MASTER ACQUISITION AGREEMENT in respect of Special Purpose Vehicle (SPV) in the field of Photovoltaic Plants Projects in France By and between PRIME SUN POWER Inc. and DFD Select Group Ltd. and ENWAY 2nd July 2010
2nd July
2010
in
respect of Special Purpose Vehicle (SPV)
in
the field of Photovoltaic Plants Projects in France
By and
between
and
DFD
Select Group Ltd.
and
ENWAY
2nd July
2010
THIS MASTER ACQUISITION
AGREEMENT (the “Agreement”) is made on 2nd July
2010, in Paris
2nd July
2010
BY AND
BETWEEN
DFD Select Group Limited
(“DFD”), a company incorporated under the laws of Guernsey whose
registered office is at PO Box 119, Xxxxxxxx Court, Admiral Park, St Xxxxx Port,
Guernsey and licensed to conduct investment business under the Protection of
Investors (Bailiwick of Guernsey) Law 1987 and regulated by the Guernsey
Financial Services Commission with marketing offices at 00, Xxx xx xx Xxxx,
X-00000 Xxxxx, represented by Xxxxx X. Xxxxxx, in his capacity as Director of
DFD Select Group Limited,
AND
EnWay SAS (hereinafter “the Seller” ) having its
registered office at 00 xxxxxx xx Xxxxx, 00000 Xxxxx, Xxxxxx, represented by Mr.
Xxxx-Xxxxxx Philippe, its President,
AND
PRIME SUN POWER Inc., a US company, with registered
office in Nevada, represented by Olivier de Vergnies, in his capacity as
CEO, hereto (“PSP”
or the “Purchaser”);
the
Seller, DFD and the Purchaser are herein collectively referred to also as the
“Parties” and
individually as a “Party”;
RECITALS
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(A)
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The
Parties operate in the field of renewable energies and, in particular, are
engaged in the development, construction and operation of photovoltaic
plants;
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(B)
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DFD
was created in 1996. DFD Select Group Limited has been acting as an
Investment Manager under the rules and regulations of the Guernsey
Financial Services Commission since 2001. Affiliated Managers
Group (AMG), a Boston based, NYSE listed company, was
a minority shareholder of DFD from 2001 until June 0f 2010 when
DFD repurchased those shares.. With companies in
Dublin, Guernsey, Paris and New York, DFD is led by a management team with
over fifty years of extensive experience in world capital markets.
Throughout many years the Principals of DFD have been actively engaged in
the creation, promotion, marketing and operation of Hedge Funds, Funds of
Hedge Funds, and Structured Notes developed together with leading
international banks, and Real Estate financial products. DFD
acted as a financial advisor to Lyxor Asset Management for a series of
guaranteed Bonds issued by Société Générale with a notional value of over
$450 million. DFD launched 4 Bonds guaranteed by Crédit Lyonnais and
invested into DFD’s Fund of Funds. DFD created and managed the Rubicon
Fund, for exclusive investment by BNP-Paribas, a multi strategy Fund of
Funds listed and domiciled in Dublin as well as the InnoHedge Fund for
investment by Barclays Bank PLC. DFD launched 35 structured notes totaling
over $750 million guaranteed by Barclays. Through these activities
relations, contacts and alliances have been established by the Principals
in virtually every world market. As DFD’s mission and first priority is
the preservation of client capital, it is now active in the renewable
energy business and has a unique portfolio of Photovoltaic plants projects
in France through a Joint Venture with a French company called ENWAY
managed by Xxxx-Xxxxxx Philippe (see CV attached as
Annex);
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(C)
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The
Seller will hold the entire capital (the “Participations”) of the
special purpose vehicles and/or a list of PV-Plants Projects, individually
referred to also as the “SPV” and together the
“SPVs”;
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(D)
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The
Seller is in the process of obtaining, all the Authorisations (as defined
below) necessary for the construction and operation of the Plants,
including the permits necessary for the Grid
connection;
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2nd July
2010
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(E)
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The
Purchaser wishes to purchase and the Seller wishes to sell, on a best
efforts basis, all Projects or Participations relevant to each
SPV and or PV-Plants Projects for a total capacity of 100MW in 2011
according to the terms and conditions set forth by this Agreement (the
“Transaction”).
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Now,
therefore, on the basis of the foregoing recitals,
THE
PARTIES HEREBY AGREED AS FOLLOWS
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1.
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Recitals,
Annexes, Exhibits, entire agreement and
definitions
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1.1
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The
Recitals, Annexes and Exhibits are an integral and essential part of this
Agreement.
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1.2
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This
Agreement replaces all understandings and arrangements previously agreed
between:
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(a)
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the
Parties; and
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(b)
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between
any Party and any other person;
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relating
to the matters contained in this Agreement and/or the Transaction and all of
such previous understandings and arrangements shall cease to be enforceable with
effect from the date on which this Agreement is signed and
executed.
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1.3
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In
addition to the terms and expressions defined by other clauses or
provisions of this Agreement, the following listed terms and expressions
shall have the meaning indicated when used in this Agreement, it being
agreed that the same meaning shall apply either in the singular or in the
plural.
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“Affiliate”: means, with
respect to any person, any other person directly or indirectly controlling,
directly or indirectly controlled by or under direct or indirect common control
with, such person, where "control" means (a) in the case of a corporation,
ownership of shares having 50 percent or more of the voting power or value of
all the outstanding shares of capital stock of the corporation, and (b) in the
case of a non-incorporated organization, ownership of 50 percent or more of the
capital or profits interest in the organization.
“Agreement” means this Master
Acquisition Agreement including, without limitation, its Recitals, Annexes and
Exhibits.
“Applicable Laws and
Regulations”: means all national, regional and local laws, statutes,
codes, acts, ordinances, orders, judgments, decrees, injunctions, rules,
regulations, permits, licenses, authorizations, directions and requirements of
all governments, governmental and in general public Authorities having
jurisdiction over the Plants or any of the activities and transactions
contemplated by this Agreement.
“Authorizations” means all
authorisations, licences, certifications, permits, approvals, “nulla osta”, consents and
rights of any kind whatsoever which are necessary and/or required for the
development, construction, maintenance and operation of the Plants and which
have been issued by the relevant authorities (as the case may
be);
2nd July
2010
“Authorization Date”: means,
with respect to each Plant, the date that falls after the submission of the
relevant authorization, complete of all required documentation, permits and
consents requested for its perfection, provided that the relevant authorization
has not been challenged before the competent courts or has not been revoked by
the competent authorities and no objections, remarks or additional documentation
or information have been made or requested by any competent authority or third
party against such authorization. In the event any remarks or requests of
additional documents or information are raised, all necessary actions have been
taken in order to overcome such remarks or fulfil such requests and 30 (thirty)
days (or the different period required by Applicable Laws and Regulations) after
such actions have passed without the relevant Municipality or any other relevant
Authority raising any further remarks or requests of additional documents or
information;
“Business Day”: means any
calendar day on which the banks are open for banking business in France other
than Saturdays and Sundays;
“Closing” means the date of
execution of the notarial deed of transfer of the Participations by the Seller
to the Purchaser and the Purchaser shall pay the Purchase Price according to
clauses 3.1 (ii) and 3.2 of the present Agreement;
“Confidential Information”:
means any confidential information including (without limitation) all documents,
deeds, studies, data, information, reports, know-how, processes and recipes
however relating to, or connected with, the business and affairs of the
Purchaser or the Seller, as the case may be.
“Consideration”: means the
price to be paid by the Purchaser for the sale of the Participations as
determined in Clause 3 below.
“Due Diligence”: means the
legal, tax, financial and technical due diligence investigation carried out by
the Purchaser, according to the terms set forth by following clause 2.3 of the
present Agreement, directly or through its consultants and advisors,
on each of the SPVs and on each of the Plants;
“Execution Date” means the date
of the execution of this Agreement.
“Financial Close Date” means
the date on which each relevant Plant has been Fully Permitted and Connected,
especially for Turn-Key delivery of PV-Plants.
“Fully Permitted and Connected”
means a Plant for which:
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(a)
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Authorizations
have been definitively and legally obtained, as follows: a Plant is to be
authorised, the decision of the competent authority, granting the
authorization upon conclusion of the relevant authority, is published on
the Official Bulletin of the French Region on whose territory the Project
is to be realized; and the Authorization
Date
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(b)
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all
required Land Rights have been definitively and legally obtained or
granted, are duly registered in public registries (together with the
relevant Land Lease Agreements) and fully enforceable against any third
party, so that the applicant has the unrestricted availability of the
relevant land in accordance with the provisions of the Applicable Laws and
Regulations for the full validity of the authorization, as the case may
be, and there are no encumbrances over such lands, all the above as
resulting from a notarial acceptable report by the Purchaser (“Notarial
Report”); it being understood that at Closing, the Seller shall deliver an
update of the Notarial Report dated not earlier than 10 days from the
Closing, if not attached to the relevant final and definitive Land Lease
Agreements;
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2nd July
2010
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(c)
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the
connection rights have been definitively and legally obtained or granted
so that (i) all
Permits and authorisations to construct the relevant Plant and connect the
relevant Plant to the Grid have been duly obtained (including, without
limitation, the permits possibly required for the realisation of all civil
works necessary for the construction and connection to the Grid of an
authorised Plant and (ii) the final detailed
connection project proposed by the competent Grid Operator has been
accepted;
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(d)
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in
general, all rights necessary or connected to the Plants realization and
operation, have been definitively and legally obtained or granted, are
duly registered in public registries, where applicable, and are fully
enforceable against any third
party;
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(e)
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all
civil, engineering and electrical works necessary for the construction of
the Plant, its connection to the Grid and its operation have been carried
out and completed in compliance with Applicable Laws and Regulations and
any prescription provided for in the authorization, relevant to each Plant
in order for such Plant to lawfully start its commercial operation and
obtain the Incentives;
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(f)
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the
Plant has been connected to the Grid, as resulting from the
interconnection report delivered to the relevant SPV’s by the competent
Grid Operator (and is, therefore, eligible for the Incentives) and is
producing and feeding electricity into the
Grid.
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“Grid” means the transmission
or distribution grid, as the case may be, to which a Plant is to be
connected.
“Grid Operator” means the
entity that is in charge with the operation of the Grid.
“FCC”: means the French Civil
Code.
“Incentives” means the
incentives, grants and aids for solar energy plants available from time to time
under Applicable Laws and Regulations.
“Land Lease Agreement” means
each of the land agreements executed by each SPV with the relevant landowner(s)
providing for such landowner(s)’ obligations to grant, inter alia, the building
lease rights, easement
and passage over the relevant land interested by the Projects;
“Land Rights” means, as the
case may be, the ownership, the co-ownership, and/or any rights, including, any
easement rights necessary to use and build the Plant and the Plant evacuation
line, and pie-crust leases, all existing, legally valid and binding, duly
registered in public registries and enforceable against any third party, and
including the possession of such rights, free from any liens necessary for the
unrestricted and undisturbed use, construction and operation of each Plant (and
allowing the Buyer to maintain ownership of the Plant and relevant facilities)
on the relevant lands for a period of time of at least 20 years, with
the right for the relevant SPV to extend such term of 5 years for two times or,
alternatively, once for 10 additional years, unless otherwise agreed in writing
between the Buyer and the Seller;
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“Plant“means each solar
plant owned by each of the SPVs, as described in the present
Agreement;
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“Property” means the
movable and immovable asset(s), properties and related rights (including
rights over the land where each Plant has to be built) held and owned by
each SPV.
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2nd July
2010
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“Purchaser Price” can
be:
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·
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Turnkey:
The Purchase Price is to be agreed upon between the two Parties and will
be based upon the project construction cost and all-inclusive affiliated
project costs plus an agreed upon xxxx-up. All costs will be
fully disclosed (Licenses, Land Option Rights, EPCI, Modules,
Connection to the Grid, etc).
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·
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Licenses
only: The Purchase Price is equal to an average of Euro 300.000 (Three
Hundred Thousand Euro) per MegaWatt inclusive Licenses, Land Option
Rights, The Purchaser shall pay to the Seller against the transfer of all
the Participations;
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“SPV Price” means the
price that the Buyer shall pay to the Seller for each SPV Participation,
which will be equal to the amount set forth under following clause 3 of
the present Agreement;
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“Participations” means
the interest participation that the Seller holds in each of the
SPVs.
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“Taxes”: means collectively
corporation tax, advance corporation tax, income tax (including income tax or
amounts on account of income tax required to be deducted or withheld from or
accounted for in respect of any payment), capital gains tax, development land
tax, inheritance tax, value added tax, capital duty, stamp duty, duties of
customs and excise, all taxes, duties or charges replaced by or replacing any of
them or their equivalent to which any of the Parties is subject, together with
all penalties, charges and interest relating to any of the foregoing or to any
late or incorrect return in respect of any of them.
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2.
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Sale
and purchase of the Participation
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2.1
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Subject
to, and in accordance with, the other terms and conditions set forth in
this Agreement, the Seller sells to the Purchaser, and the Purchaser
purchases from the Seller each SPV Participation for the Consideration
indicated under following clause 3 of the present
Agreement.
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2.2
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Each
SPV Participation will be transferred to the Purchaser entirely clear of
and free from all claims, liens, pledges, charges, equities, encumbrances,
options, burdens, securities and adverse rights of any description,
including pre-emption rights, other than any burden connected with each
SPV commercial operations or with the realization of the Plant owned by
each SPV, any taxes, debts or other liabilities due or matured for each
Plant becoming Full Permitted and Connected or other obligations assumed
anyhow by each SPV for the same purposes above referred to Construction
Loan, Service Providers, etc... will be determined at
Closing.
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2.3
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As
a condition to the sale and purchase of the Participations, Purchaser
shall carry on a full scale Due Diligence on each SPV and each Plant
according to the following terms:
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(i)
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as
it regards each PV-Plant Project / SPV, PSP shall complete the Due
Diligence within 20 (Twenty) business days before final sales
contracts and agreements between the Purchaser and the Seller are
executed.
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(ii)
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the
Due Diligence outcomes, relevant to each SPV and each Plant, shall be
deemed as satisfactory when Purchaser has verified
that:
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(a)
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the
Plant will be constructed according to the terms set forth by following
Clause 4 of the present Agreement;
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(b)
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the
Plant has all the necessary documents to be Fully Permitted and Connected
in due course;
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2nd July
2010
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(c)
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all
representations made by Seller with regard to each SPV, under Points 5.3,
5.4, 5.5, 5.6, 5.7, 5.8, 5.9, 5.10, 5.11, 5.12, 5.13, 5.16 and 5.17 of the
present Agreement have been found to be true and
accurate;
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(iv)
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upon
satisfactory conclusion of the Due Diligence relevant to each SPV and each
Plant, according to the terms set forth herein, Purchaser shall promptly
send Seller a notice containing PSP’s statement that Purchaser is
satisfied with the outcomes of the Due Diligence. Notification shall be
made according to the terms set forth by point 9.11 of this Agreement. In
no case notifications made pursuant to the present point shall be made
later than: (i) 2 (Two) weeks from Closing Date, as it regards each
PV-Plant/SPV; and (ii) 4 (Four) weeks before Financial Close Date of each
PV-Plant/SPV. Within 20 (Twenty) Business Days after the aforementioned
notice for each SPV and Plant has been received by Seller, Closing for the
relevant SPV and Plant shall happen without any further formality to be
accomplished by the Parties other than those required by Applicable Laws
and Regulations to execute the sale and purchase of corporate
Participations.
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(v)
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Seller
grants the right to Purchaser to have full access to all relevant
information and documents necessary for PSP to carry on the Due Diligence
on each SPV and each Plant.
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2.4 Upon
Closing, provided the Parties have fulfilled its obligations under the
present Agreement, Purchaser will acquire full ownership of each SPV
Participation. After Closing Purchaser will therefore be entitled to
obtain all registrations and perform any other formality required by the
FCC to formalize corporate interest participation acquisitions and give
Purchaser fully effective and enforceable title on each SPV Participation
acquired.
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3.
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Consideration,
Closing and Payment Terms
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3.1
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Methods
of purchase
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The
intended Purchase transactions may occur in any of the following
manners:
The
Purchaser may buy projects to be developed and/or offered by the Seller on a
re-sale intended basis whereby the difference between the cost price and the
re-sale price to the Purchaser’s buyer will be divided 50/50 to each party,
or,
The
Seller may sell to the Purchaser at a fully disclosed “xxxx-up” price of which a
part of this xxxx-up ,with mutual agreement by the Parties, may be converted
into the acquisition of the project being purchased, but not to exceed
49%
The
seller and DFD may convert part of their xxxx-up into participation into PSP
Common Stock at a price per share with a discounting of 25% of the average
Common Stock share closing price within 4 (Four) weeks of trading before the
Investment Decision Date.
The
Purchaser in all cases will provide a bankable financial instrument to provide
for the equity portion of the purchase.
Master
Acquisition Agreement
2nd July
2010
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3.2
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On
the terms and conditions set forth in this Agreement, the Seller, as legal
and full title owner or in contractual control of the project, hereby will
sell to the Purchaser, and the Purchaser hereby purchases from the Seller,
effective as of the Closing Date, free and clear from any Encumbrance
together with all accrued benefits and rights attached thereto, the
Participations.
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3.3
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The
consideration for the transfer of the Participations and for the
assumption by the Seller of all his obligations under this Agreement,
equal to a price to be determined for each project per each watt
effectively installed (Refer to “Purchase Price” Definition), is equal to
the Purchase Price which shall be paid at the Closing Date, simultaneously
with the transfer of the
Participations.
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3.4
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Payment
of the Purchase Price shall be made by the Purchaser to the Seller on an
agreed date in the form of a bankable financial instrument by the
Purchaser and subsequently by transfer to the bank account notified by the
Seller to the Purchaser at least 5 Business Days prior to the date the
relevant payment is due.
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Construction
of the Plants
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4.1
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Each
Plant will be constructed and realized pursuant to the terms and
conditions set forth in: (i) a turnkey EPC Agreement for the Plant’s
engineering, procurement and construction; and (ii) an O&M Agreement
for the Plant’s operation and maintenance services, providing for, among
other things, a two years performance ratio
guarantee.
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It is
agreed by the Seller and the Buyer that the latter can decide to appoint its own
EPCI and O&M, whenever possible, for a minimum of 50% of the
100MW to be built, installed and connected.
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4.2
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The
Plants will install monocrytalline/polycrystalline/thin film solar PV
modules or other if agreed by the parties and the financial institution
providing the long term financing.
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4.3
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The
Seller has arranged for the SPVs to secure the appropriate insurance(s)
for the Plants.
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5.
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Seller’s
representations and warranties
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5.1
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When
disclosure is used in connection with disclosure of information relating
to representations and warranties envisaged in this Agreement, such
disclosure means provision of the original or true copies of the original
written information and does not include documents referred to in any such
written information unless they have also been produced and listed in the
Due Diligence material. Such due diligence requirement list to be provided
by the Purchaser.
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5.2
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The
Seller hereby represents and warrants to the Purchaser as set forth in
present Clause 5 on the following
terms:
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(a)
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unless
otherwise expressly indicated in the Agreement and except in case of
fraud, fraudulent misrepresentation, dishonesty or deceit, the Seller’s
representations and warranties indicated in Clause 5 are the only
representations and warranties of the Seller in relation to the
Transaction contemplated hereunder;
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Master
Acquisition Agreement
2nd July
2010
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(b)
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if,
at any time, the Seller becomes aware of any fact or event which would be
a breach of any of the Seller’s representations and warranties in Clause 5
it shall forthwith disclose the same in full in writing to the
Purchaser.
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(c)
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all
representations and warranties made by Seller under Clause 5 have to be
intended as made to the best of Seller’s knowledge at the time
representations are made according to following point 5.18 of
the present Agreement.
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5.3 Incorporation and
Existence
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(a)
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The
SPVs will be duly incorporated and organised and will be validly existing
and in good standing under the laws of France and have full power and
authority and are qualified to conduct their business as
presently conducted.
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(b)
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The
SPVs will not be subject to insolvency proceedings of any kind whatsoever
nor is there any fact or circumstance that could give rise to any such
insolvency or similar proceedings.
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(c)
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Upon
Closing relevant to each SPV all the members of the board of directors (or
other administrative body) [or the sole director] of each SPV will have
irrevocably and unconditionally presented their resignation letters to the
Seller with full release of the SPV in respect of all past remuneration
and indemnities, other than accrued fees, arising out of their offices or
any other relationship or agreement with the
SPV.
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(d)
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The
information contained in the introductory part to this Agreement and in
the Recitals of this Agreement is true and
correct.
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5.4
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Title
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5.4.1
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The
Seller:
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(a)
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Will
validly own or legally control the Participations;
and
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(b)
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will
have valid, full and exclusive title to, and right to dispose of, the
Participations, the latter being fully paid up and entirely clear of and
free from all claims, liens, pledges, charges, equities, encumbrances,
options, burdens, usufruct, securities and any other adverse rights of any
description, save for what to the contrary provided for by preceding point
2.2 of the present Agreement.
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5.4.2
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Furthermore:
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(a)
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the
Seller has not (i) granted to third parties any existing pre-emption
rights, warrants, options, convertible bonds or rights of any kind
whatsoever which give the right to acquire or subscribe for the
Participations (or any part thereof) or (ii) entered into or executed any
agreement or contract or similar instrument by which he is bound to create
new participations and/or increase the corporate capital in the SPVs;
and
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(b)
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the
SPVs have not engaged in any actions constituting the giving of financial
assistance in connection with the acquisition of their own capital (or any
part thereof) under French law.
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5.5
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By-laws and
resolutions
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No
resolution of (i) the Participations holder or (ii) the board of directors or
other administrative or governing body of each of the SPVs has been passed which
is not contained in the relevant corporate books and registers of each
SPVs.
Master
Acquisition Agreement
2nd July
2010
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5.6
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SPVs’ financial
statements
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SPVs’
financial statements and other related accounting books and records have been
prepared and kept in compliance with the applicable provisions of law and
thereby present, truly and correctly, the assets, liabilities and Seller’s
equity of the SPVs
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5.7
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Land Lease
Agreements
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5.7.1
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The
SPVs will have the capacity and the necessary power to enter into and be
bound by each of the relevant Land Lease Agreements (as the case may be)
and to exercise their rights and perform their obligations under each of
them.
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5.7.2
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All
necessary corporate and other action will be been taken to enable SPVs to
validly enter into, be bound by and to perform their obligations under
each of the Land Lease Agreements (as the case may
be).
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5.7.3
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The
execution and delivery of, the performance of its obligations under, and
compliance by the SPVs with the provisions of each of the Land Lease
Agreements (as the case may be) will not contravene any existing
applicable Italian law or regulation to which each SPV is subject nor its
constitutional documents.
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5.7.4
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Each
of the Land Lease Agreements will be in full force and effect and
constitutes legal, valid and binding obligations of the parties thereto
enforceable in accordance with their respective
terms.
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5.7.5
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Each
landowner(s) has valid, full and exclusive title to, and right to dispose
of, the land which is the subject matter of the relevant Land Lease
Agreement, as disposed therein, and such land has been registered
correctly with the Land Registry and is entirely clear of and free from
all claims, liens, charges, mortgages, registrations, encumbrances,
options, burdens, usufruct, securities and any other adverse rights of any
description limiting or in any way affecting the use of it by the each SPV
during the relevant term.
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5.8
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Agreements
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(a)
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save
for what provided for under point
5.17 below, the SPVs are not bound by any contractual
relationships or commitments not yet entirely fulfilled which have an
aggregate cost exceeding Euro
5.000 or which cannot be terminated on less than 2 (Two)
months’ notice.
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(b)
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none
of the parties to any agreement which is material to the SPVs’ business
are in breach thereof.
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(c)
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all
material contracts or agreements entered into by each SPV or by which is
bound are valid, binding and in full force and
effect.
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(d)
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the
rights of the SPVs under all such contracts and agreements are owned and
possessed by them free and clear of claims, liens, pledges, charges,
equities, encumbrances, options, burdens, mortgages, usufruct, securities
and any other adverse rights of any
description.
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|
5.9
|
Environment and
applicable laws.
|
|
|
(a)
|
The
activity and business of the SPVs have been carried out since their
respective date of incorporation and are currently carried out in all
material respects in compliance with all applicable laws, statutes, other
regulations, permits, licenses, approvals, authorisations or similar
requirements, including those relating to environmental
matters.
|
Master
Acquisition Agreement
2nd July
2010
|
|
(b)
|
There
is no pending or threatened claim, enquiry, proceeding or investigation or
prosecution by any civil, criminal, labour, environmental or
administrative authority or other third party against or involving the
SPVs or any land (or parcels thereof) on which each of the Plant will be
built, or any other member of its corporate bodies, relating to an alleged
breach by the SPVs of the above mentioned laws, statutes, other
regulations, permits, licenses, approvals, authorisations or similar
requirements.
|
|
5.10
|
Taxes
|
|
|
(a)
|
Prior
to the acquisition by the Purchaser, the SPVS will have correctly
completed and filed all Tax
returns.
|
|
|
(b)
|
Save
for what set forth by preceding point 3.3 of the present Agreement, the
present provision 5.10 having the only purpose to represent to Buyer that
all possible SPVs’ Taxes exposures have either already been fulfilled or
are not yet payable or been paid but have been duly accounted for, all
Taxes pertaining to the activities of each SPV have been duly and promptly
paid and, if due but not yet paid or payable, have been properly accrued
for in the SPVs’ financial
statements.
|
|
|
(c)
|
No
Tax claims are pending or threatened against the SPVs and no notice of any
such claim was received by the SPVs for which provision has not been
accrued.
|
|
|
(d)
|
No
Tax claims are pending or threatened in relation to the SPVs’ financial
statements.
|
|
5.11
|
Litigation
|
No awards
or orders awarded to third parties by competent courts or arbitration tribunals
have been issued to each SPV, nor is SPV currently involved in any judicial,
arbitral, administrative, labour, civil litigation or other litigation of any
kind whatsoever and there are no facts or circumstances currently known to the
seller which, with the passing of time or the giving of notice, may result in
any such proceedings commencing or being threatened.
|
5.12
|
Bank and other form of
debt
|
The SPVs
will have no bank loans or other forms of debt, other than those undertaken in
the normal course of their business, including any form of financing for the
realization of the Plants, and none of their assets are secured in any form to
any third party, unless disclosed otherwise and released upon Closing relevant
to each SPV.
|
5.13
|
Absence of
unfavourable effects
|
|
|
The
execution of this Agreement does not have and shall not have the effect of
enabling one or more creditors of the SPVs to accelerate the maturity
dates of their credits, to enforce guarantees, eventually granted to them
or in any other way to modify the conditions of their relationship with
the SPVs, unless otherwise specified on a case by case
basis.
|
|
5.14
|
Due
Authorisation
|
|
|
(a)
|
The
Seller has full power, authority and capacity and has obtained all
necessary consents required to validly and fully enter into and perform
all the obligations under this
Agreement.
|
|
|
(b)
|
No
consent by any third party, including public authorities, is needed to
authorise the signing, execution and performance of this Agreement by the
Seller.
|
Master
Acquisition Agreement
2nd July
2010
|
|
(c)
|
All
corporate and other internal proceedings required to be taken by the
Seller to authorise the signing, delivery and performance of this
Agreement, have been duly and properly taken, and this Agreement has been
duly executed by it and constitutes its legal, valid and binding
obligation in accordance with its
terms.
|
|
|
(d)
|
The
signing and delivery of this Agreement, and the consummation of the
Transaction contemplated hereby, will not conflict with, or result in a
breach of, or constitute a default under or give rise to a right of
termination, cancellation or acceleration of the [Articles of
Incorporation or the By-laws of the Seller] or any agreement, letter of
intent, or other instrument by which the Seller is bound, or violate any
judgement, order, injunction, award, decree, law or regulation applicable
to the Seller.
|
|
5.15
|
Due
Diligence
|
|
|
To
the best of its knowledge, the due diligence information provided by the
Seller to the Purchaser relating to the SPVs are true, complete and
accurate and are not misleading in any
respect.
|
|
5.16
|
Employees
|
|
The
SPVs will not have any employees and will not be in breach of any
applicable labour or health and safety laws, regulations, provisions or
collective labour agreements in respect of employment and employment
practices, terms and conditions of employment, pay, equity, wages and
hours and there are no circumstances or facts currently existing which may
result in an application to the Company of
Law.
|
|
5.17
|
At
the time of Closing each SPV will be free of any debt lien, or any
encumbrance, other than obligations related to the continued operation of
the Plants, the O&M agreements if not agreed differently by the
Parties, leases, taxes, insurance policies and payments in satisfaction of
applicable government rules and regulations, including advances provided
by Seller to satisfy same.
|
|
5.18
|
All
Seller’s representations made pursuant to the present Clause 5, shall be
considered as having been made: (i) as per each SPV, upon Execution Date;,
respectively upon Closing relevant to each SPV and Closing relevant to
each SPV.
|
|
6.1
|
Limitation
period
|
Any claim
for indemnification by the Purchaser pursuant to this Clause 6 must be notified
in writing to the Seller and the same reciprocally by the Seller to the
Purchaser within the following time periods, failing which the right to
indemnification shall expire:
|
|
(a)
|
in
respect of claims regarding social security matters or Taxes incurred
prior to the purchase, not later than 5 years from the date of execution
of this Agreement or from the date grounds for the claim arose, whichever
comes first; and
|
|
|
(b)
|
in
respect of any claim other than those under (a), not later than 1 year
from the Closing relevant to each
SPV.
|
|
6.2
|
Procedure
|
|
6.2.1
|
The
Purchaser shall inform the Seller, by written notice, of any claim for
indemnification pursuant to Clause 6.2 (within 45 (Forty Five) days) after
the Purchaser has become aware of a matter which could give rise to
indemnification hereunder. The communication of the Purchaser shall
specify the grounds for the possible claim and an estimate of its amount
based on the information available at the date of the
notice.
|
Master
Acquisition Agreement
2nd July
2010
|
6.2.2
|
In
the event that the grounds for a claim for indemnification pursuant to
this Clause 6 consist of a third party’s claim brought against any of the
SPVs, in such procedure, the Seller shall be entitled to carry out the
defence of such claim on behalf of the SPVs at their own costs and
expenses.
|
|
7.
|
Purchaser’s
representations and warranties
|
The
Purchaser represents and warrants to the Seller that:
|
|
(a)
|
Each
of the representations and warranties contained in this Clause 7 is true,
correct and not misleading on the date hereof and shall be true, correct,
and not misleading on the Closing relating to each of the
SPVs.
|
|
|
(b)
|
It
is duly organised, validly existing and in good standing under the laws of
the country in which it is resident and is qualified to conduct its
business in the manner in which it is now being conducted and has full
power, authority and capacity to validly and fully enter into and perform
all its obligations under this
Agreement.
|
|
|
(c)
|
No
consent by any third party, including public authorities, is needed to
authorise the signing, execution and performance of this Agreement .
|
|
|
(d)
|
All
corporate and other internal proceedings required to be taken by it to
authorise the signing, delivery and performance of this Agreement, have
been duly and properly taken, and this Agreement has been duly executed by
it and constitutes its legal, valid and binding obligation in accordance
with its terms.
|
|
|
(e)
|
The
signing and delivery of this Agreement and the consummation of the
Transaction contemplated hereby, will not conflict with, or result in a
breach of, or constitute a default under or give rise to a right of
termination, cancellation or acceleration of its constitutional documents
or violate any judgement, order, injunction, award, decree, law or
regulation applicable to its conducting business as presently
conducted.
|
|
|
(f)
|
The
Purchaser agrees to cooperate with the Seller in relation to any possible
requests of clarifications, documentation, specification or filing, which
will be made by the local authorities in connection with the issuance of
any of the interconnection authorisations to be issued by the Grid
Operator.
|
|
8
|
Purchaser’s
indemnification commitment
|
The
Purchaser undertakes to indemnify and hold the Seller harmless in respect of any
direct or indirect loss, cost (including third party professional costs) or
damage actually suffered or incurred by the Seller, which would not have been
suffered or incurred had the representations and warranties given by the
Purchaser contained in this Agreement been true, correct and not
misleading.
|
9
|
Miscellaneous
provisions
|
|
9.1
|
No
Party shall assign, without the prior written consent of the other Party,
the present Agreement to any third party which is not an Affiliate of the
assigning Party. In any case the assigning Party shall warrant performance
of the assignee according to and for all the effects of the
FCC.
|
|
9.2
|
All
the Annexes attached hereto are incorporated herein, form an integral part
of this Agreement and shall have the same force and effect as if expressly
set out in the body of this Agreement and any reference to this Agreement
shall include the Annexes.
|
|
9.3
|
This
Agreement contains the entire agreement of the Parties with respect to the
Transaction contemplated herein and supersedes any earlier agreements and
understandings, either verbally or in writing, exclusively between the
Parties to this Agreement.
|
Master
Acquisition Agreement
2nd July
2010
|
9.4
|
Save
for what provided for under preceding point 9.3, changes to this Agreement
can only be validly made, and shall come into force only when made, in
writing, duly signed by the Parties. Consequently, this Agreement cannot
be waived or discharged orally.
|
|
9.5
|
If
any provision in 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 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.
|
|
9.6
|
Any
possible tolerance by a Party in respect of acts or omissions of the other
Party in breach of the provisions of this Agreement shall be deemed to be
a simple tolerance, and in no way shall be construed as a waiver of the
rights deriving on such Party from the breached provision, nor of the
right to demand the appropriate and correct fulfilment of the terms and
conditions provided herein.
|
|
9.7
|
Each
of the Parties hereby agrees to execute and deliver all documents, papers
and instruments and to do and perform all such further acts and things, as
shall be necessary or convenient to further the purposes of this Agreement
and the Transaction contemplated hereunder, provided that if the
documents, papers, instruments and acts have to be executed and delivered
by the other Party pursuant to an obligation arising out of this Agreement
the costs incurred by the Party executing and delivering them shall be
promptly reimbursed by the obliged
Party.
|
|
9.8
|
None
of the Parties has undertaken to award intermediary, brokerage or similar
fees and commissions relating to the Transaction specified herein, the
payment of which may be legitimately requested, either wholly or in part,
from the other Party.
|
|
9.9
|
The
table of contents and the descriptive headings contained in this Agreement
are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
|
|
9.10
|
Unless
otherwise expressly indicated:
|
|
|
(i)
|
all
capitalised terms defined in the text of this Agreement shall have the
meaning so defined through this
Agreement;
|
|
|
(ii)
|
the
words “hereof”, “herein”, “hereunder” and words of similar import, when
used in this Agreement, shall refer to this Agreement as a whole and not
to any particular provision
thereof;
|
|
|
(iii)
|
the
terms defined in the singular shall have the comparable meaning when used
in the plural, and vice versa; and
|
|
|
(iv)
|
any
reference to Clauses, Articles or Annexes contained in this Agreement
shall be deemed to be a reference to Clauses, Articles hereof or Annexes
hereto.
|
|
9.11
|
Any
notice or communication required or permitted to be delivered to a Party
pursuant to or in connection with this Agreement shall be made in writing,
in English, by receipted personal delivery or by telefax to the
addresses/fax numbers set forth
below:
|
Master
Acquisition Agreement
2nd July
2010
(a) if
to the Seller: EnWay SAS
00 xxxxxx xx Xxxxx, 00000 Xxxxx, Xxxxxx, represented by its
President,
|
Attention:
|
Mr.
Xxxx-Xxxxxx Philippe,
|
|
Tel:
|
+
00 0 000 00 000
|
|
E-mail
|
xxxxxxxxxxxxxx@xxxxx.xxxxxx
a copy to: DFD Select Group,
|
Attention:
Mr. Xxxxx Xxxxxx
Tel: x00
0 00 00 00 00
Fax x00 0
00 00 00 00
|
|
(b)
|
if
to the Purchaser:
|
Attention:
Olivier de Vergnies
|
Tel:
|
x00
00 000 00 00
|
Fax: x00
00 000 00 00
|
|
or
to such other address/representative/fax number as a Party may designate
by means of a written notice to be sent to the other Party from time to
time. A notice which is served personally (including by hand, courier,
postal mail or delivery service) shall be deemed to be served and shall
take effect at the time of its delivery. A notice which is sent by fax
transmission shall be deemed to have been served when the recipient has
received it.
|
|
10.
|
Taxes
and other expenses
|
|
|
Any
costs, taxes, expenses, duties or charges arising in connection with the
Transaction contemplated by this Agreement shall be borne and paid for as
follows:
|
|
|
(i)
|
the
Parties shall pay their own costs, fees, expenses and disbursements
(including legal, accounting and other fees incurred by their respective
auditors, advisors and counsels) relating to this Agreement (including the
preparation, negotiation, execution and completion of this Agreement and
any Transaction documents); and
|
|
|
(ii)
|
any
stamp taxes or other taxes or charges levied by any governmental authority
on the transfer of the Participations (excluding capital gain taxes owed
by Seller) as well as notarial fees shall be borne and paid for by the
SPV
|
|
11
|
Governing
Law
|
|
|
This
Agreement and the rights and obligations of the Parties hereunder shall be
governed by, and construed in accordance with, French law without regard
to conflicts-of-law principles that would require the application of any
other law.
|
|
12.
|
Disputes
|
All
disputes rising from this Agreement shall be resolved exclusively before the
Court of Paris in English.
|
13.
|
Confidentiality
and announcements
|
|
13.1
|
The
Purchaser shall keep secret and confidential any Confidential Information
relating to or connected with the business and affairs of the Seller
and/or the Company received by virtue of this Agreement or of any
investigations made in connection therewith, including the specific
contractual terms and conditions Parties have agreed upon for the
realization of the Transaction, and shall also cause its
officers, employees, and consultants to whom such information has been
disclosed for the purposes of this Agreement to comply with such
commitment. The Purchaser shall exercise all necessary precautions to
safeguard the confidentiality and secrecy of the Confidential Information
and to prevent the disclosure thereof, provided that the Purchaser shall
not be deemed in breach of this Clause 13.1 by virtue of any disclosure
made pursuant to the provisions or requirements of any law enacted or rule
issued by any Government or other regulatory or stock exchange authority
having jurisdiction on the Purchaser in connection with the implementation
and performance of this Agreement or the consummation of the Transaction
contemplated hereby.
|
Master
Acquisition Agreement
2nd July
2010
|
13.2
|
The
Seller and DFD shall keep, and shall cause their consultants and advisers
to keep, secret and confidential all Confidential Information in their
possession however relating to the business of the Purchaser or its
Affiliates however communicated to or learned by the Seller, their
consultants and advisers, in connection with, or by virtue of, the
Transaction contemplated hereby, except for information that is or falls
into the public domain or is otherwise communicated to third parties
through no fault of the Seller, their consultants and
advisers.
|
|
13.3
|
Without
prejudice to Clauses 13.1 and 13.2, each Party can make public
announcements, releases or other disclosure, in connection with the
subject matter of this Agreement, provided the information disclosed is
limited to the name of the Parties, the nature and characteristics of the
Projects and the approximate gross revenue resulting from the
sale.
|
|
13.4
|
The
Purchaser shall respect that any introductions to Service Providers
(Engineers, Construction Companies, EPC, Banks, etc.....) made by the
Seller or DFD will be treated by the Purchaser as the Seller’s or DFD’s
property and will refrain from entering into a business relationship of
any nature without the express agreement of the Seller or DFD without
pecuniary compensation to the Seller or
DFD.
|
|
13.5
|
If
PSP becomes aware of any clients or potential clients of DFD or
Enway during the term of this agreement PSP will not enter into
any transactions with such clients or potential client without the
approval Enway for their clients or potential clients or DFD for their
clients or potential clients. The same will hold true for any business
associates of DFD or Enway.
|
|
13.6
|
No
party will engage an employee of another Party without the other Party’s
approval.
|
|
14.
|
Language
|
|
|
This
Agreement shall be executed in the English language, which shall be the
only language governing this Agreement. In case any translation into
French of the present Agreement is prepared, and there is any contrast
between the English and the French version, the English version shall
prevail.
|
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
date first set forth above:
Paris,
the 2nd July 2010
EXECUTED BY DFD
|
DFD
Select Group Limited
|
|
/s/
Xxxxx Xxxxxx
|
|
Xxxxx
Xxxxxx
|
|
Director
|
Master
Acquisition Agreement
2nd July
2010
EXECUTED BY the
Seller
|
ENWAY
SAS
|
|
/s/
Xxxx Xxxxxx Philippe
|
|
Xxxx
Xxxxxx Philippe
|
|
President
|
EXECUTED BY the
Purchaser
|
/s/
Olivier de Vergnies
|
|
Olivier
de Vergnies
|
|
CEO
|
ANNEX
1
LIST
OF PV-Plants Projects &/or SPVs UNDER THE AGREEMENT
