MASTER ACQUISITION AGREEMENT in respect of Special Purpose Vehicles (SPV) in the field of Photovoltaic Plants Projects in Greece By and between Superserve Ltd. and PRIME SUN POWER Inc. Draft – 20th August 2010
20th August
2010
in
respect of Special Purpose Vehicles (SPV)
in
the field of Photovoltaic Plants Projects in Greece
By and
between
Superserve
Ltd.
and
Draft –
20th
August 2010
Superserve
Ltd
20th August
2010
THIS MASTER ACQUISITION
AGREEMENT (the “Agreement”) is made on 19th of
August 2010, in Athens
BY AND
BETWEEN
Superserve
Ltd., a limited trading company, with registered office in ▇▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, registered with the Register of Enterprises of Cyprus under
the law of companies under the Chapter 113, with share capital fully paid-in,
represented by ▇▇▇▇▇▇ koukouzelis in his/her capacity as ultimate beneficiary
pursuant to the power of attorney dated 17th August
2010 a copy of which is attached hereto (“GNK” or the “Seller”)
AND
PRIME SUN POWER Inc., a US company, with registered
office in Nevada represented by Olivier de Vergnies, in his capacity as Chief
Executive Officer, hereto (“PSP” or the “Purchaser”);
the
Seller 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 application process, development, construction and
operation of photovoltaic plants;
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(B)
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The
seller’s company was created in 2008 by ▇▇▇▇▇▇ koukouzelis as the ultimate
beneficial owner) and is active in the rendering of consulting services in
the following business
sectors:
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i.
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Renewable
energy
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ii.
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Restructuring
& turnaround management
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iii.
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M&A
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(C)
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The
Seller holds the entire capital (the “Participations”) of the
special purpose vehicles, as better described herein and in Annex 1 to the
present Agreement (individually referred to also as the “SPV” and together the
“SPVs”); the exact
number of SPVs will be defined during the application process and will be
approved by the buyer.
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(D)
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The
Purchaser has a global objective to develop 25Mw in Greece. The Purchaser
has the intention, upon sufficient financing, to acquire and/or to apply
for up to 5 Mw from the Seller in 2010 for implementation in 2011. The
total number of MW in 2011 can be increased for an additional 20 Mw upon
the market conditions and sufficient financing capacity to be confirmed in
due course by the Purchaser and the Financing
Institution.
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(E)
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Each
of the named SPVs fully owns 100% of the rights, title and interest in
solar power plants having an aggregate nominal output power of
a first set 10 projects for 5
Mw (individually referred to, if not otherwise defined, as the
“Plant ” and
together as the “Plants
”), in the territory of Greece, in the Thessaly Region, in Larissa
and Karditsa areas. Final location and technical specifications of each
Plant will be provided in due course. Annex 2 will be completed after
reserving the plots with the
landlords.
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(F)
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The
scope of services of the Seller will notably encompasses all necessary
actions related to the application of the connection to the Greek Power
Corporation (PPC) and the execution of the relevant connection agreements
with the PPC for the connection to the Greek power
grid.
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(G)
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The
Seller has obtained, or 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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Superserve
Ltd
20th August
2010
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(H)
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The
Purchaser wishes to purchase and the Seller wishes to sell all the
Participations relevant to each SPV 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);
“Authorization Date”: means,
with respect to each Plant, the date that falls 30 (thirty) days after the
submission of the relevant permits, complete of all required documentation,
permits and consents requested for its perfection, provided that by the
aforesaid 30 (thirty) days period, the relevant permit 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 permit.
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;
Superserve
Ltd
20th August
2010
“Business Day”: means any
calendar day on which the banks are open for banking business in Greece 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 Seller shall pay the Purchase Price according to
clauses 3.1 (ii) and 3.2 of the present Agreement;
"Closing Date" shall mean any
date before the 20th
Business Day following the date on which the conditions precedent set out in
this agreement. (Conditions precedent) below have been satisfied or any other
date agreed in writing between the Parties;
“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.
“Fully Permitted and Connected”
means a Plant for which:
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(a)
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Authorizations
have been or will be definitively and legally
obtained.
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(b)
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all
required Land Rights have been or will be 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 permits/licenses, as the case
may be, and there are no encumbrances over such lands, all the above as
resulting from a notarial 20-year report (“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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(c)
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the
connection rights have been or will be 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 or will be 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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Superserve
Ltd
20th August
2010
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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 permits/licenses, 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 or will be 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, from time to time, is in charge with the operation of the
Grid.
“GCC”: means the Greek 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 (Twenty)
years, with the right for the relevant SPV to extend such term of 5 (Five) years
for two times or, alternatively, once for 10 (Ten) 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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“Purchaser Price” is
equal to Euro amount that 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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Superserve
Ltd
20th August
2010
“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 is 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.
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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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PSP
shall complete the Due Diligence within 8 (Eight) weeks from Execution
Date;
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(ii)
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PSP
shall commence the Due Diligence relevant to each SPV and each Plant upon
the Financial Close Date, and shall complete the Due Diligence in each
case within 8 (Eight) weeks
thereafter;
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(iii)
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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 has been constructed or 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 is or will be Fully Permitted and/or
Connected;
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(c)
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the
projects (SPV & Plants) meet all the criteria defined by the financial
institution chosen by the Purchaser to provide the long term
financing;
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(d)
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the
projects (SPV & Plants) meet a IRR of a minimum 25% (Twenty
Five);
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(e)
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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 including availability of equity and debt financing for the
acquisition of the project 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. 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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Superserve
Ltd
20th August
2010
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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
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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
GCC to formalize corporate interest participation acquisitions and give
Purchaser fully effective and enforceable title on each SPV Participation
acquired.
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2.5.
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It
is agreed between the parties that the Seller will provide advisory
services in the context of the acquisition of the 10
projects.
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- The
seller will arrange the set up of three limited liability companies in Cyprus,
two of which will be wholly owned subsidiaries of the third one and the latter
company will be wholly owned by PSP. The intention of the parties is for each of
the two subsidiaries to apply for 10 connection agreements with the PPC of 500kw
plant each. The final set up structure can be altered depending the
recommendation of the lawyers and the financial institution.
The
Buyer will provide legal advisers with all necessary documents for the creation
of the above companies.
- The
Seller will identify ten (10) suitable plots of land. The criteria will be
notably the geographical location, the distance from the grid, the sun index
factor and the general topography. The Seller will perform a legal due diligence
on the ownership status and enter into pre-acquisition agreements with the
respective owners of ten (10) plots. All deposits or expenses are included in
the fees in 3.4.
- The
Seller will arrange for topographic maps of the land
plots to be created on geodetic system ΕΓΣΑ87 and suitable scale. The Seller
will arrange to get certified copies from the Army Geographical Division (AGD)
of maps of the wider area of where the land plots are located in a scale
1:50.0000 with exact delimitation of all land plots. The Seller will
arrange for a land Usage Map to be created (based on AGD scale 1:5.000) with
marked delimitation of all land plots, the nearby villages/cities, the city
development areas, all NATURA areas in the region, other geographical landmarks
such as rivers, streams etc. and any other development areas in the
region.
- The
Seller will hire an expert contractor to prepare preliminary Technical Studies
with the layout of the solar panels and technical description for all
plants.
Superserve
Ltd
Master
Acquisition Agreement
20th August
2010
- The
Seller will arrange to get certificates from the competent Forestry Authorities
for all plots, certifying that they do not constitute forestry land. The Seller
will arrange to get clearance for all plots of land from the competent
Archeological Authorities (3 agencies, Pre-Historic; Byzantine; Modern). The
Seller will arrange
to get clearance on our behalf from “ΝΕΧΩΠ” (the Prefecture's agency for
Planning and Managing the land of High Agricultural productivity) for all land
plots. For the purpose of quicker submission of the application file, The Seller
may initially submit to the PPC declarations (Law 1599/86) that the land
plots are/or are not characterized as high agricultural productivity land. The
Seller will arrange to get certificates stating the “authorized use” of land for
all plots of land (suitability certificate issued by the Planning authorities).
The Seller will arrange to obtain the appropriate certificates confirming that
there are no Production License requirements for the selected land plots. When
applicable to any plot of land, the Seller will obtain a license for small
construction works from the Planning authorities.
- The
Seller will submit declarations (Law 1599/86) that no Environmental Study is
necessary for the plants according to Law 3851/2010, or, if applicable to any
plot of land and the Seller will assign an expert contractor to prepare an
Environmental Study for the specific plant.
- The
Seller will submit the files with all appropriate documents to the
PPC (ΔΕΗ) for a connection application. In this respect furthermore the Seller
will assist the PPC during any inspection of the plots of land, will give
clarifications and data about the compatibility of the plots of land and will
arrange for completion of the connection terms for all plants with the
grid. The Seller will arrange for the execution of respective power purchase
contracts between PSP on the one hand and the PPC and DESMHE on the other hand
for all files approved by the PPC.
- The
Seller will cover all expenses for all above actions/tasks including any legal
and other professional advisors’ fees out of the initial cash payment set in
art. 3.2. PSP will not bear any additional expenses whatsoever for any of the
above actions/tasks in this art. 2.5.
- The
Seller will arrange all necessary steps for the final acquisition of the plots
of land and the registration of the new owners in the Land Registry. These
expenses are not included in your initial fee set out in 3.4. and will be
exclusively borne by the Buyer.
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3.
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Consideration,
Closing and Payment Terms
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3.1
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On
the terms and conditions set forth in this Agreement, the Seller, as legal
and full title owner, hereby sells 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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3.2.
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Advisory
fees shall be paid to the Seller of € 30.000 per project for the
preparation of each connection application file. These fees include all
expenses for the preparation of the ten (10) connection application files.
Payment terms and conditions will be agreed between the parties in due
course.
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A success
fee cash payment of thirty thousand euros (€ 30.000) for every connection
agreement executed between PSP and/or its subsidiaries or affiliates and the PPC
related to the connection to the grid of a 500 kw photovoltaic plant. Payment
terms and conditions will be agreed between the parties in due
course.
Superserve
Ltd
Master
Acquisition Agreement
20th August
2010
All
payments hereunder shall be made in Euro by wire transfer to the bank account:
Superserve
Ltd.
Account
Number: 2001 0003 9152
Account
Currency: EURO
IBAN:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Bank
Name: Eurobank EFG Cyprus
Swift
Code: ▇▇▇▇▇▇▇▇
All
amounts payable to you hereunder shall be free of any deductions on account of
taxes (in particular, VAT) and/or other withholdings.
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4.
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Construction
of the Plants
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4.1
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Each
Plant has been constructed or will be constructed and realized pursuant to
the terms and conditions set forth in: (i) a turnkey EPC Agreement with
PositiveEnergy
(a bankable EPCI in Greece) for the Plant’s engineering, procurement and
construction; and (ii) an O&M Agreement with a party to be agreed by
the Parties for the Plant’s operation and maintenance services, providing
for, among other things, a two years performance ratio guarantee. The EPC
Agreement above referred to under point (i) and the O&M Agreement
above referred to under point (ii) are respectively enclosed to the
present Agreement as Exhibit 2 and Exhibit
3.
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4.2
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The
Plants have installed or will install monocrystalline, polycrystalline or
thin film solar PV modules to be approved or chosen by the Purchaser and
agreed by the Financial
Institution.
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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.
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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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(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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Superserve
Ltd
Master
Acquisition Agreement
20th August
2010
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5.3
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Incorporation and
Existence
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(a)
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The
SPVs will be duly incorporated and organised and are validly existing and
in good standing under the laws of Greece 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 are not, nor have ever been, 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; this clause is valid only
in the event that the Seller will use an existing
SPV/s.
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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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Validly
owns the Participations; and
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(b)
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has
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
|
|
|
(b)
|
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 Greek law.
|
|
5.5
|
By-laws and
resolutions
|
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.
|
5.6
|
SPVs’ financial
statements
|
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
Superserve
Ltd
Master
Acquisition Agreement
20th August
2010
|
5.7
|
Land Lease
Agreements
|
|
5.7.1
|
The SPVs 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.
|
|
5.7.2
|
All necessary corporate and other action has 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).
|
|
5.7.3
|
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 Greek law or regulation to which each SPV is subject nor its
constitutional documents.
|
|
5.7.4
|
Each of the Land Lease Agreements is 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
|
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
|
Agreements
|
|
|
(a)
|
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 (Five Thousand) or which
cannot be terminated on less than 2 (Two) months’
notice.
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|
|
(b)
|
none
of the parties to any agreement which is material to the SPVs’ business
are in breach thereof.
|
|
|
(c)
|
all
material contracts or agreements entered into by each SPV or by which is
bound are valid, binding and in full force and
effect.
|
|
|
(d)
|
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.
|
|
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.
|
|
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(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.
|
Superserve
Ltd
Master
Acquisition Agreement
20th August
2010
|
|
(c)
|
No
release of hazardous materials has occurred at the site on which the Plant
will be built which entitles the competent Greek authority to enforce its
rights against the SPVs.
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5.10
|
Taxes
|
|
|
(a)
|
The
SPVS have promptly and 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.
|
|
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(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 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
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 doesn’t 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.
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|
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.
|
|
|
(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.
|
Superserve
Ltd
Master
Acquisition Agreement
20th August
2010
|
|
(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
|
|
|
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 do not have any employees and are not 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 SPVs 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, leases, taxes, insurance policies and
payments in satisfaction of applicable government rules and regulations,
including advances provided by Seller to satisfy
same.
|
|
6.
|
Seller’s
indemnification commitment
|
|
6.1
|
Indemnification
commitment
|
Pursuant
to this Clause 6, the Seller undertakes to indemnify and hold the Purchaser
harmless in respect of any direct or indirect loss, cost (including third party
professional costs) or damage actually suffered or incurred by the Purchaser,
which would not have been suffered or incurred had the representations and
warranties given by the Seller contained in this Agreement been true, correct
and not misleading
|
6.2
|
Limitation
period
|
Any claim
for indemnification by the Purchaser pursuant to this Clause 6 must be notified
in writing to the Seller within the following time periods, failing which the
right to indemnification shall expire:
|
|
(a)
|
in
respect of claims regarding social security matters or Taxes, not later
than 5 (Five) years from the date of execution of this Agreement or from
the date grounds for the claim arose, whichever comes first; and
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|
|
(b)
|
in
respect of any claim other than those under (a), not later than 1 (One)
year from the Closing relevant to each
SPV.
|
|
6.3
|
Procedure
|
|
6.3.1
|
The
Purchaser shall inform the Seller, by written notice, of any claim for
indemnification pursuant to Clause 6.2 (within 45 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.
|
|
6.3.2
|
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.
|
Superserve
Ltd
Master
Acquisition Agreement
20th August
2010
|
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
GCC.
|
|
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.
|
Superserve
Ltd
Master
Acquisition Agreement
20th August
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:
|
|
|
(a)
|
if
to the Seller:
|
|
Attention:
|
▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇▇, Superserve Ltd.
|
|
Tel:
|
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
|
with a
copy to: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇
Superserve
Ltd
Master
Acquisition Agreement
20th August
2010
|
|
(b)
|
if
to the Purchaser:
|
|
Attention:
|
▇▇.
▇▇▇▇▇▇▇ de Vergnies, PSP
|
|
Tel:
|
▇▇▇
▇▇ ▇▇▇ ▇▇ ▇▇
|
|
| Fax: | ▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇ | |
| e-mail: | ▇.▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ |
|
|
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 jointly by
the Parties;
|
|
11
|
Governing
Law
|
|
|
This
Agreement and the rights and obligations of the Parties hereunder shall be
governed by, and construed in accordance with, Greek 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 Athens.
|
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.
|
Superserve
Ltd
Master
Acquisition Agreement
20th August
2010
|
13.2
|
The
Seller 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.
|
|
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 Greek
of the present Agreement is prepared, and there is any contrast between
the English and the Greek version, the English version shall
prevail.
|
InN
WITNESS WHEREOF, the Parties hereto have duly executed this Agreement as of the
date first set forth above:
Athens,
20th
August 2010
|
EXECUTED
BY the Seller
|
|
Superserve
Ltd.
|
|
/s/
▇▇▇▇▇▇ Koukouzelis
|
|
▇▇▇▇▇▇
Koukouzelis
|
|
CEO
|
|
EXECUTED
BY the Purchaser
|
|
/s/
Olivier de Vergnies
|
|
Olivier
de Vergnies
|
|
CEO
|
Superserve
Ltd
Master
Acquisition Agreement
20th August
2010
ANNEX
1
LIST
OF THE SPVs UNDER THE AGREEMENT
To be
provided in due course by the Seller.
ANNEX
2
NAME
AND DESCRIPTION OF EACH PLANT
To be
provided in due course by the Seller.