PROJECT PUGLIA TRANSFER AGREEMENT Alternative Solutions Word S.r.1, and Prime Sun Power Inc.
PROJECT
PUGLIA
7
APRIL 2009
Alternative
Solutions Word S.r.1,
and
Information marked with an asterisk herein has been omitted and filed
separately with the Commission pursuant to a request for confidential
treatment.
CONTENTS
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Section
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Page
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1.
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Definitions
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4
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2.
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Scope
of the Agreement
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5
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3.
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Closing
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6
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4.
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Post-Closing
obligations
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7
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5.
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Final
Verification and Completion
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8
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6.
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Price
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9
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7.
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Further
Obligations of the Parties
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9
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8.
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Representations
& Warranties
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10
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9.
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Indemnification
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11
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10.
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Penalty
Clause
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12
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11.
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Further
Obligations of the Parties
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12
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12.
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Key
Personnel
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13
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13.
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Termination
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13
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14.
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Confidentiality
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14
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15.
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Force
Majeure
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14
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16.
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Notices
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14
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17.
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Miscellanous
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15
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17.1
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Entire
Agreement
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15
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17.2
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Amendments
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15
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17.3
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Severability
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15
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17.4
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Language
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15
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17.5
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Fees
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15
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17.6
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Assignment
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16
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18.
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Governing
Law
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16
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19.
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Arbitration
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16
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Schedule
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Page
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1.
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Building
Lease Call Option Contracts
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2.
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List
of Lands
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3.
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Plans
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4.
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STMGs
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This
agreement (the “Agreement”) is entered into on
7 April 2009 between:
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(1)
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Alternative Solutions World
S.r.l., an
Italian Company with registered office in Milan, Via Verona n. 9,
represented by its sole director ▇▇. ▇▇▇▇▇▇▇▇ ▇’▇▇▇▇▇,
duly empowered to enter into this Agreement (the “Transferor”);
and
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(2)
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Prime Sun Power Inc., an
US Company with registered office at ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
- ▇▇ ▇▇▇▇▇-▇▇▇▇, represented by its Chief Operations Officer, ▇▇. ▇▇▇▇▇
▇▇▇▇▇▇▇,
and its Chief Technology Officer, ▇▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, duly empowered to
enter into this Agreement (the “Transferee”),
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The
Transferor and the Transferee are hereinafter jointly referred to as the “Parties” and severally as the
“Party”.
WHEREAS
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(A)
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The
Transferor is a company specialized in the development of photovoltaic
energy production plants and is currently involved in a project consisting
of the construction of two individual PV Plants in the Lands located in
Apricena (Foggia), località ▇▇▇▇▇
▇▇▇▇▇ Rocca, and Foggia, Località Salsola,
Italy.
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(B)
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In
relation with this, the Transferor:
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(i)
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entered
into the Option Contracts with the Landlords of each Land, obtaining the
right to purchase - at the terms and conditions contained therein and
subject to all necessary Permits being obtained - the relevant Building
Lease for the construction and installation of the PV Plants;
and
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(ii)
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developed
a preliminary feasibility study which includes the PV Plants, envisaging
the possible features of the PV Plants as described in the Plans attached
hereto as Schedule
3;
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(iii)
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acquired
all the required STMGs for the connection of all the PV Plants to the
energy grid as per the documents attached hereto as Schedule
4.
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(C)
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The
Transferor represented to the Transferee that, pursuant to Italian and
Puglia’s Regional applicable laws and regulations, the construction and
operation of the PV Plants shall not be subject to any mandatory
environmental assessment.
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(D)
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The
Transferor has represented to the Transferee his availability to
co-operate with the Transferee in (i) developing the Plans of the PV
Plants and (ii) filing for and obtaining all the necessary Permits,
including the Autorizzazione Unica (“Unified Authorization”),
to unconditionally build and operate the PV
Plants.
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(E)
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Subject
to all Permits being definitively granted and based on the representations
made by the Transferor, the Transferee is interested in entering into the
project by acquiring from the Transferor all relevant rights relating to
the Option Contracts, the Plans and the STMGs in order to purchase the
free and unconditional Building Leases from the Landlords relating to the
Lands and to build and operate the PV Plants according to the terms and
conditions set forth in this Agreement (the “Project”).
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IT IS AGREED as
follows:
3
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1.
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DEFINITIONS
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1.1
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The
Parties agree that, unless otherwise specified in this Agreement, the
following terms and expressions shall have the following
meaning:
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“AEEG” means the Italian Autorità per I’Energia Elettrica e il Gas established under law
no. 481/1995.
“Agreement” means this
Agreement together with its Schedules.
“Apricena Plant” means an
energy production plant to be built on part of the Lands in Apricena, Località
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, having an envisaged nominal installed power of 15 MWp and the
minimum
technical features and specifications described at Schedule
3
“Building Lease” means the
diritto di superficie right under
Articles 952 and following of the Italian civil code.
“Building Lease Contracts” has
the meaning set out under Article 2.1 of this Agreement.
“Business Day/Days” means a day
(except for a Saturday or a Sunday) on which banks are generally open in Foggia
for normal business.
“Claim” means a claim,
proceeding or other matter in respect of which the Transferor agreed to
indemnify and hold harmless the Transferee under Article 9.1.
“Closing” means the performance
by the Parties of all activities under Article 3.
“Completion” has the meaning
set out under Article 5.3.
“Consultants” means any
technical and legal consultant appointed by the Transferee for developing the
Plans and preparing the documents to be filed for the Unified
Authorization.
“Encumbrances” means any
claims, interest, option or pre-emption right or other rights of any parties,
charges, pledges, mortgages, security, actions, liens, or any other encumbrances
and the like, of any nature whatsoever.
“Final Verification” has the
meaning set out under Article 5.1 of this Agreement.
“Foggia Plant” means an energy
production plant to be built on part of the Lands in Foggia, Locality Salsola,
having an envisaged nominal installed power of 10 MWp and the minimum technical
features and specifications described at Schedule
3
“Key Persons” means the persons
of (i) ▇▇. ▇▇▇▇▇▇▇▇ ▇’▇▇▇▇▇,
born in Lendinara (RO) on 31-March 1979 and with residence in Via Verona n.9
Milano ; (ii) ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇’▇▇▇▇▇,
born in Lendinara (RO) on 31-March 1979 and with residence in ▇.▇▇ ▇▇▇▇▇▇▇ Via
per Palmori km 9 sp 21 Lucera (FG); (iii) ▇▇. ▇▇▇▇▇▇ ▇▇▇▇, born in Bolzano (BZ)
on 26-Febbruary 1980 and with residence in ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
(▇▇).
“Landlords” means the owners of
the plots of land where the PV Plants will be built, who signed the Option
Contracts.
4
“Lands” means the plots of land
located in the municipalities of Apricena, Località
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, and Foggia, Località Salsola, and listed in Schedule
2.
“Liability” and/or “Liabilities” mean the amount
of any loss, damages, sanctions, demands, claims, liabilities, costs, penalties,
expenses and/or any other kind of damages, whether accrued or
contingent.
“Option Contracts” means the
Building Lease call option agreements entered into between the Transferor and
the Landlords and attached to this Agreement as Schedule 1 hereto, as
eventually modified and replaced as provided under Article 2.2.
“Permits” means all permits
required to build and operate the PV Plants, including the Unified Authorization
and any further permit, license, registration, filing, variance, exemption,
consent, approval, franchise and authorization by or of any local, regional,
public or governmental authority and/or any third party.
“Plans” means all the plans and
technical documents of the PV Plants drafted by the Transferor, which have been
developed to the stage of preliminary feasibility study.
“Price” means the consideration
to be paid to the Transferor at the terms and conditions contained in this
Agreement pursuant to Article 6.
“Project” has the meaning as
specified under Premise (E).
“Public Notary” means the
public notary designated by the Transferee in Foggia at its own
discretion.
“Public Incentives” means the
awarding of the “Nuovo Conto
Energia” feed-in tariff as provided by Ministerial Decree 19 February
2007 and AEEG’s resolution no. 90/2007.
“PV Plants” means jointly the
Apricena Plant and the Foggia Plant.
“Signing” means the signing of
this Agreement, together with all its Schedules.
“Schedules” means the schedules to this
Agreement.
“STMGs” means all the necessary
technical solutions - including the Soluzione Tecnica Minima
Generale drafted by the competent energy grid manager attached hereto as
Schedule 4 –
for the several connection of all the PV Plants to the local energy
grid.
“STMGs Transfer
Acknowledgement” has the meaning set out under Article 2.3.
“Unified Authorization” means
the Autorizzazione
Unica (as per Article 12 of the legislative decree No.
387/2003).
“Warranties” means the
representations and warranties of the Transferor under Article 8.
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2.
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SCOPE
OF THE AGREEMENT
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2.1
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Upon
the terms and subject to the conditions set forth in this Agreement, at
Closing, the Transferor undertakes to cause all the Landlords to enter
into the Building Lease Contracts with the Transferee and to transfer to
the Transferee, who accepts, the Permits and the Plans. Without prejudice
for the right of the Transferee not to proceed to Closing, the Parties
expressly agree that the Transferor shall not be liable in case it proves
that is has performed all reasonable acts and taken all reasonable actions
to obtain the entering into the Building Lease Contracts by the
Landlords.
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5
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2.2
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The
Building Lease Contracts shall be in the form and shall contain the terms
and conditions deemed appropriate by the Public Notary and satisfactory to
the Transferee in order to obtain the registration of the Transferee’s
rights under the Option Contracts in the name of the Transferee pursuant
to Article 2645bis of the Italian civil code or in any other form as
agreed by the Parties before Closing. It is understood that, except where
differently agreed by the Parties before Closing, the terms and conditions
contained in the Building Lease Contracts shall be fully consistent with
those contained in the Option Contracts and, in addition, shall (i) be
conditional with respect to the exercise of the call option (or call
option-like) right by the Transferee and (ii) generally keep the
Transferee free from any obligation unless such right is effectively and
finally exercised. Upon execution of the Building Lease Contracts, the
Transferee shall pay to the Landlords a lump-sum up to a maximum amount
of [___]* per hectare, as a compensation for the notarial
reproduction of the Option Contracts, provided that such compensation
shall be deducted from the first rent to be paid to each of the Landlords
should the Transferee subsequently acquire the relevant Building Lease.
All expenses related to the execution of the Building Lease Contracts
shall be entirely borne by the
Transferee.
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At least
10 Business Days before Closing, the Transferor will receive a copy of the
Building Lease Contracts, which will be made at the Public Notary’s
office.
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2.3
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The
transfer of the STMGs shall be executed by means of written notification
by the Transferor to the competent energy grid manager, according to
applicable laws and regulations, and shall be duly accepted and confirmed
by the latter (the “STMGs Transfer Acknowledgement”).
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2.4
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The
Parties expressly acknowledge that the Transferee shall have the right to
exercise the option for the acquisition of the Building Lease for each
Land totally or partially on the basis of the effective needs - which
shall be consistent with the Plans - relating to each PV Plant and the
relevant rent shall be calculated
accordingly.
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3.
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CLOSING
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3.1
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Closing
shall take place at the offices of the Public Notary within 45 days from
Signing or on such other date as the Parties may hereafter determine by
mutual written agreement. In case Closing does not occur within this term,
this Agreement shall be automatically
terminated.
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3.2
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At
Closing:
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(a)
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the
Transferee and the Landlords shall execute before the Public Notary the
Building Lease Contracts pursuant to Article 2.2, accompanied by the
notarial transcription needed for the registration of the relevant
Transferee’s rights with the Registro Immobiliare (“Italian
public registry of real estates”);
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(b)
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the
Transferee shall pay to each Landlord with whom a Building Lease Contract
has been entered into the lump-sum provided under Article
2.2;
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*This information has been omitted and filed separately with the Commission
pursuant to a request for confidential treatment.
6
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(c)
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the
Transferor shall deliver to the Transferee originals of the STMGs, of the
STMGs Transfer Acknowledgment and of any other Permit and Plan relating to
the Project;
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(d)
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the
Transferee shall pay to the Transferor the first instalment of the Price
as provided under Articles 6.1(a).
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3.3
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All
actions and transactions constituting the Closing as described in this
Article 3 shall be regarded for the purposes of the Closing as one and
single transaction so that, at the option of the Party having interest to
the carrying out of the specific action or transaction, no action or
transaction shall be deemed to have taken place unless and until all other
actions and transactions constituting the Closing shall have taken place
as provided in this Agreement.
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4.
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POST-CLOSING
OBLIGATIONS
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4.1
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Upon
Closing, the Transferee shall start all development activities necessary
for applying for the Unified Authorization, with the co-operation of the
Transferor. To that purpose, the Transferee, also through its Consultants,
shall:
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(a)
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develop
the Plans to the level of detail required by the Italian applicable laws,
rules and regulations concerning the Unified
Authorization;
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(b)
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except
for the documents described at Article 4.2(b) and 4.2(c) below, prepare
all the appropriate complementary documents to be filed with the competent
authorities in order to apply for the Unified Authorization;
and
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(c)
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provide
full copy of such documents to the Transferor in order to allow the
material filing of the Unified Authorization’s application by the
Transferor under Article 4.3 below.
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4.2
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Upon
Closing, the Transferor shall co-operate with the Transferee in carrying
out all development activities necessary for applying for the Unified
Authorization. To that purpose, the Transferor shall, inter
alia:
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(a)
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provide
all information deemed useful by the Transferee and assist the latter and
its Consultants in developing the Plans and the complementary documents in
accordance with the competent local authorities’
praxis;
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(b)
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fully
cooperate with and assist the Transferee and its Consultants in the
management of all relationships with the competent authorities, the
Landlords or any public or private entity with respect to the
accomplishment of all development activities necessary for applying for
the Unified Authorization; and
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(c)
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prepare,
develop and finalise, in co-operation with the Transferee and its
Consultants and within 60 days from Closing, any environmental-related
document required for the obtainment of the Unified
Authorization.
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4.3
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Upon
delivery of the documents provided at Article 4.1(c) above and upon
issuance of written power of attorney to this effect by the Transferee in
favour of the Transferor (if required), the Transferor shall perform all
necessary activities in order to accomplish all filings and procedures
required and shall obtain on behalf of the Transferee all Permits for
allowing the latter to unconditionally build and operate (i) the Apricena
Plant with the minimum nominal power of 15 MWp and (ii) the Foggia Plant
with a minimum nominal power of 10 MWp. To that purpose, the Transferor
shall:
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7
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(a)
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finalise
the Unified Authorization request with all the required documents, in full
compliance with the Italian applicable laws, rules and regulations and
file the application with the competent authorities, on behalf of the
Transferee, within 10 days from the notice provided at Article 4.1(c)
above;
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(b)
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take
care of all the administrative procedures up until the attainment of all
Permits, acting in full compliance with the procedural rules provided by
the applicable laws;
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(c)
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should
any authorization and/or environmental assessment procedure further to the
Unified Authorization be required, prepare all the documents concerned on
behalf of the Transferee and take care of the relevant procedures up until
their positive completion.
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The
Transferor shall do its maximum efforts in order to get the Unified
Authorization within the term foreseen by the law; in case of delays caused by
the Authority or force majeure the Transferor will not be
responsible.
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4.4
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The
Transferee shall have ownership of all documents drafted and delivered by
either Party in the accomplishment of the Development
Activities.
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4.5
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All
costs and expenses relating to the activities under Article 4.1 will be
borne by the Transferee and all costs and expenses relating to the
activities under Articles 4.2 and 4.3 shall be entirely borne by the
Transferor.
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4.6
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The
Transferor shall promptly notify the Transferee in writing upon obtainment
of all Permits and shall deliver to the Transferee all the relevant
documents.
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5.
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FINAL
VERIFICATION AND COMPLETION
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5.1
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From
the date of receipt of the notice under Article 4.6 above and for a period
of 10 Business Days starting from that date, the Transferee shall have the
right to conduct a legal and technical due diligence to verify the correct
and final and valid granting of the Permits (the “Final Verification”). To
this effect, the Transferor shall provide the Transferee and its advisors
with full access to the Permits and all other documents and information
related as may be reasonably required by the
Transferee.
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5.2
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Upon
completion of the Final Verification, to be made within the deadline term
under Article 5.1, should any Permit be, totally or partially, not valid,
also with respect to part of the PV Plants or the Lands, the Transferee
shall have the right to, in addition to any other remedy provided for by
the law:
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(a)
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terminate
this Agreement in its entirety pursuant to Article 13.2;
or
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(b)
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proceed
to the Completion only with respect to the PV Plants in relation to which
the Permits are fully valid - eventually postponing Completion with
respect to the other PV Plants.
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8
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5.3
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Upon
satisfactory completion of the Final Verification, the Transferee shall
definitively acquire, by entering into appropriate public transfer deeds
with the Landlords, all Building Leases or - in the case provided at
Article 5.2(b) above - part of the Building Leases pursuant to the
relevant Building Lease Contracts (the “Completion”). Completion
shall occur within 20 days from the date the Final Verification is
satisfactorily completed pursuant to the deadline term under Article 5.1.
The Parties expressly agree that Completion shall be deemed to have
occurred on the first day after the expiration of such term in case the
Building Leases or - in the case provided at Article 5.2(b) above - part
of the Building Leases are not entered into by the Transferee within such
term and pursuant to the relevant Building Lease Contracts for any reason
different from a breach by the Landlords’ of their obligations under the
relevant Building lease Contract and directly attributable to the
Transferee. In the event under Article 5.2(b) or should (i) any of the
Landlords be in breach of its obligations under the Building Lease
Contracts or (ii) the Lands’ Clearance is not performed by the Landlords
at Completion, the Transferee shall have the right to postpone Completion
with respect to the relevant PV Plants until all the relevant
preconditions are satisfied.
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5.4
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The
Parties agree that in case the Transferee decides not to proceed with
Completion with respect to one or more PV Plants according to the above,
Article 13.2 shall apply, mutatis mutandis and
accordingly, with respect to such PV Plant provided that article 13.2(c)
shall eventually apply pro rata and
proportionally.
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6.
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PRICE
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6.1
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As
consideration for the proper implementation of the Project, the Transferee
shall pay to the Transferor a Price equal to [___]* as
follows:
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(a)
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[___]*
shall be paid in cash, as an advance payment, at
Closing;
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(b)
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[___]*
shall be paid in cash upon filing of the Unified Authorisation pursuant to
Article 4.3 within 5 (five) Business Days from the receipt by the
Transferee of the documents giving evidence of such
filing.
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6.2
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The
payment of the Price shall be made by irrevocable wire transfer in
immediately available funds into the bank account of the Transferor, on or
before the date the payment is due for value on that date. The details of
the account shall be notified in advance by the Transferor to the
Transferee. The Price will be subject to taxation, payable by Transferee
pursuant to applicable laws and
regulations.
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7.
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FURTHER
OBLIGATIONS OF THE PARTIES
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7.1
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Before
entering into the relevant contracts for the building of the PV Plants and
in any case before starting the building works of the PV Plants, the
Transferee shall do its best effort to enter into an arm’s length
Engineering Procurement Construction (the “EPC”) contract
concerning the PV Plants and into an arm’s length Operation &
Maintenance (the “O&M”) contract of
the PV Plants with the Transferor or any other company indicated by the
latter, at terms and conditions which are customary for these kind of
agreements, subject to approval by the financial institutions financing
the Project.
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*This information has been omitted and filed separately with the Commission
pursuant to a request for confidential treatment.
9
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7.2
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Upon
request of the Transferee, the Transferor shall provide directly or
through any third party custody and surveillance services to the PV Plants
on an arm’s length basis and at terms and conditions which are customary
for these kind of services.
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7.3
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Should
the Transferee, for any reason, do not enter into the EPC and O&M
contracts with the Transferor and obtain from third parties better terms
and conditions than those offered by the Transferor, the Transferee shall
do its best efforts to cause such third parties to apply the same terms
and conditions to the Transferor for other projects, similar to the
Project, and even if they concern the implementation by the Transferor of
a single PV Plant of 1 (one) MW, in the Foggia
territory.
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8.
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REPRESENTATIONS
&WARRANTIES
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8.1
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The
Transferor represents and warrants to the Transferee that each of the
statements set out below is true, accurate and complete in all material
respects at the date of Signing and will also be true, accurate and
complete at Closing and at
Completion.
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(a)
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Capacity
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(i)
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The
Transferor is a corporation validly existing under the laws of Italy with
the requisite power and authority to enter into and perform, and has taken
all necessary corporate actions to authorise the execution and performance
of its obligations under this
Agreement.
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(b)
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Permits:
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(i)
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at
Completion, the Permits will be true, comprehensive, adequate and
sufficient in order to allow the Transferee to legitimately and
unconditionally build and operate the PV Plants in accordance with this
Agreement and the Plans and without any further authorization
procedure;
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(ii)
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no
Permits, other than the Unified Authorization, the possible environmental
assessments and the transfer of STMGs or the permits listed in the STMGs
(Preventivi) - provided that such
permits as listed in the in STMGs (Preventivi) shall not prevent the right
of the Transferee to build and operate the PV Plants according to this
Agreement -, have to be required or obtained by the Transferee in order to
build and operate the PV Plants in accordance with this Agreement and the
Plans.
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(iii)
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in
the best knowledge of the Transferor, there are not facts or circumstances
which can directly or indirectly impede the issuance or may involve the
revocation of the Permits;
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(iv)
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no
amount of any nature whatsoever has to be paid by the Transferee to any
public or private entity - or, in general, to any third party - for the
availability of the Lands, the validity of the Permits and the right to
build and operate the PV Plants, except for the rent to be paid to the
Landlords under the Building Lease
Contracts.
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10
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(c)
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STMGs:
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(i)
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the
STMGs, are true, comprehensive, adequate and sufficient in order to allow
the Transferee to legitimately and unconditionally connect the PV Plants
to the energy grid in accordance with this Agreement and the Plans and
without any further request or procedure other than the implementing steps
of the STMGs;
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(ii)
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as
from the Completion date and for the entire period of their validity under
the applicable laws and regulations, the connection of the PV Plants to
the power grid will be possible as envisaged in the STMGs for a minimum
nominal power of (i) 15 MWp as to the Apricena Plant and (ii) 10 MWp as to
the Foggia Plant;
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(iii)
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the
STMGs are freely and unconditionally transferable to the
Transferee;
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(iv)
|
in
the best knowledge of the Transferor, there are not facts circumstances
which can cause directly or indirectly the revocation or the
non-enforceability of the STMGs.
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(d)
|
Public
Incentives:
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(i)
|
the
PV Plants, if built in accordance with the Permits within 14 months as
from the date of Completion, will have the free and unconditional right to
be awarded of the Public Incentives for their entire energy
production.
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(e)
|
Intellectual
property and third party’s rights
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(i)
|
all
Plans, documents and information provided by the Transferor to the
Transferee in relation to the Project, including reports and technical
documents do not infringe any third party’s intellectual property
right;
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(ii)
|
the
Transferor has not entered into any agreement, orally or in writing, with
any third party which can affect or limit in any way the rights of the
Transferee under this Agreement or the right of the Transferee to build
and operate the PV Plants in accordance with this Agreement and the
Plans.
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(f)
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Completeness
of information:
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(i)
|
all
information contained in the Warranties and in the Schedules, as well as
all information given to the Transferee also through its professional
advisors during the negotiations prior to this Agreement and study of the
Project, is true, fairly presented and there is no fact or matter which
has not been disclosed which renders any such information untrue,
incomplete or misleading and there is no fact or matter concerning the
Transferor, the Project, the Option Contracts, the Lands, the PV Plants,
the Permits or the STMGs which has not been disclosed to the Transferee
which should have been disclosed in the context of a good faith
negotiation.
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9.
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INDEMNIFICATION
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9.1
|
In
addition and without limitation to any other remedy provided by applicable
law, the Transferor agrees to indemnify and hold harmless the Transferee
from any and all Liabilities suffered or incurred by the Transferee, as a
result of or arising from:
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11
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(a)
|
any
of the Warranties being totally or partially untrue, inaccurate, not
complete or misleading; and
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(b)
|
any
Transferor’s breach of its obligation under this
Agreement.
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9.2
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If
the Transferee becomes aware of a matter or circumstance which is likely
to give rise to a Claim, the Transferee shall give a written notice to the
Transferor specifying that matter or circumstance in reasonable detail,
and setting out such other facts as the Transferee deems necessary, as soon as reasonably
practicable after it becomes aware of that matter or
circumstance.
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9.3
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If
any third party makes claim against Transferee directly or indirectly
relating to any breach of the Warranties, the Transferee shall give notice
to the Transferor describing the claim in reasonable detail, and setting
out such other facts as the Transferee deems necessary, as soon as
reasonably practicable after it becomes aware of such claim or threatened
claim. In such case the Transferee shall, by taking into consideration the
interests of the Transferor, take all reasonable measures to mitigate the
amount of damages. These reasonable measures include e.g. the consultation between the
Parties or their lawyers regarding the strategy to be used to defend the
relevant third party or any settlement of such third party
claims.
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9.4
|
The
indemnity obligations of the Transferor contained in Article 9 of this
Agreement shall survive Completion until the end of the third year after
Completion. It is agreed that, in the event of a Claim, the indemnity
obligations contained in this Agreement, pursuant to which such Claim has
been made, the corresponding limitation of liability in respect of any
indemnification relating thereto and the corresponding guarantee therefore
pursuant to this Agreement, will continue to survive, with regard to the
specific matter subject to and for the amount of that specific Claim
beyond the relevant terms indicated above, until the relevant Claim has
been resolved pursuant to this Agreement. It is further agreed that in
relation to each Claim, the liability of the Transferor in respect of such
Claim shall in any event terminate if proceedings in respect of it have
not been commenced within 1 (one) year after the giving of notice of that
Claim as described in this
Agreement.
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10.
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PENALTY
CLAUSE
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10.1
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In
addition and without limitation to any other remedy provided by applicable
law and for additional damages suffered by the Transferee, in case of
breach by the Transferor of its obligation to perform the activities under
Article 4.3 within the terms set out therein, the latter shall pay to the
Transferee, according to Article 1382 of the Italian Civil Code, a penalty
of [___]* per each day of delay until such obligations have been performed
or the Agreement is terminated for whatsoever
reason.
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11.
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FURTHER
OBLIGATIONS OF THE PARTIES
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11.1
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After
Closing and up until the completion of the Project, the Transferor shall
continue providing the Transferee with appropriate support about the
following:
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·
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advise
the Transferee for all the relationships with the local authorities and
any other entity or market player;
and
|
*This information has been omitted and filed separately with the Commission
pursuant to a request for confidential treatment.
12
|
·
|
assist
the Transferee in selecting the appropriate operation, maintenance and
security policies to be adopted for the PV Plants after they’ve become
operational.
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11.2
|
The
Transferee shall keep the Transferor as its sole representative in dealing
with the public local authorities, except in case of any breach by the
Transferor of its obligations under this
Agreement.
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11.3
|
The
consideration for the obligations set forth at Article 11.1 above is
included in the Price.
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11.4
|
Any
further activity carried out by the Transferor for and on behalf of the
Transferee after Closing,
upon explicit and separate engagement by the latter, will be paid
separately.
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12.
|
KEY
PERSONNEL
|
|
12.1
|
The
Transferor declares and undertakes not to allow any of the Key Persons to
cease their current offices in its organization up until the Project
completion.
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12.2
|
Should
any of the Key Persons cease his office in the Transferor’s organization
as a consequence of facts beyond the Transferor’s control, it shall
appoint a new officer with substantially equal (or greater) skills within
15 days from the officer’s cessation
date.
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13.
|
TERMINATION
|
|
13.1
|
Without
prejudice to Article 9, in case of breach by the Transferor of any of its
obligations under Article 4.2 and 4.3, the Transferee shall have the right
to immediately terminate this Agreement by serving a written notice to the
Transferor and without prejudice for any Transferee’s right for damages,
including all costs and expenses incurred by the Transferee to implement
the Project.
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13.2
|
Without
prejudice for the right of the Transferee to receive damages in case of
breach of the Transferor’s obligations under this Agreement and without
prejudice for what is provided under Article 9, in case (i) Completion
does not occur – for any reason not depending on Transferee’s breach of
its obligation under this Agreement - within six months from Signing (such
term to be eventually postponed by the Transferee for a further period of
up to 6 months at its sole discretion) or (ii) prior or at Completion any
of the Warranties is materially untrue or incorrect, or (iii)
the amount and the duration of the Public Incentives will be - prior or at
Completion - respectively minor to the sum and to the period envisaged by
the applicable laws and regulations at Signing, the Transferee shall have
the right to immediately terminate this Agreement, with respect to all or
part of the PV Plants, by serving written notice to the Transferor. Upon
such termination
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(a)
|
any
obligation of the Transferee under this Agreement, including - subject to
letter (c) below - the obligation to pay the Price shall be considered
totally or partially as the case may be as null and void;
and
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|
(b)
|
except
in case of breach by the Transferor of any of its obligations under this
Agreement or of the Warranties, the Transferee shall transfer back to the
Transferor the rights under the relevant Building Lease Contracts or
Option Contracts, as the case maybe, and the relevant STMGs and Plans,
where applicable, within 10 (ten) Business Days upon written request of
the Transferor and prior payment of all relevant lump sums paid to the
Landlords pursuant to Article 2.2;
and
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13
|
(c)
|
the
Transferor, except in case such termination is caused by a breach of the
Transferor’s obligations under this Agreement, shall have the right to
retain - as compensation for the suffered costs and expenses - the Price
eventually paid by the Transferee pursuant to this Agreement. It is
understood that in case such termination is caused, directly or
indirectly, by a breach of the Transferor’s obligations under this
Agreement, the Transferor, without prejudice for any Transferee’s right
for damages, shall immediately reimburse to the Transferee all payments
made as Price and all costs and expenses suffered in relation to the
Project, including the lump sums paid to the Landlords pursuant to Article
2.2 if not previously reimbursed under letter (b)
above.
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|
14.
|
CONFIDENTIALITY
|
|
14.1
|
Without
the prior written consent of the other Party, the Parties expressly
undertakes to treat as strictly confidential and not disclose to any third
party, except to its affiliates, advisors and or third party to which the
information have to be transferred for the implementation of the Project,
this Agreement and its content as well as any information concerning the
Project received in connection with the performance of the Agreement
provided that the Transferee shall be free to (i) make any public
announcement on the Project without the need to obtain the prior
agreement/authorisation of the Transferor, (ii) to transfer any
confidential information relating to this Agreement or the Project to its
investors and to any third party directly or indirectly involved in the
Project (including advisors, third party contractors, financial
institutions and in general any third party to which the information have
to be transferred for the implementation of the
Project).
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|
14.2
|
The
confidentiality obligation provided under Article 14.1 above shall not
apply to information which:
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|
(a)
|
is
or becomes publicly known through no wrongful act of one of the
Party;
|
|
(b)
|
is
received without restriction from a third party without breach of any
obligation of non-disclosure;
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|
(c)
|
is
independently developed by one of the Party as shown to the satisfaction
of the other Party by written records;
or
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|
(d)
|
is
required to be disclosed under the applicable laws, rules or regulations
or in order to duly perform the obligations provided in the
Agreement.
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|
14.3
|
The
obligations contained in this Article shall survive for 5 (five) years
after termination or ceasing of this
Agreement.
|
|
15.
|
FORCE
MAJEURE
|
|
15.1
|
According
to Italian law, no Party shall be responsible for breach of its
obligations under this Agreement in case such breach is directly caused by
force majeure circumstances which are beyond the Parties’ reasonable
control and cannot be overcome by
them.
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|
16.
|
NOTICES
|
|
16.1
|
Any
notice or other document to be served under this Agreement shall be sent
by registered mail, anticipated by fax or email, to the following
addresses:
|
14
|
(a)
|
to
the Transferor:
|
|
·
|
ASW
S.r.l. - ▇.▇▇ ▇▇▇▇▇▇▇ SP n. 21, Via Per Palmori Kin 9 – 71036 Lucera
(Foggia) – ▇▇▇▇▇▇▇▇ ▇’▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇;
|
|
(b)
|
to
the Transferee:
|
|
·
|
PSP
Inc. – European Headquarters, 4 Paradeplatz - 9 Tiefenhoefe, ▇▇-▇▇▇▇
▇▇▇▇▇▇ – ▇▇▇▇▇ ▇▇▇▇▇▇▇ –
Fax: ▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇;
|
or
at such
other address each Party may have notified to the other Party in accordance with
this clause.
|
17.
|
MISCELLANOUS
|
|
17.1
|
Entire
Agreement
|
This
Agreement (including any Schedule hereto) and the agreements, documents and
instruments to be signed and delivered pursuant hereto or thereto, are intended
to function as the final, complete and exclusive agreement among the Parties
with respect to the Project and related transactions, and are intended to
supersede all prior agreements, understandings and representations written or
oral, with respect thereto and may not be contradicted by evidence of any such
prior or contemporaneous agreement, understanding or representation, whether
written or oral.
|
17.2
|
Amendments
|
No
amendment, modification or waiver of any provision of this Agreement shall be
valid and binding unless approved in writing by the Party against which such
amendment, modification or waiver is invoked. No waiver of the Parties shall
constitute a waiver of any other provision unless such waiver is otherwise
expressly provided.
|
17.3
|
Severability
|
Any
Article or other provisions of this Agreement which is or becomes illegal,
invalid or unenforceable shall be severed from this Agreement, to the extent
permitted under applicable law, and be ineffective to the extent of such
illegality, invalidity or unenforceability and shall not affect the remaining
provisions hereof and be replaced by a provision reflecting the intent of the
Parties.
|
17.4
|
Language
|
The
language of this Agreement and the transactions envisaged by it is English and
all notices, demands, requests, statements, certificates or other documents or
communications must be in English unless otherwise agreed. However, where a term
in Italian is given in italics or in italics and in brackets after an English
term and there is any inconsistency the meaning in Italian shall
prevail.
|
17.5
|
Fees
|
Except
where this Agreement provides otherwise, each Party shall pay its own costs and
fees relating to the negotiation, drafting, execution and implementation of this
Agreement and of each document referred to in it.
15
|
17.6
|
Assignment
|
This
Agreement and all related rights, interests, and obligations shall not be
assigned by the Transferor without the prior written consent of the Transferee
and any attempt of transfer or assignment of this Agreement by the Transferor
without the consent of the Transferee shall be deemed void and with no
effect.
The
Transferee shall have the right to transfer and assign, totally or partially -
and without any need to obtain the prior consent of the Transferor - to any
third party this Agreement and all related rights, interests and obligations,
provided that the Transferee shall remain fully and jointly responsible with the
transferee for the fulfilment by the transferee of all its obligations under
this Agreement.
|
18.
|
GOVERNING
LAW
|
|
18.1
|
This
Agreement is governed by and shall be construed in accordance with Italian
law.
|
|
19.
|
ARBITRATION
|
|
19.1
|
Unless
settled by mutual agreement, any dispute whatsoever that might arise out
of or in connection with the performance or the meaning of this Agreement
or in connection with any other matter of whatsoever nature concerning
this Agreement shall be submitted to arbitration and finally settled in
accordance with and subject to the Rules of Arbitration of the
Camera Arbitrale
Nazionale ed Internazionale of Milan. The panel of arbitrators will
be composed of three members, two of them appointed, each, by each Party
and the third one, who shall act as Chairman, appointed jointly by the two
appointed arbitrators or, in case of disagreement, by the Camera Arbitrale in the person of its
Chairman.
|
|
19.2
|
Unless
otherwise agreed in writing by the Parties, the arbitration will take
place in Milan (Italy), in English language. The Parties acknowledge and
agree that the laws of the Republic of Italy will apply to the
arbitration.
|
|
19.3
|
The
costs of the arbitration, including counsel’s fees and cost, will be
assessed against the unsuccessful Party, with respect to any claim
unsuccessfully disputed by the relevant Party, and the arbitrators shall
make such costs allocation in their
decisions.
|
***
THIS
AGREEMENT has been signed by the Parties (or their duly authorised
representatives) on the date stated at the beginning of this
Agreement.
| /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ D’Angiò | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
|
▇▇▇▇
▇▇▇▇▇▇▇▇ D’Angiò
|
▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
|
For
and on behalf of ASW S.r.l.
|
||
| /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | ||
|
▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇
|
||
|
For
and on behalf of PSP
Inc.
|
16