminary Agreement by written
notice if:
(i) the Delivery Date of the relevant Development Company has not
occurred by a date which is 6 (six) months following the relevant CP
Satisfaction Date; provided, however, that the right to terminate this
Preliminary Agreement under this Section 17.1(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 Preliminary 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 Preliminary 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 Preliminary Agreement by any Governmental Body that would
make consummation of the transactions contemplated by this Preliminary Agreement
illegal;
(c) Klepierre and Purchaser on the one hand, and/or PCE on the other
hand, may terminate this Preliminary Agreement in respect of any Development
Company by written notice in the following events, namely -
(i) By Klepierre if PCE fails to deliver the Project Portfolio in
good time in terms of Section 2.2(c) above;
(ii) By either Party in terms of the provisions of Section 2.2(i)
above in the event that the First Condition Subsequent has not been fulfilled by
the Cut-Off Date;
(iii) By either Party in terms of the provisions of Section
4.3(c) above in the event that the Building Permits have not been issued by the
Building Permit Target Date;
(iv) By PCE in terms of the provisions of Section 4.5(c) above in
the event that the Construction Works shall not have commenced by the first
anniversary of the Execution Date due to Purchaser's default;
(v) By Purchaser in terms of the provisions of Section 4.5(d) in
the event that the Construction Works shall not have commenced by a date 6 (six)
months following the Building Permit Date due to PCE's default;
(vi) By either Party in terms of the provisions of Section 4.7(c)
in the event that an event of Excusable Delay continues un-remedied for a period
exceeding 6 (six) months; and
(vii) By either Party in terms of the provisions of Section
5.3(g) in the event that the CP Satisfaction Date shall not have occurred by the
dates specified therein; and
(d) Klepierre and Purchaser may terminate this Preliminary Agreement
in respect of any Development Company by written notice if they are not in
material breach of their obligations under this Preliminary Agreement, if there
has been a material breach of any covenant, undertaking, obligation or agreement
contained in this Preliminary Agreement on the part of Vendor, and such breach
has not been
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cured within thirty (30) calendar days after written notice to the other party
(provided, however, that, no cure period shall be required for a breach which by
its nature cannot be cured).
(e) PCE may terminate this Preliminary Agreement in respect of any
Development Company by written notice if it is not in material breach of its
obligations under this Preliminary Agreement, if there has been a material
breach of any covenant, undertaking, obligation or agreement contained in this
Preliminary Agreement on the part of Purchaser, and such breach has not been
cured within thirty (30) calendar days after written notice to the other party
(provided, however, that, no cure period shall be required for a breach which by
its nature cannot be cured).
(f) For the purposes of this Section 17.1, a breach of this
Preliminary Agreement shall be deemed to be material if its goes to the root of
this Preliminary Agreement and/or may reasonably be deemed to substantially
frustrate the purpose and intent of the Parties hereto.
17.2 Effect of Termination. If any Party terminates this Preliminary
Agreement pursuant to Section 17.1 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 13.1
(Confidentiality) and Article XV (Miscellaneous) shall survive termination.
17.3 Partial Termination. If a notice of termination has become effective
in respect of an individual Development Company only, then and in such event
this Preliminary Agreement and the Ancillary Agreements shall be deemed to have
been modified and amended in such manner that all references to the relevant
Development Company shall be deleted..
ARTICLE XVIII - MISCELLANEOUS
18.1 Press Releases and Public Announcements. No Party shall issue any
press release or make any public announcement relating to the subject matter of
this Preliminary Agreement prior to the Closing without the prior written
approval of the other Party; provided, however, that (a) Klepierre 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 Klepierre and Purchaser 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.
18.2 Governing Law. This Preliminary 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 Preliminary
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 Equity Rights in the Development Companies and
the subrogation of the Shareholder Loans, where relevant, shall be executed in
compliance with applicable Polish or Czech Law, as the case may be.
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18.3 Dispute Resolution.
(a) For any dispute, difference or claim arising out of or relating to
this Preliminary Agreement or the Ancillary Agreements (other than as set forth
in Section 18.3(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 Purchaser and PCE. In the event that Purchaser 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
Purchaser or PCE may seek to resolve the dispute or claim by arbitration in
accordance with the procedures set forth in Section 18.3 (b) of this Preliminary
Agreement.
(b) Subject to Section 18.3(a) above and other than as set forth in
Section 18.3(h) below, any dispute, difference or claim between the Parties with
regard to this Preliminary 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 Purchaser and Vendor 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").
Klepierre and Purchaser shall be considered as the same party for the purpose of
the appointment of the Party Appointed Arbitrators in terms of this section.
(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 Preliminary Agreement (save in those instances where Polish or
Czech Law, as the case may be, is applicable as specified in Section 18.2 above.
However the Tribunal may, but only with the prior consent of the adjudicating
Parties, act as amiables 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.
(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 18.3 shall not apply to disputes
and claims before the Closing Expert under Section 7.8(j) above.
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(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 18.3 constitutes a separate agreement to arbitrate
which shall survive the termination of this Preliminary Agreement for any
reason.
18.4 Perfection of Schedules. Save where specifically stated to the
contrary, all schedules referred to in this Preliminary Agreement shall be
furnished on the Execution Date, save in respect of: (i) the Transaction Prices
Schedule; (ii) the Land Registry Extracts; and (iii) which will be furnished on
or about the Delivery Date. Notwithstanding the aforegoing, all Schedules shall
be updated and re-delivered on or immediately prior to the Delivery Date.
18.5 No Third-Party Beneficiaries. This Preliminary Agreement shall not
confer any rights or remedies upon any Person other than the Parties and the
Acquired Companies as contemplated in Section 16.1 above, and their respective
successors and permitted assigns, other than as specifically set forth herein
(including in Section 2.4 above).
18.6 Entire Agreement and Modification. This Preliminary 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 dated May 20, 2005.
This Preliminary Agreement may not be amended except by a written agreement
executed by all Parties.
18.7 Amendment. At any time prior to the Closing, this Preliminary
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 Preliminary Agreement may be amended by all the
Parties by execution of an instrument in writing.
18.8 Waivers. The rights and remedies of the Parties to this Preliminary
Agreement are cumulative and not alternative. Neither the failure nor any delay
by any Party in exercising any right, power or privilege under this Preliminary
Agreement or the documents referred to in this Preliminary 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 Preliminary Agreement or the documents
referred to in this Preliminary 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 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
Preliminary Agreement or the documents referred to in this Preliminary
Agreement.
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18.9 Successors and Assigns. This Preliminary 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 Preliminary Agreement without
the prior written consent of the other Parties. Notwithstanding the foregoing,
Purchaser shall have the unrestricted right to assign this Preliminary Agreement
and to delegate all or any part of their obligations hereunder (i) to any
Additional Purchaser as contemplated in Section 2.4 above; (ii) to any direct or
indirect Affiliate of Purchaser; or (iii) 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 Purchaser shall remain fully liable for the
performance of all of such obligations in the manner prescribed in this
Preliminary Agreement. Nothing in this Preliminary Agreement shall confer upon
any person or entity not a party to this Preliminary 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 Preliminary Agreement.
18.10 Counterparts. This Preliminary 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.
18.11 Headings. The section headings contained in this Preliminary
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Preliminary Agreement.
18.12 Notices.
(a) Any notice, approval, request, authorization or other
communication under this Preliminary 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:
000 Xxxxxxxxxxxxx,
XX0000 Xxxxxxxxx,
Xxx Xxxxxxxxxxx.
Tel: 00-00-0000000
Fax: 00-00-0000000
For the attention of Xx. Xxx Xxxxxxxx
With a copy to:
00 Xxxxx Xxxxxx.,
Xxx Xxxx,
Xxxxxx
Tel: 000-0-0000000
75
Fax: 000-0-0000000
For the attention of Xx. Xxxx Xxxxxx, General Counsel.
Klepierre:
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.
(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.
18.13 Severability. Any term or provision of this Preliminary 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.
18.14 Expenses. Subject to the provisions of this Preliminary Agreement,
each Party will bear its own costs and expenses (including legal and accounting
fees and expenses) incurred in connection with this Preliminary Agreement and
the transactions contemplated hereby. All notarial fees and other costs
(excluding taxes) which may be incurred in connection with the transfer of the
Equity Rights in the Development Companies - shall be borne equally by PCE on
the first hand, and Purchaser on the second hand.
18.15 Construction.
(a) The Parties have participated jointly in the negotiation and
drafting of this Preliminary Agreement. In the event an ambiguity or question of
intent or interpretation arises, this Preliminary 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 Preliminary 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
Preliminary 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.
18.16 Attorneys' Fees. If any legal proceeding or other action relating to
this Preliminary 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).
76
18.17 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
Preliminary Agreement and the documents referred to in this Preliminary
Agreement.
18.19 Time of Essence. With regard to all dates and time periods set forth
or referred to in this Preliminary Agreement, time is of the essence.
18.20 Schedules and Exhibit. The Schedules and Exhibits described herein
and attached hereto constitute an inseparable part of this Preliminary Agreement
and are incorporated into this Preliminary Agreement for all purposes as if
fully set forth herein. Any disclosure made in any Schedule to this Preliminary
Agreement which may be applicable to another Schedule to this Preliminary
Agreement shall be deemed to be made with respect to such other Schedule only if
a specific cross reference is made thereto.
18.21 Euro. All currency amounts expressed herein (whether or not preceded
by E) are in the currency of the Euro, unless preceded by PLN, KCz or USD,
in which case, the amounts will be in the currency of Polish Zloty, Czech Kroner
or the United States Dollar, respectively.
18.22 Language. This Preliminary Agreement and all documents contemplated
hereby or relating thereto shall be prepared and binding in the English
language.
THIS SPACE INTENTIONALLY LEFT BLANK
77
IN WITNESS WHEREOF, the Parties hereto have executed this Preliminary
Agreement on of the date first above written.
KLEPIERRE: KLEPIERRE SA
By:
------------------------------------
Name: Xx. Xxxxxxxxx XXXXXX
Title: Under Power of Attorney
Date:
----------------------------------
PCE: PLAZA CENTERS (EUROPE) BV
By:
------------------------------------
Name: Xxxxxx Xxxxxx
Title: President and CEO
Date:
----------------------------------
INDEX OF SCHEDULES
Schedule Title
----------- -----
1.1(A) Accounting Principles
1.1(C) Schedule of Agreed Yields and Forecasted Rentals
1.1(O) Conditional Trademark License Agreement
1.1(KK) Gross Rentals Definition Schedule
1.1(SS) Leasing Parameters Schedule
1.1(DDD) Portfolio Liabilities Schedule
1.1(HHH) Projects Value Methodology Schedule
1.1(III) Property Schedule
1.1(PPP) Restated Net Asset Methodology Schedule
1.1(QQQ) Rights Acquisition Schedule
1.1(SSS) Shareholders Loan Schedule
1.1(TTT) Standard Form Lease
2.2(G) Land Ownership Notice
2.4(B) Form of Deed of Accession and Joinder
3.3 Lublin Option Agreement
3.5(A) Form of EMI Parent Guarantee
4.2(A) Construction and Development Parameters
4.2(D)(A) Sosnoweic Modification Plans
4.2(D)(B) Novo Plaza Modification Plans
7.47.5 Transaction Prices Schedule
7.7(A) Form of Payment Guarantee
2
Schedule Title
----------- -----
7.7(D) Closing Agent Agreement
7.11(B) Agreed Book Asset Values
8.0 Vendor's Disclosure Schedule
8.21 Insurance Schedule
8.23(A) Leases Schedule
8.25 Proceedings Schedule
8.29(C) Environment Schedule
8.30 Intergroup Agreements Schedule
11.2(B)(II) Waivers and Consents
11.2(C)(V) Vendor's Legal Opinion
11.2(C)(VI) Purchaser Legal Opinion of Counsel
11.3(A)(A) Form of Share Purchase Agreement (Poland)
11.3(A)(B) Form of Share Purchase Agreement (Czech Republic)
11.3(B) Form of Shareholders Loan Subrogation [Assignment] Agreement
3
INDEX OF DEFINITIONS
DEFINED TERM SECTION
------------ -----------
Accounting Principles 1.1(a)
Acquisition Proposal 10.3(c)
Affiliate 1.1(b)
Agreed Yields 1.1(c)
AMO Approval 11.2(b)(i)
Ancillary Agreements 1.1(d)
Approved Plans and Designs 1.1(e)
Audited Development Closing Accounts 7.8(f)
Benefit Plans 8.28(b)
Books and Records 1.1(f)
Building Permit Date 4.3(d)
Building Permit Target Date 4.3(b)
Building Permits 1.1(g)
Business Day 1.1(h)
Businesses 1.1(i)
Buyer Indemnification Threshold 16.5(f)
Purchaser 2.4
Purchaser' Accountants
Purchaser Indemnitee(s) 16.1
Certificate of Practical Completion 5.1(c)
Certificate of Practical Completion
Closing
Closing Agent 7.7(c)(ii)
Closing Date 11.1
Closing Experts 7.8(i)
Competent Authorities
Completion Criteria
Conditional Trademark License Agreement
Conditions Precedent for Delivery 5.3(a)
Construction Loan Facility
Construction Start Notice 4.6(b)
Construction Start Notice
Construction Works
Contract 8.14(b)
Contractors 4.1(b)(i)
Contractors Agreements 4.6(a)(i)
Contractors' Bonds 4.9(f)
4
DEFINED TERM SECTION
------------ -----------
Contractors' Claims 4.9(b)
Covenant Period Article 10
CP Cut-Off Date 5.3(h)
CP Satisfaction Date
Cut-Off Date 2.2(a)(ii)
Damages 16.1
Date of Request 18.3(a)
DDPV
Definitive Delivery Purchase Price 7.2
Definitive Development Closing Accounts 7.87(a)
Definitive Shareholder Loan Amounts 7.8(c)(ii)
Delivery Date
Delivery Development Project Value
Delivery Rentals
Development Company
Development Liability 4.9(b)
Development Project
Development Projects Laws 8.18(d)
Development Projects Permits 8.18(g)
Dispute Notice 7.8(g)
EMI
EMI Parent Guarantee
Employee
Environment, Health and Safety
Equity Rights
Excusable Delay 4.8
Execution Date
Final Definitive Development Closing
Final Development Project Adjustment Date
Final Development Project Rentals
Final Development Project Value
Final Operational Projects Value 7.9(b)
Financial Statements 8.12(b)
Financing Banks
Financing Banks Securities
First Condition Subsequent 2.2(a)(ii)
Forecasted Development Project Value
Forecasted Rentals
Governmental Body
Gross Rentals
Improvements 8.18(b)
Indebtedness
Indemnifying Party 16.3
Indemnitee 16.2
5
DEFINED TERM SECTION
------------ -----------
Initial Delivery Prices 7.5(a)(i)
Initial Shareholder Loan Amount 7.5(a)(ii)
Knowledge of Vendor
Land Ownership Criteria
Land Ownership Notice 2.2(b)
Land Ownership Notice
Land Registry Extracts
Law
Lease Agreement(s)
Lease-Up Criteria
Lease-Up Period 6.1(c)
Leasing Parameters
Liability
Xxxx
Xxxxxx Option Agreement
MAE Event 14.2
Management Company
Material Adverse Effect 14.2
Material Business Contracts 8.22
New Leases 6.1(a)
Notice 18.12(a)
Opening Date
Operating Permit
Order
Payment Guarantee 7.7
PCE Group Approvals
Permit
Permitted Liens
Person
Practical Completion 5.1
Practically Complete 5.1
Prepayment Amounts 8.11(c)
Prepayment Date 8.11(c)
Proceedings 8.25
Proforma Development Delivery Accounts 7.1
Project Liabilities Schedule
Project Manager
Project Portfolio 2.2(a)(i)
Project Properties
Property Schedule
Prudent Industry Practice
Purchased Assets
Purchaser
Purchaser's Group Approvals
6
DEFINED TERM SECTION
------------ -----------
Qualifying Lease Agreements
Representatives
Requirements 8.29(a)
Restated Net Asset Methodology Schedule
Restricted Areas 12.1(b)
Review Period 7.8(f)
Rights Acquisition Schedule
Rules 18.3(b)
Share Purchase Agreement
Shareholder Loan Schedule
Shareholder Loans
Shareholder Loans Amounts
Standard Form Lease
Standard Form Lease Approval Date
Survival Date 15.1
Target Opening Date 5.1(a)
Tax Return 8.16(b)
Tax, Taxes 8.16(a)
Tenant List
Tesco Lease 7.10(a)
Tesco Lessee 7.10(a)
Tesco Rentals Refund Amount 7.10(a)
TescoRentals 7.10(a)
Third Party Claim 16.3
Transaction Agreements
Transaction Approvals
Transaction Price Schedule
Transactions
Tribunal 18.3(b)
Uncertainty 7.8(g)
Vendor Indemnification Threshold 16.5(b)
Vendor Indemnitee(s) 16.2
Vendor's Disclosure Schedule 8.0
Verification Disputes 7.8(i)
Verification Period 7.8(a)
Waivers and Consents
7
