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EXHIBIT 10.24
SALE AND PURCHASE AGREEMENT
THIS SALE AND PURCHASE AGREEMENT ("Agreement") is made this 22nd day of July
2000,
Among:
iAsiaWorks Korea Co., Ltd., a company duly organised and existing under the laws
of the Republic of Korea, having its registered office located at BoRaMae DaeKyo
Building, 6th Floor, 729-21, Bongchon-dong, Kwanak-Gu, Seoul, Korea 151-706
("Purchaser");
Senan Corp., a corporation duly organized and validly existing under the laws of
the Republic of Korea ("Korea"), with its head office at 1423-1 Seocho-Dong,
Seocho-Gu, Seoul, Korea ("Senan"); and
Mr. Eui-Seok Lee (KID#640325-1068317), a citizen of the Republic of Korea with
his address at Shindonga Apt. 8-906, 241-21 Seobingo-dong, Yongsan-ku, Seoul,
Korea ("Lee").
Senan and Lee are collectively referred to hereinafter as "Seller". Purchaser
and Seller are collectively referred to hereinafter as "Parties" or individually
as a "Party".
Whereas:
(A) Seller desires to sell and transfer to Purchaser, and Purchaser desires to
purchase and accept from Seller the Land (as defined below) and Building
(as defined below) for the consideration set forth in Article 2 (the
"Transaction"); and
(B) Seller has made Representations and Warranties to Purchaser set forth in
Article 10, and the Parties intend that Purchaser rely upon such
Representations and Warranties in entering into this Agreement.
Now, Therefore, for good and valuable consideration and in consideration of the
covenants and conditions contained herein, the Parties agree as follows:
Definitions
1.1 In this Agreement unless the context otherwise requires:
Affiliate means, with respect to a Party to this Agreement, another legal entity
that is controlling, controlled by, or under common ultimate control with such
Party, directly or indirectly, by means of shareholding interest, voting power,
agreement, or otherwise;
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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Building means the structure located on the Land with the following mailing
address: 1423-1 and 1423-2, Seocho-Dong, Seocho-Gu, Seoul, Korea and as further
described in Attachment 1.
Business Day means a day other than a Saturday or Sunday on which banks in Korea
and the United States are open for the transaction of normal banking business;
Closing means closing of the Transaction in accordance with Article 5;
Closing Date means the date of Closing;
Conditions Precedent means the conditions specified in clause 3.1;
Environment means all or any of the following media: the air (including without
limitation the air within buildings and the air within other natural or man-made
structures above or below ground), water and land and any living organisms or
systems supported by those media;
Environmental Laws means all applicable Korean statutes and subordinate
legislation and local laws, judicial decisions or regulatory orders or
regulatory agreements to the extent that they relate to Environmental matters;
Korea means the Republic of Korea;
Land means the real estate located at 1423-1 and 1423-2, Seocho-Dong, Seocho-Gu,
Seoul, Korea, having areas of 3,941.2 and 860, respectively, for a total area of
4,801.2 as described in detail in Attachment 2;
Liabilities means amounts owed by and liabilities (both ascertained and
contingent) of Seller in connection with the Property;
Property means the Land and Building owned by the Seller;
Property Warranties means the representations and warranties set out in Schedule
1;
Representations and Warranties means the representations and warranties set out
in Articles 10 and 11.
Security Interest means any security interest of any nature whatsoever
including, without limitation, any mortgage, charge, pledge, lien, assignment by
way of security or other encumbrance on the Property at or prior to Closing;
Tax and Taxation means any form of taxation, levy duty, charge, contribution of
whatever nature (including any fine, penalty, surcharge or interest in relation
thereto) imposed by a local, municipal, government or other body or authority in
Korea or elsewhere; and
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Tenants means the tenants of the Building as listed in Attachment 3 for which
valid lease contracts exist.
1.2 In this Agreement:
(a) references to persons shall include individuals, bodies corporate (wherever
incorporated), unincorporated associations and partnerships;
(b) the headings are inserted for convenience only and shall not affect the
construction of this Agreement;
(c) any reference to an enactment is a reference to it as from time to time
amended, consolidated or re-enacted (with or without modification) and
includes all instruments or orders made under such enactment;
(d) any statement qualified by the expression to the best knowledge of Seller
or so far as Seller is aware or any similar expression shall be deemed to
include an additional statement that such statement has been made after due
and careful enquiry;
(e) unless the context otherwise requires, references to the singular shall
include the plural and vice versa; and
(f) any reference to a document in the agreed form is to the form of the
relevant document agreed between the Parties and for the purpose of
identification initialled by each of them or on their behalf (in each case
with such amendments as may be agreed by or on behalf of Seller and
Purchaser).
1.3 Except where the context requires otherwise, references to articles,
clauses, attachments and schedules are to articles, clauses of or attachments or
schedules to this Agreement and references to sub-clauses are to sub-clauses of
the clause in which the reference appears.
1.4 Where any obligation pursuant to this Agreement is expressed to be
undertaken or assumed by any party, such obligation shall be construed as
requiring the party concerned to exercise all rights and powers of control over
the affairs of any other person which that party is able to exercise (whether
directly or indirectly) in order to secure performance of that obligation.
Agreement to Sell and Price
2.1 Subject to the terms and conditions contained herein, Seller shall sell to
Purchaser and Purchaser shall purchase from Seller effective from the Closing
Date, the Property including the following:
(a) Land;
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(b) Building; and
(c) any other core infrastructure facilities of the Building, including without
limitation, such as power facilities or water pipe facilities located on
the Property as of the Closing Date.
2.2 On the terms and subject to the conditions set forth herein, in
consideration for the sale and transfer by Seller to Purchaser of the Property
free and clear of any and all Security Interests and Liabilities, Purchaser
shall pay the purchase price as set forth below:
(a) Subject to sub-clauses (b), (c), (d), (e) and (f) below, Purchaser shall
pay to Seller or its designee [*] (the "Purchase Price"), consisting of [*]
for the Building and [*] for the Land. Purchaser shall also pay to Seller
the Value Added Tax ("VAT") for the purchase of Building on the Closing
Date.
(b) The Purchase Price shall be paid in the following instalments:
i. Initial Payment: Ten percent (10%) in the amount of [*]. Purchaser
shall pay [*] on the date of execution of this Agreement. The
remaining balance of the Initial Payment in the amount of [*] shall
be paid within seven (7) Business Days from the date of execution of
this Agreement. The above seven (7) Business Day period may be
extended by up to an additional three (3) days for a total of ten
(10) Business Days if there is a delay in obtaining the necessary
government approvals and court registration for the funding of the
Initial Payment.
ii. Interim Payment: Ten percent (10%) in the amount of [*] within five
(5) Business Days after the completion of the Initial Payment.
iii. Closing Payment: The remaining eighty percent (80%) in the amount of
[*] on the Closing Date.
(c) Upon completion of the Initial Payment, Seller shall provide to Purchaser
such documents (including, in particular, the minutes of the relevant Board
Meeting of Senan approving the Kun-Mortgage Agreement, certification of the
registered seals of Lee and Senan, Certificate of Ownership of the Building
and Land, and
[*]- CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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the Kun-Mortgage Agreement) necessary for the registration of a second
priority Kun-Mortgage on the Land and Building in an amount equal to the
Initial Payment, and make all reasonable efforts to facilitate the Seller
in registering such second priority Kun-Mortgage. Further, upon completion
of the Interim Payment, Seller shall provide to Purchaser the same
documents necessary for the registration of a third priority Kun-Mortgage
on the Land and Building in an amount equal to the Interim Payment.
Purchaser shall bear the expenses for all of these Kun-Mortgage
registrations, and make all reasonable efforts to facilitate the Seller in
registering such third priority Kun-Mortgage.
(d) Upon completion of the Initial Payment and Interim Payment, the Seller
shall provide to Purchaser such documents (including, in particular, the
minutes of the relevant Board Meeting of Senan approving preliminary
registration, certification of the registered seals of Lee and Senan,
Certificate of Ownership of the Building and Land, and the Preliminary
Registration Agreement) necessary for the preliminary registration of
transfer of ownership to the Purchaser. Purchaser shall bear the expenses
for such preliminary registration of transfer of ownership.
(e) At the discretion of Purchaser, Purchaser may, instead of paying eighty
percent (80%) of the Purchase Price at Closing to Seller, assume part or
all of the existing Kun-mortgages owed by Seller to Korea First Bank
("KFB") as of the Closing Date on the Property ("Kun-Mortgage Amount"). In
the event part or all of the payment due to KFB is exchanged for assumption
by Purchaser of part or all of the outstanding Kun-Mortgage Amount, the
portion of the Kun-Mortgage Amount assumed by Purchaser shall be deducted
from the eighty percent (80%) amount payable to Seller at Closing. In the
event that Purchaser chooses to clear part or all of the Kun-Mortgage
Amount, such portion of the Kun-Mortgage Amount shall be calculated and
paid to KFB at Closing in accordance with a three-party contract entered
among Purchaser, Seller and KFB in substantially the same form as the draft
attached hereto as Schedule 2 ("Kun-Mortgage Clearance Agreement"), and not
paid to Seller.
(f) Purchaser shall assume no Liabilities, including without limitation any
existing Tax Liabilities and secondary Tax Liabilities, which are incurred
or may be assessed on or prior to the Closing Date (collectively, the "Non-
Assumed Liabilities") in connection with the Property. Seller shall be
responsible for all Non-Assumed Liabilities.
2.3 Seller undertakes to use its best endeavours to ensure that any acquisition
tax, registration tax, surtax and any other similar taxes, which are imposed at
the time of acquisition of the Property, will be exempted.
Conditions Precedent
3.1 Closing of the sale and purchase of the Property shall be conditional upon
the following conditions having been fulfilled to the satisfaction of Purchaser:
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(a) all requisite corporate actions of Seller and Purchaser, including, but not
limited to the passing of a special resolution by the Board of Directors
and shareholders of Seller approving the Transactions contemplated by this
Agreement;
(b) all Representations and Warranties, including the Warranties contained in
Attachment 1, are and remain true and correct in all respects as if such
Representations and Warranties were made on the Closing Date;
(c) to the extent permitted by law, all necessary authorisations, orders,
recognition, grants, consents, permissions, licences and approvals having
been obtained (in terms reasonably satisfactory to Purchaser) from
appropriate governments, governmental, supranational or trade agencies and
regulatory bodies and such authorisations, orders, recognition, grants,
consents, permissions, licences and approvals remaining in full force and
effect to allow for the Closing and enable Purchaser to use the Building
for commercial purposes as is; and
(d) the delivery to DW Partners, counsel to Purchaser, of documents
satisfactory to Purchaser, in its sole discretion, providing for the
release of all Security Interests and documents evidencing the repayment by
Seller of all outstanding Liabilities.
3.2 Each Party undertakes to use all reasonable efforts to ensure that the
Conditions Precedents are fulfilled as soon as reasonably practicable and in any
event by the Closing Date.
3.3 Each Party shall be entitled, upon the receipt of written notice from the
Party who is benefited by such Condition Precedents (the "Benefited Party"), to
waive any or all Conditions Precedent, which are to be fulfilled by the non-
Benefited Party, either in whole or in part, for purposes of the Closing. Such
waiver for the Closing does not constitute a waiver of the undertaking by the
non-Benefited Party, but rather removes such Condition Precedent as a closing
obligation. Any undertaking associated with the waived Condition Precedent
shall be fulfilled within a reasonably agreed upon period of time following the
Closing.
Pre-Closing Undertakings
4.1 Prior to Closing, Seller shall:
(a) take all reasonable steps to preserve and protect the Property;
(b) allow Purchaser's representatives, upon reasonable notice and during normal
business hours and at its own expense, access to the Building;
(c) not do, allow or procure any act or omission which would constitute a
breach of any of the Representations and Warranties as if they were given
on or at any time before Closing by reference to the facts and
circumstances then existing;
(d) make prompt disclosure to Purchaser of all relevant information which comes
to the notice of Seller in relation to any fact or matter (whether existing
on or
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before the date of this Agreement or arising afterwards) which may
constitute a breach of any of the Representations and Warranties if they
were to be repeated on or at any time before Closing by reference to the
facts and circumstances then existing;
(e) ensure the discharge or procure the discharge and release of all
Liabilities and Security Interests and any other legal restrictions,
including but not limited to, attachments, preliminary attachments, etc.,
on the Property, if any;
(f) ensure that neither it nor any of its respective agents, officers or
employees makes or purports to make any representation on behalf of
Purchaser;
(g) use its best efforts to ensure that any acquisition tax, registration tax,
surtax and any other similar taxes which are imposed at the time of
acquisition of the Property will be exempted; and
(h) provide in writing to Purchaser within fourteen (14) days after execution
of this Agreement details of all insurance maintained by or covering the
Property. Such insurance shall be in full force and effect and there shall
be no circumstances which might lead to any liability under such insurance
being avoided by the insurers or the premiums being increased and Closing
will not have the effect of terminating, or entitling any insurer to
terminate, cover under any such insurance.
4.2 Pending Closing, Seller shall consult fully with Purchaser in writing in
relation to any matters which may have a material effect upon the Property and,
without the prior written consent of Purchaser, Seller shall not enter into any
agreements relating to the Property with any third parties.
Closing
5.1 The Transaction shall be closed on the date in which Purchaser and Seller
have fulfilled the Conditions Precedent, but in no event later than October 20,
2000, unless otherwise provided herein or otherwise agreed to by Purchaser.
5.2 At Closing, Seller shall cause to be delivered or made available to
Purchaser:
(a) such documents (including, in particular, transfers in respect of the
Property together with all deeds and/or documents of title relating
thereto) as Purchaser may reasonably require to enable Purchaser to
complete the sale and purchase of the Property and beneficially vest title
to the Property to Purchaser;
(b) a release of all Security Interests and Liabilities duly executed by any
and all creditors of Seller;
(c) written evidence that Tenants of Seller have satisfactorily received or
settled with respect to outstanding leases in connection with the Property;
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(d) copies of documents which evidence the fact that the corporate actions of
Seller, authorising the execution and consummation of and performance by
Seller of its obligations under this Agreement, such as a copy of a special
resolution by the shareholders of Seller and a resolution of the board of
directors (certified by a duly appointed officer as true and correct), and
any other documents to be executed by Seller; a certificate executed by the
representative director of Seller stating that the Representations and
Warranties contained herein are accurate, valid and true in all respects as
of the Closing Date; and
(e) requisite insurance policies for the Property. Seller shall to the extent
legally permissible assign to Purchaser such insurance policies by Closing
and Purchaser shall pay to Seller the premium already paid by Seller
prorated over the term of such insurance policies.
5.3 On the Closing Date, subject to Seller having fulfilled its obligations as
provided in clause 5.2, Purchaser shall cause to be delivered or made available
to Seller eighty percent (80%) of the Purchase Price as provided in clause 2.2
above.
5.4 If Seller fails or is unable to perform any material obligation required to
be performed by it pursuant to clause 5.2 by the last date on which Closing is
required to occur, notwithstanding the fact that Purchaser is willing to pay the
Purchase Price pursuant to clause 5.3, Purchaser shall not be obliged to
complete the sale and purchase of the Property and, Purchaser may, at its
option, by written notice to Seller:
(a) terminate this Agreement without liability on the part of Purchaser, except
those obligations which survive termination as explicitly stated herein;
(b) elect to complete this Agreement on that date, to the extent that the
Parties are ready, able and willing to do so, and specify a later date on
which the Parties shall be obliged to complete the outstanding obligations;
or
(c) elect to defer Closing of this Agreement to such other date as it may
specify in such notice, in which event the provisions of this clause 5.4
shall apply, mutatis mutandis, if Seller fails or is unable to perform any
such obligations on such other date.
5.5 If any of the Conditions Precedent has not been fulfilled (or waived)
within ninety (90) days after the execution of this Agreement, Purchaser may
terminate this Agreement by giving thirty (30) days notice to Seller if the
Parties cannot agree to an extension of the due date provided in this clause
5.5. In the event this Agreement is terminated, neither Party shall have any
claim of any nature whatsoever against the other Party under this Agreement
(save in respect of its accrued rights arising from any prior breach of this
Agreement), unless otherwise specifically provided for in this Agreement.
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Title and Supplementary Provisions
6.1 Beneficial ownership and risk in respect of the Property shall pass to
Purchaser on Closing. Title to the Property shall pass to Purchaser on the date
of registration of the ownership of the Property by the Purchaser. On the
Closing Date, Purchaser shall take actual physical possession of the Property.
6.2 Insofar as the Tenants of the Building are concerned, written agreements
from the Tenants agreeing to vacate the Building by October 20, 2000 have been
provided to Purchaser, which agreements unconditionally bind the Tenants to
vacate the Building by the Closing Date. Seller shall use all reasonable
efforts to assist Purchaser in having the Building vacated as soon as
practicable, but in no event later than the Closing Date. If for any reason the
Tenants do not vacate the Building by the Closing Date, the Parties shall use
all reasonable endeavours to achieve an upon alternative solution. Seller shall
not be liable for the delay of such vacation by Tenants.
6.3 Seller shall with all due diligence execute such other documents and take
such other steps as may reasonably be required to vest the title to the Property
in Purchaser and to give effect to this Agreement.
Property
7.1 Seller makes the Warranties with respect to the Property as specified in
Schedule 1 attached hereto.
Adjustments
8.1 If material damage to the Building has occurred prior to Closing, the
amount required to fix and/or replace the damage shall be deducted from the
Closing Payment as an adjustment.
Survival of Representations And Warranties: Undertakings of the Seller
9.1 Seller acknowledges that Purchaser has entered into this Agreement and
agreed to purchase the Property in reliance upon the Warranties.
9.2 The Representations and Warranties shall be valid and effective until two
(2) years after the Closing Date and the rights and remedies of Purchaser in
respect of the Representations and Warranties shall not be affected by any event
or matter whatsoever, other than a specific and duly authorised written waiver
or release by Purchaser.
9.3 Seller undertakes (without limiting any other rights of Purchaser in any
way including their rights to damages in respect of a claim for breach of
Representations or Warranties on any other basis) that, if there is a breach of
any Representation or Warranty, and Seller acknowledges such breach or such
breach is confirmed by a judicial determination or arbitration, it will pay in
cash (or the requisite deduction will be made from the Escrow Account or
deduction made from the Purchase Price, as dictated by Purchaser) to Purchaser
within thirty (30) days of written notification a sum
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equal to all costs, damages, and/or losses suffered or incurred by Purchaser,
directly or indirectly, as a result of or in connection with such breach of
Representations or Warranties.
9.4 Seller undertakes to notify Purchaser in writing promptly if it becomes
aware of any circumstance arising after the date of this Agreement which would
cause any Representation or Warranty (as if such Representation or Warranty were
repeated with reference to the facts and circumstances then existing) to become
untrue or inaccurate or misleading in any respect.
Representations and Warranties of Seller
Seller hereby represents and warrants that, as of the execution date of this
Agreement and at all times between execution and Closing, the following are
true:
10.1 The Property Warranties set forth in Schedule 1 are true.
10.2 The information provided to Purchaser both prior to and during the
preparation and negotiation of this Agreement was provided by Seller in good
faith and is true and accurate in all material respects.
10.3 Seller has obtained or will on or prior to the Closing Date obtain all
corporate authorisations and all other applicable governmental, statutory,
regulatory or other consents, licences, authorisations, waivers or exemptions
required to allow the Parties to enter into and perform their obligations under
this Agreement.
10.4 Seller has obtained all licences, permissions, authorisations and consents
required for the construction and use of the Building and complete copies of all
such licences, permissions, authorisations and consents shall be provided to
Purchaser within fourteen (14) days after execution of this Agreement.
10.5 Seller has used the Property in all material respects in accordance with
all applicable laws and regulations of Korea, including without limitation
Environmental Laws, and has incurred no liability or penalty under such laws and
regulations. Seller is not in default of any order, decree or judgement of any
court or any governmental or regulatory authority, which applies to the
Property.
10.6 Seller is not a plaintiff or defendant in or otherwise a party to any
litigation, arbitration or administrative proceedings relating to the Property
which are in progress or threatened or pending by or against or concerning
Seller or the Property. No governmental or official investigation or inquiry
concerning Seller is in progress or pending.
10.7 All taxes due with respect to the Property have been timely paid or are
being contested in good faith, and Seller has no liability for any taxes
assessed against the Property with respect to any periods prior to the Closing.
Seller hereby assumes responsibility for, and agrees to pay when due, any and
all taxes related to the Property incurred or accrued prior to the Closing Date
or imposed upon Seller as a result of the
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transactions contemplated herein. Seller has accurately filed on a timely basis
all tax returns relating to the Property with the relevant government entity and
Seller has paid in full or accrued all income taxes, property taxes, and other
taxes relating to the Property due by it as reflected on said returns.
Representations and Warranties of Purchaser
11.1 Purchaser represents and warrants to Seller that the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have, where required, been duly and validly authorised and no other
proceedings or action on the part of Purchaser is necessary to authorise this
Agreement.
11.2 Purchaser shall file any notification and report form and related material
required under the applicable laws and regulations in force in Korea as soon as
practicable, and thereafter use its best efforts to satisfy as soon as
practicable any requests by the relevant government authorities for additional
information or documentary materials.
Indemnification
12.1 If there are any materially false or misleading Representations and
Warranties made by the Purchaser, Purchaser shall indemnify and hold Seller
harmless against any loss or liability arising out of such false or misleading
Representations and Warranties.
12.2 If there are any materially false or misleading Representations and
Warranties made by the Seller, Seller shall indemnify and hold Purchaser
harmless against any loss or liability arising out of such false or misleading
Representations and Warranties.
Termination
13.1 Subject to clause 5.4, this Agreement and the transaction contemplated
hereby may be terminated at any time before Closing:
(a) by Seller or Purchaser in writing, without the terminating party being
liable to the other party if:
(i) the requisite government approvals necessary for the purchase of the
Building and Land are not received on or prior to the Closing, and
such failure to receive approval is in no way related to any act or
omission of Seller, or
(ii) there shall be in effect any law or regulation or an order, decree or
judgement of a court or government agency of competent jurisdiction
after the execution of this Agreement, prohibiting or substantially
restricting the consummation of the Transaction contemplated hereby.
(b) by Purchaser in writing, without Purchaser being liable to Seller, if
there shall be in effect any law or regulation or an order, decree or
judgment of a court or
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government agency of competent jurisdiction after the execution of this
Agreement, the effect of which is or would be to restrain, prohibit or
otherwise interfere with the effective operation or enjoyment by Purchaser
of all or a material portion of Property;
(c) by the Non-defaulting Party (as defined below), if there has been a
materially false or misleading Representations and Warranties, or a breach
of covenant or any other material provision of this Agreement by a party
("Defaulting Party") and such default or breach has not been remedied
within fourteen (14) days after the Defaulting Party has received notice
of such event by the other party ("Non-defaulting Party"). If the Closing
Date falls within this cure period, the Closing Date shall be postponed
until two (2) days after the lapse of such cure period. In the event that
the Defaulting Party is Seller, Seller shall promptly return to Purchaser,
to the extent applicable, the entire amount of the Initial Payment and
Interim Payment paid to Seller, and pay to Seller an additional amount
equivalent to ten percent (10%) of the Purchase Price as a liquidated
damages. In the event that the Defaulting Party is Purchaser, Purchaser
shall forfeit to Seller ten percent (10%) of the Purchase Price as
liquidated damages, but shall promptly be refunded by Seller any amounts
in excess of ten percent (10%) of the Purchaser Price paid by Purchaser to
Seller as the date of such forfeit.
13.2 In the event of the termination of this Agreement by either Seller or
Purchaser as provided in this Article 13, such termination shall terminate all
obligations of the Parties hereunder; except that termination shall not relieve
the Parties of their obligations under those clauses expressed to survive
termination and provided that termination does not affect a party's accrued
rights and obligations at the date of termination. Each Party, if so requested
by the other Party, will promptly return every document furnished to it by the
other Party (or any subsidiary, division, associate or Affiliate of such other
Party) in connection with the transaction contemplated herein. Each Party
agrees not to use any such information received for any purpose whatsoever other
than with respect to the transaction contemplated herein.
13.3 Neither Party shall be limited to the termination right granted in clause
13.1 by reason of breach of any condition or obligation by the other Party but
may, in the alternative, elect to do one or more of the following:
(a) proceed to Closing despite the breach of any condition or obligation, it
being understood that in such event, such Party shall be deemed to have
waived the fulfilment of such condition to the other Party's obligations;
or
(b) seek specific performance of the obligations of the other Party.
13.4 This Article 13 shall survive any termination of this Agreement.
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Entire Agreement
14.1 This Agreement together with the documents entered into pursuant thereto
constitutes the entire agreement and understanding between the parties in
connection to the sale and purchase of the Property.
Announcements
15.1 No formal public announcement or press release in connection with the
signature or subject matter of this Agreement shall (subject to clause 15.2) be
made or issued by or on behalf of any Party to this Agreement (or any of its
Affiliates) without the prior written approval of the other Party, such approval
not to be unreasonably withheld or delayed.
15.2 If a Party has an obligation to make or issue any announcement required by
law or by any stock exchange or by any governmental authority, the relevant
party shall give the other Party every reasonable opportunity to comment on any
such announcement or release before it is made or issued.
Costs
16.1 Each of the Parties shall pay its own costs incurred in connection with
the negotiation, preparation and implementation of this Agreement.
16.2 Each of Seller and Purchaser shall bear all stamp or other documentary or
transaction duties and any other registration or transfer taxes imposed upon it
by law as a result or in consequence of this Agreement or of its implementation.
Severability
17.1 If any provision of this Agreement is held to be invalid or unenforceable,
then such provision shall (so far as it is invalid or unenforceable) be given no
effect and shall be deemed not to be included in this Agreement but without
invalidating any of the remaining provisions of this Agreement. The Parties
shall then use all reasonable endeavours to replace the invalid or unenforceable
provision with a valid provision the effect of which is as close as possible to
the intended effect of the invalid or unenforceable provision.
Counterparts
18.1 This Agreement may be entered into in any number of counterparts, each of
which shall be an original, but all the counterparts shall together constitute
one and the same instrument.
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No partnership or Agency
19.1 Nothing in this Agreement (or any of the arrangements contemplated hereby)
shall be deemed to constitute a partnership between the Parties nor, save as may
be expressly set out herein, make either Party the agent of the other Party for
any purpose.
Further Assurance
20.1 Seller shall do or procure to be done all such further acts and things,
and execute or procure the execution of all such other documents, as Purchaser
may from time to time reasonably request, whether on or after Closing, for the
purpose of giving to Purchaser the full benefit of all of the provisions of this
Agreement.
Notices
21.1 Any notice or other communication to be given under this Agreement shall
be in writing and signed by or on behalf of the party giving it and may be
served by leaving it or sending it by fax, prepaid recorded delivery or
registered post to the address and for the attention of the relevant party set
out in clause 21.2 (or as otherwise notified from time to time hereunder). Any
notice so served by fax or post shall be deemed to have been received:
(a) in the case of fax, at the time of receipt of confirmation via telephone
call from a representative of the Party receiving such notice that such
fax has been received;
(c) in the case of recorded delivery or registered post, five (5) Business
Days from the date of posting .
21.2 The addresses for the Parties for the purposes of clause 23.1 are as
follows:
To Purchaser iAsiaWorks Korea Ltd.: iAsiaWorks Korea Ltd.
BoRaMae DaeKyo Building, 6/th/ Floor
729-21, Bongchon-dong, Kwanak-Gu
Seoul, Korea 151-706
To Seller Senan and Lee:
Senan: 1423-1 Seocho-Dong, Seocho-Gu, Seoul, Korea
Lee: Shindonga Apt. 8-906, 241-21 Seobingo-dong, Yongsan-ku, Seoul, Korea
21.3 All notices or communications under or in connection with this Agreement
shall be in the English language or, if in any other language, accompanied by a
translation into English. In the event of any conflict between the English text
and the text in any other language, the English text shall prevail.
<PAGE>
Assignment
22.1 The Parties agree and acknowledge that Purchaser shall be entitled at any
time to assign, transfer or charge all or any of its rights and/or obligations
under this Agreement in whole or in part to any of its Affiliates, provided,
that Purchaser shall remain liable under the terms of this Agreement. In the
event of merger, acquisition, or sale of all, or substantially all of
Purchaser's equity securities or assets, Purchaser may assign this Agreement,
provided, however, that such acquiring party or resultant entity shall agree to
unconditionally accept all rights and obligations hereunder.
22.2 Seller shall from time to time upon request from Purchaser execute any
agreements or other instruments (including, without limitation, any supplement
or amendment to this Agreement) which may be required in order to give effect to
or perfect any assignment, transfer, or charge referred to in clause 22.1.
22.3 Seller shall not, nor shall it purport to, assign, transfer, charge or
otherwise deal with all or any of its rights and/or obligations under this
Agreement without the prior written consent of Purchaser.
Amendment
23.1 No amendment of any of the terms of this Agreement (or of any other
documents referred to herein) shall be valid unless it is in writing and signed
by or on behalf of each of the Parties. The expression "amendment" shall
include any amendment, variation, supplement, deletion or replacement, however
effected.
23.2 Unless expressly agreed, no amendment shall constitute a general waiver of
any provisions of this Agreement, nor shall it affect any rights, obligations or
liabilities under or pursuant to this Agreement which have already accrued up to
the date of amendment, and the rights and obligations of the Parties under or
pursuant to this Agreement shall remain in full force and effect, except and
only to the extent that they are so amended.
Waiver
24.1 Any delay by either Party in exercising, or failure to exercise, any
right or remedy under this Agreement shall not constitute a waiver of the right
or remedy by such Party or a waiver of any other rights or remedies by such
party and no single or partial exercise of any rights or remedy under this
agreement or otherwise shall prevent any further exercise of the right or remedy
or the exercise of any other right or remedy by such party.
24.2 The rights and remedies of the Parties under this Agreement are cumulative
and not exclusive of any rights or remedies provided by law.
<PAGE>
Confidentiality
25.1 Each Party undertakes with the other that it shall (and shall procure that
each of its Affiliate shall) keep confidential (and to ensure that its officers,
employees, agents and professional and other advisers keep confidential) any
information which relates to the contents of this Agreement (or any agreement or
arrangement entered into pursuant to this Agreement). Neither Party shall use
for its own business purposes or disclose to any third party any such
information (collectively, "Confidential Information") without the consent of
the other Party.
25.2 The obligation of confidentiality under clause 25.1 shall not apply to:
(a) the disclosure of information to the extent required to be disclosed by
law, any stock exchange regulation or any binding judgement, order or
requirement of any court or other competent authority, or any tax authority
to the extent reasonably required for purposes of tax affairs;
(b) the disclosure (subject to clause 25.3) in confidence to a party's
professional advisers of information reasonably required to be disclosed
for a purpose reasonably incidental to this Agreement; or
(c) information which comes within the public domain (otherwise than as a
result of a breach of this Article 25).
25.3 Each Party shall inform (and shall procure that any Affiliate shall
inform) any officer, employee or agent or any professional or other adviser
advising it in relation to the matters referred to in this Agreement, or to whom
it provides Confidential Information, that such information is confidential and
shall instruct them:
(a) to keep it confidential; and
(b) not to disclose it to any third party (other than those persons to whom it
has already been disclosed in accordance with the terms of this Agreement).
The disclosing party shall remain responsible for any breach of this Article 25
by the person to whom it is disclosed.
25.4 The provisions of this Article 25 shall survive any termination or
recession of this Agreement.
Disputes
26.1 Notwithstanding clause 27.2 below, in the event of any dispute between
Seller on one part and Purchaser on the other part arising in connection with
this Agreement, they shall use all reasonable endeavours to resolve the matter
on an amicable basis. If one party serves formal written notice on the other
that a material dispute of such a description has arisen and the parties are
unable to resolve the dispute within a period of thirty (30) days from the
service of such notice, then the dispute shall be referred to the
<PAGE>
representatives of the Purchaser and Seller. No recourse to arbitration by one
party against the other under this Agreement shall take place unless a period of
not less than thirty (30) days has expired after such referral.
26.2 The provisions of this Article 26 shall survive any termination or
recession of this Agreement.
Governing Law and Arbitration
27.1 This Agreement shall be governed by and construed in accordance with the
laws of Republic of Korea.
27.2 Unless the Parties otherwise agree in writing, all disputes arising out of
or in connection with this Agreement will be referred to and resolved by final
and binding arbitration in Seoul, Korea in the English language in accordance
with the International Arbitration Rules of the American Arbitration
Association. The party initiating arbitration proceedings will pay for the
related expenses of the other party, excluding incidental business losses due to
the arbitration proceedings, to the extent that such other party obtains a
favorable final ruling. Any arbitration will be conducted by three arbitrators,
two of which shall be appointed by the Seller and Purchaser, respectively, and
the third of which shall be jointly appointed by the other two arbitrators, and
failing agreement to be nominated by the AAA. The arbitrators shall be
experienced in conducting arbitration in the construction sector. The parties
agree that, except as required by applicable law or regulation, they will keep
confidential the existence and outcome of any arbitration proceeding, as well as
the contents thereof, and will require the arbitrators to adhere to the same
obligation of confidentiality. Such obligations of confidentiality shall survive
the termination of this Agreement.
English Language
28.1 This Agreement has been negotiated and drafted in the English language. It
is the intention and agreement of the Parties that this Agreement, as documented
in the English language, accurately and completely states all agreements and
understandings of the parties with respect to the subject matter of this
Agreement. The Parties agree that, although translations and summaries of the
Agreement may have been prepared and used by one or more of the parties from
time to time during the preparation and negotiation of the Agreement, no
translation of this Agreement into any other language, no form of this Agreement
other than the English language form executed by both Parties, and no drafts,
correspondence or any other writing (whether in English or any other language)
shall have any effect or be considered in evaluating any claim or dispute
arising under or relating to this Agreement. In addition, the Parties agree that
all notices, amendments, waivers, modifications or other writings required or
made pursuant to this Agreement shall be in the English language and no such
notice, amendments, waivers, modifications or other writing shall be of any
effect or be given any consideration if in any language other than English.
<PAGE>
As witness this Agreement has been signed by or on behalf of the Parties the day
and year first before written.
iAsiaWorks Korea, Ltd.
By: EXECUTED BY CORPORATE SEAL OR "CHOP"
-------------------------------------
Name:
Title:
Senan Corp.
By: EXECUTED BY CORPORATE SEAL OR "CHOP"
-------------------------------------
Name:
Title:
Mr. Eui-Seok Lee
EXECUTED BY CORPORATE SEAL OR "CHOP"
------------------------------------
<PAGE>
SCHEDULE 1
PROPERTY WARRANTIES
General
1.1 The Land and the Building comprise the Property, which is owned by the
Seller.
Possession
2.1 Except for the Tenants disclosed in Attachment 3, there are no other
leases, subleases, tenancies or licences affecting the Property nor are there
any agreements to grant the same.
Title
3.1 Seller has good and marketable title to the Property and is the sole legal
and beneficial owner thereof, and all relevant deeds and documents are in its
possession or under its control.
Adverse Interests
4.1 Except for the Kun-Mortgage registered by the Korea First Bank, the
Property is free from any:
(a) Security Interest, option or right of pre-emption;
(b) exception, reservation, easement, right, privilege, covenant,
restriction, (preliminary) attachment, injunctive order or encumbrance
(including any arising under statute or any statutory power);
(c) right of occupation or enjoyment by any third party or the public, nor
is any such right being acquired;
and there is no agreement to create any of the foregoing.
Easements etc.
5.1 The Property has the benefit of all rights of way and for drainage and the
supply of services required for their present use.
5.2 All such rights and all rights of light, air and support are unconditional
and perpetual and are enjoyed as of right.
5.3 The Property enjoys access and egress over roads, which are maintainable at
public expense, with no outstanding or anticipated liability for road charges.
5.4 The Property drains into public sewers and is served by main water,
electricity and gas utilities.
<PAGE>
5.5 No additional rights are necessary in order to permit Seller to enter any
adjoining land to gain access to the Property or to comply with fire regulations
or any statutory requirement or to repair or maintain any building or erection
on the Property.
Fixtures and Fittings
6.1 As of the Closing Date, all fixtures and fittings at the Property are the
absolute property of Seller free from any encumbrance.
Disputes
7.1 There are no current, contingent or anticipated notices, actions,
disputes, complaints, liabilities, claims or demands relating to or in respect
of the Property or its use, nor are there any circumstances rendering any of the
foregoing likely.
Planning Matters
8.1 The Property and all uses of and developments on the Property comply with
all planning legislation and any legislation intended to control or regulate the
construction, demolition, alteration or use of land or buildings or to preserve
or protect the national heritage and any orders, regulations, consents or
permissions made or granted under any of the same ("planning legislation").
8.2 No planning permission in respect of the Property is for a limited period
or of a personal nature, and there are no other unusual or onerous planning
conditions.
8.3 All planning legislation and planning conditions in respect of the
Property has been complied with to date, and there is no reason why the same
should not continue to be complied with.
8.4 The Property is currently used only for the purposes which are permitted
uses under planning legislation.
Compulsory Acquisition
9.1 There is no resolution or proposal for the compulsory acquisition of the
Property or any means of access thereto or egress therefrom.
9.2 None of the Property is in an area which is or is proposed to be subject
to any statutory or other order.
Breach of Covenant
10.1 Seller is not in breach of any covenant, restriction, stipulation or other
obligation affecting the Property, or the employment or health or safety of
staff at the Property, nor has any breach been committed by any person in
occupation of or deriving title to the Property for which Seller may be actually
or contingently liable.
<PAGE>
10.2 There is no reason why any of such covenants, restrictions, stipulations
and other obligations should not continue to be complied with.
State of Property
11.1 The Building on the Land is in good and substantial repair and fit for the
purposes for which they are presently used.
11.2 There is no material defect, whether latent, inherent or otherwise, in the
construction or condition of the Property.
<PAGE>
SCHEDULE 2
KUN-MORTGAGE CLEARANCE AGREEMENT
AMONG:
Korea First Bank, with its legal address at 100 Gongpyung-dong, Jongro-ku,
Seoul, represented by ___________ ("KFB");
iAsiaWorks Korea, Ltd., a company duly organised and existing under the laws of
the Republic of Korea, having its registered office located at BoRaMae DaeKyo
Building, 6th Floor, 729-21, Bongchon-dong, Kwanak-Gu, Seoul, Korea 151-706
("Purchaser");
Senan Corp., a corporation duly organized and validly existing under the laws of
the Republic of Korea ("Korea"), with its head office at 1423-1 Seocho-Dong,
Seocho-Gu, Seoul, Korea ("Senan"); and
Mr. Eui-Seok Lee (KID#640325-1068317), a citizen of the Republic of Korea with
his address at Shindonga Apt. 8-906, 241-21 Seobingo-dong, Yongsan-ku, Seoul,
Korea ("Lee").
Senan and Lee collectively referred to hereinafter as "Seller".
RECITALS
WHEREAS, KFB made certain loans to Seller for its business and equipment as
described in Exhibit 1, and the principal amount of the loans is approximately
_____________ Won or US $ ____________, and Seller does not owe any default
interest on the principal, as of the date hereof _______________;
WHEREAS, Seller has absolute ownership, and said Property is free and clear of
any encumbrances except for the Kun-Mortgages; and
WHEREAS, Purchaser is willing to be the transferee of Seller's Property and pay
the above-mentioned principal and interest to KFB on behalf of Seller,
contemporaneously accepting the documents required for the discharge of each
Kun-Mortgage.
NOW THEREFORE, the parties agree as follows:
ARTICLE 1. PAYMENT
1.1 Purchaser shall pay KFB __________Won to fulfil Seller's obligation as
described in Exhibit 1, contemporaneously accepting the documents required
for discharge of the Kun-Mortgage in accordance with Article 2.
1.2 Payment shall include the loan principal, interest, default interest and
any fees incidental to the loans and no party shall object to the
calculation of the
<PAGE>
payment, unless there is an obvious mistake or discrepancy with respect to
the accrual, transfer, or extinction of each respective loan.
ARTICLE 2. DELIVERY OF DOCUMENTS
2.1 KFB shall deliver to Purchaser all documents required for the discharge of
the Kun-Mortgages (including but not limited to the following: the
Certificate of Right in Immovable, the Power of Attorney, the Certificate
of Registered Seal and the document containing KFB's release of the Kun-
Mortgages).
2.2 KFB shall deliver to Purchaser the Certificate of Registered Seal one
additional time at the request of Purchaser, in the event that the validity
period of the Certificate of Registered Seal in Article 2.1 lapses before
the discharge of each Kun-Mortgage is registered, even if due to an act or
omission of the Purchaser.
ARTICLE 3. DISCHARGE
3.1 The joint and several guaranty liability of the Seller to KFB shall be
discharged by the payment provided by Purchaser, in accordance with Article
1.
ARTICLE 4. CALCULATION
4.1 An amount of money corresponding to the payment made in accordance with
Article 1 shall be deducted from the Purchase Price designated in the Sale
and Purchase Agreement.
4.2 If this Agreement is terminated in accordance with Article 5.1 (a) and (b)
below, Senan and Lee shall be jointly and severally liable for the
interest, the default interest and any fees, accrued on the payment
provided by Purchaser.
ARTICLE 5. TERMINATION
5.1 Purchaser may terminate this Agreement upon the occurrence of any of the
following:
(a) The Sale and Purchase Agreement between Seller is terminated,
cancelled, or voided;
(b) The loan principal or the loan conditions are shown to have been
inaccurate; or
(c) Suspension of Purchaser's business, bankruptcy, re-organization or
composition is initiated.
5.2 In case of termination in accordance with 5.1 above, KFB shall refund the
payment provided by Purchaser pursuant to Article 1, together with interest
accrued on the payment at the financial institution's time deposit rate.
5.3 In the event the registrations of Kun-Mortgages as described in Exhibit 3
have
<PAGE>
been discharged at the time this Agreement is terminated in accordance with
Article 5.1, Seller shall cooperate fully for the re-registration of the
Kun-Mortgages on the Property.
5.4 In the event the registrations of Kun-Mortgages as described in Exhibit 3
have not been discharged, at the time this Agreement is terminated in
accordance with Article 5.1, Purchaser shall restore to KFB the documents
referred to in Article 2.
ARTICLE 6. MISCELLANEOUS
6.1 This Agreement shall be governed by the civil law and civil customary
practice of the Republic of Korea.
6.2 Any dispute arising out of or in relation to this agreement shall be
submitted to the exclusive jurisdiction of the Seoul District Court.
6.3 On the condition of establishing and performing this Agreement, the
previous loan agreement and redemption agreement shall cease to have force
and effect.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorised representatives as of the day and year set forth above.
Korea First Bank
By: EXECUTED BY CORPORATE SEAL OR "CHOP"
-------------------------------------
Name:
Title:
iAsiaWorks Korea, Ltd.
By: EXECUTED BY CORPORATE SEAL OR "CHOP"
-------------------------------------
Name:
Title:
Senan Corp.
By: EXECUTED BY CORPORATE SEAL OR "CHOP"
-------------------------------------
Name:
Title:
Mr. Eui-Seok Lee
<PAGE>
___________________
EXHIBIT 1
CURRENT STATUS OF LOAN
EXHIBIT 2
DESCRIPTION OF LAND AND BUILDING
EXHIBIT 3
DESCRIPTION OF KUN-MORTGAGE
