OFFERING MEMORANDUM Global Offering of up to ... - Nordex

accept and pay for the rotor blades it has ordered (including the cancelled orders) in fulfilment of the
master supply agreement, and that Nordex Energy GmbH settle its invoices for rotor blades that have
already been supplied. The demands made by Aerpac in an out-of-court letter from its lawyers total
DM 10,551,124.
The Company believes that Nordex Energy GmbH properly terminated the agreement, and the demand
that it accept and pay for rotor blades is therefore unfounded. It has rejected the claim for payment for
the rotor blades already supplied on the grounds that Aerpac was committed to supplying the rotor
blades free of charge according to a number of agreements concluded by the contracting parties and
as a result of warranty obligations. To date neither Aerpac nor Aerpac’s insolvency administrator have
challenged the termination in court or sued for payment.
In addition, Nordex Energy GmbH believes that, due to the alleged defects in the rotor blades supplied
by Aerpac, it has a claim against Aerpac for the costs of necessary repairs and restoration work on the
rotor blades (a so-called retrofit program) which it carried out itself, which it could offset against any
claims made by Aerpac. However, it is not likely that this claim will be realized, as insolvency
proceedings were commenced in relation to Aerpac’s assets at the end of January 2001.
Litigation in connection with Ekter Aioliki S.A.
Several claims have been brought in court in Greece against Nordex Energy GmbH’s former subsidiary,
Ekter Aioliki S.A. (‘‘Ekter’’), Athens, by ITA S.A. (‘‘ITA’’). In addition, claims were also brought against other
defendants including Nordex Energy GmbH.
All of these disputes relate to a 15 turbine wind power project in Tourla, Greece, in respect of which
Ekter acquired various rights from ITA, in particular, a letter of engagement relating to land leases, a
partial authorization from the local authorities to erect wind turbines as well as planning documents.
Nordex Energy GmbH held a 90% interest in Ekter, which acted as the project company for this project
until December 1999. On the basis of these planning documents, and with ITA’s assistance, Ekter
acquired the authorization to erect a wind park. For this assistance, ITA received compensation under
an agreement entered into between Ekter and ITA prior to the acquisition of Ekter by Nordex Energy
GmbH, which stipulated, inter alia, that a certain other manufacturer’s wind turbines should be erected.
This, however, is no longer planned, due to Nordex Energy GmbH’s acquisition of Ekter. Instead, Nordex
wind turbines are planned to be erected. The agreement provides for a reassignment of the rights
arising from the letter of engagement relating to the land leases in such an event. In addition, the
agreement provides for an automatic transfer of these rights to ITA against repayment of certain
amounts paid to ITA by Ekter in the event that a subsidy is not granted by the Greek state to Ekter.
Ekter’s subsidy application was refused. However, a corresponding subsidy application by a Danish
company, to which Nordex Energy GmbH in December, 1999, had sold all its shares in Ekter, was
successful.
The business purchase agreement included an indemnity obligation from Nordex Energy GmbH to the
purchaser, which extends to any possible litigation against Ekter. The outcome of the above
proceedings is of interest to Nordex Energy GmbH, as any damages can be recovered by the purchaser
directly from Nordex Energy GmbH.
Initially, ITA brought a claim for reassignment of all rights relating to the wind power project to an
arbitration tribunal in Athens. ITA asserted that, inter alia, Ekter had negligently not fulfilled its
obligation to obtain the subsidy which was a condition precedent for the transfer of the rights relating
to the wind power project. Therefore, under the terms of the contract, Ekter was obliged to assign all
rights in the wind power project to ITA. Ekter contested the claim. In an arbitral award dated May 31,
2000, the arbitrator found in favour or ITA. Ekter lodged an appeal with a court of appeals on June 16,
2000, against this arbitral award. The appeal was rejected by a court order dated February 28, 2001.
Ekter plans to lodge a further appeal, on the basis of procedural errors, with the Areopag, the Greek
supreme civil court.
In addition, ITA sued Ekter as well as 12 other defendants, with which it had contractual relations,
including Nordex Energy GmbH, for damages in an amount of GRD 1,883.7 million, (approximately DM
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