UBS Credit Framework Agreement Corporate Financing UBS
UBS
Corporate
Financing UBS
1.
Borrower
SES
Societe d’Energie Solaire SA
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(hereinafter
the “Borrower”)
2.
Lender
UBS
SA
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(hereinafter
the “UBS”)
3.
Amount
of Credit
UBS
grants to the Borrower a credit line in the maximum
amount of 3,000,000 CHF
(three
million Swiss Francs).
4.
Purpose
of Financing
Liquidity
financing.
5.
Terms
of Use
Within
the terms of the present Agreement, use of the credit line may be made as
follows:
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Account
in CHF and/or in foreign currencies
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·
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Fixed
term advances from UBS for a period of 1-12 months in an amount not
less
than CHF 250,000 and/or an equivalent amount in foreign
currencies
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·
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Issuance
of guarantees approved by UBS for a period of up to one year.
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·
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Granting
of financial instruments approved by UBS for a period of up to one
year.
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6.
Conditions
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6.1
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UBS
Accounts
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Currently,
in the event of use of the credit line by the Borrower in CHF, the applicable
interest rate shall be 4.75% per annum. For certain foreign currencies, the
applicable interest rate shall be determined upon demand.
A
commission of 0.25% per quarter shall be added to the applicable interest rate,
as calculated on the basis of the highest uncovered amount but in no event
to
exceed 50% of the total interest due per quarter.
The
computation and debiting of accounts for any interest payments shall be made
four time a year, at the end of calendar quarter. UBS reserves the right to
adapt the interest ad commission rates at any time with immediate
effect.
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6.2
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Fixed
Rate Advances by UBS
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For
any
advances made for up to six months, the computation and debiting of the capital
and any interest shall be made upon maturity.
For
any
advances made for a period greater than six months, the computation and the
debiting of any interest shall be made four times a year, at the end of each
calendar quarter, whereas the computation of the debited capital and the
interests shall be made at the maturity.
The
initial rate shall depend on the conditions in force on the European markets
for
the given period and currency, and the UBS margin shall be added to said
rate.
The
interest rate shall be determined two banking days prior to the use or the
renewal of the advance, for the given period and currency. The instructions
on
the utilization or renewal of the advance must be received by UBS at least
two
banking days prior to said use or renewal. Absent such instructions, the matured
advances shall not be renewed; the capital and the interest shall in such case
be debited from the relevant account.
6.3 Guarantees
All
commissions and the expenses shall be established by UBS on a case by case
basis
depending on the type, amount, duration, and degree of complexity of the
transaction as well as on the solvency of the Borrower.
UBS
shall
have the right to adjust, at any time, all commissions during the term of the
guarantee, by providing ninety days written notice to the Borrower.
6.4 Computation
of Interest
The
computation of interest shall be made on the basis of 365/360, i.e. on the
basis
of the average number of days in a month based upon a 360-day year.
7. Administrative
Expenses
CHF
150
shall be due from the receipt of the present Agreement duly signed by the
Borrower. Said administrative expenses shall be directly debited from the
account.
8. Security
The
security provided herein shall cover any and all claims of UBS, including,
but
not limited to, all interest, commissions, etc.:
| 1) |
Pledge
of the assets of the Borrower deposited with UBS in accordance
with the separate “Deed of Pledge” dated January 24,
2007.
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9. Term
Indefinite.
10. Termination
10.1 Ordinary
Termination
The
Borrower can terminate this Agreement at any time and with immediate
effect.
UBS
may
terminate this Agreement at any time and with immediate effect, and may refuse
to make the credit line available, at its discretion on a case by case basis
and
without disclosing the reasons.
The
termination shall result in the immediate cancellation of the unused portion
of
the credit line. To the extent that the credit line was used to its full,
repayment of the amounts used shall be made as follows:
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UBS
Accounts
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| Immediately. |
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Fixed
Rate Advances by UBS
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| At the agreed maturity. |
The
guarantees issued by UBS shall stay in place, under the full responsibility
of
the Borrower, until their maturity, in accordance with their
provisions.
10.2 Extraordinary
Termination
The
Borrower shall have the right, at any time, by providing 30 calendar days
notice, to terminate this Agreement and repay the whole or part of the used
amounts. If the early repayment is made during the fixed interest rate period
or
at any other time other than the initial prepayment term, an indemnification,
computed in accordance with the provision “indemnity in case of early
termination” herein, shall be due as of the day of the early
repayment.
UBS
shall
have the right, at any time, to terminate this Agreement with immediate effect
and to accelerate any and all part of the credit used including the accrued
interest, commissions, expenses, etc. - irrespective of the maturity of any
of
the parts of the credit granted - as well as to require the immediate repayment,
when:
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1)
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The
Borrower or any company of the group (the term “companies of the group”
means all the companies consolidated, within the meaning of Art.
663e(1)
CO, with the Borrower) that are late with payments for more than
30
calendar days - whether vis-à-vis UBS or any third party (including a
potential creditor who was assigned the rights under this Agreement)
- in
regards of the payment of the interests, commissions, and/or the
principal
or any potential overdraft of the credit line, which have not been
paid
within the deadline given by UBS or have not been properly
collateralized.
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2)
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The
Borrower or any other company of the group are in breach of any obligation
set forth in this Agreement.
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3)
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The
security provided may risk lose or has already lost, at appreciation
of
UBS, a large part of its value.
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4)
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The
conditions in relation to the ownership of or the control over the
Borrower materially change pursuant to the determination made by
UBS.
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5)
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The
Borrower or any company of the group modifies its legal or economical
structure, for example as a result of a liquidation, sale of an important
part of the assets, amendment to the corporate purpose or activities
of
the company, merger or business combination, insofar as such modification
influence, pursuant to the appreciation of UBS, in an important manner
its
financial profitability.
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6)
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A
debt enforcement proceeding is initiated against the Borrower or
a company
of the group, including but not limited to a petition for bankruptcy
or
bankruptcy protection and/or petition for a judicial/extra-judicial
bankruptcy agreement.
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7)
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The
Borrower or a company of the group breach any of its obligations
under the
present Agreement.
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If,
at
the moment of the extraordinary termination, the guarantees have been issued,
the Borrower shall undertake to immediately disengage the Bank from these
conditional undertakings.
11. Indemnity
in Case of Early Termination
In
case
of early termination, an indemnity shall be due; the indemnity shall be equal
to
the difference between the agreed interest rate and the interest rate applicable
at the time of termination or the placement on a monetary or financial market
for the remaining time of the credit. If the agreed interest rate is superior
to
the interest rate applicable to the said placement, the difference shall be
debited from the account of the Borrower; if it is inferior to the interest
rate
of the investment, the difference shall be credited to the Borrower’s
account.
If,
in
case of early termination, UBS accelerates certain portions of the used credit,
the Borrower must indemnify UBS for any inconveniency and other costs suffered,
such as the difference between the agreed interest rate and the interest rate
applicable at the time of termination, or an investment on the monetary or
financial market equivalent to the residual duration of the credit. Additional
indemnities remain reserved.
12. Obligation
to Inform
For
the
whole term of this credit relation, the Borrower undertakes to immediately
inform UBS of any material modification, especially of any circumstance proper
to justify an extraordinary termination.
13. Conditions
for Providing the Credit
The
credit line shall be made available when all documents herein shall have be
provided to UBS and duly signed and when UBS is in possession of the agreed
security:
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One
copy of this Credit Agreement
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If
all
the documents and/or necessary security were not given to UBS within a month
from the date of the establishment of this Agreement, UBS shall have the right
to cancel it without fixing any additional deadline.
14. Miscellaneous
14.1 General
Conditions
The
“General Conditions” of UBS are part of this Credit Agreement.
14.2 Order
of Liquidation of the Security
If
several securities are guaranteeing the claims of UBS and if they must be
liquidated, UBS shall decide, at its discretion, on the scope and order of
liquidation of the security as well as on the order of repayment of the used
credit line out of the proceeds of the liquidation of the security.
15. Assignment
UBS
shall
have the right to assign, in full or in part, to any third party in Switzerland
or abroad, its rights under this Agreement, including all the potential related
security, including, but not limited to, mortgage certificates. UBS reserves
the
right to provide at any time to the interested third parties, including the
credit rating agencies, any information and data related to the present
contractual relation and is, in that respect, relieved from the banking secrecy.
If the third parties do not have the obligation to comply with the Swiss banking
secrecy, the transmission of such information and data shall not be done unless
such third parties undertakes in advance to comply with the Swiss banking
secrecy in dealing with its potential contractual partners.
Any
assignee shall have the right to assign, provided that the subsequent assignee
undertakes to comply with the banking secrecy. Without the additional agreement
of the Borrower, UBS (as well as any potential assignee) shall have the right
to
assign its obligation to make available the credit line or any other obligation
set forth in this contractual relationship. The assignee must be either an
entity connected to UBS or a Swiss or foreign financial institution (bank,
insurance company, among others). To the extent that UBS assigns its
obligations, it shall be released of such obligations. In accordance with this
provision, UBS shall also have the right to transfer the totality of the credit
relation to such acquirer (change of the co-contracting person). Any assignee
shall have the right to subsequently assign the totality of the credit relation
to any subsequent assignee.
16. Waiver
of Compensation
The
Borrower waives in advance the right to set-off its obligations with its
potential claims against UBS and/or potential assignee of the rights set forth
in this Agreement, even if the potential claim that the Borrower wishes to
set-off cannot be recovered because of insolvency or
over-indebtedness.
17. Governing
Law and Venue
This
Agreement shall be exclusively governed by Swiss law.
The
place
of execution and the exclusive jurisdiction for any dispute arising out of
this
Agreement shall be Geneva. UBS shall, however, have the right to act at the
registered office of the Borrower.
This
Agreement was made in two original ▇▇▇▇▇ and replace the one made on September
4, 2007.
| Ref. PFDE-CLN | UBS SA | ||
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| Geneva, January 31, 2008 | /s/ Pierre-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ▇▇▇▇▇ ▇▇▇▇▇▇ Nyikus | |
|
Vice-Director |
Holder of Procuration | ||
| The Borrower | SES Société d’Energie Solaire SA | |
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| Plan-les-Ouates, February 1, 2008 | /s/ ▇. ▇▇▇▇▇▇▇▇▇▇ | |
| Place/date |
Signatures |
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