Attached files
| file | filename |
|---|---|
| 8-K - Vu1 CORP | v170055_8k.htm |
| EX-10.1 - Vu1 CORP | v170055_ex10-1.htm |
AMENDMENT
NO. 2
to
THE
PURCHASE AGREEMENT DATED NOVEMBER 25, 2008
Concluded
by and between:
Milan
Gottwald,
birth
identification number 750219/5327,
Tax Id.
No.: CZ 7502195327
residing
at: Náklo 334, Postal Code: 783 32
account
No. 6319656084/2700, kept by UniCredit Bank Czech Republic, a.s.
(hereinafter
the “Seller”)
on the
one part
and
SENDIO
s.r.o.
Id. No.:
281 64 440,
Tax Id.
No.: CZ28164440
with its
registered office: Olomouc, Holická 156/49, Postal Code 77900,
registered
in the Commercial Register kept by the Regional Court in Ostrava in Section C,
Inset 43097,
represented
by Philip Glyn Styles and William Duncan Troy, Executives of the
company
(hereinafter
the “Buyer”)
on the
other part
(the
Seller and the Buyer are hereinafter jointly referred to as the “Parties”)
The
Parties agreed on the following Amendment No. 2 to the Purchase Agreement dated
November 25, 2008:
Article
I.
Introductory
Provisions
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1.1
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On
November 25, 2008 the Seller and the Buyer concluded the Purchase
Agreement, pursuant to which, and subject to agreed conditions and payment
of the agreed purchase price, certain Seller’s real estates in the
cadastral area of Hodolany, the municipality of Olomouc, registered in the
Land Registry kept by the Cadastral Authority for the Olomouc Region,
Olomouc cadastral workplace, on title sheet (LV) No. 2978, shall be
transferred to the Buyer (hereinafter the “Purchase
Agreement”).
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1.2
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On
March 18, 2009 the Seller and the Buyer concluded the Amendment No. 1 to
the Purchase Agreement (hereinafter the “Amendment No. 1”) due to
default of the Buyer and his request for postponement of the term of
payment of the installment (advance payment) of the purchase price
pursuant to Art. III (2) (i) of the Purchase Agreement in the amount of
CZK 11,000,000.00 (payable on February 28, 2009), or for modification of
the entire payment schedule of the purchase price. Pursuant to the
Amendment No. 1 it was agreed that the Buyer should pay the respective
installments (advance payments) originally set out by the Art. III. (2)
(i), (ii) and (iii) of the Purchase Agreement, i.e. installments in the
total amount of CZK
16,500,000.00 (in words: sixteen million five hundred thousand
Czech crowns), as follows:
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1
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(i)
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installment
in the amount of CZK
1,000,000.00 (in words: one million Czech crowns) was paid by the
Buyer prior to execution of the Amendment No. 1;
and
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(ii)
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installment
in the amount of CZK
15,500,000.00 (in words: fifteen million five hundred thousand
Czech crowns) was to be paid by the Buyer on May 14, 2009 at the
latest,
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while the
remaining payment conditions agreed in the Purchase Agreement, in particular the
payment method, as well as securing of the payments, remained unaffected. The
remaining installments (advance payments) of the purchase price pursuant to the
Art. III. (2) (iv) and (v) of the Purchase Agreement remained unaffected by the
Amendment No. 1.
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1.3
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Prior
to the term of payment of the installment (advance payment) of the
purchase price in the amount of CZK 15,500,000.00 (in
words: fifteen million five hundred thousand Czech crowns), pursuant to
the Amendment No. 1 payable on May 14, 2009, the Buyer again initiated
negotiations with the Seller of further postponement of the said term of
payment, or of further modification of the entire payment schedule of the
purchase price.
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1.4
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Due
and timely payment of installment (advance payment) of the purchase price
in the amount of CZK
15,500,000.00 (in words: fifteen million five hundred thousand
Czech crowns) pursuant to the Amendment No. 1 payable on May 14, 2009 was
condition for non-application of the Buyer’s penalty claims pursuant to
Art. XIII of the Purchase Agreement, corresponding to the contractual fine
in the amount of CZK 17,500,000.00 and/or claiming of the indemnification
exceeding the amount of the contractual fine up to the amount of CZK
26,000,000.00 and/or withdrawal from the Purchase Agreement (hereinafter
the “Penalty
claims”). The Buyer did not pay the said installment (advance
payment) of the purchase price in the amount of CZK 15,500,000.00.
Therefore, the Seller called upon the Buyer by letter of May 15. 2009 to
pay the installment of the purchase price in the amount CZK 15,500,000.00
and by letter of May 21, 2009 to pay the contractual fee in the amount of
CZK 17,500,000.00.
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1.5
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The
Buyer hereby acknowledges its obligation to pay to the Seller the
contractual fine in the amount of CZK 17,500,000.- (in words: seventeen
million five hundred thousand Czech crowns), which has arisen pursuant to
Art. XIII (1) (ii) of the Purchase Agreement due to the failure of the
Buyer to pay the partial installment on the purchase price under Art. III
(2) (i) of the Purchase Agreement in the amount of CZK 11,000,000 by
February 28, 2009, alternatively due to the failure of the Buyer to pay
the partial installment on the Purchase Price under Art. I (1.2) of
the Amendment No. 1 to the Purchase Agreement in the amount of CZK
15,500,000.- by May 15, 2009, as demanded by the Seller´s notice dated May
21, 2009.
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1.6
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Furthermore,
the default of the Buyer with the payment of the installment (advance
payment) of the purchase price constituted the right of the Seller to
claim the payment of the purchase price via guarantee provided by parent
company of the Buyer pursuant to the Art. VI (2) of the Purchase
Agreement, i.e. pursuant to the guarantor’s declaration of the company VU1
Corporation, seated at 557 Roy Street, Suite 125, WA 98109, U.S.A.
(registered at San Mateo, Gateway Drive, Suite 200 1840, 944 04, CA,
U.S.A.) of November 24, 2008 (hereinafter the “Guarantor’s
declaration”).
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1.7
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The
Seller and the Buyer agreed on basic principles of amendment of the
Purchase Agreement and on May 29, 2009 carried out the “Memorandum of
Contracting Parties on the Initiation of Negotiation on the Contracts
Modification and on the Temporary Respite of Claims” and on June 3, 2009
executed the Principal Conditions Related to the Amendments to the Lease
Contract of May 28, 2008 and Purchase Agreement of November 25,
2008.
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2
Article
II.
Amendment
of and changes to the Purchase Agreement
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2.1
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In
consideration of the fact that due to the default of the Buyer the
original agreement of the Parties, pursuant to which the Buyer should have
became the exclusive owner of the real estates in question, will not be
fulfilled, the Parties agree on the below stipulated amendments of and
additions to the Purchase Agreement, which ensue from the agreements made
in the “Memorandum of Contractual Parties on Initiation of Negotiation on
the Contracts Modification and on the Temporary Respite of Claims”, and
the “Head of Terms related to amendments to the Lease Contract dated May
28, 2008 and the Purchase Contract dated November 25, 2008”, and that
reflect the fact that both Parties are still interested in continuation of
the concluded contractual relationship, however under revised conditions,
and also complete the transfer of the ownership of the real estate in
question pursuant to the below agreed
schedule.
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2.2
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The
Parties agreed that the Purchase Agreement is hereby amended and changed
as follows:
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·
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The
following sentence is hereby amended to Recital A. of the
Preamble:
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“The
validity of the Lease Contract expired on June 30, 2009. On November 30, 2009,
the Parties concluded new lease contract under which the Buyer shall lease the
Premises in the period from December 1, 2009 to June 30, 2011 (hereinafter the
“New Lease
Contract”).”
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·
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Recital
D. of the Preamble shall read:
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“D.
On November 25, 2009 the Buyer, the Seller and UniCredit Bank Czech Republic,
a.s., with its registered office: Prague 1, Na Příkopě
858/20, Postal Code 111 21, Id. No.: 649 48 242 (hereinafter the “Escrow Agent”), concluded an
escrow agreement (hereinafter the “Escrow Agreement”), providing,
inter alia, for establishment of escrow account No. 2101989486/2700 (hereinafter
the “Escrow Account”),
which shall be used exclusively for the purposes described in the Escrow
Agreement.”
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·
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In
Recital G. of the Preamble the date “July 1, 2009” is hereby replaced by
“July 1, 2011”.
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·
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The
following sentence is hereby amended to Art. III
(1):
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“The
Parties hereby declare and confirm that the Buyer paid into the Escrow Account
the following installments on the Purchase Price:
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a)
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on
March 9, 2009 the amount of CZK 1,000,000.- (in words: one million Czech
crowns);
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b)
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on
June 6, 2009 the amount of CZK 645,834.- (in words: six hundred
forty-five thousand eight hundred thirty-four Czech
crowns);
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c)
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on
July 20, 2009 the amount of CZK 645,834.- (in words: six hundred
forty-five thousand eight hundred thirty-four Czech
crowns);
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d)
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on
August 27, 2009 the amount of CZK 645,834.- (in words: six hundred
forty-five thousand eight hundred thirty-four Czech
crowns);
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e)
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on
September 25, 2009 the amount of CZK 645,834.- (in words: six hundred
forty-five thousand eight hundred thirty-four Czech
crowns);
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f)
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on
November 3, 2009 the amount of CZK 645,834.- (in words: six hundred
forty-five thousand eight hundred thirty-four Czech
crowns);
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·
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Art.
III (2) shall read:
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“2.
The Buyer agrees to deposit the balance of the Purchase Price for the Real
Estate in the Escrow Account in individual installments as follows:
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(i)
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the
amount of CZK 12,270,846 (in words twelve million two hundred seventy
thousand eight hundred forty-six Czech crowns) shall be paid into the
Escrow account in 19 (nineteen) equal monthly installments of CZK
645,834.- (in words six hundred and forty-five thousand eight hundred and
thirty-four Czech crowns); each monthly installment is due on the first
Monday of particular calendar month starting from December
2009.
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(ii)
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the
amount of CZK 156,332,316.- (in words: one hundred and fifty-six million
three hundred two thousand three hundred sixteen Czech crowns) shall be
paid by the Buyer into the Escrow Account (subject to a possible change
pursuant to Art. III (6) hereof) at the latest by June 30, 2011. For the
avoidance of doubt the Parties declare that this amount includes the
payment pursuant to Art. VI (2) (i)
hereof.”
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·
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Art.
III (5) shall read:
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“5.
The terms and conditions of payment of part of the Purchase Price in the amount
of CZK 175,000,000.00 by the Buyer into the Escrow Account, as well as the terms
and conditions of release of the money from the Escrow Account, are described in
Art. III (7) and in Art. IX.. hereof and also in the Escrow Agreement, as
amended.”
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·
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In
Art. III (6) the words “in (iv) and (v)” shall be deleted from the first
sentence.
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·
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The
following Section 7 is an amendment to Art.
III:
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“7.
The Buyer hereby agrees to release up to one half of the currently due amount of
the Loan (including all accessories) in May 2010 (or at other suitable time
anticipated in the Escrow Agreement, as the case may be) from the Escrow Account
into the Seller´s bank loan account, no. 20001-6319656084/2700, kept by the
Escrow Agent. The amount represents an extra installment on the Loan.
Furthermore, the Buyer agrees to release up to the whole of the currently due
amount of the Loan (including all accessories) in May 2011 (or at other suitable
time anticipated in the Escrow Agreement, as the case may be) from the Escrow
Account into the Seller´s bank loan account, no. 20001-6319656084/2700, kept by
the Escrow Agent. The amount represents an extra installment on the
Loan.”
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·
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Art.
IV (1) (k) shall read:
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“(k)
The Seller undertakes, subject to due and timely fulfillment of the Buyer´s
payment obligations under this Agreement, to pay the installments on the Loan in
the full amount and in a timely manner, as agreed in the Loan Agreement
specified in Recital C. hereof.”
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·
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The
following Section 5 is an amendment to Art.
IV:
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“5.
The Buyer represents and certifies that as of the day of execution of this
Amendment No. 2 the Buyer is not aware of any breach of the Seller’s
representations mentioned in this Agreement and that as of this day right to
withdraw from this Agreement has not accrued to the Buyer and that the Buyer is
not aware that right for contractual penalty or compensation of damage has
accrued to the Buyer as of this day.”
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·
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In
Art. V (1) the date “June 30, 2009” is hereby replaced by “June 30,
2011”.
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·
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In
Art. V (2) the text “pursuant to Art. III (2) (i) to (iii)” in the second
sentence is replaced by the text “pursuant to Art. III (2)
(i).”
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·
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Art.
VI (2) shall read:
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“2.
The Buyer agrees to provide the Seller on the third business day following the
execution of the Amendment No. 2 to this Agreement at the latest, with legal
guarantees in order to secure the Buyer’s obligations under this Agreement in
the form of:
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(i)
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payment
of the amount of CZK 2,167,668.-, into the Escrow Account, from where it
should be released in accordance with the rules of settlement described in
Art. XIII (1) hereof and also in the Escrow Agreement, or it shall be
offset against the amount of Purchase price for the Real Estates and paid
to the Seller in accordance with the conditions set out in Art. IX (1) (i)
hereof and in the Escrow Agreement.
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The
Buyer certifies the validity of the guarantor’s declaration issued by the
Buyer’s parent company, i.e. VU1 Corporation, of November 24, 2008, in the
amount of CZK 13,500,000.- (thirteen million five hundred thousand Czech
crowns), the purpose of which is to secure the Buyer’s obligations pursuant to
Art. III (2) (i) hereof. The Buyer shall procure without undue delay after
execution of this Amendment No. 2 to this Agreement a legal opinion of the legal
representatives of VU1 Corporation confirming the validity and enforceability of
the guarantor’s declaration specified in this paragraph with respect to the
claims resulting from this Agreement as amended by the Amendments Nos. 1 and
2.”
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·
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The
following sentence is hereby amended to Art. VII (1)
(ii):
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“This
condition is deemed fulfilled also in the event of release of the amounts from
the Escrow Account to settle the Loan in accordance with Art. III (7) hereof,
i.e. in the moment of issuance of the Escrow Agent’s declaration the Escrow
Account balance will be decreased by amounts released in accordance with Art.
III (7) hereof.”
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·
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Art.
VII (2) shall read:
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“2.
If the conditions precedent set out in Art. VII (1) hereof are not fulfilled by
January 31, 2012 or on a later date agreed in writing by the Parties, this
Agreement shall expire and the Purchase Price in the amount deposited in the
Escrow Account, including accrued interest, shall be returned to the Buyer
and/or to the Seller in accordance with the rules set out in Art. XIII (1)
hereof and in the Escrow Agreement. All the rights and obligations of the
Parties under this Agreement shall expire upon expiry of this Agreement, except
for the rights and obligations of the Parties incurred as a consequence of
breach of the obligations following from this Agreement.”
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·
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In
Art. VIII (1) the date “July 1, 2009” is hereby replaced by “July 1,
2011”.
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·
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Art.
IX (1) (i) shall read:
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“(i)
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pursuant
to the relevant provisions of the Escrow Agreement, the Escrow Agent shall
pay to the Seller, from the Escrow Account, the amount of CZK
153,130,000.00 (in words: one hundred and fifty-three million one hundred
and thirty thousand Czech crowns) decreased by the amounts paid to the
Seller’s bank loan account in accordance with Art. III (7) hereof into the
Seller’s account specified in the header hereof and shall submit a written
confirmation of this fact to each of the Parties; and
subsequently”
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·
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Art.
XII (2) (i), (ii) and (iii) shall
read:
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“(i)
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claim
an appropriate discount on the Purchase Price in an amount corresponding
to the nature and scope of the defect, which may not exceed in aggregate
the amount of CZK 17,500,000.00 (in words: seventeen million five hundred
thousand Czech crowns); and/or
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(ii)
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claim
indemnification (including reimbursement of the necessary expenses)
exceeding the claim for a discount pursuant to subparagraph (i) above,
which may not exceed in aggregate the amount of CZK 26,000,000.00 (in
words: twenty-six million Czech crowns), less the actually paid discount
pursuant to subparagraph (i) hereof;
or
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(iii)
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withdraw
from this Agreement provided that the aggregate amount of the claim for a
discount pursuant to subparagraph (i) above has already exceeded the
amount of CZK 40,000,000.00 (in words: forty million Czech crowns), with
effect as of the date of delivery of the Buyer's notice of withdrawal from
this Agreement to the Seller;”
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·
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Art.
XII (3) shall read:
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“3.
If the Seller breaches the prohibition to donate or exchange the Real Estate or
part thereof, to encumber the Real Estate in any manner whatsoever, i.e. create
mortgage rights, pre-emption rights (as encumbrances), etc., as he agreed in the
third sentence of Art. XIV (4) hereof, the Buyer shall be entitled
to:
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(i)
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withdraw
from this Agreement, with effect as of the date of delivery of the Buyer’s
notice of withdrawal from this Agreement to the Seller;
and/or
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(ii)
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claim
indemnification for damage caused by breach of this obligation, whose
amount may not exceed CZK 50,000,000.00 (in words: fifty million Czech
crowns).”
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·
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The
following sentence is hereby amended to Art. XII
(6):
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“This
shall not apply to factual defects which have their origin in the period
commencing at the moment when the Buyer, on the basis of the Lease Contract
and/or another legal title, took over the Premises and/or their parts which are
affected by such factual defect.”
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·
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The
following Section 11 is an amendment to Art.
XII:
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“11.
If the Buyer raises any of its claims pursuant to Art. XII, the Seller´s claim
to payment of the contractual fine in the amount of CZK 17,500,000.- (in words:
seventeen million five hundred thousand Czech crowns) arising from the Buyer´s
default with payment of the installments (advance payments) on the Purchase
Price in the period before June 30, 2009, will be due. The Seller shall be
entitled to offset this claim against any of the Buyer´s claims pursuant to Art.
XII.”
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·
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The
following Section 12 is an amendment to Art.
XII:
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“12. If the Buyer
withdraws from this Agreement in accordance with Art. XII (1 – 3) hereof
and that the Seller
shall have the obligation to reimburse the Buyer for any payments made under
this Agreement (particularly installments / advance payments on the Purchase
Price pursuant to Art. III hereof), the Seller shall have the right to offset
the amount of CZK 17,500,000.- (in words: seventeen million five hundred
thousand Czech crowns), which represents compensation of contractual fines,
damages, default interests and any other costs accrued by the Seller pursuant to
this Agreement as of November 11, 2009. In such case the Parties have agreed
(also for the purpose of settlement of the claims receivable of the Seller
against the Buyer arising from the Buyer’s breach of this Agreement during the
period before June 30, 2009) on the manner of payment of the parts of the
Purchase Price in the amount deposited in the Escrow Account or, as the case may
be, on the manner of settlement of the possible claim of the Buyer for
reimbursement of the advance payments (or individual installments) on the
Purchase Price pursuant to Art. III (1) and Art. III (2) (i) and (ii) hereof, as
follows:
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a)
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the
paid advance payment, or, as the case may be, the first installment on the
Purchase Price in the amount of CZK 4,000,000.00 (in words: four million
Czech crowns) paid by the Buyer to the Seller prior to the execution
hereof pursuant to Art. III (i) hereof shall not be reimbursed to the
Buyer and shall belong to the Seller as partial reimbursement of the
expenses incurred in connection with unavailing performance of the
obligations pursuant to this Agreement, i.e. clearance of the parts of the
Real Estate occupied by third parties, particularly by the company MATTES
TRADING s.r.o., which reimbursement the Buyer fully admits. The
effectiveness of the admission is bound to the delivery of notification of
Buyer’s withdrawal from this Agreement pursuant to Art. XII (1) to
(3);
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b)
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other
performance based on this Agreement (especially the installments/advance
payments on the Purchase Price pursuant to Art. III. hereof) after set-off
of the amount mentioned in Art. XII (12) in the amount of CZK 17,500,000.-
(in words: seventeen million five hundred thousand Czech crowns) which
represents lump-sum compensation of contractual fines, damages, default
interests and all costs accrued by the Seller pursuant to this Agreement
before November 30, 2009, shall be returned to the Buyer from the Escrow
Account;
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c)
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in
the event that the funds in the Escrow Account are not sufficient for the
Buyer’s reimbursement (particularly if the partial settlement of the Loan
occurs in accordance with Art. III (7) hereof), and such insufficiency
establishes the obligation of the Seller to return the performance
(payment) directly from the Seller’s own funds, the Seller shall be
entitled to pay this amount to the Buyer in six equal monthly installment
payments, of which the first shall be payable on 25th
day of the month following after the delivery of the notification on
Buyer’s withdrawal from this Agreement in accordance with paragraphs 1 to
3 of Art. XII.
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The
Buyer’s claims that will accrue from this Agreement in the future are not
affected by the aforesaid.
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·
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Art.
XIII (1) shall read:
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“1.
If the Buyer is in delay in any advance payment on the Purchase Price
pursuant to Art. III. hereof for a period exceeding 5 (five) business
days, the Seller, having requested the Buyer in writing that he pay the
relevant advance payment on the Purchase Price at the latest within three
(3) business days, which request has not been satisfied, shall be entitled
to:
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(i)
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from
the 8th
(eighth) day of the delay (including such 8th
day) onwards claim contractual fine of (A) 60 per cent p.a. (sixty per
cent per annum) from the due amount for the period of the delay in case of
the delay in the payment pursuant to Art III (2) (i) hereof, or, as the
case may be, (B) 36 per cent (thirty-six per cent per annum) from the due
amount for the period of the delay in case of the delay in the payment
pursuant to Art III (2) (ii) hereof;
and/or
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(ii)
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withdraw
from this Agreement effective from the day of delivery of the notification
on the Seller’s withdrawal from this Agreement to the Buyer and in case of
such withdrawal the Seller may claim payment of the amount of CZK
26,000,000.00 (in words: twenty-six million Czech crowns) which, in such
case, the Buyer undertakes to pay and which includes (also for the purpose
of settlement of the claims receivable of the Seller against the Buyer
arising from the Buyer’s breach of this Agreement during the period before
June 30, 2009) the below partial
claims:
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(a)
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compensation
of damage in the amount of CZK 4,000,000.00 (in words: four million Czech
crowns) which represents partial compensation of damage of the Seller
related to unavailing performance of the obligations pursuant to this
Agreement, i.e. clearance of the parts of the Real Estate occupied by
third parties, particularly by the company MATTES TRADING s.r.o., which
compensation the Buyer fully admits. The effectiveness of the admission is
bound to the delivery of notification of the Seller’s withdrawal from this
Agreement;
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(b)
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compensation
of damage in the amount of CZK 3,500,000.00 (in words: three million five
hundred thousand Czech crowns) which represents compensation of loss of
profit with respect to loss of open-market rent in the period from May 28,
2008 till June 30, 2009, in which period the Buyer rented the Premises
pursuant to the Lease Contract, which compensation the Buyer fully admits.
The effectiveness of the admission is bound to the delivery of
notification of the Seller’s withdrawal from this
Agreement
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(c)
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compensation
of damage in the amount of CZK 1,000,000.00 (in words: one million Czech
crowns) which represents compensation of the rest of the damage of the
Seller related to unavailing performance of the obligations pursuant to
this Agreement (see letter (a) above in this paragraph), which
compensation the Buyer fully admits. The effectiveness of the admission is
bound to the delivery of notification of the Seller’s withdrawal from this
Agreement;
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(d)
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compensation
of damage in the amount of CZK 17,500,000.00 (in words: seventeen million
five hundred thousand Czech crowns), which claim has accrued to the Seller
in connection with the breach of the Buyer’s obligation to duly pay the
advance payments on the Purchase price in the period before June 30,
2009.
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The
claim described in this subparagraph (ii) shall be payable upon delivery of the
notification on Seller’s withdrawal and shall be primarily settled from the
funds in the Escrow Account and only after these funds are insufficient, the
funds of the Buyer shall be used.
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For
the avoidance of doubt the Parties have explicitly agreed that in the
event of Seller’s withdrawal from this Agreement pursuant to Art. XIII (1)
(ii), the Seller’s claim pursuant to Art. XIII (1) (ii) shall be primarily
offset against any possible Buyer’s claim for reimbursement of the advance
payments (or individual installments) on the Purchase Price pursuant to
Art. III (1) and Art. III (2) (i) and (ii) hereof. Possible remaining part
of the Purchase Price deposited in the Escrow Account shall be returned to
the Buyer only upon set-off of the Seller’s claims pursuant to Art. XIII
(1) (ii). In the event of Escrow Agent’s withdrawal in accordance with the
Escrow Agreement, these funds shall be immediately paid the credit of the
Seller’s and/or Buyer’s account in accordance with the rules set out in
Art. XIII (1). For the avoidance doubt the Parties declare that in the
event that the funds in the Escrow Account are not sufficient for
settlement of the Seller’s claims set out in Art. XIII (1), the Seller
shall be entitled to claim and enforce the unpaid part of these claims
directly against the Buyer.
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·
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In
Art. XIV (2) the words “Lease Contract“ are hereby replaced by “New Lease
Contract”.
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·
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In
Art. XIV (3) the date “July 1, 2009” is hereby replaced by “July 1,
2011”.
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·
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In
Art. XIV (3) the words “Lease Contract“ are hereby replaced by “New Lease
Contract”.
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·
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Art.
XIV (4) shall read:
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“4.
The Seller shall not be entitled to carry out any construction, i.e.
construction of new buildings or extensions to the existing buildings, within
the Real Estate. Furthermore, the Seller agrees not to carry out any
construction modifications that would interfere with the current condition of
the Real Estate. Furthermore, without the Buyer’s prior written consent, the
Seller shall not be entitled to establish any new easements; to lease further
premises, areas, properties and buildings within the Real Estate to third
parties; to extend the term (duration) of a lease or modify the lease agreements
in any manner whatsoever; to donate or exchange the Real Estate or any part
thereof; to encumber the Real Estate in any manner whatsoever, i.e. establish
mortgage rights, pre-emption rights (as encumbrances), etc. The Buyer's consent
shall not be unreasonably withheld.”
9
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·
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Art.
XIV (5) shall read:
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“5.
In the event that the Seller withdraws from this Agreement pursuant to Art. XIII
(1) hereof the Parties have explicitly agreed for the avoidance of possible
doubt that the Seller shall be entitled to keep in accordance with the Lease
Contract all appreciation of and other improvements in the Real Estates (as
described in Art. VII (8) of the Lease Contract) that were carried out by the
Buyer; the legal title (legal reason) for this claim is compensation of damages
that the Seller would incur if it was to pay for such appreciation of or
improvements in the Real Estates (as described in Art. VII (8) of the Lease
Contract) to the Buyer despite the fact that it would occur as a result of
breach of the contractual obligations of the Buyer (the claim of the Buyer for
payment for appreciation and improvements shall be offset against the claim of
the Seller for compensation of damages).”
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·
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In
Art. XIV (8) the date “June 15, 2009” is hereby replaced by “June 15,
2011”.
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·
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In
Art. XIV (8) the text “(iv) and (v)” shall be removed from the first
sentence.
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·
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The
following Section 9 is an amendment to Art.
XIV:
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“9.
The Seller shall have the right to offer and sell the Real Estate and/or its
parts to third parties (hereinafter the “Third Parties”) and to execute
with the Third Parties purchase agreement and/or an agreement on a future
purchase agreement. In such event, the Seller shall have the right to withdraw
from this Agreement, which will come into effect as of the date of delivery of
the Seller’s notice of withdrawal from this Agreement to the Buyer. In such case
of withdrawal, the Seller shall return to the Buyer all advance payments on the
Purchase price pursuant to Art. III hereof. If the amount deposited in the
Escrow Account exceeds CZK 90,000,000 (in words: ninety million Czech crowns),
the Seller shall not be entitled to withdraw from this Agreement pursuant to
this Section.”
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·
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The
following Section 10 is an amendment to Art.
XIV:
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“10.
The Seller waives all his claims to payment of contractual fines, damages and
any other costs accrued in connection with this Agreement in the period before
November 30, 2009, including their accessories. The effectiveness (legal
consequences) of this waiver are subject to withdrawal from this Agreement by
the Buyer, pursuant to Art. XIV (9) hereof.”
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·
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The
following Section 11 is an amendment to Art.
XIV:
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“11.
All Seller’s claims to payment of contractual fines, damages and any other costs
accrued in connection with this Agreement in the period before November 30, 2009
shall cease to exist in the moment when the Escrow Agent pays to the Seller the
so far unpaid part of the Purchase Price from the Escrow Account pursuant to
Art. IX (1) (i) and (iii).”
10
Clause
III.
Miscellaneous
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3.1
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The
Parties declare and confirm that the Buyer has been in default with
payment of the advance payments on the Purchase Price. In the “Memorandum
of Contracting Parties of the Initiation of Negotiation on the Contracts
Modifications and on the Temporary Respite of Claims” dated May 29, 2009
the Seller agreed not to exercise, during the period of negotiations on
the Amendment to the Purchase Agreement, however, six weeks from the day
of signature of the Memorandum at the latest, his rights to payment of the
Penalty claims and his rights following from the Guarantor’s declaration,
which are based on the Buyer´s default with the payment of the advance
payments on the Purchase Price. The Parties have also agreed that should
the Buyer pay the advance payments on the Purchase Price specified in Art.
III (2) of the Purchase Agreement, as amended by this Amendment No. 2,
duly and on time, the Seller will keep refraining from his rights, unless
stipulated in the Purchase Agreement expressly otherwise. The Parties
hereby expressly declare and acknowledge that in the case that the Buyer
fails to pay any advance payment on the Purchase Price specified in Art.
III (2) of the Purchase Agreement, as amended by this Amendment No. 2
(i.e. any of the monthly installments of CZK 15,000,000.- specified in Art.
III (2) (i) as well as the remaining part of the Purchase Price specified
in Art. III (2) (ii) of the Purchase Agreement, as amended by this
Amendment No. 2) the Seller shall have the right to exercise all his
Penalty claims and his rights
under the Guarantor´s declaration.
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3.2
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The
Buyer undertakes to reimburse the Seller, without undue delay from their
account and evidencing by the Seller, for all costs incurred by the Seller
in connection with prolongation of the Loan specified in Art. V (2) of the
Purchase Agreement. This undertaking applies both to the existing as well
as to the future costs, which will occur in consequence of the change of
Art. III (2) of the Purchase Agreement made through this Amendment No.
2.
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3.3
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The Parties
undertake to negotiate and conclude with UniCredit Bank Czech
Republic, a.s., with its registered office at Prague 2, Na Příkopě 858/20,
Postal Code 111 21, Id. No. 649 48 242, an amendment to the Escrow
Agreement dated November 25, 2008, which shall implement the changes of
the Purchase Agreement made through this Amendment No. 2.
All charges and other expenses related to the conclusion of said amendment
to the Escrow Agreement shall be borne by the
Buyer.
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Clause
IV.
Final
Provisions
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4.1
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This
Amendment No. 2 contains the entire agreement of the Parties with respect
to the changes of the Purchase Agreement. No other agreement, declaration
or covenant made by any of the Parties that is not contained herein shall
be binding on the Parties in relation to the subject of this Amendment No.
2. This Amendment No. 2 cancels and replaces all previous contracts,
agreements, declarations, covenants or promises related to the subject
matter of this Amendment No. 2 made by any of the Parties prior to the
conclusion hereof. This shall not apply to those provisions of the
Purchase Agreement which are not being changed or amended by this
Amendment No. 2. Article headings are included for convenience of
reference only and shall in no respect whatsoever serve for interpretation
of the terms and provisions hereof.
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4.2
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This
Amendment No. 2 has been drawn up in seven (7) counterparts, of which each
of the Parties shall obtain one (1) counterpart immediately after
conclusion hereof, one (1) counterpart shall be sent to the Escrow Agent
and four (4) counterparts hereof shall be attached to the relevant
application for registration of the Buyer’s ownership title to the Real
Estate in the relevant Land Registry. The Parties acknowledge that their
signatures shall be notarized on the counterparts of this Amendment No. 2
intended for the Parties and also on one (1) counterpart hereof that is
intended for the Land Registry.
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4.3
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The
Parties hereby declare and confirm that all the terms and conditions of
this Amendment No. 2 changing the Purchase Agreement have been concluded
seriously, definitely and comprehensibly, based on their free will and not
under unfavorable terms and conditions. In witness thereof, they affix
their signatures.
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11
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/s/
Milan Gottwald
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/s/
Philip Glyn Styles
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Milan
Gottwald
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SENDIO
s.r.o.
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In
Olomouc, Czech Republic, on December 2, 2009
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acting
through Philip Glyn Styles, Executive
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|
In
Olomouc, Czech Republic, on December 2, 2009
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|
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/s/
William Duncan Troy
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|
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SENDIO
s.r.o.
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|
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acting
through William Duncan Troy, Executive
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|
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In
Olomouc, Czech Republic, on December 2,
2009
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12